Syndicate Bank vs K.S.Srivastava And Anr.
2014 Latest Caselaw 248 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
                              Judgment Reserved on January 09, 2014
                              Judgment Delivered on January 15, 2014
+                             W.P.(C) 1843/2000
SYNDICATE BANK                                             ..... Petitioner
             Represented by:             Mr. Puneet Taneja, Advocate with
                                         Ms. Shweta, Advocate.

                     versus

K.S.SRIVASTAVA AND ANR.                                ..... Respondent
             Represented by:             None.

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.

1. The challenge in this writ petition by the Syndicate Bank is to the Award dated February 01, 2000 in LCA No. 108 of 1995 passed by the Presiding Officer, Central Government, Labour Court (In short, the Court), New Delhi whereby the Court allowed the claim of the respondent No. 2 whereby directing the petitioner to pay an amount of ` 44948.27 P as subsistence allowance.

2. The case of the respondent No. 2 was premised on the following facts:

That he was suspended vide letter dated July 07, 1993. In terms of the suspension order, the petitioner bank has agreed to pay subsistence allowance as per Bipartite Settlement dated September 08, 1993 and as per that, he was entitled to full pay and allowances after July 08, 1994 but the petitioner bank had paid half of full pay and allowances as subsistence allowance.

3. He would also state that the petitioner bank preferred to get him prosecuted and accordingly lodged a FIR with the police authorities P.S. Preet Vihar on February 15, 1994. According to him, the police authorities investigated the matter and arrested him on January 05, 1995 and pursuant thereto, he got a bail through a competent court.

4. The claim petition of the respondent No. 2 also states that during the criminal trial, the petitioner bank initiated departmental enquiry with effect from May 01, 1995 and continued the enquiry till July 18, 1995 when the petitioner bank adjourned the enquiry proceedings. According to him, the police authorities had not communicated at any point of time that they were not intending to start prosecution nor they had come to the conclusion that there was no case for prosecution. He would challenge the conduct of departmental enquiry being in violation of Para 19.4 of the Bipartite Settlement.

5. Meaningfully read, the claim of the respondent No. 2 was premised on the fact the enquiry has not been completed within one year, he would be entitled to full pay and allowances as subsistence allowance.

6. The bank in its reply contested the claim of the respondent No. 2 on the ground that the petition under Section 33(C)(2) of the Industrial Disputes Act, 1947 is not maintainable. On merit, it was the case of the bank that at the initial stage of passing of the suspension order, the respondent No. 2 was allowed subsistence allowance as per the provision of Shastri Award Desai Award read with Bipartite Settlement dated September 08, 1983 according to which, he was allowed subsistence allowance one third of the pay for the first three months and thereafter, half of the pay allowances. The bank would also state that after the filing of the complaint against the respondent No. 2 before the police

authorities and after taking cognizance of the offence by the competent court, a modification in the rate of payment of the subsistence allowance would require.

7. Para 557 of the Shastri Award, Para 17.14 of the Desai Award and the Bipartite Settlement are reproduced hereunder for a better understanding of issue:

"Para 557 of the Shastri Award:

"557 . Having considered the matter in all its aspects we think that suspension allowance should be granted on the following scale:

(i) For the first three months one-third of the pay and allowances which the workman would have got but for the suspension;

(ii) 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".

Para 17.14 of the Desai Award:

17.14. "I make an Award in connection with this item in terms similar to those contained in paragraph 557 of the Shastry Award quoted above". It does not mean that para 557 of the Shastry Award said above, is in verbatim that of clause 17.14 of Desai Award too.

The second paragraph of para 557 of the Shastry Award deals with the enquiry where it is conducted by an outside agency. According to it, "where the enquiry is conducted by an outside agency, a conjoint reading of both sub-paras 1 & 2 of para 557 would mean that only

one-third of the pay and allowances for the first six months shall be paid to the workman as subsistence allowance and for the rest of the period till the enquiry is over, only one-half of the pay and allowances shall be paid as subsistence allowance.

Para 557 of the Shastry Award stays even as of date in cases where the outside agency is conducting the enquiry. In this respect, the position explained above alone is applicable in this case. The Labour Court was wrong in applying a provision which is not applicable to the facts of the case and arriving at a decision to order for payment of full pay and allowances as subsistence allowance after one year of suspension, when enquiry by the outside agency namely criminal court is conducting the trial.

Bipartite Settlement dated 8.9.1983

"Subsistence allowance"

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 or taken up by an outside agency (i.e. Police/CBI):

(a).....

(b).....

(2) where the investigation is done by an outside agency (i.e. Police/CBI), and such investigation is followed by a departmental enquiry by the Bank and not by prosecution:

(a).....

(b).....

Provide 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 reasons attributable to the concerned workman or any of the representatives.

(B)where the enquiry is held by an outside agency including a trial in a criminal court irrespective of whether the enquiry of trial is preceded by an investigation by an outside agency (i.e. Police/CBI) 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, particularly, the position explained under Clause B) squarely applies in this case and not any other provision discussed under this paragraph. Thereafter, the Labour Court was wrong in ordering payment of full pay and allowances as Subsistence allowance after one year of suspension".

8. The bank also denied the existence of any provision for payment of full salary as subsistence allowance during the period of his investigation/criminal trial. The Court on a reading of the provisions of the Clause 557 of the Shastri Award, Clause 17.1 of the Desai Award and relevant provision relating to the subsistence allowance of the Bipartite Settlement dated September 08, 1983 and relevant paragraph of Chapter 19.1, 19.3(a) and 19.4 was of the following conclusion:

"From the above, it is now clear that the employees of the bank become entitled to get full pay and allowance as

Subsistence allowance on the particular circumstances. The full pay and allowances as Subsistence allowance can be given firstly where the enquiry against the employee has been initiated by the bank but it is delayed beyond one year without any fault of the delinquent employee. Full pay and allowances as Subsistence allowance can also be given to the delinquent employee on arising circumstances as mentioned in paragraph 19.4 of chapter 19 of the settlement. The provisions of clause 19.4 is related to sub- clause (a) of 19.3. Sub-Clause (a) of para 19.3 deals with the situation where the criminal proceedings against the employee is initiated by the bank itself and the employee has also been suspended at the same time. Clause 19.4 clearly speaks that after taking steps for prosecuting the employee for offence the bank could proceed with the disciplinary enquiry against the delinquent employee only when the delinquent is not put on trial within a year of the commission of the offence and also on the ground where taking of the criminal proceeding against such employee is refused by the authority concerned and under these circumstances it is specifically mentioned that the delinquent employee be deemed to be on duty during the period of suspension if any and he should also be entitled to the full wages and allowances and to all other privileges for such period. The said provision I find is squarely covered in the workman‟s case. It is the own case of the bank that criminal proceeding was initiated against the workman and a complaint was also lodged on 26.7.1993 by the management in the same matter. This has specifically been alleged in para 4 and 5 of the reply of the bank. It is no where the case of the bank that the prosecuting authority had ever refused to take up the criminal proceeding against the workman. It is specific case of the workman that he was arrested by the police on the complaint of the bank on 5.1.95. It is not denied by the bank. It thus shows that nothing could be done by the prosecuting agencies against the workman within a year from the date of lodging complaint against him which is 26.7.93. In view of the fact I find that the workman was entitled for his full pay and allowances as Subsistence allowance which he was not paid illegally".

9. Mr. Puneet Taneja, learned counsel for the petitioner would contend that since the investigation was carried out by an outside agency, the respondent No. 2 was entitled to one third of the pay and allowances for the first three months and thereafter, one half of the pay and allowances only. According to him, the bank has rightly rejected the request of the respondent No. 2 seeking full pay and allowances by stating as under:

"When you were suspended vide order dt. 7.7.93, the matter was not ceased by the police. However, on 26-7-93, the police complaint was lodged against you and the matter was taken up for investigation and FIR was also filed against you. In view of the above, you are eligible for Subsistence allowance only as under as per the provisions of the Bipartite Agreement:

a) for the first 3 months of the suspension, one third of pay and allowances which you would have got but for the suspension

b) for the period of suspension if any thereafter one half of pay and allowance which you would have got but for the suspension provided the investigation is followed by Departmental Enquiry by the enquiry and not by prosecution. In case you are prosecuted, you will be eligible for Subsistence allowance as under:

i) for the first 6 months of the suspension, one third of pay and allowances which you would have got but for the suspension.

ii) for the period of suspension if any, thereafter one half of pay and allowances which you would have got but for the suspension.

