S KRISHNA Vs. CHIEF GENERAL MANAGER SBI HYDERABAD

JUDGEMENT

(1.) The petitioner has filed the writ petition seeking for a direction in the nature of writ of mandamus to declare clause 3(i) of Circular No: PER: I R:40, dated December 5, 1989 as illegal and unconstitutional and to direct the respondent to pay subsistence allowance to the petitioner in the revised pay scales from May 6, 1987 onwards.

(2.) The backdrop of the case, which led to the filing of this writ petition, is that the petitioner was placed under suspension by the 1st respondent with effect from May 6, 1987 vide reference VIG No. 0563, dated May 6, 1987 and in terms of paragraph 2 thereof, he was paid subsistence allowance as per Rule No. 50-A (7)(i) and (iii) of State Bank of India (Supervising Staff) Service Rules. The 3rd respondent was paying him the subsistence allowance, uninterruptedly from May 6, 1987 till July 31, 1990 every month regularly. But when he approached the 3rd respondent for payment of subsistence allowance for the months of August, 1990 and September, 1990, he refused to pay the same and issued the impugned order in Reference No. SF23, dated October 23, 1990 stating that "the petitioner is not eligible for subsistence allowance with effect from August 13, 1990 vide H.O. instructions". No reasons are assigned for the same, as a result of which, the petitioner was deprived of getting the subsistence allowance. The H.O. instructions were not served on him. The petitioner was convicted and sentenced to suffer S.I. for one year in C.C. No. 17 of 1989 on August 13, 1990 against which he preferred an appeal in Crl. Appeal No. 833 of 1990 before this Court. He also preferred Crl. M.P. No. 2334 of 1990 wherein he was released on bail. He has no other means of living except depending on the subsistence allowance, which he had been getting. Since his contract of service has been subsisting with the respondent-Bank and since the Criminal Appeal No. 833 of 1990 is pending before this Court and this Court has already held in similar cases that subsistence allowance is payable under similar condition, he is entitled to be continued to be paid subsistence allowance. It is further averred that the salary scales for officers in the respondent-Bank have been revised resulting in substantial increase in the emoluments of the officers with effect from November 1, 1987 in terms of impugned : Circular. Clause 3 (i) of the impugned Circular is illegal, arbitrary and unconstitutional inasmuch as a patent discrimination is made between the officers suspended prior to November 1, 1987 and the officers suspended on or after November 1, 1987. The impugned order dated October 23, 1990 stopping the payment of subsistence allowance without assigning any reasons, is illegal and unconstitutional. While the criminal appeal is . pending, he has no other means of living and he is still in service and not terminated from the service. In similar circumstances in W.P. No. 9700 of 1986 even when the petitioner therein was dismissed from service, this Court directed that subsistence allowance be paid to him and the Apex Court confirmed the above judgment and this cases is fully covered by the above judgment.

(3.) The respondent-Bank has filed the counter inter alia contending that in terms of Rule 50-A(7)(1), the employee who is placed under suspension, is entitled to receive subsistence allowance equivalent to half of his substantive salary and such other allowance as the appropriate authority decides. Since the petitioner was placed under suspension on May 6, 1987, the petitioner was eligible for subsistence allowance on the basis of his salary drawn prior to that date. The salaries of officers of the Bank were revised vide impugned circular. Since the petitioner was placed under suspension prior to the date of revision of salary i.e. November 1, 1987, he was not eligible for subsistence allowance on the revised pay scales. In compliance with the orders of this Court in W.P.M.P. No. 2093 of 1990 in W.P. No. 16291 of 1990, dated November 23, 1990, the petitioner was paid subsistence allowance as per pre-revised rates. The respondent-Bank vide its letter dated March 5, 1991, discharged the petitioner from service. The order of discharge of the petitioner from service was made in terms of Section 10(l)(b)(l) of the Banking Regulation Act r/w Rule 50-A(7)(1) of the State Bank of India Supervising Staff Services Rules. Section 10(l)(b) of Banking Regulation Act reads as under: