TMI Blog2019 (8) TMI 1876X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that States financial constraints should not stand in the way to avoid this constitutional obligation. Direction was also issued for setting up new Courts, providing more staffs and equipment and appointment of additional judges. The concept of fair trial has been envisaged under article 21 which entails familiar triangulation of this interest of the accused, the victim. A fair trial is aimed at ascertaining the truth to all concerned. In a case where the appellant is accused in criminal breach of trust by taking money from someone else who has lodged a complaint against him that the accused compelled the complainant to give money to favour with an order of granting loan is a serious allegation against a bank employee and such bank employee when is faced with the criminal trial, it is expected that the criminal trial should be proceeded with without delay because until and unless such trial is over neither the allegation of the complainant could be proved nor the accused would able to prove that the allegation levelled against him are false and baseless which right pertains to his right to live guaranteed under Article 21 of the Constitution. There is no law today to crea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner is entitled to get all benefit pursuant to the order impugned. Reference disposed off. - Hon ble Justice Sahidullah Munshi For the Appellant : Mr. Subir Sanyal. For the Respondent : Mr. Subhro Prokash Lahiri. ORDER SAHIDULLAH MUNSHI, J. : This appeal has come up before me on reference by way of special assignment made by the then Hon ble Chief Justice by an order dated 10.12.2018 in view of difference of opinion of the Hon ble Judges of the Division Bench while deciding the appeal. I have heard the respective submissions of the appellant/Bank and the writ petitioner/respondent on the issues raised before the Division Bench while challenging the order of the learned Single Judge allowing the writ petition, as if I was a partner of the Appellate Bench and accordingly, I give my decision. 2. The appeal is directed against the judgment and order dated 21st April, 2015 passed by learned Single Judge of this Court whereby the writ petition W.P. No.7288 (W) of 2015 was allowed holding, inter alia, that indefinite period of suspension in case of the petitioner imposed with immediate effect was illegal and thereby setting aside the appellate order im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich will be under deemed suspension from 20.08.2014 in terms of Regulation 12(2)(a) of Allahabad Bank Officer Employees (Discipline Appeal) Regulations, 1976. It is ordered that during the period the suspension remains in force, he will be entitled to Subsistence Allowances only as admissible under the said Regulations. It is further ordered that during the period of suspension, he will not leave his station / Head Quarter without obtaining prior permission from the undersigned and he should notify the undersigned his address for communication. During the period of suspension, he will not enter into the premises of Adisaptgram Branch of the Bank or any other Branch / Office of the Bank and he may only enter the premises of the Branch where his Savings Bank account is maintained with proper permission from the Manager of that Branch for the purpose of operating his Savings Bank account and /or drawing the Subsistence Allowance payable to him, which he will get on furnishing a certificate that he is not engaged in any other employment, business, profession or vacation. Let this order be communicated to Shri Sandipta Gangopadhyay, Senior Manager, Adisaptgram Branch imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to join such duties as the bank may assign to him by the beginning of May, 2015. It was also observed in the same order that it will be open to the bank to transfer the petitioner to some other branch or assign such duties that may not involve any contentious matter. The present appeal is directed against the said order of the Hon ble Single Judge passed on 21.04.2015. It is the contention of the appellant before this Court that the Hon ble Single Judge while passing the impugned order was influenced by the decision of the Hon ble Apex Court in Ajay Kumar Choudhary Vs. Union of India reported in (2015) 7 SCC 291 which conclusively decided the issue of prolonged suspension of an employee suffering criminal proceeding. The said decision of Ajay Kumar (supra) based on the principle that while according to the Code of Criminal Procedure if an investigation cannot be completed within 90 days the petitioner is entitled to be enlarged on bail, why there should be a different stand that the petitioner s suspension from service should continue even if no charge-sheet or Memorandum of charges is not served on the delinquent officer/employee. 5. Mr. Sanyal, learned Counsel appearing fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the order of extension of suspension he approached the Hon ble Apex Court and the Hon ble Apex Court granted relief to him and made the order of suspension limited for a period of three months only. Mr. Sanyal distinguishes the fact of the appellant before the Supreme Court in Ajay Kumar (supra) saying that the appellant before this Court was arrested on 28.08.2014 on the basis of a complaint of bribery by one Mr. Moni Mojumdar, who lodged an FIR before the police. The allegation in the FIR shows that the petitioner went to the factory of the said Majumdar; demanded money for disbursement of a loan; petitioner took a bribe of Rs.25,000/- in a black plastic cover containing 50 pieces of Indian currency notes of Rs.500/-; entire incident was captured by CCTV which recorded the said currency notes and its numbers. 6. Therefore, according to Mr. Sanyal this is a case which is more specific inasmuch as entire episode has been recorded in CCTV and further that he has been caught red hand. He distinguishes the fact situation of the present case and that of Ajay Kumar (supra) to the extent that in Ajay Kumar (supra) case he issued no objection certificates based on the notes prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f moral turpitude was involved and that too in the selfsame bank where the CBI conducted an investigation and registered a case pursuant to which the Superintendent of police asked the Bank to accord sanction for prosecuting the respondent/delinquent. The bank accorded the requisite sanction and also, resorting to Clause 19.3 of the first bipartite settlement, 1966 suspended the respondent. The charge-sheet filed in the court by the police showed that the respondent had participated in false issuance of cheque books and had withdrawn money through a fake account with another bank by depositing the cheques issued from both cheque books. The High Court set aside the suspension order. In such background fact of the case in Allahabad Bank (supra) the Hon ble Apex Court held where offence involving moral turpitude must depend upon the facts of each case. However, one of the most serious offences involving moral turpitude could be a bank where a person employed in a banking company dealing with money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw. This is a case where really a question of moral turpitude is involved where he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Supreme Court before deciding Ajay Kumar (supra) the ratio decided in Ajay Kumar (supra) would have been different. The ratio in Allahabad Bank (supra) is that where a criminal prosecution is based on moral turpitude, employee s suspension should not be quashed on ground of delay. And that the respondent/employee in Allahabad Bank (supra) case was prosecuted among other provisions with 120B of the Indian Penal Code. The ratio in the Allahabad Bank (supra) case was whether the bank objectively found anything against the employee on moral turpitude which could justify placing the employee under suspension. Where the Hon ble Apex Court considering the CBI case and its investigation, particularly, the charge-sheet filed held that High Court was wrong in holding that there was no objective consideration by the management of the Bank to place the employee under Suspension and consequently the order passed by the High Court quashing the said order of suspension. In this case the ratio is whether a prolonged suspension can continue even after the petitioner is released on bail and that even after expiry of 90 days no charge could be framed by the Bank Authority against the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have placed in support of the evidence. No explanation is forthcoming as to the stage of the criminal prosecution and the Bank s role therein. The complaint was filed in September, 2013 and the impugned order was passed by the Hon ble Single Judge on 21st April, 2015. Mr. Lahiri submitted that it is intentional on the part of the bank authority to continue the suspension and not to initiate any departmental proceeding independently. He submitted that it is mala fide attempt on the part of the management to harass the appellant both financially and socially. He submitted that there is no connection with the nature of allegation and prolongation as allegation is yet to be proved in criminal Court and suspension being part of service rule cannot be equated. The suspicion and/or allegation whatever grave has to be established and/ or proved by evidence. Simply on the basis of allegation put a person under suspension for a prolonged period cannot be justified at all. The Bank in fact, has been depriving him from his right to live and other civil liberties. Such right to live is guaranteed under Article 21 and in effect a fundamental right. This right to live includes right to fair and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees (Discipline and Appeal) Regulation, 1976. Regulation 5 says that the authority may institute disciplinary proceedings and impose penalties. Regulation 12 provides for suspension of an employee by the competent authority which speaks that where a disciplinary proceeding against the employee is contemplated or is pending he can be placed under suspension; or where a case against him in respect of criminal offence is under investigation, inquiry or trial he can be placed under suspension. Regulations 12(2) however, says that an officer shall be deemed to have been placed under suspension by an order of competent authority with effect from the date of detention, if detained in custody, whether at a criminal charge or otherwise, for a period of exceeding 48 hours. Taking records to such provision the delinquent was placed under suspension and such suspension was continuing till before the impugned order was passed. And even today the said order of suspension is continuing in view of the divergence of opinion between to two partners of the Division Bench as it reveals from the record. The submission has been made on behalf of the Bank Authorities that they have no other option but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al proceeding is not contemplated at all, this cannot be the only object to place the employee under suspension and for him to be satisfied with a limited payment of his salary. This prolonged suspension is opposed to the due process of law in our constitution. Because it cannot be the public policy to abridge a person s right ordinarily to continue with the job for which he has been engaged. If he is alleged to have committed any wrong or guilt the same itself cannot be construed a punishment. Any allegation labelled against an employee is to be enquired into by the procedure established by law or prescribed under the rules and regulations. Rules and regulations where are sufficient for a departmental inquiry the authority cannot bypass the same and cause the sufferance of the employee to suffer suspension for a prolonged period without being communicated the reasons for such prolonged suspension. Our constitution guarantees life or liberty of a person, however, guilty he may be, without complying with the procedural requirement of due process, is invalid. Therefore, in my view, prolonged suspension opposes due process focused in the Constitutional mandates. Due Process is the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
