Madhya Pradesh High Court
Yogendra Sharma vs The State Of Madhya Pradesh on 6 November, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:28189
1 WP-3635-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 6 th OF NOVEMBER, 2025
WRIT PETITION No.3635 of 2023
YOGENDRA SHARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Mr. M.P.S. Raghuvanshi - Senior Advocate with Mr. Mohammad
Amir Khan - Advocate for the petitioner.
Mr. Naval Kishore Gupta - Government Advocate for the State.
ORDER
The petitioner has filed this petition, praying for a direction to the respondents to pay him subsistence allowance from the date of order of suspension and continue to pay him the subsistence allowance every month. By way of amendment, he has also prayed for a direction to revoke his suspension.
2. The facts necessary for decision of this case are that the petitioner was initially appointed as Panchayat Secretary on 22.05.2009. At the relevant time, he was posted on the said post in Gram Panchayat Bagra Sagor, Janpad Panchayat Karera, District Shivpuri. A criminal case was registered against him at Police Station Amola for the offences punishable under Section 294, 323, 342, 506, 302 & 34 of IPC as also under certain provision of Scheduled Castes and Scheduled Tribes (Prevention of Signature Not Verified Signed by: BARKHA SHARMA Signing time: 11/11/2025 10:28:36 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:28189 2 WP-3635-2023 Atrocities) Act, 1989. In connection with the aforesaid crime, the petitioner was arrested on 14.05.2019 and was later on released on bail on 18.08.2022.
3. On account of his arrest in the criminal case, he was placed under suspension by the Chief Executive Officer, Jila Panchayat, Shivpuri, vide order dated 28.06.2019 (Annexure P/1). The petitioner was however, not paid any subsistence allowance from the date of suspension. After having released on bail, the petitioner submitted a representation before respondent no.2 & 3 on 16.09.2022 and 19.09.2022 (Annexure P/3) requesting for release of subsistence allowance from the date of suspension. Dealing with aforesaid representation of the petitioner, the Chief Executive Officer, Jila Panchayat, Shivpuri passed an order on 23.12.2022, thereby directing the payment of subsistence allowance to the petitioner with effect from 18.08.2022, i.e. the date when he was enlarged on bail. The petitioner is thus aggrieved by the denial of payment of subsistence allowance to him from the date of suspension till he was released on bail.
4. The learned Senior Counsel for the petitioner submitted that as soon as the petitioner was placed under suspension, he was entitled to get the subsistence allowance. Since, the petitioner was behind the bars, he was not in a position to attend the office. However, that would not be a ground for denying him subsistence allowance. The learned counsel also submitted that the trial of the criminal case is still pending and is likely to take substantial time and, therefore, the respondents are required to re-examine the matter of further continuance of petitioner's suspension in view of the instructions issued by the State Government, as also in view of the Apex Court Signature Not Verified Signed by: BARKHA SHARMA Signing time: 11/11/2025 10:28:36 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:28189 3 WP-3635-2023 judgement in the case of Ajay Kumar Choudhary Vs. Union of India & another reported in (2015)7 SCC 291 . He thus sprayed for issuance of suitable direction to the respondents.
5. On the other hand, the respondents' counsel supported the impugned action of the respondents and submitted that since the petitioner did not attend the office during the suspension period, he was not entitled to get the subsistence allowance. It is his submission that while the petitioner was in jail, his expenses was borne out by the State Government and, therefore, for that period, the subsistence allowance is not payable to him. The learned counsel further submitted that the petitioner is being tried for a serious crime and, therefore, his suspension is not liable to be revoked. He thus prayed for dismissal of the writ petition.
6. Considered the argument and perused the record.
7. It is not in dispute that petitioner has not been paid any amount towards subsistence allowance from the date of suspension i.e. 28.06.2019 till he was released on bail i.e. 18.08.2022. The learned Senior Counsel for the petitioner initially disputed the factum of payment of subsistence allowance even after 18.08.2022. However, subsequently excepted that subsistence allowance has been paid to the petitioner w.e.f. 18.08.2022. Thus, the issue for consideration is as to whether the petitioner is entitled to get the subsistence allowance for the period he remained in custody from 28.06.2019 to 18.08.2022?
8. The provision for payment of subsistence allowance during the period of suspension is made under FR - 53. It provides for payment of Signature Not Verified Signed by: BARKHA SHARMA Signing time: 11/11/2025 10:28:36 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:28189 4 WP-3635-2023 subsistence allowance from the date of suspension, which is liable to be enhanced periodically. The only rider is that the Govt. Servant should not be engaged in any other employment, business, profession or vocation. The said provision does not, however, prescribe any condition in which an employee can be denied subsistence allowance. For ready reference, the provisions of FR 53(1) & (2) are reproduced hereunder:
"F.R. 53. Pay and allowances of a Government servant under suspension.-
(1) A Government servant under suspension [or deemed to have been placed under suspension by an order of the appointing authority] shall be entitled to the following payments, namely:-
(i) in the case of a Commissioned Officer of the Indian Medical Department or a Warrant Officer in Civil employ who is liable to revert to military duty, the pay and allowance to which he would have been entitled had he been suspended while in military employment;
(ii) in the case of any other Government servant:-
(a) a subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half average pay or on half pay and in addition, dearness allowance, if admissible on such leave salary:
Provided that where the period of suspension exceeds 3[three] months, the authority which made or is deemed to Provided that where the period of suspension exceeds [three] months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the Signature Not Verified Signed by: BARKHA SHARMA Signing time: 11/11/2025 10:28:36 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:28189
5 WP-3635-2023 amount of subsistence allowance for any period subsequent to the period of the first [three] months as follows :
(i) the amount of subsistence allowance may be increased by a suitable amount; not exceeding 50 % of the subsistence allowance admissible during the period of the first [three] moths, 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 Government servant;
(ii) the amount of subsistence allowance may be reduce by a suitable amount not exceeding 50% of the subsistence allowance admissible during the period of the first [three] months, if, in the opinion of the said authority, the period of suspension has been prolonged due to reasons to be recorded in writing, directly attributable to the Government servant;
(iii) the rate of Dearness Allowance will be based on the increased or, as the case may be, the decreased amount of subsistence allowance admissible under sub-clauses (i) and (ii) above.] Signature Not Verified Signed by: BARKHA SHARMA Signing time: 11/11/2025 10:28:36 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:28189 6 WP-3635-2023
(b) [Any other compensatory allowances admissible from time to time on the basis of pay of which the Government servant was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the drawal of such allowances:
Provided that the Government servant shall not be entitled to the compensatory allowances unless the said authority is satisfied that the Government servant continues to meet the expenditure for which they are granted.
