Madras High Court

P.Balakrishnan vs The Collector on 6 December, 2021

                                                                                     W.P.No. 6498 of 2011

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 06.12.2021

                                                          CORAM

                                   THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR

                                                       W.P.No. 6498 of 2011




                     P.Balakrishnan                                                 ..Petitioner


                                                                Vs

                     1. The Collector,
                     Villupuram, Villupuram District.

                     2.The Commissioner,
                     Mugaiyur Panchayat Union,
                     Mugaiyur, Villupuram District.                                   ..Respondents


                     Prayer: writ petition is filed under Article 226 of Constitution of India for Writ
                     of Certiorarified Mandamus, calling for records relating to the impugned order
                     of the first respondent in Na.Ka.No.Pa.E4/11079/2010, dated 04.10.2010 and
                     quash the same and direct the first respondent to treat the period of suspension
                     from 31.07.2000 to 30.01.2003 as duty period and pay full salary and other
                     allowance for the said period.

                                    For Petitioner     : Mr.P.Manoj Kumar
                                    For Respondent : Mr.J.C.Durairaj, AGP – R1
                                                        Mr.T.Sampath Kumar, GA - R2




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                                                                                             W.P.No. 6498 of 2011




                                                              ORDER

The prayer sought for in the writ petition is to call for records relating to

the impugned order of the first respondent in Na.Ka.No.Pa.E4/11079/2010,

dated 04.10.2010 and quash the same and direct the first respondent to treat the

period of suspension from 31.07.2000 to 30.01.2003 as duty period and pay

full salary and other allowance for the said period.

2. The writ petition is of the year 2011, but no counter affidavit has been

filed by the respondents till date, despite several opportunities granted by this

Court. Hence based on the available materials, this writ petition is disposed of.

3. It is the specific case of the petitioner that the writ petitioner was

placed under Suspension by proceedings of the Commissioner/2nd respondent in

Na.Ka.No.A6/3418/2000 dated 21.07.2000. The respondent has levelled six

charges against the petitioner. A criminal case was also registered against the

petitioner in C.C.No. 59 of 2002 before the Judicial Magistrate Court,

Thirukoilur. Subsequently, the said criminal case was ended in acquittal. Insofar

as the Disciplinary Proceedings is concerned, charges are still pending and no

final order has been passed. Based on the said acquittal in criminal case, the

petitioner was reinstated into service by proceedings of the 2nd respondent dated https://www.mhc.tn.gov.in/judis

W.P.No. 6498 of 2011

25.04.2005 and subsequently, he was allowed to retire from service on

superannuation.

4. According to the learned counsel for the petitioner without passing any

final orders on the representation made by the petitioner, he was allowed to

retire from service, therefore, the petitioner is entitle for benefit of treating

suspension period as duty period and consequently entire arrears are to be paid

to the petitioner.

5. On the other hand, the learned Additional Government Pleader has

submitted that the petitioner was worked as Noon Meal Organiser in Panchayat

Union School and there is no provision for granting subsistence allowance as

per the existing rules being followed by the respondents. Hence, the respondents

had not consider the claim made by the petitioner and allowed him to retire from

service on superannuation.

6. The short point involved in the present writ petition is whether the

petitioner herein is eligible for grant of subsistence allowance for the suspension

period as claimed by him.

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W.P.No. 6498 of 2011

7. The main contention put forth by the learned Government Pleader is

that the petitioner was worked as non meal organiser in the Panchayat Union

School, therefore he is not entitle for subsistence allowance. As per General

Principles, any employee who appointed either regular pay or consolidated pay,

he/she is entitle for subsistence allowance. The learned counsel for the

petitioner has also relied upon the unreported decision of this Court made in

W.P.No.17515 of 2009 dated 23.10.2009 wherein this Court relying upon the

decision of the Hon'ble Supreme Court in the case of Balvantrai Ratilal Patel

Vs.State of Maharashtra reported in AIR 1968 SC 800 has held as follows;

“6. While this Court is not inclined to interfere with the order of the suspension pending further enquiry into the charges, at the same time it cannot be said that the petitioner is not entitled for subsistence allowance for the reason that there is no provision for providing subsistence allowance. The supreme Court vide its Judgment in Balvantrai Ratilal Patel v. State of Maharashtra reported in AIR 1968 SC 800 has held that in the absence of any Rule, an employee is entitled for full wages. The following passage found in paragraph 4 may be usefully extracted below:

"4. The general principle therefore is that an employer can suspend an employee pending an inquiry into his misconduct and the only question that can arise in such suspension will relate to payment during the period of such suspension. If there is no express term relating to payment during such suspension or if there is no statutory provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim suspension. On the other hand, if there is a term in this

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W.P.No. 6498 of 2011

respect in the contract of employment or if there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension the payment will be made in accordance therewith. This principle applies with equal force in a case where the Government is an employer and a public servant is an employee with this qualification that in view of the peculiar structural hierarchy of Government administration, the employer in the case of employment by Government must be held to be the authority which has the power to appoint the public servant concerned. It follows therefore that the authority entitled to appoint the public servant is entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or statutory rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. On general principles therefore the Government, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension.

The Government may also proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. As we have already pointed out, the question as to what amount should be paid to the public servant during the period of interim suspension or suspension as a punishment will depend https://www.mhc.tn.gov.in/judis

W.P.No. 6498 of 2011

upon the provisions of the statute or statutory rules made in that connection."

7. Therefore, the writ petition stands dismissed in so far as the order of suspension is concerned. However, a direction is issued to the respondents to pay subsistence allowance to the petitioner as stipulated by the Supreme Court referred to above. No costs. Consequently, connected miscellaneous petition is closed.”

8. The facts involved in the case on hand is also identical to the facts of

the case cited supra. The petitioner herein also worked as Noon Meal Organiser

in a Panchayat Union School. He was placed under suspension and

subsequently based on the outcome of criminal case registered against him, he

was reinstated into service and allowed to retire from service on superannuation.

9. In view of the aforesaid facts and circumstances of the case and by

relying upon the decision of this Court cited supra, this Court is of the view that

the petitioner cannot be deprived of monetary benefit which he is actually

entitled to, citing absence of rule provisions. This Court is of the opinion that the

petitoner herein is entitled for subsistence allowance for the period from

31.07.2000 to 30.01.2003 i.e for the period which he was placed under

suspension.