IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 WP(C).No. 16488 of 2007(K) -------------------------- PETITIONER(S): --------------- R.VISWAMBARAN NAIR, S/O RAMAN PILLAI, THACHOOR HOUSE, VATTAPPARA, TRIVANDRUM DISTRICT. BY ADV. SRI.P.A.NOOR MUHAMMED SRI.C.K.PRASAD SRI.ABHILASH S.FRANCIS RESPONDENT(S): --------------- 1. THE DIVISIONAL SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, TRIVANDRUM. 2. THE ASST. SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, TRIVANDRUM. ADV. SRI.C.S.DIAS SC,RAILWAYS FOR R.1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 16488/2007 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE REPLYDTD.12.3.01. P2. COPY OF THE COMPLAINT DTD.5.1.01. P3. COPY OF THE COMPLAINT DTD.10.4.02. P4. COPY OF THE JUDGMENT IN O.P.No. 12727/02 OF THIS COURT. P5. COPY OF THE REPLY DTD.10.9.02 TO R1. P6. COPY OF THE PETITION DTD.29.9.02 TO R1. P7. COPY OF THE ORDER DTD.19.9.02 BY R2. P8. COPY OF THE JUDGMENT IN O.P.No. 33567/02. P9. COPY OF THE PETITION DTD.10.8.06. P10. COPY OF THE ORDER DTD.11.10.06 BY R1. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 16488 of 2007 ================== Dated this the 8th day of February, 2011 J U D G M E N T After putting in 28 years of service in the Railway Protection Force as a Constable and Head Constable, the petitioner was suspended from service on 5.3.2002 on the allegation that he slept while on duty at 4.10 a.m. and also hit his superior officer. Disciplinary action followed and he was dismissed from service. The said action is under challenge before this Court in W.P.(C).No.28259/2006, which is pending. The petitioner's grievance in this writ petition is that the petitioner had not been paid subsistence allowance during the period when he was under suspension. The petitioner obtained Exts.P4 and P8 judgments from this Court, in which, the right for subsistence allowance of the petitioner has been declared. Despite the same, by Ext.P10 order, the petitioner's claim for subsistence allowance has been rejected on the ground that the petitioner has not presented himself for duty as required under Rule 81.1(3) of the Railway Protection Force Rules, 1987. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs; “1. To call for the records and issue a writ of certiorari quashing Exts.P7 and P10. 2. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to pay the petitioner subsistence allowance with interest in respect of the period of his suspension from service forthwith. 3. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to pay the w.p.c.16488/07 2 petitioner compensation for denying him subsistence allowance for such a long period of more than 5 years in respect of the period of his suspension from service.” 2. The contention of the respondents as per their counter affidavit as well as the impugned order is that under Rule 81.1(3) of the Rules, pay and allowances can be withheld if the employee does not report for duty and the petitioner had not reported for duty during the period of suspension. 3. I have considered the rival contentions in detail. 4. The question of eligibility of the petitioner for subsistence allowance has been considered by this Court by Ext.P4 judgment, in which, it was held as follows: '2. I heard both sides. An employee under suspension is entitled to get subsistence allowance. Of course, this can be denied to him, if authorised by law. The respondents, to sustain their action, rely on the provisions of Rules 143 and 148 of the Railway Protection Force Rules, 1987. Special mention is made about Rule 143(2) of the Rules. The said Rules reds as follows; “Every member of the Force shall during the period of his suspension stay at his headquarters or at such place which may be specified by the disciplinary authority and shall present himself daily for attendance to the authority nominated by the disciplinary authority.” Clause (iii) of Rule 148(2) reads as follows: “No member of the Force without good and sufficient cause shall be absent without leave or be late for any duty.” Reliance is also placed on Rule 81 of the Rules. Special mention is made to Rule 81.1(c). The said Rule provides that without prejudice to any other action that may be taken against the delinquent member, it shall be lawful for the superior officers to order deduction of his pay and allowances for every day of absence either on desertion or without leave. This deduction can be made only after giving such member an opportunity to show cause. 3. The case of the respondents is that the petitioner is not w.p.c.16488/07 3 presenting himself for duty and therefore he is ineligible to get subsistence allowance. Reliance is placed on Ext.R1(a) to submit that this should be treated as a show cause notice as contemplated under Rule 81.1(c) for deduction from his pay and allowances. The relevant portion of Ext.R1(a) reads as follows; “Please note that it has been reported by IPF/TVC that the suspension order No.VXP/227/DAR/RV/HC 29/TVC/2002 dated 05.03.02 was served to you by IPF/TVC on 12.4.2002 on your reporting from absent and you have been advised to give our attendance at TVC post daily at 08.00 hours and 18.00 hours inspite of which you have been absenting yourself. If you are sick, you will report to the nearest Railway Medical Officer and it will be advised to this Office and if not, you will report at TVC for giving your attendance daily at 08.00 hours, failing which action will be initiated against you under disciplinary rules. Note and acknowledge receipt.” 4. A reading of the above quoted portion of Ext.R1(a) will show that it is not a notice to show cause why his pay and allowances shall not be deducted. Of course, there may be power in an appropriate case to deduct subsistence allowance for unauthorized absence. Whatever be that, no action has so far been taken in accordance with law by making an order for deduction by the competent authority after issuing notice to the petitioner and hearing him. Subsistence allowance is meant for the subsistence of the employee. If it is not paid in time, it may even result in denial of his right to life guaranteed under Article 21 of the Constitution of India. Therefore, it is declared that the petitioner is entitled to get subsistence allowance for the period he is kept under suspension. The allowances due to him shall be paid within two months from the date of receipt of a copy of this Judgment. This does not mean that the petitioner can collect the allowances without complying with the Rules regarding the same, such as, submission of non-employment certificate etc. This direction will not stand in the way of the respondents from making any deduction from his pay and allowances on the basis of an order of the competent authority passed after giving the petitioner an opportunity of being heard.' From the same, it is evident that Rule 81.1(3) relates to deduction from pay and allowances. The question of payment of pay and allowances to the petitioner does not arise in this writ petition, since the petitioner was admittedly under suspension during the relevant w.p.c.16488/07 4 period. Apart from that, in Ext.P4 judgment, this Court has only directed the petitioner to comply with the rules regarding the same, such as submission of non-employment certificate etc. In Ext.P6, the petitioner has specifically stated that non-employment certificate has been enclosed therewith. This has not been denied in the counter affidavit filed by the respondents. No other rules have been quoted before me by the respondents apart from Rule 81.1(3), which do not relate to subsistence allowance requiring the petitioner to comply with any other requirements. As such, I am not satisfied that the petitioner can be validly denied subsistence allowance on the ground that he did not report for duty during the period of suspension. In this case, I note that on suspension, the petitioner was denied the benefit of quarters and he has been residing 30 kms. away from the office of posting and to direct a suspended employee to travel 30 kms. every day twice after denying him quarters, spending travelling expenses would be a travesty of justice as well. According to me, all what the petitioner is bound to prove is that he was not employed otherwise during the period of suspension, for proving which he has submitted non- employment certificate. The respondents have also no case that the petitioner was alternatively employed during the period of suspension. Accordingly, this writ petition is allowed. Exts.P7 and P10 orders are quashed. The respondents are directed to the pay subsistence w.p.c.16488/07 5 allowance to the petitioner for the period during which the petitioner was under suspension, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge