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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.