Karnataka High Court
Smt. Bhagyalakshmi vs The Chief General Manager on 7 December, 2022
Author: S.G. Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF DECEMBER, 2022
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.278/2017 (S-RES)
BETWEEN:
SMT.BHAGYALAKSHMI
W/O APPORVA
AGED ABOUT 33 YEARS
OCC: NIL, R/AT NO.57
JUDICIAL LAYOUT
KEGALLI, BEHIND CHRIST
PUBLIC SCHOOL
RAJA RAJESHWARI NAGAR
MYSORE-570026
TALUK & DISTRICT: MYSORE. ...PETITIONER
(BY SRI.RAMESH B. ANNEPPANAVAR., ADVOCATE)
AND:
THE CHIEF GENERAL MANAGER, IDBI
RBG, SOUTH-II ZONE &
DISCIPLINARY AUTHORITY
IDBI HOUSE, NO.58
MISSION ROAD, POST BAG NO.27015
BENGALURU-560027. ...RESPONDENT
(BY SRI.T.P.MUTHANNA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 04.08.2016 PASSED BY
RESPONDENT AT ANNEXURE-E ORDER DATED 22.09.2016
PASSED BY THE RESPONDENT AT ANNEXURE-G AND ORDER
DATED 27.10.2016 PASSED BY REPSONDENT AT ANNEXURE-J;
AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
2
ORDER
The petitioner is before this Court under Article 226 of the Constitution of India praying to quash the impugned order dated 04.08.2016 bearing No.RB.SZ- II/HR/330/2016-17; order dated 22.09.2016 bearing No.RB.SZ-II/HR/430/2016-17; and order dated 27.10.2016 bearing No.RB.SZ-II/HR/496/2016-17, Annexures-E, G and J respectively; and for a writ of mandamus to the respondents to pay subsistence allowance to the petitioner from the date of suspension till disposal of the enquiry proceedings.
2. Heard the learned counsel Sri.Ramesh B. Anneppanavar for the petitioner and learned counsel Sri.T.P.Muthanna for the respondent-Bank. Perused the writ petition papers including the statement of objections filed by the respondent-Bank.
3. Learned counsel for the petitioner would submit that the petitioner was working as Assistant General Manager and on certain allegations the 3 petitioner was kept under suspension by order dated 05.09.2014. Thereafter, first Charge Memo was issued on 25.02.2016, second Charge Memo was issued on 25.11.2016 and third Charge Memo was issued on 28.02.2017. Thereafter, enquiry was completed and the petitioner was imposed with punishment of dismissal from service by order dated 11.12.2018. It is submitted that the order of dismissal is challenged in a separate writ petition in W.P.No.16401/2021.
4. Learned counsel Sri.Ramesh B. Anneppanavar for the petitioner would submit that from the date of suspension, the petitioner would be entitled for subsistence allowance in terms of Regulation 15 of Industrial Development Bank of India Limited Officers' (Discipline & Appeal) Rules (ODAR), 2006 (for short, 2006 Regulations). He submits that the petitioner was paid subsistence allowance from 05.09.2014, the date of suspension till July 2016. Thereafter, the petitioner was not paid subsistence allowance till the completion of enquiry on the ground that the petitioner is gainfully 4 employed by running a Veterinary Clinic i.e., Wetz for Petz. Learned counsel would submit that the petitioner was not gainfully employed and was not running any business. The petitioner had submitted certificate in terms of Annexure-K series every month certifying that she is not engaged in any other employment, business profession or vocation. When such being the case, the respondent-Bank could not have denied the subsistence allowance to the petitioner. Learned counsel would submit that the business was run by her father one Sri.Ramachandraiah.M.H., and to evidence that the business is run by her father, Annexure-N, Certificate of Enrolment issued under the Karnataka Tax on Profession, Trades, Callings and Employments Act, 1976 is placed on record and Annexure-M, Value Added Tax Registration Certificate is also placed on record. Thus, he submits that the action of the respondents in not paying subsistence allowance to the petitioner is illegal and arbitrary. Thus, he prays for allowing the writ petition and to direct the respondent-Bank to pay 5 subsistence allowance to the petitioner for the period from July 2016 to till culmination of the enquiry by order dated 11.12.2018.
5. Per contra, learned counsel Sri.T.P.Muthanna would submit that it is true that the petitioner was suspended on 05.09.2014 and thereafter three Charge Memos were issued to the petitioner and after detailed enquiry the petitioner was imposed punishment of dismissal by order dated 11.12.2018. He submits that in the normal course, the petitioner would be entitled for subsistence allowance during the pendency of the enquiry. But in terms of Rule 15(3) of 2006 Rules, if the delinquent official who is under suspension shall submit certificate that he is not engaged in any other employment, business, profession or vocation to become entitled for subsistence allowance. It is submitted that the petitioner suppressed the fact of running business and on investigation by the respondent-Bank, it was found that the petitioner was running Wetz for Petz Clinic at Mysore and she was earning handsome income. 6 Therefore, based on the investigation report of the respondent-Bank, the petitioner was denied subsistence allowance. Further, learned counsel Sri.T.P.Muthanna submits that the petitioner possessed the qualification of BVSc and she is a Veterinary Doctor. Therefore, he justifies the action of the respondent-Bank in not paying the subsistence allowance.
