CHINTAMANI PADHI v. UCO BANK — 1996 DIGILAW 349 (ORI)

JUDGMENT : S. Chatterji, J. - The present writ petitioner, Chintamani Padhi, has tiled this writ petition against the Chairman and Managing Director of United Commercial Bank and other officers praying inter alia: "...(i) With the order dated June 19, 1993 vide Annexure-1 and hold that the petitioner continued in service and the suspension order dated August 28, 1978 is invalid and inoperative. (ii) Issue a direction to the opposite parties to revoke the order dated May 19, 1993 (Annexure-1) so far it related to suspension of the petitioner. (iii) Direct the opposite parties to pay full salary and allowances to the petitioner for the entire period of his suspension/dismissal till his reinstatement and hold that the petitioner is entitled to the same. (iv) Declare that the petitioner is entitled to be treated as on duty during the entire period of his suspension till his reinstatement..." 2. The facts of the case as it transpires from the: materials on record are that the petitioner while serving as Assistant Cashier in U.CO. Bank, Sambalpur Branch during the period from August 24,1977 to May 10,1978 there was an allegation of misappropriation of bank's money and a departmental proceeding was initiated against him by his employer. He was charge-sheeted on April 5,1978. The petitioner was placed under suspension with effect from August 28,1978. He was also criminally prosecuted before the Special Judge (Vigilance), Bhubaneswar in T.R. No. 17/79 under different Sections of the Prevention of Corruption Act and Indian Penal Code. The judgment was delivered by the Special Judge (Vig), on September 6,1986 and the petitioner was convicted. He was sentenced to suffer two years rigorous imprisonment and to pay a fine of Rs. 10,000/- in default, to undergo rigorous imprisonment for a further period of three months. 3. The petitioner was dismissed by the Bank with effect from September 8,1988. He preferred Criminal Appeal No. 153 of 1986 before this Court. By judgment dated August 6, 1992 the appeal was allowed and on the ground of benefit of doubt the petitioner was acquitted. The petitioner was reinstated in service on June 19, 1993 vide Annexure-1 and further placed under suspension alleged to be with retrospective effect. In view of such facts and circumstances the petitioner has sought the reliefs as indicated above. 4. The writ petition is opposed by the Bank by filing a comprehensive counter-affidavit. The petitioner was reinstated in service on June 19, 1993 vide Annexure-1 and further placed under suspension alleged to be with retrospective effect. In view of such facts and circumstances the petitioner has sought the reliefs as indicated above. 4. The writ petition is opposed by the Bank by filing a comprehensive counter-affidavit. The allegations have been denied and disputed. 5. Mr. Jagannath Patnaik, learned counsel .' appearing for the petitioner has argued inter alia that the impugned order dated June 19,1993 as per Annexure-1 is bad in law and it must be held that the petitioner continued in service and the order of suspension dated August 28,1978 was invalid and inoperative. Precisely, he has submitted that the petitioner obtained subsistence allowance till he was dismissed from service with effect from September 8, 1986. The Judgment was passed by the High Court acquitting the petitioner on August 5, 1992 and the petitioner was served with rein-statement-cum-suspension order on June 19,1993. The petitioner is entitled to full pay and allowance for the period from November 1 28,1986 till June 19,1993. Challenging the irregularity and illegality of the impugned order vide Annexure-1, Mr. Patanaik has relied and referred to the decision reported in H.L. Mehra Vs. Union of India (UOI) and Others, The ratio of the said decision is that two conditions must co-exist before action can be taken under Rule 10(5)(b) of the C.C.A. Rules. One is that the Government servant must be under continuing suspension, and the other is that during the continuance of such suspension "any other disciplinary proceeding" is commenced against him. When the order of the dismissal was passed on October 26, 1967, the order of suspension dated April 11, 1963 passed: to exist and it did not revive thereafter by the subsequent setting aside of the order of dismissal by the first part of the impugned order. In the circumstance, the impugned order continuing suspension could not be justified under Rule 10(5)(b). The aforesaid ratio was decided in view of the fact that the appellant in the said case who was a Government servant was suspended from service by an order of the President dated April 11, 1963 pending criminal prosecution against him. Later on, a departmental inquiry was also started against him on March 8, 1965 on charges which were different from those on which he was being prosecuted. Later on, a departmental inquiry was also started against him on March 8, 1965 on charges which were different from those on which he was being prosecuted. The applicant was convicted of the criminal charge and the