Gujarat High Court
M R Prakash Mutyala Rajagopal Prakash vs State Of Gujarat Through Secretary on 19 November, 2025
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1018 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 6885 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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M R PRAKASH MUTYALA RAJAGOPAL PRAKASH
Versus
STATE OF GUJARAT THROUGH SECRETARY & ORS.
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Appearance:
MR SUBRAMANIAM IYER(2104) for the Appellant(s) No. 1
ROBIN PRASAD(9344) for the Appellant(s) No. 1
MS SHRUTI DHRUVE, AGP for the Respondent(s) No. 1
MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 2
MS RUMI M GANDHI(3472) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 19/11/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned advocate Mr. Subramaniam Iyer for the appellant, learned Assistant Government Pleader Ms. Shruti Page 1 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined Dhruve for respondent No.1-State and learned advocate Mr. Chinmay Gandhi for respondent No.2.
2. The appellant-original petitioner, being aggrieved by the Judgement and Order dated 13.03.2025 passed by the learned Single Judge in Special Civil Application No. 6885 of 2010, has preferred this Appeal under Clause 15 of the Letters Patent.
3. Brief facts of the case are as under:
3.1 The appellant joined Gujarat Industrial Development Corporation ['GIDC' for short] in 1978 as Planning Officer and had worked there upto 1993.
During that period, he was promoted as Page 2 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined the General Manager of GIDC and after incorporation of the Gujarat Growth Centers Development Corporation Limited ['GGCDC' for short]-respondent No.2, the appellant was sent on deputation from GIDC to GGCDC on 02.03.1993. It is the case of the appellant that service condition of the appellant, especially the salary was kept at par with the pay scale of GIDC.
3.2 The appellant was thereafter posted as Chief Executive Officer of respondent No.2-GGCDC by order dated 04.10.1995 after approval from the State Government. The appellant thereafter resigned from the post of General Manager, GIDC as he was Page 3 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined regularly and permanently absorbed by letter dated 17.10.1995 in respondent No.2-GGCDC.
3.3 It is the case of the appellant that while he was functioning as Chief Executive Officer of respondent No.2, he was appointed as Director on the Board of Directors upto December, 2001. However, the pay scale of the appellant was not fixed as per the recommendation of the 5th Pay Commission. The appellant therefore, preferred Special Civil Application No. 3812/2002 before this Court with a prayer to fix the pay scale 18400-22400 w.e.f. 01.01.1996. 3.4 It is the case of the appellant that he was forced to proceed on earned Page 4 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined leave, which was sanctioned from 1st July 2003 to 3rd August 2003. The appellant, during the said period, was engaged in the project of Government of Sikkim without pay which was informed by letter dated 21.06.2003. Prior thereto, the appellant, by communication dated 26.02.2002, requested the Chairman and Managing Director of the respondent No.2 to sanction the leave and permit the appellant to go abroad in search of job as he was denied the benefit of 5th Pay Scale.
3.5 Thereafter, under the approval of the Chairman and the Managing Director of respondent No.2, the Page 5 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined appellant went to UK on 11.12.2003 under the Scheme "Highly Skilled Migration Program in UK". The appellant continued to stay at UK under the said Program for the period of four years. 3.6 While the appellant was in Sikkim, the respondent No.2-company issued a show-cause notice dated 29.08.2003 alleging five charges viz. that the company's working has not been found satisfactory and encouraging and; the appellant being the Chief Executive Officer should have taken appropriate corrective steps to put the company on strength which has not been done. The charges leveled against the appellant are as under:
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NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined "1. The Company came into existence on 11th December, 1992 till date has received an equity of Rs 38.75 crores from GOI and GoG. The equity was primarily for development of Growth Centes. The 1st installment of an equity of Rs 6.00 crore was received way back in the quarter of 1993. However, till date, you have not been able to attract even a single industrial unit in the Growth Centres. As a result, the objective and the purpose of setting up of the Company has not only been achieved but has become a liability. You being a Chief Executive of the Company from its incorporation it reflects on your inability to achieve the objective of the Company.
