IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.36825 of 2007 and 3212 of 2010 and M.P.NOS.1 of 2007 and 1 of 2008 A.Hepsibah Gunasekari .. Petitioner in both the petitions Vs. The Commissioner of Social Defence, Purasawalkam High Road, Chennai-10. .. Respondent in W.P.No.36825 of 2007 and 2nd respondent in W.P.No.3212 of 2010 The Secretary to Government, Social Welfare and Nutrition Meal Programme Department, Fort St. George, Chennai-600 009. .. 1st respondent in W.P.No.3212 of 2010 W.P.No.36825 of 2007 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records connected with the proceedings issued in No.17579/A1/2007 dated 05.12.2007 passed by the respondent herein and to quash the same and consequently to direct the respondent to permit the petitioner to continue in the quarters. W.P.No.3212 of 2010 is preferred under Article 226 of the Constitution of India for the issue of a writ of mandamus to direct the respondents to pay the subsistence allowance from 30.10.2007 to till date admissible to the petitioner. For Petitioner : Mr.S.Ilamvaludhi For Respondents : Mr.P.Subramanian, AGP COMMON ORDER Both the writ petitions were filed by one and the same person. It is only when W.P.No.3212 of 2010 came up for hearing, the pendency of the first writ petition was noted and it was directed to be posted. https://hcservices.ecourts.gov.in/hcservices/ 2.In the first writ petition, the petitioner has challenged the order, dated 5.12.2007, wherein and by which the petitioner was directed to vacate her quarters in the Government Vigilance home at Chennai. The petitioner had challenged the said notice. When the matter came up on 12.12.2007, notice of motion was ordered and status quo was directed to be maintained. Subsequently, this court while maintaining the status quo, directed the matter to be posted for final hearing at an early date. On notice, the respondent has filed a petition to vacate the status quo order supported by counter affidavit, dated 12.2.2008. 3.The petitioner was earlier placed under suspension by an order dated 30.10.2007 under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. She as not paid subsistence allowance. Hence she was demanding subsistence allowance. When the same was not forthcoming, she sent a representation, dated 09.01.2008. She filed a writ petition being W.P.No.1616 of 2008. That writ petition was disposed of on 22.1.2008, directing the respondent to dispose of her representation, dated 09.1.2008. In the meanwhile, the petitioner, who was given a charge memo under Rule 17(b), was proceeded with an enquiry. By a final order, dated 4.7.2008, she was removed from service. The charges against the petitioner were very serious. There were as many as 12 charges. It was found out that 11 out of 12 charges were proved. 4.These charges related to not showing interest in the child welfare, not maintaining proper records and not implementing the orders passed by the Juvinile Welfare Board. The petitioner was found to be an hindrance in the running of the Vigilance home. The petitioner preferred an appeal, dated 11.7.2008 against the said order of removal. The Tamil Nadu Public Service Commission (for short TNPSC) was consulted. The TNPSC opined that if the respondent had to disagree with the findings of the Enquiry Officer, she should have been heard on such disagreement. Therefore, they were advised that the final order may be cancelled and to continue the proceedings from the place where an error had crept in. The order of removal was set aside by G.O.(D)No.169, Social Welfare and Nutritious Meal Department, dated 2.11.2009. Since the order was set aside on technical grounds, she was directed to be continued in suspension in terms of Rule 17(e)(3). The Commissioner for Social Defence was directed to take an appropriate action. 5.It is pursuant to the same, the Commissioner for Social Defence gave a notice, dated 27.11.2009 asking the petitioner to give her explanation on the findings of the Enquiry Officer and the minutes of the dissent. The petitioner had sent a reply, dated 11.1.2010. Even before her reply could be considered, she has filed the other writ petition being W.P.No.3212 of 2010, seeking for a direction to provide subsistence allowance. 6.In so far as the refusal to vacate the quarters is concerned, it must be noted that the petitioner was placed under https://hcservices.ecourts.gov.in/hcservices/ suspension and was directed to remain in the headquarters at Vellore. The petitioner was allotted to quarters when she was holding an additional charge of posting of Superintendent of Government Observation home. When she misused her power of the Superintendent and when lots of complaints were received as well as a confession statement given by a boy about illegal and unlawful activities of the Staff in the home linking the petitioner, a preliminary enquiry was conducted. She had violated Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. In the interest of home, she was deputed to the Vellore unit and was placed under suspension. She did not challenge either the charge memo or the suspension order. But however she got the stay of the order directing her to vacate the quarters. 7.It was stated that even the National Commission for Protection of Child Rights had written a letter to the State Government recommending action against the petitioner. Her continuance in the home proved to be detrimental to the interest of the children. She was also given time to vacate the quarters. The petitioner's claim that her children were studying was also denied. Her children are employed and she has no school going children. She has no right to occupy the quarters. In the light of the above stand and in the absence of the petitioner holding any post, the question of her continuance in the quarters by getting an interim order will not arise. 8.After the order was passed by the State Government in setting aside her termination and directing an action from the stage where an error had crept in, the petitioner was directed to be placed under suspension by virtue of Rule 17(e)(3), which reads as follows: "(3)Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or an review under these Rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders." 9.On the writ petition, this court directed the learned Additional Government Pleader to get to know the stand of the department. On notice from this court, the Commissioner of Social Defence has sent a communication, dated 11.3.2010, stating that an appropriate action will be taken to claim subsistence allowance for the period from 30.10.2007 till 09.7.2008 as per rules and the same will be paid to her. But, with reference to the further period, i.e. from the date of the Government order, wherein she was placed under suspension under Rule 17(e)(3), the said instruction was silent. However, it must be stated that once a person is kept under suspension in terms of Rule 17(e), including Rule 17(e)(3), the https://hcservices.ecourts.gov.in/hcservices/ said Government servant is eligible for subsistence allowance. Therefore, having placed the petitioner under suspension, pending further action, the respondents cannot refuse to pay subsistence allowance. 10.In the light of the above, the writ petition in W.P.No.36825 of 2007 will stand dismissed. W.P.No.3212 of 2010 will stand disposed of with a direction to the respondents that so long as the petitioner is kept under suspension, she will be paid eligible subsistence allowance. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vvk To 1.The Commissioner of Social Defence, Purasawalkam High Road, Chennai-10. 2.The Secretary to Government, Social Welfare and Nutrition Meal Programme Department, Fort St. George, Chennai-600 009. 1 cc to Government Pleader, Sr.No.17885, 17886 1 cc to Mr.S.Ilamvaludhi, Advocate, Sr.No.17755 W.P.NOs.36825 of 2007 and 3212 of 2010 AKR {CO} TP/25.3.2010. https://hcservices.ecourts.gov.in/hcservices/