From Suspension To Civil Death: Rethinking Subsistence Allowance In Indian Service Jurisprudence

The dictionary meaning of the word 'subsist' is to “to remain alive as on food; to continue to exist” and 'subsistence' is the “means of supporting life, especially a minimum livelihood”.

To place an employee under suspension is an unqualified right of the employer. It has even received statutory recognition under service rules framed by various authorities, including the Government of India and the State Governments. Even under the General Clauses Act, 1897, this right is conceded to the employer by Section 16, which, inter alia, provides that the power to appoint includes the power to suspend or dismiss. The service rules usually provide for payment of salary at a reduced rate during the period of suspension, which constitutes what is called 'subsistence allowance'. The very expression 'subsistence allowance' has been held as having an undeniable penal significance. The court has likened non-payment of subsistence allowance to slow poisoning, as the employee, if not paid a subsistence allowance, would lead to a “Civil Death”. Exercise of the right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers are afflicted by a “suspension syndrome” and the employees are placed under suspension for nothing. It is their irritability rather than the employee's trivial lapse that 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 his salary is paid to him at a reduced rate under the title of “subsistence allowance” so that he may sustain himself. The Court in O.P. Gupta v. Union of India (1987)^[2] has addressed the issue of suspension of an employee, holding that the suspension of a government servant does not terminate his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of subsistence allowance can be understood from the supreme court pronouncement of Khem Chand v. Union of India (1957),^[3] wherein it had explained that a suspended employee is not permitted to work and further during the period of suspension he is paid only some allowance, which is normally less than the salary he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental enquiry is concluded within a reasonable time, affects a government servant injuriously. Subsistence Allowance is not short of “insurance against bureaucratic peril”. What if the disciplinary enquiry goes on and on, and the employee remains suspended on mere allegations? In fact, it will not be wrong to say that suspension without subsistence allowance will lead to civil death of the concerned employee.

Article 21 and Right to Livelihood

The Supreme Court of India, over a period of time, has interpreted Article 21 as the right to live with human dignity, which also includes the right to a livelihood. As famously held in Olga Tellis & Ors vs Bombay Municipal Corporation, 1985,^[4] if the right to livelihood is not treated as a part of the right to life, the easiest way to deprive a person of their life would be to abrogate their means of living. This foundational principle of the right to livelihood in the matter of subsistence allowance finds its practical application in the case of State of Maharashtra v. Chandrabhan Tale 1983,^[5] where the court struck down a provision that allowed for payment of only Rs. 1/- per month to a suspended employee, characterizing this as “ludicrous” and a “mockery”, asserting that it is a contradiction in terms to award a "subsistence" allowance that does not actually allow one to subsist. The court, while striking down the provision, was of the view that the subsistence allowance must not be “illusory” and “meaningless”.

Payment of a real subsistence allowance is the primary mechanism ensuring the non-violation of the employee's right to life during the period of forced suspension. It should be sufficient to cater to the necessities of the individual and his dependent family. The non-payment or an illusory payment of the subsistence allowance effectively leaves an employee to starve while they may be legally barred from seeking other work. If the right to life requires a right to livelihood, then any allowance provided during suspension must be sufficient to actually sustain that life. Echoing this sentiment, the Madras High Court in The Registrar, Co-operative Society, vs. M. Elango, 2019,^[6] reiterated that the non-payment of subsistence allowance is inherently antithetical to the mandate of Article 21. “life” under Article 21, comprehends something more than mere animal existence. Ensuring the real payment of subsistence allowance acts as a constitutional buffer, ensuring that the employee doesn't suffer Civil Death or the ignominy of insinuations, before their liability is determined.

Article 39A and Access to Justice

While Article 21 protects the dignified survival of the suspended employee, Article 39A of the Constitution safeguards the procedural survival. It puts an obligation on the state to ensure that the operation of the legal system promotes justice based on equal opportunity, specifically providing that no citizen shall be denied opportunities for securing justice by reason of economic or other disabilities. In the context of disciplinary proceedings, Article 39A transforms the subsistence allowance from an administrative payment to a fundamental prerequisite of a fair trial.

The Supreme Court in Ghanshyam Das Shrivastava v. State of MP (1973)^[7] illuminated that by withholding the allowance, the state has paralysed the employee's ability to participate in the legal proceedings. Without enough money for travel or legal assistance, the reasonable opportunity to defend oneself shatters. If an employee is unable to attend or participate in the legal inquiry due to financial stringency caused by the employer, the inquiry must be rendered void. As followed in cases like M. Paul Anthony v. Bharat Gold Mines Ltd^[8] and Fakirbhai Fullabhai Solanki v. Presiding Officer,^[9] the court holds that any order of punishment, including dismissal resulting from a flawed inquiry, cannot be sustained in the eyes of the law.

