S MAALIYATHRI Vs. COMMISSIONER PALLAVARAM MUNICIPALITY

JUDGEMENT

(1.) THE writ petition is filed against the order of the respondent dated 15.4.2006 under which the respondent has placed the petitioner under suspension by invoking power under Rule 17(e)(2) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. It also states that by virtue of Rule 53(3) of the Fundamental Rules, since the petitioner has not stayed in the place fixed, he is not eligible for subsistence allowance.

(2.) THIS order is challenged by the petitioner on various grounds including that while invoking deemed suspension power under Rule 17(e) (2) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, it should be specifically stated that it is from the date of the arrest, whereas, the impugned order, which is stated on 15.4.2006, states that even though the petitioner was arrested on 4.4.2006 on the basis of the complaint given by his wife under Section 498(A) and 494 of Indian Penal Code, the order by referring to the communication of the Sub-Inspector of Women Police Station, dated 10.4.2006 only reads as if deemed suspension has come into effect from 15.4.2006. Therefore, according to the petitioner, it cannot be presumed to be deemed suspension under Rule 17(e) (2) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The order is also challenged on another ground, namely, that it does not disclose as to the place of headquarters in which the petitioner is to remain. In view of non-disclosure of the headquarters of the petitioner, it is only natural that the petitioner is entitled for subsistence allowance. However, the impugned order states by invoking Rule 53(3) of the Fundamental Rules that the petitioner is not living within the headquarters, since he was arrested and detained in a prison, which is away from the headquarters and therefore, the petitioner is not entitled for subsistence allowance under Rule 53(3) of the Fundamental Rules. Therefore, according to the petitioner, inasmuch as the place of headquarters has not been mentioned, the impugned order of suspension is against the code. The impugned order is also challenged on another ground that the impugned order has not mentioned about the public interest. On the other hand, the respondent has filed a counter-affidavit wherein it is specifically stated that it is based on the complaint given by the wife of the petitioner, he was arrested on 4.4.2006 and remanded to judicial custody by the Judicial Magistrate, Tambaram and lodged in a Central Prison, Chennai. The factum of arrest of the petitioner and having kept him under prison for more than 48 hours was intimated by the Sub-Inspector of Women Police Station by the letter dated 10.4.2006 and the same was received by the respondent on 15.4.2006 and immediately on the date of receipt, deemed provision was invoked. According to the respondent, once it is admitted that the petitioner was imprisoned on 4.4.2006, deemed provision will come into effect when the order is passed on 15.4.2006, the date on which the respondent being the employer come to know about the arrest.

(3.) AS far as the payment of subsistence allowance is concerned, it is relevant to extract Rule 53(3) of the Fundamental Rules, which is stated as follows: