Saugata Banerjee vs Union of India (UOI)

Kalyan Jyoti Sengupta, J.—This application has been taken out for clarification and/or modification and/or amendment of my order dated May 16, 2000 in the light of true and correct interpretation Rule 21 of C.D.A. Rules, 1974. The brief recapitulation of the fact of this case is required.

The writ Petitioner, viz., Saugata Banerjee on April 12, 2000 filed the writ petition impugning legality and/ or validity of his re-designation as Officer-on-Special Duty (O.S.D.) (Market-Planning), his transfer from headquarter to Mandya in M/s. Mandya National Paper Mills Ltd., Belagula with immediate effect and ultimate suspension order issued by the Respondent No. 2 being the applicant herein. The writ Petitioner is an officer of the Respondent No. 2. Under service condition the Respondent No. 2 passed several orders which are under challenge in the writ petition. On May 16, 2000 I passed an interim order amongst other as follows:

�Meanwhile there will be an interim order to the effect that the Respondents shall pay subsistence allowance to the writ Petitioner as permissible under the rules at Calcutta office where he last worked. The Respondents authority would be entitled to proceed with the disciplinary proceedings by issuing a charge sheet and the same shall be issued within a period of four months from date�.

The Respondent-applicant is facing problem in view of the demand made by the writ Petitioner for payment of subsistence allowance at the revised pay scale which has been done during the pendency of the writ petition and subsequent to. passing of the interim'' order on '' September 25, 2000. The Presidential Directive for revision of pay scale stipulates retrospective application thereof with effect from January 1, 1997.

Mr. Sibaji Sen, learned Advocate appearing in support of this application contends in substance that the writ Petitioner is not entitled to get benefit of the revision of pay scale since the same is subsequent event and this revision of pay scale is given effect after the suspension order and interim order of this Court were passed.

He wants to persuade this Court that retrospective effect of revision of pay scale cannot be given if proper interpretation of Rules relating to payment of subsistence allowance in case of suspension is given. He has also traced the history from which the law of suspension and payment of subsistence allowance have developed and settled by the pronouncement of the Apex Court in various judgments.

In his eloquent argument he contends that power to suspend an employee by the employer is not an implied term, it must be expressed. Ordinarily an employee has right to work unless he is dismissed from his services. As necessary . corollary the employer cannot deprive the employee of working nor of getting full salary. If there is no express term in the contract and/or the rules governing the contract of service then the employee concerned is to be paid full salary even if he is suspended. On this subject he has, drawn attention of this Court to the decisions of Supreme Court reported in The Management of Hotel Imperial, New Delhi and Others Vs. Hotel Workers'' Union, and T. Cajee Vs. U. Jormanik Siem and Another, .

He submits that in this case there is a specific power under the rules to suspend an employee and the provision for payment of subsistence allowance has been provided. Therefore, this rule will be governing factor here. In support of his submission he relies on a decision of Supreme Court reported in Balvantray Ratilal Patel Vs. The State of Maharashtra, .

In this case the relevant Rule 21 will be .applicable. It specifically provides that an employee under suspension" shall be entitled to draw subsistence allowance equal to 50% of his Basis Pay provided the Disciplinary authority is satisfied that the employee is not engaged in any other employment or business or profession or vocation.

According to Mr. Sen on the date of suspension or for that matter on the date of passing of that order the Petitioner has drawn salary at the old rate of basic pay. He submits that this basic pay of the Petitioner for payment of subsistence allowance cannot have any reversionary effect and the same is static one until and unless the suspension order is withdrawn followed by reinstatement of the Petitioner. He contends that the meaning is to be attributed to the words ''.of which he was in ''Receipt'' is at rate of basic pay was drawn on the ''date of suspension''. Any rule has to be. given a harmonious and purposeful meaning.

He also contends that in the event the Petitioner''s basic pay is revised with retrospective effect in order to make payment of subsistence allowance, there would be absurdity in interpretation of the relevant rule. The judicial approach would be to make a harmonious construction to avoid inconsistency or absurdity. In support of his submission he relies on a decision of Apex Court reported in Sultana Begum Vs. Prem Chand Jain,

He further contends that the pay revision has been effected for all the employees excepting suspended ones. Moreover in this case the dearness allowance has been merged with the basic pay for effecting revision. Therefore, the payment of subsistence allowance at revised pay scale is an absurdity.

He contends that Supreme Court decision reported in Umes Chandra Misra v. Union of India 1993 (2) SCC 210, is not applicable in this case as it was a case of Railway Employee who was suspended and not being paid with the subsistence allowance.

Mr. Jayanta Banerjee, learned Advocate appearing for the writ Petitioner while opposing this application contends that since the pay scale has been revised with retrospective effect from January 1, 1997 and the Petitioner had been in employment without any order of suspension till February 20, 2000 the Petitioner is entitled to get subsistence allowance retrospectively as per Rule. If Rule 21 together with my order is properly read and interpreted then it will appear that the pay scale of the Petitioner would have been the revised pay scale on the date of suspension. It is an absurd proposition that all the contemporaneous employees will be having benefit of revised pay scale whereas the Petitioner would be denied in view of the suspension order. The order of suspension is not a punishment one nor the relationship of master and servant comes to an end. In support of his submission he has relied on a decision of the Supreme Court reported in Umesh Chandra Misra v. Union of lndia (Supra). He has drawn my attention to para. 9 of the said judgment and contends that the Apex Court has settled the law on this point that the suspended employee entitled to get subsistence allowance at a revised pay scale;

Having heard the respective contention of the learned Advocates and having considered the materials the controversy involved in this application is very short whether the writ Petitioner is entitled to get the benefit of revised pay scale while he is under suspension and to get subsistence allowance at the revised rate or not.

