Since the issue involved in both these writ petitions pertain to payment of subsistence allowance to the petitioner in W.P.(C). No.21894/2008, both these cases were considered together and disposed of through this common judgment.
2. While in service as Excise Guard the petitioner was suspended by virtue of Ext.P1 order, based on the fact that he was arrested in a criminal case alleging offences punishable under the Abkari Act and he was remanded by the Magistrate Court. In Ext.P1 order of suspension it is made clear that the petitioner was suspended from service with effect from 01.04.2006 and that he will be entitled for all allowances permissible under law during the period of suspension. But complaint of the petitioner is that, he was not paid subsistence allowance during the period of suspension. The petitioner submitted Ext.P2 request before the 3rd respondent as early as on 17.07.2006, supported by non-employment certificate (Ext.P3). Since the request was not considered and no subsistence allowance was paid, W.P.(C). No.21894/2008 is filed seeking necessary directions for payment of the subsistence allowance.
3. W.P.(C). No.10044/2009 is filed by the Government challenging Ext.P3 order passed by the Kerala State Human Rights Commission, directing payment of subsistence allowance to the petitioner in implementation of Ext.P1 order and to disburse the amounts due within three weeks and also further directing that until the order is complied with, the 2nd respondent shall not draw his salary. Order of the Human Rights Commission is challenged mainly on the ground that the issue involved is beyond the jurisdiction vested on the Commission.
4. This Court is of the considered opinion that, sustainability of the impugned order passed by the Human Rights Commission need not be examined, because the issue can be adjudicated in the writ petition, W.P.(C). No.21894/2008. Subsistence allowance is a statutory right conferred on an employee who is suspended from service. In Ext.P1 order itself it was clarified that the petitioner will be entitled for the allowance. In the counter affidavit filed in W.P.(C).
No.21894/2008 it is contended that, subsistence allowance was not paid because the petitioner was implicated in another Abkari Case and that there was possibility of conviction and consequential dismissal from service, with effect from the date of suspension. It is further mentioned that on finalisation of the disciplinary action the petitioner was dismissed from service by virtue of Ext.R1(a) order. This Court is of the considered opinion that, neither involvement in a criminal case nor any subsequent dismissal from service on finalisation of disciplinary action, will in any manner disentitle the petitioner from getting subsistence allowance during the period of suspension. The issue has to be decided based on relevant provisions contained in the Payment of Subsistence Allowance Act and /or the Rules governing service of the petitioner. Interest of justice can be achieved by directing the 2nd respondent to consider Ext.P2 claim made by the petitioner and to take an appropriate decision with respect to eligibility of the petitioner for getting subsistence allowance during the period of suspension.
Under the above-mentioned circumstances, these writ petitions are disposed of on the following terms.
(1) Issue agitated in W.P.(C). No.10044/2009 is not decided by this Court based on the fact that relief proposed in the other case will cover up the issue and the relief thereon. However, it is made clear that the impugned order of the Human Rights Commission cannot be taken as a precedent in any other case, and the direction to withhold payment of salary of the officer concerned is hereby nullified.
(2) W.P.(C). No.21894/2008 is disposed of by directing the 2nd respondent to consider Ext.P2 claim made by the petitioner for payment of subsistence allowance during the period when he continued under suspension. The claim shall be considered and settled on the basis of the relevant provisions of statute. A decision in this regard shall be taken at the earliest possible, after affording an opportunity of personal hearing to the petitioner.
(3) Subsistence allowance if any found due to the petitioner shall be paid at the earliest at any rate within a period of two months from the date of receipt of a copy of this judgment.
C.K. ABDUL REHIM JV JUDGE