In the modern service jurisprudence, the “economic disability” under Article 39A is interpreted broadly, as it includes access to representation; a suspended employee with a 50% pay cut or with zero pay cannot afford competent defence counsel, ultimately creating an imbalance of power between the state and the individual. Every step of seeking justice involves a cost that an economically disabled individual cannot bear, and if the inquiry is prolonged, which results in mounting debt and psychological pressure, it eventually forces the employee into a state of submission.

Socio-Economic Impact of Employee Suspension

While the suspension appears to be a neutral administrative step, in reality, it often carries a presumed guilt that damages the reputation of the employee before the final verdict is reached, and results in a socio-economic trap. The individual is legally demobilised as they are forbidden from taking other jobs, yet they are denied their full wages in their current role. Beyond financial hardships, being placed under suspension also carries social stigma in the form of “public branding” of guilt during the period of trial. This signals the community that the person is not in good standing and eventually gets isolated from societal participation. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his department, has to endure this excruciation even before he is formally charged with some misdemeanour or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is, to determine his innocence. Much too often, this has now become an accompaniment to retirement.

Judicial Control over Administrative Suspension Powers

While some may argue that the Indian Constitution does not explicitly guarantee a speedy trial, or assume the presumption of innocence for the accused. But we must keep in consideration that such a right is an inextricable tenet of Common Law, dating back to the Magna Carta's promise that justice shall not be denied or deferred. This norm under the service jurisprudence can be interpreted from the case of Ajay Kumar Choudhary v. Union of India, (2015)^[10] wherein the court was of the view that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension. The need for time-bound disposal shows how imperative it is to adopt diligence in such scenarios and that the life of dignity and basic survival is attacked due to suspension made, therefore, the direction in the case of Ajay Kumar Choudhary should be given premium priority to avoid the breach of fundamental rights provided under Articles 14, 16, 21 and Article 311 of the Indian Constitution.

Comparative Analysis of Subsistence Allowance Laws

There appears to be a constitutional gap in dealing with the subsistence allowance to a suspended employee in India and the UK. A comparative analysis of the Industrial Relations Code (IRC), 2020 of the former, with the United Kingdom's Employment Rights Act (ERA), 1996 of the latter, provides for a constitutional gap in the treatment of the suspended employee. The Indian Code specifies a 50% reduction in wages during the inquiry and investigation of the suspended employee. Under the ERA 1996, there is no statutory 50% rule, and any deduction from the wages must be authorized by an express contractual clause. In the absence of such a clause, the employee must receive 100% pay. Section 38 of the Industrial Relations Code attempts to resolve the delay in inquiry by setting a 90-day limit, under which if the inquiry is not completed within the said period, the subsistence allowance will increase to 75%. While this protects the employee from destitution, there is still a 25% economic disability that might eventually lead to administrative capitulation. As the allowance paid in the UK is 100% (unless otherwise provided), there is a faster rate in the conclusion of the inquiry. A prolonged suspension can be viewed as a breach of an implied mutual trust, which may allow the employee to claim constructive dismissal far sooner than an Indian worker can claim the violation of rights.

Way Forward

As established in the foundational social contract, the state's power to suspend is not an absolute license to starve; rather, it is a restricted authority that must respect the right to exist. When the payment of this allowance is withheld or rendered illusory, the suspension ceases to be a neutral act and transforms into "slow poisoning," leading to the "civil death" of the employee. India must work towards shifting the underlying idea from the benefit of the employer to the benefit of the suspended employee. It should focus on incorporating a neutrality model similar to that of the United Kingdom, where the 100% pay is a standard, which would eliminate the perverse financial incentives that encourage the protracted inquiries. Furthermore, making a time-bound disposal mandate of Ajay Kumar Choudhary a statutory certainty is essential to prevent the suspension from becoming an incidental accompaniment of retirement. This shift requires the government to work with genuine urgency, ensuring that a person is not punished by endless delays before they are even proven guilty.

1. O.P. Gupta Vs. Union of India (UOI) and Ors q1987 INSC 238. ↑

2. Khem Chand v. Union of India and Ors 1957 INSC 114. ↑

3. Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Ors [1985]Supp2SCR51. ↑

4. State of Maharashtra Vs. Chandrabhan Tale 1983 INSC 74. ↑

5. The Registrar, Co-operative Society, vs. M. Elango W.A.No.1352 of 2019. ↑

6. Ghanshyam Das Shrivastava Vs. State of Madhya Pradesh AIR1973SC1183. ↑

7. M. Paul Anthony Vs. Bharat Gold Mines Ltd and Ors 1999 INSC 139. ↑

8. Fakirbhai Fulabhai Solanki vs Presiding Officer and Anr AIR1986SC1168. ↑

9. Ajay Kumar Choudhary Vs. Union of India (UOI) and Ors 2015 INSC 120. ↑