Non-Payment Of Subsistence Allowance Is Violative Of Article 21 Of Constitution: Uttarakhand HC [Read Order]

"Every Government Employee, who is put under suspension, has a statutory right of subsistence allowance. Non- payment of subsistence allowance has been held to be violative of Article 21 of Constitution of India," the bench of Justice Manoj K. Tiwari observed.

The observation was made in a service petition filed against the District Education Officer, Elementary Education, for non-payment of subsistence allowance to the Petitioner, ever since his suspension in January, 2020.

The court observed that the payment was not made despite mention of the same in the order for suspension.

In view thereof it ordered thus,

"the District Education Officer, Elementary Education, Haridwar (respondent no. 4) is directed to release the subsistence allowance, including arrears, to the petitioner within three weeks or show cause by way of filing counter affidavit."

Pronouncing the law on this issue, the Supreme Court had in the case of State Government of MP & Ors. v. Shankarlal, held that the "payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance."

In AK Bindal & Anr. v. Union Of India & Ors., the court reiterated,

"Right to life enshrined in this Article means something more than survival or animal existence. It would include the right to live with human dignity. Payment of very small subsistence allowance to an employee under suspension which would be wholly insufficient to sustain his living, was held to be violative of Article 21 of the Constitution."

Recently, the Madras High Court in the case of Registrar & Ors. v. M. Elango, held that a total denial of subsistence allowance to a suspended employee would be violative of Article 21 of the Constitution.

To "subsist" means to manage to stay alive, especially with limited resources or money. The state of living as such is known as subsistence, which is indicative of the fact that one has enough resources to sustain life with basic minimum needs. This means of existence or continuance with meagre resources of livelihood for a salaried employee is known as a subsistence allowance, which is an advance payment to cover immediate living expenses while being kept away from service. It is, therefore, an

income that is sufficient to provide bare necessities and is an adequacy of support that exists as a reality while undergoing a compulsory distress. The idea is to preserve sustenance at the minimum economic level to sustain a minimum standard of living," the court said.

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