Madras High Court
S.Gnanasekaran vs The General Manager on 3 August, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
WP No.20317 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03-08-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.20317 of 2014
And
WMP No.20907 of 2017
S.Gnanasekaran .. Petitioner
vs.
1.The General Manager,
Canara Bank Head Office,
Industrial Relations Section,
Personnel Wing,
J.C.Road,
Bangalore – 560 002.
2.The General Manager,
Canara Bank,
Human Resources Wing,
Head Office,
Industrial Relations Section,
112, J.C. Road,
Bangalore – 560 002.
1/33
https://www.mhc.tn.gov.in/judis
WP No.20317 of 2014
3.The Deputy General Manager,
Canara Bank,
Human Resources Wing,
Head Office,
Industrial Relations Section,
112, J.C. Road,
Bangalore – 560 002.
4.The General Manager,
Canara Bank,
Circle Office,
No.524, Anna Salai,
Teynampet,
Chennai – 600 018.
5.The Assistant General Manager,
Canara Bank,
129, Royapettah High Road,
Mylapore,
Chennai – 600 004.
[R-2 to R-5 impleaded vide order of
Court dated 03.08.2022 made in
WMP No.20905 of 2017 in WP
No.20317 of 2014] .. Respondents
Writ Petition is filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorarified Mandamus, calling for
the records in connection with the rejection order Ref:HRW:IRSINPS:20:
2151:2014 dated 14.05.2014 passed by the Deputy General Manager,
Canara Bank, the third respondent herein, and quash the same and
consequently direct the first and second respondents herein to extend the
Pension Scheme to the petitioner. [Prayer amended vide order of Court dated
2/33
https://www.mhc.tn.gov.in/judis
WP No.20317 of 2014
03.08.2022 made in WMP No.20906 of 2017 in WP No.20317 of 2014].
For Petitioner : Ms.V.J.Latha
For Respondents : Mr.C.Seethapathy
ORDER
The amended relief sought for in the present writ petition is to quash the order of rejection dated 14.05.2014 issued by the third respondent and to direct the respondents 1 and 2 to extend the Pension Scheme to the writ petitioner.
2. The impugned order states that the petitioner is not eligible for option for pension as per the pension option extended during the year 2010 vide Circular dated 21.08.2010. Moreover, as per the Regulation 22 of the Canara Bank Employees Pension Regulations 1995, since resignation etc., shall entitle for forfeiture of entire past services of certain other employees.
3/33https://www.mhc.tn.gov.in/judis WP No.20317 of 2014
3. The petitioner states that he was appointed as Clerk in the respondent-Canara Bank on 17.02.1984 and after serving for about 25 years, submitted an application for resignation, which was accepted and the petitioner was relieved from service on 31.07.2008.
4. The fourth respondent issued Circular No.297/2010 dated 21.08.2010, extending the option to all the Officers/workmen employees, who were in service of the respondent-Bank prior to 21.10.1995 and retired after the day and prior to 27.10.2010 to join in the Canara Bank Pension Regulations, 1995.
5. The petitioner states that Clause (5) of the Circular restrict the employees who were gone under voluntary retirement under the Voluntary Retirement Scheme and therefore, the petitioner was ineligible to opt the Pension Scheme as per the Circular. The petitioner submitted an application on 07.10.2010 opting to join the Pension Scheme and agree to pay the necessary contributions. However, the fourth respondent by letter dated 14.10.2010 informed the petitioner that he is ineligible to opt for 4/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 Pension Scheme under Circular No.297/2010 dated 21.08.2010. Further Circular was issued by the second respondent on 13.12.2012 extending the benefit of option for the Pension Scheme even to non-optee Officers. The petitioner submitted a representation requesting the first respondent to permit him to opt for the Pension Scheme as per the Circular issued on 21.08.2010. However, no reply was given and the petitioner filed the present writ petition. During the pendency of the writ petition, a reply was issued by the respondent rejecting the claim of the writ petitioner and thus the petitioner filed the miscellaneous application to amend the relief, which is ordered.
