Orissa High Court
Sukanti Naik vs State Of Odisha & Others on 4 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.13203 of 2023
Sukanti Naik .... Petitioner
Mr.S.C.Samantaray, Advocate
-versus-
State of Odisha & others .... Opposite Parties
Mr.Iswar Mohanty, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
Order No. ORDER
04.05.2023
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the Petitioner as well as learned
Additional Standing Counsel for the State. Perused the Writ Petition
as well as the documents annexed thereto.
3. The present Writ Petition has been filed with the following
prayer :
" The Petitioner, therefore, prays that this Hon'ble Court
may graciously be pleased to issue Rule Nisi calling upon the
Opposite Parties to show cause as to why the speaking order
dated 13.12.2022 of the Collector, Keonjhar under Annexure-6
shall not be quashed.
And as to why the Petitioner shall not be paid with
subsistence allowance with effect from 18.03.2020, the date on
which she was put under suspension as applicable to her and
further prays as to why the departmental disciplinary
proceeding No.03 of 2020 pending for more than two and half
years without any proceeding shall be quashed.
And if the Opposite Parties fail to show cause or show
insufficient cause the said Rule be made absolute,
And/or pass any other writ(s),order(s), direction(s) this
Hon'ble Court deems fit and proper the facts and
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circumstances of the case in order to provide complete relief to
the Petitioner."
4. Mr.S.C.Samantaray, learned counsel appearing for the
Petitioner submitted that on 04.07.2009 the Petitioner was promoted
to the post of Supervisor. Thereafter a Disciplinary Proceeding was
initiated on 22.06.2020. Pursuant to the initiation of Disciplinary
Proceeding, the Petitioner was placed under suspension, however, the
Petitioner was not getting subsistence allowance. Accordingly, the
Petitioner approached the Collector and District Magistrate, Keonjhar
Opposite Party no.2 by filing a representation. Since her
representation was not considered, the Petitioner along with others
approached this Court in W.P.(C) No.481 of 2021. A coordinate
Bench of this Court vide order dated 02.09.2021 disposed of the Writ
Petition by directing the Collector, Keonjhar, Opposite party No.2 to
consider the representation of the Petitioner and pass appropriate
order in accordance with law within a period of three months. After
disposal of the aforesaid Writ Petition, the Collector, Keonjhar,
Opposite Party No.2 passed a speaking order dated 13.12.2022 under
Annexure-6 to the Writ Petition rejecting the claim of the Petitioner
for grant of subsistence allowance. Accordingly, the Petitioner has
approached this Court for the second time.
5. On perusal of the impugned order dated 13.12.2022 under
Annexure-6, it is observed that the Opposite Party no.2 has disposed
of the representation by observing that the Petitioners are liable for
reversion to the former post i.e. AWW and are not entitled for the
promotional post on the basis of fake educational certificate. He
further observed that the claim of reinstatement in service and
subsistence allowance during suspension period can only be decided
only after finalistation of departmental proceeding cases/criminal
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cases which arises out of FIR vide Nayakote P.S.Case No.18 dated
10.03.2020
under Sections 420, 468, 471 of the Indian Penal Code.
6. After considering the observation made by the opposite Party
no.2 in the impugned order dated 13.12.2022, this Court is of the
considered view that the Opposite Party No.2 has committed a grave
error by withholding the subsistence allowance of the Petitioner. So
far as the reinstatement in service and benefits are concerned though
since can be deferred by the Collector pending Disciplinary
Proceeding or criminal case, however, payment of subsistence
allowance has been equated with the fundamental right which has
been guaranteed under Article 21 of the Constitution of India by
virtue of a catena of decisions of this Court as well as Hon'ble
Supreme Court of India The approach of the Collector deferring the
subsistence allowance is not legally acceptable.
7. At this stage, this Court would like to reiterate the verdict of
Hon'ble Supreme Court in the case of Captain M.Paul Anthony -v.-
Bharat Gold Mines Ltd. reported in (1999) 3 SCC 679. In the
abovenoted judgment the Hon'ble Supreme Court has categorically
observed that join in Government service does not imply
surrendering of fundamental or other rights as a human being.
Therefore, payment of subsistence allowance to an employee during
his suspension is linked to his right to life under Article 21 of the
Constitution of India. Thus, the provision for payment of subsistence
allowance made in Service Rule framed under the proviso to Article
309 of the Constitution of India or other statutory Rules including the
certified Standing Orders only ensure that the Right to Life of
employee is not infringed in any manner. Thus, this Court feels, the
Opposite Party No.2 should have kept the aforesaid principle in mind
while deciding the payment of subsistence allowance to the
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suspended employee like the Petitioner.
8. Learned Additional Standing Counsel on the other hand
submitted that the Collector has deferred the payment of subsistence
allowance and reinstatement of the Petitioner in service, therefore no
fault can be found on the Collector in passing the order dated
13.12.2022. However, learned Additional Standing Counsel did not
dispute the fact that the subsistence allowance during pendency of the
Disciplinary Proceeding is a right accrues to the Petitioner. Therefore
the same should not have been denied in the present case.
9. Upon a careful analysis of the factual background of the case
and upon a consideration of the contentions raised by the learned
counsel appearing for the respective parties, this Court is of the
considered view that the Opposite Party No.2 has committed a grave
error by coming to a conclusion that the payment of subsistence
allowance shall be considered after disposal of the Disciplinary
Proceeding. In such view of the matter, this Court has no hesitation in
quashing the impugned order dated 13.12.2022 with regard to
deferment of subsistence allowance during suspension period.
Accordingly, the Opposite Party No.2 is directed to immediately
release the subsistence allowance in favour of the Petitioner within a
period of four weeks from the date of production of certified copy of
this order.
10. With the aforesaid observation/direction, the Writ Petition
stands disposed of.
RKS ( A.K. Mohapatra )
RAMESH Digitally signed by
RAMESH KUMAR
Judge
KUMAR SINGH
Date: 2023.05.05
SINGH 18:38:42 +05'30'
