IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3714 of 2007(P)
1. K. KAUSALLYA, AGED 54,
... Petitioner
Vs
1. THE DIRECTOR, SCHEDULED CASTES &
... Respondent
2. THE PROJECT OFFICER,
3. THE HEADMASTER, INDIRA GANDHI
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :14/08/2009
O R D E R
T.R. Ramachandran Nair, J.
- - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C) No. 3714 of 2007-P
- - - - -- - - - - - - - - - - - - - - - - - - - -
Dated this the 14th day of August, 2009.
JUDGMENT
The petitioner is challenging the consequential orders issued with
regard to the regularization of the suspension period and the direction to
refund excess amount drawn as subsistence allowance consequent on the
culmination of disciplinary proceedings.
2. The petitioner was working as a Cook in Indira Gandhi Ashram
School, Nilambur. She is a spinster and a Scheduled Caste. Various charges
were raised in the memo and proceedings were finalised under KCS (CCA)
Rules. According to the petitioner, the enquiry was not conducted properly.
Thereafter, a major punishment of reduction from the post of Cook to the
post of Full Time Sweeper was inflicted for five years. This was
challenged in O.P.No.121/1998 by her which was disposed of by Ext.P1
judgment. Fresh proceedings were initiated against the petitioner. An order
was passed imposing punishment of withholding three annual increments
of the petitioner without cumulative effect. It is pointed out that the
petitioner was relieved from the post of cook. The petitioner again
approached this court in O.P.No.15870/1999 and this court directed the
wpc 3714/2007 2
petitioner to approach the first respondent for a reconsideration of the
matter. Thereafter, the petitioner was transferred as Cook to Indira Gandhi
Ashram School, Nilambur. While so, Ext.P3 order was issued. A reading
of Ext.P3 shows that it is based on Govt. Order dated 20.1.2006. The
petitioner was under suspension from 1.8.1996 to 22.2.1998. As per order
dated 27.1.999 of the Director of SC/ST Development Department, a
punishment of imposition of withholding three increments without
cumulative effect was imposed. As per the subsequent Govt. Order, the
suspension period was directed to be regularized as leave without allowance
and it is further provided therein that the said period will not be counted for
increment, grade promotion and leave surrender, etc. Accordingly,
directions were issued to readjust the subsistence allowance. In effect, by
Ext.P3 direction is issued to recover a sum of Rs.15,173/- from the DCRG
and a sum of Rs.16,000/- from salary. Regarding increments also,
directions are issued, whereby a revised pay fixation has also been effected.
3. Pending the writ petition, pensionary benefits were directed to be
sanctioned as per interim order dated 3.4.2009. It is submitted by the
learned Special Govt. Pleader that admissible terminal benefits have been
disbursed to the petitioner.
wpc 3714/2007 3
4. What remains is the recovery ordered from the subsistence
allowance. Learned counsel for the petitioner submitted that by no stretch
of imagination the respondents can recover the subsistence allowance paid
during the period of enquiry. The right to receive subsistence allowance is
a statutory right and any amount paid towards the same cannot be asked to
be refunded/recovered. Reliance is placed on the decision of this court in
Thomas T.J. v. Deputy Director of Education and others (ILR 2005 (4)
Ker. 37) and that of a Division Bench in Kerala State Warehousing
Corporation and others v. Pauly John T. (ILR 2006 (2) Ker.653). It is
pointed out that the reliance placed on Note 3 to Rule 56B of Part I K.S.R.
is not sustainable. In Thomas T.J.’s case (ILR 2005 (4) Ker.37), it was
held that “subsistence allowance was paid under the Rules to enable the
employee concerned to subsist. The disciplinary proceedings commenced
against him ended with the petitioner being reinstated. But, during the said
period, the petitioner was without any volition on his part, placed under
suspension. The amount thus paid to him in accordance with the Rules and
which he apparently would have spent, cannot be directed to be recovered
as liability.” The question came up before the Division Bench in
Warehouseing Corporation’s case (ILR 2006 (2) Ker.653) was whether
wpc 3714/2007 4
any recovery of subsistence allowance can be made under the Payment of
Subsistence Allowance Act, 1972. It was held that the same is not
permissible. Learned counsel for the petitioner relied upon the observations
in the said judgment that even by relying upon Note 3 to Rule 56B of Part I
K.S.R., the employer is not entitled to recover subsistence allowance paid to
the employee. A reading of the judgment shows that the question whether
Note 3 enables recovery of subsistence allowance, was not an issue therein.
After referring to the said Note, it was held that as there was nothing to
indicate that the provisions of the K.S.R. are applicable to the employees of
the State Warehousing Corporation and when a special statute governs the
parties, contracting out is not permissible. It was held in para 10 that “as far
as industrial employee is concerned, standing orders or conditions of service
governing him have to be applied for regularising his period of enforced
absence. But that should not authorise an employer to contravene the
provisions of the Payment of Subsistence Allowance Act, and to go on with
recovery steps. As far as Government employees, the standing orders are in
the form of Rules.” Beyond that, there was no consideration of the effect of
the rules. Note 3 to Rule 56B is extracted below:
“When a period of suspension is ordered to be converted into leave,
wpc 3714/2007 5
the amount of subsistence allowance and compensatory allowances
already received in excess of the leave salary and allowances
admissible on such conversion, shall be refunded.”
Therefore, going by the Note, when the period of suspension is ordered to
be converted into a leave, the amount of subsistence allowance and
compensatory allowances already received, have to be refunded.
6. Learned Special Govt. Pleader appearing for the respondents
submitted that herein, the petitioner had applied for leave without allowance
for regularising the period of suspension. It is averred in para 7 of the
counter affidavit that if the petitioner had opted to some other types of leave
other than the leave without allowance, the recovery of leave without
allowance could not have occurred.
7. In the light of the above legal position and as the petitioner has
only applied for leave without allowance, there was no other option for the
Government than to order recovery. In the light of the above, the question
is whether Ext.P3 order is correct or not. Ext.P3 is based on the
proceedings issued by the Government which is referred to as item No.2 in
Ext.P3. Practically, Ext.P3 only implements the Government Order. It is
wpc 3714/2007 6
submitted by the learned counsel for the petitioner that the recovery of so
much amount from the petitioner is too harsh. The petitioner has retired
from service on 31.5.2007. She was only a low paid employee also.
Pursuant to the interim order passed by this court, certain benefits have been
disbursed to the petitioner and going by the submissions made by the
learned Special Govt. Pleader, eligible benefits have been disbursed. The
learned counsel for the petitioner petitioner submitted that the entire
amounts have not been disbursed so far. This aspect will be verified by the
respondents.
8. The counter affidavit reveals that the recovery of subsistence
allowance would not have been occurred, if there were some other types of
leave other than leave without allowance. As noted already, the competent
authority has only implemented the Government Order by Ext.P3. Learned
counsel for the petitioner therefore submitted that the petitioner may be
allowed an opportunity before the Government itself seeking for a
relaxation of the relevant rules, so that the recovery could be withdrawn. If
the petitioner submits a representation within a period of two months from
today before the Government in the matter, the same will be considered by
the Government and appropriate orders will be passed within a further
wpc 3714/2007 7
period of three months. If the petitioner is entitled for any other benefits,
that can also be indicated in the representation. The withheld amount, as
per the interim order, will be disbursed in terms of the order to be passed by
the Government.
The writ petition is disposed of as above. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/