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TMI Blog2019 (8) TMI 1876X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the petitioner imposed with immediate effect was illegal and thereby setting aside the appellate order impugned dated 18th March, 2015 and the decision of the bank to continue the suspension of the petitioner and further permitting the petitioner to join such duties as the bank may assign to him by the beginning of May, 2015. Liberty was also granted to the bank to transfer the petitioner to some other branch by assigning duties that may not involve any contentious matter. It was directed that the petitioner should be communicated his next place of posting within a period of a week from date. It was held that the petitioner would be entitled to the regular salary emoluments from the day the petitioner resumes his duty. Issues involved in the writ petition were: 1) Whether a due suspension of an employee even on the allegation of bribery can be prolonged without any departmental proceeding and such suspended employee being involved in economic crime with moral turpitude cannot be transferred to any other branch even with lesser responsibility. 2) Whether the petitioner is entitled to get an order of reinstatement having regard to his enlargement of bail. 3. As aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this order be communicated to Shri Sandipta Gangopadhyay, Senior Manager, Adisaptgram Branch immediately." 4. Record reveals that by an order dated 06.09.2014 in C.R. Misc. Case no. 102220/2014 the learned Sessions Judge, Hooghly, allowed the prayer of the petition for bail. Subject to the satisfaction of learned CJM, Hooghly after the bail was granted the petitioner filed a writ petition being W.P. 5762(w) of 2015 which was disposed of by the same learned judge whose order is impugned in this appeal, allowed the writ petition setting aside the order dated 19th January, 2015 whereby his prayer for revocation of the order of suspension was rejected. The Hon'ble Single Judge held that the order dated 19th January, 2015 did not indicate any reason in support of rejection. While allowing the writ petition the Chief Manager, Allahabad Bank was directed to reconsider the petitioner's plea for revoking the order of suspension in accordance with law after passing a reasoned decision. In pursuance of such order a decision indeed was taken on 18.03.2015 by the Deputy General Manager and Appellate Authority, Allahabad Bank but it was, inter alia, held "the allegation of accepting illegal g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not served on the delinquent officer/employee. 5. Mr. Sanyal, learned Counsel appearing for the Bank/appellant submitted that the Hon'ble Single Judge while considering the ratio in Ajay Kumar (supra) did not consider for a moment the other decisions on the same issue by the Hon'ble Apex Court even by its larger bench. Neither the learned Judge considered suo moto nor was it placed by the petitioner before the Hon'ble Single Judge. Mr. Sanyal attacks the Single Bench decision so far reliance on Ajay Kumar (supra) is concerned, he says, firstly, the decision is distinguishable on fact. He submitted that even slight difference in fact makes the judgment inapplicable and on that score he relies on a decision in the case of Bharat Petroleum Corpn. Ltd. and Anr. -Vs. - N.R. Vairamani and Anr. reported in (2004) 8 SCC 579. Relying on paragraph 9 of the said decision Mr. Sanyal argues that Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Let us now see how the fact of Ajay Kumar (supra) and the fact in the given case are dissimilar to each other. Facts leading to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Ajay Kumar (supra) case he issued no objection certificates based on the notes prepared by his subordinates. In the present case appellant himself was caught in the bribery case. On an analysis of the two situations I find that allegation involved in Ajay Kumar's (supra) case is more serious, not lighter than the present one, inasmuch as Ajay Kumar (supra) was blamed for misdealing with defence land and instead of holding those lands to be defence land he held it to be private land. The allegation is no less serious than the allegation in the case of the present writ petitioner/appellant. In this case petitioner/appellant is allegedly taking bribe from a private individual favouring sanction of a loan wherein in Ajay Kumar (supra) he has issued no objection, the ultimate result of which was that a big chunk of defence land was allowed to be converted into private land causing serious loss to the Defence Authority. The land measured about 4 acrs which was sought to be converted into private land and were sought to be mutated in the Revenue Records. Therefore, the argument of Mr. Sanyal that the fact situation in Ajay Kumar (supra) is such that its ratio cannot be made applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdraw. This is a case where really a question of moral turpitude is involved where he dealt with public money in a most heinous and fraudulent manner and he was placed under suspension but Hon'ble Apex Court held that the High Court ought not to have quashed the order of suspension. Although, the respondent in Allahabad Bank (supra) and the petitioner/appellant herein is also the bank employee but the gravity in the earlier decision is much more serious than the