2. The sites selected at Moti Charai and Amirgadh have been found Comparatively unsuitable for the development of Industrial Estate. If the developments are carried out at these sites, the cost of development is so exorbitant that the company would not afford development or would incur heavy loss. You have thus neglected important parameters required to be kept in mind while finalizing the sites of the estates.Page 7 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025
NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined
3. You have not maintained records up-to-date and have also not maintained the relations cordial either with the staff or with the other organizations especially Gujarat Industrial Development Corporation, the promoter of/he company. You have also not settled the accounts with GIDC. Alike, you have several allegations, and cross allegations functioning viz- pay scales, withdrawals of benefits, charge allowance etc. in the Company, which has, in turn, tarnished the image of/he Company, for which you being the chief Executive are solely responsible.)
4. For the period of last one year, you have' been putting up reports for leave to search job in India and abroad You have also entered into correspondence and have obtained letter for retainership or absorption in Sikkim. Being a Chief Executive and the servant of the Company, you were required to make such correspondence through proper channel and with prior permission as per Regulation-29 of GIDC Staff Regulations, 1963. You have thus, in contravention of the set rules and principles, acted arbitrarily neglecting the principles. Page 8 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025
NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined
5. Though your CL for 13" & 14 June,2003 was refused and conveyed to you and you, in a total disregard & disobedience, chose to remain absent. Thus shows your indifferent attitude as well as gross indiscipline on your part which is not benefiting for your behaviour as responsible officer."
3.7 The aforesaid show-cause notice was served upon the appellant at his residence and the appellant, after returning from Sikkim during first week of September 2003, submitted a reply to the show-cause notice on 08.09.2003. Thereafter, Chairman and Managing Director of respondent No.2 passed a suspension order dated 24.09.2003 which reads as under:
"ORDER Read:Confidential Minutes of the meeting of GGDC dated 23.09.2003.Page 9 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025
NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined Dr. M.R.Prakash, Chief Executive, Gujarat Growth Centres Development Corporation Ltd (GGDC) Gandhinagar is hereby suspended from the services of the Company, which is applicable to the officers/employees of GGDC, in the administrative interest with immediate effect as power conferred by GGDC Board meeting on 23.09.2003.
Dr. M.R.Prakash shall be paid subsistence allowance during the period of his suspension under Regulation 40D of the GIDC (Staff) Regulations, 1963 as may be applicable from time to time. His head quarter is fixed at Divisional Manager, GIDC Office, Ahmedabad."
3.8 Thereafter, a charge-sheet was issued on 28.11.2003 reiterating the charges referred in the show-cause notice.
3.9 The appellant tendered resignation on 17.11.2003 which was Page 10 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined rejected by communication dated 18.11.2003 by respondent No.2. It is the case of the appellant that as he was not paid any subsistence allowance, he had no means to support his family and therefore, decided to go abroad on the basis of approval granted vide communication dated 12.10.2002 and went to UK on 11.12.2003.
3.10 It is also the case of the appellant that while he was in UK under the aforesaid program, he received a communication dated 28.02.2005 informing that the appellant was dismissed from service w.e.f. 28.11.2003.
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NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined 3.11 The appellant thereafter preferred an appeal on 30.03.2005 under the provision of Regulation 41(1) of the GIDC (Staff) Regulations, 1963 ['Regulations' for short]. 3.12 It appears that without taking into consideration the dismissal from service of the appellant and the appeal preferred by the appellant, during the course of inspection of the records and accounts of the office of respondent No.2, the Controller and Auditor General of India (CAG) made remarks that the appellant was suspended from service and his resignation was not accepted and therefore, he is still on the pay-rolls and his pay and allowance Page 12 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined should have been fixed taking into consideration the order of Government of Gujarat etc. The appellant has therefore, after return on completion of program at UK, relying upon the remarks of the CAG, submitted a duty resumption report on 10.02.2009 and resumed the duty and worked for three days on 10th, 11th and 12th February,2009 and on 12th February,2009, he was informed by communication dated 12.02.2009 that he has been dismissed form service by order dated 28.02.2005 and therefore, was not permitted to resume the duty w.e.f. 10.02.2009. 3.13 It appears that the Appellate Committee was not formed and therefore, Page 13 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined the appellant preferred Special Civil Application No. 3530/2009 before this Court. This Court disposed of the petition by order dated 21.04.2009 with a direction to the appellate authority to decide and dispose of the appeal preferred by the appellant within a period of three months from the date of receipt of copy of the order. 3.14 The appellant has also preferred an application under the Contempt of Court Act being Misc Civil Application No. 2624/2009 in Special Civil Application No. 3530/2009 and the respondent No.2 filed affidavit tendering unconditional apology for delay in constituting Appellate Page 14 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined Committee. The Appellate Committee was thereafter formed and after giving opportunity of hearing to the appellant on 08.12.2009, rejected the appeal by order dated 03.02.2010. Being aggrieved, the appellant preferred Special Civil Application No. 6885/2010.
