Full Judgment Text
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CASE NO.:
Appeal (civil) 587 of 2005
PETITIONER:
State Government of M.P. & Ors.
RESPONDENT:
Shankarlal
DATE OF JUDGMENT: 13/12/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
S.B. Sinha, J.
1. Respondent was appointed as a Lower Division Clerk in the Public
Works Department on 25.9.1971. He was promoted as Upper Division
Clerk on 1.1.1979.
2. A departmental proceeding was initiated against him. He was placed
under suspension by an order dated 4.9.1982. In the said order of
suspension, it was clearly stipulated that subsistence allowance would be
paid to him in terms of Rule 53 of the Fundamental Rules. On or about
19.6.1982, he was transferred from Katni to Barhi. He did not join at Barhi
after the order of suspension was passed. It appears that a communication
was issued to him on 5.10.1983 asking him to collect the subsistence
allowance stating :
\023You are suspended by the Superintending
Engineer PWD (B&R) Jabalpur Circle, Jabalpur
vide order No.1164/E-11-19 of 74 dated 4.9.82 and
suspension order was sent to you, but you have
refused to take it.
(2) Charge sheet was issued by SEJC vide
No.2067/E-11-19 of 74 dated 16.10.82, and sent
through peon and 2 sub-Engineer of this Division,
but you have refused to take it.
(3) Executive Engineer, PWD (E/M) Dn.
Jabalpur Enquiry officer of your D.E. case have
served the notice for facing the DE and attending
their office, but you have refused to take it.
Please arrange to take the above letters from
their officer and produced to the undersigned, so
that further action, for sanction of suspension
allowance and other dues, can be taken by this
officer.
Please also explain for your not joining in
Barhi Sub Division with Head Quarters at Barhi
after suspension & why your absence from Barhi
should not be considered as willful absence from
Head quarters and action taken accordingly.\024
3. For a few days, namely, on 2.11.1983, 22.11.1983, 9.12.1983 and
20.1.1984, he took part in the departmental proceedings. On those days,
some witnesses on behalf of the department were examined and cross-
examined. But on 24.2.1984, he absented himself. A telegram was sent to
him asking him to submit his list of witnesses and defence on 12.3.1984. He
did not comply therewith. He also did not take part in the departmental
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proceedings on 29.3.1984. Another chance was given to him to appear
before the enquiry officer on 19.4.1984 but even on the said date he was not
present. He although was present on 5.5.1984, but did not take part in the
hearing in the said proceeding stating that he had filed an appeal before this
Court.
We may place on record that neither any number has been put in the
said purported S.L.P. nor the same was registered, although according to the
respondent, who had appeared in person before us, the said SLP was still
pending.
4. On subsequent dates, he absented himself and, thus, did not take part
in the enquiry proceedings. Out of 18 dates fixed for hearing, the respondent
was present only on five days. In the aforementioned situation, an ex parte
departmental proceeding was held wherein he was found guilty of the
charges levelled against him. We may also place on record that he collected
his subsistence allowance for the period 4.9.1982 to 20.9.1982 in January
1985 and thereafter payment till September 1984 was made in February
1987. His services, however, were terminated by an order dated 28.5.1985.
The amount of subsistence allowance of the respondent was raised from
50% to 75% on 14.6.1985.
5. He preferred an appeal thereagainst which was dismissed by the Chief
Engineer being the appellate authority on 15.11.1999.
6. An original application was filed by him before the State
Administrative Tribunal wherein, inter alia, a question in regard to non-
payment of subsistence allowance was raised. The Tribunal in its order
opined :
\023Therefore, the applicant himself is responsible for
delayed payment of the subsistence allowance, not
the respondents.\024
7. Other contentions raised by him before the Tribunal were also not
accepted. The Tribunal held that the conclusion of the enquiry officer being
based on evidence produced in the departmental enquiry, no case has been
made out for interference with the order of the Disciplinary Authority. The
original application was, therefore, dismissed.
8. On a writ petition preferred by the appellant thereagainst before the
High Court of judicature at Madhya Pradesh at Jabalpur which was marked
as Writ Petition No.1497 of 2002, a Division Bench of the High Court,
however, held that non-payment of subsistence allowance amounted to
violation of principles of natural justice, stating :
\023The Tribunal dismissed the application on the
ground that the Tribunal or Court are not the
appellate forum to review the punishment.
