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Judgment
K. Sampath, J.—The prayer is for punishing the Respondents for committing contempt of the orders of this Court bearing date 7.8.1998
passed in W.P. No. 5155 of 1997.
The contempt application came up for admission on 18.12.1998. The applicant was directed to serve the Counsel for the Respondents and
accordingly the counsel was served and the matter itself was heard. No doubt, the Respondents have not filed any counter but orders are passed
on the basis of the submissions made by the counsel.
The circumstances under which the contempt application came to be filed are as under:
The applicant was working as Chief Pharmacist in Madurai Corporation. During 1980-81, certain charges were framed against him. There was an
enquiry and according to him principles of natural justice were not observed. By order dated 17.11.1986, he was removed from service. His
appeal was also rejected on 2.12.1988. However, his Writ Petition W.P. No. 13403 of 1990 was allowed on 12.9.1996 quashing the order of
removal from service. The matter was remitted to the first Respondent for consideration afresh within a period of two months from the date of
receipt of the order. The Writ Appeal W.A. No. 15 of 1997 filed by the Respondents was also dismissed on 9.1.1997. Thereafter, the applicant
gave a petition to the first Respondent to reinstate him in service and comply with the directions issued in W.P. No. 13403 of 1990. The applicant
was asked to appear for enquiry on 21.11.1996 without reinstating him in service as required under Rule 8(12) of Madurai Corporation
(Discipline and Appeal) Rules, 1975 (herein after referred to as the Rules). The enquiry was conducted by the Chief Accountant. The irregularities
pointed out by the applicant were not rectified. The first Respondent passed orders dated 26.3.1997 vindictively enhancing the punishment from
removal from service to one of dismissal from service. The several representations made by the applicant before as well as during the further
enquiry to reinstate him and pay the subsistence allowance as per Rule 8(12) under the Rules were not heeded to. Thereafter, the applicant filed
W.P. No. 5155 of 1997 for a Mandamus to the first Respondent to pay the subsistence allowance from 17.11.1986 to 26.3.1997 as per Rule
8(12) of the Rules. By order dated 7.8.1998 this Court directed the first Respondent to pass orders in terms of the Rules within a period of 8
weeks from the date of the receipt or production of a copy of the order in the Writ Petition.
The applicant also preferred appeal against the order of dismissal from service passed by the first Respondent. During the pendency of the
appeal the first Respondent pressurised the applicant to withdraw the above Writ Petition for payment of subsistence allowance as per Rule 8(12).
The applicant did not oblige. The appeal was rejected. A revision petition has been filed by the applicant before the second Respondent and the
same is pending.
The applicant met the first Respondent on 3.9.1998 and served a copy of the High Court order to him. By proceedings dated 16.9.1998 the
first Respondent informed the applicant that the order of the High Court passed in W.P. No. 5155 of 1997 would be complied with after the
orders are passed in the revision petition by the Government. This amounted to flagrant violation of the High Court Order and also wilful
disobediance. The applicant caused a lawyer''s notice to be issued on 5.10.1998 requiring the first Respondent to pass orders in terms of the High
Court Order in W.P.5155 of 1997. The first Respondent on 22.10.998 passed orders refusing to comply with Rule 8(12) stating that the said Rule
would not apply to the applicant. This again is the wilful error proceeding from an improper motive and the first Respondent has not acted in a
bona fide manner. This is a deliberate attempt on the part of the first Respondent for avoiding the obeying of the order by giving wrong and
illegitimate reasons. Since the order of removal from service was set aside in W.P. No. 13403 of 1990 Rule 8(12) would apply. In reply to the
lawyer''s notice dated 5.10.1998 the first Respondent gave the following reply;
with reference to your Advocate''s notice, cited in the reference the following orders have been passed. With respect to Rule 8(12) of Madurai
Corporation''s (Discipline and Appeal) Rules, 1975. the main requirement that there should be a further enquiry after the order of the Court setting
aside the earlier order of termination of dismissal. In this case there was no further enquiry and the enquiry which was conducted is only a re-
enquiry, scrutinising the old records with reference to the same witneses to rectify the technical flaw in the original dismissal order quoted by the
Court. Also the order of the dismissal cited in reference -1 merges with of original order of dismissal in Ref. No. H2/68998/81 dated 17.11.1986.
