Madhya Pradesh High Court
Arun Kumar Singh vs Bilaspur-Raipur Kshetriya Gramin Bank on 14 July, 1997
Equivalent citations: 1998(1)MPLJ343
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
ORDER D.M. Dharmadhikari, J.
1. The petitioner served as Clerk-cum-Cashier in Bilaspur-Raipur Kshetriya Gramin Bank which is Regional Rural Bank established under Regional Rural Banks Act, 1976. the service conditions of the Regional Rural Bank employees are governed by the statutory service rules framed in the year 1989 and a copy of which has been supplied to this Court.
2. The petitioner was placed under suspension by order made on 25-6-1980. A charge-sheet, however, was issued to him after a long delay of about four years, on 7-2-1984.
3. In all there were five Articles of Charges framed against the petitioner based on the same alleged misconduct that he prepared a false Transfer Responding Advice for a sum of Rs. 30,000/- issued from Tathari Branch of the bank. It was alleged that the petitioner prepared corresponding voucher and credit advice for Bilaspur Branch. Thus, the bank was put to loss by fraudulent withdrawal in the above sum because of the fraud and forgery committed by the petitioner.
4. The enquiry officer completely exonerated the petitioner of all the items of charges 1 to 5 on the ground that the bank failed to produce any evidence of alleged fraud and forgery against the petitioner and miserably failed to prove the charges. That is clear from the enquiry report dated 24-5-1985.
5. The disciplinary authority did not interfere with the findings and conclusions of the enquiry officer with regard to items of charges Nos. 1 to 4 relating to alleged forgery but differing from the opinion of the enquiry officer, it held item No. 5 of the charge-sheet as proved and imposed a punishment of withholding his one annual increment. Item No. 5 of the charge-sheet only alleges some dereliction of duty on the part of the petitioner and the said allegation reads as under:-
"While processing the fake transfer responding advice, you failed in your duties by not bringing to the specific attention of your superior the discrepancies that the fake T. R. Advice docs not bear rubber stamp of Thathari branch and there are overwritings and alterations on it, not authenticated with full signatures of the Branch Manager."
6. In his reply to the charge-sheet, the petitioner had stated that the concerned Transfer Response Advice was received in the mail by the then Chairman of the Bank who had put his initials on the same and thereafter it was despatched to the concerned section. It was, therefore, not his part of the duty to have pointed out any discrepancy in the Transfer Response Advice.
7. The disciplinary authority in rejecting the explanation of the petitioner on Item No. 5 of the charge and differing from the view expressed by the enquiry officer, gave his opinion to find the petitioner guilty of the said charge by stating thus:
"The Enquiry Officer records that 'the procedure was properly followed. And when once the voucher has been initialled and marked off to the office manager by the Chairman, the question of pointing out any discrepancies or otherwise does not arise.' Having studied the proceedings, I find that the fake TR advice was marked for OM and initialled by the Chairman along with a stake of dak which were similarly marked for various sections/departments to deal with. It is, therefore, the responsibility of various sections/departments to scrutinise the document without negligence and to take the requisite action. The person dealing with such paper has to safeguard the interests of the Bank. Any laxity or negligence deployed in discharge of duty cannot be ignored under the analogy that negligence of similar nature was committed at other occasions. Viewed from any angle, I find the employee guilty of gross negligence as enumerated in this charge. The act of gross negligence on his part has resulted in substantial loss to the Bank."
After coming, in the above manner, to conclusion of guilt of the petitioner, the disciplinary authority passed the following order of punishment in the said order itself which is quoted below:-
"In terms of rule 30 of Staff Service Regulation, I pass orders for stoppage of one annual increment in the pay scale applicable to him. The employee who is under suspension should be reinstated in service immediately and the period spent under suspension should be treated as period not spent on duty."
8. The petitioner preferred an appeal under the Service Regulations which was rejected on 6-3-1986. The petitioner has therefore, approached this Court under Article 226 of the Constitution seeking quashing of the impugned orders passed by the disciplinary and appellate authorities.
9. Shri Rajendra Menon, learned counsel who appears for the petitioner initially made a feeble attempt to assail the order of the disciplinary authority resulting in imposition of punishment of withholding of one annual increment of the petitioner. He, however, instead of pursuing the same, mainly attacked the last part of the order whereby the disciplinary authority directed that the period spent by the petitioner under suspension should be treated as "period not spent on duty."
10. The relevant service Regulation 30(4) with proviso thereto was read and commented upon on behalf of the petitioner to contend that it does not confer any arbitrary power on the disciplinary authority to treat the entire period of suspension as period not spent on duty. On behalf of the bank, Shri V. S. Shroti, learned counsel supported the order of the disciplinary authority, and placing interpretation on the provisions of the Regulation, has contended that as the petitioner was punished, it was within the power and discretion of the disciplinary authority to direct in what manner the period of his suspension should be treated i.e. as on duty, on leave or not on duty. On behalf of the petitioner, Shri Menon laid much emphasis on the circumstance that for long about four years' period between 25-6-1980 i.e. the date of suspension order and 7th February, 1984 i.e. the date of issuance of charge-sheet, the petitioner suffered suspension and loss of full pay for no fault on his part. The above period, in any case, could not have been directed to be treated as 'period not spent on duty' by the disciplinary authority. On behalf of the petitioner, therefore, it is prayed that this Court should interfere in the last part of the order of the disciplinary authority quoted above whereby he had directed the entire period spent under suspension to be treated as period not spent on duty so as to deprive the petitioner of full pay for the entire period including the period during which he was waiting for issuance of the charge-sheet.
