M V GOPAKUMAR Vs. KERALA STATE NIRMITHI KENDRA

JUDGEMENT

(1.) The first among the two Writ Appeals is by respondents 1 and 2. They will be described as the appellant, in this judgment. The second is by the writ petitioner.

(2.) The writ petitioner was appointed as Accountant on 17.1.1990. He was promoted, according to him, as Assistant Manager (Accounts) on 22.9.1997. Later he was placed under suspension on 30.4.1999. He was not paid subsistence allowance though an enquiry was proceeded with. He represented for payment of subsistence allowance. That request was declined as per Ext.P7 order relying on KESNIK Disciplinary Proceedings and Appeal Rules, 2001 Ext.P9. Clause III(e) of the said Rules provides that an employee/volunteer placed under suspension shall not be eligible for any honorarium or other benefits, but in the event of he being fully exonerated, the period of suspension shall be treated as duty for all purposes. Accordingly the petitioner approached this Court impugning Ext.P7 denial of subsistence allowance and the provision in Ext.P9 as mentioned above which provides that an employee/volunteer under suspension shall not be paid subsistence allowance.

(3.) It was contended before the learned Single Judge that when the petitioner was placed under suspension on 30.4.1999, the said Exhibit P9 Rules had not come into force. It was enforced with effect from 30.3.2001. Until then there was no Rule depriving an employee from getting subsistence allowance. It was further contended that the said provision in Exhibit P9 Rules enabling deprivation of subsistence allowance which is to be provided for sustenance of an employee was opposed to the fundamental rights of the petitioner guaranteed under Article 21 of the Constitution of India and that it is too unfair and unethic and therefore, militate against his fundamental rights guaranteed under Article 14 of the Constitution of India. This contention was resisted by the employer, the appellants in W.A.No. 2146 of 2002 urging that the petitioner was not really an employee, but was only engaged as a volunteer at his own instance to perform certain works in the accounts section of the appellant which is a Society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Act, of course, owned by the Government of Kerala. When he had volunteered to do some work and when he was so engaged as a volunteer, there arises no employer-employee relationship between them. When there is no such relationship, there arises no liability to pay subsistence allowance. He was not an employee to be eligible for subsistence allowance. It is further submitted that even in the case of volunteers, it was specifically stipulated in Exhibit P9 Rules that pending disciplinary action they will not be entitled for any type of allowance or benefits. Therefore, he did not have an entitlement for any remuneration during the period of suspension. So there is nothing illegal in Ext.P7 communication denying him subsistence allowance and the in Rules in Exhibit P9 which disables an employee placed under suspension from getting subsistence allowance. It is further submitted that unlike in Civil Services, volunteers/employees in the service of the appellant are not disabled from seeking any other avocation during the period of suspension. So he could have even during suspension opted for other avocation to find subsistence for him and his family. So he was not entitled for subsistence allowance on that count as well. It is further submitted that he had never been placed under suspension. He was only kept away from duty. That also shows that there was no employer-employee relationship between them and therefore no entitlement for payment of subsistence allowance.