S. L. Pandya v. State Bank of India — 1991 DIGILAW 560 (RAJ)

JUDGMENT 1. - By this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 20th December, 1990 passed by the General Manager (Operations), State Bank of India suspending the petitioner from service. The petitioner also prayed that the respondents may be directed to treat him as promoted as Middle Management Grade Scale II with effect from 1/8/1984 and he be given all consequential benefits. 2. The petitioner joined the service of the State Bank of India (hereinafter referred to as 'the respondent Bank' on 28.2.64 as a Clerk. He received his promotions from time to time. In August, 1973, he was promoted in the erstwhile cadre of Officer Gr. II. In December, 1976, he was promoted as Officer Gr. I. With the implementation of the Promotion Committee's recommendation, the petitioner came to be placed in Junior Management Grade Scale 1 w.e.f. dated 1.10.1979. 3. The petitioner's claim is that he has discharged his duties sincerely and to the best of his abilities and to the utmost satisfaction of his superior Officers. No adverse remark has been communicated to him in his Annual Performance Appraisal Reports. 4. Between June 1982 to Feb. 1985, the petitioner had remained posted at P.R. Marg Branch of the respondent Bank at Ajmer. By a communication dated 25.4.85, explanation of the petitioner was called-for in respect of certain allegations of irregularities. Reply was submitted by him on 26.6.85. An enquiry was initiated against the petitioner under R. 49/50 of the State Bank of India (Supervising Staff) Service Rules (hereinafter referred to as 'the Rules') by issuing a notice dated Nov. 13,1987. This notice contains allegations of irregularities levelled against the petitioner. The petitioner denied allegations levelled against him. An enquiry was held in respect of the allegations levelled against him. On the basis of the enquiry report furnished by the Enquiry Officer, a penalty of reduction in pay from Rs. 4390/- to Rs. 2100/- was imposed on the petitioner in terms of R. 49(e) of the Rules by an order dated 4.10.90 passed by the Disciplinary Authority. Rs. 2100/- is the minimum of the time scale of Junior Management Grade Scale I. The petitioner has stated that an appeal has been preferred by him under r. 51 of the Rules but his appeal has not been decided so far. 5. Rs. 2100/- is the minimum of the time scale of Junior Management Grade Scale I. The petitioner has stated that an appeal has been preferred by him under r. 51 of the Rules but his appeal has not been decided so far. 5. In the meanwhile, a criminal case was also registered by the Dy. S.P ;C.B.I. Jaipur vide F.I.R. No. 35/88 in respect of the same very allegations which were subject matter of the departmental enquiry. Another F.I.R. No. 26A/89 was registered by the same authority. In respect of the first F.I.R. a charge-sheet was filed by the Investigating Agency on 27.8.90 and in respect of the second F.I.R., a charge-sheet has been filed on 19.12.90. Cognizance has been taken by the competent Court in both these matters and the same are pending trial. On 20/12/90, the Disciplinary Authority (General Manager, Operations) had passed an order under R. 50A (1) of the Rules and he has placed the petitioner under suspension. The basis of the order of suspension is the launching of criminal prosecution proceedings by the C.B.I. in regard to certain serious irregularities allegedly committed by the petitioner in the matter of purchasing demand bills and Benami/Fictitious entries during the period of his working as Branch Manager at P.R. Marg, Ajmer Branch. 6. The petitioner has assailed the order of suspension on the ground of it being wholly arbitrary and unreasonable and on the ground that the action of the respondent Bank is malicious. In fact, the Bank Authorities have acted under the dictates of the authorities of the C.B.I. The suspension has been ordered after a period of almost six to eight years of the alleged irregularities. 7. The petitioner has also stated that as on 1.8.84, no disciplinary proceedings were either pending or contemplated against him. The Bank had undertaken the exercise for promotions to Middle Management Grade Scale II. The petitioner's candidature was not fairly considered for promotion inspite of the fact that nothing adverse existed in the record of the petitioner. He has been denied promotion to Middle Management Grade Scale II although persons junior to him, have been promoted. The petitioner has stated that in large number of cases, Officers against whom disciplinary proceedings are pending, have been given promotion. He has made reference to the case of Shri P.V. Barvey in this regard. He has been denied promotion to Middle Management Grade Scale II although persons junior to him, have been promoted. The petitioner has stated that in large number of cases, Officers against whom disciplinary proceedings are pending, have been given promotion. He has made reference to the case of Shri P.V. Barvey in this regard. A representation was submitted by All India State Bank Officers Federation on 12.2.87 regarding unlawful denial of promotion to the petitioner. How- ever, despite selection of the petitioner, he has been denied promotion. 8. In reply to the writ petition, the respondents have stated that the petitioner was not placed in Junior Management Grade Scale I on the basis of implementation of Promotion Committee's recommendation but on the basis of an order called the S.B.I. Officers (Determination of terms and conditions of Service) Order, 1979. The respondents have stated that a large scale fraud involving an amount of Rs. 9,53,569.29/- was committed at P.R. Marg Branch of the respondent Bank at Ajmer. During the tenure of the petitioner between June, 1982 to February 1985, the respondents have admitted that the petitioner's name was found suitable for promotion to Middle Management Grade Scale II but this recommendation was subject to the proviso that no disciplinary proceedings were either pending or contemplated. In the case of petitioner, the disciplinary proceedings were contemplated at the time of meeting of the selection committee. However, this fact about the contemplation of disciplinary proceedings was not in the knowledge of the Selection Committee and, therefore recommendation was made in this case. The petitioner was given scale of pay of Middle Management Grade Scale II because as per the agreement for revision of pay effected in the Bank w.e.f. 1.11.87, Officer who has reached the maximum of this scale of junior Management Grade Scale I is entitled to automatically move the scale of Middle Management Grade Scale II. This is done irrespective of the suitability of the Officer for promotion. It has been then stated that during the petitioner's tenure as Branch Manager of P.R. Marg Branch of the respondent Bank, undue favouritism was shown to one Shri Shyam Mohan Mangal and Mrs. Durga Mangal who were doing business through five proprietorship concerns and who were enjoying the credit facilities from that Branch of Bank. A total sum of Rs. 9,53,569.29/- was found outstanding against these five proprietorship firms. Durga Mangal who were doing business through five proprietorship concerns and who were enjoying the credit facilities from that Branch of Bank. A total sum of Rs. 9,53,569.29/- was found outstanding against these five proprietorship firms. On the basis of some preliminary investigation it was found that the Bank has been put to huge financial loss by the action of the petitioner. On the report of Administrative Officer (Loans), the petitioner was transferred and posted in an innocuous position at S.B.I. Ajmer, Main Branch with effect from 18.2.85 and he was stripped-off from all financial powers and dealings. On the basis of the preliminary enquiry held, the Disciplinary Authority decided to take action against the petitioner. He was served with a charge-sheet. His reply was considered and then order of punishment was passed. The respondents have stated that two F.I.Rs. were registered and after investigation, challan under sections 120, 420, 468, 471 Indian Penal Code read with section 5(2) and 5(1)(d) of the Prevention of Corruption Act have been filed in the Court of Special Judge, C.B.I. Cases. Similarly, in respect of another F.I.R. after investigation, challan has been filed against the petitioner and Mrs. Durga Mangal etc. The respondents have disputed claim of the petitioner that the departmental enquiry held against the petitioner was of the same subject matter in respect of which criminal cases have been instituted against the petitioner. The respondents have specifically stated that the subject matter of the two proceedings are quite different though they relate to the same working period of the petitioners as Branch Manager of the P.R. Marg Branch of the Bank. The respondents have stated that after sanction has been given for promotion of the petitioner, order of his suspension has been passed in terms of R. 50(A)(i) of the Rules. The respondents have claimed that the order of suspension has been passed in public interest. The respondent Bank has to deal with public funds and treasury and employees of the Bank are required to act honestly and they must be the men of absolute integrity. Those against whom allegations of causing huge financial loss to the Bank and those who are charged-with allegations of committing fraud, cannot be allowed to occupy the important public office. The respondent Bank has to deal with public funds and treasury and employees of the Bank are required to act honestly and they must be the men of absolute integrity. Those against whom allegations of causing huge financial loss to the Bank and those who are charged-with allegations of committing fraud, cannot be allowed to occupy the important public office. The petitioner cannot be allowed to remain in active service because his presence would surely embrass establishment and will lower down the image of the Banking Institution. The Bank has power to suspend the employee in the situations specified under rule 50 of the Rules. The discretion has been exercised by the Bank in a bonafide manner. The non-promotion to the petitioner does not amount to denial of promotion because action has been taken by the respondents in accordance with the instructions containing policy decisions. In the additional plea, the respondent Bank has pleaded that the petitioner is a person whose action has resulted in financial loss to the Bank of the tune of lacs of rupees and who is facing trial for offences under the various sections of the Indian Penal Code and Prevention of Corruption Act and such a person is not entitled to any relief from this Court under Article 226 of the Constitution of India. 9. In his rejoinder, the petitioner has seriously contested the claim of the respondents that the disciplinary proceedings were contemplated against the petitioner at the time of meeting of the Promotion Committee. In fact, the departmental enquiry was initiated only in the year 1987 and there is nothing on record to show that anything was in contemplation in the month of February 1985 when selections and promotions to the posts of Middle Management Grade Scale II were considered. In para 3 of the rejoinder, the petitioner has given additional fact regarding promotion of one Shri C. Gupta who has been promoted to the Middle Management Grade Scale II notwithstanding the fact that he has been charge sheeted and punished for misconduct. The petitioner has reiterated his assertion that charge-sheet issued for disciplinary action and the charge-sheet filed in the Court of Special Judge C.B.I., show that the subject matter of two proceedings is identical. The petitioner has stated that the exercise of the power of suspension is wholly arbitrary, unreasonable and unjustified particularly when the petitioner has already been punished. The petitioner has reiterated his assertion that charge-sheet issued for disciplinary action and the charge-sheet filed in the Court of Special Judge C.B.I., show that the subject matter of two proceedings is identical. The petitioner has stated that the exercise of the power of suspension is wholly arbitrary, unreasonable and unjustified particularly when the petitioner has already been punished. The petitioner has stated that in respect of other Officers also, criminal cases have been registered but order of suspension has not been passed. He has given example of the case of one Shri R.L. Sharma, who at one time held the office of Branch Manager at Bharatpur Branch of the respondent Bank. He is involved in Cr. Case No. 21/85 State v. R.L. Sharma and others but no order of his suspension has been passed. Similarly he has referred to the cases of Shri V.M. Lalwani and Shri D. Rai Singhani, two Officers of the Bank who were posted at Bharatpur, they too, are said to have been involved in an act of causing financial loss to the Bank and they too, are facing criminal cases but order of their suspension has not been passed. 10. On 9-4-1991, learned counsel for the respondents was directed to produce the record relating to suspension of the petitioner. Subsequently, an additional affidavit has been filed on behalf of the respondents on 24-4-91. In para 3 of this additional affidavit, it has been stated that the inspection and audit report dated 14-7-84 of the Branch Inspector of P.R. Branch gave caution to the petitioner in purchasing Demand Documents Bills of various firms of Shymm Mohan Mangal and Mrs. Durga Mangal with any sanction of limit and not to purchase bills further. In para 4, it has been stated that Administrative Officer (Loans) was instructed to go to Ajmer to make investigation in the matter. He discovered very serious and large scale irregularities in transaction of the Bank conducted by the petitioner as Branch Manager which caused huge financial loss to the Bank. He submitted his report on 24-1-85. The matter was reported to the Head Office, New Delhi in Feb. 198(sic) and on 18-2-85 the petitioner was rendered 'Innocuous' i.e. he was stripped-off from all the financial powers. He submitted his report on 24-1-85. The matter was reported to the Head Office, New Delhi in Feb. 198(sic) and on 18-2-85 the petitioner was rendered 'Innocuous' i.e. he was stripped-off from all the financial powers. In para 5, it has then been stated that the explanation of the petitioner was called for and various notes were submitted to the General Manager (Operations). On 29-6- 85, the Chief Regional Manager, Jaipur sent a note to the General Manager (Operation) and the Chief General Manager, New Delhi with request that the vigilance enquiry into the entire episode may be ordered so that proper disciplinary action/ proceedings may be initiated against the petitioner. On 22-8-85, the Chief Regional Manager pointed-out that the explanation submitted by the petitioner was not satisfactory and the matter may be handed-over to the Disciplinary Action Cell for initiating disciplinary action against the petitioner. On 9-7-85, the Chief General Manager ordered that the case be taken over by the Vigilance Department. On 27-1-86, the Investigating Officer of Vigilance Department of the respondent Bank submitted his report pointing out that the petitioner had been grossly negligent in the conduct of D.D. purchase business with the result that the Bank faced a huge loss of about 10 lacs. Information was there- after collected from different sources and the same was sent to the Chief General Manager (Operation)vide note dated 14- 10-86. Thereafter, the Disciplinary Authority decided to initiate disciplinary proceedings against the petitioner. On 13.11.87, a charge sheet was served on the petitioner. In the enquiry, it was found that the petitioner committed serious irregularities. He was, therefore, punished by order dated 4.10.90 with the reduction of pay. In the meantime the Special Police Establishment C.B.I. registered F.I.R. No. 35/88 on 31.7.88 in respect of offence under various provisions of the Indian Penal Code and the Prevention of Corruption Act and a search was conducted at the residence of the petitioner by the C.B.I. on 3.9.88. Another F.I.R. No. 23/89 was registered on 31.7.89. The matter remained under investigation of the C.B.I. between Sept. 1988 to Sept. 1989. The C.B.I. Authorities asked the Bank officers to furnish the Bank records relating to the cases registered against the petitioner. On 18.10.89, the Dy. Another F.I.R. No. 23/89 was registered on 31.7.89. The matter remained under investigation of the C.B.I. between Sept. 1988 to Sept. 1989. The C.B.I. Authorities asked the Bank officers to furnish the Bank records relating to the cases registered against the petitioner. On 18.10.89, the Dy. Inspector General of Police C.B.I. wrote a letter to the Chief General Manager Bombay and he recommended that the petitioner be placed under suspension as and when charge sheet is filed in the Court of law. This letter was accompanied with a detailed report of C.B.I. investigation dated 9.10.89. This report was forwarded to the Chief General Manager, New Delhi on 25.10.89. On 1/10/89, the Dy. Inspector General of Police, C.B.I. had requested the General Manager of the respondent Bank to accord sanction for prosecution of the petitioner, On 19.12.89, the General Manager (Operation) wrote to the Chief Vigilance Officer of the Bank at Bombay that although the petitioner is guilty of showing utter negligence and in disregard of Bank instructions, in his opinion, departmental proceedings should be taken and prosecution of the petitioner should not be launched. On 4.1.90, the General Manager (Operation) wrote letter to the Dy. I.G.P. and expressed his disagreement with the views that the petitioner should be prosecuted. On 1.3.90, Dy. I.G.P. New Delhi, wrote letter to the General Manager for sanction for prosecution because according to him, there was enough evidence to prosecute the petitioner. On 17.3.90, the Circle Vigilance Officer sent a note to the General Manager (Operation) New Delhi, that instead of prosecution, departmental proceedings should be taken. On 24.3.90, the General Manager (Operation) wrote similar letter to the Chief Vigilance Officer. On 17.7.90, the C.B.I. wrote to the Manager Vigilance for clarifying the legal position. The Chief General Manager did not agree with the views of General Manager (Operation) and, therefore, a telex was sent to the Chief Vigilance Office, Bombay to agree to prosecute the petitioner. Thereafter, a sanction was given and the challans were filed against the petitioner in the Court of Special Judge C.B.I. On 7.12.90 the Deputy General Manager (Vigilance) forwarded a note to the General Manager (Operation) in which he advised that since prosecution has already started in criminal case, the petitioner may be placed under suspension. This was approved and there after order dated 20-12-90 was passed for suspension of the petitioner. This was approved and there after order dated 20-12-90 was passed for suspension of the petitioner. It has lastly been submitted in the affidavit that on account of functioning of various offices at different places, it took quite some time to take a decision regarding suspension of the petitioner. 11. First question, which requires determination in this case is as to whether suspension from service of the respondent Bank is legal and justified ? While Shri Paras Kuhad, learned counsel for the petitioner argued that suspension in respect of the alleged act of delinquency of 1984-85 is wholly arbitrary and suffers from malice in law, Shri Abhay Bhandari, learned counsel for the respondents strenuously urged that the disciplinary authority has power to suspend an employee under Regulation 50-A of the Regulations. There are very serious allegations against the petitioner and after due consideration of the entire material available on record, the authorities of the Bank have taken a bonafide decision to place the petitioner under suspension. This suspension is in the interest of service and, therefore, the Court should not interfere in such matters. Regulation 50-A(1) which confers power on the disciplinary authority to pass order of suspension reads as under: "50-A(l). An employee maybe placed under suspension by the disciplinary authority: (a) where a disciplinary proceeding against him is contemplated or is pending; or (b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial". 12. A plain reading of the provisions contained in Regulation 50-A(1) shows that the disciplinary authority has got power to place an employee under suspension where disciplinary proceeding against him is contemplated or is pending or where a case against him involving criminal offence is pending investigation, inquiry or trial. The power conferred on the competent authority to pass order of suspension and its discretion is, therefore wide and it must be held that so far as competence of the respondents to issue order of suspension of the petitioner is concerned, that is unquestionable. The question, which requires further examination is as to whether the order of suspension has been passed by the Bank after ,due application of mind i.e., as to whether the exercise of discretion. conferred upon the disciplinary authority to pass order of suspension is fair and bonafide and as to whether the order of suspension is justified? 13. The question, which requires further examination is as to whether the order of suspension has been passed by the Bank after ,due application of mind i.e., as to whether the exercise of discretion. conferred upon the disciplinary authority to pass order of suspension is fair and bonafide and as to whether the order of suspension is justified? 13. There are two kinds of suspension. A public servant can be suspended as a mode of punishment or he can be suspended during the pendency of an inquiry against him in case the order appointing him or the statutory provisions governing his service conditions provide for such suspension. The right to suspend as a measure of punishment as well as right to suspend the contract of service during the pendency of inquiry are both regulated by the contract of employment or the provisions regulating conditions of service. In the second category of suspension, the master has a right to forbid his servant from doing the work which he had to do under the terms of the contract of service or the provisions governing his conditions of service. In common parlance a right a appoint includes a right to suspend. The relationship of master and servant between the State, its instrumentality or agencies or statutory bodies on the one hand and their employees on the other hand are ordinarily regulated by the statutory enactments, Rules, Regulations or Bye-laws. Their relationship is not governed by pure terms of contract, which is known to the common law. Suspension has also been defined as temporary deprivation of one's office or position. By suspension, an employee is debarred from functioning in the office or holding the position or privilege, until either he is cleared of the charge or is lawfully dismissed or removed from service. This type of suspension some times is called interim suspension. The relationship of master and servant is not broken in such cases. The employee continues to be a member of the service, but he is not permitted to work and where ever the statutory provisions so provide he is entitled to the payment of subsistence allowance, which is normally less than his salary. 14. In Kali Prasenna Rai v. State of West Bengal, (AIR 1952 Cal. The employee continues to be a member of the service, but he is not permitted to work and where ever the statutory provisions so provide he is entitled to the payment of subsistence allowance, which is normally less than his salary. 