Gujarat High Court
Jayshreeben Krishnalal Somani vs Central Bank Of India & 2 on 7 November, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10854/2003 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10854 of 2003
With
SPECIAL CIVIL APPLICATION NO. 10855 of 2003
With
SPECIAL CIVIL APPLICATION NO. 10856 of 2003
With
SPECIAL CIVIL APPLICATION NO. 10857 of 2003
With
SPECIAL CIVIL APPLICATION NO. 10860 of 2003
With
SPECIAL CIVIL APPLICATION NO. 8934 of 2013
With
SPECIAL CIVIL APPLICATION NO. 4958 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?
2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of NO the judgment ?
4 Whether this case involves a substantial question of NO law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== JAYSHREEBEN KRISHNALAL SOMANI....Petitioner(s) Versus CENTRAL BANK OF INDIA & 2....Respondent(s) Page 1 of 72 HC-NIC Page 1 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT ========================================================== Appearance:
MR ANAND B GOGIA, ADVOCATE for the Petitioner(s) No. 1 MR BB GOGIA, ADVOCATE for the Petitioner(s) No. 1 MR RB GOGIA, ADVOCATE for the Petitioner(s) No. 1 MR KIRIT J MACWAN, ADVOCATE for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 2 - 3 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 07/11/2016 COMMON CAV JUDGMENT
1. Since the issues raised in all the captioned writapplications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
2. The writapplicants before me are all former employees of the respective Nationalized Banks. The issue raised in all the writ applications is one relating to the claim to receive pension. The case of the writapplicants is that since they all had put in the minimum qualifying years of service, they are entitled to receive pension, whereas, the case of the respective banks is that the writapplicants had resigned from service and therefore, are not entitled to receive pension in accordance with the Pension Regulations.
3. The learned counsel appearing for the respective writapplicants have provided the necessary details and information as regards each of the writapplicants for the convenience of this Court.
4. So far as the Special Civil Applications Nos.10855 of 2003; 10857 of 2003 and 8934 of 2013 are concerned, the details are as under: Page 2 of 72 HC-NIC Page 2 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT SCA No. SCA No. SCA No. SCA No. 10855/2003 10855/2003 10857/2003 8934/2013 Mr. H.S. Chhapia Mr. K.I. Oza Mr. C.L. Bhimani Mr. S.M. Dave Dena Bank Dena Bank IOB Central Bank Date of Birth 06/10/50 07/06/40 03/01/44 01/12/46 Appointed on 11/03/70 15/06/1959 21/08/1968 11/10/71 Applied for 29/02/1992 19/06/1986 15/06/1989 12/10/1991 & Retirement/ 28/02/1992 Resignation Relieved on 28/05/1992 19/06/1986 15/09/1989 01/03/92 Completed service of 22 years 27 years 21 years 20 years Applied for 03/05/94 18/07/1994 15/02/1994 Pension Denied the 20/06/1996 & 23/01/2001 08/04/1995 & 02/08/1994 Pension on 26/02/1997 28/07/2000 30/03/1995 ADDITIONAL ➢ Conditio Bank had sent Frequently INFORMATION nal Resignation Required Forms Requested the
- For Benefits of for Exercising the Bank to send Retirement. Option for forms for ➢ Bank Pension pension Sent for Medical (28.07.1994) Opetion.
Examination Required for Retired Officers
5. The details as regards the Special Civil Application No.10854 of 2003 is concerned, the same are as under: 1 Name & Address Miss Jayshreeben Krishnalal Somani Parekh Building, B/h. Telegraph Office Near Jubli Garden Rajkot - 360 001 2 Date of Birth 01/10/49 3 Date of Joining Service in 25.11.1969 Bank & Designation At Central Bank of India, Rajkot Main Branch at TypistClerk 4 Date of Resignation 13.08.1993 from Central Bank of India, Rajkot Main Branch as TypistClerk 5 Notice Period Given One month Salary deducted by the Bank in lieu of Notice.
Page 3 of 72HC-NIC Page 3 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT 6 Stood Relieved from Bank 13.08.1993 as Typist - Clerk Service 7 Total No. of Years of Service 23 Years 8 Months 8 Date of Appl. For pensionary 11/07/94 Benefit 9 Date of Denial of pensionary 18.08.1994 vide Central Bank of India, Benefit Rajkot Branch Letter No.BR/PRS/94 95/440 dated18.08.1994 10 Reason for Denial of As per reason(s) given in Aexure - 'A' at pensionary Benefit Page 21 Page 27, 30 - Reply 11 Relevant Rules Regulation 3(1)(a) covers the case of petition read with Para 4.2 of Reply filed by the Bank of Page 27(30)
6. The details as regards the Special Civil Application No.10856 of 2003 is concerned, the same are as under: Name of the Date of Date of Date of Date of Years of Petitioner Appointment Resignation Option Rejection Service Hasmukh R. 06/11/54 30/09/1989 27/11/1995 34 Pavagadhi Adityakumar 25/05/1974 30/01/1995 25/06/1996 03/07/96 20 Jain Harshadri N. 05/07/54 23/05/1989 27/11/1995 34 Trivedi
7. The details as regards the Special Civil Application No.10860 of 2003 is concerned, the same are as under: Name of the Date of Date of Date of Date of Years of Petitioner Appointment Resignation Option Rejection Service Bhupatrai D. 15/05/1961 15/01/1988 18/07/1994 26/10/1994 26 Shah
8. The learned counsel appearing for the respective writapplicants vehemently submitted that the Regulation No.22 of the Pension Regulations, 1995 stipulates that the "resignation or dismissal or removal or termination of an employee from service of the Bank shall Page 4 of 72 HC-NIC Page 4 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT entail forfeiture of his entire past service and consequently, shall not qualify for pensionary benefits." It is submitted that the same is violative of Articles 14 and 16 of the Constitution of India.
9. It is submitted that the causes and effect of the resignation are totally different from the causes and effect of the dismissal, removal or termination. The resignation is entirely a voluntary act, for which an employee is not punished or penalised. The resignation becomes effective after a notice period and/or after the employer had duly accepted it. The Regulation No.22 seeks to create a parity between two unequals. In no circumstances, the resignation can be treated on par with the dismissal, removal or termination.
10. It is submitted that an employee who resigns from the service of the respondents Nationalized Banks is granted all the terminal benefits such as gratuity, provident fund, etc., in accordance with the Rules and Regulations. In such circumstances, ignoring more than 20 years of service on account of resignation for the purpose of pension is unreasonable.
11. It is submitted that the Regulation No.22 of the Pension Regulations, 1995 to the extent that it entails forfeiture of the entire past service and consequently, disentitlement to pension in case of employees, who have resigned from service of the bank deserves to be quashed and set aside.
12. On the otherhand, the learned counsel appearing for the respective banks have raised a preliminary objection as regards the maintainability of the writapplications on the ground of gross delay and laches in filing the writapplications. It is submitted that all the writ Page 5 of 72 HC-NIC Page 5 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT applicants had resigned from service years back. The writapplications have been filed almost after a period of two decades. It is submitted that on this ground alone the writapplications deserve to be rejected.
13. Mr. Pranav Desai, the learned counsel appearing for the State Bank of India in the Special Civil Application No.10856 of 2003 in his written submissions has stated as under:
2. So far as petitioner no.1 is concerned, he joined services on 6.11.1954 and had resigned on medical grounds with benefit of compassionate appointment to one of his dependents. He was informed by letter dated 27.11.1995 that he was not eligible for pension as per the provisions of the Pension Scheme. His case was further rejected vide letter dated 24.6.2002 in which reference is made to the letter of the Indian Banks Association dated 4.10.2001, wherein it was specifically verified that employees who retired on medical grounds with simultaneous benefits of appointment on compassionate grounds to one of his dependents under the bank's specific scheme formed a separate class and thus cannot be extended the benefit of exercising option for pension. All these letters are annexed with the affidavit in reply.
3. So far as petitioner no.2 is concerned, he joined on 28.5.1974 and resigned on 31.1.1995. He also resigned on medical grounds with benefits of compassionate appointments to one of its appointments and therefore was not eligible for pension as per the scheme. He was informed by letter dated 3.7.1996. His case was further rejected by letter dated 30.5.2002, wherein reference was made to Govt. Of India letter dated 19.2.2002 which specifically states that under no circumstances the request for fresh option for pension can be considered except in special circumstances.
4. So far as petitioner no.3 is concerned he joined services on 5.7.1954 and resigned on 31.5.1989. He also resigned on medical ground with benefit of appointment of his son on compassionate ground and therefore was not eligible for pension as per the provisions of the pension scheme. He was informed by letter dated 27.11.1995 that he was not eligible. In view of the letter of the Indian Banks Association dated 4.10.2001 and Govt. of India letter dated 30.5.2002.
5. So far as the reference is made by the petitioners to Annexure 'C' Indian Banks Association notice dated 20.3.1994 it does not pertain to the employees who resigned under banks specific scheme Page 6 of 72 HC-NIC Page 6 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT which is the case of all the present petitioners.
Petitioners have resigned under respondent bank's specific scheme of resignation on medical grounds with benefit of appointment of dependents on compassionate ground. Therefore, the said notice dated 20.3.1994 is not applicable to the petitioner.
