Gujarat High Court
Mahendrakumar Atmaram Patel vs Office Of Director Pension & Provident ... on 16 September, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/11070/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11070 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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MAHENDRAKUMAR ATMARAM PATEL....Petitioner(s)
Versus
OFFICE OF DIRECTOR PENSION & PROVIDENT FUND &
2....Respondent(s)
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Appearance:
MR PR NANAVATI, ADVOCATE for the Petitioner(s) No. 1
MR. GOUTAM, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1
-2
MRS VD NANAVATI, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/09/2016
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HC-NIC Page 1 of 20 Created On Wed Sep 21 02:05:16 IST 2016
C/SCA/11070/2003 JUDGMENT
ORAL JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the writ applicant, a retired employee of the grant-in-aid school, has prayed for the following reliefs;
"(A) By issuing appropriate writ, order or direction, Your Lordships may be pleased to quash and set aside the impugned order dated 6.1.2001 which is at Annexure 'A' to this petition and direct the Respondent No.1 and 2 to make payment of pension to the petitioner treating 31.5.2002 as his date of retirement and to grant this benefit with 12% interest for the delayed period.
(B) Pending the hearing and final disposal of this petition, Your Lordships may be pleased to direct the concerned respondent to start paying pension to the petitioner with immediate effect as the petitioner has been denied of pension since more than three years.
(C ) Ex-parte ad interim relief in terms of prayers (A) and (B) above be granted."
2. The case of the writ applicant is that having put in the minimum qualifying service of ten years, he is entitled to receive the pension, whereas the case of the respondents is that the writ applicant put in total nine years and ten months of service and, therefore, falling short of two months of the qualifying service, he is not entitled to receive the pension. Let me, for the time being, accept the stance of the respondent No.1. The respondent No1, in the affidavit-in-reply, has stated as under;
"5. I say and submit that pension papers of the petitioner was sent by District Education Officer, Ahmedabad by his letter dtd. 30.7.2000 bearing No.PEN/2001/40151. I say and submit that on verification of pension papers of Part-I, total 9 years and 10 months service as shown as service of petitioner in column of Page 2 of 20 HC-NIC Page 2 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT details of pensionable service i.e. from 1.6.1990 to 31.3.2000. I say and submit that as provided under rule 6 of revised Pension Rules, minimum service of 10 years is required to be completed for pensionable service. The date of birth of Shri Patel is 3.3.1942, therefore, on the basis of calculation of 58 years the date of retirement of the petitioner should be 31.3.2000. I say and submit that date of appointment of Shri Patel is 1.6.1990, and therefore, as on the date of retirement i.e. upto 31.3.2000, total service is calculated as 9 years and 10 months.
I say and submit that in view of Govt. circular Education Department dtd. 22.5.1998 bearing No.BMS/1097/MLA/CHH, (ANNEXURE -I) it has been decided to extend the services of teaching staff of upto the end of education term subject to condition such services which has been extended may not be calculated for the purpose of increment. Gratuity or pension. A copy of the said resolution is annexed herewith and marked as Annexure-I to this affidavit in reply. I say and submit that petitioner has been extended upto 31.5.2000, therefore, services rendered by the petitionerin the month of April and May, 2000 can not be calculated for the purpose of pensionable service. I say and submit that necessary order have been issued for payment of pensionary benefits by this office letter dtd. 6.1.2001 bearing No.DPP/Pension/PA-I/16688 for Gratuity of Rs.58,500/- and D.C.R.G payment of Rs.40,365/-.
I say and submit that in the same subject matter, similar petition bearing SCA No.12167/1994 have been preferred by one Shri Laljibhai K. Vasensa, of Nava Deesa, Dist. Banaskantha in which services of the petitioner was 9 years, 9 months and 29 days, even though Hon'ble High Court has dismissed the said petition on the ground of services less than 10 years (ANNEXURE-II).