14. In Kali Prasenna Rai v. State of West Bengal, (AIR 1952 Cal. 169) , the Calcutta High Court has lucidly summed up the nature of suspension in the following words : "By reason of suspension, the person suspended does not lose his office nor does he suffer any degration. He ceases to exercise the powers and to discharge the duties of the office for the time being. His rank remains the same and his pay does not suffer any reduction. He cannot draw his salary during the period of suspension. His powers, functions and privileges remain in abeyance but he continues to be subject to the same discipline and penalties and to the same authorities." In R.P. Kapoor v. Union of India, ( AIR 1964 SC 787 ) , their Lordships of the Supreme Court had discussed the concept and power of suspension and laid down the following proposition of law : "It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contractor in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense he will have to pay wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relation- ship of master and servant with the consequence that the servant is not bound to pay. This principle of law of master and servant is well established". 15. This principle of law of master and servant is well established". 15. In B.R. Patel v. State of Maharashtra, ( AIR 1968 SC 800 ) , the Supreme Court summand up the law regarding suspension in the following words : "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 applied 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 the 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 (sic). 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 (sic). 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. 16. The nature of right of the employer and its extent may now be discussed in some details. According to Shri Bhandari, learned counsel for the respondents, the power conferred on the competent authority under Regulation 50A (1) of the Regulation is absolute. On the other hand Shri Paras Kuhad, learned counsel for the petitioner argued that the power is not absolute, but is conditioned one. It can only be exercised in good faith and in public interest. Shri Kuhad argued that this power cannot be exercised arbitrarily. In S.G. Jaishinghani v. Union of India( 1967 S.L.R. 482) Hon'ble Ramaswami speaking on behalf of the Constitution Bench of the Supreme Court had made the following observations in the context of arguments of absolute discretion. "In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of land discretion, when conferred upon executive Authorities must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application and the citizen should how- ever he is if a decision is taken without any principle or without any rule it is unpredictable and such a decision taken in accordance with the rule of Law. (See Dicey "Law of Constitutional"-Tenth Edn., Introduction ex.). Law has reached its finest moments stated Douglas J. In (2) United States v. Wunderlich, "when it has freed man from the unlimited discretion is absolute, man has always suffered". It is in this sense that the rule of law may be said to be the sworn enemy of caprice. (See Dicey "Law of Constitutional"-Tenth Edn., Introduction ex.). Law has reached its finest moments stated Douglas J. In (2) United States v. Wunderlich, "when it has freed man from the unlimited discretion is absolute, man has always suffered". It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion as Lord Man field stated it in classic terms in the case of John Wilks (2) means sound discretion guided by law. It must be governed by rule, not by humour it must not be arbitrary, vague and fanciful". 17. In E.P. Royappa v. State of Tamil Nadu, (1974)4 SCC 3 ) Bhagwati, J. (as he then was) in his concurring judgment made a fine exposition of the concept of equality in the context of arbitrary exercise of powers by the State authorities and, therefore, it will be proper to quote the words of justice Bhagwati : Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so. vital to the building up of the now classless legalitaian society envisaged in the Constitution. Article 16 is only an instance of the application of the concent of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, there of, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the extent and reach of this great equalising principle ? It is a founding faith, to use the words of Bose, J. "a way of Life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all embracing scope and meaning. For to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies. For to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies. One belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 and if it affects any matter relating to public employment, it is also violative of Article 16. Article 14 and 16 strike 5 (1974) 4 SCC 3 ), at arbitrariness in State action and ensure fairness and equality of treatment. They require the State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to malafide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power arbitrariness are different lethal radiations emanating from the same from vide; in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16. 18. In B.K. Sharma v. State of Rajasthan, (1979) 29 ILR 515) , G.M. Lodha, J. (as he then was) discussed the concept of suspension and its implication at length. Although that was a case of prolonged suspension, however, the observations made by the court are extremely important. Learned Judge observed : "It should not be forgotten that suspension have got adverse implication as it has serious demoralising effect on a civil servant, as he is looked with contempt amongst his brother employees and also in the society. Although that was a case of prolonged suspension, however, the observations made by the court are extremely important. Learned Judge observed : "It should not be forgotten that suspension have got adverse implication as it has serious demoralising effect on a civil servant, as he is looked with contempt amongst his brother employees and also in the society. It is expected of the State functionaries that they should resort to it only when the case and the subject matter of charge sheet, which is being enquired into, is extremely of serious type where by permitting a civil servant to work during that period would result in serious impediment in the inquiry itself or any other adverse effect in the department. In other words, there must be compelling reason for the disciplinary authority, which of course, cannot be tested on the test of objectivity by the courts, but it should be of such serious magitude that the disciplinary authority should feel compelled to take extreme step of suspension. Suspension should not be made a rule and should be used sparingly, cautiously and with great restraint. 