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2010 DIGILAW 616 (GAU)

Haradhan Das v. State of Tripura

2010-08-19

UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. The instant writ petition under Article 226 of the Constitution of India is filed by the Petitioner Sri Haradhan Das who is an employee of the Government of Tripura under the Public Works Department and at present on deputation in the office of the Respondent No. 3, the Deputy General Manager, Electrical Division No. XI, Rabindranagar, Sonamura, West Tripura, for a direction to the Respondents to pay the subsistence allowance with arrear, as the Respondents are not paying the subsistence allowance since December 2009. 2. Heard Mr. S.M. Chakraborty, learned senior counsel assisted by Ms. P. Chakraborty, learned Counsel appearing for the Petitioner as well as Mr. G.S. Das, learned Counsel appearing for the Respondent No. 3. Also heard Mr. B. Dutta, learned Counsel appearing for the Respondent Nos. 1 and 2. 3. The facts of the case needed to be discussed for disposal of the instant writ petition are as follows: The Petitioner while working in the post of Head Clerk under the Respondent No. 2, the Chief Engineer, Public Works Department (R&B), Government of Tripura, was sent on deputation under the Respondent Nos. 3 and on 4.6.2009, the Petitioner was arrested in connection with Amtali P.S. Case No. 39 of 2009 under Section 376, IPC and thereafter, he remained in custody for a period exceeding 48 hours. As a result, the Petitioner was placed under suspension vide order No. F.12(6)-PWD(E-II)/2009 dated 26.6.2009 following the provisions of Clause (a) of Sub-rule (2) of Rule 10 of the CCS (CC&A) Rules, 1965 with effect from 4.6.2009. In the order of suspension (Annexure 1 to the writ petition), it was specifically mentioned that during the period of suspension, the Petitioner would be entitled to receive the subsistence allowance as per normal rules from the Respondent No. 3 and accordingly he received the subsistence allowance up to November 2009. But thereafter the Respondent No. 3 stopped payment of subsistence allowance to the Petitioner on a flimsy ground that the Petitioner left the headquarter without prior permission of the Respondent No. 3. The Petitioner made a representation before the Respondent No. 2 on 22.2.2010 to release his subsistence allowance, but even after receipt of the aforesaid representation, the Respondent No. 2 did not respond, far to release the subsistence allowance of the Petitioner. The Petitioner made a representation before the Respondent No. 2 on 22.2.2010 to release his subsistence allowance, but even after receipt of the aforesaid representation, the Respondent No. 2 did not respond, far to release the subsistence allowance of the Petitioner. Subsequently, the Respondent No. 3 by a letter dated 12.3.2010 (Annexure 3 to the writ petition) informed the Petitioner, inter alia, "... it is observed and recorded that you are not available at your headquarter, i.e., at Rabindranagar west Tripura since November 2009 till to date without any prior intimation and permission which is a violence of the above mentioned order. This office is in darks totally regarding your whereabouts. Hence, this office will be not be responsible in case of the admissible subsistence allowances in favour of you is withheld". 4. Upon receipt of the aforesaid letter dated 12.3.2010 issued by the Respondent No. 3, the Petitioner by his letter dated 5.4.2010 (Annexure 4 to the writ petition) informed the Respondent No. 3 that he was living at Rabindranagar, i.e., his headquarter since before his suspension order and the information that he is not available at Rabindranagar is not correct. He also stated therein that even after approaching the Respondent No. 3, he is not paid the subsistence allowance. The aforesaid letter of the Petitioner was received by the office of the Respondent No. 3 on 6.4.2010, but even after receipt of the said representation of the Petitioner, the Respondent No. 3 did not take any steps for release of subsistence allowance. Hence, the Petitioner has filed the instant writ petition. 5. This Court on 15.5.2010 issued notice upon the Respondents and on receipt of the same, all the Respondents have entered their appearance through their learned Counsel. Respondent No. 3 has filed the counter-affidavit, but the Respondents 1 and 2 has not. It is stated in the counter-affidavit of the Respondent No. 3 that the Petitioner was advised not to leave his headquarter without prior permission of the authority and the Petitioner was also advised verbally to sign office Attendance Register as a proof of his stay at head quarter. But the Petitioner did not put his signature in the Attendance Register in the office of the Respondent No. 3 except on 6.4.2010 and 22.6.2010 till that date, i.e., the date of preparation of the counter. But the Petitioner did not put his signature in the Attendance Register in the office of the Respondent No. 3 except on 6.4.2010 and 22.6.2010 till that date, i.e., the date of preparation of the counter. It is further stated that the Petitioner was also advised over telephone and through special messenger at his residence at Agartala to stay at Head quarter and also put his signature in the Attendance Registrar, but the Petitioner remained absent in office disobeying the said advice of the authority. Hence, the subsistence allowance could not be paid to the Petitioner and the payment of subsistence allowance to the Petitioner was also stopped for disobeying the direction of the authority. 