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Punjab-Haryana High Court
Raj Pal Singal vs State Bank Of India And Others on 20 May, 2009

C.W.P. No.7588 of 2009 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

C.W.P. No.7588 of 2009

DATE OF DECISION: MAY 20, 2009

Raj Pal Singal

.....PETITIONER

Versus

State Bank of India and others

....RESPONDENTS

CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL ---

Present: Mr.Ashwani Gaur, Advocate,

for the petitioner.

..

SATISH KUMAR MITTAL, J.

The petitioner, who was working as Officer, Junior

Management Grade Scale-I in the respondent-bank and has been removed

from service as a penalty in terms of Rule 67(i) of State Bank of India

Officers Service Rules (hereinafter referred to as `the Service Rules'), has

filed the instant petition for issuing direction to the respondent-bank to

grant him the pensionary benefits in view of the provisions of Rule 22 of the

State Bank of India Employees' Pension Fund Rules (hereinafter referred to

as `the Pension Fund Rules') ; and further also to grant him the subsistence

allowance admissible to the petitioner during his suspension period in view

of the provisions of Rule 68A(7)(i) of the Service Rules.

In the present case, in the year 1981, a charge-sheet was issued

to the petitioner for commission of various acts of irregularities and lapses.

During the pendency of the disciplinary departmental proceedings, the C.W.P. No.7588 of 2009 -2-

petitioner was placed under suspension. The Inquiry Officer found that

some of the charges levelled against the petitioner were fully proved,

whereas some of the charges were held to be partly proved. On considering

the said enquiry report, the Disciplinary Authority (respondent No.2 herein)

passed the order of dismissal of the petitioner from service on 2.4.1983 in

terms of Rule 67(h) of the Service Rules. The petitioner filed an appeal

against the dismissal order, which was dismissed on 10.5.1983. The review

application filed by the petitioner was also dismissed on 23.5.1984.

Feeling aggrieved against those orders, the petitioner

challenged the same by filing CWP No.3350 of 1987. This Court vide order

dated 3.7.2003 allowed the said writ petition and quashed the order of

dismissal dated 2.4.1983 as well as the orders of the Appellate Authority

and the Reviewing Authority, and remanded the matter to the Disciplinary

Authority to take the fresh decision from the stage at which the enquiry

report had been submitted by the Inquiry officer, and to pass a fresh order.

In pursuance of the said judgment, the petitioner was ordered to

be reinstated. However, the issue regarding back wages and subsistence

allowance was left to be considered and decided by the Disciplinary

Authority while taking the final decision on the enquiry report. Thereafter,

the Disciplinary Authority, while holding the petitioner guilty of the charges

proved against him in the enquiry, passed the order dated 13.2.2004 in terms

of Rule 67(i) of the Service Rules, whereby the petitioner was ordered to be

removed from service. Regarding back wages and subsistence allowance, it

has been ordered that no such benefits shall be paid to the petitioner for the

suspension period. Against the said order, the petitioner preferred an appeal.

The same was dismissed on 23.11.2004. The petitioner again challenged the C.W.P. No.7588 of 2009 -3-

order of removal as well as the order of the Appellate Authority by filing

CWP No.8508 of 2005, which the petitioner withdrew with liberty to

approach the Civil Court or the departmental authorities.

Thereafter, the petitioner neither filed the civil suit nor filed

any review petition against the above-said order of penalty. However, the

petitioner served a legal notice for setting aside the order of removal and the

order of the Appellate Authority. In the said notice, he had also claimed that

he was entitled to subsistence allowance in view of the provisions of Rule

68A(7)(i) of the Service Rules and pensionary benefits in view of the

provisions contained in Rule 22 of the Pension Fund Rules. When the said

claim was not accepted by the respondent-bank, the petitioner filed the

instant petition.

In this petition, the petitioner is making two-fold claim. Firstly,

that even after the order of removal from service, the petitioner is entitled

for pension under Rule 22 of the Pension Fund Rules. Secondly, he is

entitled for subsistence allowance, which is admissible to him during the

period he remained under suspension, under Rule 68A(7)(i) of the Service

Rules.

After hearing the counsel for the petitioner and going through

the contents of the petition as well as various orders annexed and the Rules

reproduced in the petition, I am of the opinion that the petitioner is not

entitled for either of the claims. It is the case of the petitioner that as per the

Circular/Instructions of the respondent bank, which have been

acknowledged in Annexure P-8, even an officer, who has been removed

from service, is entitled to pension, provided he is eligible for pension in

accordance with the Pension Fund Rules. Under Rule 22(i)(d) of the C.W.P. No.7588 of 2009 -4-

Pension Fund Rules, an officer is entitled for pension if he along with other

conditions has completed 20 years of pensionable service. Rule 21 of the

Pension Fund Rules pertains to pensionable service. As per this Rule, the

period of suspension can be counted towards the pensionable service only

if the suspension period has been so declared to be counted by the

Disciplinary Authority. Rule 68A of the Service Rules deals with the

suspension of an officer and the same is reproduced as under:-

"Suspension

68A(1) An officer may be placed under suspension by the Disciplinary 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) If an officer who is detained under custody whether on a criminal charge or otherwise for a period exceeding forty-eight hours is placed under suspension by an order of the Disciplinary Authority, it shall be open to the Disciplinary Authority to give effect to such suspension from a retrospective date not earlier than the date of such detention or such conviction.

Explanation: The period of forty-eight hours referred to above shall be computed from the commencement of the imprisonment after conviction or detention and for this purpose, intermittent periods of imprisonment or detention, if any, shall be taken into account.

(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon an officer under suspension is set aside in appeal or on review under rule 69 and the case is remitted for further inquiry or action or with any directions, the order of his suspension shall be deemed to have continued in force on and from the C.W.P. No.7588 of 2009 -5-

date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.

(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon an officer under suspension is set aside or declared or rendered void in consequence of, or by, a decision of court of law, and the Disciplinary Authority on consideration of the circumstances of the case decides to hold further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was

originally imposed, the officer shall be deemed to have been placed under suspension by the Disciplinary Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. (5)(a) An order of suspension made under this rule shall continue to remain in force until modified or removed by the authority which made the order;

(b) An order of suspension made under this rule may at any time be modified or revoked by the authority which made the order.

(6) No leave shall be granted to an officer under suspension. (7)(i) An officer who is placed under suspension shall be entitled to receive during the period of such suspension and subject to clauses (ii) and (iii) subsistence allowance equal to half his substantive salary and such other allowances as the competent authority may decide. (ii) During the period of suspension an officer may, at the discretion of the Bank, be allowed occupation of an official house up to a period of four months but shall not be entitled to free use of the Bank's car or receipt of conveyance or entertainment allowance or special allowance.

C.W.P. No.7588 of 2009 -6-

(iii) No officer who is under suspension shall be entitled to receive payment of subsistence allowance unless he furnishes a certificate that he is not engaged in any other employment, business, profession or vocation.

(8)(i) Where the Appointing Authority holds that the officer has been fully exonerated or that the suspension was unjustifiable, the officer shall be granted the full pay to which he would have been entitled, had he not been so suspended, together with any allowance of which he was in receipt immediately prior to his suspension or may have been sanctioned subsequently and made applicable to all officers. The period of absence from duty in such a case shall, for all purposes, be treated as period spent on duty.

(ii) In all cases other than those referred to in clause (i) above and where the officer has not been subjected to the penalty of dismissal, the period spent under suspension shall be dealt with in such a manner as the Disciplinary Authority may decide and the pay and allowances of the officer during the period adjusted accordingly."

A perusal of sub-rule(8)(i) of Rule 68A of the Service Rules

shows that if an officer is fully exonerated or his suspension was found to

be totally unjustified, then the officer shall be granted the full pay, which he

would have been entitled, had he not been so suspended. This Clause further

provides that the period of absence from duty in such a case shall, for all

purposes, be treated as period spent on duty, whereas Clause (ii) of sub-rule

(8) provides that in all other cases and where the officer has not been

subjected to the penalty of dismissal from service, the period spent under

suspension shall be dealt with in such a manner as the Disciplinary

Authority may decide and the pay and allowances of the officer during the C.W.P. No.7588 of 2009 -7-

period adjusted accordingly. Under this Clause, the period of absence from

duty cannot be treated as the period spent on duty unless it is so expressly

and specifically ordered by the Disciplinary Authority. Admittedly, in the

instant case the pensionable service of the petitioner comes to 11 years and

7 months only after deducting the suspension period. If his pensionable

service period is taken to be 11 years and 7 months, then according to Rule

22(i)(d) of the Pension Fund Rules, the petitioner is not eligible for pension.

It is the case of the petitioner that the suspension period of the petitioner

should be treated as duty period, and if that period is counted towards the

pensionable service, then his pensionable service comes to more than 20

years, which makes him eligible for pension. Counsel for the petitioner

argued that since in this case no specific order was passed by the

Disciplinary Authority regarding not treating the suspension period as duty

period while imposing the penalty of removal from service, therefore, it

should be presumed that the said period is to be treated as duty period. This

contention of the learned counsel cannot be accepted. Concededly, while

passing the order of penalty of removal from service, it was specifically

ordered that no subsistence allowance or back wages shall be paid to the

officer for the suspension period. In view of the said specific order, the

suspension period cannot be treated as duty period. Sub-clause (ii) of sub-

rule (8) of Rule 68A of the Service Rules clearly provides that in all other

cases and where the officer has not been subjected to the penalty of

dismissal from service, the period spent under suspension shall be dealt with

in such a manner as the Disciplinary Authority may decide and the pay and

allowances of the officer during the period adjusted accordingly. In this

case, while imposing the penalty of removal, the Disciplinary Authority has C.W.P. No.7588 of 2009 -8-

specifically ordered that no subsistence allowance or back wages shall be

paid to the petitioner. In view of the said decision, it cannot be said that the

period of absence from duty should have been treated as period spent on

duty. The period of absence from duty can only be treated as period spent on

duty in case the officer has been fully exonerated or the suspension was

found to be totally unjustified. As per sub-clause (ii) of sub-rule (8) of Rule

68A of the Service Rules, it is entirely at the discretion of the Disciplinary

Authority to decide about the pay and allowances of the officer during the

period he remained under suspension and adjust the same accordingly,

where the officer has not been exonerated and when he has not been

subjected to the penalty of dismissal. In this case, the Disciplinary Authority

has exercised the said discretion while coming the conclusion that no

subsistence allowance or back wages shall be paid to the petitioner. Further,

the petitioner has neither been fully exonerated nor his suspension has been

found to be unjustified, therefore, the respondents have rightly excluded the

period of suspension of the petitioner from his pensionable service which

makes him dis-entitled for pensionary benefits.

Counsel for the petitioner also argued that as per Clause (i)(b)

of Rule 22, the petitioner is entitled to pension after having completed ten

years of pensionable service. The petitioner was in the service of the

respondent bank on or after 1.11.1993 and when he was removed from

service he had attained the age of 58 years. Therefore, he is fulfilling all the

conditions of the said Clause which makes him entitled for the pension. This

contention of the counsel for the petitioner also cannot be accepted. In my

opinion, the case of the petitioner falls under Clause (i)(d) of Rule 22 of the

Pension Fund Rules. Rule 22 is reproduced as under:- C.W.P. No.7588 of 2009 -9-

"22 (i) A member shall be entitled to a pension under these rules on retiring from the Bank's service-

(a) After having completed twenty years' pensionable service provided that he has attained the age of fifty years; or

(b) If he is in the service of the Bank or or after 1.11.93, after having completed ten years pensionable service provided that he has attained the age of fifty eight years; or (c) If he is in service of the Bank on or after 22.05.1998, after having completed 10 years' pensionable service provided that he has attained the age of 60 years;

(d) After having completed 20 years' pensionable service irrespective of the age he shall have attained, if he shall satisfy the Authority competent to sanction his

retirement by approved medical certificate or otherwise that he is incapacitated for further active service.

(e) After having completed 20 years' pensionable service, irrespective of age he shall have attained at his request in writing if accepted by the Competent Authority with effect from 20th September 1986;

(f) After 25 years' pensionable service.

ii) A member who has attained the age of 55 years or who shall be proved to the satisfaction of the authority empowered to sanction his retirement to be permanently incapacitated by bodily or mental infirmity from further active service, and not as a result of irregular or intemperate habits, may, at the discretion of the Trustees, be granted a proportionate pension. iii) A member who has been permitted to retire under clause 1 (c) above shall be entitled to proportionate pension."

The case of the petitioner falls under Clause (d) as the petitioner has been

removed from service, therefore, he has become incapacitated for further

active service. In view of the said fact, irrespective of the age, such an C.W.P. No.7588 of 2009 -10-

officer is entitled for pension after having completed 20 years of

pensionable service. Since the pensionable service of the petitioner is of 11

years and 7 months, therefore, he is not entitled for pension.

Regarding the second claim, the Disciplinary Authority has

specifically ordered that no back wages or subsistence allowance shall be

paid to the petitioner and the said order of the Disciplinary Authority was

upheld by the Appellate Authority as well as by this Court when the

petitioner withdrew aforesaid CWP No.8508 of 2005 challenging the said

orders of Disciplinary and Appellate Authorities. Therefore, those orders

have become final as the same have neither been set aside in any civil suit

nor by the reviewing authority.

In view of the aforesaid, I do not find any merit in the petition

and the same is hereby dismissed.

May 20, 2009 (SATISH KUMAR MITTAL) vkg JUDGE

(Refer to Reporter)