In this case, since the prosecution has not started, we intend to pay you Subsistence allowance by assuming that there is no prosecution and as such, you are eligible for only one half of pay and allowances till it is decided by the

Police not to prosecute. As such, you representation cannot be considered at this stage".

10. Learned counsel would also rely upon the judgment of the Supreme Court reported as 2004 (1) SCALE 311 Andhra Bank Vs. W.T. Seshachalam to support his contention that the subsistence allowance, when a departmental enquiry is initiated, is different to a subsistence allowance payable when a criminal prosecution is launched. The only exception being when an investigation is done by an outside agency and the said agency comes to a conclusion not to prosecute the employee, full pay and allowances would be payable after six months from the date of the receipt of report of such agency or one year after suspension, whichever is earlier. He would submit in this case, since a prosecution has been launched against the respondent No. 2, he was only entitled to half of the pay and allowances.

11. I have considered the submissions made by Mr. Puneet Taneja. Before I discuss the submissions made by him, I deal with the provisions considered by the Court. A reading of para No.557 of the Shastri Award and 17.1 of the Desai Award the following position emerges:

(i) Workmen suspended during departmental enquiry for the first three months would be paid subsistence allowance @ 1/3rd of the pay and allowances.

(ii) Thereafter 1/2 of the pay and allowances for succeeding months.

12. Where the inquiry is by an outside agency, 1/3 rd of pay and allowances for the next three months and thereafter 1/2 of the succeeding months until the inquiry is over.

13. The Bipartite Settlement dated September 08, 1983 speaks in

partial modification of Shastri Award and Desai Award. The provision relating to subsistence allowance where the investigation is not entrusted or taken up by an outside agency i.e. Police/CBI, which is not the case here, subsistence allowance is payable @ 1/3rd of pay and allowances for the first three months and thereafter 1/2 of the pay and allowances but the later part of (iii) stipulates where the investigation is done by an outside agency and the said agency has come to a conclusion not to prosecute the employee, full pay and allowances need to be given after 6 months from the receipt of the report or one year after suspension whichever is earlier. This provision of the Bipartite Settlement is not applicable as the prosecution was initiated against the respondent No. 2. The important provision which the Court considers and relies upon is paragraph 19.4 under Chapter 19 of the Bipartite Settlement which stipulates, if after-steps have been taken to prosecute an employee or to get him prosecuted for an offence is not put on trial within a year of commission of the offence the Management may then deal with him as if he has committed an act of 'gross misconduct' or of 'minor conduct'. It further stipulate that if the authority which was to start prosecution proceedings refused to do so or come to conclusion that there is no case for prosecution, it shall be open to the management to proceed against the employee for discharge but in any case he shall be deemed to have been on duty during the suspension.

14. In the case in hand, the complaint was made by the bank on July 26, 1993. The FIR was registered by the police only on February 15, 1994. The charge-sheet was filed by the police in the Court on July 17, 1995. The trial could not commence even after one year of filing of the complaint. Following observations of the Court are relevant:

"Clause 19.4 clearly speaks that after taking steps for prosecuting the employee for offence the bank could proceed with the disciplinary enquiry against the delinquent employee only when the delinquent employee is not put on trial within a year of the commission of the offence and also on the ground where taking of the criminal proceeding against such employee is refused by the authority concerned and under these circumstances it is specifically mentioned that the delinquent employee be deemed to be on duty during the period of suspension if any and he should also be entitled to the full wage and allowances and to all other privileges for such period. The said provision I find is squarely covered in the workman‟s case. It is the own case of the bank that criminal proceeding was initiated against the workman and a complaint was also lodged on 26.7.1993 by the management in the same matter. This has specifically been alleged in para 4 and 5 of the reply of the bank".

15. The conclusion of the Court cannot be said to be perverse inasmuch as a conjoint reading of phrases „if he is not put on trial within a year of the commission of the offence‟ and „that if the authority which was to start prosecution proceedings refuses to do so‟ of Clause 19.4 reveal the position as determined by the Court. In the case in hand, even though there is no express refusal, the fact that the charge-sheet was filed only on July 17, 1995, would attract the Clause 19.4 in the manner interpreted by the Court. The reliance placed by Mr.Puneet Taneja on the judgment of the Supreme Court in Andhra Bank‟s case (supra) would not further petitioner's case. In the said case, the facts were that the respondent was employed as clerk in Andhra Bank and was working as a Cashier. On May 21, 1990, a fire broke in the cash cabin and a police report was also lodged on June 01, 1990. The respondent was placed

under suspension during regular departmental action. A charge-sheet in the criminal case under Section 409/436 IPC was filed against him in July 1993. A charge memo was issued to the respondent by the appellant on December 29, 1993. He was convicted by the Trial Court vide order dated January 25, 1994. On an appeal filed before the Appellate Court, the conviction was set aside on March 10, 1994. The Inquiry Officer was appointed on September 30, 1994 to hold the inquiry in the departmental proceedings. A writ petition was filed by the respondent with a prayer for payment of full salary as subsistence allowance in view of clause 5(a)(ii) of the 3rd Bipartite Settlement. Learned Single Judge allowed the writ petition holding that the respondent was entitled to full salary as subsistence allowance with effect from June 01, 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 but with effect from March 10, 1994 to July 14, 2001.

16. The Supreme Court on a reading of the provisions was of the following view:

"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, 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.

8. 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.

XXXX

10. 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 in hand 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 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.

17. On the issue of Para 5B of the Bipartite Settlement dated September 8, 1983 is concerned, the Supreme Court in Para 11 to 13 was of the following view:

"11. 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 bat for the suspension, until the enquiry

is over."

12. The above provision takes care of only criminal prosecution. The learned counsel for the respondent No. 2 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 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 farther that the enquiry is not delayed for reason attributable to the concerned workman or any of his representatives."

13. It is rightly pointed out by the learned counsel for the respondent No. 2 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".

18. In my view, it is the case of the respondent No. 2 which is covered by the ratio of the judgment of the Supreme Court in Andhra Bank‟s Case (supra).

19. Even in the case of Rajpal Singh vs. Union of India decided by the Division Bench of this Court on September 18, 2002, in W.P.(C) No.366/2002 relied upon by Mr. Puneet Taneja, would not be of any

help inasmuch as in the said case the petitioner Rajpal Singh was initially suspended on November 22, 1986 pending departmental inquiry with the clear stipulation that he would be entitled to full pay and allowances as subsistence allowance, after one year if the inquiry is not delayed for the reasons attributable to the concerned workman or any of his representative. Subsequently an FIR was lodged on November 25, 1986 against him. The order of suspension dated November 22, 1986 was modified vide order dated November 13, 1992 on the ground that the case was investigated by the police and the trial was going on. In the subsequent order, the terms of subsistence allowance were regulated as per para 557 of the Shastri Award read with Bipartite Settlement. In this order he was paid subsistence allowance at 1/2 of pay and allowances. The suspension as revoked on February 27, 1998 and finally acquitted on July 06, 2000 getting benefit of doubt. This Court had granted full pay and allowances between the period November 22, 1986 to November 30, 1992 and thereafter with effect from February 27, 1998. In the present case, the order of suspension has not been revoked on initiation of the criminal prosecution. For this purpose, I highlight the order of suspension issued to the respondent No. 2 on July 07, 1993. The suspension order reads as under:

"Pending initiation of Enquiry into serious allegations/charges appearing against you of misappropriation of monies amounting to Rs. 77,401/- received on various dates and/or converted for your own use and also non-accounting of certain amounts to the tune of Rs. 1795/- in the Books of the Bank, the same date on which it was/were received by you from the parties concerned for the credit of CBSE A/c. maintained at our CBSE-attached to Base Branch- Nirman Vihar, New Delhi, while you were working as Cashier in the said E.C. during the period between Feb.