Hence, Rule 8(12) of Madurai Corporation (Discipline and Appeal) Rules, 1975 will not apply to this case.
The above reply is nothing but wilful disobedience of the order of the Court.
According to the applicant the first Respondent did not at any time before or during the writ petition W.P. No. 5155 of 1997 contend that Rule
8(12) is not applicable. On the other hand a lot of pressure was exerted on the applicant to withdraw the Writ Petition for payment of subsistence
allowance. The original order of removal from service was quashed in W.P.13403 of 1990 and the case was remitted for further enquiry to rectify
the gross irregularities pointed out by the applicant in W.P. No. 13403 of 1990. The contention of the first Respondent that there was no further
enquiry but it was only a re-enquiry is absurd and something unheard of in the disciplinary rules. When the order of removal from service is set
aside by the Court, the person should be deemed to have been continuously kept under suspension from the date of original suspension till further
orders are passed, as per Rule 8(12). There can be no other interpretation. There is no provision in the disciplinary rules permitting the punishing
authority to call a dismissed personnel and examine him while he is out of employment. With a view to avoid obeying the High Court Order the first
Respondent is wilfully and deliberately giving wrong and untenable reasons and this is due to improper, oblique and mala fide motives. The first
Respondent is somehow attempting to defy or postpone the observance of the order. Nobody can be permitted to disobey the order of the Court
by putting forward some excuse including an excuse based on wrong advice.
It is not disputed and it cannot also be disputed that the applicant would be entitled to the payment of subsistence allowance during the period
he was kept out of employment. The question is as to the provision applicable for payment of subsistence allowance claimed by the applicant.
Pursuant to directions from this Court statements were filed by both the applicant and the first Respondent as regards the quantum the applicant
would be entitled to. As per the first statement given by the first Respondent the figure given was Rs. 68,436/-. It was pointed out that amount due
for a period of 6 months had been omitted to be included in the statement and a revised statement was filed giving the figure as Rs. 70,102/-.
According -to the applicant he would be entitled to be paid a sum of Rs. 2,71,598/-. In arriving at this figure the applicant has taken into
consideration revised scales of pay which were made applicable 10 person in the position of the applicant. Besides relying on Rule 8(12) the
learned Counsel for the applicant submitted that the applicant would be entitled to the benefits of G.O. Ms. 555 dated 10.6.1985 and G.O. Ms.
162 dated 13.4.1998.
According to the learned Counsel for the first Respondent the Rule applicable would be sub-rule of Rule 3 or G.O. Ms. 162 dated 13.4.1998
and worked out as per this sub- rule, the figure of Rs. 70,102/- arrived at is correct and the applicant cannot claim anything more.
Before proceeding further it would be worthwhile to refer to a decision of the Supreme Court in P.L. Shah Vs. Union of India (UOI) and
Another, . paragraph 6 is the relevant Paragraph. It runs as follows.
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 the 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 untill 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 condition of inflation obtaining in the country. It is further to be noted that a government servant cannot engage himself in any other
activities 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 longtime, 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. The decision on the said question no doubt depends
upon several factors relevant to the case.
Rule 8(12) of the Rule runs as follows:
Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a member of the service is set aside or declared or
rendered void in consequence of or by a decision of a Court of Law and the Disciplinary Authority, on a consideration of the circumstances of the
case decides to hold a further enquiry against him of the allegations on which the penalty of dismissal, removal or compulsory retirement was
originally imposed. Such member of a service, shall be deemed to have been placed under suspension by the appointing authority from the date of
original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.
