JUDGMENT
Swatanter Kumar, J.
1. The petitioner has raised a challenge to the order dated 17.1.2003 passed by the Transport Commissioner, Haryana, vide which the claim of the petitioner for payment of increased suspension allowance from 50% to 75% as contemplated under Rule 7.2. of the C.S.R. Rules volume 1 Part (1) has been declined by the respondents.
2. Petitioner joined the service of the State as a Clerk in the Haryana Transport Department and was posted at Bhiwani. On 5.4.2000 a charge-sheet was served upon the petitioner-requiring him to file reply thereto within 15 days. On 5.7.2000 petitioner submitted his reply denying the Article of Charges. Disciplinary Authority found the reply of the petitioner unsatisfactory and consequently Enquiry Officer was appointed to conduct a regular enquiry on the basis of the said charge-sheet vide order dated 26.9.2002 the petitioner was placed under suspension. The enquiry continued. On 9.4.2001 the petitioner submitted a representation to the respondents to increase the subsistence allowance payable to him from 50% to 75% as the period of six months had lapsed. Having failed to receive any response from the respondents, the petitioner even served a legal notice upon the respondents on 8.3.2002, but again to no effect. Compelled with this situation, the petitioner filed CWP No. 17437 of 2002, which was disposed of vide order dated 29.10.2002 directing the respondents to pass appropriate orders on the basis of the legal notice served upon them by the petitioner. The request of the petitioner for grant of enhanced suspension allowance and arrears was rejected by the respondents vide order dated 20.2.2003 giving rise to the filing of the present petition.
3. The challenge by the petitioner to the impugned order is two-fold. Firstly it is an arbitrary exercise of power. Secondly, that on the correct interpretation of Rule 7.2 the respondents are duty bound to increase the suspension allowance to 75% as there is no delay attributable to the petitioner in the departmental enquiries. The respondents have filed reply where it is stated that the impugned order has been passed in accordance with law and does not suffer from any infirmity; It is further stated that a show cause notice dated 23.4.2003 was served upon the petitioner as to why his services be not terminated by way of punishment. According to the respondents, the matter is pending at that stage, subject to the satisfaction of the conditions stated in the rule. The petitioner according to the respondents, has misappropriated an amount of Rs. 24 lacs along with other employees and as such there is a likelihood of imposition of major punishment. Learned counsel for the respondents argued that on the bare reading of Rule 7.21 of the Rules there is complete direction vested in the respondents to grant or not, increase in the suspension allowance payable to the employees during pendency of departmental proceedings. At this stage it will be appropriate to refer to the relevant provisions of Rule 7.2, as under;-
7.2(1). A Government employee under suspension shall be entitled to the following payments, namely:-
(i) in the case of a Warrant Officer in Civil employ who is liable to revert to military duty, the pay and allowances to which he would have been entitled had he been suspended, while in military employment. .
(ii) in a case of any other Government employee –
a) a subsistence allowance at an amount equal to the leave salary which the Government employee would have drawn if he had been on leave on half pay, and in addition dearness allowance, if admissible. On the basis of such leave salary;
Provided that where the period of suspension exceeds six months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first six months as follows:-
(i) the amount of subsistence allowance may be increased by a suitable amount not exceeding 50 per cent of the subsistence allowance admissible during the period of the first six months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the Government employee.
(ii) the amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of first six months, if in the opinion of the said authority, the period of suspension has been prolonged due to reasons to be recorded in writing directly attributable to the Government employee.
(iii) the rate of dearness allowance will be based on the increased or as the case may be the decreased amount of subsistence allowance admissible under Clauses (i) and (ii) above:
(b) any other compensatory allowances admissible from time to time on the basis of pay of which the Government employee was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the drawl of such allowances.
(2) No payment under Sub-rule (1) shall be made unless the Government employee furnishes a certificate that he is not engaged in any other employment, business, profession or vocation.
Provided that in the case of a Government employee dismissed removed or compulsorily retired from service who is deemed to have been placed or to continue to be under suspension from the date of such dismissal or removal or compulsory retirement and who fails to produce such a certificate for any period or periods during which he is deemed to be placed or to continue to be under suspension, he shall be entitled to the subsistence allowance and other allowances equal to the amount by which his earnings during such period or period as the cases may be fall short of the amount of subsistence allowance and other allowances that would otherwise be admissible to him, where the subsistence and other allowances admissible to him are equal to or less than the amount earned by him, nothing in this proviso shall apply to him.”
4. The cumulative reading of the above rule clearly shows that the expression made in the Rule cannot be read or construed so as to vest an absolutely arbitrary discretion in the authority concerned. This expression would have to be given a wider meaning so as to place an obligation upon the competent authority to consider the case of an employee for grant of enhanced suspension allowance subject to the satisfaction of the conditions stated in the Rule. Once a delinquent official is found not guilty of causing intentional delay in conclusion of the departmental proceedings, then respondents normally must enhance the subsistence allowance in accordance with the Rule. The competent authority is duly empowered to decline increase by recording in writing the reasons thereof, but where the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the Government employee denial of increase would vest the employee with unfair results.
5. A Division Bench of this Court in the case of R.K. Garg v. HUDA, C.W.P. No. 6525 of 2001, decided on 11th July, 2002 expressed the similar view and rejected the contention of the State that employee was riot entitled to enhanced rate of suspension allowance. It was observed as under:-
“It is a settled principle of law that note to a substantive provision must be read in harmony with the principal rule so as to further the cause and object of the rule under interpretation. The note cannot be read so as to frustrate the very purpose of the rule. Rule 7.2 has been enacted carefully and it stipulates different situation and circumstances under which the increase or decease in subsistence allowance after the expiry of period of six months can be directed by the competent authority. The rule clearly postulates that where prolongation of the suspension period is not attributable to the Government employee, normally the employee would be entitled to enhancement of the subsistence allowance by an extent which the authority may consider just and proper in consonance with the rule. The language of Note (3) is suggestive that it explains what the authority is required to do for implementation of the rule. It is obligatory under this rule that an authority should review the situation in sufficient time before the expiry of the first six months of suspension period. The authority has to apply its mind and give regard to all the circumstances of the case for taking a decision under the rule. Therefore, the rule is subservient to the rule and cannot alter the nature and content of the rights and restrictions laid down under the principal rule.
A Division Bench of this Court in the case of Gujrat Singh, B.D. & P.O. v. State of Haryana and Ors., 1986(3) S.L.R. 35 under somewhat similar circumstances, where the prolongation of suspension period, the criminal case was not for the reasons directly attributable to the employee, held as under: –
“As regards the claim of the petitioner for increase by 50% of the subsistence allowance admissible to him after the expiry of the period of first six months of his suspension there is again no valid reason for not granting the same to him. All that has been contended in the Written Statement is that the criminal case against the petitioner is pending in the Court of Additional Chief Judicial Magistrate, Jind, and, therefore, he is not entitled to any increase in the subsistence allowance as claimed by him. Proviso (1) to Rule 7.2(1) ibid lays down that the increase in the subsistence allowance for the period of suspension beyond six months is to be granted to a Government servant if the period of suspension has not been prolonged for reasons directly attributable to him. There is no averment in the written statement that criminal proceedings against the petitioner have been prolonged on any ground for which he is directly responsible.”
Still in another case titled as Mulkh Raj Chhabra v. The Secretcry to Govt. of Punjab, Health & Family, 1992(3) S.C.T. 251 (P&H) (D.B.). Similar view was taken and the petitioner was granted the relief.
The order under challenge gives no reasons whatsoever for declining the relief to the petitioner. Even in the written statement, there is no averment that the petitioner is directly or even indirectly responsible for prolongation of the criminal proceedings and consequently the period of suspension. The order at the face of it is a non-speaking one. The competent authority can take into consideration all the facts and circumstances of the case, but not to the exclusion of the ingredients specified in the rule itself. The competent authority has not even made a reference in the impugned order in relation to the essential features referred under Rule 7.2.”
6. Applying the above principles to the facts and circumstances of the present case it is clear that no reasons, whatsoever, have been recorded by the competent authority and in fact it has not even been impliedly suggested in the impugned order that the delinquent was responsible for causing any delay in the conclusion of the departmental proceedings. In absence of such specific reason in writing by the respondents, it is not possible for this Court to sustain the impugned order. The order thus, must be set aside and respondents are liable to be directed to consider the case of the petitioner and grant him the enhanced suspension allowance in accordance with the Rules. Consequently, this writ petition is allowed. The impugned order Annexure P/3 dated 20.3.2003 is set aside. The petitioner shall be granted the enhanced suspension allowance in accordance with the Rules. We leave the parties to bear their own costs.
Sd/- S.S. Saron, J.