IMPORTANT POINT
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.

Headnote:SERVICE LAW-Suspension-Subsistence Allowance during period of suspension-Liability of Bank to pay in view of provisions as contained in Sastry Award, Desai Award and Bipartite Agreement-Claim of full salary-Respondent was employed as a clerk in Andhra Bank and was working as cashier-Fire incident in cash cabin-Respondent placed under suspension during the regular departmental action -Criminal prosecution-Conviction by trial Court-Acquittal in appeal -Enquiry officer appointed on 13-9-2004 to hold an enquiry into departmental proceedings-Respondent filed writ petition with a prayer for payment of full salary as subsistence allowance in view of clause 5(a)(iii) of Third Bipartite Settlement-High Court held that respondent was entitled to full salary as subsistence allowance w.e.f. 10-3-1994, date of acquittal to 14-07-01-Respondent was held not responsible for prolonging the enquiry-Whether respondent was held entitled to full salary as subsistence allowance-(Yes).
       Held : In the present case as about the factual position, we find that the order dated 1.6.1990 provides for suspension of the respondent pending regular departmental action. Criminal trial cannot be termed as departmental action. The chage-sheet was submitted in the criminal case in July, 1993 and in the departmental proceedings, a charge sheet was issued on 29.12.1993. The criminal case ended in acquittal ultimately by order dated 10.3.1994 passed in appeal. It was six months thereafter that an enquiry officer was appointed to conduct the departmental proceedings. The departmental action was contemplated/initiated against the respondent as a result of which suspension order was passed on 1.6.1990. Charge-sheet having been issued on 29.12.1993 the departmental action continued till it ended in 14.7.2001 when the departmental proceedings concluded in dismissal of the respondent. During this period from 1.6.1990 to 14.7.2001 there has been overlapping period of criminal proceedings which came to an end on 10.3.1994. (Para 9)
       It is rightly pointed out by the learned counsel for the respondent 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. (Para 13)

JUDGMENT

Brijesh Kumar, J.-The point involved in this appeal is short and relates to the question as to what amount, the appellant is liable to pay as subsistence allowance to the respondent during the period he remained under suspension, in the light of the provisions as contained in the Sastry Award, Desai Award and the Bipartite Agreement on the subject as well as the rules of the bank. The learned single Judge held that the respondent was entitled to full salary as subsistence allowance right with effect from 1.6.1991 in accordance with para 17.14 of the Third Bipartite settlement. On appeal before the Division Bench it was held that the respondent would though be entitled to the amount of full salary as subsistence allowance but from 10.3.1994 to 14.7.2001, the date on which the respondent was dismissed from service.

2. The respondent was employed as a clerk in the appellant Andhra Bank and was working as cashier at Chennai. On 21.5.1990 a fire broke in the cash cabin in connection whereof it appears a police report was also lodged on 1.6.1990. The petitioner was placed under suspension during the "regular departmental action".

3. A charge-sheet was filed against the respondent in the criminal case under Section 409/436 of the Indian Penal Code in July, 1993. A charge memo was issued to the respondent by the appellant on 29.12.1993. The respondent was convicted by the Trial Court by order dated 25.1.1994. The appeal of the respondent was, however, allowed and his conviction and sentence was set aside by the appellate Court by order dated 10.3.1994. After the acquittal of the respondent an enquiry officer was appointed on 13.9.1994 to hold an enquiry into the departmental proceedings.

4. The respondent filed a writ petition No. 9730 of 1995 with a prayer for payment of full salary as subsistence allowance in view of clause 5(a)(iii) of the Third Bipartite settlement. As indicated earlier, the learned single Judge allowed the writ petition holding that the respondent was entitled to full salary as subsistence allowance with effect from 1.06.1991. 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 allowance but with effect from 10.3.1994 to 14.07.01. The learned single Judge found that in view of clause 5 of Bipartite Agreement, para 17.14 alone would be applicable to the petitioner s case. It also did not accept the case of the appellant that the respondent was responsible for prolonging the enquiry. The Division Bench in appeal upheld the above findings.

5. We may now peruse the relevant provisions as it regards to payment of subsistence allowance. Para 557 of the Sastry Award provides as under:

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

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

(2) 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."

Clause 17.14 of the Desai Award is to the following effect:-

"17.14 I make an award in connection with this item in terms similar to those contained in paragraph 557 of the Sastry Award quoted above."

Thereafter, it appears that Third Bipartite Agreement dated 9.9.1983 was entered into by which paragraph 557 of the Sastry Award and Clause 17.14 of the Desai Award were partially modified. Para 5 of the Bipartite agreement reads as under:

"5. Subsistence Allowance:

In partial modification of paragraph 557 of the Sastry Award and paragraph 17.14 of the Desai Award, the following provisions shall apply in regard to payment of subsistence allowance to workmen under suspension in respect of the

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