JUDGMENT

1. The petitioner has come up before this Court praying for the issuance of a writ of mandamus directing the respondent to pay the petitioner the enhanced subsistence allowance payble to him with effect from 4 December, 1986 till date and continue to pay the enhanced subsistence allowance till the order of suspension, dated 4 September, 1986, is revoked.

2. The petitioner who was appointed as a traffic manager of the Madras Port Trust (the respondent herein) was the head of the Traffic Department of the Madras Port Trust under the provisions governed by Ss. 24(1)(a) and 25(1) of the Major Port Trusts Act, 1963, Central Act 38 of 1963, applies to him. While the petitioner was working as a traffic manager, the Central Bureau of Investigation had registered a case in R.C No. 38 of 1986 under S. 5(2) read with S. 5(1)(e) of the Prevention of Corruption Act, 1947, against the petitioner and the respondent-Madras Port Trust was informed by proceedings, dated 25 June, 1986. In accordance with the proceedings of the Government of India, Ministry of Transport, the petitioner was placed under supension by proceedings of the respondent, dated 4 September, 1986, which reads as follows:

“Whereas it has been reported that the Central Bureau of Investigation have registered a case No. R.C 58 of 1986 under S. 5(2) read with S. 5(1)(e) of Prevention of Corruption Act, 1947, against Sri G. Chandrasekhar, traffic manager, Madras Port Trust, as a result of which it is found that there is a prima facie case against Sri G. Chandrasekhar.

Sri G. Chandrasekhar, traffic manager, Madras Port Trust, is hereby placed under suspension, with the approval of the Central Government, with effect from the afternoon of 4 September i986, pending finalisation of the charges and action thereon by the Central Bureau of Investigation.

During the period of suspension, Sri G. Chandrasekhar will be allowed to draw subsistence allowance as admissible under the rules.”

As a review has to be made in view of Fundamental Rules 53, the respondent recommended to the Government of India, Ministry of Surface Transport, to accord sanction for further continuation of suspension of the petitioner, pending finalisation of the case and action thereon by C.B.I By letter, dated 31 March, 1987, the Government of India approved the further continuance of suspension beyond the initial period of three months under S. 25(1) of the Major Port Trusts Act, 1963, and directed that the petitioner be kept under suspension pending receipt of the report on the C.B.I case registered against him, with the existing subsistence allowance.

[emphasis supplied]

3. The petitioner alleges in his affidavit that he had been co-operating with the investigating agency right from the inception of the said proceedings, that though the action against the petitioner had been initiated in the year 1986, it has been kept pending for more than two years, that the prolonging of the period of suspension is not in any manner attributable to the petitioner and that he is entitled to be paid the enhanced subsistence allowance on the expiry of the first three months period from the date of suspension. The petitioner further alleges that he had been paid subsistence allowance from 4 September, 1986 equivalent to his half pay together with other allowances which is payable during the first three months period, that the respondent has to pay the enhanced subsistence allowance from 4 December, 1986, that the failure on the part of the respondent to pay the enhanced allowance is irregular and that it is obligatory on the part of the respondent like any other employer to pay enhanced subsistence allowance if the period of suspension prolongs beyond the period of three months for reasons not attributable to the petitioner. The petitioner further alleges in the affidavit that the power vested in the authorities in this regard is a power coupled with duty with corresponding right on the officer concerned to demand and receive the enhanced subsistence allowance and that as such in law he is entitled to the subsistence allowance from December 1986 which has been wrongfully withheld by the respondent. The petitioner further alleges that he made a representation in this regard but has not been answered by the respondent and hence he is compelled to file this writ petition. The petitioner further alleges that the subsistence allowance that is being paid presently is a meagre amount and that he has been continued to be kept under suspension for quite a long period for no fault of his.

