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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: CHANDRABHAN TALE

DATE OF JUDGMENT07/07/1983

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)

CITATION:  1983 AIR  803            1983 SCR  (3) 327  1983 SCC  (3) 387        1983 SCALE  (1)690  CITATOR INFO :  RF         1986 SC1168  (4)  RF         1991 SC 101  (239,263)

ACT:      Subsistence  allowance-Bombay   Civil  Services  Rules, 1959, second  proviso  to  Rule  151  (i)  (ii)  (b)-Proviso providing that when the Government servant is convicted by a competent  authority  and  sentenced  to  imprisonment,  the subsistence allowance  shall be  reduced to a nominal amount of one  rupee per  month till  the date  of his  removal  or dismissal or  reinstatement by  the competent  authority  or till  the   date  of   acquittal  by   an  appellate  court, constitutional validity  of-Words and  Phrases-"Sentenced to imprisonment",  whether  means  "condemned  to  prison  upon conviction"-Right to  employment to be treated as a new form of property. Legal position of.

HEADNOTE:      Rule  151  of  the  Bombay  Civil  Service  Rules  1959 provides for  payment of  normal subsistence  allowance to a civil servant on his suspension from service for the reasons stated under  the service  rules. While the first proviso to the Rule  places a  bar on the Government servant to take up any other avocation during the period of his suspension, the second proviso  thereto reduces the subsistence allowance to rupee one per month when the Government servant is convicted by a  competent authority and sentenced to imprisonment till date of  his removal  or dismissal  or reinstatement  by the competent authority  unless he  was acquitted  by  appellate court  in   the  meanwhile   in  which  case  he  will  draw subsistence allowance  and at  the normal rate from the date of acquittal.      Chandrabhan Tale,  the respondent  in the  Civil Appeal No. 1976/77,  one Vithoba,  the petitioner in C.M.P. 6117/80 who has  sought to  intervene in  the Civil Appeal and Baban the petitioner  in W.P.  607 of  1980 in  the Supreme Court, were all  civil servants  of the  State of  Maharashtra  the appellant and  the respondent  in the C.M.P. and W.P. at the relevant time.  Chandra Bhan Tale was a Head Constable while Vithoba was  a Deputy Engineer and Personal Assistant to the Executive Engineer,  Zilla Parishad,  Nagpur and Baban was a Junior Clerk  in the  office of the Naib Tehsildar, Kamptee.

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Chandrabhan Tale and Baban have been convicted under Section 161 I.P.C.  and Section  5(1) (d)  read with Section 5(2) of the Prevention  of Corruption  Act, while  Vithoba has  been convicted under  Section 5(1)  (e) read with Section 5(2) of that Act  in separate cases. All of them have been sentenced to  various  terms  of  imprisonment  by  the  Trial  Court. Chandrabhan Tale  was on  bail pending  trial,  and  he  was released even  after conviction  to enable  him to  move the High Court in appeal and continued to be on bail till he was finally acquitted  by the  High Court  and  was,  therefore, never lodged  in prison  on conviction  by the  Trial Court. Vithoba was  on bail pending the trial and on conviction and on 338 admitting the  Criminal appeal,  the High  Court has granted bail with  the result he too was not lodged in the prison on his conviction.  Baban was  also convicted  and sentenced by the Special Judge, Nagpur but since he has been granted bail by the  Supreme Court  in SLP (Crl.) 800 dated 14-3-1980, he too had not been lodged in prison.      All the  three have  been granted  by  their  competent administrative authorities  a reduced  subsistence allowance of rupee one only from the date of their conviction when the constitutionality of  the proviso to Rule 151 was challenged by Chandrabhan,  the Bombay  High Court,  found (1) that the object and  purpose of  the rule  is to  provide subsistence allowance pending  suspension of  the civil  servant and (2) the subsistence allowance mentioned in the main rule and the second proviso  means a  bare minimum  amount which  can  be reasonably provided  for a  civil servant  who is kept under suspension and  without work  and therefore  not entitled to full wages.  The Court  interpreted the  words "sentenced to imprisonment"  occurring  in  the  second  proviso  to  mean "condemned to  prison upon conviction" and held that a civil servant who  has been  convicted and  sentenced but  has not been sent  to prison  and is  otherwise free  could not fall under the  category of  persons "sentenced  to imprisonment" and, therefore  the case  of Chandrabhan who was on bail not falling under  the proviso  to Rule  151 would automatically entitle him  to normal subsistence allowance. The High Court did not  consider the  question whether the Writ Petition is violative of Article 16 of the Constitution.      Dismissing  the  Civil  Appeal  and  allowing  the  two petitions, the Court, ^      HELD: Per Chinnappa Reddy, J. (concurring)      1:1. The second proviso to Rule 151 (i) (ii) (b) of the Bombay Civil  Service Rules,  1959 is  void  as  it  offends Articles 14, 16 and 21 of the Constitution. [341 F]      1:2. The  award of subsistence allowance at the rate of Rupee one  per month, as provided for in the proviso to Rule 151,  to  a  Government  servant,  who  is  convicted  by  a competent Court  and sentenced  to  imprisonment  and  whose appeal  against  the  conviction  is  pending  can  only  be characterised as  ludicrous. Further  it is a mockery to say that subsistence allowance is awarded and to award Rupee one per month. [341 G-H] Per contra:      2:1. Though the view that public employment opportunity is  national  wealth  in  which  all  citizens  are  equally entitled to share and that no class of people can monopolise public employment  in the  guise  of  efficiency’  or  other ground, is  correct  it  is  non  sequitur.  As  at  present advised, the right to equal opportunity to public employment may not  be treated  as a  new form of private property with

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its attribute  of competitive  exploitation. The fundamental right  to   property  has  been  abolished  because  of  its incompatibility with the goals of 339 ’justice, social,  economic and  political’ and ’equality of status and  of opportunity’  and with the establishment of a socialist  democratic   republic,  as  contemplated  by  the Constitution There  is  no  reason  why  a  new  concept  of property should  be introduced in the place of the old so as to bring in its wake the vestiges of the doctrine of laissez faire  and   create,  in  the  name  of  efficiency,  a  new oligarchy. Efficiency  has many  facets and  one is  yet  to discover an infallible test of efficiency to suit the widely differing needs  of a developing society such as ours. There is a  present inherent  danger of  a class  dominated  civil service resulting from the concept of employment opportunity as private  property. We have to guard ourselves against any such result. [342 A-E] Per Varadarajan J.      1. The interpretation of the second proviso to Rule 151 of the  Bombay Civil  Service Rules,  1959 is artificial and unwarranted, for  such an  interpretation  is  not  possible except by  reading into it some words which are not there as it stands, namely, and "committed to prison" after the words "when the  government servant  is convicted  by a  competent authority and  sentenced to  imprisonment". The proviso does not require  for its  application that the civil servant who has been  convicted by  the Trial  Court  and  sentenced  to imprisonment has to be actually lodged in prison pursuant to the conviction and sentence awarded to him. [349 A-B, 350 A]      Kennedy v.  Spratt, [1972] Appeal cases 83, quoted with approval.      2. The right to intervene in Civil Appeal 1976/77 filed by the  State, of  Vithoba in  C.M.P. 5176 of 1980 has to be conceded and he has to be allowed to intervene, since he has the locus  and is  vitally interested  in the  result of the appeal as  it would  determine the fate of his writ petition No. 2617  of 1979  filed in  the Bombay High Court and which has been  stayed consequent to the orders of stay granted in the Civil Appeal in C.M.P. 3394 of 1977 by the Supreme Court on 26.8.1977. [348 B-E]      3:1. The  right to public employment is the property of the nation  which has to be shared equally subject of course to the  qualification necessary  for holding  the office  or post. But  it should  not be  monopolised by  any particular section of  the people  of  this  country  in  the  name  of efficiency, though  efficiency cannot altogether be ignored. [350 D-E]      District Manager,  A.P.S.R.T.C. v.  Labour  Court,  AIR 1980 AP. 132; approved.      3:2. The right to suspend an employee, whether he is in civil service  or in  service under  a private individual or private management is well recognised as an incident to such service. [350 E]      Khemchand v.  Union of India, AIR 1963 SC 687, referred to.      4:1. The second proviso to Rule 151 of the Bombay Civil Service Rules  1959 is  unreasonable and  void and therefore violative of Articles 14, 16 and 21 340 of the  Constitution. A  civil servant  under suspension  is entitled to  the normal subsistence allowance even after his conviction by  the Trial  Court pending consideration of his appeal filed  against his  conviction until  the  appeal  is disposed of  finally one  way or the other, whether he is on

