JUDGMENT
T.N. Vallinayagam, J.
1. The respondent in the writ petition is the writ appellant. The writ petitioner was an employee of the appellant-bank. In 1976, he was working at Shimoga. Certain allegations were made that the respondent-employee while functioning as a Branch Manager of Kadugondanahalli Branch, entered into a criminal conspiracy with one M. V. Vasudevan, proprietor of Fixwell Industries, Bangalore, for the purpose of cheating the bank. In pursuance of the conspiracy, the respondent-employee secured certain loan facilities, like, overdraft and DBC facility and permitted one M. V. Vasudevan to present bogus bills for discounting and in collusion with and with full knowledge of the bogus nature of bills, discounted the said bills and transferred the amount to the account of the said Vasudevan to enable him to withdraw the same. These allegations came to limelight to the appellant-bank when a criminal case in C.C. No. 7 of 1976, on the file of the Court of Special Judge at Bangalore came to be filed by the Central Bureau of Investigation against both the employee and the aforesaid Vasudevan. On the basis of such allegations, the appellant-bank suspended the respondent-employee on 3-12-1976. It was mentioned in the order of suspension stating “In view of certain allegations appearing against you, while you were working as Manager at Kadugondanahalli Branch, pending enquiry into the matter, you are hereby suspended from service of the bank with immediate effect vide Rule 35(i) of the Syndicate Bank Officer’s (Conditions of Service) Rules, 1966”. It transpires that the criminal case was tried and ultimately disposed of on 20-8-1990, after nearly 14 long years and the learned Special Judge, who tried the criminal case, acquitted the accused on the ground of benefit of doubt, though finding that the respondent-employee has committed certain irregularities in the matter of discounting of the bills.
2. The departmental enquiry was not held during the pendency of the criminal case. When the case was disposed of on 20-8-1990, the appellant-bank issued a charge-sheet on 5-4-1991. It is seen that the respondent-employee approached this Court by filing Writ Petition No. 12149 of 1991 seeking for a direction to pay back wages and other consequential benefits.
However, declining to entertain such a petition, this Court directed the enquiry to be completed within a period of 3 months from 5-8-1991. After applying for further extension of time, it is seen that the enquiry was concluded and a report was filed by the Enquiry Officer on 23-1-1992.
3. The respondent-employee filed yet another writ petition in Writ Petition No. 4468 of 1992, which was dismissed on 9-9-1992 holding that the respondent has got a right of appeal against any order that may be passed by the Disciplinary Authority and this Court declined to interfere at that stage.
4. Soon after the disposal of the case by the learned Special Judge, the suspension of the respondent-employee was revoked on 25-9-1990 without prejudice to the rights of the bank to initiate departmental/disciplinary action for the irregularities alleged against him as observed in the aforesaid judgment and the decision regarding his absence from duty from the date of his suspension to the date of reporting for duty and the payment or otherwise of back wages for the said period will be taken only after completion/disposal of disciplinary proceedings contemplated against him as above in terms of Regulation 15 of the Syndicate Bank Officer Employees’ (Discipline and Appeal) Regulations, 1976. This was followed by a charge-sheet issued on 5th April, 1991. It is necessary to mention in detail the charges, that is, the respondent-employee discounted or caused to be discounted documentary bills for sums aggregating to Rs. 69,085.79 to Sri M. V. Vasudevan, proprietor of M/s. Fixwell Industries, Bangalore :-
“(a) in excess of powers vested in you by the bank;
(b) without ensuring that the said bills were genuine and supported by the relevant LR/RR covering despatch of the goods in respect of which the said bills were drawn/discounted;
(c) despite the earlier bill discounted to the same party being returned unrealised; and
(d) even when the goods despatched in respect of some of the bills were rejected by the drawees concerned, since they had not placed such orders with the drawer of the bills.”
5. A preliminary enquiry was held on 5-4-1991 and after participating in the preliminary enquiry, the employee sent a letter under Annexure-H and another letter under Annexure-J was also sent by there respondent-employee calling certain documents to be produced at the time of enquiry. The enquiry started on 5-9-1991, was concluded on 23-11-1991. The enquiry report was submitted on 23-1-1992 under Annexure-L. The Deputy General Manager of the appellant-bank imposed a penalty of reduction of basic pay by one stage with cumulative effect in the time scale of pay with immediate effect and regarding the back wages, he held that the employee shall not be eligible for any benefits for the period during which he was placed under suspension. An appeal under Annexure-N was filed by the respondent-employee. In the appeal, apart from attacking the findings of the Enquiry Officer, the respondent-employee complained that no-production of the documents demanded by him in support of his defence, the inordinate delay in initiating departmental proceedings and non-providing of legal assistance in the form of an Advocate to conduct the proceedings are fatal to the enquiry. However, the appeal of the respondent-employee came to be dismissed on 9-6-1993.
6. Aggrieved by the said dismissal of the appeal, the respondent-employee filed the writ petition, out of which the present writ appeal has arisen. The learned Single Judge allowed the writ petition holding that the order of suspension was unauthorised and quashed the order of punishment in its entirety and directed payment of back wages with all consequential benefits from 3-12-1976 to September 1990. The learned Single Judge also held that (1) failure to grant the employee’s request to engage a legal practitioner for conducting enquiry is against the principles of natural justice; (2) the words “pending enquiry” means that initiation of enquiry is a condition precedent to resort to suspension and consequently, suspension is bad; (3) reliance upon Regulations of 1976 for acts and omissions said to have been committed in 1971 is bad in law; (4) non-production of the documents demanded by the employee is fatal to the enquiry; and (5) the inordinate delay nullifies the enquiry.
7. In the writ appeal, it was contended that there was no violation of the principles of natural justice in so far as providing of legal assistance to the delinquent employee is concerned, as there was no request by the employee for engaging the services of an Advocate. Rule 35(j) of the Rules enables the Competent Disciplinary Authority to place the delinquent official under suspension, pending comtemplation of enquiry, and consequently, the words ‘pending enquiry’ does not mean that suspension must be preceded by actual initiation of the enquiry. Regulations 12 and 15 of the Syndicate Bank Officer Employees’ (Discipline and Appeal) Regulations, 1976, specifically enabled the authorities to pass orders regarding back wages for the period of suspension and the quantum of punishment was a matter within the discretion of the Disciplinary and Appellate Authorities. The delay in holding departmental enquiry was due to the pendency of the criminal case in the said Court and which was not within the power or purview of the appellant-bank and its authorities. The acquittal of the delinquent employee by the learned Special Judge in the criminal case was only on the ground of benefit of doubt and in fact, a finding has been recorded that the employee was guilty of certain irregularities in the matter of discounting of bills. The Manual of Instructions on 1974 is only a replica of the instructions available even in 1966.
8. In defence of the judgment of the learned Single Judge, it was submitted on behalf of the respondent-employee that the Service Rules of 1966 having been repealed by another Service Rules in 1976, which has come into force on 1-1-1977, the attack made against the earlier rules must also fail and the provisions regarding repeal and savings will not be made applicable to the action and omissions said to have been done in 1977 when the suspension was made under the earlier rules. The words “pending enquiry” must mean that pending actual starting of an enquiry and that is what the rules contemplate. Though the original suspension order is silent about the criminal case, only the Appellate Authority refers to the same and makes it as a basis for the alleged suspension. The bank has not suffered any loss because the entire money has been recovered. When the Prosecuting Officer was a practicing Advocate before joining the bank, the defence should have also been given permission to engage an Advocate. The charges are violative of 1974 Manual Instructions and neither the said Manual was produced in the enquiry nor any evidence was brought to say that this Manual was in force in the year 1971. The Enquiry Officer while submitting his report, has not applied his mind to arrive at the conclusion. The act of commissions and omissions said to have been done by the delinquent employee, has been done only in the course of regular banking business inasmuch as no prejudice has been caused to the bank and hence the employee cannot be penalised. Nothing prevented the bank to conduct enquiry between 1971 and 1976 when only on a later date, the C.B.I. enquiry was started. In any event, the delay of 14 years has caused great loss an agony to the employee, who is now dead and whose legal representatives alone are fighting to get the benefits which the deceased employee was legally entitled to.
9. Before dealing with the respective contentions raised by the parties, it is necessary to analyse the undisputable facts. It cannot be disputed that the alleged irregularities came to limelight when the C.B.I. took action and filed a charge-sheet before the learned Special Judge, Bangalore. Relying upon Rule 35(j) of the Syndicate Bank Officers’ (Conditions of Service) Rules, 1966, a suspension order was issued. It is relevant to extract Rule 35(j) of the said rules, which reads as follows :
“(j) An Officer against whom allegations of misconduct are made may be suspended by the person authorised to take disciplinary action, if the continuance on duty of such Officer, is considered by such authority as not desirable in the interest of the Syndicate Bank pending enquiry. The suspension order may communicated either by letter, telegram or telephone.”
This rules contemplates that whenever allegations of misconduct are made, Officer may be suspended. The words “pending enquiry” occurring in the rule, cannot be construed as pending actual initiation of the enquiry. Such interpretation, if given, will take away the real purport of the rule. Suspension is not a punishment and it is made both in the interest of the employee as well as the employer, so that both may be made free to concentrate upon establishing the truth. So far as it is not a punishment, suspension as soon as allegations of misconduct are made, has been the core of the Industrial Law in this Country. There cannot be any two other opinion about the same.
10. By the time the charge-sheet came to be instituted, the amended Service Rules has come into force. In Annexure-D, which is a suspension order, though Rule 35(j) has been invoked, it has been made clear to wards the end of the order that proceedings contemplated will be conducted in terms of Regulation 15 of the Syndicate Bank Officer Employees’ (Discipline and Appeal) Regulations, 1976. Even in the charge-sheet Annexure-E, the same formula is followed and as far as we can see, there has been no objection by the delinquent employee in his reply regarding the application of both the rules.
11. In articles of charge, the statement of imputations are made. The following statement’s will explain in detail what the charges are :
———————————————————————-
Sl. Date Bill Bill Re : docu- Bank's
No. amount margin ments charge
kept
----------------------------------------------------------------------
1. 18-1-1971 12,642.30 3,790 No. RR Not placed
LR any orders
2. 1-2-1971 12,877.50 3,870 No. RR/ No material
LR received
3. 5-4-1971 1,184.65 - No margin Bill not
kept honoured
4. 15-4-1971 2,597.65 650 Revised
& 1,462.50 370 and
credited
to party's
A/c (when
the bill
was not
realised)
5. 27-5-1971 15,820 5,820 No. LR/RR Did not
place any
orders
6. 4-6-1971 6,150 4000 (re- No. LR/ No order
vised and RR placed
credited to the
party's A/c when
the bill was
not realised).
7. 4-10-1971 3,164.04 1014.80 - Goods
& 1,387.96 rejected and
cheque only
for
Rs. 970.83
received.
----------------------------------------------------------------------
12. In the reply to the charge-sheet, it was contended “I have not re-discounted the returned bills to the party. The advances made by me in excess of the sanctioned limit were well within the powers as Manager of the Kadugondanahalli branch. The total limit of discounting of bills was Rs. 60,000/- and I exceeded the limit only by Rs. 9,085.50 taking into account the securities offered to bank, which was approximately to the tune of Rs. 1,40,000/-. Therefore there was no risk although I exceeded the limit”. While replying to the 7 items, the delinquent employee would say that in respect of the first item concerning Anantha Krishna, proprietor of Anand Enterprises, there was no stipulation in the sanction to keep bills margin and there is no necessity for LR/RR as the party was local. Here, there was an indirect admission that the bills were not accompanied by LR or RR (though an explanation is given.) Though the employee would say that there is no stipulation in the sanction to keep bills margin, he has kept the margin of Rs. 330/- in bills margin account. Thirdly, there is no denial when it was specifically mentioned in the charge-sheet that the said Anantha Krishna did not know about M/s. Anand Enterprises and also did not place any orders with M/s. Fixwell Industries for purchase of any goods from them.
13. As far as the second item it concerned, there is no denial of the allegations except saving that the said G. S. K. Shanmugham was not examined as a witness in the criminal case.
14. The same explanation is given in respect of item No. 3 in respect of Sri S. Shanmugham. In respect of the next item and especially to the charge as to why the margin account was revised and credited to the Account of Vasudevan, the discounting party, when the bill remained unrealised, no explanation is given nor the charge was denied. In respect of the last three items, though they were specific allegations that in respect of these bills, no orders were placed by the consignee, indirectly meaning that they were all bogus bills, there has been absolutely no denial by the delinquent employee.
15. The explanation to the charge-sheet given under Annexure-G, as above, would lead one to the irresistible conclusion that all the allegations made by the bank have been either directly or indirectly admitted by the delinquent employee, the respondent herein. However, he would contend that the entire transaction thereof was a normal bank transaction. He would also say that there was no loss to the bank and the entire amount due including penal interest, have been record from M. V. Vasudevan without having had to file a suit for recovery thereof. But, this reply is found to be not correct in enquiry as it was found that the Account was adjusted by granting a clean loan to the Account holder. Therefore, there was only adjustment by granting another loan and consequently, the assertion of the delinquent employee that money has been recovered from Vasudevan proved to be false. In the further letter under Annexure-H, the delinquent employee has made it known that he is consciously aware of the allegation that the bills are bogus. This is what he says in Paragraph 2 of Annexure-H :
“On a perusal of the statement of imputations of misconduct I find that in cases of bills drawn by M/s. Fixwell Industries on (1) Sri. R. Anantha Krishna (2) Sai Electricals, bill is 23 and 25, the allegations pertain to the drawees not placing orders and thus the bills being bogus”.
The only defence made by him was that these allegations have been dismissed by the Court. But, that is not the way of explaining a charge. He would also admit in the said reply that “it is true that the honourable Court had observed certain irregularities”. In the enquiry conducted, the witness examined on behalf of the bank has given a detailed description of the alleged irregularity and exceeding of the powers by the delinquent employee. M.W. 1 would say “under MEX 10, I observe that the payment has not been realised from the drawee, whereas the Bank has recovered the same on 18-5-1973 by debitting the Current Account of the drawer (evidently after sanctioning the clean loan in that Current Account)”. The witness further confirms that the realisation of the bills was only by debitting the Current Account on 18-5-1973 after a lapse of more than 4 years. In the cross-examination of M.W. 1, the factum that bills were recovered only by debiting the Current Account, was reiterated. M.W. 1, in cross-examination by the defence Assistant of the delinquent employee, would say “As per the rules and guidelines a Manager is not expected to use his discretionary powers over extending credit facilities to any firm for which limits have been sanctioned by higher authorities”. He also would say “In case for any genuine reason the branch has exceeded the sanctioned limit the same should be reported to the competent authorities and their approval should be obtained.” It was reiterated in the re-examination by M.W. 1 “in any case where Manager exceeds his powers in respect of limits sanctioned by higher authorities it is not sufficient to merely record the fact where Manager’s discretionary powers exercised are only reported”. M.W. 2 was not cross-examined by the employee. M.W. 3, who spoke in detail about the bill discounting, bill margin keeping, would say in cross-examination “at the relevant time Sri M. C. Bhat was the only Officer who was also the Manager of the branch and that in all the branches it is only the Manager who can take a decision in the matter of discounting the bills”. M.W. 3 would further state that “as far as he remembers the outstanding liabilities were declared by arranging clean loan to the party by telephonic instructions/trunk call from Head Office”. M.W. 4, who was working as a clerk, also spoke in detail about the 7 instances of bill discounting. There was no serious cross-examination by the delinquent employee of this witness.
16. After the witnesses for the bank were over, the delinquent employee was asked in terms of the provisions of Regulation 6(15) of Regulations, 1976. The delinquent employee submitted that he denies all the allegations contained in the charge-sheet. He would offer to give in writing his submissions later. He also said that he does not have any witness. However, he wanted to make some oral submissions. In his oral submissions, he would say “I have acted in good faith and that the credit facilities were being extended to the party for genuine needs after taking the required care and caution”. He would add “In any case as branch Manager it was my opinion that to immediately collect the outstanding and to stop discounting would put the entire financial facility extended by the bank in jeopardy, because the credit facilities are to be cleared from the profits generated by the unit and if all the facilities were to be stopped then the unit would close down and the liabilities would continue ….. It cannot be said that bills should not be discounted under DBD without the LR/RR. Depending upon the nature of the transactions bills without LR/RR also can be discounted … In addition the party was also enjoying CBD limits under which limit also I could have discounted the bills without LR/RR”. He would also say “As regards the confusions of accounting the bills under DBD limit, the bills which could have been classified under CBD head of account were erroneously made without any intention of causing any accommodation to the party”. It is significant to note here that it is not his case that sanction has, in fact, been granted by the bank or his actions were ratified by the Head Office at any point of time. One can understand if he contends that there were letters ratifying his actions by the Head Office and approving his action in exercise of his power to exceed the limits granted to a party, in particular, M/s. Fixwell Industries. This omission of such an explanation would go a long way to show that all the allegations made against him have been practically admitted. Therefore, the inevitable inference is that the allegations have been admitted, but an explanation has been given for commission and omission of such acts. Therefore, the question is whether such explanation is acceptable or not.
17. The Enquiry Officer has found his explanation not acceptable and therefore concluded after detailed discussion that the charges against the delinquent employee have been found to be true. On Charge No. 1, the Enquiry Officer has held “Sri M. C. Bhat has exceeded the limit sanctioned to the party. That even assuming that he had exercised his discretionary powers while exceeding such limits, the Manual of Instructions and other guidelines from Head Office are very clear which prohibit the Manager from exercising his discretionary powers when credit facilities are extended and sanctioned from Head Office directly, therefore the first charge that Sri M. C. Bhat has exceeded the limit is proved beyond doubt.” In respect of the second charge, the Enquiry Officer would find “that it can be seen that many of the bills were outstanding for more than two years and they have been realised only after debiting the current account of the party maintained at the branch. That when once the Manager comes to know that the party is not maintaining/carrying on transactions as per the stipulated conditions, it is his bounden duty of protect/safeguard the interests of the bank. That from the transactions mentioned above, in no way one can say that Sri M. C. Bhat protected the interests of the bank instead the bank was exposed to a grave financial loss and all the liabilities of the party could be wiped out only by sanctioning another loan for the entire amount that was outstanding. Therefore, the Charge No. 2 that Sri M. C. Bhat did not ensure that the said bills were genuine is proved”. In respect of the third charge, the finding of the Enquiry Officer is “That even as per the Manual of Instructions, the bill margin amount has to be retained in the same account till the bills were realised. However, in many instances the bill margin amount has been re-credited to the OD account of the party even before the bills were realised. That the contention of the CSDE that he had reported the exceedings of the limit that was sanctioned by Head Office in ADV 95 does not hold water because reporting by way of statements does not amount to seeking specific ratification”.
18. After the discussion, as mentioned above, the Inquiring Authority has held that the articles of charge levelled against the delinquent employee are proved. The Deputy General Manager, Syndicate Bank, accepting the finding of the Enquiry Officer, held “I am convinced that the charge-sheeted employ had exceeded his powers vested in him while he was the Manager at Kadugondanahalli branch and had discounted further bills despite the fact that the earlier bills were returned unrealised and that the Inquiry Officer has correctly held that CSOE guilty of the charges levelled against him”. He imposed the punishment of basic pay being reduced by one stage with cumulative effect in the time scale of pay with immediate effect. In so far as the payment of the backwages in concerned, this is what he says. –
“It is well settled in law that when criminal case is filed and in progress against the employee, the Management cannot conduct parallel departmental inquiry in the same matter and due to the above, the Management was constrained to stall the departmental action against him till the disposal of the criminal case. It is also on record that within quite a reasonable time, the Management has concluded the departmental inquiry after the criminal case against him was disposed of”.
19. As against this, the delinquent employee filed an appeal to the General Manager on 23-4-1993. In the memorandum of appeal also, the delinquent employee has not mentioned that his action of exercising powers to exceed the limit has been approved by his higher ups. The Appellate Authority also confirmed the order of the lower Authority holding thus :
“The appellant had not insisted at any point of time that M/s. Fixwell Industries should produce LR/RR in respect of the bills submitted by them for discounting. The records also reveal that the appellant had not made any attempt to verify by any means the value of the bills submitted for discounting. When the bills were returned unpaid, no action was taken by the appellant to adjust the bills. Further, the amount transferred to Bills Margin Account while discounting the bills in question was transferred to OD Account invariably before the bills discounted were realised. This reflects the undue accommodation provided by the appellant to M/s. Fixwell Industries. The OD limit was exceeded by allowing overdrawals beyond the sanctioned limit”.
20. Aggrieved by such a finding, the delinquent employee approached this Court to quash the orders of the Deputy General Manager and the General Manager under Annexures – M and P respectively and also praying for full salary emoluments and other service benefits for the period of suspension. The learned Single Judge allowed the writ petition agreeing with the contentions raise by the delinquent employee. The aggrieved bank has come up with this appeal before us.
21. The finding of the learned Single Judge that “as no enquiry preliminary or otherwise was pending, nor any Enquiry Officer having been appointed by the bank nor charge-sheet having been issued against the petitioner by the employer or the Bank Authorities till or before 3-12-1976, the order of suspension itself was unauthorised and non set in the eye of law”, is first challenged before us. This finding of the learned Single Judge is not sustainable for the following reasons.
22. Annexure-C, which is the order of suspension, mentions “In view of certain serious allegations appearing against you …. pending enquiry into the matter, you are hereby suspended from service ..,” Rule 35(i) of the Syndicate Bank Officers’ (Conditions of Service) Rules, 1966, reads as follows :
“(j) An Officer against whom allegations of misconduct are made may be suspended by the person authorised to take disciplinary action, if the continuance on duty of such Officer, is considered by such authority as not desirable in the interest of the Syndicate Bank, pending enquiry. The suspension order may be communicated either by letter, telegram or telephone.”
The corresponding new rule under the Syndicate Bank Officer Employees’ (Discipline and Appeal) Regulations, 1976, reads as follows :
“12. (1) An Officer employee may be placed under suspension by the Competent Authority –
(a) where a disciplinary proceeding 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”.
Incidentally, it is necessary to point out that though this new rule was brought to the notice of the learned Single Judge, he appears to have not considered the same. The new regulation is only explanatory of the old regulations and does not, by itself, make the old Regulation 35(j) nugatory.
The submission made by the appellant-Bank was that the power to suspend was a power available to the Disciplinary Authority in aid of the contemplated enquiry. Further, the words “pending enquiry” do not necessarily mean that regular departmental enquiry should have been contemplated. It is sufficient if an enquiry was contemplated. This submission is reasonable and acceptable and the submission to the contra by the delinquent employee that in the absence of any enquiry having been started, the order of suspension is invalid, is not a reasonable argument. It is against the basic concept of suspending an employee, pending enquiry, not only under the relevant rules in this case, but also against various provisions of the Service Regulations. In fact, the Supreme Court in The Depot Manager, Andhra Pradesh State Road Transport Corporation, Hanumakonda v. V. Venkateswarulu and Another, , has held “the Appointing Authority or any other authority mentioned in Regulation 18 can place an employee under suspension who is facing investigation or trial on a criminal charge”. Though this observation was made in the context of deciding the payment of salary during the period of suspension, the view of the Supreme Court is made clear in the above observations.
In The Management of Hotel Imperial, New Delhi and Others v. Hotel Workers’ Union, , on the question of suspension, the Supreme Court has held thus :
“It was now well-settled that the power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay wages during the so-called period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay”.
Following the above decision, a five Judges’ Bench of the Supreme Court, in T. Cajee v. U. Jormanik Siem and Another, has held thus
“It was specifically said there that if the master does so, namely, forbids the servants to work and thus is fact suspends him as an interim measure he will have to pay the wages during the period of interim suspension. These wages or payment for the work done or emolument of the office held, could not be withheld in whole or in part unless there is power to make an order of interim suspension either in the contract of employment or in the statute or the rules framed thereunder. The effect of that decision is that in the absence of such power the master can pass an order of interim suspension but he will have to pay the servant according to the terms of contract between them. In the present case, the terms and conditions communicated to the respondent do not indicate an express term giving power to the District Council to make an order of interim suspension while inquiring into the conduct of the respondent with a view to his ultimate removal. No statute or rules framed thereunder have been brought to our notice which authorised interim suspension having the effect of withholding remuneration in whole or in part. In the circumstances therefore though an order of interim suspension could be made against the respondent while inquiry into his conduct with a view to his ultimate removal is going on, his remuneration according to the terms and conditions communicated to him cannot be withheld unless there is some statute or rules framed thereunder which would justify the withholding of the whole or part of the remuneration. So far therefore as there is no statute or rule thereunder the remuneration cannot be withheld from the respondent even though an order of interim suspension, in the sense he is told not to do the work of his office, may be made against him. The order of interim suspension therefore passed in this case on July 7, 1959, would be valid subject of course to the respondent being paid the full remuneration unless the District Council can legitimately withhold the whole or part of it under some statute or rules framed thereunder, there being undoubtedly no express contract to that effect in this case”.
