Service Law

Summary of Question- Application of Mind in granting sanction for Prosecution.

Question- Whether   independent application of mind by the sanctioning authority is required before granting  sanction for prosecution.

Answer – Yes.

Rationale-

1.  In this connection, it is relevant to refer to a decision of the Hon’ble Supreme Court in the case reported in AIR 1997 SC 3400. Short fact of this case was that  Govt. did not grant sanction for prosecution ; writ petition was filed to sanction prosecution;  the Hon’ble Court directed the secretary of the Department to accord sanction for prosecution. The Apex Court   observed and held at para 19 and 32  of the judgment:

 

 “19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.”

“32. By issuing a direction to the Secretary to grant sanction, the High Court closed all other alternatives to the Secretary and compelled him to proceed only in one direction and to act only in one way, namely, to sanction the prosecution of the appellant. The Secretary was not allowed to consider whether it would be feasible to prosecute the appellant; whether the complaint of Harshadrai of illegal gratification which was sought to be supported by "trap" was false and whether the prosecution would be vexatious particularly as it was in the knowledge of the Govt. that the firm had been black-listed once and there was demand for some amount to be paid to Govt. by the firm in connection with this contract. The discretion not to sanction the prosecution was thus taken away by the High Court.”

 

2. The Hon’ble Supreme Court in (2012) 1 SCC 532 , referring  to the  said decision reported in  AIR 1997 SC 3400 = (1997) 7 SCC 622,  observed and held:

“ This Court has in Mansukhlal Vithaldas Chauhan  (1997) 7 SCC 622 considered the significance and importance of sanction under the P.C. Act. It has been observed therein that the sanction is not intended to be, nor is an empty formality but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and it is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. This Court highlighted that validity of a sanction order would depend upon the material placed before the sanctioning authority and the consideration of the material implies application of mind.”

 

2.1.   However,  the Hon’ble Supreme Court in the case reported in 2007(1) SCC  49 at para 10  made distinction in the nature  of  granting sanction under 197 of Cr.P.C and that under section 19 of the P.C Act in the following words:

   "It   may be noted    that  Section  197 of  the code  and  Section 19    of  the Act  operate in conceptually  different  fields.  In cases  covered  under the Act,  in respect of public servants the sanction is  of automatic nature and thus  factual  aspects are of little  or no consequence.  Conversely,  in a case relatable   to section  197 of  the Code, the substratum and basic  features of the case   have  to be considered   to find out  whether  the alleged act has any  nexus  with  the discharge of duties. Position  is not   so in case of Section  19 of the Act. " 

 

2.1.1. In my opinion, the said observation of the Hon’ble Supreme Court –“ In cases  covered  under the Act,  in respect of public servants the sanction is  of automatic nature and thus  factual  aspects are of little  or no consequence.” appears to be  not in tune with earlier decision of the  Supreme Court  reported in AIR 1997 SC 3400 = (1997) 7 SCC 622 (supra).

 

 

Summary of Question-  Article 20(2)  of the Constitution not applicable in service .

Question- Whether  Article 20(2) of the Constitution  of India is  applicable in a Departmental or Administrative Enquiry.

Answer- No.

Rationale-  

 Observation  of the  Hon’ble Supreme Court reported in AIR 1953 SC 325 is quoted below:

“  The words "before a court of law or judicial tribunal" are not to be found in article 20(2). But if regard be had to the whole background indicated above it is clear that in order that the protection of article 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a court of law or a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The very wording of article 20 and the words used therein :- "convicted", "commission of the act charged as an offence", "be subjected to a penalty", "commission of the offence", "prosecuted and punished", "accused of any offence", would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court

       

Summary of Question- Suspension of Award Staff of Bank if in custody for 48 hours

Question- Whether an employee of a Bank, to whom the provisions contained in Bi Partite Settlement dated 10.4.2002 is applicable, can be deemed to have been suspended if he has been  in Custody for 48 or more consequent upon an FIR lodged against him.

Answer:  No.

Rationale-

1. Para 2 and 3(a) of the Bipartite Settlement dated 10.4.2002  are relevant in the context and the same is quoted below:-

        “2. By the expression "offence" shall be meant any offence involving moral turpitude for which an employee is liable to conviction and sentence under any provision of law.

      3(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.”  

2.  Contents of  para 2 and 3(a)  of the said  settlement  speak about   the following points:-

          i)   The offence is an offence involving moral turpitude ;

          ii)  The Management  is required to “form an  opinion’’  on the  consideration  of all relevant  material available  against the  concerned employee  that  the alleged  offence has, prima facie, been  committed  by the employee;

          iii)  After  the said  opinion   is formed , the Management   shall, unless he be otherwise prosecuted,  take steps  to  prosecute  the  employee or get him prosecuted by filing  a  complaint  case or  an FIR; 

          iv)  The words " unless  he be otherwise  prosecuted " mean that no step  in the matter  of  prosecution of the employee is to  be taken by the Management  if the employee has  already  been prosecuted  at the instance   of any other person;

        v)  If the employee has been otherwise prosecuted  or the Management  has taken  step to  prosecute  him or  get him  prosecuted, the  “employee may  also  be  suspended”.

 

3. Therefore, it is the condition precedent for suspending an  employee under the said  para 3(a) that the “ Management has formed an opinion”  that the employee has, prima facie, committed the alleged offence  and the offence involves moral turpitude.   There  is no provision in the said settlement to suspend the employee simply because he has been  arrested by police and has been  in custody for 48 hours or more nor is there any provision for deemed suspension.

 

 

Summary of Question- Deemed Suspension of officer of Bank if in custody for 48 hours.

Question – Whether an officer of a Bank can be deemed to be under suspension if the officer has been under custody exceeding 48 hours. 

Answer-  It depends on the Service Rules of the Bank. if there is a provision for deemed suspension in the Service Rules of a Bank  then only its officer can be under deemed suspension for being in custody exceeding 48 hours. Some Banks’ service Rules provide for deemed suspension but similar provision do not find place in other bank.     

Rationale-

1. Supposing  one  Bank’s Service Rules contains a provision as under-

   An officer employee shall be deemed to have been placed under suspension by an order of the competent authority -

(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours.

1.1.  As there is a provision in the said Service Rule for deemed suspension , an officer of the Bank shall be under deemed suspension.

2. But , supposing,  other Bank’s  Service Rule  do not contain above provision but the following provision - 

If an officer who is detained under custody whether on a criminal charge or otherwise for a period exceeding forty-eight hours is placed under suspension by  the Competent  Authority, it shall be open to the Competent  Authority to give effect to such suspension from a retrospective date not earlier than the date of such detention.

 

2.1. In this case, the Service Rule  provides that an officer may be suspended from a retrospective date but not a date earlier than the date of detention, only if the officer has been placed under suspension by the decision of Competent  Authority. As there is no provision for  ‘deemed suspension’ in case of detention under custody exceeding 48 hours, the officer    cannot be deemed to be under suspension but when the competent Authority decides for suspension then the suspension may also be ordered from a retrospective date of detention.

 

Summary of Question- Award Staff promoted to Bank , Officers’ Rule applies .

Question- When a Bank’s  Award Staff employee  has been promoted to officer, whether he should be charged as per misconduct in Service Rules applicable to Award staff  or  according to misconduct in the Service Rules applicable to Officers, in respect of his alleged act / omission  while he was Award Staff.

Answer-  The Officer should be charged as per the Misconduct  applicable to an  Award Staff  for his act / omission  while he was Award Staff.  But  Disciplinary Proceedings should be conducted as per the Officers’ Service Rules.

 Rationale-

1. The  case reported in 2000(1) LLJ 1487  filed by the Bank against a  Single Bench Judge of the the Hon’ble Andhra Pradesh High Court is relevant. In this case, Disciplinary proceedings were initiated under Officers’ Service Rule as the employee was promoted to Officer. One of the charges was –“You had resorted to outside borrowings and placed yourself under pecuniary obligation to a person having dealings with the bank and also caused negotiation of a SB withdrawal form drawn on your account without sufficient balance therein. Further you had obtained a loan from another Bank, without the knowledge of your controlling Authority

1.1. The Hon’ble single Judge held that the said allegation (quoted in italics) does not constitute misconduct under the Disciplinary Rule governing  Award Staff.

1.2. With regard to the two other charges, the Hon’ble Single Judge held the same to be incompetent and without jurisdiction in the sense that the procedure obtaining under   Officers’ Service Rules was applied whereas the procedure governing the Award Staff should have been applied.

2. The Hon’ble  Division Bench did not agree with the views of the Hon’ble Single Judge that Disciplinary Proceedings  should be conducted as per  Award Staff service Rule after promotion.  But the Hon’ble Division Bench held that even after the employee rises to the level of an officer, the regulations governing the workmen should continue to apply in respect of  the past misconduct. 

2.1. A  Division Bench decision of  the Hon’ble  Madras High Court in Canara Bank vs. K. Chandran  decided on 29.6.2001 observed-

“ Merely because the misconduct related to the period while the respondent was an award staff, it cannot be taken that even after his becoming an officer, the respondent could insist for a procedure prescribed under the bipartite settlement to be adopted”

3.  With regard to the   quoted allegation in para 1 above, the  Division Bench  of  the Andhra Pradesh High Court affirmed the view taken by the Single Judge that a misconduct for which he is charged must answer the description of the misconduct as per the disciplinary rules governing the workman, if acts giving rise to the charges were committed during the period when he was employed as a workman. Whether or not there was a  misconduct on the part of the charged employee must necessarily be judged with reference to the point of time when he is alleged to have committed the misconduct. In this connection, the Division Bench also relied on the  Supreme Court decision reported in 1990(I) LLJ 32 in which it is observed : "It is a basic principle of natural justice that no one can be penalised on the ground of conduct which was not penal on the day it was committed."

 

Summary of Question- Consequence of Conviction of Offence involving Moral turpitude .

Question- Where a Bank employee convicted of an offence  involving Moral Turpitude prefers appeal and the appellate court stays his sentence,  whether provisions of section 10(1)(b)(i)  of the Banking Regulation Act not to continue a Bank employee  who has been convicted of an offence involving Moral turpitude,  applies and such employee shall not be continued in the Employment of the Bank.

Answer- Yes. Such employee cannot be continued in the employment of the Bank.

Rationale-

1. In this connection, it is  relevant to refer to a decision of the Hon’ble Supreme Court in the case reported in 1995 (2) SCC 513] , a few fact pertaining  to  case  was that  Ramesh Narang filed a Company Petition  before the Company Judge in the High Court of Bombay challenging the validity of  a  Board meeting  on the ground that the appellant  (Rama Narang)  being convicted for an offence involving moral turpitude could not hold office of the Managing Director in view of the provisions of Section 267 of the Companies Act, which  lays down that no company shall appoint or employ, or continue the appointment or employment of any person as its managing or whole-time Director, who is, or has at any time been convicted by a Court of an offence involving moral turpitude. Rama Narang  was tried by the Additional Sessions Judge, Delhi and was convicted for having committed certain offences and  was sentenced to rigorous imprisonment  and fine. On appeal,  the High Court of Delhi ordered as under:

“    Accused be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the trial judge. The operation of the impugned order shall remain stayed”

1.2. The Hon’ble Apex Court held at para 20 of the judgment:

“---since the interim order of stay did not specifically extend to the stay of conviction for the purpose of avoiding the disqualification under Section 267  of the Companies Act, there is no substance in the appeal and the appeal is, therefore, dismissed……”   

2. In the light of the said decision of the Apex Court (supra) ,   Section 10(1)(b)(i) of the Banking Regulation Act shall  be applicable if  appellate Court only stays sentence but does not stays conviction.

 

Summary of Question- Release under Probation of Offenders Act  vis -a-vis Bank’s Service Rule   

Question- Whether a Bank’s Employee, who has been convicted for an Offence involving Moral Turpitude but has been released under Probation of Probation Act,  can claim  to continue in the Bank’s Employment.

 Answer –  No.  Release of  a Employee under section 12 of the Probation of Offenders Act, 1958 does not mean that the conviction ceased to  exist and as such the employee  is  NOT entitled to claim  to continue in the employment of the Bank.
 

Rationale:

1. The Hon'ble Supreme Court in CIVIL APPEAL No . 7011 of 2009 (State Bank of India Vs. P. Soupramaniane) ,decided on 26th. April 2019 , referred to the case reported in (2010) 8 SCC 573, and observed and held :


".... The release under probation does not entitle an employee to claim a right to continue in service. In fact the employer is under an obligation to discontinue the services of an employee nconvicted of an offence involving moral turpitude. The observations made by a criminal court are not binding  on the employer who has the liberty of dealing with his employees suitably."

