Non-payment of subsistence allowance during the period of suspension cannot be used as a ground to challenge the result of departmental proceedings if the absence of the petitioner did not contribute to the prolongation of the inquiry.

S.N. Jha, CJ.-This Special appeal arises from S.B. Civil Writ Petition No. 3027/1983. Bhanwar Lal Soni (hereinafter referred to as the petitioner) filed the writ petition for quashing the order by which he had been removed from service as a measure of punishment in a disciplinary proceedings on charges. The punishment was challenged on the ground that on account of non-payment of allowance during the period of suspension, he could not effectively defend himself in the proceedings. The respondents took the stand that the petitioner was not present at the headquarter fixed during suspension and as such he could not take the plea of non-grant of subsistence allowance as a ground to challenge the result of departmental proceedings.

2. The learned Single Judge in the Judgment impugned upholding the stand of the respondents observed that when an employee is suspended, he does not become a free bird, and he does not get a licence to remain away from the place of headquarter. In view of the admitted position that the petitioner was not present at the headquarter, the learned Single Judge rejected the case of the petitioner holding that non-payment of subsistence allowance did not vitiate the order of punishment and accordingly, dismissed the writ petition.

3. Counsel for the appellants too a fair stand. He submitted that the petitioner died during pendency of the writ petition on 10.03.1989. The appellants hereinafter were substituted in his place as his legal representatives. On account of his death, even if another view is taken and it is held that on account of non-payment of subsistence allowance the petitioner was prevented from effectively participating in the disciplinary proceedings vitiating the order of punishment, at this stage, the matter cannot be remitted back for fresh inquiry, which in the ordinary course would have been the consequence of such a finding. In the circumstances, the appellants would be satisfied if a direction is issued to the respondents to pay the legal dues of the petitioner towards subsistence allowance to the appellants.

4. Rule 13 of the of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (in short CCA Rules) provides for suspension of a Government servant (a) where a disciplinary proceedings against him is contemplated or is pending, or (b) where a case against him in respect of any criminal offence is under investigation or trial. Rule 53 of the Rajasthan Service Rules (in short RSR) provides for payment of subsistence grant. It lays down that a Government servant under suspension shall be entitled to among other things to subsistence allowance at an amount equal to the leave salary which he would have drawn if he had been on leave on half pay and in addition dearness allowance based on such leave salary. The rule lays down the methodology of computation of subsistence allowance which it is not necessary to notice for the purpose of this case.

5. It is relevant to mention here that the State Government has issued circulars and instructions from time to time to give effect to the provisions relating to suspension and payment of subsistence allowance. The instructions are contained in Appendix-I to the CCA Rules published on behalf of the State of Rajasthan. Para 3 thereof deals with the presence of suspended Government employees at their headquarter during the period of suspension. Counsel referred to Para 4, particularly Circular No. F.6(75) Apptts./A-III/69, dated 22.05.1970. This circular was issued on reference as to whether Government servant under suspension who leaves headquarter without permission is entitled to subsistence grant for the period of absence. The Government clarified the position as under:-

"The above exposition clearly shows that subsistence grant can not be refused altogether to a Government servant under suspension in any circumstances may warrant. The absence from Headquarters during suspension has two fold effect i.e. it may not contr