R. GOPALAKRISHNAN v. SYNDICATE BANK — 1991 DIGILAW 917 (MAD)

Judgment :- (1) THE petitioner challenges the order of the 2nd respondent, dt. June 27, 1990 by which he has been placed under suspension under Regulation 12 (b) of the Syndicate Bank Officer-Employees (Conduct) Regulations, 1976, hereinafter referred to as the Regulations. The petitioner was recruited as a Probationary Officer in 1972, and after serving in many places, he was transferred to Perambur Branch as Branch Manager in August 1984 in which capacity he was working till he was kept under ad interim suspension pending enquiry. The order of suspension was passed on December 26, 1985 under Regulation 12 (1) (a) of the Regulations pending disciplinary proceedings. A charge-sheet was issued to the petitioner in September, 1987 and another supplementary charge-sheet was issued to him in October, 1987. When the charges were being enquired into and before final orders were passed on these two charge memos, another charge memo was issued on June 23, 1990. Subsequently the impugned order came to be passed referring to the earlier two charges issued in September and October, 1987 on the ground that a case in respect of a criminal offence alleged to have been committed by him is under investigation. The impugned order reads as follows : "whereas, in respect of those serious acts of misconduct, the following two charge-sheets have already been issued against you which are pending for enquiry/disposal : (1) Charge sheet No. 94 (PD; IRD/da-3 dated September 23, 1987 and (2) charge-sheet No. 106/pd/ird/da-3 dt. October 30, 1987. Whereas, meanwhile a case against you in respect of criminal offences alleged to have been committed by you is under investigation/trial. Therefore, it has been decided to invoke the provisions of Regulation 12 (1) (b) of the above Regulations also at this stage, which provides for an officer-employee to be placed under suspension by the competent authority where a criminal case is pending for investigation/trial in a court of law and hence, you will continue to be under suspension under both the provisions of Regulations 12 (1) (a) and 12 (1) (b) of the abovesaid Regulations until further orders. Further, all other terms and conditions contained in the proceedings No. 94/pd : IPS/da-3 dated December 26, 1985 remain stand". This order is being challenged before me. Further, all other terms and conditions contained in the proceedings No. 94/pd : IPS/da-3 dated December 26, 1985 remain stand". This order is being challenged before me. (2) AT this stage, it is necessary to state that final orders have been passed on the earlier charge-sheets issued in September and October, 1987 on February 4, 1991 and December 27, 1990 respectively, proposing certain minor punishments. However, it stated in those orders that the order of suspension is being continued. (3) IT is alleged in the affidavit that one the enquiry is over, the suspension pending the disciplinary proceedings also expires. It is contended that under Regulation 12 (1) (a), the authority is not permitted to continue the order of suspension even after the enquiry is over. It is also stated that when once final orders were pronounced, keeping the petitioner under suspension under Regulation 12 (1) (a) cannot be sustained. It is further alleged that under Regulation 12, an officer-employee may be placed under suspension either pending disciplinary proceedings or pending any investigation into criminal offence or trial and that it cannot be invoked for both the contingencies. It is also alleged that there is no necessity to place the petitioner under suspension on the same cause of action which has already been dealt with by the department. It is stated that keeping the petitioner under suspension pending the trial for criminal offence is against the principles of natural justice and also under the Regulations. (4) A counter-affidavit has been filed by the respondent-bank. It is pointed out in the counter-affidavit that the petitioner was issued two charge-sheets on September 23, 1987 and October 30, 1987, and when two charge-sheets were pending at the enquiry stage, certain criminal offence alleged to have been committed by the petitioner in Perambur Branch came to light. In view of that, after investigation by the Central Bureau of Investigation it was found out that there was a prima facie case to proceed against the petitioner under the criminal law. It was decided by the competent authority to invoke the provisions of Regulation 12 (1) (b) of the Syndicate Bank Officer-Employees (Discipline and Appeal) Regulations, 1976 and as such the order of suspension passed earlier was modified by the impugned order on June 27, 1990. It was decided by the competent authority to invoke the provisions of Regulation 12 (1) (b) of the Syndicate Bank Officer-Employees (Discipline and Appeal) Regulations, 1976 and as such the order of suspension passed earlier was modified by the impugned order on June 27, 1990. It is also stated in the counter-affidavit that the respondent-bank is taking steps to prosecute the petitioner before a competent court and sanction for prosecution is accorded by the competent authority on June 11, 1990. A third charge memo was issued on June 23, 1990. It is also stated in the counter-affidavit that with regard to the charge-sheets. dt. October 10, 1987 and September 23, 1987 the petitioner has been imposed censure by order dated February 4, 1991 and in respect of charge-sheet dt. October 30, 1987 the petitioner was imposed a punishment of reduction in basic pay by two stages by order dt. December 27, 1990. It is further stated in the counter-affidavit that the order of suspension was not revoked by the