A civil servant under suspension is entitled to the normal subsistence allowance even after conviction by the Trial Court pending consideration of the appeal against the conviction.

Janak Raj Kotwal, J.

1. Heard. Common ground of both the sides is that the petitioner, a Government servant, was placed under suspension because of his involvement and arrest in a criminal case under section 376 RPC registered as FIR No. 77/2010 of Police Station, Mahore. It is admitted also that he had been getting subsistence allowance at the rate of 50 per cent of his salary. However, the respondents stopped the subsistence allowance after petitioner came to be convicted and sentenced in that criminal case by the trial court vide judgment dated 30.09.2016. It is not denied that petitioner has filed appeal against his conviction and sentence before this Court in Cr. A. No. 49/2016 and this Court vide order dated 18.10.2016 has ordered that petitioner shall be treated as under trial, which in effect means that the sentence has been stayed.

2. Whether payment of the subsistence allowance to the petitioner could have been stopped pursuant to and consequent upon his conviction and sentence, is the question raised in this writ petition. Such a question, however, is no more res integra in view of the Supreme Court judgment in State of Maharashtra vs. Chandrabhan, AIR 1983 SC 803. Paragraphs 20 and 23 of the judgment are important, which are reproduced:

"20. The learned Judges of the Division Bench have found in the judgment under appeal that the object and purpose of the main Rule 151 is to provide for subsistence allowance pending suspension of the civil servant and that the subsistence allowance mentioned in the main Rule and the second proviso means a bare minimum which can reasonably be provided for a civil servant who is kept under suspension and without work and therefore not entitled to full wages. If the civil servant under suspension, pending a departmental enquiry or a criminal trial started against him, is entitled to subsistence allowance at the normal rate which is a bare minimum required for the maintenance of the civil servant and his family, he should undoubtedly get it even pending his appeal filed against his conviction by the Trial Court, and his right to get the normal subsistence allowance pending consideration of his appeal against his conviction should not depend upon the chance of his being released on bail and not being lodged in prison on conviction by the Trial Court. Whether he is lodged in prison or released on bail on his conviction pending consideration of her appeal, his family requires the bare minimum by way of subsistence allowance. Subsistence allowance provided for in the second proviso at the nominal rate of Re. 1 per month is illusory and meaningless. The contention of the appellant that even the nominal sum of Re. 1 per month is subsistence allowance for a civil servant under suspension is as unreasonable as the contention of the appellant that what should be the subsistence allowance for a civil servant under suspension is for the authority empowered to frame rules under Article 309 of the Constitution to consider and that the civil servant who has entered service is bound by the second proviso. The sum of Re. 1 per month can never sustain a civil servant for even a day much less for a month.

23. Any departmental enquiry made without payment of subsistence allowance contrary to the provision for its for its payment, is violative of Article 311(2) of the Constitution as has been held by this Court in the above decision. Similarly, any criminal trial of a civil servant under suspension without payment of the normal subsistence allowance payable to him under the rule would be violative of that Article. Payment of subsistence allowance at the normal rate pending the appeal filed against the conviction of a civil servant under suspension is a step that makes the right of appeal fruitful and it is therefor obligatory. Reduction of the normal subsistence allowances to the nominal sum of Re. 1 per month on conviction of a civil servant under suspension in a criminal case pending his appeal fi