Allowed

Rakeshkumar Fuljibhai Chaudhary S/O. Fuljibhai Ramjibhai Chaudhary v. State of Gujarat

Gujarat HC27 Dec 2018SCA/15531/2018

Case brief

AI extract

What is this about?

Petitioner, a suspended police sub-inspector, challenged the stoppage of his subsistence allowance under Article 226, alleging lack of hearing and breach of terms of suspension. The court held that stopping subsistence allowance is a civil consequence requiring natural justice and set aside the order directed resumption of payment with arrears.

What did the court decide?

Impugned order stopping subsistence allowance set aside; respondents directed to resume payment immediately and pay arrears within six weeks.

Rakeshkumar Fuljibhai Chaudhary S/O. Fuljibhai… — Service and Employment | Gujarat HC (2018)

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C/SCA/15531/2018 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 15531 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE N.V.ANJARIA

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==========================================================

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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any No
order made thereunder ?

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========================================================== RAKESHKUMAR FULJIBHAI CHAUDHARY S/O. FULJIBHAI RAMJIBHAI CHAUDHARY

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Versus

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STATE OF GUJARAT

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==========================================================

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Appearance:

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RAHUL SHARMA(8276) for the PETITIONER(s) No. 1

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MR KM ANTANI, AGP (1) for the RESPONDENT(s) No. 1,2

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==========================================================

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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA

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Date : 27/12/2018

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CAV JUDGMENT

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One who expects the other to conduct
perfect, has to learn to communicate in a manner
precise.

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Page 1 of 9

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C/SCA/15531/2018 CAV JUDGMENT

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2.By impugned order dated 15th June, 2018
passed by the Director General of Police, C.I.D.
(Crime & Railways) – respondent No.2 herein, the
subsistence allowance payable to the petitioner came
to be stopped. By this abrupt action the petitioner
was aggrieved and has filed the present petition
under Article 226 of the Constitution.

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3.The petitioner was serving as Reader Police
Sub Inspector to the Deputy Commissioner of Police,
Zone 6. He was charged with serious act of
insubordination and mischief while posted on
bandobast and was involved in the altercation with
the senior officer. This led to his suspension by
order dated 17th September, 2016. He was served with
the chargesheet on 28th November, 2016 and the
departmental inquiry was instituted.

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3.1It appears that father of the petitioner was
suffering from cancer and the petitioner was required
to stay with his father at Mehsana. The headquarter
of the during the suspension period was fixed at
Gandhinagar. The said personal ground of the
petitioner and request made by him was accepted by
the authorities and the petitioner was permitted to
stay at Mehsana. Communication dated 11th May,2017
issued by the competent authority of the C.I.D.
(Crime & Railways), Gandhinagar came to be passed. By
the said order the petitioner was permitted to stay
at Mehsana and to leave the headquarter for more than
seven days.

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Page 2 of 9

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C/SCA/15531/2018 CAV JUDGMENT

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3.2Now, the case of the authorities is that the
petitioner was required to report back to his
headquarter but his residential address of the
headquarter was not verifiable and the petitioner was
not available. On the ground that the petitioner did
not report back to the headquarter pursuant to the
aforesaid communication dated 11th May,2017 by which
he was allowed to leave the headquarter for more than
seven days, the impugned order came to be passed. The
impugned order provided that since there was a breach
of condition of the order of suspension and that
since the petitioner did not report back at the
headquarter, the subsistence allowance was ordered to
be discontinued.

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3.3After this order dated 15th June, 2018 of
stoppage of subsistence allowance, the petitioner
addressed communications dated 16th July, 2018, 17th
July, 2018 and others requesting that though he was
getting regular subsistence allowance until the month
of May, 2018, but thereafter it was stopped and since
the subsistence allowance was not being paid, the
petitioner was without source of livelihood and had
been finding difficult to make the two ends meet.
This was responded by letter dated 06th August, 2018
by the authority stating that the petitioner was
permitted to stay at Mehsana for more than seven
days, but thereafter had not reported.