G.O. No. 555, dated 10th June 1985 dealing with revised scales of pay Rule-3 says as follows:
Save as otherwise provided in these Rules, there shall be paid to holders of all posts in a substantive or in officiating capacity or appointed
temporarily under Rule 10(a)(i) or promoted temporarily under Rule 39(a)(i) of the General Rules for the Tamil Nadu State and Subordinate
Services Rules specified in the Schedule (including those on suspension or deputation or foreign services or leave or suspended lien) pay calculated
in the revised scale of pay.
G.O. Ms. No. 162, dated 13th April 1998 in paragraph-14 dealing with local bodies, and Khadi and Village Industries Board has, stated that
the revised scales of pay of the employees of these institutions shall be as in Schedule-to the Tamil Nadu Revised Scales of Pay Rules, 1998.
These orders are issued in exercise of the powers conferred under Sub-section (1) of Section 86 of the Chennai City Muncipal Corporation Act,
1919, u/s 106 of the Madurai City Municipal Corporation Act, 1971, u/s 108 of Coimbatore City Municipal Corporation Act 1981 in respect of
the employees of the Chennai, Madurai and Coimbatore Corporations respectively. Rule 3(2) was made in exercise of the powers conferred by
the proviso to the Article 309 to the Constitution of India by the Governor of Tamil Nadu. It runs as foliows:
Rule-3(2): Application of revised scales of pay: -Save as otherwise provided in these Rules, there shall be paid to holders of all posts in a
substantive or in officiating capacity or appointed temporarily under Rule 10(a)(i) or promoted temporarily under Rule 39(a)(i) of the General
Rules for the Tamil Nadu States and Subordinate Services Rules (including those under suspension or on deputation of foreign services or leave or
suspended lien) pay calculated in the revised scales of pay.
It is contended by the learned Counsel for the applicant that only this Rule would apply to the applicant. On the contrary, it is contended by
Mr. P. Srinivas, learned Counsel for the first Respondent that it would be only Sub-rue 8 of Rule 4 that would apply and not Rule-3(2). Sub-rule 8
of Rule 4 runs as follows..
If a Government servant is under suspension on the 1st January, 1996 or if he was discharged or reverted from a post before that date and is
reappointed to that post after that date, he shall be entitled to the revised scale of pay only from the date on which he returns to duty in the post or
from the date of his reappointment to that post.
This contention overlooks the fact that the sub-Rule speaks about a person who is reinstated. This pre-supposes that during the period of
suspension he would have drawn subsistence allowance at the revised scales of pay. That is possibly the reason why the Sub-Rule is framed in the
manner it has been done. I do not subscribe to the contention raised by the learned Counsel for the first Respondent. The Rule applicable is only
Rule 3(2) and the applicant would be entitled to be paid subsistence allowance worked out on the basis of Rule 3(2).
The next question relates to the payment of Dearness Allowance and Additional Dearness Allowance. In the statements furnished on behalf of
the first Respondents additional D.A. has been worked out only up to December 1987 and it has not been given subsequently..
For Rule 53(1) runs as follows:
Rule 53(1) A Government servant who is placed or deemed to have been placed or continues to be under suspension shall be entitled to the
following payments, namely:
(a) Subsistence allowance at an amount equal to half of the pay last drawn by the Government servant and in additional dearness allowance, if
admissible on the basis of half of the pay last drawn.
Provided that where the period of suspension exceeds six 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 six months as follows:
(i) The amount of subsistence allowance may be increased by a suitable amount, not exceeding fifty per cent of the subsistence allowance
admissible during the period of the first six 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 Government Servant;...
(b) The authority which made or which is deemed to have made the order of suspension may, if it is satisfied that the Government servant continues
to incur the expenditure for which the compensatory allowances are granted, direct that the Government servant shall be granted in addition, such
compensatory allowance as are admissible from time to time on the basis of pay of which the Government servant was in receipt on the date of
suspension as the Government may sanction by general or special order.
