Karnataka High Court
M. Gopalakrishnan vs Canara Bank, Head Office, J.C. Road, ... on 24 March, 2000
Equivalent citations: ILR2000KAR1359, 2001(2)KARLJ236
Author: H.L. Dattu
Bench: H.L. Dattu
ORDER
1. Some people pay a heavy price for their honesty, integrity and devotion to duty. This case is one such example. After receiving appreciation letters from all quarters throughout his service, petitioner is now made to go out of service with a black mark attached to his honesty and integrity. This is unfortunate, but this seems to be the order of the day.
2. Facts in extenso requires to be noticed to appreciate the contentions canvassed by learned Counsel for petitioner. Therefore, they are elaborately stated.
Petitioner joined the services of the respondent-Canara Bank ('the Bank' for short) as a peon on daily wages in the year 1959 and his services came to be regularised with effect from 30-4-1960. While working as a sub-staff, he passed Matriculation and thereafter on the basis of the departmental test and interview he was promoted as a clerk in the year 1964. After successive promotions, he was promoted to Middle Management Grade Scale III with effect from 17-3-1989. During his service, he had worked at various branches of the Bank. During the period 1982-84, he worked at Aravenu Branch of the Bank. The superior officers of the Bank, while appreciating his hard work, dedication and devotion to duty, honesty and integrity, have issued several letters of appreciation. Some of them are found as enclosures to the writ petition.
3. The service conditions of the petitioner is governed by the provisions of the Canara Bank Officer Employees (Conduct) Regulations and Canara Bank Officer Employees (Discipline and Appeal) Regulations, 1976.
4. Petitioner while working as a Senior Manager, Circle Office of Canara Bank, Madurai, by an office order dated 27-8-1987, he was kept under suspension in contemplation of departmental enquiry proceedings for certain acts of misconduct said to have been committed by him while working as a Senior Manager at Aravenu Branch from 7-6-1982 to 21-5-1986. Even after keeping the petitioner under suspension for over six months, the disciplinary authority of the Bank did not choose to frame any charge memo against the petitioner. Thereafter, by an order dated 3-3-1988, the Competent Authority of the Bank revoked the order of suspension, reserving its right to initiate further disciplinary action against the petitioner and in that it was further ordered that treating the period of suspension for any purpose whatsoever shall await the outcome of further domestic enquiry proceedings contemplated. Just in about 45 days after withdrawing the first order of suspension, the respondents issued another order dated 13-4-1988 again keeping the petitioner under suspension in contemplation of domestic enquiry proceedings. Aggrieved by this order, the petitioner submitted an appeal dated 13-8-1988 requesting the Competent Authority to revoke the order of suspension. This representation came to be rejected without assigning any reason by the Competent Authority of the respondent-Bank by its order dated 5-11-1988. When the suspension continued for a long time, petitioner submitted another appeal dated 3-12-1988 to the Competent Authority to review the order of suspension. This was also rejected by the Competent Authority by its order dated 21-5-1989. This suspension continued till the disciplinary authority passed an order imposing penalty in January 1993.
5. Nearly after one year from the date of the order of suspension, the disciplinary authority of the Bank in exercise of its power under Regulation 6 of the Discipline and Appeal Regulations issued a charge memo dated 19-8-1988 inter alia alleging that the petitioner demanded and accepted illegal gratification from several customers of the Bank for recommending and sanctioning loans in their favour. The charges relate to the events said to have taken place during the period 7-6-1982 to 21-5-1986, when the petitioner was working as Senior Manager at Aravenu Branch of the respondent-Bank. It specified that the petitioner had acted without honesty and integrity and in a way unbecoming of a Bank Officer, thereby committing gross misconduct under Regulation 3(1) read with Regulation 24 of the Conduct Regulations. The charge memo also contained the statement of imputations, list of witnesses and the documents.
6. After receipt of the charge memo, within a month, petitioner filed his detailed statement of defence denying the allegations contained in the charge memo and also offered his explanation and further requested the authorities to drop the enquiry proceedings and revoke the order of suspension and further to permit him to serve the institution.
