• Increments during suspension

Dear Sir,
I,Th.Dhananjoy Singh convicted for murder case on 27.12.2014 and suspended tilled 26.07.2016.
Now, I have been already revoked and joined the service.
Office did not made me my increment during my suspended period, say two years.
My humble request is that kindly suggest me for getting my due increments for the last two years.

with regards,

Th.Dhananjoy Singh
Imphal, Manipur
8794296659
Asked 3 months ago in Criminal Law from Imphal, Manipur
Religion: Other
suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. Emphasis is laid down on the words master is not bound to pay on behalf of the State and it is said that if the master is not bound to pay during the suspension how can the servant claim that he is entitled t earn his increment during the period of suspension. 

2)Sc in case of  Balvantrai Ratilal, AIR 1968 SC 800 held  that even if there is no express term of suspension in the contract of employment, the employer has power to suspend his employee and it amounts to the issuing of an order to the employee which, because such contract is subsisting, the employee must obey. This shows that the contract of service subsists during the period of suspension and if the contract subsists, even though there is suspension, the employee remains in service and if he remains in service, he is entitled to all benefits of service even though he is not expected to work during the period of suspension.

3) As the contract of the service of the petitioner continued even though he was under suspension, the increment should be allowed ordinarily to be drawn 
Ajay Sethi
Advocate, Mumbai
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Central Administrative Tribunal - Delhi
Kartar Singh vs Director on 30 November, 2011
      

  

  

 Central Administrative Tribunal
Principal Bench

OA NO. 434/2011

New Delhi this the 30th  day of November, 2011
Honble Mr.G.George Paracken, Member(J)
Honble Dr. A.K.Mishra, Member(A)

Kartar Singh
S/o Late Sh. Balbir Singh,
Department of Employment,
Govt. of Delhi,
R/o House No.117,
Village & P.O. Gheora,
Delhi.
          	  .               Applicant
(By Advocate: Ms. Soumeyashree Mishra for Sh. P.C.Mishra)

Versus

1.	Director, Employment, 
Govt. of NCT of Delhi
	2- Battery Lane, Delhi.

2.	Chief Secretary, 
Govt. of NCT of Delhi
	5th Level, Delhi Secretariat,
I.P.Estate, New Delhi.
            ..         Respondents
(By Advocate: Ms. Alka Sharma)


O R D E R (ORAL)    
Honble Shri George Paracken:

The applicants grievance in this case is that he has not been allowed increments in his pay during the period of suspension and thereby he was denied the enhanced subsistence allowance.

2.	The brief facts necessary for disposal of this case is are delineated here. Applicant was working as a Peon. He was placed under suspension on 19.8.1997 in contemplation of departmental proceedings after FIR No. 34/97 was registered against him. He was later on reinstated in service on 4.2.1998 and chargesheeted on 3.5.1999. The enquiry officer has submitted his report on 19.11.2000 but no further proceedings have been taken in the matter by the Disciplinary authority. However, he was later arrested in connection with the aforesaid FIR on 15.11.2002, he was again placed under deemed suspension from the same date, vide order dated 28.11.2002. The aforesaid period of suspension was also revoked and he was reinstated in service w.e.f. 15.2.2008. Thereafter, he made a representation to the respondents to release his annual increments which fell due during the aforesaid suspension periods, but the respondents did not respond to it. He has, therefore, approached this Tribunal earlier, vide OA No.2059/2009 and vide order dated 7.3.2010, it was disposed of the said OA with the direction to the respondents to treat the OA itself as a representation and pass a speaking order within two months.

3.	In compliance of the aforesaid directions, the respondents have passed the impugned order dated 9.8.2010, according to which, they have received advice from their Finance Department that unless the said suspension is treated as duty for all purposes by the Disciplinary/Appointing Authority, the said period will not be counted for increment purpose. They have also submitted that after the revocation of his suspension w.e.f. 4.2.1998, he was granted all the regular increments regularly till his second suspension on 15.11.2002 and with regard to the said suspension, they have submitted that on the recommendation of the 6th CPC, his pay was fixed after taking his basic pay as Rs.3475/- initially to the Revised Pay Band -1S Rs.4440-7440 plus Grade pay Rs.1400 to Rs.6470/- plus Grade pay of Rs.1400 vide letter dated 25.9.2008. Thereafter, his pay was fixed in PB-1 Rs.5200-20,200 plus Grade Pay of Rs.1800 to Rs.6470/- plus Grade Pay Rs.1800/- and since then he was getting regular increments in the new pay scale. Accordingly, the date of his increments from 1.7.2009 his basic pay has been fixed at Rs.6720/- plus Grade Pay Rs.1800/-. They have further submitted that in terms of FR 24 read with FR 26, 53 & 54, the annual increments can only be granted after the conclusion of the disciplinary and criminal proceedings and after a decision has been taken with regard to treatment of suspension period by the competent authority. As regards the disciplinary proceedings against the applicant is concerned, they have submitted that a common disciplinary proceedings were initiated against all the accused persons including the applicant and the enquiry officer has already submitted the report but the same is yet to be accepted by the Appellate Authority as in similar cases, the disciplinary authority has taken a decision to await for the verdict of the trial court.

4.	Applicants counsel has relied upon the judgment of the Honble High Court in Balwant Rai Ratilal Patel vs. State of Maharashtra, AIR 1968 SC 800, wherein it has been held as under:

On general principles therefore the Government, like any other employer, would have a right to suspend a public Servant in one or two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. The Government may also proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. The question as to what amount should be paid to the public servant during the period of interim suspension or suspension as a punishment will depend upon the provisions of the statute or statutory rules made in that connection.

5.	He has also relied upon the judgment of Allahabad High Court in Mritunjai Singh Vs. Stae of U.P. and others, AIR 1971 Allahabad 214 (V.58 C 47), wherein the judgment of Apex Court in Balwant Rai Ratilal Patel (supra) was considered. The High Court considered the question whether suspended employee is eligible to earn increment during suspension and held as under:

14. We now come to the last point, namely, whether the petitioner should be allowed to earn his increment due during the suspension. In that connection again my attention was drawn to the same authority of the Supreme Court which has already been referred to as the first authority, namely, that relating to the Management Hotel Imperial. It has been laid down therein that the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. Emphasis is laid down on the words master is not bound to pay on behalf of the State and it is said that if the master is not bound to pay during the suspension how can the servant claim that he is entitled t earn his increment during the period of suspension. The matter, however, has been clarified in the later authority of Balvantrai Ratilal, AIR 1968 SC 800 where it is indicated that even if there is no express term of suspension in the contract of employment, the employer has power to suspend his employee and it amounts to the issuing of an order to the employee which, because such contract is subsisting, the employee must obey. This shows that the contract of service subsists during the period of suspension and if the contract subsists, even though there is suspension, the employee remains in service and if he remains in service, he is entitled to all benefits of service even though he is not expected to work during the period of suspension. Rule 24 of the Financial Hand Book Volume II issued under the authority of the Government of the Uttar Pradesh in Chapter IV Part II provides that an increment shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from a government servant by the Government or by any authority to whom the Government may delegate this power under rule 6, if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments. As the contract of the service of the petitioner continued even though he was under suspension, the increment should be allowed ordinarily to be drawn unless it is withheld in the manner provided under Rule 25. As it is not the case of the opposite parties that it has been so withheld, the petitioner is entitled to the increments during the pendency of his suspension and the subsistence allowance shall be calculated accordingly, it being 1/3rd of the pay plus dearness allowance.

6.	The applicant further relied upon an Order of the Hyderabad Bench of this Tribunal in U.Gangaraju vs. D.R.M. SCR, Vijaywada & ors., 1992 (3) AISLJ CAT 235. In the aforesaid case, the Tribunal has relied upon judgment of Balwant Rai (supra) and held that the annual increments during the suspension period has to be allowed for the purpose of calculating the payment of subsistence allowance. The very same bench of this Tribunal has also passed an order in OA-1056/2011 Saranjit Singh vs. Director, Employment directing the respondents to grant increments to the applicant concerned during the period of suspension. The relevant part of the said order reads as under:

4.	We have heard the learned counsel for the parties. We agree with the counsel for applicant that withholding of increment is a minor penalty and in the absence of such an order by the competent authority, the increments which are payable to an employee on year to year basis cannot be withheld. We do not find any support for the argument of the respondents that the releasing of increments under FR 24 is subject to the provisions contained in FRs 26, 53 & 54 as this Tribunal has already taken a view in this matter in OA-1056/2008 (supra) and the said view has already been upheld by the High Court in its judgment dated 15.2.2010 in WP (C) No.9042/2009 (supra). We are, therefore, of the considered view that applicant is entitled to the reliefs sought by him. Accordingly, we allow this OA and direct the respondents to release all the increments which have fallen due during the period of his suspension as provided under FR 54 for the purpose of computing his subsistence allowance. The respondents shall work out the arrears thus payable to the applicant in terms of the aforesaid directions and the same shall be paid to him within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.

