Judgment:
1. Heard Mr. P.K. Shahi, learned Counsel appearing on behalf of the petitioner, and JC to SC 9 for the respondent-State.
2. By this application, the petitioner has prayed for quashing of the entire departmental proceeding in Departmental Proceeding No. 1 of 1993 and also the interim order of suspension, as contained in Memo No. 1325 dated 19-11-1991, putting the petitioner under suspension with effect from 16-11-1991 and also for holding that the entire disciplinary proceeding against the petitioner vitiated for nonpayment of subsistence allowance to him for the period of suspension.
3. Short facts giving rise to this application are as follows:
It appears that while the petitioner was on deputation in CID (Food), Gopalganj, he remained absent without due permission and even he stayed away from election duties. In that view of the matter, he was put under suspension vide order, as contained in Annexure 1 dated 19-11-1991 with effect from 16-11-1991 and Departmental Proceeding No. 1 of 1993 was drawn up for departmental action. It further appears that pending departmental inquiry till date the petitioner is under suspension and he has not got his suspension allowance for whole of the period from 16-11 -1991 till date.
4. Learned Counsel appearing on behalf of the petitioner submitted that the departmental proceeding till date is pending and the petitioner is under suspension with effect from 16-11-1991 and no subsistence allowance, whatsoever, has been paid to him as required to be paid under Rule 96 of the Bihar Service Code. Learned Counsel appearing on behalf of the petitioner in this background submitted that for non-payment of subsistence allowance for the entire period of suspension the entire departmental proceeding vitiates. In this connection, reliance has been placed in the cases of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., and Anr. : AIR1999SC1377 and Jagdamba Prasad Shukla v. State of U.P. and Ors. : (2000)IILLJ1513SC .
5. A counter-affidvit has been filed on behalf of the respondents stating therein, inter alia, that though the petitioner is under suspension pending a departmental inquiry, at no point of time, he turned up to receive the subsistence allowance nor the petitioner has marked his attendance as per Circular of the State Government dated 2-8-1985 and since the petitioner failed to receive the subsistence allowance by joining in Food, CID, Patna, payment of subsistence allowance was stopped with effect from 1st February, 1992. No plausible justification, however, has been shown in the counter-affidvit as to under what circumstances the departmental proceeding is on hold despite passage of ten years from the date of suspension. However, it is submitted on behalf of the State that the petitioner is not cooperating with the departmental proceeding.
6. Learned Counsel appearing on behalf of the petitioner in categorical terms submitted that payment of subsistence allowance has been stopped by the disciplinary authority with effect from 1 -2-1992 for the simple reason that the petitioner was not marking his attendance even in course of suspension. My attention has been drawn to the order, as contained in Annexure 1, whereby and whereunder the petitioner was put under suspension with effect from 16-11 -1991 and it is stated that only after two months of the order of suspension, payment of subsistence allowance was directed to be stopped with effect from 1 -2-1992, which is manifest from paragraph 6(i) of the counter-affidavit of the respondents. It is further submitted by learned Counsel appearing on behalf of the petitioner that even during the period of suspension the petitioner is not required to marks his attendance even though he continued to be a Government servant in terms of Section 96 (ii) of the Bihar Service Code.
Rule 96 of the Bihar Service Code covers all kinds of suspension including an order of suspension pending a detailed inquiry and it further contemplates that when a Government servant is suspended he does not cease to be a Government servant and the Government is under obligation to pay him subsistence allowance during the period of suspension as a suspended employee cannot seek other employment during the period of suspension. In case of Captain M. Paul Anthony (supra), it has been held that an order of suspension does not put an end to any employee's service. He continues to be a member of service though he is not permitted to work and is paid only subsistence allowance, which is less than his salary. It has further been held that non-payment of subsistence allowance to a delinquent is an inhuman act which has an unpropitious effect on the life of an employee when he is placed under suspension, he is demobilised and salary is also paid to him at a reduced rate under the nickname of 'subsistence allowance, so that the employee may sustain himself. The apex Court, however, in this connection observed that the provision for payment of subsistence allowance made in the service rule only ensures non-violation of the right to life of the employee and thus, observed as follows:
31. On joining government service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Government. The Government, only because it has the power to appoint does not become the master of the body and soul of the employee. The Government by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the Government or any other employer, like instrumentalities of the Government or statutory or autonomous corporations, etc., is regulated by the terms of contract of service or service rules made by the Central or the State Government under the proviso to Article 309 of the Constitution or other Statutory Rules including certified standing orders. The fundamental rights, including the right to life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of subsistence allowance made in the service rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra v. Chandrabhan Tale, struck down a service Rule which provided for payment of a nominal amount of Rupee one as subsistence allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki v. Presiding Officer, and it was held in that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non-payment of subsistence allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated. For this purpose, reliance was also placed on an earlier decision in Ghanshyam Das Shrivastava v. State of M.P.
7. In the case of Jagdamba Prasad Shukla (supra) the apex Court held that non-payment of subsistence allowance during the entire period of suspension, which enables the delinquent to attend the proceeding and in such circumstance, there was denial of reasonable opportunity vitiating the departmental inquiry and order of removal from service. In this connection, it would be relevant to notice paragraph 8 of the said judgment, which is as follows:
8. The payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for non-payment of the subsistence allowance all through the period of suspension i.e. from suspension till removal, One of the reasons for not appearing in inquiry as intimated to the authorities was the financial crunch on account of non-payment of subsistence allowance and the other was the illness of the appellant. The appellant in reply to the show-cause notice stated that even if he was to appear in inquiry against medical advice, he was unable to appear for want of funds on account of non-payment of subsistence allowance. It is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental enquiry. Thus, the departmental enquiry and the consequent order of removal from service are quashed.
8. In the case in hand, it appears from the pleadings of the parties that till date the petitioner is under suspension with effect from 16-11-1991 and departmental proceeding has not yet come to a logical conclusion. From the pleadings of the petitioner, it further appears that the petitioner repeatedly made representations to the authorities for payment of subsistence allowance as is evident from Annexure 3 to the writ application. Nowhere it is stated in the counter-affidavit, on the contrary, that the authorities ever asked the petitioner to furnish requisite certificate showing his entitlement to receive his subsistence allowance and since the payment of subsistence allowance was directed to be stopped immediately after the order of suspension, much prejudice was caused to the case of the petitioner.
9. The facts, which have been brought forth before this Court manifestly demonstrate that there was violation of the principles of natural justice and the petitioner has been made to suffer in various ways for non-payment of the subsistence allowance and particularly by stoppage of subsistence allowance to the petitioner, his case has been prejudiced. In the facts and circumstances of the case, it is not known to this Court as to when the departmental proceeding shall come to an end. It is settled that in case, where delinquent does not cooperate with the departmental proceeding, the disciplinary authority is at liberty to proceed with the proceeding and conclude the same ex-parte. No justification has been shown in the counter-affidavit as to why the proceeding continued for ten years and was not even concluded ex parte, when the petitioner is alleged to be a non-co-operative. Payment of subsistence allowance is an incidence of Article 21 of the Constitution and, thus, the authorities must be held to be in violation of Article 21 of the Constitution.
10. In the facts and circumstances of this case and in view of the ratio, as referred to above, the entire proceeding drawn up against the petitioner including the order of suspension vitiates.
11. For the reasons aforementioned, therefore, this application is allowed and the departmental proceeding in Departmental Proceeding No. 1 of 1993 is hereby quashed, and consequently thereof, order of suspension stands vacated with all consequential benefits. No order as to costs.