2. In the above referred  case, reported in (2010) 8 SCC 573, the Hon’ble Supreme Court after referring to its several earlier decisions , had observed and held:

" ....the law on the issue can be summarized to the effect that the conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. The word `Disqualification' contained in section 12 of the Act, 1958 refers to a disqualification provided in other Statutes, as explained by this Court in the above referred cases, and the employee cannot claim a right to continue in service merely on the ground that he had been given the benefit of probation under the Act, 1958"

"... once a Criminal Court grants a delinquent employee the benefit of Act, 1958, its order does not have any bearing so far as the service of such employee is concerned. The word "disqualification" in Section 12 of the Act, 1958 provides that such a person shall not stand disqualified for the purposes of other Acts like the Representation of the People Act, 1950 etc. The conviction in a criminal case is one part of the case and release on probation is another. Therefore, grant of benefit of the provisions of Act, 1958, only enables the delinquent not to undergo the sentence on showing his good conduct during the period of probation. In case, after being released, the delinquent commits another offence, benefit of Act, 1958 gets terminated and the delinquent can be made liable to undergo the sentence. Therefore, in case of an employee who stands convicted for an offence involving moral turpitude, it is his misconduct that leads to his dismissal."

 

Summary of question- Offences involving moral turpitue. 

Question – Which offences involve Moral Turpitude.

Answer- Neither there is statutory definition of  the term “Moral Turpitude” nor  the Service Rules define this term. But there is dictionary meaning of this term ; courts have also interpreted this term.    In brief,  if  an  act leading to a conviction  was such as could shock the moral conscience  of  society in general, the offence involves moral turpitude. It depend upon the facts of each case whether the act leading to conviction  involves moral turpitude.   Most serious offences involving moral turpitude would be where a person employed in a banking company dealing with  money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw. But all assult or simple hurt does not involve Moral Turpitude.

Rationale-

1.   In  P. Ramnatha Aiyer's Law Lexicon (2nd Edition)  the phrase Moral  Turpitude  is defined- "  Anything  done  contrary to justice, honesty, principle,  or good morals:  an act  of  baseness,  vileness  or depravity in the   private and social   duties which a  man owes to his  fellow man  or to society in general , contrary to the accepted and customary  rule of  right  and duty between man and man”

2.  Vide AIR 1963 All 527, following  tests should ordinarily be applied for judging whether a particular  offence  does or does  not  involve  moral turpitude  :-

  1. Whether  the act leading to a conviction  was such as could shock the moral conscience  of  society in general . 
    1. Whether the  motive  which led to the act  was base one, and
    2. Whether  on account of the act  having been committed the  perpetrator   could be considered to be  of  a depraved  character or  a person who  was to be looked down  upon  by the society.

3. In  the  case of Gatru Mal  vs. RBI  reported in 1994(1) PLJR,720, the Hon'ble  Patna  High Court  observed  at para  7 as under :-

 "  A precise definition of  right  and  wrong  having  an universal  application  to all societies  at all points of time  is not  feasible.  The concept  is varying in accordance with the belief of the people.  An act which may be considered unethical and base  by  certain people may not   be so looked down upon  in another  country  and  may  be considered  with approbation in still another society.  It is also  dependent on the time factor.  Whenever  a question arises  for  deciding  whether   particular   act  involves  moral turpitude  or not,  it will have  to be  examined in the background of the  moral character  of  the  relevant  society and no  absolute  standard can  be laid  down."

4.  The Hon’ble Supreme Court in the case of Pawan Kumar vs. State of Haryana [1996(4) SCC 17] held –

“ Moral turpitude is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity.”

