F. Arokiamary vs District Educational Officer, St. Josweph Higher Secondary School and M. Mohamed Ismail

M.Y. Eqbal, C.J. and T.S. Sivagnanam, J.—This Appeal is directed against the order made in W.P. No. 1703 of 2009 dated 16.9.2009.

The appellant is the Writ Petitioner and the challenge in the Writ Petition was to an order passed by the second respondent Management dated

10.8.2009, in and by which the Management denied subsistence allowance to the appellant during the period of her suspension.

The facts which are necessary for the disposal of the Appeal are that the appellant was appointed as a Secondary Grade Teacher in the second

respondent School during 1983. The Management by an order dated 16.3.2009 placed the appellant under suspension based on certain

allegations. Subsequently charge memo dated 18.6.2009 was served on the appellant containing seven articles of charges and the third respondent

was appointed as an Enquiry Officer to conduct the domestic enquiry. While the domestic enquiry was in progress, the appellant submitted a

representation on 6.7.2009 requesting for payment of subsistence allowance, apart from seeking other reliefs. The request made by the appellant

for subsistence allowance was rejected by an order dated 10.8.2009, which was challenged in the Writ Petition. The learned Judge, by the

impugned order disposed of the Writ petition, directing the second respondent Management to pay the subsistence allowance to the petitioner

within a period of two weeks from the date of receipt of the copy of the order and further gave an opportunity to the Management to make

representation to the authorities to get the allowance reimbursed from the Department. Not being satisfied with the direction issued in the Writ

Petition, the appellant has preferred the present appeal.

The learned Counsel for the appellant would submit that the stand taken by the Management is that Rule 17 of the Tamil Nadu Recognized

Private Schools (Regulation) Rules, 1974, (herein after referred to as the ''Rules'') are not applicable to them since they are an aided minority

institution and this Court in an earlier Judgment has quashed Rule 17 of the Rules in so far as it was made applicable to aided minority institutions

and therefore in the absence of any Rule, the appellant is entitled to full salary during the period of suspension.

In support of his contentions, the learned Counsel for the appellant placed reliance on the following decisions of the Hon''ble Supreme Court: i)

The Management of Hotel Imperial, New Delhi and Others Vs. Hotel Workers'' Union, , ii) T. Cajee Vs. U. Jormanik Siem and Another, iii) R.P.

Kapur Vs. Union of India (UOI) and Another, iv) Balvantray Ratilal Patel Vs. The State of Maharashtra, . The learned Counsel also placed

reliance on the order passed by a learned single Judge of this Court in 2001 (1) CTC 292 G. Anbarasan v. District Educational Officer,

Cuddalore.

The learned Counsel appearing for the Management would submit that the direction issued by the learned single Judge in the impugned

Judgment has been complied with and the appellant has been paid the subsistence allowance being 50% of her salary and during the pendency of

the Writ petition the appellant did not co-operate in the domestic enquiry and the Management was compelled to seek for a direction from this

Court to direct the appellant to co-operate in the domestic enquiry. Further, it is contended that the domestic enquiry has been completed and the

enquiry officer has submitted his report to the Management and the disciplinary would be concluded expeditiously and final orders would be

passed.

The learned Special Government Pleader appearing for the first respondent would submit that in view of the earlier decision of this Court, Rule

17 of the Rules is inapplicable to aided minority institutions.

We have given our anxious consideration to the submissions made by the learned Counsel appearing on either side and perused the materials

available on record.

The inherent power of the Management to place its employee under suspension cannot be disputed. In terms of Rule 17(2) of the Rules,

whenever a teacher or other person employed in a private school is kept under suspension, such suspension shall immediately be intimated to the

District Educational Officer concerned and on receipt of such intimation, the concerned District Educational Officer shall make payment of

subsistence allowance to the Teacher who was placed under suspension every month from the date of suspension for not more than two months at

half the rate of pay which he was drawing at the time of suspension and in addition the dearness allowance, if admissible. Whenever, the competent

authority has extended the period of suspension of a Teacher beyond the period of two months, such further period of extension shall not exceed

two months and the payment of subsistence allowance shall be limited to four months in all. However, this Rule cannot be made applicable to the

second respondent since it is an aided minority institution as the said Rule has been held to be inapplicable to aided minority institutions.

