Judgment:
S.S. Nijjar, J.
1. We have heard the learned counsel for the parties at length and perused the record of the case.
2. Under Clause 21-A(a) of the Certified Standing Orders (hereinafter referred to as 'the Orders'), an employer has the power to suspend the workman against whom disciplinary proceedings are either contemplated or pending or where criminal proceedings in respect of any offence are under investigation or trial. An employer has the power to suspend if the employer is satisfied that it is necessary or desirable to place the workman under suspension. Clause 21-A(b)(ii) of the Orders provides for subsistence allowance during the period of suspension. The petitioner is facing the criminal trial for offences under Sections 302/304/498-A/120-B of the Indian Penal Code and she has been confined in jail since 28.12.2003. Earlier by an order dated 31.12.2003, the petitioner was placed under suspension under Clause 21-A of the Orders with effect from 28.12.2003. The petitioner was informed that she would be entitled for all the financial benefits as provided under Clause 21-A of the Orders. The petitioner was never paid any subsistence allowance. Ultimately, the respondents passed an order dated 16.7.2004 by which the order of suspension dated 31.12.2003 has been withdrawn. It has also been ordered that period of absence of the petitioner will be decided on the conclusion of the enquiry proceedings pending against her. The petitioner challenges the aforesaid order on the ground that she having been suspended, is entitled to receive the subsistence allowance.
3. The respondents have filed a written statement. It has been stated that the order of suspension dated 31.12.2003 had been issued on an erroneous understanding of Clause 21-A(a) of the Orders. Under this Clause, the employer has the discretion to suspend or not to suspend a workman against whom disciplinary proceedings are contemplated or pending. An employer, in every case, is not bound to pass an order suspending an employee against whom disciplinary proceedings ate pending in respect of an offence in which he/she is facing trial. The workman cannot demand as a matter of right that he/she must be suspended when he/she is arrested or facing trial, There is no provision in the Certified Standing Orders of deemed suspension of a workman. Since the order dated 31.12.2003 had been erroneously issued, it was withdrawn by the answering respondent by order dated 16.7.2004. Since the initial order was against the rules, no legal right of the petitioner has been infringed in passing the cancellation of suspension order dated 16.7.2004. We have considered submissions made by the learned counsel for the parties.
4. Clause 21-A (a) of the Certified Standing orders reads as follows:-
21-A SUSPENSION AND SUSPENSION ALLOWANCE DURING DISCIPLINARY PROCEEDINGS.
(A) Where a disciplinary proceedings against a workman is contemplated or is pending or where criminal proceedings against him in respect of any offence are under investigation or trial and the employer is satisfied that it is necessary or desirable to place the workman under suspension, he may by order in writing suspend him with effect from such date as may be specified in the order. A statement setting out in detail the reasons for such suspension, shall be supplied to the workman within a week from the date of suspension.
5. Clause 21-A(b) of the Orders provides that where a workman is placed under suspension under Clause 21-A of the Orders, he/she shall be entitled to subsistence allowance equal to one-half of the basic wages for the first 90 days and three-fourth of such basic wages in case the suspension period exceeds 90 days:
Clause 21-A(b)(ii) is as under:-
Where the enquiry is by an outside agency or as the case may be, where criminal proceedings engaged the workman are under investigation or trial the subsistence allowance shall, for the first one hundred and eighty days from the date of suspension, be equal to one-half of his basic wages, dearness allowance and other compensatory allowance to which workman would have been entitled to if he were on leave. If such enquiry or criminal proceedings gets prolonged and the workman continues to be under suspension for a period exceeding one hundred and eighty days the subsistence allowance shall for such period be equal to three-fourth of such wages.
Provided that where such enquiry or criminal proceedings is prolonged beyond a period of one hundred and eighty days for reasons directly attributable to the workman, the subsistence allowance shall, for the period exceeding one hundred 'and eighty days, be reduced to one-fourth of such wages.
6. In our opinion, the provisions of Clause 21-A(a) and 21-A(b)(ii) of the Orders would be applicable only, in case, where a workman employee is suspended by an order passed by a competent authority. There is no provision under the Certified Standing Orders where a workman can be deemed to be suspended where criminal proceedings are pending against him/her. Clause 21-A of the Orders, clearly postulates passing of a conscious order by a competent authority even where a workman is facing criminal investigation or trial. The provisions contained in Clause 21-A of the Orders, is in contrast to the provisions that has been made in 'SCL Conduct, Discipline and Appeal Rules' which are applicable to various employees other than the workman under the Industrial Disputes Act. In case of the other employees, Rule 26 deals with suspension, which is as under:-
Rule 26 Suspension:
(i) The appointing authority or the authority which is empowered through delegation by the Appointing Authority or any authority to which it is subordinate or the disciplinary authority or any authority empowered in that behalf by the Management by general or special order may place an employee under suspension:
(a) where disciplinary proceedings against him is contemplated for is pending; or
(b) where case against him in respect of any criminal offence is under investigation or trial; or
(c) where, in opinion of the aforesaid authority, he had engaged himself in activities prejudicial to the interest of the Company.
(ii) An employee who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hrs., shall be deemed to have been suspended with effect from the, date of detention by the order of the appointing authority; and shall remain under suspension until further orders.
7. A perusal of the above provisions would clearly show that an employee who is detained in custody for a period exceeding 48 hours, shall be deemed to have been suspended with effect from the date of detention. The respondents, in our opinion, have correctly decided to treat the petitioner to be absent from duty by withdrawing the order of suspension dated 31.12.2003. The order had been issued on the erroneous assumption that Clause 21-A of the Orders provides for deemed suspension. A plain reading of Clause 21 -A of the Orders makes it abundantly clear that the respondents have to pass a conscious order suspending an employee, even in cases where he/she is facing a criminal investigation or trial.
8. Mr. J.S.Bhatti, learned counsel for the petitioner has relied on a Division Bench judgment of this Court in the case of Harinder Singh v. State of Punjab 1998(1) S.C.T. 7089, in support of his submission that the petitioner has to be treated under suspension. The aforesaid judgment, in our opinion, is not applicable to the facts of the present case. The Division Bench in the aforesaid case had the occasion to consider Rule 4.1(b) and 7.5 of the Punjab Civil Services Rules (Punishment and Appeal) Rules, 1970. In that case, a criminal case had been registered against the petitioner. He was arrested on 12.12.1997 and released on bail on 18.12.1997. It was not disputed that for the period during which he remained in custody, he will be deemed to be under suspension by the operation of the provisions of the Punjab Civil Services Rules. The only challenge to the o rder w as o n t he g round that t he petitioner could not h ave been r etrospectively placed under suspension. The aforesaid facts clearly show that the circumstances in the aforesaid case were converse to the facts in the present case. In the present case, the petitioner,is praying for a direction that she be placed under suspension and be granted subsistence allowance.
9. In our opinion, no such mandate can be issued. Whether a workman is to be suspended or not, is for the respondents to decide. Clause 21-A of the Orders does not provide for any deemed suspension.
10. In view of the above, we find that no legal right of the petitioner has been infringed. Dismissed. No costs.