My Published Articles

SUBSISTENCE ALLOWANCE: THE LEGAL FRAMEWORK

INTRODUCTION

Despite having a robust body of law on the effect of suspension of a Government Servant and the subsistence allowance payable thereof, the bureaucratic whim, on many a time prevail over, causing irreparable hardship to the employees under suspension. A case in example is the plight of Mr. Elango,[1] a secretary of a Primary Agricultural Cooperative credit society, in Tamil Nadu, who by definition was public servant. He was placed under suspension and the subsistence allowance was not allowed. When he preferred a writ petition to the Hon’ble High Court of Madras, his petition was allowed. But the state authorities appealed against the order of the Single judge and a division bench decided the matter on 10th February 2020 that stopping subsistence allowance is a violation of right to life of the employee. The case of Mr. Elango shows, the state fought tooth and nail in the court of law to deprive its employee of the minimum subsistence during period of suspension. It is very pertinent to mention that, there are scores of decisions which say suspension is not punishment. However, stopping the subsistence allowance, on some pretext other, during the period of suspension is akin to inflict punishment without the guilt being established conclusively. To quote Hon’ble Madras High Court in the case of Mr. Elagno,

A total denial of subsistence allowance to a suspended employee, in our opinion, would be violative of Article 21 of the Constitution of India, unless it can be shown that payment of subsistence allowance is not warranted on the facts of a particular case[2]

And, Mr. Elango’s is not the only case. There are thousands of Govt. Employees in every department in the country, who are facing such problems. Many are privileged or so to say, lucky like Mr. Elango to knock the doors of High Court twice within a span of two years to get justice. Many others are not as on lucky and languish in hardship and mental agony. Is it not high time the part of the bureaucratic set up to show some more prudence and a little bit more compassion on this matter and develop a uniform Standard Operating Procedure, if not a policy framework, to deal with cases of suspension and subsistence allowance?

In the present article, the first chapter discusses the statutory rules and Government orders on suspension and subsistence allowance. For the sake of simplicity, the provisions of Fundamental Rules, 1922 and CCS-CCA rules alone will be discussed.[3] The second chapter discusses how the Supreme Court has interpreted the matter over the years and linked it to right to life enshrined under Art. 21 of the constitution. The third and the concluding chapter is prescriptive in nature and tends to suggest the requirement of a model standard operating procedure in dealing with the issues of suspension and subsistence allowance. This chapter ends with a hope for the administration to perceive grant of subsistence allowance on compassionate grounds and not as an ego tussle between the employer and the suspended employee.

CHAPTER – I

Shorter Oxford English Dictionary defines the word “subsist” as “to remain alive as on food; to continue to exist.’[4]. The word is more clearly defined as well as expanded by  United States Civil Service Code as “lodging, meals, and other necessary expenses for the personal sustenance and comfort of the traveller.”[5] Subsistence refers to the means to subsist, i.e. a means to support livelihood. A subsistence allowance means an allowance granted to somebody to make provisions to support his livelihood. The very definition shows, subsistence allowance is linked with the right of a person to live his life. Statutory provisions such as Fundamental Rules, workman compensation rules and civil service classification rules recognise grant of subsistence allowance as a duty on the part of the employer.

The term subsistence allowance first appears in the Rule no 53 of the Fundamental Rules, 1922[ hereinafter “FR”]. The FR 53 says

“A Government Servant under suspension or deemed to have been placed under suspension by an order of appointing authority shall be entitled to a subsistence allowance at an amount equal to …”

The rule further goes on to provide a standard guideline for calculating the rate of subsistence allowance. Section 10 A of the Industrial Employment (Standing Order) Act, 1946 says a workman is entitled for subsistence allowance when he is suspended by his employer pending inquiry into the complaints or charges of misconduct. The Rule 23 (v)(d) of Central Civil Service (Classification, Control & Appeal) Rules, 1965 [ hereinafter “CCS CCA Rules”] mentions the word subsistence allowance without defining it anywhere. The said rule 23 (v)(d) says subsistence allowance needs to be paid during the period of suspension. Pursuant to the CCS CCA Rules, 1965, most of the state government have framed rules for cadre control of state government employees and provide provision for the subsistence allowance during the period of suspension.

