LPA No. 1169 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 1169 of 2009 (O&M) Date of decision:- 06.10.2010 Raj Pal Singal ......Appellant Vs State Bank of India through the Chairman, State Bank of India and others. ......Respondents CORAM:- HON'BLE MR. JUSTICE RANJAN GOGOI HON'BLE MR. JUSTICE RAJAN GUPTA Present: - Mr. V.K. Jain, Senior Advocate, with Mr. Ashwani Gaur, Advocate, for the appellant. Mr. Kapil Kakkar, Advocate, for the respondents. * * * * RANJAN GOGOI, J (ORAL) Heard. With the consent of the learned Counsel for the parties and having regard to the subject matter involved the appeal is being disposed of at the motion stage. The appellant/writ petitioner was appointed in the State Bank of India in the year 1967. On 20.01.1980 he was placed under suspension and following a departmental inquiry he was dismissed from service on 02.04.1983. The appellant/writ petitioner instituted a writ proceeding before this Court i.e. CWP No. 3350 of 1987 which LPA No. 1169 of 2009 (O&M) 2 was allowed on 03.07.2003 by interfering with the order of dismissal and directing the recommencement of the proceeding against him from the stage of submission of the report of inquiry. Thereafter, the appellant/writ petitioner was reinstated in service by the order (Annexure P3). By the said order the appellant/writ petitioner was placed under suspension once again w.e.f. 02.04.1983. Thereafter, the proceeding that was directed to be recommenced by this Court stood concluded by an order dated 26.04.2004 imposing the punishment of removal from service and further directing that no back wages and subsistence allowance during the period of suspension would be payable to the appellant/writ petitioner. The appellant challenged the aforesaid order dated 26.04.2004 by instituting a writ petition i.e. CWP 8508/2005 before this Court. The said writ petition was, however, withdrawn with liberty to file a civil suit or to approach the departmental authorities. Thereafter, a demand was raised seeking pension and subsistence allowance. The same having been rejected by communication dated 20.09.2006 the writ petition out of which this appeal has arisen was filed. The learned Single Judge hearing the writ petition took the view that the case of the appellant/writ petitioner was covered by the provisions of Rule 22 (i)(d) of the Pension Rules of the Bank which required 20 years of completed service. As the appellant/writ petitioner did not have the said length of service to his credit the claim of pension made in the writ petition was rejected. The second claim raised in the writ petition i.e. subsistence allowance was negated by the learned LPA No. 1169 of 2009 (O&M) 3 Single Judge on the ground that the order of punishment imposed justified the same. In the appeal before us, it is the entitlement of the appellant/writ petitioner to pension and subsistence allowance during the period of suspension which alone has been decided. In so far as pension is concerned, Rule 22 of the Pension Rules deals with the period of pensionable service that an employee in the Bank is required to have so as to entitle him to pension upon his retirement. It is not the case of the parties before us that the appellant/writ petitioner had retired from service. Rather the appellant/writ petitioner had been removed from service as a measure of punishment. If that be so, Rule 22 will have no application to the case of the appellant/writ petitioner. From the materials on record (Annexure P/4) it appears that a decision has been taken with regard to payment of pension following an order of removal or compulsory retirement of an employee provided such employee had rendered 25 years of service. The claim of the writ petitioner to pension has not been structured on that basis, possibly, because he does not have 25 years of service to his credit. In the aforesaid facts it has to be held that the appellant/writ petitioner is not entitled to pension on the basis of the claim raised in the writ petition. In so far as subsistence allowance is concerned we have noticed that an employee under suspension is entitled to subsistence allowance on furnishing a certificate in terms of Rule 7.3(1) of the Rules to the effect that such employee is/was not gainfully employed LPA No. 1169 of 2009 (O&M) 4 during the period of suspension. If the employee can establish the said fact subsistence allowance will have to be paid by the employer. In the present case subsistence allowance has not been released to the appellant/writ petitioner by the order dated 26.04.2004 on the ground that he has been removed from service. Removal from service will not dis-entitle an employee to subsistence allowance during the period he was under suspension provided he was not gainfully employed during this period. We, therefore, direct that the appellant/petitioner shall furnish a certificate of his not being gainfully employed during the period of suspension or any part thereof to the authority of the Bank and if the same is so done subsistence allowance for such period as may be found due shall be paid to him. The above exercise will be completed by the Bank within a period of two months from the date of furnishing of the requisite certificate by the appellant/writ petitioner. Letters Patent Appeal is disposed of in the above terms. (RANJAN GOGOI) JUDGE (RAJAN GUPTA) 06.10.2010 JUDGE Amodh