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2005 DIGILAW 774 (MAD)

S. Chandra Mouli v. The Special Officer

2005-04-29

A.R.RAMALINGAM, P.K.MISRA

body2005
Judgment :- (Writ Appeal under Clause 15 of the Letters Patent against the order of the learned Single Judge, dated 18.01.2005, made in WPMP (MD) No.2058 of 2004 in W.P. (MD) No.1999 of 2004. WPMP.2058/04 Presented to direct the respondent to pay the Petitioner an interim subsistance allowance at the rate of Rs.7,500/- due from 10.05.2002 till the date of Writ Petition etc. Writ Petition under Article 226 of the Constitution of India praying for issuance of writ of certiorarified mandamus calling for the records relating to the order, dated 06.09.2002, passed by the respondent and quash the same and direct the respondent to pay the petitioner his full pay to due from 10.05.2002 till the order of suspension, dated 10.05.2002, stood revoked.) The writ appeal is directed against the order of the learned Single Judge in WPMP (MD) No.2058 of 2004 arising out of WP (MD) No.1999 of 2004. The only question raised in the present appeal is regarding the right of the appellant to get subsistence allowance during the period of his suspension. 2. There is no dispute that the present appellant was placed under suspension. He has filed W.P.No.1999 of 2004 for quashing the order, dated 06.09.2002 and to pay his full pay from 10.05.2002. During the pendency of such writ petition, the appellant filed WPMP No.2058 of 2004 seeking for a direction to the respondent to pay subsistence allowance. Such petition was rejected by the learned Single Judge on the ground that unless the writ petition itself is decided, the direction sought for cannot be issued. The appeal is directed against such order of the learned Single Judge. In the appeal, a miscellaneous petition has also been filed for issuing a direction to pay subsistence allowance. At the time of admission of the appeal, the learned Additional Government Pleader, was directed to obtain instruction. Thereafter, a counter affidavit has been filed. Since the question raised in the direction petition and the writ petition are same, it was indicated at the time of hearing that the entire matter, namely, writ petition and the appeal would be taken up and accordingly the appeal and the writ petition along with connected miscellaneous matters are being disposed by the present order. 3. Since the question raised in the direction petition and the writ petition are same, it was indicated at the time of hearing that the entire matter, namely, writ petition and the appeal would be taken up and accordingly the appeal and the writ petition along with connected miscellaneous matters are being disposed by the present order. 3. The only contention raised by the counsel for the petitioner/appellant is to the effect that the order of suspension, which has been issued not as a measure of punishment, but as an order of suspension pending disciplinary proceedings, the employer is bound to pay subsistence allowance. In the counter affidavit filed on behalf of the respondent it is indicated that the petitioner had filed W.P.No,.32128 of 2002 challenging the order of suspension and such writ petition was dismissed and Writ Appeal No.2537 of 2002 against the order of the learned Single Judge has also been dismissed. It is further indicated that a Claim Petition claiming subsistence allowance had been filed before the Assistant Commissioner of Labour and an ex-parte order has been set aside. However, the matter is still pending. The main contention raised in the counter affidavit is to the effect that the appellant is vested with managerial and administrative duty. It is contended that the provisions contained in the Tamil Nadu Payment of Subsistence Allowance Act, 1981 are not applicable to persons working in managerial or supervisory capacity and as such, such persons are not entitled to any subsistence allowance as per the provisions contained in the Tamil Nadu Payment of Subsistence Allowance Act, 1981. It is has been further stated that the bye-laws of the Co-operative Housing Society does not provide for subsistence allowance to the Secretary and the Manager and hence the petitioner is not entitled to get any subsistence allowance. 4. The claim of the present appellant regarding payment of subsistence allowance is not based on any provisions contained in the Tamil Nadu Payment of Subsistence Allowance Act, 1981. The only question, therefore, to be considered is whether the appellant is entitled to claim payment of subsistence allowance even if the provisions of the Tamil Nadu Payment of Subsistence Allowance Act, 1981 are not applicable. It is also relevant to notice that there is no prohibition contained in the Tamil Nadu Payment of Subsistence Allowance Act, 1981 regarding payment of subsistence allowance to any person. It is also relevant to notice that there is no prohibition contained in the Tamil Nadu Payment of Subsistence Allowance Act, 1981 regarding payment of subsistence allowance to any person. The Act provides for payment of subsistence allowance to certain types of employees at a particular rate, but it does not purport to prohibit payment of any subsistence allowance to other employees who do not come within the scope of such Act. 5. A contention has also been raised in the counter that the bye-laws do not provide for subsistence allowance to the Secretary and the Manager. We are also proceeding on the assumption that there is no provision in the bye-laws regarding payment of any subsistence allowance to a person placed under suspension. 