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2004 DIGILAW 504 (KAR)

J. N. Gurappa Reddy v. State of Karnataka

2004-08-10

R.GURURAJAN

body2004
ORDER R. Gururajan, J.—IA. III filed for impleading the wife of the Petitioner as Respondent No. 4 is allowed. 2. Petitioner was working as an officer with the second Respondent-organisation. He was kept under suspension in terms of Annexure-A. He was arrested by the Mico Layout Police Station based on a FIR registered in Crime No. 326 of 2001 dated 15.5.2001 for offences under Sections 498-A, 499A and 420 of IPC. Those proceedings were stayed by this Court on 8.6.2001 in Cr.P. No. 1649 of 2001. Subsequently, the criminal petition came to be dismissed. Petitioner states that he was suspended in terms of Rule 88 of Centre for Enterpreneurship Development of Karnataka Service Rules, 1999 ('the rules' for short) as applicable to the Petitioner and that the subsistence allowance cannot be denied on the sole ground of arrest in the matter. He filed an application seeking to recall the order of suspension and also for payment of subsistence allowance. There was inaction. An appeal was filed in terms of Annexure-D. Since the appeal was not disposed of, writ petition was filed in WP No. 1649 of 2001. This Court directed the Respondents to dispose of the appeal within four weeks in terms of an order dated 5.11.2001. Thereafter the appellate authority has chosen to pass the impugned order in terms of Annexure-F dated 13.3.2002. This order is challenged. 3. Notice was issued and Respondents have entered appearance and they have filed their statement of objections. 4. Contesting Respondent has also filed its statement of objections stating that the Petitioner is an accused in a criminal case and in terms of the Rules, he is not entitled for any relief. They also refer to certain correspondence in the matter at the instance of the wife of the Petitioner. They justify their action. They also say that Petitioner is not entitled for any relief in the given circumstances. They say that Rule 89(iii) has to be read with Rule 88 in terms of the Rules as applicable to the case on hand. 5. An application is filed by the wife seeking to come on record in the matter. She says that she is entitled for interim maintenance and the same has to be granted to her. 6. They say that Rule 89(iii) has to be read with Rule 88 in terms of the Rules as applicable to the case on hand. 5. An application is filed by the wife seeking to come on record in the matter. She says that she is entitled for interim maintenance and the same has to be granted to her. 6. Learned Counsel for the Petitioner invites my attention to the material facts to contend that Rule 89(iii) has to go and it is arbitrary and unjust in terms of the laws declared by Courts of law. He says that subsistence allowance is paid to keep the body and soul together and that it cannot be denied on the ground of mere arrest. He says that even otherwise a reading of the order of the appellate authority would show that the appellate authority has not chosen to apply its mind to the material facts. 7. Per contra, learned Counsel for the contesting Respondent supports the order of the appellate authority. He ultimately says that even if subsistence allowance is payable, this Court may direct early completion of the enquiry with a direction to the Petitioner to co-operate in the matter. 8. Learned Counsel for the fourth Respondent says that her right may be protected in the matter. 9. After hearing the learned Counsel, I have carefully perused the material on record. 10. In AIR 1959 SC (sic) the Supreme Court has ruled as under; The power of the employer to suspend an employee under the ordinary law of master and servant in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workmen and even if he does so he will have to pay wages during the so-called period of suspension. 11. In P.L. Shah Vs. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workmen and even if he does so he will have to pay wages during the so-called period of suspension. 11. In P.L. Shah Vs. Union of India (UOI) and Another, AIR 1989 SC 985 , the Supreme Court in para 6 has ruled as under: The subsistence allowance is paid by the Government 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 dependents until the departmental proceedings 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. 