Gujarat High Court
Vijaya Bank vs Chandrakant Devjibhai Patel on 8 May, 2014
Author: Vijay Manohar Sahai
Bench: Vijay Manohar Sahai, K.J.Thaker
C/LPA/299/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 299 of 2013
In SPECIAL CIVIL APPLICATION NO. 11135 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
===========================================================
1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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VIJAYA BANK....Appellant(s)
Versus
CHANDRAKANT DEVJIBHAI PATEL....Respondent(s)
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Appearance:
MR UDAY R BHATT, ADVOCATE for the Appellant(s) No. 1
MR ASHOK L SHAH, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 08/05/2014
Page 1 of 10
C/LPA/299/2013 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)
1. We have heard Mr. Uday Bhatt, learned advocate for the appellant and Mr. Ashok Shah, learned advocate for the respondent.
2. Brief facts of the case are that:
The petitioner had joined the services of the respondent- Bank in August, 1974. The last posting of the petitioner was as a Senior Manager of the Relief Road Branch at Ahmedabad. The petitioner expressed his desire to discontinue his service in the respondent Bank by tendering a resignation dated 10th September 1992, which was accepted by the respondent-bank, with effect from 30th March 1993. When the petitioner had tendered his resignation for getting premature retirement from the respondent-bank, there was no Voluntary Retirement Scheme or any other Pension Scheme in existence. On his premature voluntary retirement from the respondent- bank with effect from 1st April 1993, the petitioner received his dues towards regular Provident Fund and Gratuity. Except the Provident fund dues and the Gratuity dues, the petitioner had not received any other dues or benefits on being permitted to retire voluntarily.
It is the case of the petitioner that at the time when he took voluntary premature retirement, the negotiations were going on between Indian Banks Association, the Workmen Union and Officers' Association and the management of various Banks, including the respondent-
bank. The negotiations between the Indian Banks
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C/LPA/299/2013 JUDGMENT
Association and the Workmen Unions and Officers' Association, culminated into a settlement dated 29th September 1993, wherein for the first time, a Pension Scheme was introduced. The respondent-Bank had published its Circular No. 122 of 1994, dated 2nd June 1994, in the matter of introduction of the Pension Scheme as per settlement dated 29th October 1993.
The petitioner has placed reliance on paragraph 2, Clause
(iii) of the Circular dated 2nd June 1994, bearing No. 122 of 1994, which reads as under :-
"2(iii) Retired employees, who were in the service of the bank on or before 31st December, 1985 and retired on or after 1st January, 1986, but before 1st November, 1993 are also entitled for monthly pension and commutation facility as from 1.11.1993, provided they apply for it on their own in the format prescribed and refund the bank Provident Fund Contribution, including interest received thereon along with simple interest of 6% per annum from the date of receipt of the said amounts till the date of refund."
It is the case of the petitioner that vide letter dated 19th May 2000, addressed to the Chairman of the respondent- bank, a request was made to consider the application dated 30th June 1994, and simultaneously, had also brought to the notice of the Chairman of the respondent- bank about the judgment of the Supreme Court, confirming the judgment passed by the Division Bench of the Karnataka High Court.
3. It cannot be said that he had prematurely retired. Though the word is mentioned as prematurely retired, we are afraid we cannot exceed to the submission made by the Page 3 of 10 C/LPA/299/2013 JUDGMENT learned counsel for the respondent that he was entitled to the pension. We are in agreement with the submission made by the appellant's counsel that the petitioner resigned from duty vide letter dated 10.09.1992.
4. We concur with this submission and therefore on this count also the learned Single Judge has committed error in allowing the petition.
5. The Pension Scheme, 1995 was framed and notified only in 1995 and yet the Pension Scheme, 1995 was made applicable also to employees who had left the services of the respondent-bank before 1995. Clauses 14 and 22 of the Pension Scheme, 1995 quoted above were not in existence when the petitioner submitted his letter dated 10th September 1992 to the Chairman and Managing Director of the bank. Hence, when the petitioner served his letter dated 10 September 1992 to the Chairman and th Managing Director of the bank, he had no knowledge of the difference between 'resignation' under Regulation 20 and 'voluntary retirement' or 'premature retirement' because as such there was no provision of any voluntary retirement or premature retirement.
