Full Judgment Text
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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
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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
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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
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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
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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 :-
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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
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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.
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