Delhi High Court

General Manager, Canara Bank & ... vs Kuldeep Raj Sharma on 7 January, 2013

Author: Badar Durrez Ahmed

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 07.01.2013

+       LPA No. 771/2010

GENERAL MANAGER, CANARA BANK
& OTHERS                                                 ...   Appellants

                                         versus

KULDEEP RAJ SHARMA                                       ...   Respondent
Advocates who appeared in this case:
For the Appellants           : Mr Naveen R. Nath
For the Respondent           : Ms Sumedha Sharma


CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

                                   JUDGMENT

BADAR DURREZ AHMED, J

1. This Letters Patent Appeal is directed against the judgment dated

09.02.2010 passed by a learned single Judge of this court in WP (C)

7383/2009 as also against the order dated 20.09.2010 passed by the said

learned single Judge in the review petition No.243/2010. By virtue of the

judgment dated 09.02.2010, the respondent's writ petition was allowed and

by virtue of the order dated 20.09.2010, the appellant's review petition was

dismissed.

2. The issue sought to be raised in the present appeal pertains to the

manner in which the period for which the respondent Kuldeep Raj Sharma

was under suspension, that is, from 05.08.2000 to 20.07.2002, is to be dealt

with. The respondent's claim for difference in salary as well as of treating

the said period of suspension as having been "spent on duty" was allowed

by the learned single Judge by virtue of the impugned judgment / order. It

is the case of the appellant that the said decision runs contrary to the

regulations and also to the Supreme Court decision which had been relied

upon by the learned single Judge in the case of General Manager, UCO

Bank and Another v. M. Venuranganath: 2007 (13) SCC 251.

3. Before we examine the rival contentions of the parties, it would be

relevant to notice some facts. The respondent Kuldeep Raj Sharma was

working with the appellant. The respondent had two sons Pradeep Sharma

and Manish Sharma. The younger son (Manish Sharma) married one Anita

Sharma sometime in the year 2000. Unfortunately, Anita Sharma died an

unnatural death on 01.08.2000. A criminal case came to be registered

under FIR No.1643/2000 at police station Sahibabad under Sections 498-

A/304-B/302/34 IPC and under Sections 3/4 of the Dowry Prohibition Act,

1961. The respondent was arrested in connection with that criminal case

and by virtue of an office order bearing No. DC/DAC/700/2000 dated

05.08.2000, the respondent was placed under suspension. Subsequently,

the respondent and his wife were granted bail by the Sessions Court,

Ghaziabad (U.P.) on 30.09.2000. By an order dated 20.07.2002 issued by

the Deputy General Manager of the appellant, the suspension order was

revoked. The revocation of suspension order clearly indicated that the

question of suspension of the respondent was reviewed and it had been

decided to revoke the same. The suspension was revoked from the date of

reporting for duty by the said respondent at the appellants Ballimaran,

Chandni Chowk Branch, Delhi. The order dated 20.07.2002 also indicated

that upon revocation of suspension, the respondent would be paid salary

and allowances which he was drawing prior to the date of suspension.

Furthermore, the said order dated 20.07.2002 stipulated that the period

spent under suspension by the respondent shall not be treated as having

been "spent on duty" and the same shall not be reckoned for any purpose

whatsoever.

4. The respondent superannuated on 31.12.2002. He was acquitted of

all the criminal charges by the Sessions Court at Ghaziabad on 19.01.2004.

5. We may point out that on 03.10.2000, the respondent had made a

representation to the General Manager, Canara Bank requesting for

revocation of the suspension and release of the differential salary. We have

already mentioned above that the suspension order was subsequently

revoked by virtue of an order dated 20.07.2002. However, his request for

differential salary was not acceded to. A further representation was made

by the respondent on 23.08.2004, whereby he requested for counting the

period of suspension as having been "spent on duty". By a communication

dated 28.10.2004 from the appellant to the respondent, the respondent was

informed that at the time of revocation of suspension, the competent

authority had ordered to treat the period of suspension as one "not spent on

duty". As such, the request for treating the period of suspension as "spent

on duty" could not be acceded to.

6. These are the facts leading upto the filing of the writ petition. The

learned single Judge by virtue of the impugned judgment dated 09.02.2010,

after considering the Canara Bank Officer Employees' (Conduct)

Regulations, 1976 (hereinafter referred to as 'the said Regulations'), came

to the conclusion that in the order dated 28.10.2004, no reasons had been

given as to why the request of the respondent for treating the period of

suspension as the period "spent on duty", had not been acceded to.

Consequently, the learned single Judge held that the said order 'smacked'

of arbitrariness, having been passed without application of mind. The

learned single Judge also sought to place reliance on the decision of the

Supreme Court in the case of General Manager, UCO Bank (supra) and

directed that the respondent was entitled to the difference of salary for the

period 05.08.2000 to 20.07.2002 and that the said period should be treated

as "spent on duty" by the respondent for all intents and purposes.

7. As mentioned above, the appellant had filed a review petition being

review petition No.243/2010, wherein, inter alia, the plea was taken that

the decision of the Supreme Court in the case of General Manager, UCO

Bank (supra) does not support the case of the respondent at all. But, on the

contrary, supports the case of the appellant. However, the learned single

Judge repelled this contention after setting out Regulation 15 of the said

Regulations and para 10 of the said Supreme Court decision. We may point

out that the learned single Judge also referred to clause 22(8) of the Manual

on Disciplinary Action and Related Matters of UCO Bank and came to the

conclusion that the review petition had no merit and affirmed his decision

as per the impugned judgment dated 09.02.2010.

8. Regulation 15 of the said Regulations reads as under:-

"15. Pay, allowances and treatment of service on termination of suspension:

(1) Where the competent authority holds that the officer employee has been fully exonerated or that the suspension was unjustifiable, the officer employee concerned shall be granted the full pay to which he would have been entitled, had he not been suspended, together with any allowance of which he was in receipt immediately prior to his suspension, or may have been sanctioned subsequently and made applicable to ail officer employees.

(2) In all cases other than those referred to in sub-regulation (1), the officer employee shall be granted such proportion of pay and allowances as the Competent Authority may direct:

Provided that the payment of allowances under this sub- regulation shall be subject to all other conditions to which such allowances are admissible:

Provided further that the pay and allowances granted under this sub-regulation shall not be less than the subsistence and other allowances admissible under regulation 14.

(3) (a) In a case falling under sub-regulation (1), the period of absence from duty shall, for all purpose, be treated as a period spent on duty;

(b) In a case falling under sub-regulation (2), the period of absence from duty shall not be treated as a period spent on duty unless the Competent Authority specifically directs, for reasons to be recorded in writing, that it shall be so treated for any specific purpose."

9. A plain reading of the said Regulations makes it clear that Regulation

15(1) deals with departmental proceedings inasmuch as the expression used

is where the "employee has been fully exonerated". Regulation 15(1) does

not apply to acquittals in criminal cases. This has been so held by the

Supreme Court in General Manager, UCO Bank (supra). In the said

decision, it has also been held that Regulation 15(2) applies to all other

cases which include criminal cases. Therefore, reading Regulation 15 by

itself, it is abundantly clear that the respondent cannot get the benefit under

Regulation 15(1) as his case is not of a departmental proceeding, but of a

criminal case. The respondent's case falls under Regulation 15(2) and, if

that be so, the respondent is only entitled to be granted such proportion of

pay and allowances as the competent authority may direct. The respondent

is not entitled to the grant of full pay to which he would have been entitled

had he not been suspended. That is only possible under Regulation 15(1)

which does not apply to the respondent's case. We may also point out that

Regulation 15(3) deals with two situations; one, where the case falls under

sub-Regulation (1) and; two, where the case falls under sub-Regulation (2).

Since the respondent's case falls under Regulation 15(2), it would be

Regulation 15(3)(b) which would apply. According to that sub-Regulation,

the period of absence from duty shall not be treated as a period "spent on

duty" unless the competent authority specifically directs, for reasons to be

recorded in writing, that it shall be so treated for any specific purpose. In

other words, normally, the period of absence from duty in such cases is not

to be treated as a period "spent on duty". It is only in cases where the

competent authority specifically directs that such period of suspension

should be treated as having been "spent on duty" that the competent

authority is required to give reasons in writing. No reasons are necessary

when the period of suspension in cases falling under sub-Regulation 15(2)

is treated as "not spent on duty".

10. The reliance by the learned single Judge on the Supreme Court

decision in General Manager, UCO Bank (supra) is also misplaced. The

Supreme Court in the said decision had ultimately held in favour of the

respondent therein because of clause 22(8) of the said UCO Bank Manual.

The Supreme Court observed as under:-

"14. Clause 22(8) obviously is relatable to Clause 15(2), meaning that it provides guidelines for operating Sub-regulation (2) of Regulation 15. The High Court was, therefore, justified in holding that because of Clause 22(8), the respondent was entitled to all benefits to which he would have been normally entitled, had he been on duty. Therefore, no interference is called for."

11. Unfortunately, for the respondent, there is no provision analogous to

the said clause 22.8 of the UCO Bank Manual insofar as Canara Bank is

concerned. The learned counsel for the appellant had also drawn our

attention to the Supreme Court decision in the case of Union Bank of India

v. K. V. Jankiraman & Others: 1991 (4) SCC 109, wherein the Supreme

Court observed as under:-

"25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.

26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non- availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it

is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary / criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after Clause (iii) of paragraph 3 of the said Memorandum, viz., '"but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:

'However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding / criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so.'"

12. On going through the above extract from the Supreme Court decision

in K.V. Jankiraman (supra), it is clear that the concerned authorities are to

be vested with the power to decide whether an employee at all deserves any

salary for the intervening period and if he does, the extent to which he is

entitled. This is specifically provided in Regulation 15(2) of the said

Regulations. Therefore, the observations of the Supreme Court in K.V.

Jankiraman (supra) tend to support the case of the appellant. The

Supreme Court also observed that it would not be possible to lay down an

inflexible rule that in every case when an employee is exonerated in

disciplinary / criminal proceedings, he should be entitled to all salary for

the intervening period and to lay down such an inflexible rule would be to

undermine the discipline in the administration and jeopardize public

interest. Therefore, there was nothing wrong with the appellant deciding

not to grant salary to the respondent during the period of suspension

because this was in exercise of the discretion under Regulation 15(2) of the

said Regulations.

13. For these reasons, the impugned judgment and order cannot be

sustained and the same are set aside. The appeal is allowed. There shall be