MC 2117/2009 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE (ACTING) HON’BLE MR. JUSTICE B.P.KATAKEY Chief Justice (Acting) Heard Mr AK Bhattacharyya, learned senior counsel for the applicant and Mr H Rahman, learned counsel for the Opp. Parties/ appellants. This Misc. application has been filed seeking an order from the Court re straining the Opp. Parties/ appellants from proceeding with the departmental enq uiry initiated against the applicant vide Memorandum dated 15.4.2009 till dispos al of the appeal. In the writ appeal filed by the Opp. Parties/appellants an order dated 3 .4.2008 passed by a learned Single Judge of this Court in WP(C) No. 330/2007 has been challenged. By the said order, the applicant/writ petitioner was held by t he learned Single Judge to be in service under the appellants. The question of b ackwages was left to be decided by the Opp. Parties/appellants. The learned Sing le Judge by the aforesaid order also granted liberty to the Opp. Parties/appella nts to take disciplinary action against the applicant/writ petitioner for remain ing absent from duties, if so advised. The appeal filed by the Management has to be construed to be against the first two aspects of the order dated 3.4.2008. No appeal by the applicant/ writ petitioner against the liberty granted to the Opp. Parties/appellants to take d isciplinary action against him, if so advised, has been filed. Notwithstanding t he above, this Misc. application has been filed to restrain the Opp. Parties/ ap pellants from proceeding with the disciplinary enquiry initiated against the app licant/ writ petitioner on the ground that the Opp. Parties/appellants have not decided on the entitlement of the applicant/ writ petitioner to salary and have also not paid his subsistence allowance following his suspension w.e.f. 13.4.200 4. In such circumstances, it is, inter alia, contended that it is not possible f or the applicant to proceed to Kolkata where the enquiry against him is being he ld. By order dated 16.6.2009, this Court has observed that the entitlement o f the applicant/ writ petitioner to salary will be considered at the time of fin al hearing of the appeal. The aforesaid aspect of the matter, therefore, ought n ot to be re-opened at this stage. However, in so far as the subsistence allowanc e is concerned, the applicant/writ petitioner would be entitled to the same if h e is not otherwise gainfully employed. There is no material on record to hold th at the applicant/ writ petitioner is so employed so as to dis-entitle him to sub sistence allowance. We, therefore, direct the Opp. Parties/ appellants to pay su bsistence allowance to the applicant/ writ petitioner for the period commencing from 13.4.2009 within seven days from today. In so far as the prayer for stay of the departmental proceeding is conce rned, we are not inclined to pass any such order primarily because the part of t he order dated 3.4.2008 by which liberty was granted to the Opp. Parties/appella nts to initiate a departmental proceeding against the applicant/ writ petitioner has not been assailed before us. However, as Mr. Rahman, learned counsel for th e Opp. Parties/ appellants has submitted that the applicant/ writ petitioner wou ld be entitled to Travelling Allowance and Daily Allowance to enable him to take part in the disciplinary proceeding, we direct the Opp. Parties/ respondents to pay to the applicant/ writ petitioner Travelling Allowance and Daily Allowance as per his entitlement so as to enable the applicant/ writ petitioner to take pa rt in the disciplinary proceeding initiated against him. Such disciplinary proce eding will be held against the applicant/ writ petitioner from the very inceptio n thereof in the event the proceeding has been held ex-parte against the applica nt/ writ petitioner. We further direct that the Travelling Allowance and Daily A llowance to which the applicant/ writ petitioner is entitled shall be paid to hi m in advance, at least one week prior to each date of enquiry. Misc. Case stands disposed of in terms of the above.