Non-Payment of Subsistence Allowance Does Not Vitiate Disciplinary Proceedings Absent Proof of Prejudice or Incapacity.

The Petitioner, a Sub-Inspector in the Border Security Force (BSF), was declared absent without leave (AWL) effective 12.12.2017

Following an FIR for embezzlement of welfare funds, he was placed under "deemed suspension" from his date of arrest on 12.03.2018

Despite the revocation of his suspension on 17.11.2020 and multiple directives to rejoin his post in Tripura, the Petitioner failed to report until 21.05.2022

A General Security Force Court (GSFC) tried the Petitioner for two charges of unauthorised absence, resulting in his dismissal from service on 12.12.2024

The Petitioner challenged the dismissal and the non-payment of subsistence allowance during his absence

1. Whether disciplinary proceedings for unauthorised absence are barred during the pendency of a criminal trial for a distinct offence under Section 80 of the BSF Act, 1968

2. Whether the non-payment of subsistence allowance vitiates disciplinary proceedings if the delinquent officer fails to report to the assigned headquarters

3. Whether the punishment of dismissal for a four-year unauthorised absence is shockingly disproportionate

The court applied Section 80 of the BSF Act, 1968, clarifying that BSF authorities maintain jurisdiction over service-specific offences like unauthorised absence despite concurrent criminal proceedings for civil offences

It applied Fundamental Rule (FR) 53 regarding subsistence allowance, noting that such allowance is contingent upon compliance with reporting requirements

The court distinguished Ghanshyam Das Shrivastava v. State of Madhya Pradesh and State of Bihar v. Arbind, establishing that non-payment of subsistence allowance only vitiates an inquiry if the employee proves "prejudice" or a total inability to participate due to lack of funds

The court invoked the limited scope of judicial review under Article 226 of the Constitution, which restricts interference to cases of perversity or patent illegality

The Court rejected the Petitioner’s contention that the pending embezzlement FIR stayed disciplinary action, noting that the charges of AWL were entirely disjunct from the criminal allegations

Regarding subsistence allowance, the Court found the Petitioner’s reliance on precedent misplaced because he had participated in the proceedings and failed to prove that his absence was due to financial incapacity; rather, his absence was a "wilful" choice to avoid a post in Tripura

The Court noted that the Petitioner remained absent for nearly four years and failed to provide cogent medical evidence of depression or legal proof that bail conditions restricted his travel to his place of posting

Since the Petitioner was in a disciplined force, his prolonged unauthorised absence was deemed a serious breach of duty

The Court ruled that an employee cannot claim subsistence allowance while failing to report to the designated headquarters without a valid excuse

The Court answered the issues in the negative and dismissed the petition, finding the punishment of dismissal appropriate and not disproportionate given the four-year duration of the absence. All prayers for reinstatement and arrears were denied