R. Vinobaji vs The Director, The Family Welfare Department, The Deputy Director, Medical Rural Health Services and Family Welfare, The Deputy Director of Health Services and The Medical Officer, Primary Health Centre

S. Nagamuthu, J.—The petitioner is working as a Store Keeper in Primary Health Centre, Kuruvikulam, Tirunelveli District. A criminal case came to be registered against him in Crime No. 12 of 2006 on the file of the District Crime Branch, Tirunelveli for offences under Sections 120(B), 409, 465, 467, 468, 471 and 477(A) of the Indian Penal Code. Based on the same, the petitioner was placed under suspension by the Deputy Director of Medical Rural Health Services and Family Welfare, Tirunelveli, by his proceedings in R. No. 591/FW/OS/06, dated 13.03.2006. In the said order of suspension, the petitioner was directed to remain at Kuruvikulam during the period of suspension. Subsequently, the petitioner made a request on 21.03.2006 to permit him to remain at Coimbatore, where his wife was undergoing treatment for some serious illness. The said request of the petitioner dated 21.03.2006 was, however, rejected by the Deputy Director, by order dated 21.04.2006. In the same order, the Deputy Director expressed that the petitioner could make a further representation to the Directorate seeking for such permission to remain at Coimbatore. Accordingly, he made a request on 19.09.2006. In the said request, he had stated that his wife and son are in Coimbatore. But, no order, whatsoever, was passed by the Director on the said request. Suddenly, the second respondent, by his proceedings in Na.Ka. No. 591/Ku.Na/A.ka/06, dated 10.01.2007, has passed orders stopping the payment of subsistence allowance in terms of fundamental Rules 53(3) and G.O.Ms. No. 1595, Finance Department, dated 22.10.1969. Challenging the said order, the petitioner has come forward with this Writ Petition.

The learned Counsel for the petitioner would submit that though the petitioner requested for permission to stay at Coimbatore during the period of suspension, since he was not allowed, he remains only in Kuruvikulam, as directed in the suspension order. He would further submit that without calling for any explanation from the petitioner, the impugned order has been passed. Mainly, on these two grounds, the learned Counsel for the petitioner would try to assail the impugned order.

The learned Additional Government Pleader would, however, stoutly oppose the Writ Petition. She would submit that as a matter of fact, the petitioner did not remain at Kuruvikulam and instead, he was remaining only in Coimbatore without permission. That is the reason why, the impugned order came to be passed, it is contended. The learned Additional Government Pleader would further submit that a letter addressed to the petitioner to his permanent address at Coimbatore was served on him at Coimbatore address, which indicates that the petitioner was then residing only in Coimbatore and not at Kuruvikulam. Therefore, according to the learned Additional Government Pleader, the impugned order does not require any interference.

I have considered the rival submissions.

Before adverting to the facts of the present case, let me first analyze Rule 53(3) of the Fundamental Rules, which deals with the power of the authority to direct a Government servant, who is under suspension, to reside in a fixed place from time to time. Rule 53(3) of the Fundamental Rules is as follows:

No payment under Sub-rule (1) shall be made unless the Government servant continues to reside in the place fixed from time to time, by the authority which made or which is deemed to have made the order of suspension.

In the instant case, admittedly the place of residence during the period of suspension was fixed as Kuruvikulam. The questions - whether the petitioner failed to reside at Kuruvikulam and whether he had gone to Coimbatore in a casual manner, are all disputed questions of fact. At this stage, I do not want to venture into those disputed questions of fact. Assuming that the petitioner had gone to Coimbatore, could it be a violation of Rule 53(3) of the Fundamental Rules - is a paramount question to be decided. Here, the expression "reside" would mean one''s permanent home in a particular place. Going by the said meaning, if Rule 53(3) of the Fundamental Rules is analyzed, it cannot be stated at all, at any stretch of imagination, that the suspended employee should not leave the place fixed in the suspension order without getting permission of the authority. The said provision should be construed to mean that the suspended employee has to have his permanent home in that particular place and there cannot be any impediment on his other movements. If the movement of a suspended employee is to be completely curtailed by directing him to remain in the same place and not to leave without getting permission of the authority, it would substantially cause violation to the Fundamental rights guaranteed to the said employee under Article 19 and 21 of the Constitution of India. It cannot be construed, like a condition as it is normally imposed by criminal Courts, directing the accused to remain at a particular place, while on bail. If proper construction of Rule 53(3) is made, I am sure, absolutely there is no mandate that the suspended employee should remain in the fixed place for all the 24 hours. I am of the view that he is always at liberty to leave his place to wherever he wants to attend to any of his functions. The object of imposing such a condition is to send official communications to him to the particular address within the jurisdiction of the authority who has initiated the proceedings. For example, if a suspended employee resides at a far off place, that too, in an unknown address, it will be difficult for the authority to serve the charge memorandum and the other proceedings initiated against him. With that object only, the Rule has been evolved.

In the case on hand, it is not the case of the authority that the petitioner did not reside at Kuruvikulam at all. The only contention of the respondents is that a letter sent to his house at Coimbatore reached him in the said address, which according to the respondents, amounts to violation of the direction of the respondents. In my considered opinion, the said stand taken by the respondents has no force, as I have concluded that there cannot be any impediment for the petitioner to leave Kuruvikulam to go to any other place to attend his normal avocations. The petitioner''s explanation is that he had gone to Coimbatore to attend his ailing wife. There cannot be any hurdle in the eye of law for him to leave Kuruvikulam to attend his ailing wife. Thus, the petitioner has not at all violated Rule 53(3) of the Fundamental Rules. Unless it is clearly established by means of materials that the petitioner did not reside at Kuruvikulam and he was residing at Coimbatore, as it is claimed by the respondents, the impugned order cannot sustain the legal scrutiny.

At this juncture, it should also be remembered that though the petitioner has placed under suspension in the year 2006, so far, no disciplinary proceeding has been initiated. Even in respect of the criminal case, charge sheet has not been laid. But, the petitioner had earlier approached this Court seeking for a direction to the police to complete the investigation and to file a final report. All these things would show the bona fides of the petitioner.

In view of all the above, this Writ Petition is allowed, the impugned order is set aside and the respondents are directed to pay subsistence allowance to the petitioner without fail and to pay the arrears of subsistence allowance, within a period of two months from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petitions are closed.