Parmeshwar Dutta Tewari vs State Bank of India and Others

R.A. Sharma and S. Rafat Alam, JJ.—The Petitioner, who was an Officer of the State Bank of India, was suspended vide order dated 29.5.1982. After holding the departmental enquiry against him, he was removed from service by order dated November 5, 1984. His writ petition challenging the order of removal was dismissed. Petitioner, thereafter, requested the Bank for payment of provident fund, travelling allowance, gratuity and pension. No action having been taken by the Bank at his request, he filed this writ petition for a writ of mandamus directing the Respondents to pay him aforesaid dues.

Bank has filed counter-affidavit and the Petitioner has filed rejoinder-affidavit in reply thereto. We have heard learned counsel for the parties.

In its counter-affidavit, the Bank has not disputed the claim of the Petitioner to pension, provident fund, gratuity, etc. and in fact, it has stated in paragraph 12 of the same counter-affidavit that his claim for the aforesaid dues will be settled within three/four months. However, in the counter-affidavit, it has further been stated by the Bank that the aforesaid dues will be calculated on the basis of service rendered by the Petitioner till the date of suspension.

An employee continues to remain in service till he/she is dismissed or removed from service or his/her service is terminated and in the absence of dismissal, removal or termination of service till he/she resigns or retires from service. By order of suspension the contract of the employment does not come to an end and an employee continues to remain in service. The only effect of suspension is that he is not permitted to work and is paid subsistence allowance in accordance with the terms of contract of the employment or the rules governing the conditions of his service. In this connection reference may be made to the The State of Madhya Pradesh Vs. The State of Maharashtra and Others, , wherein it was laid down as under:

The order of suspension does not put an end to his service. Suspension merely suspends the claim to salary. During suspension there is suspension allowance. See Khem Chand Vs. Union of India (UOI), where this court said that the real effect of the order of suspension is that though he continues to be a member of the service he is not permitted to work and is paid only subsistence allowance which is less than his salary.

The period of service of an employee till he ceases to be a member of the service is liable to be taken into account while fixing the pension, etc., unless the terms in contract of employment or the rules governing the condition of service provide otherwise. In the instant case, no such contract or rules has been placed before us. Therefore, the period of service of the Petitioner till he was removed from service is liable to be taken into consideration for calculating the pension, etc.

For the reasons given above, this writ petition is allowed with costs. Respondents are directed to calculate and finalise the claim of the Petitioner for pension, provident fund, gratuity, etc., in accordance with the observations made hereinbefore and pay the same to him within a period of two months from the date of presentation of a certified copy of this order before them.