IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 20TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.2869 OF 2018 (S-RES) BETWEEN:
MAHATMA GANDHI MEMORIAL EDUCATION SOCIETY, VIII CROSS, II MAIN, SS PURAM, TUMAKURU-572102.
REPRESENTED BY ITS SECRETARY DODDANANJAIAH.
... APPELLANT (BY SRI. M VINAYA KEERTHY, ADVOCATE) AND:
1. S.S. BASAVARAJ AGED ABOUT 42 YEARS, SON OF SHESHEGOWDA, SRI SHILA NILAYA, KEMPEGOWDA ROAD, AMARAJYOTHINAGAR, TUMAKURU-572102.
2. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF EDUCATION, M S BUILDING, VIDHANA VEEDHI, BENGALURU-560001.
3. DIRECTOR PRE-UNIVERSITY EDUCATION DEPARTMENT, 18TH CROSS, MALLESHWARAM, BENGALURU-560003.
4. DEPUTY DIRECTOR DEPARTMENT OF PUBLIC INSTRUCTION, GOVERNMENT OF KARNATAKA, TUMAKURU-572101.
... RESPONDENTS (BY SRI.S S MAHENDRA, AGA. FOR RESPONDENT Nos.2 TO 4) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 19/03/2018 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION No.28441/2015.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 19.03.2018 passed by the learned Single Judge in W.P. No.28441 of 2015, by which the petition was disposed off with certain directions, the 4th respondent is in appeal.
2. There is a delay of 164 days in filing the appeal.
However, the learned counsel for the appellant has addressed the arguments on merits.
3. The petitioner filed writ petition seeking a mandamus to the 4th respondent to implement the order dated 11.11.2014 passed by the 2nd respondent – Director of Pre-University Education, and order dated 28.11.2014 passed in appeal by the 3rd respondent - Deputy Director, Department of Public Instruction, Tumakuru, to implement the order dated 20.02.2015. In terms of the order dated 11.11.2014 the 2nd respondent directed the 4th respondent to pay subsistence allowance to the petitioner. In terms of the order dated 28.11.2014 the 2nd respondent - Deputy Director of Pre-University was appointed as drawing and disbursing officer by the 4th respondent and vide Annexure-H dated 20.02.2015, the petitioner was directed to be reinstated into service. The 4th respondent – Management had also filed writ petition No.55491 of 2014 challenging the above orders passed by the 2nd respondent. Several other employees had also filed writ petitions challenging the action of the 4th respondent - Management. All the writ petitions filed by the Management as well as the employees were clubbed together and were disposed off by a common order. The petitioner was suspended with effect from 28.02.2014 pending enquiry in exercise of power under Rule 28 (2) of the Karnataka Pre-University Education (Academic Registration, Administration and Grant-in-Aid etc.) Rules, 2006 (for short ‘the 2006 Rules) r/w Rule 10 (1)(d) of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short ‘the 1957 Rules’). On appeal filed by the petitioner, the 2nd respondent directed the 4th respondent to pay subsistence allowance during the period of suspension and by order dated 20.02.2015 Annexure-H the petitioner was directed to be reinstated into service. Taking note of the facts and circumstances of the case and the contentions raised by the parties, the learned Single Judge passed the following order :-
“9. In that view, it is ordered that:
(1) The Management shall pay the Subsistence Allowance to all these Employees concerned. The current subsistence allowance shall be paid forthwith and be continued to be paid in future till the conclusion of the inquiry.
(2) In so far as the arrears of the subsistence allowance is concerned, it is ordered that the same shall be calculated and be paid to each of the employees within the outer limit of three months from this day.
(3) It is further ordered that if the arrears is not paid within the said period of three months, the suspension orders shall stand automatically revoked and it shall be deemed that the employees concerned shall stand re-instated into service though the Management would have the right to continue and conclude the inquiry against the employees concerned in these petitions which they continue to serve.
(4) It is also ordered that the inquiry initiated against the employees concerned, shall be concluded in an expeditious manner, but in any event, within the outer limit of six months from this day.
(5) It is further clarified that on the suspension standing revoked and deemed re- instatement coming into effect, in the manner as indicated above, if no specific orders are passed by the Management and the duties are not assigned to the employees concerned, even in such an event, they would become entitled to all benefits including the salary as if they were in actual service.
In terms of the above, all these petitions stands disposed of.”
Aggrieved by the same, the 4th respondent management is in appeal.
4. Heard the learned counsel for the appellant and learned Government Advocate for respondent Nos.2 to 4. Perused the appeal papers.
5. Learned counsel for the appellant submits that the 2nd respondent directed the 4th respondent to pay subsistence allowance without looking into the aspect as to whether the petitioner is residing within the head quarters or whether the petitioner has left the head quarters without intimation. Further he contends that if at all, the petitioner is entitled for subsistence allowance, it is for the Government to pay the same as it is an aided institution.
6. On hearing learned counsel for the appellant and on going through the appeal papers, we are of the view, that the learned Single Judge, in the facts and circumstances of the case has passed an equitable order, which needs no interference. The only grievance made out by the appellant is that the learned Single Judge has directed to pay subsistence allowance without examining the aspect as to whether the petitioner is residing in the head quarters or whether he has left the head quarters without intimation or prior permission. It is an admitted fact that by order dated 28.02.2014 the petitioner was suspended by the 4th respondent – Management in exercise of power under Rule 10(1)(d) of the 1957 Rules r/w Rule 28(2) of 2006 Rules. The order of suspension itself makes it clear that the petitioner would be entitled for subsistence allowance as per Rule 98 of Karnataka Civil Services Rules, 1958, which reads as follows:-
“[98(1) A Government servant who is placed or deemed to have been placed or continues to be under suspension shall be entitled to the following payments, namely:-
(a) Subsistence allowance, at an amount equal to the leave salary which the Government servant would have drawn if he had been on leave on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary, and (b) House rent allowance and city compensatory allowance admissible from time to time on the basis of pay of which the Government servant was in receipt on the date of suspension subject to fulfilment of other conditions laid down for drawal of such allowances:
Provided that where the period of suspension exceeds six months, the authority which made or is deemed to have made, the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first six months as follows:-
(i) The amount of subsistence may be increased by a suitable amount not exceeding fifty per cent of the subsistence allowance admissible during the period of first six months, if, in the opinion of the said authority the period of suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the Government servant.
(ii) The amount of subsistence allowance may be reduced by a suitable amount not exceeding fifty per cent of the subsistence allowance admissible during the period of the first six months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons, to be recorded in writing directly attributable to the Government servant.
(iii) The amount of dearness allowance shall be based on the increase or decrease in the amount of subsistence allowance, as the case may be, admissible under clauses (i) and (ii) above.
(2) No payment under sub-rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation:
…………………..xxx………..xxx…………….
The above Rule lays down the procedure for payment of subsistence allowance and the appellant shall pay subsistence allowance following the above Rule.
7. Further, as per communication dated 20.02.2015 Annexure-H the petitioner is to be reinstated into service. If the petitioner is not reinstated, till he is reinstated he is entitled for subsistence allowance. Without paying subsistence allowance the management cannot expect the delinquent officials to attend the enquiry. In the first instance, the management has to pay the subsistence allowance to the petitioner and then it is open for the 4th respondent Management to get it reimbursed if it is, so entitled in accordance with law. The management having suspended the petitioner, cannot continue him under suspension indefinitely.
8. We see no erroneousness or perversity in the impugned order passed by the learned single judge. In the facts and circumstances of the case, the learned Single Judge is justified in directing the 4th respondent – Management to pay subsistence allowance to the petitioner. We see no good ground to interfere with the impugned order dated 19.03.2018 passed by the learned Single Judge in W.P. No.28441 of 2015. Accordingly, the appeal is dismissed on merit as well as on delay.
Consequently I.A.No.2 of 2018 for stay does not survive for consideration, hence, the application is dismissed.
Sd/- Sd/-
JUDGE JUDGE NG* CT:bms