In view of aforesaid facts and circumstances of the case petitioner is not entitled for any relief as prayed for herein this petition and petition deserves to be dismissed in limine awarding cost to the present respondent."
3. Having heard the learned counsel appearing for the parties and having considered the materials on record, the Page 3 of 20 HC-NIC Page 3 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT only question that falls for my consideration is whether the writ applicant is entitled to receive the pension. The law in this regard is no longer res integra. A learned Single Judge of this Court, in the case of Dursinh Jugsinh Rathod vs. State of Gujarat & Anr. 2006 (4) GLR 3353 has explained the principle of rounding off. While interpreting Rule 80(3) in a case where the writ applicant was falling short of six months in completing ten years of the qualifying service, this Court held as under;
"5. Plain reading of Rule 80 of the Gujarat Civil Services (Pension) Rules, 2002 would show that sub-rule (I) applies to the cases where service gratuity is required to be paid on account of the employee retiring before completing qualifying service of ten years. The subject of pension is covered by the provisions of clauses (a) and
(b) of sub-rule(2) of Rule 80 and it is added by way of Explanation in sub-rule (3) that in calculating the length of qualifying service, fraction of a year equal to six months and above shall be treated as a complete year and reckoned as qualifying service. Applying that extended definition, the petitioner would have completed the period of ten years of qualifying service even after acquisition of lien and absorption in the service of the District Education Committee. Therefore, the denial of even provisional pension is based apparently on complete misreading of Rule 80, and therefore, the petitioner was entitled to be paid at least provisional pension immediately after his retirement since July, 2002.
6. As far counting the earlier service rendered as a teacher in Ashram School, the aforementioned Government Resolution dated 23.8.1973 hardly leaves any room for doubting that the earlier service is also required to be counted for the purpose of payment of pension. However, that matter appears to be under consideration by the education Department of the Government at least since 23.2.2004 and none of the parties have thrown any light on the subsequent resolutions, if any, and the decision taken by the State Government in that regard. Therefore, it may be appropriate for this court to refrain from finally Page 4 of 20 HC-NIC Page 4 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT pronouncing upon the entitlement of pension after considering the services rendered in Ashram School by such teachers, particularly in view of the facts that the aforesaid resolution is dated 23.8.1973, the petitioner has been absorbed in the year 1992 and the subsequent resolutions, if any, in that regard are not placed on record and the matter was under active consideration of the Government. However, at the same time, the decision in such matter cannot be indefinitely postponed or awaited.
7. Therefore, at this stage, the petition is partly allowed with the direction to fix and pay provisional pension of the petitioner on the basis of his service from 29.12.1992 till 30.6.2002, applying the provisions of sub-
rules (2) and (3) of Rule 80 of the Gujarat Civil Services (Pension) Rules, 2002, within one month of receipt of the writ of this order. The respondents shall pay the arrears of provisional pension to the petitioner with interest @ 9% from 1.10.2002 till the date of payment. The respondents are also directed to take and convey to the petitioner, within three months final decision in respect of consideration of his previous service as a teacher under Ashram School after which the petitioner shall be at liberty to challenge such decision, if the decision is adverse to him. The respondents shall also make appropriate orders with regard to the provident fund amount credited to the account of the petitioner. Rule is made absolute to the aforesaid accordingly with no order as to costs. Direct service is permitted."
4. In the case of Diwan Dadubhai Umarbhai vs. Municipal Commissioner & Ors., Special Civil Application No.4976 of 2003, decided on 31st January, 2005, a learned Single Judge of this Court held as under;
"The petitioner is a retired secondary school teacher. The petitioner claims the benefit of pension and other terminal benefits from the respondent Ahmedabad Municipal Corporation (hereinafter referred to as "the Corporation").
