IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 11-7-2008 Coram The Honourable Mr.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.11573 of 2008 M.P.Nos.1 to 3 of 2008 R. Balaiya ... Petitioner Vs. The Chairman Common Cadre Authority/ Joint Registrar of Co-Op. Societies, Cuddalore Region, Cuddalore. ... Respondent PRAYER: Writ petition filed under Article 226 of Constitution of India, praying this Court to issue a Writ of certiorarified mandamus calling for the entire records relating to teh impugned orders of suspension of service of the petitioner passed by the respondent in his proceedings Na.Ka.No.3175/2005.Nu, dated 16.12.2005 and quash the same as null and void and consequently direct the respondent to reinstate the petitioner with backwages and other benefits for the period under suspension. For Petitioner : Mr.M.Gnanasekar For Respondent : Mr.D.Srinivasan, Addl. Govt. Pleader O R D E R By consent of both sides, the writ petition is taken up for final disposal. 2. Prayer in this Writ Petition is to issue a Writ of certiorarified mandamus calling for the entire records relating to the impugned orders of suspension of service of the petitioner passed by the respondent in his proceedings Na.Ka.No.3175/2005.Nu, dated 16.12.2005 and quash the same as null and void and consequently direct the respondent to reinstate https://hcservices.ecourts.gov.in/hcservices/ the petitioner with backwages and other benefits for the period under suspension. 3. The learned counsel appearing for the petitioner at the time of arguments submitted that the petitioner is not pressing the prayer as such and the petitioner will be satisfied if the subsistence allowance payable from 1.2.2006 is directed to be paid, and so long as the petitioner is kept under suspension, respondent may be directed to continuously pay the subsistence allowance. The said statement of the learned counsel for the petitioner is hereby recorded. 4. Petitioner was suspended by the impugned order dated 16.12.2005 based on certain allegations. The respondent paid the subsistence allowance payable to the petitioner from 16.12.2005 upto 31.1.2006. 5. In the counter affidavit filed by the respondent in paragraph 14 it is stated that for payment of subsistence allowance, there is want of fund in the bank and the petitioner having committed misappropriation, falsification of accounts and fraud to the tune of Rs.2.99 crores, subsistence allowance could not be paid to the petitioner. It is further stated that the Bank has no source of income. 6. The said stand taken by the respondent in the counter affidavit cannot be sustained since it is an elementary principle of law that when a person is placed under suspension, subsistence allowance is bound to be paid to the suspended employee. The allegations against the petitioner can be a reason for initiating disciplinary action and for placing the petitioner under suspension. But the same cannot be the reason to deny subsistence allowance. It is also to be noted that want of finance cannot be a reason to deny subsistence allowance as the principle behind the payment of subsistence allowance is to pay some amount for the sustenance of petitioner's life, which is guaranteed under Article 21 of the Constitution of India. 7. The Supreme Court in the decision reported in AIR 1999 SC 1416 = (1999) 3 SCC 679 (Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.) in paragraphs 29 and 30 held thus, "29. Suspension notwithstanding, non- payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised https://hcservices.ecourts.gov.in/hcservices/ and the salary is also paid to him at a reduced rate under the nickname of “subsistence allowance”, so that the employee may sustain himself. This Court, in O.P. Gupta v. Union of India ((1987) 4 SCC 328 = AIR 1987 SC 2257)made the following observations with regard to subsistence allowance: (SCC p.340, para 15) “An order of suspension of a government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India (AIR 1958 SC 300) is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance — generally called subsistence allowance — which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental enquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression ‘subsistence allowance’ has an undeniable penal significance. The dictionary meaning of the word ‘subsist’ as given in Shorter Oxford English Dictionary, Vol. II at p.2171 is ‘to remain alive as on food; to continue to exist’. ‘Subsistence’ means — means of supporting life, especially a minimum livelihood.” (emphasis supplied) 30. If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of subsistence allowance https://hcservices.ecourts.gov.in/hcservices/ can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of non-payment of subsistence allowance, would gradually starve himself to death." 8. In view of the Supreme Court decision cited above and my above findings, the respondent is directed to pay the arrears of subsistence allowance payable from 1.2.2006 till end of July, 2008, within two weeks from the date of receipt of copy of this order. The respondent is further directed to continuously pay the subsistence allowance to the petitioner from the month August, 2008, before 10th day of the succeeding month, until conclusion of the disciplinary proceeding. If the arrears of the subsistence allowance payable from 1.2.2006 till July, 2008 is not paid within two weeks as ordered above, respondent is directed to pay interest at the rate of 9% per annum on the arrears. The writ petition is ordered on the above terms. No costs. Connected miscellaneous petitions are closed. Vr Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To The Chairman Common Cadre Authority/Joint Registrar of Co-Op. Societies, Cuddalore Region, Cuddalore. + 1 cc to the Government Pleader, SR No.36874/08 W.P.No.11573 of 2008 VSV(CO) SR/15.7.2008 https://hcservices.ecourts.gov.in/hcservices/