Madras High Court
S.Arumai Nayagam vs The Inspector General Of Police on 11 January, 2019
Author: R.Mahadevan
Bench: R.Mahadevan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 21.02.2019
Delivered on : 05.03.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
W.P.[MD]No.2668 of 2019
and
W.M.P.(MD)No.2015 of 2019
S.Arumai Nayagam : Petitioner
Vs.
1.The Inspector General of Police,
Tamil Nadu Police Academy,
Oonamancherry,
Kolapakkam,
Vandaloor,
Chennai-600 127.
2.The Deputy Superintendent of Police,
(Enquiry Officer),
Tamil Nadu Police Academy,
Oonamancherry,
Kolapakkam,
Vandaloor,
Chennai-600 127. : Respondents
http://www.judis.nic.in
2
PRAYER: Writ Petition is filed under Article 226 of the Constitution
of India, praying for the issuance of a Writ of Certiorarified
Mandamus, to call for the records relating to the proceedings in
Rc.No.E1/7105/2016, dated 11.01.2019 on the file of the first
respondent herein and to quash the same.
For Petitioner : Mrs.P.Jessi Jeeva Priya
For Respondents : Mrs.J.Padmavathi Devi,
Special Government Pleader
*********
ORDER
*********** Challenge in this Writ Petition is to the order dated 11.01.2019 of the first respondent, whereby and whereunder, the request of the petitioner for payment of subsistence allowance was rejected.
2. The facts, in brief, are as follows:
(i) The petitioner was appointed as a Police Constable Grade II on 11.07.2005 and worked in various Armed Reserves.
Subsequently, on participation in the selection of Sub-Inspector, he got selected and appointed vide order dated 12.02.2016. Meantime, a charge memo in PR.No.19/2016, dated 22.02.2016 under Rule 3(b) was issued, on the basis of the complaint given by http://www.judis.nic.in 3 one Ramu, a woman constable, as if the petitioner made promise to marry her and later, cheated. However, on enquiry, action was dropped by proceedings dated 07.03.2016.
(ii) Based on the same, he joined the Sub-Inspector training under the respondents on 09.03.2016. While so, the very same complainant Ramu made another complaint dated 03.09.2016 with the same allegations, pursuant to which, an FIR was registered on 03.09.2016 in Crime No.18 of 2016 on the file of All Women Police Station, Tirunelveli. Thereafter, the said Ramu committed suicide and since her relatives involved in road roko, another FIR has been registered against the petitioner in Crime No.175 of 2016, on 11.10.2016.
(iii) Based on the registration of FIR in Crime No.18 of 2016, the petitioner was suspended by proceedings dated 14.10.2016 of the first respondent and he was arrested and released on interim bail subject to certain conditions and it was made absolute subsequently.
(iv) Pursuant to the registration of criminal proceedings, a charge memo was issued by the second respondent by proceedings http://www.judis.nic.in 4 in PR.No.13/2017, dated 24.07.2017 under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955.
(v) While so, the petitioner made a representation dated 27.01.2018 seeking payment of subsistence allowance, which was not responded to and hence, after sometime, the petitioner made another representation dated 10.12.2018 for similar relief as claimed in the earlier representation. However, without considering the same, the second respondent continued the enquiry and issued notices dated 10.12.2018, 26.12.2018, 29.12.2018, 08.01.2019 and 10.01.2019. The petitioner attended all the enquiry proceedings without payment of subsistence allowance. In this situation, the first respondent, by proceedings dated 11.01.2019, rejected the request of the petitioner stating that the petitioner has not furnished the requisite certificate to the effect that he is not engaged in any employment, business, profession or vocation and hence, he is not eligible for payment of subsistence allowance and he is not staying in the headquarters mentioned in the suspension order. Questioning the same, the petitioner is before this Court. http://www.judis.nic.in 5
3. The first respondent filed a counter-affidavit contending inter alia that the petitioner was placed under suspension with effect from 14.10.2016 for having involved in the criminal cases in Cr.Nos.18 and 175 of 2016. In the suspension order itself, it was specifically stated that the petitioner should not leave the headquarters without prior permission, but, the petitioner left the quarters and resided elsewhere.
