Tushar Ranjan Mohanty vs Union Of India

L. Narasimha Reddy, J

1.This OA is filed with a prayer to quash and set aside F.R. 53(2) as being bad in law, discriminatory and arbitrary, and consequently to direct the respondents to pay subsistence allowance to the applicant without insisting on a Certificate as required under F.R.53(2). Other consequential reliefs are also claimed.

The applicant was working as an SAG Officer of Indian Statistical Service. He was placed under suspension through order dated 19.12.2017. He was also sanctioned the subsistence allowance in accordance with rules. However, the payment of subsistence allowance was to depend upon the certificate to be submitted by the applicant as required under F.R. 53 (2).

The applicant contends that the insistence on filing of certificate is violative of fundamental rights guaranteed to a citizen, and that F.R. 53 (2) is liable to be set aside. He further contends that special allowances are paid to the employees without insisting of such certificate, and there is no basis for the one contemplated under F.R.53 (2).

The case was listed yesterday, and at the request of applicant, it is adjourned to today. However, he states that he is not in a position to argue the case since he did not locate his file.

Since the challenge to F.R. 53(2) is purely a question of law, we do not propose to wait till the respondents file counter affidavit.

We have gone through the record and heard the arguments of Shri R. V. Sinha, learned counsel for the respondents.

Substantial number of cases filed before this Tribunal are those instituted by the applicant himself. They run into several hundreds. It is natural that when the applicant has filed several hundreds of cases, there is every possibility of his missing one or two files. However, the Tribunal cannot have the luxury of having such matters on its Board. Further, the applicant has the habit of complaining to High Court and Supreme Court for every small inconvenience which he faces whether in the context of disposal of the OAs.

Coming to the merits of the case, F.R. 53 (2) reads as under:-

"(2) No payment under sub-rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation:

Provided that in the case of a Government servant dismissed, removed or compulsorily retired from service, who is deemed to have been placed or to continue to be under suspension from the date of such dismissal or removal or compulsory retirement, under sub-rule (3) or sub-rule (4) of Rule 12 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, and who fails to produce such a certificate for any period or periods during which he is deemed to be placed or to continue to be under suspension, he shall be entitled to the subsistence allowance and other allowances equal to the amount by which his earnings during such period or periods, as the case may be, fall short of the amount of subsistence allowance and other allowances that would otherwise be admissible to him; where the subsistence allowance and other allowances admissible to him are equal to or less than the amount earned by him, nothing in this proviso shall apply to him."

Once an employee is placed under suspension, there comes into existence a temporary disruption of relations of employer and employee. He will not be required to attend the duties. In case, he has been otherwise engaged and was earning any emoluments, the same needs to be known by the employer. The reason is that the very basis for payment of subsistence allowance is to enable the employee to meet the minimum needs, though he does not do any work. He is also required to remain at a station. In this context, reference can be to the instances under the Industrial Disputes Act. Whenever a retrenched employee is reinstated, the law requires that he must satisfy the authority that he has not been gainfully employed during the period when he was out of duties.

Except making some general and unsubstantiated observations such as that the Doctors are paid the non practice allowance, the applicant has not advanced any legal contention to support the plea against F. R. 53(2). A provision of law which stipulates one of the most important steps in relation to a suspended employee, cannot be set aside just at the asking of the applicant.

We do not find any merit in this OA. It is accordingly dismissed. There shall be no order as to costs.