Disposed

S.Unnikrishnan Nair v. Union of India

Kerala HC26 May 2016OP (CAT)/141/2016

Case brief

AI extract

What is this about?

The Court held that a suspended employee cannot be compelled to join duty at a transferred posting while facing an inquiry. Consequently, authorities must disburse subsistence allowance directly without requiring the employee's presence at the new HQ. Salary arrears remain disputed.

What did the court decide?

Drawing officers authorized to disburse subsistence allowance via DD/Bankers Cheque within one month; eligibility for salary arrears left open; concessions by Tribunal forfeited.

S.Unnikrishnan Nair Vs Union of India — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THURSDAY, THE 26TH DAY OF MAY 2016/5TH JYAISHTA, 1938

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OP (CAT).No. 141 of 2016 (Z)

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AGAINST THE ORDER/JUDGMENT IN OA 156/2015 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 15-01-2016 & ORDER DTD.2.3.2016 IN RA180/22/16

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PETITIONER :

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S.UNNIKRISHNAN NAIR, INSPECTOR OF POLICE, (UNDER SUSPENSION), CENTRAL BUREAU OF INVESTIGATION (SCB), LAVANYA, CHAVADINADA, VENGANOOR, THIRUVANANTHAPURAM-695 523.

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BY ADVS.SRI.M.R.RAJENDRAN NAIR (SR.) SRI.M.R.SUDHEENDRAN

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RESPONDENTS :

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UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PERSONNEL AND TRAINING, NEW DELHI.

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DIRECTOR, CENTRAL BUREAU OF INVESTIGATION,

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C.G.O COMPLEX, LODHI ROAD, NEW DELHI-110 003.

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DEPUTY DIRECTOR (ADMINISTRATION) C.B.I., HEAD QUARTERS, 5-B, 7^th FLOOR, C.G.O.COMPLEX, LODHI ROAD, NEW DELHI-110 003.

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SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, THIRUVANANTHAPURAM-695001.

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R1 BY SRI.N.NAGARESH ASSISTANT SOLICITOR GENERAL R2-R4 BY SRI.P.CHANDRASEKHARA PILLAI, SC, C.B.I.

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THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 26-05-2016, ALONG WITH O.P.(CAT)No.142/2016 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (CAT).No. 141 of 2016 (Z)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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P1 COPY OF ORDER DTD.22.12.2010, IN IA NO.16944/2010 IN WPC NO.13426/2010.

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P2 COPY OF ORDER DTD.24.1.2010, IN WPC NO.13426/2010.

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P3 COPY OF THE ORDER IN BA NO.2528/13 DTD.13.6.2013.

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P4 COPY OF THE OA NO.156/2015 DTD.17.2.2015 ALONG WITH ANNEXURES.

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P5 COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN THE OA NO.156/2015.

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P6 COPY OF THE REVEIW APPLICATION RA NO.180/22/16 DTD.17.2.2016 ALONG WITH ANNEXURES.

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P7 COPY OF THE ORDER DTD.2.3.2016 IN RA NO.180/22/16.

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RESPONDENTS' EXHIBITS :- Nil.

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True copy

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P.A to Judge

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P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.

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O.P.(CAT)Nos.141 & 142 of 2016

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Dated this the 26^th day of May, 2016

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JUDGMENT

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Ramachandra Menon, J.

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Whether it is obligatory for the delinquent employee to join duty at the transferred place during pendency of the domestic enquiry (facing the charge also in respect of the misconduct of non-joining of duty, despite the transfer) which has become final and whether such non-joining duty at the transferred place is a sufficient ground to deny the 'subsistence allowance' payable in accordance with law, is the moot question involved in these Original Petitions. The facts and figures and the sequence of events are almost identical in both the cases. For convenience, reference is made to the pleadings, Exhibits and the parties as given in O.P.(CAT)No.141/2016.

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The petitioners, while working as Inspector of Police in the CBI (SEB), Thiruvananthapuram, came to be assigned with the task of investigation in relation to the Crime No.251 of 2010 of Town North Police Station, Palakkad, involving the custodial

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O.P.(CAT)Nos.141 & 142 of 2016

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murder of one Mr.Sampath (popularly known as 'Sampath murder case'). The team was in fact headed by an Additional S.P. by name Haridath. Allegedly because of the pressure exerted from the part of the officers occupying the higher levels, the captain of the team, Mr.Haridath, committed suicide on 15.3.2012. Pursuant to a 'suicide note' allegedly recovered from the deceased, proceedings were initiated against the petitioners herein, alleging that they were also instrumental in this regard and accordingly, they were transferred to the concerned offices under the Head Quarters in Calcutta and Guwahatti respectively.

