N. GOPALAKRISHNAN v. STATE BANK OF INDIA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** ## **WEDNESDAY, THE 15TH DAY OF FEBRUARY 2012/26TH MAGHA 1933** ## **WP(C).No. 27010 of 2011 (A)** **---------------------------------** **PETITIONER(S) :** **---------------------** **N.GOPALAKRISHNAN, S/O.K.M.NARAYANA CHETTIAR, AGED 57 YEARS, RESIDING AT 'GEETHA BHAVAN', VARANADU P.O., CHERTHALA, ALAPPUZHA, PIN-688 643.** ## **BY ADV. SRI. M. HARISHARMA** **RESPONDENT(S) :** **------------------------** **1. STATE BANK OF INDIA, KALAVOOR BRANCH, REP. BY ITS BRANCH MANAGER, SARASWATY COMPLEX, KALAVOOR P.O., ALAPPUZHA, PIN-688 522.** **2. ASSISTANT GENERAL MANAGER, (ADMINISTRATION-I), STATE BANK OF INDIA, DISCIPLINARY AUTHORITY, DISCIPLINARY PROCEEDINGS CELL, LOCAL HEAD OFFICE, ANNEX, ADMINISTRATION-I, LMS COMPOUND, THIRUVANANTHAPURAM-695 033.** ## **BY ADV. SRI. P.V. SURENDRANATH.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **WP(C).No. 27010 of 2011** ## **APPENDIX** ## **PETITIOER(S) EXHIBITS :** ## **EXT.P1 : COPY OF THE NOTICE DATED 5.01.2011 HAVING NO.DIS/CON/140 ISSUED BY THE 2ND RESPONDENT ON THE PETITIONER.** - **EXT.P2 : COPY OF THE BIPARTITE SETTLEMENT DATED 10.04.02.** - **EXT.P3 : COPY OF THE FIR DATED 14.01.2011 OF MUHAMMA POLICE STATION.** - **EXT.P4 : COPY OF THE STATEMENT OF ACCOUNTS OF THEPETITIONER WITH THE 1ST RESPONDENT FROM 01.11.2010 TO 23.07.2011.** - **EXT.P5 : COPY OF THE REPRESETATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 19.2.11.** - **EXT.P6 : COPY OF THE REPRESENTAION FILED BY THE PETITIONER BEFORE THE ASST. GENERAL MANAGER, R.OFF, ALAPPUZHA.** - **EXT.P7 : COPY OF THE SHOW CAUSE NOTICE DATED 20.10.2011 HAVING NO.AGM(A1)/ DPC/000192 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXT.P8 : COPY OF THE NOTICE DATED 20.01.12 HAVING NO.2934-12-72 ISSUED TO THE PETITIONER.** ## **RESPONDENT(S) EXHIBITS : NIL** **/ TRUE COPY /** ## **NS** ## **P.A. TO JUDGE** ## **K.SURENDRA MOHAN, J. -----------------------W.P(C). NO. 27010 OF 2011 ------------------------** Dated this the 15[th] day of February, 2012 **JUDGMENT** The petitioner while working as a Special Assistant under the first respondent was placed under suspension as per Ext.P1 order, pending initiation of disciplinary proceedings against him. The petitioner has filed this writ petition contending that the action of the first respondent in placing him under suspension and initiating disciplinary proceedings against him are vitiated and uncalled for in view of the provisions of Ext.P2 Bipartite Settlement that is applicable to him. The petitioner, therefore, seeks the issue of appropriate orders and directions quashing Ext.P1 and reinstating him in service. 2. According to the petitioner, he has been placed under suspension consequent to prosecution proceedings launched against him at the instance of the first respondent Bank. Ext.P3, the First Information Report (FIR), is dated 14/1/2011. As per Clause 4 of Ext.P2, disciplinary proceedings can be initiated W.P.(C) . No. 27010 /2011 2 against an employee only in a situation where despite initiation of prosecution proceedings the employee had not been put on trial even after the lapse of a period of one year. Since Ext.P3 FIR is dated 14/1/2011, it is contended that the suspension order Ext.P1 dated 5/1/2011 is absolutely uncalled for and unsustainable in law. 3. It is the further case of the petitioner that disciplinary proceedings against him can be commenced only after completion of the trial. Since Ext.P1 has been issued in violation of the Bipartite Settlement, it is contended that, the same is liable to be set aside reinstating him back in service. 4. A counter affidavit has been filed on behalf of the respondents in this case. According to the respondents, Ext.P1 is only an order of suspension that cannot be considered to be a part of the disciplinary proceedings. It is also not a punishment. Since serious irregularities had been detected on the part of the petitioner, prosecution proceedings have been initiated against him. He has also been placed under suspension, pending initiation of disciplinary proceedings against him. The allegation against the petitioner is that he had debited Demand Loan W.P.(C) . No. 27010 /2011 3 accounts in his name and some other customer accounts through 'debit adjustment' and credited the proceeds to his Savings Bank Account during the period from 13/1/2010 to 1/1/2011. According to the Bank, the petitioner has also misused his relationship with the customers of the bank. It is contended that Ext.P1 is perfectly legal and valid and it has been issued in accordance with the terms of the Bipartite Settlement that is applicable. The disciplinary proceedings are only contemplated and has not actually been initiated against the petitioner. There is no prohibition in the Bipartite Settlement against the initiation of disciplinary proceedings even before the expiry of one year where prosecution proceedings were pending against an employee. In this case the said question does not arise for the reason that the disciplinary proceedings are initiated only after the expiry of one year of commencement of the prosecution proceedings. Therefore, it is contended that the petitioner is liable to be dismissed. 5. Advocate Sri.P.V.Surendranath, who appears for the first respondent further contends that clause 3 (a) of Ext.P2 does not prohibit suspension of an employee and therefore, Ext.P1 is not W.P.(C) . No. 27010 /2011 4 in violation of any of the terms of Ext.P2. Since Ext.P7 has been issued after the expiry of the term of one year stipulated by clause 4, disciplinary proceedings initiated against the petitioner are also in full compliance with the terms of Ext.P2. 6. I have heard Sri.M.Hari Sharma who appears for the petitioner and Sri.P.V.Surendranath learned counsel for the respondents. I have also given anxious consideration to the rival contentions addressed before me. It is worth noticing that Ext.P1 is only an order of suspension that has been issued pursuant to the detection of certain irregularities on the part of the petitioner. It is trite that suspension does not amount to punishment. Therefore, the petitioner cannot be said to be aggrieved by the issue of Ext.P1. Though the petitioner had a grievance that he has not been paid subsistence allowance, the same stands redressed for the reason that subsistence allowance has subsequently been granted. 