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PETITIONER: CAPT.M.  PAUL ANTHONY ..

       Vs.

RESPONDENT: BHARAT GOLD MINES LTD. & ANR.

DATE OF JUDGMENT:       30/03/1999

BENCH: S. Saghir Ahmad, & V N Khare.

JUDGMENT:

S. SAGHIR  AHMAD, J.

Leave granted.

     Whether  departmental proceedings and proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously is a question which crops up perennially  in service matters and has once again arisen in this case in the following cirucmstances.

     Bharat Gold Mines Ltd.  (Respondent No.  1) is a Govt. undertaking  at  Kolar Gold Fields in Karnataka,  where  the appellant was appointed as a Security Officer on 31.10.1983. On   2nd  of  June,  1985,  a  raid  was  conducted  by  the Superintendent  of Police at the house of the appellant from where  a mining sponge gold ball weighing 4.5 grams and 1276 grams of ’gold bearing sand’ were recovered.  Thereafter, on the  same day, a First Information Report was lodged at  the Police  Station  and a criminal case was registered  against the  appellant, who was placed under suspension on 3.6.1985. The  next day, namely, on 4th of June, 1985, a  charge-sheet was  issued  proposing a regular departmental  inquiry  with regard to the recovery of the above articles from his house. On  11th of June, 1985, the appellant made a  representation to  the Disciplinary Authority denying the allegations  made against  him in the charge sheet and pleaded that the entire episode  was a concoction.  He prayed that the  departmental proceedings  initiated against him may be dropped or may, in the  alternative,  be postponed till the conclusion  of  the criminal  proceedings against him on the basis of the  First Information  Report lodged against him at the Police Station on  2.6.1985.  The representation was rejected on  19.6.1985 and  the  appellant  was   informed  that  the  disciplinary proceedings would be held against him on 1.7.1985.

     In the meantime, the appellant filed Writ Petition No. 10842 of 1985 in the Karnataka High Court for a direction to restrain   the   respondents  from   proceeding   with   the disciplinary  inquiry  till the conclusion of  the  criminal case as the appellant’s defence was likely to be prejudiced. This  Writ  Petition  was disposed of by the High  Court  on 19.8.1985  and a direction was issued to the respondents  to consider and dispose of the appellant’s appeal filed against the  order  of  suspension  but liberty  was  given  to  the

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respondents  to defer the disciplinary proceedings if it was found expedient so to do.  The respondents did not defer the departmental proceedings and continued the proceedings which the  appellant could not attend on account of his ill-health and  financial difficulties which compelled him to shift  to his home-town in Kerala.  The respondents were informed by a number  of  letters supported by medical certificates  about his  illness  with  a request for staying  the  departmental proceedings  and await the result of the criminal case.  But the  Inquiry  Officer rejected the request and recorded  his findings  on 10.5.1986 holding the appellant guilty.   These findings  were accepted by the Disciplinary Authority and by order  dated 7th June 1986, the appellant was dismissed from service.

     On  3rd  of February, 1987, judgment in  the  criminal case was pronounced and the appellant was acquitted with the categorical  findings  that  the prosecution had  failed  to establish  its case.  This judgment was communicated by  the appellant  to  the respondents on 12.2.1987 with  a  request that  he may be reinstated, but respondents, by their letter dated  3.3.1987, rejected the request on the ground that the appellant  had  already been dismissed from service  on  the completion  of the departmental inquiry which was  conducted independently  of  the  criminal case  and,  therefore,  the judgment passed by the Magistrate was of no consequence.

     The  order of dismissal passed by the respondents  was challenged  in  a departmental appeal which was rejected  by the Appellate Authority on 22.7.1987.

     It  was, at this stage, that the appellant  approached the  High Court through a Writ Petition under Article 226 of the  Constitution  challenging the validity of the order  of dismissal   on   various  grounds,    including   that   the departmental  proceedings based on the same set of facts  on which  the criminal case was launched against him, ought  to have  been stayed awaiting the result of the criminal  case. It was also pointed out that since the appellant had already been   acquitted  and  the   prosecution  case  against  the appellant  based  on  the  "raid and  recovery"  which  also constituted  the basis of the departmental proceedings,  had not  been found to be true, he was entitled to be reinstated in service.

