Madras High Court
S.A.Murali vs The State Of Tamil Nadu on 3 July, 2023
W.P.No.25827 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 03.07.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
W.P.No.25827 of 2018
S.A.Murali .. Petitioner
Vs.
1. The State of Tamil Nadu,
Rep. by its Principal Secretary to Government,
Revenue Department, Secretarit, Fort St.George,
Chennai – 600 009.
2. The Director of Land Reforms,
Chepauk, Chennai – 600 005.
3. The Tahsildhar,
Namakkal Taluk,
Namakkal District. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying for the issuance of Writ of Mandamus, forbearing the respondents
from proceeding with notice issued by 2nd respondent in Letter/Memo
No.A1/13275/2004 (L.Ref) dated 23.07.2018 without making payment of
subsistence allowance to the petitioner and consequently direct the
respondent to continue to pay subsistence allowance to the petitioner from
1/11
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W.P.No.25827 of 2018
December 2017 pending disposal of Criminal Appeal filed by the petitioner
in Crl.A.No.776 of 2017 on the file of this Court.
For Petitioner : Mr.J.Jayamalan for
M/s.S.Nedunchezhiyan
For Respondents : Mr.S.Ravikumar,
Special Government Pleader.
*****
ORDER
The writ petition has been filed in the nature of writ of mandamus
seeking a direction to grant subsistence allowance to the petitioner herein
from December, 2017 to till October, 2018, even though the relief sought is
slightly different worded.
2 The petitioner was appointed as Junior Assistant
through the then Madras Public Service Commission and was allotted to join
duty in Chengalpet revenue unit and he joined duty on 11.01.1973. He then
rendered 25 years of service and was awarded with Indira Vikas Pathra vide
proceedings of the Commissioner and Director of Land Reforms dated dated
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W.P.No.25827 of 2018
20.11.1988. He was also posted as Superintendent and completed 10 years
of service as Superintendent. He was then nominated for the city list of
Tahsildar for the year 1999 and he was awarded with three appreciation
letters issued by the then Collector, Namakkal.
3 On the basis of a complaint, a criminal case was filed
against the petitioner herein and consequent to that he was placed under
suspension. Such criminal case was taken cognizance by the Special
Court/Chief Judicial Magistrate Court, Namakkal, in Spl.C.C.No.54 of 2002
under the provisions of Prevention of Corruption Act, 1989. The petitioner
was convicted by judgment dated 28.11.2017 and sentenced to undergo 2
years Simple Imprisonment with fine of Rs.1000/- for the offence under
Section 7 of Prevention of Corruption Act, 1989 and also similar sentence
and fine for the offence under Section 13(2) r/w 13(1)(d) of the Prevention
of Corruption Act, 1989. Thereafter the petitioner had filed an appeal in
Crl.A.No.776 of 2017, which is now pending before this Court. The
petitioner had filed an application seeking suspension of sentence and that
was granted on 11.12.2017. In the meanwhile since the petitioner was
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W.P.No.25827 of 2018
convicted, the subsistence allowance which was paid to him was
discontinued by the respondents. Thereafter the respondents issued show
cause notice calling upon the petitioner to clarify as to why he should not be
dismissed and after considering his request proceeded to dismiss him from
service on 04.10.2018. In the present writ petition, the actual relief is
continuation of payment of subsistence allowance from 28.11.2017 the date
of conviction till 04.10.2018 the date of dismissal from service. The other
aspects regarding his services can be examined only on passing final
judgment in the afore mentioned criminal appeal in Crl.A.No.776 of 2017.
4 The learned counsel placed reliance on the judgment of
the Hon'ble Supreme Court reported in 1983 (3) SCC 387 State of
Maharashtra vs. Chandrabhan Tale. In that particular case, the petitioner
therein was convicted by the criminal Court and he had filed an appeal
before the High Court and when the High Court was called upon to examine
the issue of payment of subsistence allowance, a direction was issued to pay
a sum of Rs.1.00 per month as subsistence allowance. The matter was taken
up before the Honourable Supreme Court and the learned Judges by a
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W.P.No.25827 of 2018
detailed judgment with respect to this particular issue, observed as follows:
“20. The learned Judges of the Division Bench have
found in the judgment under appeal that the object and purpose of
the main Rule 151 is to provide for subsistence allowance pending
suspension of the civil servant and that the subsistence allowance
mentioned in the main Rule and the second proviso means a bare
minimum which can reasonably be provided for a civil servant who
is kept under suspension and without work and therefore not
entitled to full wages. If the civil servant under suspension, pending
a departmental enquiry or a criminal trial started against him, is
entitled to subsistence allowance at the normal rate which is a bare
minimum required for the maintenance of the civil servant and his
family, he should undoubtedly get it even pending his appeal filed
against his conviction by the trial court, and his right to get the
normal subsistence allowance pending consideration of his appeal
against his conviction should not depend upon the chance of his
being released on bail and not being lodged in prison on
conviction by the trial court. Whether he is lodged in prison or
released on bail on his conviction pending consideration of his
appeal, his family requires the bare minimum by way of subsistence
allowance. Subsistence allowance provided for in the second
proviso at the nominal rate of Re 1 per month is illusory and
meaningless. The contention of the appellant that even the nominal
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W.P.No.25827 of 2018
sum of Re 1 per month is subsistence allowance for a civil servant
under suspension is as unreasonable as the contention of the
appellant that what should be the subsistence allowance for a civil
servant under suspension is for the authority empowered to frame
rules under Article 309 of the Constitution to consider and that the
civil servant who has entered service is bound by the second
proviso. The sum of Re 1 per month can never sustain a civil
servant for even a day much less for a month.”
