1. The applicant was serving as a Technical Officer and in a major penalty charge-sheet issued to him, having been found guilty of the charges levelled against him in the departmental inquiry was visited with a penalty of reduction to lower post of Research Investigator vide order dated 29.11.99. Prior to the finalization of the inquiry the applicant was placed under suspension from 6.8.97 to 1.9.99. After he was visited with the major penalty of reduction to the lower post of Research Investigator in the scale of Rs. 5500-9000 for a period of three years with effect from 2.9.99, the period of suspension from 6.8.97 to 1.9.99 was regularised by the Competent Authority vide order dated 14.8.2000 and it was directed that this period be regularised as leave and since there was no E.L at his credit, the applicant was directed to apply for extraordinary leave. In the same order it was observed that since the whole period was to be treated as extraordinary leave for which no leave salary was admissible, the recovery of the subsistence allowance already paid would be made effective from the pay of the next month. Since the respondents started the recovery from next month of passing of the order, the applicant rushed to the Tribunal and moved this O.A. challenging the impugned order and praying for quashing of the recovery directed. Subsequently, the applicant has amended the O.A. and incorporated a challenge to the Govt. of India's instruction No. 2 under FR 54-B on the ground that the said instruction is unconstitutional and contravening the Article 21 of Constitution of India and going against the statutory provisions.
2. The respondents in their counter have defended the order of recovery passed against the applicant and contended that the order is consistent with the Govt. of India's No. 2 under FR 54-B and as such, cannot be termed to he illegal or invalid. They have pointed out that the applicant was under suspension from 6.8.97 to 1.9.99 and after the major penalty was imposed on him, pursuant to the inquiry conducted in the charges levelled against him, it had become necessary to regularise the suspension period. The suspension period was regularised by the Competent Authority as leave without pay or extraordinary leave, as there was no leave at his credit. When this period was considered as EOL, in view of the Govt. of India's No.2, under FR 54-B, the applicant was bound to refund the amount of subsistence allowance already paid to him. They have also contended that the representation of the applicant in respect of the recovery was sent to the Competent Authority on 29.11.2000 and his representation was under consideration, According to them, the applicant has approached the Tribunal without exhausting all the remedies and as such, the O.A. is not maintainable.
3. We have heard the learned Counsel of both the parties and carefully perused the relevant documents.
4. The factual aspects of the case of the applicant are undisputed. He was placed under suspension prior to finalization of the inquiry against him and had remained under suspension for the period from 6.8.97 to 1.9.99. He was found guilty of the charges levelled against him in the inquiry instituted against him and has been visited with the penalty of reduction to the lower post. However, the Competent Authority while regularising the period of suspension has directed that this period of suspension be treated as an extraordinary leave and the amount of subsistence allowance paid during this period to the applicant be recovered from him. According to the respondents, the Competent Authority has passed this order in view of the instructions of the Govt. of India's Order No.(2) under FR 54-B. This instruction reads as under: "A question having arisen whether in cases where the period of suspension is ordered to be treated as one spent on leave and when on conversion it is found that the greater part of the period's to be treated as extraordinary leave for which no leave salary is admissible, the recovery of the subsistence allowance already paid would he in order. The moment the period of suspension is converted into leave, it has the effect of vacating the order of suspension and it will be deemed not to have been passed at all. Therefore, if it is found that the total amount of subsistence and compensatory allowances that an officer received during the period of suspension exceeds the amount of leave salary and allowances, the excess will have to he refunded and there is no escape from this conclusion." 5. A note under this order states that these orders are issued vide G.I. M.F., U.O. No. 3409-E, IV/53, dated the 25lh April, 1953, U.O. No.320-E, IV/54, dated the 22nd February. 1954, to the Communications Division and M.F.(C's) U.O. No. 1681-C, II/54, dated the 2nd March, 1954. It is not clear whether these orders were issued by the Govt. of India under PR 54-B or under FR 54 but they are shown under FR 54-B in the Swamy's Fundamental Rules and the respondents have also considered that these orders are issued under FR 54-B. A bare reading of the FR-54 A and FR-54 B clearly suggests that these orders could not have any effect so far these provisions are concerned. FR 54-A is introduced in the Fundamental Rules on dated 14.5.1971 and has taken effect from 22.5.1971 while FR-54 B has been introduced vide GL.M.H.A. Deptt. of Personnel and A.R., Notification No. 16012/3/79, LU dated 1.10.1980. It is therefore, quite obvious that these orders issued in the year 1953 or 1954 were not in accordance with the FR 54-A or FR-54 B and cannot have effect where the provisions of FR-54 B are applicable. In fact in view of the introduction of FR-54 A and FR-54 B in the Fundamental Rules, these orders have lost their significance and cannot be made applicable. FR 54-B nowhere contemplates recovery of the subsistence allowance from the employee after the revocation of the suspension and finalization of the disciplinary proceedings though it does provide for regularisation of the suspension period and at the discretion of the Govt. servant, permits the authorities to convert the period of suspension into leave of any kind due and admissible to the Govt.
