IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 WP(C).No. 3714 of 2007(P) -------------------------------------- PETITIONER(S): ------------------------ K. KAUSALLYA, D/O. LATE KUNHIKANNAN, AGED 54 YEARS, RESIDING AT NARANATH HOUSE, KARIPOOR, P.O.KONDOTTY, MALAPPURAM DISTRICT. WORKING AS COKK, INDIRA GANDHI MEMORIAL MODEL RESIDENTIAL SCHOOL, MANJERI. BY ADV. MR.K.M.SATHYANATHA MENON RESPONDENT(S): -------------------------- 1. THE DIRECTOR, SCHEDULED CASTES & SCHEDULES TRIBES DEVELOPMENT CORPORATION STATE OF KERALA, THIRUVANANTHAPURAM. 2. THE PROJECT OFFICER, I.T.D. PROJECT, NILAMBUR. 3. THE HEADMASTER, INDIRA GANDHI MEMORIAL MODEL RESIDENTIAL SCHOOL, MANJERI. R1 SPL. GOVERNMENT PLEADER SANTHOSHKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON 14/08/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.3714/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DTD. 8.9.05. P2:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DTD. 9.11.05. P3:- COPY OF THE ORDER OF THE 2ND RESPONDENT DTD. 27.9.06 ISSUED TO THE PETITIONER. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 3714 of 2007-P - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of August, 2009. JUDGMENT The petitioner is challenging the consequential orders issued with regard to the regularization of the suspension period and the direction to refund excess amount drawn as subsistence allowance consequent on the culmination of disciplinary proceedings. 2. The petitioner was working as a Cook in Indira Gandhi Ashram School, Nilambur. She is a spinster and a Scheduled Caste. Various charges were raised in the memo and proceedings were finalised under KCS (CCA) Rules. According to the petitioner, the enquiry was not conducted properly. Thereafter, a major punishment of reduction from the post of Cook to the post of Full Time Sweeper was inflicted for five years. This was challenged in O.P.No.121/1998 by her which was disposed of by Ext.P1 judgment. Fresh proceedings were initiated against the petitioner. An order was passed imposing punishment of withholding three annual increments of the petitioner without cumulative effect. It is pointed out that the petitioner was relieved from the post of cook. The petitioner again approached this court in O.P.No.15870/1999 and this court directed the wpc 3714/2007 2 petitioner to approach the first respondent for a reconsideration of the matter. Thereafter, the petitioner was transferred as Cook to Indira Gandhi Ashram School, Nilambur. While so, Ext.P3 order was issued. A reading of Ext.P3 shows that it is based on Govt. Order dated 20.1.2006. The petitioner was under suspension from 1.8.1996 to 22.2.1998. As per order dated 27.1.999 of the Director of SC/ST Development Department, a punishment of imposition of withholding three increments without cumulative effect was imposed. As per the subsequent Govt. Order, the suspension period was directed to be regularized as leave without allowance and it is further provided therein that the said period will not be counted for increment, grade promotion and leave surrender, etc. Accordingly, directions were issued to readjust the subsistence allowance. In effect, by Ext.P3 direction is issued to recover a sum of Rs.15,173/- from the DCRG and a sum of Rs.16,000/- from salary. Regarding increments also, directions are issued, whereby a revised pay fixation has also been effected. 3. Pending the writ petition, pensionary benefits were directed to be sanctioned as per interim order dated 3.4.2009. It is submitted by the learned Special Govt. Pleader that admissible terminal benefits have been disbursed to the petitioner. wpc 3714/2007 3 4. What remains is the recovery ordered from the subsistence allowance. Learned counsel for the petitioner submitted that by no stretch of imagination the respondents can recover the subsistence allowance paid during the period of enquiry. The right to receive subsistence allowance is a statutory right and any amount paid towards the same cannot be asked to be refunded/recovered. Reliance is placed on the decision of this court in Thomas T.J. v. Deputy Director of Education and others (ILR 2005 (4) Ker. 37) and that of a Division Bench in Kerala State Warehousing Corporation and others v. Pauly John T. (ILR 2006 (2) Ker.653). It is pointed out that the reliance placed on Note 3 to Rule 56B of Part I K.S.R. is not sustainable. In Thomas T.J.'s case (ILR 2005 (4) Ker.37), it was held that “subsistence allowance was paid under the Rules to enable the employee concerned to subsist. The disciplinary proceedings commenced against him ended with the petitioner being reinstated. But, during