7. The disciplinary authority of the respondent-Bank not being satisfied with the explanation offered by the petitioner, had proceeded to appoint one Sri U.G. Tantry, as the Enquiry Officer to inquire into the allegations contained in the charge memo dated 19-8-1988. When he was about to commence the inquiry proceedings, the disciplinary authority of the respondent-Bank by his letter dated 27-3-1989, directed the Enquiry Officer to keep in abeyance the enquiry proceedings till he is informed in that regard since the charges mentioned in the charge-sheet are covered under the FIR filed by the CBI. In the meanwhile, the disciplinary authority of the respondent-Bank by its order dated 14-9-1990 appointed one Sri P. Shyamasundar as Enquiry Officer in place of Sri U.G. Tantry. The said Enquiry Officer resumed the enquiry proceedings only on 21-1-1991 nearly after two years from the date of first sitting of the enquiry held in the month of January 1989. 'Before the Enquiry Officer, the respondents examined MW1 to MW6 and got marked nearly 85 documents in support of the allegations made in the charge memo. The Enquiry Officer had taken the trouble to examine the delinquent officer. The sitting of the Enquiry Officer for this purpose was only for 7 days and that was on 21-1-1991, 22-1-1991, 23-1-1991, 24-1-1991, 25-4-1991, 26-4-1991 and 25-7-1991. His report dated 21-2-1992 to the disciplinary authority of the Bank holding that the petitioner is guilty of the charges alleged in the charge memo. Basing on the report of the Enquiry Officer, the disciplinary authority issued a show-cause notice calling upon the petitioner to make his submissions on the report of the Enquiry Officer. The delinquent officer by his reply letter dated 28-7-1992 pointed out the perversities in the finding of the Enquiry Officer and requested the disciplinary authority to exonerate him. The disciplinary authority after accepting the report of the Enquiry Officer, proceeded to pass an order dated 11-1-1993 imposing a penalty of compulsory retirement from service and the same came to be served on the petitioner on 20-1-1993.
8. Petitioner aggrieved by the aforesaid order, preferred an appeal before the Appellate Authority as provided under Regulation 17 of the Discipline and Appeal Regulations. The Appellate Authority after appreciating the injustice caused to the petitioner has modified the punishment of compulsory retirement from service to reduction to a lower stage in time scale III to the initial stage of scale III i.e., reduction of pay by seven stages by his order dated 12-11-1994 and further observed that the interregnum period between the date of compulsory retirement and the date of reinstatement shall not be reckoned for any purpose whatsoever. The order made by the Appellate Authority is communicated to the petitioner by the Deputy General Manager of the respondent-Bank by his communication dated 12-11-1994 and in that he has stated as under:
"The interregnum period (i.e.) period between the date of 'compulsory retirement* and the date on which the appellant reports for duties pursuant to these orders shall not be reckoned for any purpose whatsoever. The period of suspension shall be treated as not spent on duty and no increment shall be released for which Sri M. Gopalakrishnan was placed under suspension".
(emphasis supplied)
9. Petitioner questions the correctness or otherwise of these orders and communications in this petition, filed under Article 226 of the Constitution, being aggrieved by the same.
10. Though numerous grounds are raised in support of the prayer for quashing the impugned orders made by the disciplinary authority and Appellate Authority of the respondent-Bank, what has been really pressed into service during the hearing of the petition is the contention that the Appellate Authority after modifying the orders of disciplinary authority from compulsory retirement to reduction to lower stage in time scale could not have directed that the interregnum period between the date of compulsory retirement and the date of reinstatement shall not be reckoned for any purpose whatsoever. The direction so issued, the learned Counsel for petitioner submits, is one without jurisdiction and without authority of law. In support of this contention, the learned Counsel for petitioner draws my attention to the language employed in Regulation 17 of the Discipline and Appeal Regulations of the Bank.
11. Per contra, Sri T.R.K. Prasad, learned Counsel for the respondent-Bank submits that the Appellate Authority while considering and deciding the appeal filed before him by an aggrieved person, aggrieved by the orders of the disciplinary authority, may pass an order confirming, enhancing, reducing or setting aside the penalty or remit the case to the authority which imposed the penalty or to any authority with such directions as he thinks fit. Therefore he submits, that the Appellate Authority was justified after reducing the penalty imposed by the disciplinary authority in directing not to treat for any purpose whatsoever the interregnum period between the date of compulsory retirement and the date of reinstatement.
12. Regulation 17 of the Discipline and Appeal Regulations is as under:
"17. Appeals.--(i) An officer employee may appeal against an order imposing upon him any of the penalties specified in Regulation 4 or against the order of suspension referred to in Regulation 12. The appeal shall lie to the Appellate Authority.
(ii) An appeal shall be preferred within 45 days from the date of receipt of the order appealed against. The appeal shall be addressed to the Appellate Authority and submitted to the authority whose order is appealed against. The authority whose order is appealed against shall forward the appeal together with its comments and the records of the case to the Appellate Authority. The Appellate Authority shall consider whether the findings are justified or whether the penalty is excessive or inadequate and pass appropriate orders. The Appellate Authority may pass an order confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case".
13. Under Regulation 17(ii), the Appellate Authority is required to consider whether the findings recorded by the Enquiry Officer against concerned officer is justified and/or whether the penalty imposed by the disciplinary authority is excessive or inadequate and thereafter pass appropriate orders.
The sub-regulation authorises the Appellate Authority to confirm, enhance, reduce or set aside the penalty. It also envisages that after setting aside the penalty, remit the matter to the authority which imposed the penalty or to any other authority with such directions as it deems fit.
14. The later portion of sub-clause (ii) of Regulation 17 falls into two parts. Under the first part it authorises the Appellate Authority to confirm, enhance, reduce or set aside the penalty imposed by the disciplinary authority. In the second part, it authorises the Appellate Authority to remit the matter to the authority which imposed the penalty or to any other authority after setting aside the penalty. The two parts are connected by the conjunction 'or' which is capable of two constructions. In one sense, it is a particle co-ordinating the two parts of the clause and creating an alternative between them. In the other sense which is akin to the sense of 'and'. In my view in the context in which the word 'or' is used, it can only mean when the Appellate Authority sets aside the penalty and remits the case for a fresh consideration, it may do so with such directions, as it may deem fit in the circumstances of the case, otherwise it would create anomaly. However, Sri Prasad, learned Counsel for respondents contends that the Appellate Authority is empowered to issue such directions as he may deem fit even when he reduces the penalty imposed by the disciplinary authority. In my opinion, it is difficult to accept the construction suggested by the learned Counsel. Firstly, in view of the possible construction that could be placed on sub-clause (ii) of Regulation 17 and secondly, the meaning of the word 'with' is generally gathered from the context and has to be considered in conjunction with the words which precede and those which follow it (Delhi Development Authority v Durga Chand Kaushish). The word 'with' occurs between remitting of the case by the Appellate Authority and directions as it may deem fit. Therefore, in my opinion, it necessarily means when the Appellate Authority when he remits the case to the authority which imposed the penalty or to any other authority, it may issue such directions as it deems fit in the circumstances of the case.
15. In the instant case the Appellate Authority in the appeal filed by the delinquent officer against the order of 'compulsory retirement' imposed by the disciplinary authority reduces the penalty and after doing so further issues directions that the interregnum period between the date of compulsory retirement and the date of reinstatement shall not be reckoned for any purpose. In my opinion, the Appellate Authority is not authorised under the regulations to issue such direction after reducing the penalty imposed by the disciplinary authority for the reasons stated by me earlier. Therefore, this direction alone requires to be set aside since the same is without authority of law.
16. The present issue can be looked in a different angle also. When the disciplinary authority imposed a penalty of 'compulsory retirement' from service, the contract of service between the employer and the employee was brought to an end and the payment of salary, etc., would stop. The Appellate Authority when he modifies the order of compulsory retirement and imposes the punishment of reduction to lower stage in the time scale, the order would relate back to the date of compulsory retirement and the delinquent officer would be entitled to the salary, etc., from the date of compulsory retirement till the date of reinstatement. Assuming that the Appellate Authority could direct that the period between these two dates should not be reckoned for any purpose, the same could not have been done without affording an opportunity of hearing to the delinquent officer, since by the said order, the Appellate Authority would be taking away the valuable right namely, right to receive salary, etc., of the delinquent officer. Therefore, the later portion of the order of the Appellate Authority is not only illegal but also in violation of principles of natural justice.
17. The learned Counsel for the petitioner, as the second limb of his submission contends that keeping the petitioner under suspension for nearly 7 years and 6 months is wholly arbitrary and unjustified and therefore submits that the petitioner is entitled to be treated as having been on duty and entitled to all service benefits including monetary benefits.
18. Sri T.R.K. Prasad, learned Counsel for the respondent-Bank contends that the petitioner is not entitled to any relief for the reasons explained by them in their objection statement.
19. To appreciate the contention canvassed by the learned Counsel for petitioner, in my opinion, a look at the provisions providing for suspension, subsistence allowance and pay, allowances and treatment of service on termination of suspension requires to be noticed.
Regulation 12 of the Discipline and Appeal Regulations, 1976, provides for suspension of an officer-employee of the Bank. Sub-regulation (1) provides for keeping an officer under suspension by the Competent Authority, where a disciplinary proceedings is contemplated or pending against an officer or where a case against him in respect of an criminal offence is under investigation, inquiry or trial. Sub-regulation (5) of the Regulation envisages that the order of suspension made or deemed to have been made under Regulation 12 shall continue to remain in force until it is modified or revoked by the Competent Authority.
Regulation 14 provides and prescribes the payment of subsistence allowance during the period of suspension. Sub-regulation (1) provides that an officer-employee, who is placed under suspension, is entitled to receive from the Bank by way of subsistence allowance half of the basic pay which the officer-employee was receiving on the date prior to the date of suspension irrespective of the enquiry.
Regulation 15 of the Regulations provides for pay, allowances and treatment of service on termination of suspension. Sub-regulation (1) states that where Competent Authority holds that the employee has been fully exonerated or that the period of suspension was unjustifiable, the officer-employee is entitled to full pay to which he would have been entitled, had he not been suspended together with any allowances of which he was in receipt immediately prior to his suspension or may have been sanctioned subsequently and made applicable to all officers. Sub-regulation (2) provides that those cases not falling under sub- regulation (1) of the Regulation, the officer-employee shall be granted such portion of pay and allowances as the Competent Authority may decide and direct. Sub-regulation (3)(a) envisages that those cases falling under sub-regulation (1), the period of absence from duty for all purposes be treated as period spent on duty. Sub-regulation (3)(b) of the Regulation states that in cases falling under sub-regulation (2) of the Regulation 15, the period of absence from duty shall not be treated as a period spent on duty unless the Competent Authority specifically for reasons to be recorded in writing, directs that it shall be so treated for any specific purpose.
20. Keeping in view the regulations which are relevant for the purpose of the case, let me now advert to the facts pleaded and the legal issues canvassed. It is an admitted position that Sri Mohamed Osman, who was 'officiating as Manager, Disciplinary Action Cell, Central Office, Madurai, during the period 1987 was instructed from Staff Section (O), Circle Office, Madurai, to conduct a detailed investigation into various loans granted at Aravenu Branch of the respondent-Bank, where charge-sheeted officer was working as a Senior Manager. The said Investigating Officer after verification and investigation of sanctioning of the loan accounts submitted his first report dated 29-4-1987 and the second report dated 10-8-1987 before the Competent Authority. On receipt of these reports, the Competent Authority in exercise of its powers under Regulation 12 of the Regulations by its order dated 27-8-1987 has kept the petitioner under suspension in contemplation of departmental enquiry proceedings for certain acts of misconduct said to have been committed by him while working as a Senior Manager at Aravenu Branch of the Bank.
21. The first question that requires to be considered is whether it is open to the respondent-Bank to suspend an employee in contemplation of departmental enquiry proceedings? Regulation 12 empowers the Competent Authority of the Bank to place an officer-employee under suspension "if a disciplinary enquiry proceedings are contemplated or pending". In the instant case, the Competent Authority after receipt of the report of the Investigating Officer suspects the integrity and honesty of the petitioner and therefore, to refrain him from availing further opportunity to perpetrate the alleged misconduct and further to prevent an opportunity to the delinquent officer to scuttle further enquiry or investigation, keeps the petitioner under suspension in contemplation of domestic enquiry proceedings. It is now well-settled in view of several decisions of the Apex Court that whether the employee-officer should or should not continue in their office during the period of enquiry is a matter to be assessed by the authority concerned and ordinarily, the Court should not interfere with the orders of suspension unless they are passed with mala fide intention and without there being even a prima facie evidence on record connecting the employees with misconduct in question and further sufficiency of grounds or reasons cannot be inquired into by a Court of law. A Court cannot substitute its own satisfaction for the satisfaction of the authority. In the instant case, the Competent Authority taking into consideration the gravity of the complaint filed against the petitioner and taking into consideration the report of the Investigating Officer and the misconduct sought to be enquired into has passed an order dated 27-8-1987 keeping the petitioner under suspension, which is not in the nature of punishment but only disabling him to discharge the duties of the post held by him. Therefore, it cannot be said that the initial order of suspension is either illegal, invalid, unfair or unjust and tainted with mala fides.
22. The respondent-Bank in its statement of objections asserts that the respondents could not immediately initiate disciplinary proceedings against the petitioner by issuing a charge memo for the reason that the charges levelled against the petitioner were pertaining to number of loan accounts for the periods 1982 to 1986 and the Bank had to thoroughly verify and examine all these accounts individually to identify the lapses/irregularities on the part of the petitioner and therefore, there was some delay but that delay was unintentional and for bona fide reasons. The Bank has also stated in its objections that since charge memo could not be finalised and served on the delinquent, the Competent Authority took an administrative decision and passed an order revoking the suspension order by an order dated 3-3-1988 reserving its right to initiate further disciplinary action against the delinquent officer and it was also observed in the said order that treating the period of suspension for any purpose shall await the outcome of further proceedings contemplated.
23. The learned Counsel for petitioner Sri P.S. Rajagopal submits that since the initial order of suspension, did not state any particular act of misconduct for which the disciplinary proceedings are contemplated and even after keeping the petitioner under suspension from August 1987 till March 1988, since no charge-sheet was filed and thereafter revoking the order of suspension without issuing any charge-sheet, the petitioner is entitled to be treated as having been on duty and entitled to be paid all the service benefits since the order of suspension is unjustified, unfair and unjust. In my opinion, it is difficult to accept this assertion of the learned Counsel. The Supreme Court in the case of Government of India, Ministry of Home Affairs and Others v Tarak Nath Ghosh, was pleased to observe that merely because the order of suspen-
sion mentioned that disciplinary proceedings were contemplated against an employee, it could not be said that the case had not reached the stage which called for an order of suspension. Disciplinary proceedings could be said to be started against an officer when a complaint about his integrity or honesty was entertained followed by preliminary enquiry, culminating in the satisfaction of the Government that a prima facie case had been made out against him for framing of charges.
24. The Apex Court in the case of P.R. Nayak v Union of India, was pleased to observe that "there is no force in the contention that the inquiry will be deemed to be contemplated only when it is pending. The word used between contemplated and pending is 'or' which separates one from another. It simply means that suspension order can be passed if disciplinary enquiry is contemplated or pending".
25. In my view, in view of the law declared by Supreme Court, it can safely be said that it is not necessary that a formal charge-sheet or statement of allegations must be issued to the employee-officer before taking an action of suspension and it is also not necessary to state particular act of misconduct said to have been committed by the employee-officer for which disciplinary action is contemplated in the order of suspension. Therefore, the first part of the argument of the learned Counsel that since the order of suspension did not state any particular act of misconduct for which domestic enquiry proceedings are contemplated, the order of suspension is bad or illegal cannot be accepted. Secondly, the period of suspension between August 1987 till March 1988, when it was revoked cannot be held as either unjustified or arbitrary in view of the explanation offered by the respondent-Bank in their statement of objections. Therefore, the claim of the petitioner to treat this period as the period spent on duty cannot be accepted.
26. Then we come to second order of suspension. The Competent Authority of the respondent-Bank by yet another order bearing No. IRS.DP:MDC.CHE. 2057, dated 13-4-1988 i.e., within 45 days from the date of revocation of the suspension order, had kept the petitioner under suspension again in contemplation of departmental proceedings. This order of suspension is taken exception to by the petitioner and his learned Counsel by contending that the order of suspension without issuing a charge-sheet is vitiated for non-application of mind and abuse of provisions of Regulation 12 of the Regulation.
27. Respondent-Bank justifies the second suspension order dated 13-4-1988. They assert that though the order of suspension was revoked in the month of March 1988, the process of investigation was in progress and at the conclusion of the investigation and further verification of the records, it is revealed that the petitioner had indulged in serious acts of misconduct and since it was felt by the Competent Authority that continuing him in service would be prejudicial to the interest of the Bank, it was decided to place him under suspension again and such action of the Competent Authority is well-within the powers enjoined in him and the same was for justifiable reasons in the best interest of the Bank. Apart from this, there is nothing else stated by the Bank in support of its second order of suspension. I did ask the respondent-Bank's learned Counsel whether he would file a better affidavit in support of its stand by giving the details that transpired between 3rd March, 1988 till 13-4-1988 and the explanation for taking a sudden decision to keep the petitioner under suspension once again in contemplation pf an enquiry. The learned Counsel informs me that there is nothing else in the records apart from what is already stated in the objections statement. The learned Counsel further refuses to take the opportunity which this Court in fact wanted to give him to explain its stand in a proper way after consulting his clients. Therefore, I have no other alternative but to proceed with the available materials.
28. Admitted facts are, there was only one Investigating Officer who had been appointed to inquire and investigate into various loans granted at Aravenu Branch, where petitioner was working as a Senior Manager during the period 1982 to 1986. After inspection, he had submitted his reports dated 29-4-1987 and 10-8-1987. Basing on the findings of the preliminary enquiry report, the Competent Authority has passed an order in contemplation of the domestic enquiry proceedings- Since the charge memo could not be issued within a reasonable time, the Competent Authority while reviewing the case of suspension, had thought it fit to revoke the suspension order and even before the charge memo could be issued, once again issues an order of suspension which does not contain any reasons whatsoever for invoking its powers once again under Regulation 12 of the Regulations to keep the petitioner under suspension. It is relevant to state here that for the first time, charge memo came to be issued only on 19-8-1988. The question that requires to be considered is whether this order of suspension made by the respondent-Bank is justified or not?
29. The order made by the Bank dated 13-4-1988 once again only suggests that the departmental enquiry proceedings are contemplated against petitioner for certain acts of misconduct and therefore, it is necessary to keep him under suspension pending enquiry. Apart from this reason there is nothing else. They do not even suggest in their order what forced them to issue the second order after revoking the order of suspension made earlier. Even in the objection statement filed, I do not see any valid reason which necessitated the Competent Authority of the Bank all of a sudden to keep the petitioner under suspension once again. They do not even suggest that apart from the report which was already submitted to it by the Investigating Officer, there was any other investigation contemplated to keep the petitioner under suspension. They do not even state that there was other fresh material which came to the notice after the revocation of the order of suspension, warranting a fresh order of suspension. Cumulatively all these factors would clearly indicate that there was no application of mind by the Competent Authority before invoking its powers under Regulation 12 of the Regulations. A Bench of Gujarat High Court in the case of P.K. Bansal, Commissioner of Police, Surat City v R.J. Jadega, was pleased to observe that while examining the legality of an order of suspension, the Court is not concerned with sufficiency of evidence. Such matters must be left to the subjective satisfaction of the authority. The action of the suspension is of course justiciable. Sufficiency of grounds or reasons however cannot be inquired into by Court of law. A Court cannot substitute its own satisfaction for the satisfaction of the authority. However, the Court was pleased to observe that an authority cannot take into account extraneous or irrelevant grounds and that there must be application of mind and the action should not be perverse, unfair or unjust or tainted with mala fides.
30. In the instant case, suspension order was made first on 27-8-1987 in contemplation of domestic enquiry proceedings based on the complaint of the customers of the Bank and the report of the Investigating Officer. Nearly, after six months thereafter, it was revoked and again within forty days thereafter, an order came to be passed keeping the petitioner under suspension. The charge-sheet is issued only on 19-8-1988. The respondent-Bank has not given any cogent reasons for taking this drastic action for keeping the petitioner under suspension for the second time except saying that continuing the petitioner in service will be prejudicial to the interest of the Bank. In my view, the action of the respondent-Bank cannot be said to be either for bona fide reasons and the satisfaction said to have been arrived at by the Bank cannot be said to be legal or lawful. No reasonable person, in the facts and circumstances of the case could have arrived at such satisfaction. Therefore, the order of second suspension is unjustified, unreasonable and unfair and taken after proper application of mind and therefore, the said period requires to be treated as on duty till framing and serving the charge memo dated 19-8-1988.
31. Then we come to the third stage of the proceedings. The disciplinary authority of the Bank served the charge memo on the petitioner dated 19-8-1988 containing allegations of misconduct said to have been committed while working as Senior Manager of Aravenu Branch. Petitioner had filed detailed reply denying the allegations contained therein. The disciplinary authority of the Bank not being satisfied with the explanation offered, appointed Sri U.G. Tantry, an Enquiry Officer, to inquire into the allegations contained in the charge memo. When the enquiry was about to be commenced by the Enquiry Officer, by an order dated 27-3-1989, the disciplinary authority directed the Enquiry Officer to keep in abeyance the enquiry proceedings till he is informed in that regard since the charges mentioned in the departmental charge-sheet is covered under the FIR filed by CBI in R.C. No. 53(A)/88, under Section 161 of the Indian Penal Code read with Section 5(2) and 5(1)(d) of the Prevention of Corruption Act. Since there was no progress made in the criminal case, the disciplinary authority by yet another order dated 14-9-1990 appointed one Sri P. Shyamsunder as Enquiry Officer in place of Sri U.G. Tantry. This officer commenced the enquiry proceedings on 21-1-1991 nearly after two years from the date of first sitting of the enquiry held in the month of January 1989 by Sri U.G. Tantry, the first Enquiry Officer. The Enquiry Officer held his proceedings on 21-1-1991, 22-1-1991, 23-1-1991, 24-4-1991, 25-4-1991, 26-4-1991 and 25-7-1991 for examination and cross-examination of witnesses on both sides.
32. Now the question is whether the disciplinary authority of the Bank was justified in keeping the enquiry proceedings in abeyance and thereby continuing the suspension order on an ostensible ground that since the charges mentioned in the departmental charge-sheet is covered in the FIR filed by CBI before the Jurisdictional Magistrate.
33. The respondent-Bank in support of its order dated 27-3-1989, keeping the enquiry proceedings in abeyance has stated in its statement of objections at para 11 as under:
"11. That the averments stated at para 7 of the writ petition, that the Central Bureau of Investigation (CBI) registered a regular case against the petitioner by filing an FIR in R.C. 53(A)88 under Section 161 of the Indian Penal Code read with Section 5(2) and 5(1)(a) and (d) of the Prevention of Corruption Act, 1947 and in that connection the residence of the petitioner was searched by the CBI on 24-2-1989 and the CBI after investigation found that there is no case to charge the petitioner with any offence and have closed the matter, are all matter of record. The fact that the Central Bureau of Investigation had not charged the petitioner with any offence will not absolve the petitioner of the irregularities committed by him in the Bank. It is a well-settled position that the departmental proceeding is independent of the criminal trial and stand on a totally different footing. The charges levelled against the petitioner in the departmental enquiry is under the provisions of the Canara Bank Officer Employees (Conduct) Regulations, 1976 viz., Regulation 3(1) read with Regulation 24 which charges the petitioner for having acted without honesty, integrity, devotion and diligence and his failure to protect the interests of the Bank and having acted in a manner detrimental to the interests of the Bank. Hence the fact that the CBI had closed the matter will in no way strengthen the case of the petitioner so far as the disciplinary proceedings are concerned".
34. A reading of their objections clearly suggests that they also understand that departmental enquiry proceedings is independent of the criminal trial and stand on a totally different footing. They were also fully aware that the charges levelled against the petitioner in the departmental enquiry is under the provisions of Canara Bank Officer Employees (Conduct) Regulations, 1976, in particular Regulation 3(1) read with Regulation 24 of the Regulations, which specifies an employee-officer acting without honesty and integrity and in a way unbecoming of a Bank Officer. In spite of understanding the true scope of a domestic enquiry proceedings, the disciplinary authority by his order dated 27-3-1989, proceeds to direct the Enquiry Officer to keep the enquiry proceedings in abeyance. In my view, this is an unusual case where the employer thinks of staying the progress in an enquiry proceedings on the ostensible ground that the allegations contained in the charge memo is more or less similar to the allegations made in an FIR filed by a prosecuting agency. I say unusual for the sole reason, it is normally seen that the delinquent employee-officers' approaching this Court inter alia seeking the stay of domestic enquiry proceedings on the ground that the criminal action and disciplinary proceedings are grounded upon the same set of facts. But as I have already observed that the delinquent officer participates in the enquiry proceedings without even seeking postponement of the proceedings on the ground that CBI has filed a criminal case against him before the Jurisdictional Magistrate under the provisions of the Prevention of Corruption Act. It is the employer, who takes the initiative to postpone the enquiry proceedings on the ground criminal proceedings on the same set of facts is pending before the Jurisdictional Magistrate and thereby extends the agony of the petitioner to continue to be under suspension. Suspension from service is a weapon in the hands of an employer. Law recognises the right of an employer not to take work from his employee. But in my opinion, it will be gross abuse of legal power to punish a person or damage his service career in a manner not warranted by law, under the garb of exercising power in 'public interest'. Suspension always reflects upon the conduct of the person suspended and results in loss of reputation which continuously pricks his mind. Prolonged suspensions causes frustration and makes him desperate and tempts him to revolt. In my opinion, the employer is not given unfettered power of placing its officers under suspension. This extreme action should be taken by the employer only in an appropriate case and further, the enquiry proceedings for which purpose the officer-employee is kept under suspension must be completed within a reasonable time. When the enquiry proceedings is unduly delayed or prolonged, the continuance of suspension smacks of mala fides. In my opinion, there was no justifiable reason for the respondent-Bank to keep in abeyance the enquiry proceedings and assuming the employer could do it, there was no justification to keep the petitioner under suspension in the interregnum period. Therefore, keeping the petitioner under suspension from 27-3-1989 till 21-1-1991 on which day the enquiry was resumed is wholly unjustified and arbitrary and in violation of Articles 14 and 21 of the Constitution. This period in my opinion, requires to be treated as on duty and the petitioner is entitled for this period all the service benefits, since petitioner was not responsible for this delay in disposing of the enquiry proceedings and the respondent-Bank has not even furnished a plausible explanation to justify the continuous suspension of the petitioner during this period.
35. The Enquiry Officer after completing the enquiry proceedings submitted his report dated 21-2-1992 to the disciplinary authority along with the records of the proceedings. In that, he was pleased to hold that the charges insofar as it relates to account numbers CLS 1/85, ML 6/83 and DPN 72/84 are not proved and insofar as charge in respect of CLS 4/85 is concerned, he has held that the charge is proved. The disciplinary authority thereafter by his second show-cause notice dated 30-6-1992 calls upon the petitioner to make his submissions, if any, on the report of the Enquiry Officer. The delinquent officer had filed his reply dated 28-7-1992. The disciplinary authority as usual by its cryptic order dated 11-1-1993 imposes a punishment of compulsory retirement from service as envisaged under Regulation 4(f) of the Discipline and Appeal Regulations, 1976. There is not much delay in completing the enquiry proceedings after it was resumed by the Enquiry Officer and passing of the final order by the disciplinary authority. The continuance of the suspension order during this period is justified and no exception can be taken in this regard.