4. Notice of motion has been ordered by Sivasubramanim, J., on 9 January, 1989.

5. The respondent-Madras Port Trust has filed a counter-affidavit. It is claimed in the counter-affidavit that the petitioner was allowed to draw subsistence allowance under Fundamental Rule 53 and which was the amount equal to the leave salary which the petitioner would have drawn if he had been on leave on half average pay or on half pay and in addition the dearness allowance admissible on the basis of such salary and that the prolongation of the investigation was due to the petitioner's refusal to furnish particulars of property required by the Central Bureau of Investigation as well as the administration. It is claimed in the counter-affidavit that the officials of the C.B.I have filed chargesheet against the petitioner on 30 December, 1988 and that the administration has also framed charges against the petitioner for disciplinary action which was served on the petitioner on 17 February, 1989. It is claimed in the counter-affidavit by respondent, referring to Fundamental Rule 53(i)(ii)(a), that the question of continuance of suspension and the payment of subsistence allowance after the original three months period were considered by the respondent and that it was decided to continue the suspension till the completion of the investigation and pay the existing subsistence allowance. The allegation that the petitioner has made a representation to the respondent is denied by the respondent in the counter-affidavit. It is submitted in the counter-affidavit that under S. 24(1) of the Major Port Trusts Act, the appointing authority is the Government, that the Chairman can exercise the powers of suspension, etc., under S. 25(1) of the Major Port Trust Act, only after obtaining the approval of the Government, and that as such the Central Government is a necessary party in these proceedings. It is further claimed in the counter-affidavit that the delay in completion of investigation was also due to the petitioner not furnishing the property particulars required by the investigating authorities and the administration.

6. By consent of both parties, the main writ petition itself is taken up for disposal.

7. Sri R. Muthukumaraswamy, the learned counsel for the petitioner, refers to me the Madras Port Trust Employees' (Classification, Control and Appeal) Regulations, 1988 (hereinafter referred to as the regulations) framed under S. 124(1) read with Sub-sec. (1) of S. 132 of the Major Port Trusts Act, 1963, and regulation (78)(a), in Part IV of regulations. The learned counsel contends that under proviso (ii) of regulation 7(8)(a), the authority who made or deemed to have made the order of suspension is obliged to consider about the increase in subsistence allowance, if the period of suspension has been prolonged due to reasons not directly attributable to the employee. The learned counsel further contends that there is no delay on the part of the petitioner and the petitioner was co-operating with the department in the investigation. The learned counsel vehemently contends that the counter-affidavit is vague except stating that the petitioner was also responsible for the delay, that since this is a case of criminal prosecution, it is the duty of the department to investigate and that no material has been placed by C.B.I to justify the claim made in the counter-affidavit that the suspension has been prolonging only because of the petitioner's attitude. The learned counsel strenuously contends the propriety of the department in filing the counter-affidavit, as if materials to C.B.I were not given, and the counter is lacking in particulars with regard to the question how the petitioner is responsible in filing the chargesheet. The learned counsel further contends that under proviso (i) to regulation 7(8)(a) of the regulations, the Chairman of the Port Trust can increase the subsistence allowance and refers to me regulation 7 to support his argument. The learned counsel further contends that it is not correct to state that the Central Government is a necessary party, when the respondent is a statutory body governed by the statutory regulations. Sri R. Muthukumaraswamy, the learned counsel for the petitioner, refers to me a decision in Chief Revenue Authority v. M.S Mills, [A.I.R 1950 S.C 218], for the proposition that the power given to the respondent is coupled with duty and as such the duty is cast on the respondent as a public officer to do the right thing. The learned counsel further refers to a recent judgment which is reported in Shah (P.L) v. Union of India, [1989-I L.L.N 546], wherein the Supreme Court held that the amount of subsistence allowance payable to the Government servant should be reviewed from time to time, where the proceedings drag on for a long time, even though there may be no express rule insisting on such review.

8. Replying to the arguments of the learned counsel for the petitioner, Sri R.G Rajan, the learned counsel for the respondent, contends that the regulation 7(8) is similar to Fundamental Rule 53 and that the enhancement of subsistence allowance is not automatic. The learned counsel further contends that the power under proviso to regulation (8) is discretionary though he admits that the discretion cannot be exercised arbitrarily. Sri R.G Rajan, the learned counsel for the respondent, contends that the Government of India by order, dated 31 March, 1987, extended the period of continuance of suspension of the petitioner beyond the initial period of three months, pending receipt of the report on the C.B.I case registered against him, with the existing subsistence allowance. The learned counsel further contends that as per S. 24 of the Major Port Trusts Act, the Central Government is the appointing authority and under S. 25(1) of the Major Port Trusts Act, the Central Government has to approve any order passed with regard to the increase of the subsistence allowance and as such the Central Government is a necessary party to this writ petition. The learned counsel further contends that the payment of susbsistence allowance, being an incidental power of suspension under the proviso to S. 25(1) of Major Port Trusts Act, any order passed has to be approved by the Central Government.

9. Sri R. Muthukumaraswamy, the S. 25(1) counsel for the petitioner, refers to learned of the Major Port Trusts Act which reads as follows:

“Subject to any regulations made under S. 28, the power of granting extention of service to, granting leave to, suspending, reducing, compulsorily retiring, removing or dismissing or of disposing of any other question relating to the services of, the employees of a Board, including the power of dispensing with the services of, any such employee otherwise than by reason of the misconduct of such employee, shall be exercised:

(a) in the case of an employee holding a post referred to in Cl. (a) of Sub-sec. (1) of S. 24, by the Chairman;

(b) in any other case, by the Chairman or by such authority as may be prescribed by regulation;

Provided that no such order, so far as the same involves extension of service, suspension, reduction in rank, compulsory retirement, removal or dismissal of an employee referred to in Cl. (a) shall have effect until it is approved by the Central Government.”

The learned counsel contends that in view of S. 25(1) of the Major Port Trusts Act, which is extracted above, the argument of the learned counsel for the respondent that the approval of the Central Government is necessary before an increase in subsistence allowance is made is not correct. The learned counsel strenuously contends that the delay is not attributable to the petitioner, that the investigation has to be done by C.B.I and that no material has been placed even before this Court to show how the petitioner is responsible for that delay.

10. I have given careful consideration to the arguments on both sides. The point which arises for consideration in this case falls within a short compass. It is the admitted case that the petitioner has been placed under suspension from 4 September, 1986 and that he was also allowed to draw subsistence allowance as per rules and which was the amount equal to the leave salary which he would have drawn if he had been on leave on half average pay or on half pay and in addition to the dearness allowance admissible on the basis of such salary. Regulation 7(8) of Part IV of the regulations reads as follows:

“Procedure for payment of subsistence allowance and the treatment of the period of absence under suspension.— An employee under suspension or deemed to have been placed under suspension by an order of the appointing authority shall be entitled to the following payments, namely—

(a) a subsistence allowance at an amount equal to the leave salary which the employee would have drawn if he had been on leave on half average pay or on half pay and in addition dearness allowance, if admissible on the basis of such leave salary.

Provided that where the period of suspension exceeds three months the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first three months as follows:

(i) the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of the first three months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the employee….”

Under Sub-cl. (i) of regulation 7(8)(a) which is extracted above, the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of first three months, if in the opinion of the said authority, the period of suspension has been prolonged for the reasons, not directly attributable to the employee, [emphasis supplied]. Under regulation 7(2) the order of suspension can be made in the case of an employee referred to in Cl. (a) of Sub-sec. (1) of S. 24 of the Major Port Trusts Act, by the Chairman. In this case, it is not denied that the order of suspension has been passed by the respondent. I do not find any reason, in the counter-affidavit, which is attributable to the petitioner for the continuance of suspension. A vague suggestion is made that the delay in the investigation was due to the petitioner's refusal to furnish particulars of property required by the Central Bureau of Investigation as well as the administration. But I find a letter in the file, dated 20 March, 1987, written by the petitioner as a reply to the respondent's letter, dated 10 March, 1987, in which he has stated that the Trust is prohibited by S. 24 of the Evidence Act, not to resort to any inducement, threat or promise to make any admission, amounting to confession which has reference to the charge under investigation by the C.B.I, and by stating so, the petitioner refused to furnish the property particulars in Forms I to VI. Only after this letter, the Central Government by letter, dated 31 March, 1987, has extended the period of suspension beyond the initial period of three months with the existing subsistence allowance. Even so, after 31 March, 1987, no material is placed before me to show that the petitioner was responsible for the prolonged suspension. Actually by letter, dated 31 March, 1987, the Government of India authorised the extension of the suspension period, pending receipt of the report on the C.B.I case registered against him, with the existing subsistence allowance. As such in my view, there are no materials to show that the period has been prolonged which is directly attributable to the petitioner.