The petitioner joined the service of the Corporation as a teacher in Urdu High School on 1st December, 1987. On Page 5 of 20 HC-NIC Page 5 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT reaching the age of superannuation he retired from service on 31st October, 1997. He had thus rendered pensionable service for 9 years and 11 months. The petitioner claimed that he had earlier served in a primary school under the Taluka Panchayat, Karjan from 12th January, 1959 to 30th June, 1967. The said service of 7 years and 5 months should be clubbed with his service under the Corporation for the purpose of pension and other retiral benefits. After two rounds of litigation before the Gujarat Secondary Education Tribunal, the Corporation has, by its communication dated 4th February, 2003, rejected the claim for pension made by the petitioner. According to the Corporation, the petitioner has not produced reliable evidence in support of his earlier service for the years 1959 to 1967; the continuous break in service for 20 years cannot be condoned. Further, the petitioner had not completed 10 years' pensionable service in the Corporation. Hence, he was not entitled to receive pension as claimed by him. On the facts and in the circumstances of the case, the respondent Ahmedabad Municipal Corporation is directed to condone the deficit of one month in pensionable service of the petitioner. The petitioner be deemed to have completed 10 years' pensionable service and to process the pension papers accordingly. The pension case should be processed and pension payment order shall be made within three months from today."
5. The Supreme Court, in the case of Union of India & Anr. vs. Surender Singh Parmar, 2015 (3) SCC 404, has explained the principle of rounding off.
"2. By the impugned order dated 19th November, 2013, the Tribunal allowed the original appeal filed by the respondent and held that the respondent rendered actual service to the extent of 14 years by rounding off, which makes him eligible for consideration of condonation of shortfall of pensionable service of one year and in view of striking off of Rule 82(a) the respondent cannot be denied the benefit of condonation of shortfall in service on the ground that he took the discharge from service voluntarily on his own request. Therefore, the Tribunal declared that the respondent shortfall in service stands condoned in the facts of the Page 6 of 20 HC-NIC Page 6 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT case and directed the appellants to calculate the total benefit of pension within a period of three months and to pay the amount. By the impugned order dated 5th March, 2014, the Tribunal dismissed the review application against its earlier order and rejected oral plea for leave to appeal before this Court.
3. The factual matrix of the case is as follows:- The respondent joined the Indian Navy on 12th August, 1971 and after rendering 13 years, 10 months and 13 days service sought his retirement on compassionate ground upon which he was released from service on 24th June, 1985. The minimum qualifying period for pensionable service is 15 years. There is a provision in the Navy (Pension) Regulations 1964 for condonation of shortfall in service, initially it was for six months and subsequently the condonation was made permissible for one year. The respondent claimed that he was entitled to the benefit under the said Regulations and the Government of India Instructions dated 30th October, 1987. The appellant denied the said benefit to the respondent vide order dated 14th August, 2001.
4. The respondent initially approached the High Court of Delhi by filing Writ Petition (C) No.12507C of 2004. It was pointed out before the High Court that the Division Bench of the Bombay High Court in Writ Petition No.430 of 2005 titled Gurmukh Singh v. UOI vide judgment dated 22nd November, 2006 declared the Navy (Pension) Regulation 82 (a) as null and void being ultra vires to Article 14 of the Constitution of India. Regulation 82(a) provided that the benefit of condonation of shortfall in pensionable service shall not be applicable to the case in which a sailor got the discharge from the service at his own request. It was also brought to the notice of the High Court that similar finding was given by the Delhi High Court in the case of the respondent in Writ Petition (C) No.12507 of 2004 vide order dated 6th November, 2007 and that the appellant-Union of India was directed to consider the case of the respondent for the purpose of condoning the deficiency in service and pass appropriate orders within three months.
