Allahabad High Court
Sahajanand Rai vs Union Of India And 4 Ors on 22 March, 2023
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On : 27.01.2023 Delivered On : 22.03.2023 Case :- WRIT - A No. - 53237 of 2014 Petitioner :- Sahajanand Rai Respondent :- Union Of India And 4 Ors Counsel for Petitioner :- Sanjay Kumar Rai,Ashok Khare Counsel for Respondent :- A.S.G.I.,C.S.Chaturvedi,S.C.,Sanjeev Singh,Vatsala Hon'ble Neeraj Tiwari,J.
Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Sanjay Kumar Rai, learned counsel for petitioner and Ms. Vatsala, learned counsel for respondent Nos. 2 to 5 (respondent-Bank).
By way of present petition, petitioner is challenging the orders dated 13.10.2010 and 11.08.2014 passed by Deputy Regional Manager, Bank of India, Regional Office, Varanasi, by which, petitioner has been denied the pension and leave encashment as well as para 3 of circular dated 24.08.2010.
Learned Senior Counsel submitted that petitioner was appointed on 13.08.1988 as Clerk-cum-Cashier under the respondent-Bank of India (hereinafter referred to as ''Bank') at district Bhadohi, which is a nationalized bank and comes within the purview of Article 12 of Constitution of India. Petitioner was posted at different places and lastly, he was posted at district Jaunpur in October, 2001 where disciplinary proceedings were initiated against him. He was issued departmental charge sheet dated 05.01.2002, upon which, Inquiry Officer has submitted inquiry report dated 11.02.2002. The inquiry report was supplied to the petitioner alongwith show cause notice dated 14.06.2002. Petitioner has submitted reply to the show cause notice and ultimately, vide order dated 19.09.2002 passed by the Chief Manager/Disciplinary Authority, petitioner was punished imposing penalty of removal from service in terms of clause 6(b) of Memorandum of Settlement dated 10.04.2002 (hereinafter referred to as ''Settlement, 2002'). Against that order, petitioner has filed an appeal before the Zonal Manager, Varanasi Zone, Varanasi. The appeal so filed by the petitioner was rejected vide order dated 28.03.2003. Aggrieved by the orders dated 19.09.2002 and 28.03.2003, petitioner has filed Writ Petition No. 17841 of 2003 (Sahajanand Rai vs. Bank of India & others) before this Court, which was also dismissed vide order dated 24.01.2007. Against that order, petitioner has filed Special Appeal No. 251 of 2007 (Sahajanand Rai vs. Bank of India & others), which was also dismissed vide order dated 09.12.2009. Lastly, petitioner has filed Special Leave to Appeal (Civil) No. 9596 of 2010, which was dismissed as withdrawn vide order dated 09.04.2010 with liberty to the appellant to approach the High Court by way of a review petition. Subsequent thereto, petitioner has filed review petition seeking review of the Division Bench judgment dated 09.12.2009 passed in Special Appeal No. 251 of 2007. The review petition has been dismissed by a Division Bench of this Court vide order dated 30.07.2010. Against the aforesaid judgment, petitioner has again preferred Special Leave to Appeal (Civil) No. 30627 of 2010, which has also been dismissed vide order dated 15.11.2010. He next submitted that as a consequence of aforesaid litigations, the penalty imposed upon the petitioner by order dated 19.09.2002 has attained finality.
He next submitted that vide impugned order, petitioner was removed from service in terms of Clause 6(b) Settlement, 2002, which provides removal from service with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity etc. As petitioner was not paid pension, therefore, he has moved application under Right To Information Act, 2005, which was replied to the petitioner vide communication dated 26.12.2010 that the total amount due to the petitioner under the head of Provident Fund and Gratuity had been adjusted towards loans advanced to the petitioner from the said bank as also from Bank of India Employees Cooperative Credit Society Ltd. He further submitted that on 27.04.2010, a Memorandum of Settlement (hereinafter referred to as ''Settlement, 2010') has been arrived between the Indian Banks Association and the Workmen Association with regard to introducing Pension Scheme in the banking industry as a second retiral benefit in lieu of Contributory Provident Fund. Under the Settlement, 2010, an option was made available for opting for the Pension Scheme and it was also available to employees who had ceased to be in service in the concerned bank. Petitioner has submitted his option for opting Pension Scheme in terms of the aforesaid Settlement, which was denied vide impugned order having reference of circular letter dated 24.08.2010 (hereinafter referred to as ''Circular') issued by the Bank, which provides that option for Pension Scheme shall not be available to the employees whose services stood ceased as a consequence of the disciplinary proceedings. Impugned order dated 11.08.2014 has also been passed rejecting the application of the petitioner for sanction of pension.
