THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.17421 OF 2001 DATED DECEMBER, 2010 BETWEEN Ch.Ravi Kumar … Petitioner And The Dy.General Manager, (Personal Dept.), Andhra Bank Central Office, Hyderabad. And Others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.17421 OF 2001 ORDER: The petitioner, presently a retired employee of Andhra Bank, filed this writ petition assailing the disciplinary action visited upon him under order dated 27.01.1994 which stood confirmed in appeal and thereafter in review. The petitioner entered the service of Andhra Bank as a Probationary Officer in February, 1974. After being confirmed in service in 1976, he was granted promotions from time to time. He was a Middle Management Grade-III Officer at the time he was placed under suspension vide the Bank’s proceedings dated 14.07.1986. He was subjected to disciplinary proceedings under charge sheet dated 03.01.1991 detailing as many as 11 charges. After due enquiry, the Enquiry Officer by report dated 12.03.1993 held that charges 1 and 3 to 11 were not proved. He however found that charge 2 was partly proved. This charge pertained to the failure of the petitioner to obtain prior sanction from the competent authority before granting a Bank Guarantee. The sanction was admittedly granted thereafter. A copy of the enquiry report was communicated to the petitioner under letter dated 12.06.1993 inviting his response. The petitioner submitted his explanation on 14.07.1993 with regard to the adverse finding on charge 2 and requested exoneration. While so, the disciplinary authority by the impugned order dated 27.01.1994 disagreed with the finding of the Enquiry Officer on charge 1 while agreeing with his finding that charge 2 was partly proved and that the other charges were not proved. Charge 1 pertained to purchase of S.B.Ps. worth Rs.3.25 lakhs over and above the sanctioned limit by the petitioner. Relevant to note, the petitioner was not put on notice by the disciplinary authority under the earlier communication dated 12.06.1993 that he proposed to disagree with the finding of the Enquiry Officer as regards this charge. In the light of charge 1 which was held by him to be proved and charge 2 which confirmed to be partly proved, the disciplinary authority imposed upon the petitioner the punishment of censure. He further directed that his entire period of suspension (14.07.1986 to 04.07.1992) should be treated as on loss of pay and allowances and that the petitioner would not be entitled to any difference of salary or other benefits including increments for the entire period of suspension, except for the subsistence allowance already paid to him. Aggrieved thereby, the petitioner preferred an appeal but met with failure when it was dismissed by the appellate authority under order dated 16.12.1995. It appears that the petitioner filed a review petition only on 17.01.2000 against the orders passed by the primary and appellate authorities. However, the reviewing authority by order dated 13.12.2000 confirmed the decision of the authorities below both as regards the minor penalty imposed as well as the treatment of the period of suspension. Hence, this writ petition. Sri M.Ram Gopala Rao, learned counsel for the petitioner, submitted that the punishment imposed upon his client stood vitiated as he was not put on notice by the disciplinary authority prior to its disagreement with the finding of the Enquiry Officer as regards charge 1. The learned counsel stated that his client thereafter opted for voluntary retirement under a scheme floated by the respondent Bank and was relieved from service in January, 2001. He contended that in the light of the minor penalty imposed upon the petitioner, the respondent Bank ought not to have treated the entire period of suspension undergone by him as ‘not on duty’ for all purposes. Dr.K.Lakshmi Narasimha, learned standing counsel for Andhra Bank, while conceding that there was a procedural lapse on the part of the disciplinary authority in recording an adverse finding on charge 1, pointed out that both the Enquiry Officer as well as the disciplinary authority were in consensus in so far as the finding on charge 2 was concerned, as both authorities held the same to be partly proved. The learned standing counsel submitted that in the light of the adverse finding on this charge, irrespective of the validity of the finding on charge 1, the action of the Bank in imposing the minor penalty of ‘censure’ would not be rendered invalid. As regards the treatment of the suspension period, the learned standing counsel stated that the petitioner was subjected to disciplinary proceedings not only under charge sheet dated 03.01.1991 which is the subject matter of the present case but also under two separate charge sheets dated 04.01.1993 and 09.04.1994. The charge sheet dated 04.01.1993 culminated in the punishment of censure being imposed upon the petitioner under orders dated 30.04.1993 which was confirmed in appeal on 24.07.1993. The disciplinary proceedings under charge sheet dated 09.04.1994 concluded in the imposition of the major penalty of reduction of pay by one stage upon the petitioner vide order dated 17.12.1997, confirmed in appeal on 16.02.1998. The learned standing counsel further stated that the petitioner was promoted to Senior Management Grade Scale-IV cadre with effect from 17.06.1999 and it was only thereafter that he chose to file a review petition on 17.01.2000. He therefore submitted that the cumulative effect of the disciplinary proceedings and the action taken pursuant thereto against the petitioner justified the treatment of the petitioner’s suspension period as ‘not on duty’. He also relied upon the relevant regulations to support his contention that the discretion vested in the disciplinary authority to deal with the period of suspension had been rightly exercised. There can be no dispute with the settled legal proposition that the disciplinary authority must put the delinquent employee on notice before disagreeing with any findings favourable to such employee recorded by the Enquiry Officer. [PUNJAB NATIONAL BANK v. KUNJ BEHARI MISRA[1]; A.RAJI REDDY v. GOVT. OF A.P.[2] and B.CHANDRA MOULI v. GENERAL MANAGER, MEDAK DISTRICT CO-OPERATIVE CENTRAL BANK LTD.[3]]. In the present case, though a communication was addressed to the petitioner on 12.06.1993 enclosing a copy of the enquiry report, the disciplinary authority surprisingly did not deem it necessary to inform the petitioner that he proposed to disagree with the favourable finding returned by the Enquiry Officer in so far as charge 1 was concerned. By way of the impugned punishment order dated 27.01.1994, the disciplinary authority indicated his disagreement with the Enquiry Officer’s finding on this charge and straight away imposed the punishment. Further, he directed the entire suspension period undergone by the petitioner to be treated as ‘not on duty’ for all purposes. It is no doubt true that charge 2 was held partly proved by the Enquiry Officer and the disciplinary authority concurred with the said finding. As the punishment visited upon the petitioner was only the minor penalty of ‘censure’, it cannot be said to be disproportionate to the finding as regards the said charge. This Court therefore finds merit in the contention advanced by the learned standing counsel that irrespective of the validity of the finding with regard to charge 1, the finding on charge 2 was sufficient to sustain the minor penalty imposed upon the petitioner. In this regard, reference may be made to KRISHNAKALI TEA ESTATE v. AKHIL BHARATIYA CHAH MAZDOOR SANGH[4]. In that case, the delinquent had been found guilty of extortion though the same was not part of the framed charges. However, he was also held guilty of the charges which were in fact framed. In such circumstances, the Supreme Court was of the opinion that though the allegation of extortion ought not to have been considered, the other charges held proved were by themselves sufficient to come to the conclusion that the workman had indulged in misconduct warranting punishment. As the allegation of extortion was severable from the other allegations, the Supreme Court affirmed the punishment imposed upon the employee. In the present case also, the misconduct alleged under charges 1 and 2 are severable. Therefore, irrespective of the validity of the finding recorded by the disciplinary authority on charge 1, the sustained finding on charge 2 would be sufficient to uphold the minor penalty of ‘censure’ visited upon the petitioner. However, the next issue to be considered is as to the treatment of the suspension period undergone by the petitioner. The contention of the learned standing counsel that the decision of the Bank in this regard was based on the cumulative effect of all the disciplinary proceedings initiated against the petitioner cannot be accepted. The petitioner was not put on notice that the misconduct alleged against him under the other charge sheets would be taken into account while dealing with the present case. Without doing so, it was not open to the disciplinary authority to take into account the pendency of the other disciplinary proceedings while passing the order dated 27.01.1994. Regulation 15 of the Andhra Bank Officer Employees’ (Discipline and Appeal) Regulations, 1981 deals with treatment of the period of suspension undergone by the employee. Regulation 15 reads as under: “15. Pay, allowances and treatment of service on termination of suspension:–– (1) Where the competent authority holds that the officer employee has been fully exonerated or that the suspension was unjustifiable, the officer employee concerned shall be granted the full pay to which he would have been entitled, had he not been suspended, together with any allowances of which he was in receipt immediately prior to his suspension, or may have sanctioned subsequently and made applicable to all officer employees. (2) In all cases other than those referred to in sub-regulation (1), the officer employee shall be granted such proportion of pay and allowances as the Competent Authority may direct; Provided that the payment of allowances under this sub-regulation shall be subject to all other conditions to which such allowances are admissible. Provided further that the pay and allowances granted under this sub-regulation shall not be less than the subsistence and other allowances admissible under regulation 14. (3) a. In case falling under sub-regulation (1), the period of absence from duty shall, for all purposes, be treated as a period spent on duty. 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.” As the petitioner was not fully exonerated of the charges, his case would fall under clause 2 of the above Regulations. As per clause 3(b) of the above Regulation the disciplinary authority is required to apply its mind as to how the period of absence from duty should be treated giving due reasons for the same. In the present case, it cannot be surmised as to what extent the disciplinary authority was influenced by its own independent unsustainable finding on charge 1 while considering as to how the period of suspension undergone by the petitioner was to be treated. It is also relevant to note that the petitioner approached this Court earlier in Writ Petition No.15182 of 1990 aggrieved by his continued suspension under the proceedings dated 14.07.1986. The said writ petition was dismissed by order dated 19.09.2000 taking note of the fact that the petitioner had already been reinstated in service. This Court however observed that if the petitioner was aggrieved in respect of his service benefits during the suspension period, he was at liberty to make a representation before the competent authority. Relevant to note, this order was passed during the pendency of the petitioner’s review petition. The petitioner claims to have made a representation thereafter to the reviewing authority, a copy of which is filed in the material papers, with regard to the treatment of his suspension period. However, the learned standing counsel for the Bank states that the said representation was not available in the Bank’s records and denied receipt thereof. Be that as it may, the fact remains that the petitioner’s representation pursuant to the order passed by this Court in the earlier writ petition was never considered. Thus, as matters stand, though this Court is not inclined to interfere with the minor punishment of ‘censure’ visited upon the petitioner taking note of the concurrent finding of the authorities on charge 2, the treatment of the petitioner’s suspension period is altogether a different matter. Admittedly, the petitioner was kept out of service for nearly six years and eventually only a minor penalty of ‘censure’ was imposed upon him. As it cannot be gauged as to what extent the unsustainable finding of the disciplinary authority on charge 1 played a role in the decision to treat this suspension period as ‘not on duty’ and given the fact that this Court directed the petitioner to make a representation in this regard, which did not fructify, be it for whatever reason, this Court is of the opinion that the interest of justice warrants that the respondent Bank reconsider the issue in so far as the treatment of the petitioner’s period of suspension is concerned. There shall accordingly be a direction to the respondent Bank to consider the petitioner’s representation which forms part of the record in this writ petition and pass necessary orders thereupon in so far as the treatment of the petitioner’s period of suspension is concerned in the light of the observations made supra. This exercise shall be completed within two months from the date of receipt of a copy of this order. The Writ Petition is accordingly allowed in part but in the circumstances, without any order as to costs. ____________________ SANJAY KUMAR, J. _______ DECEMBER, 2010. VGSR [1] (1998) 7 SCC 84 [2] 2001 (5) ALT 46 (DB) [3] 2005 (1) ALT 335 [4] (2004) 8 SCC 200