competent authority since a case against the petitioner in respect of certain criminal offences was under investigation. Reference has been made in the counter-affidavit to Regulation 12 (5) (b). The original order of suspension dt. December 26, 1985 has been modified by the competent authority by virtue of the power vested in it under Regulation 12 (5) (b) of the Syndicate Bank Officer-Employees (Discipline and Appeal) Regulations, 1976. It is claimed that there was no necessity for a fresh order of suspension since the respondent-bank is empowered to modify the order of suspension and the order of suspension is not violative of the principles of natural justice. It is also pointed out in the counter affidavit that Regulation 15 provides that in the event of the petitioner being found not guilty of the charges, he will be entitled to the full pay to which he would have been entitled, had be not been kept under suspension. So, it is stated in the counter affidavit that the petitioner has not made out a case for quashing the impugned order. (5) MR. R. Krishnamoorthy, learned Senior Counsel, points out that the petitioner has been kept under continuous suspension from 1985 and for nearly six years he has been kept under suspension and great injustice has been done to the petitioner. (5) MR. R. Krishnamoorthy, learned Senior Counsel, points out that the petitioner has been kept under continuous suspension from 1985 and for nearly six years he has been kept under suspension and great injustice has been done to the petitioner. Learned Senior Counsel points out that with regard to the two charges, final orders have been passed and only the third charge-sheet which has been issued recently just prior to the issuance of the impugned order is pending enquiry. He further points out that this is a fit case where the order of suspension has got to be revoked and post the petitioner in some insensitive post. He also refers to a decision of the Calcutta High Court in P. N. bank v. Dilip Kumar 1988 - I - LLJ -32 and a Division Bench decision of this Court in Ambigapathy, P. S. v. The Director of Public Health Preventive Medicine 1991 - I - LW682 apart from another decision of the Supreme Court in O. P. Gupta v. Union of India 1988 - I - LLJ -453 in support of his contentions. Learned Senior Counsel also contended that taking the cue from the Calcutta High Court there were certain instructions issued by the Government with regard to suspension of bank employees, especially Nationalised Banks, and if the principles laid down by the Calcutta High Court are followed, the order of suspension has got to be set aside in this case. (6) MR. Venkataraman, learned counsel appearing for the Bank, contends that an order of ad interim suspension pending disciplinary proceedings or for a criminal offence can be made under Regulation 12 of the Syndicate Bank officer-Employees (Discipline and Appeal) Regulations 1976 and under Regulation 12 (5) an order of suspension can be modified and in this case, the order of suspension made originally in 1985 has been modified by the impugned order. The petitioner was placed under suspension under Regulation 12 (1) (b) of the Regulations, since a criminal offence was under investigation. He points out that though final orders were passed on two charge-sheets issued as stated supra, a fresh charge-memo has been issued in June, 1990 and an enquiry is pending. In the meantime, it is pointed out by him, that the petitioner has been kept under suspension exercising the power under Regulation 12 (1) (b) of the Regulations. He points out that though final orders were passed on two charge-sheets issued as stated supra, a fresh charge-memo has been issued in June, 1990 and an enquiry is pending. In the meantime, it is pointed out by him, that the petitioner has been kept under suspension exercising the power under Regulation 12 (1) (b) of the Regulations. He also points out that the charge-sheet has been filed against the petitioner on October 22, 1990 before the Court of the VIII Additional Special Judge, City Civil Court, Madras in C. C. No. 22/90 and summons have been issued to the petitioner for charges under S. 120-B read with S. 420 I. P. C. and S. 5 (2) read with S. 5 (1) (d) of Act II of 1947. As such, Mr. Venkataraman points out that the order of suspension cannot be said to be invalid in law since the bank has got the power to keep the petitioner under suspension pending criminal trial. He further contends that this court under Art. 226 of the Constitution of India should not exercise the discretion in favour of the petitioner. It is further pointed out by him that the original order of suspension was passed pending enquiry into the two charges and when it was known to the bank that a criminal offence has been committed, that order was modified and the petitioner was kept under suspension under Regulation 12 (1) (b) of the Regulations. According to Mr. Venkataraman, so far as the power has not been exercised arbitrarily it cannot be said that the impugned order is liable to be set aside. The actual charge sheet has been filed in October, 1990 and the impugned order has been passed in June, 1990 and hence there is no delay in filing the charge-sheet. He relies on a judgment of the Supreme Court in Government of A. P. v. Sivaraman 1990 - II - LLJ 386. Mr. Venkataraman contends that instructions have no statutory force and when the Regulation covers the field, no instructions can be issued in contravention of the Regulation. (7) I have considered the arguments advanced by both sides. Facts are not in dispute. Two charge-sheets were issued against the petitioner pending departmental proceedings in 1987 and final orders have been passed in