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bail or  lodged in  prison on conviction by the Trial Court. If  the   civil  servant   under   suspension,   pending   a departmental enquiry  or a  criminal trial  started  against him, is entitled to subsistence allowance at the normal rate which is  a bare minimum required for the maintenance of the civil servant  and his  family, he should undoubtedly get it even pending  his appeal filed against his conviction by the Trial Court,  and his  right to  get the  normal subsistence allowance pending  consideration of  his appeal  against his conviction should  not depend  upon the  chance of his being released  on   bail  and  not  being  lodged  in  prison  on conviction by  the Trial  Court. Whether  he  is  lodged  in prison  or  released  on  bail  on  his  conviction  pending consideration of  his appeal,  his family  requires the bare minimum by way of subsistence allowance. [340 B-E]      4:2. If  any provision in any rule framed under Article 309 of  the constitution  is illusory or unreasonable, it is certainly open  to the  civil servant  concerned to seek the aid of the court for declaring that provision to be void.                                                    [353 G-H]      4:3. Any  departmental enquiry  made without payment of subsistence allowance  contrary to  the  provision  for  its payment, is violative of Article 311(2) of the Constitution. Similarly, any  criminal trial  of  a  civil  servant  under suspension  without   payment  of   the  normal  subsistence allowance payable  to him  under the rule would be violative of that  Article. Payment  of subsistence  allowance at  the normal rate  pending the appeal filed against the conviction of a civil servant under suspension is a step that makes the right of  appeal fruitful  and it  is therefore  obligatory. Reduction of the normal subsistence allowance to the nominal sum of  Re. 1  per month  on conviction  of a  civil servant under suspension in a criminal case pending his appeal filed against that  conviction, whether  the civil  servant is  on bail or  has been  lodged in  prison on  conviction  pending consideration of  his appeal,  is an action which stultifies the  right   of  appeal   and  is  consequently  unfair  and unconstitutional. Just as it would be impossible for a civil servant  under   suspension  who   has  no  other  means  of subsistence to defend himself effectively in the Trial Court without the normal subsistence allowance-there is nothing on record in  these cases  to  show  that  the  civil  servants concerned in these cases have any other means of subsistence it  would   be  impossible  for  such  civil  servant  under suspension to  prosecute his  appeal against  his conviction fruitfully  without   payment  of   the  normal  subsistence allowance pending his appeal. 353 B-F]      Ghanshyam Das  Srivastava v.  State of  Madhya Pradesh, AIR 1975  S.C. 1183; Madhay Hayawandanrao Hoskot v. State of Maharashtra, AIR 1978 S.C. 1548; applied.      4:4. The  contention of  the appellant  that  even  the nominal sum  of Re. 1 per month is subsistence allowance for a civil  servant under  suspension is as unreasonable as the contention  of   the  appellant  that  what  should  be  the subsistence allowance  for a  civil servant under suspension is for the authority 341 empowered  to   frame  rules   under  Article   309  of  the Constitution to  consider and that the civil servant who has entered service  is bound  by the second proviso. The sum of Re. 1 per month can never sustain a civil servant for even a day much less for a month. [351 E-G]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1976 of 1977.      Appeal by  Special leave  from the  Judgment and  order dated the  30th September,  1976 of the Bombay High Court in S.C.A. No. 4292 of 1976.                             AND            Civil Misc. Petition No. 6117 of 1980.              (An Application for intervention)                             WITH                Writ Petition No. 607 of 1980.            (Under article 32 of the Constitution)      S.B. Bhasme and M.N. Shroff for the Appellant in Appeal and Respondent in WP.      V.A. Bobde,  S.D. Mudliar,  A.K. Sanghi  and R.N. Bobde for the Intervener in Appeal and Petitioner in WP.      The following Judgments were delivered      CHINNAPPA REDDY,  J. I  agree with  my learned brother, Varadarajan, J. that the second proviso to Rule 151 (i) (ii) (b) of  the Bombay Civil Service Rules is void as it offends Arts. 14,  16  and  21  of  the  Constitution.  The  proviso provides for payment of subsistence allowance at the rate of Re. 1 per month to a government servant, who is convicted by a competent  court and  sentenced to  imprisonment and whose appeal against  the conviction  and sentence is pending. The award of  subsistence allowance  at the  rate of  Re. 1  per month can  only be characterised as ludicrous. It is mockery to say  that subsistence  allowance is  awarded and to award Re. 1  per month.  For  the  reasons  given  by  my  brother Varadarajan, J.,  I agree  that the proviso should be struck down. 342      Though I  share the  view expressed  by my brother that public employment  opportunity is  national wealth  in which all citizens are equally entitled to share and that no class of people  can monopolise  public employment in the guise of ’efficiency’ or other ground, I am afraid it is non-sequitur and, as  at present  advised, I wish to guard myself against accepting the  view that  the right  to equal opportunity to public employment  may be  treated as  a new form of private property with its attribute of competitive exploitation. The fundamental right  to property has been abolished because of its incompatibility  with the  goals  of  ’justice’  social, economic and  political’ and  ’equality  of  status  and  of opportunity’ and  with  the  establishment  of  a  socialist democratic republic,  as contemplated  by the  Constitution. There is  no reason  why a new concept of property should be introduced in  the place  of the  old so  as to bring in its wake the  vestiges of  the doctrine  of  Iaissez  fairs  and create,  in   the  name   of  efficiency,  a  new  oligachy. Efficiency has  many facets  and one  is yet  to discover an infallible test  of efficiency  to suit the widely differing needs of  a developing  society such  as ours.  There  is  a present inherent  danger of  a class dominated civil service resulting from  the concept  of  employment  opportunity  as private property.  We have  to guard  ourselves against  any such result. I agree with the order proposed by my brother.      VARADARAJAN,  J.   The  appeal   by  special  leave  is preferred by  the State  of Maharashtra against the Division Bench Judgment  of the  Bombay High  Court in  Special Civil Application No. 4292 of 1976 holding that the second proviso to Rule 151 (i) (ii) (b) of the Bombay Civil Services Rules, 1959 will  apply to  the  respondent  Chandrabhan  Tale  for purposes of  payment of subsistence allowance at the nominal rate of  Re. 1 per month only for the period during which he

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is lodged in prison on conviction and not for the subsequent period after he is released on bail pending consideration of his appeal against the Trial Court’s judgment.      The  respondent   Chandrabhan  Tale   who  was  a  Head Constable in the appellant’s Police Force was prosecuted for offences under s. 161 I.P.C. and s. 5 (1) (d) read with s. 5 (2) of  the Prevention  of Corruption Act, 1947 in the Court of the  Special Judge, Wardhe in Special Case No. 3 of 1974. The Special  Judge convicted  him of  both the  offences  on 14.1.1976 and sentenced him to undergo rigorous imprisonment for 6  months under  s. 161 I.P.C. and for one year and fine of Rs.  100 under  s. 5  (1) (d)  read with  s. 5 (2) of the Prevention 343 of Corruption  Act, 1947. The respondent was on bail pending trial and  was released on bail even after his conviction by the Trial  Court to enable him to file an appeal in the High Court against  his conviction. His Criminal Appeal No. 30 of 1976 was admitted by by a learned Single Judge of the Bombay High Court  on 20.2.1976  and he  was allowed to continue on bail on  the same terms pending consideration of the appeal. We are told that he has been acquitted by the High Court and reinstated in service with all the benefits. He did not even appear  in  this  appeal  before  us  as  he  is  no  longer interested in  this appeal. Thus during the trial as well as after conviction  pending consideration  of  the  appeal  in which he has succeeded he was not actually sent to prison.      The Superintendent  of Police,  Wardha,  the  competent authority, by order dated 31.5.1974 suspended the respondent and allowed  him normal  suspension allowance. But after his conviction  by   the  Special   Judge   on   14.1.1976   the Superintendent of  Police in  supersession  of  his  earlier order  dated  31.5.1974  passed  an  order  dated  22.1.1976 directing that  from the date of the respondent’s conviction and  pending  consideration  of  the  appeal,  he  would  be entitled to only a nominal suspension allowance of Re. 1 per month as  per the second proviso to Rule 151 (1) (ii) (b) of the Bombay Civil Services Rules, 1959. After service of that order the  respondent filed  Criminal Application No. 146 of 1976 before  the learned  Single Judge  of the  Bombay  High Court under  s. 482 Cr. P.C. challenging the aforesaid order dated 22.1.1976  of the  Superintendent of  Police mainly on two grounds  :-(i) that  he is  on bail,  and would  not  be governed by  the said  proviso and  (ii) that the proviso if applicable  to  him  is  violative  of  Article  16  of  the Constitution. The  learned Singal Judge issued notice to the Advocate General  of the State and directed the matter to be placed before  a Division  Bench of  the High  Court  having regard  to  the  importance  of  the  matter.  Subsequently, Criminal Application  No. 146 of 1976 was treated as Special Civil Application  No. 4292 of 1976 under Article 226 of the Constitution and dealt with by the Division Bench as such.      The main  Rule 151  of the Bombay Civil Services Rules, 1959 provides for payment of normal subsistence allowance to a civil  servant on  his suspension.  The  aforesaid  second proviso with which we are concerned read as follows :-           "Provided also that when the Government servant is      convicted by a competent authority and sentenced to 344      imprisonment the subsistence allowance shall be reduced      to a nominal amount of Re. 1 per month with effect from      the date  of such  conviction and  he shall continue to      draw the same till the date of his removal or dismissal      or reinstatement  by the  competent authority unless he      was acquitted  by appellate  court in  the meanwhile in

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    which case  he will  draw subsistence  allowance at the      normal rate from the date of acquittal by the appellate      court."      The submission  made before  the learned  Judges of the Division Bench  of the  Bombay High  Court on  behalf of the respondent was  that though the rule purports to provide for subsistence allowance  for the  maintenance of  the employee during the  period of his suspension, payment of subsistence allowance at the nominal rate of Re. 1 per month is illusory and totally  unreasonable  because  that  amount  can  never sustain any  person for  a month particularly when the rules prohibit  the   civil  servant  from  taking  up  any  other avocation while  he is  under suspension  and the  object of providing  for   payment   of   subsistence   allowance   is demonstrably defeated  by the  said second  proviso and that the said  proviso will  not in  any case  apply to  a  civil servant who  is not  lodged in  prison  but  is  allowed  to continue  on   bail  even   after  his   conviction  pending consideration of  his appeal.  On the  other  hand,  it  was contended for  the appellant  State that  the second proviso will apply  even to civil servant who has been convicted but not actually lodged in prison pursuant to the conviction and is released on bail pending consideration of his appeal, and that what  amount should  be the  subsistence allowance is a matter to  be determined  by the  competent authority having power to  make rules  under Article 309 of the Constitution. It was  further contended  that the subsistence of Re. 1 per month is  provided for  only to  keep the  link between  the State and  the civil servant concerned pending the appeal so that he  may be eventually dealt with departmentally in case he fails  in the  appeal, and that the civil servant accepts the rule  when he  enters the  service and  he is  therefore bound by it.      The learned Judges found that the object and purpose of the  rule   is  to  provide  subsistence  allowance  pending suspension  of   the  civil   servant  and  the  subsistence allowance mentioned  in the main rule and the second proviso means a bare minimum amount which can be reasonably provided for a civil servant who is kept under suspension and without work and therefore not entitled to full wages. 345 The learned  Judges  interpreted  the  words  "sentenced  to imprisonment’  occurring  in  the  second  proviso  to  mean "condemned to  prison upon conviction" and held that a civil servant who  has been  convicted and  sentenced but  has not been sent  to prison  and is  otherwise free  could not fall under the  category of  persons "sentenced to imprisonment". In that view the learned Judges held that the respondent who had not  been sent  to prison  on conviction  but  has  been released on bail for preferring an appeal and was allowed to continue to  remain on  bail even after the admission of his appeal  would  not  fall  under  the  second  proviso.  They accordingly set  aside the  order  dated  22.1.1976  of  the Superintendent of  Police reducing the subsistence allowance to Re.  1 per  month and  held that  the respondent would be entitled to normal subsistence allowance under the main Rule 151 while he was not actually lodged in prison on conviction and  allowed   the   Writ   Petition   accordingly   without considering the question whether the proviso is violative of Article 16 of the Constitution.      Civil Miscellaneous Petition No. 6117 of 1980 which has been ordered to be heard alongwith the above Civil Appeal is by one  Vithoba, Deputy  Engineer and  Personal Assistant to the Executive  Engineer, Zilla  Parishad,  Nagpur,  a  civil servant of  the appellant  State. He  has been  placed under

