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2011 DIGILAW 223 (KAR)

Jayashree Vani v. Bank of India

2011-02-25

MOHAN M.SHANTANAGOUDAR

body2011
Judgment :- Petitioner joined the services of respondent-Bank as a Clerk on 12.8.1984. She was posed to work as Chief Cashier at the Bangalore Main Branch of the bank on 29.1.2004. However, in the month of April 2004, it was found that there was shortage of cash to the tune of Rs.7,70,000/-. The same was intimated by the petitioner to the bank and consequently, the bank lodged the complaint in Upparpet Police Station, Bangalore, on 4.4.2004. On the next day i.e., on 5.4.2004, the petitioner was placed under suspension. The police have registered the complaint and the matter was investigated by the police. Simultaneously, charge sheet was issued to the petitioner by the Disciplinary Authority after issuing Memorandum calling for the explanation of the petitioner. An Enquiry officer was appointed in the month of July 2004. On 1.9.2004, the petitioner approached this Court by filing Writ Petition No.34849/2004. This Court stayed the disciplinary enquiry proceedings for a period of four weeks initially, which was continued from time to time till the disposal of the writ petition on 16.9.2009. On 16.9.2009, the aforementioned writ petition came to be allowed by holding that the enquiry proceedings cannot be proceeded with during the pendency of criminal trial and while setting aside the order impugned, this Court restrained the respondent from continuing with the disciplinary proceedings. The order passed in the writ petition was questioned by the Bank in Writ Appeal No.276/2010 (S-DE). The said Writ Appeal came to be allowed on 17.8.2010 and consequently, the writ petition filed by the petitioner was dismissed, holding that the enquiry proceedings during the pendency of criminal trial can go on. The order passed by the Division Bench in Writ Appeal is confirmed by the Apex Court. Petitioner made a representation to the bank on 17.8.2010 relying upon the Bipartite Settlement claiming full salary and allowances as subsistence allowance during the period of suspension. 3. The competent authority rejected the representation of the petitioner for grant of full pay and allowances during the period of suspension on 5.10.2010 as per Annexure – ‘K’ on the ground that the enquiry is delayed on account of the petitioner and the reason for delay is clearly attributable to her action only. 3. The competent authority rejected the representation of the petitioner for grant of full pay and allowances during the period of suspension on 5.10.2010 as per Annexure – ‘K’ on the ground that the enquiry is delayed on account of the petitioner and the reason for delay is clearly attributable to her action only. According to the Bank, the action of the petitioner in approaching this Court and getting the order of stay prohibits her from getting full salary and allowances as subsistence allowance during the period of suspension. The order at Annexure – ‘K’ is called in question in this writ petition. 4. Though the order vide Annexure – ‘P’ by which the petitioner is not permitted to engage an Advocate to defend her in the departmental enquiry is questioned in the writ petition, no arguments are addressed by the petitioner’s counsel on the said issue. Hence, the same is not considered. 5. It is relevant to note Clause-5 of the Bipartite Settlement dated 8th September 1983, which deals with the aspect of subsistence allowance, before proceeding further. The same reads as under: “Clause – 5: Subsistence Allowance: In partial modification of paragraph 557 of the Sastry Award and paragraph 17.14 of the Desai Award, the following provisions shall apply in regard to payment of subsistence allowance to workmen under suspension in respect of the banks listed in Schedule:- (a) Where the investigation is not entrusted to or taken up by an outside agency (i.e., Police/CBI), subsistence allowance will be payable at the following rates: (i) For the first 3 months 1/3 of the pay and allowance. (ii) Thereafter ½ of the pay and allowance. (iii) After one year, full pay and allowances if the enquiry is not delayed for reasons attributable to the concerned workman or any of his representatives. (ii) Thereafter ½ of the pay and allowance. (iii) After one year, full pay and allowances if the enquiry is not delayed for reasons attributable to the concerned workman or any of his representatives. Where the investigation is done by an outside agency and the said agency has come to the conclusion not to prosecute the employee, full pay and allowances will be payable after 6 months from the date of receipt of report of such agency, or one year after suspension, whichever is later and in the event the enquiry is not delayed for reasons attributable to the workman or any of his representatives.” (Emphasis supplied) From the above, it is clear that one year after suspension, the employee placed under suspension is required to be paid full pay and allowances if the enquiry is not delayed for the reasons attributable to the workman. By the impugned order, the prayer of the petitioner for grant of full pay and allowances is rejected by the respondent-Bank on the ground that the delay in disciplinary proceedings is attributable to the petitioner. 