Karnataka High Court

Karnataka State Road Transport ... vs The Assistant Labour ... on 8 December, 2021

Bench: Alok Aradhe, Anant Ramanath Hegde

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF DECEMBER 2021

                          PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                               AND

     THE HON'BLE MR.JUSTICE ANANT RAMANATH HEGDE

             W.A. NO.4064 OF 2019 (L-KSRTC)
                           IN
             W.P.No.16572 OF 2017 (L-KSRTC)

BETWEEN:

KARNATAKA STATE ROAD
TRANSPORT CORPORATION
BANGALORE CENTRAL DIVISION
BANGALORE
BY ITS DIVISIONAL CONTROLLER
REPRESENTED BY ITS CHIEF LAW OFFICER.
                                         ... APPELLANT
(BY MRS. RENUKA H.R. ADV.,)

AND:

1.      THE ASSISTANT LABOUR COMMISSIONER
        AND AUTHORITY FOR PAYMENT
        OF SUBSISTANCE ALLOWANCE ACT, 1988
        DIVISION 4, KARMIKA BHAVANA
        BANNERGHATTA ROAD, BANGALORE-560026.

2.      B.S. HARISH
        S/O R. SHANKARACHARYA
        SINCE DECEASED BY HIS LRS.

2(a)    BHUVANESHWARI
        W/O LATE B.S.HARISH
        AGED ABOUT 44 YEARS.
                                 2




2(b)   B.H. VIJAY
       S/O LATE B.S. HARISH
       AGED ABOUT 26 YEARS.

2(c)   B.H. MAHALAKSHMI
       D/O LATE B.S. HARISH
       AGED 25 YEARS.

       ALL ARE R/O. NO.43, 23RD CROSS
       GOVINDARAJANAGAR
       NAGARBHAVI MAIN ROAD
       BENGALURU-560079.
                                               ... RESPONDENTS
(BY MR. G.V. SHASHIKUMAR, AGA FOR R1
    MR. BALAPPA M. IRALI, ADV., FOR R2 (a-c)
LR'S OF DECEASED R2 (ABSENT))
                            ---

      THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO ALLOW THIS APPEAL AND SET-
ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED
19.09.2019 IN W.P.No.16572/2017, CONSEQUENTLY ALLOW THE
WRIT PETITION FILED BY THE APPELLANT.

     THIS W.A. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                              JUDGMENT

Smt.Renuka H.R., learned counsel for the appellant.

Mr.G.Shashikumar, learned Additional Government

Advocate for the respondent No.1.

This intra Court appeal arises against the order dated

19.09.2019 passed by the learned Single Judge by which the

writ petition preferred by the appellant has been partly

allowed and the appellant is directed to pay subsistence

allowance at the rate of 75% of the leave salary to

respondent No.2 and release the payment within one month

therefrom.

2. Facts leading to filing of this appeal briefly stated are

that the respondent No.2 was appointed as a Conductor in

the Corporation on 01.04.1988. On 31.07.2008, the report

was submitted by the Depot Manager with regard to

misappropriation of the funds of the Corporation by the

respondent No.2 while discharging duty. The respondent

No.2, by an order dated 20.08.2008, was placed under

suspension pending an enquiry. Thereafter, articles of

charges were issued to the respondent No.2 on 10.09.2008.

Despite receipt of enquiry notices, the respondent No.2 did

not participate in the enquiry. The Enquiry Officer conducted

an exparte enquiry and submitted the report on 18.03.2010.

3. On 26.03.2010, a show cause notice was issued to

the respondent No.2 along with a copy of the report of the

Enquiry Officer. The respondent No.2 submitted a reply.

However, by an order dated 01.06.2010, the respondent

No.2 was dismissed from service on the charge of

misconduct.