7.	We have heard the learned counsel for the parties and considered the rules/law regarding suspension and the subsistence allowance allowed to be paid to the suspected government employee.

8.	As laid down by a Coordinate Bench of this Tribunal in OA-1056/2008  P.C.Misra vs. Union of India & Ors. decided on 7.11.2008 wherein it has been held that there was no reason as to why the increment due to the applicant therein even during the period of suspension was not released. The applicant has also produced a copy of the judgment of the Honble High Court of Delhi in WP(C) No.9042/2009 decided on 15.2.2010 upholding the aforesaid order of this Tribunal. Relevant part of the said judgment reads as under:

In the circumstances and taking into consideration all the facts and circumstances, this court does not find any illegality or irregularity in the order of the Tribunal which is impugned before us by the petitioner. There are no grounds to interfere with the order of the Tribunal in the facts and circumstances in exercise of jurisdiction under article 226 of Constitution of India. The writ petition in the facts and circumstances is, therefore, without merit and it is dismissed. Parties are however, left to bear their own costs.

9.	In view of the above position, this OA is allowed. The respondents are directed to release the increments as due to the applicant during the suspension period and the arrears of subsistence allowance be recalculated and arrears be paid to him within a period of two months from the date of receipt of a copy of this order. This being the second Original Application filed by the applicant seeking the same relief, he is entitled to cost of Rs.2000/- (Rupees two thousand only).

( Dr. A.K. Mishra )				( George Paracken )
     Member (A) 					     Member (J)

sd
Ajay Sethi
Advocate, Mumbai
23237 Answers
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If there is no departmental proceedings pending against you and the reinstatement in service is done on the basis of a Court Order ,as appears to be in your case then your service is deemed to have been regularized and you are also eligible for increment for the period of suspension.  Please therefore put in an application to your Deptt requesting for the same. 
2. In case your request is denied or unheeded you consult a lawyer of your area and seek corurt's direction in the matter. 
Sushil Jha
Advocate, Patna
161 Answers
1 Consultations
5.0 on 5.0
You apply to the department for the increments which have not been given, and if it does not accede to your demand then you may move the High Court to challenge its decision.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
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The question as to whether the petitioner was entitled to release of annual grade increment during suspension period need not detain us. No doubt in Kan Singh v. State of Rajasthan (supra), a Division Bench of this Court took the view that the contract of service continues even during suspension, and increment should be ordinarily allowed to be drawn unless it is withheld by a specific order; on appeal by the State, the Supreme Court in S.L.P. (C) No. 9256/1989 set aside the judgment.
The order of the Supreme Court, it would appear, does not set out reasons as to disentitlement of the delinquent employee to annual grade increments during the suspension period perhaps because the reason is too obvious. The entitlement to pay and allowances including annual grade increments during suspension period depends on outcome of the disciplinary proceeding, and as we shall presently see hereinafter, when we notice Rule 54 of the Rajas than Service Rules, where a delinquent employee is not fully exonerated, the rule enjoins upon the competent authority to take a decision regarding the proportion of pay and allowances to be paid to the delinquent employee and also the manner in which the period of suspension is to be treated. Indeed, depending on the outcome of the proceeding, if the employee is. dismissed or removed or compulsorily retired from service by way of punishment, pay and allowance except subsistence allowance ordinarily is not paid and the occasion for grant or release of annual grade increments for the suspension period may not arise. The reason being too obvious, the Supreme Court simply set aside the judgment of this Court observing that "having regard to the rules governing the matter" the respondent was not entitled to enhancement of subsistence allowance by taking into account the annual grade increments falling due during suspension period.

Hope the above information was useful.
T Kalaiselvan
Advocate, Vellore
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