S CHANDRA MOULI Vs. SPECIAL OFFICER

JUDGEMENT

(1.) THE writ appeal is directed against the order of the learned Single Judge in WPMP (MD) No. 2058 of 2004 arising out of WP (MD)No. 1999 of 2004. THE only question raised in the present appeal is regarding the right of the appellant to get subsistence allowance during the period of his suspension.

(2.) THERE is no dispute that the present appellant was placed under suspension. He has filed W. P. No. 1999 of 2004 for quashing the order, dated 06. 09. 2002 and to pay his full pay from 10. 05. 2002. During the pendency of such writ petition, the appellant filed WPMP No. 2058 of 2004 seeking for a direction to the respondent to pay subsistence allowance. Such petition was rejected by the learned Single Judge on the ground that unless the writ petition itself is decided, the direction sought for cannot be issued. The appeal is directed against such order of the learned Single Judge. In the appeal, a miscellaneous petition has also been filed for issuing a direction to pay subsistence allowance. At the time of admission of the appeal, the learned additional Government Pleader, was directed to obtain instruction. THEREafter, a counter affidavit has been filed. Since the question raised in the direction petition and the writ petition are same, it was indicated at the time of hearing that the entire matter, namely, writ petition and the appeal would be taken up and accordingly the appeal and the writ petition along with connected miscellaneous matters are being disposed by the present order.

(3.) IN (1999) 3 SCC 679 (M. Paul Anthony v. Bharat Gold mines Ltd.), it was observed. "27. The order of suspension does not put an end to an 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. v. State of Maharashtra - (1977) 2 SCC 288 ). 28. 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. " "31. On joining government service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Government. The Government, only because it has the power to appoint does not become the master of the body and soul of the employee. The Government by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive principles of 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 Government 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 Government 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. Chandrabhan Tale (1983) 3 SCC 387 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 v. Presiding Officer (1986)3 SCC 131 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 Das shrivastava v. State of M. P. (1973) 1 SCC 656. "