R.S.A. No. 3488 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 3488 of 2009 (O&M) Date of decision : 29.7.2010 ... Managing Director, Confed, Haryana, Chandigarh. ................Appellant vs. Krishan Kumar and another .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Vijay Pal, Advocate for the appellant Sh. B.S. Rana, Advocate for respondent No.1 ... K.C. Puri, J. There is a delay of 258 days in filing the present appeal. In view of the assertions made in the application, the delay stands condoned. This is an appeal directed by defendant-appellant against the judgment dated 3.6.2008 passed by Sh. S.K. Sardana, District Judge, Rohtak, vide which the appeal preferred by the plaintiff against the judgment dated 24.12.2007 passed by Sh. Sunil Chauhan, Civil Judge (Junior Division), Rohtak, was accepted by reversing the finding on issues No. 1 and 2 in favour of the plaintiff and against the present R.S.A. No. 3488 of 2009 -2- appellant and suit of the plaintiff was decreed with costs throughout. Briefly stated, the case of plaintiff – Krishan Kumar is that he was employed as Store-keeper. The plaintiff was suspended by the defendants vide letter dated 31.12.2004. The defendants are making payment of subsistence allowance to the extent of 50%. The plaintiff has no source of income. Plaintiff requested the defendants to increase the subsistence allowance from 50% to 75% as per rule. Notice dated 5.9.2005 was also issued, but in vain. Hence the suit. Defendants appeared and filed their written statement taking preliminary objections that suit is not maintainable. The objection of misjoinder of party and jurisdiction was also taken. On merits, defendants have stated that plaintiff was suspended because he committed heavy shortage and embezzlement in the entrusted stock of wheat, to the tune of Rs.83,21,862.24 P. The charge sheet has been issued to the plaintiff on 10.11.2005. Plaintiff is not entitled to 75% subsistence allowance. Replication was filed denying the contents of written statement and reiterating the stand taken in the plaint. From the pleadings of the parties, following issues were framed:- i) Whether the plaintiff is entitled for getting allowance as 75%? OPP ii)If issue No. 1 is proved, whether the plaintiff is entitled for decree for mandatory injunction as prayed? OPP. Plaintiff appeared before the trial Court as PW-1 and closed the evidence. In rebuttal defendants examined DW-1 D.K. Singla and R.S.A. No. 3488 of 2009 -3- closed the evidence. Learned trial Court after hearing both the sides and going through the record, returned the finding on issues No. 1 and 2 against the plaintiff. It was further observed that in view of Rule 29.4(a) of the Staff Service Rules, 1975, plaintiff is not entitled for enhancement of subsistence allowance. Feeling dissatisfied with the above said judgment dated 24.12.2007, passed by Sh. Sunil Chauhan, Civil Judge (Junior Division), Rohtak, the plaintiff filed the Ist appeal. The said appeal was accepted by Sh. S.K. Sardana, District Judge, Rohtak, vide judgment dated 3.6.2008. Feeling dissatisfied with the judgment dated 3.6.2008, referred to above, the defendant-appellant has preferred the regular second appeal with the prayer for setting aside the said judgment and for restoring the judgment dated 24.12.2007 passed by Sh. Sunil Chauhan, Civil Judge (Junior Division), Rohtak. The appellant in paragraph No. 6 of the grounds of appeal has mentioned that following substantial questions of law have arisen in the present appeal:- i) Whether the learned Lower Appellate Court exceeded in its jurisdiction to enhance the allowance upto 75% instead of directing the authorities to pass an appropriate orders in accordance with the rules (so as to fix the appropriate percentage) ? ii)Whether the services of respondent No.1 is governed by the Staff Service Rules or Punjab Civil Service Rules? R.S.A. No. 3488 of 2009 -4- iii)Whether the delay on the part of the respondent No.2 to conclude the enquiry proceedings? iv)Whether rule 29.4 (a) of the Staff Service Rules, 1975 is mandatory provision? However, from the arguments addressed by the counsel for the appellant, none of the law point has arisen in the present appeal. The plaintiff is governed by Rule 29.4 (a) of the Staff Service Rules, 1975, which is reproduced as under:- “The amount of subsistence allowance may be increased by suitable amount not exceeding 50% of the subsistence allowance admissible during the period of 6 months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the employee.” From the perusal of the said rules, it is revealed that subsistence allowance can be increased from 50% after the period of 6 months. The plaintiff is facing disciplinary proceedings since 2004. The enquiry has not been completed till today. The employee cannot be allowed to starve on account of delay in the enquiry. The Ist Appellate Court has given a finding of fact that in view of the said rule, plaintiff is entitled to enhanced subsistence allowance to the extent of 75%. So, that being a finding of fact cannot be interfered. In view of the above discussion, the appeal is without any merit and the same stands dismissed. CM No. 8322-C of 2010 has been filed praying for stay of R.S.A. No. 3488 of 2009 -5- execution of the decree. Since the main appeal has been dismissed, so the application for stay is dismissed, as having become infructuous. ( K.C. Puri ) 29.7.2010 Judge chugh