Madhya Pradesh High Court
Pramod Kumar Munshi vs Chairman And Managing Director,Bank Of ... on 4 January, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
W. P. No.6717 of 2011
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: Hon'ble Shri Subodh Abhyankar J.
Writ Petition No.6717 of 2011
Pramod Kumar Munshi
Versus
Chairman and Managing Director, Bank of India & Ors.
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Shri Manoj Munshi, Counsel for the petitioner.
Shri Abhishek Tugnawat, Counsel for the respondents.
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ORDER
(Passed on 04/01/2022) Heard finally with the consent of the parties.
2. This petition has been filed under Article 226 of the Constitution of India being aggrieved of the order dated 07.10.2010 passed by the respondent No.4 - Zonal Manager, Bank of India, Indore by which the respondents have denied the benefit to the petitioner of the pension option by referring to para 3 of Circular No.104/64 dated 24.08.20210 informing that the employees who have ceased to be in the service of Bank on account of incapacitation on medical ground, are not eligible to opt for joining the pension scheme.
3. In brief, the facts giving rise to the present petition are that the petitioner was serving in the respondents-bank and on medical ground, took voluntary retirement on 06.09.2006. The case of the petitioner is that for the purposes of retiral benefits, Bank of India 2 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE W. P. No.6717 of 2011 (Employees) Pension Regulations, 1995 have been framed and as per the aforesaid Regulation, the pensioner has given his option in the scheme, "Banks' Contribution to the Provident Fund", but as per the bi-partite settlement made by the Unions and the Banks about joining pension scheme on 27.04.2010, the respondents issued letters/circulars and informed that the option for joining pension scheme will be open for the period 01.09.2010 to 30.10.2010. According to which the petitioner has submitted his option along with the pension application for pensionary benefits, but the petitioner's claim has been rejected vide letter dated 07.10.2010 referring the branch circular No.104/64 dated 24.08.2010 and it is informed that as par page 3 para 3 of our Branch Circular dated 24.08.2010 the employees who have ceased to be in the service of Bank on account of incapacitation on medical ground are not eligible to opt for joining the pension scheme and as the petitioner was given premature retirement on 06.09.2006 on medical grounds (Ischemic stroke), hence he is not eligible to join the pension scheme.
4. Shri Manoj Munshi, Counsel appearing for the petitioner has submitted that the aforesaid issue has already been settled by the Hon'ble Supreme Court in a latest decision rendered in Special Leave to Appeal (c) No.28093 of 2019 dated 09.07.2021 in the case of Union Bank of India & Ors. Vs. Sapna Roy.
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE W. P. No.6717 of 2011
5. Shri Munshi has also placed on record the original order passed by the Calcutta High Court in case of Sapna Roy (supra) wherein relief sought by the petitioner was allowed against which the Union Bank of India had preferred the Special Leave to Appeal before the Hon'ble Supreme Court. Counsel has further submitted that the scheme was applicable to all banks and as such no distinction can be made if he/she is an employee of Union Bank of India or Bank of India.
6. A reply has also been filed by the respondents and Shri Tugnawat appearing for the respondents/Bank has opposed the prayer. It is submitted that no case for interference is made out as the impugned order is based on the circular dated 24.08.2010, which was binding on the parties. So far as the decision rendered by the Hon'ble Supreme Court in the case of Union Bank of India(supra) is concerned, it is submitted that it is a matter of record.
7. Heard Counsel for the parties and perused the record.
8. The question which falls for consideration of this Court is whether the case is covered by the aforesaid decision rendered by the Supreme Court or the petition is liable to be dismissed.
9. In the case of Sapna Roy (supra) the facts recorded by the Calcutta High Court in para 3, reads as under:-
"3. She became afflicted with Cervical Spondylosis with 4 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE W. P. No.6717 of 2011 multilevel disc degeneration of the lumbar spine. She also developed asthma. A qualified doctor attached to the bank's "staff cardiac clinic", on 6th February, 2007 certified that he agreed with the opinion of the M. R. Bangur, Government Hospital that the appellant was not in a condition to resume her normal duties. This was accepted by the bank which issued a memorandum on 28th April, 2007 acceding to the request of the appellant for premature retirement "due to total incapacity of work". She was paid an exgratia amount of Rs. 8 lakhs. She was relieved of all duties after the office hours of 30th April, 2007. On 27th April, 2010 communicated by a circular dated 27th August, 2010 the respondent bank granted another opportunity to the employees to exercise the option to join the pension scheme. The appellant applied accordingly on 27th October, 2010. The bank informed the appellant by a letter dated 5th July, 2011 that she was not eligible to exercise the option."
10. In paras 7 and 8 regarding the petitioner's ailment the following observations have been made:-
"7. Now, when the above conditions refer to resignation it means a decision consciously and voluntarily taken by an employee to be relieved from service. This is quite different from the situation where an employee is forced to resign by reason of an illness which according to the medical certificate accepted by the bank stated that she was suffering from a hundred percent incapacitating illness. The appellant was forced by circumstances to resign. Most certainly, this is not a case where an employee resigns on his/her own volition, avails of all the benefits, leads a life of choice and thereafter tries to get pension.
8. Hence, in my opinion, Regulation 19 and Clause 7 of the Settlement relating to voluntary retirement had no manner of application to the appellant. She is entitled to the benefit of the pension scheme."
(emphasis supplied)
11. So far as the Hon'ble Supreme Court's decision is concerned, which was passed in an appeal by the Bank against the order passed by the Calcutta High Court, the same reads as under:-
"Heard Mr. Anup G. Chaudhari, learned Senior Advocate in support of the petition and Mr. Siddharth Bhatnagar, learned Senior Advocate for the respondent on caveat. The essential facts leading to the filing of the instant proceedings as set out in the judgment of the High Court which is presently under challenge in this Court, are 1 SLP (C) No. 28093/2019 as under:5
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE W. P. No.6717 of 2011 "The appellant was appointed as Hindi Officer of the bank on 2nd January, 1984. On 12th November, 2005 she was transferred to Siliguri. She became afflicted with Cervical Spondylosis with multilevel disc degeneration of the lumbar spine. She also developed asthma. A qualified doctor attached to the bank's "staff cardiac clinic", on 6th February, 2007 certified that he agreed with the opinion of the M.R. Bangur, Government Hospital that the appellant was not in a condition to resume her normal duties. This was accepted by the bank which issued a memorandum on 28th April, 2007 acceding to the request of the appellant for premature retirement "due to total incapacity of work". She was paid an exgratia amount of Rs.8 lakhs. She was relieved of all duties after the office hours of 30th April, 2007. On 27th April, 2010 communicated by a circular dated 27th August, 2010 the respondent bank granted another opportunity to the employees to exercise the option to join the pension scheme. The appellant applied accordingly on 27th October, 2010. The bank informed the appellant by a letter dated 5th July, 2011 that she was not eligible to exercise the option. The ground relied upon by the bank was that the appellant had retired voluntarily by resignation and was, thus, not eligible for pension by the operation of the said settlement and regulations."
Without going into the reasoning which weighed with the High Court in rejecting the claim of the respondent herein, in the peculiar facts and circumstances of the case on record, we see no reason to exercise our jurisdiction under Article 136(1) of the Constitution of India. The special leave petition is dismissed."
12. In the light of the aforesaid factual aspect of the case of Sapna Roy (supra) it is to be seen whether the petitioner was suffering from such ailment which left him/her with no choice, but to opt for the voluntary retirement. It is found that in Annexure P/2, which is an application for option of pension in the pensioner's profile, it is mentioned that the premature retirement was on the ground of medical ground. In the medical details of the pensioner, it is mentioned that he was suffering from left sided part paralysis in arm and leg. In his disability certificate, it is stated that he is suffering from 40 to 50% disability. Vide letter dated 15.09.2006 which refers to premature retirement on medical grounds issued by the Bank of 6 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE W. P. No.6717 of 2011 India, the same reads as under:-
"Premature Retirement on Medical Grounds.
We refer to your application dated 17.3.2006, requesting for your Premature retirement from Bank's Service on medical grounds (Ischaemic Stroke).
Having regard to your request and considering the fact that you have been declared permanently totally incapacitation by Medical Board, Indore, we advise that Competent Authority has approved your premature retirement from Bank's Service on 06.09.2006.
Accordingly, you are hereby relieved from Bank's Services w.e.f. 06.09.2006 on medical grounds."
(emphasis supplied)
13. In the reply filed by the respondents/bank, it is found that nowhere in the aforesaid reply it is pleaded by the respondents/bank that the petitioner was not suffering from such incapacitation, which would not allow him to continue with his service. Although, the respondents have quoted Clause 3 of the Branch Circular No.104/64 dated 24.08.2010, which reads as under:-
"It also may be noted that the employees who have ceased to be in service of the Bank on account of Resignation/Voluntary Retirement under Officers Service Regulation 19/incapacitation/on medical grounds/any other type of cessation of account of penalty proceedings are not eligible for joining the Pension Scheme. Also existing Pension Optees cannot revoke their option from Pension to CPF."
(emphasis supplied)
14. It is found that the stand taken by the respondent has already been considered by the Calcutta high court in the case of Sapna Roy(supra) and this court respectfully agrees with the finding recorded by the learned judge of the Calcutta High Court. In view of the aforesaid pleadings, in the light of the dictum of Hon'ble Supreme 7 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE W. P. No.6717 of 2011 Court in the case of Sapna Roy (supra) wherein the decision of the Calcutta High Court has been affirmed, it is found that the petitioner has made out a case for interference by this Court. Thus, the impugned communication dated 07.10.2010 is hereby quashed and resultantly, the respondents/bank are directed to process the application of the petitioner for pension resulting in the grant of pension within three months of communication of this order, subject to the petitioner surrendering any special benefit received on his resignation/ voluntary retirement, as determined and communicated by the bank within four weeks of communication of this order and surrendered by the petitioner within three weeks thereafter.
15. With the aforesaid, writ petition is allowed and disposed of.
C. c. as per rules.
(SUBODH ABHYANKAR) JUDGE Pankaj Digitally signed by PANKAJ PANDEY Date: 2022.01.04 16:37:50 +05'30'