In O. P. Gupta v. Union of India and Others, , the Supreme Court has held “suspension of a Government servant, pending departmental enquiry, is not by way of punishment”. Therefore, the effect of law on suspension, “pending enquiry”, is that suspension of an employee can be made pending enquiry or in contemplation of enquiry or pending initiation of enquiry. The words “pending enquiry” as found in Section 35(i) of 1966 Rules, cannot be held to mean “actual pendency of an enquiry”. In fact, to clear doubts, as already pointed out, it was made clear in Regulation 12 of the 1976, Regulations “where a disciplinary proceeding against him is contemplated or is pending”. While setting aside the order of suspension, the learned Single Judge relied upon the judgment of the Supreme Court in Management of Ranipur Colliery under M/s. Equitable Company Ltd. v. Bhuban Singh . But, that was a case where the question, which was considered, was whether the expression “pending enquiry” in relevant standing orders of the company included the enquiry of the Industrial Tribunal under Section 33 of the Industrial Disputes Act. In that case Clause 27 of the standing orders was considered. Clause 27 reads thus :
“An employee may be suspended, fined or dismissed without notice or any compensation in lieu of notice if he is found to be guilty of misconduct, provided suspension without pay, whether as a punishment or pending enquiry, shall not exceed ten days”.
While dealing with Clause 27, the Supreme Court considered that if suspension without pay is for more than 10 days, even though it may be pending orders of industrial disputes, before the Tribunal under Section 33, there is a breach of Section 27 of the standing orders. Finally, the Supreme Court has held “In such a case if the standing orders provide that suspension without pay will not be for more than a certain number of days, the enquiry must either be completed within that period or if it goes beyond that period and suspension for any reason is considered necessary, pay cannot be withheld for more than the period prescribed under the standing orders”. Therefore, it is seen that the case relied upon by the learned Single Judge has no relevance to the point in dispute. The learned Single Judge has held that the two conditions precedent for passing an order of suspension, to writ, (1) pendency of enquiry and (2) it was not considered to be in the interest of the bank to continue the petitioner or the concerned employee on duty, have not been fulfilled. In so far as the first condition is concerned, we have already found that the pendency of enquiry has been wrongly interpreted by the learned Single Judge and we have made it clear, to repeat that pending enquiry shall mean that pending contemplation of enquiry. Therefore, the first condition is satisfied. In so far as the second condition is concerned, it cannot be said that the bank has not considered that the continuation of the petitioner in the job is against the interest of the bank. Prima facie, it should be held that when serious allegations are made against the employee, it is in the interest of both the employee and the bank that the employee is temporarily kept out of service. In our opinion, such action would definitely serve and safeguard the interest of both the delinquent employee and the bank.
23. Therefore, we hold that the order of suspension has been validly passed under the regulations and consequently, set aside the finding of the learned Single Judge that the suspension was unauthorised and non est in the eye of law.
24. The next objection to the order of the learned Single Judge, as put forth by the learned Counsel for the appellant, is that in view of the saving clause in the new Regulations of 1976, any action taken under the old Regulations of 1966, is not valid and binding. This finding is attacked on the ground that the interpretation placed by the learned Single Judge on Rules 12, 15 and 22 has taken away the object sought to be achieved by the regulations and thereby resulted in failure of justice. It is true that the suspension in this case has been ordered under Rule 35(j) of old Regulations of 1966. In our opinion, suspension can be sustained even under the old regulations. However, let us consider the effect of the new regulations.
25. The new regulations have been made in exercise of the powers conferred by Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. Under Regulation 1(2) of the new Regulations, the new regulations have come into force on 1-1-1977. Regulation 22(2)(a) and (d) of the Syndicate Bank Officer Employees’ (Discipline and Appeal) Regulations, 1976, read as follows :
22. Repeal and saving :
(1) …………..
(2) Notwithstanding such repeal. –
(a) any order made or action taken under the provisions so repealed shall be deemed to have been made or taken under the corresponding provisions of these regulations :
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(d) any proceedings which have already been initiated but not yet been completed at the commencement of these regulations shall be continued and disposed as far as may be, in accordance with the provisions of these regulations, as if such proceedings were proceedings under these regulations.”
A prima facie perusal of the new regulations makes it clear that even in respect of action taken under the old regulations, these regulations shall be deemed to apply.
26. Reliance was placed by the learned Counsel for the respondents on the decision in Prafulla Kumar Swain v. Prakash Chandra Misra and Others 1993 AIR SCW 671 : 1993 Supp. (3) SCC 181 to urge that Rule 22(2)(d) cannot be retrospective in nature and they will not apply to the order of suspension. But, it is seen in the said case that Rule 24 was sought to be interpreted. Rule 24 makes it clear that the appointments already made or orders issued in accordance with the provisions of any rules, shall not be affected. In fact, in the case, it was made clear that Rule 24 has no application. The Court held “Therefore, if any right has been acquired or any privilege had accrued, that would remain unaltered.” In this case in particular, the suspension having been made earlier, is protected by Rule 22(2)(d) and the above case has no application to the facts of the present case. In fact, while quoting the provisions of clauses (a) and (e) of Section 6 of the General Clauses Act, 1897, the Supreme Court held that the repeal shall not revive anything not in force or affect any investigation. Clause 6 of the General Clauses Act only supports the case of the appellant. There is no question of reviving anything not in force or reviving anything not existing at the time at which the repeal takes effect. The learned Judge has considered Rule 12(1) and (2) of the regulations. Though he considered clause (a) to the effect that an Officer may be placed under suspension where a disciplinary proceedings against him is contemplated and also clause (b) which relates to investigation, enquiry and trial of criminal offence and though he further held that Rule 35(j) is analogous to Regulation 12(e), he would, however, hold that the suspension order dated 3-12-1976, had been passed without there being any disciplinary proceedings or enquiry relating thereto, pending or in contemplation even. With respect, we disagree. It cannot be said that there is not even a contemplation of the enquiry because admittedly the suspension is preceded by the filing of the case before the learned Single Judge on the allegations made against the employee. In our opinion, the new rule will apply and Rule 12(1)(a) is enough to cover the suspension made under the earlier regulations and even otherwise, suspension pending enquiry and contemplated under old Rule 35(j) has to be interpreted to mean the word “enquiry” as “contemplation of enquiry”. Otherwise, the entire object of the regulations and basic tenets of service laws will not have any meaning. Therefore, the findings of the learned Single Judge in this regard has to be set aside and the same is hereby set aside.
27. The next point considered by the learned Judge is whether the order of punishment is vitiated by violation of principles of natural justice in as much as no legal assistance had been given to the delinquent employee. To appreciate this point, it is necessary to consider the facts relating to this aspect.
28. In reply to the charge-sheet dated 5-4-1991 under Annexure-E, the delinquent employee has sent his reply under Annexure-J wherein this is what he says in Paragraph 15 :
“15. I also further submits that despite this written statement of defence, if any enquiry is held, I may be given the assistance of a Legal Practioner to defend me in the enquiry having regard to the facts of the case, and the earlier Court proceedings, I may be permitted to take the assistance of the Lawyer, as the charges involve investigation of facts and also to urge legal questions in support of my defence to substantiate that I am innocent. This is only possible if I am given an opportunity to be defended by a Legal Practitioner. Otherwise, I will be prejudiced and justice will not be there”.
The proceedings of the enquiry dated 5-9-1991 shows that one Mr. K. V. Shenoy was appointed as the Presiding Officer and the delinquent employee submitted that he knows that he can take the assistance of any other officer employee to defend his case in the inquiry proceedings as his Defence Assistant. However, he would defend his case during the preliminary enquiry proceedings by himself without seeking the assistance of any other officer employee of the bank. However, he also submitted that he would take up with the Disciplinary Authority for permitting him to defend his case through a lawyer during regular session of the inquiry. On 16-9-1991, the Presenting Officer was changed and one Mrs. Meera Vasanth, APM, IRC, Zonal Office, Bangalore, took up as Presenting Officer on behalf of the Management. At this stage of the inquiry, the delinquent employee made it clear “he would be defended during the enquiry by Sri S. Anikar, Manager, Chilamathur Branch, as his Defence Assistant”. The enquiry went on from 16-9-1991, 17-9-1991, 18-9-1991, 10-10-1991, 12-10-1991, 14-10-1991, 22-11-1991 and 23-11-1991 when the enquiry proceedings were completed. On none of these days, the delinquent employee felt handicapped or asked for legal assistance through a Lawyer, which right he has reserved even at the beginning of the enquiry itself. Even in the oral submissions made before the Enquiry Officer, he did not complain that he was not provided with legal assistance. Only in his appeal presented on 23-4-1993 against the order of the Disciplinary Authority, he has mentioned “I am entitled to be defended by an Advocate of my choice”. But, even in the memorandum of appeal, he has not whispered any where that he had asked for such assistance and it was negatived except refereeing to his reply dated 21-8-1991. What has not been asked for, cannot be given and the point which has not been raised, cannot be answered. Even in the long 20 pages memorandum of appeal filed by him, he has not even indicated that he was prejudiced by the fact that all legal questions and complicated principles of law were involved and, therefore, he was handicapped by non-providing legal assistance to defend his case. No doubt, this song is repeated in the writ petition filed before this Court and the point is once again urged before us by the learned Counsel for the respondent. At the outset, this point can be negatived as admittedly there was no request by the delinquent employee. Even the Bible says “Ask, thou shall be given, knock, the door shall be open”. Having remained inactive and having not asked for legal assistance knowing fully well his rights, it is certainly not open to the delinquent employee to come now and complain that the enquiry is vitiated by non-providing legal assistance to him. In fact, we have held in M/s. Mysore Press (P) Limited v. Workmen of M/s. Mysore Press (P) Limited, , thus :
“12 …. As pointed out by us, there was not even a request made by the workman to the Enquiry Officer to provide him the assistance of a lawyer. In the absence of any such request it is not necessary for the management to volunteer the services of an Advocate to the delinquent employee. We are satisfied that at the very initial stage the workman was satisfied with the provisions of the assistance of Sri C. R. Ganapathy and he has raised any objection at any point of time nor he complained of want of legal assistance in conducting the enquiry. Only ultimately when he has found that the enquiry went against him and an order of dismissal has been passed against him, thought it fit to raise this point, in our opinion, the workman cannot have any grievance at all in this regard. Therefore, the finding of the learned Single Judge that non-provision of legal assistance to the enquiry nullifies the enquiry is not correct and we set aside such finding.
Thus, the finding of the learned Single Judge that there was denial of reasonable opportunity to defend by non-providing of legal assistance, has to be set aside and the same is hereby set aside.
29. The next point urged is against the finding of the learned Single Judge that there is complete misapplication or non-application of mind by the Enquiry Officer as well as by the Disciplinary Authority and the Appellate Authority. One of the grounds found favour with the learned Judge was that the employee was charged under Manual of Instructions dated 25-5-1974 for the alleged action said to have been done by him in 1971-72.
30. A perusal of the enquiry report would reveal that the Inquiring Authority has taken pains to first deal with the statement of imputations of misconduct, (2) lapses/irregularities observed on the part of the employee as submitted by the prosecution, (3) the detailed analysis of the evidence adduced on behalf of the management, (4) the evidence adduced on behalf of the defence, (5) the oral brief submitted by both the Presenting Officer as well as the delinquent employee and finally, after detailed analysis of all the above items under different heads, he has given his findings. It cannot be said that the Inquiring Authority has not applied his mind. In fact, according to us, he has applied his mind to every details analysed the evidence. The Disciplinary Authority, while accepting the findings of the Enquiry Officer, had considered the charges levelled against him and analysed the records produced before the Inquiring Authority and holding that the enquiry was properly held, accepted the finding of the Enquiry Officer. Here also, it cannot be said that there has been misapplication of mind. Even the Appellate has considered the submissions made in the appeal memorandum filed by the delinquent employee and passed a considered and reasoned order. No doubt, it is true that we are not sitting over appeal on the finding of either the Enquiry Officer or the Disciplinary Authority or the Appellate Authority. However, as this point was urged before us by the learned Counsel for the respondent, despite our disinclination, we went through the report of the Enquiry Officer and orders of the Disciplinary Authority as well as the Appellate Authority and are satisfied that they have applied their mind in coming to the conclusion and they have acted fairly and correctly. Therefore, the finding of the learned Single Judge that there has been misapplication or non-application of mind, is not correct.
31. Much is said about the Manual of Instruction dated 25-5-1974. But, what has been omitted to be noted was that even under the earlier rules, in Rule 29, there is a specific reference to the Manual of Instructions. To quote the particular words “in shall be deemed to have complete knowledge of the Manual of Instructions of the Syndicate Bank and all its amendments upto date and shall strictly conform to and abide by such rules, regulations, directions and instructions including these rules”. Therefore, it is not as if the Manual of Instructions was born in 1974 and long after the alleged acts and omissions of the delinquent employee. Manual of Instructions were there even earlier and that is how, a reference has been made in the Officers Conditions of Services Rules, 1966. Therefore, in our opinion, it is too purile to contend that mere mention of the year 1974 after the words “Manual of Instructions” would nullify the enquiry report in as much as Manual of Instructions of 1974 will not apply to the commission and omission done earlier to 1974. So, the findings in this regard of the learned Judge is also liable to be set aside and the same is hereby set aside.
32. Finally, the learned Single Judge has considered the long delay in initiation of the disciplinary proceedings and held the same against the appellant. It cannot be denied, as rightly contended by the learned Counsel for the appellant herein, that the disciplinary proceedings could not be initiated since criminal case was pending and if initiated, would be causing prejudice to the delinquent employee. In fact, it was further submitted that to co-operate with the Management for speedy disposal of the departmental proceedings, the petitioner filed Writ Petition No. 12149 of 1991 seeking the quashing of the charge-sheet dated 5-4-1991. A learned Single Judge of this Court passed an order on 5-8-1991 upholding the action taken by the bank in the following terms :
“Having regard to the facts and circumstances of the case, this writ petition is disposed of with a direction to the respondent-bank to hold and conclude disciplinary proceedings within a period of three months from today. The petitioner is directed to give all active co-operation without unnecessarily delaying the proceedings. If the disciplinary proceedings is concluded, the respondent-bank will pass an appropriate order forthwith.”
33. However, the learned Counsel for the respondents relied upon an unreported decision of this Court in Writ Appeal No. 2185 of 1990 decided on 12-11-1990, wherein a Division Bench of this Court has held that a charge laid after 9 or 10 years had become stale. But, that was a case where the learned Single Judge had set aside the second charge on the ground that in the earlier enquiry, a punishment by way of warning was imposed and consequently, the second charge would not lie. This view was upheld by the Division Bench and an observation has been made that a person cannot be expected to remember every thing regarding a transaction which took place practically 9 or 10 years ago. The facts of that case will not apply to the facts of the present case as we find that there has been no complaint by the delinquent employee that the transaction referred to, on which the accusations were made, were all not remembered by him. On the other hand, the documents were made available and the delinquent employee had every opportunity to explain away those documents and his action in exceeding his power. Therefore, the unreported judgment will not help the delinquent employee in any fashion.
34. Because of the unsettled legal position as to whether departmental enquiry in respect of the same charge, which is pending in the Criminal Court, can be initiated especially when the criminal case is pending, the appellant bona fide thought that they cannot initiate the enquiry. Therefore, inevitable delay has occurred which cannot be said to be a reason for nullifying the enquiry. It is also seen that throughout the grounds of attack of the enquiry report and the orders of the Disciplinary or the Appellate Authority, the enquiry is not sought to be nullified on the ground of delay by the delinquent employee himself. Laws delays are inevitable and this is one case where the delay has occurred without anybody wishing for the same.
35. Our attention was drawn by the learned Counsel for the appellant to the decision in O. P. Gupta case, supra, and in particular, reference was sought to be made to the suspension in that case, which was continued for 11 years and departmental proceedings can be pending for 20 years. In that case, such action on the part of the employer was commented upon by the Supreme Court adversely. But, the facts of that case are certainly different from the facts of the present case. There, pending departmental enquiry, an Officer was suspended in 1959, dismissed from service in 1964 and reinstated by the President of India in 1970. In 1972, he was compulsorily retired and this order of compulsory retirement was set aside by a learned Single Judge of the High Court. In 1978, he attained the normal age of superannuation. In that case, it was seen that the department was very slow in initiating enquiry and they relied upon a remark said to have been made in his confidential report in 1957. The Court rightly held that there was delay on the part of the department in conduction the enquiry. But, this case is not certainly applicable to the facts of the present case.
36. Another case, P. L. Shah v. Union of India, was brought to our notice. In that case, a clerk was suspended in 1975 as a result of the institution of a criminal prosecution against him and he continued to remain suspended till 18-1-1989. When the case came to be disposed of by the Supreme Court on another point, viz., payment of subsistence allowance, it was argued that because of the pendency of the criminal case for 14 years, the enquiry could not be concluded and having taken that fact into consideration only, the Supreme Court has not directed the employer to hold enquiry during pendency of the criminal proceedings. It is seen that the Supreme Court did not desire any conduct of enquiry during the pendency of the criminal proceedings, which was continued beyond 14 years. This only justifies the bona fide belief of the appellant in this case that they hesitated to conduct enquiry because of the pendency of the criminal case and in our opinion, such bona fide decision is justified.
37. Another attack was that in the absence of any loss to the bank, the employee is not liable to be punished for violation of some regulations. But, the Supreme Court has, in Disciplinary Authority-cum-Regional Manager and Others v. Nikunja Bihari Patnaik, held thus :
“7. It may be mentioned that in the memorandum of charges, the aforesaid two regulations are said to have been violated by the respondent. Regulation 3 requires every Officer/employee of the Bank to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank Officer. It requires the Officer/employee to maintain good conduct and discipline and to act to the best of his judgment in performance of his official duties or in exercise of the powers conferred upon him. Breach of Regulation 3 is ‘misconduct’ within the meaning of Regulation 24. The findings of the Enquiry Officer which have been accepted by the Disciplinary Authority and, which have not been disturbed by the High Court, clearly show that in a number of instances, the respondent allowed overdrafts or passed cheques involving substantial amounts beyond his authority, true, it is that in some cases, no loss has resulted from such acts. It is also true that in some other instances, such acts have yielded profit to the bank but it is equally true that in some other instances, the funds of the bank have been placed in jeopardy; the advances have become sticky and irrecoverable. It is not single act; it is a course of action spreading over a sufficiently long period and involving a large number of transactions. In the case of a bank – for that matter, in the case of any other organisation every officer/employee is supposed to act within the limits of his authority. If each officer/employee is allowed to act beyond his authority, the discipline of the organisation/bank will disappear; the functioning of the bank would become chaotic and unmanageable. Each Officer of the bank cannot be allowed to carve out his own little empire wherein he dispenses favours and largesse. No organisation, more particularly, a bank can function properly and effectively if its Officers and employees do not observe the prescribed norms and discipline. Such indiscipline cannot be condoned on the specious ground that it was not actuated by ulterior motive or by extraneous considerations. The very act of acting beyond authority – that too a course of conduct spread over a sufficiently long period and involving innumerable instances – is by itself a misconduct. Such acts, if permitted, may bring in profit in some cases but they may also lead to huge losses. Such adventures are not given to the employees of banks which deal with public funds. If what we hear about the reasons for the collapse of bearings bank is true, it is attributable to the acts of one of its employees. Nick Leeson, a minor officer stationed at Singapore, who was allowed by his superiors to act far beyond his authority. As mentioned hereinbefore, the very discipline of an organisation and more particularly, a bank is dependent upon each of its employees and officers acting and operating within their allotted sphere. Acting beyond one’s authority is by itself a breach of discipline and a breach of Regulation 3. It constitutes misconduct within the meaning of Regulation 24. No further proof of loss is really necessary though as a matter of fact, in this case there are findings that several advances and overdrawals allowed by the respondent beyond his authority have become sticky and irrevocable. Just because, similar acts have fetched some profit – huge profit, as the High Court characterises it – they are no less blame worthy. It is wrong to characterise them as errors of judgment. It is not suggested that the respondent being a Class-I Officer was not aware of the limits of his authority or of his powers. Indeed, Charge No. 9, which has been held established in full, is to the effect that in spite of instructions by the Regional Office to stop such practice, the respondent continued to indulge in such acts. The Enquiry Officer has recorded a clear finding that the respondent did flout the said instructions and has thereby committed an act of disobedience of awful orders. Similarly, Charge No. 8, which has also been established in full is to the effect that in spite of reminders, the respondent did not submit ‘Control Returns’ to the Regional Office. We fail to understand how could all this be characterised as errors of judgment and not as misconduct as defined by the regulations. We are of the opinion that the High Court has committed a clear error in holding that the aforesaid conduct of the respondent does not amount to misconduct or that it does not constitute violation of Regulations 3 and 24.”
