- (1.) By consent of the parties, the appeal and the application are taken up together for consideration.
(2.) 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 entitled to subsistence allowance during the period of suspension as per the provisions of bipartite settlement. The disciplinary proceedings initiated against the petitioner was ultimately concluded on 24th August, 2013 and the disciplinary authority imposed penalty of 'dismissal without notice'. The order of dismissal 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. Being aggrieved by the order of the appellate authority, the petitioner filed a writ petition. In the writ application, the petitioner has prayed for a direction upon the respondent to pay the petitioner full pay and allowance during the period of suspension taking into account the revision of pay. The petitioner also prayed for quashing of the impugned order of the disciplinary authority and the appellate authority. Before the learned Single Judge the petitioner, in support of his contention, had relied upon the following decisions: i) Premier Automobiles Limited vs. Kamlakar Shantaram Wadke reported in (1976) 1 SCC 496 (paragraphs 10 and 23); ii) Amiyo Kumar Biswas vs. UBI reported in 2006(4) Cal HN 53 (paragraph 13); iii) Swapan Kumar Basu vs. UBI reported in 2004 (4) CHN 148 (paragraphs 7 and 29); iv) Biswambhar Basu vs. State of West Bengal reported in 2010 (2) Cal HN 194 (paragraph 6)
(3.) The petitioner also relied upon Clauses 19.1 to 19.4 of the first bipartite settlement wherein the provisions of the disciplinary action and procedure had been set out. The petitioner also tried to make distinction between gross misconduct and minor misconduct by interpreting Clause 19.4 in his favour. The petitioner also relied 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. The petitioner contended before the learned Trial Judge that the delay in disposal of the disciplinary proceedings was not attributable to him and accordingly he is entitled to receive full pay and allowance for the period of suspension in terms of the bipartite settlement. The bank, however, contended before the learned Single Judge 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 also 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, fallen due during the period of suspension. The learned Single Judge has taken into consideration the fact that the petitioner was suspended by an order dated 10th January, 2004. In the said order of suspension it was specifically mentioned that during the period of suspension, the petitioner shall be paid subsistence allowance as per the provisions of the bipartite settlement. A criminal proceeding was also continuing against the petitioner. The petitioner challenged the parallel proceedings by filing a writ petition. By an order dated 25th August, 2004, the Court directed that the departmental proceeding should, for the present, be stayed while an 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 under Section 409 of IPC and charge-sheet was filed. The departmental enquiry was reopened and the petitioner was directed to attend the said proceedings in the year 2013. The petitioner was given opportunity to present his case before the disciplinary authority. An enquiry report was prepared and forwarded to the petitioner. The petitioner submitted his written submission on the findings of the enquiry officer and by an order dated 24th August, 2013 the petitioner was imposed major punishment by way of dismissal from service 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.;