Madhya Pradesh High Court
Vishwas vs State Bank Of India Asst. General ... on 12 April, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
WRIT PETITION No. 6709 of 2021
BETWEEN:-
VISHWAS S/O KANHAIYALAL SHARMA, AGED ABOUT 58 YEARS,
OCCUPATION: NIL R. SECTOR 589, MAHALAXMI NAGAR, INDORE
(MADHYA PRADESH)
.....PETITIONER
(PETITIONER IS PRESENT IN PERSON)
AND
STATE BANK OF INDIA ASST. GENERAL MANAGER PENSION
BHAVISHYA NIDHI EVAM UPADAN VIBHAG ASST. GENERAL
1.
MANAGER PRADHAN KARYALAYA, THIRD FLOOR, HOSHANGABAD
ROAD, BHOPAL (MADHYA PRADESH)
DEPUTY GENERAL MANAGER STATE BANK OF INDIA 5, YASHWANT
2.
NIWAS ROAD INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ASHOK KUMAR SETHI, SENIOR ADVOCATE ASSISTED BY SHRI
AAYUSH GUPTA, ADVOCATE)
Reserved on : 02nd April, 2024
Delivered on : 12th April, 2024
This petition having been heard and reserved for order coming on
for pronouncement this day, the court pronounced the following:
ORDER
The petitioner has filed the present petition under Article 226 of the Constitution of India challenging the order dated 24.09.2019, whereby the respondents have denied him the benefit of pension.
Signature Not Verified Signed by: RAVI PRAKASH Signing time: 12-04-2024 18:05:03 -2-01. Vide order dated 21.02.2023, the writ petition was allowed on merit by directing the respondents to pay pension to the petitioner along with interest @ 9% per annum and a cost of Rs.25,000/- was also imposed.
02. The respondents challenged the aforesaid order by way of Writ Appeal No.401 of 2023 only on the ground that the preliminary objection regarding maintainability of the writ petition remained undecided by the Writ Court and the petitioner did not claim pension in the relief clause. The Writ Appellate Court found substance in these submissions made by the Senior Counsel appearing on behalf of the respondents and remanded the matter back to the Writ Court by setting aside the order dated 21.02.2023. Hence, the learned Senior Counsel is heard on the question of maintainability as well as on merit.
03. The petitioner while working as an Audit Assistant at the erstwhile State Bank of Indore was served with a charge sheet dated 15.10.1997, on the allegations that he misbehaved with the Head Cashier and one customer. He denied the charges but respondents decided to conduct the Departmental Enquiry against him. Based on the enquiry report, he was dismissed from the service without any pensionary benefits.
04. The petitioner raised an industrial dispute before the Central Government Industrial Tribunal Cum Labour Court, Jabalpur (hereinafter referred to as the CGIT/LC). Vide award dated 30.01.2015, the learned the CGIT/LC held that the termination was not legal and justified and modified it to the punishment of compulsory retirement. Being aggrieved by the aforesaid award, the respondents, as well as the petitioner both approached this Court by way of W.P. No.2625 of 2016 and W.P. No.1040 of 2016 respectively. Vide order dated 24.04.2017 Signature Not Verified Signed by: RAVI PRAKASH Signing time: 12-04-2024 18:05:03 -3- both the writ petitions were decided and the matter was remanded back to the Tribunal and remit the matter to the CGIT/LC to reconsider as to which other punishment can be imposed to make him eligible to get pensionary benefits.
05. Being aggrieved by the aforesaid order of the Division Bench of this High Court, the State Bank of India (as by that time State Bank of Indore was merged in the SBI) approached the Apex Court by way of Civil Appeal Nos. 5876-5877 of 2019. Vide order dated 26.07.2019, the civil appeal was disposed of with the direction that the petitioner would be paid all the retiral benefits, as admissible and that he would be paid pension if admissible, on the basis of the period served by him with the bank assuming he would superannuate after such a period of service. The needful be done within eight weeks from today.