In view of the above-mentioned statutory provisions, various central government memorandums have discussed the issue of subsistence allowance in great details.  Department of Personnel & A.R. in its O.M. No. 42014/7/83-Ests.(A) dated the 18th February, 1984 has directed the contents of the FR 53 with regards to the subsistence allowance should be brought to the notice of all authorities with particular emphasis on the revision of the rate of subsidence allowance after a continued suspension of more than 90 days. Similarly, the Department of Personnel and A.R. in its OM No. 11012/10/76-Estt. (A) dated 6th October 1976 stressed upon the timely payment of subsistence allowances to the employees under suspension. In the said memorandum, the Department citing Ghanshyam Das Srivastava v. State of Madhya Pradesh[6] ordered that,

(i)t may be impressed on all authorities concerned that they should make timely payment of subsistence allowance to Government servants who are placed under suspension so that they may not be put to financial difficulties. It may be noted that, by its very nature, subsistence allowance is meant for the subsistence of a suspended Government servant and his family during the period he is not allowed to perform any duty and thereby earn a salary. Keeping this in view, all concerned authorities should take prompt steps to ensure that after a Government servant is placed under suspension, he received subsistence allowance without delay.

Further elaborating the above instructions, the Department of Personnel and Training in its OM no. 11012/17/85-Estt.(A) dated the 28th October, 1985  has ordered that after a government servant is placed under suspension, prompt steps shall be taken to ensure that immediate  action is taken under FR 53, for payment of subsistence allowance and the authorities must ensure that the government servants receives the subsistence allowance without delay and regularly subject to the fulfilment of conditions under FR 53.

 The discussion supra clearly entails the fact that the central government gives emphasis to the scrupulous compliance to FR 53 with regards to the question of subsistence allowance granted to an employee under suspension. Despite sufficient statutory provisions, and a large number of government circulars, the bureaucratic indifference in dealing such cases has been a matter of concern for the constitutional courts also. In the next chapter, the legal standpoint of the constitutional courts on this matter will be discussed.

CHAPTER- 2

Subsistence Allowance is linked to a particular job condition called suspension. Suspension is defined by DopT O.M. No. 11012/17/2013- Estt. (A) dated 2nd January 2014 as

Suspension, in the context of disciplinary proceedings, may be defined as temporary withdrawal of duties from a government servant, pending inquiry into his/ her conduct, with simultaneous reduction in pay and withdrawal of some rights/privileges.

The provisions related to suspension are found in the FR 53 and 54 as well as most prominently in Central Civil Service (Classification, Control & Appeal) Rules, 1965. All the statutory rules are equivocal that suspension is not a penalty. Yet, the courts are replete with service matter cases deciding on this very ground over the years. Through various judicial pronouncement the Supreme Court and various High Courts have reviewed the issue of subsistence allowance payable during the period of suspension and guidelines have been issued to the administrative authorities.

And during the course of time, the jurisprudence on suspension and subsistence allowance has been made clearer as well as expanded to cover a large many variety of cases. The harbinger was the R.P. Kaur v. Union of India[7], in which the petitioner tried to seek the shelter of Art. 314 (now repealed) to challenge the order of suspension. But the court for the first time very clearly held that suspension was not a punishment and the appellant’s plea was rejected. Going further the court had held that during the period of suspension the only question that remained was that of the quantum of subsistence allowance.

 The jurisprudence of subsistence allowance was given a concrete picture when the Apex Court tended to decide that the period of suspension is not a discontinuance of service. During the period of suspension, the employee remains a member of the Government Service.  Reliance may be put on Khem Chand v. Union of India[8], wherein the court had provided the real effect of suspension. The court had held that, an employee under suspension remained a member of the government service but was not permitted to work. During the period of suspension, he was paid subsistence allowance instead of salary.  The same principle with regards to the period of suspension is enunciated in The Supreme Court in State of M.P. v. State of Maharashtra[9] and O.P. Gupta Vs. Union of India & Others[10]. So, when it is established that the during the period of suspension, an employee continues to be a part of Government service, it becomes rather easy for the court to apply the FR 53 and Rule 10 of CCS CCA, 1965 rules to decide on the quantum of subsistence allowance.

The next wave of judicial decisions shows a tryst to link up subsistence allowance with the fundamental rights. The first such attempt was observed in O.P. Gupta v Union of India[11], wherein the court held:

The act of non-payment of Subsistence Allowance can be likened to slow poisoning as the employee, if not permitted to sustain himself on account of non-payment of Subsistence Allowance, would gradually starve himself to death.

