JUDGMENT
V.S. Sirpurkar, C.J.
1. The appeal is directed against the judgment of the learned Single Judge of this Court dismissing the writ petition filed by the appellant petitioner herein. Writ petitioner, a bank employee had, by that writ petition, claimed his subsistence allowance during the period he was under suspension. The learned Judge held that since in the depertmental proceedings, the petitioner was found guilty and was compulsorily retired by way of punishment, the Bank could deprive him of the unpaid subsistence allowance and, therefore, the petitioner did not have the right to claim the same. Following facts will help us understand the controversy involved.
2. The petitioner was put under suspension on 5th October, 1975 while he was working as a clerk in the United Bank of India (hereinafter called the ‘Bank’ for short). There were three criminal complaints lodged against the petitioner with the police station and he was also served with a chargesheet for the departmental inquiry on 5.1.1977. On 17th May, 1990, two criminal proceedings against the petitioner were quashed by the High Court. On 15.2.1992, the suspension order was revoked with a direction that the pay during the period of suspension would depend upon the result of the disciplinary proceedings which were to commence in pursuance of the earlier chargesheet dated 5.1.1977. In pursuance of revocation of the suspension order, the petitioner joined service on 10th March. 1992. He made an application to the Bank for the payment of his subsistence allowance under the 4th Bipartite Settlement. However, the Bank declined to pay the same and rejected the request. In pursuance of the depertmental inquiry, the petitioner was ordered to be dismissed by the order dated 20th July, 1999. Hewever, subsequently, in pursuance of the order passed by the Single Judge of this High Court in W.P. No. 1608 of 1999 dated 03.12.1999, the order of dismissal was reviewed but was confirmed on 22nd December, 1999 by the disciplinary authority. The remaining third criminal case against the petitioner was also quashed by the High Court by its judgment dated 28.08.2000. The Bank, however, modified its order of dismissal by an order dated 15th November, 2001 and converted it to the order of compulsory retirement by way of punishment.
3. After that, he sent a letter dated 20.11.2001 to the Bank claiming his unpaid subsistence allowance. However, that was rejected by the Bank by its letter dated 28.11.2001, which letter came to be challenged by the petitioner in his writ petition. In his petition, the petitioner pointed out that the Bank was firstly not justified in issuing the Memo dated 6th May, 1992 denying the petitioner’s rightful due as also the letter dated 28.11.2001. As has been stated earlier, the writ petition came to be dismissed necessitating the present appeal.
4. The learned Counsel appearing on behalf of the appellant assailed the judgment of the learned Single Judge on the ground that the learned Judge had not looked into the applicable rules and had gone only by the general principles applicable. It is pointed out by the learned Counsel painstakingly that in his writ petition, the petitioner had pointed out that he had claimed the subsistence allowance for a period of suspension as back as on 11.03.1992 for a total period of suspension of 18 years starting from 05.10.1975 as per the rules in Bipartite Settlement. However, the respondent Bank had claimed that the subsistence allowance was payable and was governed by the provision of West bengal Payment of Subsistance Allowance Act, 1969 and not under the provisions of the Bipartite Settlement which governed the bank employees. The learned Counsel then points out that the provisions of West Bengal Payment of Subsistence Allowance Act, 1969 were more stringent as compared to the Bipartite Settlement and that, in fact, the Bank initially had paid the subsistence allowance under the Bipartite Settlement only.
5. Fortunately, before us the learned Counsel appearing on behalf of the Bank also fairly accepted that the subsistence allowance would be payable not under the West Bengal Payment of Subsistence Allowance Act, 1969, but under the Bipartite Settlement only. This is apart from the fact that the issue is settled by the judgment reported in 2004(1) CLJ (Cal) 424 Swapan Kumar Basu v. United Bank of India where the learned Single Judge of this Court relying on Section 5 of the said Act has given preference to the more advantageous service rules as compared to the provisions of the said Act. We, therefore need not dilate on that issue.
