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Judgment
This Writ Appeal has been filed by the appellant against the order passed by the learned Single Judge dated 23.08.2013 in W.P. No.23337 of 2013.
The appellant has filed the writ petition seeking direction to the respondents to pay her full backwages for the suspended period from 20.04.2005 to 12.12.2007 excluding the subsistence allowance or without deducting or adjusting subsistence allowance drawn by the petitioner during the suspended period according to Section 2(rr) of the Industrial Disputes Act, 1947.
The case of the appellant before the learned Single Judge was that when she was working as Revenue Inspector in Avadi Municipality, disciplinary proceedings was initiated against her. She was placed under suspension from 20.4.2005 to 12.12.2007. After enquiry, a final order dated 29.05.2012 was passed by the second respondent / the Commissioner of Municipal Administration, imposing stoppage of increment for one month without cumulative effect. It was further observed that the penalty will not affect the pension of the individual. The second respondent by further order dated 28.03.2013 directed to regularize the period of suspension from 20.04.2005 to 12.12.2007 and to treat the same as duty period and a further direction was given to the third respondent to draw and disburse the arrears due to the petitioner for the regularized period. The petitioner claims that full salary should be paid to her without deducting or adjusting the subsistence allowance paid during the suspended period as per Section 2(rr) of the Industrial Disputes Act, 1947.
After hearing both sides, the learned Single Judge dismissed the writ petition holding that the order of punishment and the order of regularization passed by the second respondent have not been challenged by the petitioner and that the judgments relied on by the petitioner never stated that the Government servant who suffered punishment is entitled to full wages for the period of suspension without deducting or adjusting subsistence allowance.
Aggrieved by the said order, the petitioner has filed this writ appeal. The ground raised in the writ appeal is that the period of suspension was directed to be treated as duty period as per Fundamental Rules 54-B-1(1). The Government also issued a letter to the Commissioner, Thiruvallur Municipality to disburse the arrears due to the petitioner. The wage does not include subsistence allowance. When the suspension period is regularized and treated as duty period and ordered for payment due to the individual, the Fundamental Rules 54-B1(1), (3), (4) and (9) must be followed. Thus, the appellant submits that the order of the learned Single Judge may be set aside.
In support of the contention that the subsistence allowance cannot be considered to be wages and it would not amount to wages, the learned counsel for the appellant relied on decisions of the Karnataka High Court in E.S.I.C. Vs. Management of Kirloskar Systems Ltd., and Karnataka Central Cooperative Bank Ltd. Vs. Karpi, and a decision of the Orissa High Court in Orissa Road Transport Company Ltd. Vs. Narayan Parida and Another, .
The learned counsel also relied on a decision of the Central Administrative Tribunal, Allahabad in Madhav Prasad Chaudhary Vs. Union of India and others [(1991) 16 Administrative Tribunal Cases 786] to contend that the appellant is entitled to full salary and other benefits for the period of suspension.
The learned counsel for the appellant also relied upon the following judgments in support of his contentions:
(i) Decision of the Patna High Court in Syed Ali Qambar Vs. State of Bihar and Others
(ii) Decision of this Court in Managing Director, Tamil Nadu Poultry Development Corporation Ltd. Vs. G. Jeelendran and Another, .
(iii) Andhra Pradesh High Court decision in Kothri (Madras) Ltd. Vs. Second Additional Judge-cum-appellate Authority and Others, .
The case of the appellant before the learned Single Judge was that the appellant is entitled to full wages under Rule 54-B-1 of the Tamil Nadu Government Fundamental Rules, without deduction of subsistence allowance. The learned Single Judge has negatived the claim on the ground that the authorities has discretion to deny even the full backwages. However, in this case, the appellant has been granted full backwages and allowances after deducting / adjusting the subsistence allowance already paid. The learned counsel contends that the subsistence allowance is not a part of the pay as held in several decisions. The same cannot be adjusted or deducted from full pay and allowances.
