Punjab-Haryana High Court
State Bank Of India And Anr vs Kuldeep Raj on 11 December, 2014
Author: Deepak Sibal
Bench: Satish Kumar Mittal, Deepak Sibal
L. P. A. No. 731 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Letters Patent Appeal No. 731 of 2012 (O&M)
Date of Decision : December 11, 2014
State Bank of India and another .... Appellants
Vs.
Kuldeep Raj .... Respondent
CORAM :HON'BLE MR. JUSTICE SATISH KUMAR MITTAL.
HON'BLE MR. JUSTICE DEEPAK SIBAL.
* * *
Present : Mr. Kapil Kakkar, Advocate
for the appellants.
Mr. Manish Puri, Advocate
for the respondent.
* * *
DEEPAK SIBAL, J. :
The present appeal, filed under Clause X of the Letters Patent, challenges the order dated 14.02.2012 passed by a learned Single Judge of this Court allowing the writ petition filed by the respondent, making him eligible for grant of pension, further with a direction that the arrears of pension be paid to the respondent with interest from 30.04.1995 till the date of payment. MONIKA
The respondent knocked at the door of this Court through a 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 731 of 2012 2 writ petition claiming that he was appointed as a Guard with the appellant Bank on 30.09.1972 on temporary basis. He served the appellant Bank as such till 05.05.1978, and then on 06.05.1978, he was appointed on the same post on regular basis. He served the Bank as such on regular basis till 29.04.1995. The issue raised by the respondent was rather simple. He prayed that his uninterrupted temporary service from 30.09.1972 till 05.05.1978 before his regular appointment be counted as qualifying service towards pension, as according to him, only if this period is counted, would he become eligible for the grant of pension. The appellant Bank sought to repel the claim of the respondent by relying on Rule 7 and Rule 22 of the State Bank of India Employees' Pension Fund Rules (hereinafter referred to as - the Rules). Rule 7 and Rule 22 of the Rules are reproduced below for ready reference :-
"7. Save as provided in rule 8, every permanent employee (including a permanent part-time employee who is required by the Bank to work for more than six hours a week) in the service of the Bank who is entitled to pension benefits under the terms and conditions of his service shall become a MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 731 of 2012 3 member of the Fund from -
(a) the date from which he is confirmed in the service of the Bank, or
(b) the date from which he may be required to become a member of the Fund under the terms and conditions of his service."
xx xx xx xx "22. (i) A member shall be entitled to a pension under these rules on retiring from the Bank' service -
(a) After having completed twenty years' pensionable service provided that he has attained the age of fifty years ;
(b) After having completed twenty
years' pensionable service,
irrespective of the age he shall
have attained, if he shall satisfy the authority competent to sanction his retirement by approved medical MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 731 of 2012 4 certificate or otherwise that he is incapacitated for further active service ;
(c) After having completed twenty
years pensionable service,
irrespective of the age he shall
have attained at his request in
writing ;
(d) After twenty five years' pensionable
service.
(ii) A member who has attained the age of fifty-five years or who shall be proved to the satisfaction of the authority empowered to sanction his retirement to be permanently incapacitated by bodily or mental infirmity from further active service (such infirmity not being the result of irregular or intemperate habits) may, at the discretion of the trustees, be granted a MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 731 of 2012 5 proportionate pension.
(iii) A member who has been permitted to retire under clauses 1 (c) above shall be entitled to proportionate pension."
Relying on the above rules, the appellant Bank, stating that the respondent did not have 20 years of regular service, was not entitled to the grant of pension.
The learned Single Judge considered the entire matter and allowed the writ petition filed by the respondent by holding as under :-
"1. The petitioner, who was a Guard with the State Bank of India, claims that he has not been paid his pension on a wrong basis that the length of his service from 30.09.1972 to 05.05.1978 had been only a temporary service. His services were regularized from 06.05.1978 and the computation of the number of years of service could have been only from the said date to the date when his services had been taken as MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 731 of 2012 6 terminated on 29.04.1995. The petitioner's contention is that in a claim for gratuity, the respondents had admitted to the petitioner's services as including the temporary service also and a cheque for Rs.53,400/- was computed on the basis of his length of service as including the temporary service as well. The claim of the petitioner is resisted on the ground under the State Bank of India Pension Fund Rule 22, 20 years of continuous service is the pensionable service and that service must be in regular employment. The contention is that the petitioner became a member of the State Bank of India Employees Provident Fund on 06.11.1978 and he had abandoned the services on 29.04.1995. At the time when he abandoned the services, he did not fulfill the requirement under Rule 22 (i) (a to MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 731 of 2012 7
e). The relevant extract of the Rules has been filed. The eligibility as set out through clause (i) is that a person must have been in service on or after 01.11.1993 after having completed 10 years of pensionable service, provided that he had attained the age of 58 years.
In this case, although 10 years period had been completed, he had not completed 58 years on that date and, therefore, the said clause will not apply. The same clause also provides pension for a person, who had continued in service from 22.05.1998 but since the petitioner had voluntarily abandoned the services even in April 1995, the said clause also will not apply. For any other person, the requirement is 20 years of service, irrespective of age.
2. No part of the Rules which has been extracted by the respondents MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 731 of 2012 8 excludes computation of the period of temporary service which is later regularized without any break in service. If the petitioner was also entitled to a computation of his temporary service for the purpose of reckoning of gratuity, I cannot see how temporary service which had commenced on 30.09.1972 and continued till he was regularized on 06.05.1978 could be excluded. If the said period is also added, the petitioner must be taken to be a person, who had a pensionable service and he was entitled to the grant of pension.
