Judgment :- The petitioner filed the above writ petition praying to issue a writ of Certiorarified Mandamus to call for the records relating to the impugned order of the first respondent in his proceedings Rc.No.2352/2001-02/E1 dated 01.10.2001 and to quash the same and direct the respondents to pay to the petitioner the subsistance allowance in accordance with the Rules and by laws and existing practice for the period of suspension commencing from 14.08.1996 (deducting the amount of subsistance allowance paid for the period from 14.08.1996 to 31.08.1996). 2. The facts that are necessary for the disposal of the writ petition is as follows: The petitioner was appointed as Bank Inspector in the respondents Co-operative Bank in the year 1967; thereafter he was promoted to various posts and in the year 1994, he was promoted as Secretary to the first respondent Co-operative Bank; the petitioner attained the age of superannuation of 58 years on 31.08.1994. But his services were extended beyond 31.08.1994, for a period of one year commencing from 01.09.1994,as per G.O (D) No.655 co-operation, Food & Consumer Protection Department dated 30.08.1994. The petitioner's services were extended for another period by another order by G.O.No.649, Co-operation dated 30.08.1995 and the extended period was to be over on 31.08.1996. But before the end of the said extended period, the petitioner was suspended by the first respondent as per proceedings in RC.Nil/801 dated 13.08.1996 and the petitioner is still under suspension. The petitioner is entitled to the payment of subsistence allowance at a rate not exceeding 50% of the basic pay during the period of his suspension. On 22.11.1996, the petitioner requested the first respondent for payment of subsistence allowance and also payment of salary for the period from 1.8.1996 to 13.08.1996. On 15.12.1996, the first respondent sent a communication to the petitioner in order to ascertain whether the petitioner is residing in the Headquarters. The petitioner sent his reply stating that he is residing at Headquarters and he is not employed anywhere from 14.8.1996 thereafter number of requests were made for grant of subsistence allowance; on 19.01.1999 that is after 2 ½ years of suspension, the first respondent framed charges against the petitioner stating that the petitioner was privy to the grant of loan to some fictitious institutions. On 08.11.2001, another communication was sent to the respondent by the petitioner. On 08.11.2001, another communication was sent to the respondent by the petitioner. On 14.08.2002, the first respondent Bank appointed the third respondent as an Enquiry Officer to enquire into the matter of the petitioner and in that proceedings the petitioner was referred to as former Secretary and under suspension. Again on 24.09.2002, the petitioner requested the Co-operative Bank for payment of subsistence allowance. Thereafter the impugned order was passed by the respondents but paid subsistence allowance only for 14 days that is from 14.08.1996 to 31.08.1996. Hence, this writ petition. 3. The first respondent filed his counter stating that the Bank has paid the subsistence allowance to the petitioner for the period from14.08.1996 to 31.08.1996 as per the Bank Special Bye-laws; that the petitioner has no right to claim any relief from the respondent Bank, as his services ceased on 31.08.1996 itself. Under any law, his claim to pay subsistence allowance is null and void; the petitioner's claim is not sustainable as there is a separate forum for entertaining this type of claim ie., the Assistant Commissioner of Labour/Authority competent for payment of subsistence allowance. Further, it is stated that the services of the petitioner were extended after his date of superannuation only on the strength of G.O. and the bank is not aware of the reasons on which his services were extended; and the writ petition is liable to be dismissed. 4. The petitioner has filed his rejoinder for the counter affidavit stating that in the order of appointment of an Enquiry Officer, the delinquent, the petitioner herein referred to as former Secretary and 'under suspension'. Hence, the relationship of employer and employee between the bank and the petitioner exists and hence, the petitioner is entitled for payment of subsistence allowance. 5. Heard both sides. 6. Mr.S.Vadivelu,learned counsel appearing for the petitioner submits that the petitoner was suspended on 13.08.1996 and he continues to be in service till another order of revocation of suspension is passed. Unless and until the revocation order is passed, the petitioner continues to be an employee and, therefore, the petitioner is entitled for subsistence allowance as per Clause 13 (ii)(b) of the Special Bye-laws Relating to service Conditions of Employees of the Co-operative Societies. Unless and until the revocation order is passed, the petitioner continues to be an employee and, therefore, the petitioner is entitled for subsistence allowance as per Clause 13 (ii)(b) of the Special Bye-laws Relating to service Conditions of Employees of the Co-operative Societies. Clause 13(ii)(b) reads as follows: "The authority competent to suspend an employee may sanction to the suspended employee, who does not come under the purview of the Tamil Nadu payment of Subsistence Allowance Act 1981 (Tamil Nadu Act No.43 of 1981) a subsistence allowance at a rate not exceeding 50% of the basic pay during the period of his suspension. In respect of suspended employees who come under the purview of the Tamil Nadu payment of Subsistence Allowance Act 1981, the subsistence allowance shall be paid in accordance with Section 3 of the Act". 