Suspension without payment of subsistence allowance for an indefinite period is illegal and violative of the right to life under Article 21 of the Constitution of India.

JUDGMENT

Ujjal Bhuyan, J. - Rule. Rule made returnable forthwith. Heard learned Counsel for the parties finally, by consent.

2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of suspension order dated 14-12-2005 and further seeks a direction to the respondents to pay him subsistence allowance for the period of suspension along with interest.

3. Case of the petitioner as pleaded in the writ petition is that following a due process he was selected and came to be appointed as Peon in the respondent no.5 school in the year 1992. It is stated that petitioner was eligible and qualified for appointment to the post of Peon. Respondent no.5 school is being managed by respondent no.4 receiving grants-in-aid from the Government since the year 1996.

4. Proposal for approval of the appointment of the petitioner as Peon was forwarded by respondent nos.4 and 5 to the District Social Welfare Officer, Hingoli, who after due consideration granted approval by order dated 10-09-1999. District Social Welfare Officer, Hingoli i.e., respondent no.3 by subsequent order dated 26-07-2000 granted permanent approval to the appointment of the petitioner as Peon.

5. According to the petitioner, he was working sincerely and honestly as Peon in the respondent no.5 school. However, without following any due process and with a mala fide intention, respondent nos.4 and 5 terminated the service of the petitioner from the post of Peon with effect from 16-02-2002, vide order dated 16-07-2002. Petitioner has stated that the allegations made by respondent nos.4 and 5 for terminating the service of the petitioner were incorrect and those were made without following the principles of natural justice.

6. Aggrieved by the order of termination from service dated 16-07- 2002, petitioner preferred appeal before the Divisional Social Welfare Officer, Aurangabad Division, Aurangabad i.e., respondent no.2 being the appellate authority. The said appeal was registered as Appeal No.9/2004.

7. Appellate authority issued notice to respondent no.3 as well as to respondent nos.4 and 5. After hearing the matter, respondent no.2 passed appellate order dated 30-11-2005 whereby termination order of the petitioner dated 16-07-2002 was set aside with further direction to reinstate the petitioner in service. It was, however, observed that if respondent no.4 wanted to proceed against the petitioner for committing alleged misconduct then it was at liberty to initiate appropriate proceeding in accordance with law.

8. Despite the above appellate order dated 30-11-2005, petitioner was not reinstated in service immediately. Ultimately respondent nos.4 and 5 allowed the petitioner to resume his duty in the post of Peon on 13-12- 2005. Accordingly, petitioner joined the post of Peon on 13-12-2005 itself and submitted joining report.

9. Immediately on the next day i.e., on 14-12-2005, respondent no.4 issued suspension order in respect of the petitioner thereby placing him under suspension pending initiation of departmental enquiry. However, it was mentioned in the suspension order that petitioner would be entitled to subsistence allowance as admissible.

10. On 02-01-2006 respondent no.4 issued letter to the petitioner informing him that a departmental enquiry was contemplated against him in which petitioner should co-operate with the enquiry committee. However, the proposed enquiry never took off and no departmental proceedings were drawn up against the petitioner. In the meanwhile, petitioner continued to remain under suspension. However, he was not paid the required subsistence allowance.

11. When petitioner insisted upon respondent nos.4 and 5 for payment of subsistence allowance, it was shown that petitioner was working in the post of Watchman in the respondent no.5 school on contract basis and approval to such appointment was obtained from the concerned District Social Welfare Officer.

12. Petitioner has contended that such action on the part of responden