Mr. Sen''s contention is that as because the Petitioner has been suspended, may be for temporary period, all his benefits with regard to service stood frozen on and from the date of suspension excepting the right to receive subsistence allowance as per rules, is to be examined in the light of the proper reading of Rule 21. Therefore, Rule 21 is quoted hereunder:

An employee under suspension shall be entitled to draw subsistence, allowance equal to 50% of his Basic Pay provided the Disciplinary Authority is satisfied that the employee is not engaged in any other employment or business or profession or vocation. In addition he shall be entitled to Dearness Allowance and any other compensatory allowance of which he was in receipt on the date of suspension provided the Suspending Authority is satisfied that the employee continues to meet the expenditure for which the allowance was granted.

In my order I have directed to pay subsistence allowance as permissible under the rules. The governing words for payment of subsistence allowance are equal to 50% of his basic pay and in addition dearness allowance and any other compensatory allowance, of which he was in receipt on the date of suspension. The words ''in receipt on the, date of suspension'' qualify and/ or relate to the payment of dearness allowance and any other compensatory allowance. So the aforesaid Rule does not say that suspended employee is entitled to subsistence allowance at the rate of basic pay that was prevailing on the date of suspension.

Subsistence allowance is meant for sustenance of the suspended employee as he is deprived of full salary. It is a common knowledge that the pay scale of the employee is required to be revised periodically depending upon price index of consumer goods and essential services in order to give the employee a living wages for maintaining dependents of his family so much so he can discharge duty sincerely and properly. The revision of pay scale in necessary with increase or decrease of price indEx. But here is a case because of increase of price index the pay scale has been revised in upward direction. Therefore, it was thought by the Government unless a pay scale is revised in upward direction fixing a cut off date for giving effect, an employee cannot be expected to have living wages. Had this revision been effected timely then the writ Petitioner would have got the benefit on January 1, 1997 but for delay in taking decision the benefit is decided to be given much later. When a decision has been taken to give retrospective effect then the ''Government must have thought that this should have been granted on earlier date. So basic pay as mentioned in the said Rule means not only scale of pay which was also prevailing on the date of suspension but includes subsequent revision as well.

I express my inability to accept the argument of Mr. Sen that there is a co-relation between the word ''receipt'' and the words "on the date of suspension". However, Mr. Sen is right in saying that the. judicial approach would be to make a harmonious construction to avoid inconsistency as it has been held in the decision of Supreme Court reported in Sultana Begum v. Premchand Jain (Supra) . The aforesaid English decision has laid down that the purposive interpretation should be given to sub serve the aims and objects of the rules and/or terms of the agreement.

Upon careful reading of Rule 21 it would appear that the words "in receipt on the date of suspension" really qualify and/or are having co-relation with the words "dearness allowance and other compensatory allowance". The provision for payment of subsistence allowance is absolutely separate and independent provision and the fixation of amount thereof always depends upon the basic pay being received or receivable in future in case of revision. Therefore, in my view, reasonable and purposeful interpretation of the aforesaid Rule 21 would be that an employee is entitled to get subsistence allowance equal to 50% of his basic pay which he receives on the date of suspension or which may be receivable in future so long his suspension will continue. If the interpretation put forward by Mr. Sen is accepted then there will be an absolute absurdity as had this revision of pay scale been allowed timely them the Petitioner would have got the higher scale of pay. It is the failure of the Respondent authority who could not revise the pay scale timely and in order to. compensate, this retrospective effect has been given. It is the fault of the Respondent. So the Petitioner should not be penalized and/or be made to suffer for this fault. Moreover, in the recent decision of Supreme Court reported in Umesh Chandra Misra v. Union of lndia (Supra) in para. 9 it has been held that to make payment of the subsistence allowance on the basis of the revised scale of salary, if any, which was prevalent and due to the Appellant during the relevant period for which the subsistence allowance is directed to be paid.

Mr. Sen''s ingenious research work on the law of suspension and payment of subsistence allowance cannot be disputed, but in this case in consonance with the aforesaid law enunciated by the Apex Court reported in Management Hotel Imperial, Delhi v. It''s Workmen''s Union (Supra), T. Cajee v. U.J.S. (Supra) and B.R. Patel v. State of Maharastra (Supra), as rightly pointed out by Mr. Sen, the Respondent has made expressed provision of suspension and payment of subsistence allowance. In old days as it has been held in the aforesaid Supreme Court decisions that there cannot be any implied term of suspension of the worker unless he is completely removed or discharged from services so also there was no provision for payment of subsistence allowance. Even if suspension was made without having any expressed term then the employee concerned was entitled to get full wages even during the suspended period. Those decisions would have been very helpful had it not been any expressed term for placing the employee in suspension, or payment of subsistence allowance.

Therefore, I hold that the stand taken by the Respondent authorities are not correct and the Petitioner is entitled to get subsistence allowance on the basis of the revised pay scale. It appears that since the dearness allowance has been merged with the pay scale, so, the Petitioner cannot get any dearness allowance except in case of future payment.

Accordingly, I dismiss this application and no clarification of my order is needed excepting as observed by me as above.

There will be no order as to costs.

All parties concerned are to act on a Xerox signed copy of the operative portion of this judgment and order on the usual undertaking.