     The Writ Petition was allowed by a Single Judge of the High   Court  on  26.9.1995  with   the  finding  that   the departmental  proceedings and the criminal case being  based on  the  same set of facts, departmental proceedings  should have  been  stayed till the result of the criminal case  and since  in  the criminal case the appellant had already  been acquitted   and   the  prosecution   case  was   not   found established,  the  respondents  could   not  legally  refuse reinstatement or the consequent back-wages to the appellant. While  directing  reinstatement of the appellant,  the  High Court   gave  liberty  to   respondents  to  initiate  fresh proceedings  against  the  appellant   after  perusing   the judgment passed in the criminal case.

     This  judgment was, however, set aside by the Division

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Bench  on  17th September, 1997 in a letters  patent  appeal filed  by  the  respondents.  It is this judgment  which  is under appeal before us.

     Learned  counsel for the appellant has contended  that the respondents having themselves launched the criminal case were  not  justified  in proceeding  with  the  departmental inquiry  which was based on the same set of facts and  ought to  have stayed those proceedings till the conclusion of the criminal case.  Since the basis of action in both the cases, namely,  the departmental proceedings and the criminal case, was  the  raid conducted by the Superintendent of Police  at the  residence  of the appellant from where a  recovery  was also  allegedly  made,  the  departmental  proceedings  were liable  to  be stayed as the facts and the evidence in  both the  proceedings  were common.  In these circumstances,  the appellant,  it is contended, was justified in requesting the respondents  to stay the departmental proceedings and on the refusal  of  the  respondents to stay the  proceedings,  the appellant  was  justified  in  not  participating  in  those proceedings  as his defence was likely to be prejudiced.  It is  also  contended that the appellant was ill and for  that reason  also the departmental proceedings ought to have been stayed  till  he  had  completely  recovered.   It  is  also submitted  that  the  appellant who had  been  placed  under suspension was not being paid the Subsistence Allowance with the  result that he fell into serious financial difficulties and  could  not undertake any journey from his home-town  in Kerala  to Kolar Gold Fields in Karnataka for  participating in  the departmental proceedings.  The Division Bench, it is contended,  was  not  justified  in  interfering  with   the judgment  passed  by the Single Judge who had found it as  a positive  fact  that  the departmental proceedings  and  the criminal  case  were based on the same set of facts and  the evidence in both the cases was common.

     Learned  counsel  for  the respondents  has,  however, contended  that the respondents were under no obligation  to stay  the  departmental proceedings and await the result  of the  criminal case as there was no legal bar in holding  the departmental proceedings simultaneously with the proceedings in  the criminal case, particularly as the level of proof in both the proceedings is different and the purpose with which the  departmental  proceedings  are conducted  is  also  not identical  with the purpose with which the criminal case  is prosecuted for an offence committed by the employee.

     This  question, as observed earlier, is of a perennial nature  and  has arisen more often than not in spite of  the judicial  pronouncements,  specially by this  Court,  having settled  the  question and provided the answer.  Still,  the problem  is raised either by the employer or by the employee in one or the other form.  In the instant case, the order of dismissal had already been passed before the decision of the criminal  case which ultimately resulted in the acquittal of the  appellant.   Whether the acquittal coupled  with  other circumstances,  specially ex-parte proceedings, of the case, will   have  the  effect  of  vitiating   the   departmental proccedings  or  the order of dismissal passed  against  the appellant, is the question which is to be considered in this appeal.

     As  we  shall presently see, there is a  consensus  of judicial  opinion amongst the High Courts whose decisions we

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do  not  intend  to  refer in this  case,  and  the  various pronouncements  of  this  Court, which  shall  be  copiously referred  to,  on the basic principle that proceedings in  a criminal  case and the departmental proceedings can  proceed simultaneously  with a little exception.  As we  understand, the  basis  for  this proposition is that proceedings  in  a criminal  case  and the departmental proceedings operate  in distinct and different jurisdictional areas.  Whereas in the departmental   proceedings,  where  a  charge  relating   to misconduct  is being investigated, the factors operating  in the  mind of the Disciplinary Authority may be many such  as enforcement  of  discipline or to investigate the  level  of integrity of the delinquent or the other staff, the standard of proof required in the those proceedings is also different than  that  required  in  a criminal  case.   While  in  the departmental  proceedings  the standard of proof is  one  of preponderance  of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts.   The little exception may be where the departmental procedings  and the criminal case are based on the same  set of  facts and the evidence in both the proceedings is common without there being a variance.

     The  first decision of this Court on the question  was rendered  in  Delhi Cloth & General Mills Ltd.  vs.   Kushal Bhan 1960 (3) SCR 227 = AIR 1960 SC 806 = 1960 LLJ 520 (SC), in which it was observed as under :

         "It  is  true  that   very  often  employers  stay           enquiries  pending  the decision of  the  criminal           trial  courts and that is fair;  but we cannot say           that principles of natural justice require that an           employer  must  wait for the decision at least  of           the  criminal  trial  court before  taking  action           against an employee.  In Bimal Kanta Mukherjee vs.           M/s  Newsman’s  Printing Works 1956 LAC 188,  this           was  the  view  taken  by  the  Labour   Appellate           Tribunal.   We may, however, add that if the  case           is of a grave nature or involves questions of fact           or  law,  which  are  not   simple,  it  would  be           advisable  for the employer to await the  decision           of  the  trial court, so that the defence  of  the           employee   in  the  criminal   case  may  not   be           prejudiced."

     This  was followed by Tata Oil Mills Company Ltd.  vs. Workmen  1964(7) SCR 555 = AIR 1965 SC 155, in which it was, inter alia, laid down as under :

         "There  is  yet another point which remains to  be           considered.   The  Industrial Tribunal appears  to           have   taken   the  view   that   since   criminal           proceedings had been started against Raghavan, the           domestic  enquiry should have been stayed  pending           the   final   disposal  of   the   said   criminal           proceedings.   As this Court has held in the Delhi           Cloth and General Mills Ltd.  vs.  Kushal Bhan, it           is desirable that if the incident giving rise to a           charge  framed  against  a workman in  a  domestic           enquiry  is  being tried in a criminal court,  the           employer  should stay the domestic enquiry pending           the final disposal of the criminal case."

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     The question cropped up again with a new angle in Jang Bahadur  Singh vs.  Baij Nath Tiwari 1969 (1) SCR 134 =  AIR 1969  SC  30,  as  it   was  contended  that  initiation  of disciplinary  proceedings during the pendency of a  criminal case  on the same facts amounted to contempt of court.  This plea was rejected and the Court observed as under:

         "The  issue  in  the disciplinary  proceedings  is           whether  the employee is guilty of the charges  on           which  it is proposed to take action against  him.           The  same issue may arise for decision in a  civil           or  criminal  proceeding pending in a court.   But           the  pendency of the court proceeding does not bar           the  taking of disciplinary action.  The power  of           taking  such action is vested in the  disciplinary           authority.   The  civil or criminal court  has  no           such  power.   The initiation and continuation  of           disciplinary  proceedings  in  good faith  is  not           calculated  to  obstruct  or  interfere  with  the           course of justice in the pending court proceeding.           The  employee  is  free to move the court  for  an           order   restraining   the   continuance   of   the           disciplinary  proceedings.   If he obtains a  stay           order,  a  wilful violation of the order would  of           course  amount  to  contempt  of  court.   In  the           absence of a stay order the disciplinary authority           is free to exercise its lawful powers."

     These  decisions indicate that though it would not  be wrong  in conducting two parallel proceedings, one by way of disciplinary  action  and the other in the  criminal  court, still  it would be desirable to stay the domestic inquiry if the  incident  giving  rise to a charge framed  against  the employee  in a domestic inquiry is being tried in a criminal court.   The  case  law  was   reviewed  by  this  Court  in Kusheshwar  Dubey  vs.  M/s Bharat Coking Coal Ltd.  &  Ors. 1988  (4)  SCC 319 = 1988 Supp.  (2) SCR 821 = AIR  1988  SC 2118 and it was laid down as under :

         "The  view  expressed in the three cases  of  this           Court  seem  to  support the position  that  while           there  could  be  no legal  bar  for  simultaneous           proceedings  being taken, yet, there may be  cases           where   it   would  be    appropriate   to   defer           disciplinary  proceedings awaiting disposal of the           criminal  case.  In the latter class of cases,  it           would  be open to the delinquent employee to  seek           such  an  order  of stay or  injunction  from  the           court.   Whether in the facts and circumstances of           particular case there should or should not be such           simultaneity of the proceedings would then receive           judicial  consideration and the court will  decide           in  the given circumstances of particular case  as           to  whether the disciplinary proceedings should be           interdicted,  pending criminal trial.  As we  have           already  stated  that it is neither  possible  nor           advisable to evolve a hard and fast, strait-jacket           formula  valid  for  all   cases  and  of  general           application  without regard to the particularities           of  the individual situation.  For the disposal of           the  present case, we do not think it necessary to           say  anything  more, particularly when we  do  not           intend  to  lay down any general  guideline."

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         The Court further observed as under :

         "In  the instant case, the criminal action and the           disciplinary  proceedings  are grounded  upon  the           same  set  of facts.  We are of the view that  the           disciplinary  proceedings should have been  stayed           and  the  High Court was not right in  interfering           with  the trial court’s order of injunction  which           had been affirmed in appeal.

     " Then came the decision in Nelson Motis vs.  Union of India & Ors.  (1992) 4 SCC 711 = 1992 Supp.(1) SCR 325 = AIR 1992  SC  1981,  which  laid   down  that  the  disciplinary proceedings can be legally continued even where the employee is  acquitted  in  a criminal case as the nature  and  proof required  in a criminal case are different from those in the departmental proceedings.  Besides, the Court found that the acts which led to the initiation of departmental proceedings were  not exactly the same which were the subject matter  of the  criminal  case.   The question was  not  considered  in detail.  The Court observed :

         "So  far  the  first point  is  concerned,  namely           whether  the  disciplinary proceedings could  have           been continued in the face of the acquittal of the           appellant  in  the criminal case, the plea has  no           substance whatsoever and does not merit a detailed           consideration.  The nature and scope of a criminal           case   are   very  different   from  those  of   a           departmental  disciplinary proceeding and an order           of  acquittal,  therefore,   cannot  conclude  the           departmental  proceedings.  Besides, the  Tribunal           has  pointed  out that the acts which led  to  the           initiation   of  the    departmenal   disciplinary           proceeding  were  not exactly the same which  were           the   subject  matter  of   the   criminal   case.

                   (Emphasis supplied)

     The  entire  case law was reviewed once again by  this Court  in State of Rajasthan vs.  B.K.  Meena & Ors.  (1996) 6  SCC 417 = AIR 1997 SC 13 = 1997 (1) LLJ 746 (SC), wherein it was laid down as under :

         "It would be evident from the above decisions that           each   of  them  starts   with  the   indisputable           proposition  that  there is no legal bar for  both           proceedings  to go on simultaneously and then  say           that   in  certain  situation,  it  may   not   be           ’desirable’,  ’advisable’  or   ’appropriate’   to           proceed  with  the  disciplinary  enquiry  when  a           criminal case is pending on identical charge.  The           staying   of  disciplinary   proceedings,  it   is           emphasised,  is  a matter to be determined  having           regard  to the facts and circumstances of a  given           case  and  that  no  hard and fast  rules  can  be           enunciated  in  that  behalf.    The  only  ground           suggested in the above decisions as constituting a           valid   ground   for   staying  the   disciplinary           proceedings  is that ’the defence of the  employee           in  the criminal case may not be prejudiced.’ This           ground  has, however, been hedged in by  providing           further  that  this may be done in cases of  grave