5. The appellant opposed the said prayer on the ground that the respondent has not completed the requisite service of 14 years upon which only one can get Page 7 of 20 HC-NIC Page 7 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT the benefit of condonation of shortfall of service upto one year. Therefore, according to the appellant, the respondent was not eligible candidate for condonation of the shortfall in pensionable service of one year. Before the High Court the respondent contested the statement made by the appellant that the respondent served for 13 years 8 months and 13 days and brought to the notice of the High Court that actually he served 13 years 10 months and 13 days which was not disputed. The respondent claimed benefit by rounding off the period of service in terms of Government of India Instructions dated 30th October, 1987. The Division Bench of the Delhi High Court after considering the rival submissions and taking note of instructions dated 30th October, 1987 by order dated 6th November, 2007 set aside the appellants earlier rejection order dated 14th August, 2001 and directed the appellant to re-consider the case of respondent.
6. Subsequently, a contempt petition was filed by the respondent alleging non-compliance of the said order. The contempt petition was dismissed by the Division Bench of the Delhi High Court considering the fact that appellants after the decision dated 6th November, 2007 passed the order on 2nd July, 2008 rejecting the claim of the respondent with liberty to challenge the order in accordance with law. In the said contempt proceedings the appellants gave undertaking that decision in Gurmukh Singh v. UOI would be made applicable in the case of the respondent. Thereafter, the second order of rejection was challenged by the respondent before the Tribunal wherein the impugned order was passed by the Tribunal.
7. The learned counsel appearing on behalf of the appellants submitted that the Tribunal failed to consider that as per Regulation 82 which was prevalent when the respondent was discharged, the deficiency in qualifying service could have been condoned only upto six months and not one year. He further contended that deficiency of one year as per new policy may be granted but the respondent has not completed 14 years of actual qualifying service in order to make him eligible for considering his case for condonation of deficiency of service upto one year and hence he is not entitled for the same. The learned counsel for the appellant further Page 8 of 20 HC-NIC Page 8 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT contended that Regulation 82(a) of the Pension Regulations for Navy, 1964 cannot be held to be invalid and the law laid down by the High Court is incorrect.
8. In the present case, the appellant has not challenged the validity of judgment passed by the Bombay High Court wherein Regulation 82(a) was declared as ultra vires. The aforesaid finding of the Bombay High Court was also accepted by the Delhi High Court in the case of the respondent. In absence of any challenge before this Court, we are not inclined to decide the question of validity of Regulation 82(a) which has already been declared ultra vires and violative of Article 14 of the Constitution of India.
9. It is not in dispute that the respondent has completed 13 years, 10 months and 13 days of service under the appellant. In view of declaration of Regulation 82(a) ultra vires, the prayer of the respondent for considering his case for condonation cannot be rejected on the ground that he voluntarily sought permission to leave the service. The aforesaid submission was also accepted by the High Court in the earlier writ petition preferred by the respondent.
10. The note below paragraph 5 of the Government of India, Ministry of Defence instructions dated 30th October, 1987 at clause 5 provides that in calculating the length of qualifying service fraction of a year equal to three months and above but less than six months shall be treated as a completed one half year for reckoning qualifying service. The said provision reads as follows:-
"5. Qualifying service.
(a)- (b) xx xx xx
xx xx xx
Notes:(1) to (4) xx xx xx
(5)In calculating the length of qualifying service fraction of a year equal to three months and above but less than six months shall be treated as a completed one half year and reckoned as qualifying service."
11. In view of the aforesaid provisions the respondent is entitled to claim total period of service as 14 years for the purpose of calculation of pension. By Government of Page 9 of 20 HC-NIC Page 9 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT India, Ministry of Defence order dated 14th August, 2001 administrative power has been delegated to the competent authority under clause (a)(v) the competent authority has been empowered to condone shortfall in qualifying service for grant of pension beyond six months and upto 12 months. The said provision reads as follows:-
"(a)(v)Condonation of shortfall in Qualifying Service for grant of pension in respect of PBOR beyond six months and upto 12 months."