36. Petitioner aggrieved by the aforesaid order files an appeal by his memorandum of appeal dated 25-1-1993 which came to be disposed off by the Appellate Authority, by his order dated 31-10-1994 and the same came to be communicated to the petitioner by letter dated 12-11-1994. By this order, the Appellate Authority modifies the order made by the disciplinary authority from 'compulsory retirement' to 'reduction to a lower stage in the time scale in Scale III to the initial stage of Scale III' and further only observes that the period between the date of 'compulsory retirement' and the date on which petitioner reports for duty shall not be reckoned for any purpose. However, while communicating this order, the Deputy General Manager of the Bank observes that the period of suspension shall be treated as not spent on duty and no increment shall be released for this period. Sri P.S. Rajagopal, learned Counsel for petitioner submits that since the Deputy General Manager is not the disciplinary authority, he could not have observed in his communication dated 12-11-1994 that the period of suspension shall be treated as not spent on duty and the delinquent officer is entitled to any increment during the period of suspension. It is difficult to accept this submission of the learned Counsel in view of the unambiguous language employed in Regulation 15 of Conduct and Discipline Regulations of the Bank. Regulation 15(1) read with 3(a) states that the employee-officer is entitled for full pay during the period of suspension only if the Competent Authority fully exonerates the charge-sheeted officer or if he holds the period of suspension was unjustifiable and not otherwise. Regulation 15(3)(b) clearly stipulates that period of absence from duty shall not be treated as period spent on duty unless the Competent Authority specifically so direct for reasons to be recorded in writing.
37. In the instant case, the disciplinary authority had passed an order imposing 'compulsory retirement' of the petitioner from the services of the respondent-Bank. Therefore, there was no occasion for him to pass any order with regard to period of suspension. However, this order came to be modified by the Appellate Authority and he has imposed lesser punishment. The Appellate Authority in his order has not specifically stated anything with regard to the period of suspension. In view of Regulation 15 of the Regulations, it should be necessarily inferred that the Appellate Authority has not treated the period of suspension as unjustifiable and therefore, not to be treated as period spent on duty and this is what that has been communicated by Deputy General Manager of the Bank in his communication dated 12-11-1994 to the petitioner. I do not think that there is any irregularity in this communication.
38. The learned Counsel also submits that since not treating the period of suspension as on duty would involve civil consequence, petitioner should have been issued with a notice and should have been afforded an opportunity of hearing. Since that has not been done, the impugned communication is bad and is in violation of principles of natural justice. In my opinion, in view of my earlier discussion on the meaning of the expression 'suspension' and in view of the clear language employed in Regulation 15 of the Regulations, it is difficult to accept the contention of the learned Counsel. Therefore, the same is rejected. However, there is no justification for the Appellate Authority to keep an appeal pending for nearly two years. There is no explanation filed by the respondents in their statement of objections in this regard. Since the Appellate Authority has modified the order of punishment imposed by the disciplinary authority, he should have definitely mentioned how this interregnum period to be treated by the respondent-Bank, Since that has not been stated by him, the same requires to be considered by this Court. Admittedly, the delinquent officer had filed an appeal against the order made by the disciplinary authority by his memorandum of appeal on 25-1-1993. The Appellate Authority for the reasons best known to him has taken nearly two years for disposal of the appeal. There is no explanation offered by the respondent-authorities in their objection statement. Therefore, that period necessarily requires to be treated as period spent on duty.
39. On the merits of the case, the learned Counsel for petitioner states that he does not intend to comment on the findings of the Inquiry Officer, since he has already approached the respondents to permit him to retire from service voluntarily and make use of the terminal benefits that he may get for the performance of the marriage of his grown up and overaged daughters. Therefore, it is not necessary to go into the merits of the impugned orders made by the disciplinary authority and the Appellate Authority.
40. Taking into consideration all the aforesaid aspects of the matter the following order is made:
ORDER I. Petition is allowed in part. The order made by the Appellate Authority dated 12-11-1994 in treating the interregnum period from the date of compulsory retirement from service till the date of reinstatement as period not spent on duty is set aside, since the said direction is without jurisdiction and without authority of law.
II. The period of suspension, which I have taken exception in the course of my order is directed to be treated as period spent on duty and for that period, it is declared that the petitioner is entitled to full pay and other allowances. The calculation part of it is directed to be made by the respondents and after such calculations and computations, respondents are directed to settle the monetary benefits and include that period for all his service benefits. I only hope that the respondents will not unnecessarily make him approach this Court once over again by their defiant attitude. In my view, it is required on all of us to encourage the breed of honest and efficient officers in this demoralised society.
III. With these observations and directions, petition is disposed off. Ordered accordingly.