IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 OP.No. 24267 of 2001(L) ---------------------------------- PETITIONER(S): ---------------------- K.G. RADHAKRISHNAN, AIROOVADAKKETHIL VEEDU, THAZHATHUVADAKKU P.O., (VIA) ENATHU, KOLLAM DISTRICT. BY ADV. MR.JOHN VARGHESE, MR.T. SAJI. RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (AUDIT), KERALA, BRANCH TRISSUR-680 020. 3. SENIOR AUDIT OFFICER, ACOUNTANT GENERAL OFFICE, THRISSUR-680 020. 4. THE ACCOUNTS OFFICER, OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. R1 TO R4 BY SR.GOVERNMENT PLEADER SMT.N. SUDHA DEVI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 24267/2001-L APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.E-4950/97 DATED 05/07/1997 ISSUED BY THE CHIEF JUDICIAL MAGISTRATE, KOLLAM. EXT.P2: COPY OF THE NOTICE NO.501/2000 ISSUED FROM THE JFCM COURT-III, PUNALUR, TO THE PETITIONER, DATED 01/06/2000. EXT.P3: COPY OF THE LETTER DATED 23/08/2000 ISSUED FROM THE JFCM COURT-III, PUNALUR TO THE 3RD RESPONDENT. EXT.P4: COPY OF THE LETTER DATED 26/09/2000 ISSUED BY THE 3RD RESPONDENT. EXT.P5: COPY OF THE REPRESENTATION DATED 31/10/2000 FILED BY THE PETITIONER BEFORE THE JFCM COURT-III, PUNALUR & 2ND RESPONDENT. EXT.P6: COPY OF THE LETTER DATED 20/09/2000 ISSUED BY THE 4TH RESPONDENT TO THE C.J.M. , KOLLAM. EXT.P7: COPY OF THE PAGE NO.10 OF THE PENSION PAYMENT ORDER OF THE PETITIONER DATED NIL. EXT.P8: COPY OF THE LETTER NO.OA (HQ)IV/III/12-918/99-2000/568 DATED 24/11/2000 ISSUED BY THE 3RD RESPONDENT. EXT.P9: COPY OF THE GOVT. CIRCULAR NO.33/97/FIN. DATED 16/04/1997. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE CIRCULAR NO.33/97/FIN. DATED 16/04/1997. EXT.R1(b): COPY OF THE G.O. DATED 25/07/1995. //TRUE COPY// P.S. TO JUDGE rs. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 24267 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 20th November, 2009. J U D G M E N T The petitioner is a retired non-gazetted officer of the Government of Kerala. During the period of his service as an Upper Division Clerk in the Judicial First Class Magistrate's Court-III, Punalur, the petitioner was kept under suspension from 13-6-1997 to 29-2-2000. The petitioner was paid subsistence allowance for the period in question. The petitioner was thereafter served with Ext. P2 notice dated 1-6-2000 directing the petitioner to repay excess amount received by the petitioner as subsistence allowance. The relevant portion of Ext. P2 reads as follows: “Sri. K.G. Radhakrishnan, UDC was placed under suspension from 13.6.1997 while drawing a pay of Rs. 1350/-. Subsistence allowance was paid from 13.6.1997 at ½ pay + full D.A + other allowance proportionate to ½ pay. Please note that the special leave allowance as per rule 93 K.S.R part I is not admissible with subsistence allowance. D.A. proportionate to ½ pay only can be paid. H.R.A was paid for one year. It is admissible for the first 120 days from 13.6.1997. Excess paid comes to Rs. 35,360/- (Approximately).” The petitioner objected to the same contending that the payment was in order in view of the exception to Rule 93 of Part I of K.S.R insofar as under Rule 55 of Part I of K.S.R subsistence allowance is the leave salary payable, which has to be calculated on the basis of Rule 93, which only has been done in the petitioner's case. However, the petitioner's contentions were rejected by Ext. P 8 order holding thus: “Payment of subsistence allowance is regulated by Rule 55, Part I, K.S.R. As per Rule 55, an officer under suspension is entitled to a subsistence allowance at an amount equal to the leave salary which the officer would have drawn had he been on leave on half pay on the date of suspension. In addition Dearness Allowance not exceeding the amount admissible as such had he been on leave or leave salary equal to the rate of subsistence O.P No. 24267/01 -: 2 :- allowance can also be granted, vide Rule 55(i). In the case of half pay leave, under exception below Rule 93 a non gazetted officer whose pay before proceeding on leave does not exceed Rs. 2000/- (Rs. 6500- w.e.f. 1.3.97) is entitled to D.A which would have been admissible had he been on duty. But, Govt. in circular No. 33/97/Fin dated 16.4.97 clarified that exception below Rule 93 is not applicable to subsistence allowance. During local audit of the Ist Class Judl. Magistrate No. III, Punalur in 2/2000 the local audit party observed that Sri. K.G. Radhakrishnan UDC under suspension from 13-6-97 was paid D.A on full pay instead of on subsistence allowance (half pay) resulting in excess payment of Rs. 35360/- (vide AE No. 6 issued locally). This was communicated in Para III of the IR issued in 5/2000 from this office. Audit observations on irregularities are reported to the departmental officers with a view to verifying correctness and taking remedial action. It is for the departmental officers to apply their mind and decide on further course of action, vide Govt. circular No. 71/93/Fin dated 7.10.93. The irregularities pointed out in the IR para may be examined and the subsistence allowance regulated as per rules, as requested in this office letter dated 26.9.2000. In case of doubt, the matter may be taken up with Govt. and payment of subsistence allowance regularised as per Govt. orders. The IR para is not pursued further by audit.” The petitioner challenges Exts.P4, P6 and P8 in this original petition. 2. Ext. P4 is the clarification issued by the Accountant General regarding the audit objection. Ext. P6 is another confirmation of the audit objection. Ext. P8 is a clarification issued by the office of the Accountant General on the issue. The contention of the petitioner is that under Rule 55 of Part I of K.S.R, the amount of subsistence allowance for the first year of suspension is equal to the leave salary which the officer would have drawn had he been on leave on half pay on the date of suspension. Half pay leave is to be calculated under Rule 93. Under the Exception to Rule 93, when the pay of a non- gazetted officer proceeding on leave does not exceed Rs. 6500/- , the D.A admissible is the same, which is payable had he been on duty, O.P No. 24267/01 -: 3 :- which only has been paid to the petitioner. 3. A counter affidavit has been filed by the respondents, who would contend that the petitioner is entitled to only leave salary as calculated as per the exception. As per the exception, after calculating the amount of 65% mentioned therein, the amount in excess of the actual leave salary is termed as special leave allowance. According to the respondents, the petitioner is entitled to only actual leave salary mentioned in the exception and not the special leave allowance, whereas the petitioner has been paid both. The amount equal to the special leave allowance is sought to be recovered, which is in order, is the contention raised by the respondents. The learned Government Pleader would also point out that this has been made abundantly clear by Ext. P9 circular. 4. I have considered the rival contentions in detail. 5. Rule 55 of Part I K.S.R reads thus: “55. An officer under suspension or deemed to have been placed under suspension by an order of the appointing authority is entitled to the following payments:- For the first year of suspension, subsistence allowance at an amount equal to the leave salary which the officer would have drawn had he been on leave on half pay on the date of suspension; but the benefit of any increase in pay due to increment falling due during the period of suspension will not be admissible during the period, and For any period subsequent thereto at three-quarters of such amount. In addition, he may be granted to such extent and subject to such conditions as the authority ordering his suspension may direct- (i) Dearness allowance and Dearness pay not exceeding the amount admissible as such had he been on leave on leave salary equal to the rate of subsistence allowance payable from into time. (ii) Any other compensatory allowance of which he was in receipt on the date of suspension.” O.P No. 24267/01 -: 4 :- The provision regarding calculation of leave salary is contained in Rule 93 of Part I of K.S.R, which reads thus: “93. An officer on half-pay leave or leave not due is entitled to leave salary equal to.- (i) half of duty pay, i.e., half of the pay admissible had he been on duty during the period of leave; (ii) dearness allowance applicable to the amount admissible under clause (i) above; Provided that where an officer is promoted during the period he is on half pay leave the monetary benefit of promotion shall be given only from the date on which the officer assumes charge of the post, if there is change of duties. Exception:- A non-gazetted officer whose pay before proceeding on leave, does not exceed Rs. 6500 in the revised scale of pay ordered in G.O.(P) 600/93/Fin. dated 25th September 1993 shall be entitled to dearness allowance which would have been admissible had he been on duty, which together with the leave salary so admissible is subject to a minimum of 65% of the pay and dearness allowance while on duty. The excess over the actual leave salary in such cases shall be termed as special leave allowance. and (iii) House Rent Allowance for the first four months of leave. Explanation:- For the purpose of Rule 92 and this rule, period of duty shall be deemed to be the period of duty in a post during which the officer would have drawn the pay in the time- scale of that post but for his proceeding on leave. In the case of officiating appointments a certificate of continuance in the same post but for leave should be furnished to the Audit Officer along with the sanction/noted in the Service Book and the bill claiming the leave salary.” Going by the same, on calculation of the amounts as given in the exception, the total amount payable as leave salary has two components, one is the actual leave salary and special leave allowance. Going by Rule 55, the petitioner is entitled to only actual leave salary as subsistence allowance and not the component of O.P No. 24267/01 -: 5 :- special leave allowance made mention of in Rule 93. This has been made amply clear by Ext. P9 circular, which reads thus: “As per Rule 55, Part I, Kerala Service Rules, subsistence allowance will be an amount equal to leave salary which the Officer would have drawn, had he been on leave half pay on the date of suspension, along with Dearness Allowance/Dearness Pay on such amount, and any other compensatory allowance of which he was in receipt, as on the date of suspension. It has come to the notice of the Government that, in many cases, in addition to the above amount, special leave allowance are also given applying exception below rule 93, Part I, Kerala Service Rules. Government hereby clarify that payment of Special Leave Allowance is not permissible, along with subsistence allowance.” The petitioner has not chosen to challenge Ext. P9 circular also. Of course, the learned Government Pleader points out that Ext. P9 circular was cancelled by Circular No. 8/2003/Fin dated 8th January, 2003. But the petitioner's suspension was in 2000, during which time Ext. P9 circular was in force. Therefore, the present circular cancelling Ext. P9 cannot govern the issue. That being so, I do not think that there is anything wrong with the direction to recover the excess amount paid to the petitioner. Accordingly, I do not find any merit in this original petition and the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/