THE HONOURABLE SRI JUSTICE A.GOPAL REDDY W.P.No.6526 of 2000 Date of Order: 02-12-2010 Between: M.Rajender ..Petitioner and 1. The Executive Officer, T.T.D., Tirupathi and others. ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY W.P.No.6526 of 2000 Oral order: This writ petition under Article 226 of the Constitution is filed for calling the records relating to proceedings DA.5/40293/96, dated 24-08-1998 and consequential proceedings No.F6/14/ck/TTD/2000, dated 02-03-2000 and to quash the same. The petitioner, who was working as Forest Mazdoor, was placed under suspension by order dated 24-10-1996 on the ground that he was absented to duty from 19-09-1996 followed by a Memo dated 13-03-1997. On petitioner submitting explanation, enquiry was conducted into the charges. The enquiry officer submitted a report dated 08-08-1997. The same was cancelled by the first respondent and ordered for fresh enquiry through proceedings NBO.DA.5/40293/96, dated 13-09-1997. Later the enquiry officer was changed by proceedings dated 23-10-1997, who submitted the report dated 01-03-1998 to which the petitioner submitted his explanation. After receipt of said explanation, the petitioner was awarded punishment of stoppage of two periodical increments with cumulative effect and the period of suspension is treated as dies-non by order dated 19-06- 1998. The same was communicated to the petitioner through proceedings dated 24-08-1998. As the unauthorised absence from 19-09-1996 to 30-06- 1998 without obtaining prior sanction of leave has already been treated as dies non, the District Forest Officer, TTDS, Tirupathi was requested to cause necessary entries in the SR of the individual and report compliance. After imposing such punishment by proceedings Roc.No.F6/14/CF/TTD/2000, dated 02-03-2000 the petitioner was informed that he was sanctioned subsistence allowance at 50% for first three months and at 75% after three months under the provisions of FR 53 and he was paid an amount of Rs.43,496.80 ps. as subsistence allowance for the period from 19-09-1996 to 30-6-1998. As the suspension period was treated as dies non, the Financial Advisor and Chief Accounts Officer in his remarks suggested that the amount of subsistence allowance already drawn should be adjusted against the pay and allowance or proportion of them or leave salary which can be granted under FR 54 and the excess if any to be recovered from the petitioner and accordingly the Conservator of Forests, TTDS, Tirupathi was directed to recover the said amount from the petitioner in 44 instalments. Questioning the same the present writ petition has been filed contending that treating the entire period of absence from 19-09-1996 to 30- 06-1998 as wilful absence and dies non and further ordering for recovery of subsistence allowance as arbitrary, illegal and violative of Articles 14 and 16 of the Constitution. The subsistence allowance is a fundamental right of an employee, who is placed under suspension; and the subsistence allowance already paid during the period of suspension cannot be recovered. In the counter it is categorically stated that punishment of stoppage of two increments with cumulative effect and the period of suspension is treated as dies non by order dated 19-06-1998 and 24-08-1998 respectively. In the proceedings dated 24-08-1998, referred to above, it is clearly stated that wilful absence period i.e. from 09-06-1996 to 30-06-1997 is treated as dies non. Therefore, the said period cannot be counted for any pensionary benefits or continuity of service. In the absence of any further punishment for recovery of subsistence allowance already paid, issuance of proceedings dated 02-03-2000 for recovery of subsistence allowance cannot be sustainable and it is accordingly set aside. The writ petition is accordingly allowed. No costs. _________________ A.GOPAL REDDY, J. 02-12-2010 Murthy