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The petitioners challenged the order of transfer by filing O.A.No.340/2012 before the Central Administrative Tribunal, Ernakulam. Interference was declined and the transfer order was upheld by the Tribunal as per Annexure-A1. However, taking note of the nature of contentions raised by the applicants, that the 'suicide note' itself was fabricated and such other circumstances, it was observed by the Tribunal in paragraph 17 of the verdict that, if in the due course it was proved that the

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O.P.(CAT)Nos.141 & 142 of 2016

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applicants were not responsible, the transfer of the applicants to such a far away place should be reviewed and the applicants be brought back to Kerala, which exercise was directed to be ensured by the Director of CBI at the appropriate time. The Tribunal further observed in the next paragraph (i.e., para.18) that the applicants presumably had not applied for leave for the intervening period and in view of the particular circumstances, it was made clear that, on their joining duty at the new stations, if they applied for leave for the period they did not attend the office, the authorities shall not reject their application, but were to sympathetically consider the same. It is pointed out that the said order has become final. But the fact remains that the petitioners did not join duty at the transferred place, nor did they submit any application for leave as aforesaid.

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While so, further proceedings were issued by the Department and the petitioners came to be suspended from service, referring to the misconduct committed by them and the enquiry proposed to be made as per Annexure A-2 order dated

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O.P.(CAT)Nos.141 & 142 of 2016

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17.7.2012 issued by the Deputy Director (Administration), CBI, New Delhi. It was also stated therein, that during the period of operation of the said order, the Head Quarters of the delinquent employees shall be at Calcutta/Guwahatti, as the case may be, and that the delinquent employees shall not leave the Head Quarters without prior permission of the competent authorities. It is seen that, both the petitioners have been served with charge sheet as well, in respect of the different misconducts. The suspension was sought to be challenged by filing O.A.No.684/2012 but no interference was made by the Tribunal and the said O.A. was dismissed; however making clear that during the period of enquiry the Headquarter of the petitioners shall be in Kerala instead of Calcutta/Guwahatti. The said order also has become final.

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In the course of further proceedings, the criminal proceedings initiated against the petitioners based on the F.I.R. registered in connection with the unnatural death was quashed by this Court as per Annexure-R-A1 order dated 14.12.2012 in

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O.P.(CAT)Nos.141 & 142 of 2016

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Crl.M.C.No.3688/2012. Though the same was sought to be challenged by the Department by approaching the Apex Court, the same did not come to be successful and Crl.A.No.2086/2014 was dismissed as per Annexure-R-A2 upholding the verdict passed by this Court.

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Describing the sequence of events as above, the petitioners have moved the Tribunal by filing O.A.Nos.156/2015 and 154/2015 respectively, seeking to disburse the arrears of 'subsistence allowance' and salary for nearly three months, i.e., after the transfer to the respective place in Calcutta/Guwahatti and till the date of suspension ordered on 17.7.2012. The relief was opposed from the part of the Department, mainly contending that the applicants had not joined duty at the transferred place, despite the transfer was upheld by this Court. It was also pointed out that the petitioners, having already been relieved from the service of the Head Quarters in Kerala (18.4.2012), they had to come in the pay rolls of the Head Quarters of the transferred place (in Calcutta/Guwahatti) and as such, the due amount could

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O.P.(CAT)Nos.141 & 142 of 2016

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be drawn and released to them only after their joining duty at the transferred place. The relevant rules governing the drawal and disbursal of the amounts and the powers of the drawing officers were also referred to. It was accordingly, that a verdict was passed by the Tribunal, whereby the O.As. were disposed of, taking note of the submission/stand of the Department that they were ready to disburse the subsistence allowance; provided the petitioners joined duty at the transferred places, so as to bring them in the roll of the Head Quarters at the transferred place and to draw the due amount and disburse the same accordingly, in tune with the relevant provisions of law. This according to the petitioners is per se wrong and unsustainable in all respects, as joining duty by a suspended employee is not contemplated, in so far as suspension is not revoked and as such, non-joining duty at the transferred place will not disable them to get the 'subsistence allowance' during pendency of the disciplinary proceedings. It is in the said context, that the petitioners have approached this Court by filing the above Original Petitions.

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O.P.(CAT)Nos.141 & 142 of 2016

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Heard Mr.M.R.Rajendran Nair, the learned Senior

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Counsel appearing for the petitioners and Mr.Chandrasekhara Pillai, the learned Standing Counsel appearing for the CBI at length.

