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PETITIONER: P.L. SHAH

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT18/01/1989

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) OJHA, N.D. (J)

CITATION:  1989 AIR  985            1989 SCR  (1) 224  1989 SCC  (1) 546        JT 1989 (1)    98  1989 SCALE  (1)81

ACT:     Central  Administrative  Tribunals  Act,  1985:  Section 21(2)-Subsistence    allowance--Reduction    of--Application seeking restoration moved after five  years--Maintainability of--Period  of  limitation-Computation  of--Held,  cause  of action  arises  every  month in  which  reduced  subsistence allowance is paid.     Civil  Services:  Suspension order--Nature  and  purpose of-Subsistence  allowance--Sufficiency  of--Need  to  review from time to time.

HEADNOTE:     Sub-section (2) of s. 21 of the Administrative Tribunals Act, 1985 empowers the Tribunal not to entertain an applica- tion  the  grievance in respect of which had  arisen  beyond three  years  immediately preceding the date  on  which  the jurisdiction,  powers and authority of the  Tribunal  became exercisable under the Act.     The  appellant, an Upper Division Clerk,  was  suspended from service, in July 1975 pending on account of the  insti- tution  of  criminal proceedings against him.  By  an  order dated August 4, 1975 he was sanctioned subsistence allowance at  the rate of 50 per cent of his salary last drawn.  By  a further  order dated May 6, 1982 the  subsistence  allowance was  reduced to 25 per cent of the salary he was drawing  on the  date  of  suspension. He moved a  petition  before  the Tribunal in the year 1988 for a direction to the  Government to restore the original order of August 4, 1975. That  peti- tion was dismissed by the Tribunal solely on the ground that the  order reducing the allowance having been passed on  May 6,  1982, it could not entertain the application  made  more than  five  years thereafter, apparently on  the  ground  of limitation set out in s. 21(2) of the Act.     In this appeal by special leave it was contended for the appellant that the Government had failed to review the order of  May 6, 1982 even though a long period of five years  had elapsed  after the reduction of the  subsistence  allowance, that the delay in conclusion of the criminal proceedings, as a consequence of which he had been kept under suspension, 225 was not due to him and in the circumstances it was not  just

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and appropriate that he should be paid a subsistence  allow- ance at a reduced rate for an unreasonably long period. Allowing the appeal,     HELD:  1.  The Tribunal was not right in  rejecting  the application. [229F]     2.  The cause of action in respect of a  prayer  seeking enhancement  of subsistence allowance arises every month  in which the said allowance at the reduced rate is paid. There- fore,  in the instant case, though no relief could be  given to  the appellant in respect of the period which was  beyond three years from the date on which the Tribunal commenced to exercise its powers under the Act, it was quite open to  the Tribunal  to consider whether it was proper for the  Govern- ment  to continue to give effect to the order dated  May  6, 1982  from any subsequent date, and if the Tribunal came  to the  conclusion that the said order was required to  be  re- vised it could pass an appropriate order notwithstanding the fact  that a period of five years had elapsed from the  date on  which the order reducing the subsistence  allowance  was passed. While doing so it was open to the Tribunal to fix  a date  within the period of the said three years  from  which the  appellant should be paid subsistence allowance  at  the revised  rate having due regard to the date of the  applica- tion. [229C-E]     3.1.  The  very nomenclature of the allowance  makes  it clear  that  the amount paid to a Government  servant  under suspension should be sufficient for bare subsistence in this world  in  which the prices of the necessaries of  life  are increasing every day on account of the conditions of  infla- tion  obtaining in the country. More so, when  a  Government servant  cannot engage himself in any other activity  during the  period of suspension. The amount of subsistence  allow- ance  payable  to the Government servant  concerned  should, therefore, be reviewed from time to time where the  proceed- ings  drag on for a long time, even though there may  be  no express rule insisting on such review. [228F-G]     3.2.  In doing so, the authority concerned no doubt  has to  take into account whether the Government servant  is  in any  way responsible for the undue delay in the disposal  of the  proceedings  initiated against him. If  the  Government servant  is not responsible for such delay or even if he  is responsible  for such delay to some extent but is  not  pri- marily  responsible  for  it, it is for  the  Government  to consider whether the 226 order  of  suspension  should be continued  or  whether  the subsistence  allowance should be varied to his advantage  or not. [228G-H; 229A]     4.  The case is remanded to the Tribunal to  dispose  of the application made by the appellant on merits. [229G]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 38 of 1989.     From  the  Judgment and order dated 15.3.  1988  of  the Central Administrative Tribunal, Ahmedabad in M.A. No. 49 of 1988. P.H. Parekh and Shishir Sharma for the Appellant.     B. Dutta, Additional Solicitor General, Ms. Indu  Malho- tra and C.V. Subba Rao for the Respondents. The Judgment of the Court was delivered by     VENKATARAMIAH, J. The appellant was working as an  Upper Division Clerk in the year 1975. He was placed under suspen-

