Increment during suspension period
Amit shrivastava
(Querist) 27 October 2016
This query is : Resolved
Sir A case register against mr. X on 5.05.2012, department directed him to go to support the investigation on 18.05.2012. When he present before investigation agency on 24.05.2012, they arrested him and send to Judicial custody . Meanwhile investigation agency filed the charge sheet on 30.06.2012. after filing that charge sheet Court bailed out him on 23.08.2016 then he narrate the case before department and joined duties on 27.08.2012. On 31.08.2012 authorities suspended him w.e.f 24.05.2012 then issued charge sheet on 13.08.2013 which was stayed by court on 18.07.2014. Mr X revoked on nar 2015 on the pay sclae of 2012.
Qustion 1. whether retrospective suspension is admissible in law
Question 2. whether this case comes under contemplated suspension.
Question 3.whether holding increment by way of suspension is justified in the eyes of law after filing charge sheet without issueng order.
Question 4. is Aincrement is admissible to him.
please give guidance on this issue
Rajendra K Goyal
(Expert) 27 October 2016
How are you concerned with the query?
Is it a moot problem?
Amit shrivastava
(Querist) 27 October 2016
No, it is actual problem and this is the issue of my friend who appointed me as defense assistant.
Guest
(Expert) 27 October 2016
No guidance can be provided to a raw hand defence assistant in the case.
A question arises, if you are a defence assistant, you should have known the ruling position also. On what basis you can be expected to defend him, when you don't know even basics of suspension and increments?
Better read Pay Rules and the classification control & appeal rules applicable to the concerned department. Otherwise, you can be expected to ruin the inquiry case of your friend by trying to get tit bits of the knowledge through casual nature of your queries.
Amit shrivastava
(Querist) 27 October 2016
very surprise mr dingra sir, I know that I am discussing the rule but every rule is not final and also need to be recheck according to circumstances. your this kind of reply shows you did not have ans of my quary.
Sudhir Kumar, Advocate
(Expert) 27 October 2016
God save the accused who has go a defence asst who does not even know that z govt servant is deemed suspended from date of arrest if he stays in custody beyond 48 hours. His reporting for duty on 27.8.12, itself was illegal.
This not retrospective suspension.
If you do not know the rules better not spoil his career let him find a knowledgeable Def Asstt.
Sudhir Kumar, Advocate
(Expert) 27 October 2016
Surprisingly
You want advise on delicate matter but you have not even shared whether the accused is Central/state govt deptt/PSU/Autonomous body employee.
Guest
(Expert) 27 October 2016
Your surprise don't affect me in any way, as I am not at all convinced about your statement.
I understand well that your question is nothing except an academic query and you seek answer to solve that exercise question, not as defence assistant. Had you been defence assistant, based on my more than 36 years of experience in departmental inquiries, I could well have judged from the nature of your questions.
However, if there is even a slightest truth in your statement, please intimate what course of action has been adopted by the department of your friend after issue of charge sheet on 13.08.2013, what documents he received from the department and on what ground the stay was granted by the court.
Also place extract of the stay order of the court for my examination in your reply to my post.
Amit shrivastava
(Querist) 27 October 2016
Sudhir Sir and dhigra sir , I know 10(2) of CCSCCA Rule 1965, but the fact which I have submitted is true.
Sir, as you said what course of action department has taken after issuance of chargesheet. Department appointed Inquiry officer and presenting officer. the document they provide Imputation of charges, list of withness and relied upon documents. During inspection of record they failed to show originals on the basis of that charge sheet was framed or issued. then applicant approaches to court for original therefore court stayed considering the same is against principal of natural justice.
Sir, you said he joined duty on 27.08.2012 is illegal but it is in reality. he joined in compliance of direction 18.05.2012
Instead of questioning my ability kindly concentrate the issue because this kind of stupid action has been taken by the department.
yes in comparison of you both I have very few experience therefore I am here for guidance. once again said every thing is correct.
Kumar Doab
(Expert) 28 October 2016
You have posted:
---In your last post "he joined in compliance of direction 18.05.2012 "
Is this direction in writing?
---In your first post "department directed him to go to support the investigation on 18.05.2012"
Is it in writing?
Both are contradictory.
Prefer to sit in person and and spend quality time in person with a very able counsel specializing in service matters at your location.
There seems to many knots in the matter that need to be untied to understand the whole matter.