11. The Supreme Court had occasion to consider the effect of an order of suspension and the payment of subsistence allowance in Gupta (O.P) v. Union of India, [1987-II L.L.N 847], after referring to a case in Khem Chand v. Union of India, [A.I.R 1958 S.C 300], and observed as follows in Para. 15, at page 854 of 1987—II L.L.N:

“… The real effect of the order of suspension as explained by this Court in Khem Chand v. Union of India, [A.I.R 1958 S.C 300] (vide supra), is that he continues to be a member of the Government service but is not permitted to work and further during the period of suspension he is paid only some allowance, generally called subsistence allowance, which is normally less than the salary, instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a Government servant injuriously. The very expression ‘subsistence allowance’ has an undeniable penal significance. The dictionary meaning of the word ‘subsist’ as given in Shorter Oxford English Dictionary, Vol. II, at page 2171 is ‘to remain alive as on food; to continue to exist.’ ‘Subsistence’ means— means of supporting life, especially a minimum livelihood. Although suspension is not one of the punishments specified in rule 11 of the rules, an order of suspension is not to be lightly passed against the Government servant. In the case of Board of Trustees of Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, [1983-I L.L.N 314], the Court held that the expression ‘life’ does not merely connote animal existence or a continued drudgery through life. The expression ‘life’ has a much wider meaning…”

Recently, the Supreme Court had an occasion to consider the question with regard to the payment of subsistence allowance and the delay in proceedings, which is in Shah (P.L) v. Uionn of India, [1989-I L.L.N 546] (vide supra), has observed as follows in Para. 6, at page 549:

“An order of suspension is not an order imposing punishment on a person found to be guilty. It is an order made against him before he is found guilty to ensure smooth disposal of the proceedings initiated against him. Such proceedings should be completed expeditiously in public interest and also in the interest of the Government servant concerned. The subsistence allowance is paid by the Government so that the Government servant against whom an order of suspension is passed on account of the pendency of any disciplinary proceeding or a criminal case instituted against him could maintain himself and his dependants until the departmental proceeding or the criminal case as the case may be, comes to an end and appropriate orders are passed against the Government servant by the Government regarding his right to continue in service, etc., depending upon the final outcome of the proceedings instituted against him. The very nomenclature of the allowance makes it clear that the amount paid to such a Government servant should be sufficient for bare subsistence in this world in which the prices of the necessaries of life are increasing every day on account of the conditions of inflation obtaining in the country. It is further to be noted that a Government servant cannot engage himself in any other activity during the period of suspension. The amount of subsistence allowance payable to the Government servant concerned should, therefore, be reviewed from time to time where the proceedings drag on for a long time, even though there may be no express rule insisting on such review. In doing so, the authority concerned no doubt has to take into account whether the Government servant is in any way responsible for the undue delay in the disposal of the proceedings initiated against him. If the Government servant is not responsible for such delay or even if he is responsible for such delay to some extent but is not primarily responsible for it, it is for the Government to reconsider whether the order of suspension should be continued or whether the subsistence allowance should be varied to his advantage or not…”