He firmly submitted that the Settlement, 2010 made available an option to all members of the Contributory Provident Fund irrespective of their current status of being an employee of the Bank or having ceased to be an employee of the bank. There exists no such clause in the Settlement, 2010, which may preclude the petitioner from exercising his option for pension. Further, Clause 3 of the Circular, which has been relied upon by the respondents in rejecting the application of the petitioner is a clause contrary to the Settlement, 2010, which is having no such provisions. Binding terms of the Settlement, 2010 cannot be subject to any alteration by means of a circular letter issued by the respondent-bank. He next submitted that entitlement for pension/leave encashment under respondent-bank is based upon a qualifying service of 10 years towards credit and petitioner is fulfilling such requirements as he was continuous in service from 13.08.1988 to September, 2002. Petitioner is having no objection for adjustment of amount of Contributory Provident Fund towards loans of the petitioner, as mentioned in the communication of Deputy Regional Manager dated 26.12.2010, but after deduction of same, amount of pension/leave encashment should have been paid to the petitioner. It is next submitted that similar issue was before the Apex Court in the matter of Bank of Baroda vs. S.K. Kool (Dead) through Legal Representatives and another; (2014) 2 SCC 715 (Civil Appeal No. 10956 of 2013) decided on 11.12.2013, in which Apex Court with detail finding has held that in case of penalty of removal from service with superannuation benefits, employee shall be entitled for those benefits arising out of bipartite Settlement. He firmly submitted that no inclusion can be made in bipartite Settlement by a circular and definition of retirement is very well considered in the matter of Bank of Baroda (Supra) which provides that even the employees, who have been terminated along with superannuation benefits in terms of Clause 6(b) of Settlement, 2002, are entitled for pensionary benefits, which includes such employees also who have been awarded penalty.
Per contra, Ms. Vatsala has vehemently opposed the submissions of counsel for petitioner, but could not dispute the facts so argued by learned Senior Counsel. She only submitted that similar issue was before Calcutta High Court in the matter of State Bank of India v. Golam Jilani (M.A.T. -1053 of 2018) decided on 18.02.2019. In the said case, after termination under Clause 6(b) of Settlement, 2002, pension was denied and the Court has finally held that after punishment, he has rightly been denied for the pension.
I have considered the submissions of counsel for parties and perused the records as well as judgments cited above.
It is undisputed that petitioner was awarded punishment of removal from service in terms of Clause 6(b) of Settlement, 2002, against which, petitioner has contested up to the Apex Court, but could not succeed.
Clause 6(b) of Settlement, 2002 is quoted below:-
"6. An employee found guilty of gross misconduct may;
(a).............
(b) be removed 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, or"
From the perusal of clause 6(b) of the Settlement, 2002, there is no dispute that petitioner was removed from service, but not precluded from 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. Petitioner was also not disqualified for future employment.
Later on, another Settlement, 2010 arrived between the Indian Banks' Association and the Banks' workmen's Union regarding introducing pension scheme in the banking industries as second retiral benefits in lieu of contributory funds. The Settlement, 2010 provides for an option for opting the pension scheme and it was available to the employees who had ceased to be in service in employment of the concerned-bank. Relevant paragraph of the Settlement, 2010 is quoted below:-
"4. Employees who ceased to be in service on or after 29th September 1995 in case of Nationalized Banks/26th March 1996 in case of Associate Banks of State Bank of India on account of voluntary retirement under special scheme after rendering service service for a minimum period of 15 years, shall be eligible to exercise an option to join the Pension Scheme subject to the terms and conditions mentioned for retiring employees opting for joining the Scheme."
From the perusal of same, it is apparently clear that every employee, for any reason, ceased to be in service on or after 29th September 1995 in case of Nationalized Banks/26th March 1996 in case of Associate Banks of State Bank of India, shall be eligible to opt the scheme. Later on, Circular has been issued depriving such employees to take pensionary benefits on account of resignation/voluntarily retirement under Officers Service Regulation 19/incapacitation/on medical grounds/any other type of cessation on account of penalty proceedings are not eligible to opt for joining the pension scheme. Relevant paragraph of Circular is quoted below:-
"3. It also may be noted that the employees who have ceased to be in the service of Bank account of Resignation/Voluntarily retired under Officers Service Regulation 19/incapacitation/on medical grounds/any other type of cessation on account of penalty proceedings are not eligible to opt for joining the pension scheme. Also existing Pension optees cannot revoke their option from pension to CPF."
The contention of counsel for petitioner is correct for the reasons that once a settlement has arrived between the parties on 27.04.2010 which provides pensionary benefits to all category of employees whose services were ceased, they cannot be deprived by a circular which creates a clause between the employees whose services are ceased for different reasons. In fact, once Settlement, 2010 arrived between the parties, any provision contrary to that cannot be inserted by the way of Circular which is against the employees. The very same issue was subject matter of Apex Court in the matter of Bank of Baroda (Supra) in which, Apex Court has taken specific view that employees, who have been removed from service in terms of Clause 6(b) of Settlement, 2002, shall be entitled for superannuation benefits. Relevant paragraph Nos. 14, 15 & 16 of the judgment are quoted below:-
"14. The Regulation does not entitle every employee to pensionary benefits. Its application and eligibility is provided under Chapter II of the Regulation whereas Chapter IV deals with qualifying service. An employee who has rendered a minimum of ten years of service and fulfils other conditions only can qualify for pension in terms of Article 14 of the Regulation. Therefore, the expression "as would be due otherwise" would mean only such employees who are eligible and have put in minimum number of years of service to qualify for pension. However, such of the employees who are not eligible and have not put in required number of years of qualifying service shall not be entitled to the superannuation benefit though removed from service in terms of clause 6(b) of the Bipartite Settlement. Clause 6(b) came to be inserted as one of the punishments on account of the Bipartite Settlement. It provides for payment of superannuation benefits as would be due otherwise.
15. The Bipartite Settlement tends to provide a punishment which gives superannuation benefits otherwise due. The construction canvassed by the employer shall give nothing to the employees in any event. Will it not be a fraud Bipartite Settlement? Obviously it would be. From the conspectus of what we have observed we have no doubt that such of the employees who are otherwise eligible for superannuation benefit are removed from service in terms of clause 6(b) of the Bipartite Settlement shall be entitled to superannuation benefits. This is the only construction which would harmonise the two provisions. It is well settled rule of construction that in case of apparent conflict between the two provisions, they should be so interpreted that the effect is given to both. Hence, we are of the opinion that such of the employees who are otherwise entitled to superannuation benefits under the Regulation if visited with the penalty of removal from service with superannuation benefits shall be entitled for those benefits and such of the employees though visited with the same penalty but are not eligible for superannuation benefits under the Regulation shall not be entitled to that.
16. Accordingly, we hold that the employee's heirs are entitled to superannuation benefits. The entire amount that the respondent is found entitled to along with interest at the rate of 6% per annum should be disbursed within 6 weeks from the date of receipt/communication of this Order."
Learned counsel for respondents have also placed reliance upon the judgment of Calcutta High Court in the matter of State Bank of India (Supra). The said case was about interpretation of Rule 14 of State Bank of India Employees Pension Fund Rules, 1955. In that case, petitioner was not entitled under the provisions of Rule 14 of Rules, 1955 to get pensionary benefits as he was not fulfilling the requirement of Rule, 14. Further, in that case, minimum requirement for grant of pension was 20 years of qualifying service whereas in the present case, minimum requirement of qualifying service for pension as well as leave encashment is 10 years. It is the case of petitioner that he is having qualifying service of 10 years, which was not denied in the counter affidavit. Learned counsel for respondent-Bank has also not produced any Rules which prohibits for payment of pension and other retiral benefits as in the case of State Bank of India (Supra).
In the light of Clause 6(b) of Settlement, 2002 as well as judgment of Apex Court passed in Bank of Baroda (Supra), petitioner is fully entitled for retiral benefits and the same cannot be taken away by the way of Circular, which is in violation of Settlement, 2010.
Therefore, under such facts of the case as well as law laid down by the Apex Court, let a writ of certiorari is issued quashing paragraph-3 of Circular dated 24.08.2010 as well as impugned orders dated 13.10.2010 & 11.08.2014.
Accordingly, writ petition is allowed.
No order as to costs.
Respondents-authorities are directed to pay all retiral benefits including pension/leave encashment provided petitioner fulfils all other requirements required under the Rules of Bank.
Liberty is given to the Bank to adjust the amount of loan advanced to the petitioner from the Bank and also from Bank of India Employees Cooperative Credit Society Ltd., if already not adjusted.
Order Date :- 22.03.2023 Sartaj