REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5224 OF 2012
(arising out of SLP(C)No.11293 of 2011)
SUSHILA TIWARY AND OTHERS …. APPELLANTS
VERSUS
ALLAHABAD BANK AND OTHERS ….RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Delay condoned. Leave granted.
2. This appeal has been preferred by the Legal Heirs of the original
writ petitioner, Shri Ravindra Nath Tiwary (hereinafter referred to as
“Shri Tiwary”) against the judgment dated 3rd May, 2010 passed by the
Division Bench of the Patna High Court in L.P.A. No.762 of 2010, whereby
the Division Bench dismissed the appeal and affirmed the order passed by
the learned Single Judge wherein the order of termination passed against
Shri Tiwary was affirmed.
3. Appellant No.1, Sushila Tiwary is the wife and appellant Nos.2 to 5,
Rajesh, Priyanjali, Sudhansu and Himanshu are the sons and daughter of Shri
Tiwary.
4. Shri Tiwary was working as Special Assistant in the Allahabad Bank,
Arah Branch(hereinafter referred to as “the Bank”). He was suspended on
11th June, 1990 for certain acts of omission and commission and proceeded
departmentally under Clause 19.5(d) and 19.5.(j) of the first Bi-partite
Settlement 1966. Two charge-sheets dated 30th June, 1990 and 13th October,
1990 were served on him. The Bank also decided simultaneously to prosecute
Shri Tiwary in a criminal case for the criminal act and lodged an FIR with
the Arah Police Station. After trial Shri Tiwary was convicted in the
criminal case on 19th April, 1999 by the Sub-Divisional Judicial
Magistrate(SDJM), Bhojpur. He was ordered to undergo RI for one year for
the offence punishable under Section 468 IPC and RI for one year for the
offence punishable under Section 477(A) IPC.
5. In view of the conviction in the criminal case, the Assistant General
Manager, Regional Office, Patna, who was the disciplinary authority, by
invoking provisions of Clause 19.6(a) of the Bi-partite Settlement, 1966
dismissed Shri Tiwary from the services of the Bank by order No.8/99 dated
21st July, 1999 after giving opportunity of personal hearing to Shri
Tiwary.
Against the order of conviction Shri Tiwary preferred an appeal in the
Court of the Additional District and Sessions Judge, Bhojpur, who by
judgment dated 6th February, 2000, after giving benefit of doubt, had
acquitted Shri Tiwary from the charges. After the acquittal Shri Tiwary
approached the Bank and informed that he has been acquitted in criminal
case by the Appellate Court. The Bank on receipt of such intimation,
invoked Clause 19.3(c) of the Bi-partite Settlement and by order No.1/126
dated 2nd July, 2001 ordered that Shri Tiwary will be deemed to have been
placed under suspension from the date of original order of dismissal, i.e.,
21st July, 1999 and shall continue to remain under suspension until further
order. It was further ordered that during the period of suspension he will
be entitled to subsistence allowance on the same scale as was getting just
prior to his dismissal dated 21st July, 1999. The Assistant General
Manager, Regional Office, Patna who was the disciplinary authority brought
the aforesaid facts to the notice of Shri Tiwary and informed that his
Headquarters has been fixed at Arah.
6. In the departmental enquiry, Shri Tiwary did not choose to
participate. Once, he appeared before the Enquiry Officer but later on he
again absented and refused to appear. Shri Tiwary moved before the Patna
High Court against the order of suspension and revival of departmental
proceedings by filing a writ petition, C.W.J.C. No.11479 of 2001. In the
said writ petition, in view of the statement made on behalf of the Bank
that the departmental enquiry has already been concluded and the Enquiry
Officer has already submitted the report, Shri Tiwary withdrew the writ
petition on 5th March, 2003 with liberty to raise all the pleas, in case,
the order of disciplinary authority goes adverse to him.
7. The disciplinary authority noticed that Shri Tiwary refused to appear
before the Enquiry Officer and remained absent. Therefore, the Enquiry
Officer had to submit ex parte reports on 3rd September, 2002 and 9th
September, 2002 separately for the two different chargesheets. In both the
departmental proceedings all the charges against Shri Tiwary were found
true. In this background, a second show-cause notice was issued to Shri
Tiwary by the disciplinary authority by order dated 31st March, 2003 and it
was proposed as to why his services be not terminated by paying three
months’ pay and allowances in terms of Clause 3(d) of the Memorandum of
Settlement dated 10th April, 2002. Shri Tiwary was advised to appear in
person with or without his Defence Representative before the disciplinary
authority, the Assistant General Manager, Regional Office, Patna for
personal hearing on 16th May, 2003. Pursuant to such notice, Shri Tiwary
appeared before the disciplinary authority on 16th May, 2003 with his
Defence Representative. The objections as raised by him were recorded by
the disciplinary authority and after going through the chargesheets,
Enquiry Repots and the objections raised by Shri Tiwary the disciplinary
authority terminated the services of Shri Tiwary by order dated 16th June,
2003.
8. Against the order of termination, Shri Tiwary filed the writ petition
before the Patna High Court in C.W.J.C. No.12429 of 2005. During the
pendency of the said writ petition before the learned Single Judge, Shri
Tiwary died and was substituted by his Legal Heirs. After hearing the
parties, learned Single Judge by judgment dated 3rd September, 2008 taking
into consideration the gravity of charges and the fact that the amount
which was alleged to be embezzled was deposited by Shri Tiwary with the
Bank, pursuant to the order of this Court dated 8th July, 2008 in Criminal
Appeal No. 1019 of 2008, refused to entertain the writ petition and
dismissed the same. The Division Bench of the Patna High Court affirmed the
said decision and dismissed the L.P.A. by the impugned judgment.
9. Learned counsel appearing on behalf of the appellants herein
submitted that without reinstating the original writ petitioner, no
departmental enquiry could be initiated. Further, in view of Clause
19.3(c), the original writ petitioner was entitled to full pay and
allowances minus the subsistence allowance and all other privileges for the
period of suspension which was denied to him.
It was further contended by the learned counsel for the appellants
that the High Court ought to have considered that the departmental enquiry
had been conducted and concluded ex parte, hence in all probability, it
would have been fair enough to grant at least one more opportunity to the
legal heirs of the delinquent to participate in the departmental enquiry
and prove the innocence of the delinquent. It was also contended that the
High Court ought to have considered that the impugned order of dismissal is
void, having been passed without their being any master and servant
relationship existing at the time of passing of the order against the
delinquent in absence of order of reinstatement.
10. Per contra, according to the learned counsel appearing for the
respondents, in view of order dated 2nd July, 2001 Shri Tiwary was deemed
to have been reinstated and in terms of Clause 19.3(d) Shri Tiwary was
deemed to be on duty of the Bank from the date order of suspension was
issued.
11. We have considered the respective submissions and also perused the
relevant provisions of Bi-partite Settlement.
12. ‘The disciplinary action and procedure’ of the Bank are guided by
Chapter 19 of Bi-partite Settlement, 1966. As per Clause 19.3(b), if an
employee of the Bank is convicted in a criminal case, such employee may be
dismissed from service from the date of his conviction or may be inflicted
with lesser form of punishment depending on gravity of charges. Clauses
19.3(c) and 19.3(d) relate to action which is to be taken by the
disciplinary authority, in case an employee is acquitted during the trial
or pursuant to an order passed in an appeal or revision. Relevant Clause
19.3(c) and Clause 19.3(d) read as follows:
“19.3(c) If he be acquitted, it shall be open to the management to
proceed against him under the provisions set out below in Clauses
19.11 and 19.12 infra relating to discharges. However, in the event of
the management deciding after enquiry not to continue him in service,
he shall be liable only for termination of service with three months’
pay and allowances in lieu of notice. And he shall be deemed to have
been on duty during the period of suspension, if any, and shall be
entitled to the full pay and allowances minus such subsistence
allowances as he has drawn and to all other privileges for the period
of suspension provided that he be acquitted by being given the benefit
of doubt he may be paid such portion of such pay and allowances as the
management may deem proper, and the period of his absence shall not be
treated as a period spent on duty unless the management so direct.
19.3(d) If he prefers an appeal or revision application against his
conviction and is acquitted, in case he had already been dealt with as
above and he applies to the management for reconsideration of his
case, the management shall review his case and may either reinstate
him or proceed against him under the provisions set below in Clauses
19.11 and 19.12 infra relating to discharge, and the provision set out
above as to pay, allowances and the period of suspension will apply,
the period upto date for which full pay and allowances have not been
drawn being treated as one of suspension. In the event of the
management deciding, after enquiry not to continue him in service, the
employee shall be liable only for termination with three months’ pay
and allowance in lieu of notice, as directed above.”
13. The above reproduced provisions represent the intention of the Bank
and the Union to determine as to what steps the disciplinary authority
requires to take in case an employee who is accused in a criminal case is
acquitted during the trial or such employee after conviction is
subsequently acquitted in an appeal or revision. Clause 19.3(c) applies to
the cases where the employee is acquitted during the trial. On the other
hand, Clause 19.3(d) applies to the cases where the convicted employee
prefers an appeal or revision application against his conviction and is
acquitted. Under Clause 19.3(d) if an employee applies to the management
for reconsideration of his case on acquittal, the management is required to
review his case and may either reinstate him or proceed against him under
the provisions set in Clauses 19.11 and 19.12 relating to discharge, the
period up-to-date for which full pay and allowances have not been paid
being treated as one of suspension. In the event of management deciding,
after enquiry, not to continue in service, the employee shall be liable
only for termination with three months’ pay and allowances in lieu of
notice.
14. Reverting to the facts of this case, we find that Shri Tiwary was
acquitted during the trial for the offence under Section 468 IPC and
Section 477 (A) IPC and was ordered to undergo RI for one year each for
both the Sections. He was acquitted by giving benefit of doubt in the
criminal appeal. In such case, Shri Tiwary was liable to be proceeded under
Clause 19.3(d) and, thereby, the appellants cannot derive of the benefit of
Clause 19.3(c) of the Bi-partite Settlement.
The disciplinary authority by its notice dated 2nd July, 2001 passed
the following order:
“As such, it is ordered that Shri Tiwary will be deemed to have
been placed under suspension from the date of original order of
dismissal i.e. 21.07.1999 and shall continue to remain under
suspension until further order. During the period of suspension,
he will be entitled to subsistence allowance on the same scale
as he was getting just before his dismissal on 21.07.1999.”
15. If Clause 19.3(d) is read along with the notice dated 2nd July, 2001,
it is clear that Shri Tiwary stood reinstated w.e.f. 21st July, 1999, i.e.,
the date on which he was originally dismissed from service and deemed to be
continuing under suspension since then. For the said reasons, the stand
taken by the appellants that Shri Tiwary was not reinstated before the
departmental proceedings is fit to be rejected and we hold that he was
entitled for subsistence allowance and not the full pay and allowances as
called for.
16. We find no illegality in the order of termination or orders passed by
the learned Single Judge and the Division Bench of the Patna High Court.
They do not call for any interference. In absence of any merit, the appeal
is dismissed but there shall be no order as to costs.
………..……………………………………………..J.
( G.S. SINGHVI )
……………………………………………………….J.
( SUDHANSU JYOTI MUKHOPADHAYA )
NEW DELHI,
JULY 16, 2012.
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