06. After the aforesaid order passed by Apex Court, the respondents considered the case of the petitioner for grant of pension and vide order dated 24.09.2019 decided to give contributory provident fund amounting to Rs.30,014/- and Gratuity amounting to Rs.1,17,945/- and denied the pension under the provision the State Bank of Indore (Employees') Pension Regulation, 1995: on the ground that he did not attain the age of 60 years, hence, not entitled for superannuation pension. It is also held that to get the pension due to the voluntary retirement, the petitioner did not complete 20 years of qualifying service and in terms of Regulation 33, he would not be entitled to get pension under this regulation as well. Hence, this petition before this Court.
07. The respondents filed the reply on merit but also raised the preliminary objection about the maintainability of the Writ Petition. According to the respondents, the Writ Petition petitioner is seeking an interpretation of the order passed by the Supreme Court of India for Signature Not Verified Signed by: RAVI PRAKASH Signing time: 12-04-2024 18:05:03 -4- which he is required to approach the Apex court. The above contention was negatived, and the Writ Petition was allowed on merit by the Writ Court, which the respondents challenged before the Division Bench of this High Court. The learned Division Bench of this High Court held that before entering into merit of the case the Writ Court ought to have decided the issue of maintainability of the Writ Petition. The learned Division Bench did not examine the merit of the case.
08. The relevant paragraphs of the order passed by the Writ Appellate Court dated 16.01.2024 are reproduced below:-
10. On perusal of the order passed by the learned Single Judge, it is apparent that the writ petition was decided finally without adverting to the preliminary objection as regards the maintainability of the petition and without hearing the appellant/bank.
11. Moreso, in the relief clause, as rightly pointed out by the learned counsel for the appellant/bank there is no mention of a grant of pension in the relief clause in the writ petition filed by the respondent. For the sake of convenience and ready reference, the same is reproduced below:
^^lgk;rk& 1- ekuuh; U;k;ky; ls fuosnu gS fd ;kfpdkdrkZ dks ekg vizSy 1999 ls vkt fnukWad rd dk osru lHkh ykHk] Hkr~rs] vodk'k uxnhdn.k] ih-,Q-] xzspqbVh] cSad ,oa deZpkjh dk va'knku ,oa cSad dk va'knku nksuksa dk Hkqxrku izRk~;kFkhZx.k ls fnyok;s tkus o fnukWad 24-09-19 dk i= fujLk~r dj ;kfpdk Lohdkj dj fd;s tkus dk d`ik djsaA 2- ljfodjdrkZ dks f;kfpdk dk laiw.kZ o~;; izr~;kFkhZx.k ls fnyk;s tkus dh d`ik djsaA 3- vu~; dksbZ lgk;rk tks ekuuh; u~;k;ky; u~;k;fgr esa mfpr le>s ;g Hkh fnyokbZ tkosA 4- ;kfpdkdrkZ dh ;kfpdk lo~;; Lohdkj dh tkosA^^
12. From a careful reading of relief no.1, it is apparent that respondent prayed that he be paid salary from April 1999 till the date of filing of petition and other benefits, leave encashment, PF, Gratuity including employee and employer's contribution.
However, there is no mention of grant of pension in the relief clause whereas the learned Single Judge while allowing the writ petition had directed the appellant/bank to pay the pension w.e.f. the date of leaving the service along with interest @ 9% p.a., which is beyond the reliefs sought by the respondent. Even otherwise, learned Single Judge ought to have decided the preliminary objection raised by the appellant/bank about Signature Not Verified Signed by: RAVI PRAKASH Signing time: 12-04-2024 18:05:03 -5- maintainability of the petition first and then has to dwell upon deciding other issues, which has not been done in the case in hand.
13. With regard to deciding preliminary objections first, this Court is supported in its view by the judgment rendered by the Apex Court in the case o f Union of India and Others Vs. Ranbir Singh Rathaur and Others reported in (2006) 11 SCC 696 has held thus:
42. In any event we feel that the High Court's approach is clearly erroneous. The present appellants in the counter affidavit filed had raised a preliminary objection as regards the maintainability of the writ petitions and had requested the High Court to grant further opportunity if the necessity so arises to file a detailed counter affidavit after the preliminary objections were decided. The High Court in fact in one of the orders clearly indicated that the preliminary objections were to be decided first.
