IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 WP(C).No. 26443 of 2003(W) ---------------------------------------- PETITIONER(S): ------------------------ M.L.DEVARAJ ALIAS CHELLKUTTAN SMITHA VILAGOM VEEDU, MADARAPALLIKONAM, THEKKUKARA MURI, KARIPOOR, NEDUMANGAD, TRIVANDRUM DISTRICT (RETIRED AS PEON FROM RURAL DEVELOPMENT AGENCY, THIRUVANANTHAPURAM-4) BY ADV. SRI.S.JAMES VINCENT SRI.TERRY V.JAMES RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, RURAL DEVELOPMENT DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE COMMISSIONER FOR RURAL DEVELOPMENT, L.M.S. COMPOUND, TRIVANDRUM. 3. THE DISTRICT RURAL DEVELOPMENT AGENCY, OFFICE OF THE DISTRICT PANCHAYAT OFFICE, PATTOM, TRIVANDRUM-4. REPRESENTED BY THE PROJECT OFFICER. GOVERNMENT PLEADER FOR R1TO3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.26443/2003 APPENDIX PETITIONER'S EXHIBITS: P1:- COPY OF THE G.O.(MS) NO.31/98/RDD DT. 29.9.98. P2:- COPY OF THE INTERIM ORDER DT. 3.22000 ON CMP. NO.1918/2000 IN OP NO.1238/2000 OF THE HONOURABLE HIGH COURT OF KERALA. P3:- LETTER NO.B/1960/96 DT. 20.10.2000 ISSUED BY THE 2ND RESPONDENT. P4:- COPY OF THE COUNTER AFFIDAVIT FILED BY THE 3RD RESPONDENT ON 31.10.2000 IN OP. NO.1238/2000. P5:- COPY OF THE JUDGMENT DT. 24.1.2001 IN OP NO.1238/2000. P6:- COPY OF THE ORDER NO.ESTT. C2/30993/2000/CRD DT. 1.6.01 ISSUED BY THE 2ND RESPONDENT. P7:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITION TO THE GOV ON 3.8.01. P8:- COPY OF THE ACKNOWLEDGEMENT DUE CARD NO.131/01/M(RD&R)/RD DT. 6.8.01 ISSUED BY THE IST RESPONDENT. P9:- COPY OF THE ORDER NO.B.1960/96 DT. 30.10.2001 ISSUED BY THE 3RD RESPONDENT. P10:- COPY OF THE JUDGMENT DT. 18.9.02 IN OP. 13778/02 OF THE HONOURABLE HIGH COURT OF KERALA. P11:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE RESPONDENTS ON 28.10.20012, ENCLOSING EXT.P10 JUDGMENT. P12:- COPY OF THE ORDER NO.13609/ESTT.C2/02/CRD DT. 7.4.03 ISSUED BY THE 2ND RESPONDENT. P13:- COPY OF THE ORDER NO.B-1328/02 DT. 4.5.03 ISSUED BY THE 3RD RESPONDENT. P14:- COPY OF THE 695009016 DT. 20.5.03 ISSUED TO THE PETITIONER FOR RS. 36,173/-. True copy P.A. TO JUDGE tss KURIAN JOSEPH, J. ---------------------------------------------- W.P.(C) No.26443 of 2003 ---------------------------------------------- Dated 10th November, 2008. J U D G M E N T Petitioner is aggrieved since steps have been taken to recover the subsistence allowance already paid to him during the period of suspension. The simple dispute in this case is as to whether subsistence allowance paid to an employee during the provisional service can be recovered. There is no dispute that the petitioner has been regularized in service only from 29.9.1998. However, he was suspended from service with effect from 29.4.1996, while he was in provisional service. The petitioner has since been reinstated in service as per the impugned Ext.P13 order, after regularizing him in service with effect from 29.9.1998, making it clear that the subsistence allowance paid to him prior to his suspension will be adjusted against his salary and other allowances. I am afraid, the stand cannot be appreciated. Subsistence allowance given to an employee is to enable him to subsist. Whether one is in provisional service or regular service, it is intended for the subsistence of the employee during the period of disciplinary proceedings, if kept under suspension. That allowance paid to the employee cannot be recovered for the only reason that the allowance is for the period covered by the WP(C) NO.26443/03 2 provisional service. That cannot be recovered, as held by this court in Thomas T.J. v. Deputy Director of Education and others (2005(4) ILR (Kerala) 37). Therefore, that part of Ext.P13, ordering recovery of the subsistence allowance paid to the petitioner prior to 29.9.1998 is quashed. As far as subsistence allowance after 29.9.1998, it is made clear that the adjustment from pay and allowances is only for the purpose of avoiding duplication. It is submitted that the petitioner has retired from service. Therefore, there will be a direction to the second respondent to pass consequential orders so that the petitioner is in a position to draw his pensionary and other eligible benefits, within a period of three months from the date of production of a copy of the judgment. The writ petition is disposed of as above. KURIAN JOSEPH, JUDGE. tgs KURIAN JOSEPH, J ---------------------------------------------- W.P.(C) No.26443 of 2003 ---------------------------------------------- J U D G M E N T Dated 10th November, 2008.