12. In Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Anr., AIR 1999 SC 1416 the Supreme Court ruled in para 29 as under: Exercise of right to suspend an employee may be justified on facts of a particular case. Instances, however are not rare where offers have been found to be afflicted by 'suspension syndrome' and the employees have been found to be placed afflicted by 'suspension order' and the employees have been found to be placed under suspension just for nothing. It is an officer's irritability rather than an employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee when he is placed under suspension, he is demobilised and salary is also paid to him at a reduced rate under the nickname of 'subsistence allowance', so that the employee may sustain himself. 13. Recently the Supreme Court in Jagdamba Prasad Shukla Vs. State of U.P. and Ors., AIR 2000 SC 2806 has held that payment of subsistence allowance in suspension is a right and not a bounty. 14. 13. Recently the Supreme Court in Jagdamba Prasad Shukla Vs. State of U.P. and Ors., AIR 2000 SC 2806 has held that payment of subsistence allowance in suspension is a right and not a bounty. 14. From these judgments what is clear to this Court is that the payment of subsistence allowance has to made over to a suspended employee so that he can keep his body and soul together and participate effectively in the enquiry in the departmental proceedings initiated in terms of the rules by the Management. It cannot be denied in a fanciful manner. In the case on hand, on going through the rules as applicable to the suspension what is clear to this Court is that remuneration during suspension is provided in terms of Rule 89. There is however, restriction in terms of "no allowance if an employee is arrested by police". Mere arrest does not by itself result in cession of relationship between the parties. Arrest by police on criminal charges by itself cannot be equated to a case for denial of allowance in terms of 89(iii). Arrest can be for various reasons like, criminal, political, personal, lingual, communal, etc. Therefore mere arrest by itself cannot be termed as coming in the way of payment of subsistence allowance. In these circumstances, I am satisfied that Rule 89(iii) runs counter to the fairness and reasonableness in the matter of payment of subsistence allowance payable to an employee during the period of suspension. Denial merely on the ground of arrest has nothing but arbitrary in character and is in violation of Article 14 of the Constitution. Rule 89(iii) is therefore declared as unconstitutional. In the light of declaring Section 89(iii) as unconstitutional, let me see as to whether the appellate order could be sustained. 15. Admittedly, in the appellate order two findings are forthcoming. The first finding is with regard to the salary that is withheld by the Respondents. The second finding is with regard to denial of subsistence allowance in terms of Rule 89(iii). Since Rule 89(iii) is declared to be unconstitutional, the only direction that could be issued is to direct the Respondents to pay subsistence allowance in terms of Section 89(iii) in the case on hand. The second finding is with regard to denial of subsistence allowance in terms of Rule 89(iii). Since Rule 89(iii) is declared to be unconstitutional, the only direction that could be issued is to direct the Respondents to pay subsistence allowance in terms of Section 89(iii) in the case on hand. In so far as salary is concerned, it is clear to me that the same cannot be withheld on account of some outstanding payment payable by the Petitioner to the Respondent. In the case on hand, no provision is shown to me for withholding the entire salary as has been done in the case on hand. This action is also arbitrary in my view. If any outstanding is due to the Respondents, it is for them to issue notice to the employee and thereafter recover the same in a manner known to law. 16. Material on record would reveal that an enquiry is pending fairly for a long time. Petitioner has been suspended in the year 2001 and more than three years are over. In these circumstances, I deem it proper to direct the management to initiate enquiry if not already been done and complete the same within six months from today. Petitioner is directed to co-operate with the management in early disposal of the enquiry. Liberty is also reserved to the management to recover the outstanding amount in accordance with law. 17. In so far as the claim of the fourth Respondent/wife is concerned, it is not possible for this Court to give any relief in this petition. She can avail appropriate remedy in terms of the law governing maintenance. Therefore, I deem in proper to reserve liberty to the fourth Respondent-wife to workout her remedy in accordance with law. 18. In the result, this petition is allowed. Rule 89(iii) is declared as void and unenforceable in law. A direction is issued to Respondents to settle the salary and the subsistence allowance to the Petitioner in terms of this order. 19. Ordered accordingly. No costs.