Posted On by &filed under High Court, Kerala High Court.


Kerala High Court
Sivaprasad vs State Bank Of Travancore on 10 August, 2000
Equivalent citations: 2001 (88) FLR 1053, (2001) ILLJ 817 Ker
Author: K Joseph
Bench: P Balasubramanyan, K Joseph


JUDGMENT

Kurian Joseph, J.

1. Petitioner in the original petition is the
appellant in this writ appeal. While employed as
Assistant Manager in Aroor Branch of the first
respondent-State Bank of Travancore, appellant
was placed under suspension pending enquiry, as
per memo dated July 29, 1999, issued by the
second respondent. Appellant was issued Exhibit
P-1 memo of charges and an enquiry was initiated
as per Exhibit P-3 proceedings. Placing reliance
on Clause 68(2)(vii) of the State Bank of
Travancore (Officers) Service Regulations,
1979, framed by the bank, appellant nominated
one Sri P.N.Sambasivan, Deputy Manager,
Region III, S.B.T., Zonal Office, Kozikode, as
his defence representative. However, the third
respondent inquiring authority, as per Exhibit P-9
letter, declined the appellant request. Exhibit P-9
was challenge in the original petition.

2. The learned single Judge took note of the submissions of the learned counsel for the bank that it was not possible to relieve Sri Sambasivan for assisting the appellant due to the administrative reasons. According to the bank, the said officer was involved in criminal cases, the C.B.I. was investigating into the same and in connection with the investigation he was on leave for many days. The learned single Judge therefore, directed the appellant to nominate any other officer in the bank as his defence representative within three weeks from the date of judgment. The judgment was delivered on January 24, 2000. It was further directed that if such a request was made by the appellant, it should be allowed. The learned single Judge also observed that the original petition was not being kept pending, since the enquiry had to be completed expeditiously.

3. Admittedly, appellant had not moved his little finger pursuant to the direction of the learned single Judge. The inquiring authority, third respondent, issued Annexure A-1 letter, dated February 29, 2000, intimating the appellant that he had not complied with the directions contained in the judgment and since the enquiry had to be completed expeditiously, the matter was being posted for hearing on March 13, 2000 at the premises of the Aroor Branch of the bank. He was offered an opportunity to verify the records so as to enable him to file the list of documents and witnesses. He was also asked to furnish the list, latest by March 8, 2000.

4. A certified copy of judgment is seen to have been received by appellant on February 22, 2000 and the present writ appeal was filed on March 7, 2000. Thereafter, appellant intimated the third respondent as per Annexure A-2 letter, dated March 13, 2000, that he had already filed writ appeal against the judgment in the original petition, that it was being posted for admission during the said week and hence the enquiry be kept in abeyance till the disposal of the writ appeal. It appears that the third respondent did not accede to the said request; instead, by letter, dated March 31, 2000, the appellant was furnished a copy of the recorded proceedings of the inquiring authority held on March 13, 2000, along with copy of the written brief submitted by the Presenting Officer for the bank and appellant was requested to submit his written brief within 15 days of receipt of the letter, so as to enable the said authority to finalise the enquiry report.

5. On behalf of the second respondent a statement, date4 May 15, 2000, was filed in the writ appeal wherein it is stated that the three weeks’ time granted to the appellant to nominate an officer having expired on January 24, 2000 and the appellant having not acted in accordance with the directions contained in the judgment, it was not open to him later to demur on the steps taken thereafter. It is also stated that Clause 68(2)(vii) of the Regulations contemplating the assistance of an officer for defending a delinquent officer was subject to “the paramount and overriding condition of the larger interest of the bank” and that the right conferred by the regulations in favour of an officer is not absolute in terms. It is further stated that the officer nominated by the appellant was already facing criminal prosecution by the C.B.I., investigation had been going on since October 1999 and every month he used to be absent from duty in connection with the enquiry for quite a few days and in such circumstances, it was not possible to relieve the said officer for assisting the appellant.

6. The stand taken by the bank cannot be said to be unreasonable. As can be seen from the statement, around 3000 officers are available in the bank and it was open to the appellant to nominate any officer other than the one nominated as per Exhibit P-5. He cannot insist that he should get the assistance of a particular officer to defend him. The regulations do not provide for or contemplate such an absolute right in favour of a delinquent. After all assistance is sought only to assist the delinquent in the enquiry. Hence we do not find any justification in the insistence of the appellant for a particular officer as his defence representative in the enquiry.

7. Be that as it may, at the time of hearing it was brought to our notice that the enquiry had already been concluded and the appellant had been given notice, dated July 19, 2000, enclosing a copy of the enquiry report and calling upon him to furnish his explanation to the report within 15 days of receipt of the same. Learned counsel for the appellant submits that the appellant had already received the notice. In such circumstances, it is open to the appellant to pursue his grievance while offering explanation to the said notice, dated July 19, 2000, issued by the bank. In the above circumstances, we do not find any merit in the writ appeal. The writ appeal fails and it is accordingly dismissed.

8. Before parting with the case, we may incidentally deal with an averment contained in the statement, dated May 15, 2000, filed on behalf of the bank. In connection with the criminal prosecution against an employee, it is stated thus :

“It is submitted that for all these days of absence for attending the CBI case against him he availed duty leave with salary and travelling and halting allowances.”

Learned counsel for the bank submits that it is the practice in the bank to extend all facilities like leave, travelling allowance, halting allowance, etc., to the accused employees even while facing criminal prosecution and attending the investigation thereon. We really fail to understand how employees facing criminal prosecution are in a position to enjoy duty leave with salary, travelling and halting allowance while called upon by the investigating agency for the purpose of investigation. We have no hesitation to observe that this is certainly against the interest of public service and also against larger public interest. This is a matter to be looked into by the respondents. We hope the bank will re-examine their policy in this regard and take appropriate steps without delay.

9. A copy of this judgment will be forwarded to the Managing Director of the State Bank of Travancore for appropriate action.

Balasubramanyan, J.

10. I am in complete agreement with the reasoning and conclusion of my learned brother. But I have added a few words in view of one aspect that came to our notice during the hearing.

11. It is stated in the statement filed on behalf of the State Bank of Travancore that officers who are defending criminal prosecutions against them personally are being sanctioned duty leave with travelling and halting allowances. That means that even if an officer is prosecuted for embezzlement of bank funds or for causing loss to the bank or for some other offence under the Indian Penal Code or the Prevention of Corruption Act in his individual capacity, he is being given salary and allowances from the funds of the bank. The bank is handling public money. We cannot see how the bank is entitled to or can finance the defence of an officer who is individually charged with a crime against the bank itself or otherwise. If the bank were being prosecuted and an officer is deputed to defend the bank, one can understand the sanctioning of duty leave, etc., to him. But, to pay allowances, etc., to an officer to defend himself against a prosecution against him personally, is not permissible. The bank’s funds which are public funds, cannot be frittered away by doling it out in such a fashion. The State Bank of Travancore is directed to take necessary steps to correct this anomaly and to ensure that the bank’s funds are not utilised for such purposes.


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