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PETITIONER: JAGDAMBA PRASAD SHUKLA

       Vs.

RESPONDENT: STATE OF U.P.  & ORS.

DATE OF JUDGMENT:       22/08/2000

BENCH: S.P. Bharucha, J. & Y K Sabharwal, J.

JUDGMENT:

Y.K.SABHARWAL,J.

Delay condoned.  Leave granted.

L....I..........T.......T.......T.......T.......T.......T..J      The appellant while holding the post of a Sub Inspector was placed under suspension by an order dated 1st June, 1977 and  was  transferred  to Gorakhpur by an  order  dated  4th August, 1977 in order to face disciplinary proceedings.  The appellant   did   not  participate   in   the   disciplinary proceedings  allegedly  on  account  of  illness  and  being confined for medical treatment at Kanpur and also on account of   financial  crunch  for   non-payment   of   subsistence allowance.   The  appellant  was served with  a  show  cause notice  dated  29th December, 1978 proposing  punishment  of removal  from  service.  In reply thereto, appellant  raised several  objections indicating irregularities in conduct  of departmental  proceedings.  The Deputy Inspector General  of Police  by  an  order  dated 11th  February,  1979  directed removal   of  the  appellant   from  service.   After  being unsuccessful  in  departmental  appeal and even in  a  claim petition  filed  before  U.P.Public  Service  Tribunal,  the appellant challenged his order of removal in a writ petition filed in the High Court.

    The  only contention pressed on behalf of the appellant before  the High Court was that on account of non-payment of subsistence  allowance,  right from the date  of  suspension till   his  removal,  he  could   not  participate  in   the departmental  enquiry and, therefore, the proceedings of the said  enquiry  stood  vitiated  for   denial  of  grant   of reasonable  opportunity  to  him to appear  in  departmental enquiry.   It  was  rejected  by the High  Court.   The  two reasons given by the High Court for rejecting the contention are:-(i) to receive subsistence allowance, the appellant was required  to  furnish a certificate stating that he  is  not engaged  in  any other employment, business,  profession  or vocation,  which was not furnished;  and (ii) the  appellant had  not  taken a ground either in the claim petition or  in the  writ  petition  that he could not  participate  in  the enquiry because of financial crunch.

    In  this  appeal  also, the only  contention  urged  on behalf  of  the  appellant  is   the  denial  of  reasonable opportunity  in  the departmental enquiry.  It is  contended that  on account of financial crunch created by  respondents

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by  non-payment  of subsistence allowance from date  of  the suspension  till removal, the appellant could not travel  to Gorakhpur and participate in the proceedings of departmental enquiry.

    Learned counsel for the respondents did not dispute the factual  position that the subsistence allowance as urged on behalf   of  the  appellant  was   not  paid  to  him.   The justification  offered by the respondents for not paying the subsistence   allowance  is  that   the  applicant  had  not furnished  the  address where the amount was to be sent  and had also not given the requisite certificate indicating that he was not employed else during the period of suspension.

    It  is  evident from the record that the High Court  is not  right  in observing that 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 ‘for 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.’ 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 ‘Therefore, those rulings  where  person was unable to attend the enquiry  for non-payment  of subsistence allowance, resulting in  enquiry being  vitiated  will not be applicable.’ Apart from it,  in reply  dated  22nd January, 1979 sent to 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 ‘the  applicant has requested a number of times for  drawing his  pay and suspension allowance, but the same could not be drawn  and sent to 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.’ The  request  of  the appellant for payment  of  subsistence allowance  is also contained in his letter dated 31st March, 1978  sent to Superintendent of Police, Railways,  Gorakhpur Section,  Gorakhpur.   The  said letter  also  contains  the address  of the 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  in so  far  as  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  to  reach  place of  enquiry  due  to shortage of funds.

    Reverting  now to the other reason which prevailed with the High Court, namely, the appellant having not furnished a certificate  stating  that  he is not engaged in  any  other employment, business, profession or vocation and having thus not  complied with Rule 53(2) of the Financial Hand Book, it may be noticed that at no stage, the appellant was told that he  had to furnish such a certificate, and that he could not

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be  paid  subsistence allowance without it.  It was not  the case  of the respondents that in response to the appellant’s request  for payment of subsistence allowance, he was  asked to  furnish such a certificate and since he did not  furnish it, the amount of subsistence allowance was not paid to him. Therefore,  the second reason for rejecting the  appellant’s contention  for  non- payment of subsistence allowance  also does not deserve to be sustained.

    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 enquiry 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  show cause notice stated that even if he  was  to appear  in enquiry 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.

    In  view of the aforesaid, the impugned judgment of the High  Court  is  set aside and the appeal  is  allowed  with@@       JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ costs.@@ JJJJJJ .UP 10 2; Fixed-pitch, printer 1; -n -ml4 -PA4 -dFX-NORMAL -Fx -e -j; dumbp L.......T.......T.......T.......T.......T.......T.......T.......T....R