2. In the light of the judgment mentioned above, it may be impressed on all authorities concerned that they should make timely payment of subsistence allowance to Government servants who are placed under suspension so that they may not be put to financial difficulties. It may be noted that, by its very nature, subsistence allowance is meant for the subsistence of a suspended Government servant and his family during the period he is not allowed to perform any duty and thereby earn a salary. Keeping this in view, all concerned authorities should take prompt steps to ensure that after a Government servant is placed under suspension, he received subsistence allowance without delay.
3. The judgment of the Supreme Court referred to in para 1 above indicates that in that case, the disciplinary authority proceeded with the enquiry ex-parte notwithstanding the fact that the Government servant concerned had specifically pleaded his inability to attend the enqiury on account of financial difficulties caused by non-payment of subsistence allowance. The Court had held that holding the enquiry ex-parte under such circumstances, would be violative of Article 311 (2) of the Constitution on account of denial of reasonable opportunity of defence. This point may also be kept in view by all authorities concerned, before invoking the provisions of rule 14 (20) of the CCS (CCA) Rules, 1965.
[Cabinet sect.(Department of Personnel & Administrative Reforms) OM No. 11012/10/76-Estt.(A) dated 6th October, 1976].
As mentioned in the OM dated 6th October, 1976 referred to above, the Supreme Court have held that if a Government servant under suspension pleads his inability to attend the disciplinary proceedings on account of non-payment of subsistence allowance, the enquiry conducted against him, ex-parte, could be construed as denial of reasonable opportunity of defending himself. It may, therefore, once again be impressed upon all authorities concerned that after a Government servant is placed under suspension, prompt steps should be taken to ensure that immediate action is taken under FR 53, for payment of subsistence allowance and the Government servant concerned receives payment of subsistence allowance without delay and regularly subject to the fulfilment of the condition laid down in FR 53. In cases where recourse to ex-parte proceedings becomes necessary, if should be checked up and confirmed that the Government servant’s inability to attend the enquiry is not because of non-payment of subsistence allowance.
[Deptt. of Personnel & Training, OM No. 11012/17/85-Estt.(A) dated the 28th October, 1985.
(8) Erroneous detention or detention without basis –
One of the items considered by the National Council (JCM) in its meeting held in January, 1977 was a proposal of the Staff Side that a Government servant who was deemed to have been placed under suspension on account of his detention or on account of criminal proceedings against him should be paid full pay and allowances for the period of suspension if he has been discharged from detention or has been acquitted by a Court.
2. During the discussion, it was clarified to the Staff Side that the mere fact that a Government servant who was deemed to have been under suspension, due to detention or on account of criminal proceedings against him, has been discharged from detention without prosecution or has been acquitted by a Court would not make him eligible for full pay and allowances because often the acquittal may be on technical grounds but the suspension might be fully justified. The Staff Side were, however, informed that if a Government servant was detained in police custody erroneously or without any basis and thereafter he is released without any prosecution, in such cases the official would be eligible for full pay and allowances.
3. It has accordingly been decided that in the case of a Government servant who was deemed to have been placed under suspension due to his detention in police custody erroneously or without basis and thereafter released without any prosecution having been launched, the competent authority should apply its mind at the time of revocation of the suspension and re-instatement of the official and if he comes to the conclusion that the suspension was wholly unjustified, full pay and allowances may be allowed.
[Department of Personnel & A.R. OM No. 35014/9/76-Estt. (A) dated 08.08.1977].
(9) Deemed suspension on grounds of detention to be treated as revoked if conviction does not follow –
In the Committee of National Council (JCM) set up to review the CCS (CCA) Rules, 1965, the Staff Side had expressed the view that the period of deemed suspension on grounds of detention should be treated as duty in all cases where conviction did not follow. The matter was discussed and it was agreed to that in cases of deemed suspension, if the cause of suspension ceases to exist the revocation of the suspension should be automatic.
2. Attention is invited to the instruction contained in this Department’s OM No. 35014/9/76-Ests.(A) dated 08.08.1977 [decision (2) (a) above] which provides that in the case of a Government servant, who was deemed to have been placed under suspension due to detention in police custody erroneously or without basis and thereafter released without any prosecution having been launched, the competent authority should apply its mind at the time of revocation of the suspension and reinstatement of the official and if he comes to the conclusion that the suspension was wholly unjustified, full pay and allowances may be allowed. There instructions may be kept in view and scrupulously complied with in all cases where deemed suspension is found to be erroneous and the employee concerned is not prosecuted. In all such cases, the deemed suspension under Rule 10 (2) of the CCS (CCA) Rules, 1965 may be treated as revoked from the date the cause of the suspension itself ceases to exist i.e. the Government servant is released from police custody without any prosecution having been launched. However, it will be desirable for the purpose of administrative record to make a formal order for revocation of such suspension under Rule 10 (5) of the CCS (CCA) Rules, 1965.
[Deptt. of Personnel & Trg. OM No. 11012/16/85-Estt. (A) dated 10.01.1986]