4. Further, it is stated that as per Rule 53(2) of the Fundamental Rules, subsistence allowance shall be granted to all the employees, who are placed under suspension, provided they submit a requisition on the next day of the succeeding calendar month that they have not undertaken any employment and they do not have source of income. The said certificate shall be produced every month for drawal of subsistence grant. Further, as per FR 53(3), if the suspended employee is not residing in the place where his headquarters is fixed in the suspension order, he shall not be paid subsistence grant. If he is in need to change the headquarters, he shall get prior permission in writing of the appropriate authority for change of headquarters. In the instant case, the petitioner neither requested for change of headquarters nor requested for http://www.judis.nic.in 6 sanction of subsistence grant every month. Right from the day one of his suspension to till date, he had represented only twice, that too, nearly after 14 and 26 months of placing him under suspension. If the petitioner is really in need of subsistence allowance, he ought to have raised the plea on the next month of his suspension. Thus, the act of the petitioner not requesting subsistence grant itself shows his mala fide intention and there is no necessity to pay him the subsistence grant. For the petitioner's representation seeking subsistence grant, the first respondent negated his claim, however, with an endorsement directing him to re-submit his application for sanction of subsistence grant, after getting orders on change of headquarters, vide memo in Rc.No.E1/7105/2016, dated 11.01.2019. Now, the petitioner's request for change of headquarters to Tirunelveli was ordered in Rc.No.E1/7105/2016, dated 07.02.2019. Stating so, the first respondent prays for dismissal of the Writ Petition.
5. The learned counsel for the petitioner submits that one of the reasons projected by the first respondent for rejection of the petitioner's claim is that he did not stay at the headquarters mentioned in the suspension order. The said reason is unjustifiable, as the petitioner was immediately arrested in connection with http://www.judis.nic.in 7 Crime Nos.18 and 175 of 2016 and in jail and as such, there is no possibility for him to stay at the headquarters. Further, the filing of charge sheet, committal proceedings and issuance of summons in S.C.Nos.95 and 96/2017 on the file of the learned Second Additional District and Sessions Judge, Tirunelveli necessitated the presence of the petitioner in his home station continuously.
6. The other reason for rejection is that he did not produce the requisite certificate for payment of subsistence allowance. In this regard, the submission is that with regard to payment of subsistence allowance, the petitioner made a representation dated 27.01.2018 stating that he was not engaged in any employment, but, the same was not considered and not even disclosed in the impugned order. Thus, the non-disclosure of the earlier representation clearly shows the mala fide intention of the respondents.
7. Adding further, the learned counsel submits that the departmental proceedings ought not to have been conducted without payment of subsistence allowance. Therefore, the conduct of the departmental proceedings without payment of subsistence allowance, even after repeated requests by the petitioner, itself vitiates the entire departmental proceedings. http://www.judis.nic.in 8
8. With the above submissions, the learned counsel seeks to set aside the impugned order dated 11.01.2019 of the first respondent and prays for allowing the Writ Petition.
9. On the contrary, the learned Special Government Pleader appearing on behalf of the respondents, reiterating the averments made in the counter-affidavit filed by the first respondent, contended that when the petitioner did not comply with the conditions enumerated in the suspension order, he cannot have a right to insist for payment of subsistence allowance. Furthermore, the petitioner did not produce the requisite certificate, which is mandatory for payment of subsistence grant, as per Rule 53(2) of the Fundamental Rules. Therefore, the first respondent rightly rejected the request of the petitioner by passing the impugned order, which needs no interference at the hands of this Court.
10. I have considered the rival submissions made on either side and perused the materials available on record. http://www.judis.nic.in 9
11. At the first instance, before going into the facts of the case at hand, it is worthwhile to refer to the relevant provisions from the Fundamental Rules.
12. Rule 53(1) of the Fundamental Rules reads thus:
"A Government servant who is placed or deemed to have been placed or continues to be under suspension shall be entitled to the following payments, namely:-
(a) Subsistence allowance at an amount equal to half of the pay last drawn by the Government servant and in addition dearness allowance, if admissible on the basis of half of the pay last drawn:
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:
http://www.judis.nic.in 10
(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 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, not directly attributable to the Government servant;
(ii) the amount of subsistence
allowance may be reduced by a suitable
amount, not exceeding fifty per cent 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 Government servant;
(iii) the amount of dearness allowance shall be based on the increase or the decrease in the amount of subsistence allowance, as the http://www.judis.nic.in 11 case may be, admissible under clause (i) or (ii) above:
Provided further that if a Government servant under suspension continues to be under suspension after the date of retirement, the amount of subsistence allowance shall be reduced to the amount of pension which will be provisionally admissible to him, whether or not the Government servant will be exonerated of the charges for which he was placed under suspension and the provisions of the preceding proviso shall not apply to such cases.
