1. This special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment of a learned Single Judge of this Court dated March 27, 1985, by which the respondent's (Tarsemlal) writ petition was allowed, his removal from service was set-aside and directions were issued restraining the appellants from initiating a fresh inquiry against him on the same charges.
2. Briefly recounted, the relevant facts are that the respondent Tarsemlal (hereinafter referred to as 'the petitioner') presented a writ petition with the averments that he was initially appointed as Lower Division Clerk in the Ministry of Food and Agriculture, Government of India by the then General Manager of the Central Mechanised Farm and was confirmed in due course. His services were lent on deputation to the State Farms Corporation of India Ltd. (for short, 'the Corporation'). In 1972, he was working as the Upper Division Clerk in the Central State Farms of the Corporation at Suratgarh (Rajasthan). He proceeded on two days' earned leave from November 21, 1972 to November 22, 1972, He however, did not joint duty on November 23, 1972 and remained unauthorisedly absent from duty from November 23, 1972 to May 8, 1973. The management took it a case of gross misconduct on his part and initiated a domestic inquiry against him. By the order Annexure 2 dated September 8 1973, he was placed under suspension and his Headquarters were fixed at Suratgarh, where he was directed to remain present. On July 24, 1973, he was issued charge-sheet Annexure 5, which reads as under:
That the said Shri Tarsem Lal. UDC, while functioning as Upper Division Clerk proceeded on 2 days earned leave from 21-11-72 to 22-11-972 and remained unauthorisedly absent from duty from 23-11-1972 to 8-5-1973 and has committed gross misconduct by absenting himself deliberately, wilfully and unauthorisedly.
The petitioner refuted the charge and submitted that on account of the serious ailment of his wife, he could not join duty on November 23, 1972 and remained in his village to attend her. He sought a change of his Headqurters from Suratgarh to his home town by his various letters to the Director of the Farm, but the Director refused to change his Headquarters. The petitioner also prayed for the payment of subsistence allowance to him payable to a suspended employee under the relevant provisions. The management refused to pay him subsistence allowance and passed orders that no subsistence allowance will be paid to the petitioner for the period of his absence from the Headquarters. The petitioner did not attend the domestic inquiry and as a result, it was conducted ex-parte against him. The inquiry officer held him guilty of misconduct of the charge and submitted his report to the Director. The Director came to the conclusion that the penalty of removal from service be imposed on the petitioner. He, therefore, issued a show cause notice to the petitioner as to why the aforesaid penalty be not imposed on him. The petitioner submitted a representation against the proposed penalty stating therein that the inquiry was not conducted in a fair and impartial manner and he could not attend it because no subsistence allowance was paid to him Thus, a fair opportunity to defend himself was denied to him by the management. The Director, by his order Annexure-15 dated May 21, 1975, imposed the penalty of removal from service on the petitioner. The petitioner went in appeal which was dismissed by the Joint Secretary to the Government of India, Food and Agriculture Ministry, somewhere in 1976. The petitioner thereafter filed the writ petition challenging his removal from service.
3. In the writ petition the main ground by him is that since he was not paid subsistence allowance which the managemant was obliged to pay to him during his suspension period he could not attend the inquiry. He was a poor-man with no means. His wife was seriously ill. Thus, he was deprived of the reasonable opportunity to defend himself. The inquiry was, thus not fair and impartial It was further submitted that the subsistence allowance could not be denied to him on the ground that he did not remain at the Headquarters at Suratagrh. He applied for a change in his Headquarters from Suratgarh to his home town due to the serious illness of his wife but the management refused to accept his request. In the return filed by the Corporation, all these facts were admitted, but the stand was taken that the petitioner was bound to be at the Headquarters and not to leave it without the permission of the management. Since he did not remain at the Headquarters and disobeyed the order passed in that connection, the non-payment of subsistence allowance to him was perfectly justified. It was made clear to the petitioner by the management that subsistence allowance could be paid to him only when he remained at the headquaters Suratgarh.
4. The learned Single Judge took the view that if a person is suspended, he must be paid subsistence allowance, otherwise the suspended official cannot attend the inquiry because of his financial restrains. He, therefore, set-aside the petitioner's removal and looking to the nature of the misconduct, passed the directions as mentioned at the very out-set.
5. We have heard the learned Counsel for the parties and perused the record.
6. The facts are not in dispute that the petitioner was making repeated requests for change of his Headquarter from Suratgarh to his home town on the ground of serious ailment of his wife who was suffering from hysteria and his requests were turned down by the management. Reference in this connection may be made to Annexure 7 dated August 1, 1973 and Annexure 8 dated September 4, 1973 issued by the management to the petitioner. By letters Annexures 10 and 11, the petitioner requested the management to pay him the subsistence allowance. It was expressly mentioned by him in these two annexures that in case the subsistence allowance is not paid to him and as he was a hard-pressed poor person, he would not be able to attend the inquiry to defend himself. His request for change of Headquarters from Suratgarh to his home town made from time to time, was also turned down by the management as is revealed by Annexure 7 and Annexure 8.
7. It was contended by the learned Counsel for the appellants that the managment has powers to fix the headquarters of a suspended employee. The payment of subsistence allowance was to be made to the petitioner only when he remained at his Headquanrters at Suratgarh. The position was made clear to him by Annexure 7 and Annexure 8 that no subsistence allowance would be paid to him for the period of his absence from the Headquarters at Suratgarh. it was argued that in the context of this position, the view taken by the learned Single Judge that subsistence allowance was wrongly denied to the petitioner, is not correct. It was, on the other hand, contended by Mr. Mridul learned Counsel for the respondent(Tarsemlal that subsistence allownce could not be denied to the petitioner simply on the ground that he did not remain at the Headquarters at Suratgarh. It was argued that the petitioner had made repeated requests to the management to change his Headquarters from Suratgarh to his home town. The management had powers to change the Headquarters. In not allowing the requests of the petitioner for change of Headquarters, the management acted with malafide. We have taken the respective submissions into consideration.
