L. MOHAPATRA, J & S.K.MISHRA, J. O.J.C. NO.1725 OF 1996 (Decided on 12.07.2011) PURANDER MALLICK … …..Petitioner. .Vrs. UCO BANK & ORS. ………Opp.Parties. For Petitioner - M/s. K.C.Kanungo & B.Rout. For Opp.Parties - Dr. A.K.Rath S.K.MISHRA, J. Petitioner in this case assails the second show cause notice and rejection of his representation to grant increment during the period of suspension. However, at the time of hearing, learned counsel for the petitioner submits that the Disciplinary Proceeding was completed and his appeal and revision have been dismissed and he was awarded with punishment of withholding of two increments with cumulative effect. Learned counsel for the petitioner did not challenge the findings recorded by the Enquiring Officer or the Appellate Authority, rather confined his arguments to the denial of subsistence allowance, equal to his pay, after completion of one year from the date of his suspension. In addition, the petitioner claims that as the Disciplinary Authority has not passed any order regarding the period of suspension, i.e. whether to treat it as duty or as such, the same should be treated as duty. 2. Facts of the case are not disputed. On 17.10.1985, there was alleged shortage of cash of Rs.60,000/- in the Bazar Branch of UCO Bank, Rourkela, as a result of which, F.I.R. was lodged against the petitioner, the Chief Cashier and another employee of the Bank, which resulted in registration of G.R. Case No.1924 of 1985. Thereafter, charges were framed against the petitioner and on 24.12.1985 he was placed under suspension. On 21.07.1989, the petitioner was exonerated from the criminal charge in the aforesaid G.R. Case. The petitioner was informed that subsistence allowance shall be paid to him at the rate of full salary and allowance from the date of judgment passed by the criminal court on 21.07.1989. In the meantime, on 26.12.1991 order of punishment was passed after finding him guilty in the Disciplinary Proceeding. The order of suspension was revoked on 31.12.1991, the petitioner submitted his appeal before the Appellate Authority, which was rejected. Representation to the revisional authority was also rejected. 3. The petitioner claims that as per Clause 5 of the Bi-partite settlement dated 08.09.1983, the petitioner is entitled to subsistence allowance equal to 1/3rd of the salary, which an employee would have got, for suspension w.e.f. 24.12.1985 to 23.03.1986. Thereafter, the petitioner received half of the pay and allowance till a communication dated 12.02.1990 was received by the petitioner. The petitioner claims that he is entitled to full pay and allowance as subsistence allowance after completion of one year from the date of suspension, instead he has been allowed full pay and allowance as subsistence allowance from the date of judgment in the criminal case which has no nexus with the date of receiving full pay and allowance as subsistence allowance. The petitioner, therefore, claim the order of the Disciplinary Authority to be illegal and prayed that the differential amount between the full pay and the subsistence allowance for the period 24.12.1986 to 20.07.1989 should be paid to him. It is further contended in course of hearing that the Disciplinary Authority having omitted to specify whether the period of suspension should be treated as duty or as such, he is entitled to a declaration that it should be treated as duty. 4. The opposite parties have filed a counter affidavit. It is pleaded that the Disciplinary Proceeding was initiated on the selfsame charges for which the criminal trial was conducted. There is no bar for the Disciplinary Authority to conduct a domestic enquiry, even in case where a criminal proceeding was initiated. It is further submitted that since the year 1983, as per the Bi-partite settlement, the suspended employee is not eligible for grant of any increment falling due for consideration during the period of suspension and his subsistence allowance, therefore, shall undergo no change on this score. It is further claimed by the opposite parties that the subsistence allowance has been paid to the petitioner in consonance to the guidelines stipulated in the circular dated 23.09.1987. It is further pleaded that the Bank did not pay full subsistence allowance after one year from the date of suspension to the petitioner because the investigation was done by the outside agency (Police) and the criminal case is pending. The Bank released the full subsistence allowance w.e.f. 21.07.1989, that being the date of judgment in the criminal case. It is further pleaded that not mentioning how the period of suspension shall be treated in the final order pre-supposes that the same shall be treated as such. In other words, it is pleaded that if the Disciplinary Authority had desired otherwise, he would have clearly mentioned the same in the order of punishment. On such pleading, the opposite party-Bank prayed to dismiss the writ application. 5. In course of hearing, the issues between the parties boils down to two, the first one being the interpretation of Clauses 42 and 43 of the Bi-partite settlement dated 08.09.1993. Clause 42 reads as follows: “42. Subsistence Allowance during suspension period will be paid as follows: Where investigation is not entrusted to or taken up by outside agency – a) first 3 months- 1/3 of the pay and allowances which the workmen would have got, b) Thereafter ½ of pay and allowance, c) after one year – full pay and allowances if enquiry not delayed due to workman or his defence representatives.” This clause, therefore, provides that where there is any suspension of an employee and the investigation has not been taken up or entrusted to an outside agency i.e. the Police/C.B.I., subsistence allowance will be payable at the following rates; 2 (i) for first three months 1/3rd of the pay and allowance, which the workman would have got for the suspension. (ii) even after completion of three months, if the disciplinary proceeding has not come to a conclusion, then the suspended employee shall get ½ of the pay and allowances. (iii) after completion of one year, if the Disciplinary Proceeding has not come to a conclusion, the suspended employee is entitled to receive full pay and allowances, provided that the delay is not due to workman or any of his representatives. Such three scales of suspension allowance scheme is brought in to ensure that a workman is not unnecessarily harassed because of delay and latches on the part of the Disciplinary Authority/ Enquiring Officer and he is not put to insurmountable hardship because of such delay. 6. Clause 43 however provides for the situation when the investigation is done by the outside agency. It reads as under: “43. Where the investigation is done by an outside agency and they have come to the conclusion not to prosecute him; (a) full pay and allowances payable after 6 months from the date of receipt of such report or one year after suspension, whichever is later, if enquiry not delayed due to workman or his defence representatives.“ This clause stipulates that whenever there is investigation by an outside agency and the outside agency has come to the conclusion not to prosecute him, full pay and allowance is payable after six months of receipt of such report or one year after suspension, whichever is later. In order to attract the mischief of Clause 43, two conditions must be satisfied; first one is that the investigation was done by an outside agency and secondly, the said outside agency has come to the conclusion not to prosecute him. In case both the aforesaid conditions are satisfied, then the suspended employee is entitled to full pay and allowance as subsistence allowance, after six months from the date of receipt of such report or one year after suspension, whichever is later. This provision again speaks of the intention of the parties to the settlement that an employee, who is suspended, should not be allowed to suffer for more than six months from the date of receipt of a final report or one year after suspension, whichever is later, if the enquiry is not delayed due to his own latches. Neither Clause 42 nor 43 is attracted in this case, as investigation was done by an outside agency and they came to the conclusion to prosecute him, he was prosecuted and was subsequently acquitted by the competent criminal court. It is conceded by both the parties that the settlement of the year 1993 do not provide for such a situation, where the employee is under suspension, investigation is taken up by an outside agency and they decide to prosecution the same. In absence of any specific provision, we are of the opinion that the case shall be guided by law, equity and good conscience. 3 7. Keeping in view the principle on which Clauses 42 and 43 have been worded, this Court comes to the conclusion that even in case where the investigation is done by an outside agency, which has decided to prosecute him, the petitioner shall be entitled to full pay and allowance after one year of suspension, if the petitioner has not filed any application for stalling the departmental enquiry during the pendency of the criminal case. From the records it is not clear, whether the petitioner has filed any such application before the Disciplinary Authority/Enquiring Officer. Moreover, it is not the case of the opposite parties that the delay in enquiry was caused due to the workman or his defence representative. In such view of the matter, we are of the opinion that the petitioner is entitled to receive full pay and allowances from the date of completion of one year of his suspension, in other words, he is entitled to subsistence allowance at the rate of full pay and allowances from 20.12.1986 to 30.07.1989. 8. The other issue which comes up in the writ application is, how the period of suspension would be treated in absence of any specific order to that effect. Learned counsel for the petitioner has submitted that since the petitioner has been acquitted of the criminal charges, the period of suspension should be treated, in absence of any specific order to that effect, as duty. On the contrary, learned counsel appearing for the opposite party-Bank submitted that since the petitioner has been found guilty and has been punished, the period of suspension should be treated as such. Having considered the rival submissions, we are of the considered opinion that the petitioner having been found guilty in the Departmental Enquiry, the only logical conclusion is that the period of suspension should be treated as such. In this connection, it is profitable to take note of Clause 52 of the aforesaid Bi-partite settlement, which provides that an employee will earn increment for the suspension period, if fully exonerated subsequently and specific order passed treating the suspension period as on duty. Thus, it appears that the parties to the settlement have agreed that a specific order is required for treating the suspension period as duty. Since the disciplinary authority has not passed any specific order to treat the period of suspension as duty, the period of suspension should be treated as such. 9. In the result, the writ application is allowed in part. The opposite parties are directed to compute the differential subsistence allowance for the period 20.12.1986 to 20.07.1989 and to pay the same to the petitioner within a period of three months from the date of receiving notice of this order. No cost. Writ petition allowed in part. 4