6. The learned counsel for the petitioner made a submission that there was no option for the petitioner to go under Voluntary Retirement Scheme and therefore, he submitted an application for resignation, which was accepted. Thus for all purposes, the resignation of the petitioner is to be treated as voluntary retirement and the option extended to the retired employees in the year 2010, must be extended to the petitioner also. It is contended that when there is no provision for voluntary retirement under the 5/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 Regulations and the employee was relieved from service based on his application for resignation, the long services of 25 years rendered by the petitioner is to be taken into consideration for the purpose of extending the benefit of option to opt the Pension Scheme.
7. The learned counsel for the petitioner made a submission that the petitioner admittedly was an employee/workman and the Special Voluntary Retirement Scheme of the year 2000 was made eligible to the workmen as well as to the Officers of the respondent-Bank. While-so, the extension permitting the employees to opt for the Pension Scheme must be extended to the employees, who were deprived of the benefit of Voluntary Retirement Scheme during the relevant point of time.
8. To support the said contention, the judgment of the Hon'ble Supreme Court of India in the case of In the case of Sheelkumar Jain Vs. New India Assurance Company Limited and others [(2011) 12 SCC 197], the Hon'ble Supreme Court of India made the following observations:
“22. We may now look at Paras 22 and 30 of the 1995 6/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 Pension Scheme which are quoted hereinbelow:
“22.Forfeiture of service.—Resignation or dismissal or removal or termination or compulsory retirement of an employee from the service of the corporation or a company shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits.
***
30.Pension on voluntary retirement.—(1) At any time after an employee has completed twenty years of qualifying service, he may, by giving notice of not less than ninety days, in writing to the appointing authority, retire from service:
Provided that this sub-paragraph shall not apply to an employee who is on deputation unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year:
Provided further that this sub-paragraph shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking to 7/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 which he is on deputation at the time of seeking voluntary retirement.
(2) The notice of voluntary retirement given under sub-para (1) shall require acceptance by the appointing authority:
Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
(3)(a) An employee referred to in sub-para (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than ninety days giving reasons therefor;
(b) on receipt of request under Para (a), the appointing authority may, subject to the provisions of sub-para (2), consider such request for the curtailment of the period of notice of ninety days on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of ninety days on the condition that the employee 8/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 shall not apply for commutation of a part of his pension before the expiry of the notice of ninety days.
(4) An employee who has elected to retire under this paragraph and has given necessary notice to that effect to the appointing authority shall be precluded from withdrawing his notice except with the specific approval of such authority:
Provided that the request for such withdrawal shall be made before the intended date of his retirement.
(5) The qualifying service of an employee retiring voluntarily under this paragraph shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty-three years and it does not take him beyond the date of retirement.
(6) The pension of an employee retiring under this paragraph shall be based on the average emoluments as defined under clause (d) of Para 2 of this Scheme and the increase, not exceeding five years in his qualifying service, shall not entitle him to any notional fixation of pay for the purpose of calculating his pension.9/33
https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 Explanation.—For the purpose of this paragraph, the appointing authority shall be the appointing authority specified in Appendix I to this Scheme.”
25. Para 22 of the 1995 Pension Scheme states that the resignation of an employee from the service of the corporation or a company shall entail forfeiture of his entire past service and consequently he shall not qualify for pensionary benefits, but does not define the term “resignation”. Under sub-para (1) of Para 30 of the 1995 Pension Scheme, an employee, who has completed 20 years of qualifying service, may by giving notice of not less than 90 days in writing to the appointing authority retire from service and under sub-para (2) of Para 30 of the 1995 Pension Scheme, the notice of voluntary retirement shall require acceptance by the appointing authority. Since “voluntary retirement” unlike “resignation” does not entail forfeiture of past services and instead qualifies for pension, an employee to whom Para 30 of the 1995 Pension Scheme applies cannot be said to have “resigned” from service.
29. These letters were written by the respondent because he realised that he would be deprived of his pension, gratuity, etc. as a consequence of his resignation. These subsequent 10/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 letters dated 18-8-1984 and 22-8-1984 were not accepted and the respondent was struck off from the rolls of the Army on 24- 8-1984. On these facts, the Court held: (P.S. Bhargava case [(1997) 2 SCC 28 : 1997 SCC (L&S) 290] , SCC p. 32, para 19) “19. … Once an officer has to his credit the minimum period of qualifying service, he earns a right to get pension and as the Regulations stand, that right [to get pension] can be taken away only if an order is passed under Regulation 3 or 16.”