6. When there was no provision of voluntary retirement or premature retirement and therefore resignation is a resignation and cannot be converted into voluntary retirement in absence of specific stipulation. Therefore Sheelkumar Jain's case cannot be made applicable in the facts of this case.
7. For the following reasons resignation from the service of Page 4 of 10 C/LPA/299/2013 JUDGMENT the petitioner would not amount to voluntary retirement as provided in Clause 29 of the Vijaya Bank (Employees) Pension Regulations, 1995:
1. Petitioner had not completed the minimum qualifying service of 20 years for Voluntary Retirement, as stipulated in Clause 29 of the Vijaya Bank (Employees') Pension Regulations, 1995;
2. Petitioner in his resignation letter dated 10 th September 1992 had given only one month's notice;
3. Resignation letter was not submitted to the Appointing Authority;
4. Resignation letter was not accepted by the Appointing Authority but was accepted by the Administrative Office i.e. Divisional Manager, Ahmedabad.
On 10th September 1992 i.e. the date on which the petitioner had tendered his resignation letter, the petitioner was governed by Vijaya Bank (Officers') Service Regulations, 1982, as amended upto 31 st March 1991. Regulation 20 of the Service Regulation reads as under:-
"20. [1] Subject to sub-regulation (3) of Regulation 16, the Bank may terminate the services of any officer by giving him three month's notice in writing or by paying him three month's emoluments in lieu thereof (2) An officer shall not leave or discontinue his service in the Bank without first ciivinci a notice in writing of his Page 5 of 10 C/LPA/299/2013 JUDGMENT intention to leave or discontinue the service or resign.
The period of notice required shall be three months and shall be submitted to the competent authority as prescribed in these regulations.
Provided that the Competent Authority may reduce the period of three months or remit the requirement of notice."
8. The Apex Court in case of M.R.Prabhakar and ors. vs. Canara Bank and ors reported in (2012) 9 SCC 671 the Court has given the difference between the resignation and retirement/voluntary retirement which reads as follows:
"14. The appellants, in our view, did not retire from the service, but resigned from the service. Appellants tried to build up a case that in the absence of a legal definition of 'voluntary retirement' or in the absence of legally prescribed consequences of 'resignation', it must be understood in the sense of voluntary relinquishment of service. It was pointed out that there can be no distinction between 'voluntary retirement' and 'resignation' and those expressions are to be understood in their ordinary literal sense.
15. We find it difficult to accept the contentions raised by the appellants. There is no ambiguity in the definition clause under Regulation 2(y) which has statutorily brought in the 'voluntarily retirement' as 'retirement'. Though the concept of 'resignation' is well known in Service Jurisprudence, the same has not been brought within the definition of 'retirement' under Regulation 2(y). Further, the words 'retired' and 'retirement' have some resemblance in their meanings, but not 'resignation'. Regulation 3(1)(a) specifically used the expression 'retirement' and the expression 'resignation' has not been incorporated either in the definition clause or in Regulation 3(1) (a). We need not labour much on this issue, since the difference between these two concepts 'resignation' and 'retirement', in the context of the same Banking Regulations 1995, came up for Page 6 of 10 C/LPA/299/2013 JUDGMENT consideration before this Court in Sanwar Mal (supra), wherein this Court has distinguished the words 'resignation' and 'retirement' and held as follows
"9. ......... The words "resignation" and "retirement" carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions "resignation" and "retirement" have been employed for different purpose and carry different meanings. The pension scheme herein is based on actuarial calculation; it is a selffinancing scheme, which does not depend upon budgetary support and consequently it constitutes a complete code by itself. The scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from service. Moreover, resignation brings about complete cessation of master and servant relationship whereas voluntary retirement maintains the relationship for the purposes of grant of retiral benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/rules framed by the bank. Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retiral benefits. ............"
(emphasis added) In the above mentioned judgment, this Court has also held that there are different yardsticks and criteria for submitting the resignation, visà - vis voluntary retirement and exceptions thereof. In that context, the scope of Regulation 22 of Regulations 1995 was also considered and the Court held as follows:
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9. ................In our view, Regulation 22 provides for disqualification of employees who have resigned from service and for those who have been dismissed or removed from service. Hence, we do not find any merit in the arguments advanced on behalf of the respondent that Regulation 22 makes an arbitrary and unreasonable classification repugnant to Article 14 of the Constitution by keeping out such class of employees. The view we have taken is supported by the judgment of this Court in the case of Reserve Bank of India v. Cecil Dennis Solomon (2004) 9 SCC 461. Before concluding we may state that Clause 22 is not in the nature of penalty as alleged. It only disentitles an employee who has resigned from service from becoming a member of the Fund. Such employees have received their retiral benefits earlier. The pension scheme, as stated above, only provides for a second retiral benefit. Hence there is no question of penalty being imposed on such employees as alleged. The pension scheme only provides for an avenue for investment to retirees. They are provided avenue to put in their savings and as a term or condition which is more in the nature of an eligibility criteria the scheme disentitles such category of employees out of it."
9. The Apex Court after considering the decision in case of Sheelkumar Jain vs. New India Assurance Co. Ltd. reported in (2011) 12 SCC 197 came to the conclusion that the decision in case of UCO Bank vs. Sanwar Mal reported in (2004) 4 SCC 412 requires reconsideration. Relevant portion of the judgement reads as thus:
"18. Learned counsel appearing for the appellants have placed heavy reliance on Sheelkumar Jain (supra) and submitted that in the light of that judgment, the decision rendered in Sanwar Mal (supra) requires reconsideration. We find it difficult to accept the contention raised by the learned counsel appearing for the appellants.Page 8 of 10
C/LPA/299/2013 JUDGMENT
19. We may point out in Sheelkumar Jain (supra) that this Court was dealing with an insurance scheme and not the pension scheme, which is applicable in the banking sector. The provisions of both the scheme and the Regulation are not pari materia. In Sheelkumar Jain case (supra), while referring to Para 5, this Court came to the conclusion that the same does not make distinction between 'resignation' and 'voluntary retirement' and it only provides that an employee who wants to leave or discontinue his service amounts to 'resignation' or 'voluntary retirement'. Whereas, Regulation 20(2) of the Canara Bank (Officers) Service Regulations 1979 applicable to banks, had specifically referred to the words 'resignation', unlike Para 5 of the Insurance Rules.
Further, it is also to be noted that, in that judgment, this Court in Para 30 held that the Court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement.
20. The appellants, when tendered their letters of resignation, were governed by the Regulations 1979. Regulation 20(2) of Regulations 1979 dealt with resignation from service and they tendered their resignation in the light of that provision. We are of the view that the appellants have failed to show any pre- existing rights in their favour either in the Statutory Settlement/Joint Note dated 29.10.1993 or under the Regulations 1995. Appellants had resigned from service prior to 1.11.1993 and, therefore, were not covered by the statutory settlement, Joint Note dated 29.10.1993 and the Regulations 1995. They could not establish any pre-existing legal, statutory or fundamental rights in their favour to claim the benefit of Regulations 1995. Consequently, the reliance placed by the appellants either on Regulation 29 or Regulation 22 in support of their contentions, cannot be accepted, since they are not covered by the scheme of pension introduced by the banks with effect from 1.11.1993."
Since the law has been settled by the Apex Court, it has Page 9 of 10 C/LPA/299/2013 JUDGMENT held that resignation and voluntary retirement are two different concepts and they cannot be equated as the learned Single Judge has relied on case of Sheelkumar Jain (supra) which has been distinguished by the Apex Court in case of M.R.Prabhakar and ors (supra) Petitioner's resignation would be treated to be a resignation only and it cannot be treated to be voluntary retirement and therefore, no relief can be granted to the petitioner for payment of pension.
10. For the aforesaid reasons, this appeal is allowed. Judgement and order dated 03.11.2012 passed in Special Civil Application No. 11135 of 2001 is set aside. Parties to bear their own costs.
(V.M.SAHAI, J.) (K.J.THAKER, J) Jyoti Page 10 of 10