National Thermal Power ... vs Jaideep Das
2022 Latest Caselaw 2315 Chatt

                                 1


                                                                 AFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                        WA No. 50 of 2022


1.   National Thermal Power Corporation Ltd., through the Chariman
     Cum Managing Director, NTPC Bhawan, Scope Complex, Core
     6/7, Lodhi Road, Post and P.S. Lodhi Road, New Delhi 110003

2.   The General Manager, National Thermal Power Corporation Ltd.,
     Korba Super Power Thermal Station, Post Vikas Bhawan, P.S.
     Jamnipali, Korba 495450, Civil and Revenue Distt. Korba,
     Chhattisgarh

3.   The Director (Comml.) & Executive Director (W.R.) National
     Thermal Power Corporation Ltd., Korba Super Power Thermal
     Station, Post Vikas Bhawan, P.S. Jamnipali, Korba 495450, Civil
     and Revenue Distt. Korba, Chhattisgarh

                                                       ---- Appellants

                              Versus

Jaideep Das, S/o Late Shri Barun Kumar Das, aged about 57 years,
Manager (F&A) (Under Suspension) NTPC Korba Chhattisgarh R/o Flat
No.3B Sukriti, 6A Deshopriya Park East, Post and P.S. Deshopriya
Park, Kolkata 700029

                                                     ---- Respondent

(Cause-title taken from Case Information System)

For Appellants : Mr. Rajeev Shrivastava, Senior Advocate For Respondent : Mr. Kishore Bhaduri, Senior Advocate

Date of hearing : 23.03.2022 Date of Judgment : 08.04.2022

Hon'ble Shri Arup Kumar Goswami, Chief Justice

Hon'ble Shri Gautam Chourdiya, Judge

CAV Judgment

Per Arup Kumar Goswami, Chief Justice

Heard Mr. Rajeev Shrivastava, learned senior counsel for the

appellants-Corporation. Also heard Mr. Kishore Bhaduri, learned senior

counsel for the sole respondent.

2. This writ appeal is presented against an order dated 24.09.2021

passed by the learned Single Judge in Writ Petition (S) No.2560 of

2013.

3. The matter relates to non-payment of subsistence allowance.

4. The operative portion of the order of the learned Single Judge

dated 24.09.2021 reads as follows :

"17. In the considered opinion of this Court, the inaction of the respondents in not granting subsistence allowance to the petitioner is totally arbitrary and unfair as well as inhuman also. Petitioner is entitled for subsistence allowance in accordance with Rules 21(1) and 21(3) of the Rules of 1977 subject to compliance of condition No.5 of the order of suspension. He will file an affidavit/representation/undertaking for grant of subsistence allowance before the respondents within 30 days along with a copy of this order which will be granted in accordance

with Rule 21(1) and 21(3) of the Rules of 1977 within a period of 45 days from the date of filing of the affidavit /representation/undertaking by the petitioner. Petitioner will also be entitled for a cost of Rs.5,000/-. The respondents will be entitled for interest at the rate of 9% from the date of entitlement till the date of payment.

18. It is stated at the bar that petitioner is still in jail, therefore, direction be issued to the concerned jail authorities to permit the petitioner to file an undertaking/affidavit from jail. If such a request is made to the jail authorities, the petitioner will be permitted to do so.

19. Accordingly, this writ petition is allowed to the extent indicated herein-above. No cost(s)."

5. The petitioner joined the appellant Corporation on 24.12.1984 as

Executive Training (Finance) and was posted at National Thermal Power

Corporation Limited ('NTPC'), Delhi. After completion of training, he was

transferred to Korba and was promoted to the post of Senior Finance

Officer on 01.01.1989. He was then promoted to the post of Deputy

Manager on 01.04.1992 and thereafter, to the post of Manager

(Finance) on 01.01.1997. A First Information Report ('FIR') against the

writ petitioner was lodged at Police Station, Balco Nagar, being FIR No.

