R.S. Gupta vs State Bank Of India & Ors.
1998 Latest Caselaw 391 Del

ORDER

Dr. M.K. Sharma, J.

1. The petitioner while working as General Manager (Commercial & International Banking) at Calcutta received a letter from the Vigilance Department of the Local Head Office of the respondent Bank at Delhi seeking certain clarifications with respect to certain alleged irregularities in the sanction of advance to M/s. Tayal Group of Companies during the incumbency of the petitioner as Deputy General Manager and General Manager (Operations) at Delhi.

2. The petitioner furnished his reply to the aforesaid queries. However, by order dated 18.2.1994, the petitioner was placed under suspension by the respondent-Bank with immediate effect. In the said order placing the petitioner under suspension it was stated that investigation carried out into the irregularities committed in the sanction, conduct and follow-up of advances relating to M/s. Tayal Group revealed that the said alleged irregularities could be attributable to the petitioner and if so proved are serious in nature and, therefore, pending completion of the investigation by the CBI and until further orders it had been decided to place the petitioner under suspension with immediate effect in terms of Rule 68 A(1) of the SBI Officers Service Rules. In the said order it was also indicated that the petitioner has a right to prefer an appeal against the said order in terms of Rule 69 of SBI Officers Rules.

3. On 18.4.1994, the petitioner preferred an appeal with the Central Board which is the appellate authority of the respondent-Bank in terms of Rule 69 of the Service rules praying for revocation of the suspension order dated 18.2.1994. The appellate authority, however, by order dated 27.4.1995 dismissed the appeal preferred by the petitioner. Being aggrieved by the aforesaid two orders, the petitioner preferred this writ petition seeking for quashing of the order of suspension on the ground that the continuous suspension of the petitioner for an unduly long indefinite period without issue of any charge sheet or any action on the part of the CBI is illegal, arbitrary and unreasonable. It may be incidentally mentioned that at the time when the writ petition was filed no disciplinary action was initiated against the petitioner in respect of alleged irregularities in respect of advances to M/s. Tayal Group although the petitioner was put under suspension on 18.2.1994. However, subsequent to the filing of the writ petition, the respondents served a charge sheet on the petitioner on the said dealings under memo dated 5.1.1998 enclosing therewith the statement of articles of charge and also a statement of imputations of misconduct in respect of articles of charges.

4. It is also brought to my notice that apart from the aforesaid charge sheet, two other major penalty proceedings and one minor penalty proceedings have been initiated against the petitioner and they are pending as of date.

5. In respect of one of the aforesaid major penalty proceeding charge sheet was served on the petitioner on 17.12.1997 and charge sheets for one major penalty proceeding as also the minor penalty proceeding were served on the petitioner on 22.11.1997.

6. Mr. Rajiv Nayyar, senior counsel appearing for the petitioner submitted before me that no plausible explanation and justification is either available or has been given by the respondents for continuation of the suspension. According to him all the records relating to the disciplinary proceedings have already been collected by the respondents and they are in their custody and, therefore, there is no possibility of any apprehension of tampering with evidence by the respondents. Counsel also submitted that prolonged continuation of the suspension of the petitioner has encroached upon the right of the petitioner to live with dignity. Counsel for the petitioner in support of his submission relied upon the decisions of the Supreme Court in State of H.P. Vs. B.C. Thakur reported in 1994 Supreme Court Cases (L&S) 835, Union of India and others Vs. Raj Kishore Parija reported in 1995 Supp (4) Supreme Court Cases 235, O.P. Gupta Vs. Union of India and others .

7. The respondents were represented by Mr. Rajiv Dhawan, senior counsel, who during the course of his submission submitted that charges levelled against the petitioner are very grave and serious in nature and irregularity as committed by the petitioner involve vigilance angle as well for which the matter was to be referred to the Central Vigilance Commission which took some time and that the Central Bureau of Investigation submitted the report only in the month of January, 1996. Counsel submitted that under the aforesaid circumstances there was some delay in framing the charges against the petitioner and in issuance of the charge memo against him. He also stated that the request of the petitioner for review of his case for suspension was considered by the disciplinary authority on 9.1.1998 who on consideration of the records decided to continue the suspension in view of the serious nature of charges. Counsel submitted that there is no infirmity in the order passed by the superior authority putting the petitioner under suspension and that the respondents have taken all possible steps to conclude the enquiry at the earliest and in that regard the disciplinary authority has already written a letter to the enquiry officer informing him that the disciplinary authority is anxious for early completion of the disciplinary cases. It is stated that the enquiry officer has further been informed to frame a suitable time schedule for expeditious completion of the case, preferably within a period of three months. He submitted that since on the basis thereof, suitable progress in the disciplinary proceeding has been made no order should be passed quashing the order of suspension and instead a time schedule should be fixed by the Court to complete the enquiry.