In the present case, the finding being one of violation of regulations, it cannot be assailed as wrong.
38. Another argument was advanced with regard to punishment rendered by the authority in not granting full salary. The authority has come to the conclusion that the employee is not entitled to full salary during the period of suspension. In fact, the Supreme Court has, in State of Orissa and Others v. Bidyabhushan Mohapatra , considered the power of the Court in interfering with the decision of the Inquiring Authority, in the following words :
“But the Court, in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the Punishing Authority, if there has been an enquiry consistent with the prescribed rules, are not justifiable; nor is the penalty open to review by the Court. If the order of dismissal may be supported by any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant.”
39. The final argument was that in any event, the period of suspension, which is a very long one, should have been treated as one of duty and on re-instatement, the employee should have been paid full salary. Regulation 15(3)(b) of the Regulations of 1976 reads as follows :
“15. Pay, allowances and treatment of service on termination of suspension :
(1) ………..
(2) ………..
(3) (a) …….
(b) in a case falling under sub-regulation (2), the period of absence from duty shall not be treated as a period spent on duty unless the Competent Authority specifically directs, for reasons to be recorded in writing, that it shall be so treated for any specific purpose.”
The Disciplinary Authority has passed the following order :
“I am of the view that though he was under suspension for quite a long time, it is a fact that initially he was suspended pending inquiry only and the same was prolonged for a long time due to the registration of criminal case by the Central Bureau of Investigation against him. It is well-settled in law that when criminal case is filed and in progress against the employee, the management cannot conduct parallel departmental inquiry in the same matter and due to the above, the management was constrained to stall the departmental action against him till the disposal of the criminal case. It is also on record that within a quite reasonable time, the management has concluded the departmental inquiry after the criminal case against him was disposed of. In view of the above, I do not find any justification to pay him back wages or salary during the period of his suspension and treat his absence during that period as on duty and he shall not be eligible for any benefits for the period he was placed under suspension.”
This is attacked as wrong by the learned Counsel for the respondents.
40. The Supreme Court, in Venkateshwarlu’s case, supra, has held thus :
“The competent authority is bound to examine each case in terms of Regulation 21(1) or 21(2) and in case it comes to the conclusion that the employee concerned is not entitled to full salary for the period of suspension then the authority has to pass a reasoned order after affording an opportunity to the employee concerned. In other word, it is open to the competent authority to withhold payment of full salary for the suspension period on justifiable grounds. The employee concerned has to be given a show-cause notice in respect of the purposed action and his reply taken into consideration before passing the final order.”
41. In this case, the condition prescribed by the Supreme Court in the above case, has been fully complied with and a reasoned order has been passed by the Disciplinary Authority as to why the period of suspension was not treated as a period of suspension was not treated as a period spent on duty. Therefore, the finding recorded by the learned Single Judge on this aspect is also liable to set aside and the same is hereby set aside.
42. Another objection taken was regarding non-production of documents sought by the delinquent employee. This objection also has to fall to the ground for the following reasons.
(a) Under Annexure-J, the delinquent employee has asked for 7 documents. The proceedings of the Enquiry Officer dated 5-9-1991 shows that the delinquent employee was permitted to inspect the original documents in the presence of the Presenting Officer or in the presence of such other Officers. The Presenting Office also represented that he is ready with photostat copies of all the documents and the same have been handed over to the charge-sheeted officer/employee and the charge-sheeted officer/employee confirmed the receipt of the same. On 16-9-1991, if was recorded by the Enquiry Officer that the Presenting Officer has made available all the documents sough for by the delinquent employee except the documents under Items 1, 3 and 6. This is not denied by the delinquent employee. Item 1 was sought to be relied upon by the delinquent employee to prove that he sought instructions by informing the return of the discounted bills to the Competent Authority. Item 3 relates to details of bills discounted under CBD limits to prove that bills referred to in charge-sheet could have also been discounted. Item 6 is an investigation report to effectively cross-examine the Investigating Officer. It was made clear by the Presenting Officer that these documents are not available either due to non-availability immediately or they were not able to produce the same. But, the relevancy for which the documents were asked for, in our opinion, cannot be connected with the enquiry initiated against the delinquent employee. The first document sought for was to prove that he had sought instructions by informing the return of discounted bills to the Competent Authority. Even taking it for granted that he has sought for instructions, it does not carry anybody any where, unless it is a case of the delinquent employee that instructions had been given to him by the higher authorities as what to do. In so far as Item 3 is concerned, the classification of the bills does not matter because all the bills filed as Exhibits during the enquiry, have been produced to prove the particular action done by the delinquent employee. There is no question of comparing this action with any other action. In fact, as already found by us, the action taken in respect of the bills by the delinquent employee has been clearly and categorically admitted by him. In so far as Item 6 is concerned, that is an investigation report and what part the investigating report would play has not been explained by the delinquent employee and it is not a criminal case where the Investigation Officer has to be cross-examined with reference to his report so as to find out discrepancies or contradictions in his evidence. So, in our opinion, the documents that are relevant and necessary for the purpose of a fair enquiry having been given to the delinquent employee; non-production of other documents, which are unnecessary and not related to the present enquiry, cannot vitiate the enquiry. Therefore, the submission made by the learned Counsel for the respondents regarding non-furnishing of documents has to be rejected.
43. We, therefore, conclude that the order of the learned Single Judge in setting aside the order of suspension and granting consequential reliefs to the respondents-employee is not sustainable.
44. In the result, we allow this appeal, reverse the order of the learned Single Judge and dismiss the writ petition upholding the suspension of the employee as valid.
45. However, in the circumstances of the case, we make no order as to costs.