6. In AIR 1964 SC 787 -(R.P.Kapur v. Union of India) it was observed. "11.The general principle therefore is that an employer can suspend an employee pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith. These general principles in our opinion apply with equal force in a case where the government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of Government, the employer in the case of government, must be held to be the authority which has the power to appoint a public servant. On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. This general principle is illustrated by the provision in Section 16 of the General Clauses Act, No.X of 1897, which lays down that where any Central Actor Regulation gives power of appointment that includes the power to suspend or dismiss unless a different intention appears. Though this provision does not directly apply in the present case, it is in consonance with the general law of master and servant. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. This suspension must be distinguished from suspension as a punishment which is a different matter altogether depending upon the rules in that behalf. ....." (emphasis supplied). 7. In (1999) 3 SCC 679 (M.Paul Anthony v. Bharat Gold Mines Ltd.), it was observed. "27.The order of suspension does not put an end to an employee's service and he continues to be a member of the service though he is not permitted to work and is paid only subsistence allowance which is less than his salary. (See: State of M.P. v. State of Maharashtra - (1977) 2 SCC 288 ). 28.Service rules also usually provide for payment of salary at a reduced rate during the period of suspension. (See: Fundamental Rule 53.) This constitutes the "subsistence allowance". If there is no provision in the rules applicable to a particular class of service for payment of salary at a reduced rate, the employer would be liable to pay full salary even during the period of suspension." "31.On joining government service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Government. The Government, only because it has the power to appoint does not become the master of the body and soul of the employee. The Government, only because it has the power to appoint does not become the master of the body and soul of the employee. The Government by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the Government or any other employer, like instrumentalities of the Government or statutory or autonomous corporations, etc., is regulated by the terms of contract of service or service rules made by the Central or the State Government under the proviso to Article 309 of the Constitution or other statutory rules including certified standing orders. 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 vs. Chandrabhan Tale (1983) 3 SCC 387 struck down a service rule which provided for payment of a nominal amount of rupee one as subsistence allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki v. Presiding Officer (1986) 3 SCC 131 and it was held in that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non-payment of subsistence allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated. For this purpose, reliance was also placed on an earlier decision in Ghanshyam Das Shrivastava v. State of M.P. (1973) 1 SCC 656 ." 8. In the present case, it has been contended by the counsel for the respondent that since there is no provision for payment of any subsistence allowance, there is no liability of the employer to pay any allowance to the petitioner. We do not think, such a contention can at all be countenanced. In the present case, it has been contended by the counsel for the respondent that since there is no provision for payment of any subsistence allowance, there is no liability of the employer to pay any allowance to the petitioner. We do not think, such a contention can at all be countenanced. The two Supreme Court decisions already cited clearly indicate that if there is no provision for payment of subsistence allowance at a reduced rate, the employee would be entitled to full allowance even though it is the inherent right of the employer to place an employee under suspension. 9. It is now universally recognised rule of law, that even though the employer has inherent right to suspend an employee, such employee, during the period of suspension, must be paid subsistence allowance, so that the employee can survive during the period of continuance of departmental proceeding. 10. Since in many decisions non-payment of subsistence has been considered as sufficient ground for vitiating the ultimate order passed in the departmental proceedings, it is, in the interest of employer to pay subsistence allowance to the employee before conclusion of the departmental proceedings, lest the ultimate order in the disciplinary proceedings may become vitiated. 11. In many of the decisions of the Supreme Court, the payment of subsistence allowance itself is considered as an incidence of right to life as reflected in Article 21 of the Constitution of India. 12. In view of the aforesaid clear enunciation of law in several Supreme Court decisions, the contention raised by the respondent that no subsistence allowance is payable under any provision of Act or Rules cannot be accepted. Since the petitioner himself had earlier claimed payment of subsistence allowance at the rate of 50%, we only direct payment of subsistence allowance at the rate of 50% but such allowance is obviously payable from the date of suspension. The arrear amount payable till the end of April, 2005 should be paid within a period of two months. The amount payable from the month of May, 2005 onwards should be paid by 10th of each succeeding month. 13. The writ petition and the writ appeal are allowed to the extent indicated. No costs. Connected WAMP (MD) No.90 of 2005 is closed.