R VISWAMBARAN NAIR Vs. DIVISIONAL SECURITY COMMISSIONER

JUDGEMENT

(1.) AFTER putting in 28 years of service in the Railway Protection Force as a Constable and Head Constable, the petitioner was suspended from service on 5.3.2002 on the allegation that he slept while on duty at 4.10 a.m. and also hit his superior officer. Disciplinary action followed and he was dismissed from service. The said action is under challenge before this Court in W.P.(C).No.28259/2006, which is pending. The petitioner's grievance in this writ petition is that the petitioner had not been paid subsistence allowance during the period when he was under suspension. The petitioner obtained Exts.P4 and P8 judgments from this Court, in which, the right for subsistence allowance of the petitioner has been declared. Despite the same, by Ext.P10 order, the petitioner's claim for subsistence allowance has been rejected on the ground that the petitioner has not presented himself for duty as required under Rule 81.1(3) of the Railway Protection Force Rules, 1987. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs;

(2.) THE contention of the respondents as per their counter affidavit as well as the impugned order is that under Rule 81.1(3) of the Rules, pay and allowances can be withheld if the employee does not report for duty and the petitioner had not reported for duty during the period of suspension. 3.I have considered the rival contentions in detail. 4. THE question of eligibility of the petitioner for subsistence allowance has been considered by this Court by Ext.P4 judgment, in which, it was held as follows: '2. I heard both sides. An employee under suspension is entitled to get subsistence allowance. Of course, this can be denied to him, if authorised by law. THE respondents, to sustain their action, rely on the provisions of Rules 143 and 148 of the Railway Protection Force Rules, 1987. Special mention is made about Rule 143(2) of the Rules. THE said Rules reds as follows; "Every member of the Force shall during the period of his suspension stay at his headquarters or at such place which may be specified by the disciplinary authority and shall present himself daily for attendance to the authority nominated by the disciplinary authority." Clause (iii) of Rule 148(2) reads as follows: "No member of the Force without good and sufficient cause shall be absent without leave or be late for any duty." Reliance is also placed on Rule 81 of the Rules. Special mention is made to Rule 81.1(c). THE said Rule provides that without prejudice to any other action that may be taken against the delinquent member, it shall be lawful for the superior officers to order deduction of his pay and allowances for every day of absence either on desertion or without leave. This deduction can be made only after giving such member an opportunity to show cause.