servant. Sub-rule 6 lays down as under: "(6) Where suspension is revoked pending finalization of the disciplinary or the Court proceedings, any order passed under Sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in Sub-rule (1) who shall make an order according to the provisions of Sub-rule (3) or Sub-rule (5), as the case may be." 6. Sub-rule-1 relates to the order of pay and allowances to he passed in favour of the Govt. servant for the period of suspension while Sub-rule 3 relates to the payment of the Cull pay and allowances to the Govt. servant where the Competent Authority is of the opinion that the suspension was wholly unjustified. Sub-rule 5 refers to the eases where the suspension is justified and the Govt. servant is found guilty of the charges, the same reads as under:- "In cases other than those falling under Sub-rules (2) and (3) the Government servant shall, subject to the provisions of Sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the Competent Authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the dale on which the notice has been served) as may be specified in the notice." "(8) The payment of allowances under Sub-rule (2), Sub-rule (3) or Sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.
(9) The amount determined under the proviso to Sub-rule (3) or under Sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under Rule 53." 8. A combined reading of all these rules, clearly indicates that once the Govt. servant is placed under suspension he is entitled to subsistence allowance and after the finalisation of the inquiry, if the Competent Authority finds that the suspension was wholly unjustified then he has to be paid the full pay and allowances for which he would have been entitled had he not been suspended. However, if he is found guilty, and imposed with some punishment and suspension is revoked, pending finalisation of the disciplinary proceedings, the Competent Authority is required to review the period of suspension on its own motion after the conclusion of the proceedings and to make an order of payment of such amount not being whole of the pay and allowances to which he would have been entitled, had he not been suspended after giving notice to the Govt. servant in this regard. When these provisions of FR54B are considered in the light of the earlier orders of the Govt. of India ret led upon by the respondents, it becomes quite evident that this order is not consistent with the rule position.
9. The impugned order itself also is erroneous as it speaks about the conversion of suspension period into leave and that the order of suspension would be deemed not to have been passed at all. Sub-rule 7 under FR 54-B clearly lays down that the period of suspension shall not be treated as a period spent on duly in the cases falling under Sub-rule 5i.e. where the Govt. servant is held guilty of the charges levelled against him and the suspension was not held to be unjustified.
It further provides that if the Govt. servant so desires, the Competent Authority may order that the order of suspension shall be convened into any kind of leave due and admissible to the Govt. servant. The Govt. of India's order however, proceeds on the assumption that once the suspension is converted into leave it has the effect of vacating the order of suspension and it will be deemed not to have been passed at all. Obviously, this is quite erroneous as what the rules require is to regularise the suspension period after the suspension is revoked and provides for the procedure where the suspension was wholly unjustified or where the suspension was justified. In case where the suspension is wholly unjustified Sub-rule 4 provides that the period of suspension shall be treated as a period spent on duty for all purposes but where the suspension was not wholly unjustified sub rule 5 provides that the period of suspension shall not be treated as a period spent on duty unless the Competent Authority specifically directs that it is so treated for any specific purpose. The rule nowhere provides that where the suspension was not wholly unjustified, the period of suspension shall be treated as a period spent on duty. Hence, to assume that once the suspension is converted into leave it has the effect of vacating the order of suspension and thereby considering the period of suspension as a period spent on duty for all purposes is contrary to the rule position and cannot be allowed to sustain.