However, this fact cannot be marginalized and
blinked away because it goes to the root of the
matter and it has nexus with the principles of
natural justice, that unless and until subsistence
allowance is paid to the delinquent employee in
proper time, how he could take proper steps in
defending his case in the departmental enquiry. In
the present case, the period during which the
subsistence allowance was not paid was quite long
which is 4.9.1982 to 13.11.1984.
On the basis of the aforesaid premised reasons, we
set aside the order passed by the Tribunal as well
as the order terminating the services of the
petitioner passed by the authority. The petitioner
is hereby directed to be reinstated. However,
looking to the entire facts and surrounding
circumstances, we do not think it proper to award
any back wages.\024
9. Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the
State, in support of this appeal would submit that the respondent having not
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shown any prejudice in regard to non-payment of the subsistence allowance,
the High Court committed a serious error in passing the impugned judgment.
10. Respondent who appeared in person, on the other hand, contended
that non-payment of subsistence allowance violates the right to life of a
person as contained in Article 21 of the Constitution of India and in that
view of the matter, it was obligatory on the part of the appellant herein to
pay the said allowance.
11. Rule 53 of the Madhya Pradesh Fundamental Rules provides that
subsistence allowance should be paid to an employee who has been placed
under suspension. Payment of inadequate quantum of subsistence allowance
has been adversely commented by this Court [See O.P. Gupta v. Union of
India & Ors. [AIR 1987 SC 2257].
12. It is, thus, not in dispute that all facilities for receipt of payment of
subsistence allowance must be given to the delinquent officer.
13. An almost identical question in regard to payment of subsistence
allowance albeit in a different fact situation came up before this Court in
Jagdamba Prasad Shukla v. State of U.P. & Ors. [(2000) 7 SCC 90] wherein
it was opined :
\0236. It is evident from the record that the High
Court is not right in observing that the ground
sought to be urged was not taken in the claim
petition or in the writ petition. In fact, the High
Court in the latter part of the judgment observes
that :
\023for the first time, the petitioner has taken
the ground in this writ petition that he could
not attend the departmental proceedings due
to financial crunch as he was not paid his
subsistence allowance\024.
A perusal of the record shows that the contention
urged before the High Court and again before us,
was also raised before the U.P. Public Service
Tribunal and even earlier before the authorities.
The U.P. Public Service Tribunal considered it and
on the facts of the case, the Tribunal held that :
\023Therefore, those rulings where person was
unable to attend the enquiry for non-
payment of subsistence allowance, resulting
in inquiry being vitiated will not be
applicable.\024
Apart from it, in reply dated 22-1-1979 sent to the
show-cause notice, the appellant specifically stated
that he has not been paid his pay and suspension
allowance which cannot be withheld and as such
how could he be expected to reach Gorakhpur or
elsewhere due to shortage of funds. He further
stated that :
\023the applicant has requested a number of
times for drawing his pay and suspension
allowance, but the same could not be drawn
and sent to the applicant which was a serious
handicap to appear anywhere even if he so
preferred during illness and even against the
recommendations of his medical attendant\024.
The request of the appellant for payment of
subsistence allowance is also contained in his letter
dated 31-3-1978 sent to the Superintendent of
Police, Railways, Gorakhpur Section, Gorakhpur.
The said letter also contains the address of the
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appellant. The address of the appellant is in fact
contained on various communications sent by him
to the respondents. It is curious that the
respondents could serve all other communications
including the show-cause notice to the appellant
but insofar as the payment of subsistence
allowance is concerned, the plea taken is that the
appellant did not intimate his address and,
therefore, the amount could not be sent. Thus, it is
evident that despite repeated requests, the
subsistence allowance was not paid to the
appellant from the date of suspension till removal.
It is also evident that the appellant had expressed
difficulty in reaching the place of inquiry due to
shortage of funds.