The above statement very succinctly refers to the fact that, non-payment of subsistence allowance is akin to deprive a person of right to life. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.[12] the Supreme Court held:

The provision for payment of Subsistence Allowance made in the Service Rules only ensures non-violation of the right to life (Article 21) of the employee.

So how did the court establish a linkage between Art. 21 and Subsistence Allowance? In Capt. M. Paul Anthony case, the Apex Court held that, in case of non-payment of subsistence allowance, the suspended employee would be forced to remain in penury and might not undertake all necessary activities (like travelling to attend disciplinary proceeding) to put up his case in the enquiry; hence his natural rights would be violated. The case of State of Maharashtra v. Chandrabhan Tale[13] may be referred wherein the Court established that the subsistence allowance could not be a token, rather it had to be enough for a person to subsist. The court struck down the grant of subsistence allowance at the rate of RS 1.00 as a violative of Article 21 of the constitution. The same point of law inter alia came for discussion, again, in Jagadamba Prasad Shukla v. State of U.P. & Others[14], in which the court held that without a justifiable ground subsistence allowance would not be stopped (even though the petitioner had not taken the plea that he could not attend the departmental enquiry because of financial crunch on account of non-payment of subsistence allowance). The court went on to hold that the subsistence allowance paid was not a form of bounty but a matter of right for the employee.

The development of law on subsistence allowance did not stop at the theoretical level alone. The Courts gradually took up more practical questions such as, whether non-furnishing of certificate as provided under FR 53 can be a reason of stopping subsistence allowance? In Jagadamba Prasad Shukla case, the employer took the plea that the petitioner had not furnished any certificate of non–employment for claiming subsistence allowance. The Court interpreted it in a broader sense and held that, as no certificate was called from the petitioner by the employer, non-submission of the same, could not be held to be a justifiable ground for stopping the allowance. Similarly, in Anwarun Nisha Khatoon v. State of Bihar and Ors.[15], the court held that non-submission of the certificate was not a valid ground for stopping the allowance. Rather, the court ordered the wife of the petitioner (as the later had already died during suspension) to furnish an affidavit regarding non-employment of the petitioner during the period of suspension and ordered the subsistence allowance to be paid for the entire period of suspension.

The Courts have also delved upon another very pertinent and practical issue with regards to suspension. It has been the practice to fix the head quarter of a suspended employee, normally a different one from his last place of posting. What happens if the employee stops attending his designated headquarter or remains absent? Can the subsistence allowance be stopped? This point was discussed in Anwarun Nisha Khatoon v. State of Bihar and Ors.[16] wherein the court referring to Ganesh Ram V. State of Bihar[17] held that it was not necessary that the suspended employee must attend work and there was no requirement whatsoever to mark his attendance in work daily. The Court also held that, there was no rule put up by any party before the court that requires the attendance of the suspended employee. Similar case was decided in the High Court of Orissa, in the matter of Manoj Kumar Panda V. Orissa Air Products Ltd.[18] wherein the Court referring to Anwarun Nisha Khatoon case held that non-attendance at workplace would not be a reason for stopping subsistence allowance. The High Court of Orissa while quoted Chief Justice, as he was, Alladi Kuppuswamy of High Court of Andhra Pradesh as

..(t)he court fail to understand how an employee who is debarred temporarily from service, could be compelled to attend office and mark his attendance daily and also be visited with penalty if he does not mark his attendance. [19]

This leads to a very important question regarding the concept of deemed suspension and subsistence allowance payable thereof. As per Rule 10(2) of Central Civil Service (Classification & Control) Rules, 1965:

(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority –

(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;

(b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.

EXPLANATION – The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account

So, when a government employee is arrested for any offence and placed in judicial custody for more than 48 hours is, he eligible for subsistence allowance? An employee who is deemed to have been suspended, cannot take up any employment, vocation or business during the period of detention and hence eligible for subsistence allowance on furnishing a certificate thereof. And as per the ratio of the above cases, it is not mandatory for an employee to report to his workplace. Hence, presence in judicial custody will not be detrimental to the case of the petitioner. Hence, as per prevailing jurisprudence and FR 53 a suspended employee even in judicial custody is eligible for subsistence allowance. Also, a case in point is that, as per FR 54, if the suspended employee is exonerated of all charges, he is eligible to receive full pay and allowances for the period of suspension. However, this particular point in service law is most neglected. There are numerous instances wherein the suspended employ who is lodged in prison is not granted the subsistence allowance due to him. In The Registrar v M.Elango, the High Court of Madras held:

We are conscious that a possible sense of injustice or inconvenience resulting in a temporary hardship by itself cannot be a ground to claim a right bereft of the statutory provisions, but where the very sustenance is a single salaried source, a total denial thereof may result in an abrupt punishment with hardly any justification thereby violating basic fundamental rights.