19. In Ashok Gaur v. State of Rajasthan, 1987(2) RLR 63 ( 1987 (5) SLR 547 ) a Division Bench of this court analysed Rule 13 and also the extent of power of suspension and then held : "From the above discussions, it is apparent that an order of suspension should not be passed by invoking power under Rule 13 simply because a disciplinary proceeding is contemplated or criminal case is under investigation or trial against Government servant. The appointing authority has to exercise his discretion in this regard. A Government servant may be put under suspension in the contingencies referred to above. If there are reasons to believe, on the basis of the material available at the time of initiation of proceeding, that he may be guilty of gross misconduct or corruption, which, if approved, will lead to dismissal or removal, he may be suspended even if the suspension is likely to continue for a longer period, or where there are reasons to believe that a Government servant if allowed to continue in active service might tamper with the evidence he may be suspended or, in a case a Government servant is facing trial in criminal court, he should be suspended, if he has been refused bail and committed to prison". It was then observed : "This rule cannot be taken to confer arbitrary powers upon the Appointing Authority to place a Government servant under suspension simply be- cause a petty case of no importance is pending investigation or trial against a Government servant. While exercising power under Rule 13, in our opinion, the Appointing Authority must apply its mind and see whether it would be in the interest of the Government or in the interest of the public at large to place the Government servant under suspension and the circumstances so warrant to place the Government servant under suspension. In every case, there should be proper application of mind before an action is taken against the Government servant for placing him under suspension". 20. In Ashok Gaur's case, the Court proceeded to quash the order of suspension of the petitioner who was facing a charge under Section 306 of the Indian Penal Code. 21. In Nandlal Verma v. State of Rajasthan, ( 1989(1) RLR 601 ) the same Division Bench made the following observations : "It is true that the Government has a right to suspend its employees in contemplation of departmental proceedings or pending investigation. After the service of the charge-sheet if the charges are of a serious nature a Government employee may be suspended pending enquiry. It is now well settled principle that suspension can notes temporary cessation of right to work or temporary deprivation of the office, position or privilege. The real effect of the order of suspension is that though an employee continues to be in service he is not permitted to work and during the period of his suspension he is paid only some allowance which is generally called subsistence allowance. Thus, suspension does not dissolve 'vinoulam juris' of the employment relationship. Government has right to suspend an employee pending departmental enquiry or pending criminal investigation. But it is also equally true that such power of suspension cannot be exercised arbitrarily and without any reasonable ground. The power of suspension is to be sparingly exercised and should not be exercised in vindictive manner and it is expected of an authority passing the order to take into account all the relevant materials, nature of the charge, the attendant circumstances and the necessity of desirability of placing the public servant under suspension. The power of suspension is to be sparingly exercised and should not be exercised in vindictive manner and it is expected of an authority passing the order to take into account all the relevant materials, nature of the charge, the attendant circumstances and the necessity of desirability of placing the public servant under suspension. The Government is also conscious of the fact that the power of suspension should not be exercised in an arbitrary manner and without any reasonable ground, therefore, guidelines have been laid down by the Government". 22. In Delhi Electric Supply Under-taking v. G.P. Satsangi, 1984 Lab. I.C. 54 , one of the Judges of the Division Bench used the following words of caution in the matter of suspension : "short of dismissal, the worst, that can befall an employee is an order of suspension. It is rendered all the more grave in the context of delay and redtapsim sadly afflicting the Government set ups and public undertakings, when departmental inquiries take long to get finalished and the suspended employee is perforce made to undergo the agony and suspense of long suspension. The employer too stands to lose with the non- availability of active service of the employee. The power of suspension is no doubt available under the service conditions and rules governing the employee, but it has to be exercised with circumspection, care and after due application of mind. Normally a sort of prliminary enquiry or investigation is gone through for ascertaining the prima facie view of the matter and whether the circumstances impel recourse to suspension. When they do, the power has to be exercised. In such situation the disciplinary authority must make a fair and proper assessment of the affairs in the given circumstances, and carefully scrutinies that prima facie there exist grave compelling circumstances which in the light of the material available and collected during the preliminary investigation would lead to the likelihood of removal or dismissal of the employee from service. It may be that formulation of exact punishment that may be finally awarded is not possible at this stage, but a proper judgment exercised can certainly prevent unnecessary harassment and humiliation of suspension." 