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         nature  involving  questions of fact and law.   In           our respectful opinion, it means that not only the           charges  must  be  grave but that  the  case  must           involve  complicated  questions of law  and  fact.           Moreover,   ’advisability’,    ’desirability’   or           ’propriety’,  as  the  case  may  be,  has  to  be           "determined in each case taking into consideration           all  the facts and circumstances of the case.  The           ground  indicated in D.C.M.  (AIR 1960 SC 806) and           Tata  Oil  Mills (AIR 1965 SC 155) is also not  an           invariable  rule.  It is only a factor which  will           go  into the scales while judging the advisability           or   desirability  of   staying  the  disciplinary           proceedings.  One of the contending considerations           is  that the disciplinary enquiry cannot be -  and           should  not  be  -  delayed  unduly.   So  far  as           criminal  cases  are concerned, it is  well  known           that  they drag on endlessly where high  officials           or  persons are involved.  They get bogged down on           one or the other ground.  They hardly ever reach a           prompt  conclusion.  That is the reality in  spite           of repeated advice and admonitions from this Court           and the High Courts.  If a criminal case is unduly           delayed that may itself be a good ground for going           ahead with the disciplinary enquiry even where the           disciplinary  proceedings  are  held  over  at  an           earlier  stage.   The interests of  administration           and  good government demand that these proceedings           are   concluded   expeditiously.    It   must   be           remembered that interests of administration demand           that  undesirable elements are thrown out and  any           charge  of misdemeanour is inquired into promptly.           The  disciplinary proceedings are meant not really           to   punish   the   guilty   but   to   keep   the           administrative  machinery unsullied by getting rid           of  bad elements.  The interest of the  delinquent           officer  also  lies in a prompt conclusion of  the           disciplinary  proceedings.  If he is not guilty of           the  charges,  his honour should be vindicated  at           the  earlist possible moment and if he is  guilty,           he should be dealt with promptly according to law.           It  is not also in the interest of  administration           that  persons  accused  of  serious   misdemeanour           should  be continued in office indefinitely, i.e.,           for  long periods awaiting the result of  criminal           proceedings.   It  is  not  in  the  interest   of           administration.   It  only serves the interest  of           the  guilty  and  dishonest.    While  it  is  not           possible to enumerate the various factors, for and           against  the stay of disciplinary proceedings,  we           found  it  necesasry  to  emphasise  some  of  the           important  considerations in view of the fact that           very  often the disciplinary proceedings are being           stayed   for   long   periods   pending   criminal           proceedings.   Stay  of  disciplinary  proceedings           cannot  be, and should not be, a matter of course.           All  the relevant factors, for and against, should           be weighed and a decision taken keeping in view of           the  various principles laid down in the decisions           referred to above."

     This  decision  has  gone  two steps  further  to  the earlier decisions by providing :

         1.    The   ’advisability’,    ’desirability’   or

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         ’propriety’    of    staying    the   departmental           proceedings  "go into the scales while judging the           advisability   or  desirability  of  staying   the           disciplinary  proceedings"  merely as one  of  the           factors which cannot be considered in isolation of           other  circumstances of the case.  But the charges           in  the  criminal case must, in any case, be of  a           grave  and  serious nature  involving  complicated           questions of fact and law.

         (2)  One of the contending considerations would be           that the disciplinary enquiry cannot -- and should           not be -- delayed unduly.  If the criminal case is           unduly  delayed, that may itself be a good  ground           for going ahead with the disciplinary enquiry even           though the disciplinary proceedings were held over           at  an  earlier  stage.  It would not  be  in  the           interests  of administration that persons  accused           of  serious  misdemeanour should be  continued  in           office   indefinitely  awaiting   the  result   of           criminal proceedings.

     In another case, namely, Depot Manager, Andhra Pradesh State  Road  Transport Corporation vs.  Mohd.  Yousuf  Miyan (1997)  2 SCC 699 = AIR 1997 SC 2232, again it was held that there  is  no  bar  to   proceed  simultaneously  with   the departmental inquiry and trial of a criminal case unless the charge  in the criminal case is of a grave nature  involving complicated questions of fact and law.

     The  conclusions  which  are  deducible  from  various decisions of this Court referred to above are :

     (i)  Departmental  proceedings  and proceedings  in  a criminal  case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

     (ii)  If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge  in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

     (iii)  Whether  the nature of a charge in  a  criminal case  is grave and whether complicated questions of fact and law  are involved in that case, will depend upon the  nature of  offence,  the  nature of the case launched  against  the employee  on  the basis of evidence and  material  collected against  him  during  investigation or as reflected  in  the charge sheet.

     (iv)  The  factors mentioned at (ii) and  (iii)  above cannot  be considered in isolation to stay the  Departmental proceedings  but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

     (v)  If  the  criminal case does not  proceed  or  its disposal   is  being  unduly   delayed,   the   departmental proceedings,  even  if  they were stayed on account  of  the pendency  of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee  is  found not guilty his honour may be  vindicated and  in case he is found guilty, administration may get  rid

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of him at the earliest.

