Suspension, Subsistence Allowance, Regularisation, Dismissal | Important Points

1.  Rule 8 of A.P.C.S. (CC &A) Rules, 1991 deals with the conditions for placing an employee under suspension.

 

2. The circumstances under which an employee may be suspended are given below - GO.Ms. No.401/Ser./65-1 GAD Dept., dated 04.07.1965.

i) Where the continuance of the officer will prejudice the investigation, trial or enquiry;

ii) Where it will be against public interest;

iii) Where it is likely or seriously subvert discipline in the office;

iv) Where the preliminary enquiry, prima facie case is made out justifying prosecution or departmental proceedings likely to result in dismissal, removal, or compulsory retirement.

 

3. Where an employee is being tried by a competent Court for criminal charges, he/she may be suspended - GO. Ms. No. 488/Ser. C/S1, GAD, dated 21.04.1981.

 

5. Employees trapped by the A.C.B. may be placed under suspension.  Where some delay is anticipated in suspending him, transfer of the employee at once may be considered - GM (Confdt.) 204/Services-C/76-3 G.A.D. dated 31.05.1976.

 

6. Where the transfer of the employee to a far-off place is sufficient and suspension may not be resorted to. - GM. No. 1733/Ser.C/76-2 GAD., dated 03.08.1967.

 

7. Temporary employees may be discharged by an immediate Officer instead of suspending them - G.M.No.1933/65/GAD., dated:28.04.1965.

 

8. In the suspension orders, Charge Memos and transfer orders issued to delinquent officer, reference to the report of the A.C.B. or Vigilance Commission should not be made [GO. Ms. No. 677, GA. (Ser.-C) GAD dated 5.6.1961]. But when the case is registered by A.C.B. and the case under investigation, it can be mentioned in the suspension orders as prescribed in GO. Ms. No.441, GAD, dated 20.7.1993 and GO.Ms.No. 296, F&P, dated 14.10.1996.

 

9. No leave should be sanctioned to the suspended employee. (FR 55)

 

10. The vacant post of the suspended employee should not be filled up by promotion, transfer. Only additional charge arrangements can be made - GO. Ms. No.189,  GA. (Ser. C) Department. dated 20.04.1999 read with Memo No. 20225/219/FR II/99. F&P. dated 23.07.1999.

 

11. The suspension period generally should not exceed two years except exceptional cases. (GO. Ms. No. 526, GAD, dated 19.08.2008 and GO. Ms. No. 86, GAD, dated:08.03.1994) and the suspended employee can be reinstated into service pending finalisation of disciplinary proceedings.

 

12. When an employee is detained in police custody for more than 48 hours, he is deemed to have been kept under suspension from that date - Rule 8 of APCS (CC & A) Rules, 1991.

 

13. Employees should not be kept under suspension for simple reasons. If the suspension is proved to be unjustified and unnecessary at later date, the officer who issued suspension orders will be held responsible and disciplinary action can be taken against him - Govt. Memo No. 2213/Ser.C/GAD, dated 30.11.1966 and Govt. Memo No. 4993/Police/Home Dept., dated 8.12.1969.

 

14. Suspension orders should not be issued with retrospective effect except in deemed suspensions - Govt. Memo No. 1085, GA. (Ser. C) Dept., dated 10.5.1973.

 

15. Suspended employee should not be promoted - GO. Ms. No. 257, GAD, dated 10.06.1999.

 

16. Resignation of the suspended employee should not be accepted - Rule 30 of A.P. State and Subordinate Service Rules, 1996.

 

17. The suspension orders will come into effect from:

(A) the date of despatch from the office of the authority if the employee is on leave (GO. Ms. No. 1085/GA. (Ser. C) 72-3, GAD, dated 10.5.1973;

(B) from the date of handing over charge if the employee is handling and in charge of stores.

 

18. If the suspension orders could not be served, it may be published in the A.P. Gazette. (GO. Ms. No. 689, GA. (Ser. C) Dept., dated 19.8.1970 and it will come into effect from the date of publication in A.P. Gazette. (Govt. Memo No. 1676/73-6 GA. (Ser. C) Dept., dated 19.8.1979).

