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2017 DIGILAW 630 (JK)

Waseem Raja v. State

2017-08-14

B.S.WALIA

body2017
JUDGMENT : 1. Petitioner, who is working as Accounts Manager under National Health Mission Scheme in Sub-District Hospital Banihal, was suspended vide order No.DCR/PS/16/398-402 dated 12.08.2016 on account of registration of FIR No.101/2016 dated 29.07.2016 under Sections 147, 148, 149, 120-B & 121-A RPC. 2. Learned counsel contends that preliminary enquiry as well as regular departmental enquiry has already been conducted in the matter and the petitioner has been exonerated by the Enquiry Officer. The matter has been forwarded to the Disciplinary Authority but no decision has been taken in the matter till date. In the meantime, the petitioner continuous to be under suspension and has not been paid any amount on account of subsistence allowance. 3. Learned counsel further contends that continuation of the suspension of the petitioner without payment of subsistence allowance, that too, in violation of Rule-108(A) of the CSR, 1956, is absolutely arbitrary. Rule-108(A) of CSR as referred to above is reproduced hereunder:- “108(A). Subsistence allowance (i) A subsistence allowance at an amount equal to the half pay or half presumptive pay [half Dearness Pay], as the case may be, and in addition half Dearness Allowance. Rule-108(A) of CSR as referred to above is reproduced hereunder:- “108(A). Subsistence allowance (i) A subsistence allowance at an amount equal to the half pay or half presumptive pay [half Dearness Pay], as the case may be, and in addition half Dearness Allowance. [Note.-Dearness pay shall not count for determining of any allowance for which no specific order has been issued]: Provided that where the period for 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: (a) The amount of subsistence allowance may be increased by a suitable amount; not exceeding 50 per cent 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 for reasons, to be recorded in writing, not directly attributable to the Government servant; (b) The amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50 per cent 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 the reasons, to be recorded in writing directly attributable to the Government servant; (c) 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 sub-clauses (a) and (b) above. Note 1. – The rate of Dearness Allowance on subsistence allowance shall be calculated at the increased/reduced rates of Dearness Allowance which may be in force from time to time during the period of suspension of a Government Servant. Note 2. – Second or Subsequent Review.-A second or subsequent review can be made at any time at the discretion of the competent authority. It is permissible to reduce the amount of subsistence allowance once increased on the basis of the first review up to fifty per cent of the amount of the subsistence allowance initially granted, if the period of suspension has been prolonged for reasons directly attributable to the Government servant i.e. by his adopting dilatory tactics. It is permissible to reduce the amount of subsistence allowance once increased on the basis of the first review up to fifty per cent of the amount of the subsistence allowance initially granted, if the period of suspension has been prolonged for reasons directly attributable to the Government servant i.e. by his adopting dilatory tactics. Similarly, in a case where the amount of subsistence allowance has been reduced after the first review, the same can be increased up to fifty per cent of the amount initially granted if the period of suspension has been prolonged for reasons not directly attributable to the Government servant and the Government servant has given up dilatory tactics. (ii) Any other compensatory allowances, admissible from time to time on the basis of a pay, of which the Government servant was in receipt on the date of suspension. Provided that the Government servant shall not be entitled to the compensatory allowances unless the said authority is satisfied that the Government servant continues to meet the expenditure for which they are granted. (iii) No payment under sub-rule (i) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation. Note 1. – 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. Note 2. – Subsistence allowance granted under this rule is not to be treated as an addition to salary that is to say in case a suspended officer is reinstated as on and the period of suspension is treated (a) duty, or (b) leave whatever kind due, the total subsistence allowance is adjustable against pay or the total amount of leave allowance allowed for the suspension period, as the case may be. Government Instructions No.1 – Doubts have been expressed whether a Government servant placed under suspension should be required to attend office for discharge of his normal duties during the period of suspension. Government Instructions No.1 – Doubts have been expressed whether a Government servant placed under suspension should be required to attend office for discharge of his normal duties during the period of suspension. It is hereby clarified, that a Government servant who is placed under suspension shall cease to discharge his official duties and functions or avail any privilege which may be enjoyed by him in his official capacity, during the period of suspension and shall for that period remain attached to the place of his earlier posting or some other place as may be directed by the competent authority. Government Instructions No.2 – There may be no objection to allow a Government servant who is under suspension to appear during the period of suspension in any departmental examination, if he so requests for it; Provided he is otherwise eligible for appearing in the examination. The period spent by him on the departmental examination shall not be treated as period spent on duty. Provisions of Article 14-B shall not be attractable in such cases.” 4. Learned counsel contends that the action of the respondents in not paying him subsistence allowance is in gross violation of the rules as referred to above as well as the law laid down by the Hon’ble Supreme Court in 1983 SCC (3) 387 ‘State of Maharashtra Vs. Chandrabhan Tale’. 5. Learned counsel contends that the petitioner would be satisfied if the writ petition is disposed of by directing respondent Nos.3&4 i.e., competent authorities to take a decision in respect of the claim for payment of subsistence allowance, review of suspension and also to conclude the disciplinary proceedings within a stipulated period of time in the light of the enquiry reports dated 08.12.2016 and 08.04.2017. 6. Notice. Mr. H.A. Siddiqui, learned Sr. AAG, accepts notice on behalf of the respondents and states that the writ petition can be disposed of by granting liberty to respondent Nos.3&4 to take a decision with regard to payment of subsistence allowance to the petitioner, to review his suspension as per rules applicable as also to conclude the disciplinary proceedings initiated against the petitioner within some time to be granted by this Court. 7. I have heard learned counsel for the parties and am of the considered view that in view of Rule-108(A) of the CSR 1956, the petitioner would be entitled to subsistence allowance during the period of his suspension. 7. I have heard learned counsel for the parties and am of the considered view that in view of Rule-108(A) of the CSR 1956, the petitioner would be entitled to subsistence allowance during the period of his suspension. Non-payment of the subsistence allowance is legally unsustainable. 8. Accordingly, with the consent of learned counsel for the parties, the writ petition is taken on board and is disposed of by directing respondent Nos.3&4 to consider the claim of the petitioner for payment of subsistence allowance in accordance with Rule-108(A) of the CSR and to make payment of the amount as the petitioner is found entitled to in accordance with the rules applicable. Respondents are also directed to take a final decision with regard to the enquiry reports as have been submitted by the Enquiry Officer and further to decide the prayer of the petitioner that continued suspension despite the petitioner having been exonerated and not having been paid subsistence allowance is legally unsustainable. Needful be done in accordance with the rules and regulations applicable as expeditiously as possible preferably within a period of six weeks from the date certified copy of this order is submitted by the petitioner. With the aforementioned directions, writ petition alongwith connected MP stands disposed of.