11. I do not find in the Service Regulations any provision analogous to that which is to be found in the Service Rules applicable to Government servants fixing an outer limit of ninety days for issuing a charge-sheet after suspension and on failure thereof automatic revocation of order of suspension. This Court, however, can take other service rules applicable to government servants as a good guide for holding that 90 days should be taken to be a reasonable period within which the disciplinary authority should have issued a charge-sheet after suspending the petitioner. The delay in issuing charge-sheet is attributable solely to the employer, may be, as stated by the counsel on behalf of the respondent, that an in-depth probe and investigation had to be undertaken by the vigilance staff of the bank before issuing a charge-sheet. The fact remains that for no fault on the part of the petitioner, he had to suffer a long suspension waiting issuance of a charge-sheet. The question is whether the disciplinary authority was justified in treating even this period of suspension till the issuance of charge-sheet as period 'not spent on duty'. For answering this question, the relevant rule has to be critically examined which is to be found in the Proviso to Regulation 30(4) of the Regulations and it reads thus:
"Provided that if no penalty under clause..............is imposed.......... and if penalty is imposed.......... no order shall be passed......... The period during which an officer or employee is under suspension shall, if he is not dismissed from the service, be treated as period spent on duty, leave, or period not spent on duty as the officer who passes the final order may direct."
12. No doubt, the above mentioned power with regard to the treatment of period of suspension already undergone by the petitioner during course of disciplinary action is not in any manner restricted by any condition in the Regulation. The regulation also does not indicate the procedure as elaborate as to be found in F.R. 54 applicable to government servants. The regulation quoted above does not contemplate grant of any opportunity of show cause or hearing to the concerned employee who is likely to be affected by any adverse order. The Supreme Court in a case arising from Madhya Pradesh in M. Gopalkrishna Naidu v. State of M. P., 1968 MPLJ 49 = AIR 1968 SC 240 while examining the nature and scope of power of the competent authority under F.R. 54 in the matter of treating the suspension period with or without pay, read into the rule a requirement by implication of grant of fair opportunity of show cause to the employee who is likely to be affected adversely by such order. Interpreting similar provisions in F.R. 54, the Supreme Court has observed as under:
"The order as to whether a given case falls under Clause 2 or Clause 5 of the Fundamental Rule 54 must depend on the examination by the Authority of all the facts and circumstances of the case and his forming the opinion therefrom of two factual findings: whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified. Besides, an order passed under this rule would obviously affect the government servant adversely if it is one made under Clauses 3 and 5. Consideration under this rule depending as it does on facts and circumstances in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the government servant must be held to be an objective rather than a subjective function. The very nature of the function implies the duty to act judicially. In such a case, if an opportunity to show cause against the action proposed is not afforded, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice. Fundamental Rule 54 contemplates a duty to act in accordance with the basic concept of justice and fair play."
13. I have read carefully the contents of the above relevant part of the regulation conferring power on the disciplinary authority in the matter of treating the period spent by the employee under suspension. No doubt, an unrestricted discretionary power has been conferred on the disciplinary authority. However, where a discretionary power has been conferred on a quasi judicial authority, it is expected to exercise the same reasonably by applying its mind to the facts and circumstances of the case in hand. When such exercise of power is likely to result in adverse civil consequences, it is expected to grant fair opportunity of hearing or show cause and state reasons for its adverse decision. I respectfully rely on the above quoted observations of the Supreme Court made on FR 54. The rule of fair play and natural justice have to be read by implication in Regulation 30(4) as was read by the Supreme Court in F.R. 54. The competent authority in the instant case did not bestow any consideration to the vital circumstance that for a long period after suspension on 25-6-1980 the petitioner was only waiting for the issuance of charge-sheet till 7th February, 1984. The petitioner was not found guilty of the major charges of alleged fraud and forgery. He was only found guilty of some negligence in performance of duties for which he was given a minor punishment of withholding of one annual increment. The deprivation of full pay to him for the entire period of suspension has in fact resulted into inflicting of a much greater penalty on him. The petitioner was neither given a notice nor was heard on the question of depriving him of pay for the suspension period. His seniority is also likely to be affected by the impugned part of the order. This Court, therefore, concludes that the power under the proviso to Regulation 30(4) has not been validly exercised by the disciplinary authority and in consonance with principles of natural justice. This Court, therefore, has no hesitation in quashing the offending part of the order of the disciplinary authority (Annexure-E) dated 28-8-1985 whereby it directed that the period spent by the petitioner under suspension be treated as period "not spent on duty". On striking off the action of the competent authority to the extent indicated above, normally, the matter should be left for fresh decision by the authority after grant of due opportunity of show cause or hearing to the petitioner. But since in this case a long period has elapsed after the impugned action, and this petition has also been pending in this Court since 1986, this Court would be fully justified in exercise of its power under Article 226 of the Constitution to mould the relief in favour of the petitioner.
14. As has been stated above, comparing the petitioner's case with that of government servants, a charge-sheet should have been issued within a reasonable period of 90 days from the date of suspension. The petitioner, for no fault on his part, suffered suspension after expiry of 90 days from the date of his suspension till issuance of charge-sheet.
15. The petition, therefore, partly succeeds by quashing last part of the order of the disciplinary authority (Annexure-E) dated 28-8-1985 and by directing that the period commencing from the expiry of 90 days from the date of suspension made on 25-6-1980 till 7-2-1984 (i.e. the date of issuance of charge-sheet) spent by the petitioner under suspension shall be treated as period spent on duty for the purpose of full pay. The remaining part of the period spent by him on suspension shall be treated as period not spent on duty as directed by the disciplinary authority. The difference of salary payable to the petitioner on the basis of this order shall be worked out and paid to the petitioner within a reasonable period of four months. The suspension period treated as 'not spent on duty' shall not be treated as a break in service for the purpose of computation of pension, seniority, etc. In the circumstances of the case, parties shall bear their own costs. The security deposit, if any, shall be refunded to the petitioner.