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CASE NO.:

Appeal (civil) 5456 of 2002

PETITIONER:

Andhra Bank

RESPONDENT:

W.T.Seshachalam

DATE OF JUDGMENT: 05/01/2004

BENCH:

Brijesh Kumar & Arun Kumar.

JUDGMENT:

JUDGMENT

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.

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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."

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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

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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,

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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

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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

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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.