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2010 DIGILAW 897 (PNJ)

Om Prabha v. State Of Haryana

2010-02-17

PERMOD KOHLI

body2010
Judgment Permod Kohli, J. 1 Aggrieved of non-payment of the subsistence allowance after her suspension, the petitioner has filed this petition seeking direction for payment of the subsistence allowance during the period of suspension. 2 Brief resume of the facts is that while working as Taxation Inspector in the office of respondent No. 3, the petitioner claims to have proceed on leave in the month of April 2006 and thereafter applied for sanction of leave. The petitioner was placed under suspension vide order dated 11.6.2007, conveyed to the petitioner vide communication dated 17.12.2007, Annexure P-2. The petitioner made representations for payment of the subsistence allowance, copies of some of the representations are placed on the record as Annexure P-3 and P-4/1. It is alleged that despite representations, no subsistence allowance has been paid to the petitioner. It is stated that on account of non-payment of the subsistence allowance, the petitioner at the verge of starvation. 3 In the reply filed, the respondents admitted the non-payment of the subsistence allowance. It is admitted case of the respondents that petitioner was placed under suspension for absence from duty w.e.f. 1.4.2006, vide order dated 11.6.2007. It is further stated that whole placing the petitioner under suspension, her Head quarter was fixed at the office of Deputy Excise and Taxation Commissioner (ST), Bhiwani and she was directed to join/report at the said Head quarter. The petitioner never reported to the Head quarter. Later on, the petitioner was reinstructed vide order dated 20.8.2009 and posted at the office of Deputy Excise and Taxation Commissioner (ST), Punchklula. it was only on her reinstatement that the petitioner joined on 24.8.2009. It is further stated that petitioner though remained absent from duty w.e.f. 1.4.2006, however, salary, upto August 2006, was deposited in her account No. 10105887192. In respect to the non-payment of the subsistence allowance, it is admitted that no subsistence allowance, whatsoever, has been paid to the petitioner on account of her non-joining at the Head quarter and thus, she is not entitled to any subsistence allowance. The respondents have also stated that the husband of the petitioner-Kapoor Singh Bhankhar, is a gazetted officer, posted as Executive Engineer in the Pollution Board, Haryana. 4 I have heard learned counsel for the parties. The respondents have also stated that the husband of the petitioner-Kapoor Singh Bhankhar, is a gazetted officer, posted as Executive Engineer in the Pollution Board, Haryana. 4 I have heard learned counsel for the parties. 5 In the suspension order dated 11.6.2007, following condition was incorporated regarding the payment of subsistence allowance :- "During the first six months of suspension, she will be entitled to subsistence allowance of an amount equal to leave salary and the dearness allowance and other allowance which she would have drawn, if she had been on leave, on half average pay or half pay. In case, the period of suspension exceed six months the rate of subsistence allowance payable to her will be reconsidered. The payment of the subsistence allowance is subject to the condition that she is not engaged in any other employment, business, profession or vocation. Her Head quarter during the period of suspension shall be in the O/o Dy. Excise and Taxation Commissioner, Bhiwani and she shall remain present in the O/o Dy. Excise and Taxation Commissioner (ST), Bhiwani. She will not be entrusted with any official work or allowed to interfere with it in any way". 6 The petitioner has stated in para 5 of the writ petition that she was not engaged in any employment, business, profession or vocation during the period of suspension. An affidavit in this regard was also submitted by the petitioner to the respondents. Subsistence allowance of a suspended employee is payable under Rule 7.2 of SCR Vol. I Part 1, which reads as under :- "7.2 (1) Government employee under suspension shall be entitled to the following payments, namely :- In the case of Warrant Officer in civil employ who is liable to revert to military duty, the pay and allowance to which have been entitled had he been suspended while in military employment. I Part 1, which reads as under :- "7.2 (1) Government employee under suspension shall be entitled to the following payments, namely :- In the case of Warrant Officer in civil employ who is liable to revert to military duty, the pay and allowance to which have been entitled had he been suspended while in military employment. (i) In the case of any other government employee - (a) a subsistence allowance at an amount equal to the leave salary which have drawn if he had been on leave on half pay, and in addition dearness allowance, if admissible, on the basis of such leave salary : Provided that where the period of suspension exceeds six months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first six months as follows :- (i) the amount of subsistence allowance may be increased by a suitable amount not exceeding 50% of the subsistence allowance admissible during the period of first six months, if, in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the Government employee ; (ii) the amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50% of the subsistence allowance admissible during the period of the first six months, if, in the opinion of the said authority, the period of suspension has been prolonged due to reasons to be recorded in writing directly attributable