5.1. However, the other contention raised by the learned Counsel for the Bank was that even under the Bipartite Settlement, if the petitioner was entitled to the full subsistence allowance, while awarding the punishment to the petitioner, the Bank could still restrict his subsistence allowance to the extent it had paid and it was not incumbent upon the Bank to give the remaining subsistence allowance as per the rules. The learned Counsel for the respondent very heavily relied on Clause 19.12(b) of the said Bipartite Agreement. In view of the rival claims, the only question that has to be addressed is as to whether the petitioner would be entitled to be paid his full subsistence allowance in pursuance of the Bipartite Settlement.
6. There can be no dispute that the petitioner was paid some subsistence allowance during his period of suspension. However, that subsistence allowance was not increased in terms of the rules in the sense that the full subsistence allowance was not paid to the petitioner as per the rules. The relevant rules in this behalf are to be first found in paragraph 557 of Shastry Award which provides as under:
557. Having considered the matter in all its aspects, we think that subsistence allowance should be granted on the following scale:
(1) for the first three months one-third of the pay and allowances which the workman would have got but for the suspension;
(2) thereafter, where the enquiry is departmental by the bank, one-half of the pay and allowance for the succeeding months. Where the enquiry is by an outside agency, one-third of the pay and allowance for the next three months and thereafter one-half for the succeeding months until the enquiry is over.
6.1. Shastry Award was followed by Desai Award, Clause 17.14 of which is to the following effect:
17.14. I make an award in connection with this item in terms similar to those contained in paragraph 557 of the Shastry Award quoted above.
7. It appears that thereafter 3rd Bipartite Agreement dated 09.09.1983 was entered into by which paragraph 557 of the Shastry Award and Clause 17.14 of the Desai Award were partially modified. Paragraph 5 of the said Bipartite Agreement reads as under:
5. Subsistence Allowance : In partial modification of paragraph 557 of the Shastry Award and paragraph 17.14 of the Desai Award, the following provisions shall apply in regard to payment of subsistence allowance to workmen under suspension in respect of the banks listed in Schedule 1:
(a) where the investigation is not entrusted to or taken up by an outside agency (i.e. Police/CBI), subsistence allowance will be payable at the following rates:
(i) for the first 3 months 1/3 of the pay and allowances which the workman would have got but for the suspension,
(ii) thereafter 1/2 of the pay and allowances,
(iii) after one year, full pay and allowances if the enquiry is not delayed for reasons attributable to the concerned workman or any of his representatives. Where the investigation is done by an outside agency and the said agency has come to the conclusion not to prosecute the employee, full pay and allowances will be payable after 6 months from the date of receipt of report of such agency, or one year after suspension, whichever is later and in the event the enquiry is not delayed for reasons attributable to the workman or any of his representatives.
8. Therefore, as per the Bipartite Settlement and even as per the rules, the petitioner was entitled for first three months only 1/3 of the pay and allowances. Thereafter, that is after the completion of three months, he was entitled to 1/2 pay and allowances and after one year, he was entitled to full pay and allowances if the enquiry is not delayed for reasons attributable to the said petitioner. Now, in this case, it is nobody’s case that the enquiry was delayed due to the petitioner’s fault. It is obvious that the enquiry remained pending for all these years on account of the three criminal cases pending against him which ultimately were quashed. It is also significant to note that after the first two cases were quashed against the petitioner, he was reinstated in service and thereafter by the time the third case was quashed, the enquiry was completed resulting in his dismissal to begin with which punishment was converted to the punishment of compulsory retirement by way of punishment. When we see the affidavit-in-opposition filed on behalf of the Bank before the learned Single Judge, it is clear from paragraph 4 thereof that it was on the basis of the request of CBI to the Bank vide letter dated 24.05.1978 advising the Bank not to hold a departmental enquiry till the criminal case was finalized, that the Bank did not proceed with the departmental enquiry. Therefore, the pendency of the departmental enquiry for a long period of 18 years cannot be attributed to the petitioner. The learned Counsel for the Bank also accepted this position.
9. If, therefore, the petitioner appellant continued on the suspension for 18 years, he was bound to be paid the whole subsistence allowance as per the rules or, as the case may be, the Bipartite Settlement. This proposition is no more res integra and the Supreme Court in a reported decision in Andhra Bank v. W.T. Seshachalam has held that a delinquent is entitled to get the subsistence allowance as per paragraph 5 of the Bipartite Settlement which we have quoted above provided the delinquent has been acquitted in the criminal cases pending against-such delinquent. In that case also like the present case, there was a criminal case pending against the petitioner which ultimately resulted in acquittal by the Appellate Court though initially the delinquent, in that case, was convicted by the Trial Court. It was argued before the Supreme Court that throughout the period of suspension when the criminal cases were pending, he would be disentitled for full pay and allowances as subsistence allowance. The Supreme Court did not accept this position and observed:
From a reading of para 5 as a whole, three types of cases are culled out. One where an outside agency may not be involved in the investigation. In that even for the first three months 1/3 of the pay and allowances would be payable as suspension allowance whereafter it would be increased to one-half of the pay and allowances and after one year full pay and allowances provided enquiry is not delayed for the reasons attributable to the workman concerned. The next category of cases would be where investigation is done by an outside agency and the said agency comes to a conclusion not to prosecute the employee. In such a situation the workman would be entitled to full pay and allowances after six monthsfrom the date of receipt of the report of the agency. The latter part as contained in Sub-clause (iii) of Clause (a) of para 5 would cover cases of criminal nature. We find this distinction in view of the fact, that investigation is not entrusted to outside agency namely, police and CBI for the departmental proceedings. Such cases, in our view, would be covered by Clause (a)(i), (ii) and the first part of Sub-clause (iii). It is for prosecution in a criminal case that investigation is entrusted to the outside agency, namely the police or CBI. Therefore, we are of the opinion that the later part of Sub-clause (iii) relates to investigation for the purpose of criminal prosecution. Even in such cases full pay and allowances are payable as subsistence allowance where the outside agency comes to a conclusion to not to prosecute the employee. That is to say, in such an event they are at par in the matter of payment of subsistence allowance, as the employees in the departmental proceeding.
8. We do not find anything further provided in Sub-clause (iii) of para 5.
That is to say where the outside investigating agency comes to a conclusion to prosecute and launches such prosecution. In any case, in our view, a person who is prosecuted criminally but ultimately acquitted of the criminal charges cannot be placed in a worse position in the matter of subsistence allowance as compared to those, where the outside agency itself had concluded not to prosecute. After acquittal, clout of criminal prosecution comes to an end and in case only departmental proceedings continue or remain pending or initiated thereafter, they would be guided only by the provisions applicable, for departmental proceedings in the matters relating to payment of subsistence allowance. The conclusion of the investigating agency to prosecute, would lose its effect or relevance on acquittal in the criminal case.
10. the position is exactly identical excepting that in the present case instead of acquittal of the criminal cases, these were quashed by the High Court and therefter, the petitioner was proceeded departmentally.
11. In the same case, the Supreme Court had further found that the suspension order in that case was passed during the pendency of regular departmental action and, in the meantime, prosecution was launched after investigation by outside agency which failed, but the departmental action continued for years thereafter. Ultimately, the Supreme Court came to the conclusion that in such cases, the workman is entitled to full pay and allowances as suspension allowance. The case is applicable on all fours to the present situation and, therefore, we do not think that the petitioner can be deprived of the subsistence allowance.
12. However, the learned Counsel Shri Sanyal drew our attention to the modified Clause 19.12 of the Bipartite Settlement. This clause seems to have undergone number of modifications. However, the learned Counsel relies on Clause 19.12(b) which is as under:
19.12(b). Pending such inquiry or initiation of such enquiry, he may be suspended, but if on the conclusion of the enquiry it is decided to take no action against him he shall be deemed to have been on duty and shall be entitled to the full wages and allowances and to all other privileges for the period of suspension and if some punishment other than dismissal is inflicted, the whole or a part of the period of suspension, may, at the discretion of the management, be treated as on duty with, the right to a corresponding portion of the wages, allowances, etc.
13. The learned Counsel for the Bank contends that in the present case, the petitioner was awarded the punishment of compulsory retirement and, therefore, the management had right to treat whole or a part of suspension as on duty with right to a corresponding portion of wages, allowances etc. The learned Counsel carries his argument further by suggesting that thus, the management had a right to deprive him of the part of the subsistence allowance also. According to the learned Counsel, if the management had a right to limit the period of suspension and treat it as not on duty, then obviously the management, that is the Bank, could also deprive him of the part of the subsistence allowance. The argument is obviously wrong. The clause abovesaid merely gives the power to the Bank to treat the employee as on duty during the period of his suspension fully or partly, meaning thereby even if the employee is found guilty and is awarded some punishment other than the dismissal, still the Bank would have a power to give him full salary for his suspension period or the Bank may limit that period, treating that only a part of the period of suspension would be treated to be as on duty and the delinquent employee would be entitled to his full salary and allowances only for that period. It must be noted that this clause does not entitle the Bank to tinker with his subsistence allowance. It is a basic principle of the service law that where an employee is put on suspension, he must get the subsistence allowance as per rules. In the present case, the employee could not get the full salary and allowances for a whole period of one year, during which he was paid 1/3 of the pay and allowances for the first three months and half the salary till he completed one year’s of suspension. Thereafter, however, if he continued to be on suspension, he was entitled to the subsistence allowance which was equal to his full pay and allowances. The clause abovesaid nowhere creates a power in the Bank to deprive the employee of his suspension allowance in any manner. Such power is nowhere to be found also. In the present case, going strictly by the language of the abovementioned clause, the Bank has the power to treat the petitioner on duty even during his first year of suspension and pay him the full salary even for that period or it could still order that out of that period of one year when he was earning 1/3 of the salary for the first three months and half of the salary for the rest of nine months, he could be paid the salary for a limited period of out of that one year in spite of the fact that he was found guilty and was awarded the punishment. That is the only thing that the Bank could do under the aforementioned clause. It could not go further and take advantage of the petitioner having been awarded a punishment in the departmental enquiry and to hold that whatever subsistence allowance was paid to the petitioner, even if it was much lesser than the rules, the remaining subsistence allowance as per the rules should not be given to the petitioner. And this is what precisely the Bank has done. In our opinion, there is no power in the Bank at least under the prevalent rules to cut the subsistence allowance in any manner to the disadvantage of the delinquent employee like the petitioner. That will be a plain and simple meaning of the Clause 19.12(b). Under the guise of the language, the Bank cannot and could not deprive the petitioner of his rightful subsistence allowance even if that subsistence allowance after one year of his suspension, was equal to his full pay and salary. In short, the Bank was bound to pay to the petitioner after one year of his suspension, an amount which would have earned by way of his full pay and allowances till such time as he was reinstated. This would be a plain meaning of the clause. This not having been done, the writ petition was bound to be allowed.
14. The learned Single Judge who dismissed the petition, did not have the advantage of the Supreme Court judgment in Andhra Bank v. W.T. Seshachalam (supra) and the provisions of the Bipartite Agreement were also not pressed into service, though a claim to that effect was made in the writ petition. It is, therefore, that the learned Judge went on the general principles. But, in our opinion, even as per the general principles of service jurisprudence, the subsistence allowance payable under the rules cannot be tinkered with. It is for these reasons that we are unable to agree with the learned Single Judge and would choose to set aside the judgment and allow the writ petition.
15. In pursuance of this, we allow the appeal as also the writ petition and direct the Bank to calculate the full subsistence allowance in the light of the rules and the observations made by us above and pay the same to the petitioner within three months.
16. Since the petitioner was deprived of his rightful subsistence allowance in an illegal manner and since the Bank insisted upon not paying the same in spite of his demands, the unpaid part of the subsistence allowance, which the petitioner was bound to get, would carry the interest at the rate of 6% per annum with effect from the date it became due. For this, the Bank will calculate the interest with the yearly rest.
17. The interest shall be calculated separately and shall be payable along with the unpaid subsistence allowance. Apart from this, the Bank shall pay Rs. 5000/- by way of costs. Ordered accordingly. Urgent xerox certified copy be given to the parties.
Soumitra Sen, J.
18. I agree.