If the ratio of the decisions of the Supreme Court is applied to the facts of this case, I am of the view that the petitioner is entitled to get an increase in the subsistence allowance as laid down in regulation 7(8)(a) of the Madras Port Trust Employees (Classification, Control and Appeal) Regulations, 1988, especially when no material is placed before this Court to show that the period of suspension has been prolonged and it is attributable to the petitioner. It cannot be said that the petitioner is responsible for the delay, on the facts and circumstances of this case. The Supreme Court has clearly observed in the latter case that if the Government servant is not responsible for such delay or even if he is responsible for such delay to some extent but is not primarily responsible for it, it is for the Government to reconsider whether the order of suspension should be continued or whether the subsistence allowance should be varied to his advantage or not [emphasis supplied]. Section 25(1) of the Major Port Trust Act, which is extracted in the earlier portion of this order, clearly states that subject to any regulation made under S. 28 which empowers the Chairman with certain powers, to dispose of any other question relating to the services of the employee is within the power of the Chairman. Hence assuming the word “terms” in S. 28(c) includes the power to vary the amounts of subsistence allowance, I am of the view that the power vests only with the Chairman. I am not able to agree with the argument of the learned counsel for the respondent that the proviso to S. 25(1) of the Major Port Trusts Act applies to the facts of this case. In my view, the suspension referred to under the proviso to S. 25(1) of the Major Port Trust Act is by way of punishment and that proviso will not apply to a case where a person is placed under suspension pending enquiry, so to say, like the petitioner herein. Even if the argument that the payment of subsistence allowance is incidental to power of suspension is accepted, the Chairman has got the powers to increase the subsistence allowance as required under regulation 7(8)(a)(i). The approval of the Central Government is required only with regard to extention of service, suspension, reduction in rank, compulsory retirement, removal or dismissal of an employee. I am of the view that the suspension which is referred to in this proviso applies only to a case of suspension by way of punishment. As such, the argument of Sri R.G Rajan, the learned counsel for the respondent, the approval of the Central Government is necessary on the facts of this case, cannot be acceded to. The proviso to regulation 7(8)(a) clearly states that where the period of suspension exceeds three months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first three months as follows:

(i) the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of the first three months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the employee.”

In this case, it cannot be denied that the petitioner was suspended only by the respondent. The argument of the learned counsel for the respondent that the delay in completion of investigation was also due to the petitioner in not furnishing the property particluars is not convincing because, the approval extending the period of suspension after the period of suspension for the first three months, was given only after the letter of the petitioner cited supra, during March 1987. There is nothing on record to show any reason for the delay subsequent to March 1987, which can be attributable to the petitioner. The counter-affidavit states that the charge-sheet has been filed only on 1 December, 1988 and the departmental charges were framed only in the month of February 1989, obviously after the notice of motion has been issued by this Court.

12. Sri R.G Rajan, the learned counsel for the respondent, fairly conceded that the discretion given to the authortiy in regulation 7(8)(a)(i) has to be exercised in a reasonable manner, not arbitrarily. The Supreme Court in Chief Revenue Authority v. M.S Mills, [A.I.R 1950 S.C 218] (vide supra) referred to the priniciple cited in the case of Spooner v. Juddow, [4 M.I.A 323], with regard to the duty cast on the Authority, and observed as follows:

“Put that case aside. The rule here is supported upon the earlier part of the section. No doubt that part does not say that he shall state a case: it only says that he may. And as the learned counsel for the respondent rightly urged ‘may’ does not mean ‘shall’. Neither are the words ‘it shall be lawful’ those of complusion. Only the capacity or power is given to the authority. ‘But when a capacity or power is given to a public authority there may be circumstances which couple with the power a duty to exercise it. To use the language of Lord Cairns in the case of Julius v. Bishop of Oxford. There may be something in the nature of the thing empowered to be done, some thing in the object for which it is to be done, something in the conditions under which it is to be done, something title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so”. In their Lordships' view always supposing that there is a serious point of law to be considered, there does lie a duty upon the Chief Revenue Authority to state a case for the opinion of the Court, and if he does not appreciate that there is such a serious point, it is in the power of the Court to control him and to order him to state a case.”

As such, it can be said that the power under regulation 7(8)(a)(i) is discretionary, coupled with a duty. The Supreme Court also in Shah (P.L) v. Union of India, [1989-I L.L.N 546] (vide supra), has observed in Para. 6, at page 549, as follows:

“… While doing so it was open to the Tribunal to fix a date within the period of the said three years from which the appellant should be paid the subsistence allowance at the revised rate, of course, having due regard to the date of the application also. In the alternative, the Tribunal could have asked the authority concerned to review the order.”

As such, I am of the view that the petitioner's case has to be considered for the enhancement of the subsistence allowance in the light of the regulation 7(8)(a)(i) by the respondent. I am afraid that this Court cannot grant the prayer as prayed for by the petitioner, in view of the wording of regulation 7(8)(a)(i). As such I direct the respondent to consider the case of the petitioner, taking note of this judgment and the recent, pronouncements of the Supreme Court cited supra, with regard to increase in the payment of subsistence allowance, and pass final orders within four weeks from today. The writ petition is ordered accordingly. However, there will be no order as to costs.