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IN THE HIGH COURT OF KERALA AT ERNAKULAM
MURALI PURUSHOTHAMAN, J.
Abin Divakaran, S/o. Divakaran & Ors. - Petitioners
Versus
General Manager, Kerala State Cooperative Bank & Ors. - Respondents
WP(C) No. 15557 of 2024
Decided On : 04-09-2024
Disciplinary Action - Employment - NDPS Act, Banking Regulation Act, Kerala Co-operative Societies Rules - The court interpreted provisions regarding suspension and subsistence allowance, emphasizing the right to subsistence allowance during suspension, even if the employee is convicted.
Fact of the Case:
The 1st petitioner, a Junior Accountant, was suspended after being arrested for NDPS Act violations. Following his conviction, he was dismissed from service. He challenged the dismissal and sought subsistence allowance during his suspension period.
Finding of the Court:
The court found that the dismissal was valid but ruled that the 1st petitioner was entitled to subsistence allowance during his suspension, as the denial of such allowance violated his rights.
Issues: Whether the dismissal of the 1st petitioner was valid and whether he was entitled to subsistence allowance during his suspension.
Ratio Decidendi: The court held that an employee under suspension is entitled to subsistence allowance, regardless of subsequent conviction, as long as he did not accept employment elsewhere.
Result: The writ petition is allowed in part, directing payment of subsistence allowance to the 1st petitioner.
JUDGMENT :
Murali Purushothaman, J.
The 2nd petitioner is the mother of the 1st petitioner. The 1st petitioner while working as Junior Accountant in the service of the erstwhile Idukki District Co-operative Bank, Vattavada Branch, Idukki District (now Kerala State Co-operative Bank (Kerala Bank)) was suspended from service on 29.08.2017, pending enquiry, on the basis of an FIR registered against him at Kattappana Police Station on 20.08.2017 for the alleged commission of offences punishable under Section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). The 1st petitioner was arrested on 01.09.2017 and remanded to custody.
2. After the trial, the 1st petitioner was found guilty of the offences charged against him and was sentenced to undergo rigorous imprisonment for ten years and a fine of Rupees one lakh fifty thousand was imposed on him, by the Special Court for NDPS cases, Thodupuzha by judgment dated 08.01.2021. During the trial, he was under judicial custody. He has preferred an appeal before this Court and has been enlarged on bail on 11.09.2023.
3. After the conviction, the Chief Executive Officer of the Bank, presenting himself as the competent disciplinary authority, issued Ext.P2 memorandum of charges dated 30.03.2022 and statement of imputation of misconduct against the 1st petitioner, through the Superintendent, Viyyoor Central Jail where he was undergoing imprisonment. In Ext.P2 memo of charges, it is stated that the Special Court for NDPS cases, Thodupuzha, by judgment dated 08.01.2021, found the 1st petitioner guilty of the charges framed under Section 21 (c) of the NDPS Act for having possessed and transported commercial quantity of ganja oil and convicted and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rupees One lakh fifty thousand and he has thereby committed an offence involving moral turpitude, an act of misconduct which is in gross violation of Regulation 55 (1) (1) of the Staff Regulations of the Bank and Section 10 (1) (b) (i) of the Banking Regulation Act, 1949. It was therefore proposed to initiate suitable disciplinary action against him and he was asked to submit explanation within 15 days as to why further action under the Staff Regulations of the Bank, the Banking Regulation Act and the Kerala Co-operative Societies Rules, 1969 shall not be taken against him.
4. Later, the 1st respondent, the General Manager of the Bank, issued Ext.P1 order dated 26.09.2023, stating that the Board of Directors of the Bank, by resolution No.1973(4) dated 12.04.2023, had resolved to dismiss the 1st petitioner from service based on his conviction in the NDPS case, and that the 1st petitioner, Accountant (under suspension), is provisionally dismissed from service with effect from 29.08.2017, the date of suspension and requiring to submit his explanation within 15 days, failing which final orders would be passed.
5. According to the 1st petitioner, he received Ext.P2 memo of charges and statement of imputations only on 04.10.2023 and he submitted Ext.P2 (a) representation seeking extension of time to submit explanation. However, the same was rejected by Ext.P3 communication of the General Manager dated 13.10.2023 informing that he was given sufficient opportunities to submit explanation to the proposed punishment of dismissal by intimation through various modes including publication in newspapers and no further time can be granted. On the same day, Ext.P4 order was passed by the General Manager confirming the provisional order dismissing the 1st petitioner with effect from 29.08.2017.
6. After release from prison, the 1st petitioner preferred Ext.P5 representation dated 30.03.2024 before the General Manager for payment of subsistence allowance. The 2nd petitioner, his mother also preferred Ext.P6 representation claiming subsistence allowance for him. It is stated that the 1st respondent has not so far responded to Exts.P5 and P6.
7. Aggrieved by Ex
An employee under suspension is entitled to subsistence allowance even if convicted, unless he accepts employment elsewhere.
Suspended employees are entitled to subsistence allowance as a matter of right, and proper disciplinary proceedings must be initiated post-conviction under Rule 17(c).
Co-operative society by-laws cannot restrict statutory rights to subsistence allowance for suspended employees under the Payment of Subsistence Allowance Act regardless of retirement status.
A suspension order must be reviewed within ninety days. If no disciplinary proceedings are initiated within this period, the suspension expires. Furthermore, the non-payment of subsistence allowance ....
Writ petitions maintaining claims for Subsistence Allowance can be valid despite alternate remedies under cooperative laws when timely financial support is crucial for suspended employees.
An employee involved in a criminal case, despite subsequent acquittal, may not be entitled to full salary for a suspension period if the involvement in the crime disabled the employee from rendering ....
The central legal point established in the judgment is the determination of eligibility for subsistence allowance under the Tamil Nadu Payment of Subsistence Allowance Act, based on the status of the....
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