3. The respondents are, therefore, directed to compute his length of service from 30.09.1972 till the date when he was treated as having voluntarily abandoned the services on 29.04.1995 and release the arrears of pension to the petitioner with interest at MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 731 of 2012 9 6% from 30.04.1995 till the date of payment.
4. The writ petition is allowed on the above terms."
A perusal of the above quoted judgment shows that the learned Single Judge did not find any rule, wherein it was provided that temporary or ad hoc service was not to be counted towards qualifying service for the grant of pension, and thus, counting the respondent's service from the date of his initial appointment on 30.09.1972 till 29.04.1995, the respondent was held to have completed more than 20 years of service, qualifying him for the grant of pension.
It is the above judgment rendered by the learned Single Judge, which is challenged before us by the appellant Bank.
We have heard learned counsel for the parties and have perused the judgment under appeal, as also the records of the case.
Learned counsel appearing for the appellant Bank reiterated his arguments, as raised before the learned Single Judge, to rely upon Rule 7 and Rule 22 of the Rules quoted above, to state that in view of the above quoted Rules, the respondent was not entitled to the grant of pension. The learned counsel appearing on behalf of the respondent defended the order of the learned Single Judge to say that MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 731 of 2012 10 there was no rule, which debarred counting of ad hoc or temporary service towards qualifying service for the grant of pension and if that was so, then the respondent, having completed more than 20 years of service, and being 50 years of age on the last day of his service i.e. 29.04.1995, was entitled to grant of pension and would be covered under Rule 22 (i) (a) of the Rules and thus, was entitled for the grant of pension.
Rule 22 (i) (a), clearly provides that an employee, who has put in 20 years of pensionable service, and is of 50 years of age, is entitled to the grant of pension. There is no dispute that the respondent was 50 years of age while in service.
Now the only question that needs to be determined is whether the adhoc/temporary service rendered by the respondent from 30.09.1972 till 05.05.1978 is to be counted towards qualifying service for the grant of pension. The answer to this issue would not detain us for very long as it stands settled by this Court that daily wages service followed by regular service is to count towards the qualifying service towards detention. At this stage, we can safely refer to a Division Bench judgment of this Court passed in the case of Kashmir Chand vs. Punjab State Electricity Board and others - 2005 (4) S. C. T. 298, wherein relying on Full Bench judgment of this Court in Kesar MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 731 of 2012 11 Chand vs. State of Punjab - 1989 (II) RSJ 629, the Division Bench held as under :-
"9. In view of the above, we are of the opinion that services rendered by the petitioner on daily-wage and work- charge basis should be counted as qualifying service for pensionary benefits. The petitioner was working as a whole-time employee and was paid wages on monthly basis. The respondents have not disputed that there was no wilful absence from duty by the petitioner. In such circumstances, the period of service of 6 years and 29 days rendered by the petitioner on daily-wage basis has to be reckoned while computing the pensionary benefit of the petitioner.
Consequently, we allow the writ petition, quash the order, Annexure P-4 and direct the respondents to MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 731 of 2012 12 redetermine the pensionary benefits of the petitioner by taking into consideration his daily-wage service of 6 years and 29 days. The consequential benefits accruing to the petitioner shall be paid to him within a period of two months of the receipt of a certified copy of the order."
To the same effect, is yet another Division Bench judgment in the case of Bhakra Beas Management Board and others vs. Hari Chand - 2012 (2) SLR 404. In this judgment also, the Division Bench relies upon the judgment passed in the case of Kesar Chand (supra) to hold as under :-
"5. It is undisputed that the controversy in hand has already travelled up to Hon'ble the Supreme Court and the same was remanded back vide order dated 10.12.2009. Pursuant thereto various appeals/petitions including LPA No. 189 of 2004 (State of Punjab and others v. Mukhtiar Singh MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 731 of 2012 13 decided on 19.4.2011) came to be listed before the Letters Patent Bench of this Court (of which one of us M. M. Kumar, J. was also a member). After noticing the provisions of Rule 3.17-A; substantive difference between a `work-charged' employee and a `daily rated' employee; Full Bench judgment of this Court rendered in the case of Kesar Chand (supra) and various other judgments of Hon'ble the Supreme Court the Letters Patent Bench concluded that for the purposes of seniority promotion or some other benefits the service rendered on work-charge basis ad hoc basis or daily rate basis may not be countable but the same could be counted as qualifying service for the purpose of pensionary benefits."
It may further be noted that no rule has been shown to us, wherein pensionable service has been denied only to include regular MONIKA 2014.12.16 10:59 I attest to the accuracy and authenticity of this document L. P. A. No. 731 of 2012 14 service to the exclusion of any other service.
Reliance of Rule 7 of the Rules by the appellant Bank is misconceived. That rule provides that daily wage/temporary service would not be counted towards qualifying service for the grant of pension. It also does not provide that only regular service will be considered as pensionable service. So far as his uninterrupted service on temporary basis or daily wages basis is concerned, according to us, that has to be considered towards qualifying service, for the grant of pension. It is virtually admitted between the parties that the respondent served the appellant Bank uninterruptedly from 30.09.1972 till 29.04.1995.
In view of the above, finding no merit in this appeal, the same is dismissed.
( SATISH KUMAR MITTAL ) ( DEEPAK SIBAL )
JUDGE JUDGE
December 11, 2014
monika
MONIKA
2014.12.16 10:59
I attest to the accuracy and
authenticity of this document