5.  In the case of Allahabad Bank vs. Deepak Kumar Bhola [1997 (4) SCC 1], the Apex Court relied on the Pawan Kumar’s case supra and held – “What is an offence involving moral turpitude must depend upon the facts of each case. But whatever may be the meaning which may be given to the term moral turpitude it appears to us that one of the most serious offences involving moral turpitude would be where a person employed in a banking company dealing with  money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw

 

6. The Hon'ble Supreme Court in CIVIL APPEAL No . 7011 of 2009 (State Bank of India Vs. P. Soupramaniane) ,decided on 26th. April 2019 , observed and held :

" 8.   There is no doubt that there is an obligation on the Management of the Bank to discontinue the services of an employee who has been convicted by a criminal court for an offence involving moral turpitude  Though every offence is a crime against the society, discontinuance from service according to the Banking Regulation Act can be only for committing an offence involving moral turpitude. Acts which disclose depravity and wickedness of character can be categorized as offences involving moral turpitude. Whether an offence involves moral turpitude or not depends upon the facts  and the circumstances  of the case. Ordinarily, the tests that can be applied for judging an offence involving moral turpitude are:

a) Whether the act leading to a conviction was 
such as could shock the moral conscience or
society in general;
b) Whether the motive which led to the act was a base one, and
c) Whether on account of the act having been
committed the perpetrators could be considered to be of a depraved character or a person who was to be looked down upon by the society.
The other important factors that are to be kept in mind to conclude that an offence involves moral turpitude are :– the person who commits the offence; the person against whom it is committed; the manner and circumstances in which it is alleged to have been committed; and the values of the society..... "

" 9. There can be no manner of doubt about certain offences which can straightaway be termed as involving moral turpitude e.g. offences under the Prevention of Corruption of Act, NDPS Act, etc. The question that arises for our consideration in this case is whether an offence involving bodily injury can be categorized as a crime involving moral turpitude. In this case, we are concerned with an assault. It is very difficult to state that every assault is not an offence involving moral turpitude. A simple assault is different from an aggravated assault. All cases of assault or simple hurt cannot be categorized as crimes involving moral turpitude. On the other hand, the use of a dangerous weapon which can cause the death of the victim may  result in an offence involving moral turpitude. In the instant case, there was no motive for the Respondent to cause  the death of the victims. The criminal courts below found that the injuries caused to the victims were simple in nature. On an overall consideration of the facts of this case, we are of the opinion that the crime committed by the Respondent does not involve moral turpitude. As the Respondent is not guilty of an offence involving moral turpitude, he is not liable to bedischarged from service."

 

Summary of Question- Probation of Award Staff for 6 months.

Question- Whether a Award Staff employee of a Bank on probation , to whom Sastry Award and Desai Award as to probation are applicable, can be deemed to be confirmed in service if he has been allowed to continue to the employment  after expiry of  probation period.

Answer- Yes.

Rationale-

1.  With regard to probation and confirmation, para 495 of Sastry Award is relevant which reads as under:-

"...ordinarily the period of  probation should not exceed 6 months. However, in case persons whose work is not found to be satisfactory during the said period but who are likely to improve and give satisfaction if a further opportunity is given to them, the period may be extended by three months provided due notice in writing is given to them and their consent in writing is obtained before extension of their period of probation. In all other cases probationers after expiry of the period of six months should be deemed to have been confirmed, unless their services are dispensed with on or before the expiry of the period of probation………."   

                                                                                                                                     [Emphasis supplied]

1.1. Desai Award, vide its para 21.18, modified the  para 495 of Sastry Award to this effect that consent of  the probationer is not required before extension of probation.

2. Service rules as to confirmation emanating from  para 495 of Sastry Award read with para 21.18 of  Desai Award can be summarized as under:-

i . Period of probation cannot exceed 6 months;

ii. Probation can be extended for a period of 3 months before expiry of  initial 6 months' probation;

ii. There is a provision of deemed confirmation  after expiry of six months if it has not been extended  for another three months;

iii. There is no provision for further extension after expiry of  the extended period of 3 months.

3. One point which may also  arise in this regard is whether the provision of  deemed confirmation may also be applicable if no decision is taken as to termination of an employee before expiry of even extended period of  3 months and the employee is allowed to be in employment for a substantial  period after expiry of such 3 months.

3.1. In this connection, reference may be made to a Constitution Bench decision of  the Hon'ble Supreme court in State of Punjab vs. Dharam Singh [AIR 1968 SC 1210] in which Rule 6(3), which reads as under,  of the relative service rule was interpreted by the Hon'ble supreme Court:-

" On the completion of the period of probation the authority competent to make appointment may confirm the member in his appointment or if his work or conduct during the period of probation has been in his opinion unsatisfactory he may dispense with his services or may extend his period of probation by such period as he may deem fit or revert him to his former post if he was promoted from some lower post.

Provided that the total period of probation including extensions, if any, shall not exceed three years. "

3.2. The Apex Court observed and held at 5 of the decision as quoted below:-

In the present case, r. 6(3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication"

3.3. The ratio of  the said case of  Dhram Singh appears to be that  where the relative service rule provides that probation cannot exceed beyond certain period and an employee is allowed to continue without an order of confirmation then the only possible view, in absence of  anything to the contrary in the service rules, is that the employee be regarded as having been confirmed by necessary implication.  

 

Summary of Question- Loan Recovery from Subsistence Allowance.

Question – Whether a loan taken by an employee can be recovered from  subsistence allowance of the employee.

Answer-  No. 

Rationale-

The Hon’ble Karnataka High Court  in the case reported in 2004 (3)LLJ 726 KAR, the petitioner sought for a direction to the Bank  to pay subsistence allowance without making deductions of loan from subsistence allowance. The Hon’ble High Court Court referred to the following observation of the   Supreme Court  in the case reported in 1999 (I)LLJ 1094:

   "29. Exercise of right to suspend an employee may be justified on facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by 'suspension syndrome' and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse, which has often resulted in suspension. Suspension notwithstanding, non-payment of subsistence allowance is an inhuman act which has unpropitious effect on the life of an employee. When the employee is placed under suspension,  he is demobilised and the salary is also paid to him at a reduced rate under the nick name of 'subsistence allowance' so that the employee may sustain himself. ......."

 The Hon’ble High Court, thereafter,  held –“ In the given circumstances and on the facts of this case and in the absence of any permissible deduction in terms of any legal provisions, respondents could not have deducted towards the loan amount from the subsistence allowance payable to the petitioner.” 

 

Summary of Question- Reinstatement on Acquittal

Question- Whether an employee of a Bank is entitled to be reinstated  on acquittal by Appellate Court in a case where the employee’s service was terminated after his conviction by trial court for an offence involving  moral turpitude.

Answer– There is a provision in section 10(1)(b)(i) of the Banking Regulation Act to the effect that no banking company shall  continue in employment  of  an  employee  if  the employee  has been convicted of an offence involving moral turpitude. There also remains  some provision in every Bank’s Service Rule to the effect that the such employee is  not to continue in the Bank’s service who has been convicted of an offence involving moral turpitude.  As such, when a bank employee is convicted by Trial Court for an offence and that offence involves moral turpitude, the Bank cannot continue the employee in the Bank’s service.

  If the said employee is acquitted in appeal and approaches the Bank for reinstatement on the ground that he has been acquitted by Appellate  Court, he is not to be reinstated automatically but  the reinstatement is dependent on the provisions contained in the service rule as to reinstatement. If there is no provision in the Service Rule for reinstatement, there cannot be reinstatement. If there is provision in the Service Rule, the bank may also start disciplinary against the employee in accordance with the service rule.

Rationale-

1. The Apex Court in AIR 2013  SC 14 held that  in the absence of any provision in the service rule for reinstatement, if an employee is honourably acquitted by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement.

2. Acquittal  in a criminal case would not operate as a bar for drawing up of a disciplinary proceeding against a delinquent. It is well settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. While the standard of proof in a criminal case is proof beyond all reasonable doubt, the standard of proof in a departmental  proceeding is preponderance of  probabilities. [Employers Management West Bokaro Colliery of  TISCO Ltd. Vs  Ram Pravesh Singh   AIR 2008 SC 1162]

3.  An officer of Oriental Bank Officer was removed  from Service by DA  after proper enquiry. Aggrieved thereby, he challenged the order by filing Writ Petition. A Single Judge of  the Hon’ble High Court was of the view that the main allegation of  misappropriation of Rs. 10 lacs was the crux in both departmental  proceedings and the criminal charge and that the Gurgaon police after investigation has closed the case as unfounded before the CJM, Gurgaon, therefore, nothing substantial remains in the matter for proceedings against the appellant. The Hon’ble  Single Judge was further of the view that the argument of the Bank that departmental proceedings and the criminal case are different does not hold good and his removal from service was incorrect. The Apex court did not agree to the views of the single judge of the High  Court and observed :–

