IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 OP.No. 20806 of 1999(B) ------------------------------------- PETITIONER(S): ------------------------- K.K.KRISHNAN, CHIRAKAKODE, VELLANIKARA P.O., TRICHUR DISTRICT. (D I E D) – LR'S IMPLEADED: *ADDL.P2 TO P5 ARE IMPLEADED: P2: SOUDAMINI P.K., W/O. LATE K.K.KRISHNAN, CHIRAKAKODE, VELLANIKKARA P.O., THRISSUR DISTRICT. P3: HARIDASAN K.K., S/O.LATE K.K.KRISHNAN, CHIRAKAKODE, VELLANIKKARA P.O.,THRISSUR DISTRICT. P4. SHYLA K.K., D/O.LATE K.K.KRISHNAN, CHIRAKAKODE, VELLANIKKARA P.O., THRISSUR DISTRICT. P5. SHEEJA K.K., D/O. LATE K.K.KRISHNAN, CHIRAKAKODE, VELLANIKKARA P.O., THRISSUR DISTRICT. (*ADDL.P2 TO P5 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE PETITIONER AS PER ORDER DTD. 18/02/2009 IN I.A.NO.2530/09) BY ADV. MR.P.RAMAKRISHNAN RESPONDENT(S): ---------------------------- 1. THE KERALA AGRICULTURAL UNIVERSITY, VELLANIKARA, REPRESENTED BY ITS REGISTRAR. 2. THE DEPUTY COMPTROLLER, KERALA AGRICULTURAL UNIVERSITY, VELLANIKARA. 3. THE ASSOCIATE PROFESSOR, BANANA RESEARCH STATION, NARAKKAL. R1 & R2 BY MR. N.N.SUGUNAPALAN, SENIOR ADVOCATE, BY ADV. SMT.P.JAYA, SC, AGRL. UNIVERSITY MR.K.P.MUJEEB, SC, KERALA AGRI UNIVERSITY. R3 BY ADV. MR. RANJITH THAMPAN, SC THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss O.P.NO.20806/1999 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF ORDER NO.GA-F3/46120/93 DTD. 5/2/96 ISSUED BY THE 1ST RESPONDENT. P2: COPY OF ORDER NO.BRS(1)1263/93 DTD. 20/09/96 ISSUED BY THE 3RD RESPONDENT. P3: COPY OF THE REPRESENTATION DTD. 31/03/97 FROM THE PETITIONER TO THE 1ST RESPONDENT. P4: COPY OF ORDER NO.W.P.F.(B)20391/97 DTD. 14/07/97 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE CIRCULAR NO.65/94/FIN. DTD. 26/11/1994 ISSUED BY THE GOVERNMENT. /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J ................................................ O.P.No. 20806 of 1999 ................................................. Dated this the 7th day of December, 2009 J U D G M E N T The petitioner was an employee of the Banana Research Station of the 1st respondent University. He was suspended from service pending disciplinary enquiry. Disciplinary enquiry ended in imposition of the punishment of 'censure'. On cultivation of the disciplinary proceedings suspension period was directed to be regularised as eligible leave. But since the petitioner did not have eligible leave with pay on credit, on the ground that for the suspension period he is only entitled to leave on loss of pay, the respondents directed recovery of an amount of Rs.37,850/- paid as subsistance allowance to the petitioner. Pursuant thereto Ext.P2 order has been issued and an amount of Rs.16,000/- has already been recoverd from the petitioner's salary for the period from August 1996 to March 1997. The petitioner retired from service on 31.3.1997. The balance amount is sought to be recovered from the petitioner's retirement benefits. It is under the above circumstances, the petitioner has approached this court seeking the following reliefs: O.P.No. 20806 of 1999 -2- “a) a writ of certiorari or other appropriate writ, order or direction quashing and setting aside Exhibit P1, P2 and P4. b) a writ of mandamus or other appropriate writ order or direction directing the respondents to reimburse the amount of subsistence allowance recovered pursuant to Exhibit P1, P2 and P4.” 2. I have heard the learned Standing Counsel for the University also. 3. As far as the challenge against Ext.P1 order imposing punishment of censure and treating the period of suspension as eligible leave is concerned, I do not find any merit in the challenge, in so far as the petitioner has not chosen to produce the enquiry report, wherein he was found guilty. In fact the counsel for the petitioner did not seriously pursue the same also. But I find merit in the contention of the petitioner that on the ground that the suspension period was regularised as eligible leave. Subsistence allowance already paid to the petitioner cannot be recovered from him. Subsistence allownce is paid to enable the suspended employee to maintain himself and his family during the period of suspension, when he is not paid any salary. Even under the Payment of Subsistence Allowance Act, recovery of amounts paid as subsistence allowance is expressly barred. The University relies on Ext.R1(a) circular wherein the Government has held thus: O.P.No. 20806 of 1999 -3- “5. The Competent Authorities are not however empowered to treat periods of suspension as leave, suo- motu. Therefore such periods should not in any case be ordered to be treated as leave without the consent of the officer. It is for the officer concerned to apply for leave if he so desires. Such a request to covert period of suspension into leave may be considered in accordance with rules and ordinary leave, due and admissible, may be sanctioned for the period. The kinds of ordinary leave that can be granted in this respect are earned leave, half-pay leave, commuted leave and leave without allowances. In short, the option to convert a period of suspension into leave as well as the choice of the kind of leave rests with the officer concerned. But once a period of suspension is converted into leave with or without allowances, recovery of the subsistence allowance already paid is inescapable because the conversion of the period into leave will have the effect of vacating the order of suspension.” 4. Circular cannot change the rule. Rule does not contemplate recovery of subsistence allowance paid for the period during suspension. The law is that subsistence allowance is paid for sustenance of the suspended employee and cannot be recovered on the petitioner being found guilty, which cannot be changed by a Government servant. Further if subsistence allowance cannot be recovered even if the suspension period is treated as not on duty, it defies logic as to how it can be recovered when the period is treated as eligible leave. Therefore, I am not satisfied that the subsistence allowance paid to the petitioner can be recovered from him on the ground that the period of suspension has been treated as eligible leave and the petitioner has no leave with pay on credit. Accordingly, the amount already recovered from the petitioner O.P.No. 20806 of 1999 -4- shall be refunded to him. No amount shall be recovered from his retirement benefits on this ground. Orders in this regard shall be passed and the amount recovered refunded, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. sd/- S. SIRI JAGAN, JUDGE rhs // True copy // PA to Judge