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Judgment
Madan B. Lokur, J.—The Petitioner is aggrieved by an order dated 13th February, 1998 passed by the Central Administrative Tribunal, Principal Bench in OA No. 1799/1997.
The Petitioner was an officer with the Indian Administrative Service belonging to the Union Territory Cadre posted in Arunachal Pradesh.
Certain allegations were made against the Petitioner to the effect that he had amassed property disproportionate to his known sources of income. The Petitioner was placed under suspension by the Ministry of Home Affairs by an order dated 5th March, 1986.
An order was passed on 4th April, 1986 to the effect that if the Petitioner furnishes a certificate that he is not engaged in any other employment, business or vocation, he would be entitled to subsistence allowance at the rates admissible to him. According to the Petitioner the necessary certificate was furnished by him but in spite of that, the subsistence allowance was not paid.
Departmental proceedings were initiated against the Petitioner only in June, 1989. According to the Petitioner, he did not have adequate means to defend himself, since he was not paid his subsistence allowance for about several years. Consequently, he was not able to participate in the enquiry. The result was that the enquiry proceeded against him ex parte. The Enquiry Officer then gave an ex parte report on 30th November, 1992 finding the Petitioner guilty of the allegations made against him. The Disciplinary Authority accepted the report of the Enquiry Officer and by an order dated 6th December, 1996 ordered his dismissal from service.
Feeling aggrieved by the order of dismissal the Petitioner preferred a memorial to the President but that was rejected by an order dated 19th August, 1997. The Petitioner then filed an Original Application u/s 19 of the Administrative Tribunals Act, 1985 and that came to be rejected by the impugned order. That is how the Petitioner is before us.
The first question that requires consideration is whether the Petitioner was entitled to receive subsistence allowance or not. The admitted position is that the Petitioner is entitled to receive subsistence allowance if he has furnished the requisite certificate as demanded by the Respondents. Otherwise, the Petitioner is not entitled to receive subsistence allowance.
Learned Counsel for the Petitioner has taken us through the correspondence entered into between the Government of India through the Ministry of Home Affairs, the Government of Arunachal Pradesh, the Arunachal Pradesh Industrial Development and Financial Corporation (the Corporation) as well as the Liaison Commissioner of Arunachal Pradesh in New Delhi. The purpose of taking us through the correspondence was to show and demonstrate that the Petitioner had submitted the necessary certificate but for one reason or the other, subsistence allowance was not paid to him by the Respondents. Of course, receipt of the certificate has been denied by the Respondents.
We need not reproduce all the letters that have been exchanged between the various authorities except to draw attention to three letters issued by the authorities on their own.
Firstly, our attention has been drawn to a letter dated 13th August, 1986 sent by the Government of Arunachal Pradesh to the Managing Director of the Corporation, with a copy to the Liaison Commissioner drawing attention to their letters dated 23rd July, 1986 and 29th July, 1986 respectively and to request the Managing Director of the Corporation to draw subsistence allowance of the Petitioner and send it by bank draft to him through the Liaison Commissioner in New Delhi.
Similarly, a letter dated 22nd August, 1986 sent by the Government of Arunachal Pradesh to the Managing Director of the Corporation is of some significance and this reads as follows:
I am directed to invite a reference to this Govt. letter of even number dated 13th August, 86 on the above subject and to request you to intimate this Govt. Whether the subsistence allowance of the officer have been drawn and disbursed to the officer. In this connection I am to say that the officer had intimated that he had not received his subsistence allowance from 11.03.1986, for which the officer is in great financial hardship.
It is, therefore, requested to draw the arrear and to disburse the same to the officer at early date, through Liaison Commissioner, New Delhi.
Yours faithfully,
Sd/-
(JIKOM RIBA) Joint Secretary (Appointment)
Govt, of Arunachal Pradesh, Itanagar
Date Itanagar, the 22 August, 86
There is no mention in this letter about the requisite certificate having not been sent by the Petitioner. On the contrary, the tenor of the letter is that the subsistence allowance should be disbursed to the Petitioner at an early date through the Liaison Commissioner in New Delhi.
A letter dated 16th September, 1988 has also been shown to us. This letter was sent by the Ministry of Home Affairs to the Petitioner wherein it was mentioned that the certificate, if any, left by the Petitioner "may not be traceable in Arunachal Pradesh Government" and therefore, he may submit another certificate to enable the Arunachal Pradesh Government to draw the subsistence allowance due to the Petitioner. This letter, to our mind, suggests that the Petitioner had in fact given the certificate but it was not traceable with the Arunachal Pradesh Government.
Be that as it may be, learned Counsel for the Petitioner has contended before us that in response to this letter, the certificate was once given sent to the concerned authorities but to no effect.
From the written statement filed by the Respondents before the Tribunal, it appears that the reason why the Petitioner was not paid subsistence allowance is that he had embezzled a huge amount and also that he had taken an advance of Rs. 79,941.70 from the Corporation for which he had not submitted his accounts.
We are of the opinion that this is hardly a reason for not paying the subsistence allowance which was admittedly due to the Petitioner. The embezzlement was the subject matter of a criminal case. As regards the advance amount, the Respondents could certainly have taken steps to recover that amount after due notice to the Petitioner but in the present case, the Respondents neither adjusted the advance received by the Petitioner nor did they pay the subsistence allowance, leaving the Petitioner financially stranded.
It appears that ultimately the controversy regarding payment of subsistence allowance to the Petitioner was resolved some time in 1992 when the Petitioner was paid subsistence allowance. But as mentioned above, the ex parte departmental inquiry had already been concluded by then and an adverse report given against the Petitioner on 30th November, 1992.
The Tribunal decided the Original Application against the Petitioner on the ground that since the case made out against him was of having assets disproportionate to his known sources of income, the Petitioner was not financially crippled and so he could contest the enquiry. In our opinion, this is putting the cart before the horse. The Petitioner cannot be adjudged guilty of having assets disproportionate to his known sources of income without an inquiry. On a mere allegation of this nature, the Respondents could not withhold his subsistence allowance as if he is guilty. In our opinion, the Petitioner was entitled to receive his subsistence allowance.
The second question is: Did the non-payment of subsistence allowance prejudice the Petitioner? In Jagdamba Prasad Shukla Vs. State of U.P. and Others, it was observed:
The payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance.
Elaborating this, it was held in State Government of M.P. and Others Vs. Shankarlal, that non-payment of subsistence allowance does not ipso facto result in prejudice. In other words non-payment of subsistence allowance should not be attributable to a default on the part of the delinquent and prejudice must also be shown as a matter of fact. We have already dealt with the first aspect and found in favour of the Petitioner. Regarding prejudice, we cannot lose sight of the fact that the Petitioner was not paid subsistence allowance for six years. Given the long period involved, it is quite natural that the Petitioner per se suffered prejudice, being forced to rely entirely on his capital reserves for sustenance.
We may note that learned Counsel for the Petitioner has drawn our attention to a letter dated 21st April, 1992 sent by the Petitioner to the Enquiry Officer during the course of the departmental inquiry. In this letter, the Petitioner pointed out that he had not been paid his subsistence allowance for the last six years and so was unable to participate in the inquiry. It appears that in spite of this, no steps were taken by the Respondents to pay subsistence allowance to the Petitioner and no order was passed by the Inquiry Officer to direct the Respondents to pay the subsistence allowance to him. Clearly, therefore, prejudice is writ large on the face of the record. It must also be remembered, in this context, that the right to receive subsistence allowance is a substantive right and not a procedural right.
Under the circumstances, we conclude that the Petitioner was entitled to receive subsistence allowance but it was unfairly denied to him. We also conclude that non-payment of subsistence allowance prejudiced the Petitioner and disabled him from participating in the inquiry.
The final question that we have to consider is whether, under the circumstances, what would be the appropriate order to pass. In our opinion, it would not be appropriate to remit the matter back to the Respondents for a fresh consideration or inquiry for two principal reasons. Firstly, the matter is of 1986 vintage and in our opinion it would be unjust to set the clock back by 22 years and require the Petitioner to face a departmental enquiry all over again. Secondly, and more importantly, the prosecution launched against the Petitioner has failed because no sanction was granted for his prosecution. Although this may be a technical success, it is a fact that we must take into consideration for deciding whether the Respondents should be allowed to reopen the issue. In our opinion, it would be appropriate to give a quietus to the entire issue for these reasons.
We are not in agreement with the view of the Tribunal to the contrary and therefore we set aside the impugned order dated 13th April, 1998 passed by it.
The writ petition is allowed with consequential benefits.