Jammu & Kashmir High Court
Gulshan Choudhary vs Punjab & Sind Bank And Ors. on 8 August, 2017
Bench: Dhiraj Singh Thakur, Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPASW No. 88/2017, MP No.1/2017.
Date of decision : 08.08.2017
Gulshan Choudhary V/s Punjab & Sind Bank and ors.
Coram:
Hon'ble Mr. Justice Dhiraj Singh Thakur, Judge
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For the appellant(s) : Mr. P. N. Raina, Sr. Advocate with
Mr. J. H. Hamal, Advocate.
For the respondent(s) : Mr. Sandeep Singh, Advocate for R - 1 to 3.
Mr. Ravinder Gupta, CGSC for R - 4.
i) Whether to be reported in : Yes / No. Press/Journal/Media
ii) Whether to be reported in : Yes / No. Digest/Journal (Per: D.S. Thakur-J)
1. The present Letters Patent Appeal has been preferred against the judgment and order dated 17.03.2017, passed by the learned Single Judge in SWP No. 2907/2016.
2. Briefly stated the material facts are as under:
3. The appellant herein filed a petition before the writ Court, challenging the order of his suspension dated 19.08.2016 on the ground that the same had been rendered illegal, inasmuch as, it had had not been followed by a charge- sheet within three months from the date of issuance thereof. The basis of this legal plea was the ratio of the Apex Court's judgment in case LPASW No. 88/2017 Page 1 of 6 titled "Ajay Kumar Choudhary V/s Union of India & anr." (2015)7 SCC 291, the petitioner claimed reinstatement after the expiry of three months and hence the petition.
4. The plea of the petitioner was resisted by the respondents in their objections, wherein it was stated that the allegations against the petitioner were serious in character, inasmuch as, during his tenure as probationary officer at the Branch Office at Srinagar, he had operated inoperative account of one Gandamal Bhanwarshar Lal, who had since died, transferred the amount in his personal account and subsequently withdrew the same through an ATM. It was stated that when the matter was brought to the notice of the authorities by the legal heirs of the deceased account holder, he was placed under suspension. It was further stated that the charge-sheet had been issued on 18.01.2017.
5. It was stated that the decision taken in Ajay Kumar Chaudhary's case was not applicable to the fact situation of the case in hand, as the service conditions of the petitioner were stated to be governed by the PSB Vigilance Manual, which prescribed the period of suspension not to ordinarily exceed six months and where it was not possible to adhere to the time limit, an explanation and report to the higher authority explaining the reasons for delay was envisaged.
LPASW No. 88/2017 Page 2 of 66. The writ Court quashed the order of suspension dated 19.08.2016 on the ground that six months period had already elapsed on 18.02.2017 and further gave liberty to the respondents to review the issue of suspension after following the procedure and mandate contained under The PSB Vigilance Manual.
7. In the present Letters Patent Appeal, the appellant herein is aggrieved of the judgment and order impugned on the ground that the same was contrary to the Apex Court judgment in Ajay Kumar Choudhary's case, inasmuch as, the charge-sheet had been filed much beyond the period of three months prescribed in the judgment (supra) and, therefore, the only course open in those circumstances was to order reinstatement of the appellant instead of granting liberty to the respondents to review the order of suspension in terms of PSB Vigilance Manual.
8. Heard learned counsel for the parties.
9. The learned Single Judge has placed reliance upon the provisions of the PSB Vigilance Manual. It would be appropriate to reproduce the same to understand its true nature and purport, which reads as under:-
"REVIEW OF SUSPENSION In respect of cases other than those pending in the courts, the total period of suspension should not ordinarily six LPASW No. 88/2017 Page 3 of 6 months, except in exceptional cases where it is not possible to adhere to this time limit then the Competent Authority should make a report to the next higher authority explaining the reasons for delay.
In cases where an official is deemed to have been placed under suspension due to his detention in police custody, as soon as the official is released from the police custody without any prosecution having been launched, the competent authority should review such cases as early as possible but within a maximum period of 30 days from the date the fact about his release was brought to the notice of the bank, to consider revocation of suspension and reinstatement of the official in the bank's service..."
10. In the backdrop of the aforementioned provisions, the issue that arises for consideration in the present case is as to whether in a case where order of suspension is not followed by the service of memorandum of charges/charge-sheet on the delinquent officer within three months, as has been held in Ajay Kumar Choudhary's case, could the respondents still continue the appellant under suspension only because the relevant regulations permitted suspension for a period of six months or even thereafter.
11. In Ajay Kumar Choudhary's case (supra), we find that the directions were clear and unambiguous and those were that the suspension order would not extend beyond three months if within that period the memorandum of charges/charge- sheet was not served upon the delinquent officer/employee and if the charge-sheet was served, a reasoned order would have to be passed for extension of the suspension.
LPASW No. 88/2017 Page 4 of 612. These directions were not made subservient to the rules and regulations as applicable to delinquent officers and employees in individual cases.
13. Admittedly, in the present case, the charges were served upon the petitioner on 18.01.2017, that was beyond the period of three months as envisaged in the judgment (supra) and failure to serve the charges within this period would indeed entitle the appellant to reinstatement. The respondents, therefore, by placing reliance upon the PSB Vigilance Manual could not have extended the period of suspension thereafter or invoke its power to review the same for purposes of extending the same.
14. Having considered the entire issue, we feel that the judgment and order impugned dated 17.03.2017 to the extent it gave a liberty to the respondents to review the suspension of the petitioner runs contrary to the Apex Court judgment in Ajay Kumar Choudhary's case and accordingly is set aside. Appeal is allowed.
15. Respondents are directed to reinstate the appellant forthwith. It would however be free to transfer the appellant to any other office within or outside the State, so as to prevent any interference in the enquiry being conducted against him.
LPASW No. 88/2017 Page 5 of 616. Disposed of accordingly along with connected MP.
SWP No. 1149/2017, MP No. 1/2017 During the course of arguments in LPASW No. 88/2017, we were informed that the respondents proceeded to pass a fresh order of suspension dated 04.05.2017. The records of the aforementioned writ petition were also called by us.
In view of the fact that LPASW No. 88/2017 filed by the petitioner stands already allowed with a direction to the respondents to reinstate him in service, order impugned dated 04.05.2017 in the instant writ petition is, therefore, legally unsustainable and is accordingly quashed.
Disposed of accordingly along with connected MP.
(Sanjay Kumar Gupta) (Dhiraj Singh Thakur)
Judge Judge
JAMMU
08.08.2017
(Muneesh)
LPASW No. 88/2017 Page 6 of 6