3.15 It appears that the appellant heavily relied upon the decision of the Hon'ble Apex Court rendered in case of Jagdamba Prasad Shukla vs State of Uttar Pradesh reported in (2000) 7 SCC 90 before the learned Single Judge as well as the decision of the Hon'ble Apex Court in case of Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd. Page 15 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025
NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined reported in AIR 1999 SC 1416 to submit that as the appellant was admittedly not paid subsistence allowance, the dismissal order is required to be quashed and set aside.
3.15 The learned Single Judge, by the Judgement and Order dated 13.03.2025, allowed the petition in part by not interfering in the appellate order and has observed as under:
"18. In light of the aforesaid, the impugned orders dated 28.02.2005 and 03.02.2010 to the extent of denial of the subsistence allowance are interfered with for the aforesaid reasons. The respondent - authority to consider the case of the petitioner for grant of subsistence allowance from the date of suspension i.e. 24.09.2003 in accordance with Page 16 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined Regulation 40-D of the Regulation of 1963 for the period for which, the petitioner was denied."
4. Learned advocate Mr. Subramaniam Iyer for the appellant submitted that it is not in dispute that the appellant was not paid the subsistence allowance and therefore, in view of the decision of the Hon'ble Apex Court in case of Jagdamba Prasad Shukla (supra), the dismissal order is liable to quashed and set aside. It was therefore, submitted that instead of quashing and setting aside the order of dismissal of the appellant, the learned Single Judge ought not to have directed the respondent authority to consider the case of the appellant to grant Page 17 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined subsistence allowance as per the Regulation 40D of the Regulations. 4.1 It was submitted that the appellant could not remain present before the Inquiry Officer during the disciplinary proceedings in view of the fact that the appellant was not paid subsistence allowance and he had no option but to go to UK under the "Highly Skilled Migration Program". 4.2 Learned advocate Mr. Iyer relying upon the decision of Hon'ble Apex Court in case of Jagdamba Prasad Shukla (supra) submitted that the impugned order of dismissal from service cannot be sustained as the respondents have not paid subsistence Page 18 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined allowance to the appellant-petitioner and therefore, there is a violation of principles of natural justice. 4.3 It was pointed out that the Hon'ble Apex Court has held that payment of subsistence allowance, in accordance with the Rules, to the employee under suspension is not a bounty, but it is a right and an employee is entitled to be paid the subsistence allowance. It was submitted that as the respondent has failed to pay subsistence allowance without any justifiable ground, order of dismissal is liable to be quashed and set aside but the learned Single Judge, instead of quashing and setting aside the order Page 19 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined of dismissal, but in para 18 of the judgement, has only directed the respondents to consider the case of the petitioner-appellant for grant of subsistence allowance from the date of suspension in accordance with the Regulation 40D of the Regulations. It was submitted that the ground of non- payment of subsistence allowance would result in quashing and setting aside of the dismissal order as per the decision of the Hon'ble Apex Court in case of Jagdamba Prasad Shukla (supra). 4.4 It was therefore submitted that the impugned order is liable to be quashed and set aside and the petition of the appellant should be allowed as Page 20 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined prayed for by quashing and setting aside order of dismissal from service on the ground of non-payment of subsistence allowance to the appellant.
