Allowed

Debaki Behera v. State of Odisha

Orissa HC10 May 2023WP(C)/13200/2023

Case brief

AI extract

What is this about?

In a writ petition, the High Court of Orissa held that deferring subsistence allowance to a suspended employee pending disciplinary or criminal proceedings violates Article 21. Quashing the Collector order, the Court directed immediate payment within four weeks.

What did the court decide?

Quashed the order of 13.12.2022 deferring allowance and directed Opposite Party No.2 to release subsistence allowance within four weeks.

Debaki Behera Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.13200 of 2023

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Smt. Debaki Behera

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…. Petitioner

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Mr. S.C.Samantaray, Advocate

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-versus-

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State of Odisha & others

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…. Opposite Parties Mr. Arnav Behera, A.S.C.

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CORAM:

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JUSTICE A.K. MOHAPATRA

Order No.

ORDER

10.05.2023

This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

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Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State. Perused the Writ Petition as well as the documents annexed thereto.

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The present Writ Petition has been filed with the following

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prayer :

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“The Petitioner, therefore, prays that this Hon’ble Court may graciously be pleased to issue Rule Nisi calling upon the Opposite Parties to show cause as to why the speaking order dated 13.12.2022 of the Collector, Keonjhar under Annexure-6 shall not be quashed.

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And as to why the Petitioner shall not be paid with subsistence allowance with effect from 18.03.2020, the date on which she was put under suspension as applicable to her and further prays as to why the departmental disciplinary proceeding No.02 of 2020 pending for more than two and half years without any proceeding shall be quashed.

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And if the Opposite Parties fail to show cause or show insufficient cause the said Rule be made absolute,

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And/or pass any other writ(s),order(s), direction(s) this Hon’ble Court deems fit and proper the facts and

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circumstances of the case in order to provide complete relief to the Petitioner.”

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Mr. S.C.Samantaray, learned counsel appearing for the Petitioner submitted that on 25.06.2009 the Petitioner was promoted to the post of Supervisor. Thereafter a Disciplinary Proceeding was initiated on 22.06.2020. Pursuant to the initiation of Disciplinary Proceeding, the Petitioner was placed under suspension, however, the Petitioner was not getting subsistence allowance. Accordingly, the Petitioner approached the Collector and District Magistrate, Keonjhar Opposite Party no.2 by filing a representation. Since her representation was not considered, the Petitioner along with others approached this Court in W.P.(C) No.481 of 2021. A coordinate Bench of this Court vide order dated 02.09.2021 disposed of the Writ Petition by directing the Collector, Keonjhar, Opposite party No.2 to consider the representation of the Petitioner and pass appropriate order in accordance with law within a period of three months. After disposal of the aforesaid Writ Petition, the Collector, Keonjhar, Opposite Party No.2 passed a speaking order dated 13.12.2022 under Annexure-6 to the Writ Petition rejecting the claim of the Petitioner for grant of subsistence allowance. Accordingly, the Petitioner has approached this Court for the second time.

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On perusal of the impugned order dated 13.12.2022 under Annexure-6, it is observed that the Opposite Party no.2 has disposed of the representation by observing that the Petitioners are liable for reversion to the former post i.e. AWW and are not entitled for the promotional post on the basis of fake educational certificate. He further observed that the claim of reinstatement in service and subsistence allowance during suspension period can only be decided only after finalization of departmental proceeding cases/criminal

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cases which arises out of FIR vide Nayakote P.S.Case No.18 dated 10.03.2020 under Sections 420, 468, 471 of the Indian Penal Code.

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After considering the observation made by the opposite Party no.2 in the impugned order dated 13.12.2022, this Court is of the considered view that the Opposite Party No.2 has committed a grave error by withholding the subsistence allowance of the Petitioner. So far as the reinstatement in service and benefits are concerned though since can be deferred by the Collector pending Disciplinary Proceeding or criminal case, however, payment of subsistence allowance has been equated with the fundamental right which has been guaranteed under Article 21 of the Constitution of India by virtue of a catena of decisions of this Court as well as Hon’ble Supreme Court of India The approach of the Collector deferring the subsistence allowance is not legally acceptable.

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At this stage, this Court would like to reiterate the verdict of Hon’ble Supreme Court in the case of Captain M.Paul Anthony –v.Bharat Gold Mines Ltd. reported in (1999) 3 SCC 679. In the abovenoted judgment the Hon’ble Supreme Court has categorically observed that join in Government service does not imply surrendering of fundamental or other rights as a human being. Therefore, payment of subsistence allowance to an employee during his suspension is linked to his right to life under Article 21 of the Constitution of India. Thus, the provision for payment of subsistence allowance made in Service Rule framed under the proviso to Article 309 of the Constitution of India or other statutory Rules including the certified Standing Orders only ensure that the Right to Life of employee is not infringed in any manner. Thus, this Court feels, the Opposite Party No.2 should have kept the aforesaid principle in mind while deciding the payment of subsistence allowance to the

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suspended employee like the Petitioner.

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Learned Additional Standing Counsel on the other hand submitted that the Collector has deferred the payment of subsistence allowance and reinstatement of the Petitioner in service, therefore no fault can be found on the Collector in passing the order dated 13.12.2022. However, learned Additional Standing Counsel did not dispute the fact that the subsistence allowance during pendency of the Disciplinary Proceeding is a right accrues to the Petitioner. Therefore the same should not have been denied in the present case.

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Upon a careful analysis of the factual background of the case and upon a consideration of the contentions raised by the learned counsel appearing for the respective parties, this Court is of the considered view that the Opposite Party No.2 has committed a grave error by coming to a conclusion that the payment of subsistence allowance shall be considered after disposal of the Disciplinary Proceeding. In such view of the matter, this Court has no hesitation in quashing the impugned order dated 13.12.2022 with regard to deferment of subsistence allowance during suspension period. Accordingly, the Opposite Party No.2 is directed to immediately release the subsistence allowance in favour of the Petitioner within a period of four weeks from the date of production of certified copy of this order.

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With the aforesaid observation/direction, the Writ Petition stands disposed of.

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Signature Not Verified

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Digitally Signed Signed by: DEBASIS AECH Designation: PA Reason: Authentication Debasis Location: OHC CUTTACK Date: 17-May-2023 16:00:38

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( A.K. Mohapatra ) Judge

Debaki Behera v. State of Odisha

Case brief

What is this about?

What did the court decide?

Debaki Behera v. State of Odisha

Case brief

What is this about?

What did the court decide?

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