6. The facts are not in dispute that the petitioner was suspended on 05.09.2014 and the enquiry was culminated in the dismissal order dated 11.12.2018. The respondent-Bank paid subsistence allowance from 05.09.2014 the date of suspension to July 2016. Thereafter, based on the investigation report i.e., Annexure-R3, the respondent-Bank denied the subsistence allowance to the petitioner. The only question is Whether the respondent-Bank could have denied the subsistence allowance to the petitioner in the facts and circumstances of the case?
7. Rule 15 of 2006 Rules provides for subsistence allowance during suspension. In terms of 7 Rule 15, an officer who is placed under suspension shall during the period of such suspension and subject to Sub-rules (2) to (4) would be entitled to receive payment from the Bank by way of subsistence allowance. For the first three months of suspension, the officer would be entitled for 1/3rd of the basic pay which the Officer was receiving on the date of suspension, for the subsequent period after three months where the enquiry is held by the Department or the Bank, half of the basic pay, the Officer was drawing on the date prior to the date of suspension and where the enquiry is held by the outside agency, 1/3rd of the basic pay which the Officer was drawing on the date prior to the order of suspension. Rule 15(3) of 2006 Rules would be relevant for the purpose of present case. Rule 15(3) of 2006 Rules reads as follows:
"15. (3) No Officer of the bank shall be entitled to receive payment of subsistence allowance unless he furnishes a certificate that he is not engaged in any other employment, business, profession or vocation."8
The above Rule requires an Officer under suspension, who would be entitled to receive subsistence allowance shall furnish a certificate that he is not engaged in any other employment, business, profession or vocation. There is no dispute that the petitioner was submitting such certificate every month in terms of Rule 15(3) of 2006 Rules.
8. The petitioner is denied subsistence allowance on the ground that she being Veterinary Doctor was running Clinic in the name and style Wetz for Petz at 3rd Stage, Vijayanagar, Mysore. The material on record would show that the shop Wetz and Petz was standing in the name of one Sri.Ramachandra.M.H., father of the petitioner as could be evidenced from Annexure-M, Form VAT-7 Certificate as well as Annexure-N, FORM-4 Certificate. The shop premise was not standing in the name of the petitioner. The report of the investigating agency on which the respondents place reliance to deny the subsistence allowance would suggest that the husband of the petitioner Dr.Apoorva 9 was sitting in the Clinic from 07.00 p.m., to 10.00 p.m., every day including Sundays. It also states that the petitioner Dr.Bhagyalakshmi is available all times from morning to evening. The relevant portion of the investigation report reads as follows:
"Business activities: Continuous
investigations were conducted and our
investigating officer traced a business place of Dr.Bhagyalakshmi as under:
At present, she is running a pet clinic in the name and style of Vetz for Petz at C.K.Complex, Below More Supermarket, 3rd Stage, Vijaynagr, Mysore-17. She is running this clinic wherein she has combined 04 shops together in the basement of said premise. In addition to providing veterinary services, they are conducting courses of technicians etc., from the said premise. This clinic is modern one well equipped with all medical facilities.
Investigations were conducted to know more about Dr.Bhagyalakshmi and her husband Apoorva Gurumurthy and it is revealed that Dr.Apoorva is everyday sitting 10 in the said clinic from 07.00 p.m., to 10.00 p.m., including Sundays. Dr.Bhagyalakshmi is available at all times from morning to evening."
The above report of the investigating agency is not sufficient to deny the subsistence allowance to the petitioner. There is no material on record except investigation report to say that the petitioner was practicing as Veterinary Doctor at Wetz for Petz. The report of the investigation officer is not put to the petitioner before denying the subsistence allowance. The purpose of paying subsistence allowance is for sustenance of the suspended official. The report makes it clear that there is no property in Mysore registered in the name of the petitioner. It also states that no documentary evidence can be obtained as there is no property owned by the petitioner in and around Mysore. Only on the report of the investigating agency which is conducted behind the back of the petitioner, the respondent-Bank could not have denied the subsistence allowance to the petitioner. Since the subsistence 11 allowance is paid for sustenance, the respondent-Bank is not justified in denying subsistence allowance to the petitioner. Hence, I pass the following:
ORDER (1) Annexure-E order, dated 04.08.2016 bearing No.RB.SZ-II/HR/330/2016-17; Annexure-G, order dated 22.09.2016 bearing No.RB.SZ-II/HR/430/2016-
17; and Annexure-J order dated 27.10.2016 bearing No.RB.SZ-II/HR/496/2016-17 are quashed.
(2) The respondent-Bank is directed to pay admissible subsistence allowance to the petitioner for the period from August 2016 to the date of dismissal i.e., 11.12.2018 in terms of Rule 15(1)(a)(ii) of 2006 Rules within a month from the date of receipt of copy of this order.
Accordingly writ petition stands allowed.
Sd/-
JUDGE NC.