8. The inquiry against the petitioner was conducted under the Central Civil Services (Classification, Control and Appeals) Rules, 1965 'the Rules' hereinafter). Rule 10 of the Rules empowers the concerned Authority to place an employee under suspension. Regarding the Headquarters of an employee under suspension, the Government of India has issued instructions. G.I.M.H. Letters No. 39/59/54 Estt (A) dated February 25,1955 reads as under.
(2) Change of headquarters during suspension: An Officer under suspension is regarded as subject to all other conditions of service applicable generelly to Government servants and cannot leave the station without prior permission. As such the headquartors of a government servant should be normally assumed to be his last place of duty. However, where an individual under suspension requests for a change of headquarters there is no objection to a competent authority changing the headquarters if it is satisfied that such a course will not put Government to any extra expenditure like grant of travelling allowance etc. or other complications.
This Instruction, no doubt requires that the employee under snspension cannot leave the Headquarters without prior permission. But at the same time it is clear from a bare reading of that where the suspended employee requests for a change of headquarters, it should generally be allowed provided the government is not burdened with extra expenditure like grant of travelling allowances etc.
9. In the instant case, the petitioner had applied for change of his headquarters from Suratgarh to his home town as his wife was under serious ailment of hysteria His request for change of headquarters was turned down without assigning any reasons, as is revealed from orders Annexure 7 and Annexure 8. It has not been mentioned in Annexure 7 and Annexure 8 that a change in the petitioner's headquarters will put the government to any extra expenditure like grant of travelling allowances etc. The management was therefore, not justified in turning down the request of the petitioner for change of his headquarters from Suratgarh to his home town,
10. It is a se tied position in law that a suspended employee is not required to work. A view was expressed by the Calcutta High Court in N.N. Bhatachariya v. State of West Bengal (1962) I.L.L.J. 317 and S.K. Chatopadhiyaya v. State of West Bengal 1973 (2) S.L.R. 277 that an employee under suspension is not on duty and there cannot be any conceiveable reason to keep him confine within the limitation of the jurisdiction of the headquarters, and thereby eliminate his freedom of movement Doing so during inquiry would amount to confinement and punishment. We, however, express no opinion on this point as we are of the view that the managment was not justified in not allowing the request of the petitioner to change his head quarters from Suratgarh to his home town.
11. Regarding the payment of subsistence allowance, the provision is contained in fundamental rule 53. It would be useful to reproduce the relevant provisions of rule 53; which read as under:
(53)(1) A Government Servant 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--
(i) ...
(ii) in the case of any other Government Servant-
(a) a subsistence allowance at an amount equal to the leave salary which the Government Servant 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:
(2) No payment under Sub-rule (1) shall be made unless the Government Servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation:
12. Rule 53(1) obligates the employer to pay subsistence allowance to the suspended employee. The payment can be withheld under Sub-rule (2) only on the ground that the Government Servant has failed to furnish a certificate that he is not engaged in any other employment, business, profession or vocation. The non-payment of subsistence allowances cannot be justified or excused on the ground that the employee had not remained at the headquarters. Thus, the nonpayment of subsistence allowance to the petitioner was infected with malice. The non-payment of subsistence allowance to the petitioner cannot be justified on any ground. The first contention raised on behalf of the appellants, thus, fails.
13. It was next contended that the inquiry conducted against the petitioner should not have been quashed on the ground that the petitioner could not attend the inquiry on account of the non-payment of subsistence allowance to him. We again find no substance in the contention as the matter has been finally decided by their Lordships of the Supreme Court. In Ghanshyam Das Shrivastava v. State Of Madhya Pradesh . (1973) 1 SLR 636, a Government Servant was put under suspension pending departmental inquiry against him. Suspension allowance was not paid to him during the inquiry. The Government Servant did not attend the inquiry on account of non-payment of subsistence allowance. The inquiry was conducted ex-parte and the penalty of dismissal from service was imposed on him. Their Lordships took the view that non-payment of suspension or subsistence allowance during departmental inquiry was not justified. Since he did not attend the departmental inquiry on account of the non-payment of subsistence allowance, he stood deprived of reasonable opportunity of defending himself in the inquiry proceedings. The dismissal was set-aside.
14. Recently in Fakirbhai Pulabhai Solanki v. Presiding Officer , it was held that if no subsistence allowance is paid to the employee under suspension, it would mean the denial of a reasonable opportunity to him to defend himself in the proceedings. Such denial leads to violation of principle of natural justice and consequently vitiate the entire proceedings. The contention of the appellants that the inquiry does not stand vitiated on account of non-payment of subsistence allowance to the petitioner is thus, barren and bizarre.
15. The last contention raised is that the directions of the learned Single Judge not to re-initiate the departmental inquiry against the petitioner on the same grounds are not proper and justified. The management should be given a choice to initiate or not initiate a fresh inquiry against the petitioner. The right to initiate the departmental inquiry should not be curtialed long back in 1973 i.e, nearly 13 years ago. The charge was that of unauthorisedly absence from duty. Looking to the nature of charge, the view taken by the learned Single Judge appears to be just and proper.
16. No other contention was raised.
17. For the reasons discussed above, we find no force in this appeal. The appeal is consequently dismissed and the parties are left to bear their own costs.