Jharkhand High Court
Bhanu Pratap Lall vs B.C.C.L. And Ors. on 22 April, 2003
Equivalent citations: [2003(3)JCR830(JHR)], 2003 LAB IC (NOC) 206 (JHA), 2003 AIR - JHAR. H. C. R. 1045, (2006) 2 JLJR 484, (2003) 3 JCR 830 (JHA)
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. The short question that falls for consideration in this writ application is as to whether the petitioner would be entitled to subsistence allowance and/or full salary during the period when he was in jail custody when, admittedly the order of suspension was issued after the petitioner was released from the jail custody.
2. The petitioner was employed as Senior Work Supervisor in the services of the respondents-BCCL and was posted at Moonidih Western Jharia Area, Coalfields. The petitioner was arrested by the CBI on 26.9.2000 on the allegation of accepting bribe. The petitioner was remanded to jail custody. After his release from jail custody, the petitioner was put under suspension vide office order dated 20.1.2001. The petitioner, on his representation was paid subsistence allowance but only with effect from February, 2001 whereas he ought to have been paid the same with effect from 29.9.2000. The petitioner, therefore, approached this Court by filing CWJC No. 1450/2002 praying for payment of subsistence allowance for the period from 29.9.2000 to 16.1.2001 during which period the petitioner remained in jail custody. It was stated by the petitioner in the said writ petition that after release from the jail custody he submitted his joining but it was not accepted and, in the meantime, he retired from service on 31.12.2001. The writ petition was disposed of on 27.1.2002 with direction to the petitioner to file representation before the competent authority who shall consider and dispose of the representation within a specified time in compliance of the aforesaid order representation of the petitioner was disposed of by the respondents and the same was communicated by the impugned letter dated 2.9.2002 rejecting the claim of the petitioner.
3. Mr. M.K. Roy, learned counsel appearing on behalf of the petitioner firstly submitted that when admittedly, the petitioner was not under suspension for the period 29.9.2000 to 16.1.2001, the respondents have no authority to withhold the salary of the petitioner for that period. In the alternative, learned counsel submitted that in the absence of any order of suspension passed by the respondents during the aforesaid period, the petitioner is atleast entitled to subsistence allowance for the said period.
4. On the other hand, Mr. M.M. Banerjee, learned counsel for the respondents submitted that the petitioner is not even entitled to subsistence allowance during the period when he remained in custody on the principle of no work no pay. According to the learned counsel the Certified Standing Order of the respondents does not provide payment of subsistence allowance for the period when a person remained in jail custody without any order of suspension.
5. Before deciding the issue I would first like to quote the relevant provisions of the certified Standing Order of the respondents-Company. Clauses 27.21 to 27.25 are worth to be noticed which are as under :
"27.21. Where a disciplinary proceedings against a workman is contemplated or is pending or where criminal proceedings against him in respect, of any offence are under investigation or trial and the employer is satisfied that it is necessary or desirable to place the workman under suspension, he may, by an order in writing, suspend him with effect from such date as may be specified in the order. A statement setting out in detail the reason for such suspension shall be supplied to the workmen within a week from the date of suspension.
27.22. During the period of his suspension, the workman shall not enter the work premises except with the permission of the management, nor shall he leave station without the permission of the management.
27.23. If during the inquiry it is found that the workman is guilty of a misconduct other than that stated in the order of suspension and/or charge-sheet, the workman shall be liable to punishment for such misconduct but before any punishment is imposed on him, he shall be afforded opportunity of explaining and defending his action in respect of such other misconduct.
27.24. The payment of subsistence allowance will be subject to a written declaration by the workman that he is not engaged in any other employment, business, profession or vocation.
27.25. If after enquiry/or conclusion of the criminal proceeding a workman is held guilty of the charges alleged against him or some other charges brought in the course of the enquiry or is convicted in the criminal proceedings and is consequently discharged or dismissed, he shall not be entitled to any remuneration for such period other than the subsistence allowance already paid to him. If a penalty other than dismissal, discharge or removal is imposed on him or he is exonerated or charges against him are dropped or he is not convicted in the criminal proceedings, he shall be paid the difference of subsistence allowance already paid to him and, the wages which he would have got if he had not been suspended except in case where he is suspended, nor exceeding ten days, as a measure of punishment."
6. From bare perusal of the provisions of the Standing Order quoted hereinabove it is manifest that the employer can suspend the workman on the ground of contemplation of disciplinary proceeding or when a criminal proceeding against him is under investigation or trial. In that event the workman shall be entitled to subsistence allowance. Admittedly on the basis of the FIR lodged against the petitioner, he was arrested by the CBI on 26.9.2000 on the allegation of accepting bribe. The petitioner remained in custody till 16.1.2001, and, thereafter, he was released from custody. However, the respondents issued office order on 20.1.2001 putting the petitioner under suspension. It cannot be disputed that in the event the petitioner is acquitted from the criminal charge, he will be entitled to get full remuneration during the period he remained in jail custody. But, certainly the petitioner must be deemed to have been under suspension the day he was taken into custody otherwise he cannot be denied salary for the said period on the principle of no work no pay. In my opinion, the principle of no work no pay as con-vassed by Mr. Banerjee, learned counsel appearing for the respondents, does not apply in cases where a regular and permanent employee is taken into custody on the allegation of misconduct or on the allegation of committing offence. But the clauses aforesaid clearly provide that if a criminal proceeding in respect of any offence is under investigation or trial then the workman may be placed under suspension. Normally the Investigation commences from the date when a cognizable offence is alleged against a person and he is taken into custody. The respondents, therefore, cannot deny payment of subsistence allowance to the workman for the period he remained in custody on the basis of a criminal charge.
7. For the reasons aforesaid, this writ application is allowed and it is held that the petitioner is entitled to subsistence allowance for the period from 29.9.2000 to 16.1.2001.