6. Mr. Chakraborty, learned senior counsel for the Petitioner in support of the writ petition would contend that the Respondents, without any valid order stopped the payment of subsistence allowance which he is entitled to in accordance with law and before stopping the payment of subsistence allowance, the Petitioner was not given any show-cause notice. He further submits that as the order of suspension has been passed by the Respondent No. 2, the Chief Engineer, Public Works Department (R&B), being the lending authority, the Respondent No. 3, being the borrowing authority of the Petitioner has no power to stop payment of subsistence allowance of the Petitioner. The Petitioner is only on deputation under him. He finally contended that according to Rule 53 of the Fundamental Rules (FR), a Government servant under suspension is entitled to subsistence allowance and other allowance from the date and during the period of suspension and the same cannot be denied on any ground unless a Government employee is unable to/does not furnish a certificate that he is not engaged in any other employment, business, profession or vocation, during the period of suspension. He also submits that the order of suspension was issued on 26.6.2009 and till today, the Respondent authority did not go for review of the suspension order, though the Government issued a memorandum dated 19.6.1998 wherein it has been stated that the total period of suspension both in respect of investigation and disciplinary proceeding should not ordinarily exceed six months and the review of suspension is to be undertaken at the end of three months from the date of suspension and if the review could not be done within the prescribed period then the matter should be reported to the higher authority. He further contends that before coming to a conclusion by the Respondents that the Petitioner is not staying in the Headquarter, the Respondent No. 3 ought to have undertaken an enquiry which has not been done. He again submits that the contention of the Respondent No. 3 that the letter dated 12.3.2010 (Annexure 3) was served to the Petitioner in his residence at Agartala is not correct as it appears from the letter itself that the same was addressed to the Petitioner at his address at Rabindranagar, i.e., his Headquarter address and in fact, the Petitioner received the said letter at Rabindranagar. 7. Mr. Das, learned Counsel for the Respondent No. 3 while supporting the action of the Respondent No. 3 submits that an employee like the Petitioner is not entitled to get subsistence allowance when he flouted the conditions made in the suspension order. Though he admitted that without any order from the Respondent No. 1, the Respondent No. 3 stopped the subsistence allowance, he fairly submits that before coming to the conclusion that the Petitioner was not in his Headquarter at Rabindranagar, the Respondent did not go for any enquiry and it is also not the case of the Respondent No. 3 that the Petitioner was engaged in any other employment during the period of suspension. 8. At this stage, the learned Counsel for the Respondent No. 3 tried to place some documents before this Court to show that the said letter was sent to the home address of the Petitioner at Agartala, but the Petitioner did not accept the said letter at home. As a result, the said letter got returned by the staff of the Electrical Division No. 11. As a result, the said letter got returned by the staff of the Electrical Division No. 11. When this Court pointed out as to why the person who allegedly visited the house of the Petitioner, put his signature on the report only on 18.8.2010, the learned Counsel Mr. Das refused to submit those documents before this Court. 9. The Respondent Nos. 1 and 2 did not file their counter-affidavit and Mr. Dutta, learned Counsel appearing for the aforesaid Respondents submits that he wants to adopt the counter-affidavit filed by the Respondent No. 3 and argue on the basis of the said counter-affidavit. As allowed by this Court, Mr. Dutta contends that admittedly the Respondent 2 did riot pass any order stopping the payment of subsistence allowance to the Petitioner and there is also no document before the Respondent Nos. 1 and 2 that the Petitioner has engaged himself in any other employment of the Government or any other organization during the period of suspension. 