5. Per contra, learned advocate Mr. Chinmay Gandhi for the respondent No.2 submitted that merely because the subsistence allowance is not paid to the appellant-original petitioner cannot be ipso facto result in quashing of the dismissal order without considering the fact that the appellant never remained present in the inquiry proceedings in spite of following principles of natural justice by service of various notices and reminders by the respondents. Page 21 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025
NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined 5.1 It was submitted that the appellant was the responsible officer of respondent No.2 holding the post of Chief Executive Officer and the appellant, on issuance of the show cause notice, has gone to the UK and did not even participate in the inquiry proceedings nor remain present at the Headquarters fixed during the period of suspension and therefore, the respondent-authority was justified in not giving any subsistence allowance as the appellant was having sufficient means to remain in UK and there was no financial hardship at any point of time pointed out by the appellant and therefore, the decision of the Hon'ble Apex Court in case of Jagdamba Prasad Page 22 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined Shukla (supra) would not be applicable in the facts of the case as the appellant was never prevented from participating in inquiry proceedings on the ground of non-payment of subsistence allowance during the course of suspension, but, on the contrary, the appellant was not in need of subsistence allowance as he was pursuing studies in UK under the Scheme "Highly Skilled Migration Program" for a duration of four years during which, the inquiry was conducted and the appellant was dismissed from service. 5.2 It was also submitted by learned advocate Mr.Gandhi that there is no Page 23 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined infirmity in the impugned order passed by the learned Single Judge inasmuch as learned Single Judge, after considering the submissions and the legal position, has come to the conclusion that no interference is called for in the appellate order and the only direction issued is to consider the case of the appellant for payment of subsistence allowance in compliance of the Regulation 40D of the Regulations. 5.3 Learned advocate Mr.Gandhi also invited attention of the Court to the order of the appellate authority which has considered all the grounds which are raised in the petition as well as in this appeal in detail. It was Page 24 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined pointed out that the appellant-original petitioner has filed the appeal through his wife-the Power of Attorney Holder and did not remain present for filing the appeal.
5.4 It was also pointed out that when the appellant arrived at India in the Year 2009, he straightaway joined the services relying upon the note given by the Audit Officer of the CAG, who had not taken into consideration the suspension order or the dismissal order passed by the respondent and therefore, the respondent-authority rightly did not permit him to resume the duty as he was already suspended in the Year 2005.It was therefore Page 25 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined submitted that appeal may be dismissed as it is devoid of any merit.
6. Having heard learned advocates for the parties and considering the facts of the case, the sole reliance placed on behalf of the appellant is on the decision of the Hon'ble Apex Court in case of Jagdamba Prasad Shukla (supra) and the decision of in case of Capt. M.Paul Anthony (supra).
7. Learned advocate Mr. Iyer for the appellant submitted that admittedly, the appellant was not given subsistence allowance by the respondent-authority and therefore, as the Regulation 40D of the Regulations, provides a condition Page 26 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined precedent and not condition subsequent for payment of the subsistence allowance, that learned Single Judge could not have passed an order of considering the case of the appellant for grant of subsistence allowance as per Regulation 40D of the Regulations. Regulation 40D of the Regulations reads as under:
"40-D Subsistence allowance during suspension (1) An employee under suspension shall be entitled to draw subsistence allowance equal to fifty percent of his basic pay provided the disciplinary authority is satisfied that employees is not engaged in any other employment or business or profession or vocation. In addition he shall be entitled to admissible allowance dearness subsistence allowance.Page 27 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025
NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined (2) Where the period of suspension exceeds one year, the Managing Director shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first year as follows:
(i) The amount of subsistence allowance may be increased to seventy five percent of basic pay and dearness allowance thereon if, in the opinion of the Managing Director, the period of suspension has been prolonged due to reasons not directly attributable to the employee under suspension.
(ii) The amount of subsistence allowance may be reduced to twenty five percent of basic pay and the dearness allowance thereon if, in the opinion of the Managing Director, the period of suspension Page 28 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined has been prolonged due to the reason directly attributable to the employee under suspension.
