IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 WP(C).No. 29635 of 2003(C) -------------------------- PETITIONER: ------------ 1. N.K.VASUDEVAN NAMBIAR, S/O. KRISHNAN NAIR, AGED 57 YEARS, CONDUCTOR (RETD), KERALA STATE ROAD TRANSPORT CORPORATION, SULTHAN BATHERY, RESIDING AT EDATHIL HOUSE, KOLIYADI, NENMENI P.O., SULTHAN BATHERY. 2. M.BHARATHAN S/O. GOPALAN, AGED 57 YEARS, INSPECTOR GRADE -II (RETD.), KERALA STATE ROAD TRANSPORT CORPORATION, RESIDING AT MAKKAMDARI HOUSE, THODUVALLY, POST PUTHENKUNNU, SULTHAN BATHERY. BY ADV. SRI.N.UNNIKRISHNAN RESPONDENTS: ------------- 1. THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE CHIEF ACCOUNTS OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM. 3. THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, SULTHAN BATHERY. BY ADV. SRI.JOHNSON P.JOHN SC.K.S.R.T.C SRI.K.PRABHAKARAN.SC,KSRTC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29635 of 2003 APPENDIX EXT.P1: COPY OF PROCEEDINGS NO.R.DIS.PLB/1/007198/2001 DATED 13.3.2003. EXT.P2: COPY OF G.P.O. NO.26951 NO.IAI/P/4/2003 DATED 25.6.2003 ISSUED BY R2 TO R3. EXT.P3: COPY OF JUDGMENT DTD 23.7.2003 IN O.P.NO.27480/2002 PASSED BY THE HON'BLE HIGH COURT OF KERALA. EXT.P4: COPY OF GRATUITY PAYMENT ORDER NO.26925- IAI/PA2/009575/01 DATED 10.6.03 ISSUED BY R2. EXT.P5: COPY OF JUDGMENT DATED 28.7.03 IN C.C.C.NO.687/2003-S PASSED BY THE HON'BLE HIGH COURT OF KERALA. EXT.P6: COPY OF PROCEEDINGS OF THE APPELLATE AUTHORITY ORDER NO.D.DIS.(APL2)67173/96 DTD 17.6.1999 ISSUED BY R1 TO THE FIRST PETITIONER. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. -------------------------------------- W.P.(C)No.29635 OF 2003 ---------------------------------------- Dated this the 12th day of March, 2008 JUDGMENT There are two petitioners in the writ petition, both of whom have retired from services of the Kerala State Road Transport Corporation. They were subjected to suspension and disciplinary proceedings while they were in service. In the disciplinary proceedings, both were exonerated. During the period of suspension, they were paid subsistence allowance. Subsequent to exoneration, it was ordered that the period of suspension shall be treated as eligible leave. Since no eligible leave was on credited for the petitioners, the said period was treated as leave without allowances. Thereafter, in the gratuity payment order, the subsistence allowance paid to the petitioners were sought to be recovered from the DCRG. In the case of the 1st petitioner in addition to the subsistence allowance an amount of Rs.1140/- was sought to be recovered as monetary equivalent of increment bar imposed as punishment on him. The contention of the 1st petitioner is that in appeal the order of punishment was set aside W.P.(c) No.29635/03 2 and therefore the increment bar could not have been imposed on him and as such recovery of that amount is also unsustainable. Both the petitioners also seek payment of 10% of the DCRG withheld as per Ext.P2. Further they also seek disbursal of arrears of pension, which has also been granted as per Exts.P2 and P4. 2. I have heard both sides as far as 10% of the DCRG withheld and difference in pension, in the counter affidavit, it is stated as follows: “The arrears of pension due to this will be paid to him from the concerned Unit as and when his turn comes and on the availability of funds in Unit. 10% of DCRG amount is retained according to Order No.LR8/012426/02 dated 5.12.2002 and PLB6/015064/02 dated 8.10.02 in lieu of the excess pay paid to be recovered due to cancellation of upgradation of scale of pay which was given with effect from 10/8/2000. The amount will be settled subject to the disposal of the original petition.” As such, now that this writ petition is now being disposed of, the Corporation shall pass appropriate orders and disburse the amounts due to the petitioners within a period of one month from the date of receipt of a copy of this judgment. W.P.(c) No.29635/03 3 3. In respect of recovery of subsistence allowance from the DCRG, it is not disputed before me that the disciplinary proceedings against both the petitioners resulted in their exoneration of the charges alleged against them. The contention of the respondents is that since the suspension period has been converted as leave without allowances, the petitioners are not entitled to subsistence allowance and that is why the same is sought to be recovered from them. But it is settled law, as is clear from Sub Section (2) of Section 3 of the Kerala Payment of Subsistence Allowance Act, that an employee shall not in any event be liable to refund or forfeit any part of the subsistence allowance admissible to him under sub section (1). In fact the Supreme Court has, in the decision of Regional Director, Employees' State Insurance Corporation V. M/s. Popular Automobiles (AIR 1997 SUPREME COURT 3956), dealing with the question as to whether the subsistence allowance forms part of wages, has held that subsistence allowance paid to a suspended employee is not recoverable or refundable, even if ultimately the suspended employee is punished on proof of misconduct, for which he was proceeded against in disciplinary proceedings. That being so, the respondents could not have validly W.P.(c) No.29635/03 4 recovered the subsistence allowance paid to them for the period of suspension on the ground that subsequently, the period of suspension has been treated as leave without allowances. Therefore the petitioners are entitled to release of the amounts withheld from the DCRG towards subsistence allowance paid to them while under suspension. What remains now is the question as to whether the monetary equivalent of increment bar of the 1st petitioner is recoverable. The 1st petitioner has produced Ext.P6 order whereby in appeal, the punishment order has been set aside. Therefore the monetary equivalent of increment bar could not have been validly recovered from the DCRG of the 1st petitioner. Therefore the petitioners are entitled to succeed in this writ petition. Accordingly, the respondents are directed to pay the above said amounts withheld from the petitioners' DCRG within one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE Acd W.P.(c) No.29635/03 5