83/1999 under Sections 420, 409, 467, 468 and 471 of the Indian Penal

Code, 1860 ('IPC') read with Section 13(2) and 13(1)(d) of the

Prevention of Corruption Act, 1988, ('P.C. Act') for fraud, cheating and

mis-appropriation to the tune of Rs. 1,61,83,254/-. He was arrested on

26.02.2011 and subsequently, released on bail on 23.08.2011. On the

basis of the said FIR, a criminal case was registered in the Court of

Special Judge of Special Court For Trial of CBI Cases, Raipur, being

Special Criminal Case No. CBI/17/2002 for the Crime No. RC 10(A)99-

JBR.

6. At the time of filing of the writ petition on 21.08.2013, the trial was

in progress. Subsequently, by an order dated 11.09.2017, writ petitioner

was convicted and sentenced to undergo (i) rigorous imprisonment for

five years with fine of Rs.1,00,000/- and in default, to undergo one

month rigorous imprisonment for the offence punishable under section

420 of the IPC, (ii) rigorous imprisonment for five years with fine of

Rs.1,00,000/- and in default, to undergo one month rigorous

imprisonment for the offence punishable under section 468 of the IPC,

(iii) rigorous imprisonment for 2 years with fine of Rs.1,00,000/- and in

default, to undergo one month rigorous imprisonment for the offence

punishable under section 471 of the IPC and; (iv) rigorous imprisonment

for 7 years with fine of Rs.97,00,000/- and in default, to undergo 6

months rigorous imprisonment for the offence punishable under section

13(1)(d) read with 13(2) of the P.C. Act.

7. The writ petitioner had resigned from services of the appellant

Corporation on 28.12.1998 on the ground that he had received better

professional opportunity abroad. By letter dated 27.05.1999, the writ

petitioner was informed that acceptance of resignation was withheld and

that the same shall be processed only after all the charges brought

against him are settled.

8. On the basis of submission made by Mr. Rajeev Shrivastava,

learned counsel for the appellants on 04.02.2022 that though in a

criminal appeal filed by the writ petitioner, bail was granted by this Court

subject to payment of fine of Rs. 3 lakh, as the payment of fine could not

be made by the writ petitioner, he continues to remain in the Central Jail,

Raipur, this Court by order dated 04.02.2022 directed the appellants to

serve the writ petitioner through the Jail Superintendent within a period

of five days. Direction was also issued to the appellants to serve copy of

the pleadings of the writ petition and appeal papers to the Member

Secretary, Chhattisgarh State Legal Service Authority ('CGSLSA'), within

a period of five days, and in turn, the Member Secretary, CGSLSA was

directed to interact with the writ petitioner with regard to engagement of

counsel. It was observed that if the writ petitioner was unable to engage

a counsel on his own, then the said fact shall be placed on record by the

Member Secretary, CGSLSA so as to enable the Court to pass

appropriate orders. Subsequently, the learned counsel representing the

CGSLSA submitted that the writ petitioner had informed the Member

Secretary, CGSLSA that he is unable to engage counsel of his own.

9. In the above background, we requested Mr. Kishore Bhaduri,

learned senior counsel to appear for the writ petitioner and Mr. Bhaduri

graciously accepted our request. We also requested Mr. Sabyasachi

Bhaduri, learned counsel to assist Mr. Kishore Bhaduri, learned senior

counsel.

10. On the ground that serious allegations are made against the writ

petitioner indicating that formal charge-sheet will be issued separately,

by an order dated 21.04.1999, the writ petitioner was suspended with

immediate effect pending further proceedings and final orders in the

matter. Clause-5 of the order of suspension dated 21.04.1999 is relevant

for the purpose of this case and therefore, the same is extracted below :

"5. During the period of your suspension, you will be entitled to draw subsistence allowance as admissible under the rules. The payment of the subsistence allowance, however, will be subject to a written declaration by you that you are not engaged in other employment or business or profession or vocation as well as your observance of instructions/advice contained made from time to time."

11. Though the learned Single Judge had extracted Rule 21 of the

NTPC Conduct, Discipline and Appeal Rules, 1977 (for short, 'Rules of

1977'), which is on the subject "subsistence allowance", it will be

appropriate to quote Rule 21(1), 21(2) and 21(3) herein also for better

understanding :

"21. subsistence allowance

(1) An employee under suspension shall be entitled to draw subsistence allowance equal to 50 percent of his basic pay provided that disciplinary authority is satisfied that the employee is not engaged in any other employment or business or profession or

vocation. In addition, he shall be entitled to Dearness Allowance admissible on such subsistence allowance and any other compensatory allowance of which he was in receipt on the date of suspension provided the suspending authority is satisfied that the employee continues to meet the expenditure for which the allowance was granted.