present one. I do not say that both cannot be equated but still there is a distinction. The fact that employee suspended pending criminal trial for wrongfully withdrawing money which he was not entitled to withdraw by abusing his position cannot be placed at par with suspension of an employee pending criminal trial where he is implicated with a case that he demanded bribe and/or received cash money as against sanction of loan in favour of private individual. Each case has its own fact. In the said case the Hon'ble Apex Court held that the respondent employee being a Clerk cum Typist in Allahabad Bank was found to have abusing his position being a Clerk and therefore, CBI investigation was started. The chargesheet which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry of 90 days no charge could be framed by the Bank Authority against the petitioner/appellant. A decision is an authority for what he decides and not what can logically be deduced therefrom. Therefore, submission by Mr. Sanyal based on Allahabad Bank (supra) does not help the appellant/Bank. 8. The third limb of argument by Mr. Sanyal is that since I have held that the ratio in two decisions are different, Mr. Sanyla's argument on per in curium based on the case in State of Bihar -Vs. - Kalika Kuer alias Kalika Singh and Ors. reported in (2003) 5 SCC 448 is not applicable. 9. So far the decision relied on by Mr. Sanyal in the case of Birbhum District Primary School Council & Anr. -Vs. - Md. Mokhtar Hossain & Ors. reported in (2009) 1 CHN 476 and its binding effect on the present case, it can be said that no absolute proposition with regard to speedy trial has been laid down so that it would be binding on Justice Bannerjee in deciding the present appellant's case before the Single Bench. 10. The last limb of argument advanced by Mr. Sanyal that the delinquent was placed under suspension the suspension had to be prolonged because the criminal prosecution was initiated by a th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in effect a fundamental right. This right to live includes right to fair and speedy trial as has already been discussed by the Hon'ble Apex Court in Hossainara Khatoon Vs. Home Secretary State of Bihar reported in AIR 1979 SC 1360 where Court even directed release of under trial prisoners where no charge-sheet has been framed. The Court also held 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. It has been held by our Courts that to accord fair trial meaning thereby fair hearing either to the accused or to the prosecution violate even minimum standards of due process of law. Denial of right of accused to adduce evidence in support of his defence amounts to denial of fair trial. In a case where the appellant is accused in criminal breach of trust by taking money from someone else who has lodged a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en made on behalf of the Bank Authorities that they have no other option but to place the employee under Suspension in compliance of Regulation 12(2) of the said Regulation of 1976. It is true that suspension order was passed because of the appellant's detention in custody over 48 hours but at the same time the regulations prescribe for an inquiry through departmental proceedings. Simply because the matter is pending before the criminal Court it is no excuse for the authority to sit tight and not to initiate departmental proceeding. There is no law today to create a bar for departmental proceeding against the employee concerned on the ground that a criminal proceeding is pending against him and only after acquittal from the criminal trial he may be reinstated, does not justify prolonged suspension. Therefore, the authority, in my view has not acted bona fide in complying with the procedures prescribed under their own regulation. When the regulation becomes a complete Code the authority ought to have moved independent of the criminal prosecution and should have investigated departmentally to find out the wrong with the said employee. Having not done so the excuse shown by it that pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses due process focused in the Constitutional mandates. "Due Process" is the process of law which hears before it condemns, which proceeds upon enquiry, and renders judgment only after trial. Therefore, it can be opined that criminal charges or assertion of substantial civil liability, and criminal trial is required. The employment of the employee is subject to certain limitation prescribed by the regulations. The curtailment of the employees' rights from his right to enjoy benefits pertaining to service cannot be unlimited. If by invoking a particular provision the employee concerned is placed under suspension, the other provisions in the same regulation will automatically gets revived to be followed promptly to put an end to the proceeding and such proceeding is definitely the departmental proceeding which the authority has failed to initiate, although, he has been placed under suspension under regulation. 13. In my view the authority's decision to prolong the suspension without initiation of the departmental proceeding is opposed to the due process of law emerged from the Constitution. The petitioner is entitled to get all benefit pursuant to the order impugned. 14. Reference ..... X X X X Extracts X X X X X X X X Extracts X X X X
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