Calcutta High Court (Appellete Side)
Sanjit Kumar Mukhopadhyay vs Allahabad Bank And Others on 30 January, 2009
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P No. 19716 (W) of 2005
Sanjit Kumar Mukhopadhyay
Vs.
Allahabad Bank and Others.
For the Petitioner: Mr. Amal Baran Chatterjee,
Mr. Anadi Chatterjee.
For the Respondents: Mr. Jaharlal De,
Mr. B. K. Jain.
Judgment on: 30.01.2009 S. P. Talukdar, J.: By filing the instant application under Article 226 of the Constitution, the petitioner has sought for direction upon the respondents to release the monthly/Industrial Pension in favour of the petitioner under the Pension Scheme of 1995 since May, 2001.
The facts are: -
The petitioner joined the Allahabad Bank as a clerk on 27th May, 1970. He got his promotion to the post of officer prior to July, 1979. On 16th of November, 1995, the respondents-Bank intimated all the existing employees in all its offices and branches to submit their options by 27th January, 1996. Pursuant to the said Scheme, the petitioner opted for the said monthly pension by 27th January, 1996. On 23rd December, 1996, the Regional Manager sent the options submitted by six employees including the petitioner to the Assistant General Manager (P & A), Head Office of the Bank in Calcutta. The petitioner received the memo from the Regional Manager on 17th January, 2001. The petitioner made several representations but to no avail. Being aggrieved by such inaction on the part of the respondents-Bank, the petitioner knocked the door of this court and sought for a direction upon the respondents-Bank to consider the inclusion of his name in the New Pension Scheme, 1995.
The respondents-Bank contested the case by filing an affidavit-in- opposition wherein all the material allegations made by the petitioner had been denied. What was essentially claimed by the respondents-Bank is that the writ petitioner did not exercise option within the prescribed time. It had been further claimed that the petitioner was regularly getting his Provident Fund Statements half yearly for a long period wherein the employer's contribution and employees contribution are shown to the credit of the petitioner but at no point of time the petitioner raised objection in that regard. The petitioner retired from service under Voluntary Retirement Scheme, 2000 on 30th April, 2001 and the amount of contributory Provident Fund of Rs.6, 96,830.06 and Gratuity of Rs.3, 41,423/- had been paid to him and he duly accepted the same. The present application was filed two years five months after receipt of the same.
Having regard to the allegations and counter- allegations, it appears that the crux of the controversy is whether or not the petitioner is entitled to the benefit of such Pension Scheme of 1995.
Mr. Amal Baran Chatterjee, as learned Counsel for the petitioner, submitted that it was not just and proper on the part of the respondents-Bank to ignore his claim for pension as per Scheme 1995. It was categorically submitted that the petitioner duly exercised his option for pension under Allahabad Bank Employees' Pension Regulations, 1995. Inviting attention of the court to Annexures P-2 & 3, it was submitted that the writ petitioner along with others duly exercised options within the prescribed time limit and it was the duly on the part of the Regional Head to ensure receipt of the same in the Head Office. By the correspondence dated 17th January, 2001, the Regional Manager of the Allahabad Bank brought to the notice of the Assistant General Manager (P & A), Head Office, Calcutta, that on verification, the concerned office copy of the option/offer letter for Industrial Pension submitted by persons including Sri Mukhopadhyay, which was sent by letter dated 23rd December, 1996 was not traceable. Xerox copy of the forwarding letter dated 23rd December, 1996, was, however, sent. There can be no reason for trying to read more than what meets the eyes. There is no reason to distrust the respondents-Bank's own man i.e., Regional Manager. There is no such material before the court so as to suggest that the Regional Manager made the aforesaid correspondence with the sole idea to enable the petitioner to derive something more. Nothing to indicate any collusive act. As against the emphatic and categorical stand of the writ petitioner that option was duly exercised and that was done within the prescribed time, there is only consistent denial on the part of the respondents-Bank but there too, the office of the Regional Manager as reflected from the correspondence dated 17th January, 2001, sings other tune. Though it does not really matter much, it appears that there are other correspondences made by the representative of the union and others supporting the claim of the petitioner.
It is, however, not in dispute that the petitioner opted for voluntary retirement. He had already received after retirement various amount as Contributory Provident Fund and Gratuity. Question naturally arises whether the petitioner long after four years and five months of his retirement could be permitted to raise such plea as had been done in the present writ application.
True, under Regulation 46 of Allahabad Bank Officers Service Regulation, 1979, every officer is eligible for Gratuity on retirement provided that in respect of Officer on the appointed date who have been opted for the pension envisaged in the Allahabad Bank (Employees') Pension Regulations, 1995, the supplementary pension scheme otherwise called as Allahabad Bank Employees' Pension Scheme (Old) in lieu of Gratuity may continue. The Regulation 3 applies to the employees who exercised option in writing within one hundred and twenty days from the notified date to become member of the fund. It was claimed on behalf of the respondents-Bank that on receipt of the option forms at the Bank's Head Office, a list of Pension Optees under Regulation 1995 was prepared and Bank's contribution to the existing Contributory Provident Scheme was accordingly transferred to the pension fund in respect of Pension Optees.
The dispute raised in the present application, thus, ultimately gets converted into a dispute relating to fact i.e., whether the petitioner exercised option within the specified date i.e. 27th January, 1996 or not. As against the allegation that the option form of the petitioner was sent to the Head Office along with those of a few others including the one of Sri D.K.Ghosh, it is claimed that while Sri D. K. Ghosh was given the benefit of the scheme, others, including the petitioner, were deprived of the same. This was assailed on the ground of arbitrary discrimination. The respondents-Bank, however, clearly denied the same. It seems to be the consistent stand of the respondents-Bank, as ventilated in the affidavit-in-opposition, that Sri Ghosh did not place his option in time.
Learned Counsel for the respondents-Bank submitted that there are three retirement benefits of the Bank i.e. (a) pension under Regulation 1995, Gratuity and own contribution to P.F, (b) Pension Scheme (Old) & Contributory Provident Fund and (c) Gratuity and Contributory Provident Fund. It was further submitted that only 35% of the employees exercised option for pension under Regulation, 1995.
The materials on record clearly indicate that the writ petitioner accepted his provident fund, gratuity etc, without ascertaining his claim to be entitled to the benefit of Regulation 1995.
But this court finds it difficult, if not impossible, to ignore the two correspondences being dated 17th January, 2001 and 24th May, 2003 respectively. Those two correspondences harmoniously combine so as to suggest that the writ petitioner exercised his option within the specified time period and the option form filled up by him was sent along with the same of five others. Such position as admitted by the Regional Manager and the Assistant Manager respectively go a long way to establish the claim of the petitioner. Mere fact that he had received the Provident fund and Gratuity as per the old scheme should not stand in the way. This certainly does not mean that the petitioner can derive the benefit out of both. As mentioned in the affidavit-in-reply, he sought to refund the 50% of the employer's share of the provident fund. If the said amount is refunded by the writ petitioner along with interest as was prevailing during the relevant time, there can be no reason for not taking appropriate steps and thereby, untie the knot.
Considering all such facts and circumstances and having regard to the aforesaid discussion, the present application being W.P.No.19716 (W) of 2005 is disposed of with liberty to the petitioner to submit a representation ventilating all his grievances and offering to refund 50% of the employer's share of the provident fund together with interest thereon. If such representation is filed, respondent No.2 being the Chairman & Managing Director of Allahabad Bank must, either himself or by appropriate authority, consider the same in accordance with the rules and of course, in the light of observation made hereinbefore and must take appropriate action by way of granting pension to the petitioner under the Pension Scheme, 1995. The entire process must be completed within a period of three months from the date of communication of this order and receipt of the aforesaid representation.
There is no order as to costs.
Xerox certified copy of this judgment be supplied to the parties, if applied for, as expeditiously as possible.
(S.P.Talukdar, J.)