7. The case of the learned counsel for the petitioner is that clause 3 (a) of Ext.P2 does not empower the first respondent to suspend the petitioner. Clause 3 (a) of Ext.P2 reads as follows; W.P.(C) . No. 27010 /2011 5 “(a). When in the opinion of the management an employee has committed an offence, unless he be otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted and in such a case he may also be suspended.” The above clause entitles the first respondent bank to initiate action against an employee who has committed an offence. Thus, when in the opinion of the management, an employee has committed an offence: i). unless he be otherwise prosecuted, the Bank may take steps to prosecute him or get himself prosecuted; ii) and in such a case he may also be suspended. 8. Therefore, in a situation where the Bank is of the opinion that an employee has committed an offence, unless he has otherwise been prosecuted, the bank can take steps to prosecute him and in such a case he may also be suspended. The above provision makes it clear that the power to suspend an employee is in addition to the power to get the employee prosecuted where no prosecution has been otherwise initiated against him. For the above reason the contention, that clause 3 (a) does not entitle the first respondent to suspend the petitioner, has to fail. W.P.(C) . No. 27010 /2011 6 9. The second contention of the counsel for the petitioner is that disciplinary proceedings can be initiated against the petitioner only on completion of the period of one year stipulated by clause 4 of Ext.P2. Clause 4 of Ext.P2 reads as follows; “4. 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”, as defined below; provided that if the authority which was to start 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 set out below in Clauses 11 and 12 infra 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 other privileges for such period. In the event of the management deciding, after enquiry, not to continue him in service, he shall be liable only for termination with three months' pay and allowances in lieu of notice as provided in Clause 3 above. If within the pendency of the proceedings thus instituted he is put on trial such proceedings shall be stayed pending the completion of the trial, after which the provisions mentioned in Clause 3 above shall apply”. 10. Clause 4 does not contain any such provision as canvased by the learned counsel for the petitioner. Clause 4 is W.P.(C) . No. 27010 /2011 7 only an enabling provision that entitles the management to proceed to deal with the petitioner as if he had committed an act of “gross misconduct” or of “minor misconduct” as defined, 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. The provision does not impose any limitation on the power of the management to initiate disciplinary proceedings against an employee. It also does not incorporate a provision that the management is incompetent to initiate disciplinary proceedings before the expiry of the one year period stipulated by the said clause. The learned counsel for the petitioner has placed reliance on a decision of the Division Bench of this court in Vijayan v. Syndicate Bank (2001 (3) KLT 702 ). In the said decision, the Division Bench has held as follows; “Clause 19.3 specifically empowers the management to initiate disciplinary proceedings against a delinquent employee who is acquitted by the criminal court. The said power is in no way diluted by the provision contained in clause 19.4 which enables the management to initiate disciplinary proceedings without waiting for the conclusion of the criminal case. If the W.P.(C) . No. 27010 /2011 8 trial does not commence within one year of the launching of the prosecution, the management can proceed against the employee in disciplinary action, in view of Clause 19.4. It does not mean that after one year of the launching of the prosecution and if no trial has commenced, the management should immediately initiate departmental proceedings. It is only an enabling provision which empowers the bank to initiate disciplinary proceedings in the event of delay in the conduct of the criminal prosecution. To put it tersely, the Bank is not denuded of the power to take disciplinary action, even if the above time limit is over. So, the contention in this regard raised by the appellant fails”. 11. I am afraid that the passage that has been relied upon does not support the contention of the learned counsel for the petitioner. What has been considered by the Division Bench was whether the Bank had the power to proceed against an employee who was acquitted by the Criminal Court. This court held that the power to proceed against such an employee who has been acquitted is not diluted by the concerned provision. The interpretation placed on the said clause by this court does not in any way curtail the power of the management to initiate disciplinary proceedings against an employee accused of 'misconduct' or of 'minor misconduct'. W.P.(C) . No. 27010 /2011 9 12. However, in the present case, as already held above, Ext.P1 is only an order of suspension which is neither a punishment nor a part of any disciplinary proceedings. Disciplinary proceedings are being initiated only by the issue of Ext.P8 which is dated 20/1/2010. As per Ext.P8, an enquiry officer has been appointed to conduct a departmental enquiry. Since Ext.P3 FIR is dated 14/1/2011 and since it is admitted that the petitioner has not been put on trial till date, even if the argument advanced on behalf of the petitioner is accepted, Ext.P8 has been issued beyond the period of one year. It is, therefore, clear that the petitioner is not entitled to any of the reliefs claimed in the writ petition. For the forgoing reasons, I could not find any reason to interfere with Ext.P1. The writ petition fails and is, accordingly, dismissed. **Sd/K.SURENDRA MOHAN, JUDGE** dpk /True copy/ P.S.to Judge W.P.(C) . No. 27010 /2011 10