7. Further,learned counsel appearing for the petitioner submitted that the Supreme Court in Capt.M.Paul Anthony v. Bharat Gold Mines Ltd. & Another (Judgment Today 1999 (2) SC 465), has categorically held that " ... There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'Subsist' as given in Shorter Oxford English Dictionary, Vol.II at p.2171 is "to remain alive as on food; to continue to exist". "Subsistence" means – means of supporting life, especially a minimum livelihood. "Emphasis supplied. "If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of Subsistence Allowance can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of non-payment of Subsistence Allowance, would gradually starve himself to death". Further, the Supreme court has held that, "The fundamental rights, including the Right to Life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of Subsistence Allowance made in the Service Rules only ensures non-violation of the right to life of the employee. Further, the Supreme court has held that, "The fundamental rights, including the Right to Life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of Subsistence Allowance made in the Service Rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra v. Chanderbhan( 1983 (3) SCR 337 = 1983 (3)SCC 387 = AIR 1983 SC 803 struck down a Service Rules which provided for payment of a nominal amount of Rupee one as Subsistence Allowance to an employee placed under suspension" 8. Learned counsel further relied upon the decision in Jagdamba Prasad Shukla v. State of U.P. and others (Judgment Today 2000 (9) SC 457) wherein the Supreme Court has held as follows: " The payment subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for non-payment of the subsistence allowance all through the period of suspension ie., from suspension till removal. ..." 9. Learned counsel also referred to yet another decision in Anwaruna Nisha Khatoon v. State of Bihar and others in Judgment Today 2002 6 SC, 205 wherein the Supreme Court has held as follows: "In our view, this authority, far from assisting the respondents, is against them. This authority shows that there is no requirement to mark attendance. To us also no rule could be shown which required a suspended employee to mark attendance. The respondents can at the most ask for a certificate that the appellant's husband was not engaged in any other employment, business, profession or vocation. The appellant's husband having died, he could not have furnished such a certificate. At no stage have the respondents asked the appellant to give such a certificate. Thus the grant of subsistence allowance cannot be denied on the ground that such a certificate is not given. This view of ours is supported by an authority of this Court in the case of Jagadamba Prasad Shukla v. State of U.P. (JT 2000 (9)SC 457. In this case, on identical facts, it has been held that if the state requires a certificate they should ask for it. This view of ours is supported by an authority of this Court in the case of Jagadamba Prasad Shukla v. State of U.P. (JT 2000 (9)SC 457. In this case, on identical facts, it has been held that if the state requires a certificate they should ask for it. It has been held that without asking for such a certificate the state cannot reject a claim for subsistence allowance. In the case of M.Paul Anthony v. Bharat Gold Mines Ltd., (JT 1999(2) SC 465), this Court has held that a suspended employee is entitled to subsistance allowance as a relationship of employer-employees subsists". 10. Relying upon this judgment, learned counsel submitted that for all practical purposes, the petitioner was treated as a person "in service". For the above said contention, learned counsel relies upon the communication sent to the petitioner on 14.08.2002 wherein the petitioner has been described as 'former Secretary and under suspension'. Even earlier, he was asked to certify whether he resides in the Headquarters which shows that the petitioner was expected to be in the Headquarters which means that the petitioner was continuing in service and treated as a person in service. Therefore, the petitioner's service was continuing and he was only kept under suspension. This suspension would come to an end only by an order revoking the suspension order. Inasmuch as the order of revocation has not been passed, the petitioner continued to be in service and, therefore, under Clause 13 (ii)(b) of the Special Bye-laws Relating to service Conditions of Employees of the Co-operative Societies, the petitioner is entitled to subsistence allowance from 14.08.1996 till the date of impugned order. 