December, 1990 and February, 1991. Another charge-sheet has been issued to the petitioner in June, 1990. (7) I have considered the arguments advanced by both sides. Facts are not in dispute. Two charge-sheets were issued against the petitioner pending departmental proceedings in 1987 and final orders have been passed in December, 1990 and February, 1991. Another charge-sheet has been issued to the petitioner in June, 1990. In between, when the earlier charge-sheets were pending enquiry, the impugned order came to be passed as criminal proceedings are to be taken against the petitioner. Regulation 12 provides for suspension. It is almost on the same lines with the rules applicable to Government employees. An officer-employee may be placed under suspension by the competent 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. (8) IN this case, the petitioner was kept under suspension earlier under Regulation 12 (1) (a). By the impugned order, sub-cl. (b) of regulation 12 (1) has been invoked and the earlier order of suspension which has been passed in 1985 has been modified under the power vested in the competent authority under Regulation 12 (5) (b). In my view, it cannot be stated that the impugned order is bad in law. (9) IT is well established that an order of suspension of an employee does not put an end to his service. He continues to be the member of the service in spite of the order of suspension and the real effect of the order of suspension is that though he continues to be a member of the service, he is not permitted to work. Further, during the period of his suspension, he is paid only some allowance which generally called "suitable allowance" is normally less than the salary. It is also well settled that because of the order of suspension, he does not cease to be a member as it is an administrative order and not a quasi-judicial order. It is also well settled that employees salary and other privileges remain in abeyance, but he does not cease to be a member of the service. So, it is well settled that when a competent authority has got power under the Regulations to keep an employee under ad interim suspension pending criminal trial, it cannot be said that the impugned order is bad in law. So, it is well settled that when a competent authority has got power under the Regulations to keep an employee under ad interim suspension pending criminal trial, it cannot be said that the impugned order is bad in law. Factually, a charge-sheet has been filed in this case in October, 1990 itself when the petitioner has been kept under suspension by way of modification of the earlier order passed in 1985. So, on facts it cannot be said that there is any delay in filing the charge-sheet before a Criminal Court. (10) IT is rue that the petitioner was kept under suspension in 1988. However, the departmental proceedings came to an end only in December, 1990 and February, 1991. Even before the conclusion of the departmental proceedings, the petitioner has been kept under continued suspension invoking the relevant Regulation which has been extracted above and the original order of suspension has been modified. Mr. R. Krishnamoorthy, learned Senior Counsel for the petitioner, relied on the decision of the Calcutta High court in P. N. B. v. Dilip Kumar (supra) for the proposition that certain Government Circulars have been issued with regard to the employees of the Nationalised Banks on the subject of suspension pending enquiry and the Calcutta High Court has considered those circulars and held that the criminal trial was not proceeded with diligently and the petitioner was kept under suspension for almost 12 years and for the inordinate delay the bank administration was held responsible. (11) LEARNED senior Counsel for the petitioner relies upon the following passage occurring at page 40 of the said Calcutta High Court Judgment (1988 - I - LLJ - 32): "it is really unfortunate that the criminal trials are pending for such a long time and the respondent Sri De has been compelled to defend the criminal trials at distant stations like Jodhpur and Patna from Calcutta for all these years while suffering an order of suspension. It also appear to us that the Government circulars referred to hereinbefore clearly point out that pendency of the criminal trial by itself will not imply that an employee of the Bank against whom criminal case has been instituted and charge-sheet has been given should remain in suspension until the criminal trial is finally concluded. It also appear to us that the Government circulars referred to hereinbefore clearly point out that pendency of the criminal trial by itself will not imply that an employee of the Bank against whom criminal case has been instituted and charge-sheet has been given should remain in suspension until the criminal trial is finally concluded. The circulars indicate that even in the case of pendency of criminal trial, the Bank Administration will have to review the situation and decide whether continuance of suspension is desirable in the facts and circumstances of the case. The Government circulars clearly indicate that it is the anxiety of the Government that there should not be unnecessary delay in completing the departmental proceedings and criminal cases and all efforts should be taken to expedite the criminal trial and the departmental proceeding against the delinquent bank employees. The said circulars also indicate that unless exigencies of the circumstances require that a Bank employee should remain in suspension, the concerned Bank employees should be utilized gainfully by the Bank and payment of subsistence allowance for a long period without obtaining any service from the Bank employee is not desirable. In