Petitioner sued for payment of subsistence allowance during suspension. Court held suspension does not terminate service. Denial based on non-reporting is unwarranted as suspension halts duty. Petitioner entitled to allowance.
Respondents directed to pay subsistence allowance per Rule 7.2 along with interest at 6% p.a. within three months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.W.P. No.2910 of 2009
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.W.P. No.2910 of 2009 Date of decision : 17.2.2010
Om Prabha Petitioner
Vs.
State of Haryana and others Respondents
CORAM:- HON'BLE MR. JUSTICE PERMOD KOHLI
Present:- Mr.Ajay Singh, Advocate for the petitioner
Mr.R.S.Bath, Senior DAG, Haryana
PERMOD KOHLI J :-
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Annexures P-3 and P4/1. It is alleged that despite representations, no subsistence allowance has been paid to the petitioner. It is stated that on account of non-payment of the subsistence allowance, the petitioner at the verge of starvation.
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C.W.P. No.2910 of 2009
“During the first six months of suspension, she will be entitled to subsistence allowance of an amount equal to leave salary and the dearness allowance and other allowances which she would have drawn, if she had been on leave, on half average pay or half pay. In case, the period of suspension exceed six months the rate of subsistence allowance payable to her will be reconsidered. The payment of the subsistence allowance is subject to the condition that she is not engaged in any other employment, business, profession or vocation.
Her Head quarter during the period of suspension shall be in the O/o Dy. Excise & Taxation Commissioner, Bhiwani and she shall remain present in the O/o Dy. Excise & Taxation Commissioner (ST), Bhiwani. She will not be entrusted with any official work or allowed to interfere with it in any way”.
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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.
(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 :-
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(b) any other compensatory allowances admissible from time to time on the basis of pa of which the Government employee was in receipt on the date of suspension subject to the fulfilment of other conditions laid down for the drawl of such allowance.
(2) No payment under sub-rule (1) shall be made unless the Government employee furnishes a certificate, and the authority which made or is deemed to have made the order of suspension is satisfied that he is not engaged in any other employment, business, profession or vocation :
Provided that in the case of a Government employed dismisses, removed or compulsorily retired from service, who suspension from the date of such dismissal or removal or compulsory retirement and who fails to produce such a certificate of any period of periods ;during which he is deemed to be placed or to continue to be under suspensions, he shall be entitled to the subsistence allowance and other allowances equal to the amount by which his earnings during such period or periods as the case may be falls short of the amount of subsistence allowance and other allowances that would otherwise admissible to him are equal to or less than the amount earned by him nothing in proviso shall apply to him”.
“An order of suspension of a government servant does not put an end to his service under the government. He
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continues to be a member of the service in spite of the order of suspension. The real effect of the order of suspension as explained by this Court in Khem Chand V. Union of India is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance – generally called subsistence allowance – which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'Subsist' as given in Shorter Oxford English Dictionary, Vol. II at page 2171 is “to remain alive as on food; to continue to exist”. “Subsistence” means – means of supporting life, especially a minimum livelihood”.
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entrusted any official work or allowed to interfere with it in any way. The intention of the employer is, thus, clear, not to engage the suspended employee for any official duty as in that eventuality the employee would be entitled to full pay. The employer has an indisputed right to place an employee under suspension but at the same time, the employer has an obligation to pay the subsistence allowance, in accordance with the service rules, to the employee, for his sustenance, which is less than the salary payable to such employee as held by the Hon'ble Supreme Court in 'O.P. Gupta Vs. Union of India (supra). The right of the suspended employee to receive subsistence allowance, has been recognized by the Rule 7.2. The nature of such right has been considered by the Hon'ble Supreme Court in “Capt. M.Paulanthony Vs. Bharat Gold Mines Ltd. And
another, 1999 SCC 679 wherein following observations have been made :-
“The order of suspension does not put an end to an employee's service and he continues to be a member of the service though he is not permitted to work and is paid only subsistence allowance which is less than his salary.
Service rules also usually provide for payment of salary at a reduced rate during the period of suspension. (See Fundamental Rule 53). This constitutes the “subsistence allowance”. If there is no provision in the rules applicable to a particular class of service for payment of salary at a reduced rate, the employer would be liable to pay full salary even during
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the period of suspension.
If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of subsistence allowance can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of non-payment of subsistence allowance, would gradually starve himself to death”.
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allowance is totally uncalled for and is unwarranted. This petition, accordingly, succeeds. Respondents are directed to pay the subsistence allowance during the period of suspension, in accordance with Rule 7.2, alongwith interest @ 6% P.A. within three months.
17.2.2010 akm
2 issues framed by the court
Whether a suspended employee is entitled to subsistence allowance despite failing to report to the designated headquarters.
Whether non-payment of subsistence allowance amounts to a violation of statutory and constitutional rights.
Colour shows how this judgement treated each authority
O.P. Gupta Vs. Union of IndiaRelied on¶40
O.P. Gupta Vs. Union of India, 1987 (4) SCC 340 · Who else cites this
Khem Chand V. Union of IndiaRelied on¶41
Khem Chand V. Union of India
Capt. M.Paulanthony Vs. Bharat Gold Mines Ltd.Relied on¶47
Capt. M.Paulanthony Vs. Bharat Gold Mines Ltd. And another, 1999 SCC 679 · Who else cites this
1 provisions across 1 enactments
Om Prabha
State of Haryana
P anderem Kohli
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