(2) 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 :

(i) The amount of subsistence allowance may be increased to 75 percent of basic pay and allowance thereon if, in the opinion of the said authority the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the employee under suspension.

(ii) The amount of subsistence allowance may be reduced to 25 percent of basic pay and allowances thereon if in the opinion of the said authority, the period of suspension has been prolonged due to the reasons to be recorded in writing, directly attributable to the employee under suspension.

3. If an employee is arrested by the Police on criminal charge and bail is not granted, no subsistence allowance is payable. On grant of

bail, if the competent authority decides to continue the suspension, the employee shall be entitled to subsistence allowance from the date he is granted bail."

12. On a query of the Court, Mr. Shrivastava submits that charge-

sheet was not issued to the writ petitioner though in the order of

suspension dated 21.04.1999, it was stated that charge-sheet would be

issued separately. Mr. Shrivastava also submits that the service of the

writ petitioner had been terminated with effect from 24.08.2020.

13. Mr. Rajeev Shrivastava, learned counsel for the appellants

submits that after 31.03.1999, the writ petitioner neither visited the

appellant Corporation nor corresponded with the appellant Corporation

and because of the fraud committed by the writ petitioner, the FIR was

registered on 17.04.1999. He submits that the writ petitioner did not give

a written declaration as required in terms of the order of suspension

dated 21.04.1999 that he had not been engaged in any other

employment or business or profession or vocation and it was only after

12 years of issuance of order of suspension, the writ petitioner had

submitted a letter dated 07.09.2011 indicating that he had not been

engaged in any other employment or business or profession or vocation

since his suspension. Even after submitting his representation dated

13.10.2011, the writ petitioner did not pursue his claim for subsistence

allowance for two years as the writ petition was filed only in the month of

August, 2013. He submits that the learned Single Judge committed error

of law in holding that the writ petitioner would be entitled to subsistence

allowance, that too, with interest at the rate of 9% per annum from the

date of entitlement of subsistence allowance till the date of payment

inasmuch as it was the writ petitioner who had failed to comply with the

condition precedent for payment of subsistence allowance by not

submitting a written declaration in terms of Clause-5 of the order of

suspension dated 21.04.1999. It is submitted by him that the writ

petitioner did not submit the written declaration as he was absconding

and he could be finally arrested only on 26.02.2011. He has further

submitted that claim made by the writ petitioner for subsistence

allowance is barred by limitation.

14. Mr. Kishore Bhaduri, learned senior counsel, appearing for the

sole respondent submits that the learned Single Judge was wholly

justified in passing the order under challenge and no interference is

called for with regard to the aforesaid order. He submits the Rule 21(1)

of the Rules of 1977 does not provide for furnishing declaration by the

employee stating that he is not engaged in any other employment or

business or profession or vocation. It is further submitted that though no

recorded in the order, it is implicit that as the period of suspension

exceeded more than six months, not because of the fault of the writ

petitioner, the writ petitioner would be entitled to subsistence allowance

at the rate of 75% after the period of six months. He places reliance on

the judgment passed by the Hon'ble Supreme Court in Anwarun Nisha

Khatoon v. State of Bihar and Others , reported in (2002) 6 SCC 703 and

in the case of State of Bihar and Others v. Arbind , reported in (2013) 16

SCC 615.

15. We have considered the submissions made by learned counsel for

the parties and have perused the materials on record.

16. In Anwarun Nisha Khatoon (supra), the writ petition filed by the

wife of the suspended employee was dismissed. The letters patent

appeal was also dismissed on the ground that her husband was absent

for 23 years and present at the headquarter only for one day and

therefore, not entitled to subsistence allowance. The husband of the

appellant was suspended on 04.08.1967 and he died on 25.07.1990.

After the death of the husband, the wife claimed subsistence allowance.

The Hon'ble Supreme Court observed that in absence of any rule being

placed showing that suspended employee was required to mark

attendance, subsistence allowance could not be denied on the ground

that the employee had failed to mark attendance. Taking note of Rule

96(2) of the Bihar Service Code, it was, however, observed that the

respondents could ask for a certificate that the appellant's husband was

not engaged in any other employment or business or profession or

vocation. As the respondents had not asked the appellant to give such a

certificate, the Hon'ble Supreme Court directed that after an affidavit is

filed that her husband was not engaged in any other employment or

business or profession or vocation, subsistence allowance shall be

released in her favour.

17. The case of Arbind (supra) was also on the same footing. The

High Court had directed the State of Bihar to pay 50% of the arrears of

salary and the subsistence allowance in full within a period of two

months and had set aside the order of the punishment with a further

direction to commence the departmental proceeding afresh after issuing

notice to the employee. The Hon'ble Supreme Court affirmed the order

of the High Court as there was no rule which provided for presence of a

suspended employee at the headquarter. However, there was some

modification with regard to the payment of subsistence allowance in

view of the submission of the learned counsel for the respondent in the

appeal.

18. It is settled law that an order of suspension never puts an end to

the service of the employee. He is only not entitled to the salary but he is

eligible to get subsistence allowance. Subsistence allowance is given to

a suspended employee for his sustenance.

19. Rule 21 provides that an employee under suspension shall be

entitled to draw subsistence allowance at the rate of 50% of the basic

pay provided that the disciplinary authority is satisfied that the employee

is not engaged in any other employment or business or profession or

vocation. No doubt, in the rule, there is no requirement that an employee

under suspension has to give any written declaration. However, what

cannot be glossed over is that the disciplinary authroity has to be

satisfied that the employee is not engaged in any other employment or

business or profession or vocation to enable him to draw subsistence

allowance. It is for the purpose of deriving satisfaction that the

disciplinary authority, in the order dated 21.04.1999, had required the

writ petitioner to submit a written declaration that he is not engaged in

any other employment or business or profession or vocation.

20. The admitted position is that till filing of the representation dated

07.09.2011, followed by representation dated 13.10.2011, no steps were

taken by the writ petitioner for complying with the aforesaid requirement

of furnishing a declaration. The writ petitioner had not given any

explanation in the writ petition as to why he did not give such declaration

or why he had not made any representation for payment of subsistence

allowance earlier. Since the writ petitioner did not submit the requisite

declaration until filing of the representation dated 07.09.2011, followed

by representation dated 13.10.2011, no fault can be found with the

appellant Corporation in not making payment of subsistence allowance

to the writ petitioner. But once the representation was submitted by the

writ petitioner stating that he was not engaged in any other employment

or business or profession or vocation from April, 1999 either before his

arrest or after his arrest on 26.02.2011, it was incumbent on the part of

the appellant Corporation to have considered the same and take action

accordingly. However, the appellant Corporation did not take any action

on the representations.

21. The writ petitioner became entitled to receive subsistence

allowance only after he had submitted his first representation dated

07.09.2011, on which no action was taken. The writ petitioner preferred

the writ petition on 21.08.2013 i.e. within a period of about 2 years of

submitting the representation. Therefore, it cannot be said that a time-

barred claim is espoused in the writ petition.

22. In view of the above discussion, we are of the considered opinion

that no interference is called for with regard to the order of the learned

Single Judge so far as the finding to the effect that the writ petitioner is

entitled to subsistence allowance in accordance with Rule 21(1), 21(2)

and 21(3) of the Rules of 1977 subject to compliance of Clause No.5 of

the order of suspension dated 21.04.1999. However, we are of the

considered opinion that this is not a case where interest at the rate of

9% should have been granted from the date of entitlement till the date of

payment as there are laches on the part of the writ petitioner also.

Likewise, we are of the opinion that the writ petitioner is not entitled to

the cost of Rs.5,000/- and, accordingly, directions to make payment of

Rs.5,000/- and payment of interest at the rate of 9% from the date of

entitlement till the date of payment, are set aside. Rest of the directions

of the learned Single Judge are not interfered with.

23. The writ appeal is partly allowed as indicated above.

                          Sd/-                                   Sd/-

             (Arup Kumar Goswami)                     (Gautam Chourdiya)
                  Chief Justice                             Judge


Anu