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CASE NO.: Appeal (civil)  587 of 2005

PETITIONER: State Government of M.P. & Ors.

RESPONDENT: Shankarlal

DATE OF JUDGMENT: 13/12/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

S.B. Sinha, J.

1.      Respondent was appointed as a Lower Division Clerk in the Public  Works Department on 25.9.1971.  He was promoted as Upper Division  Clerk on 1.1.1979.   2.      A departmental proceeding was initiated against him.  He was placed  under suspension by an order dated 4.9.1982.  In the said order of  suspension, it was clearly stipulated that subsistence allowance would be  paid to him in terms of Rule 53 of the Fundamental Rules.  On or about  19.6.1982, he was transferred from Katni to Barhi.  He did not join at Barhi  after the order of  suspension was passed.  It appears that a communication  was issued to him on 5.10.1983 asking him to collect the subsistence  allowance stating : \023You are suspended by the Superintending  Engineer PWD (B&R) Jabalpur Circle, Jabalpur  vide order No.1164/E-11-19 of 74 dated 4.9.82 and  suspension order was sent to you, but you have  refused to take it. (2)     Charge sheet was issued by SEJC vide  No.2067/E-11-19 of 74 dated 16.10.82, and sent  through peon and 2 sub-Engineer of this Division,  but you have refused to take it. (3)     Executive Engineer, PWD (E/M) Dn.  Jabalpur Enquiry officer of your D.E. case have  served the notice for facing the DE and attending  their office, but you have refused to take it.         Please arrange to take the above letters from  their officer and produced to the undersigned, so  that further action, for sanction of suspension  allowance and other dues, can be taken by this  officer.         Please also explain for your not joining in  Barhi Sub Division with Head Quarters at Barhi  after suspension & why your absence from Barhi  should not be considered as willful absence from  Head quarters and action taken accordingly.\024

3.      For a few days, namely, on 2.11.1983, 22.11.1983, 9.12.1983 and  20.1.1984, he took part in the departmental proceedings. On those days,  some witnesses on behalf of the department were examined and cross- examined.  But on 24.2.1984, he absented himself.  A telegram was sent to  him asking him to submit his list of witnesses and defence on 12.3.1984.  He  did not comply therewith.  He also did not take part in the departmental

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proceedings on 29.3.1984.  Another chance was given to him  to appear  before the enquiry officer on 19.4.1984 but even on the said date he was not  present.  He although was present on 5.5.1984, but did not take part in the  hearing in the said proceeding stating that he had filed an appeal before this  Court.         We may place on record that neither any number has been put in the  said purported S.L.P. nor the same was registered, although according to the  respondent, who had appeared in person before us, the said SLP was still  pending.   4.      On subsequent dates, he absented himself and, thus, did not take part  in the enquiry proceedings.  Out of 18 dates fixed for hearing, the respondent  was present only on five days.  In the aforementioned situation, an ex parte  departmental proceeding was held wherein he was found guilty of the  charges levelled against him.  We may also place on record that he collected  his subsistence allowance for the period 4.9.1982 to 20.9.1982 in January  1985 and thereafter payment till September 1984 was made in February  1987.  His services, however, were terminated by an order dated 28.5.1985.   The amount of subsistence allowance of the respondent was raised from  50% to 75% on 14.6.1985.   5.      He preferred an appeal thereagainst which was dismissed by the Chief  Engineer being the appellate authority on 15.11.1999.   6.      An original application was filed by him before the State  Administrative Tribunal wherein, inter alia, a question in regard to non- payment of subsistence allowance was raised.  The Tribunal in its order  opined : \023Therefore, the applicant himself is responsible for  delayed payment of the subsistence allowance, not  the respondents.\024

