C.W.P.No.6368 of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.6368 of 2001 Date of Decision:- 27.04.2009 Rajinder Parshad ....Petitioner(s) vs. P.O.Labour Court, U.T.Chandigarh and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.C.M.Chopra, Advocate, for the petitioner. Ms.Monica Chhibber Sharma, AAG, Punjab for the respondents. *** AUGUSTINE GEORGE MASIH, J. (Oral) In the present writ petition, challenge is to the order dated 19.1.2001 (Annexure P-1) passed by the Labour Court under Section 33-C (2) of the Industrial Disputes Act, 1947 (for short the Act) wherein the Labour Court has declined to enhance the subsistence allowance from 50% to 75% after the expiry of three months period from the date of suspension. Counsel for the petitioner-workman contends that the workman was working as Conductor with the Punjab Roadways, Chandigarh, when he was placed under suspension vide order dated 3.9.1993. A charge-sheet was issued to him on 13.10.1993 to which he filed reply on 22.10.1993. Being not satisfied with the reply submitted to the charge-sheet, the Management appointed an Inquiry Officer on 30.11.1993. The Inquiry C.W.P.No.6368 of 2001 -2- Officer vide his letter dated 13.1.1994 asked the petitioner-workman to join the enquiry proceedings on 25.1.1994. The matter was then adjourned to 16.3.1994 when three witnesses were examined by the Management. Thereafter, the enquiry proceedings were held on 6.4.1994 when one more witness was examined by the Management and further, on 17.5.1994 i.e. the next date of the hearing of the enquiry proceedings, one more witness was examined whereafter the evidence was closed by the Management. The proceedings were adjourned to 31.5.1994 for evidence of the delinquent petitioner-employee, but on that date, he sought an adjournment. The enquiry proceedings were further taken up on 7.6.1994 on which date again, an adjournment was sought by the workman and the enquiry was fixed for 14.6.1994 when one witness of the workman was examined. Thereafter, the Inquiry Officer submitted his report on 29.6.1994 exonerating the workman in the said proceedings. However, the disciplinary Authority did not agree with the findings recorded by the Inquiry Officer and proceeded to terminate the services of the workman. Counsel, on the basis of this factual position, which is not in dispute, submits that as per Rule 7.2 sub-clause 2 (ii) (a) of the Punjab Civil Services Rules Vol.-I Part-I, states that after a period of three months, the workman was entitled to payment of subsistence allowance at the rate of 75% of the salary. He submits that the only rider which has been put for non-increase of the said enhancement of 50% to 75% of the subsistence amount after the period of 3 months is that the period of suspension has been prolonged for the reasons attributable to the government employee. On the other hand, counsel for the respondent-State submits that the delay which has occurred, is not in question. It is the prolongation C.W.P.No.6368 of 2001 -3- of the suspension. The suspension has been prolonged due to the fact that the workman did not submit his reply to the show cause notice so sent to him after the Punishing Authority did not accept the findings of the Inquiry Officer and thereafter also, did not co-operate with the Management. However, counsel is unable to dispute the factual position which has been brought on record with regard to the date of suspension till the conclusion of the enquiry proceedings. I have heard learned counsel for the parties and have gone through the records of the case. Rule 7.2(ii) of the Rules reads as follows: “Rule 7.2(ii)(a) A subsistence allowance at an amount equal to the leave salary which the Government employee would have drawn if he had been on leave on half pay and in addition dearness allowance if admissible on the basis of such leave salary. Provided that where the period of suspension exceeds six months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first six months as follows:- (i)The amount of subsistence allowance may be increased by a suitable amount not exceeding 50% of the subsistence allowance admissible during the period of first six months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing, directly attributable to the Government employee. (ii) The amount of subsistence allowance may be reduced by a C.W.P.No.6368 of 2001 -4- suitable amount, not exceeding 50% of the subsistence allowance, admissible during the period of suspension has been attributable to the Government employee. (iii) The rate of dearness allowance will be based on the increase or as the case may be, the decreased amount of subsistence allowance admissible under clauses (i) and (ii) above. (b) another compensatory allowance admissible from time to time on the basis of pay which the Government employee was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the withdrawal of such allowances. (2) No payment under sub rule(i) shall be made unless the Government employee furnishes a certificate that he is not engaged in any other employment business profession or vacation.” It has been submitted by the counsel for the petitioner that vide Notification dated 10.8.1981, the Punjab Government has made amendment in the Punjab Civil Services Rules Vol.1 Part 1, in rule 7.2 that for the words “six months” wherever occurring, the words “three months” shall be substituted. It has been further argued by the counsel for the petitioner that it was mandatory on the part of the Management to increase the subsistence allowance of the petitioner at the rate of 75% of his salary or wages after completion of three months as per amended Rule 7.2(ii)(a) of the Punjab Civil Service Rules Vol.1 Part 1. This aspect has not been disputed by the C.W.P.No.6368 of 2001 -5- counsel for the respondent. When the said rule is taken into consideration and the mandate thereof is applied to the present facts of the case, the position which emerges is that the workman was placed under suspension on 3.9.1993. The charge-sheet was issued to him on 13.10.1993, reply thereto was submitted by the workman on 22.10.1993, the Inquiry Officer was appointed on 30.11.1993 and the Inquiry Officer for the first time issued letter dated 13.1.1994 calling upon the workman to participate in the enquiry proceedings on 25.1.1994. The above reproduced Rule would show that the amount of subsistence allowance would be increased to 75% in case the suspension of the workman has been prolonged for the reasons not directly attributed to the government employee. The three months' period which was to be taken into consideration for enhancing the period of subsistence allowance from 50% to 75% would be from 3.9.1993 to 3.12.1993. The only action which the workman was required to take during the said period, was to file a reply to the charge-sheet. The charge-sheet was issued to him on 13.10.1993 and he replied thereto within a period of nine days i.e. on 22.10.1993. By no stretch of imagination, can it be said that the prolongation of the suspension period was directly attributable to the petitioner-workman. That being the position, the workman would be entitled to 75% of the subsistence allowance after the expiry of three months from the date of his suspension i.e. 3.9.1993 onwards. It goes without saying that the enhanced 75% subsistence amount could have been reduced by the competent Authority under this very Rule by passing a written order while recording therein the reasons attributable to the workman for prolonging the suspension period. It is an admitted position C.W.P.No.6368 of 2001 -6- that no such order was passed by the respondent-Management. That being so, the contention as raised by the counsel for the respondent-Management that there was prolongation of suspension on the part of the workman which could be attributed to him and, therefore, dis-entitling him of the benefit of the enhanced suspension amount, cannot be sustained. In view of the above, the workman is held entitled to grant of 75% of the subsistence allowance admissible to him under the Rule with effect from 3.9.1993 till the date of termination i.e. 7.9.1995, as it is an admitted position that he continued under suspension till the date of his termination. However, the amount of 50% subsistence allowance already paid to the petitioner shall be adjusted while making payment. The writ petition is allowed in the above terms and the impugned order dated 19.1.2001 (Annexure P-1) passed by the Labour Court, U.T., Chandigarh stands modified to the extent stated above. April 27, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No