 

19. The particulars of suspension of the employee should be entered in the respective Service Register.

 

20. The suspension orders can be revoked at any time and the suspended employee can be reinstated into service pending finalisation of the disciplinary proceedings by the authority who kept the employee under suspension or by the higher authority - Rule 8(5)(c) of A.P.C.S. (CC & A) Rules, 1991.

 

21. After reinstatement into service and finalisation of disciplinary proceedings, the suspension period has to be regularised either "on Duty" or "Not on duty". (FR 54-1).

 

22. The period of suspension should be treated as "duty" or "Not duty” by the competent authority only and if the period of suspension is treated as "Not duty", it may be converted into leave of any kind due and admissible to the employee at his specified request - FR 54(5) and FR 54-A7.

 

22. Suspension of an employee can be done only by the competent authority to do so under A.P.C.S. (CC & A) Rules, 1991. An illegal suspension order passed by an authority not competent to do so cannot be ratified subsequently by the competent authority and fresh orders of suspension will have to be issued which will have only prospective effect. The period of earlier illegal suspension will automatically become "duty".

 

23. Different types of Formats have been prescribed for issuance of suspension orders for various reasons; Review of suspension orders; Revocation of suspension orders. (Copies enclosed).

 

24. Check list for suspension of employees has been prescribed in Government Circular Memo No. 56183/Ser. C/99, GAD, dated 15.10.1999.

25. The need to continue the suspension or to reinstate the employee into service should be reviewed at every interval of six months by the competent authority. (Govt. Memo No. 110169/Ser. C/2003, GAD, dated 11.9.2003).

 

26. If an employee under suspension against whom disciplinary proceedings are pending finalisation, attains the age of superannuation, he must be retired from service without prejudice to finalisation of disciplinary proceedings - GO. Ms. No. 64, F&P Dept., dated 1.3.1979 and Section 3 of A.P. Public Employment (Regulation of Age of Superannuation) Act, 1984.

 

27. If an employee dies while under suspension, the suspension period has to be treated as Duty for all purposes - GO. Ms. No. 275, F&P, dated 8.8.1977.

 

28. The order of suspension cease to be operative as soon as the criminal proceedings, on the basis of which the Government servant was arrested and released on bail are terminated. (Added as (c) in sub-rule (2) after clause (b) of Rule 8 A.P.C.S. (CC & A) Rules, 1991 in GO. Ms. No. 27, GA (Ser. C) Dept., dated 24.1.2002.

 

Suspension - Reinstatement - Consultation with Vigilance Commission

Consultation with the A.P. Vigilance Commission for advice is invariably required in respect of the cases where it is decided to reinstate the employees before completion of 2 years of suspension period - GO.RT. No.2285, GA. (Ser.C) department, dated 18-05-2012.

 

Subsistence grant or allowance: F.R.53

i) Subsistence grant or allowance means a monthly payment made to a Government servant who is not in receipt of pay or salary - FR 9(27).

 

ii) When a Government servant is suspended by the competent authority the Government servant under suspension is entitled to the subsistence allowance as follows - FR 53.

 

1.  First three months - Equal to leave salary which the Government servant would have drawn, if he/she had been on leave on half pay - FR 53(i)(ii)(a).

 

2. Subsequent to the period of three months -

 

a) If the period of suspension is prolonged for reasons not directly attributable to the Govt. Servant: The allowance may be increased by an amount not exceeding 50% of that admissible during the period of first three months - FR 53(1)(ii) a (i).

 

b) If the period of suspension is prolonged for reasons not directly attributable to the Govt. Servant: The allowance may be reduced by an amount not exceeding 50% of that admissible during the period of first three months - FR 53 (1) (ii)(a)(ii).

 

iii) The authority who ordered the suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the 1^st three months as noted against item 2 above.  The subsistence allowance shall be restricted to 50 % in all cases where a prima facie case is established on charges of corruption, misappropriation and demand or acceptance of illegal gratification until finalisation of disciplinary case (FR 53(1) iv) as added by GO.Ms. No.2, Finance (FR-I) department, dated 04-01-2006).

 

iv) Though the proviso to FR 53 (1) (ii) (a) does not specifically provide for a second or subsequent review, there is no objection for such reviews, being made by the competent authority.