12. In view of the aforesaid provision, the respondent is also entitled to claim for condonation of shortfall in qualifying service for grant of pension beyond six months and upto 12 months. If the aforesaid power has not been exercised by the competent authority in proper case then it was within the jurisdiction of the High Court or Tribunal to pass appropriate order directing the authority to condone the shortfall and to grant pension to the eligible person, which has been done in the present case and we find no ground to interfere with the substantive finding of the Tribunal. However as we find that the respondent was allowed to retire from service on 24th June, 1985 when the instruction dated 14th August, 2001 was not in existence, we hold that the respondent is entitled for such benefit from such date on which the said instruction came into effect. The Tribunal failed to notice the aforesaid fact but rightly declared that the respondent's shortfall in service stands condoned."
6. The Supreme Court, in the case of State Bank of Patiala vs. Pritam Singh Bedi & Ors., 2014 (13) SCC 474, considered an identical issue. I may quote the observations as contained in paragraphs 6, 7, 8 ,9, 10, 11, 12, 13, 14, 15, 16, 17,18,19,20,21,22,23,24 and 25;
"6. On the other hand, following submissions were made by the learned counsel for the respondents:
i) All the respondents have completed more than 19 and ½ years of service but less than 20 years in the Bank, therefore, they are entitled to treat the broken year as one year under Regulation 18. Therefore, in view of Page 10 of 20 HC-NIC Page 10 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT Regulation 18, the respondents should be treated to have completed 20 years of service.
ii) The respondents are entitled for pension under Regulation 32 otherwise also the respondents are entitled to pension even under Regulation 29."
7. Learned counsel for the appellant-Bank relied on the decisions of this Court in Bank of Baroda vs. Ganpat Singh Deora, 2009 (3) SCC 217 and Bank of India vs. K. Mohandas and others, 2009(5) SCC 313. On the other hand, according to the counsel for the respondents, the present case is different than the decisions in Bank of Baroda (supra) and Bank of India (supra) as the respondents are guided by Regulations 18, 28, 29 and 32 of the State Bank of Patiala (Employees) Pension Regulations, 1995 which varies from the provisions of the other Banks.
8. In the present case the question arises for consideration is whether under the State Bank of Patiala (Employees) Pension Regulations, 1995 the respondents are entitled for pension.
9. Similar question was considered by this Court in Bank of Baroda (supra). In the said case Bank of Baroda employees were retired pursuant to Bank of Baroda Employees Voluntary Retirement Scheme, 2001. However, they had not completed 20 years of service; therefore, they were denied the benefit of pension under their Pension Regulations, 1995. In the said case this Court noticed Regulation 28 of Bank of Baroda Pension Regulations as it stood prior to the amendment made on 2nd January, 2004 which was as follows:
"28.Superannuation pension.--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."
This Court also noticed the amended Regulation 28 in Bank of Baroda(supra) which was published in the Gazette of India on 2nd January, 2004 and provides as follows:
"28.Superannuation pension.--Superannuation pension Page 11 of 20 HC-NIC Page 11 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT shall be granted to an employee who has retired on his attaining the age of superannuation specified in the Service Regulations or settlements:
Provided that, with effect from 1-9-2000 pension shall also be granted to an employee who opts to retire before attaining the age of superannuation, but after rendering service for a minimum period of 15 years in terms of any scheme that may be framed for such purpose by the Board with the approval of the Government."
10. Having noticed the aforesaid provisions and Regulation 29 of the Bank of Baroda Pension Regulation which is peri materia, similar one, this Court in view of the fact that the respondents of said Bank had not completed the required length of qualifying service as provided under Regulation 28 of Regulations, 1995, held that the respondents were not eligible for pension under the Pension Regulation, 1995 of the Bank of Baroda.
11. Subsequently, similar provisions of different Bank fell for consideration before a Bench of this Court in Bank of India (supra), referring to the scheme and different provisions which are almost similar to the present one held as under:
"33. What was, in respect of pension, the intention of the banks at the time of bringing out VRS 2000? Was it not made expressly clear therein that the employees seeking voluntary retirement will be eligible for pension as per the Pension Regulations? If the intention was not to give pension as provided in Regulation 29 and particularly sub-regulation (5) thereof, they could have said so in the Scheme itself. After all much thought had gone into the formulation of VRS 2000 and it came to be framed after great deliberations. The only provision that could have been in mind while providing for pension as per the Pension Regulations was Regulation 29. Obviously, the employees, too, had the benefit of Regulation 29(5) in mind when they offered for voluntary retirement as admittedly Regulation 28, as was existing at that time, was not applicable at all. None of Regulations 30 to 34 was attracted.
37. The amendment to Regulation 28 can, at best, be said to have been intended to cover the employees with Page 12 of 20 HC-NIC Page 12 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT 15 years of service or more but less than 20 years of service. This intention is reflected from the communication dated 5-9-2000 sent by the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division) to the Personnel Advisor, Indian Banks' Association.
39. Two things immediately become noticeable from the said communication. One is that as per Regulation 29 of the Pension Regulations, 1995, an employee can take voluntary retirement after 20 years of qualifying service and become eligible for pension. The other thing is that the Scheme provides that the employees with 15 years of service or 40 years of age shall be eligible to take voluntary retirement under the Scheme and under Regulation 29, the employees having rendered 15 years of service or completed 40 years of age but not completed 20 years of service shall not be eligible for pensionary benefits on taking voluntary retirement under the Scheme.
40. The use of the words "such employees" in the communication is referable to employees having rendered 15 years of service but not completed 20 years of service and, therefore, it was decided to bring an amendment in the Regulations so that the employees having not completed 20 years' service do not lose the benefit of pension. The amendment in Regulation 28, as is reflected from the afore referred communication, was intended to cover the employees who had rendered 15 years' service but not completed 20 years' service. It was not intended to cover the optees who had already completed 20 years' service as the provisions contained in Regulation 29 met that contingency.
46. The precise effect of the Pension Regulations, for the purposes of pension, having been made part of the Scheme, is that the Pension Regulations, to the extent, these are applicable, must be read into the Scheme. It is pertinent to bear in mind that interpretation clause of VRS 2000 states that the words and expressions used in the Scheme but not defined and defined in the rules/regulations shall have the same meaning respectively assigned to them under the rules/regulations. The Scheme does not define the expression "retirement" or "voluntary retirement". We Page 13 of 20 HC-NIC Page 13 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT have, therefore, to fall back on the definition of "retirement" given in Regulation 2(y) whereunder voluntary retirement under Regulation 29 is considered to be retirement. Regulation 29 uses the expression "voluntary retirement under these Regulations".
Obviously, for the purposes of the Scheme, it has to be understood to mean with necessary changes in points of details. Section 23 of the Contract Act has no application to the present fact situation.
48. It is true that validity and legality of Regulation 28 has not been put in issue. It was apparently not done because, according to the employees, amended Regulation 28 although made retrospective could not have affected the concluded contract. We have already indicated above as to how the amendment in Regulation 28 in the year 2002 with effect from 1-9-2000 could not have applied to the optees under the Scheme who had completed service of 20 years. Lack of challenge to Regulation 28 by the employees is, therefore, not very material. It is not correct to say that by taking recourse to Regulation 29, the amendment to Regulation 28 is rendered otiose.
50. It is true that VRS 2000 is a complete package in itself and contractual in nature. However, in that package, it has been provided that the optees, in addition to ex gratia payment, will also be eligible to other benefits inter alia pension under the Pension Regulations. The only provision in the Pension Regulations at the relevant time during the operation of VRS 2000 concerning voluntary retirement was Regulation 29 and sub-regulation (5) thereof provides for weightage of addition of five years to qualifying service for pension to those optees who had completed 20 years' service. It, therefore, cannot be accepted that VRS 2000 did not envisage grant of pension benefits under Regulation 29(5) of the Pension Regulations, 1995, to the optees of 20 years' service along with payment of ex gratia.