conviction was confirmed by the High Court in appeal. During the pendency of appeal to the Supreme Court against the conviction, the President passed an order dated October 26, 1967 dismissing him from service. As the appellant was acquitted by the Supreme Court, the President passed the impugned order dated June 9,1971 under Rule 10(5) (b) setting aside the order of dismissal and continuing the order of suspension in the following terms: "....However, as Rule 10 stands today, the third part of the impugned order continuing the suspension of the appellant must be held to be void and inoperative. That means the suspension of the appellant under the order dated April 11, 1963 came to an end on October 25,1967 when the order of dismissal was passed against him and since then the appellant is no longer under suspension. The appellant must therefore, be held to be entitled to salary from October 25, 1967, and an order for payment of arrears of salary must be passed in his favour..." In the light of the aforesaid decision, Mr. Patnaik argued with force that there is no bar and/or impediment to grant relief to the petitioner in the manner as prayed for. 6. Mr. Naidu, learned counsel for the Bank has opposed the said prayer by drawing the attention of the Court to the salient features of the case and to the impugned order Annexure-1. He submits, inter alia, that inquiry proceeding is pending. The petitioner in fact, is receiving subsistence allowance, and decision will be taken by the Bank as to whether the petitioner is entitled to receive pay and allowances from the date of his dismissal with effect from September 8, 1986 till reinstatement on June 19,1993. He has, however, strongly relied on a recent decision of the Apex Court reported in 1994 I LLJ 791 (Management of Reserve Bank of India., New Delhi v, Bhopal Singh Panchal). Byreading and construing the effect of Regulations 39,46 and 47 of the Reserve Bank of India (Staff) Regulations, 1984 together, the Apex Court considered the case of suspension of employee arrested for criminal offence. Byreading and construing the effect of Regulations 39,46 and 47 of the Reserve Bank of India (Staff) Regulations, 1984 together, the Apex Court considered the case of suspension of employee arrested for criminal offence. It has been held that on account of acquittal employee does not automatically become entitled to full pay and allowances for suspension period. Discretion in that matter rests exclusively in Bank and that power is unassailable. 7. In the aforesaid case, the Apex Court recorded that Regulations 39,46 and 47 leave no manner of doubt that in case of an employee who is arrested for an offence his period of absence from duty is to be treated as not being beyond circumstances under his control. In such circumstances, when he is treated as being under suspension during the said period, he is entitled to subsistence allowance. However, the subsistence allowance paid to him is liable to be adjusted against his pay and allowance if at all he is held to be entitled to the same by the competent authority. The competent authority while deciding whether an employee who is suspended in such circumstances is entitled to his pay and allowances or not and to what extent, if any, and whether the periods to be treated as on duty or on leave, has to take into consideration the circumstances of each case. It is only if such employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension that such employee will be entitled to full pay and allowances for the said period. In other words, his acquittal even if it is without blame or his release from detention even if his arrest is not on account of improper conduct on his part, does not automatically entitle the employee to full pay and allowances. The competent authority has to pass an order in each case taking into consideration all circumstances to treat the period of absence as period on duty before full pay and allowances become admissible to the employee. The Regulations vest the power exclusively in the Bank to treat the period of such suspension as on duty or on leave or otherwise. The power thus vested cannot be validly challenged. During this period, > the employee renders no work. The Regulations vest the power exclusively in the Bank to treat the period of such suspension as on duty or on leave or otherwise. The power thus vested cannot be validly challenged. During this period, > the employee renders no work. He is absent for reasons of his own involvement in the misconduct and the Bank is in no way responsible for keeping him away from his duties. The Bank, therefore, cannot be added with the liability to pay him his salary and allowances for the period. That will be against the principle of 'no work no pay' and positively inequitable to those who have to work and earn their pay. As it is, even during such period, the employee earns subsistence allowance by virtue of the Regulations. In the circumstances the Bank's power in that behalf is unassailable. The points have been detailed in para 5 and also in the concluding portion of the judgment. 