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The learned Senior Counsel for the petitioners submits that the factum of transfer to the petitioners and suspension from service, pending enquiry, have become final and that there is no dispute in this regard. It is stated that the enquiry is going on at Trivandrum and the grievance is only with regard to the nondisbursement of the subsistence allowance and salary arrears, despite their eligibility in accordance with law. It is also stated that, the petitioners cannot be compelled, forced or pressurised to join duty at the transferred place, so as to make them eligible for obtaining the 'subsistence allowance'. It is also added that the petitioners, admittedly being under suspension, cannot be compelled to join duty without revoking the suspension; which otherwise will be a paradox, in so far as no order of reinstatement has been passed by the Department. It is also

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O.P.(CAT)Nos.141 & 142 of 2016

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submitted by the learned Senior Counsel that the petitioners are now being proceeded against, also for the misconduct in respect of non-joining of duty at the transferred place, as evident from Charge No.7 of Annexure-A3 (in respect of the petitioner in O.P. (CAT)No.141/2016) and from Charge No.4 of Annexure-A3 (in respect of the petitioner in O.P.(CAT)No.142/2016). In so far as the enquiry is still to be finalised and since the petitioners have not been reinstated in service, they still continue under suspension and they are not in a position to join duty at the transferred place, submits the learned counsel.

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The learned Standing Counsel for the CBI submits that the proceedings taken by the respondent/Department are perfectly within the four walls of law, being in conformity with the relevant rules, which have been specifically referred to by the Tribunal while passing the order. To sum up the nature of contentions raised and adverted to by the Tribunal, it is worthwhile to make a reference to paragraphs 13, 14 and 15 of the order passed by the Tribunal which are extracted below:-

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O.P.(CAT)Nos.141 & 142 of 2016

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“13. Unlike in the decision in Arbind's case (supra) cited by the learned counsel for the applicants, the respondents herein did not require the applicants to stay at Guwahati or Calcutta, but they (applicants) were only directed to report to those offices for the purpose of drawing and disbursing the amount. Rule 2(g) of the Receipt and Payment Rules define “Check Drawing DDO” to mean a Drawing and Disbursing Officer functioning under a Ministry or Department who is authorized to withdraw money for specified types of payments against an assignment account opened in his favour in a specified branch of an accredited bank. In the CBI, the DDO is usually in the rank of Dy.SP or above. It is that officer who has to draw and disburse the amount. Unless the applicants are on the pay roll of that office, it would be impractical for the DDO to draw the money and disburse it to the credit of the bank account of the applicants. Rule 11 (4) shows that No withdrawal shall be permitted on a claim for the first of any series of payment of pay and allowances to a Government servant (other than a person newly appointed to Government service) prepared by a DDO unless the claim is supported by a copy of the Last Pay Certificate (in Form GAR 2) issued by the DDO of the previous office in which the Government servant had served. As stated earlier it is a case where the order of suspension was issued nearly three months after the order

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O.P.(CAT)Nos.141 & 142 of 2016

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of transfer. The applicants were to report for duty at the transferred station pursuant to the order of transfer. The disbursement of subsistence allowance arose only after the order of suspension. Here the applicants seek arrears of pay and allowances also. Of course, that would be subject to regularization of the period of absence (not treating it as unauthorised absence). It is pointed out by the learned counsel for the respondents that Rule 12 makes the DDO responsible for the money withdrawn. Rule 12(3) says that a Government Officer supplied with funds for expenditure shall be responsible for such funds until an account of them has been rendered to the satisfaction of the Accounts Officer concerned. He shall also be responsible for seeing that payments are made to persons entitled to receive them. Therefore, unless a person reports to duty at the transferred station, it will not be possible for the DDO to credit the amount to the account of such an officer.

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Rule 66 (of the aforesaid Rules) says that separate bills are to be presented for pay and allowances (including for joining time, if any) or leave salary due for part of a month and such bills are to be paid before the end of the month when a Government servant is transferred to another account circle; or within the same account circle, involving change of DDO on account of transfer between or within Civil Ministries and Departments. Therefore, the contention raised by the

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O.P.(CAT)Nos.141 & 142 of 2016

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applicants that there is no necessity for the applicants to report to the transferred station cannot be countenanced for a moment.

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In this context, the learned counsel for the respondents would invite our attention to the decision rendered by the Hon'ble Supreme Court in S.C.Saxena Vs. Union of India and others (2006) 9 SCC 583 where it was held that the Government servant cannot disobey transfer order by not reporting at the place of posting and then to go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be is personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed, it was further held. The respondents had intimated the applicants of the necessity to report to the transferred station to disburse the subsistence allowance and arrears of pay and allowance, if any, but still the applicants were obstinate in refusing to report for duty on a fallacious premise that once they are placed under suspension there is no necessity of reporting to the particular unit for getting disbursement of the subsistence allowance.”

