Allowed

Virendra Singh v. Director Sainik Kalyan and Rehabitation and 2 Ors.

Allahabad HC1 Nov 2019WRIA/40076/2016

Case brief

AI extract

What is this about?

The High Court allowed the writ petition in service matters, holding that subsistence allowance cannot be withheld merely due to pending criminal cases or serious allegations without cogent reasons. The petitioner was directed to release the allowance for the suspension period under Fundamental Rules.

What did the court decide?

Direct respondents to release subsistence allowance for the period 02.07.2015 to 08.03.2016 within two months.

Virendra Singh Vs Director Sainik Kalyan and… — Service and Employment | Allahabad HC (2019)

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Court No. - 81

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Case :- WRIT - A No. - 40076 of 2016

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Petitioner :- Virendra Singh Respondent :- Director Sainik Kalyan And Rehabitation And 2 Ors. Counsel for Petitioner :- Mamta Sen,Kailash Pati Singh Yadav Counsel for Respondent :- C.S.C.

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Hon'ble Prakash Padia,J.

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Heard Shri J.K. Khanna, learned counsel along with Ms. Mamta Sen, learned counsel for the petitioner and learned standing counsel for the respondents.

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The petitioner has preferred the present writ petition inter-alia with following prayers:-

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"(i) Issue an order or direction in the nature of mandamus directing the respondent No.3 to release the arrears of salary of suspension period i.e. 02.07.2015 to 08.03.2016 along with the interest ocurred thereon @ of 9% p.a.

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(ii) Issue a writ order or direction in the nature of certiorari to quash the impugned order to the extent stopping the arrears of salary for suspension period i.e. 02.07.2015 to 08.03.2016 and adverse entry of service book. (A-1) and further to quash the order dated 23.04.2016 communicating to petitioner denying the payments (A-8)"

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The facts as contained in the writ petition are that the petitioner was appointed on class IV posts as Chowkidar by the respondent no.2 namely, District Sainik Kalyan and Rehabitation Officer, Ghaziabad vide order dated 01.10.1997.

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It is contended that from the date of initial appointment, petitioner was working regularly without break. The petitioner was suspended by the respondent no.3/ District Magistrate, Ghaziabad vide order dated 02.07.2015. After conducting enquiry, ultimately an order dated 9.3.2016 was passed by the respondent no.3 by which the petitioner was reinstated in service. While reinstating the petitioner, the salary for the suspension period was stopped and adverse entry was awarded to the petitioner. It is contended that after the aforesaid order was passed, the petitioner was reinstated in service, and thereafter, he has taken compulsory retirement on 16.09.2017 and ultimately he died on 21.01.2018 without challenging the part of the order dated 9.3.2016. The petitioner has preferred the present writ petition.

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It is argued by the learned counsel for the petitioner that in view

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of the settled law, the subsistence allowance cannot be detained by the respondents in any circumstances. In this regard, counsel for the petitioner relied upon a coordinate Bench judgment of this Court passed in the case of Khem Chand Vs. State of U.P. and others , reported in 2013 (2) ADJ 681.

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In view of the same, it is argued that the petitioner is entitled for suspension allowance for the period 2.07.2015 to 08.03.2016, when the petitioner was remains under suspension. To the contrary, it is argued by the learned Standing Counsel that since very serious allegations were levelled against the petitioner, petitioner was not entitled for any suspension allowance.

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With the consent of the learned counsel for the parties, the present petition is disposed of finally at the admission stage itself.

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Heard learned counsel for the parties, perused the record of the writ petition as well as affidavits exchanged between the parties.

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From the perusal of the record, it is clear that although the petitioner was reinstated in service by the respondent No.3 vide order dated 9.3.2016, no cogent reason has been given in the entire order that in what circumstances, the petitioner was not entitled for subsistence allowance. Apart that the subsistence allowance cannot be stopped in view of decision in the case of Khem Chand (supra), wherein it is observed that mere pendency of a criminal case does not entitle the disciplinary authority not to release the suspension allowance. The relevant paragraphs of the aforesaid judgment is quoted herein below:-

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"9.Mere pendency of a criminal case does not entitle the disciplinary authority not to release the suspension allowance. The discretion can be exercised by the disciplinary authority with regard to the balance payment of the salary, but no discretion can be exercised for payment of the suspension allowance.

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10. In the light of the aforesaid, the impugned order cannot be sustained and is quashed. The writ petition is allowed and a writ of mandamus is issued commanding the competent authority to release the suspension allowance for the period when the petitioner was under suspension, as per the provision of Rule 53 of the Fundamental Rules, within 8 weeks from the date of the production a certified copy of this order."

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In the facts and circumstances of the case, the writ petition is allowed. Respondents are directed to pass a fresh order in

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accordance with law and also in view of the observations made herein above to release the subsistence allowance of the petitioner from the period 02.07.2015 to 08.03.2016 expeditiously and preferably within a period of two months from the date of production of a certified copy of this order.

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Order Date :- 1.11.2019 SFH

Virendra Singh v. Director Sainik Kalyan and Rehabitation and 2 Ors.

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Virendra Singh v. Director Sainik Kalyan and Rehabitation and 2 Ors.

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