G. Chandrasekhar vs Chairman, Madras Port Trust

The petitioner has come up before this Court praying for issuance of a Writ of Mandamus directing the respondent to pay the petitioner the

enhanced subsistence allowance payable to him with effect from 4th December 1986 till date and continue to pay the enhanced subsistence

allowance till the order of suspension dated 4th September 1986 is revoked.

The petitioner who was appointed as a Traffic Manager of the Madras 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 25th June 1986. In accordance with the Proceedings of the Government of India, Ministry of Transport, the

petitioner was placed under suspension by Proceedings of the Respondent dated 4th September 1986 which reads as follow :-

Whereas it has been reported that the Central Bureau of Investigation have registered a case No. RC. 58/86 under S. 5(2) r/w. S. 5(1)(e) of P.C.

Act, 1947 against Shri G. Chandrasekhar Traffic Manager, Madras port Trust as a result of which it is found that there is a prima facie case

against Shri G. Chandrasekhar.

Shri 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 4th September, 1986, pending finalisation of the charges and action thereon by the Central Bureau of

Investigation.

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

As a review has to be made in view of F.R. 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 CBI. By letter dated

31st 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 Trust Act, 1963, and directed that the petitioner be kept under suspension pending receipt of the Report on the CBI case

registered against him, with the existing subsistence allowance.

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 4th 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 4th 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 and 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.

Notice of motion has been ordered by Sivasubramaniam, J., on 9th January 1989.

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 F.R. 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 CBI have filed charge-sheet against the petitioner on 30th December

1988 and that the Administration has also framed charges against the petitioner for disciplinary action which was served on the petitioner on 17th

February 1989. It is claimed in the counter affidavit by respondent, referring to Fundamental R. 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

the under S. 24(1) of the Major Port Trust 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 decay in completion of investigation was

also due to the petitioner not furnishing the property particulars required by the Investigating Authorities and the Administration.

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

Mr. R. Muthukumaraswamy, the learned counsel for the petitioner, refers to me the Madras Port Trust Employees'' (Classification, Control and

Appeal) Regulation, 1988 (hereinafter referred to as the ''Regulation'') framed under S. 124(1) read with sub-s(1) of S. 132 of the Major Port

Trust Act, 1963 and Regulation 7(8)(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 material 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 charge-sheet. 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. Mr. R. Muthukumaraswamy the learned counsel for the petitioner refers to

me a decision in C. Revenue Authority v. M. S. Mills A.I.R 1950 SC. 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 P.L. Shah Vs. Union of India (UOI) and Another, 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.

Replying to the arguments of the learned counsel for the petitioner, Mr. R. G. Rajan, the learned counsel for the respondent contends that the

Regulation 7(8) is similar to F.R. 53 and that the enhancement of subsistence allowance is not automatic. The learned counsel further contends that

the power under proviso to Regulation 7(8) is discretionary though he admits that the discretion cannot be exercised arbitrarily, Mr. R. G. Rajan,

the learned counsel for the respondent, contends that the Government of India by order dated 31st 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 CBI case registered

against him, with the existing subsistence allowance. The learned counsel further contends that as per S. 24 of the Major Port Trust Act, the

Central Government is the appointing Authority and under S. 25(1) of the Major Port Trust 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 subsistence allowance, being an incidental power of suspension under the proviso to S.

25(1) of Major Port Trust Act, any order passed has to be approved by the Central Government.

Mr. R. Muthukumaraswamy, the learned counsel for petitioner refers to S. 25(1) of the Major Port Trust Act which reads as follow :-

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 service 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 Clause (a) of sub-s. (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 Clause (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 Trust 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 CBI and that no

material has been placed even before this Court to show how the petitioner is responsible for that delay.

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 4th 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 follow :

(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-clause (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. Under Regulation 7(2) the order of suspension

can be made in the case of an employee referred to in Clause (a) of sub-section (1) of S. 24 of the Major Port Trust 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 administration. But I find a letter in

the file dated 20th March, 1987 written by the petitioner as a reply to the respondent''s letter dated 10th 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 CBI, 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 31st March, 1987 has extended the period of suspension

beyond the initial period of three months with the existing subsistence allowance. Even so, after 31st March, 1987 no material is placed before me

to show that the petitioner was responsible for the prolonged suspension. Actually by letter dated 31st March 1987 the Government of India

authorised the extention of the suspension period, pending receipt of the Report on the CBI case registered against him, with the existing

subsistence allowance. As such in my view, there are no material to show that the period has been prolonged which is directly attributable to the

petitioner.

The Supreme Court had occasion to consider the effect of an order of suspension and the payment of subsistence allowance in O.P. Gupta

Vs. Union of India (UOI) and Others, after referring to a case in Khem Chand Vs. The Union of India (UOI )and Others, and observed as follows

O.P. Gupta Vs. Union of India (UOI) and Others, ;

The real effect of the order of suspension as explained by this Court in Khem Chand Vs. The Union of India (UOI )and Others, 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 P. 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 R. 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 the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and Others, 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 reported in P.L. Shah Vs. Union of India (UOI) and Another, :

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 proceedings or a criminal case instituted

against him could maintain himself and his dependents until the departmental proceedings 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 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 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)

Regulation, 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 (underlining is mine). S. 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 Section 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 Mr. 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 particulars 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 1st 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.

Mr. R. G. Rajan, the learned counsel for the respondent, fairly conceded that the discretion given to the Authority in Regulation 7(8)(a)(i) has

to be exercised in a reasonable manner, not arbitrarily. The Supreme Court in C. Revenue Authority v. M. S. Mills (Supra) referred to the

principle cited in the case of Spooner v. Juddow 4 M.I.A. (323) with regard to the duty cast on the Authority, and observed at page 221 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 compulsion. 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, something in the object for which it is to be done, something in

the conditions under which it is to be done, something in the 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 lies 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 P. L. Shah v.

Union of India and another (supra) has observed page 305 as follows.

... While doing so it was open to the Tribunal to fix a date within the period of 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.