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4.Heard learned advocate Mr.Rahul Sharma for
the petitioner and learned Assistant Government
Pleader Mr.K.M. Antani for the respondent – State and

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Page 3 of 9

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C/SCA/15531/2018 CAV JUDGMENT

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its authorities.

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5.Thus the facts emerging from the record
undisputedly reveal that after the suspension of the
petitioner he was allowed to leave the headquarter to
stay at Mehsana on the ground that his father was
suffering from cancer. This was permitted by
communication dated 11thMay, 2017, which
communication conspicuously mentioned that the
petitioner was permitted to leave the headquarter for
more than seven days, however nothing further was
mentioned and no outer limit was stated for not
staying at the headquarter. Nor the petitioner was
asked to discontinue his stay at Mehsana beyond
certain period. It appears that the petitioner stayed
at Mehsana in view of his father's illness of cancer,
for which he was permitted to stay there. This
followed the impugned order whereby the authority
discontinued the payment of subsistence allowance of
the petitioner on the ground that he had not reported
back to the original headquarter.

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5.1When communication dated 11th May, 2017 did
not provide as to when the petitioner was to report
back to the original headquarter, rather allowed the
petitioner to stay beyond seven days period unlimited
at Mehsana, and furthermore in absence of any
intimation by the authority to the petitioner to
report at the headquarter, the stoppage of
subsistence allowance on the ground that petitioner
did not report back, could be said to be unreasonable
and contrary to the very tenor of the permission

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Page 4 of 9

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C/SCA/15531/2018 CAV JUDGMENT

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mentioned in communication dated 11th May, 2017. It
was incumbent in law on the authorities to put the
petitioner to notice asking him to report at the
headquarter when the communication dated 11th May,
2017 did not mention any outer limit. The petitioner
could not be faulted, in such circumstances, when he
failed to report after seven days and stayed at
Mehsana for further period.

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5.2In addition to above aspect, there is no
gainsaying that the impugned order of stopping the
subsistence allowance to the petitioner was passed
without affording any opportunity of hearing to the
petitioner. There was no compliance of natural
justice before passing the impugned order. When
payment of subsistence allowance is denied to an
employee under suspension, and who is facing
departmental proceedings, the very factum of denial
would operate as prejudicial to the petitioner.

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5.3In State of Bihar v. Arbind [(2013) 16 SCC
615] it was observed by the Apex Court referring to
several other decisions, that it is settled law that
the order of suspension never puts an end to the
service of an employee. It was stated that the
employee is not only entitled to salary but is
eligible to get subsistence allowance. It was held in

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Khem Chand v. Union of India [AIR 1963 SC 687] that
effect of order of suspension is that though the
employee continues to be a member of the service, he
is not permitted to work and is only subsistence
allowance which is less than his salary. In O.P.

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Page 5 of 9

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C/SCA/15531/2018 CAV JUDGMENT

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Gupta v. Union of India [(1987) 4 SCC 328] it is
stated by the Supreme Court that the very expression
“subsistence allowance” has an undeniable penal
significance. It basically means – a means of
supporting life, especially a minimum livelihood.

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6.There is no manner of doubt that subsistence
allowance is a payment to the employee under
suspension which is of material importance in eye of
law and shapes as a right of the suspended employee
to be paid the amount in accordance with the rules.
Looking to the kind and nature of payment of
subsistence allowance and the corresponding right of
the employee to receive it during the suspension
period, discontinuation of this payment has to
necessarily precede the observance of principles of
natural justice. The employee has to be heard and
given opportunity before subsistence allowance being
paid to him is disallowed or discontinued to him.

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6.1It is well settled that wherever the action
entails civil consequences, natural justice has to be
complied with. In Canara Bank v. V.K. Awasthy [(2005)
6 SCC 321] the Supreme Court reaffirm that rules of
natural justice would apply even to the
administrative orders involving civil consequence. It
was observed and held thus,

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“Concept of natural justice has undergone a great deal
of change in recent years. Rules of natural justice
are not rules embodied always expressly in a statute
or in rules framed thereunder. They may be implied
from the nature of the duty to be performed under a
statute. What particular rule of natural justice
should be implied and what its context should be in a
given case must depend to a great extent on the fact

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Page 6 of 9

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C/SCA/15531/2018 CAV JUDGMENT

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and circumstances of that case, the framework of the
statute under which they enquiry is held. The old
distinction between a judicial act and an
administrative act has withered away. Even an
administrative order which involves civil consequences
must be consistent with the rules of natural justice.
The expression “civil consequences” encompasses
infraction of not merely property or personal rights
but of civil liberties, material deprivations and non-
pecuniary damages. In its wide umbrella comes
everything that affects a citizen in his civil life.”

