Patna High Court - Orders
Shrinath Upadhyay vs Union Of India on 11 September, 2020
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
(FROM RESIDENTIAL OFFICE VIA VIDEO APPLICATION)
Civil Writ Jurisdiction Case No.12921 of 2019
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Shrinath Upadhyay
... ... Petitioner/s
Versus
Union of India & Ors.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Jai Prakash Singh, Advocate
For the Bank : Mr. M.N. Parbat, Sr. Advocate
For the Union of India : Mr. Satyavrat Verma, C.G.C.
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL ORDER
7 11-09-2020The matter has been heard at length once again. In response to the queries raised by this court as recorded in the order dated 08.09.2020 Mr. M.N. Parbat, learned Senior Counsel has informed this court that had petitioner been not compulsorily retired from the service prior to 01.04.2018, in case of a normal retirement prior to 01.04.2018 he would have been very well covered under the provisions of the Regulation 2018. In this connection Mr. Parbat has taken this court through Regulation 32 and Regulation 39(9)(iv) of 2018 Regulations. Regulation 32 provides that :
"(1) An employee who was in service between 1 st day of September 1987 and 31st day of March 2010 and retired from service of the Bank before 31st day of March, 2018 shall, subject to the provisions of these regulations, be eligible for payment of pension from the effective date."
Regulation 39(9)(iv) reads as under: -
Patna High Court CWJC No.12921 of 2019(7) dt.11-09-2020 2/8 "39(9). The commutation of pension shall be become absolute in the case of an employee -
(iv) who was in service between 1 st September, 1987 and 31st March, 2010 and retired on or before 31 st March 2018 and who opts to become a member of the Fund under these regulations, on the 1st day of April, 2018, where the application of commutation is made in Form VI within one year from the date of retirement and Form VII and Form VIII in all other cases, within the period specified in sub-regulation (1) of regulation 3."
The bone of contention in the present case is an interpretation of regulation 20 which according to Mr. Parbat takes into it's compass the employees like the present petitioner, who have been made to compulsorily retire from service. Regulation 20 is quoted hereunder for a ready reference:-
"20. Forfeiture of Service:-
(1) Resignation not amounting to voluntary retirement or dismissal or removal or termination of an employee from the service of the Bank shall entail forfeiture of his entire past service and consequently shall not qualify for pension under these regulations."
The impugned letter by which petitioner has been denied an opportunity to exercise his option under it's regulation of 2018 refers regulation 20 as well as regulation 31 therefore a quick look on regulation 31 is required. Regulation 31 thus reads as under: -
"31. Compulsory retirement pension:-
An employee compulsorily retired from service as a penalty, on or after the effective date, in terms of the Service Regulations, may be granted by the authority higher than the authority competent to Patna High Court CWJC No.12921 of 2019(7) dt.11-09-2020 3/8 impose such penalty, pension at a rate not less than two-thirds and not more than full pension admissible to him on the date of his compulsory retirement, if otherwise he was entitled to such pension on superannuation, on that date: Provided that where the pension awarded under this regulation is less than the full pension admissible under these regulations, the Board of Directors shall be consulted before such order is passed."
While it is the contention of Mr. Jai Prakash Singh, learned counsel representing the petitioner that in case of the petitioner regulation 31 would not be applicable and by no stretch of imagination the respondent bank may argue that because of compulsory retirement from service the case of the petitioner would be one like those mentioned in regulation 20 which entails forfeiture of service.
It is his submission that the compulsory retirement from service never invites forfeiture of service as it is not a case of 'resignation' not amounting to 'voluntary retirement' or 'dismissal' or 'removal' or 'termination of an employee from service of the bank'. In this connection, he has relied upon a Hon'ble Division Bench judgment dated 28.10.2016 of this Court in the case of The Indian Bank through CMD and others Vs. Kaushal Kishore Thakur passed in L.P.A. No. 580 of 2016 wherein while considering the case of denial of leave encashment benefit to an employee of the Indian Bank on the ground that he had been made to compulsorily retire from Patna High Court CWJC No.12921 of 2019(7) dt.11-09-2020 4/8 service, the Hon'ble Division Bench of this Court agreed with the view taken by the learned Single Judge that compulsory retirement from service is not termination from service.
As regards the payability of the leave encashment benefits, Mr. Parbat, learned Senior Counsel for the Bank has relied on regulation 67 of the Madhya Bihar Gramin Bank (Officers and Employees) Service Regulation, 2010 which reads as under;
"Lapse of Leave- All leave shall lapse on the death of an officer or employee or if he ceases to be in the service of the Bank .... .........."
It is the contention of Mr. Parbat, learned Senior Counsel that because of regulation 67 the moment this petitioner ceased to be in service of the Bank because of his compulsory retirement from service, he would not be entitled to get leave encashment benefit as all leave shall lapse on his cessation in service of the Bank.
The submission of Mr. Parbat, learned Senior Counsel has been strongly controverted by Mr. Jai Prakash Singh, learned counsel for the petitioner. Mr. Singh has submitted that any such interpretation of regulation 67 would be absurd. It is submitted that the provision of the regulation 67 has to be interpreted in the context in which it has been used.
Learned counsel submitted that the Hon'ble Delhi Patna High Court CWJC No.12921 of 2019(7) dt.11-09-2020 5/8 High Court in the case of Dipak Sapra Vs. Punjab National Bank (L.P. A. No. 693 of 2013) and then the Hon'ble Bombay High Court in the case of Ashok and Others Vs. The Chief Secretary, Union of India & Another (WP No. 1347/2016) the Hon'ble Punjab & Haryana High Court in the case of Umed Singh Vs. Sarva Haryana Gramin Bank and Another (CWP No. 16233 of 2014) have held that an employee of the Regional Rural Bank who has been made to compulsorily retire from service would be entitled for leave encashment.
Mr. Singh, has also submitted that the Indian Bank Association has come out with a Circular dated May 11th, 2015 by which leave encashment was allowed to all such cases of compulsory retirement and based on that one Baroda Rajasthan Kshetriya Gramin Bank had also notified the entitlement of leave encashment to the employees who retired by way of compulsory retirement.
It is his submission that the Hon'ble Supreme Court in the case of South Malabar Gramin Bank Vs. Co-ordination Committed of South Malabar Gramin Bank Employees' Union and South Malabar Gramin Bank Officers' Federation and Others reported in (2001) 4 SCC 101 has thoroughly discussed the principle of parity which has to be Patna High Court CWJC No.12921 of 2019(7) dt.11-09-2020 6/8 maintained in respect of the employees of the sponsored bank and the regional rural bank and in fact it has also been the consistent view of the Hon'ble Apex Court that the employees of the regional rural bank be treated on the same line as the employees of the sponsored bank are being treated. It is thus his submission that the leave encashment amount is payable to the petitioner. It is, thus the submission of learned counsel for the petitioner that the impugned communication by which the option submitted by the petitioner has been rejected citing Regulation 20 and 31 is fit to be set-aside and a Mandamus be issued accordingly as the petitioner has been able to establish his legal right.
At this stage, Mr. M.N. Parbat, learned Senior Counsel has submitted that one indulgence may be granted to him to go through the entire judgment which have been cited at the Bar by Mr. Jai Prakash Singh, learned counsel for the petitioner.
Mr. Sidhharth Prasad, learned counsel who was appearing for the NABARD has put his appearance by way of courtesy to the court, though he has instruction from his client not to appear. While appreciating his conduct this court will not call upon him to argue the matter since he has no instruction for Patna High Court CWJC No.12921 of 2019(7) dt.11-09-2020 7/8 the same.
Mr. Satyavrat Verma, learned Central Government Counsel has appeared on behalf of the Union of India. Mr. Verma, has submitted that in fact Mr. Parbat has himself submitted at the outset that had the petitioner retired in normal course before 01.04.2018 the petitioner would have been entitled for exercising his option under regulation 2018. It is the submission of Mr. Verma that 'compulsory retirement' does not mean dismissal or termination from service. Learned counsel submits that regulation 20 and 31 of 2018 Regulation will not come in the way of the petitioner.
It is his submission that by no stretch of imagination the employee such as the petitioner who has been made to compulsorily retired from service would be covered under regulation 20 so as to forfeit his entire past service to the bank. It is his submission that the provisions such as Regulation 32 and Regulation 39(9)(iv) which have been pointed out by Mr. Parbat would be applicable in the case of this petitioner and the petitioner would be entitled to apply for exercising his option under 2018 Regulation.
However, as Mr. M.N. Parbat, learned Senior Counsel for the Bank wants to give his reply on Tuesday i.e. 15 th Patna High Court CWJC No.12921 of 2019(7) dt.11-09-2020 8/8 September, 2020, let this case be listed specially on 15 th September, 2020 for final consideration at 11:30 A.M. (Rajeev Ranjan Prasad, J) avin/rajeev U Note: The ordersheet duly signed has been attached with the record. However, in view of the present arrangements, during Pandemic period all concerned shall act on the basis of the copy of the order uploaded on the High Court website under the heading 'Judicial Orders Passed During The Pandemic Period'.