Andhra
Bank Vs. W.T.Seshachalam [2004] Insc 9 (5 January 2004)
Brijesh
Kumar & Arun Kumar. Brijesh Kumar, J.
The
point involved in this appeal is short and relates to the question as to what
amount, the appellant is liable to pay as subsistence allowance to the
respondent during the period he remained under suspension, in the light of the
provisions as contained in the Sastry Award, Desai Award and the Bipartite
Agreement on the subject as well as the rules of the bank. The learned single
Judge held that the respondent was entitled to full salary as subsistence
allowance right with effect from 1.6.1991 in accordance with para 17.14 of the
Third Bipartite settlement. On appeal before the Division Bench it was held
that the respondent would though be entitled to the amount of full salary as
subsistence allowance but from 10.3.1994 to 14.7.2001, the date on which the
respondent was dismissed from service.
The
respondent was employed as a clerk in the appellant Andhra Bank and was working
as cashier at Chennai.
On
21.5.1990 a fire broke in the cash cabin in connection whereof it appears a
police report was also lodged on 1.6.1990.
The
petitioner was placed under suspension during the "regular departmental
action".
A
charge-sheet was filed against the respondent in the criminal case under
Section 409/436 of the Indian Penal Code in July, 1993. A charge memo was
issued to the respondent by the appellant on 29.12.1993. The respondent was
convicted by the Trial Court by order dated 25.1.1994. The appeal of the respondent
was, however, allowed and his conviction and sentence was set aside by the
appellate Court by order dated 10.3.1994. After the acquittal of the respondent
an enquiry officer was appointed on 13.9.1994 to hold an enquiry into the
departmental proceedings.
The
respondent filed a writ petition no.9730 of 1995 with a prayer for payment of
full salary as subsistence allowance in view of clause 5(a)(iii) of the Third
Bipartite settlement. As indicated earlier, the learned single Judge allowed
the writ petition holding that the respondent was entitled to full salary as
subsistence allowance with effect from 01.06.1991. The appeal preferred against
the said order by the bank remained unsuccessful and it was held that the
respondent was entitled to full salary as subsistence allowance but with effect
from 10.3.1994 to 14.07.01. The learned single Judge found that in view of
clause 5 of Bipartite Agreement, para 17.14 alone would be applicable to the
petitioner's case. It also did not accept the case of the appellant that the
respondent was responsible for prolonging the enquiry. The Division Bench in
appeal upheld the above findings.
We may
now peruse the relevant provisions as it regards to payment of subsistence
allowance. Para 557 of the Sastry Award provides as
under :
"557.
Having considered the matter in all its aspects, we think that suspension
allowance should be granted on the following scale:-
(1)
For the first three months one-third of the pay and allowances which the
workman would have but for the suspension;
(2)
Thereafter, where the enquiry is departmental by the bank, one-half of the pay
and allowances for the succeeding months. Where the enquiry is by an outside
agency, one-third of the pay and allowances for the next three months and
thereafter one-half for the succeeding months until the enquiry is over."
Clause 17.14 of the Desai Award is to the following effect:- "17.14. I
make an award in connection with this item in terms similar to those contained
in paragraph 557 of the Sastry Award quoted above." Thereafter, it appears
that Third Bipartite Agreement dated 9.9.1983 was entered into by which
paragraph 557 of the Sastry Award and Clause 17.14 of the Desai Award were
partially modified. Para 5 of the Bipartite agreement reads
as under :
"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 1.
(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 allowances which the workman would
have got but for the suspension.
(ii)
Thereafter = of the pay and allowances.
(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
representative." So far the position as regards payment of subsistence
allowance in the Service Conditions of the Bank, is concerned it is provided as
follows:- "1. Subsistence allowance during the period of suspension should
be granted on the following scale:
A.
Where the enquiry is departmental by the bank:
(1) where
the investigation is not entrusted to, or taken up by an outside agency (i.e.,Police/
CBI):
(a) for
the first three months of suspension one- third of the pay and allowances which
the workman would have got but for the suspension.
(b)
for the period of suspension, if any, thereafter, one-half of the pay and allowances
which the workman would have got but for the suspension provided that after one
year of suspension full pay and allowances will be payable if the enquiry is
not delayed for reasons attributable to the concerned workman or any of his
representatives.
(2)
Where the investigation is done by an outside agency (i.e., Police/C.B.I.), and
such investigation is followed by a departmental enquiry by the bank and not by
prosecution:
(a) for
the first three months of the suspension one-third of the pay and allowances
which the workman would have got but for the suspension;
(b) for
the period of suspension, if any, thereafter, one-half of the pay and
allowances which the workman would have got but for the suspension;
Provided
that full pay and allowances will be payable after six months from the date of
receipt of report of the investigating agency that it has come to the
conclusion not to prosecute the employee or one year after the date of
suspension, whichever is later;
And
provided further that the enquiry is not delayed for reason attributable to the
concerned workman or any of his representatives.
B.