1992 and Nov. 1992, you are hereby suspended from the services of the Bank with immediate effect under Clause No. 10.12(b) of Bipartite Settlement, 1966. During the period of suspension, you will be paid subsistence allowance as per para 557 of Shastri Award read with Bipartite Settlement dated 8.9.93 as follows:

1. For the first three months, one-third of the pay and allowances which you would have got but for suspension;

2. Thereafter, half of the Pay and Allowances; and

3. After One Year, Full Pay and Allowances, if the Enquiry is not delayed for the reasons attributable to you or to any of your Defence Representative".

20. A perusal of the Suspension Order would show that the same was issued pending initiation of departmental enquiry into serious allegations and charges of misappropriation against the respondent No. 2. What is of relevance is the petitioner bank has specified the provisions and the rate at which, he (respondent No. 2) would be paid the subsistence allowance. It is noted that after one year, full pay and allowances, if the enquiry is not delayed for the reasons attributable to the respondent No. 2 or his defence representative, become payable. It is necessary to state here on the date of suspension i.e. July 07, 1993, no complaint was made by the bank to the police authorities. The complaint was made by the police authorities only on July 26, 1993. In other words, on the date of suspension, what was contemplated against the respondent No. 2 was only a departmental enquiry. It may also be highlighted here that the suspension order dated July 07, 1993 was neither revoked nor superseded by a fresh order pursuant to initiation of criminal investigation by the police.

21. It is only after the respondent No. 2 raised the issue of payment of

full pay and allowances as subsistence allowance, the bank informed him that as on July 26, 1993, the police complaint was lodged against him and the matter was taken up for investigation and FIR has been registered against him, he was eligible for subsistence allowance only as per the provisions of Bipartite Settlement in the following manner:

a) for the first 3 months of the suspension, one third of pay and allowances which you would have got but for the suspension

b) for the period of suspension if any thereafter one half of pay and allowance which you would have got but for the suspension provided the investigation is followed by Departmental Enquiry by the enquiry and not by prosecution. In case you are prosecuted, you will be eligible for Subsistence allowance as under:

i) for the first 6 months of the suspension, one third of pay and allowances which you would have got but for the suspension.

ii) for the period of suspension if any, thereafter one half of pay and allowances which you would have got but for the suspension.

22. I may state here in this letter also, the petitioner do not say that the suspension order dated July 07, 1993 has been revoked or stands superseded.

23. The issue which now need to be decided is whether in the absence of a new suspension order pursuant to the initiation of criminal prosecution against the respondent No. 2 whether the bank was required to issue a fresh Suspension Order for the same reason and limit the subsistence allowance accordingly or in the absence of same, whether the suspension of the respondent No. 2 would be regulated by the order dated July 07, 1993. It is not in dispute that the suspension order dated

July 07, 1993 was issued pending enquiry against the respondent No. 2 and the said order clearly stipulated the terms on which, the subsistence allowance was to be paid to the respondent No. 2. Once a Suspension Order has been issued with certain conditions with respect to subsistence allowance, the petitioner bank was either required to revoke the Suspension Order; issue a fresh order pursuant to the initiation of criminal prosecution against the respondent No. 2 and regulate the terms of suspension order under the Rules which govern the grant of subsistence allowance in the eventuality of a criminal investigation. Having not done that, the petitioner could not have regulated the subsistence allowance in the manner which they did vide their letter dated August 13, 1994.

24. Further, I find that the Court has awarded an amount of ` 44,948.27 P, which was directed by this court vide its order dated July 23, 2004, to be withdrawn by the respondent No. 2, subject to furnishing a security to the satisfaction of the Registrar General of this Court. In view of the discussion above, keeping in view the facts of this case, I do not find any merit in the writ petition. The same is dismissed with no costs.

(V.KAMESWAR RAO) JUDGE

JANUARY 15, 2014 akb