Delhi High Court
Sh. Satish Kumar Malhotra vs Punjab & Sind Bank & Ors. on 7 July, 2008
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2591/1992
SHRI SATISH KUMAR MALHOTRA ..... Petitioner
Through: Mr.Dinesh Agnani, Advocate
versus
PUNJAB & SIND BANK & ORS. .... Respondent
Through: Mr.Rajat Arora, Advocate
DATE OF DECISION:
% 07.07.2008
CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.(Oral)
1. The question which I am supposed to answer in the
instant petition is, whether the office memorandum dated
26.11.1991 informing petitioner that he would not be paid regular
pay nor would he be granted any increments for the period he
remained suspended from 12.11.1988 till 14.10.1991 is legal and
valid?
2. For record I may note the stand of learned counsel for
the respondent, who states that save and except not granting
any increment in the scale in which petitioner was placed during
afore-noted period, for all other purposes like continuity in service
etc. the said period is being taken into account for the service
W.P.(C) No.2591/1992 Page No. 1 of 6
career of the petitioner.
3. Employed as a Stenographer under Punjab & Sind Bank,
the petitioner and his brothers came to be treated as suspects by
the local police in the murder of one Shiv Kumar. Shiv Kumar was
admittedly found grievously injured; injury being a result of stab
wounds in the intervening night of 11th & 12th November, 1988. He
died. An FIR No.323/1988, under Section 302/34 IPC P.S. Moti
Nagar was registered. Petitioner was arrested as an accused in the
said FIR. He was sent for trial along with his co-accused i.e. his
brother. The effect of registration of aforesaid FIR and petitioner's
detention firstly by the police and then in the judicial custody was
his suspension with effect from 12.11.1988.
4. Vide judgment and order dated 17.8.1991, at the
sessions trial vide Sessions Case No.68/1989, petitioner and his
brother were acquitted of the offence they were charged of in FIR
No.323/1988, P.S. Moti Nagar. The acquittal was by giving the
benefit of doubt to both accused persons i.e. the petitioner and his
brother.
5. Challenge by the State to the order of acquittal failed
when this Court refused to grant leave to appeal to the State in
Criminal Misc. No.281/1991. Thus, the acquittal of the petitioner
attained finality for the reason the State did not further prosecute
the matter.
6. On 14.10.1991 the suspension of the petitioner was
revoked and he was taken back in service.
W.P.(C) No.2591/1992 Page No. 2 of 6
7. Needless to state, during the period 12.11.1988 till
14.10.1991 for which he remained under suspension, subsistence
allowance as per rules was paid to the petitioner.
8. Disciplinary action and relatable procedure between the
respondent No.1 bank and its employees became a subject matter
of an agreed Bipartite Settlement between the Union representing
the employees of the Bank and the Management. Detailed
provisions were agreed pertaining to disciplinary action including
suspension and payment of allowances etc. to the employees
charged with misconduct. Clause 19.3 of the Bipartite Settlement
extensively deals with issues of suspension in respect of offences
committed by an employee. Clauses (a), (b) and (c) thereof are
relevant which read as under:-
"19.3 (a) When in the opinion of the management
an employee has committed an offence, unless he be
otherwise prosecuted, the bank may take steps to
prosecute him or get him prosecuted and in such a case
he may also be suspended.
(b) If he be convicted, he may be dismissed with effect
from the date of his conviction or be given any lesser form
of punishment as mentioned in Clause 19.6 below.
(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 allowance as he has
drawn and to all other privileges for the period of
suspension provided that if he be acquitted by being
given the benefit of doubt he may be paid such portion of
W.P.(C) No.2591/1992 Page No. 3 of 6
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."
9. It is not in dispute that as per clause aforesaid where an
employee of a bank is acquitted at a criminal trial, it is open to the
Management to proceed to conduct a disciplinary inquiry. It is
equally open to the Management to hold no such inquiry and take
back the erring employee. In the instant case Management has
opted for that course.
10. Thus, with effect from 14.10.1991 the petitioner has
started working under the Bank and has no grievance on said score.
11. The petitioner claimed differential of the salary due and
payable to him and the subsistence allowance which was paid to
him for the period 12.11.1988 to 14.10.1991. He alleges that this is
the benefit which accrues to him as a result of his acquittal at the
criminal trial. Additionally, petitioner claims that the 2 increments
which he would have earned between 12.11.1988 and 14.10.1991
be also given to him.
12. The Management asserts that under the Bipartite
Settlement vide sub-para (c) of Clause 19.3, if acquittal is result of
benefit of doubt being given to the erring employee it is within the
discretion of the Management to pay or not to pay to him full wages
for the period of suspension as also to treat the said period as not
spent on duty. Meaning thereby that the Management may deny
full salary for the period of suspension as also not treat the period
W.P.(C) No.2591/1992 Page No. 4 of 6
as spent on duty.
13. The arguments of the petitioner and the respondent
would have 2 extremes. The extreme on the side of the employee
would be that having been acquitted by the Court, acquittal may
be by giving benefit of doubt, he has no other remedy available
but to accept the tainted acquittal for the reason law does not
permit him to question the taint in the acquittal. It would be
possible for the employee to argue that in said circumstances he
should be entitled to all benefits.
14. The other extreme end could be the view by the
employer. The same would be that the employer is in no way
connected with what has happened. As in the instant case, if the
employee is charged with murder, an act committed not during
course of employment, the employer is not to be blamed if the
employee was sent to judicial custody, meaning thereby, preventing
the employer from availing the services of the employee.
15. Law has found favour with the latter view. The reason
for the law need not be noted by me as it has formed the basis of
numerous decisions. I note only 2.
16. The first is the decision of a 3 Judge Bench of the Hon'be
Supreme Court reported as 1994 LLJ 642 Management of Reserve
Bank of India Vs. Bhopal Singh Panchal. The second is a 2 Judge
Bench decision of the Hon'ble Supreme Court reported as 2004 LL J
431 UOI Vs. Jaipal Singh.
17. In a nutshell, the Hon'ble Supreme Court has held that if,
W.P.(C) No.2591/1992 Page No. 5 of 6
as a citizen, the employee gets involved in a criminal case of a
grievous nature and is detained in judicial custody, the employer
would not be at fault in suspending such an employee and denying
to him full wages as also not counting the period in detention as
period spent on duty for the reason the employer was not to be
blamed for what had happened.
18. The Bipartite Settlement, which, needless to state, has
the force of law between the Management and the employees
empowers the Management to deny the differential between the
subsistence allowance paid and full pay payable to the petitioner as
his acquittal is by giving him the benefit of doubt. Additionally, the
Bipartite Settlement empowers employer to consider how the period
of suspension has to be treated. The employer has treated the
period of suspension as not on duty for a limited purpose, namely,
for purposes of increments which petitioner would have otherwise
earned had he continued to serve blamelessly under the
Management.
19. I find no infirmity in the action of the respondent. It
need hardly be reemphasized that petitioner's acquittal at the
criminal trial where he was charged for the offence of murder is by
giving to him the benefit of doubt.
20. The petition is dismissed.
21. No costs.
PRADEEP NANDRAJOG, J.
JULY 07, 2008