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(Para 14)

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6.2 In Prakash Ratan Sinha v. State of Bihar

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[(2009) 14 SCC 690] it was held that equality and
fair-play necessitates compliance of natural justice.
It was observed that respondent being instrumentality
of the State, all its administrative decisions has to
be subject to the doctrine of equality and fair-play,
as incorporated in Articles 14 and 21 of the
Constitution. If any of its actions or administrative
decisions result in civil consequence, such action or
decisions are liable to be judicially reviewed and
tested on the anvil of principles of natural justice.
In that case, what was involved was the decision of
the Chief Engineer to cancel change of nomenclature
of the appellant-employee from daily-wager to
Accounts Clerk. The other side had pressed into
service the theory of useless formality or doctrine
of futile exercise. Negativing the same, the Apex
Court held that the action of the authorities had
resulted into adversely affecting the rights of the
person concerned to continue on the post which was a
civil consequence, for which observance of natural
justice was obligatory.

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Page 7 of 9

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C/SCA/15531/2018 CAV JUDGMENT

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Commissioner of Income-tax, Central-1 [(2008) 14 SCC
151] what was under consideration was order requiring
special audit under Section 142(2-A) of the Income-
Tax Act. In the context of such nature, it was held
that rule of audi alteram partem must be observed and
pre-decisional hearing has to be given. It was held
that even a pure administrative act entailing civil
consequence has to conform with rules of natural
justice.

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6.4The expression “civil consequence” is a
concept well-recognised in law. This expression
encompasses not only infraction of merely property or
personal rights but denial of civil liberties also.
All material deprivations in the nature of damages
whether pecuniary or non-pecuniary stood covered
within the concept of “civil consequence” as legally
understood. Subsistence allowance when stopped, does
evidently entail civil consequence for the employee.
Since the subsistence allowance is a payment which
sub-serves the purpose of providing livelihood to the
employee under suspension who is not getting salary
due to suspension, it is in the nature of material
deprivation to a government servant or any employee.
When the payment of subsistence allowance is stopped,
it falls under the umbrella of concept of civil
consequence, therefore unless rules of natural
justice is observed and valid cause for non-payment
for discontinuation of this allowance established,
the action would stand unsustainable in law.

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7.In view of the foregoing discussion,

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Page 8 of 9

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C/SCA/15531/2018 CAV JUDGMENT

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impugned order dated 15th June, 2018 passed by
respondent No.2 – Director General of Police, CID
(Crime), Gandhingar, stopping the subsistence
allowance of the petitioner is set aside. The
respondents are directed to resume the payment of
subsistence allowance to the petitioner with
immediate effect. The arrears which may arise by
virtue of the present order to be paid towards
subsistence allowance shall be paid within a period
of six weeks from the date of service of copy of this
order on the respondent No.2. If the arrears are not
paid within the aforesaid stipulated time of six
weeks, it shall carry interest at the rate of 9% from
the date of impugned order, that is 15th June, 2018.

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8.While complying with the aforesaid
directions about payment of subsistence allowance and
its arrears to the petitioner, it will be open to fix
the date requiring the petitioner, by giving
reasonable time, to join the headquarter.

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9.Petition stands allowed in the aforesaid

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terms.

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Direct service is permitted.

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Anup

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Page 9 of 9

Rakeshkumar Fuljibhai Chaudhary S/O. Fuljibhai Ramjibhai Chaudhary v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Rakeshkumar Fuljibhai Chaudhary S/O. Fuljibhai Ramjibhai Chaudhary v. State of Gujarat

Case brief

What is this about?

What did the court decide?

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