Where the enquiry is held by an outside agency including a trial in a criminal
Court (irrespective of whether the enquiry/trial is preceded by an investigation
by an outside agency (i.e. Police/C.B.I.) or not:
(a) for
the first six months of the suspension one-third of the pay and allowances
which the workman would have got but for the suspension;
(b) for
the period of suspension, if any, thereafter, one-half of the pay and
allowances which the workman would have got but for the suspension, until the
enquiry is over." From a perusal of the provisions quoted above it is
apparent that some special significance has been attached where the enquiry is
made by an outside agency and the case where it is not by an outside agency. It
then appears that the other factor which has been kept in consideration is the
suspension during the departmental enquiry or the criminal prosecution. Since
the Sastry Award and Desai Award have been modified by para 5 of the Third
Bipartite agreement it would be appropriate to consider the same. Clause (a) of
para 5 provides where investigation is not entrusted to or taken up by an
outside agency i.e. police/CBI the subsistence allowance will be 1/3 of the pay
for the first three months thereafter one-half of the pay and allowances.
Sub-clause (iii) of clause (a) then provides for full pay and allowances as
subsistence allowance after one year provided enquiry is not delayed for the
reasons attributable to the workman. The claim of the respondent is based on
this first part of sub-clause (iii) of clause (a) of para 5. It is submitted
that clear finding has been recorded by the High Court that no delay was caused
by the respondent. Then we find that the latter part of sub-clause (iii) of
clause (a) of para 5 provides that where investigation is by an outside agency
and the said agency has come to conclusion not to prosecute the employee, full
pay and allowances will be payable after six months from the date of the report
of such agency or one year after suspension whichever is later, provided the
enquiry is not delayed by reasons attributable to the workman.
Learned
counsel for the appellant has laid much emphasis on the fact that where enquiry
is entrusted to an outside agency and it is decided to prosecute an employee he
would not be entitled to full salary and allowances as suspension allowance.
In the
present case, it is submitted that enquiry was conducted by an outside agency
and a conclusion was also arrived at to prosecute the respondent. As a matter
of fact, he was prosecuted and also convicted by the Trial Court though
acquitted in appeal.
Therefore,
throughout the period of suspension even after conclusion of the trial and
acquittal he would be disentitled for full pay and allowances as subsistence
allowance during the period covered by departmental proceedings alone, merely
by reason of the fact that after investigation by an outside agency it had
decided to prosecute the employee. We, however, feel unable to accede to the
said contention. From a reading of para 5 as a whole, three types of cases are
culled out.
One
where an outside agency may not be involved in the investigation. In that event
for the first three months 1/3 of the pay and allowances would be payable as
suspension allowance whereafter it would be increased to one-half of the pay
and allowances and after one year full pay and allowances provided enquiry is
not delayed for the reasons attributable to the workman concerned. The next
category of cases would be where investigation is done by an outside agency and
the said agency comes to a conclusion not to prosecute the employee. In such a
situation the workman would be entitled to full pay and allowances after six months
from the date of receipt of the report of the agency. The latter part as
contained in sub-clause (iii) of clause (a) of para 5 would cover cases of
criminal nature. We find this distinction in view of the fact, that
investigation is not entrusted to outside agency namely, police and CBI for the
departmental proceedings. Such cases, in our view, would be covered by clause
(a) (i), (ii) and the first part of sub-clause (iii). It is for prosecution in
a criminal case that investigation is entrusted to the outside agency, namely
the police or CBI. Therefore, we are of the opinion that the later part of
sub-clause (iii) relates to investigation for the purpose of criminal
prosecution. Even in such cases full pay and allowances are payable as
subsistence allowance where the outside agency comes to a conclusion to not to
prosecute the employee. That is to say, in such an event they are at par in the
matter of payment of subsistence allowance, as the employees in the
departmental proceeding.
We do
not find anything further provided in sub- clause (iii) of para 5. That is to
say where the outside investigating agency comes to a conclusion to prosecute
and launches such prosecution. In any case, in our view, a person who is
prosecuted criminally but ultimately acquitted of the criminal charges cannot
be placed in a worse position in the matter of subsistence allowance as
compared to those, where the outside agency itself had concluded not to
prosecute. After acquittal, clout of criminal prosecution comes to an end and
in case only departmental proceedings continue or remain pending or initiated
thereafter, they would be guided only by the provisions applicable, for
departmental proceedings in the matters relating to payment of subsistence
allowance. The conclusion of the investigating agency to prosecute, would lose
its effect or relevance on acquittal in the criminal case.
In the
present case as about the factual position, we find that the order dated
1.6.1990 provides for suspension of the respondent pending regular departmental
action. Criminal trial cannot be termed as departmental action. The
charge-sheet was submitted in the criminal case in July, 1993 and in the
departmental proceedings, a charge sheet was issued on 29.12.1993. The criminal
case ended in acquittal ultimately by order dated 10.3.1994 passed in appeal.