14. Taking into consideration the facts and circumstances of the case and in the light of judgment rendered by the Apex Court in the case of Union of India and Others (supra), that preliminary objection raised by the appellant/bank as regards maintainability of petition has not been dealt with by the learned Single Judge, it would be appropriate to remand the matter back for fresh adjudication in accordance with law.
15. Accordingly, the order dated 21.02.2023 passed in W.P. No. 6709/2021 is set aside. The matter is remanded back to the learned Single Judge for hearing the case on the question of maintainability as well as merits and decide the same after hearing both parties in accordance with the law as expeditiously as possible.
09. I have heard the learned counsel for the parties at length and perused the record.
10. So far as the first objection of the respondents that the petitioner did not claim the pension in the writ petition and Writ Court has granted the relief is concerned, the Apex Court vide order dated 26.07.2019 passed in Civil Appeal No.5876 of 2018 directed the respondents to pay the pension, if admissible, on the basis of the period served by him with the Bank assuming he would be superannuated after such a period of service. After the aforesaid order, the petitioner submitted a representation and the same was rejected vide order impugned dated Signature Not Verified Signed by: RAVI PRAKASH Signing time: 12-04-2024 18:05:03 -6- 24.09.2019, which the petitioner has challenged by way of writ petition. The entire facts and grounds pleaded in the petition are only related to the denial of pension to the petitioner, apart from other claim payments of PF, leave encashment, gratuity bank & employee contribution. In the relief clause, though the word 'pension' is not written, but the petitioner sought quashment of the impugned order dated 24.09.2019, meaning thereby, the petitioner filed the petition to get the pension. The Division Bench of this High Court in an earlier round remanded the matter to the CGIT to consider the nature of punishment to be awarded to the petitioner so that he may get the pension. The only dispute which remains to be adjudicated between the petitioner and respondents is only about the pension.
11. The respondents filed a para-wise reply to the writ petition disputing the claim of the petitioner for the grant of pension, which is evident from paragraphs - 3, 4 and 5 of the reply. Therefore the respondents were aware that the Writ Petition is filed only to get a pension by the petitioner, then how they can argue before the Division Bench of this High Court that the petitioner did not claim pension in the memo of Writ Petition. Therefore, only in order to get the Writ Court's order set aside, this point was deliberately raised in the writ appeal for the first time. Had this point been raised before the Writ Court, the respondents would have been confronted with the memo of petition, impugned order and the pleadings in their return or the petitioner could have been given the opportunity to amend the relief clause of the petition.
12. So far as the second objection regarding the maintainability of the writ petition is concerned, a para-wise reply was filed by the respondents and additionally raised the issue of maintainability in Signature Not Verified Signed by: RAVI PRAKASH Signing time: 12-04-2024 18:05:03 -7- paragraph - 6 which is reproduced below:-
"6. (i) That, in the present petition, the petitioner has sought this Hon'ble Court to interpret the Apex Court's said order dated 26.07.2019 (Annexure-P/4) and pass the necessary order based on such interpretation of this Hon'ble Court.
(ii) That, in humble submissions of the respondent bank the writ jurisdiction conferred by Article 226 of the Constitution of India, cannot be invoked by the petitioner for the purpose of interpretation of Hon'ble Apex Court's order dated 26.07.2019 (Annexure-P/4) and therefore, this petition is otherwise also not maintainable and deserves to be dismissed with appropriate cost."
[Emphasis Supplied]
13. The Officer Incharge of the respondents, Shri Abhinav Joshi, Chief Manager, (HR) filed an application seeking a decision on the issue of maintainability of the writ petition without the signature of Mr. R C Singhal. The respondents pleaded that it is apprehended that in case the Writ Court passes an order based on its interpretation of the Apex Court's order dated 26.07.2019, it would give rise to multiple litigation by way of writ appeal and by way of SLP, therefore, it would be better to direct the petitioner to directly approach the Apex Court, if he is aggrieved by the order dated 24.09.2019. Paragraph - 7 of the said application is reproduced below:-
"7. That, it is also apprehended that in case this Hon'ble Court is pleased to pass any order based on its own interpretation about Apex Court's said order dated 26.07.2019 (Annexure-P/4), it would give rise to multiple litigation as aggrieved party will have to pass through the porcess of writ appeal and thereafter to approach the Apex Court, whereas the petitioner has direct recourse to approach Hon'ble Apex Court if he is aggrieved by the bank's said letter dated 24.09.2019 (Annexure-P/1)."
[Emphasis Supplied]
14. The aforesaid contention is absolutely baseless because the Apex Court only directed the respondents to examine the right of the petitioner to get the pension and vide order dated 26.07.2019, the respondents rejected the claim of the petitioner which gave him a fresh Signature Not Verified Signed by: RAVI PRAKASH Signing time: 12-04-2024 18:05:03 -8- cause of action for challenging the aforesaid impugned order before the Writ Court. There is no need to approach the Apex Court directly by way of the SLP to challenge the validity of the impugned order passed by the respondents. It appears that on the basis of wrong advise, frivolous objection has been raised about the maintainability of the writ petition. Even otherwise, this point was argued by the Shri R C Singhal, Advocate before arguing on merit and it was specifically rejected and thereafter, the matter was heard and decided on merit. Therefore, the said objection is not tenable. The writ petition is very much maintainable as the respondents rejected the claim of pension vide order dated 24.09.2019 and the same is under challenge in this writ petition which is a fresh cause of action.
Hence, both the objections, on which the Division Bench remanded the Writ Petition, are unsustainable and hence rejected.
15. Now the respondents have again filed a para-wise reply to the writ petition to justify the impugned order dated 24.04.2019. According to the respondents under the Pension Regulation, there are six types of pension admissible to the employee and the petitioner's case does not fall under any of the Regulations.
16. The learned CGIT/LC, vide award dated 30.01.2015 held that the action of management of Assistant Manager, State Bank of India, Indore in dismissing the services of the petitioner is not legal and justified. The punishment of dismissal was modified to compulsory retirement. Thereafter, the petitioner & Bank both preferred writ petitions before this Court. In both the writ petitions, the issue of entitlement of pension payable to the petitioner was considered in paragraphs - 12, 13 & 14 of the order dated 24.04.2017. The Division Bench was of the opinion that if the punishment of compulsory Signature Not Verified Signed by: RAVI PRAKASH Signing time: 12-04-2024 18:05:03 -9- retirement is imposed it would not entitle the workman to pension unless he was entitled for pension upon superannuation. Therefore, the order of compulsory retirement may not entitle him to the benefit of the petitioner. However, the intention of the CGIT/LC was in favour of the petitioner to grant the pensionary benefit by substituting the punishment. Therefore, the order of the CGIT/LC was set aside and the matter was remitted to consider as to which other punishment can be imposed so as to make the workman i.e. the petitioner eligible for pensionary benefits or such other punishment, which the Tribunal may consider appropriate in the facts of the case, meaning thereby, the only relief No.10(2) was modified and relief No.10(1) was maintained by this Court. However, the Apex Court has disposed of the civil appeal that the writ petitioner will be paid all the retiral benefits if admissible. He would be paid a pension, if admissible, on the basis of the period served by him with the Bank assuming that he would be superannuated after such period of service. Therefore, the date April 2019 has been treated as the date of superannuation of the petitioner by the Apex Court. After rendering 14 years, 08 months & 06 days for service, the petitioner had been treated as superannuated.
17. As per Regulation 14 of the State Bank of Indore (Employees') Pension Regulation 1995, an employee who has rendered a minimum of ten years of service in the Bank on the date of his retirement or/on the date he is deemed to have retired, shall qualify for pension. Therefore, after rendering ten years of service, the petitioner became qualified for the pension.
18. CHAPTER - V prescribes for Classes of Pension which is reproduced below:-
CHAPTER - V Signature Not Verified Signed by: RAVI PRAKASH Signing time: 12-04-2024 18:05:03 -10- "SUPERANNUATION PENSION: -
28. Superannuation pension shall be granted to an employee who has retired on his attaining the age of superannuation specified in the Service Regulations or settlements.
29. PENSION ON VOLUNTARY RETIREMENT : -
(1) On or after the 1st day of November, 1993 at any time after an employee has completed twenty years of qualifying service he may by giving notice of not less than three months in writing to the competes: authority retire from service;
Provided that this sub-regulation shall not apply to an employee who is on deputation or on study leave abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period erf not 1CM than one year;
Provided farther that this sub-regulation shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking or company or institution, or body, whether incorporated or not to which he is on deputation at the time of seeking voluntary retirement:
Provided that this sub-regulation shall not apply to an employee who is deemed to have retired in accordance with clause (1) of regulation 2.
(2) The notice of voluntary retirement given under subregulation (1) shall require acceptance by the appointing authority :
Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. (3) (a) An employee referred to in sub-regulation (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of lew than three months giving reasons therefor;
(b) On receipt of a request under clause (a), the appointing authority may, subject to the provisions of sub-regulation (2) consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative Inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of his pension before the expiry of the notice of three months. (4) An employee, who has elected to retire under this regulation and has given necessary notice to that effect to the appointing authority, shall be. precluded from withdrawing his notice Signature Not Verified Signed by: RAVI PRAKASH Signing time: 12-04-2024 18:05:03 -11- except with the specific approval of such authority ; Provided that the request for such withdrawal shall be made before the intended date of his retirement.
(5) The qualifying, service of an employee retiring voluntarily under this regulation shall be increased by a period not exceeding five years, subject to the condition that the total qualifying, service rendered by such employee shall not in any case exceed thirty - three years and it does not take him beyond the date of superannuation.
(6) The pension of an employee retiring under this regulation shall be based on the average emoluments as defined under clause (d) of regulation 2 of these regulations and the increase, no exceeding five years in his qualifying service, shall not entitle him to any notional fixation of pay for the purpose of calculating his pension.
30. INVALID PENSION: -
(1) Pension--(1) Invalid pension may he granted to an employee who --
(1) has rendered minimum ten years of service; and (2) retires from the service, on or after the 1st day of November 1993 on account of any bodily or mental infirmity which permanently incapacitates him for the service. (2) An employee applying for an invalid pension shall submit a medical certificate of incapacity from a medical officer approved by the Bank (3) Where the Medical Officer .approved by the Bank has declared the employee fit for further service of less laborious character than the which he had been doing, he should, provided he is willing to the so employed be employed on lower post and if there be no means of employing him even on a lower post, he may be admitted to invalid pension.
(4) No medial certificate of Incapacity for service may be accepted unless the applicant obtains the medical certificate on production of a letter to show that the Competent Authority is aware of the intention of the applicant to appear before the medical officer approved by the Bank.
(5) The medical officer approved by the Bank shall also be supplied by the Competent Authority under whom the applicant is employed with a statement of what appears from official records to be the age of the applicant.
31. COMPASSIONATE ALLOWANCE : -
(1) An employee, who is dismissed or removed on terminated from service, shall forfeit his pension.
Provided that the authority higher than the authority competent to dismiss or remove on terminate him from service may, if--
Signature Not Verified Signed by: RAVI PRAKASH Signing time: 12-04-2024 18:05:03 -12-(i) such dismissal removal or termination is on or after the 1st day of "November, 1993; and
(ii) the case is deserving of special consideration sanction a compassionate allowance not exceeding two-thirds of the pension which would have been admissible to him on the basis of the qualifying service rendered upto the date of is dismissal, removal or termination.
(2) The Compassionate Allowance sanctioned under the proviso to sub- regulation ft) shall not be less than the amount of minimum pension payable under regulation 36 of these regulation.
32. PREMATURE RETIREMENT PENSION : -
Premature Retirement on may be granted to an employee who -
a) has rendered minimum ten years of service ;
b) retires from service on account of orders of the Bank to retire prematurely in the public interest or for any other reason specified in service regulations or settlement, if otherwise he was entitled to such pension on superannuation on that date.
33. COMPULSORY RETIREMENT PENSION : -
(i) An employee compulsory retired from service as a penalty on or after 1st day of November, 1993 in terms of Service Regulations or Settlement by the authority higher than the authority competent to impose such penalty may be granted 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 of otherwise he was entitled to such pension on superannuation on that date.
(ii) Whenever the competent Authority passes an order (whether original appellate or in exercise of power of review) awarding pension at a rate less than the full pension admissible under these, regulations., the Board of Directors or its Executive Committee shall be consulted before such order is passed.
1. (iii) 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 maesen.
34. PAYMENT OF PENSION OR FAMILY PENSION IN RESPECT OF EMPLOYEES WHO RETIRED OR DIED BETWEEN 1.1.1986 TO 31.10.1993 : -
(1) Employees who have retired from the service of the Bank between the 1st day of January, 1986 and the 31st day of October, 1993 shall be eligible for pension with effect from the 1st day of November 1993.
(2) The family of a deceased employee governed by the provisions contained in sub-regulation (7) of regulation 3 shall Signature Not Verified Signed by: RAVI PRAKASH Signing time: 12-04-2024 18:05:03 -13- be eligible for family pension with effect from the 1st day of November 1993."
[Emphasis Supplied]
19. Regulation 28 says about Superannuation of Pension after attaining the age of superannuation, Regulation 29 prescribes for pension on voluntary retirement after completion of 20 years of qualifying service, Regulation 30 prescribes for invalid pension which is admissible after rendering ten years of service, Regulation 31 deals with the compassionate allowances to those employees who are dismissed or removed or terminated from service but as per proviso the authority may sanction the compassionate allowance not exceeding two-third of the pension which would have been admissible to him on the basis of qualifying service, Regulation 32 deals with the premature retirement pension, for which also the minimum service is ten years and lastly Regulation 33 deals with the compulsory retirement pension payable to the employee who compulsory retired from service as a penalty and shall be entitled for minimum two-third of the pension.
20. The petitioner is qualified for the pensionable service after serving more than ten years in the respondents / Bank, therefore, it cannot be said that he is not entitled for pension. The only issue is as to which the petitioner falls in which class of pension. Only under Regulations 30, 31, 32 & 33, the pension is payable after completion of 10 years of service. The order of compulsory retirement passed by the CGIT/LC was set aside by the High Court and remanded the matter back. The order of termination had already been held illegal by the CGIT, therefore, the petitioner will not be treated as a terminated employee. It is only a case of premature retirement under Regulation 32 which says that premature retirement may be granted to an employee who has rendered a minimum of ten years of service; and retires from Signature Not Verified Signed by: RAVI PRAKASH Signing time: 12-04-2024 18:05:03 -14- service on account of an order from the Bank to retire prematurely for public interest or any other reasons specified in service regulations or settlement, if otherwise he was entitled to such pension on superannuation on that date. The case of the petitioner falls under Regulation 32. The respondents in the impugned order have only considered the case of the petitioner under Regulations 28, 29 & 33 but did not consider other regulations of CHAPTER - V.
21. In view of the above, the impugned order dated 24.09.2019 is hereby set aside. The respondents are directed to grant the pension to the petitioner pension under Regulation 32 of the Regulation of 1995 from the date of entitlement. The arrears will be paid along with the interest @ 6% per annum. Looking at the overall conduct of the respondents / Bank as discussed above, the cost of Rs.25,000/- is hereby maintained.
22. With the aforesaid, Writ Petition stands allowed.
(VIVEK RUSIA) JUDGE Ravi Signature Not Verified Signed by: RAVI PRAKASH Signing time: 12-04-2024 18:05:03