“In our view, the findings recorded by the learned Single Judge are fallacious. This Court has taken the view consistently that acquittal in a criminal case would be no bar for drawing up a disciplinary proceeding against the delinquent officer. It is well settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof   beyond all  reasonable  doubt,  the proof in a departmental proceeding is preponderance of probabilities. It is not the case of the appellant that the enquiry has been conducted without affording an opportunity to the appellant  or  behind the back of  the appellant and thereby violated the principle of natural justice.” [Suresh Pathrella vs. Oriental Bank of Commerce AIR 2007 SC 199]

4. Vide  the case reported in AIR  2005 SC 4217-

 “As far as acquittal of  the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if  it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings - criminal and departmental - are entirely different. They operate in different fields and have different objectives. Whereas the object of  criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar.  In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt’  he cannot be convicted by a court of law.  In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of  'preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside”

5. “It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (State  of  Rajasthan v. B. K. Meena and Ors. (1997) I LLJ 746 SC. In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of  "proof  beyond  doubt"  has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.”[ Lalit Popli v. Canara Bank and Ors AIR 2003 SC  1796]

6 . A Government servant, who was convicted under Section 302 of the IPC, was, on appeal, acquitted by the High Court for want of evidence, as all the material witnesses had turned hostile.  In a criminal appeal by the State, the Supreme Court was of the view that the High Court was justified in holding that the prosecution had failed to bring home the charges. The Supreme Court, however, observed that the acquittal  in a criminal case on the witnesses turning hostile would not come in the way of disciplinary proceedings being initiated or continued in respect of the same charges. The observation of the  Supreme is :-

“However, we make it clear that the acquittal of  the respondent shall not be construed as a clear exoneration of the respondent, for the allegations call for departmental proceedings, if not already initiated, against him". [ (2000) 10 SCC 177]

 

Summary of Question – Suspension of Bank Officer is not mandatory

Question – Whether an officer of a Bank,  who is governed by the Service Rule containing the following provisions with regard to suspension , is mandatorily to be suspended or  it is in the discretion of the Bank to suspended him or not:

An Officer Employee may be placed under suspension by the competent authority:

(a) where a disciplinary proceedings against him is contemplated or is pending; or

(b) where a case against him in respect of any criminal offence is under investigation , inquiry or trial

Answer- It is in the discretion of the Bank to suspend or not.

Rationale

The  Hon’ble Kerala High Court in the case reported in 2006 (2) LLJ 171 has held at para 8 that Regulation  12(1) of  Syndicate Bank Employees’ (Discipline and  Appeal) Regulations [which contained the above quoted provision]  deals with a case where the competent  authority has the discretion to place an officer employee under suspension.

 

 

Summary of Question- About Resignation

 

Question- What are the types of Resignation and when it is effective.

Answer –  

In this connection, following observation of the  Hon’ble Supreme Court in a case reported in 1993 (2) SCC 725 is relevant :

“As pointed out by this court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authorityThe authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and conditions governing it.”

                                                                                                                                                                                             [Emphasis Supplied]

Summary of Question-  Withdrawal of Resignation 

Question-  Whether  an employee is entitled to  withdraw resignation before the Resignation becomes effective.

Answer –  Yes, if the service rules does not require permission for withdrawal of resignation.  

Rationale-

 In the case  reported in  (1989) ILLJ 368 SC , an employee / officer resigned from service of the Bank by a communication dated January 21, 1986  to be effective from June 30, 1986. The Deputy General Manager who was the competent authority under the Service Regulations, accepted the resignation as per the letter of resignation i.e. with effect from June 30, 1986. The employee, however, received a letter from the Bank on February 07, 1986 informing him that his resignation letter had been accepted by the competent authority with immediate effect by waiving the condition of notice and consequently he was being relieved from the service of the Bank with effect from that day, i.e. from February 07, 1986. The employee, therefore, filed a writ petition challenging the validity of the purported acceptance of his resignation with effect from February 07, 1986 and for a direction to the Bank to treat him in service upto June 30, 1986 by granting all consequential benefits. A further development took place after the filing of the writ petition and before it came up for hearing that on 15th April, 1986, the employee   wrote a letter to the bank by which he purported to withdraw the resignation letter dated 21st January, 1986. The Supreme Court held as quoted below:

“…..Clause (2) is carefully worded keeping both these requirements in mind. It gives the employee a period of adjustment and rethinking. It also enables the bank to have some time to arrange its affairs, with the liberty, in an appropriate case, to accept the resignation of an employee even without the requisite notice if he so desires it. The proviso in our opinion should not be interpreted as enabling a bank to thrust a resignation on an employee with effect from a date different from the one on which he can make his resignation effective under the terms of the regulation. We, therefore, agree with the High Court that in the present case the resignation of the employee could have become effective only on or about 21st April, 1986 or on 30th June, 1986 and that the bank could not have "accepted" that resignation on any earlier date. The letter dated 7th February, 1986 was, therefore, without jurisdiction”

“The result of the above interpretation is that the employee continued to be in service till April 21, 1986 or June 30, 1986, on which date his services would have come normally to an end in terms of his letter dated January 21, 1986. But, by that time, he had exercised his right to withdraw the resignation. Since the withdrawal letter was written before the resignation became effective, the resignation stands withdrawn, with the result that the respondent continues to be in the service of the bank. It is true that there is no specific provision in the regulations permitting the employee to withdraw the resignation. It is, however, not necessary that there should be any such specific rule. Until the resignation becomes effective on the terms of the letter read with Regulation 20, it is open to the employee, on general principles, to withdraw his letter of resignation. That is why, in some cases of public services, this right of withdrawal is also made subject to the permission of the employer. There is no such clause here.”

 

Summary of Question- Employee’s right of  Resignation

Question- Whether an employee has right to resign.

Answer –  Yes. But  the resignation must be  in accordance with Service Rules by which the  employee is governed.

Rationale:

In CIVIL APPEAL NO.7822 OF 2011 ,decided on 1st. Nov. 2018, the  Hon’ble Supreme Court observed as under:

"To resign is a right of an employee who cannot be forced to serve in case he is not willing until and unless there is some stipulation in the rules or in the terms of appointment or disciplinary proceedings is pending or contemplated which is sought to be avoided by resigning from the services"

 

 

Summary of Question- Parity of Pay Scale  

Question- Whether  one  can claim parity of pay scale without there being complete identity between posts.
Answer –  No.

Rationale:


In CIVIL APPEAL NO. 193 OF 2019, decided on 8th. January 2019, the Hon’ble Supreme Court referred to earlier judgments of Apex court, and observed and held :

"Only in cases of complete similarity in the nature of work, duties, responsibilities and promotional channels, parity of pay scale can be claimed. Merely on the ground that Sub Fire Officers are categorised in Group XII along with Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors cannot be a ground for seeking parity of pay scale."

                                                                                                                                                        [Emphasis Suplied]

" In the writ petition, the respondents have taken the plea that they are entitled to the scale of pay on par with the employees of the Punjab Government in parity of the wages. Nature of work performed by those in the service of Punjab Government are different from those in service of the Board, the learned Single Judge rightly refused to accept the plea of the respondents claiming parity with the employees of the State Government."

" Mere difference in pay scale does not always amount to discrimination; it depends upon the mode of selection/recruitment, nature, quality of work and duties and that the status of both the posts are identical. Observing that it is not always impermissible to provide two different pay scales in the same cadre, this Court, in SAIL, held as under:-
 

“29. It is a settled legal proposition that it is not always impermissible to provide two different pay scales in the same cadre on the basis of selection based on merit with due regard to experience and seniority. (Vide State of U.P. and Others v. J.P. Chaurasia and Others (1989) 1 SCC 121 and Mewa Ram Kanojia v. All India Institute of Medical Sciences and Others (1989) 2 SCC 235.) “Non-uniformities would not in all events violate Article 14.” Thus, a mere difference does not always amount to discrimination. (Vide Madhu Kishwar and Others v. State of Bihar and Others (1996) 5 SCC 125, Associate Banks Officers’ Assn. v. SBI and Others (1998) 1 SCC 428 and Official Liquidator v. Dayanand and Others (2008) 10 SCC 1)."

                                                                                                                                                      [Emphasis Supplied]