Amit shrivastava
(Querist) 28 October 2016
Yes kumar sir, i said please see those action taken by department is not as per law .Further the issue of direction. Mr X directed to suuport investigation on 18.05.2012 , due to judicial custody he cannot join duty . When he return after bail ,he know that he has been transfer to another office . He joined the duty with the fact on 27.08.2012. After then he suspended wef 25.05.2012 on 31.08.2012.
Sudhir sir ,I think now the better to understand the case .
Rajendra K Goyal
(Expert) 28 October 2016
He was arrested on 24.05.2012, department is justified to suspend from 25.05.2012.
Kumar Doab
(Expert) 28 October 2016
Prefer to sit in person and and spend quality time in person with a very able counsel specializing in service matters at your location.
There seems to many knots in the matter that need to be untied to understand the whole matter.
Guest
(Expert) 28 October 2016
Mr. Amit,
Extract of the stay order of the court is still wanting from your side for examination.
Amit shrivastava
(Querist) 28 October 2016
As desired the stay order is as under
the applicant submits that he was served a memorandum dated 13th August , 2013 which is based upon the documents but the same have not been supplied to the applicant in spite of being repeated requests made by him . he further submits that he also requested the IO for the providing the originalwhich are also decline.
Issue notice ----------------------------------------
the applicant prays fro inerim directions on the ground that in abasence of these documents , which are material, he cannot present his case before inquiry officer and it also amount denial of principle of natural justice which prejudice his right in the inquiry proceddings therefore he prayed that further proceedings may be stayed.
Considering the submission the applicant the respondent are restrained from proceedings further in the inquiry till the next date of hearing.
this is the stay order.
please provide some valuable guidance.
Amit shrivastava
(Querist) 28 October 2016
Goya sahab
your underline portion is for interim stay and same is continuing till now
Rajendra K Goyal
(Expert) 28 October 2016
Whether through orders to continue or otherwise?
Guest
(Expert) 28 October 2016
Mr. Amit Srivastava,
This is temporary stay. Charge Sheet still stands, not quashed, and departmental inquiry can be initiated as and when stay is vacated.
About your questions, with reference to your clarification, I can say that you may be knowing something partially about the disciplinary proceedings, but you seem to be totally blank about Rules on pay, increment and even regularisation of suspension under the provisions of FRSR. A defence assistant, must be aware about rules, procedures, rights and responsibilities of the accused official, otherwise, instead of getting any benefit the accused gets harmed much more.
When you say, "I know 10(2) of CCSCCA Rule 1965," according to my observation, you are aware of neither about Rule 10 fully, nor even generally about the provisions in FR&SR. Had you been aware of the rules and procedure even in general, you could not have asked any of the four of your questions.
However, in nutshell, suspension, being deemed suspension, was quite legal and until the suspension is treated as duty the suspension period cannot qualify for earning increment.
Kumar Doab
(Expert) 28 October 2016
Prefer to sit in person and and spend quality time in person with a very able counsel specializing in service matters at your location.
Sudhir Kumar, Advocate
(Expert) 29 October 2016
So far nothing on he part of the department is appearing illegal or stupid. Mr Dhingra and Mr Goyal have analysed well.
You obtained stay on the ground that the originals are not shown. Nothing new in case of parallel proceedings in court as well as departmental action on same papers. All the deptt has to do is to show it to the court that the original documents are deposited in court and get the stay vacated.
Sudhir Kumar, Advocate
(Expert) 29 October 2016
you are saying that
"you said he joined duty on 27.08.2012 is illegal but it is in reality. he joined in compliance of direction 18.05.2012"
you also said
"department directed him to go to support the investigation on 18.05.2012"
so what was the dcourt direction on 18.5.12 by way of which he could join.
did he ever challange suspension or you believe that release from bail itself was court direction to join.
Sudhir Kumar, Advocate
(Expert) 29 October 2016
"then he narrate the case before department and joined duties on 27.08.2012"
The question is that whether he reported in writing that he was arrested and released on bail or just gossiped?
Guest
(Expert) 29 October 2016
I wonder, if the department could not contest the issue of stay, as originals of documents are not supplied to the accused in a departmental inquiry case, rather inspection is got made. Only certified true copies are to be provided to the charged official, not originals.
Kumar Doab
(Expert) 29 October 2016
"During inspection of record they failed to show originals on the basis of that charge sheet was framed or issued."
So this issue would be taken care of in court.
Rajendra K Goyal
(Expert) 29 October 2016
Agree with the advice from expert P. S. DHINGRA.
Guest
(Expert) 29 October 2016
Thanks for agreeing with me.
