Madhya Pradesh High Court
Rajesh Patel vs Madhya Pradesh Poorva Kshetra Vidyut ... on 1 March, 2016
WP-14445-2014 (RAJESH PATEL Vs MADHYA PRADESH POORVA KSHETRA VIDYUT VITRAN CO. LTD) 01-03-2016 The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution to challenge the order dated 28.06.2014 (Annexure- P/5), whereby the respondents have declined the
prayer of the petitioner to enhance/revise the subsistence allowance from 50% to 75%.
2. The petitioner while working as Deputy Director (Accounts) was placed under suspension by order dated 16.02.2013 (Annexure-P/2). The petitioner was placed under suspension because he remained in custody in relation to an offence in Crime No.121/2013 arising out of Sections 498-A, 195-A, 384 and 386 of IPC read with Sections 66 E, 67 and 67-A of the IT Act.
3. The case of the petitioner is that the petitioner was placed under suspension because of pendency of the criminal case. No disciplinary proceedings is instituted against him. The criminal case is proceeding with the speed of a snail. The petitioner preferred a representation on 05.10.2013 for revision of subsistence allowance from 50% to 75%. The the representation Annexure-P/4 is rejected by the impugned order dated 28.06.2014 (Annexure-P/5).
4. Shri Amit Dubey, learned counsel for the petitioner by placing reliance on FR-53 contends that if the proceedings are continued beyond three months, and such delay is not attributable to the employee, the respondents are bound to enhance the subsistence allowance. He submits that delay caused in the said criminal case is not because of any fault of the petitioner and, therefore, he cannot be deprived from the right of revision of subsistence allowance. He further submits that the impugned order Annexure- P/5 is a non-speaking order and in absence of reasons, this order cannot be permitted to stand. In support of his contention, learned counsel for the petitioner has relied on the judgments of B.D. Shetty and others Vs. Ceat Ltd. and another, (2002) 1 SCC 193, Pradip Kumar Mitra Vs. State of West Bengal and others, 26th February, 2003, Amit Biswas Vs. State of W.B. and others, 14th February, 2007, Pankajbhai Natwarlal Oza Vs. Indian Oil Corporation Ltd. Gujarat Refinery, Letters Patent Appeal No.1013 of 2012, Virendra Singh Yadav Vs. C.M.D., M.P. Madhya Kshetra Vidyut Vitran Co. Ltd. & others, W.P. No.06/2011, Union of India and others Vs. Devi Krishan Sharma, W.P.(C)2449/2014.
5. Shri Sumit Kanojiya, learned counsel for the employer supported the order. He submits that in case of departmental inquiry, if delinquent employee is co-operating with the inquiry and the employer is delaying the proceedings, the employer can be blamed. In such a situation, the revision/enhancement in subsistence allowance can be prayed for. However, he submits that the case where employee is placed under suspension because of pendency of criminal case, is different. The criminal case is always between the delinquent employee and the State/Prosecution. The department has no role to play in that case. Hence, if the prosecution is delaying the proceedings, the employer cannot be saddled with enhancement of subsistence allowance. He relied on (2003) 9 SCC 164 (Principal, J.D. Patil Sangludkar and another Vs. Ganesh). No other point is pressed by learned counsel for the parties.
6. I have heard the parties at length.
7. In AIR 1968 SC 800 (Balvantray Ratilal Patil Vs. State of Maharashtra) and in (2000) 10 SCC 201 Ram Lakhan Vs. Presiding Officer, the Supreme Court held that what amount should be paid to an employee during the suspension will depend upon the provision of the statute or statutory rule applicable. Admittedly, in the present case, the aspect of subsistence allowance is governed by FR 53 which reads as under:
â F.R.53. (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. xxx xxx xxx 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 [three] 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 [three] months as follows:-
(i) the amount of subsistence allowance may be increased by a suitable amount; not exceeding 50% of the s u bs is t e n c e allow anc e admissible during the period of the first [three] 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 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;
[Emphasis supplied]
(iii) xxx xxx xxx
(b) xxx xxx xxxâ
8. The highlighted portion shows that if the period of suspension is prolonged for the reason not directly attributable to the Government servant, subsistence allowance may be increased. The said provision does not make any distinction between suspension because of departmental inquiry and suspension because of any criminal case. Thus, what has not been prescribed in the statute is not required to be injected in the same. This is settled legal position that the intention of the Legislature is primarily to be gathered from the language used, which means the attention should be paid to what has been said as also to what has not been said [See: Principles of Statutory Interpretation by Justice G.P. Singh 12th Edition 2010 Page 64]. The same view is taken by the Supreme Court in AIR 1990 SC 1747 (Gwalior Rayon Silk Manufacturing Co. Ltd. Vs. Custodial of Vested Forests), and AIR 2009 SC 187 (Nagar Palika Nigam Vs. Krishi Upaj Mandi Samit). Hence, I am unable to hold that the parameters for enhancing the subsistence allowance should be different in cases of suspension based on pendency of disciplinary proceedings and suspension arising out of a criminal case. I find support in my view from the judgment of the Supreme Court reported in 1989 (1) SCC 546 (P.L. Shah Vs. Union of India and another). The Apex Court held that the subsistence allowance is paid by the employer so that the employee against whom an order of suspension is passed on account of the pendency of any disciplinary proceeding or a criminal case instituted against him could maintain himself and his dependents until the departmental proceeding or the criminal case, as the case may be, comes to an end and appropriate orders are passed against the Government servant by the Government regarding his right to continue in service etc. It is further held that the very nomenclature of the allowance makes it clear that the amount paid to such a Government servant should be sufficient for bare subsistence in this world in which the prices of the necessaries of life are increasing every day on account of the conditions of inflation obtaining in the country. It is further to be noted that a Government servant cannot engage himself in any other activity/employment during the period of suspension. In P.L. Shah (supra) their Lordships held that the amount of subsistence allowance payable to the employee concerned should, therefore, be reviewed from time to time where the proceedings drag on for a long time, even though there may be no express rule insisting on such review of subsistence allowance, such revision is must. The Apex Court further opined that while examining the aspect of revision of subsistence allowance, the authority concerned no doubt has to take into account whether the Government servant is in any way responsible for undue delay in the disposal of the proceedings initiated against him. If the Government servant is not responsible for such delay, or even if he is responsible for such delay to some extent, but is not primarily responsible for it, it is for the Government to reconsider whether the subsistence allowance should be varied or not.