10. Before boarding the vehicle of loaded thoughts of the learned Counsel, it would be proper to examine the provisions of Rule 53 of Fundamental Rules. Accordingly, the relevant portion of Rule 53 is reproduced hereunder: FR 53. (1) A Government servant under suspension or deemed to have been placed under suspension by an order of the appointing authority shall be entitled to the following payments, namely: * * * (ii) in the case of any other Government servant - (a) a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn, if he had been on leave on half average pay or on half-pay and in addition, dearness allowance, if admissible on the basis of such leave salary; (2) No payment under Sub-rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation; (3) Subsistence Allowance. - (a) Initial grant. -A Government servant under suspension is entitled to subsistence and other allowances from the date and during the period of suspension under the statutory provisions of FR 53. The subsistence allowance shall not be denied on any ground unless a Government servant is unable to/does not furnish a certificate that he is not engaged in any other employment, business, profession or vocation, during the period of suspension. 11. The subsistence allowance shall not be denied on any ground unless a Government servant is unable to/does not furnish a certificate that he is not engaged in any other employment, business, profession or vocation, during the period of suspension. 11. Upon going through the aforesaid provisions of the Fundamental Rules, this Court is of considered opinion that the provisions of subsistence allowance have been enacted only to give an opportunity to the delinquent officer so that he can maintain himself and his family during the period of suspension. Suspension itself is not a punishment as the same is done in contemplation of a disciplinary proceeding for misconduct or during the pendency of a criminal case either when it is under investigation, enquiry or trial and also when an employee is in detention or in custody in connection with a criminal charge or otherwise for a period exceeding 48 hours. 12. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., AIR 1999 SC 1416 , the Apex Court while considering the Rule 53 of the Fundamental Rules noted that "Suspension notwithstanding, nonpayment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilized and the salary is also paid to him at a reduced rare under the nick name of 'subsistence allowance', so that the employee may sustain himself'. 13. While noted the above, the Apex Court also took note of the case of O.P. Gupta v. Union of India, (1987) 4 SCC 328 wherein their lordship observed that "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". 14. In M. Paul Anthony (supra), the Apex Court also noted that "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." 15. 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." 15. Article 21 of the Constitution was enunciated by the founder of the Constitution only to protect the right to life of a citizen and not for surrendering the basic human rights of a citizen who is working under the Government. In the instant case, as the Respondent Nos. 1 and 2 did not file any counter-affidavit, though adopted the counter filed by the Respondent No. 3, this Court is not in a position to consider their case beyond the counter-affidavit of the Respondent No. 3. As it is admitted by Mr. Das, learned Counsel for the Respondent No. 3 that no enquiry was held before stopping payment of subsistence allowance to eke Petitioner and the Petitioner was also not provided any opportunity of being heard except the letter dated 12.3.2010 (Annexure 3), this Court is of considered opinion that withholding of the subsistence allowance of the Petitioner by the Respondent No. 3 is in fact violation of right to life of the Petitioner and on that count itself, the action of the authority is unreasonable and unfair. Being a court of justice and equity, it is the duty of the court to prohibit the authority from acting unreasonably and unfairly. Payment of subsistence allowance by the employer to an employee is not a bounty; it is his right under the Statute. 16. Hence it is ordered that the Respondents shall pay the subsistence allowance to the Petitioner on his furnishing a declaration that he is not engaged in any other employment, business, profession or vocation, during the period of suspension. The entire exercise of payment of the subsistence allowance including arrear the Petitioner is entitled to in accordance with law shall be completed within a period of three weeks from today. 17. With the above order, the writ petition is disposed of. No order as to costs.