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sion by an order dated 25.7.1975 as a result of the institu- tion of a criminal prosecution against him and he  continues to  remain  under suspension till today. By an  order  dated 4.9.  1975  he was sanctioned subsistence allowance  at  the rate  of 50 per cent of his salary last drawn. By a  further order made on 6.6.1982 the subsistence allowance was reduced to  25 per cent of the salary he was drawing on the date  of suspension. The increments he would have earned from time to time  and  the periodical revisions of pay-scales  were  not taken  into  consideration in  determining  the  subsistence allowance.     The charge-sheet was filed in the criminal case  against the  appellant  in 1976 and the case was  committed  to  the sessions, but the committal proceedings were quashed by  the High Court in 1978. Then the proceedings again began  before the Metropolitan Magistrate in 1979. The case, however,  has not yet come to an end.     Aggrieved by the denial of the salary and allowances due to him for a long time on account of the order of suspension and in particular the order fixing the subsistence allowance at  25  per cent of the salary which he was drawing  at  the time of suspension by the Order dated 6.5. 1982, the  appel- lant approached in the year 1988 the Central  Administrative Tribunal (Ahmedabad Bench) for a direction to be 227 issued to the Government to restore the original Order dated 4.8. 1975 by which the subsistence allowance was fixed at 50 per  cent of his salary. That petition was dismissed by  the Tribunal by its order dated 15.3.1988 on the ground that the appellant  had approached the Tribunal more than five  years after  the date on which the Order dated 6.5. 1982 had  been passed  apparently  on the ground of limitation set  out  in sub-section  (2) of section 21 of the Administrative  Tribu- nals  Act,  1985  (hereinafter referred to  as  ’the  Act’). Aggrieved by the order of the Tribunal, the appellant  filed this appeal.     The question for consideration in this appeal by special leave is whether in a case of this nature, the Tribunal  was right in holding that the application before it, was  barred by time. Sub-section (1) of section 21 of the Act, no doubt, says  that  a Tribunal shall not admit an application  in  a case where a final order such as is mentioned in clause  (a) of sub-section (2) of section 20 has been made in connection with  the grievance unless the application is  made,  within one  year from the date on which such final order  has  been made,  and in a case where an appeal or representation  such as  is mentioned in clause (b) of subsection (2) of  section 20  has  been made and a period of six  months  had  expired thereafter without such final order having been made, within one  year from the date of expiry of the said period of  six months.  Sub-section  (2) of section 21,  however,  provides that  notwithstanding anything contained in sub-section  (1) of  section  21 where the grievance in respect of  which  an application  is made had arisen by reason of any order  made at  any  time during the period of three  years  immediately preceding  the  date on which the jurisdiction,  powers  and authority  of the Tribunal become exercisable under the  Act in respect of the matter to which such order related, and no proceedings  for  the redressal of such grievance  had  been commenced  before the said date before any High  Court,  the application  shall be entertained by the Tribunal if  it  is made within the period referred to in clause (a), or, as the case  may  be,  clause (b) of sub-section (1)  or  within  a period  of six months from the said date,  whichever  period expires later. Sub-section (3) of section 21 further confers