23. In the light of these principles, the order of suspension dated 20th December, 1990 needs to be examined. Petitioner was posted at P.R. Marg Branch of the respondent Bank between February, 1982 to February, 1985. In the light of these principles, the order of suspension dated 20th December, 1990 needs to be examined. Petitioner was posted at P.R. Marg Branch of the respondent Bank between February, 1982 to February, 1985. The disciplinary action was initiated against him in the year 1985 and he has been punished with the penalty of reduction in pay from Rs. 4390/- to Rs. 2100/- which is the minimum of the scale of the Junior Management Grade I. The gravity of the delinquency committed by the petitioner during his tenure as Branch Manager at P.R. Marg Branch was fully in the knowledge of the authorities of the Bank. They knew the nature of allegations levelled against the petitioner, his involvement in the so-called act of mis-demnor. The Bank authorities felt satisfied by imposing punishment, to which reference has been made here in above. The Bank authorities did not find it to be a fit case to suspend the petitioner, instead what was done in the year 1985 was to transfer from Ajmer to an innocuous position. He was stripped of from all financial powers. The Bank authorities were certainly aware of continuing the petitioner in service and they took a conscious decision to allow him to hold the post in the service of the Bank. It was thought proper by the authorities of the Bank that with the taking away of all financial power, the petitioner will not be a threat to the public office and will not be able to cause any injury to the interest of the Bank. Between February 1985 to December, 1990, the petitioner has remained in the service of the Bank and it is not the case of the respondents that during this period any further act of delinquency had been committed by the petitioner, seriousness of which warranted a drastic action of suspension. It is true that the Bank has to function through various authorities and decision has to be taken after consideration of the matters at different levels. But from the pleadings of the respondents it is clear that between 1985 to 1989, at no stage, the authorities of the Bank had thought of suspending the petitioner looking to the so-called seriousness of the allegations. But from the pleadings of the respondents it is clear that between 1985 to 1989, at no stage, the authorities of the Bank had thought of suspending the petitioner looking to the so-called seriousness of the allegations. For the first time, the D.I.G., CBI wrote a letter on 18.2.1989 to the Chief General Manager of the respondent Bank suggesting suspension of the petitioner as and when charge sheet is filed in the court of law. Thereafter the question of suspension of the petitioner was taken up and after lot of discussions between different officers, ultimately decision to place the petitioner under suspension was taken. It is not the case of the respondents even in the reply that the petitioner is likely to interfere with the investigation or trial of the case or that for more than 5 year his continuance in service had not been injurious to the interest of the Bank and now it will cause injury. Having regard to the peculiar facts of this case, particularly the fact that the Bank authorities have taken disciplinary action against the petitioner and imposed punishment after due regard to the gravity of the allegations levelled against the petitioner but at no point of time considered it to be a fit case for placing the petitioner under suspension, the order of suspension dated 20.12.1990 must be held to be arbitrary and unreasonable. Merely because the authorities of the C.B.I. had written to the functionaries of the Bank to place the petitioner under suspension, it was not proper for the Bank authorities to pass the order of suspension after a period of almost 6 years of the commission of the alleged act of delinquency. It is not the case of the respondents that they were not aware of the allegations levelled against the petitioner or that they had not been able to make up their mind in respect of the seriousness of the allegations levelled against the petitioner. Large number of cases, on which reliance has been placed by Shri Bhandari, do not in any manner advance the case of the respondents. 24. In D.D. Suri v. A.K. Barren, (1976(1) SLR 529) , their Lordships of the Supreme Court held that suspension order under Rule 7(3) of All India Service (Discipline and Appeal) Rules, 1955 on registration of a criminal case with lodging of FIR is permissible. 24. In D.D. Suri v. A.K. Barren, (1976(1) SLR 529) , their Lordships of the Supreme Court held that suspension order under Rule 7(3) of All India Service (Discipline and Appeal) Rules, 1955 on registration of a criminal case with lodging of FIR is permissible. In that case the FIR was registered on 24th November, 1967 in respect of his working as Commissioner of Land Reforms, Orissa in the year 1967. That was not a case where the order of suspension had been passed after lapse of 6 years of the alleged incidence and where the disciplinary action had already been taken and punishment imposed by the competent authority. 25. In Kulbhushan v. Punjab National Bank, (1979(1) SLR 437) , learned Single Judge of Delhi High Court construed the provisions of the Punjab National Bank Employees (Discipline and Appeal) Regulations, 1977 and held that suspension could be ordered in contemplation of inquiry. Such suspension cannot be considered as penal in nature. Learned Judge held that the delay of about one year in the formal service of charge after passing of order of suspension cannot be said to be unusual delay so as to make the order vitiated or make it punitive. 