Rule 54-B-1(1), (3), (4), (8) and (9) of the Tamil Nadu Government Fundamental Rules reads as under :
54-B-1.(1)When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation or compulsory retirement while under suspension, the authority competent to order reinstatement shall consider and make a specific order--
(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement on superannuation or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
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(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled, had he not been suspended :
Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation (within sixty days from the date on which the communication in this regard is served on him) and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.
(4) In a case falling under sub-rule (3), the period of suspension shall be treated as a period spent on duty for all purposes.
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(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.
Having heard the learned counsel for the appellant and examined the documents produced before the learned Single Judge as well as before us, we are of the view that the contention of the appellant that the appellant is entitled to full pay and allowances, without adjusting subsistence allowance, has no merit. If the suspension period is revoked or the employee is reinstated after suspension without any punishment, the employee is entitled to full pay and allowances on the basis that the period of suspension be treated as a period spent on duty for all purposes. This clearly indicates that the employee shall be entitled to pay and allowances, which he would have drawn, had he not been suspended during the period. If the contention of the appellant is accepted that the appellant is entitled to full pay and allowances in addition to subsistence allowance, the appellant would get more amount than what was admissible to her during her service. The aforestated fundamental rule clearly provides that the period of suspension in case of revocation or reinstatement shall be treated as a period spent on duty. The entitlement of the employee to full pay and allowance is based on the principle that the period of suspension which has been subsequently revoked and employee has been directed to be reinstated, be treated as a period spent on duty and as such the employee is not entitled to full pay and allowance excluding the subsistence allowance. Thus, the contention of the appellant cannot be countenanced.
The second contention that the subsistence allowance is not a part of pay is misconceived. There are certain allowances as provided even under the provisions of the Fundamental Rules which are part of pay, like compensation allowance granted to technical workers, a special pay or pay granted in view of personal qualifications sanctioned to the post, personal pay as defined under Chapter II, Definitions of the Fundamental Rules. However, there are certain allowances, like City allowances, Hill allowance, Officiating allowances which may not form a part of pay. Even in case of suspension, an employee is entitled to House Rental Allowance, which cannot be minimised even during suspension period. The subsistence allowance is not an allowance in legal sense, but part payment of pay during the period of suspension as is clear from the provisions of Rule 53 of the Fundamental Rules.
Reliance of the appellant in E.S.I.C. case (cited supra) is not applicable to the facts of the present case as the issue involved therein was whether contribution was payable by the employer with regard to the subsistence allowance of the employee under the provisions of the Employees State Insurance Act, 1948. In the case of Orissa Road Transport Company Ltd. (supra), the issue was under the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947. In case of Karnataka Central Cooperative Bank Ltd. (supra), the learned Single Judge has considered the revision of wages under the provisions of Section 15(2) of the Payment of Wages Act, 1936, wherein it was held that the subsistence allowance was not paid for the services rendered. In case of Kothari (Madras) Ltd. (supra), the issue involved was deduction of wages when the employee was prevented from attending duty. All other cases cited are irrelevant to the facts of the case.
The appellant relied on Section 2(rr), definition clause of the Industrial Disputes Act, 1947, which deals with wages. It clearly provides that ''wages'' means all remuneration payable to a workman in respect of his employment or work done in such employment and includes such allowances (including dearness allowance) as the workman is for the time being entitled to; the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles; any travelling concession; any commission payable on the promotion of sales or business or both, but does not include any bonus; any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force; and any gratuity payable on the termination of his service.
It does not grant any benefit to the appellant, firstly, on the ground that it does not stipulate that the subsistence allowance is excluded from ''wages'' and secondly, the appellant has not claimed the benefit as a workman under the provisions of the Industrial Disputes Act, 1947.
For the reasons mentioned herein-above, we do not find any error in the order of the learned Single Judge sought to be impugned in this writ appeal. Thus, the writ appeal is dismissed at admission stage itself. Consequently connected miscellaneous petition is closed.