11. Mr.Vijayanarayanan, learned counsel appearing for the respondents submitted that the petitioner was employed in non-pensionable service, and he was already superannauted on 31.08.1994 itself. Thereafter, his services were extended by a specific Government Order, for a period of one year first and by another G.O. For another period of one year which came to an end on 31.08.1996 itself. Therefore, even though the writ petitioner was suspended on 13.08.1996, the services of the petitioner came to an end on 31.08.1996; thereafter his services cannot be extended unless government Order has been passed extending his service. Therefore, he cannot continue in service after 31.8.1996. Therefore, the petitioner was not continuing in service after 31.08.1996. Therefore, even though the writ petitioner was suspended on 13.08.1996, the services of the petitioner came to an end on 31.08.1996; thereafter his services cannot be extended unless government Order has been passed extending his service. Therefore, he cannot continue in service after 31.8.1996. Therefore, the petitioner was not continuing in service after 31.08.1996. Further, this Court in a similar matter has passed an order in W.P.No.16946 of 2001 wherein K.Govindarajan,J has held as follows: "It is not in dispute that the petitioner was placed under suspension on the eve of retirement on the basis of the criminal proceedings. If an employee was placed under suspension on the eve of the retirement, the subsistence allowance is being paid only on the basis of the pension scheme. In the present case, admittedly, the petitioner's post is a non-pensionable post and the subsistence allowance cannot be calculated as the pension rules do not apply to the petitioner. Normally, the subsistence allowance cannot exceed the provisions pension. It is also stated in the counter that as per Rule 14 © of the Service Rules of the Corporation, the retirement benefits could be settled only after the disciplinary proceedings are finalised. In view of the above fact, the respondents are justified in not paying the subsistence allowance to the petitioner. When the petitioner is not entitled for pension after retirement, he cannot now seek for subsistence allowance, taking advantage of the order of suspension". 12. Relying upon this judgment, learned counsel submitted that the petitioner is not entitled for subsistence allowance inasmuch as he was not continuing in service after 31.08.1996. Therefore, the question of payment of subsistence allowance does not arise at all as he is in non-pensionable post. Therefore, the impugned order is not illegal and hence, liable to be dismissed. 13. Admitedly, the writ petitioner was in non-pensinable service and had attained the age of superannuation on 31.08.1994. Thereafter his services were extended by a specific Government Order for a period of one year and again for another one year which came to an end on 31.08.1996 itself. After that date unless a specific Government Order was passed extending the petitioner's service, he could not continue to be in service. When a suspension order is passed after he was continued in service, even after he attained the age of superannaution, the departmental action is necessary. After that date unless a specific Government Order was passed extending the petitioner's service, he could not continue to be in service. When a suspension order is passed after he was continued in service, even after he attained the age of superannaution, the departmental action is necessary. Unless such an order is passed continuing him in service, beyond the period of superannution (i.e.,) if the services are not extended, on the completion of superannuation, the petitioner shall retire from service. No authority can stop him from retiring from service, unless a specific order is issued. Admittedly, there was no order extending the service after 31.08.1996. 14. It is true that the respondents have sent communication asking the petitioner whether he was continuing in the headquarters, describing him as former Secretary under suspension. Merely because the petitioner has been described as former Secretary under suspension, it does not mean that he is continuing in service, beyond superannuation. These communications are without any legal basis and the petitioner was not in service on 31.08.1998 and he cannot be considered to be in service of the respondents after 31.08.1996. Therefore, the petitioner is not entitled for payment of subsistence allowance and he has already been paid for the period 13.08.1996 to 31.08.1996. Further, the judgment of K.Govindarajan,J. referred to above squarely supports the case of the respondents herein. Therefore, the impugned order is not illegal and hence, the writ petition is liable to be dismissed. In the result, the writ petition is devoid of merits and the same is dismissed. No costs.