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10. The Tribunal has disposed of the matters, holding that

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the applicants had definitely to report on duty at the transferred units, for the purpose of getting their names entered in the

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O.P.(CAT)Nos.141 & 142 of 2016

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respective pay rolls of those units, so as to get disbursement of their subsistence allowance, however adding that it would certainly be credited to the respective accounts of the applicants, provided they satisfy the first condition mentioned above.

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No law to the effect that the payment of subsistence

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allowance to a delinquent employee, who had not reported for duty at the transferred place and is being proceeded against also for the misconduct, would depend upon his joining duty, so as to make him eligible for getting subsistence allowance, is brought to our notice by the learned Standing Counsel for the respondents. A suspended employee can join duty, only if the suspension revoked and he is reinstated in service. At the same time, it has

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to be noted that the transfer was ordered way back on 13.4.2012, which, though was subjected to challenge, did not turn to be fruitful and the matter has become final. There is a gap of nearly 'three months' between the date of transfer and the date of suspension. If the petitioners have not joined duty without valid reason, it will definitely amount to 'misconduct' and

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O.P.(CAT)Nos.141 & 142 of 2016

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the respondents cannot be blamed for proceeding against such misconduct as well. This is more so, since the petitioners are senior officers of a 'Disciplined Force', who are supposed to be a model to the other officers down the line. This Court does not intend to express anything with regard to the merits of these cases at this stage, since the enquiry is going on in respect of the misconducts stated as committed.

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Yet another aspect to be noted is that, various orders came to be passed by the Tribunal; particularly as borne by Annexure.A1 order in O.A.No.340/2012. It seems that the Tribunal has tried to mitigate the instance of misconduct with regard to non-joining duty at the transferred place. It was accordingly, that a chance was given to join duty and submit application for leave for the interregnum (in turn, directing the respondents not to reject the same and consider the same sympathetically). The Tribunal has also observed and ordered as to how the said period shall be reckoned; specifically observing that it shall not be as 'unauthorized absence'. This according to

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O.P.(CAT)Nos.141 & 142 of 2016

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us, is some concession given to the petitioners; taking note of the particular facts and circumstances; to enable them to join duty and proceed in accordance with law. But in so far as a submission is made across the Bar by the learned Senior Counsel appearing for the petitioners, that the petitioners are not guilty and are not desirous of having any concession and are ready to face the consequences including the charge levelled against them for the 'unauthorised absence', which is being enquired into as aforesaid; this Court makes it clear that all such concessions extended by the Tribunal will stand forfeited and it is for the respondent/Department to proceed with all the misconducts in accordance with law and take the proceedings to a logical conclusion.

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The remaining question is as to how the 'subsistence allowance' is to be caused to be disbursed to the petitioners. The only contention of the respondents as projected in their pleadings and as reckoned by the Tribunal, is that the petitioners having already been transferred out from Kerala and relieved from the

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O.P.(CAT)Nos.141 & 142 of 2016

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concerned posts; but having not joined in the Units at Calcutta/Guwahatti, it is essential to bring them in the pay rolls of the respective Head Quarters in Calcutta/Guwahatti. It is also stated that the respondent/Department does not have any objection in disbursing the 'subsistence allowance' in accordance with law, subject to the above requirement, which in turn has been accepted by the Tribunal. But in view of the discussions made herein before, in so far as the petitioners are still continuing in suspension and are facing enquiry, they cannot be compelled to join duty, so as to facilitate disbursement of 'subsistence allowance'. It is quite possible that the petitioners can be deemed as employees having already come to the pay rolls of the respective Head Quarters in Calcutta/Guwahatti. We declare it accordingly.

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In the above circumstances, the concerned authorities-

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drawing officers of the Head Quarters at Calcutta/Guwahati shall draw the 'subsistence allowance' payable to the petitioners under suspension, and disburse the same to the petitioners by sending

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O.P.(CAT)Nos.141 & 142 of 2016

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a 'DD' or 'Bankers Cheque' or by such other mode in the name of the petitioners by registered post. This shall be done at the earliest, at any rate within 'one month' from the date of receipt of a copy of this verdict. The eligibility to obtain 'salary for three months' as stated by the petitioners, is a disputed matter, as they have not joined duty at the transferred place and as such, no order is being passed in this regard. It is made clear that the respondents are at liberty to proceed with the enquiry in respect

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of the concerned misconducts in accordance with law, which shall

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be finalised at the earliest. All other issues are left open.

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Both the Original Petitions are disposed of as above.

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Sd/-

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P.R.RAMACHANDRA MENON, JUDGE

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Sd/- ANIL K.NARENDRAN, JUDGE

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skj

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True copy

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P.A to Judge

S.Unnikrishnan Nair v. Union of India

Case brief

What is this about?

What did the court decide?

S.Unnikrishnan Nair v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

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