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TMI Blog2012 (5) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed from service on 8.4.2005, in terms of Rule 19(1) of the CCA Rules. This was done after following the procedure prescribed in the first proviso occurring in that Rule. This is clear from the order by which he was dismissed on the ground of conduct that had led to his conviction on a criminal charge. That conviction was confirmed by the Court of Session. 3.In exercise of jurisdiction under Section 397 Cr.PC, this Court allowed the revision of the employee and acquitted him on 8.8.2007. Acting on that, the establishment, through the competent authority, passed an order on 7.10.2008, Annexure A7 before the Tribunal. By that, the competent authority set aside the dismissal and directed a further enquiry and directed that the employee shall be deemed to have been placed under suspension with effect from 8.4.2005, the date of the afore- noted dismissal order under Rule 19(1) of the CCA Rules. 4.The employee challenged the aforesaid order Annexure A7 before CAT contending that he could not have been treated as one who is deemed to have been placed under suspension with effect from 8.4.2005 in terms of Section 10(4) of the CCA Rules. He also pleaded that the rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Joint Commissioner of the Cochin Commissionerate of Central Excise and Customs? (ii) Could the employee be treated as one liable to be deemed to have been under suspension with effect from 8.4.2005? If not, what if any is the legal effect of the direction at Sl.No.(iii) in Annexure A7 dated 7.10.2008? (iii) Is the finding of the Tribunal on the issue of subsistence allowance justified on facts and in law? 11.At the outset, we may deal with the third among the issues we have noted above. As of now, the fact of the matter remains that the issue appears to be clearly covered by the decision of the Apex Court in Union of India v. R.K.Chopra (Civil Appeal No.1096/10) wherein the ratio decidendi emerging appears to be that the differential in terms of the escalated pay scales during the currency of the order of suspension would not have any impact on the subsistence allowance to be paid, however that, such issue would be dealt with by the competent authority in the establishment at the closure of proceedings terminating the order of suspension. It may, in some cases, depend upon the final outcome of the disciplinary proceedings also. In our view, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore us. 14.Now, the crucial issue is the effect of clause (iii) of the impugned Annexure A7. It directs the continuance of the employee to be under deemed suspension with effect from 8.4.2005 and that he shall continue under suspension until further orders. As rightly pointed out by the learned senior counsel on behalf of the employee, sub rule (4) of Rule 10 authorises the concept of deemed suspension being employed only in cases where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the Disciplinary Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed. When a superior criminal court in exercise of revisional appellate power sets aside an order of conviction or sentence, it does not, in any manner, set side or declare or render void any decision of penalty or dismissal, removal or compulsory retirement. The order passed under Rule 19(1), at the time of its i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of suspension along with the setting aside of the order of dismissal from service. This could have been done under Section 10(1) of the Rules. Essentially, all that was wanted, was to place the employee under suspension pending the enquiry which was now offing. The 4th paragraph among the preamble to Annexure A7 clearly expresses the decision of the competent authority that a further enquiry should be held under the provisions of the CCS Rules against the employee. We, therefore, would treat the terms of clause (iii) of Annexure A7 as only a surplusage in as much as the said order of suspension could be treated as one under Section 10 (1) of the CCS Rules, without in any manner impairing the contents of clauses (i) and (ii) of that order and also without taking away the benefit which an employee under suspension would enjoy under Rule 10(1). The order of suspension under Rule 10(1) cannot be deemed to be effective from a previous date. It cannot be retroactive. Every order of suspension under Rule 10(1) would be subjected to review by the competent authority every 90 days. Otherwise, the order of suspension will get automatically invalidated. If a retroactive order of suspension ..... X X X X Extracts X X X X X X X X Extracts X X X X
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