Vs.

Judges: S. SAGHR AHMAD & V.N. KHARE, JJ.

Date of Judgment: Mar 30, 1999

Fundamental Rule, 53 with CCS (CCA) Rules, 1964 – Rule 10 and Constitution – Article 14 – “Subsistence allowance” – Nature and need – “Suspension” – Right of employer to suspend – Non-payment of subsistence allowance – Effects – Employee not even able to travel in absence of allowance, from home town to place of enquiry – Proceedings not stayed – Exparte enquiry – If valid Held that under the circumstances, exparte enquiry was vitiated as basic right of natural justice was violated.

To place an employee under suspension is an unqualified right of the employer. The order of suspension does not put an end to an employee’s service and he continues to be a member of the service though he is not permitted to work and is paid only Subsistence Allowance which is less than his salary. 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 and the salary is also paid to him at a reduced rate. 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. (Paras 26, 27, 29 & 30)

On joining Govt. service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Govt. The Govt., only because it has the power to appoint does not become the master of the body and soul of the employee. The Govt. by providing job opportunities to its citizens only fulfils its obligations under the Constitution. The fundamental rights, including the Right to Life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of Subsistence Allowance made in the Service Rules only ensures non-violation of the right to life of the employee. (Para 31)

In the instant case the appellant was not provided any Subsistence Allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex-parte proceedings against him. On account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which were held ex-parte, stand vitiated. (Para 33)