(b) The authority which made or which is deemed to have made the order of suspension may, if it is satisfied that the Government servant continues to incur the expenditure for which the compensatory allowances are granted, direct that the Government servant shall be granted in addition, such compensatory allowances as are admissible from time to time on the basis of pay of which the Government servant was in http://www.judis.nic.in 12 receipt on the date of suspension as the Government may sanction by general or special order.
(c) Government servants under suspension shall be paid house rent allowance in full at the rates admissible at the place where they are ordered to stay during suspension with reference to the pay last drawn before suspension. Where the headquarters of a Government servant under suspension is changed on his request, he shall be eligible for the house rent allowance at the rates admissible at the earlier headquarters or at the new headquarters whichever is less."
13. Rule 53(2) reads as follows:
"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."
http://www.judis.nic.in 13
14. Rule 53(3) is re-produced hereunder:
"No payment under sub-rule (1) shall be made unless the Government servant continues to reside in the place fixed from time to time, by the authority which made or which is deemed to have made the order of suspension."
15. A cursory perusal of the above said provisions would make the position clear that as per Rule 53 of the Fundamental Rules, for grant of subsistence allowance, the petitioner has to fulfil the conditions prescribed therein, but, in the absence of the same, he cannot claim the payment of subsistence allowance as a matter of right.
16. Now, coming to the facts of the case, the petitioner was originally appointed as Police Constable Grade II on 11.07.2005 and subsequently, on participation in Sub-Inspector selection on department quota, got selected and appointed on 12.02.2016. Meanwhile, on a complaint lodged by one Ramu, a woman head constable, FIRs in Crime Nos.18 and 175 of 2016 http://www.judis.nic.in 14 came to be registered, because of which, he was suspended from service by proceedings dated 14.10.2016. Pending proceedings, he made a representation dated 27.01.2018 to the respondents seeking payment of subsistence allowance, but, the same was not met with. Since there was no reply, again, he made a representation dated 10.12.2018, which was rejected by the first respondent by way of impugned proceedings dated 11.01.2019.
17. A perusal of the impugned order would go to show that the claim was rejected on account of non-production of requisite certificate that the petitioner is not engaged in any other employment, business, profession or vocation and without obtaining prior permission, the petitioner is staying at Perungudi, Chennai or in his native place at Tirunelveli, in violation of the condition stipulated in the suspension order that he should not leave the headquarters without prior permission and the headquarters will be Oonamancherry, Vandalur. However, the impugned order was passed with a rider, which is as follows:
"Hence, for violating the condition in the suspension order, you are not eligible for payment of subsistence grant. However, you may request for change of headquarters and after http://www.judis.nic.in 15 getting orders, you can again request for sanction of subsistence grant for the subsequent period and such claim will be decided on merits."
18. A mere look at the counter-affidavit filed by the first respondent also shows that now the petitioner requested for change of headquarters to Tirunelveli and the same has been ordered in Rc.No.E1/7105/2016, dated 07.02.2019.
19. In view of the above background, I am of the considered view that since the request of the petitioner to change the headquarters was favourably considered by the first respondent, vide order dated 07.02.2019, which is evident from the counter-affidavit filed by the first respondent, there is no impediment for the first respondent to consider the claim of the petitioner for subsistence grant also, as stated in the impugned order.
20. In fine, the petitioner is directed to submit a fresh representation to the respondents seeking payment of subsistence allowance, within a period of two weeks from the date of receipt of a copy of this order and on receipt of such representation, the same http://www.judis.nic.in 16 shall be considered and appropriate orders be passed on merits and in accordance with law, within a period of four weeks thereafter.
21. The Writ Petition stands disposed of in the above terms. No costs. Consequently, the connected miscellaneous petition is closed.
05.03.2019
Index : Yes/No
Internet : Yes/No
SML
To
1.The Inspector General of Police,
Tamil Nadu Police Academy,
Oonamancherry,
Kolapakkam,
Vandaloor,
Chennai-600 127.
2.The Deputy Superintendent of Police, (Enquiry Officer), Tamil Nadu Police Academy, Oonamancherry, Kolapakkam, Vandaloor, Chennai-600 127.
http://www.judis.nic.in 17 R.MAHADEVAN, J SML Order made in W.P.[MD]No.2668 of 2019 Delivered on:
05.03.2019 http://www.judis.nic.in