The failure to pay subsistence allowance and conduct an independent enquiry violated the principles of natural justice, leading to the setting aside of the order of dismissal.

ORDER :

Writ Petition is filed for issuance of a writ of Certiorarified Mandamus calling for the records of the 1st respondent in and by his proceedings Na.Ka.No.17588/2007/Ve.4, dated 09.11.2007, quash the same and consequently directing the respondents to reinstate the petitioner into service with all consequential service and monetary benefit.

2. The petitioner has challenged the impugned order of dismissal passed by the 1st respondent. According to the petitioner, the impugned order is liable to be set aside on the following grounds:

(i) The petitioner was not paid subsistence allowance for the period of suspension from 17.05.2002 to 09.11.2007;

(ii) The documents sought for by the petitioner were not furnished;

(iii) The 2nd respondent has not furnished enquiry report along with 2nd show cause notice;

(iv) The 1st respondent without conducting any enquiry passed the impugned order based on the domestic enquiry conducted as per the order of the 2nd respondent.

3. The learned counsel appearing for the petitioner contended that on 31.07.2008, the petitioner retired from service on attaining the age of superannuation.

4. Though the 2nd respondent entered appearance through the counsel, when the matter is taken up for hearing, there is no representation on behalf of the 2nd respondent. The 2nd respondent in the counter affidavit filed by them, denied all the allegations and stated that subsistence allowance was paid to the petitioner from 18.05.2002 to 31.03.2004 and could not pay the subsistence allowance from that date onwards due to financial constraints of 2nd respondent. All the documents required by the petitioner were furnished to him. The 1st respondent conducted enquiry and gave sufficient opportunity to the petitioner to putforth his case.

5. The learned Government Advocate appearing for the 1st respondent contended that after furnishing the documents to the petitioner, 1st respondent conducted enquiry and gave sufficient opportunity to the petitioner to putforth his case. The petitioner appeared before the 1st respondent for enquiry and admitted the charges levelled against him and paid part of the amount misappropriated, in several instalments.

6. The petitioner filed reply affidavit denying the averments made in the counter affidavit and stated that the 2nd respondent has not paid subsistence allowance as alleged in the counter affidavit, but adjusted the subsistence allowance of Rs.1,93,558/- along with 17 days salary from 01.05.2002 to 17.05.2002 amounting to Rs.2,00,500/- towards alleged misappropriation from 1998-1999 to 2000-2001 without his knowledge and consent. The 2nd respondent has not paid even a single paise towards subsistence allowance and the petitioner was put to irreparable hardship and inability to defend the case before the competent authority. In support of his contentions, he relied on the following judgments:

(i) 1999 (3) SCC 679 (Capt.M.Paul Anthony vs. Bharat Gold Mines Ltd. and another);

“30.If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. 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.

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33.Since in the instant case the appellant was not provided any subsistence allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex-parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of subsistence allowance, he could