6. As per regulation no.22 of the Pension Regulations, 1995 which has been framed pursuant to bipartite settloement which has been made effective from 1.1.1986 i.e. all the bank employees who were in service of the bank on the 1st day of January, 1986 and have retired thereafter are made eligible provided they opt for the scheme and refund the entire amount of the banks contribution to provident fund including interest accrued thereon together with further simple interest @6%. The said regulation restrict the class of employees to whom it shall apply. Regulation no.22 prescribes as under: "22(1) resignation or dismissal or removal or termination of an employee from the service of the bank including that of an employee deemed to have voluntarily retired from the bank service in terms of the provisions for voluntary cessation of employment contained in bipartite settlement shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits.
In view of the above all the three petitioners admittedly resigned on 30.09.1989, 31.1.1995 and 23.5.1989 on medical grounds with benefit of compassionate appointments to one of their dependents under banks specific schemes are not qualified for any pensionary benefit under the pension scheme and also in view of the regulation 22 above.
7. Further, as per regulation 29 of the pension regulations, the benefit of pension or family pension or for employees who have voluntarily retired in accordance with the provisions of the pension scheme and not in case of the employees who have resigned. In the case of the petitioners there is a cessation from service on medical ground with benefit of compassionate appointment and the same has been treated as resignation only and not voluntary retirement and thus they are not eligible for pension. The petitioners had no right to pension either on the date when they entered the service or on the date on which they resigned. The petitioners have resigned under the special scheme. Resignation and Voluntary Retirement have different connotation in service jurisprudence. Once petitioners received terminal benefits due to resignation as well as compassionate appointments given to their dependents this being a special scheme now petitioners cannot claim that they resignation be treated as voluntary retirement.
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14. Mr. Varun K. Patel, the learned counsel appearing for the Dena Bank, Indian Overseas Bank and Union Bank of India in his written submissions has stated as under: (1) With respect to (2014) 16 SCC 260 - Shashikala Devi V/s. Central Bank of India & Ors. It is submitted that the present cases are covered by the decision of Hon'ble Apex Court in case of M.R. Prabhakar Vs. Canara Bank (supra) and not by the decision of Shashikala Devi Vs. Central Bank (supra) as
(a) The pension regulations came into force from the date of publication being 2991995 and it covered all employees who were in service on 1111993 and continued in service as on the date of notification as also those who were in service as on 1111993 but had retired/died before date of notification. The date of resignation of employee in case of Shashikala Devi (supra) was 19102007 (i.e. after the pension regulations came into force) whereas the date of resignation of all employees in case of M.R. Prabhakar & Ors. (supra) was prior to 2991995 and/or 1111993. In the present cases, as stated hereinabove, all petitioners had resigned prior to 2991995 or 1111993, which is identical to the facts of M.R. Prabhakar's case.
(b) Prior to 2991995 (i.e. date of enforcement of pension regulations), the employees of the bank were entitle to avail voluntary retirement in terms of Regulation 19 of The Bank (Officers) Service Regulations, which provides for at least three month's prior notice and condition of completing 30 years of service or attaining 55 years of age at the time of seeking voluntary retirement. In the present case, admittedly, the petitioner did not completed 30 years of service with the bank nor had reached the age of 55 years at the time of tendering their resignation nor had given three month's prior notice. Thus, the petitioners were not eligible to avail voluntary retirement in terms of Regulation 19. Further, it is clearly evident that they had sole intention to resigning from the services of the bank as per the provisions of regulation 20(2) of the said service regulations of the bank and not for seeking voluntary retirement in terms of Regulation 19.
(c) The Hon'ble Apex Court in case of Shashikala Devi's case has examined the issue as to whether the letter of employee was a letter of resignation or it would as well be treated as letter seeking voluntary retirement. The Hon'ble Apex Court after detailed scrutiny came to the conclusion that in the facts and circumstances of the case, the real intention of employee was to avail voluntary retirement for which he was otherwise eligible as per regulation 22 of the Pension Regulations, which was in force as on date of his letter of resignation (Paragraph 8, 9, 16.1, 16.2, 17 & 18 of Shashikala Devi's Page 8 of 72 HC-NIC Page 8 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT case). However, in the present cases as stated herein above, it is a clear case of resignation. There is no averment in the petition to the effect that though the employees had resigned, the real intention of the employees was to avail voluntary retirement. In fact, as stated hereinabove, at the time of tendering resignation, the petitioners were not qualified to avail voluntary retirement under the prevailing provision for voluntary retirement i.e. Regulation 19 of service regulations. Therefore, there was no possibility that intention of the petitioners was to avail voluntary retirement instead of resignation at the time of tendering their resignation. Thus, only possibility in the facts and circumstances of the present cases was that the employees had resigned from the service of the bank and their intention too was to resign from the service of the bank.
(d) The Hon'ble Apex Court in the case of Shashikala Devi's case has not referred to the decision of M.R. Prabhakar's case.
(2) The main challenge in the petition is against the Regulation 22 of the pension regulations, which is no more res integra in view of the decisions of Hon'ble Apex Court in cases of UCO Bank (supra) and M.R. Prabhakar's case (supra).
(3) In paragraph 17 of the petition, the petitioners have referred the identical case being SCA No.13418/2000 filed by Bank of India Retired Officers' Association which was admitted by this Hon'ble Court earlier on 27122000. It is submitted that this Hon'ble Court by order dated 23.8.2010 has dismissed the said identical petition on the ground of delay and laches. In the present case, the above mentioned petitions were filed with more gross delay and laches, the same therefore deserve to be dismissed only on the identical ground of delay and laches.
15. The learned counsel appearing for the respective banks submitted that no case worth the name is made out by any of the writapplicants for the pensionary benefits. It is submitted that the issue is more or less squarely covered by a catena of decisions of the Supreme Court. Reliance is placed on the following decisions.
(1) (2011) 12 SCC 197 Sheelkumar Jain Vs. New India Assurance Company Limited & Ors (2) AIR 2015 SC 2434 Shashikala Devi Vs. Central Bank of India & Ors.
Page 9 of 72HC-NIC Page 9 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT (3) (2012) 9 SCC 671 M.R. Prabhakar & Ors. Vs. Canara Bank & Ors.
(4) (2001) 9 SCC 318 Bank of India Vs. Indu Rajagopalan & Ors.
(5) Civil Appeal No.10251 of 2014 decided on 12/10/2015 by the Division Bench of the Supreme Court.
Asger Ibrahim Amin Vs. Life Insurance Corporation of India (6) Letters Patent Appeal No.299 of 2013; decided by the Division Bench of this Court on 08/05/2014.
Vijaya Bank Vs. Chandrakant Devjibhai Patel (7) Letters Patent Appeal (Stamp) No.536 of 2004; decided by the Division Bench of this Court on 17/10/2005.
Kamlesh Natwarlal Bhatt Vs. Union Bank of India & Ors.
(8) (2004) 4 SCC 412 UCO Bank And Ors. Vs. Sanwar Mal (9) (2004) 9 SCC 461 Reserve Bank of India And Anr. Vs. Cecil Dennis Solomon & Anr.
16. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writapplicants are entitled to the pensionary benefits having resigned from their service with the respective banks.
17. Since a preliminary objection has been raised on behalf the banks as regards the maintainability of these writapplications on the ground of gross and inordinate delay in approaching this Court, I deem it proper to deal with the same first.
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18. In the case of Union of India & Ors. Vs. Tarsem Singh reported in (2008) 8 SCC 648, the Supreme Court considered the question whether the High Court was justified in directing payment of arrears towards the pension for a period of 16 years. While considering the said question the Supreme Court explained the principles underlying continuing wrongs and recurring/ successive wrongs which are normally applied to service law disputes. The observation of the Supreme Court as contained in Paragraphs4 and 5 are relevant. The same are elicited as under:
4. The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. A `continuing wrong' refers to a single wrongful act which causes a continuing injury.`Recurring/successive wrongs' are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna S.P. Waghmare vs. Shree Dhyaneshwar Maharaj Sansthan [AIR 1959 SC 798], explained the concept of continuing wrong (in the context of section 23 of Limitation Act, 1908 corresponding to section 22 of Limitation Act, 1963) :
"It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury."
In M. R. Gupta vs. Union of India [1995 (5) SCC 628], the appellant approached the High Court in 1989 with a grievance in regard to his initial pay fixation with effect from 1.8.1978. The claim was rejected as it was raised after 11 years. This Court applied the principles of continuing wrong and recurring wrongs and reversed the decision. This Court held :
"The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every Page 11 of 72 HC-NIC Page 11 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc., would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation, the application cannot be treated as time barred........."
In Shiv Dass vs. Union of India 2007 (9) SCC 274, this Court held:
"The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition.......... If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years."
5. To summarize, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third Page 12 of 72 HC-NIC Page 12 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.
19. I am conscious of the wellsettled principle that delay defeats equity. However, the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is a delay, the Court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question of delay is one of discretion of the court to follow from case to case. There is no lower limit and there is no upper limit. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. (See Ramchandra Shankar Deodhar and others v. The State of Maharashtra and others, reported in AIR 1974 SC 259)
20. I am dealing with a very important issue as regards the claim of pensionary benefits. I am of the view that only on the ground of delay and laches, the writapplications should not be rejected.
21. In the aforesaid context, I may refer to a pronouncement of the Supreme Court in the case of Tukaram Kana Joshi and others v. M.I.D.C. and others, reported in AIR 2013 SC 565. His Lordship Dr.B.S.Chauhan, J. reiterated the position of law on the issue of delay. What was assailed before the Supreme Court was the judgment and Page 13 of 72 HC-NIC Page 13 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT order passed by the High Court of Bombay by way of which the High Court had rejected the claim of the appellants for compensation due to them for the land taken by the respondent authorities, without resorting to any procedure prescribed by law. It was contended before the Court that the delay and laches on the part of the appellants had extinguished the right to put forth a claim. In such circumstances, His Lordship made the following observations in paragraphs 10, 11 and 12, which, in my opinion, are very apt and helps the writapplicants:
"10. The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause of action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional imitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.
11. The question of condonation of delay is one of the discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable. (Vide: P.S.Sadasivaswamy v. State of T.N. AIR 1974 SC 2271; State of M.P. and Ors. v. Nandlal Jaiswal and Ors., AIR 1987 SC 251; and Tridip Kumar Dingal and Ors. v. State of West Bengal and Ors., (2009) 1 SCC 768: (AIR 2008 SC (Suppl) 824);) Page 14 of 72 HC-NIC Page 14 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT
12. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a nondeliberate delay. The court should not harm innocent parties if their rights have infact emerged, by delay on the part of the petitioners. (Vide:Durga Prasad v. Chief Controller of Imports and Exports and Ors. AIR 1970 SC 769; Collector, Land Acquisition, Anantnag and Anr. V. Mst. Katiji and Ors., AIR 1987 SC 1353; Delhi Rohtas Light Railway Company Ltd. v. District Board, Bhojpur and Ors., AIR 1993 SC 802: (1992 AIR SCW 3181); Dayal Singh and Ors. v. Union of India and Ors. AIR 2003 SC 1140: (2003 AIR SCW 685); and Shankara Coop. Housing Society Ltd. v. M.Prabhakar and Ors. AIR 2011 SC 2161 : (2011 AIR SCW 3033))"
22. Applying the aforesaid proposition of law laid down by the Supreme Court, I hold that the preliminary objection raised on behalf of the banks as regards the delay and laches deserves to be overruled and is accordingly overruled.
23. I propose to examine the issue raised on behalf of the writ applicants on merits.
24. Let me first look into the relevant regulations:
1. Dena Bank (Employees') Pension Regulations, 1995, Indian Overseas Bank (Employees') Regulations, 1995 Union Bank of India (Employees') Regulations, 1995 Regulation2(k): "date of retirement" means the last date of the month in which an employee attains the age of superannuation or the date on which he is retired by the Bank or the date on which the Page 15 of 72 HC-NIC Page 15 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT employee voluntarily retires; or the date on which the officer is deemed to have retired;
Regulation2(l): "deemed to have retired" means cessation from service of the Bank on appointment by Central Government as a wholetime Director or Managing Director or Chairman in the Bank or in any other Bank specified in column 2 of the FIRST SCHEDULE of the Act or Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or in any public financial institution or State Bank of India established under State Bank of India Act, 1955 (23 of 1955);
Regulation2(y): "retirement" means cessation from Bank's service
-
(a) On attaining the age of superannuation specified in Service Regulations or 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;
Regulation(za): "service regulations" means DENA BANK (Officers') Service Regulations, 1979 made under section 19 of the Act;
Regulation3: Application - These regulations shall apply to employees who
(i) (a) were in the service of the Bank on or after 1st day of January, 1986 but had retired before the 1st day of November, 1993; and
(b) exercise an option in writing within one hundred and twenty days from the notified date to become member of the Fund; and
(c) refund within sixty days after expiry of the said period of one hundred and twenty days specified in clause (b) the entire amount of the Bank's contribution to the Provident Fund including interest accrued thereon together with a further simple interest at the rate of six percent per annum on the said amount from the date of settlement of the Provident Fund account till the date of refund of the aforesaid amount to the Bank; or (2) (a) have retired on or after the 1st day of November, 1993 but before the notified date; and
(b) exercise an option in writing within one hundred and twenty days from the notified date to become member of the Fund; and Page 16 of 72 HC-NIC Page 16 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT
(c) refund within sixty days after the expiry of the said period of one hundred and twenty days specified in clause (b) the entire amount of the Bank's contribution to the Provident Fund and interest accrued thereon together with a further simple interest at rate of six per cent per annum on the said amount from the date of settlement of the Provident Fund account till the date of refund of the aforesaid amount to the Bank; or (3) (a) are in the service of the Bank before the notified date and continue to be in the service of the Bank on or after the notified date; and
(b) exercise an option in writing within one hundred and twenty days from the notified date to become member of the Fund; and
(c) authorise the trust of the Provident Fund of the Bank alongwith the interest accrued thereon to the credit of the Fund constituted for the purpose under regulation 5; or (4) join the service of the Bank on or after the notified date; or (5) were in the service of the Bank during any time on or after the 1st day of November. 1993 and had died after retirement but before the notified date, their family shall be entitled for the amount of pension payable to them from the date on which they would have been entitled to pension under these regulations, had they been alive till the date on which they died, if the family of the deceased
(a) exercise an option in writing within one hundred and twenty days from the notified date to become member of the Fund; and
(b) refund within sixty days after the expiry of the said period of one hundred and twenty days specified in clause (a) above the entire amount of the Bank's contribution to the Provident Fund and interest accrued thereon together with a further simple interest at the rate of six per cent per annum from the date of settlement of the Provident Fund account till the date of refund of the aforesaid amount to the Bank; or (6) joined the service of the Bank on or after the 1st day of November, 1993 but who have died while in the service of the Bank before the notified date, their family shall be entitled to the family pension under these regulations;
Provided that the family of such a deceased employee refunds within one hundred and eighty days from the notified date the Page 17 of 72 HC-NIC Page 17 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT entire amount of the Bank's contribution to the Provident Fund, if any, and interest accrued thereon together with further simple interest at the rate of six per cent per annum from the date of settlement of the Provident Fund account till the date of refund of the aforesaid amount to the Bank;
Provided further that the family of such a deceased employee shall apply in writing for grant of family pension; or (7) were in the service of the Bank during any time on or after the 1st day of January, 1986 and had died while in service on or before the 31st day of October, 1993 or had retired on or before the 31st day of October, 1993 but died before the notified date in which case their family shall be entitled to the pension or the family pension as the case may be under these regulations, if the family of the deceased
(a) exercise an option in writing within one hundred and twenty days from the notified date to become member of the Fund; and
(b) refund within sixty days of the expiry of the said period of one hundred and twenty days specified in clause (a) above the entire amount of the Bank's contribution to the Provident Fund and interest accrued thereon together with a further simple interest at the rate of six per cent. per annum from the date of settlement of the Provident Fund account till the date of refund of the aforesaid amount to the Bank; or (8) joined the service of the Bank on or before the 31st day of October, 1993 and who died while in service on or after the 1st day of November, 1993 but before the notified date in which case their families shall be entitled to family pension under these regulations if the family of the deceased employee -
(a) exercise an option in writing within one hundred and twenty days from the notified date to become member of the Fund; and
(b) refund within sixty days of the expiry of the said period of one hundred and twenty days specified in clause (a) above the entire amount of the Bank's contribution to the Provident Fund, including interest accrued thereon together with a further simple interest at the rate of six per cent. per annum from the date of settlement of the Provident Fund account of the employee till the date of refund of the aforesaid amount to the Bank;
(9) Notwithstanding anything contained in subregulations (1), (2), (3), (5) and (6) an option exercised before the notified date by an employee or the family of a deceased employee in pursuance of the settlement shall be deemed to be an option for the purpose Page 18 of 72 HC-NIC Page 18 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT of this Chapter if such an employee or the family of deceased employee refund within sixty days from the notified date, the amount of the Bank's contribution to the Provident Fund including interest accrued thereon together with a further simple interest in accordance with the provisions of this Chapter and in case employer's contribution of Provident Fund has not been received from Provident Fund Trush has authorised or authorises within sixty days from the notified date of trustees of the Provident Fund of the Bank to transfer the entire contributions of the Bank to the Provident Fund including interest accrued thereon in accordance with the provisions of this Chapter to the credit of the Fund constituted for this purpose under regulation 5.
Regulation14: 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 the date on which he is deemed to have retired shall qualify for pension.
Regulation22 Forfeiture of service.
(i) Resignation 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 pensionary benefits:
(2) An interruption in the service of a Bank employee entails forfeiture of his past service, except in the following cases, namely:
(a) authorized leave of absence;
(b) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the bank employee dies or is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension;
(c) transfer to nonqualifying service in an establishment under the control of the Government or Bank if such transfer has been ordered by a competent authority in the public interest;
(d) joining time while on transfer from one post to another.
(3) Notwithstanding anything contained in subregulation (2), the appointing authority may, by order, commute retrospectively the periods of absence without leave as extraordinary leave.
(4) (a) In the absence of a specific indication to the contrary in the service record, an interruption, between two spells of service rendered by a bank employee shall be treated as automatically condoned and the preinterruption service treated as qualifying Page 19 of 72 HC-NIC Page 19 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT service;
(b) Nothing in clause (a) shall apply to interruption caused by resignation, dismissal or removal from service or for participation in a strike;
Provided that before making an entry in the service record of the Bank employee regarding forfeiture of past service because of his participation in strike, an opportunity of representation may be given to such bank employees."
Regulation29: Pension on voluntary Retirement (i) 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 appointing authority, retire from service;
Provided that this subregulation 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 section 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 subregulations 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 subregulation (1) may make a request in writing to the appointing authority to accept notice or voluntary retirement of less than three months giving reasons therefore;
(b) On receipt of a request under clause (a), the appointing Page 20 of 72 HC-NIC Page 20 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT authority may, subject to the provisions of subregulation (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 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 thirtythree 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, not exceeding five years in his qualifying service, shall not entitle him to any notional fixation of pay for the purpose of calculating his pension.
2. Dena/ IOB /UBI Bank (Officers') Service Regulations, 1979 Regulation19 Age of Retirement: (1) The age of retirement of an Officer employee shall be as determined by the Board in accordance with the guidelines issued by the Government from time to time.
Provided that the Bank may, at its discretion on review by the Special Committee/ Special Committees as provided hereinafter in Sub Regulation (2) retire, if it is of the opinion that it is in the public interest, an Officer employee on or at any time after the completion of 55 years of age or on or at any time after the completion of 30 years of total service as an Officer employee or otherwise, whichever is earlier.
Provided further that before retiring an Officer employee, at least three months' notice in writing or an amount equivalent to three Page 21 of 72 HC-NIC Page 21 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT months' substantive salary/pay and allowances, shall be given to such Officer employee.
Provided also that nothing in the Regulation shall be deemed to preclude an Officer employee from retiring earlier pursuant to the option exercised by him in accordance with the rules in the Bank.
Explanation: An Officer employee will retire on the last day of the month in which he completes his age of retirement.
Provided that an Officer employee whose date of birth is on the first day of a month shall retire from service on the afternoon of the last day of preceding month on attaining the age of retirement.
(2) The Bank shall constitute a Special Committee/ Special Committees consisting of not less than three members, to review, whether an Officer employee should be retired in accordance with the first proviso to this regulation. Such Committee/ Committees shall, from time to time, review the case of each Officer employee, and no order of retirement shall be made unless the Special Committee/ Special Committees recommends in writing to the Competent Authority the retirement of the Officer employee.
Regulation20 Termination of Service: (2) An Officer shall not leave or discontinue his service in the Bank without first giving a notice in writing of his intention to leave or discontinue his service or resign. The period of notice required shall be 3 months and shall be submitted to the Competent Authority as prescribed in these regulations.
Provided further that the Competent Authority may reduce the period of three months or remit the requirement of notice.
25. Let me now look into the decisions of the Supreme Court on the subject.
26. In the case of UCO Bank (Supra), the Supreme Court explained the distinction between the "resignation" and "retirement". The observation of the Supreme Court as contained in Paragraph4 to 9 are as under:
4. Now coming to the said regulations, it may be stated that regulations 2(j) defines "contribution" to mean any sum credited by the bank on behalf of the employee to the Pension Fund. Under clause Page 22 of 72 HC-NIC Page 22 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT
(k) of regulation (2), the "date of retirement" has been defined to mean the last date of the month in which an employee tains the age of superannuation or the date on which he stood retired by the bank or the date on which the employee voluntarily retires or the date on which the officer is deemed to have retired. Regulation 2(q) defines the word "Fund" to mean UCO Bank (Employees) Pension Fund constituted under regulation 5. Regulation 2(s) defines "pay" to include the basic pay and all allowances counted for the purposes of contribution to the provident fund and for payment of dearness allowance, in relation to an employee who has either retired or died on or after 1.1.1986 but before 1.11.1993. Regulation 3(1) inter alia states that the said regulations shall apply to employees who were in service of the bank on or after 1.1.1986 but who retired prior to 1.11.1993 and who exercised option to join the pension scheme within 120 days from the notified date i.e. 29.9.1995. Suffice it to state that the entire regulation 3 refers to retirees only and not to those who have resigned or dismissed/removed from the bank. Regulation 5 deals with the constitution of a pension fund. It states that the bank shall constitute a Fund under an irrevocable trust within the specified period to provide for payment of pension/family pension in accordance with regulations. It further provides that the bank shall be a contributor to the said fund to ensure that the trustees make due payments to the beneficiaries under these regulations. A bare reading of regulation 5 indicates that the fund will be managed by the trustees and the beneficiaries are the employees covered by the regulations. Regulation 7 inter alia states that on constitution of the said fund, the Provident Fund Trust shall transfer to the pension fund the accumulated balance of the contribution of the bank to the Provident Fund along with the interest accrued thereon up to the date of transfer. Regulation 7 deals with composition of the pension fund. It states that pension shall consist of the contribution by the bank at the rate of 10% per month of the pay of the employee; the accumulated contributions of the bank to the Provident Fund along" with interest accrued up to the date of transfer; the amount consist ing of contributions of the bank along with interest refunded by the employees who retired before the notified date but who opt for pension in accordance with the regulations; the investment in annuities / securities purchased out of the moneys of the Fund; annual contribution by the bank and income from investments. Regulation 7, therefore, indicates that the scheme is selffinancing scheme to be run on the basis of contributions from the employees and the bank. It further shows that it is a funded scheme, which is not dependent upon budgetary support. Regulation 14 inter alia states inter alia that an employee who has rendered a minimum of 10years of service in the bank on the date of his retirement shall qualify for pension. Regulation 22 deals with forfeiture of service and it reads as follows :
Page 23 of 72HC-NIC Page 23 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT "Forfeiture of service. (1) Resignation 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 pensionary benefits: (2) An interruption in the service of a Bank employee entails forfeiture of his past service, except in the following cases, namely : (a) authorized leave of absence; (b) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the bank employee dies or is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension; (c) transfer to nonqualifying service in an establishment under the control of the Government or Bank if such transfer has been ordered by a competent authority in the public interest; (d) joining time while on transfer from one post to another. (3) Notwithstanding anything contained in subregulation (2), the appointing authority may, by order, commute retrospectively the periods of absence without leave as extraordinary leave. (4) (a) In the absence of a specific indication to the contrary in the service record, an interruption, between two spells of service rendered by a bank employee shall be treated as automatically condoned and the preinterruption service treated as qualifying service;
(b) Nothing in clause (a) shall apply to interruption caused by resignation, dismissal or removal from service or for participation in a strike; Provided that before making an entry in the service record of the Bank employee regarding forfeiture of past service because of his participation in strike, an opportunity of representation may be given to such bank employees."
5. Chapter V refers to Classes of pension and it covers superannuation pension; pension on voluntary retirement; invalid pension; compassionate allowance, premature retirement pension and compulsory retirement pension. Regulation 34 which also falls within chapter V deals with payment of pension/family pension in respect of employees who retired or died between 1.1.1986 to 31.10.1993. It states that such retirees shall be eligible for pension from 1.11.1993. Further, different formulas are laid down for computation of pension having corelationship with the classes of pension. Accordingly, computation of pension on voluntary retirement is different from computation of pension in the case of invalid pension or premature retirement pension or compulsory retirement pension.
6. To sum up, the pension scheme embodied in the regulation is a selfsupporting scheme. It is a code by itself. The bank is a contributor to the pension fund. The bank ensures availability of funds with the trustees to make due payments to the beneficiaries under the regulations. The beneficiaries are employees covered by the regulation
3. It is in this light that one has to construe regulation 22 quoted above. Regulation 22 deals with forfeiture of service. Regulation 22(1) states that resignation, dismissal, 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 pensionary Page 24 of 72 HC-NIC Page 24 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT benefits. In other words, the pension scheme disqualifies such dismissed employees and employees who have resigned from membership of the fund. The reason is not far to seek. In a selffinancing scheme, a separate fund is earmarked as the scheme is not based on budgetary support. It is essentially based on adequate contributions from the members of the fund. It is for this reason that under regulation 11, every bank is required to cause an investigation to be made by an actuary into the financial condition of the fund from time to time and depending on the deficits, the bank is required to make annual contributions to the fund. Regulation 12 deals with investment of the fund whereas regulation 13 deals with payment out of the fund. In the case of retirement, voluntary or on superannuation, there is a nexus between retirement and retiral benefits under the provident fund rules. Retirement is allowed only on completion of qualifying service which is not there in the case of resignation. When such a retire opts for self financing pension scheme, he brings in accumulated contribution earned by him after completion qualifying number of years of service under provident fund rules whereas a person who resigns may not have adequate credit balance to his provident fund account (i.e. banks contribution) and, therefore, the regulation 3 does not cover employees who have resigned. Similarly, in the case of a dismissed employee, there may be forfeiture of his retiral benefits and consequently the framers of the scheme have kept out the retirees as well as dismissed employees vide regulation 22. Further, the pension payable to the beneficiaries under the scheme would depend on income accruing on investments and unless there is adequate corpus, the scheme may not be workable and, therefore, clause 22 prescribes a disqualification to dismissed employees and employees who have resigned. Lastly, as stated above, the scheme contemplated pension as the second retiral benefit in lieu of employers' contribution to contributory provident fund. Therefore, the said scheme was not a continuation of the earlier scheme of provident fund. As a new scheme, it was entitled to keep out dismissed employees and employees who have resigned.