26. In Sunderlal v. State of Rajasthan, (1980(3) SLR 220 , a learned Single Judge held that employer has a right to suspend an employee pending criminal case. That principle is well settled and has no relevance to the facts of present case. 27. In M.K. Das v. State of West Bengal, (1980(3)SLR 220) , learned Single Judge of Calcutta High Court held that once a Government servant is detained in.police custody his suspension is automatic. That case is also having no relevance to the facts of the present case and is of no assistance to the respondents. 28. In Atul Kumar v. D.I.G. Police, (1983(3)SLR 591) , a Division Bench of Gujrat High Court held that delay in passing of order of suspension is not a ground to quash the order of suspension where the police constable is involved in a serious criminal case involving moral turpitude was suspended. In that case there was a gap of over 4 years in making of complaint and passing of order of suspension. The allegation was that the police constable had accepted bribe. In that case there was a gap of over 4 years in making of complaint and passing of order of suspension. The allegation was that the police constable had accepted bribe. The court had found that there was material to suspend that if the appellant is continued in service, he will have chance to repeat the same kind of misconduct. The court refused to interfere with the order of suspension in view of the opinion of the authorities of the Department about the likelihood of commission of similar offence by the petitioner in that case. 29. As already noticed, so far as the present case is concerned, the petitioner has already been punished. He had been transferred in February, 1985 and was posted in a very innocuous position. He has been stripped of from all financial powers. There is no allegation of any misconduct having been committed by him after his transfer during last more than 5 years. Thus none of the cases cited by the learned counsel for the respondents bring out any proposition of law, which would justify the plea that the order of suspension passed in the case like the one with which we are concerned, can be justified. 30. Shri Bhandari, learned counsel for the respondents has placed reliance on a decision in Haji Abdul Sakeer v. Rent Control and Eviction Officer, Kanpur, (AIR 1959 All, 440 , wherein a Single Judge of Allahabad High Court held that where petitioner comes into court finding his cause of action on an illegal reason will not get any assistance from the court and that a petitioner who does not come with clean hands or not comes with his hand soiled with illegal transaction with the object of defeating the provisions of law, disentitle himself to any relief from the court. The court also found that the petitioner was not candid in making the facts before it and therefore, refused to give any relief to the petitioner. In the present case there is no allegation against the petitioner that he has not come with clean hands, and that he is guilty of suppression of any fact from the court. The court also found that the petitioner was not candid in making the facts before it and therefore, refused to give any relief to the petitioner. In the present case there is no allegation against the petitioner that he has not come with clean hands, and that he is guilty of suppression of any fact from the court. Merely because there is an allegation against the petitioner, it cannot be said that he should be denied relief under Article 226 of the Constitution of India, particularly when the Bank authorities have already punished him and they had, at no point of time, considered it to be a fit case for suspending the petitioner. 31. The other grievance of the petitioner relates to his non-promotion. Petitioner has asserted that at the point of time of consideration i.e. 1-8-84 there was no adversity against him and therefore, the respondent Bank had no authority to deny promotion to the petitioner. From the reply of the respondents, it is clear that the petitioner had been found suitable for promotion, but since his recommendation was subject to the Proviso that no disciplinary proceedings were pending or contemplated when it was found that inquiry was contemplated against the petitioner, order of promotion was not issued in his favour. In my opinion the petitioner cannot claim that he should be promoted to the higher post in Middle Management Grade Scale II. True it is that as on 1-4-84 no adversity existed against the petitioner, but after he had been treated as suitable by the selection Committee, proceedings had in fact been started and he had been found guilty of misconduct and even punished. Against the order of punishment, the petitioner has preferred an appeal. If the petitioner is exonerated by the appeal- late authority, certainly he will have a right of retrospective promotion, but he cannot claim that despite the penalty of reduction in pay, he should be given retrospective promotion. Therefore, this part of the claim of the petitioner cannot be accepted. 32. In the result, the writ petition is partly allowed. Order of suspension dated 20-10-1990 is declared illegal and is hereby quashed. So far as promotion of 15 ( AIR 1959 All. 440 ) the petitioner is concerned, it will depend upon the result of the appeal filed against the order of punishment. 32. In the result, the writ petition is partly allowed. Order of suspension dated 20-10-1990 is declared illegal and is hereby quashed. So far as promotion of 15 ( AIR 1959 All. 440 ) the petitioner is concerned, it will depend upon the result of the appeal filed against the order of punishment. If petitioner is evnnorated, he will he entitled to promotion with retrospective effect.Parties are left to bear their own costs.Petition partly allowed. *******