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2013 DIGILAW 887 (CAL)

Thoudam Tombi Singh v. United Bank of India

2013-12-03

DIPANKAR DATTA

body2013
Judgment : 1. The petitioner is a retired employee of the respondent no. 1 Bank (hereafter the Bank). While being posted at the Singjamai Branch of the Bank, the petitioner was placed under suspension vide office order dated March 18, 1988 for his involvement in a criminal case initiated by the Central Bureau of Investigation. The petitioner was being tried for commission of offence punishable under Sections 420, 467 and 471 of the Indian Penal Code and under Section 5(2) of the Prevention of Corruption Act, 1947 read with Section 5(1)(d) thereof. 2. Despite 6 years having lapsed since the petitioner was placed under suspension, the trial could not conclude and accordingly it was decided by the competent authority of the Bank to revoke the order of suspension and to allow the petitioner to resume duty. An order to this effect was issued on March 25, 1994. The 3rd paragraph of the said order being relevant for a decision on this writ petition is quoted below: “Now, the undersigned upon consideration and review of the overall circumstances hereby revokes the said order of suspension of Singh with immediate effect provided that the entitlement, if any, of Sri Singh for the period of his suspension besides those already paid to him by way of subsistence allowance as well as his entitlement, if any, to increments and other benefits for the said period of his suspension will be determined after disposal of the said criminal case as pending against him.” 3. The petitioner resumed duty and on attaining the age of superannuation retired from service on February 29, 2008. Towards the end of the same year, December 15, 2008 to be precise, the learned Special Judge, Manipur East, delivered judgment in Special Trial No. 1 of 1988/4/91/1/96/4/96/1/97/5/97/2/98/2/99 (Central Bureau of Investigation v. 1. Moirangthem adhu Singh, 2. Thoudem Tombi Singh, 3. Wahengbam Jaikumar Singh). The prosecution, it was held, had failed to prove the guilt of the accused persons beyond reasonable doubt and accordingly they were acquitted on benefit of doubt. 4. After being acquitted, the petitioner submitted a representation on August 20, 2009, claiming recalculation of retirement benefits and refixation of pension and consequential benefits. The said claim was rejected by the Chief Manager of the Bank by an order dated October 8, 2009. 4. After being acquitted, the petitioner submitted a representation on August 20, 2009, claiming recalculation of retirement benefits and refixation of pension and consequential benefits. The said claim was rejected by the Chief Manager of the Bank by an order dated October 8, 2009. The relevant paragraphs of the said order read as follows: “On perusal of the aforesaid judgment dated 15.12.2008 it is observed that you were acquitted by Hon’ble Court on benefit of doubt. In the aforesaid background on record the matter was placed to the Competent Authority for his consideration and decision within the provisions laid down in Clause 3(c) of Memorandum of Settlement dated 10.4.2002 which, inter alia, provides that if acquittal of an Award Staff is by giving the benefit of doubt, the Award Staff concerned may be paid such pay and allowances as the Management may deem proper and the period of his absence would not be treated as a period spent on duty unless the Management so directs. The Competent Authority has since examined the matter and has decided that you will not be entitled to any further pay and allowances apart from what has already been paid to you by way of subsistence allowance during the period of your suspension and the said period would not be so treated as periods spent on duty, in assessment of the nature/gravity of the charge levelled against you in the criminal prosecution in the face of your acquittal on being given the benefit of doubt.” 5. By filing this writ petition dated August 12, 2010, the petitioner has sought for interference of this Court with the said order dated October 8, 2009. 6. I have heard Mr. Sanyal and Mr. Majumder, learned advocates for the petitioner and the Bank respectively. 7. Mr. Majumder, in support of the impugned order, has referred to various clauses of the Memorandum of Settlement (hereafter the M.O.S.) on disciplinary action and procedure, dated April 10, 2002. He contended that since the petitioner was not honourably acquitted but was acquitted on benefit of doubt, the competent authority of the Bank in his discretion was justified in denying the petitioner the relief claimed by him. 8. I am afraid, the contention of Mr. Majumder cannot be accepted. Clauses 3 and 4 of the M.O.S. have been referred to by Mr. Majumder. 