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power  on the Tribunal to condone the delay in certain  cir- cumstances  if the applicant satisfies the Tribunal that  he had  sufficient cause for not making the application  within such period.     In the present case the main grievance of the  appellant was not that the Order dated 6.5.1982 by which the  subsist- ence allowance payable to him was reduced to 25 per cent was bad at the commencement although there were some allegations to that effect but it was one relating to the failure of the authority  or  the  Government to  review  the  Order  dated 6.5.1982 even though a long period of 5 years had elapsed 228 after  the reduction of the subsistence allowance. His  con- tention was that the delay in the conclusion of the criminal proceedings as a consequence of which he had been kept under suspension  was not due to him and in the  circumstances  it was not just and proper that he should be paid a subsistence allowance at a reduced rate for an unreasonably long period. In support of his case the appellant relied upon a  decision dated  23.6.1987 of the very bench of the Tribunal  in  Shri Bhupendra  Mahashuklal Mehtap v. The Union of India &  Ors., in  T.A. No. 223 of 1986 (S.C.A. No. 3509 of 1922) in  which Fundamental  Rule  53  which authorised  the  Government  to review  an order regarding subsistence allowance  arose  for consideration.  In the said case the Ahmedabad Bench of  the Tribunal quashed the Order dated 6.5.1982 passed against the applicant  in that case by which the  subsistence  allowance payable to the said applicant had been reduced.     An order of suspension is not an order imposing  punish- ment  on  a person found to be guilty. It is an  order  made against  him  before  he is found guilty  to  ensure  smooth disposal  of  the proceedings initiated  against  him.  Such proceedings should be completed expeditiously in the  public interest and also in the interest of the Government  servant concerned. The subsistence allowance is paid by the  Govern- ment so that the Government servant against whom an order of suspension  is  passed  on account of the  pendency  of  any disciplinary  proceeding  or  a  criminal  case   instituted against him could maintain himself and his dependants  until the departmental proceeding or the criminal case as the case may  be  comes to an end and appropriate orders  are  passed against  the Government servant by the Government  regarding his  right  to continue in service etc. depending  upon  the final outcome of the proceedings instituted against him. The very  nomenclature of the allowance makes it clear that  the amount  paid to such a Government servant should  be  suffi- cient for bare subsistence in this world in which the prices of  the  necessaries  of life are increasing  every  day  on account  of  the conditions of inflation  obtaining  in  the country. It is luther to be noted that a Government  servant cannot  engage  himself  in any other  activity  during  the period  of suspension. The amount of  subsistence  allowance payable  to the Government servant concerned should,  there- fore,  be reviewed from time to time where  the  proceedings drag on for a long time, even though there may be no express rule  insisting  On such review. In doing so  the  authority concerned  no  doubt has to take into  account  whether  the Government  servant is in any way responsible for the  undue delay  in the disposal of the proceedings initiated  against him.  If the Government servant is not responsible for  such delay  or even if he is responsible for such delay  to  some extent  but is not primarily responsible for it, it  is  for the Government to recon- 229 sider whether the order of suspension should be continued or

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whether  the subsistence allowance should be varied  to  his advantage or not. The decision on the said question no doubt depends  upon several factors relevant to the case.  In  the instant  case the appellant was suspended in the year  1975. Now  nearly 13 years have elapsed from the date  of  suspen- sion.  He was paid subsistence allowance at the rate  of  50 per cent of the salary last drawn by him from 1975 and  1982 and  from  1982 he is being paid 25 per cent of  the  salary last  drawn by him. It is not clear from the  record  before us,  since  the application made by the applicant  was  dis- missed by the Tribunal at the preliminary stage, whether the appellant  was responsible for the inordinate delay  in  the disposal of the case instituted against him. In the  circum- stances  of the case we are of the view that even though  no relief  could  be given to the appellant in respect  of  the period  which was beyond three years from the date on  which the Tribunal commenced to exercise its powers under the Act, it was quite open to the Tribunal to consider whether it was proper for the Government to continue to give effect to  the Order  dated  6.5.1982 from any subsequent date and  if  the Tribunal  came  to  the  conclusion  that  the  Order  dated 6.5.1982 was required to be revised it could pass an  appro- priate order notwithstanding the fact that a period of  five years had elapsed from the date on which the order  reducing the subsistence allowance was passed. While doing so it  was open to the Tribunal to fix a date within the period of  the said three years from which the appellant should be paid the subsistence allowance at the revised rate of course,  having due  regard  to  the date of the application  also.  In  the alternative,  the  Tribunal could have asked  the  authority concerned to review the order.     In  the  circumstances, the Tribunal was  not  right  in rejecting  the  application solely on the  ground  that  the order reducing the subsistence allowance having been  passed on 6.5. 1982 the Tribunal could not entertain an application for directing the Government to revise the Order dated  6.5. 1982  even in respect of any period within three years  from the  date  on which the Tribunal commenced to  exercise  its powers having due regard to the date of the application also since  we feel that the cause of action in respect  of  such prayer arises every month in which the subsistence allowance at  the  reduced rate is paid. We therefore  set  aside  the order  of the Tribunal and remand the case to it to  dispose of the application made by the appellant on merits. We  make an order accordingly.         There is no order as to costs. P.S.S.                                Appeal allowed. 230