7. In the light of our above analysis of the scheme, we now proceed to deal with the arguments advanced by both the sides. It was inter alia urged on behalf of the appellant bank that under regulation 22, category of employees who have resigned from the service and who have been dismissed or removed from the service are not entitled to pension, that the pension scheme constituted a separate fund to be regulated on selffinancing principles, that prior to the introduction of the pension scheme, there was in existence a provident fund scheme and the present scheme conferred a second retiral benefit to certain classes of employees who were entitled to become the members/ beneficiaries of the fund, that the membership of the fund was not dependent on the qualifying service under the pension scheme, that looking to the financial implications, the scheme framed mainly Page 25 of 72 HC-NIC Page 25 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT covered retirees because retirement presupposed larger number of years of service, that in the case of resignation, an employee can resign on the next day of his appointment whereas in the case of retirement, the employee is required to put in certain number of years of service and consequently, the scheme was a separate code by itself, that the High Court has committed manifest error in decreeing the suit of the respondent inasmuch as it has not considered the relevant factors contemplated by the said scheme and that the pension scheme was introduced in terms of the settlement dated 29.10.1993 between the IBA and All India Bank Employees' Association, which settlement also categorically rules out employees who have resigned or who have been dismissed/removed from the service.
8. Shri R.P. Bhatt, learned senior counsel appearing on behalf of the respondent in Civil Appeal No. 1506 of 2003 inter alia urged that regulation 22 to the extent it provides for forfeiture of service and disqualifying those who have resigned for pensionary benefits is an arbitrary and unreasonable classification and repugnant to Art. 14 of the Constitution, that regulation 22 was contrary to the objects of the pension scheme embodied in the regulations, that employees who have resigned after completing qualifying service contemplated by regulation 14 were entitled to opt for pension as they were in a position to bring in their contribution of retiral benefits to their credit for having worked for a minimum service of 10 years in the bank and that the respondent had worked for more than 10years after which he resigned and, therefore, be fulfilled the qualifying service contemplated by regulation 14 and consequently, he was entitled to benefit of the pension scheme.
9. We find merit in these appeals. 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 Page 26 of 72 HC-NIC Page 26 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT 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. Further, there are different yardsticks and criteria for submitting resignation visavis voluntary retirement and acceptance thereof. Since the pension regulations disqualify an employee, who has resigned, from claiming pension the respondent cannot claim membership of the fund. 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 Art. 14 of the Constitution by keeping out such class of employees. The view we have taken is supported by the Judgement of this Court in the case of Reserve Bank of India & Anr. v. Cecil Dennis Solomon & Anr. reported in [2003 (10) Scale 449]. 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.
27. In the case of Reserve Bank of India (Supra), the respondents were employees of the Reserve Bank of India. In 1988, during the operation of the Reserve Bank of India (Staff) Regulations, 1948 they tendered their resignation. They were getting the superannuation benefits under the contributory provision and gratuity schemes. Subsequently, the Reserve Bank of India Pension Regulations, 1990 framed under Section 58(2)(j) of the Reserve Bank of India Act, 1934 came into effect. Regulation 2(12) of the Pension Regulations defined "retirement" and Regulation 18 provided that on resignation, the past service would be forfeited and would not qualify for entitlement for Page 27 of 72 HC-NIC Page 27 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT pension. The Staff Regulations enabled an employee attaining the specified age to voluntarily retire after giving the requisite notice. At the instance of the respondents, the Bombay High Court held that the Pension Regulation 18 had no retrospective operation and therefore, the employer RBI was legally bound to grant pension to the respondents. The Supreme Court while allowing the appeal filed by the RBI held as under:
4. The Respondents were working in various capacities in the employer organization. The employees tendered resignation sometimes in 1988. Subsequent to their resignation, the Pension Regulations came to be operative. The said Regulation was made in exercise of powers conferred by clause (j) of subsection (2) of Section 58 of the Reserve Bank of India Act, 1934 (for short the 'Act'). The Central Board of the employerbank with the previous sanction of the Central government made the Regulations. The Reserve Bank of India Staff Regulations, 1948 (in short 'Staff Regulations') which were subsequently amended w.e.f. 7.2.1992 were in operation at the relevant time governing the service conditions. Regulation 26 of the 1948 Regulations dealt with the age of retirement. Subrule (3) thereof which has some relevance to the present disputes provides that an employee who has attained the age of 50 years may voluntarily retire after giving to the competent authority three months' notice in writing. Though several other provisions were incorporated in the Regulation w.e.f. 7.2.1992, this provision in subrule (3) continued unamended. By Pension Regulations prescriptions were made for granting pension to certain categories of employees. Regulations 2(12) and 18 thereof read as follows:
"2(12): 'Retirement' means retirement in terms of Staff Regulation 26 and other instructions issued by the Bank under settlements/awards;
18. Forfeiture of service on resignation or dismissal or termination:
Resignation or dismissal or termination of an employee from the service shall entail forfeiture of his entire past service and consequently shall not qualify for pension payment."
Some of the provisions of Staff Regulations need to be noted. They read as follows:
"Regulation 26. (Unamended prior to 7.2.1992) (1) an employee, other than an employee in Class IV shall retire at 58 Page 28 of 72 HC-NIC Page 28 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT years of age and an employee in Class IV at 60 years of age;
Provided that in the case of an employee in Class IV who has reached the age of 55 years the Bank may, in its discretion, retire him after giving two months' notice in writing if in the opinion of the competent authority his efficiency is found to have been impaired.
Provided further that the Bank may, in its discretion, retire an employee, other than an employee in Class IV, at any time after completion of 50 years of age;
Provided further in the case of an employee, other than an employee in Class IV, who has attained the age of 55 years,, his continuance in service up to the age of 58 years shall be subject to his being found suitable to be retained in service.
(2) The power conferred by the provisos to subregulation (1) shall be exercised by the Governor, with the prior approval of the Central Board in the case of officers and by the Manager, subject to such general or special instructions as may be issued by the Governor, in the case of other employees.
(3) An employee who has attained the age of 50 years may voluntarily retire after giving to the competent authority three months' notice in writing.
Regulation 26 (Amended with effect from 7.2.1992):
(1) An employee shall retire at 60 years of age but no extension shall be given to any employee beyond 60 years of age;
Provided that an employee who attains the age of superannuation on any day other than the first during a calendar month, shall retire on the last day of that month;
Provided further that in the case of an employee in Class IV who has reached the age of 55 years the Bank may, in its discretion, retire him after giving two months' notice in writing if in the opinion of the competent authority his efficiency is found to have been impaired;
Provided further that the Bank may, in its discretion, retire in public interest an employee, other than an employee in Class IV, at any time after completion of 50 years of age;
Provided further in the case of an employee in Class III and Class I, Page 29 of 72 HC-NIC Page 29 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT who has attained the age of 55 years, his continuance in service upto the age of 60 years shall be subject to his being found suitable to be retained in service.
(2) The power conferred by the provisions to subregulation (1) shall be exercised by the Governor, with the prior approval of the Central Board in the case of officers and by the Manager, subject to such general or special instructions as may be issued by the Governor, in the case of other employees.
(3) An employee who has attained the age of 50 years may voluntarily retire after giving to the competent authority three months' notice in writing.
(3A) Without prejudice to subregulation (3), an employee may voluntarily retire after giving to the competent authority three months notice in writing provided he has completed 20 years of service if he is not governed by the Reserve Bank of India Pension Regulations, 1990 and 20 years of qualifying service as defined in the Reserve Bank of India Pension Regulations, 1990, if he is governed by the Reserve Bank of India Pension Regulations, 1990.
Provided that this subRegulation shall not apply to an employee who is on deputation or study leave abroad, unless, after having been transferred or having returned to India he has resumed the charge of the post in India and served for a period of not less than one year. The requirement of this proviso may, however, be waived at the discretion of the Governor.
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 to which he is on deputation at the time of seeking voluntary retirement.
(3B) The notice of voluntary retirement given under subRegulation (3A) shall not be valid unless it is accepted by the competent authority;
Provided that where the competent authority does not communicate its decision not to accept such notice before the expiry of period specified in the notice, the retirement shall become effective from the date of expiry of such period.
(3C) The competent authority may, if so requested by the employee retiring pursuant to subRegulation (3) or (3A), waive the notice of Page 30 of 72 HC-NIC Page 30 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT voluntary retirement with respect to its full period or part thereof if the competent authority is satisfied that such waiver will not cause any administrative inconvenience.
(3D) An employee who has elected to voluntarily retire pursuant to subRegulation (3A) and has given notice shall not be entitled to withdraw the notice except with the permission of the competent authority, provided that the request for such withdrawal shall be made before the intended date of his retirement".
5. Since the respondentsemployees had tendered resignation, making them ineligible / writ applications were filed before the High Court questioning legality of Regulation 18. The High Court by the impugned judgment held that Regulation did not have any retrospective operation and, therefore, the employer was legally bound to grant pension.
8. In Reserve Bank and Another Vs. S. Jayarajan the view expressed in V.T. Khanzode and Ors. Vs. Reserve Bank of India and Anr. was reiterated that the Staff Regulations are administrative in nature. The Central Board is authorized to take such administrative decisions and Central government's approval/decision is not necessary. Therefore, if changes were to be introduced in the Staff Regulations and the Central Board takes a decision, there would not be any necessity for taking approval of the Central government. But the position is different so far as the Pension Regulations are concerned. The said Regulations were framed with the sanction of the Central government and are framed in exercise of the powers conferred by clause (i) of subsec. (2) of section 58. If the Central Board recommended for changes in the Pension Regulations, sanction of the Central government is mandatory. This aspect seems to have been lost sight by the High Court and the respondents cannot derive any advantage from the mere recommendations made by the Central Board suggesting changes to the Regulations. The Central government has specifically dealt with the recommendations and has turned them down. Unless the recommendations for the amendment are approved, they have no binding force or application to make any claim thereon. Further, the respondents who claim that they were not claiming the benefit under the Pension Regulations could not point out any other source to which their claims could be linked. The respondents employees were getting superannuation benefits accruing to them under the contributory provisions and gratuity schemes. The High Court was also in error in equating the case of resignation to voluntary retirement. The two are conceptually different in the service jurisprudence and different consequences would flow depending upon one or the other of the courses.
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9. Under Regulation 26 of the Staff Regulations, four types of retirements were contemplated as on 1st November, 1990 i.e. (a) Retirement on superannuation, (b) Compulsory retirement on invalidation, (c) Compulsory retirement and (d) Voluntary retirement. Resignation does not fit into any one of the said categories.
10. In service jurisprudence, the expressions superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time; but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the concerned employer is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary. In Punjab National Bank V/s. P.K. Mittal, on interpretation of Regulation 20(2) of the Punjab National Bank Regulations, it was held that resignation would automatically take effect from the date specified in the notice as there was no provision for any acceptance or rejection of the resignation by the employer. In Union of India V/s. Gopal Chandra Misra, it was held in the case of a judge of the High Court having regard to Article 217 of the Constitution that he has an unilateral right or privilege to resign his office and his resignation becomes effective from the date which he, of his own volition, chooses. But where there is a provision empowering the employer not to accept the resignation, on certain circumstances e.g. pendency of disciplinary proceedings, the employer can exercise the power.
11. On the contrary, as noted by this Court in Dinesh Chandra Sangma Vs. State of Assam, while the government reserves its right to compulsorily retire a government servant, even against his wish, there is a corresponding right of the government servant to voluntarily retire from service. Voluntary retirement is a condition of service created by statutory provision whereas resignation is an implied term of any employer employee relationship.
12. Looking from any angle the High Court judgment is indefensible and is set aside and the writ petitions filed by the respondents employees stand dismissed. Appeals are allowed. There shall be no Page 32 of 72 HC-NIC Page 32 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT orders as to costs.
28. In the case of M.R. Prabhakar (Supra) almost an identical issue like the one in hand was considered by the Supreme Court. The relevant observations are as under:
2. We are, in these appeals, concerned with the legality of the claim for pension in lieu of Contributory Provident Fund (for short 'CPF') of some officers of the Canara Bank who had resigned and stood relieved from their respective posts prior to 3.6.1993, i.e. prior to signing of the Statutory Settlement dated 29.10.1993 under the Industrial Disputes Act, 1947, the Joint Note dated 29.10.1993, followed by the Canara Bank Pension Regulations, 1995 (for short 'Regulations 1995'), which was notified in the Gazette of India on 29.9.1995. The learned single Judge of the High Court held {K.V. Venkatesh Vs. Syndicate Bank, WP No.21608 of 1997, order dated 20 122001 (KAR)} in favour of the appellants but the Division Bench of the High Court held {Canara Bank Vs. M.R. Prabhakar, WA No.1037 of 2002, order dated 18/11/2006 (KAR)} otherwise. Hence, these appeals.
3. We may, as already indicated, refer to the facts of the case in civil appeals arising out of SLP (C) Nos. 3098330986 of 2008. The appellants' date of appointment and their resignation are as under:
Position of the petitioner as per Date of appointment Date of causelist resignation 1 M.R. Prabhakar 27/05/1970 04/06/91 2 S. Ananda Rao 09/09/70 22/09/1990 3 N. Anand 17/12/1969 19/04/1993 4 S. K. Mehta 15/12/1965 01/05/91 5 N.V. Rangaswamy 24071968 09/01/91 6 S. Sathyanarayan 070701970 03/06/93 7 K. S. Seshadri 18021970 20071992 (since deceased) 8 K. Suresh Rao 02/05/70 30061990 9 P. Govinda Pai 03/04/68 30031988 10 K. V. Puranik 01/02/63 24071986
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 Page 33 of 72 HC-NIC Page 33 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT 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.
17. We may indicate that in Sanwar Mal (supra), the employee, who was working on Class III post, resigned from the service of UCO Bank on 25.2.1988 after giving one month's notice and also accepted his provident fund without protest. On coming into force of the Regulations 1995, Sanwar Mal opted for pension scheme. Since Sanwar Mal had resigned in the year 1988, UCO Bank declined its option for admitting him as a member of the fund. This Court, as already indicated, after referring to the various provisions of the Regulations 1995 and after examining the meaning of the expressions 'resignation' and 'retirement', held that since Regulation 22 provided for disqualification of employees who had resigned, such employees could not claim membership of the fund.
18. The 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.
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 Page 34 of 72 HC-NIC Page 34 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT resignation in the light of that provision. We are of the view that the appellants have failed to show any preexisting rights in their favour either in the Statutory Settlement/Joint Note dated 29.10.1993 or under the Regulations 1995. The 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.
29. In the case of Chandrakant Devji Patel Vs. Vijya Bank; Special Civil Court No.11135 of 2001, decided on 03/11/2012, I had the occasion to consider almost identical submissions i.e. the submissions canvassed herein on behalf of the learned counsel appearing for the respective writapplicants. This Court in the facts of the case took the view that on the date when the employee tendered his resignation, if he was otherwise entitled to voluntary retirement under the Scheme, then such an employee would be entitled to receive pension even though he could be said to have resigned from the service. However, the view expressed by this Court did not find favour with the Division Bench of this Court and the judgment of this Court was set aside vide order dated 08/05/2014 passed in the Letters Patent Appeal No.299 of 2013. The observations of the Division Bench are as under:
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 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 Page 35 of 72 HC-NIC Page 35 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT 1995 and yet the Pension Scheme, 1995 was made applicable also to employees who had left the services of the respondentbank 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 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 10th 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 subregulation (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 (sic) a notice in writing of his intention to leave Page 36 of 72 HC-NIC Page 36 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT 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 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 Page 37 of 72 HC-NIC Page 37 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT 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:
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 38 of 72
HC-NIC Page 38 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV 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 preexisting 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 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.
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30. It appears that the matter went up to the Supreme Court and the Supreme Court dismissed the Special Leave Petition vide order dated 08/09/2014.
31. Let me now look into Shashikala Devi's case (Supra). The question that fell for consideration before the Supreme Court was whether the letter sent by the late husband of the appellant was in essence a letter seeking premature retirement on medical grounds or a letter of resignation from the service of the respondentbank. The bank treated the letter of the employee as a letter of resignation from service and relieved him because the expression used in the letter was resignation. The Supreme Court considered the Central Bank of India (Employees) Pension Regulations, 1995 and held as under:
5. Grant or refusal of pension to the employees of the respondent bank is regulated by Central Bank of India (Employees) Pension Regulation, 1995. Chapter IV of the said Regulations deals with qualifying service. Regulation 14 of the Regulations appearing in that chapter postulates that 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. Regulation 22 deals with forfeiture of service and, inter alia, stipulates that resignation, dismissal, removal or termination of an employee from the service of the Bank shall entail forfeiture of his entire past service. Chapter V of the Regulations deals with Classes of Pension. While Regulation 28 envisages superannuation pension, Regulation 29 deals with pension on voluntary retirement and read as under:
"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 appointing authority retire from service".
Provided that this subregulation 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;
Page 40 of 72HC-NIC Page 40 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT 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 understanding 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 subsection 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 subregulation (1) may make a request to the appointing authority retirement of less than three months giving reasons therefor :
(b) On receipt of a request under clause (a), the appointing authority may, subject to the provisions of subregulation (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 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 thirtythree 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 not exceeding five years in his qualifying service, shall not entitle him to any notional Page 41 of 72 HC-NIC Page 41 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT fixation of pay for the purpose of calculating his pension."
6. From a reading of the above, it is evident that an employee who has completed twenty years of qualifying service is entitled to seek voluntary retirement from service of the bank provided he gives a notice of not less than three months in writing to the appointing authority in that regard. What is important is that in terms of proviso to Regulation 29(2), if the appointing authority does not refuse to grant permission for retirement before the expiry of the period specified in the said notice, the retirement becomes effective from the date of the expiry of the said period. It is also noteworthy that in terms of Regulation 29(3)(a) the appointing authority is competent to curtail the period of notice of three months in appropriate cases subject to the condition that the employee shall not apply for commutation of his pension before the expiry of the notice period.
7. In the case at hand, Mauzi Ramthe deceased employee had rendered nearly 34 years of service in the respondentbank. He was, therefore, qualified to receive pension in terms of the Regulations applicable to him. It is also evident from a reading of Regulation 29 that the deceasedemployee was entitled to seek voluntary retirement in terms of Regulation 29 for he had completed more than twenty years of service by the 8th October, 2007. As on 8th October, 2007 the deceasedemployee was entitled either to resign from service or to seek premature retirement in terms of Regulation 29 (supra). The question in that backdrop is whether letter dated 8th October, 2007 was a letter of resignation simpliciter or could as well be treated to be a letter seeking voluntary retirement. The High Court, as seen earlier, has taken the view that the letter was one of resignation that resulted in the forfeiture of past service under Regulation 22 of the Regulations. The High Court appears to have been impressed by the use of the word "resignation" in the employee s letter dated 8th October, 2007. The use of the expression "resignation", however, is not, in our opinion, conclusive. That is, in our opinion, so even when this Court has always maintained a clear distinction between "resignation" and "voluntary retirement". Whether or not a given communication is a letter of resignation simpliciter or can as well be treated to be a request for voluntary retirement will always depend upon the facts and circumstances of each case and the provisions of the Rules applicable. The distinction between the expressions "resignation" and "voluntary retirement" was elaborately discussed by this Court in UCO Bank and Ors. v. Sanwar Mal (2004) 4 SCC 412 where this Court was examining the provisions of UCO Bank (Employees ) Pension Regulations 1995 applicable to a bank employee who had resigned from service after giving an advance notice to the appointing authority. So also in Reserve Bank of India and Anr. v. CECIL Dennis Solomon and Anr. (2004) 9 SCC 461 this Court was considering the Page 42 of 72 HC-NIC Page 42 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT provisions of the Reserve Bank of India Pension Regulations, 1990 while it made a distinction between what is resignation on the one hand and voluntary retirement on the other. At the same time a long line of decisions have recognised that pension is neither a bounty nor a matter of grace but is a payment for past services rendered by the employee. Decisions of this Court in D.S. Nakara and Ors. v. Union of India (1983) 1 SCC 305, and Chairman Railway Board and Ors. v. C.R. Rangadhamaiah and Ors. (1997) 6 SCC 623, are clear pronouncements on the subject. Reference may also be made to Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd. and Ors. (1984) 3 SCC 369 where this Court observed:
"18. For centuries the courts swung in favour of the view that pension is either a bounty or a gratuitous payment for loyal service rendered depending upon the sweet will or grace of the employer not claimable as a right and therefore, no right to pension can be enforced through court. This view held the field and a suit to recover pension was held not maintainable. With the modern notions of social justice and social security, concept of pension underwent a radical change and it is now wellsettled that pension is a right and payment of it does not depend upon the discretion of the employer, nor can it be denied at the sweet will or fancy of the employer. Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330 , State of Punjab v. Iqbal Singh (1976) 2 SCC 1 and D.S. Nakara v. Union of India (1983) 1 SCC 305. If pension which is the retiral benefit as a measure of social security can be recovered through civil suit, we see no justification in treating gratuity on a different footing. Pension and gratuity in the matter of retiral benefits and for recovering the same must be put on par."
(emphasis supplied) 8 It is also well settled by several decisions of this Court that while interpreting a statute the Court ought to keep the legislative intent in mind and eschew an interpretation which tends to restrict, narrow down or defeat its beneficial provisions. In S. Appukuttan v. Thundiyil Janaki Amma and Anr. (1988) 2 SCC 372 this Court observed:
"16. After the arguments were concluded, learned counsel for the respondents have circulated a copy of the judgment of this Court in CA No. 165 of 1974 etc. K.M. Mathew v. Hamsa Haji (1987) 3 SCC 326 delivered on 2941987 wherein Section 7D of the Kerala Land Reforms Act, 1963 as amended by the Kerala Land Reforms (Amendment) Act, 1969 has been interpreted as conferring benefit thereunder only on persons whose occupation of the private forests or unsurveyed lands had a lawful origin and not on persons in unlawful occupation based on trespass or forcible and unlawful entry. We have carefully considered the judgment and find that the pronouncement therein does not in any way lend support to the contentions of the respondents herein. The scheme of Sections 7A, 7B, 7C, 7D, 8 and 9 of the Kerala Land Reforms Act, 1963 is entirely different and this position is succinctly brought out by the following passage in the Page 43 of 72 HC-NIC Page 43 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT decision referred to above. The court had summed up the scheme of the Act in the following words: (SCC p. 330, para 5): (Para 5 of AIR) On a careful scrutiny of the aforesaid provisions, it becomes abundantly clear that the intention of the legislature was to grant protection only to persons whose possession had a lawful origin in the sense that they had either bona fide believed the lands to be government s land of which they could later seek assignment or had taken the lands on lease from persons whom they bona fide believed to be competent to grant such leases or had come into possession with the intention of attorning to the lawful owners or on the basis of arrangements like varam etc. which were only in the nature of licences and fell short of a leasehold right. It was not within the contemplation of the legislature to confer the benefit of protection on persons who had wilfully trespassed upon lands belonging to others and whose occupation was unlawful in its origin. The expression "in occupation"
occurring in Section 7D must be construed as meaning "in lawful occupation".
9. Again in Vatan Mal v. Kailash Nath (1989) 3 SCC 79, this Court observed:
"9. .......The intention of the legislature to confer the benefit of Section 13A to all tenants, provided actual eviction had not taken place, could further be seen by the terms of subclause (c). Under subclause
(c) the provisions of subclauses (a) and (b) have been made applicable mutatis mutandis to all appeals or applications for revision preferred or made after the commencement of the amending Ordinance and the only stipulation contained is that the tenant preferring an appeal or an application for revision should apply to the court within a period of thirty days from the date of presentation of the memorandum of appeal or the application for revision for giving him the benefit of Section 13A....."
10. Reference may also be made to Employees State Insurance Corporation v. R.K. Swamy and Ors. (1994) 1 SCC 445 where this Court observed:
"14. There is no doubt at all that the said Act is beneficent legislation. If, therefore, it is reasonably possible so to construe the word "shop"
as to include the activity of an advertising agency within it, that construction must be preferred."
11. To the same effect is a later decision of this Court in Union of India and Anr. v. Pradeep Kumari and Ors. (1995) 2 SCC 736 where this Court declared:
"8. We may, at the outset, state that having regard to the Statement of Objects and Reasons, referred to earlier, the object underlying the enactment of Section 28A is to remove inequality in the payment of Page 44 of 72 HC-NIC Page 44 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT compensation for same or similar quality of land arising on account of inarticulate and poor people not being able to take advantage of the right of reference to the civil court under Section 18 of the Act. This is sought to be achieved by providing an opportunity to all aggrieved parties whose land is covered by the same notification to seek redetermination once any of them has obtained orders for payment of higher compensation from the reference court under Section 18 of the Act. Section 28A is, therefore, in the nature of a beneficent provision intended to remove inequality and to give relief to the inarticulate and poor people who are not able to take advantage of right of reference to the civil court under Section 18 of the Act. In relation to beneficent legislation, the law is wellsettled that while construing the provisions of such a legislation the court should adopt a construction which advances the policy of the legislation to extend the benefit rather than a construction which has the effect of curtailing the benefit conferred by it. The provisions of Section 28A should, therefore, be construed keeping in view the object underlying the said provision."
(emphasis supplied)
12. Let us now examine the true purport of the letter submitted by the deceasedemployee in the light of the above principles. Two distinct aspects stand out from the record. The first is that the deceased employee had served for more than 34 years in the bank and was, therefore, entitled to seek voluntary retirement if he chose to leave prematurely. The second aspect which is equally important is that the employee had chosen to leave the employment not because of any disciplinary or other action proposed against him or any order of transfer or posting with which he was unhappy or because any proceedings had been started that could have visited him with any civil consequence if he had continued in service, but because of his physical inability to continue in service on account of diseases with which he was stricken. This is evident from the fact that not only in the letter, but also in documents enclosed therewith the employee has laid great stress on the reasons for leaving the service prematurely. No such reasons were necessary if the employee actually intended to resign in the true sense of that term. Reasons why he was quitting were obviously meant to support his case that he was doing so under the compulsion of the circumstances. This is evident from letter dated 23rd November, 2007 from the Regional Manager which has recognised the poor health condition of the deceasedemployee and sanctioned 165 days without pay leave in his favour. It is also evident from letter dated 29th November, 2007 by which the acceptance of the request of the employee was communicated to him that the employer had taken note of his failing health, expressed the management s sympathy with him and wishing him early recovery from his illness. The letter recognises the commitment of the employee to his duties and the contribution made by him in the growth of the organisation. To that Page 45 of 72 HC-NIC Page 45 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT extent there is thus no communication gap between the employee and the employer. The employee s case, however, is that all that he intended to do was to seek premature/voluntary retirement from service. This is, accordingly to the employee, evident also from his letter dated 18th December, 2007 addressed within three weeks of the acceptance of the request by the bank. In the said letter the deceased employee, inter alia, said:
"As such, as per the said representation I requested to accept my resignation from the service. The whole reason and purpose, which I have submitted and stated through my said representation and my left over service of one and half year have forced my conscience to seek voluntary retirement from the service and not resignation from the service in its literal meaning."