Based on this finding, if the suspended employee lodged in judicial custody had no other source of income than the salary, will the stopping of subsistence allowance not be a violation of Art. 21 with respect to the family members of the employee?

CONCLUSION

The chapters above have discussed the various statutory provisions as well as the case laws on the issue of suspension and subsistence allowance. There is no dearth of statutory provisions, neither is there any lack of guidance from the constitutional courts. In fact, the courts tend to interpret any question of law in this matter with a compassionate attitude towards the employee. However, there are umpteen cases where because of bureaucratic oversight or whims, the rights of the suspended employees are violated. So, it is high time that a standard operating procedure must be prepared and circulated to all concerned. It is a fact that, the Department of Personnel and Training has published a compendium of rules and Government orders with regards to suspension and subsistence allowance. However, such a compendium is of very limited use. Instead the concerned departments should be supplied with a small set of instructions for ready reference. Besides, sensitization among the Government functionaries is necessary regarding the legal standpoint on subsistence allowance.  Every case of suspension should be reviewed in time and decision must be taken about the continuance of it and the rate of subsistence allowance payable during the period. Such a standard operating procedure will also act as a counterbalance for unnecessary continuance of period of suspension. For example, if an employee continues to remain in suspension, say for more than 180 days, he is eligible to draw an allowance of 75% of his leave salary without doing any work in the organization whatsoever. Such a practice is neither efficient nor appropriate. In this regard, Department of Personnel & A.R. O.M. no 11012/7/78- Ests. (A) dated 14-09-1978 may be perused which says,

in spite of the instructions referred to above, instances have come to notice in which Government servants continued to be under suspension for unduly long periods. Such unduly long suspension while putting the employee concerned to undue hardship, involves payment of subsistence allowance without the employee performing any useful service to the Government.

A standard operating procedure as discussed above will achieve the dual purpose of safeguarding the rights of the employee as well as ensuring efficiency in the administrative set up. Finally, the bureaucratic tendency of treating suspension period as a type of punishment needs to be strictly abhorred. The bureaucratic sub-culture in this regard needs a strict overhaul as it is violative of natural justice to the employee under suspension. If such a change of mind-set happens, then another Mr. Elango will not require to visit the High Court multiple times to get what is due to him!


[1] The Registrar vs M.Elango on 10 February, 2020 in W.A. No. 1352 of 2019 in the High Court of Madras.

[2] Id.

[3]  In any case, the different state civil service classification, control, Appeal rules are similar to the CCS CCA rules mutatis mutandis.

[4] Shorter Oxford English Dictionar, Vol.II and P. 2171.

[5] 5 USCS § 5701

[6] Ghanshyam Das Srivastava Vs. State of Madhya Pradesh (AIR 1973 SC 1183)

[7] 1964 AIR 787, 1964 SCR (5) 431

[8] 1958 SCR 1080

[9] 1977 AIR 1466, 1977 SCR (2) 555

[10] (1987) 4 SCC 328:

[11] Id.

[12] Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., Supreme Court of India (30 March 1999) arising out of civil appeal no 1906 of 1999.

[13] 1983 AIR 803, 1983 SCR (3) 327

[14] Jagadamba Prasad Shukla v. State of U.P. & Others, Supreme Court (22nd August 2000)

[15] Anwarun Nisha Khatoon v. State of Bihar and Ors, Supreme Court (19th August 2002) arising out of civil appeal no 5106 of 2002.

[16] Id.

[17] 1995 (2) PLJR 690

[18] 105 (2008) CLT 142, (2008) IILLJ 800 Ori, 2008 I OLR 287

[19] Zonal Manager, Food Corporation of India and Ors. v. Khaleel Ahmed Siddiqui, 1982 (2) SLR 779.

Standard

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s