9. In the light of this judgment, it is clear that whenever delay takes place on account of departmental inquiry or criminal case, as the case may be, the employer is under an obligation to consider the aspect of revision of subsistence allowance. Thus, I am unable to accept the contention of Shri Kanojiya that FR 53 cannot be pressed into service in cases where suspension is on account of pendency of the criminal case. Reliance is placed on the judgment of Supreme Court in Ganesh (supra). In my view, the said judgment has no application in the present case. In the said case, FR 53 was not applicable. The Apex Court did not consider its earlier judgment rendered in the case of P.L. Shah (supra). A minute reading of Para 5 of the judgment shows that in that case the service rule did not permit for enhancement of subsistence allowance whereas in the present case, the service rule not only permits but it mandates that there must be a consideration about revision of subsistence allowance when suspension continues beyond the period of three months. Hence, the said judgment is of no assistance to the employer.
10. In Umesh Chandra Mishra Vs. Union of India and others, 1993 Supp (2) SCC 210, the Apex Court considered Rule 2043 of the Indian Railway Establishment Code, which is almost pari materia to FR 53. The Apex Court in the said case directed for enhancement of subsistence allowance. In B.D. Shetty (supra), the Apex Court considered Section 10(1)A of the Industrial Employment (Standard Orders) Act, 1946 which talks about payment of subsistence allowance. In my view, the said statute is confined to the cases of disciplinary proceedings whereas as noticed FR 53 does not confine its operation to cases of suspension relating to disciplinary proceedings only. However, in B.D. Shetty (supra), the Apex Court opined that the enhancement of subsistence allowance cannot be denied after expiry of 90 days of suspension, if the delay in completion of disciplinary proceeding is not directly attributable to the conduct of such workman. The Delhi High Court in Devi Krishna Sharma (supra) has followed the ratio of B.D. Shetty. The judgments of Amit Biswas and Pradeep Kumar Mitra are based on different facts and circumstances and have no application in the factual matrix of the present case.
11. As analyzed above, the employer is bound to consider the aspect of the revision of subsistence allowance after 90 days of suspension. This is obligatory in the cases of suspension based on departmental inquiry and criminal case both.
12. In view of the aforesaid discussion, the ancillary question is whether the present petitioner is entitled for any relief. The petitioner's application (Annexure- P/4) dated 05.10.2013 shows that he has made a request for enhancement of subsistence allowance because he remained under suspension for more than six months. However, there is no assertion in this application about the aspect of delay which is being caused in the criminal case. Putting it differently, the petitioner has not averred in his application Annexure-P/4 that delay in criminal case is solely attributable to the prosecution or it is not attributable to him. The employer although rejected his application by non-speaking order, the said order cannot be interfered with because it was the primary duty of the petitioner to state that the delay caused in criminal case is not attributable to him. In absence of any such assertion, no fault can be found in the rejection order (Annexure-P/5). Needless to mention that the employer is not a party in the criminal case. Hence the employer is not supposed to know about the reasons of delay in the criminal case. In the fitness of things, the employee should state the reasons for delay in criminal case with accuracy and precision. Thereafter, it is for the employer to examine the said aspect on the anvil of FR 53.
13. In the aforesaid backdrop, I am unable to set aside the order dated 28.06.2014. I am deem it proper to give liberty to the petitioner to file a comprehensive representation with copies of the proceedings of the criminal Court to show that the delay is not attributable to him. If such application is preferred by the petitioner before the employer, it shall be the duty of the employer to examine that application as per FR 53. The employer shall decide such application expeditiously preferably within 30 days by keeping in view the observations given hereinabove.
14. The petition is disposed of. No cost.
(SUJOY PAUL) JUDGE