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Judgment
R. Banumathi, J.—The Petitioner seeks issuance of Writ of Mandamus directing the Respondent to pay arrears of subsistence allowance at
the rate of 75% from 28.04.1999, after deducting the amounts so far paid to him, together with interest.
Facts which led to the Writ Petition are as follows - The deceased first Petitioner [for short, the Petitioner] was working as Branch Manager at
Chennai North Branch of the Respondent Corporation during the period from 05.07.1995 to 29.08.1997. On verification of loan files, it was
found that the Petitioner had committed grave irregularities in respect of at least 14 loan files. Hence in some cases, charges were framed against
the Petitioner and the Petitioner was placed under suspension from 28.10.1998, pending disciplinary proceedings. The Petitioner was due to retire
on reaching the age of superannuation on 31.03.1999. But the Respondent Corporation decided to proceed with the disciplinary proceedings and
hence the Petitioner was not permitted to retire and suspension was continued. After the completion of the disciplinary proceedings, the Petitioner
was dismissed on 29.08.2000.
The Petitioner seeks subsistence allowance as under:
(i) From 21.07.1999 to 06.10.1999 @ 75% when he was not staying at Head Quarters;
(ii) From 07.10.1999 till the date of dismissal from service he is entitled for subsistence allowance @ 75% p.a. against which he was paid only
25% subsistence allowance.
In-re. Non payment of subsistence allowance :- The Enquiry Officer was appointed on 07.07.1999 and the Enquiry commenced on
16.07.1999 and the Enquiry was adjourned sine die. The Petitioner had sent request on 21.07.1999 stating that he has proposed to go on
pilgrimage tour and that he will be out of station along with his family for next 45 days. Since the Petitioner was out of Head Quarters, he was not
paid the subsistence allowance from 21.07.1999 to 06.10.1999.
The learned Counsel for the Petitioner has submitted that the non payment of subsistence allowance would vitiate the Departmental proceedings.
It was further urged that the Petitioner had sent advance intimation to the Enquiry Officer and when there was no rejection of his request to be
away from the Head Quarters, it must be deemed to have been accepted. It was further submitted that the averments in the counter affidavit that
the Petitioner had left for USA is not substantiated.
The scope of judicial review of grant of subsistence allowance is very limited. Judicial review of grant of subsistence allowance is only to the
extent of seeing the compliance of the provisions. Even in the order of suspension, it was directed that the Petitioner should stay at Thiruppur
during the period of suspension and that the delinquent shall not leave the Head Quarters without obtaining prior permission from the authority
concerned. The order of suspension makes it clear that the subsistence allowance will be paid only subject to the compliance of the conditions
contained in the Service Rules. The Petitioner has left the Head Quarters without any specific permission from the Competent Authority. When the
Petitioner has violated the conditions of Suspension, the Petitioner cannot claim subsistence allowance for the said period.
The learned Counsel for the Petitioner urged that when the advance intimation was sent to the Enquiry Officer and when there was no rejection
of his request, it must be deemed that the Enquiry Officer has accepted the request of the Petitioner. It is stated that as per the Rules, the Petitioner
ought to have sent his request to leave the Head Quarters to the Managing Director of the Respondent Corporation. In the Counter Affidavit, it is
stated that the Petitioner was informed that he had to apply properly, for permission to leave the Head Quarters from the concerned Authority and
that the said communication sent to the Petitioner was returned with the endorsement ""went abroad"" viz. USA. The learned Counsel for the
Petitioner has raised serious objection for the averments in the Counter Affidavit regarding the Petitioner leaving for USA contending that the same
is not substantiated. It has to be noted that the Petitioner has not stated anything about the place he went on pilgrimage during that period.
Claim of Subsistence Allowance @ 75% from 07.10.1999 :- On behalf of the Petitioner, it was contended that the delay in completion of the
disciplinary proceedings is not attributable to the Petitioner and hence subsistence allowance ought to have been paid @ 75% of the salary. The
Petitioner and the other employees of the Respondent Corporation are governed by Service Rules of the Corporation. 6.21 deals with subsistence
allowance. Clause 6.21 reads thus:
6.21 SUBSISTENCE ALLOWANCE
(a)For employees from the cadre of Assistant Manager and above.
i) An employee of the Corporation who is placed under suspension pending enquiry shall be paid subsistence allowance at half of the substantive
pay last drawn.
ii) The amount of subsistence allowance may be increased in the succeeding months 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 authority who has placed him/her under
suspension, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the employee of the
Corporation.
iii) The amount of subsistence allowance may be reduced in the succeeding months by a suitable amount not exceeding fifty per cent of the
subsistence allowance admissible during the period of first six months if, in the opinion of the authority who has placed him/her under suspension,
the period of suspension has been prolonged for reasons to be recorded in writing directly attributable to the employee.
iv) The employee of the Corporation shall furnish a certificate that he/she is not engaged in any other employment, business, profession or vocation
during the period of suspension.
The Petitioner was placed under suspension on 28.10.1998. The Enquiry Officer was appointed on 07.07.1999. The Enquiry commenced on
16.07.1999 and was adjourned sine die. The learned Counsel for the Petitioner has submitted that the Enquiry Officer himself was appointed
beyond six months and the delay is not attributable to the Petitioner and hence the Petitioner was eligible for subsistence allowance @ 75% and the
subsistence allowance ought to have been paid @ 75% of his salary. This contention is advanced, overlooking the factual aspect that during the
interregnum period, the Petitioner attained the age of superannuation on 31.03.1999. In consideration of the grave irregularities, the Respondent
Corporation extended the service of the Petitioner beyond 31.03.1999 till the completion of the disciplinary proceedings specifically making it clear
that the service rights accrued to the Petitioner should freeze at the level reached on the date of his superannuation, i.e. on 31.03.1999.
As per Rule 1.9 of the Service Rules, in respect of the matters specifically provided for in the Service Rules of the Corporation, the
Corporation may follow the corresponding Rules, Regulations or Orders as are applicable to the Government Employees from time to time,
provided, there is no direct financial commitment. Accordingly, the Respondent Corporation has invoked FR 56(1)(c) and refused permission to
the Petitioner to retire from service on 31.03.1999 on attainment of age of superannuation.
The Petitioner claims subsistence allowance during the period of notional extension of his service. Since the suspension continued and the
service extended, the Petitioner was entitled to subsistence allowance in terms of FR 53(1)(a) read with Rule 6.21. The question for consideration
is whether the Respondent Corporation was not justified in reducing the subsistence allowance to 2.5%. Enquiry commenced on 16.07.1999 and
adjourned to the next sitting. Immediately after the commencement of the Enquiry, within five days i.e. on 21.07.1999, the Petitioner has sent
representation stating that he would be out of the Head Quarters for 45 days. In the Counter Affidavit, it is also stated that the charge memo sent
to the Petitioner, in respect of items 5 to 8, was also returned unserved. Therefore, the delay in completion of the enquiry proceedings is also
attributable to the Petitioner and the order of rejection of subsistence allowance to 25% does not suffer from any illegality.
Contending that the non-payment of subsistence allowance would vitiate the Departmental proceedings, the learned Counsel for the Petitioner
has placed reliance upon 1999 (2) Supreme 376 and 1994 (4) Supreme 9. Those decisions regarding the non-payment of subsistence allowance
have no relevancy in the factual situation of the case on hand.
The Petitioner has been paid the subsistence allowance due and payable in accordance with law from 07.10.1999 till the date of dismissal and
rightly not paid from 21.07.1999 to 06.10.1999 when he was away from the Head Quarters. There is nothing to suggest arbitrariness or
unreasonableness to issue any direction. The Writ Petition fails and the same is liable to be dismissed.
In the result, the Writ Petition is dismissed. No costs.