Amit shrivastava
(Querist) 29 October 2016
Read the discussion , original of document is not available with agency or office . Joinng reprt is in writing . Dept is adamant to proceed on xerox copy. There is need to discuss with you but .....
Amit shrivastava
(Querist) 29 October 2016
Read the discussion , original of document is not available with agency or office . Joinng reprt is in writing . Dept is adamant to proceed on xerox copy. There is need to discuss with you but .....
Guest
(Expert) 29 October 2016
We have read, whatever you made us to read.
If originals not available with the agency the same must be available with the PP/District Counsel, who may be fighting the criminal case against the employee on behalf of the Government.
Sudhir Kumar, Advocate
(Expert) 29 October 2016
This is not the first case where accused is facing criminal case as well as departmental inquiry on same charge.
In such cases the originals are always sized by the police and deposited in court.
A novice Def Asstt may not understand this. You have already advised him to go to court and got him to spend a wad full of money and collect a few Kg of papers.
Let you client keep moving on this path and fight upto Supreme Court and spend his entire fortune on this and be left with no money and energy to fight departmental inquiry or criminal case on merits.
Sudhir Kumar, Advocate
(Expert) 29 October 2016
you said "Dept is adamant to proceed on xerox copy. "
Deptt has no choice
Sudhir Kumar, Advocate
(Expert) 29 October 2016
I can visualize from the facts given that :-
either
you are well aware that your client is guilty and will be shown door exist on completion or deptt inquiry. so you are prolonging the progress so that he can draw substantiate allowance for longer time.
you seem to be well aware that the subsistence allowance normally paid @50% and is general;y increased upto 75% after three months. But you seem to be ignorant that it can be reduced upto 25% if the delay is caused by the employee. In that case there will be another litigation from his side and another wad of currency departs from his hand.
or
you just do not know the inquiry procedure at all and depriving timely proving of innocence of the accused.
Kumar Doab
(Expert) 29 October 2016
What is the fate of criminal case?
Kumar Doab
(Expert) 29 October 2016
Expert Mr. Sudhir Kumar has stressed upon pertinent points.
Hope you shall take it positively.
Prefer to sit in person and and spend quality time in person with a very able counsel specializing in service matters at your location.
Kumar Doab
(Expert) 29 October 2016
I have sent few links to you.
You may pick up relevant points.
Kumar Doab
(Expert) 29 October 2016
You have mentioned in your profile as 'Student'.
It is good that you are putting efforts.
Hope you shall take it positively.
Prefer to sit in person and and spend quality time in person with a very able counsel specializing in service matters at your location.
You can benefit from counsel of Mr. Sushir Kumar, Mr.Rajendra K Goyal.
There are LCI experts from Jaipur e.g; Mr.J K. Aggarwal.
If you wish you may approach the experts and benefit from their counsel.
Amit shrivastava
(Querist) 29 October 2016
Dingra sir, department submitted before cat that original of the document is not available with agency or department . Kumar sir charges are framed in criminal case.
T. Kalaiselvan, Advocate
(Expert) 30 October 2016
In my opinion experts Mr. Sudhir Kumar and Mr. Kumar Doab have explained you the position of law in this regard properly, hope you may follow the advise of expert Mr. Kumar Doab to consult a specialized person dealing with service law on further follow ups.
Guest
(Expert) 30 October 2016
Mr. Amit Shrivastava,
You are unduly stretching the thread, when you don't know even the distinction and the basics of criminal prosecution and departmental inquiry proceedings and with which case the original documents should be available.
Not only that you don't even know, who can be a defence assistant in departmental inquiry, as a student can never be a defence assistant in an official departmental inquiry.
So, as a student, you have tried to befool the experts community by falsely stating that you are the defence assistant of the official in a departmental inquiry.
Be aware that experts are not here to impart tutorials to students, rather are making their best efforts to the really affected person with some real problem, not to solve academic questions of students.
If one or two experts feel pride in imparting tutorials they can feel free to do so at their pleasure, but not merely with feel good type of answers for the querists.
Best of luck!
Sudhir Kumar, Advocate
(Expert) 30 October 2016
AGreeing with Mr Dhingra I also believe that you have perhaps no problem. If you have a problem the please reply
1. What is criminal charge
2. What is departmental charge
3. Which is investigating agency
4. Have they confiscated the documents
5. Have they deposited the documents in court
6. How many cases can a defence asstt have
7. Who can be defence asstt
Sudhir Kumar, Advocate
(Expert) 30 October 2016
you said
"original of the document is not available with agency or department . Kumar sir charges are framed in criminal case. "
you are giving half truth.
You are hiding from this forum whether these documents have been submitted to the court as charge is framed.
Please do not take viva of experts.
Sudhir Kumar, Advocate
(Expert) 30 October 2016
please also clarify
either
you are well aware that your client is guilty and will be shown door exist on completion or deptt inquiry. so you are prolonging the progress so that he can draw substantiate allowance for longer time.
you seem to be well aware that the subsistence allowance normally paid @50% and is general;y increased upto 75% after three months. But you seem to be ignorant that it can be reduced upto 25% if the delay is caused by the employee. In that case there will be another litigation from his side and another wad of currency departs from his hand.
or
you just do not know the inquiry procedure at all and depriving timely proving of innocence of the accused.
Amit shrivastava
(Querist) 30 October 2016
First of all ,when i register in this club ,I was student of law .Now I have completed. I m not making fool any body because i know the value of your time. Further sudhir sir since this case is very innovative n you feel how it can be happen. I think still prominent lawyer feels i am streaching this issue. Cbi the agency who register case under PC act and filed charge sheet without PC act. Further if you feels it is fake then sorry to say u but i know value of your time And here for guidence not for fun .
Kumar Doab
(Expert) 30 October 2016
@ Amit Srivastava,
"Cbi the agency who register case under PC act and filed charge sheet without PC act. "
You may feel that the matter that you have posted is innovative.
Another link that you may go thru:
http://departmentalinquiry.com/Defence-Assistant.html
Kumar Doab
(Expert) 30 October 2016
Another link:
CHAPTER – 16
DEFENCE ASSISTANT
Page;111
https://iiserb.ac.in/admin/files/forms/Handbook__Officers_and_Disciplinary_Authorities.pdf
Sudhir Kumar, Advocate
(Expert) 30 October 2016
"I was student of law .Now I have completed."
You said you are defence asstt.
in that case
either
you have joined govt service
or
your client has been permitted by the deptt to bring lawyer as def asstt
please come clear with facts.
Sudhir Kumar, Advocate
(Expert) 30 October 2016
you have finally stated that
"Cbi the agency who register case under PC act and filed charge sheet without PC act"
What it the charge under PC Act:-
1. DA.
2. Bribery
3. Misuse of official position.
4. embezzlement
Sudhir Kumar, Advocate
(Expert) 30 October 2016
You are new law practitioner?
Many happy wishes for the success in career.
But also be enlightened that Defe Asstt of Deptt Inquiry is much more sophisticated job than practicing before criminal court.
1. There is no Passover.
2. There is no proxy counsel.
3. Seeking adjournment is not a routine.
4. Standard of evidence if not 100% and practically on so many issues the onus of proof is on accused (though on papers with the prosecution).
5. Presenting Officer is always well versed with rules and facts and mostly having cordial relations with the IO.
6. IO is employee of the prosecution.
7. Def Asstt has to be impressive enough so as to atleast appear having better knowledge that IO & PO (99% cases they have by viurtue of experience as IO/PO)
SO BETTER ADVISE THE ACCUSED TO FIND CAPABLE DEF ASSTT.
Kumar Doab
(Expert) 30 October 2016
Unwarranted Comments posted in this thread also:
"If one or two experts feel pride in imparting tutorials they can feel free to do so at their pleasure, but not merely with feel good type of answers for the querists."
Kumar Doab
(Expert) 30 October 2016
If one or two experts feel pride in writing comments by fellow experts as 'tutorials' they are doing it with their own illusions, and despite objections.
You may carefully go thru The link that I have sent you by PM.
However as maintained from beginning; 'Prefer to sit in person and and spend quality time in person with a very able counsel specializing in service matters at your location.'
Kumar Doab
(Expert) 30 October 2016
I too extend Many happy wishes for your success in career.
Guest
(Expert) 30 October 2016
Mr. Amit Shrivastava,
Artificiality of the case is revealed fully from your initial description, as you stated--
"Sir A case register against mr. X on 5.05.2012, department directed him to go to support the investigation on 18.05.2012. When he present before investigation agency on 24.05.2012, they arrested him and send to Judicial custody . Meanwhile investigation agency filed the charge sheet on 30.06.2012. after filing that charge sheet Court bailed out him on 23.08.2016 then he narrate the case before department and joined duties on 27.08.2012. On 31.08.2012 authorities suspended him w.e.f 24.05.2012 then issued charge sheet on 13.08.2013 which was stayed by court on 18.07.2014. Mr X revoked on Mar 2015 on the pay sclae of 2012."
where you could get stay order for departmental inquiry on 18.07.2013, even well before the issue of charge sheet on 13.08.2013. Then do you mean the departmental authorities kept sleeping and suspended on only 24.05.2012 instead on 12.05.2012 or the date of start of investigation by CBI on 18.05.2012 and the date of sending him to judicial custody?