51. The whole idea in bringing out VRS 2000 was to right size workforce which the banks had not been able to achieve despite the fact that the statutory Regulations provided for voluntary retirement to the employees having completed 20 years' service. It was for this reason Page 14 of 20 HC-NIC Page 14 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT that VRS 2000 was made more attractive. VRS 2000, accordingly, was an attractive package for the employees to go in for as they were getting special benefits in the form of ex gratia and in addition thereto, inter alia, pension under the Pension Regulations which also provided for weightage of five years of qualifying service for the purposes of pension to the employees who had completed 20 years' service."
12. In the said case of Bank of India (supra), this Court noticed the observation made by this Court in the case of Bank of Baroda (supra) but distinguished the same with the following observation:
"61. The observations made by this Court in Bank of Baroda, (2009) 3 SCC 217, which have been quoted above and relied upon by the banks in support of their contention have to be understood in the factual backdrop, namely, that the employee had completed only 13 years of service and, was not eligible for the pension under the Pension Regulations, 1995 and for the benefit of addition of five years to qualifying service under Regulation 29(5), an employee must have completed 20 years of service. The question therein was not identical in form with the question here to be decided.
62. The following observations in Bank of Baroda(supra) are significant: (SCC p. 221, para 21) "21. ... since both the Tribunal as well as the High Court appear not to have considered or taken note of the fact that the respondent was not eligible for pension as he had not completed 15 years of qualifying service...."
63. The decision of this Court in Bank of Barod(supra)is, thus, clearly distinguishable as the employee therein had not completed qualifying service much less 20 years of service for being eligible to the weightage under Regulation 29(5) and cannot be applied to the present controversy nor does that matter decide the question here to be decided in the present group of matters."
13. For determination of the issue, it is desirable to refer to the relevant provisions of the State Bank of Patiala Voluntary Retirement Scheme, 2001, the background of Page 15 of 20 HC-NIC Page 15 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT such Scheme and relevant provisions of State Bank of Patiala (Employees) Pension Regulations, 1995.
14. Pursuant to Government of India, Indian Banks Association advice different Banks introduced Voluntary Retirement Scheme including the State Bank of Patiala Voluntary Retirement Scheme, 2000 introduced by the Bank, by its Circular No. Per/VRS/48 dated 20th January, 2001. Clause 3 of the Scheme prescribed eligibility of voluntary retirement as follows:
"Clause 3: Eligibility-The scheme will be open to all permanent employees of the Bank, except those specifically mentioned as 'ineligible who have put in 15 years of service or have completed 40 years of age as on 31st December, 2000. Age will be reckoned on the basis of the date of birth as entered in service record.
While calculating the period of service, absence, which is reckoned as service, will be excluded.
If an officer, who has not completed mandatory rural or semi-urban assignment (either wholly or partly) submits an application for retirement under SBP VRS before approving his case, his promotions would stand withdrawn if confirmation subsequent to promotion is subject to completing such mandatory service."
15. Apart from ex gratia which were offered under the Scheme, the following other benefits were prescribed therein:
"Clause 7: Other benefits- (i) Gratuity as payable under the extant instructions on the relevant date.
(ii) Provident Fund contribution as per SBP Employees' Provident Rules as on relevant date.
(iii) Pension or Bank's contribution to Provident Fund as the case may be as per rules applicable on the relevant date on the basis of actual years of service rendered.
16. The respondents who had completed more than 19 and ½ years of service applied for and were allowed to Voluntary Retirement Scheme aforesaid. They have been paid most of the benefits but pensionary benefits were Page 16 of 20 HC-NIC Page 16 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT not paid to them. Therefore, they had to move before the High Court.