8. I am afraid, the contention of Mr. Majumder cannot be accepted. Clauses 3 and 4 of the M.O.S. have been referred to by Mr. Majumder. The same, to the extent relevant for a decision on this writ petition, are quoted below: “Clause 3 (a) When in the opinion of the management an employee has committed an offence, unless he be otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted and in such a case he may also be suspended (b) If he be convicted, he may be dismissed with effect from the date of his conviction, or be given any lesser form of punishment as mentioned in clause 6 below. (c) If he be acquitted, it shall be open to the management to proceed against him under the provisions set out below in clauses 11 and 12 (infra) relating to discharges. However, in the event of the management deciding after enquiry not to continue him in service, he shall be liable only for termination of service with three months’ pay and allowances in lieu of notice. And he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full pay and allowances minus such subsistence allowance as he has drawn and to all other privileges for the period of suspension provided that if he be acquitted by being given the benefit of doubt he may be paid such portion of such pay and allowances as the management may deem proper, and the period of his absence shall not be treated as a period spent on duty unless the management so directs. Clause 4 If after steps have been taken to prosecute an employee or to get him prosecuted, for an offence, he is not put on trial within a year of the commission of the offence, the management may then, deal with him as if he had committed an act of ‘gross misconduct’ or of ‘minor misconduct’ as defined below, provided that, if the authority which was to start prosecution proceedings refuses to do so or come to the conclusion that there is no case for prosecution it shall be open to the management to proceed against the employee under the provisions set out below in clause 11 and 12 (infra) relating to discharge, but he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full wages and allowances and to all other privileges for such period. In the event of the management deciding, after enquiry, not to continue him in service he shall be liable only for termination with three months’ pay and allowances in lieu of notice as provided in clause 3 above. If within the pendency of the proceedings thus instituted he is put on trial such proceedings shall be stayed pending the completion of the trial, after which the provisions mentioned in clause 3 above shall apply.” 9. According to Mr. Majumder, since the trial had commenced before the criminal court, the Bank was precluded from proceeding against the petitioner departmentally till such time decision was given by such court. By the time the petitioner was acquitted on benefit of doubt, he had also retired from service and there being no scope for initiation of disciplinary proceedings after retirement, the Bank could not proceed against him. However, since the proviso in clause 3(c) of the M.O.S. permitted the Bank to pay such portion of pay and allowances as it deems fit and proper and the petitioner was put on notice while the order of suspension was revoked that his entitlement, if any, to increments and other benefits for the period spent under suspension would be determined after disposal of the criminal case, there is no infirmity in the order impugned. 10. The proviso in clause 3(c) cannot be torn out of context and applied to the petitioner. Clause 3(c) has to be read as a whole, of which the proviso is an integral art. 10. The proviso in clause 3(c) cannot be torn out of context and applied to the petitioner. Clause 3(c) has to be read as a whole, of which the proviso is an integral art. What clause 3(c) ordains is that if an employee is acquitted by an order of the criminal court, the management shall have the right to proceed against him departmentally in accordance with clauses 11 and 12 of the M.O.S. relating to discharges. However, if after enquiry, the management decides not to continue the employee in service, he shall be liable for termination of service with 3 months’ pay and allowances in lieu of notice. He shall also be deemed to have been on duty during the period of suspension, if any, and entitled to full pay and allowances minus subsistence allowance already drawn but in case he be acquitted by giving the benefit if doubt by the criminal court, he would be entitled to only such pay and allowances the management considers proper and the period of absence shall not be treated as a period spent on duty unless so directed by the management. The essence of clause 3 is, therefore, an enquiry culminating in a decision not to continue the delinquent employee in service. The various clauses relating to entitlement/non-entitlement would become operative only if a delinquent employee’s service is terminated after a proper enquiry. 11. Admittedly, no enquiry was conducted against the petitioner. The fact that the criminal court decided the case upon trial after the petitioner’s retirement from service and, therefore, the Bank could not proceed against him departmentally, is of no relevance having regard to the clauses of the M.O.S The petitioner having been acquitted by the criminal court, albeit on benefit of doubt, and there being no decision to terminate his service following an enquiry, the competent authority of the Bank did not have any authority to deprive him of the pay and allowances and other benefits over and above the subsistence allowance paid to him during the period spent under suspension. 12. In the result, the order impugned dated October 9, 2008, stands set aside. There shall be mandamus in terms of prayer ‘a’ of the writ petition. 12. In the result, the order impugned dated October 9, 2008, stands set aside. There shall be mandamus in terms of prayer ‘a’ of the writ petition. Let the petitioner be paid the entire financial benefits to which he is entitled as early as possible, but not later than 2 months from date of receipt of a copy of this order. 13. The writ petition stands allowed, without order for costs. Prayer for stay of operation of the order made by Mr. Majumder, learned advocate for the Bank is considered and refused.