Judgment:
B.K. Sharma, J.
1. Justification to place the petitioners under suspension in the above two writ petitions is the question raised in these writ petitions. Both the writ petitioners are bank employees. The Bank authority has placed them under suspension pertaining to the same incident. They have initiated the writ proceedings by filing two separate writ petitions raising common questions of fact and law. The writ petitions were heard analogously and as agreed to by the learned counsel for the parties, they were taken up together for final disposal.
2. The petitioner in W.P.(C) No. 1198/2004 at the relevant time was posted as Deputy Manager of Amguri Branch of United Bank of India. The petitioner in W.P.(C) 1199/2004 was also posted in the same Branch as Manager. They have initiated the writ proceedings being apprehensive of placing them under suspension by the Bank authority relating to an incident which is common to both of them.
3. Adverting to the facts of the case which are identical in both the cases, it is the case of petitioner in W.P. (C) No. 1199/2004 that upon detection of certain anomalies in the functioning of one Shri Prasenjit Sarkar, Computer Operator of the Bank working in the same Branch and on receipt of complaints from the customers of the Bank, he issued a letter dated November 5, 2003 to said Shri Sarkar asking him to explain the matter. He also wrote a letter dated December 27, 2003 to one of the customers who had lodged the complaint to bring his Passbook for a detailed verification and for sorting out the anomalies. Subsequently by his letter dated December 29, 2003, the petitioner also furnished information relating to anomalies to the respondent No. 4 and sought for his advice. This was followed by seizure of 1 documents etc. as directed by the respondent No. 4. Meanwhile, Shri Prasenjit Sarkar absconded and remained unauthorizedly absent from his duties. He was placed under suspension by an order dated January 8, 2004. The petitioner has further stated that pursuant to the directions of the respondent No. 4, he kept on informing the developments to the authorities of the Bank from time to time. Meanwhile, an FIR was lodged against Shri Sarkar.
4. When the matter rested thus, the petitioners were directed to submit their explanation on the allegation of negligence on their part by way of issuance of individual show cause notice dated February 21, 2004. According to the petitioners the investigation relating to the entire episode carried out by the Vigilance Department of the Bank is almost over and all the related documents have been seized and therefore, there is no possibility of tampering with any evidence and the same is completely ruled out. The petitioners submitted their individual show cause reply dated February 28, 2004 to the allegation levelled against them by the aforesaid show cause notice dated February 21, 2004. During the pendency of the writ petitions, both the petitioners have been transferred to some other places by an order dated February 23, 2004. Thus, it is the case of the petitioners that there is no necessity to place them under suspension, even if any departmental proceeding is initiated against them.
5. The writ petitions were filed and moved before the petitioners were transferred and they had submitted their show cause replies. This Court while entertaining the writ petitions by its order dated February 24, 2004 by way of issuance of notice of motion passed an interim order directing the respondents not to disturb the service conditions of the petitioners. However, it was made clear that the respondents would be at liberty to initiate such disciplinary action against the petitioners as may be permissible under the law.
6. The respondent Bank entered appearance in the case and filed Misc. Case No. 1061/2004 in W.P.(C) No. 1198/2004 and Misc. Case No. 1060/2004 in W.P.(C) No. 1199/2004 making a prayer therein to vacate the interim order dated February 24, 2004. Meanwhile, the petitioners were served with an order dated February 25, 2004 on April 24, 2004 placing them under suspension. The reason for placing them under suspension has been stated to be the decision of initiating a Disciplinary action against them for certain gross misconduct alleged to have been committed by them and considering the seriousness and gravity of the misconduct. Such a course of action to place them under suspension has been so taken under Regulation 12(i)(a) of United Bank of India Officer-Employees' (Disciplinary and Appeal) Regulations, 1976. While placing them under suspension by the order dated February 25, 2004, as indicated in the order itself, they have been debarred from entering into the premises of the Bank except for the reasons mentioned in the order.
7. Alleging violation of the aforesaid interim order of this Court, both the writ petitioners have filed two separate contempt petitions viz., Cont. Case No. 250/2004 and 251/2004. They have also filed two separate Miscellaneous Applications making a prayer for stay of the order of suspension dated February 25, 2004.
8. When the contempt petitions as well as miscellaneous applications filed by the petitioners and the Bank to vacate the interim orders were taken up, the learned counsel for the parties agreed for final disposal of the writ petitions and argued on that basis. The learned counsel for the respondents was requested to produce the records which was duly produced.
9. I have heard Mr. K. N. Choudhury, learned senior counsel assisted by Mr. S.K. Medhi, learned counsel appearing for the petitioners and also heard Mr. S. Dutta, learned counsel appearing for the respondent Bank. Mr. Dutta also produced the relevant records.
10. Mr. Choudhury, learned senior counsel appearing for the petitioners fairly submits that when there is no question of challenging the authority and jurisdiction of the competent authority to place the petitioners under suspension, the real test in the given facts and circumstances would be as to whether it was at all necessary to place them under suspension. He submitted that the petitioners having already been transferred from the Branch in question, there is no possibility of tampering with the evidence by the petitioners. Referring to the action taken by the petitioner in W.P.(C) No. 1199/2004 on the anomalies and irregularities committed by said Shri Sarkar, the computer operator of the branch, Mr. Choudhury submitted that the petitioners are in no way responsible or connected with the misconduct on the part of said Shri Sarkar. He submitted that at best the petitioners may be guilty of negligence in discharge of duties in their supervisory capacity which by no stretch of imagination can be said to be a misconduct on their part. He placed reliance on two decisions of the Apex Court as reported in State of Orissa v. Bimal Kumar Mohanty AIR 1994 SC 2296 : 1994 (4) SCC 126 : 1995-I-LLJ-568, Capt. M. Paul Anthony v Bharat Gold Mines AIR 1999 SC 1416 : 1999 (3) SCC 679 : 1999- I-LLJ-1094.
11. On other hand Mr. S. Dutta, learned counsel appearing for the Bank placing reliance on the records produced by him, submitted that a prima facie case having been found against the petitioners to proceed against them by way of departmental proceeding, there is nothing wrong in placing them under suspension. He submitted that the petitioners failed to discharge their assigned duties occupying key positions in the Branch as a consequence of which the Bank had to incur financial loss to a tune of more than Rupees six lakhs. Referring to the allegations made against the petitioners, Mr. Dutta submitted that since the petitioners have been prima facie found to be guilty of gross misconduct and considering the seriousness and gravity of such misconduct the Bank authority decided to place the petitioners under suspension, the writ Court in exercise of its power of judicial review under Article 226 of the Constitution of India, would adopt a reluctant resort to interfere with the orders of suspension.
12. The question for determination is in a very narrow compass. It is the legality and validity of the impugned orders of suspension dated February 25, 2004 which are required to be judged having regard to the attending circumstances as agitated in the writ petitions and reflected in the records produced by the learned counsel for the respondent Bank. The respective order of suspension itself states that the petitioners have been placed under suspension as per the provisions of Regulation 12(i)(a) of United Bank of India Officer-Employees' (Disciplinary and Appeal) Regulations, 1976 upon a decision to initiate disciplinary action against them and considering the seriousness and gravity of the misconduct. Law is well settled that an officer or an employee can be placed under suspension in contemplation of a departmental proceeding or with the initiation of a departmental proceeding against him. However, it is the case of the petitioners that the attending circumstances as reflected in the writ petitions do not constitute misconduct on their part so as to warrant the initiation of departmental proceedings against them and consequently they could not have been placed under suspension. It is their case that the measure of placing the officers under suspension should not be resorted to mechanically without due application of mind. It is in this context the aforementioned two decisions of the Apex Court were relied upon by the learned counsel for the petitioners.
13. In the case of Bimal Kumar Mohanty (supra) the Apex Court emphasised the necessity to take into account the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of mind by the disciplinary authority. It should not be as administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegation imputed to the delinquent employee. The Apex Court emphasised that the Court or the Tribunal must consider each case on its own facts and no general law could be laid down on that behalf. In the same vein the Apex Court observed that suspension is not a punishment but is only one of forbidding or disabling the employee to discharge the duties of office or post held by him. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. It further emphasised the need on the part of the authority to keep in mind the public interest of the impact of the delinquent's continuance in office.
14. In the case of Capt. M. Paul Anthony (supra) the Apex Court while recognising the unqualified right of the employer to place its employee under suspension observed that instances are not rare where officers have found to be afflicted by 'suspension syndrome' and the employees have been found to be placed under suspension just for nothing.
15. In the case of Government of India v. Tarak Nath Ghose as reported in AIR 1971 SC 823 : 1971 (1) SCC 734 : 1971-I-LLJ-299 on which Mr. S. Dutta, learned counsel for the respondent Bank placed reliance, the Apex Court after examining the word 'suspension' applying its dictionary meaning and on the principle as laid in HALSBURYS' LAWS OF ENGLAND, held that when serious allegations of misconduct are imputed against the member of a service normally it would not be desirable to allow him to continue in the post where he was functioning. If the disciplinary authority takes note of such allegations and is of opinion after some preliminary enquiries that circumstances of the case justify further investigation to be made before definite charge can be framed, it would not be importune to remove the officer concerned from the sphere of his activity inasmuch as it may be necessary to find out facts from people working under him or look into papers which are in his custody and it would be embarrassing and inopportune both for the officers concerned as well as to those whose duties it was to make the enquiry to do so while the officer was present at the spot. In this decision the Apex Court also held that the Government may rightly take the view that an officer against whom serious imputations are made should not be allowed to function anywhere before the matter has been finally set at rest after proper scrutiny and holding of departmental proceedings.
16. I have gone through the records produced by the learned counsel for the respondent Bank. It revealed that a preliminary enquiry was carried out on detection of fraud and misappropriation of customers' deposits in the aforesaid Branch of the Bank. The preliminary report was submitted on February 3, 2004 relating to the findings on modus operandi, details of complaints received by the Branch, position of system adherence by the Branch, position of staff accountability and observations and suggestions therein. The said preliminary enquiry report clearly pointed out the lapses and omissions in the area of proper supervision and control by the petitioners and other contributing loss to the Bank. The records also revealed that complaints were lodged by the customers alleging misappropriation of their deposits and making of numerous fraudulent transactions and as to how the petitioners occupying the key positions in the Branch lacked in their supervision and monitoring of day to day operation/transaction in the Bank.
17. It was only upon such preliminary enquiry and deliberation on the performance of conduct on the part of the petitioners, the decision was taken to proceed against them departmentally and to place them under suspension. Accordingly the orders of suspension dated February 25, 2004 were passed, but could not be issued due to the aforesaid interim order of this Court. It appears that confusion had arisen in the mind of the Bank authority as regards the interpretation of the aforesaid interim order. Eventually, the competent authority came to the conclusion that since the interim order did not debar the departmental proceedings against the petitioners and no order was passed restraining the Bank authorities to place the petitioners under suspension, the orders of suspension could be communicated to the petitioners. It was on that basis the orders of suspension although were passed on February 25, 2004 before receipt of the interim order dated February 24, 2004, were communicated to the petitioners only on April 24, 2004. However, this aspect of the matter has lost sting in view of the submissions made by the learned counsel for the parties that the whole matter be decided determining the justification of issuance of the impugned orders of suspension.
18. It is in the above backdrop the action on the part of the respondents placing the petitioners under suspension with the issuance of the impugned orders will have to be judged in reference to the aforesaid decisions of the Apex Court. In both the cases relied on by the learned counsel for the petitioners the Apex Court has reiterated the well established principles involved in suspension. It reiterated the power and jurisdiction of the employer to place its employees under suspension. However, it has been observed that it should not be an administrative routine or an automatic order to suspend an employee. It has also been recognised that the authority is also to keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial by the criminal charge. The Apex Court noticed that there are cases where officers have been found to be afflicted by a 'suspension syndrome' and the employees are placed under suspension just for nothing. It has also been noticed on perusal of the records that the petitioners have not been placed under suspension for nothing or as an administrative routine affair. It has also not been (sic) actuated by mala fide, arbitrary or any ulterior purpose. The petitioners have been placed under suspension pursuant to the preliminary enquiry report, upon deliberation of the materials on record and there is nothing to suggest that the petitioners have been placed under suspension under the aforesaid notion of 'suspension syndrome' or as an
administrative routine affair'. They have been placed under suspension assigning cogent and valid reason.
19. Much was emphasized on the fact of transferring the petitioners from the Branch in question and it was submitted that with the transfer of the petitioners from the Branch in question, there is no necessity to place them under suspension inasmuch as they would not have any access to the documents in the Branch and that there is no possibility of tampering with the evidence in any manner. Merely because the petitioners are away from the Branch in question, it cannot be said that there is no scope of any kind of interference with the fact finding enquiry or towards adducing of evidences, both oral and documentary in the proposed departmental proceeding. This is precisely the reason as to why certain conditions have been imposed relating to the entry of the petitioners in the Branch of the Bank while placing them under suspension. There is another aspect of the matter. At times, as has been observed by the Apex Court in Bimal Kumar Mahanty's case (supra), a delinquent may be required to be placed under suspension by the authority keeping in mind public interest of the impact of the delinquent's continuance in office. In the case of Tarak Nath (supra) the Apex Court has recognised that an officer against whom serious imputations are made should not be allowed to function anywhere before the matter has been finally set at rest after a proper scrutiny and holding of departmental proceeding.
20. In the instant case the whole controversy is relating to the modus operandi of committing fraud and misappropriation of customers deposits for which the Bank has already sustained loss. In the case of Chairman and Managing Director of United Commercial Bank v. P.C. Kakkar as reported in AIR 2003 SC 1571 : 2003 (4) SCC 364 : 2003-II-LLJ-181, the Apex Court observed that a Bank officer is required to exercise higher standard of honesty and integrity. Every officer/ employee of the Bank is required to take all possible steps to protect the interest 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. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. Much has been emphasised by the Apex Court time and again on the role and conduct of the Bank officers who occupy the position of trust.
21. For the foregoing reasons and discussions, I dot not find any infirmity in the impugned orders by which the petitioners have been placed under suspension. Any observations made above must not be construed to be the observations on merit of the case of the petitioners. It will be open for the petitioners to prefer departmental appeals against the orders of suspension placing reliance on all the materials placed and agitated before this Court or any other materials which they might think are in aid of their defences against the orders of suspension. In case of preferring of such appeals by the petitioners the authority of the Bank will consider the same independently and without being influenced by this Judgment and any observations made herein. Needless to say that prolonged continuance of suspension does not serve any purpose unless the same is absolutely necessary. Here lies the importance of periodical review required to be carried out by the competent authority to evaluate the necessity towards continuance of the order of suspension. It is expected that the respondents will be alive to the same and will act in accordance with rules and the established principles of suspension.
22. Subject to the above observations, both the writ petitions stand dismissed.
23. There shall be no order as to costs.