9. The learned counsel for the petitioner drew the attention of this Court with reference to the Division Bench judgment of this Court, which was subsequently passed in Review Application No.128 of 2012, dated 07.11.2013, wherein the benefit of pension was extended in respect of the similarly placed employees, relying on the judgment of Sheelkumar Jain case, cited supra.
10. The learned counsel appearing on behalf of the respondent-
Bank objected the contentions raised on behalf of the petitioner by stating 11/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 that the petitioner is not falling under anyone of the category as stipulated under the Pension Scheme. The Pension Regulation of the year 1995 was very much in force when the petitioner submitted an application for resignation. The petitioner was not eligible for Pension Scheme and the Voluntary Retirement Scheme, since he was a Provident Fund optee and not a Pension optee.
11. When the petitioner was remained as a Provident Fund optee, he had no option but to submit an application for resignation, as he had not opted for Pension Scheme. Under the 1995 Pension Scheme, the provision for voluntary retirement was very much available and the petitioner could not avail the said benefit in view of the option as he had opted already. Thus, now the petitioner cannot turn around and say that he must be permitted to exercise the second opportunity of exercise of option provided to the other eligible retired and in-service employees.
12. The learned counsel for the respondent-Bank made a submission that admittedly the petitioner submitted an application for 12/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 resignation. The said application was duly accepted by the Competent Authority and he was relieved from service on 31.07.2008. When the petitioner was relieved on 31.07.2008, he had approached this Court after a lapse of about six years based on the Circular issued in the year 2010. When the petitioner was not even eligible to opt the benefit of the Circular issued in the year 2010, as he was a resigned employee and as per the Service Regulations Clause 22, the resignation amounts to forfeiture of the past services, the case of the writ petitioner was rightly rejected by the respondent-Bank for exercise of option to avail the Pension Scheme.
13. It is contended by the repsondent-Bank that in Sheelkumar Jain case itself, cited supra, the Supreme Court has categorically held that a resigned employee is not eligible for pension benefits. The Supreme Court considered the scope of resignation with reference to Clause 22 of the 1995 Pension Regulation Scheme. The said Clause contemplates forfeiture of services which stipulates that "resignation or dismissal or removal or termination or compulsory retirement of an employee from the services of the Corporation or a Company shall entail forfeiture of his entire past 13/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 services and consequently shall not qualify for pensionary benefits". Clause 30 deals with 'Pension on Voluntary Retirement'. Therefore, it cannot be disputed that there was a Voluntary Retirement Scheme under the 1995 Regulations. The petitioner was very much in service during the relevant point of time. However, he had opted for Provident Fund Scheme and therefore, he is not eligible for pension under the Pension Scheme of the year 1995.
14. As far as the Provident Fund optees are concerned, the set of benefits were granted and when the employees opted for such benefit, thereafter, they cannot opt for Pension Scheme unless there is a provision for exercise of such option. Even there are other cases dealing with the similar issues, which all are to be considered for the purpose of forming an opinion.
15. In the case of Maharaj Krishan Bhatt and another Vs. State of Jammu and Kashmir and others [(2008) 9 SCC 24], the Hon'ble Supreme Court of India made the following observations:
“21. It was no doubt contended by the learned counsel 14/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 for the respondent State that Article 14 or 16 of the Constitution cannot be invoked and pressed into service to perpetuate illegality. It was submitted that if one illegal action is taken, a person whose case is similar, cannot invoke Article 14 or 16 and demand similar relief illegally or against a statute.
22. There can be no two opinions about the legal proposition as submitted by the learned counsel for the State.
But in the case on hand, in our opinion, there was no illegality on the part of the learned Single Judge in allowing Writ Petition No. 519 of 1987 instituted by Abdul Rashid Rather and in issuing necessary directions. Since the action was legal and in consonance with law, the Division Bench confirmed it and this Court did not think it proper to interfere with the said order and dismissed special leave petition. To us, in the circumstances, the learned Single Judge was wholly right and fully justified in following the judgment and order in Writ Petition No. 519 of 1987 in the case of the present writ petitioners also.
23. In fairness and in view of the fact that the decision in Abdul Rashid Rather had attained finality, the State authorities ought to have gracefully accepted the decision by granting similar benefits to the present writ petitioners. It, 15/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 however, challenged the order passed by the Single Judge. The Division Bench of the High Court ought to have dismissed the letters patent appeal by affirming the order of the Single Judge. The letters patent appeal, however, was allowed by the Division Bench and the judgment and order of the learned Single Judge was set aside. In our considered view, the order passed by the learned Single Judge was legal, proper and in furtherance of justice, equity and fairness in action. The said order, therefore, deserves to be restored.”
16. The High Court of Karnataka in the case of Vijaya Bank Vs. Sri C.Narasimhappa in W.A.Nos.2956-2977/2012 dated 30.07.2012, held as follows:
“7. We must immediately pen down the circumstances in which the Writ Petitioners opted to 'resign' rather than 'retire'. At the material point of time, the Regulations debarred retirement where the concerned employees had participated in a strike. It is not disputed that from the very inception of its inclusion this clause was remonstrated against by the Unions, leading eventually to its withdrawal altogether. At that stage, the employees were given a second opportunity/option to opt for the pension scheme by returning the benefits already 16/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 received by them and making pecuniary adjustment so as to fall in line with the pension formulations and calculation. Immediately, the Writ Petitioners had exercised the second option but it was the Bank which declined to admit them to the benefits of pension scheme. As in the other precedents, the fact that they had already put in requisite number of years of service qualifying them to pensionary benefits in accordance with the modified pension scheme, impel us likewise to hold them entitled to those benefits.”
17. The High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in the case of P.Vijaya Narayana Reddy Vs. Indian Overseas Bank in W.A.No.395 of 2008 dated 10.03.2017, held as follows:
“15. In Sheelkumar Jain’s case (supra 2), it is held that as per paragraph Nos.22 and 30 of the General Insurance (Employees’) Pension Scheme, 1995, resignation or dismissal or removal or termination of compulsory retirement of an employee from the service of a Corporation or a Company, shall entail for forfeiture of his entire past service and consequently shall not qualify for pensionary benefits. Paragraph Nos.22 and 30 of the said Pension 17/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 Scheme, 1995, is similar to the Regulation 22(1) of the Indian Overseas Bank (Employees) Pension Regulations, 1995. The Hon’ble Supreme Court, while dealing with a similar issue in the aforesaid citation, held that an employee who has put up the required service, is entitled to pension in the Pension Scheme, 1995 and further held that the authorities concerned have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement and while construing the statutory provisions, the Court has to keep in mind the purpose of the statutory provisions and the general purpose of the Pension Scheme is to grant pensionary benefits to the employees, who had rendered service in the organization concerned and had retired after putting in the qualifying service as per the Regulations in the Pension Scheme, 1995. So, the Regulation 22(1) of Indian Overseas Bank (Employees) Pension Regulations, 1995, has no application to the case on hand and the appellant-writ petitioner cannot be deprived pension and other benefits, as envisaged in the said Pension Scheme, 1995, since he has put up above 23 years of service, after giving three months notice in writing and his resignation being accepted by the 18/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 appointing authority.”
18. However, the judgments cited above would have no direct application with reference to the facts and circumstances of the writ on hand. The facts in the present writ petition are not seriously disputed regarding the appointment and the resignation of the writ petiioner.
19. Perusal of the application submitted by the writ petitoner, the same reveals that he submitted an application for resignation and the order of acceptance of resignation application issued by the Competent Authority also states that the application seeking resignation from the services of the respondent-Bank submitted by the writ petitioner was accepted. The consequences of resignation are known to the employees during the relevant point of time. The second option of the year 2010 was extended to the retired employees. However, the said extension was not granted to the resigned employees of the respondent-Bank. When the petitioner is falling under the category of resigned employees, the application for grant of pension under the Pension Scheme was rejected by the 19/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 respondent-Bank.
20. The learned counsel for the respondent-Bank further contended that the writ petition itself is filed after the delay of about six years and therefore, it is to be dismissed on the ground of laches.
21. In the case of M.R.Prabhakar and Others Vs. Canara Bank and Others [(2012) 9 SCC 671], the Hon'ble Supreme Court of India defined the difference between the voluntary retirement and resignation with the following observations:
“14. The appellants, in our view, did not retire from the service, but resigned from the service. The appellants tried to build up a case that in the absence of a legal definition of “voluntary retirement” or in the absence of legally prescribed consequences of “resignation”, it must be understood in the sense of voluntary relinquishment of service. It was pointed out that there can be no distinction between “voluntary retirement” and “resignation” and those expressions are to be understood in their ordinary literal sense.20/33
https://www.mhc.tn.gov.in/judis WP No.20317 of 2014
15. We find it difficult to accept the contentions raised by the appellants. There is no ambiguity in the definition clause under Regulation 2(y) which has statutorily brought in the “voluntarily retirement” as “retirement”. Though the concept of “resignation” is well known in service jurisprudence, the same has not been brought within the definition of “retirement” under Regulation 2(y). Further, the words “retired” and “retirement” have some resemblance in their meanings, but not “resignation”. Regulation 3(1)(a) specifically used the expression “retirement” and the expression “resignation” has not been incorporated either in the definition clause or in Regulation 3(1)(a). We need not labour much on this issue, since the difference between these two concepts “resignation” and “retirement”, in the context of the same Banking Regulations of 1995, came up for consideration before this Court in Sanwar Mal [(2004) 4 SCC 412 : 2004 SCC (L&S) 699] , wherein this Court has distinguished the words “resignation” and “retirement” and held as follows: (SCC p. 419, para 9) “9. … The words ‘resignation’ and ‘retirement’ carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after 21/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment … but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions ‘resignation’ and ‘retirement’ have been employed for different purpose and carry different meanings. The pension scheme herein is based on actuarial calculation; it is a self-financing scheme, which does not depend upon budgetary support and consequently it constitutes a complete code by itself. The scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from service. Moreover, resignation brings about complete cessation of master-and-servant relationship whereas voluntary retirement maintains the relationship for the purposes of grant of retiral benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/rules framed by the bank. Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, 22/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 the employee has to complete qualifying service for retiral benefits.” (emphasis added)”
22. In the case of Senior Divisional Manager Life Insurance Corporation of India and Others Vs. Shree Lal Meena [(2019) 4 SCC 479], the three Judges Bench of the Hon'ble Supreme Court of India categorically defined the distinction between retirement and voluntary retirement and inapplicability of the Pension Scheme to employees, who had resigned during the relevant period and the following paragraphs are relevant and are extracted hereunder:
“16. The moot point which, thus, arises for consideration is the effect of the retrospective application of these Rules in the given factual scenario. Had the Pension Rules been only prospective in application, there is no doubt that Shree Lal Meena could not even have endeavoured to prefer a claim. In order to appreciate this aspect, the extent to which retrospectivity applies would have to be analysed, strictly on the basis of these Pension Rules, which are also contributory in their character.
23. In our view, the aforesaid principles squarely apply in 23/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 the facts of the present case and the relevant legal principles is that voluntary retirement is a concept read into a condition of service, which has to be created by a statutory provision, while resignation is the unilateral determination of an employer- employee relationship, whereby an employee cannot be a bonded labour.
24. In UCO Bank v. Sanwar Mal [UCO Bank v. Sanwar Mal, (2004) 4 SCC 412 : 2004 SCC (L&S) 699] , once again, in the case of a similar Pension Scheme, the observations were made as under : (SCC pp. 417-20, paras 6-7 & 9) “6. To sum up, the Pension Scheme embodied in the regulation is a self-supporting scheme. It is a code by itself. The Bank is a contributor to the pension fund. The Bank ensures availability of funds with the trustees to make due payments to the beneficiaries under the Regulations. The beneficiaries are employees covered by Regulation 3. It is in this light that one has to construe Regulation 22 quoted above. Regulation 22 deals with forfeiture of service. Regulation 22(1) states that resignation, dismissal, removal or termination of an employee from the service of the Bank shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits. In other words, the Pension Scheme disqualifies such dismissed employees and employees who have resigned from membership of the fund. The reason is not far to seek. In a self-financing scheme, a separate fund is earmarked as the Scheme is not based on budgetary support. It is essentially based on adequate contributions from the members of the fund. It is for this reason that under Regulation 11, every bank is required to cause an investigation to be made by an actuary into the financial condition of the fund from time to time and depending on the deficits, the Bank is required to make annual contributions to the fund. Regulation 12 deals 24/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 with investment of the fund whereas Regulation 13 deals with payment out of the fund. In the case of retirement, voluntary or on superannuation, there is a nexus between retirement and retiral benefits under the Provident Fund Rules. Retirement is allowed only on completion of qualifying service which is not there in the case of resignation. When such a retiree opts for self-financing Pension Scheme, he brings in accumulated contribution earned by him after completing qualifying number of years of service under the Provident Fund Rules whereas a person who resigns may not have adequate credit balance to his provident fund account (i.e. bank's contribution) and, therefore, Regulation 3 does not cover employees who have resigned. Similarly, in the case of a dismissed employee, there may be forfeiture of his retiral benefits and consequently the framers of the Scheme have kept out the retirees (sic resigned) as well as dismissed employees vide Regulation 22. Further, the pension payable to the beneficiaries under the Scheme would depend on income accruing on investments and unless there is adequate corpus, the Scheme may not be workable and, therefore, Regulation 22 prescribes a disqualification to dismissed employees and employees who have resigned. Lastly, as stated above, the Scheme contemplated pension as the second retiral benefit in lieu of employer's contribution to contributory provident fund. Therefore, the said Scheme was not a continuation of the earlier scheme of provident fund. As a new scheme, it was entitled to keep out dismissed employees and employees who have resigned.
7. In the light of our above analysis of the scheme, we now proceed to deal with the arguments advanced by both the sides. It was inter alia urged on behalf of the appellant Bank that under Regulation 22, category of employees who have resigned from the service and who have been dismissed or removed from the service are not entitled to pension, that the Pension Scheme constituted a separate fund to be regulated on self-financing principles, that prior to the 25/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 introduction of the Pension Scheme, there was in existence a provident fund scheme and the present Scheme conferred a second retiral benefit to certain classes of employees who were entitled to become the members/beneficiaries of the fund, that the membership of the fund was not dependent on the qualifying service under the Pension Scheme, that looking to the financial implications, the Scheme framed mainly covered retirees because retirement presupposed larger number of years of service, that in the case of resignation, an employee can resign on the next day of his appointment whereas in the case of retirement, the employee is required to put in a certain number of years of service and consequently, the scheme was a separate code by itself, that the High Court has committed manifest error in decreeing the suit of the respondent inasmuch as it has not considered the relevant factors contemplated by the said Scheme and that the Pension Scheme was introduced in terms of the settlement dated 29-10-1993 between IBA and All-India Bank Employees' Association, which settlement also categorically rules out employees who have resigned or who have been dismissed/removed from the service.
***
9. We find merit in these appeals. The words “resignation” and “retirement” carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment (sic is the same) but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions “resignation” and “retirement” have been employed for different purpose and carry different meanings. The Pension Scheme herein is based on actuarial calculation; it is a self-financing scheme, which does not depend upon budgetary support and 26/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 consequently it constitutes a complete code by itself. The Scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from service. Moreover, resignation brings about complete cessation of master-and- servant relationship whereas voluntary retirement maintains the relationship for the purposes of grant of retiral benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/rules framed by the Bank. Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retiral benefits. Further, there are different yardsticks and criteria for submitting resignation vis-à-vis voluntary retirement and acceptance thereof. Since the Pension Regulations disqualify an employee, who has resigned, from claiming pension, the respondent cannot claim membership of the fund. In our view, Regulation 22 provides for disqualification of employees who have resigned from service and for those who have been dismissed or removed from service. Hence, we do not find any merit in the arguments advanced on behalf of the respondent that Regulation 22 makes an arbitrary and unreasonable classification repugnant to Article 14 of the Constitution by keeping out such class of employees. The view we have taken is supported by the judgment of this Court in RBI v. Cecil Dennis Solomon [RBI v. Cecil Dennis Solomon, (2004) 9 SCC 461 : 2004 SCC (L&S) 737] . Before concluding we may state that Regulation 22 is not in the nature of penalty as alleged. It only disentitles an employee who has resigned from service from becoming a member of the fund. Such employees have received their retiral benefits earlier. The Pension Scheme, as stated above, only provides for a second retiral benefit. Hence there is no question of penalty being imposed on such employees as alleged. The Pension Scheme only provides for an avenue for investment to retirees. They are provided avenue to put in their savings 27/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 and as a term or condition which is more in the nature of an eligibility criterion, the Scheme disentitles such category of employees as are out of it.”
36. In view of what we have discussed aforesaid, all three aspects stated by us are relevant and disentitle the appellant to any relief. We have already explained the difference between resignation and voluntary retirement. Mere categorisation by the appellant himself of his resignation as “premature retirement” is of no avail. The same principle discussed aforesaid, of forfeiture of service, would be applicable here and the appellant did not have the requisite age when he resigned even were the 1976 Scheme to be made applicable.
37. We may also find that the appellant remained silent for years together and that this Court, taking a particular view subsequently, in Sheelkumar Jain [Sheelkumar Jain v. New India Assurance Co. Ltd., (2011) 12 SCC 197] , would not entitle stale claims to be raised on this behalf, like that of the appellant. In fact the appellant slept over the matter for almost a little over two years even after the pronouncement of the judgment.”
23. Considering the principles laid down by the Supreme Court and the definition categorically enumerated with the distinction regarding 28/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 the consequences of resignation and voluntary retirement, the facts of the case on hand is to be considered, which is pivotal.
24. The learned counsel for the respondent-Bank drew the attention of this Court with reference to the introduction of Special Voluntary Retirement Scheme and Scheme for Sabbatical Leave vide Circular No.235/2000, dated 11.12.2000. Even as per the above Scheme, the workmen and the Officers of the respondent-Bank, are entitled to avail the same. The petitioner was relieved in the year 2008 and the said Scheme of Special Voluntary Retirement Scheme was introduced in the year 2000 and the petitioner had not opted for the said Scheme. Since he had already opted for the Provident Fund Scheme, the petitioner has not opted for the Special Voluntary Scheme and the petitioner now cannot turn around and submitted an application for Special Voluntary Retirement Scheme of the respondent-
Bank.
25. In the present case, the petitioner, admittedly, submitted an application for resignation and the application for resignation was accepted 29/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 by the Competent Authority and he was relieved in the year 2008. When the petitioner was in service, the Pension Regulation of the year 1995 was in force and the said Pension Regulation contemplates voluntary retirement.
However, for the reasons best known to the petitioner, he opted for Provident Fund Scheme and not opted for the Pension Scheme and once an employee opted for Provident Fund Scheme, he is entitled for the benefits under the said Scheme and he cannot switch over to the other Scheme unless there is a provision to do so.
26. Thus for all purposes, the petitioner is to be treated as a resigned employee. With reference to the subsequent Circular of the year 2010, the said Circular was extended as a special case only in respect of the retired employees and in-service employees of the respondent-Bank. Since the petitioner is not falling under the category of retired employee, his case was not considered under the Pension Scheme. The petitioner was considered as a resigned employee and resignation amounts to forfeiture of his past services and therefore, the decision taken by the repsondent-Bank in this regard is in consonance with the Regulations of the Bank and in 30/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 accordance with the settled principles. Thus, there is no infirmity in respect of the decisions taken by the repsondent-Bank for rejecting the claim of the writ petiiner.
27. Accordingly, the writ petition stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is also dismissed.
03-08-2022 Index : Yes/No. Internet : Yes/No. Speaking Order/Non-Speaking Order.
Svn To 31/33 https://www.mhc.tn.gov.in/judis WP No.20317 of 2014
1.The General Manager, Canara Bank Head Office, Industrial Relations Section, Personnel Wing, J.C.Road, Bangalore – 560 002.
2.The General Manager, Canara Bank, Human Resources Wing, Head Office, Industrial Relations Section, 112, J.C. Road, Bangalore – 560 002.
3.The Deputy General Manager, Canara Bank, Human Resources Wing, Head Office, Industrial Relations Section, 112, J.C. Road, Bangalore – 560 002.
4.The General Manager, Canara Bank, Circle Office, No.524, Anna Salai, Teynampet, Chennai – 600 018.
5.The Assistant General Manager, Canara Bank, 129, Royapettah High Road, Mylapore, Chennai – 600 004.
S.M.SUBRAMANIAM, J.
32/33https://www.mhc.tn.gov.in/judis WP No.20317 of 2014 Svn WP 20317 of 2014 03-08-2022 33/33 https://www.mhc.tn.gov.in/judis