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suspension with  effect from  11.5.1978  and  was  receiving subsistence allowance  at the normal rate as provided for in the main  Rule 151.  He has  been convicted  by the  Special Judge in  Criminal Case  No.  9  of  1976  on  8.5.1979  and sentenced to  undergo rigorous imprisonment for one year and to pay a fine of Rs. 5000 under s. 5(1) (e) read with s. (2) of the  Prevention of  Corruption Act,  1947. He  has  filed Criminal Appeal  No. 183 of 1979 in the Bombay High Court on 28.6.1979 and  it was  admitted on  2.7.1979 and he has been released on  bail. He was on bail pending trial and he is on bail even  after his  conviction and  is not under going the sentence of  imprisonment awarded to him by the Trial Court. By  Government  resolution  dated  11.7.1979  a  subsistence allowance at  Re. 1 per month has been ordered to be paid to him, rejecting  his application  for  continued  payment  of subsistence allowance  at the  normal rate.  He  filed  Writ Petition  No.   2617  of  1979  in  the  Bombay  High  Court challenging that  order of  the Government  and praying  for payment of  subsistence allowance  at the normal rate as per the High  Court’s judgment  in Special Civil Application No. 4292 of 1976. In that Writ Petition, it was pointed 346 out that  the High  Court’s judgment has been stayed by this Court’s order  dated 26.8.1977 in C.M.P No. 3394 of 1977. In these circumstances,  it is  alleged that  the petitioner is vitally interested  in supporting  the High Court’s judgment challenged in  the above  Civil Appeal and it is prayed that he should be allowed to intervene.      No counter  affidavit has  been  filed  in  this  Civil Miscellaneous Petition.      Writ Petition  No. 607  of 1980  has been  filed by one Baban, a  Junior Clerk  in the office of the Naib Tehsildar, Kamptee, now under suspension. The petitioner Baban has been convicted under  s. 161  I.P.C. and s. 5(1) (d) read with s. 5(2) of  the Prevention  of Corruption  Act by  the  Special Judge, Nagpur,  in Special  Case No.  6 of 1975. He has been released on  bail by  this Court’s  order dated 14.3.1980 in S.L.P. (Criminal)  No. 800  of 1980.  He too  challenges the order reducing  the subsistence allowance to Re. 1 per month under the  said second  proviso contending  that subsistence allowance is  required to support himself and his family not only during  the trial  of the criminal case but also during the pendency of the appeal in the High Court and the special leave petition  in this  Court and  that the  second proviso contravenes Articles  14 and  16  of  the  Constitution.  He further contends  that  the  reduction  of  the  subsistence allowance to  Re. 1  per month  to the  civil servant who is prohibited from  engaging himself  in  any  other  avocation during the  period of suspension contravenes even Article 21 of the  Constitution on the ground that the only logical and possible result  would be the death of the civil servant and the  members   of  his   family  due   to  starvation.   The petitioner’s  further   contention   is   that   subsistence allowance of  Re. 1  per month  is  illusory  and  seriously prejudicial to  his endeavour to secure his acquittal in the superior courts.  He has filed the Writ Petition under these circumstances to  declare the said second proviso to be void and violative  of Articles 14, 16 and 21 of the Constitution and to  issue a  direction to  the respondent  State to  pay normal subsistence  allowance until  the date of disposal of his appeal by this Court.      Rule Nisi has been issued in the Writ Petition with the direction to  post it  alongwith the  above Civil Appeal. No counter affidavit has been filed in the Writ Petition.      Chandrabhan Tale,  the respondent  in the Civil Appeal,