6. As aforementioned, the petitioner was placed under suspension on 5.4.2004. First information before the police was lodged by the bank and the same was investigated and investigation report is filed by the police. Criminal trial is being proceeded with. Simultaneously, disciplinary enquiry is also initiated against the petitioner by the bank and Enquiry officer is appointed. The enquiry is also being conducted. The petitioner having felt that if proceedings, simultaneously in the domestic enquiry as also in the criminal case grounded on the same set of facts, are continued, the same would result in prejudice, approached this Court by filing Writ Petition No.34849/2004 on 1.9.2004. This Court granted an interim order of stay, staying the enquiry proceedings on 10.9.2004 initially for a period of four weeks. The said interim order was continued from time to time till the disposal of the writ petition i.e., till 16.9.2009. Based on the aforementioned facts, the Bank is of the opinion that the petitioner was responsible for the delay in the disciplinary action from 10.9.2004 till 16.9.2009 and therefore, she is not entitled to the benefit of full pay and allowances towards subsistence allowance. Based on the aforementioned facts, the Bank is of the opinion that the petitioner was responsible for the delay in the disciplinary action from 10.9.2004 till 16.9.2009 and therefore, she is not entitled to the benefit of full pay and allowances towards subsistence allowance. According to the bank, the enquiry is delayed for the aforementioned reasons attributable to the petitioner as she approached this Court by filing the writ petition and got interim order of stay. 7. Sri M.N. Prasanna, learned counsel appearing for the petitioner by relying upon the judgment of the Apex Court in the case of B.D. Shetty and others vs. CEAT Ltd. and another { (2002) 1 SCC 193 } contends that an act of approaching the Court of law by the petitioner cannot be presumed to have been made to delay the disciplinary enquiry proceedings. In the matter of B.D. Shetty (cited supra), the Apex Court was considering almost the similar case. In the said matter, the suspended employee was entitled to subsistence allowance at the rate of 75% of the wages, if the delay in completion of disciplinary proceedings against the workman is not directly attributable to the conduct of such workman. The Apex Court after considering the words “directly attributable to the conduct of such workman”, concluded that the act of approaching the Court by the workman to safeguard his interest cannot be treated as the reason directly attributable to the conduct of such workman. Sri Pradeep S. Sawkar, learned counsel appearing on behalf of the respondent tried to distinguish the said judgment by relying upon the judgments of the Apex Court in the case of State of Gujarat & Others vs. Dilipbhai Shaligram Patil ( AIR 2006 SC 3091 ) and in the case of Kanoria Chemicals and Industries Ltd. and other vs. U.P. State Electricity Board and others { (1997) 5 SCC 772 }. According to him, as the interim order granted by this Court in Writ Petition No.34849/2004 has merged in the final order passed in Writ Appeal No.276/2010; since the Writ Appeal No.276/2010 is decided against the petitioner herein, the petitioner cannot take advantage of the interim order granted in the writ petition; and that if the earlier proceedings in Writ Appeal No.276/2010 were to be decided in favour of the petitioner herein, then only it can be said that the petitioner is not responsible for delaying the disciplinary proceedings. Sri Sawkar also laid emphasis on the word “directly” which is absent in Clause-5 of the Bipartite Settlement in question. 8. The plain reading of Clause-5 of the Bipartite Settlement dated 8th September 1983 quoted above clearly reveals that only if the enquiry is delayed for the reasons attributable to the workman, he/she is not entitled to full pay and allowances after one year as subsistence allowance. If the workman approaches the competent Court bona fidely to protect himself/herself from prejudice likely to be caused by continuing the proceedings simultaneously in domestic enquiry as also in the criminal case grounded on the same set of facts and succeeds in getting the interim order from the Court staying further proceedings in the disciplinary proceedings, it cannot be said that the delay on that account in completion of disciplinary proceedings is for the reasons attributable to the conduct of the workman. It is needless to observe that the workman is entitled to free and fair trial in the criminal case. The interim orders are not granted by the Courts on mere asking for the interim order. The Court will apply its mind judiciously to the facts of the case before granting an interim order. Only if the Court is prima facie satisfied about the petitioner’s case, the interim order will be granted. If the workman, in order to protect himself from the prejudice that may be caused by simultaneous proceedings, approaches the competent Court and in such matter, if the Court grants an interim order of stay of further proceedings in the domestic enquiry, the delay caused on that account in completion of domestic enquiry is not for the reason attributable to the conduct of such workman because granting of stay of further proceedings in the domestic enquiry does not depend on the pleasure and mere wish of the workman himself. In a given case, the Court may grant interim order or may not grant interim order. It is always open for the employer to oppose the interim order or get it vacated by filing an application for vacating the interim order. In a given case the Court may grant ex parte interim order at the first instance. However, after hearing both parties at length, may vacate the interim order or may dismiss the main matter itself. In such a situation, the litigant who approaches the Court to protect his rights cannot be blamed. A litigant having good case on merits, having felt that his legal right is being violated, approaches the Court and gets an interim order of stay, the same cannot be said that the delay occurred due to such interim order is attributable to the employee. In case, if the workman is denied subsistence allowance to which he is legally entitled to even in the matters where he may have a legal right and good case on merits, he may be forced to suffer in silence. As has been held by the Apex Court in the case of B.D. Shetty (cited supra), if such a delay is to be taken as governed by the provisions