ORDER
Hari Nath Tilhari, J
1.This Writ Petition is directed against the order of the Deputy General Manager bearing No. PRS:BNG:DGM:O/93/13 dated March 19, 1993, copy of which has been annexed by the petitioner as Annexure-M. This is the order of punishment by which the petitioner's basic pay has been ordered to be reduced by one stage with cumulative effect in the time scale of pay with immediate effect for the breach of Regulation No. 3(1) read with Regulation No. 24 of the Syndicate Bank Officer Employees' (Conduct) Regulations, 1976, as found by the punishing authority. Punishing authority has further ordered that as regard the back wages the petitioner shall not be eligible for any back wages for the period of suspension as well as for any benefits for that period during which he was under suspension and further directed that his absence shall not be treated as on duty.
2. The petitioner has also challenged the appellate order bearing No. 69:PD:IRD:DA-7 dated June 9, 1.993 passed by the General Manager, copy of which the petitioner has annexed as Annexure-P whereby the Appellate Authority has dismissed the petitioner's Appeal. Thus the petitioner has prayed for Writ, order or direction in the nature of Certiorari being issued quashing the above mentioned orders dated 19.3.1993 passed by the Deputy General Manager and 9.6.93, passed by the General Manager. The petitioner has further prayed he may be declared entitled to get the salary for the period of suspension from 3.12.1976 until he rejoined duties pursuant to order dated 25.9.1990, whereby the order of suspension had been revoked and for further declaration of Circular No. 136/91/B.C./PD./28/IRD dated 27 May, 1991 being illegal, arbitrary and unenforceable. The petitioner has also claimed as the residuary relief to the effect that such further order or directions may be issued in favour of the petitioner and against respondents as this Hon'ble Court deems fit and proper.
3. The facts of the case in brief are that the petitioner was Assistant, Manager of the Syndicate Bank and was working at Shimoga on 3.12.1976. According to the petitioner's case the respondents passed on order of suspension bearing No. 4877-330-486-GM dated 3.12.1976 placing the petitioner under suspension from the service of the Bank with immediate effect. The suspension order has been annexed by the petitioner as Annexure-C to the Petition. It reads as under:-
'In view of certain serious 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(j) of the Syndicate Bank Officers' (Conditions of Service) Rules 1966.
During the period of suspension, you will be paid as per Rule- 35(k) of the aforesaid Rules, Subsistence Allowance as under:-
1. For the first three months 1/3 of the salary which you would have got but for the suspension; and
2. Thereafter, at the rate of 1/2 of the salary for the succeeding months until the enquiry is over.
You are also requested to furnish us your postal address at once for the purpose of future communication with you.'
4. A perusal of the suspension order per se shows that this order was passed suspending the petitioner from service under Rule-35(j) of the Syndicate Bank Officers' (Conditions of Service) Rules, 1966 and that the order of suspension is not punitive in nature, instead it provides that the petitioner was thereby suspended from the service of the Bank pending enquiry in the matter referred to in earlier lines of the order. It has come on record that thereafter no enquiry nor departmental proceedings were initiated nor any departmental enquiry was conducted against the petitioner. Instead some criminal case namely Criminal Case No. 7/76 was launched against the petitioner by the Central Bureau of Investigation on the charges under Sections 120(b), 420 of the Indian Penal Code read with Section 5(2) and Section-5 (1)(d) of the Prevention of Corruption Act, 1947. As per facts appearing from the record, the accusation against the petitioner was that the petitioner while functioning as the Branch Manager of Kadugondanahalli, entered into criminal conspiracy with M.V. Vasudevan and others for the purposes of cheating the Bank and in pursuance of the conspiracy M.V. Vasudevan in collusion with the petitioner secured certain loan facilities like overdraft and DBD facility and that M.V. Vasudevan presented bogus bills for discounting and that the petitioner in collusion and with full knowledge of the bogus nature of the bills, discounted them and transferred the amount to the account enabling the party to withdraw the amounts. It was alleged that the petitioner in discounting the said bills has exceeded the limits and deliberately overlooked the norms of banking procedure and thereby abused his official position and facilitated M.V. Vasudevan to obtain pecuniary advantage. As such it was further alleged by the prosecution that the petitioner did cheat the Bank etc.
5. That the trial of the case continued for almost 14 years and by judgment dated August 20, 1990, the petitioner was acquitted of the charges that had been levelled against him as has been referred to above and the Sessions Judge trying the case held that the petitioner had not committed the criminal offences as alleged against him. He further held that the charge of offences alleged against the petitioner and another under Section 120-B and 420 I.P.C., and Section-5(2) read with Section-5(1)(d) of the Prevention of Corruption Act, 1947 were not proved beyond reasonable doubt and as such the Sessions Court acquitted the petitioner of the aforesaid charges. It observed that the petitioner might have committed the irregularities in discounting the bill but he did not commit the criminal offences which were levelled against him and with respect to which the charge sheet has been issued against the petitioner. Thus criminal trial came to an end in the month of August, 1990. Thereafter, the opposite party issued separate departmental proceedings by issuing the charge sheet against the petitioner bearing No. 71/PD:IRD/DA-3 dated 5.4.1991. The said charge sheet has been annexed as Annexure-E to the Writ Petition. Before proceeding any further it may be mentioned here that by order dated 25.9.90, the Personnel Manager of the Syndicate Bank, Head Office, considering the fate of the criminal case as well as the long during which the petitioner had to remain under suspension with effect from 12.12.1976 till the conclusion of the criminal case, considered and opined that the suspension of the petitioner not to be necessary during the course of departmental enquiry and proceedings and therefore, he passed an order revoking the suspension of the petitioner 'without prejudice to the rights of the Bank to initiate departmental/disciplinary action for the irregularities alleged against him'. While revoking the suspension order the Personal Manager further observed. 'Further, decision regarding his absence from duty from the date of his suspension till the date of his reporting for duty and 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.'
6. As mentioned above, the charge sheet had been issued to the petitioner on 5.4.91 and thereafter the disciplinary/inquiry proceedings did take place and the inquiry officer submitted his findings on January 23, 1992 and under the head 'Findings' it observed as under:-
'From the above analysis of evidence and weighing the facts on merit, I find that the articles of charge levelled against Sri. M.C. Bhat vide Chargesheet No. 71:PD: IRD:DA:3 dated 5.4.1991 are proved as above.'
7. The Deputy General Manager after having received the findings passed the order of punishment Annexure-M to the Writ Petition, which is dated 19.3.1993, imposing punishment of reduction of scale of pay as has been mentioned above.
8.Having felt aggrieved from the order of the punishing/disciplinary authority ie., the Deputy-General Manager, the petitioner filed departmental appeal under Regulation-17 of the Syndicate Bank Officer Employees' Regulations, 1976. The General Manager of the Bank by an order dated June 9, 1993 dismissed the petitioner's appeal and maintained the order of punishment in toto. The order of the Appellate authority is Annexure-P to the Writ Petition. That having felt aggrieved from the orders of the punishing authority and that of the Appellate Authority, contained in Annexure-M and P to the Writ Petition, the petitioner has filed this Petition under Article 226 of the Constitution of India for the reliefs as have been mentioned above in detail.
9. On behalf of the opposite party, appearance is has been put and statement of objections has been filed.
10. As per the statement of objections, the petitioner was placed under suspension as per Rule-35(j) of Syndicate Bank Officers(Conditions of Service) Rules, 1966 and that the authority passing the suspension order was of the view that pending enquiry into the allegations made against the petitioner, petitioner be suspended and he was suspended from the service of the Bank. It is mentioned at para-7 that at the time suspension order was passed, the petitioner was working as Manager at Kadugondanahalli branch of the Bank. The opposite parties have further taken a stand that order of suspension could be passed even in contemplation of enquiry and so it was within the power of the authority to pass that order. According to the opposite parties, the petitioner against whom Criminal Case No. 7/86 had been instituted under Section 120(b) and 420 I.P.C., and under Section-5(2) read with Section-5(1)(d) of the Prevention of Corruption Act, 1947 had been acquitted of the charges, on the ground that the alleged charges were not proved beyond reasonable doubt, and the stand of the opposite parties is that acquittal was not honourable as contended by the petitioner. Their further stand is that while acquitting the petitioner of the criminal case, the Court included that the petitioner had committed certain irregularities and it was open to the authorities to initiate departmental proceedings. The opposite parties further admitted that the suspension order of the petitioner had been revoked by the competent authority vide., order dated 25.9.90, but they stated that this was without prejudice to the right of the Bank to initiate disciplinary action for the irregularities and as such it was decided by the authorities considering the seriousness of the irregularities as alleged, to proceed against the petitioner under Regulation No. 6 of the Disciplinary & Appeal Regulations, 1976. The opposite party admitted that the question of payment of backwages for the said period was left open to be considered after the conclusion of disciplinary proceedings. According to the opposite party enquiry proceedings were concluded and the report of the enquiry was submitted on 23.1.1992 and thereafter the order of punishment was passed by the disciplinary authorities. According to the opposite parties, petitioner was provided due and full opportunity of hearing and to furnish his explanation. The opposite parties have denied the allegation of the petitioner that the order of suspension was without jurisdiction or without any authority of law. They have also denied the allegation that the respondent did not apply its mind to the statement of defence. On behalf of the opposite parties it has been stated in the counter affidavit that charges in the disciplinary proceedings are entirely different and independent of a criminal case. It has further stated that the petitioner has availed of full and reasonable opportunity as well as all documents, except 3 documents which are numbered at Sl.Nos. 1, 3 and 6 of the additional list, were supplied and the documents Nos. 1, 3 and 6 could not be supplied or produced as the said documents were not available. The opposite parties have contended in the counter affidavit that fair and reasonable opportunities to defend his case during the enquiry was given to the petitioner, including the opportunity of cross examining the witnesses produced by the Management. The opposite parties denied that the charges were frivolous. In counter affidavit at paragraph-23 it was further stated there was no representation made by the petitioner to the disciplinary authority seeking permission to engage the services of a legal practitioner specially after Smt. Meera Vasanth's appointment as the presenting officer. Moreover, the petitioner had sought the assistance of Sri S. Aniker an experienced officer of the Bank as a defence assistant and according to the opposite parties that defence assistant effectively assisted the petitioner in defending the case. The opposite parties submitted that the appellate authority has applied its mind to the contentions raised by the petitioner and has dismissed the petitioner's appeal and the findings recorded by the disciplinary authority as well as the appellate authority on matters of fact are not liable to be interfered with under Article 226 of the Constitution. The opposite parties have further taken the stand that the delay if any has been caused, has not been on account of the Bank authorities and no benefit can be given to the petitioner on the basis thereof. In the counter affidavit it has been submitted that the disciplinary authority's decision to the effect that petitioner shall not be eligible for any of the benefits for the period during suspension other than subsistence allowance to be paid to him is a conscientious decision and has been arrived at after duly considering the matter. The opposite parties have denied the petitioner's claim and have submitted that the orders impugned do not suffer from any error of law or jurisdiction nor the said orders are violative of the principles of natural justice and fair play nor do they suffer from violation of Articles 14, 16 and 21 of the Constitution, it has further been submitted in paragraph-46 that merely because the litigations involving the petitioner have taken place in the year 1971-72, the petitioner cannot request this Hon'ble Court to declare the disciplinary proceedings as being void and illegal.
11. No rejoinder affidavit has been filed.
12. I have heard Sri P.S. Rajagopal assisted by Sri, Mangal Charan S. Inna on behalf of the petitioner and Sri. K. Radhesh Prabhu, appearing on behalf of the respondent-Bank.
13. The learned Counsel for the petitioner has submitted before me that the order impugned herein are bad in law and are liable to be quashed, for the reason that the order is violative of the principles of natural justice and fair play, as the petitioner has been denied due and reasonable opportunity of hearing on account of the failure of the enquiry officer and the disciplinary authority who failed to dispose off the petitioner's request for being allowed to be represented by a legal practitioner of his choice, as the matter involved in the case have been complicated one and especially since the time when the case on behalf of the management or the employer was being presented by the presenting officer having experience in law as an Advocate. The learned Counsel for the petitioner in the course of his argument on this point made reference to the provisions of Regulation No, 6(7) of the Syndicate Bank Officer Employees' (Conduct) Regulations, 1976. He has further referred to the Decision of the Supreme Court in the case of THE BOARD OF TRUSTEES' OF PORT OF BOMBAY v. DILIPKUMAR RAGHAVENDRANATH NADKARNI 1. : (1983)ILLJ1SC , as well as the decision of the Supreme Court in the case of J.K. AGGARWAL v. HARYANA SEEDS DEVELOPMENT CORPORATION LTD 2. : (1991)IILLJ412SC . The petitioner's learned Counsel further submitted that as the petitioner had been denied reasonable opportunity for effective representation and defence, and hearing, the orders impugned are vitiated by error of law and jurisdiction. The learned Counsel further submitted in this regard that the proceedings relating to the case were long delayed. He submitted that the matter related to the period from April, 1970 to November, 1972, but the disciplinary proceedings were initiated some time in April, 1991, in which the final orders were passed imposing the punishment on the petitioner in March, 1993. The petitioner's Counsel contended that on account of long delay in initiating the proceedings, the petitioner was deprived of important evidence and it was not provided to the petitioner on the ground that the same is not available. The petitioner's Counsel submitted, as such infact the petitioner was denied opportunity of furnishing defence evidence in the form of documents from the record of the opposite parties, simply on the ground that the documents were not available and so the entire proceedings have been vitiated by the denial of opportunity and violation of the principles of Natural Justice and fair play. On these two grounds, learned Counsel submitted that the order of punishment and the appellate order is bad. The learned Counsel for the petitioner further submitted that as regard his back wages the opposite parties have illegally deprived the petitioner of what the petitioner would have been entitled to by observing in the order of punishment that - 'I do not find any justification to pay him backwages 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 under suspension'. The learned Counsel for the petitioner invited my attention to order dated 12th September, 1990 and contended that after the acquittal of the petitioner in the criminal case referred to above, the authorities looking to the circumstances considered it fit to withdraw the suspension order, taking the view that suspension of the petitioner would not be necessary and then provided that the question of absence of the petitioner from duty from the date of suspension till the date of his reporting for duty as well as of payment or otherwise of the backwages will be taken for consideration only after the completion and disposal of the disciplinary proceedings contemplated against him as above. Learned Counsel submitted that the question of payment of backwages was to be considered after completion of disciplinary proceedings contemplated at the time as mentioned in that order. So the question of payment or otherwise of the back wages could have been considered after having heard the petitioner, or after having given the petitioner opportunity. Learned Counsel in this regard further submitted that the suspension order basically was non est and not under the provision of law. The suspension order had been passed on December 3, 1976, a copy of which has been annexed as Annexure-C. The learned Counsel submitted that Annexure per se shows that petitioner was suspended pending enquiry into the matter. But no enquiry had been pending against the petitioner nor was any in contemplation. Learned Counsel in this connection again referred to Annexure-D and in particular made a reference to the portion contained in last paragraph of that Annexure, at page-61, namely 'only after completion/disposal of disciplinary proceedings contemplated against him', submitted that therefore no disciplinary proceedings were pending in 1976. Learned Counsel for the petitioner invited my attention to Rule 35(j) of Syndicate Bank Officer's (Conditions of Service) Rules, 1966; a copy of which has been annexed as Annexure-A to the Writ Petition and submitted that under Syndicate Bank Officers (Conditions of Service) Rules, 1966, no disciplinary enquiry or proceedings had been initiated nor was pending against the petitioner on 3.12.76, the suspension order could not have been passed and as such the suspension order was without jurisdiction. He submitted Rule 35(j) of 1966 Rules entitled the disciplinary authority to pass suspension order if the disciplinary authority considered that the continuance on duty of delinquent officer is not desirable in the interest of the Syndicate Bank pending enquiry. Learned Counsel submitted that the suspension order Annexure-C does not so provide for that the petitioner's continuance in service was not considered to be desirable in the interest of the Syndicate Bank and the authority passing the suspension order had not applied its mind on this aspect of the matter and that such suspension order, without condition precedent being fulfilled, was in a way, learned Counsel submitted illegal, void and inoperative, in the sense that though it was open to the opposite parties to take or not; to take work from the petitioner, but the petitioner could not be deprived of his emoluments and wages. He submitted the proceedings of the Criminal Case could not be taken to be covered by expression 'pending enquiry' and Rules existing on that day i.e., Syndicate Bank Officers (Conditions of Service) Rules, 1966 dealing with the matter of suspension did not so provide. So the learned Counsel submitted that the suspension order was per se illegal, as it could not be issued and as such the suspension order passed is a non est order, atleast to this extent that it could not have the effect of depriving the petitioner of his wages for the period of suspension and therefore, the opposite parties i.e., the disciplinary authority as well as the appellate authority acted illegally in depriving the petitioner of his wages or salary for that period, which is a property belonging to the petitioner and has been so treated under the provisions of the Constitution i.e., Article 300A as such. The learned Counsel lastly submitted that the orders of punishment dated 19.3.1993 contained in Annexure-M is liable to be quashed and as such Annexure-M as well as the appellate order dated June 9, 1993 contained in Annexure-P are liable to be quashed and be declared inoperative and that necessary Writ or direction be issued to the opposite parties to pay the entire back wages to the petitioner as well as the entire wages with increments, which are allowed from time to time to other employees of Banks holding same position as petitioner.
14. On behalf of the respondents claim of the petitioner has been vehemently contested. The learned Counsel Sri. K. Radhesh Prabhu submitted that the order of punishment and appellate order do not suffer from any illegality or breach of Rule of Natural Justice or fair play. The learned Counsel submitted that the petitioner had been defended by a very competent officer of the Bank and so even if no orders were passed allowing the petitioner opportunity of being defended by a Counsel the non-disposing of the petitioner's prayer for being allowed to be defended by Counsel of his choice, did not result in causing any damage or obstruction to the petitioner's defence and as such the learned Counsel submitted the arguments of the petitioner's Counsel based on non disposal of that matter referred to in the objections and explanation filed by the petitioner is not material, even if the presenting officer at a later stage oh behalf of the Bank was a Legal Practitioner. Learned Counsel for the respondents further submitted that no material prejudice or injury in the matter of defence has been shown on account of the petitioners not having been provided the facility of being defended by a Legal Practitioner. Learned Counsel for the respondents further submitted that the petitioner himself also did not press at the subsequent stage his demand or request for being represented by a Counsel. So the petitioner should not be allowed to challenge the impugned orders on the ground that the petitioner was not provided the facility of assistance of a Lawyer.
15. The learned Counsel for the respondent, in support of Suspension Order as well as the orders impugned, particularly, that part thereof where the petitioner has been denied of back wages for suspension period as well as other benefits, minus the suspension allowance by being treated not to be on duty, submitted that the Expression 'Pending Enquiry' includes the enquiry in contemplation as well as the Criminal Case, the C.B.I., case and the proceedings relating thereto, in which the petitioner was acquitted on the ground of failure to prove the charge beyond reasonable doubt. He invited my attention to Regufation-12 of Syndicate Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 and contended that an officer or an employee may be placed under suspension by the competent authority in cases where disciplinary proceedings against him is contemplated or pending and he can also be placed under suspension where a case against him in respect of any criminal offence is under investigation, inquiry or trial and therefore he submitted that the suspension order in this case could be covered by Regulation-12(1)(b) and cannot be said to be illegal. He further submitted that it was open to the authorities to pass the order regarding back wages for suspension period as contained in the order impugned and he made a reference to Regulation-15 of Regulations, 1976. He further submitted that with reference to quantum of punishment this Court should not interfere.
15A. I have applied my mind to the contentions made by the learned Counsel for the petitioner as well as to that of learned Counsel for the opposite parties. I propose to deal first with the last point or question. The suspension order in the present case, as per Annexure-C to the Writ Petition, which is at page-59 has been passed as suspending the petitioner under Rule-35(j) of the Syndicate Bank Officers (Conditions of Service) Rules, 1966, which has been passed pending enquiry. The suspension order as admitted by the parties is neither preceded nor followed by the issuance of any charge sheet, nor is followed by initiation of any disciplinary proceedings. The order cannot be deemed to have been passed in contemplation of enquiry as it per se says that pending enquiry into the matter, you are hereby suspended. It is to be noted that this suspension order had been withdrawn by an order dated September 25, 1990. The charge sheet to the petitioner under Regulation-6 of the Regulations of 1976 had been issued on 5th of April, 1991. Therefore the disciplinary proceedings or disciplinary enquiry cannot be said to be pending on the date of suspension order i.e., 3.12.1976. Instead the disciplinary proceedings had been initiated almost 6 or 7 months after the withdrawal of the suspension order. The Syndicate Bank Officer Employees' (Discipline and Appeal) Regulations, 1976, did come into operation on January 1, 1977 vide Regulation No. 1 (ii) of Regulations of 1976. Therefore, as regard the contention of the learned Counsel for the petitioner (hat the suspension order could not be said to have been passed under Regulations of 1976, but purports to be one passed under Rules of 1966 and its veracity and legality has to be looked into and has to be judged in the light of Rules of 1966. The criminal proceedings or a criminal prosecution or investigation in relation to allegations of criminal nature and criminal charges against a delinquent employee do stand on a different footing than the disciplinary proceedings and enquiries. The expression enquiry or pending enquiry had come up for consideration before the Supreme Court. Their Lordships of the Supreme Court in the case of MANAGEMENT OF RANIPUR COLLIERY UNDER M/s EQUITABLE CO. LTD. v. BHUBAN SINGH 3. : (1959)IILLJ231SC in the context of Industrial Disputes Act, took the view that the expression 'enquiry or pending enquiry' as used in Clause-27 of the Standing Orders can only refer to an enquiry by the employer, into the conduct of the employee. Their Lordships have observed 'It is, in our opinion, entirely unnecessary that the words 'pending enquiry', should have been qualified by the words 'by the employer' before they can be interpreted as referring to the enquiry by the employer'. Their Lordships further observed 'We are therefore, of the opinion that in the context in which these words have been used in Clause-27, they mean an enquiry by the employer and are not referable to the proceedings under Section 33 of the Act before the Tribunal.'
16. These observations of Their Lordships do apply with equal force to the interpretation of expression 'pending enquiry' used in Rules of 1966. So, in my opinion under Rules of 1966, power had been conferred to suspend an employee under Rule-35(j) in cases where enquiry by the employer is pending into the conduct or with reference to the conduct of an employee, but it could not include in itself the matters relating to proceedings of Criminal Case in a Court of Law or matters relating to investigation regarding allegations of criminal nature by the police authority and therefore though Rule-35(j) had been referred to in the order of suspension, but as no enquiry preliminary or otherwise was pending, admittedly against the petitioner by the employer or disciplinary authority, 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 on or before 3.12.76 when the suspension order had been passed, no suspension order at that time could be passed and further the suspension order did not also indicate any such thing as the application of mind by the disciplinary authority or the Bank to the question whether continuance of the delinquent officer was not in the interest of the Bank, which is a condition precedent to the passing of the order. Thus considered none of the two conditions precedent were in existence nor were shown to be existing either by the suspension order nor otherwise, in which case the petitioner could be suspended. In my opinion this suspension order would not be termed to have been passed under Rule-35(j) of the Rules of 1966, which at that time authorised the employer-Bank or disciplinary authority to suspend its delinquent officer, if the two conditions precedent were shown to exist, namely pendency of enquiry, and existence of the condition that it was not considered to be in the interest of the Bank to continue the petitioner or the concerned employee on duty.
17. Thus, I am of the opinion that the order of suspension itself was unauthorised one and nonest in the eye of law, as the conditions precedent did not exist.
18. On this very basis that suspension itself was illegal, bad and without any authority of law, though it was open to the employer to take work or not to take the work from the delinquent officer, but under the cover or colour of suspension order, in my opinion the petitioner could not be deprived of his wages and emoluments. Further as I have mentioned earlier that Annexure-D per se shows that no enquiry was pending during the period from 3rd December, 1976 to 1990. Provisions of Rule-35(j) do not refer to enquiry or proceedings in contemplation and so if the proceedings were in contemplation on 25.9.90 or earlier i.e. on 3.12.76, if at all the petitioner's services under Rule-35(j) of 1966 Rules, could not be suspended, and further as no subsequent suspension order had been passed after 3.12.1976. Therefore, there is no need to consider the question, if any suspension order could not have been passed under 1976 Regulations. Therefore, in my opinion alleged suspension order contained in Annexure-C to the Writ Petition and dated 3.12.76 did not entitle the authorities to deprive the petitioner of his emoluments for the period from 3.12.76 to 25.9.90 or thereafter. The learned Counsel for the Bank submitted as mentioned earlier that the order dated 3.12.76 was validated and could be deemed to have been made under the corresponding provisions of Syndicate Bank Officers' Employees' (Conduct and Appeal) Regulations, 1976, which came into operation on 1.1.1977 and he made reference to the provisions of Regulation-22(2)(a) of 1976. Regulation-22-(1) and (2)(a) reads as under:-
'22. (1) Every rule, regulation, bye-law or every provision in any agreement or a resolution corresponding to any of the regulations herein contained and in force immediately before the commencement of these regulations and applicable to the officer employees is hereby repealed.
(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 correspondent provisions of these regulations.'
19, A reading of Clause (2)(a) of Regulation-22 per se shows that an order made or action taken under the provisions so repealed shall be deemed to have been made or taken under the corresponding provisions of this Regulation. When a statute enacts that something should be deemed to have been done which infact or truth has not actually been done, the Court is entitled to regard and to deem it to have been done under the provisions as if actually done, if other conditions or necessary ingredients of that deeming provision or deeming clause are satisfied. Deeming provision intended to enlarge the meaning of a word or to include matters which may or may not follow within the provision (See CONSOLIDATED COFFEE LTD. v. COFFEE BOARD, BANGALORE 4. : [1980]3SCR625 and DOYPACK SYSTEMS PVT. LTD. v. UNION OF INDIA 5. AIR 1980 SC 782 (Supra).
In the present case, Clause-(2) provides that action shall be deemed to have been taken under the provisions of the Regulations of 1976 is that the action should have been done or taken under a corresponding provision of the repealed rule, act or law. Regulation-12, which had been referred to by the Counsel for the Bank, particularly Clauses-(1) & (2) thereof reads as under ;-
'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,
(2) An Officer employee shall be deemed to have been placed under suspension by an order of the competent authority -
(a) with effect from the date of his detention if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours.
(b) with effect from the date of conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forth-with dismissed or removed or compulsorily retired consequent to such conviction.'
20. A perusal of Regulation-12 per se shows that under Regulation-12, the competent authority has been declared entitled under Regulations of 1976, which came into force on 1.1.1977, to place an officer or employee under suspension either in cases where disciplinary proceedings against the employee or the officer is in contemplation or is pending. Under Clause-(b) it has been provided that an officer may be placed under suspension where a case against him in respect of criminal offence is under investigation or enquiry or trial. The criminal offence is investigated by the police authorities under Chapter-12 of the Criminal Procedure Code and enquiry in respect of or criminal trial in respect of criminal offence is provided under Chapter-13 of the Code of Criminal Procedure, vide., Section-178 of the Code.
21. So clause (b) of Regulation-12 of 1976 Regulations refers to investigation, inquiry or trial of criminal offence under Criminal Procedure Code or the like. The expression 'enquiry' in Clause-(b) is used with reference to criminal offence investigation or trial thereof. In Rules of 1966 i.e., Rule- 35(j), the expressions 'pending enquiry' read along with the expression 'persons authorised to take disciplinary action' per se show that under Rule-35(j) of Rules of 1966, it related to enquiry in connection with disciplinary action by the person competent to take disciplinary action. So here the analogous provision to Rule-35(j) is Regulation-12(a) referring to disciplinary proceedings and enquiry thereto. Suspension order dated 3.12.1994 had been passed without there being any disciplinary proceedings or enquiry relating thereto, pending or in contemplation even. As such in my opinion there is no substance in the contention of the learned Counsel for the Bank that suspension order in the present case would be covered under Regulation-12(a) & (b) of the Regulations of 1976. Thus I come to the conclusion and hold that suspension order dated 3.12.76 has been illegal and void and nonest in the eye of law being not covered by Rules of 1966 i.e., Rule 35(j) of 1966 Rules, nor Regulations of 1976.
22. Having thus considered I reject the contention of the learned Counsel for the Bank, and I do hold that the petitioner has wrongfully and illegally been deprived of as well as denied of his emoluments, salary or other benefits for the period from 3.12.76 till the date of reinstatement i.e., 25.9.90, the period during which he was illegally placed under suspension.
23. As regards the next point - whether the order of punishment has been vitiated by error of law or jurisdiction or has been vitiated by violation of the principles of Natural Justice or that it has been vitiated on account of any such things as the non application of mind by the enquiry officer or the disciplinary authority.
24. The learned Counsel for the petitioner has submitted that the petitioner was deprived of effective defence or right to defend, because of failure of the disciplinary authority to provide the petitioner with the assistance of a Legal Practitioner and in particular from the stage at which presenting officer had been changed by the Bank and on behalf of the Bank Smt. Meera Vasanth an Advocate was appointed the Presenting Officer in the case.
25. The Syndicate Bank Officer Employees' (Discipline and Appeal) Regulations, 1976, had been applicable to the disciplinary proceedings initiated against the petitioner in 1991. Regulation- 6(7) of Regulations of 1976 is material. It reads as under :-
'6(7) - The officer employee may take the assistance of any other officer employee but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner or the disciplinary authority, having regard to the circumstances of the case, so permits.'
26. The petitioner while filing the reply to the show cause notice vide, Annexure-G to the charge sheet had claimed and had prayed for the assistance of the Legal Practitioner to defend. In paragraph-15 of the reply dated 14.5.1991 to charge sheet dated 5.4.1991 at page-74 of the paper book, it has been stated 'I also further submit that despite this written statement of defence, if any enquiry is held, I may be given the assistance of a legal practitioner 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'.
27. The petitioner's grievance has been that this prayer of the petitioner has not been considered and disposed of at any stage and he has not been provided with the assistance of Legal Practitioner for the purpose of defending himself in the course of enquiry or disciplinary proceedings and so the proceedings had been vitiated by error of law, on the ground that petitioner has not been provided with effective mode of assistance irrespective of the fact that the case was complicated one and on behalf of the Bank Authorities, the case was being conducted and presented by Presenting Officer who was an Advocate, a Legal Practitioner. Submission on behalf of the petitioner has been that at the least from the stage an Advocate was engaged by the Department to act as the Presenting Officer, it was the duty of the disciplinary authority as well as the enquiry officer to have considered the request of the petitioner and the petitioner should have been allowed to lead his defence with the assistance of a Legal Practitioner and so because of inaction of the opposite parties, the petitioner has been deprived of due opportunity of defence, and on behalf of the opposite party, it has been contended that the petitioner had been provided with defence assistance who was an officer/employee of the Bank and that the delinquent officer had in course of enquiry submitted that during preliminary enquiry proceedings, he will defend himself without seeking assistance of any other officer or employee and however, he also submitted that he would take up the matter with the disciplinary authorities for permitting him to defend his case through a Lawyer during regular session of enquiry, and it was further submitted by the learned Counsel for the Bank, if the petitioner had not taken up the matter with the disciplinary authority, after the filing of the written statement, it is a fault of the petitioner/employee in not reviving his request, which he had made in the letter dated 14.5.91, i.e., the reply to the charge sheet and the blame cannot go to the Bank or the disciplinary authority. The law on the subject has been laid down by the Supreme Court in the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, in the context of Regulation-12(8) of Bombay Port Trust Employees Regulations, 1976, which is almost analogous to Regulation-6(7) of the present Syndicate Bank Officer Employees (Discipline and Appeal) Regulations, 1976. Their Lordships of the Supreme Court in paragraph-9 posed the question and paragraph-9 of that Judgment reads as under:-
'We concern ourselves in this case with a narrow question whether where in such a disciplinary enquiry by a domestic tribunal, the employer appoints Presenting-cum-Prosecuting Officer to represent the employer by persons who are legally trained, the delinquent employee, if he seeks permission to appear and defend himself by a legal practitioner, a denial of such a request would vitiate the enquiry on the ground that the delinquent employee had not been afforded a reasonable opportunity to defend himself, thereby vitiating one of the essential principles of natural justice.'
28. Referring to the earlier Decisions of the Supreme Court in para-12. Their Lordships laid it down as under:-
'In our view we have reached a stage in our onward march to fairplay in action that where in an enquiry before a domestic tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant his request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated. This view has been taken by a learned single Judge and while dismissing the appeal in limine approved by the Division Bench of the High Court commends to us. Therefore, this appeal is liable to be dismissed.'
The Supreme Court further observed.-
'A very feeble submission was made by Mr. Nariman that after the Regulation 12(8) came into force, the request was not renewed. In our opinion, that is hardly relevant. The unjustly refused request was already there and obligation under the regulation coupled with fairplay in action demanded that the employer should have suo motu reviewed his order refusing the request. In fact one can go so far as to say that the Enquiry Officer in order to be fair and just, whenever he finds the employer appointing legally trained persons as Presenting-cum-Prosecuting Officers must enquire from the delinquent employee before commencement of enquiry whether he would like to take assistance of a legal practitioner. The opinion then is with the delinquent employee. In this connection, we would like to refer to a weighty observation on this point where despite constitutional inhibition this Court conceded such a right. In A.K. Roy v. Union of India, : 1982CriLJ340 , the learned Chief Justice while rejecting the contention that a detenu should be entitled to appear through a legal adviser before the Advisory Board observed that Article 22(3)(b) makes it clear that a legal practitioner should not be permitted to appear before an Advisory Board for any party. While noting this constitutional mandate, the learned Chief Justice proceeded to examine, what would be the effect if the department is represented before the Advisory Board by a legally trained person. It was held that in such a situation despite the inhibition of Article 22(3)(b) the fair procedure as contemplated by Article 21 requires that a detenu be permitted to appear by a legal practitioner. Thus spoke the learned Chief Justice:
'We must therefore make it clear that if the Detaining Authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. We are informed that officers of the Government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders, If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly; and no one should be enabled to take shelter behind the excuse that such Officers are not 'legal practitioners' or 'legal advisers'.And this view was taken as flowing from Article 21 which mandates that no one shall be deprived of his life or liberty except in accordance with the procedure prescribed by law. The expression 'Life' does not merely connote animal existence or a continued drudgery through life. The expression 'life' has a much wider meaning. Where therefore the outcome of a departmental enquiry is likely to adversely affect reputation or livelihood of a person, some of the finer graces of human civilisation which make life worth living would be jeopardised and the same can be put in jeopardy only by law which inheres fair procedures.'
29. In the case of J.K. Aggarwal v. Haryana Seeds Development Corporation Ltd. Their Lordships of the Supreme Court quote with approval the Decision of the Board of Trustees of the Port of Bombay's case (supra) and laid down the law as under :-
'On a consideration of the matter, we are persuaded to the view that the refusal to sanction the service of a lawyer in the inquiry was not a proper exercise of the discretion under the rule resulting in a failure of natural justice; particularly, in view of the fact that the Presenting Officer was a person with legal attainments and experience. It was said that the appellant was no less adept having been in the position of a Senior Executive and could have defended, and did defend, himself competently; but as was observed by the learned Master of Rolls in Pett's case that in defending himself one may tend to become 'nervous' or 'toungue tied'. Moreover, appellant, it is claimed, has had no legal background. The refusal of the service of a lawyer, in the facts of this case, results in denial of natural justice.'
30. Thus the Decision of Board of Trustees case itself meets or gives a reply to the argument of the Counsel for the Bank that the petitioner did not review his request for being defended by an Advocate, at least at the stage when an Advocate was appointed as Presenting Officer. It was the duty of the disciplinary authority when it appointed a Legal Practitioner to be a Presenting Officer, it would have asked the delinquent officer, the petitioner, if he so desires or wants to be defended by a defence assistant who is a Legal Practitioner. But the Departmental authorities did not consider it just and proper to either dispose of his request in paragraph-15 of Annexure-C nor while appointing an Advocate as Presenting Officer, provided him the opportunity of being defended by a Legal Practitioner and in such circumstances it can definitely be presumed and held that the petitioner did not get reasonable and fair opportunity of defending or presenting his defence, as the untrained employee was pitted against the Presenting Officer who was trained in law and who had experience of prosecuting the case, as an Advocate.
31. Thus in my opinion there was denial of reasonable opportunity to defend and particularly when petitioner's case has been that the matter is complicated and if assistance of a Legal Practitioner is not provided he may be prejudiced. He was deprived of the benefit of the Counsel, by inaction of the disciplinary authority. In my opinion there cannot be a case worse than the present one in which by the inaction or failure of disciplinary authority to dispose off the petitioner's request for being defended by a Lawyer, had resulted in depriving the petitioner of real opportunity to defend, and as such in my opinion there has been violation of Regulation-6(7) of Regulations of 1976 as well as of the principles of Natural Justice. So the entire order of punishment is void and is vitiated by error of jurisdiction and of law. Apart from this, a perusal of the record shows it was a case of complete mis application or non-application of mind by the enquiry officer as well as by the disciplinary authority and appellate authority that the petitioner was charged and held guilty of violation or breach of Departmental Manual of 1974 i.e., Manual of Instructions dated 25.5.1974, during the period commencing from January 19, 1971 to 1972. Common sense will per se show that a person cannot be punished or cannot be charged for the violation or breach of certain instructions or manual of instructions, which did not exist at the time when he is alleged as per charge, to have committed the breach thereof i.e., of a manual of instructions on May 25, 1974. It is inconceivable. How can a person be said to have violated them in the year 1971 or 1972. It is not the case of the petitioner, as on the date of charge sheet or otherwise that there was some thing such as manual of instructions in 1971 or earlier and the same was violated and therefore this basic fact per se shows that entire charge sheet had been framed and the proceedings on the basis thereof that had been taken against the petitioner including the order of punishment that has been passed on the basis of the findings of the enquiry officers on those charges is the result of nothing but non-application of mind. It was submitted on behalf of the petitioner, as it appears at page-140 of the paper book, that the petitioner M.C. Bhat vide., his letter dated 21.9.92, had submitted his remarks with reference to the findings of the enquiry officers 'that the transactions which were subject matter in the present charge sheet are pertaining to years 1971 and as early as 1972 and the entire liability including penal interest was cleared'. The entire charge was baseless on the ground of violation or Breach of instructions of May 25, 1974 in the year 1971-72, but this defence had not been given consideration by the disciplinary authority while passing an order of punishment. The appellate authority has .also not even applied its mind to this aspect of the matter. Thus considered I find that order impugned dated 19.3.1993 passed by the disciplinary authority as well as appellate order dated June 9, 1993 are the result of non-application of mind by the authorities concerned.
32. Thus considered the enquiry as well as the orders impugned appears to be vitiated by apart from being in violation of the principles of Natural Justice, on this ground as well of non-application of mind by the concerned authorities.
33. The last submission of the petitioner's Counsel was that there was long delay in initiating of disciplinary proceedings and therefore, he was deprived of his defence evidence. The contention of the learned Counsel was that he submitted list of documents to be produced and therefore summoned those documents from the authorities, but the said documents were not provided on the ground that after long interval they were not traceable and therefore those documents could not be produced in defence and petitioner was deprived of defence on account of long delay in initiation of proceedings. The learned Counsel for the respondents submitted that delay was not on account of the inaction of the Bank authorities, instead from 1976 onwards till 1990, there had been proceedings of criminal charges against the petitioner and so Departmental proceedings could not be taken against the petitioner. There is no explanation on behalf of the Bank authorities why disciplinary proceedings could not be taken against the petitioner during the period from 1972 to 1976, when those documents could be available and as criminal prosecution had not been launched nor was any criminal case pending during that period. There being no explanation for not taking any action earlier against the petitioner, it could well be argued that it is on account of the latches or delay on the part of the Bank authorities to initiate action well within the time, the petitioner has been deprived of opportunity to produce evidence in defense in the form of the documents summoned, which as per proceedings could not be supplied to the petitioner.
34. Having thus considered, I am of the opinion that the petitioner has been deprived of the fair and reasonable opportunity of defending himself, as well, in the course of disciplinary proceedings and the order of punishment passed in course of or at the end of these proceedings, which have been the result of denial of fair opportunity to the petitioner to defend and which suffers from the vice of violation of the principles of Natural Justice mentioned above, the entire proceedings have been null and void and the orders passed on the basis thereof being null and void deserve to be quashed, including the order in appeal.
35. Having thus considered the entire matter, I am of the view that the Writ Petition deserves to be allowed and as such the Writ Petition is being allowed by the grant of a Writ of Certiorari quashing the order of punishment in entirety, which is dated 19.3.93 and is contained in Annexure-M to the Writ Petition. The order of the appellate authority, which is dated June 9, 1993 is also being quashed.
36. The petitioner having suffered long, almost for 18 years has really got the punishment, by way of harassment, torture and agony during the trial. He had to face charge in criminal case as well as in Departmental proceedings. There appears no need to pass any order allowing the opposite parties to proceed further, on the basis of the said charge sheet, as charge sheet has already been held by me to be vitiated by error of law and non-application of mind. Therefore, a Writ of Mandamus is issued to the opposite parties, - after having quashed the above mentioned orders dated 19.3.93 and 9.6.93 contained in Annexure-M and P,- directing the opposite parties that they should pay petitioner's entire emoluments including increments for the period of suspension to the date of withdrawing of suspension order i.e., 3.12.76 to September, 1990 or the date on which he was allowed to rejoin the duties, in full, within a period of two months from today. The authorities are also directed to pay the petitioner's wages or salary without any deduction of pay in entirety or the difference between the emoluments paid and the amount to which he would have been entitled, had the order dated 19.3.1993 not been in operation, within the afore mentioned period. The petitioner's salary shall be fixed keeping in view his all the due benefits and increments. There is no order as to costs. Parties are to bear the costs of this Petition.