Gujarat High Court
Girish Shantilal Shukla vs Bank Of Baroda on 6 May, 2013
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
GIRISH SHANTILAL SHUKLA....Petitioner(s)V/SBANK OF BARODA....Respondent(s) C/SCA/9092/2008 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 9092 of 2008 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
============================================================== GIRISH SHANTILAL SHUKLA ....Petitioner Versus BANK OF BARODA ....Respondent ============================================================== Appearance:
MR ND NANAVATY, SENIOR ADVOCATE for the Petitioner MR DARSHAN M PARIKH, ADVOCATE for the Respondent ============================================================== CORAM:
HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 06/05/2013 CAV JUDGEMNT
1. Heard Mr. N.D.Nanavati, learned Senior Advocate for the petitioner and Mr. Darshan M. Parikh, learned advocate for the respondent Bank of Baroda.
2. The petitioner claims pension from the respondent Bank, which is denied and that is the subject matter of this petition.
3.1 The petitioner was working as an employee with the respondent Bank. He was a pension optee.
3.2 The petitioner was imposed the penalty of removal from the service by the respondent Bank vide order dated 25.05.2007. The operative part of the punishment order reads as under :
Removal from service with superannuation benefits i.e. pension and/ or Provident Fund and gratuity as would be due otherwise under the Rules or regulations prevailing at the relevant time and without disqualification from future employment and stoppage of one increment for a period of six months.
3.3 The above punishment order is not the subject matter of this petition and it has attained finality.
3.4 The point for consideration before this Court is, whether the denial of pension by the respondent Bank, in the facts of this case, is legal or otherwise.
4.1 Learned advocate for the petitioner contended that the very language of the punishment is such that the petitioner shall be entitled to all superannuation benefits i.e. pension and/ or provident fund and gratuity as would be due otherwise. It is further contended that it is not in dispute that the petitioner was a pension optee and under these circumstances, the say of the respondent Bank that the petitioner can not be paid pension, is unjust, arbitrary and illegal.
4.2 Learned advocate for the petitioner has also drawn attention of the Court to the various provisions of the 2(p) settlement of the year 2002, which binds the respondent Bank, reference to which is made in the later part of this judgment.
4.3 It is further contended by the learned advocate for the petitioner that there are different set of rules for the officers and employees of the respondent bank. The punishment of removal in case of officers, which is not applicable to the petitioner, reads as under :
Removal from service, which shall not be a disqualification for future employment.
4.4 Learned advocate for the petitioner has further contended that, had the petitioner not been a pension optee, the contribution of employer's share in provident fund would have been paid to the petitioner and under these circumstances, the action of the respondent Bank of denying pension to the petitioner creates hostile discrimination between similarly situated employees, who are imposed the penalty of removal as referred above.
5.1 On the other hand, learned advocate for the respondent bank has contended that, the claim of pension of the employees of the respondent Bank is regulated by the Bank of Baroda (Employees) Pension Regulations, 1995.
Regulation 22 thereof deals with the forfeiture of service. Relevant portion of the said Regulation reads as under :
22.
Forfeiture of Service.
Resignation or dismissal or removal or termination of an employee from the service of the Bank shall entail for forfeiture of his entire past service and consequently shall not qualify for pensionary benefits;
xxx It is contended that the set of these Regulations, is a code by itself and as per settled position of law, no interference be made in the action of the respondent Bank, which is not inconsistent with these Regulations.
5.2 It is vehemently contended that the indulgence by this Court would amount to rewriting the regulations, which is impermissible in law and therefore the petitioner be not granted any relief.
5.3 Learned advocate for the respondent Bank has relied on the following authorities, in support of his contentions:
UCO Bank and others vs. Sanwar Mal - (2004) 4 SCC 412 The New Piece Goods Bazaar Co. Ltd. Bombay vs. Commissioner of Income-Tax Bombay - AIR 1950 SC 165 State of Kerala and Another vs. M/s. B. Six Holiday Resorts Pvt. Ltd. and others - AIR 2010 SC (Supp.) 93 Satheedevi vs. Prasanna and Another - AIR 2010 SC 2777 Sri Jeyaram Educational Trust and others vs. A.G.Syed Mohideen and others - AIR 2010 SC 671 B. Premanand and others vs. Mohan Koikal and others - AIR 2011 SC 1925
6.1 Having heard Learned Advocates for the respective parties and having gone through the record, the point which falls for consideration before this Court is, that when an employee can be a pension optee on one hand, or a non-pension optee and thereby is entitled to claim employer's contribution, over and above his own contribution in the provident fund in lieu of pension on the other hand, and if both are imposed penalty of Removal from service with superannuation benefits i.e. pension and/ or Provident Fund and gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time, and under those circumstances, when the Bank takes the stand that, if he is a non-pension optee, he would be entitled to claim employer's contribution also towards the provident fund in lieu of pension, but if he is a pension optee, he can not claim pension, whether such a stand can be upheld.
6.2 Be it noted that even after the judgment was reserved in this petition, since this point would have material bearing on the outcome of the petition, for this very purpose, the matter was notified on 24.04.2013, learned advocate for the respondent Bank was heard on this point and he has also placed on record the Bank of Baroda Provident Fund Rules, which is reflected in the order dated 24.04.2013.
7.1 To adjudicate the above referred point, the following provisions, in my view, will have bearing.
7.2 It is not in dispute that there are different sets of rules for the officers and employees of the respondent Bank. The employees are called award staff. The punishment of removal in case of officers, which is not applicable to the petitioner, reads as under :
Removal from service, which shall not be a disqualification for future employment.
7.3 So far award staff is concerned, it has come on record that there is material change in the said punishment of removal, the language of which is already recorded above. This material change, in the nature of punishment, is reflected in the memorandum of settlement dated 10.04.2002 between the management of 52 A-Class Banks as represented by the Indian Banks' Association and their workmen as represented by the All India Bank Employees' Association, National Confederation of Bank Employees and Indian National Bank Employees' Federation. The said settlement is entered under the provisions of Section 2(p) and Section 18(a) of the Industrial Disputes Act, 1947 read with Rule 58 of the Industrial Disputes (Central) Rules, 1957. It is not in dispute that the respondent Bank of Baroda is one of those 52 A-Class Banks, which are covered by the said settlement.
7.4 The above settlement inter alia deals with disciplinary actions qua the award staff. The said settlement is circulated by the respondent Bank for implementation vide its Circular dated 11.06.2002, which inter alia reads as under :
Circular No.CO:BR:94/137, dated 11th June, 2002 CIRCULAR TO ALL BRANCHES IN INDIA Issued By : HRM Dept., CO, Mumbai Sub./File No.:
PERS/9 Dear Sir, Re : Memorandum of Settlement on Disciplinary Action Procedure for workmen signed between Indian Banks' Association and the Workmen Unions on 10 April, 2002.
We enclose a copy of the Memorandum of Settlement on Disciplinary Action Procedure for workmen, signed on 10 April, 2002 by the Indian Banks' Association on one hand and the workmen unions, viz. All India bank Employees' Association (AIBEA), National Confederation of Bank Employees (NCBE) and Indian Bank Employees' Federation (INBEF) on the other.
It may please be noted that this Settlement is in supersession of all the earlier provisions relating to Disciplinary Action Procedure for workmen in banks as in the Sastry Award, Desai Award and Chapter 19 of the First Bipartite Settlement dated 19.10.1966, as modified from time to time, and its provisions shall take effect from the date of the Settlement, i.e. 10 April, 2002.
The terms of this Settlement shall extend to and cover all workmen employees of our Bank.
We request you to bring the contents of this circular along with the Settlement to the notice of all staff members and be guided accordingly.
7.5 Clause 6 of the above settlement reads as under :
6. An employee found guilty of gross misconduct may :
(a) be dismissed without notice, or
(b) be removed from service with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity was would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment; or
(c) xxx 7.6 The above referred settlement is further stated to have the overriding effect on other sets of rules. Clause 13 of the said settlement reads as under :
13. Where the provisions of this Settlement conflict with the procedure or rules in force in any bank regarding disciplinary action, they shall prevail over the later. There may, in such procedure or rules, exist certain provisions outside the scope of the provisions contained in this Settlement enabling the bank to dismiss, warn, censure, fine an employee or have his increment stopped or have an adverse remark entered against him. In all such cases also the provisions set out in Clauses 10 and 11 above shall apply.
7.7 It is also not in dispute that in the Nationalised Banks, including the respondent Bank, at the time of superannuation, the benefits which an employee can claim are, (i) gratuity, (ii) provident fund to the tune of his own contribution with interest, and (iii) over and above this, if the employee concerned is not a pension optee, he can claim employer's contribution in the provident fund, and if he is a pension optee, he can claim pension.
7.8 The Bank of Baroda Provident Fund Rules have also come on record and learned advocate for the respondent Bank has not been able to dispute that had the petitioner been not a pension optee, he would have been paid even the employer's contribution in the provident fund, as referred to in
(iii) above.
8.1 In view of above, the picture which emerges is to the effect that, at the time of removal of an officer and an award staff, the nature of punishment is different. In case of an officer, it is Removal from service, which shall not be a disqualification for future employment, while in case of an award staff like the petitioner, it is Removal from service with superannuation benefits i.e. pension and/ or Provident Fund and gratuity as would be due otherwise under the Rules or regulations prevailing at the relevant time and without disqualification from future employment.
8.2 The above change in the nature of punishment finds place in the 2(p) settlement dated 10.04.2002, which has overriding effect.
8.3 Further, within the group of award staff itself, the employee concerned has an option either to be governed under contributory provident scheme, where he will get employer's contribution also in the provident fund, or to opt for pension, where he will get only his own share towards provident fund, but he will also get pension in lieu of the employer's contribution in the provident fund.
8.4 The defense of the respondent Bank has turned out to be that, if the petitioner was not a pension optee, he would have been paid employer's contribution in his provident fund, but since he had opted for pension, Regulation 22 of the Pension Regulations of the year 1995, which is referred above, would come in his way. In my view, this defense is of no avail to the respondent Bank for more than one reasons. Firstly, the above referred 2(p) settlement, which changed the nature of punishment as referred above, itself contains a stipulation that it will have overriding effect on other rules and regulations. If the Bank is permitted to frustrate the claim of the petitioner by pressing into service Regulation 22 of the Pension Regulations of the year 1995, it will negate the above referred 2(p) settlement of the year 2002, which even otherwise has the overriding effect, which can not be permitted. Further, the award staff, which is one group, is treated uniformly so far as punishments, including punishment of removal as noted above, are concerned. The contention of the respondent Bank to the effect that, from amongst this one group, those who have not opted for pension, qua them, bank is under obligation to make payment of employer's contribution in their provident fund account and the same shall be paid to them, even in case of removal as aforesaid. However, those who have opted for pension, qua them, under similar circumstances, Bank is under no legal obligation to pay pension, which is in lieu of employer's contribution in the provident fund. This stand, in my view, creates hostile discrimination between similarly situated persons to get superannuation benefit which is held to be permissible, by the very language of the punishment, which is referred to in the punishment order itself, which is on record. Thus, on more than one counts, the defense of the respondent Bank is found to be not tenable in the eyes of law.
8.5 The authorities relied on by the learned advocate for the respondent Bank will not take the case of the respondent Bank any further, since none of the said decisions deals with or decides the point which is referred and answered above.
8.6 In view of the above, I find that the denial by the respondent Bank to pay pension to the petitioner, is illegal and arbitrary and the respondent Bank needs to be directed to pay pension to the petitioner.
9. For the reasons recorded above, this petition is allowed. The petitioner is held to be entitled to claim and receive pension from the respondent Bank. Respondent Bank is directed to pay arrears of pension to the petitioner, within a period of three months from today. Rule is made absolute. No order as to costs.
[PARESH UPADHYAY, J.] #MH Dave/1 Page 17 of 17