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Vithoba, the  petitioner in  the C.M.P.  who has  sought  to intervene 347 in the  Civil Appeal  and Bawan,  the petitioner in the Writ Petition  were   all  civil   servants  of   the  State   of Maharashtra,  the   appellant  in   the  Civil   Appeal  and respondent in  the C.M.P. and Writ Petition. at the relevant time. Chandrabhan  Tale was  a Head  Constable while Vithoba was  a   Deputy  Engineer  and  Personal  Assistant  to  the Executive Engineer,  Zilla Parishad,  Nagpur and Baban was a Junior Clerk  in the  office of the Naib Tehsildar, Kamptee. Chandrabhan Tale  and Baban have been convicted under s. 161 I.P.C. and  s. 5(1) (d) read with s. 5 (2) of the Prevention Corruption Act  while Vithoba  has been convicted under s. 5 (1) (e)  read with  s. 5  (2) of that Act in separate cases. All  of  them  have  been  sentenced  to  various  terms  of imprisonment by  the Trial  Court. Chandrabhan  Tale was  on bail pending  trial, and  he was released on bail even after conviction to  enable him  to move the High Court in appeal. He has  been allowed  to continue  on bail on the same terms even after  his criminal  appeal was  admitted by  the  High Court. It  appears that  he has  been acquitted  by the High Court and, as stated above, he has not appeared in person or through counsel  during the  hearing of  the appeal.  He was thus throughout  on bail  and was  not lodged  in prison  on conviction by  the Trial  Court. Vithoba’s  Criminal  Appeal against his  conviction has  been admitted by the High Court on 2.7.1979.  He was  on bail  pending trial  and  has  been released on  bail even  after  his  conviction  and  is  not undergoing the  sentence of  imprisonment awarded  to him by the Trial  Court, Baban  has been  released on  bail by this Court’s order  dated 14.3.1980  in S.L.P. (Criminal) No. 800 of 1980.      These three  persons,  Chandrabhan  Tale,  Vithoba  and Baban were  kept  under  suspension  pending  trial  of  the criminal cases  filed against them and they were paid normal subsistence allowance  under the main Rule 151 of the Bombay Civil  Services   Rules,  1959   from  the  dates  of  their suspension until  the dates on which they were convicted and sentenced to  imprisonment by  the Trial Court. But from the date of  their conviction the subsistence allowance has been ordered to  be reduced to the nominal sum of Re. 1 per month under the  second proviso  to Rule  151 (1)  (ii) (b) of the Rules. Chandrabhan  Tale challenged  the order  reducing the subsistence allowance  to the  nominal amount  of Re.  1 per month in  a petition  filed under s. 482 Cr. P. C. which has been converted  by the  High Court  into  a  Writ  Petition, mainly on  two grounds  :- (1) that he is on bail throughout and is  not subject  to the  second proviso and (2) that the said proviso,  if  applicable  to  him,  is  void  as  being violative 348 of Article  16 of  the Constitution.  That Writ Petition was allowed by  the High  Court by  an order  which is now under challenge in  the above Civil Appeal. Vithoba challenged the order reducing  the subsistence  allowance  to  the  nominal amount of  Re. 1  per month by filing Writ Petition No. 2617 of 1979 in the High Court in which he had prayed for payment of normal  subsistence allowance  even after the date of his conviction by  the Trial  Court as had been held by the High Court in  the petition  initiated by Chandrabhan Tale. It is stated that  in the  Writ Petition  it  was  represented  on behalf of  the State  of Maharashtra  that the  judgment  in Chandrabhan Tale’s  case has  been stayed  by this  Court on 26.8.1977  by   an  order   in  C.M.P.  No.  3394  of  1977.

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Evidentially, Writ  Petition  No.  2617  of  1979  filed  by Vithoba has  also been  stayed by  the  High  Court  pending disposal of  the above  Civil Appeal.  Baban has  filed Writ Petition No.  607 of  1980 in  this Court itself challenging the order  reducing his subsistence allowance to the nominal sum. Thus  it would  appear that  Vithoba, the petitioner in C.M.P. No.  5176 of 1980 is vitally interested in the result of the  Civil Appeal  as it  would determine the fate of his Writ Petition  filed in  the High Court. If the Civil Appeal is allowed,  his Writ Petition would be dismissed and if the Civil Appeal is dismissed his Writ Petition would be allowed by the  High Court. Chandrabhan Tale has not appeared in the Civil  Appeal   for  opposing  the  challenge  made  by  the appellant State.  Consequently,  Vithoba  is  all  the  more interested in  supporting the judgment of the Division Bench of the  High Court  challenged in the Civil Appeal. In these circumstances, we  allow Vithoba  to intervene  in the Civil Appeal.      As stated  earlier, the  learned Judges of the Division Bench of  the Bombay  High Court  have  not  considered  the second ground of attack made in Chandrabhan Tale’s petition, namely, that  the second  proviso, if applicable to him even though he  has been  on bail throughout and was never lodged in prison  on conviction by the Trial Court, is violative of Article 16  of the  Constitution. They  have disposed of the petitions before them mainly by accepting the contention put forward in  the petition  regarding the  construction of the second  proviso,   namely,  that  the  words  "sentenced  to imprisonment" occurring  after the  words  "convicted  by  a competent court"  mean "condemned  to prison on conviction". This interpretation  of the second proviso was criticised by Mr.  Bhasme,   learned  senior  counsel  appearing  for  the appellant  State   of   Maharashtra,   as   artificial   and unwarranted. It may be stated here that even the 349 learned counsel  for the intervener, Vithoba did not support the High  Court’s interpretation  of the  second proviso. We agree with  Mr. Bhasme  that the High Court’s interpretation of the  second proviso  is artificial  and unwarranted,  for such an  interpretation is  not possible  except by  reading into the second proviso some words which are not there as it stands, namely,  "and committed  to prison"  after the words "when the  Government servant  is convicted  by a  competent authority and sentenced to imprisonment".      In Kennedy  v. Spratt(1) Lord Diplock has observed thus :           "I think when a statute requires that a person who      is convicted  of  an  offence  shall  be  sentenced  to      imprisonment  for   a  specified  minimum  period,  the      natural meaning  of the  words "shall  be sentenced  to      imprisonment" is  that he  shall be  punished for  that      offence by  being sent  to prison.  I do not think that      this requirement  is satisfied  by any order of a court      which does not have this effect.           It  has   been  submitted   that   "sentenced   to      imprisonment’  in   the  Criminal   Justice  (Temporary      Provisions) Act (Northern Ireland) 1970 has a technical      meaning wider  than this  because in  section 18 of the      Treatment of  Offenders Act  (Northern Ireland)  1968 a      court which  passes what is thereafter referred to as a      "suspended  sentence"   is  described   as  passing   a      "sentence of  imprisonment"  notwithstanding  that  the      court makes  a simultaneous order that (1) the sentence      is to  have no  effect unless the offender commits some      other offence  during a  limited period and (2) even if