dealing with subsistence allowance, it may amount to in a way putting restraint or clog on the exercise of legal right of a workman to approach the Court of law sue to fear of losing subsistence allowance at the rate of 100%. Merely because legal proceedings were pending before this Court and they took some time for disposal, may be inevitable, that itself cannot be a ground to deny the subsistence allowance to the petitioner against the statutory obligation created on the employer under Clause-5 of the Bipartite Settlement. One must not lose sight of the fact that the provision of subsistence allowance is made with an intention to serve a definite purpose of sustaining the workman and his family members during bad times while he/she is under suspension, pending enquiry. It was open for the employer to resist granting of an interim order by this Court. It was also open for the employer to get the stay order vacated by satisfying the Court on facts and circumstances of the case. Such action is not taken by the respondent/Bank. It was open for the employer to resist granting of an interim order by this Court. It was also open for the employer to get the stay order vacated by satisfying the Court on facts and circumstances of the case. Such action is not taken by the respondent/Bank. If the employer was of the opinion that the stay order needed to be vacated, he could have filed necessary application for vacating the interim order. In the matter on hand, as mentioned above, the competent court had granted the stay order, staying the disciplinary proceedings and such stay order continued for about five years. In view of the same, it cannot be said that the petitioner being the workman is responsible for delaying the disciplinary proceedings. 9. It appears, reference to the “delay for the reasons attributable to the conduct of the workman” is obviously to the one where the workman unjustifiably, deliberately or designedly drags on or prolongs the domestic enquiry. If the workman goes on taking adjournment on one pretext or the other before the Enquiry Officer with a view to delay the proceedings unnecessarily, such action of the workman can be termed as the reason for the delay attributable to the workman. To put it in other way, workman cannot be permitted to take advantage of delay caused by him in the absence of any order passed by the Court. In the case of State of Gujarat ( AIR 2006 SC 3091 ) (cited supra), relied upon by the learned counsel for the respondent, the facts are totally different. In the said matter, by virtue of the interim order, the workman was reinstated. However, the final order was adverse to him. In that context, it was held by the Supreme Court that merely because the petitioner was reinstated by virtue of an interim order, the same cannot be a ground for allowing the petition since the interim order depends on the final order. The Apex Court has held that the petitioner is bound by the final order. That does not mean that workman in that case is not entitled to the pay during the period of pendency of the matter before Court. As he has worked pursuant to interim order, he cannot be denied wages for such period merely because the matter is dismissed ultimately. That does not mean that workman in that case is not entitled to the pay during the period of pendency of the matter before Court. As he has worked pursuant to interim order, he cannot be denied wages for such period merely because the matter is dismissed ultimately. The Apex Court in the case of Kanoria Chemicals and Industries Ltd. ( (1997) 5 SCC 772 ) (cited supra), was dealing with the issue of levy of duty. There cannot be any doubt that duty or penalty cannot be avoided to be paid if ultimately the matter is dismissed on merits. The liability to pay duty or penalty would be merely kept in abeyance during the subsistence of interim order. However, once the interim order is vacated, liability continues with retrospective effect. But the facts in the matter on hand are entirely different. As aforementioned, the question involved in the present matter is as to whether the petitioner can take advantage of the period of the stay order granted by this Court staying the disciplinary proceedings for the purpose of claiming subsistence allowance as per Clause-5 of Bipartite Settlement. In my considered view, the matter on hand is fully covered by the judgment of the Apex Court in the case of B.D. Shetty (cited supra). The words “directly” as found in the relevant statute in B.D. Shetty’s matter does not make any difference while dealing with such matters. Even in the absence of such a word, different interpretation cannot be given. This is clear from the judgment in the case of B.D. Shetty itself. The relevant portion of which reads thus: “Para-12: xxx xxxx xxxx It appears, reference to the delay directly attributable to the conduct of the workman in the said provision is obviously to the one where the workman unjustifiably, deliberately or designedly drags on or prolongs the domestic inquiry. To put it in other way, a workman cannot be permitted to take advantage of delay caused by himself in the absence of any order passed by a court.” From the above, it is clear that, only if the workman causes the delay in the absence of the Court order, such action of him would be a reason attributable to him to deny full pay and allowances as subsistence allowance. In view of the above, the impugned order is liable to be quashed. In view of the above, the impugned order is liable to be quashed. Accordingly, the following order is made: The impugned order vide Annexure – ‘K’ dated 5.10.2010 passed by the respondent, stands quashed. The petitioner is entitled to full pay and allowances as subsistence allowance after one year from the date of initiation of disciplinary proceedings since the enquiry is not delayed for the reasons attributable to him. Writ Petition is allowed accordingly.