5 The reasoning of the Honurable Supreme Court for
providing subsistence allowance even pending criminal appeal is that a civil
servant should maintain his family and also has to prosecute the criminal
appeal, which was pending before the High Court. This observation in the
aforementioned paragraph was re-emphasised in paragraph no.23, which
reads as follows.
“23. Any departmental enquiry made without payment of
subsistence allowance contrary to the provision for its payment, is
violative of Article 311(2) of the Constitution as has been held by
this court in the above decision. Similarly, any criminal trial of a
civil servant under suspension without payment of the normal
subsistence allowance payable to him under the rule would be
violative of that Article. Payment of subsistence allowance at the
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W.P.No.25827 of 2018
normal rate pending the appeal filed against the conviction of a
civil servant under suspension is a step that makes the right of
appeal fruitful and it is therefore obligatory. Reduction of the
normal subsistence allowance to the nominal sum of Re 1 per month
on conviction of a civil servant under suspension in a criminal case
pending his appeal filed against that conviction, whether the civil
servant is on bail or has been lodged in prison on conviction
pending consideration of his appeal, is an action which stultifies the
right of appeal and is consequently unfair and unconstitutional. Just
as it would be impossible for a civil servant under suspension who
has no other means of subsistence to defend himself effectively in
the trial court without the normal subsistence allowance — there is
nothing on record in these cases to show that the civil servants
concerned in these cases have any other means of subsistence — it
would be impossible for such civil servant under suspension to
prosecute his appeal against his conviction fruitfully without
payment of the normal subsistence allowance pending his appeal.
Therefore, Baban's contention in the writ petition that the
subsistence allowance is required to support the civil servant and
his family not only during the trial of the criminal case started
against him but also during the pendency of the appeal filed in the
High Court or this court against his conviction is correct. If any
provision in any rule framed under Article 309 of the Constitution is
illusory or unreasonable, it is certainly open to the civil servant
concerned to seek the aid of the court for declaring that provision to
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W.P.No.25827 of 2018
be void. In these circumstances, I hold that the second proviso is
unreasonable and void and that a civil servant under suspension is
entitled to the normal subsistence allowance even after his
conviction by the trial court pending consideration of his appeal
filed against his conviction until the appeal is disposed of finally
one way or the other, whether he is on bail or lodged in prison on
conviction by the trial court. In this view, I dismiss the civil appeal
and allow the writ petition. The parties will bear their respective
costs in the civil appeal. The respondent shall pay the petitioner's
costs in the writ petition.“
6 Once again they had taken into consideration the fact
that the civil servant though under suspension should have some means to
defend himself effectively in the trial Court and also to prosecute the appeal
against conviction. Applying the ratio to the facts of this case, it is trite to
point out the subsistence allowance is payable to civil servant during the
period of suspension from service. The petitioner herein had been suspended
and dismissed from service on 04.10.2018 and till the order of dismissal of
service, the petitioner is entitled for payment of subsistence allowance.
7 The petitioner had been convicted after due process by
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W.P.No.25827 of 2018
the trial Court for the offence under Section 7 and 13(2) r/w 13(1)(d) of
Prevention of Corruption Act, 1989, and his appeal is still pending before
this Court. The appellate court had deemed it fit to suspend the sentence.
However, even though he had been convicted, the ratio in the above case
referred would apply to the petitioner herein and I hold there is obligation of
the respondents to pay subsistence allowance till the date of his dismissal,
which effectively means the petitioner has to be paid subsistence allowance
from 28.11.2017 till 04.10.2018 the date of his dismissal from service.
8 The respondents have justified the suspension of
payment of subsistence allowance on the ground that the petitioner had been
convicted by the Court of law and that he cannot seek subsistence allowance
after his conviction, but the reasoning of the Honourable Supreme Court is
that a civil servant should also be provided with some means to prosecute his
appeal even though he had been convicted. But, in this case, such benefit
cannot be granted and subsistence allowance can be granted only till the
order of dismissal from service. In view of the reasons, though relief sought
for in this writ petition is not granted, namely payment of subsistence
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W.P.No.25827 of 2018
allowance till the disposal of the criminal appeal, still the respondents are
directed to pay the subsistence allowance till the date of dismissal from
service as afore mentioned. Such payment should be effected within a period
of twelve weeks from the date of receipt of a copy of this order.
9 The writ petition stands disposed of. No costs.
03.07.2023
Index: Yes/No
Internet: Yes/No
cgi
To
1. The Principal Secretary to Government,
Revenue Department, Secretariat, Fort St.George,
Chennai – 600 009.
2. The Director of Land Reforms,
Chepauk, Chennai – 600 005.
3. The Tahsildhar, Namakkal Taluk,
Namakkal District.
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W.P.No.25827 of 2018
C.V.KARTHIKEYAN, J.,
cgi
W.P.No.25827 of 2018
03.07.2023
https://www.mhc.tn.gov.in/judis