On 31.08.2012?
Further, did you mean that he could join his duties on on 27.08.2012 four years earlier than his bail that too during the period of his detention in jail from 24.05.2012 to 23.08.2016, as the official was bailed out only on 23.08.2016?
What all that denotes on your part?
Now you have stated, you were "student of law" when you registered in this club. BY THE WAY, WHAT ARE YOU NOW AND WHERE PRACTISING AFTER COMPLETION OF YOUR STUDIES IN LAW?
Kumar Doab
(Expert) 30 October 2016
LCI Experts: Dr J C Vashista, Mr. P. Venu, Mr. Issac Gabriel, have been themselves n service and now in practice and handle such matters.
They have advised in many threads on such queries.
You may approach them.
Amit shrivastava
(Querist) 30 October 2016
Thanks kumar sir ,how can i contect that experts. Dhigra sir n sudhir sir both are using their ability to prove me wrong . I have supplied enough material to prove that i am not fake . I did my llb from rajasthan university Jaipur . But still student of law. Since this case is not moving as settled law of book. You feel it is hypothetical . OK i thank you for wasting your time and assure you that will inform you after solving the same . Once again thank to prominent lawyer who participate in this discussion .
Kumar Doab
(Expert) 30 October 2016
Visit profile page of Experts and get in touch with them:
Mr. P.Venu:
http://www.lawyersclubindia.com/profile.asp?member_id=38535
Mr. Issac Gabriel:
http://www.lawyersclubindia.com/profile.asp?member_id=15197
Dr.J.C.Vashista:
http://www.lawyersclubindia.com/profile.asp?member_id=143573
Mr. Devajyoti Barman:
http://www.lawyersclubindia.com/profile.asp?member_id=39526
Mr. J.K.Aggarwal:( Jaipur)
http://www.lawyersclubindia.com/profile.asp?member_id=10487
Mr.Kirti Kar Tripathi
http://www.lawyersclubindia.com/profile.asp?member_id=65481
Kumar Doab
(Expert) 30 October 2016
In Rajasthan/Jaipur you can access counsels par excellence specializing in Labor/Service matters.
Labor/Service matters is altogether different field of law.
In each city there are a few counsels that specialize in it and they are well known.
Usually such matters are referred to them.
They are also well versed with matters like the one posted by you.
The local counsels can guide you further.
Kumar Doab
(Expert) 30 October 2016
Not only you in this thread but many others in many threads have felt the same way and have been treated like you.
Guest
(Expert) 30 October 2016
Mr. Amit,
Whatsoever be your opinion about me, I am frank on my opinion, as you are not coming forward with facts. However, you are free to adhere to feel good type advice of some expert/s.
Sudhir Kumar, Advocate
(Expert) 30 October 2016
you have not clarified
(i) whether you have joined service
(ii) whether deptt has allowed accused to avail services of lawyer in depttl proceedings
if reply to both questions is "no " then you cannot be Def Asstt.,
Sudhir Kumar, Advocate
(Expert) 30 October 2016
you said
"since this case is very innovative n you feel how it can be happen"
But sorry. There is nothing unique in this case. Millions of such cases have happened. The only thing is that you neither know about such cases nor want to be benefited by experience of others and when you are being told that 2+2=4 the you say that
"Dhigra sir n sudhir sir both are using their ability to prove me wrong "
If you feel that we will say exactly what you want to hear then you are mistaken.
Sudhir Kumar, Advocate
(Expert) 30 October 2016
you said
"this case is not moving as settled law of book."
But sorry. The facts stated by you do not in any way indicate any illegality on the part of the deptt.
Guest
(Expert) 30 October 2016
In nutshell, even if there is slightest of truth in your story, you have badly ruined the career of the employee.
Rajendra K Goyal
(Expert) 31 October 2016
May proceed as advised by the expert Kumar Doab.
Guest
(Expert) 31 October 2016
Besides other questions, you have not stated what you are now after completing your law course. Is there any hitch in telling truth.