the aforesaid circumstances, it appears to us that the order of suspension passed against the writ petitioner respondent Sri De should have been reviewed long back and it was only desirable that the service of Sri De should have been utilised gainfully. " (12) LEARNED Senior Counsel contends that this is a case where this court should interfere with in order of suspension or review the order of suspension made based on the circulars of the Government which have been referred to by the Calcutta High Court. He also relies upon a judgment of the supreme Court in O. P. Gupta v. Union of India (supra) wherein the Supreme Court considered the case where suspension was continued for eleven years and the Departmental proceedings were kept pending for twenty years. The supreme Court observed (1988 - I - LLJ - 453 at 461); ". . . . . there is no presumption that the Government always acts in a manner which is just and fair. The supreme Court observed (1988 - I - LLJ - 453 at 461); ". . . . . there is no presumption that the Government always acts in a manner which is just and fair. There was no occasion whatever to protract the departmental inquiry for a period of 20 years and keeping the appellant under suspension for a period of nearly 11 years unless it was actuated with the mala fide intention of subjecting him to harassment. The charge framed against the appellant was serious enough to merit his dismissal from service. Apparently, the departmental authorities were not in a position to substantiate the charge. But that was no reason for keeping the departmental proceedings alive for a period of 20 years and not to have revoked the order of suspension for over 11 years. An order of suspension of a Government servant does not put an end to his service under the Government. He continues to be member of the service in spite of the order of suspension. . . . . the expression life does not merely connote animal existence or a continued drudgery through life. The expression life has much wider meaning. Suspension in a case like the present where there was no question of inflicting any departmental punishment prima facie tantamounts to imposition of penalty which is manifestly repugnant of the principles of natural justice and fair play in action. The conditions of service are within the executive power of the State or its legislative power under the Proviso to Art. 309 of the Constitution, but even so, such rules have to be reasonable and fair and not grossly unjust. It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it would imply that the Executive is being vested with to totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration. It is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. It is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. " (13) RELYING upon this passage, Learned Senior Counsel for the petitioner points out that the petitioner has been kept under suspension for nearly more than six years now right from 1985 and as such the principle enunciated by the Supreme Court has to be applied to the facts of this case. I do not think that the principle laid down by the Supreme Court is applicable to the facts of this case. On the facts before me, I am not at all inclined to hold that there is an extraordinary delay in the conclusion of the departmental enquiry and the order of suspension has got to be set aside. Apart from that, it is not also a case where a review has to be made now. It is seen from the facts of the case that the charge-sheet has been filed, only in October, 1990 and only one year had elapsed. As such, it cannot be said that there is any extraordinary delay in the disposal of the criminal case also in this case to interfere with the order of suspension, or direct the Bank to review the order of suspension at this point of time. (14) IT may be true that pending departmental proceedings, the petitioner has been kept under suspension from 1985. But factually as on date, he is under suspension only because of the pendency of the criminal case. Sitting under Art. 226 of Constitution of India, I do not think I can exercise the discretion in favour of the petitioner at this point of time. It may be open to the bank to review the situation after some time as pointed out by the learned Senior Counsel for the petitioner based on instructions by the Government of India with regard to the employees of the Nationalised Banks. But, surely it cannot be a ground to set aside the order of suspension in toto. (15) THE case reported Ambigapathy P. S. v. The Director of Public Health Preventive Medicine (supra) also has been decided on the facts of that particular case. Though an order of suspension was made in 1987, enquiry was not over in that case for three years. (15) THE case reported Ambigapathy P. S. v. The Director of Public Health Preventive Medicine (supra) also has been decided on the facts of that particular case. Though an order of suspension was made in 1987, enquiry was not over in that case for three years. In those circumstances, the Division Bench held that the defence of the departmental proceedings were not continued was negatived. On the facts of the case, the Division Bench held that prolonged suspension in that case in unreasonable. As I have already observed, on the facts of this case, it cannot be said that the power exercised under the circumstances by the Bank is unreasonable and the order of suspension has to be set aside. I do not find any ground to interfere with the impugned order. Accordingly, the writ petition will stand dismissed. No costs. However, as already observed, it is open to the respondent Bank to review the situation after a reasonable time if the criminal case is prolonged for a long time.