(c) Government servant under suspension shall be eligible for house rent allowance at the rates admissible at areas where they are ordered to stay
during suspension. Where the headquarters of a Government servant under suspension is changed on his request, he shall be eligible for the house
rent allowance at the rates admissible at the earlier head quarters or at the new head quarters whichever is less.
As regards the rate of Dearness Allowance admissible to subsistence allowance proviso (iii) under F.R.53(l)(a) says as follows;
The amount of dearness allowance shall be based on the increase or the decrease in the amount of subsistence allowance, as the case may be,
admissible under Clause (1) or (ii) above.
Government Memo No. 11097/A11-I/75-1, Finance (All-I) dated 2nd September 1973 says that the increase in D.A. shall be allowed to
Government servant who are under suspension on the crucial date of increase as admissible to other Government servants. The subsistence
allowance drawn by the Government servant under suspension shall be treated as pay for the purpose.
A tabular statement is also given in the Fundamental Rules. It runs as follows;
SUBSISTENCE ALLOWANCE PAYABLE TO THE GOVERNMENT SERVANT PLACED UNDER SUSPENSION How much amount is
paid?
1st six months After six months when
Enhanced or Reduced
Subsistance 75% of pay25% of
Allowance 50% of pay
pay
D.A. at the rales do do
applicable to the %
pay
H.R.A.,
CCA in Full & otherin Full in Full
allowance
Percentage of Gross 85% 35%
pay 65%
According to the learned Counsel Mr. S.J. Jagadev for the applicant additional D.A. is payable to the applicant and the D.A. has been worked
out at Rs. 70/- throughout, which is wrong and in support of his contention the learned Counsel relies upon G.O. Ms. No. 745 dated 18th August
1986. The learned Counsel is well founded in his submission. If the subsistence allowance and D.A. are worked out as per the rates relied upon by
the learned Counsel for the applicant, it should be taken that the figures arrived at in the statement furnished on behalf of the applicant should be
correct. It is also not disputed. Any way that is a matter for the first Respondent to satisfy himself.
The learned Counsel for the applicant also brings to the notice of the Court about G.O.(D) No. 102 dated 22.7.1992 relating to one S.
Sengamalam, Assistant Executive Engineer under suspension. As per this G.O. it is seen that the prayer of the suspended assistant Executive
Engineer for revision of subsistence allowance as per the revised rate fixed by the 4th and 5th pay commissions based on the last pay drawn at the
time of the suspension and the D.A. according to the said pay and further direction to the Respondent thereon to pay arrears of subsistence
allowance from 1.10.1984 was allowed. The Rule 4(8) of the Tamil Nadu Revised Scales of Pay Rules, 1985 and 1989 was relaxed by the
Governor of Tamil Nadu in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India so as to enable the
suspended Assistant Executive Engineers to draw subsistence allowance with effect from 1.10.1984 and 1.6.1988 respectively at the rates
admissible to him of his notional basic pay plus allowance with reference to revised scales of pay issued in G.O. Ms. No. 666 Finance dated
27.6.1989 and G.O. Ms. No. 555 Finance dated 10.6.1985. He was also given arrears of subsistence allowance with effect from 1.10.1984.
The learned Counsel for the first Respondent submitted that a similar G.O. could be got passed by the applicant. I fail to appreciate as to why
the applicant should be driven to further proceedings. The formula has already been indicated and the contention on behalf of the applicant is
accepted in toto and the amount he is entitled to has to be worked out and if the figures already given by the applicant are found to be correct, he
has to be paid the amount thus found due less the amount already paid. The first Respondent has to satisfy himself as regards the quantum on the
basis of the statements submitted by the applicant and this exercise has to be completed strictly within a period of six weeks from today. The
contempt application is disposed of accordingly.