IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16488 of 2007(K)
1. R.VISWAMBARAN NAIR, S/O RAMAN PILLAI,
... Petitioner
Vs
1. THE DIVISIONAL SECURITY COMMISSIONER,
... Respondent
2. THE ASST. SECURITY COMMISSIONER,
For Petitioner :SRI.P.A.NOOR MUHAMMED
For Respondent :SRI.ALEXANDER THOMAS, SC,RAILWAYS
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :08/02/2011
O R D E R
S.SIRI JAGAN, J.
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W.P.(C).No. 16488 of 2007
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Dated this the 8th day of February, 2011
J U D G M E N T
After putting in 28 years of service in the Railway Protection
Force as a Constable and Head Constable, the petitioner was
suspended from service on 5.3.2002 on the allegation that he slept
while on duty at 4.10 a.m. and also hit his superior officer. Disciplinary
action followed and he was dismissed from service. The said action is
under challenge before this Court in W.P.(C).No.28259/2006, which is
pending. The petitioner’s grievance in this writ petition is that the
petitioner had not been paid subsistence allowance during the period
when he was under suspension. The petitioner obtained Exts.P4 and P8
judgments from this Court, in which, the right for subsistence
allowance of the petitioner has been declared. Despite the same, by
Ext.P10 order, the petitioner’s claim for subsistence allowance has
been rejected on the ground that the petitioner has not presented
himself for duty as required under Rule 81.1(3) of the Railway
Protection Force Rules, 1987. It is under the above circumstances,
the petitioner has filed this writ petition seeking the following reliefs;
“1. To call for the records and issue a writ of certiorari quashing
Exts.P7 and P10.2. To issue a writ of mandamus or any other appropriate writ,
order or direction commanding the respondents to pay the
petitioner subsistence allowance with interest in respect of the
period of his suspension from service forthwith.3. To issue a writ of mandamus or any other appropriate writ,
order or direction commanding the respondents to pay thew.p.c.16488/07 2
petitioner compensation for denying him subsistence allowance
for such a long period of more than 5 years in respect of the
period of his suspension from service.”2. The contention of the respondents as per their counter
affidavit as well as the impugned order is that under Rule 81.1(3) of
the Rules, pay and allowances can be withheld if the employee does
not report for duty and the petitioner had not reported for duty during
the period of suspension.
3. I have considered the rival contentions in detail.
4. The question of eligibility of the petitioner for subsistence
allowance has been considered by this Court by Ext.P4 judgment, in
which, it was held as follows:
‘2. I heard both sides. An employee under suspension is
entitled to get subsistence allowance. Of course, this can be denied to
him, if authorised by law. The respondents, to sustain their action, rely
on the provisions of Rules 143 and 148 of the Railway Protection Force
Rules, 1987. Special mention is made about Rule 143(2) of the Rules.
The said Rules reds as follows;“Every member of the Force shall during the period of his
suspension stay at his headquarters or at such place which may
be specified by the disciplinary authority and shall present
himself daily for attendance to the authority nominated by the
disciplinary authority.”Clause (iii) of Rule 148(2) reads as follows:
“No member of the Force without good and sufficient cause
shall be absent without leave or be late for any duty.”Reliance is also placed on Rule 81 of the Rules. Special mention is
made to Rule 81.1(c). The said Rule provides that without prejudice to
any other action that may be taken against the delinquent member, it
shall be lawful for the superior officers to order deduction of his pay
and allowances for every day of absence either on desertion or without
leave. This deduction can be made only after giving such member an
opportunity to show cause.3. The case of the respondents is that the petitioner is not
w.p.c.16488/07 3
presenting himself for duty and therefore he is ineligible to get
subsistence allowance. Reliance is placed on Ext.R1(a) to submit that
this should be treated as a show cause notice as contemplated under
Rule 81.1(c) for deduction from his pay and allowances. The relevant
portion of Ext.R1(a) reads as follows;“Please note that it has been reported by IPF/TVC that the
suspension order No.VXP/227/DAR/RV/HC 29/TVC/2002 dated
05.03.02 was served to you by IPF/TVC on 12.4.2002 on your
reporting from absent and you have been advised to give our
attendance at TVC post daily at 08.00 hours and 18.00 hours
inspite of which you have been absenting yourself.If you are sick, you will report to the nearest Railway
Medical Officer and it will be advised to this Office and if not,
you will report at TVC for giving your attendance daily at 08.00
hours, failing which action will be initiated against you under
disciplinary rules.Note and acknowledge receipt.”
4. A reading of the above quoted portion of Ext.R1(a) will
show that it is not a notice to show cause why his pay and allowances
shall not be deducted. Of course, there may be power in an
appropriate case to deduct subsistence allowance for unauthorized
absence. Whatever be that, no action has so far been taken in
accordance with law by making an order for deduction by the
competent authority after issuing notice to the petitioner and hearing
him. Subsistence allowance is meant for the subsistence of the
employee. If it is not paid in time, it may even result in denial of his
right to life guaranteed under Article 21 of the Constitution of India.
Therefore, it is declared that the petitioner is entitled to get
subsistence allowance for the period he is kept under suspension. The
allowances due to him shall be paid within two months from the date
of receipt of a copy of this Judgment. This does not mean that the
petitioner can collect the allowances without complying with the Rules
regarding the same, such as, submission of non-employment
certificate etc. This direction will not stand in the way of the
respondents from making any deduction from his pay and allowances
on the basis of an order of the competent authority passed after giving
the petitioner an opportunity of being heard.’
From the same, it is evident that Rule 81.1(3) relates to deduction
from pay and allowances. The question of payment of pay and
allowances to the petitioner does not arise in this writ petition, since
the petitioner was admittedly under suspension during the relevant
w.p.c.16488/07 4
period. Apart from that, in Ext.P4 judgment, this Court has only
directed the petitioner to comply with the rules regarding the same,
such as submission of non-employment certificate etc. In Ext.P6, the
petitioner has specifically stated that non-employment certificate has
been enclosed therewith. This has not been denied in the counter
affidavit filed by the respondents. No other rules have been quoted
before me by the respondents apart from Rule 81.1(3), which do not
relate to subsistence allowance requiring the petitioner to comply with
any other requirements. As such, I am not satisfied that the petitioner
can be validly denied subsistence allowance on the ground that he did
not report for duty during the period of suspension. In this case, I note
that on suspension, the petitioner was denied the benefit of quarters
and he has been residing 30 kms. away from the office of posting and
to direct a suspended employee to travel 30 kms. every day twice
after denying him quarters, spending travelling expenses would be a
travesty of justice as well. According to me, all what the petitioner is
bound to prove is that he was not employed otherwise during the
period of suspension, for proving which he has submitted non-
employment certificate. The respondents have also no case that the
petitioner was alternatively employed during the period of suspension.
Accordingly, this writ petition is allowed. Exts.P7 and P10 orders are
quashed. The respondents are directed to the pay subsistence
w.p.c.16488/07 5
allowance to the petitioner for the period during which the petitioner
was under suspension, as expeditiously as possible, at any rate,
within one month from the date of receipt of a certified copy of this
judgment.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge