Sushila Tiwary Vs Allahabad Bank .

Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5224 OF 2012 (arising out of SLP(C)No.11293 of 2011)

SUSHILA TIWARY AND OTHERS …. APPELLANTS

VERSUS

ALLAHABAD BANK AND OTHERS ….RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

Delay condoned. Leave granted.

2. This appeal has been preferred by the Legal

Heirs of the original writ petitioner, Shri

Ravindra Nath Tiwary (hereinafter referred to as

“Shri Tiwary”) against the judgment dated 3rd May,

2010 passed by the Division Bench of the Patna High

Court in L.P.A. No.762 of 2010, whereby the

1

Page 2

Division Bench dismissed the appeal and affirmed

the order passed by the learned Single Judge

wherein the order of termination passed against

Shri Tiwary was affirmed.

3. Appellant No.1, Sushila Tiwary is the wife and

appellant Nos.2 to 5, Rajesh, Priyanjali, Sudhansu

and Himanshu are the sons and daughter of Shri

Tiwary.

4. Shri Tiwary was working as Special Assistant

in the Allahabad Bank, Arah Branch(hereinafter

referred to as “the Bank”). He was suspended on 11th

June, 1990 for certain acts of omission and

commission and proceeded departmentally under

Clause 19.5(d) and 19.5.(j) of the first Bipartite

Settlement 1966. Two chargesheets dated 30th June,

1990 and 13th October, 1990 were served on him. The

Bank also decided simultaneously to prosecute Shri

Tiwary in a criminal case for the criminal act and

lodged an FIR with the Arah Police Station. After

trial Shri Tiwary was convicted in the criminal

2

Page 3

case on 19th April, 1999 by the SubDivisional

Judicial Magistrate(SDJM), Bhojpur. He was ordered

to undergo RI for one year for the offence

punishable under Section 468 IPC and RI for one

year for the offence punishable under Section

477(A) IPC.

5. In view of the conviction in the criminal

case, the Assistant General Manager, Regional

Office, Patna, who was the disciplinary authority,

by invoking provisions of Clause 19.6(a) of the Bi

partite Settlement, 1966 dismissed Shri Tiwary from

the services of the Bank by order No.8/99 dated 21st

July, 1999 after giving opportunity of personal

hearing to Shri Tiwary.

Against the order of conviction Shri Tiwary

preferred an appeal in the Court of the Additional

District and Sessions Judge, Bhojpur, who by

judgment dated 6th February, 2000, after giving

benefit of doubt, had acquitted Shri Tiwary from

the charges. After the acquittal Shri Tiwary

3

Page 4

approached the Bank and informed that he has been

acquitted in criminal case by the Appellate Court.

The Bank on receipt of such intimation, invoked

Clause 19.3(c) of the Bipartite Settlement and by

order No.1/126 dated 2nd July, 2001 ordered that

Shri Tiwary will be deemed to have been placed

under suspension from the date of original order of

dismissal, i.e., 21st July, 1999 and shall continue

to remain under suspension until further order. It

was further ordered that during the period of

suspension he will be entitled to subsistence

allowance on the same scale as was getting just

prior to his dismissal dated 21st July, 1999. The

Assistant General Manager, Regional Office, Patna

who was the disciplinary authority brought the

aforesaid facts to the notice of Shri Tiwary and

informed that his Headquarters has been fixed at

Arah.

6. In the departmental enquiry, Shri Tiwary did

not choose to participate. Once, he appeared before

4

Page 5

the Enquiry Officer but later on he again absented

and refused to appear. Shri Tiwary moved before

the Patna High Court against the order of

suspension and revival of departmental proceedings

by filing a writ petition, C.W.J.C. No.11479 of

2001. In the said writ petition, in view of the

statement made on behalf of the Bank that the

departmental enquiry has already been concluded and

the Enquiry Officer has already submitted the

report, Shri Tiwary withdrew the writ petition on

5th March, 2003 with liberty to raise all the pleas,

in case, the order of disciplinary authority goes

adverse to him.

7. The disciplinary authority noticed that Shri

Tiwary refused to appear before the Enquiry Officer

and remained absent. Therefore, the Enquiry Officer

had to submit ex parte reports on 3rd September,

2002 and 9th September, 2002 separately for the two

different chargesheets. In both the departmental

proceedings all the charges against Shri Tiwary

5

Page 6

were found true. In this background, a second

showcause notice was issued to Shri Tiwary by the

disciplinary authority by order dated 31st March,

2003 and it was proposed as to why his services be

not terminated by paying three months’ pay and

allowances in terms of Clause 3(d) of the

Memorandum of Settlement dated 10th April, 2002.

Shri Tiwary was advised to appear in person with or

without his Defence Representative before the

disciplinary authority, the Assistant General

Manager, Regional Office, Patna for personal

hearing on 16th May, 2003. Pursuant to such notice,

Shri Tiwary appeared before the disciplinary

authority on 16th May, 2003 with his Defence

Representative. The objections as raised by him

were recorded by the disciplinary authority and

after going through the chargesheets, Enquiry

Repots and the objections raised by Shri Tiwary the

disciplinary authority terminated the services of

Shri Tiwary by order dated 16th June, 2003.

6

Page 7

8. Against the order of termination, Shri Tiwary

filed the writ petition before the Patna High Court

in C.W.J.C. No.12429 of 2005. During the pendency

of the said writ petition before the learned Single

Judge, Shri Tiwary died and was substituted by his

Legal Heirs. After hearing the parties, learned

Single Judge by judgment dated 3rd September, 2008

taking into consideration the gravity of charges

and the fact that the amount which was alleged to

be embezzled was deposited by Shri Tiwary with the

Bank, pursuant to the order of this Court dated 8th

July, 2008 in Criminal Appeal No. 1019 of 2008,

refused to entertain the writ petition and

dismissed the same. The Division Bench of the Patna

High Court affirmed the said decision and dismissed

the L.P.A. by the impugned judgment.

