Holding non-payment of subsistence allowance to a suspended officer of a public sector undertaking as violative of his fundamental right to life, the Supreme Court in Captain Paul Anthony vs Bharat Gold Mines & Others (decided on March 30, 1999) has quashed his dismissal for misconduct and directed his reinstatement forthwith.

The facts of the case were that the superintendent of police had raided the residential premises of Captain M Paul Anthony a security officer in Bharat Gold Mines Ltd hereafter referred to as "appellant" and had recovered a mining sponge gold ball weighing 4.5 grams and 1,276 grams of "gold-bearing sand". It was on this basis that a criminal case was launched against him. On the same set of facts, constituting the raid and recovery, departmental proceedings were initiated against the appellant as the "recovery" was treated to be a `misconduct'. On the service of the charge sheet, the appellant raised an objection that departmental proceedings may be stayed as the basis of these proceedings was the raid conducted at his residence on which basis a criminal case had already been launched against him. He requested that the decision of the criminal case may be awaited, but his request was turned down. The request made a second time for that purpose also met the same fate. When the appellant approached the highcourt, liberty was given to the respondents to stay the departmental proceedings if they considered it appropriate, but they were directed to dispose of the appellant's appeal against the order by which he was placed under suspension. The order of the high court had no effect on the respondents and they decided to continue with the departmental proceedings which could not be attended by the appellant as he informed the inquiry officer that he was ill. His request for adjournment of the departmental proceedings on that ground was not acceded to and the proceedings continued ex-parte against him. He was ultimately found guilty of the charge and was dismissed from service.

The criminal case as well as the departmental proceedings were based on identical set of facts, namely, `the raid conducted at the appellant's residence and recovery of incriminating articles therefrom'. The findings recorded by the inquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected the recovery. The same witnesses were examined in the criminal case but the court, on consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and ratheroppressive to allow the findings recorded at the ex-parte departmental proceedings, to stand.

Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any difference, the distinction, which is usually drawn between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to this case.

The Supreme Court held in the peculiar circumstances of the case, specially having regard to the fact that the appellant is undergoing this agony since 1985 despite having been acquitted by the criminal court in 1987, we would not direct any fresh departmental inquiry to be instituted against him on the same set of facts. The appellant shall be reinstated forthwith on the post of security officer and shall also be paid entire arrears of salary, together with all allowances from the date of suspension till his reinstatement, within three months. The appellant would also be entitled to his cost which is quantified as Rs 15,000.

While dealing with the concept of suspension during pendency of disciplinary proceedings, the Supreme Court observed that to place an employee under suspension is an unqualified right of the employer. This right is conceded to the employer in service jurisprudence everywhere. It has even received statutory recognition under service rules framed by various authorities, including the Government of India and the state governments.

The exercise of right to suspend an employee may be justified on facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by "suspension syndrome" and employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nickname of `subsistence allowance', so that the employee may sustain himself. 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 sustainhimself on account of non-payment of subsistence allowance, would gradually starve himself to death.

On joining service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the government. The government, only because it has the power to appoint, does not become the master of the body and soul of the employee. The government, by providing job opportunities to its citizens, only fulfils its obligations under the Constitution, including the directive principles of state policy. The employee, on taking up employment, only agrees to subject himself to the regulatory measures concerning his service. His association with the government or any other employer is regulated by the terms of contract of service or service rules made by the central or the state governments under the proviso to Article 309 of the Constitution or other statutory rules including certified standing orders. The fundamental rights, including the right to life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provisionfor payment of subsistence allowance made in the service rules only ensures non-violation of the right to life of the employee.

Since in the case under study, 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 not undertake a journey to attend the disciplinary proceedings, the findings recorded by the inquiry officer at such proceedings, which were held ex-parte, stand vitiated.