It was six months thereafter that an enquiry officer was appointed to conduct
the departmental proceedings. The departmental action was contemplated/initiated
against the respondent as a result of which suspension order was passed on
1.6.1990. Charge-sheet having been issued on 29.12.1993 the departmental action
continued till it ended in 14.7.2001 when the departmental proceedings
concluded in dismissal of the respondent. During this period from 1.6.1990 to
14.7.2001 there has been overlapping period of criminal proceedings which came
to an end on 10.3.1994.
Learned
counsel for the appellant submits that order of suspension and the period
following thereafter is one single indivisible period of suspension as
envisaged under the relevant provisions. It cannot be compartmentalized as
period of suspension during criminal case or the departmental action. It is
submitted that once an outside agency is involved in investigating into the
matter which takes a decision to prosecute, the same position would continue
irrespective of the fact that the subsequent period may not be covered by any
criminal prosecution or it may be only covered by departmental action.
But,
as indicated earlier, it is difficult to accept this argument because the
payment of subsistence allowance has been made subject to different conditions
in which the factors which are relevant are where the investigation is by an
outside agency i.e. the police or CBI which obviously, be for criminal
prosecution and the other category of cases are those where outside agency is
not involved. Such cases would of course be for the purpose of departmental
action. The suspension order, in the case inhand was passed during pendency of
"regular departmental action", in the meantime prosecution was
launched after investigation by outside agency which failed, but the
departmental action continued for years thereafter. The enquiry officer was
appointed for the departmental proceedings after acquittal of the respondent.
To make the "conclusion of the outside agency to prosecute" as the
basis for not paying full amount as suspension allowance indefinitely during
all the period of departmental proceedings even after the criminal prosecution
ended in acquittal much earlier, will amount to subjecting an acquitted person
of the rigors of provisions which are applicable in the matters relating to
criminal cases. Learned counsel for the appellant submits that the result of
the prosecution is immaterial. To this extent the argument cannot be faulted
with. It cannot be said nor it is anybody's case that due to subsequent
acquittal the workman would be entitled for full pay and allowances as
subsistence allowance during pendency of criminal case but for the period
beyond the date when acquittal was recorded and suspension continued because of
the regular departmental action it cannot be said that the same provision will
continue to be applicable which was applicable during the period of criminal
prosecution.
Learned
counsel for the appellant submits that his contention is also fortified by the
service rules applicable in such matters and has placed reliance upon para B of
rule 1 which reads as under :
"B.
Where the enquiry is held by an outside agency including a trial in a criminal
Court (irrespective of whether the enquiry/trial is preceded by an
investigation by an outside agency (i.e. Police/C.B.I.) or not:
(a) for
the first six months of the suspension one-third of the pay and allowances
which the workman would have got but for the suspension;
(b) for
the period of suspension, if any, thereafter, one-half of the pay and
allowances which the workman would have got but for the suspension, until the
enquiry is over." The above provision takes care of only criminal
prosecution. The learned counsel for the respondent has drawn our attention to Para A of rule 1 which is quoted below :
"A.
Where the enquiry is departmental by the bank:
(1) where
the investigation is not entrusted to, or taken up by an outside agency (i.e.,Police/
CBI):
(a) for
the first three months of suspension one- third of the pay and allowances which
the workman would have got but for the suspension.
(b)
for the period of suspension, if any, thereafter, one-half of the pay and
allowances which the workman would have got but for the suspension provided
that after one year of suspension full pay and allowances will be payable if
the enquiry is not delayed for reasons attributable to the concerned workman or
any of his representatives.
(2)
Where the investigation is done by an outside agency (i.e., Police/C.B.I.), and
such investigation is followed by a departmental enquiry by the bank and not by
prosecution:
(a) for
the first three months of the suspension one-third of the pay and allowances
which the workman would have got but for the suspension;
(b) for
the period of suspension, if any, thereafter, one-half of the pay and
allowances which the workman would have got but for the suspension;
Provided
that full pay and allowances will be payable after six months from the date of
receipt of report of the investigating agency that it has come to the
conclusion not to prosecute the employee or one year after the date of
suspension, whichever is later;
And
provided further that the enquiry is not delayed for reason attributable to the
concerned workman or any of his representatives." It is rightly pointed
out by the learned counsel for the respondent that para A of rule 1 includes
the provision of para 5 of the bipartite agreement. Clause (1) of part (A) of
rule 1 apparently relates to the departmental action and clause (2) where the
investigation is by an outside agency, namely the police or the CBI. In our
view, the position relating to departmental proceedings and the proceedings
taken after investigating agency coming to a conclusion not to prosecute which
entitles the workman to full pay and allowances as subsistence allowance after
one year, will also be applicable where in the intervening period criminal
prosecution was launched after investigation by an outside agency ending in
acquittal but departmental proceedings continued /started or thereafter. In
such cases the workman would be entitled for full pay and allowances as
suspension allowance. The interpretation as suggested on behalf of the
appellant to subject the employee to the rigours of rules pertaining to payment
of subsistence allowance which apply where the criminal prosecution is decided
to be launched, even for the period after the acquittal during departmental
action, would be self-contradictory and against the obvious meaning emerging
out of the provisions discussed above.
We,
therefore, find no merit in the appeal and it is accordingly dismissed.
Costs
easy.
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