Gujarat High Court
Thakordas Lallubhai Vediya vs Bank Of Baroda on 28 July, 2017
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/3550/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3550 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY
============================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
============================================
THAKORDAS LALLUBHAI VEDIYA ....Petitioner
Versus
BANK OF BARODA ....Respondent
============================================
Appearance:
MR NAVALDAN R LANGA, ADVOCATE for the Petitioner
MR DARSHAN M PARIKH, ADVOCATE for the Respondent
========================================
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 28/07/2017
CAV JUDGMENT
Page 1 of 25
HC-NIC Page 1 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT
1. The petitioner, who was in the service of the respondent bank for about 30 years, claims pension. The bank has denied it. Therefore this petition.
2. Heard learned advocates.
3. Mr.Langa, learned advocate for the petitioner has submitted that the petitioner had joined the service of the respondent Bank on 15.11.1977 and he had voluntarily retired on 09.06.2007. It is submitted that the application of the petitioner for voluntary retirement was duly considered by the Competent Authority and the same was accepted and the petitioner was relieved by proper office order and was paid his dues accordingly. It is submitted that after the retirement of the petitioner, the respondent Bank expanded the coverage of its pension scheme and the petitioner was entitled to opt for pension as per the said scheme. Learned advocate for the petitioner has taken this Court through the circulars of the Authorities, including of the respondent Bank which are on record, to contend that the claim of the petitioner is as per the policy of the Bank, which is based on the policy of the Indian Banks' Association, as sanctioned by the Government of India. It is submitted that the petitioner had completed the required procedure vide his letter dated 09.01.2013 (page-49) which was responded by the Bank on 14.02.2013 (page:59) that the request of the petitioner was rejected. It is submitted that denial by the respondent Bank is illegal and therefore the same needs to be interfered with. In support of his submission, Mr.Langa, learned advocate has relied on the following decisions of the Supreme Court of India.
(i) Indian Bank and Another Vs. N.Venkatramani -Page 2 of 25
HC-NIC Page 2 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT (2007) 10 SCC 609.
(ii) State Bank of Patiala Vs. Pritam Singh Bedi & Ors. - AIR 2014 SC 2714.
4. On the other hand, Mr.Parikh, learned advocate for the respondent Bank has submitted that refusal by the Bank to the petitioner to give option for pension is legal and the Bank has committed no wrong by not permitting it. Learned Advocate for the respondent has taken this Court through the contents of the affidavit in reply dated 22.02.2014 and Annexures thereto and further affidavit in reply dated 29.08.2016. It is submitted that the petitioner was not entitled to voluntary retirement and it was mistake on the part of the respondent Bank to accept it in the year 2007 and therefore the petitioner is not entitled to any relief. Learned advocate for the respondent Bank has relied on the following authorities. It is submitted that no interference be made by this Court.
(I) Bank of Baroda and Ors Vs. Ganpat Singh Deora
AIR 2009 SC 1745(1)
(II) M.R. Prabhakar and Ors Vs. Canara Bank and Ors
2012 AIR SCW 5485
(III) Uco Bank and Ors Vs. Sanwar Mal
AIR 2004 SC 2135(1)
(IV) Premji Khanji Masai Vs. Regional Manager, United
India Insurance Co. Ltd. - 1999 (3) GLR 2604.
Page 3 of 25HC-NIC Page 3 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT (V) Vijay Kumar Kaul and Others Vs. Union of India -
(2012) 7 SSC 610
5. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under.
5.1 The date of joining the service by the petitioner is 15.11.1977. His date of retirement is 09.06.2007.
5.2 The petitioner had given an application for voluntary retirement on 01.03.2007. The said application reads as under.
"(Page No.42 Annexure-F) Thakordas L Vediya 28 Shivam Society, B/H Navyug College, New Rander Road, Surat - 395009.
Dated 01.03.2007 The General Manager (HRM), Bank of Baroda, Baroda Corporation Centre, Mumbai.
Dear Sir, Re : Application for voluntary retirement From Bank's Service.
I the undersigned hereby desire to voluntarily retire from bank's service w.e.f.Page 4 of 25
HC-NIC Page 4 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT 31.05.2007 due to my personal health ground.