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    he does  commit a  subsequent offence the court’s order      determines not  the minimum  but the maximum period for      which the offender may be sent to prison".      It would  appear from this judgment of the learned Lord that a person who is convicted and sentenced to imprisonment is deemed  to have  been awarded that punishment even in the case where  the sentence  is suspended  for some  reason  or other. In  these  circumstances,  I  hold  that  the  second proviso is  not capable  of such  interpretation as has been put on it by the learned Judges of the High 350 Court. The  second proviso,  as it  stands, does not require for its  application that  the civil  servant who  has  been convicted by  the Trial  Court and sentenced to imprisonment has  to  be  actually  lodged  in  prison  pursuant  to  the conviction and sentence awarded to him.      Speaking for  the Full  Bench, P.A. Choudary, J. of the Andhra Pradesh  High Court  has observed  in the decision in District Manager, A.P.S.R.T.C. v. Labour Court(1) :           "The right to public employment is undoubtedly, as      noted above,  a new  form of property. It is not only a      vast source of patronage for the Government but is also      a  great   source  of   living  and  happiness  to  our      unemployed millions".      I agree  with this  view of the learned Judge regarding public employment  being property of the nation which has to be shared  equally subject  of course  to the  qualification necessary for holding the office or post, I wish to add that it should  not be  monopolised by  any particular section of the people of this country in the name of efficiency, though efficiency  cannot  altogether  be  ignored.  The  right  to suspend an  employee, whether  he is  in civil service or in service under  a private individual or private management is well recognised  as an  incident to such service. This Court has observed in Khem Chand v. Union of India(2) as follow :           "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      the order  of suspension is that though he continues to      be a  member  of  the  government  service  he  is  not      permitted to  work, and  further, during  the period of      his suspension he is paid only some allowance-generally      called "subsistence  allowance"-which is  normally less      than his  salary-instead of  the pay  and allowance  he      would  have  been  entitled  to  if  he  had  not  been      suspended.  There   is  no  doubt  that  the  order  of      suspension affects a government 351      servant injuriously.  There is  no basis  for thinking,      however, that  because of  the order  of suspension, he      ceases to be a member of the service".      The learned  Judges of the Division Bench have found in the judgment under appeal that the object and purpose of the main Rule  151  is  to  provide  for  subsistence  allowance pending  suspension  of  the  civil  servant  and  that  the subsistence allowance  mentioned in  the main  Rule and  the second proviso  means a bare minimum which can reasonably be provided for  a civil  servant who  is kept under suspension and without  work and  therefore not entitled to full wages. If  the   civil  servant   under   suspension,   pending   a departmental enquiry  or a  criminal trial  started  against him, is entitled to subsistence allowance at the normal rate which is  a bare minimum required for the maintenance of the civil servant  and his  family, he should undoubtedly get it

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even pending  his appeal filed against his conviction by the Trial Court,  and his  right to  get the  normal subsistence allowance pending  consideration of  his appeal  against his conviction should  not depend  upon the  chance of his being released  on   bail  and  not  being  lodged  in  prison  on conviction by  the Trial  Court. Whether  he  is  lodged  in prison  or  released  on  bail  on  his  conviction  pending consideration of  her appeal,  his family  requires the bare minimum  by   way  of   subsistence  allowance.  Subsistence allowance provided  for in the second proviso at the nominal rate of  Re. 1  per month  is illusory  and meaningless. The contention of the appellant that even the nominal sum of Re. 1 per  month is  subsistence allowance  for a  civil servant under suspension is as unreasonable as the contention of the appellant that  what should be the subsistence allowance for a civil  servant  under  suspension  is  for  the  authority empowered  to   frame  rules   under  Article   309  of  the Constitution to  consider and that the civil servant who has entered service  is bound  by the second proviso. The sum of Re. 1 per month can never sustain a civil servant for even a day much less for a month.      This Court has observed in Ghanshyam Das Shrivastava v. State of Madhya Pradesh(1) as follows :-           "The High Court has found the following facts: The      hearing of  the case started before the Enquiry Officer      at 352      Jagdalpur in  February 1965.  The  case  was  heard  on      February 10,  11 and  March 13, 1965. It appears that a      part of the evidence for the Government was recorded on      those dates.  On March 20, 1965, the appellant received      Rs. 312/-  as subsistence  allowance for  the months of      November and  December, 1964 and January, 1965. Further      evidence for  the Government was recorded on April 3, 6      and  15,  1965.  A  second  payment  of  Rs.  213/-  as      subsistence allowance  was made to the appellant on May      13,  1965.  As  already  stated,  the  Enquiry  Officer      submitted his report to the Government on May 28, 1965.      These facts  plainly show  that a  part of the evidence      had already  been recorded  before the first payment of      subsistence  allowance   was  made  to  the  appellant.      Nevertheless, the  High Court  has held that he was not      unable to  appear before the Enquiry Officer on account      of the non-payment of his subsistence allowance.           With respect,  we find  if difficult  to share the      view taken  by the  High Court. There is nothing on the      record to  show that  he has any other source of income      except pay. As he did not receive subsistence allowance      till March  20, 1965  he could  not,  in  our  opinion,      attend the  enquiry. The  first payment  of subsistence      allowance was  made to  him on  March 20,  1965 after a      part of  the evidence  had  already  been  recorded  on      February, 9,  10 and  11, 1965. The enquiry proceedings      during those  days are vitiated accordingly. The report      of the  Enquiry  Officer  based  on  that  evidence  is      infected with  the same  defect. Accordingly, the order      of the  Government dismissing  him from  service cannot      stand. It  was passed in violation of the provisions of      Art. 311 (2) of the Constitution, for the appellant did      not  receive  a  reasonable  opportunity  of  defending      himself in the enquiry proceedings".      Krishan Iyer,  J, has  observed in Madhav Hayawandanrao Hoskot v. State of Mahnrashtra(1) as follows :- 353           Every step that makes the right of appeal fruitful

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    is  obligatory  and  every  action  on  inaction  which      stultifies it is unfair and, ergo, unconstitutional".      Any  departmental   enquiry  made  without  payment  of subsistence allowance  contrary to the provision for its for its  payment,  is  violative  of  Article  311  (2)  of  the Constitution as  has been  held by  this Court  in the above decision. Similarly,  any criminal  trial of a civil servant under suspension  without payment  of the normal subsistence allowance payable  to him  under the rule would be violative of that  Article. Payment  of subsistence  allowance at  the normal rate  pending the appeal filed against the conviction of a civil servant under suspension is a step that makes the right of  appeal fruitful  and it  is  therefor  obligatory. Reduction  of  the  normal  subsistence  allowances  to  the nominal sum  of Re.  1 per  month on  conviction of  a civil servant under  suspension in  a criminal  case  pending  his appeal filed  against that  conviction,  whether  the  civil servant  is  on  bail  or  has  been  lodged  in  prison  on conviction pending consideration of his appeal, is an action which stultifies  the right  of appeal  and is  consequently unfair and  unconstitutional. Just as it would be impossible for a  civil servant under suspension who has no other means of subsistence  to defend  himself effectively  in the Trial Court with the normal subsistence allowance-there is nothing on record  in these  cases to  show that  the civil servants concerned  in   these  cases   have  any   other  means   of subsistence-it would  be impossible  for such  civil servant under  suspension   to  prosecute  his  appeal  against  his conviction  fruitfully   without  payment   of  the   normal subsistence allowance pending his appeal. Therefore, Baban’s contention  in   the  Writ  Petition  that  the  subsistence allowance is  required to  support the civil servant and his family not  only during  the  trial  of  the  criminal  case started against  him but  also during  the pendency  of  the appeal filed  in the  High Court  or this  Court against his conviction is  correct. If  any Provision in any rule framed under  Article  309  of  the  Constitution  is  illusory  or unreasonable, it  is certainly  open to  the  civil  servant concerned to  seek the  aid of  the Court for declaring that provision to  be void.  In these  circumstances, I hold that the second proviso is unreasonable and void and that a civil servant  under   suspension  is   entitled  to   the  normal subsistence allowance even after his conviction by the Trial Court pending  consideration of his appeal filed against his conviction until  the appeal  is disposed of finally one way or the other, whether he is on bail or 354 lodged in  prison on  conviction by the Trial Court. In this view,  I  dismiss  the  Civil  Appeal  and  allow  the  Writ Petition. The  parties will  bear their  respective costs in the Civil Appeal. The respondent shall pay the petitioners’s costs in the Writ Petition. S.R.                  Appeal dismissed and Petition allowed. 355