Punjab-Haryana High Court
K.L. Vig vs Canara Bank And Ors on 8 March, 2018
Author: P.B. Bajanthri
Bench: P.B. Bajanthri
CWP No. 22149 of 2010 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
CWP No. 22149 of 2010 (O&M)
Reserved on: February 28, 2018
Date of Decision: March 08, 2018
K.L. Vig
... Petitioner
Versus
Canara Bank and others
.... Respondents
CORAM: HON'BLE MR. JUSTICE P.B. BAJANTHRI
Present: Mr. Praveen Gupta, Advocate
for Mr. Vipul Jindal, Advocate,
for the petitioner.
Mr. D.S. Nalwa, Advocate,
for the respondents.
P.B. Bajanthri, J.
1. In the instant petition, petitioner has challenged portion of clause No.5 of Circular No. 297/2010 dated 21.08.2010 (Annexure P/5), whereby an employee who has been retired compulsorily has been made ineligible to opt for pension scheme under the Canara Bank (Employees') Pension Regulations, 1995 (for short "Regulations, 1995").
2. Petitioner while he was in service, was subjected to disciplinary proceedings and it was concluded in imposing penalty of compulsory retirement under the Canara Bank Officer Employees' (Disciple & Appeal) Regulations, 1976 (for short "Regulations, 1976"). Feeling aggrieved by the order of compulsory retirement, petitioner had 1 of 20 ::: Downloaded on - 11-03-2018 03:34:08 ::: CWP No. 22149 of 2010 (O&M) 2 filed an appeal before the appellate authority, wherein he has suffered an order on 30.08.2007 (Annexure P/2) and it has attained finality.
3. Petitioner was retired compulsorily as a measure of penalty. Even in such circumstances, an employee is entitled to portion of pension in terms of Regulation 33 of Regulations, 1995. It is undisputed that petitioner did not opt for pension when it was introduced for the first time. Therefore, there was no occasion to consider whether petitioner is entitled to portion of pension under Regulation 33 of Regulations, 1995.
4. On 27.04.2010, there was a memorandum of settlement between the Indian Banks' Association on behalf of the Managements listed in the Schedule and their workmen represented to All India Bank Employees' Association, National Confederation of Bank Employees, Bank Employees' Federation of India, Indian National Bank Employees' Federation and National Organization of Bank Workers under Section 2
(p) and Section 18(1) of the Industrial Disputes Act, 1947 read with Rule 58 of the Industrial Disputes (Central) Rules, 1957. This settlement is relating to giving another option for joining the existing pension scheme to such of those employees who were in service of the Bank prior to 29th September, 1995 in case of Nationalized Bank / 26th March 1996 in case of Associate Banks of State Bank of India and continue in service of the Bank on the date of settlement and also retired after that date and prior to the date of settlement (Annexure P/3).
5. Pursuant to memorandum of settlement dated 27.04.2010 (Annexure P/3), respondent - Canara Bank issued a circular dated 21.08.2010 reiterating the memorandum of settlement, however, certain 2 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 3 clauses have been incorporated like clause no.5 by which there is a prohibition for exercising option for joining the existing pension scheme read with the memorandum of settlement dated 27.04.2010 to such of those employees who were punished by imposing penalty of compulsory retirement / dismissal / discharge in terms of Regulations, 1976 so also such of those employees who have gone on voluntary retirement under Voluntary Retirement Scheme (for short "VRS") existing in the Bank were also not eligible to opt.
6. Feeling aggrieved by the clause imposed in para no.5 of Circular dated 21.08.2010 (Annexure P/5), petitioner issued legal notice to the respondent-Bank to remove clause no. 5 in circular dated 21.08.2010 and sought permission to opt for joining the existing pension scheme read with memorandum of settlement dated 27.04.2010.
7. Petitioner's grievance sought in the legal notice dated 04.09.2010 (Annexure P/6) was rejected by the respondent-Bank on 15.09.2010 in terms of circular dated 21.08.2010. Hence, present writ petition.
