Jagdamba Prasad Shukla vs State Of U.P. & Ors
- SCC(2000) 7 SCC 90
- AIRAIR 2000 SC 2806
Ratio decidendi
The rule this decision rests on
Where a government employee under suspension is denied subsistence allowance throughout the period of suspension without having been given notice that furnishing a certificate of non-employment was a precondition, and the employee communicates to the authorities that this financial deprivation prevents attendance at departmental proceedings, the denial of such allowance vitiates the disciplinary inquiry for breach of natural justice by denying reasonable opportunity to the employee to defend himself, regardless of whether the employee had previously raised the ground in earlier proceedings or made alternative requests for funds. The payment of subsistence allowance to a suspended employee in accordance with the Rules is a right, not a bounty, and there must be justifiable grounds for its withholding; the mere failure of the employee to furnish an address, when the employee has provided his address in multiple communications to the respondents and the authorities have successfully served other notices upon him, does not constitute justification for non-payment.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
PETITIONER:JAGDAMBA PRASAD SHUKLA
Vs.
RESPONDENT:STATE OF U.P. & ORS.
DATE OF JUDGMENT: 22/08/2000
BENCH:S.P. Bharucha, J. & Y K Sabharwal, J.
JUDGMENT:
Y.K.SABHARWAL,J.
Delay condoned. Leave granted.
L....I..........T.......T.......T.......T.......T.......T..JThe appellant while holding the post of a Sub Inspectorwas placed under suspension by an order dated 1st June, 1977and was transferred to Gorakhpur by an order dated 4thAugust, 1977 in order to face disciplinary proceedings. Theappellant did not participate in the disciplinaryproceedings allegedly on account of illness and beingconfined for medical treatment at Kanpur and also on accountof financial crunch for non-payment of subsistenceallowance. The appellant was served with a show causenotice dated 29th December, 1978 proposing punishment ofremoval from service. In reply thereto, appellant raisedseveral objections indicating irregularities in conduct ofdepartmental proceedings. The Deputy Inspector General ofPolice by an order dated 11th February, 1979 directedremoval of the appellant from service. After beingunsuccessful in departmental appeal and even in a claimpetition filed before U.P.Public Service Tribunal, theappellant challenged his order of removal in a writ petitionfiled in the High Court.
The only contention pressed on behalf of the appellantbefore the High Court was that on account of non-payment ofsubsistence allowance, right from the date of suspensiontill his removal, he could not participate in thedepartmental enquiry and, therefore, the proceedings of thesaid enquiry stood vitiated for denial of grant ofreasonable opportunity to him to appear in departmentalenquiry. It was rejected by the High Court. The tworeasons given by the High Court for rejecting the contentionare:-(i) to receive subsistence allowance, the appellant wasrequired to furnish a certificate stating that he is notengaged in any other employment, business, profession orvocation, which was not furnished; and (ii) the appellanthad not taken a ground either in the claim petition or inthe writ petition that he could not participate in theenquiry because of financial crunch.
In this appeal also, the only contention urged onbehalf of the appellant is the denial of reasonableopportunity in the departmental enquiry. It is contendedthat on account of financial crunch created by respondentsby non-payment of subsistence allowance from date of thesuspension till removal, the appellant could not travel toGorakhpur and participate in the proceedings of departmentalenquiry.
Learned counsel for the respondents did not dispute thefactual position that the subsistence allowance as urged onbehalf of the appellant was not paid to him. Thejustification offered by the respondents for not paying thesubsistence allowance is that the applicant had notfurnished the address where the amount was to be sent andhad also not given the requisite certificate indicating thathe was not employed else during the period of suspension.
It is evident from the record that the High Court isnot right in observing that ground sought to be urged wasnot taken in the claim petition or in the writ petition. Infact, the High Court in the latter part of the judgmentobserves that `for the first time, the petitioner has takenthe ground in this writ petition that he could not attendthe departmental proceedings due to financial crunch as hewas not paid his subsistence allowance.' A perusal of therecord shows that the contention urged before the High Courtand again before us, was also raised before the U.P.PublicService Tribunal and even earlier before the authorities.The U.P. Public Service Tribunal considered it and on thefacts of the case, the Tribunal held that `Therefore, thoserulings where person was unable to attend the enquiry fornon-payment of subsistence allowance, resulting in enquirybeing vitiated will not be applicable.' Apart from it, inreply dated 22nd January, 1979 sent to show cause notice,the appellant specifically stated that he has not been paidhis pay and suspension allowance which cannot be withheldand as such how could he be expected to reach Gorakhpur orelsewhere due to shortage of funds. He further stated that`the applicant has requested a number of times for drawinghis pay and suspension allowance, but the same could not bedrawn and sent to applicant which was a serious handicap toappear anywhere even if he so preferred during illness andeven against the recommendations of his medical attendant.'The request of the appellant for payment of subsistenceallowance is also contained in his letter dated 31st March,1978 sent to Superintendent of Police, Railways, GorakhpurSection, Gorakhpur. The said letter also contains theaddress of the appellant. The address of the appellant isin fact contained on various communications sent by him tothe respondents. It is curious that the respondents couldserve all other communications including the show causenotice to the appellant but in so far as payment ofsubsistence allowance is concerned, the plea taken is thatthe appellant did not intimate his address and, therefore,the amount could not be sent. Thus, it is evident thatdespite repeated requests, the subsistence allowance was notpaid to the appellant from the date of suspension tillremoval. It is also evident that the appellant hadexpressed difficulty to reach place of enquiry due toshortage of funds.
Reverting now to the other reason which prevailed withthe High Court, namely, the appellant having not furnished acertificate stating that he is not engaged in any otheremployment, business, profession or vocation and having thusnot complied with Rule 53(2) of the Financial Hand Book, itmay be noticed that at no stage, the appellant was told thathe had to furnish such a certificate, and that he could notbe paid subsistence allowance without it. It was not thecase of the respondents that in response to the appellant'srequest for payment of subsistence allowance, he was askedto furnish such a certificate and since he did not furnishit, the amount of subsistence allowance was not paid to him.Therefore, the second reason for rejecting the appellant'scontention for non- payment of subsistence allowance alsodoes not deserve to be sustained.
The payment of subsistence allowance, in accordancewith the Rules, to an employee under suspension is not abounty. It is a right. An employee is entitled to be paidthe subsistence allowance. No justifiable ground has beenmade out for non-payment of the subsistence allowance allthrough the period of suspension i.e. from suspension tillremoval. One of the reasons for not appearing in enquiry asintimated to the authorities was the financial crunch onaccount of non-payment of subsistence allowance and theother was the illness of the appellant. The appellant inreply to show cause notice stated that even if he was toappear in enquiry against medical advice, he was unable toappear for want of funds on account of non-payment ofsubsistence allowance. It is a clear case of breach ofprinciples of natural justice on account of the denial ofreasonable opportunity to the appellant to defend himself inthe departmental enquiry. Thus, the departmental enquiryand the consequent order of removal from service arequashed.
In view of the aforesaid, the impugned judgment of the High Court is set aside and the appeal is allowed with@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ costs.@@ JJJJJJ .UP 10 2; Fixed-pitch, printer 1; -n -ml4 -PA4 -dFX-NORMAL -Fx -e -j; dumbp L.......T.......T.......T.......T.......T.......T.......T.......T....R
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