My particulars are as under.
Name : Tahkordas L Vediya
E.C.No. : 23395
Designation : officer
Present Grade/ Scale : M.M.Grade II
D.O.B. / AGE : 30.08.1954 / 52 years and 6
months
No. of years of service : 29 Years and 3 months and 15 days Reasons for seeking voluntary retirement :
Health / personal ground.
I hereby request you to kindly accept my voluntary retirement and oblige.
Yours faithfully (T.L.Vediya)"
5.3 The said application was responded by the bank vide its communication dated 13.03.2007, which reads as under.
"Page: 43 Annexure-G GO:BUL:HRM:21/3426 March 13, 2007 Mr.Thakorbhai L Vaidya E.C.No.23395, Officer MMG/S-I, Bank of Baroda, Saribujrang Branch, Amalsad.Page 5 of 25
HC-NIC Page 5 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT Dear Sir, Re:Voluntary Retirement under BOBOSR 1979.
Reference is invited to your application dated 01.03.2007 thereby requesting to consider the said application for voluntary retirement from bank's service under BOBOSR 1979.
In this connection, we advise you that your services will be continued in the bank till your application for voluntary retirement is considered favourably by Competent Authority and communicated to you in writing.
Yours faithfully, (R.K. Sinha) Asstt. General Manager"
5.4 Thereafter, the application of the petitioner for voluntary retirement was duly accepted by the Competent Authority. The decision of the Competent Authority was conveyed to the Branch Manager vide letter dated 05.06.2007. The relevant part of the said sanction letter reads as under.
"Page : 44 (letter dated June 5, 2007) Bank of Baroda GO:BUL:HRM: 21/4029 The Senior Manager, Bank of Baroda, Saribujrang Branch, Amlasad.
Dear Sir, Re: Voluntary retirement from Bank's service Page 6 of 25 HC-NIC Page 6 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT under BOBOSR 1979.
Mr. T.L.Vediya -E.C. No.23395 - Officer MM G/S -II We refer to your letter No.AMAL/HRM/2007/525 dated 01.03.2007, enclosing therewith letter dated 01.03.2007 of Mr.T.L.Vadiya, E.C. 23395, Officer MMG/S-II Attached to your branch, tendering his application for voluntary, retirement from the bank's service under BOBOSR 1979.
In this regard, we wish to inform you that the matter was placed before the General Manager (HRM & GA) and Competent Authority who has accepted the voluntary retirement of Mr.Vediya subject to the following terms and conditions:-
XXXX.....
Please do needful and relieve Mr.Vediya accordingly.
Yours faithfully, S/d (R.K.Sinha) Asst. General Manager"
5.5 Based on the above sanction letter, the Branch Manager passed the consequential relieving order of the petitioner on 09.06.2007. The said order dated 09.06.2007 reads as under.
"Page:48 Bank of Baroda June 9, 2007 AMAL HRM 2007/45/132 Mr. T. L. Vediya (EC. No.23395) Officer, Bank of Baroda, Saribujarang, Page 7 of 25 HC-NIC Page 7 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT Amalsad Re: Your Voluntary Retirement from Bank's service under BOBOSR 1979 We refer to your letter dated 01.03.2007 tendering your application for voluntary retirement from Bank's service under BOBOSR 1979.
We wish to inform you that Competent Authority has accepted your Voluntary retirement.
Accordingly you will be relieved from Bank's service after office-hours today i.e. on 09.06.2007.
We wish you HAPPY, HEALTHY AND PEACEFUL retired life Yours faithfully s/d (T.J.Desai) Sr.Branch Manager"
5.6 The petitioner was paid his dues and thereafter some additional benefit was also granted to the petitioner by the Bank vide letter dated 23.08.2007. The said benefit is termed as 'Ex-Gracia payment of the Additional Retirement benefit of 6 months salary etc.' The relevant part of the said letter dated 23.08.2007 reads as under.
"Page 47 letter dated 23.08.2007 No: HM:HRM:95:ARB:702/105 4908 The Chief/Senior Manager Bank of Baroda Amalsad Navsari, Gujarat Dear Sir Page 8 of 25 HC-NIC Page 8 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT Ref: ADDITIONAL RETIREMENT BENEFIT A/c MR. THAKORDAS LALLUBHAI VEDIYA EX-MANAGER OF AMALSAD (1) We are pleased to advise that MR. THAKORDAS LALLUBHAI VEDIYA has been sanctioned Ex-Gracia payment of the Additional Retirement benefit of 6 months salary etc. Basic + Spl. Alw. + D.A. + PPA/FPA + H.R.A. + C.C.A. + Oth. Alw = Total 22280+0+6176 + 685 + 1448 + 0 + 0 = 30589 (2) You are therfore requested to pay to MR.
THAKORDAS LALLUBHAI VEDIYA Rs. *1,83,534 Rs. ONE LAC EIGHTY THREE THOUSAND FIVE HUNDRED THIRTY FOUR ONLY as stated above which is the amount equivalent of 6 months salary based on the last emoluments payable to him to the debit of your P&L A/C.......
XXX.....
(7) THIS ENTIRE PAYMENT OF ADDITIONAL RETIREMENT BENEFIT IS SUBJECT TO DEDUCTION OF TAX (IN CASE OF DECEASED, TAX NOT TO BE DEDUCTED) AT RESPECTIVE RATES APPLICABLE TO THE EMPLOYEE CONCERNED FOR THE INCOME OF THE CURRENT YEAR.
(8) XXXX.....
Yours faithfully,
s/d
Senior Manager
Encl. as above. (HRM)"
5.7 As against the above record, which is of the respondent Bank itself, the defence put forward by the Bank in substance is to the effect that, though :- (i) the application of the petitioner was for voluntary retirement, (ii) it was accepted also by the Competent Authority at the relevant time i.e. in June, 2007 as voluntarily retirement, (iii) Additional Retirement benefit of 6 months' salary etc. was also paid by the Bank Page 9 of 25 HC-NIC Page 9 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT (vide letter dated 23.08.2007) to the petitioner :- all that was 'mistake' of the Bank and therefore the petitioner should be treated to have resigned and not voluntarily retired from the service of the Bank. The relevant part of the affidavit in reply reads as under.
"4.9 It appears that the petitioner, before having completed 30 years of service or 55 years of age and when he had completed only 29 years, 6 months and 26 days, and was 52 years and 6 months old applied for voluntary retirement. Though the case of the petitioner could not have been considered under Regulation 19 of the Scheme for Voluntary Retirement, it seems that out of sheer mistake, the petitioner's application for voluntary retirement was accepted. Since the said acceptance was not in consonance with the Scheme for voluntary retirement and since the petitioner's case did not fall within the criteria for voluntary retirement, the case of the petitioner would fall within Regulation 20 of the BOBOSR, 1979 for resignation and the petitioner shall deem to have resigned from service and would not fall within the category of having retired as contemplated in joint note dated 27.04.2010 for being eligible for availing second option for Pension. Thus his case has been rightly rejected by the Bank saying that he is not eligible.
4.10 Since the petitioner can be deemed only Page 10 of 25 HC-NIC Page 10 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT to have resigned from service as explained herein above, the petitioner, even if he had selected pension as his option at the first instance, then also he would not and could not have been given pension as held by this Hon'ble Court. Since the petitioner had resigned, there is no question of granting him a second chance to opt for pension as his entire service shall stand and has, in fact, stood forfeited and the petitioner would not be entitled to the pension. In the circumstances, the Hon'ble Court would not pass an order which will not be executable or would be in futility or not permitted under law. I state that the petitioner has come up with an incorrect case that he has retired.
4.11 I state that in the alternative and assuming for the sake of argument whilst denying that the Bank had accepted his voluntary retirement and that permitted him to retire voluntary, the same was a mere mistaken action would be non-est as a voluntary retirement and would have to be treated as an acceptance of resignation under Regulation 20 and all actions pursuant to the alleged voluntary retirement would also be non-est and would have to be reversed. ......
7.1 ...... The provision that an employee who was in service as on 29.09.1995 is qualified by the sentence and has retired on or before 27.04.2010 Page 11 of 25 HC-NIC Page 11 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT and therefore, the submissions in paras 3.1 and 3.2 are completely devoid of merits since the petitioner had not retired, therefore, also he would not be entitled to seek to join the pension scheme.
7.3 The contention in para 3.4 is on premises that the petitioner has retired. However, as stated herein before, since the petitioner has not retired and is required to be deemed to have resigned his case excluded from the provisions of Joint dated 27.04.2010....."
5.8 On conjoint consideration of the record of the Bank as noted in para:5.3 to 5.6 above, this Court finds that, the stand of the respondent Bank as noted in para:5.7 above, which in substance is to the effect that, the petitioner should be treated to have resigned from the service and not voluntary retired, can not be accepted and the same needs to be rejected.
6. The petitioner can not succeed only on the demerits of the respondent. He has to succeed on his own merits. For this purpose, this Court has examined the claim of the petitioner vis-a-vis the policy of the respondent Bank in that regard, which is on record. For this purpose, the relevant documents which need to be considered by this Court are as under. (relevant part of each document is quoted in the later part of this judgment.) 6.1 The petitioner approached the respondent Bank with a request to permit him to switch over to pension vide his letter Page 12 of 25 HC-NIC Page 12 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT dated 09.01.2013. Necessary forms in the prescribed formates were also submitted by him. (page:49 to 52).
6.2 The said request was pursuant to the Circular of the Bank dated 04.12.2012. (Page:38) 6.3 The above circular of the respondent Bank dated 04.12.2012, was pursuant to the Circular of the Indian Banks' Association dated 09.11.2012 (page:35) as amended vide Circular dated 12.11.2012 (page:37).
6.4 The above referred Circular of the IBA dated 09.11.2012 was in furtherance of its earlier policy decision as contained in Circular dated 10.08.2010 (page:27).
6.5 Pursuant to the above referred Circular of the IBA dated 10.08.2010, the respondent Bank had issued consequential circular dated 09.09.2010 (page:29).
6.6 The claim of the petitioner needs to be examined keeping in view the above circulars, which are on record. Relevant part of these circulars are quoted as under.
7.1 The policy decision of the Indian Banks' Association, to which the respondent Bank of Baroda was also a party, can be traced in its circular dated 10.08.2010. The said circular took on record, the bipartite settlement with workmen Unions and Joint Note with Officers Organisations for extending another option to join the pension scheme to those who did not opt for pension earlier. The said circular dated 10.08.2010 was, in substance giving effect to the agreement between the parties Page 13 of 25 HC-NIC Page 13 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT dated 27.04.2010. The said settlement is called :- 'Joint Note on agreed conclusions reached between the Indian Banks' Association on behalf of the Managements of Banks listed in the Schedule and All India Bank Officers' Confederation (AIBOC), All India Bank Officer's Association (AIBOA), Indian National Bank Officers' Congress (INBOC) and National Organisation of Bank Officers (NOBO)'. After recording the historical background of the pension scheme in the Bank etc., fresh decision was noted in the said settlement, the relevant part of which reads as under.
" The parties held various rounds of discussions in the matter and have now reached conclusions as set out hereunder:
xxxx.....
Another option for joining the existing Pension Scheme shall be extended to those Officers who:-
(3) (a) were in service of the bank prior to 29th September 1995 in case of Nationalized Banks / 26th March 1996 in case of Associate Banks of State Bank of India and retired after that date and prior to the date of this Joint Note;
(10) The conclusions arrived and recorded in the above Clauses together with a copy of the Scheme of Pension will be forwarded to the Government by the IBA for their approval and further action in terms of Section 19 of the Banking Companies Page 14 of 25 HC-NIC Page 14 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT (acquisition and Transfer of Undertakings) Act, 1970/1980 by complying with the procedure for amendment of the relevant Pension Regulations."
7.2 After getting approval from the Central Government, the Indian Banks' Association issued circular on 10.08.2010. Relevant part of the said circular reads as under.
"3. Sanction of the Government is also accorded to implement the terms of Settlement / Joint Note dated 27th April 2010 between IBA and Unions / Associations for the grant of option to the retirees and payment of pension to such retirees w.e.f. 27th November 2009, who opt for pension and comply with terms and conditions set out in the Settlement / Joint Note for grant of pension, pending necessary amendments in the Bank (Employees) Pension Regulations, 1995.
5. Officer / Workmen employees, who opted for Voluntary Retirement under special Voluntary Scheme after rendering a minimum of 15 years service, shall be eligible to exercise option to join the Pension Scheme subject to terms and conditions applicable to retirees.
10. You are also requested to advise those who retired from service on or after 29th September 1995 / 26th March 1996 in the last known address, the following information as available in the Bank's records: ...."Page 15 of 25
HC-NIC Page 15 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT 7.3 Pursuant to the above referred Circular of the IBA dated 10.08.2010, the respondent Bank had issued consequential circular dated 09.09.2010 (page:29). The relevant part of the said circular dated 09.09.2010 reads as under.
" Re:Pension Option-Bank of Baroda Employees' Pension) Regulation 1995-Implementing Pension Settlement pending amendment to Pension (Regulations) issuance of option letters to existing Employees/Officers.
***** In terms of the Agreement/Joint note dated 27.4.2010 entered into/agreed between IBA and the Workmen Unions Officers Organizations it has been advised by Indian Banks Association vide their communication under reference No.CIR/HR and IR/G2/665/90/2010-11/1999 dated 10.8.2010 that option to join captioned pension scheme to be extended to these employees/Officers :-
A. Who were in service of the bank prior to 29th September 1995 and continue in the service of the bank on the date of Bipartite Settlement/Joint Note i.e. 27th April 2010.
I. Such employees shall exercise an option in writing within 60 days from the date of the offer to become a member of the Pension Fund and .....
B. Who were in service of the bank prior to 29th September 1995 and retired after that date and Page 16 of 25 HC-NIC Page 16 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT prior to the date of this Bipartite Settlement/Joint Note i.e. 27th April 2010.
I. Such employees shall exercise an option in writing within 60 days from the date of offer to become a member of the Pension Fund and......"
7.4 The above benefit was further extended by the circular of the Indian Banks' Association dated 09.11.2012, as amended vide its circular dated 12.12.2012. Relevant part of the said circular reads as under.
"3. The Joint Note dated 27.4.2010 for extending another option for pension to the non-optees indicates the categories of employees eligible for another option. In accordance with the provisions contained in the Joint Note dated 27.4.2010, Banks had extended the benefit of exercising another option to join the Pension Scheme to the eligible category of employees within the prescribed time schedule.
However, the Joint Note did not specifically include the provision for offering another option to join the pension scheme to those officers who took voluntary retirement. Consequently, a number of representations were made by such category of officers to banks/IBA/Government and many of them moved to court of law. Besides, representations have also Page 17 of 25 HC-NIC Page 17 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT been made by UFBU to resolve the issue.
4. The above matter has been engaging the attention of Government as well as IBA for quite some time. Accordingly, the Managing Committee of IBA at its meeting held on 30.10.2012 had decided that those officers who took Voluntary Retirement within the meaning and provision of Regulation 19(1) of Bank Officers' Service Regulations, 1979 may be extended the benefit of exercising another option to join the existing Pension Scheme strictly in accordance with the terms and conditions laid down in the Joint Note dated 27.4.2010."
5. (As amended vide circular dated 12.11.2012.) We are, therefore, to advise that the banks may, as decided by the Managing Committee of IBA extend the benefit of exercising another option to join the Pension Scheme to those officers who had taken Voluntary Retirement from the Bank's service on or after 29.06.1995 in case of Nationalised Banks/ 26.3.1996 in case of Associate Banks of State Bank of India in terms of rules framed by each Bank's Board pursuant to the proviso to Regulation 19(1) of Bank Officers' Service Regulations 1979. Besides, the family of those officers who were in the service of the bank prior to 29.9.1995 in case of Nationalised Banks/ 26.3.1996 in case of Associate Banks of State Bank of India, retired Page 18 of 25 HC-NIC Page 18 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT after that date and had died thereafter will be eligible for another option to join the existing Pension Scheme for family pension. These categories of officers/ family members are to be sanctioned the benefits in terms of Regulations- 29 of Bank Employees' Pension Regulations, 1995."
7.5 The respondent Bank of Baroda issued consequential circular dated 04.12.2012. Relevant part of the said circular reads as under.
" We refer to Bank's Circular NO.BCC:BR:102/246 dated 09.09.2010 in respect of extending another option for pension to eligible employees/ex-employees/ family of deceased employees in terms of settlement / Joint Note dated 27.04.2010.......
Accordingly Bank of Baroda in its meeting held on 29.11.2012 has accorded Authority to extend the benefit of exercising another option to join the Pension Scheme to eligible officers who had taken form bank service under the Regulation 19(1) of Bank of Baroda Officers' Service Regulations 1979. Hence in the terms of Joint Note dated 27.04.2010 agreed between IBA and Officer's Organisations and above advice dated 09.11.2012 of Indian Bank Association it has been decided to extend the benefit of exercising another option to join the existing Page 19 of 25 HC-NIC Page 19 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT pension scheme to:
A. Officers who were in service of the bank prior to 29th September, 1995 and had taken voluntary retirement from Bank's Service on or after 29.09.1995 upto 11.11.2010 under Regulation 19(1) of Bank of Baroda Officers' Service Regulation, 1979.
I. Such employees shall exercise an option in writing within 60 days from the date of the offer to become a member of the Pension Fund and II. shall refund within 30 days after expiry of the said period of 60 days, the entire amount of the bank's contribution to the Provident Fund and interest accrued thereon received by the officer on voluntary retirement together with his/her share in contribution towards meeting the funding gap. On an individual basis, the payment over and above the bank's contribution to Provident Fund and interest thereon has been worked out at 56% of the said amount of bank's contribution to Provident Fund and interest thereon received by the officer on voluntary retirement i.e. (a) Bank's Contribution to Provident Fund + (b) interest there + (c) 56% of (a) and (b)."
8. When the facts of the present case which are noted in para:5.1 to 5.7 above, are weighed vis-a-vis the contents of the above referred circulars of the respondent Bank, this Court Page 20 of 25 HC-NIC Page 20 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT finds that, the claim of the petitioner is supported by the policy of the Bank, which is based on the policy of the Indian Banks' Association, as sanctioned by the Government of India.
9. On conjoint consideration, this Court arrives at the conclusion that there is overwhelming material on record, which justifies the claim of the petitioner on merits and there is further material on record, which falsifies the contest of the respondent Bank. Thus, on both counts, this petition needs to be allowed.
10. There is an additional factor which would tilt the balance in favour of the petitioner. The total length of service put in by the petitioner was more than 29 years and 06 months but less than 30 years. The denial of the Bank is principally based on this gap of few months. Even according to the respondent Bank, had it been 30 years, the petitioner could have asked for voluntarily retirement and in turn he would have been entitled to opt for pension. In this regard, it needs to be noted that, as per the regulations of the Bank, the period of 29 years and 06 months is to be rounded as 30 years. Further the petitioner is paid additional retirement benefit of six months salary (vide letter dated 23.08.2007). Both these points, would make it to 30 years. At this stage, reference also needs to be made to the decision of the Supreme Court of India in the case of Bank of Baroda Vs. Ganpat Singh Deora reported in AIR 2009 SC 1745(1) which is heavily relied by learned advocate for the respondent. The said decision fell for further consideration before the Supreme Court of India in the case of State Bank of Patiala Vs. Pritam Singh Bedi reported in AIR 2014 SC 2714. The conjoint reading of those two decisions Page 21 of 25 HC-NIC Page 21 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT leaves no room to conclude that the petitioner can not be said to have not completed 30 years of service. It is noted that, this is only an additional factor in favour of the petitioner and this judgment is not based on this count.
11. The so called mistake by the bank needs to be seen in view of the observations of the Supreme Court of India in the case of Bhartiya Seva Samaj Trust Vs. Yogesh Ambalal Patel reported in (2012) 9 SCC 310, which is to the effect that :- a person alleging his own infamy cannot be heard at any forum, what to talk of a writ court, as explained by the legal maxim allegans suam turpitudinem non est audiendus. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong. At this stage, it also needs to be noted that, the Competent Authority of the respondent Bank had, at the relevant time (in the year 2007), after due consideration, accepted the application of the petitioner for voluntary retirement and even an express order was passed to that effect. The Management of the Bank after a decade can not be permitted to take a convenient stand that, that was a mistake. The conscious decision of the competent Authority could have been paid due respect by the Bank. Be that as it may, the action of the Bank of the year 2007, at this stage can not be permitted to be brushed aside by usage of some vocabulary like 'mistake' by some officer.
12. It also needs to be noted that, the very foundation of the the pension scheme in the Banks, is to extend benefit to more number of employees / officers. Its coverage is extended to more officers from time to time. The last amendment in the said scheme vide Circular of the Indian Banks' Association Page 22 of 25 HC-NIC Page 22 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT dated 09.11.2012 also takes note of this spirit. If the impugned action of the respondent Bank is weighed vis-a-vis the object of the scheme, it does not reconcile. As noted above, this Court has found that, even on strict reading of the scheme, the impugned action is illegal, when the need is to read it liberally, at least harmoniously. Viewing from any angle, the impugned action of the Bank needs to be interfered with.
13. So far the decisions relied by learned advocate for the respondent Bank (which are noted above) are concerned, there can not be any dispute with regard to proposition of law, however whether in the facts of this case, the petitioner can be said to have resigned from service or voluntarily retired, is a question of fact and not a question of law. When this Court has, on facts recorded finding to the effect that, the application of the petitioner was for voluntary retirement, which was accepted by the Competent Authority of the Bank, the decisions relied by the learned advocate for respondent Bank would not take the case of the respondent any further. On the other hand, the decisions as relied by learned advocate for the petitioner (which are noted above), in this factual background, would support the case of the petitioner.
14. It is noted that as per the circular of the Bank, the concerned employee / officer has to refund the amount of employer's contribution to provident fund with some more amount within stipulated time, once the option is accepted by the Bank. In the present case, the petitioner had already given option in January, 2013 which the Bank had arbitrarily rejected at the relevant time. By this judgment, when it is held that, the petitioner is entitled to pension, the Bank shall be required to Page 23 of 25 HC-NIC Page 23 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT pay arrears from June, 2007 as per its circular. From this total period, the arrears for the period from January, 2013 onwards is that amount, which the Bank has illegally withheld. Keeping this aspect in view, relief is appropriately moulded in para:16.4.
15. Considering the totality, this Court finds that the claim of the petitioner is covered by the policy of the Bank, which is based on the policy of the Indian Banks' Association, as sanctioned by the Government of India, which is on record and thus the petitioner is entitled to relief on his own merits, vis-a- vis no legally acceptable defence by the respondent Bank.
16. For the reasons recorded above, the following order is passed 16.1 This petition is allowed.
16.2 It is held that the petitioner is entitled to opt for pension pursuant to the Circular of the Bank dated 04.12.2012 and had rightly given an application to that effect on 09.01.2013. It is held that the rejection of the said application by the Bank vide its communication dated 14.02.2013 is illegal and against its policy and therefore the same is set aside.
16.3 The respondent Bank is directed to accept the application of the petitioner dated 09.01.2013 and process the claim of the petitioner for pension.
16.4 The amount of employer's contribution in provident fund with other increases, which the petitioner is required to refund Page 24 of 25 HC-NIC Page 24 of 25 Created On Sat Jul 29 00:24:45 IST 2017 C/SCA/3550/2014 CAV JUDGMENT to the Bank as per its policy, shall be deducted by the Bank from the amount of the arrears of pension, which is payable to the petitioner by the Bank.
16.5 The above exercise shall be completed within a period of three months from the date of receipt of this order.
(PARESH UPADHYAY, J.) M O Bhati/1 Page 25 of 25 HC-NIC Page 25 of 25 Created On Sat Jul 29 00:24:45 IST 2017