(iii) If an employee is arrested by the police on a criminal charge and bail is not granted, no subsistence allowance shall be payable. On grant of bail if the Managing Director decides to continue the suspension the employees shall be entitled to subsistence allowance from the date he is granted bail.
(3) When the employee under suspension is reinstated, the Managing Director may grant him.
the following pay and allowances for the period of suspension.
(a) if the employee is exonerated and now awarded any of the penalties mentioned in regulation 40, the full pay and allowance which he would have entitled if he Page 29 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined had not been suspended less the subsistence allowance already paid to him ог
(b) if otherwise, such proportion of pay and allowance as the competent authority may prescribe;
(c) in a case falling under sub-
clause 9a) the period of absence from duty will be treated as a period spend on duty, in a case falling under sub-clause (b) it will not be treated as a period spent on duty unless the competent authority so directs.
(4) An employee under suspension may be granted any other compensatory allowance admissible form time to time on the basis of pay of which an employee was in receipt on the date of suspension to such extent and subject to such condition as the Managing Director may direct, provided Page 30 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined that the employee shall not be entitled to the compensatory allowance unless the Managing Director is satisfied that the employee continues to meet the expenditure for which they are granted."
8. On perusal of the above regulation, it is clear that the same would be applicable in case when the employee is suspended, subsistence allowance would be payable equivalent to fifty percent of basic pay provided that the disciplinary authority is satisfied that the employee is not engaged in any other employment or business or profession or vocation. In the facts of the case, admittedly, the appellant was residing at UK from December 2003 i.e. Page 31 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined during the period of his suspension till he was dismissed from service in the Year 2005 and therefore, he was not available at the place of head quarter fixed during the course of suspension. Therefore, even as per Regulation 40D of the Regulations, the appellant was not entitled to any subsistence allowance as he was engaged in the vocation under the Scheme of "Highly Skilled Migration Program" in UK for a duration of 04 years. The only ground submitted by the appellant is that the sanction was granted by the higher authority in the Year 2002 for study in UK when he was forcefully asked to proceed on leave to pursue the said Program at UK and therefore, he Page 32 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined proceeded to UK. However, the fact remains that the appellant was pursuing the vocation at UK under the Scheme "Highly skilled migration Program" for Four Years and therefore, he was not entitled to any subsistence allowance during the period of suspension.
9. In view of above facts emerging from the record, the reliance placed on the decision of the Jagdamba Prasad Shukla (supra) would not be applicable as in the facts of the said case, the appellant-Jagdamba Prasad Shukla was holding the post of Sub-Inspector and was placed under suspension by order dated 01.06.1977 and was transferred to Gorakhpur by order dated 04.08.1977 in Page 33 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined order to face disciplinary authority. Mr. Jagdamba Prasad Shukla, however, did not participate in the disciplinary proceedings allegedly on account of illness and being confined for medical treatment at Kanpur and also on account of financial crunch for non-payment of subsistence allowance. In such facts, the Hon'ble Apex Court has observed as under:
"6. It is evident from the record that the High Court is not right in observing that ground sought to be urged was not taken in the claim petition or in the writ petition. In fact, the High Court in the latter part of the judgment observes that 'for the first time, the petitioner has taken the ground in this writ petition that he could not attend the Page 34 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined departmental proceedings due to financial crunch as he was not paid his subsistence allowance.' A perusal of the record shows that the contention urged before the High Court and again before us, was also raised before the U.P.Public Service Tribunal and even earlier before the authorities. The U.P. Public Service Tribunal considered it and on the facts of the case, the Tribunal held that `Therefore, those rulings where person was unable to attend the enquiry for non-payment of subsistence allowance, resulting in enquiry being vitiated will not be applicable.' Apart from it, in reply dated 22nd January, 1979 sent to show cause notice, the appellant specifically stated that he has not been paid his pay and suspension allowance which cannot be withheld and as such how could he be expected to Page 35 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined reach Gorakhpur or elsewhere due to shortage of funds. He further stated that `the applicant has requested a number of times for drawing his pay and suspension allowance, but the same could not be drawn and sent to applicant which was a serious handicap to appear anywhere even if he so preferred during illness and even against the recommendations of his medical attendant.' The request of the appellant for payment of subsistence allowance is also contained in his letter dated 31st March, 1978 sent to Superintendent of Police, Railways, Gorakhpur Section, Gorakhpur. The said letter also contains the address of the appellant. The address of the appellant is in fact contained on various communications sent by him to the respondents. It is curious that the respondents could serve all other communications including the show cause notice to the Page 36 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined appellant but in so far as payment of subsistence allowance is concerned, the plea taken is that the appellant did not intimate his address and, therefore, the amount could not be sent. Thus, it is evident that despite repeated requests, the subsistence allowance was not paid to the appellant from the date of suspension till removal."9 It is also evident that the appellant had expressed difficulty to reach place of enquiry due to shortage of funds.