4. The respondent No.2 submitted a representation on

12.06.2013 by which he demanded that he be paid

subsistence allowance during the period of suspension. The

appellant was required to submit a declaration with regard to

gainful employment. However, the respondent No.2 did not

submit the aforesaid declaration. It is the case of the

appellant that Rs.1,66,010/- had to be recovered from

respondent No.2. Therefore, an amount of subsistence

allowance of Rs.1,45,444/- was appropriated by the appellant

towards the said amount and an endorsement was issued to

make payment of the balance amount of Rs.20,566/- to the

respondent No.2. The respondent No.2 submitted a claim

petition before the Assistant Labour Commissioner seeking a

direction against the appellant for payment of subsistence

allowance. The aforesaid petition was allowed by the

Assistant Labour Commissioner by an order dated

20.07.2016 and it was directed that the respondent No.2

shall be entitled to a sum of Rs.1,86,752.25. The

Corporation challenged the aforesaid order in a writ petition

before this Court which was dismissed on 19.09.2019 with a

direction to the appellant to pay the subsistence allowance at

the rate equal to 75% of the leave salary payable to the

respondent No.2 in the relevant time. In the aforesaid

factual background, this appeal has been filed.

5. Learned counsel for the appellant submitted that the

learned Single Judge, in a writ petition preferred by the

appellant, could not have enhanced the amount of

subsistence allowance payable to the respondent No.2. It is

further submitted that subsistence allowance is payable to

the respondent No.2 only with regard to Regulations 21 of

the KSRTC Servants (Conduct and Discipline) Regulations,

1971. It is further submitted that the respondent No.2

during the pendency of the enquiry, did not furnish a

declaration that he was gainfully employed and therefore, the

subsistence allowance was not rightly paid to him. It is

further submitted that the respondent No.2 has not even

assailed this order of dismissal and after a period of 5 years

from the date of suspension, has submitted an application

seeking subsistence allowance. It is also urged that despite

a contention being taken in the proceeding before the

Assistant Commissioner in the year 2014 that the respondent

No.2 has not filed an affidavit stating that he is not gainfully

employed during the period of suspension, however, the

learned Single Judge failed to appreciate the aforesaid aspect

of the matter.

6. We have considered the submissions made on both

sides and have perused the record. Regulation 21 deals with

suspension during enquiry. The relevant extract of

Regulation 21(1) and Regulation 21(5) reads as under:

21. Suspension pending inquiry:-

1) The Disciplinary Authority or any other Authority to which it is subordinate or any other Authority empowered in that behalf by the Corporation by general or special order, may place a Corporation servant under suspension

(a) Where a Disciplinary proceeding against him is contemplated or is pending or

(b) Where a case against him in respect of any criminal offence if under investigation, inquiry or trial:

Provided that where the order of suspension is made by an Authority lower than the Disciplinary Authority, such Authority shall forthwith report to the Disciplinary Authority the circumstances in which the order was made.

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5) 1) A Corporation Servant who is placed or deemed to have been placed or continue to be under suspension shall be entitled to the following payment namely:-

a) Subsistence allowance at an amount equal to the leave salary which the Corporation Servant 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, and

b) House Rent Allowance and City Compensatory Allowance admissible from time to time on the basis of pay of which the Corporation Servant was in receipt on the date of suspension subject to fulfillment of other conditions laid down for drawal of such allowance.

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:

i) The Amount of subsistence allowance may be increased by a suitable amount not exceeding fifty percent of the subsistence allowance admissible during the period of first six months, 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 Corporation servant.

ii) The amount of subsistence allowance may be reduced by a suitable amount not exceeding fifty percent of the subsistence allowance admissible during the period of the first six months, if in the opinion of the said Authority, the period of suspension has been prolonged for reasons, to be recorded in writing, directly attributable to the Corporation Servant.

iii) The amount of Dearness Allowance shall be based on the increase or decrease in the amount of subsistence allowance, as the case may be, admissible under Clause (i) and (ii) above.

2) No payment under Sub-Regulation (i) shall be made unless the Corporation Servant furnishes a Certificate that he has not engaged in any other employment, business, profession or vocation

Thus, from perusal of the aforesaid Regulations, it is

evident that the payment on account of subsistence

allowance shall not be paid to an employee unless he

furnishes a certificate that he has not been engaged in any

other employment, business, profession or vocation.

7. The respondent No.2 has remained under

suspension for a period from 20.08.2008 till 01.06.2010.

Therefore, he is entitled to subsistence allowance. However,

the aforesaid subsistence allowance cannot be released to

him until and unless he furnishes a declaration. Therefore, it

is directed that in case the respondent No.2 furnishes an

affidavit stating that he was not in employment during the