17. State Bank of Patiala (Employees) Pension Regulations, 1995 are applicable to full time employees of the Bank. Regulation 2(w) defines qualifying service and 2(y) defines retirement, they are as follows:
"2(w) "qualifying service" means the service rendered while on duty or otherwise which shall be taken into account for the purpose of pension under these regulations;
2(y) "retirement" means cessation from Bank's service:-
(a) on attaining the age of superannuation specified in -
Service Regulations of 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;"
18. Chapter IV relates to qualifying service. Regulation 14 defines qualifying service as under:
"14.Qualifying Service- Subject to the other conditions contained in these regulations, 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 on which he is deemed to have retired shall qualify for pension."
For the purpose of qualifying service, under the said Chapter IV Regulation 18 prescribes broken period of service of less than one year as under:
" 18.Broken period of service of less than one year- If the period of service of an employee includes broken period of service is less than one year, then if such broken period is more than six months, it shall be treated as one year and if such broken period is six months or less it shall be ignored."
19. Chapter V relates to Classes of Pension (Classes of Page 17 of 20 HC-NIC Page 17 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT Pension). Regulation 28 deals with superannuation pension as under:
"28.Superannuation Pension- 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."
20. Regulation 29 relates to Pension on Voluntary Retirement, relevant portion of which reads as under:
"29.Pension on Voluntary Retirement- (1) On or after the Ist day of November, 1993, at any time after an employee has completed twenty years of qualifying service he may, by writing to the competent 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 of not less than one year:
Provided further that this subregulation 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 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."
(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 years and it does not take him beyond the date of superannuation."
21. For premature retirement pension one may refer to Regulation 32, which reads as under:
"32. Premature Retirement Pension Premature retirement Pension may be granted to an employee who, Page 18 of 20 HC-NIC Page 18 of 20 Created On Wed Sep 21 02:05:16 IST 2016 C/SCA/11070/2003 JUDGMENT
- (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 for any other reason specified in service regulations or settlement, if otherwise he was entitled to such pension on superannuation on that date."
Regulation 33 deals with an employee compulsorily retired from service as a penalty and which is not applicable in the present case.
22. The respondents completed more than 10 years of service in the Bank on the date of retirement; therefore, they fulfill the requirement of qualifying service as per Regulation 14.
23. It has not been disputed by appellant-Bank that the respondents in all the appeals have completed much more than 19 years 6 months of service in the Bank. For example, respondent No.1-Prakash Chand in C.A. No.173 of 2010 had joined the Bank on 4th May, 1981 and relieved on 31st March, 2001. Thus, he had completed 19 years, 10 months and 28 days of qualifying service on the date of relieving from service.
24. Regulation 18 of the Pension Regulations, 1995 provides that if broken period is more than six months, it shall be treated as one year. Therefore, all the respondents-writ petitioners having completed more than 19 years and 6 months of service in the Bank, they are to be treated to have completed 20 years of service. The aforesaid question was neither raised nor decided in the case of 'Bank of Baroda' or 'Bank of India'.
25. In view of the aforesaid fact, the appellant-Bank cannot derive the benefit of the decision of this Court in Bank of Baroda as the employees who were parties before the Court in the said case had not completed 20 years of service. As per the decision of this Court in Bank of India, the respondents writ petitioners having completed 20 years of service are entitled to the benefit of Regulation 29."
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C/SCA/11070/2003 JUDGMENT
7. An identical view has been taken by the Supreme Court in the case of Indian Bank vs. N. Venkatramani, 2007 (10) SCC 609.
8. In view of the above, this writ application succeeds and is hereby allowed. It is declared that the writ applicant is entitled to receive the pension from the date of his attaining the superannuation. The authorities concerned shall calculate the requisite amount towards the arrears of pension from the date of superannuation, i.e. 31st May, 2000 and pay the amount within a period of three months from the date of the receipt of the writ of the order. The pension shall be fixed in accordance with the rules governing the same taking into consideration the fact that the writ applicant completed ten years of the qualifying service.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 20 of 20 HC-NIC Page 20 of 20 Created On Wed Sep 21 02:05:16 IST 2016