2) No payment under sub-rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation."
9. The subsistence allowance is payable to a suspended employee for his sustenance. The very expression subsistence allowance means, a means of supporting life, specially a minimum livelihood. This has been so held by the Apex Court in the case of State of Bihar & others Vs. Arbind, reported in (2013)16 SCC 615. It was a case where the delinquent was placed under suspension and was attached to the headquarter. He remained at headquarter for sometime and subsequently left the place as he was not in a position to remain there due to paucity of money, as even the subsistence allowance was not paid to him. On account of his absence, the ex-parte enquiry was conducted and punishment imposed. Challenging the said action, the matter travelled upto Apex Court, wherein the Court held in para 10 & 11 as under :
"10. At this juncture, it is appropriate to recapitulate the principles laid down by this Court pertaining to payment of subsistence allowance and the effect of such non-payment. It is settled in law that an order of suspension never puts an end to the service of an employee. He is only not entitled to the salary but is eligible to get Signature Not Verified Signed by: BARKHA SHARMA Signing time: 11/11/2025 10:28:36 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:28189 7 WP-3635-2023 the subsistence allowance. It has been held in Khem Chand v. Union of India [AIR 1963 SC 687] that the effect of an order of suspension is that though the employee continues to be a member of the service, he is not permitted to work and is paid only subsistence allowance which is less than his salary. The said principle has been reiterated in State of M.P. v. State of Maharashtra [(1977) 2 SCC 288 : 1977 SCC (L&S) 232].
11. It is apt to note that the subsistence allowance is governed by the service rules. It is given to a suspended employee for his sustenance. It is in a way making a provision for maintenance and survival. In O.P. Gupta v. Union of India [(1987) 4 SCC 328 :
1987 SCC (L&S) 400 : (1987) 5 ATC 14] it has been stated that the very expression "subsistence allowance" has an undeniable penal significance. It basically means--a means of supporting life, especially a minimum livelihood. Thereafter, the learned Judges proceeded to observe thus: (SCC p. 341, para 15) "15. ... It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it would imply that the executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration."
10. It is thus evident that in absence of any provision prohibiting payment of subsistence allowance on account of petitioner's remaining in custody, the action of the respondents in denying the subsistence allowance to the petitioner for the period in question is not sustainable. The petitioner was entitled to subsistence allowance from the date of his suspension as is provided under FR - 53.
11. The another submission of petitioner's counsel that the petitioner Signature Not Verified Signed by: BARKHA SHARMA Signing time: 11/11/2025 10:28:36 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:28189 8 WP-3635-2023 has remained under suspension for quite substantial time and since the trial is still likely to time, the suspension is liable to be revoked. He placed reliance upon Apex Court judgment in this regard passed in the case of Ajay Kumar Choudhary (supra). However, the case of Ajay Kumar Choudhary (supra) was a case of prolonged departmental enquiry and a case where delinquent is placed under suspension on account of his involvement in criminal case. The petitioner, therefore, do not get any help from the said judgment of Apex Court. However, it is profitable to note here that the Government of Madhya Pradesh through its General Administration Department has issued circular, dated 28.01.2013, thereby providing for periodical review of the continuance of suspension of an employee even in the case of suspension on account of criminal trial.
12. It is seen that the petitioner was suspended on 28.06.2019 and is still under suspension. The Trial is likely to take time. Thus, in view of the circular dated 28.01.2013, the petitioner is at liberty to represent before the competent authority for revocation of suspension pointing out the circumstances relevant for the purpose. The competent authority is, thereafter, required to re-examine the matter as to whether the petitioner's suspension is still warranted or not.
13. In view of the discussion made above, the petition is disposed of with the following directions :
(i) The respondents shall pay the subsistence allowance to the petitioner for the period from 28.06.2019 to 18.08.2022 within a period of 90 days from the date of submission of certified copy of this order.Signature Not Verified Signed by: BARKHA SHARMA Signing time: 11/11/2025 10:28:36 AM
NEUTRAL CITATION NO. 2025:MPHC-GWL:28189 9 WP-3635-2023
(ii) The petitioner is granted liberty to make a representation before the competent authority pointing out the circumstances relevant for revocation of his suspension and if any such representation is made, the competent authority shall re-examine the matter for further continuance of petitioner's suspension. A suitable order in this regard be passed by the competent authority in accordance with law.
14. With the aforesaid, this petition is disposed of.
(ASHISH SHROTI) JUDGE bj/-
Signature Not Verified Signed by: BARKHA SHARMA Signing time: 11/11/2025 10:28:36 AM