8. In support of his submission, the learned counsel relied upon the decisions of the Supreme Court in U.P Rajya Krishi Utpadan Mandi Parishad and others Vs. Sanjiv Rajan reported in 1993 Supp (3) Supreme Court Cases 483, State of Punjab and others Vs. Chaman Lal Goyal and B.C. Chaturvedi Vs. Union of India and others .

9. The meaning of the word 'suspend' has been given in the Black's Law dictionary as "to interrupt', 'to cause to cease for a time' or 'to discontinue temporarily'. Any contract between master and servant involves material obligations which requires each party to perform its part of the contract. A contract can, however, be kept in abeyance and suspended temporarily. During its period of suspension the contracting parties are absolved of all or some of their obligations. In case of a contract of service between master and servant suspension means, that the relationship of master and servant remains in abeyance for a certain period. The fact of the order of suspension is that though the employee continues to be in the cadre service yet he is not permitted to work and further during the period of his suspension, he is paid only some allowance generally called the subsistence allowance. The general law on the subject of suspension has been laid down by the Supreme Court in The Management of Hotel Imperial, New Delhi Vs. Hotel Workers' Union , T. Cajee Vs. Jormanik Siem and R.P. Kapur Vs. Union of India . These cases lay down that it is well-settled that under the ordinary law of master and servant the power to suspend the servant without pay could not be implied as a term in an ordinary contract of service between the master and the servant but must arise either from an express term in the contract itself or a statutory provision governing such contract. It was further held that an order of interim suspension could be passed against an employee while enquiry was pending into his conduct even though there was no specific provision to that effect in his terms of appointment or in the rules but in such a case he would be entitled to his remuneration for the period of his interim suspension if there is no statute or rule existing under which it could be withheld.

10. The general principle therefore is that an employer can suspend an employee pending an enquiry into his conduct. Suspension is also held to be not a punishment by the Supreme Court. However, while exercising the aforesaid power of suspension, at times the disciplinary authorities act in a casual manner and keep the same dangling on the head of the petitioner for years without drawing up any disciplinary proceeding against the person. Instances have arisen when an employee is kept under suspension for a prolonged period without serving a charge memo on him and without initiating any disciplinary proceeding. Such a practice of keeping the employee under prolonged period of suspension serves nobody's purpose, that is, neither of the employer nor of the employee. The employer does not obtain service from the employee during the period of suspension, but continues to pay him the subsistence allowance which at times is equivalent to the pay and allowances drawn by the employee. In spite of payment of the entire salary to the petitioner no service is received by the employer and, therefore, there is definite and apparent loss to the employer.

11. On the other hand the employee continues to be under suspension and is not allowed to work and remains idle for a prolonged period. Although suspension may not be a punishment it definitely visits the concerned person with somewhat penal like consequences in the sense his right to live a decent and dignified life is effected. In O.P. Gupta (supra), the Supreme Court has held that there is no doubt that an order of suspension, unless a departmental enquiry is concluded within a reasonable time affects a government servant injuriously. In the said case, the Supreme Court took note of the dictionary meaning of the word 'subsist' which means "to remain alive as on food" or "to continue to exist" and, therefore, "subsistence" means of supporting life, especially a minimum livelihood. The Supreme Court also took note of its earlier decision in Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni and held that the delinquent officer when placed under suspension is entitled to represent that "the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time and if such a principle were not to be recognised, it would imply that the executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration". Prolonged suspension, therefore, puts a person into a disability and distress both physical and mental and also tends to effect his decent and dignified life as well apart from depriving the institution from getting his service and labour.

12. Being aware of the aforesaid factors, the Supreme Court in the case of State of H.P. (supra) upheld the order of the Tribunal quashing the order of suspension which was in operation for three years without any marked progress in the disciplinary proceeding. Therefore, keeping alive an order of suspension for a prolonged and indefinite period could call for review by the Court under certain circumstances and power is vested in the Court to quash the same in an appropriate case justifying such action.

13. In Raj Kishore Parija (supra) the Supreme Court upheld the order of reinstatement passed by the Tribunal after quashing the order of suspension on taking note of the fact that charge sheet was served after 4 long years of suspension and that the enquiry could not be completed even after five long years.