9. Learned counsel appearing on behalf of the

appellants herein submitted that without

reinstating the original writ petitioner, no

departmental enquiry could be initiated. Further,

7

Page 8

in view of Clause 19.3(c), the original writ

petitioner was entitled to full pay and allowances

minus the subsistence allowance and all other

privileges for the period of suspension which was

denied to him.

It was further contended by the learned

counsel for the appellants that the High Court

ought to have considered that the departmental

enquiry had been conducted and concluded ex parte,

hence in all probability, it would have been fair

enough to grant at least one more opportunity to

the legal heirs of the delinquent to participate in

the departmental enquiry and prove the innocence of

the delinquent. It was also contended that the

High Court ought to have considered that the

impugned order of dismissal is void, having been

passed without their being any master and servant

relationship existing at the time of passing of the

order against the delinquent in absence of order of

reinstatement.

8

Page 9

10. Per contra, according to the learned counsel

appearing for the respondents, in view of order

dated 2nd July, 2001 Shri Tiwary was deemed to have

been reinstated and in terms of Clause 19.3(d) Shri

Tiwary was deemed to be on duty of the Bank from

the date order of suspension was issued.

11. We have considered the respective submissions

and also perused the relevant provisions of Bi

partite Settlement.

12. ‘The disciplinary action and procedure’ of the

Bank are guided by Chapter 19 of Bipartite

Settlement, 1966. As per Clause 19.3(b), if an

employee of the Bank is convicted in a criminal

case, such employee may be dismissed from service

from the date of his conviction or may be inflicted

with lesser form of punishment depending on gravity

of charges. Clauses 19.3(c) and 19.3(d) relate to

action which is to be taken by the disciplinary

authority, in case an employee is acquitted during

the trial or pursuant to an order passed in an

9

Page 10

appeal or revision. Relevant Clause 19.3(c) and

Clause 19.3(d) read as follows:

“19.3(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 allowances as he has drawn and to all other privileges for the period of suspension provided that he be acquitted by being given the benefit of doubt he may be paid such portion of 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.

19.3(d) If he prefers an appeal or revision application against his conviction and is acquitted, in case he had already been dealt with as above and he applies to the management for reconsideration of his case, the management shall review his case and may either reinstate him or proceed against him under the provisions set below in Clauses 19.11 and 19.12 infra relating to discharge, and the provision set out above as to pay, allowances and the period of suspension will apply, the period upto date for which full pay and allowances have not been drawn being treated as one of suspension. In the event of the management deciding, after enquiry not to continue him in service, the employee shall

1

Page 11

be liable only for termination with three months’ pay and allowance in lieu of notice, as directed above.”

13. The above reproduced provisions represent the

intention of the Bank and the Union to determine as

to what steps the disciplinary authority requires

to take in case an employee who is accused in a

criminal case is acquitted during the trial or such

employee after conviction is subsequently acquitted

in an appeal or revision. Clause 19.3(c) applies to

the cases where the employee is acquitted during

the trial. On the other hand, Clause 19.3(d)

applies to the cases where the convicted employee

prefers an appeal or revision application against

his conviction and is acquitted. Under Clause

19.3(d) if an employee applies to the management

for reconsideration of his case on acquittal, the

management is required to review his case and may

either reinstate him or proceed against him under

the provisions set in Clauses 19.11 and 19.12

relating to discharge, the period uptodate for

1

Page 12

which full pay and allowances have not been paid

being treated as one of suspension. In the event of

management deciding, after enquiry, not to continue

in service, the employee shall be liable only for

termination with three months’ pay and allowances

in lieu of notice.

14. Reverting to the facts of this case, we find

that Shri Tiwary was acquitted during the trial for

the offence under Section 468 IPC and Section 477

(A) IPC and was ordered to undergo RI for one year

each for both the Sections. He was acquitted by

giving benefit of doubt in the criminal appeal. In

such case, Shri Tiwary was liable to be proceeded

under Clause 19.3(d) and, thereby, the appellants

cannot derive of the benefit of Clause 19.3(c) of

the Bipartite Settlement.

The disciplinary authority by its notice dated

2nd July, 2001 passed the following order:

“As such, it is ordered that Shri Tiwary will be deemed to have been placed under suspension from the date of original order of dismissal i.e. 21.07.1999 and

1

Page 13

shall continue to remain under suspension until further order. During the period of suspension, he will be entitled to subsistence allowance on the same scale as he was getting just before his dismissal on 21.07.1999.”

15. If Clause 19.3(d) is read along with the

notice dated 2nd July, 2001, it is clear that Shri

Tiwary stood reinstated w.e.f. 21st July, 1999,

i.e., the date on which he was originally dismissed

from service and deemed to be continuing under

suspension since then. For the said reasons, the

stand taken by the appellants that Shri Tiwary was

not reinstated before the departmental proceedings

is fit to be rejected and we hold that he was

entitled for subsistence allowance and not the full

pay and allowances as called for.

16. We find no illegality in the order of

termination or orders passed by the learned Single

Judge and the Division Bench of the Patna High

Court. They do not call for any interference. In

1

Page 14

absence of any merit, the appeal is dismissed but

there shall be no order as to costs.

………..……………………………………………..J. ( G.S. SINGHVI )

……………………………………………………….J. ( SUDHANSU JYOTI MUKHOPADHAYA )

NEW DELHI, JULY 16, 2012.

1