to the Government employee; (iii) the rate of dearness allowance will be based on the increased or as the case may be, the decreased amount of subsistence allowance admissible under clauses (i) and (ii) above; (b) any other compensatory allowances admissible from time to time on the basis of per annum of which the Government employee was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the drawl of such allowance. (2) No payment under sub-rule (1) shall be made unless the Government employee furnishes a certificate and the authority which made or is deemed to have made the order of suspension is satisfied that he is not engaged in any other employment, business, profession or vocation : Provided that in the case of a Government employed dismisses, removed or compulsorily retired from service, who suspension from the date of such dismissal or removal or compulsory retirement and who fails to produce such a certificate of any placed or to continue to be under suspensions, he shall entitled to the subsistence allowance and other allowances equal to the amount by which his earnings during such period or periods as the case may be falls short of the amount of subsistence allowance and other allowances that would otherwise admissible to him are equal to or less than the amount earned by him nothing in proviso shall apply to him". 7 Payment of subsistence allowance is not only a statutory right of a government employee but also an obligation of the employee. The expression `subsistence allowance has been defined by the Honble Supreme Court in O.P. Gupta v. Union of India, 1987 (4) SCC 340 :- "An order of suspension of a government servant does not put an end to his service under the government. He continues to be a number of the service in spite of the order of suspension. The real effect of the order of suspension as explained by this Court in Khem Chand v. Union of India is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance - generally called subsistence allowance - Which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not suspended. 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 page 2171 is "to remain alive as on food; to continue to exist". 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 page 2171 is "to remain alive as on food; to continue to exist". "Subsistence" means - means of supporting life, especially a minimum livelihood." 8 It is equally now, a settled preposition of law that the suspension is not a punishment particularly when it is not prescribed as one of the punishments under the rules. the suspension only denotes keeping in abeyance the contract of employment. The relationship between the employer and employee do not terminate. A suspended employee cannot be asked to perform duties. Even in the suspension order itself, it is specifically stipulated that she will not be entrusted any official work or allowed to interfere with it in any way. The intention of the employer is, thus, clear not to engage the suspended employee for any official duty as in that eventuality the employee would be entitled to full pay. The employer has an undisputed right to place an employee under suspension but at the same time, the employer has an obligation to pay the subsistence allowance, accordance with the service rules, to the employee, for his sustenance, which is less than the salary payable to such employee as held by the Honble Supreme Court in `O.P. Gupta v. Union of India (supra). The right of the suspended employee to receive subsistence allowance has been recognized by the Rule 7.2. The nature of such right has been considered by the Honble Supreme Court in "Capt. M. Paulanthony v. Bharat Gold Mines Ltd. and another, 1999(2) S.C.T. 660 : 1999 SCC 679, wherein following observations have been made :- "The order of suspension does not put an end to an employees service and he continues to be a member of the service though he is permitted to work and is paid only subsistence allowance which is less than his salary. 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. (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. 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 show-poisoning as the employee, if not permitted of subsistence allowance, would gradually starve himself to death". 9 From the ratio of the above judgment, it is evident that the right of a suspended employee to receive subsistence allowance is not merely a statutory right but it has varied connotations and even can be expanded to be recognized as a constitutional right. Denial of subsistence allowance amounts to gross violation of the statutory and constitutional right of an employee. In the instant case, the only ground to deny the subsistence allowance is non-joining at the headquarter, fixed in the order of suspension. Suspension order itself indicate that the petitioner is not required to perform any duty and thus, the non-joining by an employee has no relevance regarding the payment of subsistence allowance. The only safeguard is that the suspended employee should not engage himself for any alternative job, business or vocation, for which the employee is required to file an affidavit. The petitioner has filed an affidavit in this regard. It is not the case of the respondent that during the period of suspension the petitioner was gainfully engaged somewhere. Under such circumstances, the act of the respondent to deny subsistence allowance is totally uncalled for and is unwarranted. This petition, accordingly, succeeds. Respondent are directed to pay the subsistence allowance during the period of suspension, in accordance with Rule 7.2, alongwith interest @ 6% P.A. within three months.