14. The petitioner seeks for the same relief in the present petition on the ground that in spite of putting him under suspension from 18.2.1994, the respondents failed to initiate any departmental proceeding against him till the filing of the writ petition and, therefore, quashing of the order of suspension is called for.

15. I have also carefully considered the submission of Mr. Rajiv Dhawan, learned counsel appearing for the respondents as also the ratio of the decisions relied upon by the counsel appearing for the parties.

16. The Supreme Court in State of Punjab and others (supra) was considering a case of prolonged delay in service of a charge sheet. The issue that arose for consideration of the Supreme Court in that case is whether such delay vitiated the charges. The Supreme Court in the said decision observed that such an issue should be decided by a balancing process that is weighing the factors for and against and taking decision on the totality of the circumstances. The Supreme Court also took note of the decision in A.R. Antulay Vs. R.S. Nayak and particularly the observation that "ultimately the court has to balance and weigh the several relevant factors - balancing test or balance process - and determine in each case whether the right to speedy trial has been denied in a given case". Applying the balancing process, the Supreme Court in State of Punjab and others (supra) held that quashing of charges and of the order appointing enquiry officer was not warranted in the facts and circumstances of the case and that it would be more appropriate in the interest of justice as well as in the interest of administration to order that the enquiry which had proceeded to a large extent be allowed to be completed but within a time frame of eight months and that the respondent would cooperate in concluding the enquiry. It was made clear that if the enquiry was not concluded and if the final orders are not passed within the aforesaid period, the enquiry would be deemed to have been dropped.

17. In U.P. Rajya Krishi Utpadan Mandi Parishad and others (supra), the Supreme Court held that the prolongation of suspension due to delay in filing charge sheet would not in any way affect order of suspension and such delay would not justify revocation of the suspension order. The Supreme Court in the said case also held that a direction should be issued to the authorities to complete the enquiry within a stipulated period.

18. In the backdrop of the aforesaid decisions of the Supreme Court, I have to make a balancing act and weigh all the relevant factors to decide as to whether on the facts and circumstances of the present case the order of suspension should be quashed. On following such balancing process I find various factors both in favour as against the petitioner which are being dismissed in a nutshell. The charges drawn up against the petitioner are grave and serious in nature. It is true that the petitioner is under suspension for a prolonged and indefinite period effective from 18.2.1994. The bank as stated is making payment of almost the full salary to the petitioner as subsistence allowance. The petitioner apparently was suspended pending completion of the investigation by the CBI and until further orders. The investigation of the CBI was completed in the month of January, 1996 and a report of the CBI was submitted in the same month. But no explanation is forthcoming on the records as to why there was a delay of more than two years in serving the charge sheet on the petitioner.

19. The petitioner has been kept ideal without any work for the last five years which is detriment not only to the interest of the petitioner, but, also to the interest of the respondents. On the other hand, I find that after the filing of the writ petition, the respondents have served a charge memo on the petitioner dated 5.1.1998 and a show cause thereto has already been submitted on perusal of which the disciplinary authority has ordered for holding a regular departmental enquiry against the petitioner and thereafter the enquiry officer also stands appointed.

20. The respondents have also placed on record an advise of the disciplinary authority to the enquiry authority intimating that the respondents are interested in early completion of the disciplinary cases and to arrange to try a suitable time schedule for expeditious completion of the cases within three months. It further appears from the records that on 15.5.1998, the enquiry officer also has fixed a time schedule and according to that regular hearing is scheduled to be held from 17.6.1998 onwards. Since at this stage the respondents have taken all necessary steps to expeditiously conclude the departmental proceeding initiated against the petitioner, it would be appropriate to give the respondents an opportunity to complete the enquiry proceedings pending against the petitioner expeditiously within the time frame as suggested by the disciplinary authority. This order is applicable not only in respect of the charge memo which was served on the petitioner on 5.1.1998, but also in respect of the charge sheets served on the petitioner for two other major penalty proceedings and one minor penalty proceeding.

21. he respondents shall take all necessary steps to complete all the pending disciplinary proceedings against the petitioner and conclude the same within six months from today. It is needless to say that the petitioner shall cooperate in concluding the said enquiries within the aforesaid period. If the petitioner does not cooperate, it shall be open to the respondents to proceed ex parte against the petitioner. If the respondents are unable to conclude the enquiry initiated against the petitioner within the aforesaid period under charge memo dated 5.1.1998 in respect of which he was placed under suspension, he shall be reinstated in service immediately on expiry of the aforesaid six months period and such reinstatement shall continue subject to the final order passed in the said disciplinary proceeding.

22. With the aforesaid observations and directions, the writ petition stands disposed of.