8. The payment of subsistence allowance, in
accordance with the Rules, to an employee under
suspension is not a bounty. It is a right. An
employee is entitled to be paid the subsistence
allowance. No justifiable ground has been made
out for non-payment of the subsistence allowance
all through the period of suspension i.e. from
suspension till removal. One of the reasons for not
appearing in inquiry as intimated to the authorities
was the financial crunch on account of non-
payment of subsistence allowance and the other
was the illness of the appellant. The appellant in
reply to the show-cause notice stated that even if
he was to appear in an inquiry against medical
advice, he was unable to appear for want of funds
on account of non-payment of subsistence
allowance. It is a clear case of breach of principles
of natural justice on account of the denial of
reasonable opportunity to the appellant to defend
himself in the departmental enquiry. Thus, the
departmental enquiry and the consequent order of
removal from service are quashed.\024
14. We may, however, notice that in Indra Bhanu Gaur v. Committee,
Management of M.M. Degree College & Ors. [(2004) 1 SCC 281], a Bench
of this Court opined that when an opportunity had been granted to the
delinquent officer to take the subsistence allowance, it must be shown that
because of non-payment thereof, he was not in a position to participate in the
proceedings or that any other prejudice in effectively defending the
proceedings was caused to him.
15. Yet again, in U.P. State Textile Corpn. Ltd. v. P.C. Chaturvedi,(2005)
8 SCC 211, it was held :
\023Rule 41 provides that the subsistence allowance is
payable only when the employee, if required,
presents himself every day at the place of work.
Obviously, for establishing that the employee had
presented himself at the place of work, the
authorities had clearly stipulated a condition that
the attendance register was to be signed. No
explanation was offered by Respondent 1
employee as to why he did not sign the register. It
cannot be lightly brushed aside as technical and/or
inconsequential. As admittedly, Respondent 1
employee had not signed the attendance register
even though specifically required in the order of
suspension, the High Court was not justified in
coming to a conclusion that the non-signing was
not consequential or a bona fide lapse. It is also to
be noted that at various points of time the
employer informed Respondent 1 employee about
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the consequences of his not signing the attendance
register as stipulated in the order of suspension.\024
16. The High Court, in our opinion, committed a serious error in holding
that the question of prejudice is irrelevant in so far as it misread and
misinterpreted Jagdamba Prasad Shukla (supra). No law in absolute terms in
this connection was laid down therein. The relief was granted to the
appellant having regard to the fact situation obtaining therein. It was found
as of fact that no subsistence allowance, had been given. It was not
established that communication in relation to subsistence allowance was, in
fact, served upon the appellant therein and despite repeated requests,
subsistence allowance was not paid. The fact that the Court therein opined
that no justifiable ground has been made for non-payment of the subsistence
allowance all through the period of suspension till removal, may, itself be a
ground for arriving at the conclusion that the delinquent officer was
suffering from financial crunch on account thereof as also his illness.
17. The High Court, therefore, in our opinion, was required to arrive at a
correct finding of fact so as to enable it to pose unto itself the right question
for arriving at a right decision.
18. Respondent, indisputably, has been found guilty of commission of
misconduct. He, however, rightly or wrongly carried an impression that the
writ petition filed by him before this Court presumably by sending a letter to
the Chief Justice has been entertained. But, evidently, neither no such letter
was received nor the same had been entertained by this Court.
A finding of fact has been arrived at by the Tribunal that the
respondent himself was to thank himself for non-receipt of subsistence
allowance. It was held that the appellant had taken all possible steps for
disbursement of subsistence allowance.
19. We, therefore, are of the opinion that in the peculiar facts and
circumstances of the case, interest of justice shall be subserved if the
impugned judgment is set aside and the matter is remitted to the High Court
for consideration thereof afresh. The High Court may look into the records
of the case so as to enable it to arrive at a decision whether non-payment of
subsistence allowance caused any prejudice to the respondent in the event it
intends to interfere with the finding of fact arrived at by the Tribunal that the
respondent himself was responsible therefor.
20. However, we direct that in the peculiar facts and circumstances of this
case, the State should pay a sum of Rs.50,000/- (Rupees fifty thousand only)
to the respondent by way of litigation costs. The State shall also place
before the High Court all relevant records. We would request the High
Court to consider the desirability of disposing of the matter expeditiously.
21. The appeal is allowed to the aforesaid extent and with the aforesaid
directions and observations.