The payment of subsistence allowance is a matter of right and not a bounty, and the right to life is violated if subsistence allowance is not paid.

ORDER :

(Ananda Sen, J.)

1. This intra-Court appeal under Clause 10 of the Letters Patent appeal has been filed by the State of Jharkhand challenging the order/judgment dated 22.12.2021 passed in W.P.(S) No. 5946 of 2014, whereby, the learned Single Judge has partly allowed the writ petition setting aside the order of termination dated 17.2.2012 as well as the appellate order dated 05.02.2014 and remitted back the matter to the Disciplinary Authority to pass afresh order with a direction to pay the subsistence allowance to the legal heirs of the deceased employee original writ petitioner.

2. The original writ-petitioner was a constable in the District Police Force. He was dismissed by the Discipline Authority, after conclusion of a departmental enquiry, vide order dated 17.2.2012 as contained in Memo No. 301. The departmental appeal was also dismissed on 5.2.2014 vide Memo No. 121.

3. Challenging the aforesaid two orders, the original writ petitioner (employee) preferred W.P.S No. 5946 of 2014. During pendency of the writ petition, the original petitioner died. Thereafter, his legal heirs, who are the present respondents in this appeal, were substituted.

4. The learned single Judge vide order dated 22.12.2021 partly allowed the writ petition by setting aside the order of termination dated 17.2.2012 and the appellate order dated 5.2.2014 and remitted back the matter to the Disciplinary Authority to pass a fresh order after verifying the record, specially Annexure-B/1 to the supplementary counter affidavit dated 2.8.2021 (29.7.2021).

5. We have heard the learned counsel for the appellant-State and the respondents and have perused the writ petition and the memo of appeal along with documents, filed therein.

6. The original writ petitioner was appointed as a constable on 2.3.1977. He was chargesheeted departmentally vide Memo No. 1529 dated 17.9.2018. He replied to the said chargesheet. As per him, the first three charges relate to unauthorized absence and previous misconduct, for which, he was already punished in separate departmental proceeding. So far as other two charges are concerned, these charges also relate to unauthorized absence and the fact that he was an accused of Jagdishpur P.S. Case No. 86 of 1991.

7. It was the defence of the writ petitioner that in the criminal case, which was referred in the chargesheet, he has been acquitted. Thus, there was no basis to initiate the proceeding. It was his case that Charge Nos. (iv) and (v) are interconnected.

8. In the departmental proceeding, the Enquiry Officer found the writ petitioner to be guilty of the charge framed and thereafter, he was dismissed from service. The departmental appeal of the writ petitioner was also dismissed.

9. In the writ petition, the learned Single Judge considered the admitted fact that the subsistence allowance, during the period when the original writ petitioner was kept under suspension, was not paid. This fact has also been admitted by the learned Addl. Advocate General during the course of argument before us.

10. The Hon’ble Supreme Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Another reported in (1999) SCC (L&S) 810 has held that the payment of subsistence allowance is a matter of right and not a bounty. If a employee is not paid the subsistence allowance, he is not permitted to sustain himself and thus he would gradually be starved to death. Thus, the learned Single Judge has held that the right to life, so far as the original writ petitioner is concerned, is violated, as subsistence allowance was not paid.

11. Further, the learned Single Judge found that so far as Charge Nos. 1 to 3 are concerned, the original writ petitioner was already punished earlier and Charge Nos. 4 and 5 have become infructuous, as on the date of issuance of chargesheet, the original writ-petitioner was already acquitted by the Division Bench of Patna High Court in criminal case. Thus, the only charge which remains for consideration is of unau