@JUDGMENTTAG-ORDER
K. Chandru, J.@mdashThe petitioner was a cook at the Noon Meal Centre, Government Higher Secondary School, Periyampatti, Karimangalam
Block, Dharmapuri District. The petitioner was suspended by the respondent District Collector by an order dated 07.08.2009, pending further
action.
2. In the order of suspension, it was stated that the petitioner''s centre was inspected by the Personal Assistant (Noon Meal Scheme) of the
District Collector, Dharmapuri on 23.07.2009. As per the register for the food items kept in the centre, it was claimed that food was prepared for
640 students, but only 451 students had their lunch. Therefore, the materials were taken in excess of actual requirement. Further, food was not
supplied to those students. It was also stated that from Karimangalam Panchayat Union, the Noon meal Organiser received 640 eggs on that day.
Out of which 531 were boiled and only 451 was given to students and the balance 80 eggs were not supplied. There was also shortage of 109
eggs in the centre. It is for this reason the Noon meal organiser S.Sivagami and the cooks M/s. Soundhara, Sarala and Assistant Cooks Savithri,
Sathiyaveni and Govindhammal were kept under suspension. The Block Development Officer was directed to give additional charge to the
neighbouring staff for carrying out the duties of the centre and also submit a report to the District Collector.
3. The petitioner challenged the order stating that while placing the petitioner under suspension, duties and job responsibilities of the petitioner were
not taken into account and the order was passed mechanically. The suspension was also issued without notice to the petitioner and it is not clear as
to whether the suspension was in public interest.
4. This Court is not impressed with the arguments advanced on behalf of the petitioner. In fact on notice from this Court, the learned Government
Advocate had produced a letter dated Nil (October 2009) stating that the direct inspection brought to the notice large scale irregularities
committed in the centre and the petitioner was also an accomplice in the irregularities committed by the organiser and it was therefore, the
suspension was made.
5. On a further direction from this Court as to whether Subsistence Allowance was paid to the petitioner pending the further action, a fax message
dated 23.10.2009 was obtained from the District Collector. In that it was stated that since there is no rule for providing Subsistence Allowance,
the petitioner was not granted any subsistence allowance.
6. While this Court is not inclined to interfere with the order of the suspension pending further enquiry into the charges, at the same time it cannot
be said that the petitioner is not entitled for subsistence allowance for the reason that there is no provision for providing subsistence allowance. The
supreme Court vide its Judgment in Balvantrai Ratilal Patel v. State of Maharashtra reported in Balvantray Ratilal Patel Vs. The State of
Maharashtra, has held that in the absence of any Rule, an employee is entitled for full wages. The following passage found in paragraph 4 may be
usefully extracted below:
4. The general principle therefore is that an employer can suspend an employee pending an inquiry into his misconduct and the only question that
can arise in such suspension will relate to payment during the period of such suspension. If there is no express term relating to payment during such
suspension or if there is no statutory provision in any enactment or rule the employee is entitled to his full remuneration for the period of his interim
suspension. On the other hand, if there is a term in this respect in the contract of employment or if there is a provision in the statute or the rules
framed thereunder providing for the scale of payment during suspension the payment will be made in accordance therewith. This principle applies
with equal force in a case where the Government is an employer and a public servant is an employee with this qualification that in view of the
peculiar structural hierarchy of Government administration, the employer in the case of employment by Government must be held to be the
authority which has the power to appoint the public servant concerned. It follows therefore that the authority entitled to appoint the public servant
is entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a
departmental enquiry against him. But what amount should be paid to the public servant during such suspension will depend upon the provisions of
the statute or statutory rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if
there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. On general principles therefore
the Government, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant
pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. The Government may also proceed to hold a
departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty.
As we have already pointed out, the question as to what amount should be paid to the public servant during the period of interim suspension or
suspension as a punishment will depend upon the provisions of the statute or statutory rules made in that connection.
7. Therefore, the writ petition stands dismissed in so far as the order of suspension is concerned. However, a direction is issued to the respondents
to pay subsistence allowance to the petitioner as stipulated by the Supreme Court referred to above. No costs. Consequently, connected
miscellaneous petition is closed.