     In  the instant case, the Superintendent of Police had raided  the  residential premises of the appellant  and  had recovered  a mining sponge gold ball weighing 4.5 grams  and 1276  grams  of ’gold bearing sand’.  It was on  this  basis that  criminal  case was launched against him.  On the  same set   of   facts,  constituting   the  raid  and   recovery, departmental proceedings were initiated against the apellant as  the "recovery" was treated to be a ’misconduct.’ On  the service  of  the  charge  sheet,  the  appellant  raised  an objection that the departmental proceedings may be stayed as the basis of these proceedings was the raid conducted at his residence  on  which basis a criminal case had already  been launched against him.  He requested that the decision of the criminal  case  may be awaited, but his request  was  turned down.   The request made a second time for that purpose also met  the same fate.  When the appellant approached the  High Court,  liberty  was  given to the respondents to  stay  the departmental  proceedings if they considered it  appropriate but  they were directed to dispose of the appellant’s appeal against  the order by which he was placed under  suspension. The order of the High Court had no effect on the respondents and   they  decided  to   continue  with  the   departmental proceedings  which could not be attended by the appellant as he  informed  the  Inquiry  Officer that he  was  ill.   His request  for adjournment of the departmental proceedings  on that ground was not acceded to and the proceedings continued ex-parte against him.  He was ultimately found guilty of the charges and was dismissed from service.

     Learned  counsel for the appellant also contended that during the period of suspension the respondents had not paid him  the Subsistence Allowance with the result that he could not  undertake  a  journey from his home-town in  Kerala  to Kolar  Gold  Fields  in  Karnataka  where  the  departmental proceedings  were  being  held.   This  plea  has  not  been accepted  by  the High Court on the ground that it  was  not raised  before  the Inquiry Officer and it was  not  pleaded before  him  that  it  was on account  of  non-  payment  of Subsistence  Allowance  that the appellant could not  go  to Kolar  Gold  Fields  for participating in  the  disciplinary proceedings.

     Before  us,  it  is  not disputed  on  behalf  of  the respondents  nor  was  it disputed by them before  the  High Court,  that  Subsistence  Allowance  was not  paid  to  the appellant  while  the  proceedings against  him  were  being conducted at the departmental level.

     To   place   an  employee   under  suspension  is   an unqualified  right of the employer.  This right is  conceded to the employer in service jurisprudence everywhere.  It has even  received  statutory  recognition under  service  rules framed by various authorities, including Govt.  of India and the  State  Governments.   (See:  for example,  Rule  10  of Central  Civil  Services (Classification, Control &  Appeal) Rules.   Even  under the General Clauses Act, this right  is conceded  to  the employer by Section 16 which, inter  alia, provides  that power to appoint includes power to suspend or dismiss.

     The  order  of  suspension does not put an end  to  an

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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.  vs.  State of Maharashtra, 1977 (2) SCR 555 = (1977) 2 SCC 288 = AIR 1977 SC 1466).

     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.

     Exercise  of  right  to  suspend an  employee  may  be justified  on  facts  of  a  particular  case.    Instances, however,  are not rare where officers have been found to  be afflicted  by  "suspension syndrome" and the employees  have been  found to be placed under suspension just for  nothing. It  is their irritability rather than the employee’s trivial lapse  which  has often resulted in suspension.   Suspension notwithstanding,  non-payment 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  demobilised and the salary is also paid to him at  a reduced rate under the nick name of ’Subsistence Allowance’, so  that  the employee may sustain himself.  This Court,  in O.P.   Gupta  vs.  Union of India & Ors.  (1987) 4  SCC  328 made  the following observations with regard to  Subsistence Allowance :

         "An  order  of suspension of a government  servant           does  not  put  an end to his  service  under  the           government.   He  continues to be a member of  the           service  in spite of the order of suspension.  The           real  effect  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   been           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 p.  2171  is           "to  remain  alive  as on food;   to  continue  to           exist".    "Subsistence"   means   --   means   of           supporting life, especially a minimum livelihood."

                         (Emphasis supplied)       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

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Allowance, would gradually starve himself to death.