7.      Other contentions raised by him before the Tribunal were also not  accepted.  The Tribunal held that  the conclusion of the enquiry officer being  based on evidence produced in the departmental enquiry, no case has been  made out for interference with the order of the Disciplinary Authority.  The  original application was, therefore, dismissed.   8.      On a writ petition preferred by the appellant thereagainst before the  High Court of judicature at Madhya Pradesh at Jabalpur which was marked  as Writ Petition No.1497 of 2002, a Division Bench of the High Court,  however, held that non-payment of subsistence allowance amounted to  violation of principles of natural justice, stating : \023The Tribunal dismissed the application on the  ground that the Tribunal or Court are not the  appellate forum to review the punishment.   However, this fact cannot be marginalized and  blinked away because it goes to the root of the  matter and it has nexus with the principles of  natural justice, that unless and until subsistence  allowance is paid to the delinquent employee in  proper time, how he could take proper steps in  defending his case in the departmental enquiry.  In  the present case, the period during which the  subsistence allowance was not paid was quite long  which is 4.9.1982 to 13.11.1984. On the basis of the aforesaid premised reasons, we  set aside the order passed by the Tribunal as well  as the order terminating the services of the  petitioner passed by the authority.  The petitioner  is hereby directed to be reinstated.  However,  looking to the entire facts and surrounding  circumstances, we do not think it proper to award  any back wages.\024

9.      Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the  State, in support of this appeal would submit that the respondent having not

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shown any prejudice in regard to non-payment of the subsistence allowance,  the High Court committed a serious error in passing the impugned judgment.  10.     Respondent who appeared in person, on the other hand, contended  that non-payment of subsistence allowance violates the right to life of a  person as contained in Article 21 of the Constitution of India and in that  view of the matter, it was obligatory on the part of the appellant herein to  pay the said allowance.   11.     Rule 53 of the Madhya Pradesh Fundamental Rules provides that  subsistence allowance should be paid to an employee who has been placed  under suspension.  Payment of inadequate quantum of subsistence allowance  has been adversely commented by this Court [See O.P. Gupta v. Union of  India & Ors. [AIR 1987 SC 2257].   12.     It is, thus, not in dispute that all facilities for receipt of payment of  subsistence allowance must be given to the delinquent officer. 13.     An almost identical question in regard to payment of subsistence  allowance albeit in a different fact situation came up before this Court in  Jagdamba Prasad Shukla v. State of U.P. & Ors. [(2000) 7 SCC 90] wherein  it was opined : \0236. It is evident from the record that the High  Court is not right in observing that the ground  sought to be urged was not taken in the claim  petition or in the writ petition. In fact, the High  Court in the latter part of the judgment observes  that :

\023for the first time, the petitioner has taken  the ground in this writ petition that he could  not attend the departmental proceedings due  to financial crunch as he was not paid his  subsistence allowance\024.  

A perusal of the record shows that the contention  urged before the High Court and again before us,  was also raised before the U.P. Public Service  Tribunal and even earlier before the authorities.  The U.P. Public Service Tribunal considered it and  on the facts of the case, the Tribunal held that :  

\023Therefore, those rulings where person was  unable to attend the enquiry for non- payment of subsistence allowance, resulting  in inquiry being vitiated will not be  applicable.\024  

Apart from it, in reply dated 22-1-1979 sent to the  show-cause notice, the appellant specifically stated  that he has not been paid his pay and suspension  allowance which cannot be withheld and as such  how could he be expected to reach Gorakhpur or  elsewhere due to shortage of funds. He further  stated that :

\023the applicant has requested a number of  times for drawing his pay and suspension  allowance, but the same could not be drawn  and sent to the applicant which was a serious  handicap to appear anywhere even if he so  preferred during illness and even against the  recommendations of his medical attendant\024.  

The request of the appellant for payment of  subsistence allowance is also contained in his letter  dated 31-3-1978 sent to the Superintendent of  Police, Railways, Gorakhpur Section, Gorakhpur.  The said letter also contains the address of the

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appellant. The address of the appellant is in fact  contained on various communications sent by him  to the respondents. It is curious that the  respondents could serve all other communications  including the show-cause notice to the appellant  but insofar as the payment of subsistence  allowance is concerned, the plea taken is that the  appellant did not intimate his address and,  therefore, the amount could not be sent. Thus, it is  evident that despite repeated requests, the  subsistence allowance was not paid to the  appellant from the date of suspension till removal.  It is also evident that the appellant had expressed  difficulty in reaching the place of inquiry due to  shortage of funds.  8. The payment of subsistence allowance, in  accordance with the Rules, to an employee under  suspension is not a bounty. It is a right. An  employee is entitled to be paid the subsistence  allowance. No justifiable ground has been made  out for non-payment of the subsistence allowance  all through the period of suspension i.e. from  suspension till removal. One of the reasons for not  appearing in inquiry as intimated to the authorities  was the financial crunch on account of non- payment of subsistence allowance and the other  was the illness of the appellant. The appellant in  reply to the show-cause notice stated that even if  he was to appear in an inquiry against medical  advice, he was unable to appear for want of funds  on account of non-payment of subsistence  allowance. It is a clear case of breach of principles  of natural justice on account of the denial of  reasonable opportunity to the appellant to defend  himself in the departmental enquiry. Thus, the  departmental enquiry and the consequent order of  removal from service are quashed.\024