8. Learned counsel for the petitioner submitted that clause imposed in para no.5 of circular dated 21.08.2010 would be contrary to memorandum of settlement dated 27.04.2010 and further submitted that unless and until, regulation No. 33 of Regulations, 1995 is amended appropriately to deny portion of pension. Imposition of clause in para no.5 in the circular dated 21.08.2010 denying exercising of option for the purpose of pension would be contrary to regulation 33 of Regulations, 1995. it was further contended that when statutory provision like 3 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 4 regulation 33 of Regulations, 1995 provides for the higher authority than the disciplinary authority to consider whether an employee who has been retired compulsorily as a measure of penalty would be entitled to portion of pension or not. Therefore, clause no.5 of circular dated 21.08.2010 is ultra vires and liable to be struck down.
9. It was further submitted that Punjab National Bank and Oriental Bank of Commerce issued circulars pursuant to memorandum of settlement dated 27.04.2010. They have not imposed any condition to the extent that an employee who has been retired compulsorily as a measure of penalty is not entitled to opt new pension scheme. Therefore, impugned clause stipulated in the circular dated 21.08.2010 would be discriminatory.
10. Learned counsel for the petitioner relied on following decisions:-
i) Judgment of Andhra Pradesh High Court in the case of Sreeram Ramamurthy vs. Andhra Bank, Rep. By its Chairman & Managing Director, Pattabhi Bhavan, Saifabad, Hyderabad and three others, Writ Petition No. 9069 of 2011, decided on 22.03.2012 (Annexure P/16):
ii) Judgment of Andhra Pradesh High Court in Writ Appeal No. 902 of 2012, decided on 08.08.2013 (Annexure P/17);
iii) Judgment of Andhra Pradesh High Court in Writ Appeal No. 905 of 2012, decided on 08.08.2013 (Annexure P/18);
iv) Order of Supreme Court in SLP (C) No. 35389 of 2013 - Andhra Bank and others vs. Y. Shivaji, dated 05.09.2014 in which Supreme Court confirmed the order of the High Court (Annexure P/19).
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v) Judgment of this Court in the case of Central Bank of India and another vs. V.K. Vohra, LPA No. 1249 of 2016, decided on 26.07.2016.
11. Learned counsel for the petitioner distinguished the decision of the Karnataka High Court passed in W.P. No. 20919 of 2012 - Smt. Sharadabai vs. The Deputy General Manager, Canara Bank to the extent that Smt. Shardabai was also retired compulsorily as a measure of penalty, however, she had not questioned the validity of clause no.5 imposed in Circular dated 21.08.2010. Hence, present case can be distinguished with that of Smt. Shardabai. In the present case, petitioner has questioned the clause no.5 of circular dated 21.08.2010.
12. Learned counsel for the respondents while resisting the contentions of the petitioner submitted that circular dated 21.08.2010 is in terms of memorandum of settlement dated 27.04.2010. There is no ambiguity. It was further submitted that petitioner had not opted for claiming pension as per earlier regulation or for the first time. In other words, he has opted out to claim pension, therefore, question of considering petitioner's claim for pension by the higher authority than the disciplinary authority was not available to him with reference to regulation No.33 of Regulations, 1995. Now, in terms of circular dated 21.08.2010, petitioner is not entitled to opt for pension having regard to the fact that he has been retired compulsorily as a measure of penalty. It was further submitted that regulations 2(y) and 33 of Regulations, 1995 read as under:-
5 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 6 "2(y). "retirement" means cessation from Bank's service, -
(a) on attaining the age of superannuation specified in Service Regulations or Settlements;
(b) on voluntary retirement in accordance with provisions contained in regulation 29 of these regulations;
(c) on premature retirement by the Bank before attaining the age of superannuation specified in Service Regulations or Settlement;" "33. Compulsory Retirement Pension:-
(1) An employee compulsorily retired from service as a penalty on or after 1st day of November, 1993 in terms of Canara Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 or awards / settlement may be granted by the authority higher than the authority competent to impose such penalty, pension at a rate not less than two-thirds and not more than full pension admissible to him on the date of his compulsory retirement if otherwise he was entitled to such pension on superannuation on that date.
(2) Whenever in the case of a bank employee the Competent Authority passes an order (whether original, appellate or in exercise of power of review) awarding a pension less than the full compensation pension admissible under these regulations, the Board of Directors shall be consulted before such order is passed. (3) A pension granted or awarded under sub-
regulation (1) or, as the case may be, under sub- regulation (2) shall not be less than the amount of rupees three hundred and seventy five per mensem." The above regulations are evident that compulsory retirement as a 6 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 7 measure of penalty is different from other retirements. In other words, payment of pension would be permissible only with reference to the aforesaid regulations. Further, it was submitted that compulsory retirement as a measure of penalty amounts to termination / dismissal from service. Since, petitioner had been retired compulsorily as a measure of penalty, consequently, he deemed to be terminated / dismissed from service. In support of this contention, learned counsel for the respondents relied on the following decisions:-
i) UCO Bank and others vs. Anju Mathur, reported in 2013 (3) S.C.T, 272, Para No. 10 and 24 read as under:-
"10. In the case of Ashwani Kumar Sharma (supra), the facts were that the employee therein was served with a charge-sheet which resulted in imposing the penalty of compulsory retirement. This led to cut in pension by 1/3rd, forfeiture of gratuity and leave encashment amount. He filed writ petition claiming these benefits. The bank contested the claim of gratuity and leave encashment (with which we are concerned) by submitting that in view of the provisions of the Officers' Regulations and the Disciplinary and Appeal Regulations, 1976, these benefits were not payable. The gratuity was forfeited under Regulation 46 and leave encashment under Regulation 38 of the Officers' Regulations. These Regulations read as under:- "46(1) Every Officer, shall be eligible for gratuity on:-
(a) retirement
(b) death
(c) Disablement rendering him unfit for further
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CWP No. 22149 of 2010 (O&M) 8
service as certified by a medical officer
approved by the Bank;
(d) resignation after completing ten years of
continuous service; or
(e) termination of service in any other way except
by way of punishment after completion of 10 years of service."
"38. Lapse of Leave - Save as provided below, all the leave to the credit of an officer shall lapse on resignation, retirement, death, discharge, dismissal or termination;
Provided that where an officer retires from the bank's service he shall be eligible to be paid a sum equivalent to the emoluments of any period, not exceeding 240 days, or privilege leave that he had accumulated.
Provided further that where an officer dies while in service, there shall be payable to his legal representative, a sum equivalent to the emoluments for the period, not exceeding 240 days, of privilege leave to his credit as on the date of his death."
It is clear from the reading of Clause (a) of Regulation 46(1) that gratuity is payable on termination of service after completion of 10 years of service, but it would not be paid when termination has come about by way of punishment. Holding that this clause would not apply in the case of compulsory retirement, the entire discussion, which is contained only in Para 8 of the judgment, reads as under:-
"8. A perusal of above shows that Clause (e) of Regulation 46 above which has been relied upon by learned counsel for the appellants cannot apply to the 8 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 9 case of compulsory retirement. Similarly, First Proviso to Regulation 38 clearly shows that on retirement, an officer is entitled to leave encashment. There is no provision for withholding gratuity and leave encashment in the case of compulsory retirement."
From the above, it is clear that gratuity was held payable as it was a case of "retirement" and the employee in that case had retired after rendering 28 years of service.
24. The upshot of the aforesaid discussion would that though we disagree with the reasons given by the learned single Judge allowing the writ petition and also that Ashwani Kumar Sharma (supra) does not lay down correct law, insofar as present case is concerned, still the impugned order forfeiting the gratuity has to be set aside for the reasons given above. At the same time, since it is a procedural defect, liberty is given to the Bank to serve proper show cause notice indicating actual loss, if any, with particulars of the said loss and pass final orders after giving due opportunity of being heard to the respondent."
ii) Union of India vs. Tulsiram Patel reported in (1985) 3 SCC 398, Para Nos. 151 and 152 read as under:-
"151. We are unable to agree with either of the two reasons given by the High Court for setting aside the order of compulsory retirement. So far as the first ground upon which the High Court proceeded is concerned, as already pointed out that part of the judgment in Challapan's case is not correct and it was, therefore, not necessary to give to the Respondent any opportunity of hearing before imposing the penalty of 9 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 10 compulsory retirement on him.
152. It was, however, argued that the penalty imposed upon the Respondent was not of dismissal or removal from service but of compulsory retirement and, therefore, clause (a) of Article 311(2) did not apply. The argument cannot be accepted. The compulsory retirement of the Respondent was not by reason of his reaching the age of superannuation or under other rules which provide for compulsorily retiring a Government servant on his completing the qualifying period of service. The order of compulsory retirement in this case was under clause (i) of Rule 19 of the Civil Services Rules and was by way of imposing upon him one of the major penalties provided for in Rule 11. It is now well settled by decisions of this Court that where an order of compulsory retirement is imposed by way of penalty, it amounts to removal from service and the provisions of Article 311 are attracted. (see State of U.P. v. Shyam Lal Sharma, [1972] 1 S.C.R. 184, 189 and the cases referred to therein)."
Learned counsel for the respondents further relied on a decision of Karnataka High Court in the case of Smt. Sharadabai vs. The Deputy General Manager, Canara Bank, W.P. No. 20919 of 2012 decided on 27.02.2015, wherein Court refused to interfere. Case of the petitioner therein and present petitioner's status are one and the same. Even respondent is common.
13. Learned counsel for the respondents further submitted that clause no.5 of Circular dated 21.08.2010 is not in violation of Article 14 of the Constitution since retirement like superannuation, voluntary 10 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 11 retirement other than the compulsory retirement as a measure of penalty would form a class, whereas compulsory retirement as a measure of penalty form another class. Therefore, an employee who has retired compulsorily as a measure of penalty cannot claim any benefit on par with other class of persons. Therefore, there is no discrimination and infirmity in clause 5 of Circular dated 21.08.2010. Thus, petitioner has not made out a case so as to interfere with the impugned clause no.5 of circular dated 21.08.2010.
14. Heard learned counsel for the parties.
15. Spinal issue in the present case is:-
i) Whether an employee who has been retired compulsorily as a measure of penalty can be equated with that of superannuated, voluntary retirement, premature retirement or is he entitle to pension?
ii) Whether compulsory retirement as a measure of penalty amounts to termination or dismissal so as to deny pension under Regulation 33 of Regulations, 1995 read with memorandum of settlement dated 27.04.2010 (Annexure P/3) and Circular dated 21.08.2010 (Annexure P/5)?
iii) Whether Regulations, 1976 or Regulations 1995 specifically provide that on resignation / dismissal / removal or compulsory retired employee shall forfeit the entire past service and he shall not qualify for pensionary benefits?
16. Undisputed facts are that petitioner had not opted for pension scheme as on the date of imposition of penalty of compulsory retirement. Right has accrued to him to opt for pension scheme vide memorandum of 11 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 12 settlement dated 27.04.2010 (Annexure P/3) read with Circular dated 21.08.2010 (Annexure P/5). Regulation 33 of Regulations, 1995 reads as under:-
"33. Compulsory Retirement Pension:-
(1) An employee compulsorily retired from service as a penalty on or after 1st day of November, 1993 in terms of Canara Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 or awards / settlement may be granted by the authority higher than the authority competent to impose such penalty, pension at a rate not less than two-thirds and not more than full pension admissible to him on the date of his compulsory retirement if otherwise he was entitled to such pension on superannuation on that date. (2) Whenever in the case of a bank employee the Competent Authority passes an order (whether original, appellate or in exercise of power of review) awarding a pension less than the full compensation pension admissible under these regulations, the Board of Directors shall be consulted before such order is passed.
(3) A pension granted or awarded under sub-
regulation (1) or, as the case may be, under sub- regulation (2) shall not be less than the amount of rupees three hundred and seventy five per mensem." The aforesaid provision provides for consideration of compulsory retired employee as a measure of penalty whether is he entitle to pension at a rate not less than two-thirds and not more than full pension admissible to him on the date of his compulsory retirement if otherwise he was entitled to such pension on superannuation on that date. Since petitioner had not 12 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 13 opted for pension from the inception, therefore, next higher authority to the disciplinary authority was not required to examine whether petitioner is entitled to pension at a rate not less then two-thirds etc. or not. Condition imposed in clause no.5 of circular dated 21.08.2010 whereby there is a prohibition for two classes of employees who are not entitled to opt for pension scheme for the second time, if they are not opted for the first time, namely, those who have been retired compulsorily as a measure of penalty and those who have taken voluntary retirement under voluntary scheme. Imposition of such clause in respect of an employee who has been retired compulsorily as a measure of penalty by way of issuing circular would be contrary to regulation 33 of Regulations, 1995 cited supra. Therefore, clause no.5 imposed in the circular dated 21.08.2010 cannot over-ride regulation 33 of Regulations, 1995. Supreme Court in the case of Yogendra Kumar Jaiswal and others vs. State of Bihar and others, reported in (2016) 3 SCC, 183, in para no. 172 held as under:-
"172. When the Bihar Act provides to follow the warrant procedure prescribed by the Code for trial of cases before a Magistrate, the 2010 Rules could not have prescribed for summary procedure. The rules have to be in accord with the Act. The rules can supplement the provisions of the Act but decidedly they cannot supplant the same. Therefore, we declare that part of Rule 12 which lays down that the learned Special Judge shall follow summary procedure, is ultra vires the Bihar Act."
Here in the present case also, Circular should have been in accordance with regulation 33 of Regulations, 1995. Circular can supplement the 13 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 14 provisions of the Regulations but they cannot supplant. Therefore, clause no. 5 of Circular dated 21.08.2010 is ultra vires the Regulations, 1995. No doubt, there is a difference between each of the retirement like superannuated, voluntary retirement, premature retirement and compulsory retirement. In other words, each one of them cannot be equated to that of compulsory retirement at the same time regulation 33 of Regulations, 1995 provides for portion of pension which is evident that there are differences.
17. Contention of the respondents that compulsory retirement as a measure of penalty would be distinguishable with superannuation, voluntary retirement, pre-mature retirement as they form different class, therefore, compulsory retirement as a measure of penalty could be distinguished so as to deny the pension. No doubt, they formed a separate class. At the same time one cannot ignore the provision of regulation 33 of Regulations 1995 to the extent that if an employee had opted for pension, even though he has been imposed with penalty of compulsory retirement, even in such circumstances, he is entitled to portion of pension such entitlement would be considered by the next higher authority than the disciplinary authority which is provided in the regulation 33 of Regulations, 1995. Therefore, petitioner has a statutory right to seek second option for opting pension scheme.
18. Respondents' contention that compulsory retirement amounts to termination / dismissal is concerned, it is to be noted that having regard to the provision in the regulation 33 of Regulations 1995, it is crystal clear that even in case of compulsory retirement as a measure of penalty is 14 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 15 imposed on an employee, he is entitled to portion of pension. Therefore, in the present case, one cannot draw inference that compulsory retirement amounts to termination / dismissal. At this stage, it is relevant to cite a decision of the Supreme Court in order to distinguish the citations furnished by learned counsel for the respondents, namely, UCO Bank and Tulsiram Patel (supra) to the extent that one cannot straightway apply a decision of the Court without examining the relevant statutory provisions, namely, Supreme Court in the case of Nair Service Society vs. Dr. T. Beermasthan and others, reported in (2009) 5 SCC 545, in para no. 48 held as under:-
"48. Several decisions have been cited before us by the respondents, but it is well established that judgments in service jurisprudence should be understood with reference to the particular service rules in the State governing that field. Reservation provisions are enabling provisions, and different State Governments can have different methods of reservation. There is no challenge to the Rules, and what is challenged is in the matter of application alone. In our opinion the communal rotation has to be applied taking 20 vacancies as a block."
Therefore, the cited decisions of UCO Bank and Tulsiram Patel (supra) relating to compulsory retirement amounts to termination / dismissal, principle is not attracted in the present case in view of regulation 33 of Regulations 1995 which provides portion of pension to an employee who has been retired compulsorily as a measure of penalty.
19. Decision of Smt. Sharadabai cited by respondent's counsel. Perusal of the decision, it is evident that petitioner therein had not 15 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 16 challenged clause no. 5 of the circular dated 21.08.2010 whereas in the present case, undisputedly petitioner has questioned clause no.5 of the circular on the ground that it is in violation of regulation 33 of Regulations 1995 and so also arbitrary to the extent of denial of option to pension being denied to such of those employees who have retired compulsorily and so also those have opted to voluntary retirement.
20. Supreme Court in the case of Asger Ibrahim Amin vs. Life Insurance Corporation of India, reported in (2016) 13 SCC 797, taken note of superannuation, voluntary retirement, compulsory retirement and resignation as to how each one of them are different. Para No. 18 reads as under:-
"18. Reserve Bank of India v. Cecil Dennis Solomon, (2004) 9 SCC 461 relied upon by the Respondent, although distinguishable on facts, has ventured to distinguish "voluntary retirement" from "resignation" in the following terms:
10. In service jurisprudence, the expressions "superannuation", "voluntary retirement", "compulsory retirement" and "resignation"
convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service.
Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral 16 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 17 benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary. In Punjab National Bank v. P.K. Mittal (1989 Supp (2) SCC
175) on interpretation of Regulation 20(2) of the Punjab National Bank Regulations, it was held that resignation would automatically take effect from the date specified in the notice as there was no provision for any acceptance or rejection of the resignation by the employer. In Union of India v. Gopal Chandra Misra ((1978) 2 SCC 301) it was held in the case of a judge of the High Court having regard to Article 217 of the Constitution that he has a unilateral right or privilege to resign his office and his resignation becomes effective from the date which he, of his own volition, chooses. But where there is a provision empowering the employer not to accept the resignation, on certain circumstances e.g. pendency of disciplinary proceedings, the employer can exercise the power. (emphasis supplied)".
Similarly in yet another decision viz. reported in (2016) 3 SCC 183 - Yogendra Kumar Jaiswal and others vs. State of Bihar and others, Supreme Court in para no. 150 held as under:-
17 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 18 "150. Thereafter, the Court referred to Maya Rani Punj V. CIT, (1986) 1 SCC 445, K.Satwant Singh, AIR 1960 SC 266 and Tiwari Kanhaiyalal vs. CIT, (1975) 4 SCC 101 and eventually held: (State of A.P. Vs. Gandhi (2013) 5 SCC 111 p.135, Para 51):
"51.... The order of compulsory retirement is a lesser punishment than dismissal or removal as the pension of a compulsorily retired employee, if eligible to get pension under the Pension Rules, is not affected. Rule 9 (vii) was only dealing with reduction or reversion but issuance of any other direction was not a part of it. It has come by way of amendment. The same being a lesser punishment than the maximum, in our considered opinion, is imposable and the disciplinary authority has not committed any error by imposing the said punishment, regard being had to the nature of charges. It can be looked from another angle. The rule-making authority has split Rule 9(vii) into two parts - one is harsher than the other, but, both are less severe than the other punishments, namely, compulsory retirement, removal from service or dismissal. The reason behind it, as we perceive, is not to let off one with simple reduction but to give a direction about the condition of pay on restoration and also not to impose a harsher punishment which may not be proportionate. In our view, the same really does not affect any vested or accrued right. It also does not violate any constitutional protection."
Having regard to the aforesaid decisions read with regulation no.33 of 18 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 19 Regulations, 1995, it is crystal clear that major penalties like compulsory retirement, removal from service and dismissal from service are entirely different. Regulation No.4 of Regulations, 1976 relating to imposition of penalties. Regulations 4 (h), (i) and (j) reads as under:-
"h) compulsory retirement;
i) removal from service which shall not be a
disqualification for future employment;
j) dismissal which shall ordinarily be a disqualification for future employment;"
Reading of the above major penalties are crystal clear that each of the penalty are different from each one. Therefore, compulsory retirement cannot be equated to that of dismissal or termination. Moreover, time and again appellate / reviewing / revisional authority and courts have interfered with order of penalty like dismissal while modifying the penalty of dismissal to that of compulsory retirement for the sole object or reason is that employee should get some monetary benefits. The State being model employer should construe the provision of a beneficial legislation in a way that extends the benefit to its employee instead of curtailing it.
21. In view of the aforesaid analysis, clause no.5 in Circular dated 21.08.2010 (Annexure P/5) would be contrary to regulation 33 of Regulations, 1995. Accordingly clause no.5 of circular dated 21.08.2010 is set aside. Consequently, petitioner be permitted to exercise his option for pension in view of memorandum of settlement dated 27.04.2010 read with circular dated 21.08.2010. Thereafter, competent authority shall exercise power under regulation 33 of Regulations 1995 and determine to what extent petitioner is entitled to pension. Further, release the
19 of 20 ::: Downloaded on - 11-03-2018 03:34:09 ::: CWP No. 22149 of 2010 (O&M) 20 determined pension and arrears of pension. The above exercise shall be completed by the respondents-Bank within a period of four months from the date of receipt of certified copy of this judgment. Failing which petitioner is entitled to interest on pension @ 6% per annum from today.
20. Accordingly, writ petition stands allowed.
March 08, 2018 [P.B. Bajanthri]
vkd Judge
Whether reasoned / speaking : Yes
Whether reportable : No
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