     On  joining Govt.  service, a person does not mortgage or  barter away his basic rights as a human being, including his  fundamental rights, in favour of the Govt.  The  Govt., only because it has the power to appoint does not become the master  of the body and soul of the employee.  The Govt.  by providing job opportunities to its citizens only fulfils its obligations  under the Constitution, including the Directive Principles  of the 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 Govt.  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 Govt.   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.  Chanderbhan 1983(3) SCR 337 = 1983 (3) SCC 387  =  AIR  1983 SC 803 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 vs.  Presiding Officer & Anr.  (1986) 3 SCC 131 = 1986(2) SCR 1059 = AIR 1986 SC 1168 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 Dass Shrivastva vs.  State of Madhya Pradesh (1973) 1 SCC 656 = AIR 1973 SC 1183.

     The question whether the appellant was unable to go to Kolar  Gold Fields to participate in the inquiry proceedings on  account of non-payment of Subsistence Allowance may  not have  been  raised  before the Inquiry Officer, but  it  was positively  raised  before the High Court and has also  been raised  before  us.   Since  it is  not  disputed  that  the Subsistence  Allowance was not paid to the appellant  during the  pendency  of the departmental proceedings, we  have  to take  strong  notice  of  it,  particularly  as  it  is  not suggested  by  the  respondents that the appellant  had  any other source of income.

     Since  in  the  instant  case the  appellant  was  not provided  any  Subsistence  Allowance during the  period  of suspension  and the adjournment prayed for by him on account of  his illness, duly supported by medical certificates, was refused  resulting  in ex-parte proceedings against him,  we are  of the opinion that the appellant has been punished  in total  violation of the principles of natural justice and he was  literally  not  afforded any  opportunity  of  hearing. Moreover,  as pleaded by the appellant before the High Court as  also before us that on account of his penury  occasioned by  non-payment  of  Subsistence  Allowance,  he  could  not undertake  a journey to attend the disciplinary proceedings,

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the  findings  recorded  by  the  Inquiry  Officer  at  such proceedings, which were held ex-parte, stand vitiated.

     There  is yet another reason for discarding the  whole of the case of the respondents.  As pointed out earlier, the criminal  case  as  also the departmental  proceedings  were based on identical set of facts, namely, ’the raid conducted at  the appellant’s residence and recovery of  incriminating articles  therefrom.’  The findings recorded by the  Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be  proved  by Police Officers and Panch witnesses, who  had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to  the conclusion that the charges were established against the  appellant.   The  same witnesses were examined  in  the criminal  case  but  the court, on a  consideration  of  the entire  evidence, came to the conclusion that no search  was conducted  nor  was any recovery made from the residence  of the appellant.  The whole case of the prosecution was thrown out  and  the appellant was acquitted.  In  this  situation, therefore,  where  the appellant is acquitted by a  judicial pronouncement  with the finding that the "raid and recovery" at  the residence of the appellant were not proved, it would be  unjust,  unfair  and  rather  oppressive  to  allow  the findings recorded at the ex- parte departmental proceedings, to stand.

     Since  the  facts  and  the   evidence  in  both   the proceedings,  namely,  the departmental proceedings and  the criminal  case were the same without there being any iota of difference,  the  distinction,  which is  usually  drawn  as between  the departmental proceedings and the criminal  case on  the basis of approach and burden of proof, would not  be applicable to the instant case.

     For  the reasons stated above, the appeal is  allowed, the  impugned  judgment passed by the Division Bench of  the High  Court  is  set aside and that of  the  learned  Single Judge,  in so far as it purports to allow the Writ Petition, is  upheld.  The learned Single Judge has also given liberty to   the   respondents  to   initiate   fresh   disciplinary proceedings.   In  the peculiar citcumstances of  the  case, specially  having  regard to the fact that the appellant  is undergoing  this  agony  since   1985  despite  having  been acquitted by the criminal court in 1987, we would not direct any  fresh departmental inquiry to be instituted against him on the same set of facts.  The appellant shall be reinstated forthwith  on the post of Security Officer and shall also be paid  entire arrears of salary, together with all allowances from  the date of suspension till his reinstatement,  within three  months.  The appellant would also be entitled to  his cost which is quantified as Rs.15,000/-.