14.     We may, however, notice that in Indra Bhanu Gaur v. Committee,  Management of M.M. Degree College & Ors. [(2004) 1 SCC 281], a Bench  of this Court opined that when an opportunity had been granted to the  delinquent officer to take the subsistence allowance, it must be shown that  because of non-payment thereof, he was not in a position to participate in the  proceedings or that any other prejudice in effectively defending the  proceedings was caused to him. 15.     Yet again, in U.P. State Textile Corpn. Ltd. v. P.C. Chaturvedi,(2005)  8 SCC 211, it was held : \023Rule 41 provides that the subsistence allowance is  payable only when the employee, if required,  presents himself every day at the place of work.  Obviously, for establishing that the employee had  presented himself at the place of work, the  authorities had clearly stipulated a condition that  the attendance register was to be signed. No  explanation was offered by Respondent 1  employee as to why he did not sign the register. It  cannot be lightly brushed aside as technical and/or  inconsequential. As admittedly, Respondent 1  employee had not signed the attendance register  even though specifically required in the order of  suspension, the High Court was not justified in  coming to a conclusion that the non-signing was  not consequential or a bona fide lapse. It is also to  be noted that at various points of time the  employer informed Respondent 1 employee about

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the consequences of his not signing the attendance  register as stipulated in the order of suspension.\024

16.     The High Court, in our opinion, committed a serious error in holding  that the question of prejudice is irrelevant in so far as it misread and  misinterpreted Jagdamba Prasad Shukla (supra).  No law in absolute terms in  this connection was laid down therein.  The relief was granted to the  appellant having regard to the fact situation obtaining therein.  It was found  as of fact that no subsistence allowance, had been given.  It was not  established that communication in relation to subsistence allowance was, in  fact, served upon the appellant therein and despite repeated requests,  subsistence allowance was not paid.  The fact that the Court therein opined  that no justifiable ground has been made for non-payment of the subsistence  allowance all through the period of suspension till removal, may, itself be a  ground for arriving at the conclusion that the delinquent officer was  suffering from financial crunch on account thereof as also his illness. 17.     The High Court, therefore, in our opinion, was required to arrive at a  correct finding of fact so as to enable it to pose unto itself the right question   for arriving at a right decision. 18.     Respondent, indisputably, has been found guilty of commission of  misconduct.  He, however, rightly or wrongly carried an impression that the  writ petition filed by him before this Court presumably by sending a letter to  the Chief Justice has been entertained.  But, evidently, neither no such letter  was received nor the same had been entertained by this Court.         A finding of fact has been arrived at by the Tribunal that the  respondent himself was to thank himself for non-receipt of subsistence  allowance.   It was held that the appellant had taken all possible steps for  disbursement of subsistence allowance.  19.     We, therefore, are of the opinion that in the peculiar facts and  circumstances of the case, interest of justice shall be subserved if the  impugned judgment is set aside and the matter is remitted to the High Court  for consideration thereof afresh.  The High Court may look into the records  of the case so as to enable it to arrive at a decision whether non-payment of  subsistence allowance caused any prejudice to the respondent  in the event it  intends to interfere with the finding of fact arrived at by the Tribunal that the  respondent himself was responsible therefor.   20.     However, we direct that in the peculiar facts and circumstances of this  case, the State should pay a sum of Rs.50,000/- (Rupees fifty thousand only)  to the respondent by way of litigation costs.  The State shall also place  before the High Court all relevant records.  We would request the High  Court to consider the desirability of disposing of the matter expeditiously.  21.     The appeal is allowed to the aforesaid extent and with the aforesaid  directions and observations.