Evaluation of Time Spent during Period of Suspension
from Job
Introduction and Fact in Issue
The Letters Patents Appeal[1] in Delhi High Court In General Manager, Canara Bank vs. Kuldeep
Sharma[2] directed against the judgment of the
single judge in a writ petition regarding allowing the Respondent’s evaluation
of “time spent” during the period of suspension. The Appellant’s contention was
that the aforesaid evaluation is contrary to the judgment of the General Manager UCO bank and Anr. vs.
M.Venuranaganath[3]
which was applied by learned single judge to grant relief to the Respondent.
The present appeal was allowed.
Fact
The writ petition of the Respondent was allowed; where
as the review of the appellant was dismissed in this matter. The Respondent was
an employee of Appellant. The Respondent had two sons. The wife of the youngest
son died an unnatural death and the Respondent was arrested in connection to
her death for an FIR registered under sections 498A/304B/302/34 read with
section 3 / 4 of Dowry Prohibition Act and was placed under suspension for two
years from job. Subsequently, the Respondent was granted bail by the Sessions
court. Thereafter, two years later, the General Manager passed an order
revoking[4] the suspension of the
Respondent from the date on which he reports on duty and further, the
Respondent would be paid salary and allowances as he was being paid before suspension.
But “time spent” during the period of suspension
shall not be counted for any purpose i.e shall not be treated as spent on duty.
The Respondent superannuated[5] the year when his
suspension was revoked and the Sessions Court also acquitted him year later of
all charges. In between, the Respondent made a request for release of
differential salary and counting the period of suspension, as that the one that
is spent on duty. However, the demand was not accepted on the ground that the
same was a departmental decision then.
Impugned Judgement
The learned single judge allowed the contention of the Respondent, time
period of suspension was time spent on duty. The court after scrutinizing the Canara
Bank Officer Employees’ (Conduct) Regulations, 1976 (“Regulations”) held that the decision of the
department to not consider the period of suspension, as spent on duty was
arbitrary. The single judge relied upon the
judgment General Manager UCO bank and
Anr. vs. M.Venuranaganath and
allowed the relief to the Respondent.
Argument of the Appellant
1. The case of General
Manager, UCO Bank (supra) does not support the case of the respondent at
all. But, on the contrary, supports the case of the appellant.
2. The Regulation 15 of the said Regulations
reads as under: -
“15. Pay, allowances and treatment of
service on termination of suspension:
(1) Where the competent authority holds that the
officer employee has been fully exonerated or that the suspension was
unjustifiable, the officer employee concerned shall be granted the full pay to
which he would have been entitled, had he not been suspended, together with any
allowance of which he was in receipt immediately prior to his suspension, or
may have been sanctioned subsequently and made applicable to all officer
employees.
(2) In all cases other than those referred to in
sub-regulation (1), the officer employee shall be granted such proportion of pay
and allowances as the Competent Authority may direct:
3. Regulation 15 by itself, it is
abundantly clear that the respondent cannot get the benefit under Regulation
15(1) as his case is not of a departmental proceeding, but of a criminal case.
The respondent’s case falls under Regulation 15(2) and, if that be so, the
respondent is only entitled to be granted such proportion of pay and allowances
as the competent authority may direct. The respondent is not entitled to the
grant of full pay to which he would have been entitled had he not been
suspended. That is only possible under Regulation 15(1) which does not apply to
the respondent’s case.
4. We may also point out that Regulation 15(3) deals with
two situations; one, where the case falls under sub-Regulation (1) and; two,
where the case falls under sub-Regulation (2). Since the respondent’s case
falls under Regulation 15(2), it would be Regulation 15(3)(b) which would
apply. According to that sub-Regulation the period of absence from duty shall
not be treated as a period “spent on duty” unless the competent authority
specifically directs, for reasons to be recorded in writing, that it shall be
so treated for any specific purpose. In other words, normally, the period of
absence from duty in such cases is not to be treated as a period “spent on
duty”. It is only in cases where the competent authority specifically directs
that such period of suspension should be treated as having been “spent on duty”
that the competent authority is required to give reasons in writing. No reasons
are necessary when the period of suspension in cases falling under
sub-Regulation 15(2) is treated as “not spent on duty”
Judgment Relied
The Delhi High Court relied upon this judgment of the Supreme Court Union Bank of India vs. K.V Jankiraman &
Ors.[6].
In this case, Supreme Court has held that the principle of “No work no pay” is not applicable to cases
where the employee is willing to work is kept away from by the authorities for
no fault. The apex court further held that, when an employee is completely
exonerated, meaning thereby that he is not found blameworthy in the least and
is not visited with the penalty even of censure, he has to be given the benefit
of the salary of the higher post along with the other benefits from the date on
which he would have normally been promoted but for the disciplinary/criminal
proceedings. However, there may be cases where the proceedings, whether
disciplinary or criminal, are, for example, delayed at the instance of the
employee or the clearance in the disciplinary proceedings or acquittal in the
criminal proceedings is with benefit of doubt or on account of non-availability
of evidence due to the acts attributable to the employee etc. In such
circumstances, the concerned authorities must be vested with the power to
decide, whether the employee at all deserves any salary for the intervening
period and if he does, the extent to which he deserves it. However, whether the officer concerned
will be entitled to any arrears of pay for the period of notional promotion
preceding the date of actual promotion, and if so to what extent, will bed decided by the
concerned authority by taking into consideration all the facts and
circumstances of the disciplinary proceeding / criminal prosecution. Where the
authority denies arrears of salary or part of it, it will record its reasons
for doing so.
Ratio of the Judgment
The Hon’ble court while going through the above extract from the Supreme
Court decision in K.V. Jankiraman (supra),
held that, it is clear that the concerned
authorities are to be vested with the power to decide whether an employee at
all deserves any salary for the intervening period or not and if he does, then
to what extent to which he is entitled. The court also observed that it would
not be possible to lay down an inflexible rule that in every case when an
employee is exonerated in disciplinary / criminal proceedings, he should be
entitled to all salary for the intervening period and to lay down such an
inflexible rule would be to undermine the discipline in the administration and
jeopardize public interest.
Therefore, there was nothing wrong with the appellant deciding not to grant salary to the respondent during the period of suspension because this was in exercise of the discretion under Regulation 15(2) of the said Regulations
[1]In simple words, Letters
Patent Appeal is an intra court appeal. It is an appeal before two judges
of
same high court against judgment of single
judge. Subject to minor differences in different High
Court Rules, normally a judgment and
order passed under Art 226 of the Constitution is appealable
as LPA and judgment and order passed
under Art 227 is not appealable under this category.
[2]
L.P.A. 771/2013; Justice
Badar Durrez Ahemd and Justice V.K.Jain
[3]
2007 (13) SCC 251
[4] It
means putting an end to the operation of an order.
[5]
It means retirement.
[6]
1997 (4) SCC 109
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