IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH COCP No. 445 of 2007 Date of Decision: 8.5.2009 Tarsem Lal Jain ---Petitioner Vs. Sh. Balraj Bhasin and another ---Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. R.K. Malik, Sr. Advocate with Mr. Atul Gaur, Advocate for the petitioner. Mr. Puneet Jindal, Advocate for respondent no.1. Mr. M.C. Berry, Addl. A.G., Punjab. *** PERMOD KOHLI.J (ORAL) These contempt proceedings were initiated for the alleged non- compliance of the order dated 18.8.2005 passed in CWP No. 18806 of 2004 which has attained finality. The relevant directions of this court are reproduced hereunder:- “ We are unable to accept the submission of Mr. Patwalia to the effect that respondent no.4 was not entitled to any suspension allowance from the petitioner. The Management has not cared to file an appeal against the order dated 4.12.2004 passed by this court in CWP No. 18865 of 2004. Therefore, the petitioner is duty bound to pay the subsistence allowance to the respondent no.4 till the date he was illegally kept out of service i.e. till the date approval was given by the D.P.I. We, therefore, partly allow the writ petition and modify the order passed by the D.P.I as well as the Schools Tribunal and direct that the petitioner is entitled to receive the grant in aid to the extent of 95% and to make payment to respondent no.4 from the total funds of the Management COCP No. 445 of 2007 -2- including the amount received by way of grand in aid.” During the pendency of this petition an amount of Rs. 5,29,534/- was released by the Govt. in favour of the petitioner on account of subsistence allowance. According to Mr. Malik, learned counsel for the petitioner the amount paid is not the total payable subsistence allowance @ 75% of the salary legally payable to the petitioner. This contention is, however refuted on behalf of the respondents on the ground that the amount is in satisfaction of all the emoluments payable to the petitioner as on account of subsistence allowance under rules. During the course of arguments, it transpired that the petitioner is claiming subsistence allowance with the revised pay scale, whereas the respondents have calculated the same under the un-revised pay scale. Petitioner has relied upon the order dated 4.7.2001 passed by the Director, Public Instructions, Punjab whereby a direction has been issued to pay the subsistence allowance in the revised pay scale @ 75% w.e.f. 6.11.1995. A copy of this order is placed on record as Annexure P-6. The order is reproduced hereunder:- “ In the Court of Dr. Jagtar Singh, Director, Education Department (s) Punjab, Chandigarh. (Authority under Section 4, Sub Section 1 of the Punjab Privately Managed Aided School Act, 1979 and Rules 1981). S.D.P. Sr. Sec. School, Hazuri Road, Ludhiana ...Petitioner Versus Sh. Tarsem Lal, Principal (Under suspension). ...Respondent COCP No. 445 of 2007 -3- This appeal was fixed today i.e. 4.7.2001 for hearing and the representative of both the parties are present. The representative of Principal brought to the notice that committee has not paid the subsistence allowance i.e. 75% as per rules in the revised pay scale to the Principal after 6 months of suspension and from 20th June 2000 this allowance has been totally stopped. I have considered the order dated 12.8.1999 of my predecessor Sh.T.K. Goyal, PCS and accepting the request of Principal's representative and directed the Managing Committee that suspended Principal be paid subsistence allowance in the revised scale at the rate of 75% from 6.11.95 immediately. This case is fixed for next hearing on 11.8.2001 at 10.00 A.M. Dated:4.7.2001 Sd/- Jagtar Singh Director, Education Deptt. (S) Punjab, Chandigarh.” The State of Punjab has enacted an act namely Punjab Privately Managed Recognized Schools Employees (Securing of Service) Act, 1979. The privately managed recognized schools are defined under Section 2 (g) whereas Clause (a) of Section 2 defines aided posts. Their provisions read as under:- “ (a) 'aided post' means the post of the establishment of a privately managed recognized school against which such a school gets grant-in-aid from the State Government. (g) 'Privately managed recognized school' means a school, which is not run by the Central Govt., the State Govt., a local authority or any other authority designated or sponsored by the Central Govt., State COCP No. 445 of 2007 -4- Govt. or local authority, as the case may be, and is recognized by the State Govt. for imparting pre-primary, primary, middle, high and higher secondary education or training below the degree level, but does not include an institution which imparts technical education.” It is admitted position that the petitioner was an employee of the privately managed recognized school and the position to which the petitioner was working was an aided post of S.D.P. Sr. Sec. School, Hazuri Road, Ludhiana. Section 15 of the aforesaid act deals with the power of State Govt. to make and notify the rules. Sub Section 2 deals with the subjects on which the rules are to be framed under the Act. Relevant extract of Section 15 is noticed hereunder:- “ 15. Power to make rules. (1) The State Govt. may, by notification and subject to the conditions of previous publication, make rules for carrying out the purpose of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: (a) the minimum qualifications for and method of recruitment, and terms and conditions of service of employees; (b) the Code of Conduct for the employees and the disciplinary action to be taken for the violation thereof: (c) the terms and conditions of service of Presiding Officer of the school Tribunal; (d) any other matter which is to be, or may be prescribed under this Act.” The State Govt. has framed rules under the aforesaid sub COCP No. 445 of 2007 -5- Section 2 of Section 15 rule 13 deals with the suspension, whereas rule 14 deals with the subsistence allowance. Rule 14 is noticed hereunder:- “14. Subsistence allowance:- An employee under suspension shall be entitled to an amount of subsistence allowance equivalent to fifty percent of his basic pay and the allowances admissible thereon from the managing committee. Provided that the employee under suspension shall not leave his headquarters without the prior approval of his appointing authority and shall submit every month a certificate to the effect that- (a) he is not employed anywhere gainfully in any capacity. (b) he is not carrying on any business and (c) he has not left his headquarters without the prior approval of his appointing authority. (2) If the employee is kept under suspension beyond the period of six months under section 5 of the Act, the subsistence allowance shall be raised to seventy-five percent of the basic pay and the allowance admissible thereon: Provided that the delay is not due to non-cooperation of negligence of the employee concerned.” This section entitles the employee under suspension for subsistence allowance equivalent to fifty percent of basic pay and the allowances admissible from the managing committee subject to conditions enumerated therein. Sub rule 2, however provides that if an employee is kept under suspension beyond the period of six months, the subsistence allowance shall be raised to 75% of the basic pay and the allowances admissible thereon. COCP No. 445 of 2007 -6- From the bare reading of the aforesaid rules, it appears that a suspended employee is entitled to 50% of the subsistence allowance on his basic pay and the admissible allowance for the period of first six months and if, there is no disability incurred by him under the proviso to rule 14 (1) and if, the suspension continues beyond six months, the quantum of subsistence allowance shall be raised to 75%. There is no embargo in the rule to confine the subsistence allowance to the pay scale admissible at the time of suspension. As a matter of fact, an employee under suspension continues to be an employee for all purposes except that the performance of his duties are kept in abeyance. This means that he is entitled to not only the pay revision from time to time but also the allowances as may be revised during the period he remains under suspension. He is also entitled to increments during the period of suspension. A Division Bench of this Court in 1995 (4) RSJ 175 has observed as under:- “ On notice of motion, written statement has been filed accepting the facts stated above. After hearing the counsel for the parties, we are of the view that infact absence of any order passed by the competent authority, stopping or withholding increments, even if the petitioner is under suspension, he has earned the same as subsistence allowance is accordingly to be paid to the petitioner. We so direct these directions be complied within three months from the communication of the order.” Mr. Berry, learned counsel appearing on behalf of State has however relied upon the Govt. Notification dated 16.1.1998, whereby the Punjab Civil Services (revised pay rules of 1998 were notified. Rule 7 of the aforesaid pay rules deal with the fixation of pay in the revised scale. There are two notes appended to the aforesaid rules and note 2 deals with COCP No. 445 of 2007 -7- the payment of subsistence allowance on revision of pay scale, reads as under:- “ Note 2. Where a Govt. employee is on leave on the First day of January, 1996, he shall become entitled to pay in the revised scale from the date he joins duty. In case of Govt. employee under suspension, he shall continue to draw subsistence allowance based on existing scale and his pay in the revised scale will be subject to final order on the pending disciplinary proceedings.” Relying upon the aforesaid note, it is contended on behalf of the respondents that a suspended employee is to be paid his subsistence allowance on the pre-revised scale and his pay in the revised scale is subject to final order on the pending disciplinary proceedings. It is also contended that this notification is applicable to the privately managed recognized schools. It may be useful to refer to Section 7 of the Punjab Privately Managed Schools Employees (Security of Service) Act, 1979 which reads as under:- “ 7. Salaries of employees: Notwithstanding anything contained in section 3, the scale of pay and dearness allowance of the employees shall not be less than those of the employees of the State Govt. holding corresponding posts in the schools run by the State Govt. : Provided that where the scales of pay and dearness allowance of the employees are less than those of the employees of the State govt. holding corresponding posts in the schools run by the State Govt., the Director shall direct the concerned managing committee to bring the same at part with those of such employees of the State Govt.” COCP No. 445 of 2007 -8- In view of the above section, the employees of the privately managed schools are also entitled to the same salary as being paid to the employees of the Govt. schools holding the corresponding post and they are also entitled to the same Dearness Allowance as the State Govt. employees. Similarly, rule 12 of the rules framed under the Act deals with the pay fixation and reads as under:- “ 12. Pay Fixation. On the revision of pay scales of the employees or on their appointment to any higher aided post in a school under the same managing committee, their pay shall be fixed in accordance with the rules applicable to the employees of the State Govt. holding corresponding post in the schools run by the State Govt.” This rule clearly provides for pay revision for the employees holding aided posts in the privately managed recognized schools at par with the State Govt. employees. Thus, the pay revision rules are applicable to the employees of the privately managed recognized schools by virtue of Section 7 and Rule 12 referred to above. Thus, the notification dated 16.1.1998 has its application to the petitioner. The only dispute is whether in view of the note 2 referred to above, the benefit of revision of pay scale will be available to the suspended employee or not. Admittedly, the pay rules are framed under Article 309 of the Constitution of India, which reads as under:- “ 309. Recruitment and conditions of service of persons serving the Union or a State:- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. COCP No. 445 of 2007 -9- Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.” These rules are transitory in nature and are subject to any enactment that may be made by the State. The State Legislature has enacted Punjab Privately Managed Recognized Schools Employees (Security of Service) Act, 1979 which inter alia provides for salary of employees and also the pay revision etc. Section 15 referred to above also provide for making rules and rules have been framed under the said Act. The relevant rules have been noticed herein above. The pay rules are thus subject to the statutory provision of the Act and the rules made thereunder. By virtue of Section 7 the employees of the privately managed schools are entitled to the same salary as payable to the State Govt. employees holding the corresponding posts. Similarly, by virtue of Rule 12 all pay revisions are also applicable to these privately managed recognized schools and their employees. Rule 14 provides for payment of 75% subsistence allowance, if, the suspension continues beyond six months. In view of Section 7 and Rule 12 the pay revision rules are also applicable to the employees. Once notification dated 16.1.1998 is applicable, it applies in toto with no exception including Note 2 appended to Rule 7 of the pay revision rules. COCP No. 445 of 2007 -10- There is no conflict between the act, rules made thereunder and the pay revision rules as the pay revision rules have been duly adopted under the Act/Rules. Thus, the embargo created under Note 2 to pay the subsistence allowance under the pay rule is attracted. Though, Rule 14 does not specifically provide that the subsistence allowance shall be paid under the revised or unrevised rules. However, keeping in view the harmonious construction the payment of subsistence allowance has to be regulated in accordance with Section 7 and Rule 12 referred to above. No employee can be permitted to claim the benefit of the pay revision on parity with the Govt. employees and yet plead that any dis-advantagious clause will not apply to it. Either the pay rules will apply in toto or not at all. The petitioner is claiming the benefit of pay revision as revised by virtue of the aforesaid notification and in subsequent notification and thus, petitioner cannot be permitted to plead that Note 2 will not apply to him. In view of the Note 2 a suspended employee can only draw the subsistence allowance at basic pay and admissible allowances in the un- revised pay scale till his disciplinary proceedings are concluded and the competent authority passes appropriate order. However, in the present case, an appeal was preferred by the Institution before the authority constituted under Section 4 of the Act. Section 4 of the Act deals with the dismissal/removal etc. of the employees. It is admitted case of the parties that after the suspension the petitioner was dismissed from service on 27.12.2002. In an appeal preferred by the Institution the Appellate Authority passed order dated 4.7.2001 whereby a direction was issued to pay subsistence allowance in the revised pay scale @ 75% from 6.11.1995. It has been contended on behalf of the petitioner that this order has attained COCP No. 445 of 2007 -11- finality. Though, this order is apparently contrary to the rules but since the order has been passed by a quasi judicial authority, it is binding upon the parties. In view of the above, it is ordered that petitioner shall be entitled to 75% of the subsistence allowance in the revised pay scale and admissible allowances. The balance amount of subsistence allowance shall be released to the petitioner by the respondents in the ratio of 5% (respondent no.1) and 95% (respondent no.2) respectively within a period of four months from today. It appears that the respondents bona fidely believed that the subsistence allowance is not payable at the revised rates and thus, there was no wilful disobedience on their part. It is not a fit case where the contempt proceedings should be continued or warranted against them for alleged non- compliance of the court order. The contempt proceedings are hereby dropped. However, the above directions shall be complied with by the respondents. (PERMOD KOHLI) JUDGE 8.5.2009 lucky Whether to be reported to the Reporters? Yes.