 

v) The amount of subsistence allowance once increased on the basis of first review can be reduced upto 50% of the subsistence allowance initially granted, if the period of suspension has been prolonged for reasons directly attributable to the Government servant i.e., by his adopting dilatory tactics. Similarly in case where the amount of subsistence allowance was reduced at the first review the same can be increased upto 50% of the amount initially granted if the period of suspension has been prolonged for reasons not directly attributable to the Government servant and he has given up dilatory tactics - Rule l (v) Under FR 53.

 

Allowances Admissible during Suspension: -

a) Dearness Allowances - based on subsistence allowance - FR 53(l)(ii)(a).

 

b) Other compensatory Allowance i.e., H.R.A. and C.C.A. from time to time are admissible on the basis of pay which the Government servant was in receipt on the date of suspension subject to other conditions FR 53(1)(ii) (b).

 

Certificate of Non-employment:-

No payment of subsistence allowance; D. A. and other Compensatory Allowances shall be made unless the Government servant furnishes a certificate of non-employment, business, profession or vocation during the period of suspension. FR 53(2).

 

Expiry of the sanction of the post:-

When an individual is due to be discharged from service on account of the expiry of the sanction of the post held by him, but for the suspension, the post shall be extended by the authority competent to dismiss or remove the Government servant from service, on the merits of each case, if the delay is anticipated in obtaining sanction of the competent authority in such case the vacancy should not be filled in Ruling 2 under FR 53.

 

Treatment of period of suspension on Reinstatement of Employee:

When a Government servant under suspension is reinstated, the authority, ordering the reinstatement - shall make a specific order after conclusion of proceedings whether or not the period of suspension shall be treated as a period spent on duty and the pay and allowances to the paid to the Government servant - FR 54(1).

 

In case of death of the suspended employee before conclusion of proceedings:-

When a Government servant under suspension dies before the proceedings against him are concluded, the period from the date of suspension to the date of death shall be treated as duty for all purposes - FR 54-B (2).

 

Pay and Allowances include special pay:-

The Pay and Allowances to which a Government Servant would have been entitled, had he not been suspended include special pay attached to the post which the Government servant was holding immediately before suspension.  Note 54-3 (3) introduced with (GO.Ms.No. 267, Fin & Pig (FR-I) Dept., dt: 17.10.1978).

 

When committed to prison either for debt or on criminal charge:

A Government servant should be considered under suspension when he is committed to prison either for debt or criminal charge from the date of his arrest until the termination of proceedings against him. The full amount for the period of suspension may be given to him if -

 

i) He is acquitted of blame; or

 

ii) The imprisonment was for debt of its being proved that his liability arose from circumstances beyond his control. Instruction 1 under FR 54.

 

Arrears of subsistence allowance:

1) Arrears of Subsistence Allowance due to the Government Servant should not be withheld but be paid to him for adjusting the same against the following amounts, if any due by him to the Government - Ruling 1 under FR53.

 

a) Income Tax and Super Tax

b) House rent and allied charges.

c) Loans and advances taken by Government servant at the rates prescribed by the Head of the Department.

d) Recoveries of over payment not exceeding 1/3 of subsistence allowance.

 

2) Arrears of subsistence grant due to a Government servant should not be adjusted against any amount due by him to the government - FR 53 Note 1 under Ruling - 1.

 

Arrears of Subsistence Allowance in case of dismissal / removal from service:

If a Government servant under suspension is dismissed or removed from service, arrears of subsistence allowance, if any due to him up-to the date of termination of proceedings should be paid to him - Note 2 under Ruling 1 under FR 53.

 

Example:

A Government Servant drawing a pay of Rs. 1500/- was placed under suspension for three months with effect from 1.4.1987. orders were issued on 25.6.1987 terminating his services w.e.f. 1.4.1987. In this case though his services were terminated w.e.f. 1.4.1987 itself he was eligible for subsistence allowance from 1.4.1987 up to 25.6.1987 i.e., the date of proceedings in which his services were terminated.

 

Reinstatement after Suspension:

FR's 54, 54-A are very exhaustive in nature and they are respectively dealt with in respect of three situations where an employee is reinstated after suspension and they are:-

 

i) Where reinstatement takes place consequent on the setting aside of dismissal or removal or compulsory retirement itself in appeal or review - FR 54.

 

ii) Where reinstatement takes place as a consequence of the dismissal, removal or compulsory retirement being set aside by Court of Law - FR 54(A) and

 

iii) Where a suspended employee (who has not been dismissed, removed or compulsorily retired) has been reinstated to duty - FR 54-B.

 

Regulation of pay and allowances and the period of absence on reinstatement under FRs 54-A & 54-B.

 

If fully exonerated:

i) If he is fully exonerated, the entire period should be treated as duty and full pay and allowance including special pay attached to the post should be paid as if he is on duty. If the authority is of the opinion that the proceedings are delayed due to the reasons attributable to the Government servant, he may be paid such proportion of pay and allowances for the period of delay as the authority may determine not being less than the subsistence and other allowances after giving opportunity to the Government servant and considering his representation, but the entire period should be treated as duty.

If not fully exonerated:

ii) If he is not fully exonerated but the order of dismissal or removal is set aside by the appellate or reviewing authority or by the court solely on technical grounds (not on merits) and no further enquiry is proposed-to be held he will be paid such portion of the full pay and allowances as the competent authority may determine not being less than the subsistence and other allowances after giving opportunity to the Government servant and after considering his representation [FR 54(4) and FR 54-A(2)]. 

 

The payment will be restricted to a period of three years immediately preceding reinstatement or retirement or superannuation [proviso to FR 54(4)].

 

The payment is further subject to adjustment of the amount earned by him in private employment during the relevant period (FR 54(8) and 54-A 95).

 

The period shall not be treated as duty. However, it may be counted as duty for one or more specified purposes on the order of the authority. It cannot be treated as duty for all purposes. The period may also be treated as leave to which the employee is eligible at his request -FR.54(5).

 

Treatment of suspension period as either 'duty' or 'not duty’: -

iii) The competent authority shall only decide whether the period of absence should be treated as "Duty "or "Not duty" when the period is decided as Not-Duty the competent authority may order that the period of suspension may be converted into leave of any kind due and admissible to the Government servant at his specified request - FRs 54 (5) and 54-A (7).

 

Treatment of period of suspension as "leave':

iv) When the period of absence of Government servant from duty including the period of suspension preceding his dismissal, removal or compulsory retirement is treated as leave as desired by Government servant, no higher sanction shall be necessary for the grant of -

 

a) Extra-ordinary leave in excess of three months in the case of non-permanent Government servants; and

 

b) Leave of any kind in excess of five years in the case of permanent or non-permanent Government servants under Rule 5-A of A.P. Leave Rules 1933 - FR-54-B (7) and Note there under.

 

Period intervening the period of dismissal/removal/compulsory retirement:-

v) There is no objection to the period intervening between dismissal, removal compulsory retirement or suspension and reinstatement being regularised as commuted leave or leave on medical certificate provided the conditions of FR 81 (b) or Rule 15-B of A.P.L. Rules are satisfied - Vide GO.Ms.No.303, Fin (FR), dt: 18.09.1964.

 

Reinstatement subject to review after conclusion of proceedings:

When the suspension is revoked pending finalisation of disciplinary or Court proceedings the order of reinstatement is subject to review after conclusion of proceedings as to the regulation of pay and allowances and treatment of period of absence - FR 54-B(6)

 

leave admissible while under suspension:-

Leave may not be granted to a Government servant under suspension - FR 55.

 

If suspension found wholly unjustified recovery of pecuniary loss:

In case where the suspension of Government employee was found to be wholly unjustified or was not done in good judgement and good faith by the competent authority and the employees had to be paid full pay and allowances, it can be said that due to lack of judgement or bad faith of the competent authority pecuniary loss was caused to Government. In such cases action will be taken for the recovery of the pecuniary loss from the authority who ordered suspension.

 

Special pay during the period of suspension of duty:

The declaration that the suspension of a Government servant is wholly unjustified and the fact that the Government servant under suspension dies before the conclusion of disciplinary or court proceedings against him warrants that the period of suspension of Government servant concerned should be regularised as if he were never placed under suspension. In view of the definition of pay and special pay attached to the post, would also be admissible in addition to full pay and allowances for the period of suspension. This procedure is followed by Government of India.

 

State Government have decided to adopt the above procedure of Government of India with immediate effect - GO.Ms.No. 275, Fin, dt:08.08.1987. 

 

Suspension/C.C.A. Rules - Some important points on Subsistence Allowance

1. Subsistence allowance to the suspended employee should be paid as per the rules laid down in FR 53, and as clarified in Government Memo No. 40986/F&P, Dept., dated 1.4.2000.

 

2. There should be no delay in payment of subsistence allowance to the suspended employee when non-employment certificate is furnished by the suspended employee. (Govt. Memo No. 560/Ser.C, GAD dated 21.3.1996 and Govt. Memo No. 39071/F&P Dept., dated 28.2.2000.

 

3. No interim relief should be paid to the suspended employee. (Govt. Memo No. 44113/541/PCl/98-l F&P Dept., dated 11.11.1998).

 

4. The subsistence allowance is to be paid even while the suspended employee is on bail. (Govt. Circular Memo No. 39071/471, F&P (FW RI) Dept., dated 28.2.2000.

 

5. It is an offence to refuse to pay the subsistence allowance. (Govt. Memo No. 29730/ A/458/ A2/FR II/ 96-F&P FW FR II) Dept., dated 14.10.1996).

 

6. Payment of subsistence allowance should not be stopped on the pretext that Subsequent Reviews were not done. (Govt. Circular Memo No. 13431/160/ A/FR 11/93, F&P Dept., dated 28.2.2000) and Govt. Circular Memo No. 2970, F&P Dept., dated 15.9.1994, GO. Ms. No. 205, GA (Ser. C) Dept., dated 17.3.1990).

 

7. Subsistence allowance should not be enhanced with retrospective effect [FR 53, clause (ii)(a) of sub-rule (1)).

 

8. The suspended employee is eligible for H.R.A. and other allowances proportionate to subsistence allowance sanctioned irrespective of time limit. (Govt. Memo No. 47710/A/245/A2/Admn./l/98, GAD, dated 4.1.1999). However, it is clarified in Govt. Circular Memo No. 40986/ 489/A2/FR 11/99-2 F&G (FW FR II) Department dated 1.4.2000 that HRA is to be allowed on the basis of pay which the employee was in receipt on the day of suspension subject to fulfilment of other conditions. [FR 53(1)(ii)(b)].

 

9. In case of a Government servant under suspension is removed/dismissed from service on conclusion of disciplinary proceedings with retrospective effect, the subsistence allowance has to be paid up-to the date of issue of such orders. (Note 2 under ruling 1 under FR 53) (GO. Ms. No. 2002, Finance Department, dated 17.10.1997).

 

9. Regularisation of Suspension periods - Pay and Allowances

The period of suspension has to be regularised keeping in view of the instructions issued in F.R. 54(B) Sub Rules 2, 3, 4, 5, 6, 7, 8 and 9 and admissible pay and allowance has to be paid as per the clarificatory orders issued in GO. Ms. No. 30, Finance (FR II) Department, dated 15.2.2007 and Government Circular Memo No. 32818/ N52 l /FR 1/2008, Finance (FR II) Department, dated 5.12.2008. (Copies enclosed).

 

1. When the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non-compliance of requirements of clause ( 1) or (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the pay and allowances for the period of dismissal, removal or compulsory retirement, or suspension prior to such dismissal, removal or compulsory retirement shall be limited to the subsistence allowance entitled/already paid under FR 53, for the entire period during which the Government servant was NOT on duty. (GO. Ms. No. 30, Fin. (FR II) Dept., dated 15.2.2007. (Copy enclosed).

 

2. If the dismissal, removal, or compulsory retirement is set aside by Court on the merits of the case, the period has to be treated as on Duty till the date of reinstatement of the employee, for all purposes. (FR 54 A3). The above benefit is NOT permissible if the employee is acquitted on benefit of doubt. (GO. Ms. No. 2, Finance (FR II) Dept., dated 4.1.2006).

 

3. Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the employee be paid the full pay and allowances had he not been suspended. [FR 54B (3)].

 

4. In cases falling under Sub Rule 3 of FR 54(B), the period of suspension shall be treated as period spent on duty for all purposes. [FR 54(B)(4)].

 

5. In cases other than those falling under Sub Rule (2) and (3), the pay and allowances payable for the period of suspension shall be limited to the subsistence allowance already paid. (G.O. Ms. No. 30, Fin. (FR II) Department, dated 15.2.2007).

 

6. How to Regularise Suspension Period?

Clarificatory orders are issued in G.O. Ms. No. 30, FR 11/2007, Finance Dept., dated 15.2.2007 and Government Circular No. 32818/N521/FRI/2008, Finance (FRI) Dept., dated 5.12.2008 regarding the procedure to be followed while the suspension period is regularised i.e., regularisation as "on Duty" or "Not on duty". (Copies enclosed) and how to pay back wages etc.

 

Recovery of subsistence allowance paid on Regularisation of Suspension period as on "Non Duty"

If the suspension period is treated as justified and regularised as "Non-Duty" and when the leave for such period is sanctioned as per the request of the individual, the amount of subsistence allowance already paid to the individuals has to be recovered from the leave salary. As no leave salary is admissible for extraordinary leave, the subsistence allowance paid for that period is also be recovered.

 

Suspension period - Counting for pension.

If the charges are not proved and the individual is exonerated from the charges, such period counts as qualifying service for pension. If the suspension is justified, the period will not count as service for pension. The authority can specify the quantum of suspension period that counts as qualified service for pension. (Rule 20 of A.P. Revised Pension Rules, 1980).

 

Enhancement of DA - Proportionate subsistence allowance

Whenever the D.A. rates are enhanced to employees by the Government, proportionate change in subsistence allowance has to be taken into consideration. (Govt. Circular Memo No. 13262/507 /FR II/ 2009, finance Dept., dated 26.8.2009.

 

Subsistence allowance - Convicted employee etc. - Payment - Supreme Court Judgment

Based on the Judgment of Hon'ble Supreme Court of lndia, in 1983 (2) SLR 493, Government has issued orders in Circular Memo No. 39071/471/ A2/FRIU79 F&P (FW FR II) Dept., dated 28.2.2000, that the suspended employee whether he is lodged in prison or released on bail on his conviction and pending consideration of his appeal be paid subsistence allowance.

 

Non-Employment Format

The suspended employee has to submit Non-employment Certificate every month in the following format: If the Certificate is not given, subsistence allowance will not be drawn to him. (FR 53(2). GO. Ms. No. 82, GAD, dated 1.3.1996 and GO. Ms. No. 398, GAD, dated 25.9.2001).

 

Suspensions - Review - Prescribed Proforma

The competent Authorities must review at every six months as to the need or otherwise to keep the employee under suspension and orders to that effect should be issued in the prescribed proforma as required under instructions issued in Govt. Memo No. 33251/Ser. C/2000--I, GAD, dated 11.1.2001.

 

i) If the authority decides that there is no need to continue the employee under suspension, he can be reinstated into service. Even if the disciplinary proceedings are pending finalisation, the suspended employee can be reinstated into service pending finalisation of disciplinary proceedings. (G.O. Ms. No. 480 G.A. (Ser. C) Dept., dated 7.9.1993 and Rule 8(5)(c) of APCS (CC &A) Rules, 1991). The Format in the matter is prescribed by the Government in GO. Ms. No. 82, GAD, dated 1.3.1996.

 

Suspended employee - Removed/Dismissed from Service - Subsistence Allowance

If the suspended employee is removed/dismissed/services terminated with retrospective date, the suspended employee is eligible for subsistence allowance till the date of issue of orders in the matter. (Note 2 under ruling I under FR 53). (GO. Ms. No. 2002, Finance Department, dated 17.10.1957).

 

Example

Suspended employee removed/dismissed/services terminated with effect from 1.4.2014. But such orders were issued on 31.7.2014, then he is eligible for subsistence allowance till the date of removal i.e., 31.7.2014.

 

Deductions from subsistence allowances

i) Deductions from subsistence allowance towards subscriptions of GPF, or advances under GPF should NOT be recovered. (Rule 15 of GPF Rules). On reinstatement into service and at the request of the employee such recoveries for suspension period can be effected. (Rule 9 of GPF Rules).

 

ii) Amounts towards income tax, profession tax, house rent can be deducted.

 

iii) The deductions towards any excess payments made should not exceed 1/3 of subsistence allowance. (Note under ruling I of FR 53).

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