7. Reverting now to the other reason which prevailed with the High Court, namely, the appellant having not furnished a certificate stating that he is not engaged in any other employment, business, profession or vocation and having thus not complied with Rule 53(2) of the Financial Hand Book, it may be noticed that at no stage, the appellant was told that he had to furnish such a certificate, and that he could not be paid subsistence allowance without it. It was not the case of the Page 37 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined respondents that in response to the appellant's request for payment of subsistence allowance, he was asked to furnish such a certificate and since he did not furnish it, the amount of subsistence allowance was not paid to him. Therefore, the second reason for rejecting the appellant's contention for non- payment of subsistence allowance also does not deserve to be sustained.
8. The payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for non-payment of the subsistence allowance all through the period of suspension i.e. from suspension till removal.
One of the reasons for not appearing in enquiry as intimated to the authorities was the financial crunch on account of non-payment of subsistence allowance and the other was the Page 38 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined illness of the appellant. The appellant in reply to show cause notice stated that even if he was to appear in enquiry against medical advice, he was unable to appear for want of funds on account of non-payment of subsistence allowance. It is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental enquiry. Thus, the departmental enquiry and the consequent order of removal from service are quashed."
10. The facts of the present case are different as the appellant-original petitioner, who was the Chief Executive officer of the respondent No.2 had gone to UK in pursuance of the Scheme "Highly Skilled Migration Program"
after he was put under suspension. it is pertinent to note that though he was Page 39 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined aware that he was under suspension by the order of suspension dated 24.09.2003, he proceeded to UK in December, 2003 relying upon the letter and approval granted in the Year 2002 by the competent authority. Thus, the appellant-original petitioner, without considering the effect of the suspension order, has proceeded to UK to pursue "Highly Skilled Migration Program" for Four years and did not participate in the inquiry proceedings nor resumed the duty at the place of changed Head Quarter at Bharuch during suspension. It is also emerging from the record that he had never informed the respondent-authority for not participating in the inquiry nor ever Page 40 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025 NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined demanded subsistence allowance as per Regulation 40D of the Regulations till he returned back to India in 2009. It is also pertinent to note that on service of the dismissal order in the Year 2005, the appellant-original petitioner immediately filed the appeal before the appellate authority through his wife on power of attorney raising various grounds of breach of principles of natural justice which would never be applicable in the facts of the case as in spite of various notices and reminders by the respondent authority, the appellant-original petitioner never remained present or responded to the same to participate in the disciplinary inquiry proceedings.Page 41 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025
NEUTRAL CITATION C/LPA/1018/2025 JUDGMENT DATED: 19/11/2025 undefined
11. Considering the above facts and the reasons assigned by the learned Single Judge, no interference is required to be made in the impugned order passed in Special Civil Application No. 6885 of 2010. The appeal therefore, being devoid of any merit is accordingly dismissed. No order as to costs.
(BHARGAV D. KARIA, J) (L. S. PIRZADA, J) JYOTI V. JANI Page 42 of 42 Uploaded by JYOTI V. JANI(HC00213) on Thu Dec 11 2025 Downloaded on : Fri Dec 12 21:23:58 IST 2025