the said period, the petitioner was without any volition on his part, placed under suspension. The amount thus paid to him in accordance with the Rules and which he apparently would have spent, cannot be directed to be recovered as liability.” The question came up before the Division Bench in Warehouseing Corporation's case (ILR 2006 (2) Ker.653) was whether wpc 3714/2007 4 any recovery of subsistence allowance can be made under the Payment of Subsistence Allowance Act, 1972. It was held that the same is not permissible. Learned counsel for the petitioner relied upon the observations in the said judgment that even by relying upon Note 3 to Rule 56B of Part I K.S.R., the employer is not entitled to recover subsistence allowance paid to the employee. A reading of the judgment shows that the question whether Note 3 enables recovery of subsistence allowance, was not an issue therein. After referring to the said Note, it was held that as there was nothing to indicate that the provisions of the K.S.R. are applicable to the employees of the State Warehousing Corporation and when a special statute governs the parties, contracting out is not permissible. It was held in para 10 that “as far as industrial employee is concerned, standing orders or conditions of service governing him have to be applied for regularising his period of enforced absence. But that should not authorise an employer to contravene the provisions of the Payment of Subsistence Allowance Act, and to go on with recovery steps. As far as Government employees, the standing orders are in the form of Rules.” Beyond that, there was no consideration of the effect of the rules. Note 3 to Rule 56B is extracted below: “When a period of suspension is ordered to be converted into leave, wpc 3714/2007 5 the amount of subsistence allowance and compensatory allowances already received in excess of the leave salary and allowances admissible on such conversion, shall be refunded.” Therefore, going by the Note, when the period of suspension is ordered to be converted into a leave, the amount of subsistence allowance and compensatory allowances already received, have to be refunded. 6. Learned Special Govt. Pleader appearing for the respondents submitted that herein, the petitioner had applied for leave without allowance for regularising the period of suspension. It is averred in para 7 of the counter affidavit that if the petitioner had opted to some other types of leave other than the leave without allowance, the recovery of leave without allowance could not have occurred. 7. In the light of the above legal position and as the petitioner has only applied for leave without allowance, there was no other option for the Government than to order recovery. In the light of the above, the question is whether Ext.P3 order is correct or not. Ext.P3 is based on the proceedings issued by the Government which is referred to as item No.2 in Ext.P3. Practically, Ext.P3 only implements the Government Order. It is wpc 3714/2007 6 submitted by the learned counsel for the petitioner that the recovery of so much amount from the petitioner is too harsh. The petitioner has retired from service on 31.5.2007. She was only a low paid employee also. Pursuant to the interim order passed by this court, certain benefits have been disbursed to the petitioner and going by the submissions made by the learned Special Govt. Pleader, eligible benefits have been disbursed. The learned counsel for the petitioner petitioner submitted that the entire amounts have not been disbursed so far. This aspect will be verified by the respondents. 8. The counter affidavit reveals that the recovery of subsistence allowance would not have been occurred, if there were some other types of leave other than leave without allowance. As noted already, the competent authority has only implemented the Government Order by Ext.P3. Learned counsel for the petitioner therefore submitted that the petitioner may be allowed an opportunity before the Government itself seeking for a relaxation of the relevant rules, so that the recovery could be withdrawn. If the petitioner submits a representation within a period of two months from today before the Government in the matter, the same will be considered by the Government and appropriate orders will be passed within a further wpc 3714/2007 7 period of three months. If the petitioner is entitled for any other benefits, that can also be indicated in the representation. The withheld amount, as per the interim order, will be disbursed in terms of the order to be passed by the Government. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/