Jayoti Banerjee vs United Bank Of India & Ors

Amrita Sinha, J

The petitioner was an employee of the United Bank of India. He was placed under suspension pending departmental enquiry on 10th January, 2004. The petitioner was to receive the subsistence allowance as per the provision of the bipartite settlement during the period of suspension.

A charge sheet was issued against the petitioner on 11th March, 2004. The petitioner by a letter 20th December, 2005 requested the branch manager of the Bank to compute his subsistence allowance and pay arrears of subsistence allowance with retrospective effect on the basis of the revised scale of pay as per the 8th bipartite settlement. The Bank responded to the request of the petitioner and intimated him by a communication dated 4th January, 2006 that no arrear and revised salary due to wage revision could be paid to him as per the Rules of the Bank, as an employee who is placed under suspension is entitled to receive only subsistence allowance, and is not entitled to receive any other pay and allowance including the revised salary or arrears on account of wage revision.

The petitioner thereafter by a communication dated 30th December, 2011 intimated the bank regarding discrepancy in payment of subsistence allowance for the period April, 2004 to May, 2010.

The disciplinary proceeding which was initiated against the petitioner concluded on 24th August, 2013 and the disciplinary authority imposed penalty of dismissal without notice. The penalty order mentioned that the period of suspension shall not be treated as on duty and the petitioner would not be entitled to any pay and allowance including increment falling due, if any, during the period of suspension save and except what has been paid by way of subsistence allowance.

The petitioner preferred an appeal against the order of dismissal and the appellate authority by an order dated 22nd January, 2015 affirmed the order of penalty imposed upon the petitioner by the disciplinary authority.

The petitioner has filed the instant petition praying for issuance of a writ of Mandamus commanding the respondents to calculate and pay the petitioner the full pay and allowance during the period of suspension taking into account the revision of pay. The petitioner also prays for quashing the impugned order of the disciplinary authority and the appellate authority.

The petitioner relies upon the following judgments in support of his case.

(1) Premier Automobiles Limited vs. Kamlakar Shantaram Wadke reported in (1976)1 SCC 496 paragraphs 10 and 23 wherein the Court relied upon the opt quoted word of Lord Tenterlen saying "where an act creates an obligation and enforce the performance in a specific manner, we take it to be a general rule that performance cannot be enforced in other manner. The Court held that if the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.

(2) Amiyo Kumar Biswas vs. UBI reported in 2006(4) Cal HN 53 paragraph 13 wherein the Court held that even if the employee is found guilty and is awarded some punishment other than dismissal, still the bank would have a power to give him full salary for his suspension period or the bank may limit that period treating that only a part of the period of suspension would be treated to be as on duty and the delinquent employee would be entitled to his full salary and allowances only for that period. It further held that it is a basic principle of service law that where an employee is to be under suspension he must get the subsistence allowance as per Rules.

(3) Swapan Kumar Basu vs. UBI reported in 2004 (4) CHN 148 paragraphs 7 and 29 wherein the Court takes note of the circular of the Indian Banks' Association being memo dated 11th August, 1988 wherein it was mentioned that the personal committee decided that the workman employees under suspension will be eligible to be paid subsistence allowance reckoning the revised scales of pay on account of salary revision even if the date of suspension is prior to the date of salary revision. Cases were workman employees who are under suspension and whose salary revision has taken place, subsequent to their suspension, may be reviewed and they may be paid the arrears of subsistence allowance.

(4) Biswambhar Basu vs. State of West Bengal reported in 2010 (2) Cal HN 194 paragraph 6 wherein the Court held that mere suppression of any fact would not automatically result dismissal of a writ petition.

The petitioner relies upon clauses 19.1 to 19.4 of the first bipartite settlement wherein the provisions of disciplinary action and procedure had been set out.

Clause 19.3(c) mentions that in the event of the Management deciding after enquiry not to continue an employee in service, he shall be liable only for termination of service with three months' pay and allowance in lieu of notice. 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 allowance as he has drawn and to all other privileges for the period of suspension provided that he is acquitted on the benefit of doubt.

Clause 19.4 mentions that if after steps have been taken to prosecute an employee or to get him prosecuted for an offence, he is not put on trial within a year of the commission of the offence the management may then deal with him as if he had committed an act of "gross misconduct" or of "minor misconduct", provided that if the authority which was to start the prosecution proceedings refuses to do so or comes to the conclusion that there is no case for prosecution, it shall be open to the management to proceed against the employee under the provisions in clauses 19.11 and 19.12 relating to discharge, but he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full Wages and Allowances and to all privileges for such period.

The petitioner relies on the scale of pay applicable to the bank employees as per the 8th bipartite settlement with effect from 1st November, 2002 and 9th bipartite settlement dated 1st November, 2007. According to the petitioner the delay in disposal of the disciplinary proceeding was not attributable to him and accordingly he is entitled to receive full pay and allowances for the period of suspension in terms of the bipartite settlement.

The respondents submit that the petitioner is guilty of delay in approaching the Court as the claim of the petitioner arose long back. The petitioner never raised any demand with regard to his claim prior to approaching the writ Court. The Bank had provided the petitioner with all the relevant calculations.

The respondents further submit that the petitioner fell within the definition of workman under the Industrial Disputes Act, 1947 and without exhausting the statutory remedy available to the petitioner he filed the instant application.

It has been contended that the instant writ petition is hit by the principles of constructive res judicata. The petitioner had earlier filed another writ petition in the year 2004 praying for stay of his disciplinary proceedings on the ground of pendency of the criminal proceeding. Since the issue of less payment of subsistence allowances was available during the pendency of the earlier writ petition the petitioner should have raised the issue at that point of time.

It has been submitted that the petitioner has not submitted his exact claim amount in support of his prayer regarding non-payment of subsistence allowance by the Bank. As the figures which are allegedly payable to the petitioner are disputed by the respondent the Court may not enter into such disputed questions of facts and figures.

The respondents contend that the petitioner was duly informed that he was not entitled to receive the benefits of the 8th bipartite settlement. It has been argued that the case of the petitioner was duly examined on receipt of his representation and the moment it was detected that there was certain short payment made the petitioner was immediately credited with the balance payment which the petitioner was entitled to get as per the provisions of the bipartite settlement. As the petitioner has suppressed the aforesaid fact of receiving the short payment the instant petition ought to be dismissed.

It is the specific case of the Bank that the petitioner is not entitled to receive any subsistence allowance over and above what has been paid to him during the period of suspension till his date of dismissal from service. The disciplinary authority has already held that the petitioner's suspension shall not be treated as on duty and he will not be entitled to any pay and allowance including increment, if any, falling due during the period of suspension.

I have heard the submissions made on behalf of both the parties.

It appears that a disciplinary proceeding was initiated against the petitioner in the year 2004 and he was suspended by an order dated 10th January, 2004. In the said order of suspension it was mentioned that during the period of suspension the petitioner shall be paid subsistence allowance as per provisions of the bipartite settlement. A criminal proceeding was also continuing against the petitioner.

The petitioner challenged the simultaneous continuance of the disciplinary proceeding and the criminal proceeding by filing a writ petition before this court. By an order dated 25th August, 2004 the court directed that the departmental proceeding should, for the present, be stayed while the investigation in the criminal case is pending. The bank was given liberty to mention the matter for vacation of such stay should it become necessary so to do in case of delay in the criminal proceeding. The criminal court by an order dated 6th July, 2010 found the petitioner prima facie guilty of the offence of 409 IPC and charge sheet was filed.

The departmental inquiry was reopened and the petitioner was directed to attend the said proceeding in the year 2013. The petitioner was given opportunity to present his case before the disciplinary authority. An inquiry report was prepared and forwarded to the petitioner. The petitioner submitted his written submissions on the findings of the inquiry officer and by an order dated 24th August, 2013 the petitioner was imposed major penalty punishment of dismissal without notice in terms of Clause 6A of the Memorandum of Settlement. The period of suspension of the petitioner was directed not to be treated as on duty and it was directed that the petitioner will not be entitled to any pay and allowance including increment falling due, if any, during the period of suspension, save and except what has been paid by way of subsistence allowance.

The appeal preferred by the petitioner challenging the said order of dismissal stood dismissed by an order dated 22nd January, 2015.

The petitioner claims that he is entitled to be treated as on duty and paid full pay and allowance for the entire period of suspension. He submits that he is entitled to be paid full wages and allowance for the period of his suspension by treating him as on duty. The petitioner admits that the entire subsistence allowance calculated at 100% of his pay which he was receiving when he was suspended from service has been paid to him.

He submits that he ought to have received the subsistence allowance calculated on the basis of the pay which he would have got, but for the suspension, and not on the basis of the last pay drawn by him at the time of suspension.

The petitioner places heavy reliance on the decision delivered by this court in the matter of Swapan Kumar Basu (supra) wherein the court held that the denial of revision of salary and allowance in the matter of computation of subsistence allowance to employees is violative of Article 21 of the Constitution of India. The court took into consideration the circular of the Indian Banks' Association being memo no. PD/CIR/76/528/586 dated 11th August, 1998 wherein it was mentioned that the workmen employees under suspension will be eligible to be paid subsistence allowance reckoning the revised scales of pay on account of salary revision even if the date of suspension is prior to the date of salary revision. By the said circular the cases of workmen employees who were under suspension and in whose case salary revision had taken place subsequent to their suspension was directed to be reviewed and a decision was taken for payment of the arrears of subsistence allowance.

In the instant case the petitioner remained in suspension for a considerable period of time. There has been consecutive revision of pay during the period of his suspension. The respondent bank has not been able to satisfy the court as to why the petitioner will not be entitled to the benefit of the said circular dated 11th August, 1998. The issue has already been set at rest by the decision delivered in the case of Swapan Kumar Basu (supra) against the self-same bank.

The respondents have raised a plea that the instant writ petition is liable to be dismissed on the ground of availability of an alternative remedy. The petitioner being a workman is liable to proceed in accordance with the industrial laws and the writ petition filed by him is not maintainable.

The petitioner in the instant case is a senior citizen. The matter was taken up for admission on 10th January, 2019 and direction for filing affidavit was passed by the court. The point of maintainability was not raised on the said date. It is settled law that availability of alternative remedy shall not oust the jurisdiction of the writ court under Article 226 of the Constitution of India. The petitioner has been dismissed from service and he claims the balance of the subsistence allowance that is due and payable to him. As the matter relates to the livelihood of the petitioner I intend to entertain the writ petition. Accordingly the same is taken up for consideration and disposed of on merits.

The decision delivered by the Hon'ble Supreme Court in the matter of Premier Automobiles Ltd. (supra) support the case of the petitioner.

The respondents have also raised a plea that the claim of the petitioner will not be maintainable as the same will be barred by the principle of constructive res judicata. The respondents have pleaded that the issue of underpayment of subsistence allowance was pending when the earlier writ petition was filed by the petitioner for staying the disciplinary proceedings. The petitioner should have raised the issue in the said writ petition. The contention of the respondent on the point of constructive res judicata is not maintainable in the facts and circumstances of the instant case inasmuch as the earlier writ petition was filed on an absolute different premise. The petitioner being aggrieved by the simultaneous continuance of the disciplinary proceeding and the criminal investigation approached this court by filing the previous writ petition. The issue of subsistence allowance was never raised therein. The claim of the petitioner was an on-going one. The same got crystallized the day the prayer of the petitioner stood rejected. In view of the same the instant writ petition will not be hit by the bar of constructive res judicata.

The respondents have also urged that the writ petition is liable to be dismissed on the ground of suppression of material facts. It has been alleged that the petitioner has suppressed that certain payments were made to him after the order of dismissal was passed. The petitioner on this issue has relied upon a judgment delivered by this court in the matter of Biswambhar Basu (supra) wherein the court was of the opinion that mere suppression of any fact would not automatically result in dismissal of a writ petition. The court can refuse a relief in the event gross suppression of any fact is made by the petitioner. If the court is satisfied that the intention of the writ petitioner was to snatch benefit by suppression of certain facts which would otherwise disentitle him to the relief then the court can refuse relief to the litigant. Such refusal would depend on what has really been suppressed.

In the instant case the respondents allege suppression of certain sum which was disbursed in favour of the petitioner. The payment of the said sum is on record. The same cannot be suppressed by any party. The payment that was made to the petitioner was his legal dues which have been cleared. Non-disclosure of the aforesaid fact does not amount to suppression.

In view of the discussions made hereinabove the claim of the petitioner for payment of his balance subsistence dues is liable to be allowed. The bank is directed to make the necessary calculation of the suspension allowance by taking into consideration the revision of pay and allowance in accordance with the bipartite settlement and to disburse the said amount in favour of the petitioner, excluding the amount which has already been paid, within a period of four months from the date of communication of a copy of this order.

WP 649 of 2018 is disposed of.

Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.