Calcutta High Court
Sankar Nath Das vs Union Of India And Ors. on 23 April, 2001
Equivalent citations: (2001)3CALLT49(HC)
JUDGMENT M.H.S. Ansari, J.
1. The grivence of the petitioners 19 in number in the instant writ petition is against the clarificatory order issued by the Central Government being annexure 'F' at pg. 63 of the writ petition, whereby it has clarified that the benefit of "addition to qualifying service" under Regulation 26 of UBI Employees (Pension) Regulations. 1995 is to be extended to such employees who would be recruited by the bank in accordance with the Recruitment Rules which specify that in respect of such post the benefit of Regulation 26 of Pension Regulation 1995 would be admissible. The said clarification is in accordance with the second proviso to the said Regulation 26 which reads as under:
"Provided further that this concession shall be admissible if the recruitment rules in respect of the said service or post contain specific provision that the service or post is one which carries benefit of this regulation."
2. In annexure 'F'. It was further intimated to the bank that only such employees who will be recruited by the bank in future, subject to the approval of the Recruitment Rules for that post by the Government shall be eligible to avail the benefit of that provision, This is because the extents Recruitment Rules do not contain any such provision because the Pension Regulation 1995 itself came into effect much later. When the petitioners were recruited in the service of the bank, there were no Recruitment Rules nor any Pension Regulation. The Recruitment Rules or any amendment thereto can be made only with the previous sanction of the Central Government.
3. It is the case of the petitioners that being specialists and having been selected by the respondent bank on the ground of the petitioners' having specialist qualification, the petitioners had been recruited in the higher grades considering their post-graduate research or specialist qualification or experience in their respective fields, which the bank authorities considered essential.
4. It is their further case that for direct recruitment of such officers the respondent bank provided maximum higher pay limit and also relaxed the higher age limit upto 35 years in respect of those exceeding maximum higher age limit of 25 years which had been applicable in respect of the normal recruitment of the officers of the respondent bank.
5. The Pension Regulations, 1995 were framed in exercise of the powers conferred by Clause 'f' of sub-section 2 of section 19 of the Banking Companies (Acquisition and Transfer of undertakings) Act 5 of 1970 by the Board of Directors of United Bank of India after consultation with the Reserve Bank of India and with previous sanction of the Central Government.
6. Regulation 3 and clauses 1, 2 and 3 thereof make the said Regulations applicable to the employees who joined the service of the bank before the regulation came into force and have either retired before or continued to be in service after the notified date (29.9.95). Clause 4 of Regulation 4 makes the regulation applicable to those who joined the service of the bank on or after the notified date. Clauses 5 to 8 of Regulation 3 make the regulation applicable to such of the employees as had died during the various periods mentioned in those clauses.
7. It is the case of the petitioners and not disputed by the respondent bank that the petitioners come under Clauses 1,2 and 3 of Regulation 3 and are in receipt of pension as they have rendered the required period of service qualifying for pensionary benefits as mentioned in Chapter 4 of the Regulations.
8. The petitioners claim that by virtue of their recruitment as specialist, they are entitled to the benefits under Regulation 26 and have been wrongly denied the same by making applicable the second proviso to the said Regulation 26. For the sake of convenience, Regulation 26 is extracted hereunder:
"26: Addition to qualifying service in special circumstances--An employee shall be eligible to add to his service qualifying for superannuation pension (but not for any other class of pension) the actual period not exceeding one fourth of the length of his service or the actual period by which his age at the time of recruitment exceeded the upper age limit specified by the bank for direct recruitment or a period of five years, whichever is less. If the service or post to which the employee is appointed is one.
(a) for which post-graduate research, or specialist qualification or experience in scientific, technological; or professional fields, is essential; and
(b) to which candidate of age exceeding the upper age limit specified for direct recruitment are normally recruited;
(c) for which the candidate was given age relaxation over and above the maximum age limit fixed by the Bank on account of his possessing higher qualifications or experience;
Provided that this concession shall not be admissible to an employee unless his actual qualifying service at the time he quits the service in the Bank is not less than ten years;
Provided further that this concession shall be admissible if the recruitment rules in respect of the said service or post contain specific provision that the service or post is one which carries benefit of this regulation;
Provided also that the recruitment rules in respect of any service or post which carries the benefit of this regulation shall be made with the approval of the Central Government."