The grievance of the appellant is that she is entitled to full salary as subsistence allowance since there is no Rule restricting the payment of

subsistence allowance to 50% of the salary drawn by her. In support of this contention, the learned Counsel placed reliance on the decisions of the

Hon''ble Supreme Court in Hotel Imperial, T. Cajee, R.P. Kapur and Balavantray Ratilal Patel, referred supra. The learned Counsel submits that if

there is no statutory provision or Rule, fixing the amount of subsistence allowance payable, the employee is entitled to full salary for the period of

suspension and the Management is not justified in denying the same.

The Hon''ble Supreme Court in O.P. Gupta Vs. Union of India (UOI) and Others, , while considering the effect of an order of suspension and

the meaning of the expression subsistence allowance held as hereunder:

...An order of suspension of a government servant does not put an end to his service under the government. He continues to be a member of

the service in spite of the order of suspension. The real effect of the order of suspension as explained by this Court in Khem Chand Vs. The Union

of India (UOI )and Others, is that he continues to be a member of the government service but is not permitted to work and further during the

period of suspension he is paid only some allowance'' generally called subsistence allowance'' which is normally less than the salary instead of the

pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the

departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression'' subsistence allowance''

has an undeniable penal significance. The dictionary meaning of the word ''subsist'' as given in Shorter Oxford English Dictionary, Vol. II at p.

2171 is'' to remain alive as on food; to continue to exist''. ''Subsistence ''means ''means of supporting life, especially a minimum livelihood.

...It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental

proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it

would imply that the executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an

indefinite duration.

The Hon''ble Supreme Court in Ram Lakhan and Ors. v. Presiding Officer and Ors. (2000) 10 SCC 201, after taking note of the above

decision in the case of O.P. Gupta, and also the decision of the Hon''ble Supreme Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd.

and Another, held as hereunder:

...Once the employee is placed under suspension, the Management cannot take any work from the suspended employee nor can the employee

claim full salary from the Management. But the Management has to pay the subsistence allowance to the employee so that he may sustain himself

till the application u/s 33(1) is finally disposed of

Thus taking note of the decisions of the Hon''ble Supreme Court, referred supra, it would be appropriate to define the expression subsistence

allowance to mean an allowance or advance on wages paid during the period of suspension to enable the employee to support his life.

The learned Counsel had placed reliance on the order passed by the learned single Judge of this Court in 2001 (1) CTC 292 G. Anbarasan v.

District Educational Officer, Cuddalore, referred supra. In our view the said decision may not render support to the case of the appellant since the

said case related to a non-minority institution to which the provisions of the Tamil Nadu Recognized Private Schools (Regulation) Act and the

Rules framed thereunder are fully applicable. It is in that context, the learned Single Judge of this Court has held that in the absence of any valid

order extending the period of suspension beyond the initial period of two months, the petitioner therein was entitled for full salary.

Having considered the entire facts of the case and the decisions of the Hon''ble Supreme Court in O.P. Gupta case and Ram Lakhan case, in

our view, the question as to whether the appellant is entitled to full salary for the period of suspension need not be gone into for the reason that the

disciplinary proceedings has almost attained a finality, inasmuch as the domestic enquiry has been completed and the enquiry officer has already

submitted his report to the Management. Further, the Management has also complied with the direction issued by the learned Single Judge and the

appellant has been paid 50% of the salary as subsistence allowance during the period of suspension and she is also being continuously paid

subsistence allowance. In such view of the matter, the following directions would meet the ends of justice:

i) The second respondent is directed to conclude the disciplinary proceedings initiated against the appellant within a period of two months from the

date of receipt of a copy of this order and pass final orders on merits and in accordance with law.

ii) The second respondent shall continuously pay subsistence allowance to the appellant at the rate of 50% of her salary till the conclusion of the

disciplinary proceedings.

iii) The period of suspension shall be regulated based upon the final orders that may be passed in the disciplinary proceedings initiated against the

appellant.

With the above direction, the Writ Appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed.