Smt. Sushila Tiwary and Others vs Allahabad Bank and Others

I.A. No. 4027 of 2010

This is an application for condonation of delay of 18 months and one day in preferring the appeal. Having heard Mr. Manik Ved Sen, learned counsel for the appellants and Mr. Ajay Kumar Sinha, learned counsel for the respondent-Bank, we think it apposite to condone the delay inasmuch as sufficient grounds have been shown and accordingly, it is so ordered.

I.A. No. 4027 of 2010 stands allowed.

L.P.A. No. 762 of 2010

As we have condoned the delay in preferring the appeal, we are inclined to take up the appeal for admission.

The present intra-court appeal is directed against the order dated 3.09.2008 passed by the learned Single Judge in C.W.J.C. No. 12429 of 2005.

The predecessor-in-interest, husband of appellant no. 1 and father of appellant nos. 2 to 5 faced a criminal trial punishable under Sections 465, 468 and 477(A) I.P.C. in G.R. Case no. 2471/90, T.R. No. 839 of 1999. Learned magistrate convicted the accused for offences punishable under Sections 468 and 477(A) of the Indian Penal Code. Being dissatisfied with the same, he preferred Criminal Appeal No. 15 of 1999. After he became successful in the said criminal appeal, he approached the authority for reinstatement but the authority instead of reinstating him directed an enquiry to be conducted by an order 2.7.2001. In that background, the original writ petitioner had approached this Court that he should have been reinstated after the acquittal in the criminal case and only thereafter a disciplinary proceeding could have been initiated.

The learned single Judge took note of the order of dismissal whereby he was afforded three months pay and allowance in lieu of notice and expressed the view that question of reinstatement did not arise.

Criticizing the aforesaid order, it is submitted by Mr. Manik Ved Sen that there is no regulation of the Bank as regards the deemed suspension. The Allahabad Bank Officers Employees'' (Discipline and Appeal) Regulations 1976 which deals with the concept of deemed suspension relates to an officer and the deceased-employee was an assistant, hence it is not applicable.

It is not disputed at the Bar that the disciplinary action and procedure therefore is controlled under Chapter 19 of Bipartite Settlement between the Bank and the Employees. In Clause 19.3(b) it has been postulated that if the accused is convicted he may be dismissed from the date of his conviction or be given any lesser form of punishment. Clauses 19.3 (c) and (d) being relevant are reproduced below:

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 allowance 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.

(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 up-to-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 be liable only for termination with three months'' pay and allowance in lieu of notice, as directed above.

In this context we may fruitfully refer to Clause 19.11 which reads as follows:-

19.11 when it is decided to take any disciplinary action against an employee such decision shall be communicated to him within three days thereof.

On a reading of the aforesaid provisions, it is manifest that it is within the discretion of the employer-management either to reinstate him or proceed against him under the provisions of Clause 19.11 and 19.12.

The submission of learned counsel for the appellants that they should have reinstated him and thereafter proceeded does not deserve acceptation as the discretion vests with the employer. True it is there is no provision therein relating to deemed suspension but there is no provision for deemed reinstatement. What has been provided under Clause 19.3(d) is that the management shall review the case in case of acquittal and it may either reinstatement him or proceed against him. As is evident, the employer did not reinstate him and decided to proceed against him. In view of the aforesaid, we are of the considered opinion that the claim of original writ petitioner and thereafter by his legal representative is sans substance and the learned single Judge has rightly dismissed the petition. Hence, we do not perceive any merit in the appeal and accordingly the same stands dismissed without any order as to costs.