8. Both Mr. Naidu and Mr. Patnaik refer to the judgment for proper appreciation of this Court. According to Mr. Naidu the ratio of the said judgment is squarely applicable to the facts of the present case. It is not a case where thisCourt should issue writ commanding the Bank in the manner as prayed for. Whereas Mr. Patnaik vehemently argues that the decision is quite applicable inasmuch as in the proper perspective the suspension with retrospective effect cannot be sustained. On the basis of the ratio of the decision in the case of H.L. Mehra v. Union of India (supra), the impugned order cannot be sustained and the consequential benefits are to be received by the petitioner as a matter of course. 9. We have considered the submission of learned lawyers for the respective parties. An-nexure-1, the impugned order runs as follows: "In view of your acquittal on the benefit of doubt with judgment dated August 6, 1992 of Hon'ble High Court of Orissa in Criminal Appeal No. 163 of 1986 tiled with you, it has been decided to reinstate you in Bank's service. However, as per para 19.3 (c)read with para 19.3 (d) of Bipratite Settlement, it is decided to proceed with holding of domestic enquiry in respect of charges leveled against you vide charge-sheets dated April 5,1978 and July 17,1978 (subsequently amended on August 5,1978) and served on you. However, as per para 19.3 (c)read with para 19.3 (d) of Bipratite Settlement, it is decided to proceed with holding of domestic enquiry in respect of charges leveled against you vide charge-sheets dated April 5,1978 and July 17,1978 (subsequently amended on August 5,1978) and served on you. Since it has been decided to hold domestic enquiry in connection with the charge-sheets already served on you as stated above, but stayed on account of original proceedings pending against you, the suspension order passed by the Bank vide its letter No. 539/78 dated August 28, 1978 will continue till you hear from us in this regard. It may be noted that from the date of your suspension i.e., August 28, 1978 till the dateI of reinstatement, you will not be eligible for full pay and allowance. This period will not also be treated as 'spent on duty'. In other words, you will not be eligible for any amount except the subsistence allowance al ready paid. The receipt of the letter may please be acknowledged." 10. We find on a proper analysis and scrutiny that there are two parts of the order. First part of the order refers to reinstatement. Subsequent part is regarding continuance of the domestic enquiry on the earlier charge-sheet and the order of suspension. 11. The petitioner has admittedly received subsistence allowances up to his formal dismissal made on November 28, 1988. Once there was an order of dismissal the question of suspension ended. If there is an order of reinstatement a new chapter begins. Here the claim of the petitioner is very much positive and limited. The answer of the Bank is also to be considered in the light of the Judgment reported in State of Haryana Vs. Hari Ram Yadav and others. The claim of the petitioner is limited to the period from November 28,1988 i.e., the date of his dismissal till the date of reinstatement effected on June 19, 1993. This claim is to be considered strictly in terms of the ratio and the principle enunciated in the case of the Management of Reserve Bank of India, v. Bhopal Singh Panchal (supra). In each case the matter has to be considered in the proper perspective. The relevant factors for consideration have been indicated in the said decisions. This claim is to be considered strictly in terms of the ratio and the principle enunciated in the case of the Management of Reserve Bank of India, v. Bhopal Singh Panchal (supra). In each case the matter has to be considered in the proper perspective. The relevant factors for consideration have been indicated in the said decisions. The Bank has to take into account the relevant factors and treat the period of absence as period on duty before full pay and allowances are admissible to the employee. The Reserve Bank had its own Service Rules, Regulations and Bipartite Settlement. Parties are governed by the Rules, Regulations and Bipartite Settlement, if any. 12. In view of the aforesaid discussion and above referred facts, we are of the view that the Bank while passing the final order in the departmental proceeding will have to take proper decision whether considering all the relevant factors the petitioner would be entitled to full pay and allowances from September 8, 1986 till May 19, 1993. Regard being had to the facts and circumstances of the case and considering the points of law as discussed above, we dispose of this case with a direction to the Bank to take decision de hors the observation made in An-nexure-1 with regard to reinstatement and continuance of the suspension and dispose of the departmental proceeding within six months of communication of this judgment. The decision has to be taken in view of the judgment in 1994 I LLJ 791 (SC) (supra) referred to earlier. No order as to cost. Dipak Misra, J. 13. I agree.