9. The stand of the writ petitioners and as very lucidly urged before Court by their learned counsel is that the second proviso to Regulation 26 cannot and/or is not intended to apply to those employees whose cases come under any of the Clauses 1, 2 and 3 of Regulation 3 that is to say those who were appointed before the said Pension Regulation was Introduced. The petitioners admittedly have been granted pensionary benefits and come under the said Clauses 1, 2 and 3.
10. The further submission is that the petitioners having been appointed long before the 1995 Regulation and even before Service Regulation of 1979, their recruitment condition could not have contained anything about the pension as envisaged in the second proviso to Regulation 26.
11. The aforesaid contention is sought to be buttressed by the fact that the 1995 Regulation is statutory and was made after consultation with the Reserve Bank of India and previous sanction of the Central Government which authorities are supposed to know the entire factual back ground in respect of the matter for which the regulation was made. Thus, it is contended that the knowledge of the fact that the recruitment condition of those employees coming under Clauses 1, 2 and 3 of Regulation 3 could not have contained anything about the pensionary benefits has to be attributed to such authorities, which framed the 1995 Regulations. As per such reasoning, it was submitted that the legislative intent behind the second proviso to Regulation 26 is that the same would be applicable only to those employees whose recruitment conditions could properly and legitimately contain a provision for pension, viz. those who may be recruited after 1995 Regulation came into force. In other words, the submission of the petitioners is that the second proviso to regulation 26 can appropriately apply only to post 1995 recruits as mentioned in Clause (4) of Regulation 3 and not to such of those employees who were recruited before and fall under Clause 1, 2 or 3 of Regulation 3.
12. Lastly, it was submitted that as Regulation 26 does not mention that the benefit of addition to qualifying service would be restricted to post 1995 recruits but if the second proviso is construed as Intended to restrict the benefit only to post 1995 recruits as has been decided upon in the impugned order being annexure 'F' to the writ application. It would in effect amount to the legislature giving "with one hand and taking away with another." Such could not have been the Intention nor would a Court presume such intention while Interpreting the said provisions in Regulation 26 and the second proviso thereof.
13. On behalf of the Union of India, respondent No. 1 herein, affidavit-in-opposition was not filed despite directions in that behalf. However, Mr. M.B. Sircar, learned Sr. advocate appearing along with Mr. Biswanath Samaddar made oral submissions on questions of law.
14. On behalf of the respondent bank, affidavit-in-opposition was filed.
15. In the said affidavit-in-opposition filed by the respondent bank, it is stated that the writ petitioners were recruited as officers in the bank in erstwhile Grade II of the Officer grade without specifying any specialization. It is further stated that when the petitioners were employed, there was no pension scheme in existence and the petitioners accepted bank's employment with full knowledge thereof.
16. It is further stated that United Bank of India Employees Pension Regulation, 1993 was drafted and under Clause 13 thereof, eligibility to add to employees' service was made with somewhat similar conditions specified therein. The said draft regulations did not contain the first or the second proviso as in Regulation 26. However, while approving the said draft regulation, the Central Government revised the same being the existing Regulation 26.
17. Initially option for pension was invited by a circular under the draft regulation from the existing as well as from retired employees. Subsequently, after the Central Government revised the Regulations, the options were again Invited and in response to the said circular in annexure 'C' about 933 numbers of employees have exercised their option for withdrawal of their option but the present petitioners in spite of circulation of the said circular have not exercised their options for withdrawal.
18. With regard to annexure 'F', it is stated that the bank received some representations from the existing employees as also from the retired employees on the question as to whether the benefit of Regulation 26 wherein provision has been made that a person recruited on a post for which special qualification and experience in scientific, technological or professional fields is essential shall be eligible for addition to qualifying service shall also be applicable to employees who were in service prior to implementation of the pension scheme in the bank. By the Impugned annexure 'F', it was intimated that such benefit is to be extended only in future cases. The Central Government. It is stated, have also Intimated the bank that only such employees who would be recruited by the bank in future subject to the approval of the Recruitment Rules by the Central Government would be eligible to avail the benefit of that provision.
19. Mr. Hirak Mitra, learned senior counsel appearing along with Mr. Rameswar Bhattacharyya on behalf of the respondent bank submitted that a plain reading of the Regulation 26 in its entirety would disclose that the petitioners do not fulfil the conditions and in particular that which is contained in the 2nd proviso for grant of the benefits prescribed in Regulation 26. The Recruitment Rules, at the time of the recruitment of the petitioners did not contain the specific provision that the service or post to which the petitioners have been appointed is one, which carries the benefit of the said Regulation 26. The writ Court, it was submitted can only Interpret the Regulation and not amend or alter the same, as that is not the function of a writ Court. It was further submitted by Mr. Mitra, learned senior advocate that the language of Regulation 26 is plain and unambiguous and does not, therefore, require any Interpretation much less as is sought to be commended on behalf of the petitioners. It is neither permissible nor is it the function of a writ Court to re-write the Regulation or substitute words of its own, it was submitted.
20. Mr. M.B. Sircar, learned senior advocate appearing on behalf of the Union of India in addition to the above contended that the admissibility condition prescribed by the second proviso to Regulation 26 is not fulfilled by the petitioners in the instant case and, therefore, the petitioners are not entitled to the relief as claimed in the instant writ application. Reliance has been placed by Mr. Sircar upon the judgments of the Supreme Court in Union of India & Ors. v. Dr. Vijayapurapu Subbayamma and V. Kasturi v. Managing Director. State Bank of India & Anr., .
21. The further contention of Mr. Sircar is as held by Subhashan Reddy, J. of Andhra Pradesh High Court in K. Chalapati Rao & Anr. v. State Bank of India, 1995 (4) SLR 435 that pension is not a fundamental right either traceable to Articles 16 or 21 of the Constitution. That pension is a scheme and not a right and unless the employee falls within the ambit of the scheme, it cannot be claimed as of a right. It was, therefore, the submission of Mr. Sircar that petitioners can only make their claims under the Pension Regulations, 1995 and with regard to Regulation 26 as the petitioners do not fall within the ambit of the scheme thereof, they have no right to claim the benefit provided thereunder much les as of right.
22. Mr. Hirak Mitra, learned senior advocate for the respondent bank as also Mr. Sircar, learned senior advocate for Union of India submitted that the provisions in Regulation 26 being prospective in nature would apply only to such employees in relation to whom the Recruitment Rules made with prior approval of Central Government contains specific provision that such post is one which carries benefit of Regulation 26. The petitioners having retired before any such Recruitment Rules, having come into force can claim no benefit under the said Regulation 26.
23. In the instant case, therefore, the only point for consideration is whether the petitioners satisfy the conditions stipulated in Regulation 26 for entitlement to the benefits provided in Regulation 26.
24. A close scrutiny of the provisions contained in Regulation 26 would show that benefit has thereby been granted to an employee for addition of a certain period to the qualifying service. As I read the said Regulation 26, it commends to me that thereby a provision has been made that an employee recruited on a post for which post graduate research or specialization or experience in scientific and technological fields is essential would be entitled to addition to his service qualifying for superannuation pension, the actual period not exceeding 1/4th of the length of service or the actual period by which his age at the time of recruitment exceeded the upper age limit or a period of five years which ever is less. The said concession is available to the employee in relation to such posts only.
25. The first proviso lays down that such concession shall not be available to such employees whose actual qualifying service is less than 10 years. In other words such employees whose actual qualifying service at the time he quits service of the bank is less than 10 years in not entitled the said concession.
26. The second proviso stipulates that the concession in Regulation 26 shall not be admissible if the Recruitment Rules in respect of the said service or post do not contain specific provision that the service or post is one, which carries the benefit of the said Regulation.
27. The condition laid down in the second proviso has not been fulfilled in the instant case in that there were no Recruitment Rules when the petitioners were appointed which stipulated that the post carries the benefit of the Regulation 26. In fact, there was no provision at all for payment of any pension. The Pension regulation, 1995 itself came into effect from the appointed date (29.9.95) which is after the date of retirement of the petitioners from the service of the Bank.
28. The language in the provisions contained in Regulation 26 is plain and admits of only one meaning. There is, therefore, in my view no question of construction of the said provisions for the regulation speaks for itself (See: State of Uttar Pradesh & Ors, v. Dr. Vijay Anand Maharaj, ).
29. As the language in Regulation 26 and the second proviso with which we are concerned in the instant proceeding is unambiguous, there is neither any need nor necessity to construe the second proviso. The intention of the framers of the said Regulation is also not in doubt. As noticed supra, the draft regulation as submitted by the respondent bank was modified by the Central Government. The respondent bank accepted the modification and adopted the same. Therefore, there was a conscious decision on the part of the framers and their intention is reflected in the said Regulation. It is not, therefore, a case where any intention can be attributed to the framers of the regulation to give with one hand and take away with another.
30. The Courts in India have generally taken the view that ascertainment of legislature intent is a basic rule of statutory construction and that a rule of construction should be preferred which advances the purpose and object of a legislation and though a construction, according to plain language, should ordinarily be adopted, such a construction should not be adopted where it leads to anomalies, injustices or absurdities. [See : Girdhari Lal & Sons v. Balbirnath Mathur, ].
31. Judged in the light of the above, I do not find that a construction according to plain language in the case on hand leads to any anomalies, injustices or absurdities. The concession granted by the Regulation 26 subject to the conditions specified therein was intended for holders of such post, in relation to which the Recruitment Rules contain specific provision that the benefits of Regulation 26 would apply. I am, therefore, inclined to accept the submissions made by Mr. Hirak Mitra, learned Sr. counsel for the respondent bank as also Mr. Sircar, learned Sr. counsel for Union of India that the said Regulation 26 is prospective in nature in that it would apply to employees holding such posts in relation whereto the Recruitment Rules made in future (i.e. after Pension Regulation 1995) specify the applicability of that regulation.
32. The meaning of Regulation 26 is quite plain I also find that there is no difficulty of construction. It is not possible to spell out the meaning contended for by the petitioner out of the words actually used.
33. In fairness to the learned counsel for the petitioners, the contention is not that the Regulation 26 is capable of more than one meaning or construction to be placed thereon. The main thrust of the arguments advanced by Mr. L.K. Gupta. Sr. advocate for the petitioners is that the writ petitioners do not fulfil the conditions imposed by the second proviso only because as they were appointed long before 1995 regulation and even before the service Regulation of 1979, their recruitment conditions could not have contained anything about the pension as envisaged in the second proviso to Regulation 26. The framers of the Regulation 1995 are deemed to have knowledge of the same and, therefore, the second proviso, it was submitted, should be construed to apply only to such employees whose recruitment conditions could properly and legitimately contain a provision for pension.
34. Mr. L.K. Gupta sought to fortify the said submission by submitting that beneficial interpretation theory and principle of liberal construction needs to be applied to the instant case.
35. Beneficial interpretation theory has no application in a case where words of a statute are plain and unambiguous. In such case the Courts have no option but to give effect to it. (See: M.H. Daryani v. Commissioner of Income Tax, (1993) 202 ITR 731).
36. The principle of liberal construction which advances the purposes and object of beneficent provisions cannot be carried to the extent of doing violence to the plain and simple language used in the enactment. It is not permissible for the Court to re-write the section or substitute words of its own for the words actually employed by the framers of the Regulation in the name of giving effect to the supposed underlying object. The underlying object of any provision has to be gathered on a reasonable interpretation of the language employed by the legislature (See: CIT v. N.C. Budharaja & Co. 204 ITR 412).
37. There can be no dispute with the proposition that beneficial legislation should receive liberal interpretation. However, it is equally well settled that where a beneficial legislation has a scheme of its own, there is no warrant to travel beyond the scheme and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered by the scheme (See: Regional Director Employees State Insurance Co. Ltd. Trichur v. Ram Anuja Match Industries, ).
38. In Bharat Singh v. Management of New Delhi Tuberculosis Centre, 1986 Lab IC 850 Supreme Court observed thus;
"It is here that the Court has to evolve the concept of purposive interpretation which has found acceptance whenever a progressive social beneficial legislation is under review. We share the view that where the words of a statute are plain and unambiguous effect must be given to them. Plain words have to be accepted as such but where the Intention of the legislature is not clear from the words or where two constructions are possible, it is the Court's duty to discern the intention in the context of the background in which a particular section is enacted. Once such an intention is ascertain the Courts have necessarily to give the statute a purposeful or a functional interpretation......"
39. As noticed supra, Regulation 26 was intended to benefit the employees in certain posts and in relation to which posts the Recruitment Rules provided that the provision of the said pension regulation would apply. It would be doing injustice if we are to say that the benefits of the said Regulation 26 would be also admissible to employees for whom it was neither intended nor do they hold the post to which Regulation 26 is made applicable by virtue of the Recruitment Rules.
40. Mr. Gupta, learned Sr. advocate for the petitioners fairly stated that the vires of the second proviso is not in question. What is, however, contended is that the second proviso does not apply to such employees as the petitioners and that the Court should so declare. It was submitted that Court is not powerless to lay down that any particular provision shall not apply to a particular class though the same provision may be valid in its application to others.
41. In otherwords, it is the submission of Mr. L.K. Gupta, learned senior advocate that a purposive construction is to be given so as to give effect to the intention of the framers of the Regulation and so as not to exclude persons such as the petitioners.
42. In Ananta Kr. Bej v. State of West Bengal & Ors., 1994(4) SLR 61, a Division of this Court has extracted a passage from the treatise by Frances Bennion in his statutory interpretation. A portion from the said judgment needs to be and is accordingly extracted hereunder;
".......At section 304, of the treatise purposive construction, has been described in the following manner:
(a) following the literal meaning of the enactment where the meaning is in accordance with the legislative purpose (in this code called a purposive and literal construction), or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive and strained construction)'."
43. In Jones v. Wrotham Park Settled Estates. (1980) AC 74 at page 105, the law is stated in the following term:
"....... I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a Court of Justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. (1971 AC 850) provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this Court were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy: secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with an eventuality that requirement to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state With certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a Court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed."
44. In Principles of Statutory Interpretation of Justice G.P. Singh, 5th Edition, 1992. It is stated;-
"The Supreme Court in Bangalore Water Supply v. A. Rajappa approved the rule of construction stated by Denning, L.J. while dealing with definition of 'Industry' in the Industrial Disputes Act, 1947. The definition is so general and ambiguous that BEG, C-J. said that the situation called for 'some judicial heroics to cope with the difficulties raised'. K. IYER, J. who delivered the leading majority judgment in that case referred with approbation the passage extracted above from the judgment of DENNING. L.J. in Seaford Court Estate Ltd. v. Asher. But in the same continuation he also cited a passage from the speech of LORD S1MONDS in the case of Magor & St. Meltons R.D.C. V. New Port Corporation. 1951 (2) All ER 839 as if it also found a part of the judgment of DENNING, L.J. This passage reads: "The duty of the Court is to interpret the words that the legislature has used. Those words may be ambiguous, but, even If they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited.' As earlier noticed LORD SIMONDS and other Law Lords in Magor and St. Mellon's case were highly critical of the views of DENNING, L.J. However, as submitted above, the criticism is more because of the unconventional manner in which rule of construction was stated by him. In this connection it is pertinent to remember that although a Court cannot supply a real casus omissus it is equally clear that ft should not so interpret a statute as to create a casus omissus when there is really none."
45. A purposive construction of an enactment, as noticed supra, is one, which gives effect to the legislative purpose by following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose. The same has been referred to by Francis Bennion and called a purposive and literal construction or applying a strained meaning where the literal meaning is not in accordance with the legislative purpose, learned counsel for the petitioners is in substance invoking the doctrine of purposive and strained construction. The intention of the framers of the regulation is clear as noticed supra and it cannot, therefore, be said that the draftsman had by Inadvertence overlooked and so omitted to deal with an eventuality that required to be dealt with if the purpose of the regulation was to be achieved. The two conditions second and third in Jone's case (supra) are not fulfilled and, therefore, any attempt by a Court of justice to repair the non-existent omission is not justified.
46. The instant case is not where the Court is required to go behind the words used in Regulation 26 to avoid practical inconvenience, absurdity or injustice.
47. In the circumstances, the contention of Mr. Hirak Mitra, learned Sr. advocate for the bank as also Mr. Sircar, learned Sr. counsel for Union of India have to be accepted that there is no necessity for this Court to depart from the rule that plain and unambiguous words should be interpreted according to their plain meaning where the intention of the framers of the regulation is equally clear and certain. The Regulation 26 and/or its second proviso do not intend any injustice nor are suggestive of any anomaly or absurdity. The validity of the Regulation 26 or its second proviso is not in question and this Court, therefore, would be well justified in adhering to the golden rule of construction so as to give effect to the object and purpose of the enactment without the necessity of supplementing the written words or excluding therefrom any words.
For the reasons aforestated, the instant writ application is liable to be and is hereby dismissed, however, without any order as to costs.
Let urgent Xerox certified copy of this judgment and order be furnished to the parties. If applied for, on priority basis.
48. Application dismissed.