10. Furthermore, the order is erroneous and contrary to the provisions of the Constitution in as much as that it compares the subsistence allowance with the salary. The Supreme Court has laid down that provisions for payment of subsistence allowance made in service rules only ensures non-violation of right to life of employee. In the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., 1999 SCC (L & S) 810, the Supreme Court has observed as under: "On joining the Govt. Service a person does not mortgage or barter away his past rights as a human being, including his fundamental rights in favour of the Government. The Government, only because it has the power to appoint, docs not become master of the body and soul of the employee. The Government by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of State Policy. The employee on taking up an employment only agrees to subject himself to the regulatory measures concerning his service, His association with the Government or any other employer, like instrumentalities of the Govt. or statutory or autonomous corporations, etc.. is regulated by the terms of contract of service or service rules made by the Central or the State Government under proviso to Article 309 of the Constitution or other statutory rules including Certified Standing Orders. 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. Provision for payment of subsistence allowance made in service rules only ensures non-violation of right to life of employee. That was the reason why this Court in the case of State of Maharashtra v. Chandrabhan Tale struck down the service rules which provided for payment of a nominal amount of Re. 1 as subsistence allowance to an employee placed under suspension." 11. The Supreme Court has clearly held that the right to subsistence allowance is a fundamental right of an employee when he is suspended by the employer. The subsistence allowance is not equaled with salary but it is only an allowance. Hence, any order which directs the recovery of such subsistence allowance has to be held to be in contravention of the provisions of Constitution and thereby liable to be struck down as unconstitutional.
12. In any case we find that the Govt. of India's order relied upon by the respondents is no more effective as it relates to the rule provision prior to the introduction of Rule 54A and 54B and therefore, could not have been relied upon by the respondents. Furthermore, admittedly no notice is served by the respondents it) the applicant prior to the issuing of the impugned order. Even Sub-rule 5 of Rule 54-B enjoins upon the Competent Authority to serve a notice to the Govt. servant prior to any decision in regard to the regularisation of the period of suspension. When no such notice is served, the order of recovery issued by me respondents deserves to be quashed and set aside.
Another significant aspect of the matter is that the Competent Authority has not applied his mind at all to the Govt. of India's order and issued the order of recovery of the subsistence allowance without considering the relevant ingredients of the order. The order speaks about the total amount of subsistence and compensatory allowance that an officer received during the period of suspension exceeding the amount of leave salary and allowance. The order permits the recovery of excess amount paid to the officer under suspension by way of subsistence and compensatory allowance admissible by way of leave salary and allowance. Hence, only if the amount of the subsistence allowance or the compensatory allowance were paid in excess of the leave salary and allowances to the applicant it was open to the respondents to order recovery of the same. It is quite obvious that the Competent Authority had misconstrued this order to mean that the subsistence allowance paid to the officer concerned can he recovered when it is (bund that he had no leave al his credit and only the extraordinary leave was admissible. We may point out that there are no Govt. instructions or rules permitting the Govt. to recover the subsistence allowance paid to an employee under suspension. The impugned order therefore, deserves to be quashed and set aside to the extent that it directs recovery of subsistence allowance from the salary of the applicant.
13. For the foregoing reasons, we allow the O.A. and quash and set aside the order of i he Deputy Conservator of Forests dated 14.H.2000 to the extent of directing the recovery of subsistence allowance paid to be applicant during the period of suspension from 6.8.97 to 1.9.99.
If any amount is recovered from the salary of the applicant by way of recovery towards subsistence allowance, the same shall be refunded to the applicant within a period of three months from the dale of receipt of a copy of (his order and if not refunded within this period, the same shall be payable with interest at the rate of 9% per annum from the dale of the expiry of three months period. The Govt.'s order No. 2 under Rule 54-B is held to be unconstitutional and ineffective. The O.A. stands disposed of with this direction. No order as to costs.