13. The letter once again enclosed with it medical certificates and prescriptions in support of his request that the letter written earlier and the expression used therein may be understood in the right spirit and terminal benefits released in his favour. The refusal of the management of the bank to treat letter dated 8th October, 2007 as a request for premature retirement was conveyed to the employee on 24th June, 2008 in which the respondentbank made reference to the decision of this Court in UCO Bank s case (supra) whereby Regulation 22 of the Pension Regulations was upheld by this Court.
14. When viewed in the backdrop of the above facts, it is difficult to reject the contention urged on behalf of the appellant that what the deceasedemployee intended to do by his letter dated 8th October, 2007 was to seek voluntary retirement and not resignation from his employment. We say so in the light of several attendant circumstances. In the first place, the employee at the time of his writing the letter dated th October, 2007 was left with just about one and a half years of service. It will be too imprudent for anyone to suggest that a bank employee who has worked with such commitment as earned him the appreciation of the management would have so thoughtlessly given up the retiral benefits in the form of pension etc. which he had earned on account of his continued dedication to his job. If pension is not a bounty, but a right which the employee acquires on account of long years of sincere and good work done by him, the Court will be slow in presuming that the employee intended to waive or abandon such a valuable right without any cogent reason. At any rate there ought to be some compelling circumstance to suggest that the employee had consciously given up the right and benefit, which he had acquired so assiduously. Far from the material on record suggesting any such conscious surrender abandonment or waiver of the right to retiral benefit including pension, we find that the material placed on record clearly suggests that the employee had no source of income or sustenance except the benefit that he had earned for long years of Page 46 of 72 HC-NIC Page 46 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT service. This is evident from a reading of the letter dated 8th October, 2007 in which the employee seeks release of his retiral benefits at the earliest to enable him to undergo medical treatment that he requires. The letter, as seen earlier, lays emphasise on the fact that for his sustenance the employee is dependent entirely on such benefits. It is in that view difficult for us to attribute to the employee the intention to give up what was rightfully his in terms of retiral benefits, when such benefits were the only source not only for his survival but for his medical treatment that he so urgently required. For a waiver of a legally enforceable right earned by an employee, it is necessary that the same is clear and unequivocal, conscious and with full knowledge of the consequences. No such intention can be gathered from the facts and circumstances of the instant case. The employee s subsequent letters and communication which are placed on record cannot be said to be an afterthought. Being proximate in point of time letter dated 8th October, 2007 must be treated to be a part of the subsequent communication making the employee s intentions clear, at least for purposes of determining the true intention underlying the act of the employee.
15. It is, in our opinion, abundantly clear that the beneficial provisions of a Pension Scheme or Pension Regulations have been interpreted rather liberally so as to promote the object underlying the same rather than denying benefits due to beneficiaries under such provisions. In cases where an employee has the requisite years of qualifying service for grant of pension, and where he could under the service conditions applicable seek voluntary retirement, the benefit of pension has been allowed by treating the purported resignation to be a request for voluntary retirement. We see no compelling reasons for doing so even in the present case, which in our opinion is in essence a case of the deceased employee seeking voluntary retirement rather than resigning.
16 We may at this stage refer to a few decisions of this Court in which somewhat similar questions have been examined and answered by this Court. In Sudhir Chandra Sarkar v. Tata Iron and Steel Company Ltd. and Ors. (1984) 3 SCC 369, a permanent uncovenanted employee of the company had served for 29 years whereafter he tendered his resignation which the employer accepted unconditionally. The Company s Retiring Gratuity Rules did not provide for payment of gratuity to employees who resigned from service. This Court while reversing the view taken by the High Court held that termination of service by resignation was tantamount to retirement by resignation entitling the employee to retiral benefits. The following passage is apposite in this regard:
"7. The contention of the respondent is that the plaintiff did not retire from service but he left the service of the Company by resigning his Page 47 of 72 HC-NIC Page 47 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT post. This aspect to some extent agitated the mind of the High Court. It may be dealt with first. It is not only in dispute, but is in fact conceded that the plaintiff did render continuous service from December 31, 1929 till August 31, 1959. On exact computation, the plaintiff rendered service for 29 years and 8 months. Rule 6(a) which prescribed the eligibility criterion for payment of gratuity provides that every permanent uncovenanted employee of the Company whether paid on monthly, weekly or daily basis will be eligible for retiring gratuity which shall be equal to half a month s salary or wages for every completed year of continuous service subject to a maximum of 20 years salary or wages in all provided that when an employee dies, retires or is discharged under Rule 11(2)(ii) and (iii) before he has served the Company for a continuous period of 15 years he shall be paid a gratuity at the rate therein mentioned. The expression "retirement" has been defined in Rule 1(g) to mean "the termination of service by reason of any cause other than removal by discharge due to misconduct". It is admitted that the plaintiff was a permanent uncovenanted employee of the Company paid on monthly basis and he rendered service for over 29 years and his service came to an end by reason of his tendering resignation which was unconditionally accepted. It is not suggested that he was removed by discharge due to misconduct. Unquestionably, therefore, the plaintiff retired from service because by the letter Annexure B dated August 26, 1959, the resignation tendered by the plaintiff as per his letter dated July 27, 1959 was accepted and he was released from his service with effect from September 1, 1959. The termination of service was thus on account of resignation of the plaintiff being accepted by the respondent. The plaintiff has, within the meaning of the expression, thus retired from service of the respondent and he is qualified for payment of gratuity in terms of Rule 6."
17. In Union of India and Ors. v. Lt. Col. P.S. Bhargava (1997) 2 SCC 28, this Court was dealing with a case where the respondent was denied pension on the ground that he had voluntarily retired from service. Dismissing the appeal filed by the Union of India, this Court held that Regulation 16 of the Pension Regulations applicable to the respondent did not deal with voluntary resignations and could not, therefore, be pressed into service to deny pension to the respondent. This Court said:
"19. Regulation 16 does not cover a case of voluntary resignation. Regulation 16(b) does refer to a case where an officer who has to his credit the minimum period of qualifying service being called upon to resign whose pension can be reduced. Had the Regulations intended to take away the right of a person to the terminal benefits on his voluntary resigning, then a specific provision similar to Regulation 16(b) would have been incorporated in the Regulations but this has not been done. Once an officer has to his credit the minimum period of qualifying service, he earns a right to get pension and as the Regulations stand, that right can be taken away only if an order is passed under Regulation 3 or 16. The cases of voluntary resignations Page 48 of 72 HC-NIC Page 48 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT of officers, who have to their credit the minimum period of qualifying service are not covered by these two Regulations and, therefore, such officers, who voluntarily resign, cannot be automatically deprived of the terminal benefits."
18. In Sheel Kumar Jain v. New India Assurance Company Limited and Ors. (2011) 12 SCC 197, the facts were somewhat similar to the case at hand. The appellant in that case was an employee of an Insurance Company governed by a Pension Scheme which provided, as in the case at hand, forfeiture of the entire service of an employee should he resign from his employment. The appellant submitted a letter of resignation which resulted in denial of his service benefits under the scheme aforementioned. This Court, however, held that since the employee had completed the qualifying service and was entitled to seek voluntary retirement under the scheme he could not be said to have resigned so as to lose his pension. This Court said:
"25. Para 22 of the 1995 Pension Scheme states that the resignation of an employee from the service of the corporation or a company shall entail forfeiture of his entire past service and consequently he shall not qualify for pensionary benefits, but does not define the term "resignation". Under subpara (1) of Para 30 of the 1995 Pension Scheme, an employee, who has completed 20 years of qualifying service, may by giving notice of not less than 90 days in writing to the appointing authority retire from service and under subpara (2) of Para 30 of the 1995 Pension Scheme, the notice of voluntary retirement shall require acceptance by the appointing authority. Since "voluntary retirement" unlike "resignation" does not entail forfeiture of past services and instead qualifies for pension, an employee to whom Para 30 of the 1995 Pension Scheme applies cannot be said to have "resigned" from service.
26. In the facts of the present case, we find that the appellant had completed 20 years of qualifying service and had given notice of not less than 90 days in writing to the appointing authority of his intention to leave the service and the appointing authority had accepted notice of the appellant and relieved him from service. Hence, Para 30 of the 1995 Pension Scheme applied to the appellant even though in his letter dated 1691991 to the General Manager of Respondent 1 Company he had used the word "resign"."
19. In the result this appeal succeeds and is hereby allowed. The impugned order passed by the High Court is, hereby, set aside and the writ petition filed by the deceasedemployee allowed with a direction to the respondentbank to treat letter dated 8th October, 2007 as a notice for voluntary retirement of the employee and for curtailment for three months notice period. Depending upon the view the competent authority may take on the question of curtailment of the notice period and/or deduction of three months salary from out of the retiral Page 49 of 72 HC-NIC Page 49 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT benefits of the deceasedemployee, the deceasedemployee s claim for payment of retiral benefits due under the relevant rules including pension shall be processed and released in favour of the appellant widow as expeditiously as possible but not later than six months from the date a copy of this order is served upon the bank. In the event of the bank s failure to comply with the directions within six months as indicated above, the amount payable to the employee and after his death his widow, shall start earning interest @ 10% p.a. from the date the period of six months expires. The parties are left to bear their own costs.
32. In the case of Asger Ibrahim Amin (Supra), the appellant had joined the services of the Life Insurance Corporation on 30/06/1967 on the post of Assistant Administrative Officer. He worked for 23 years and 07 months in the Corporation before tendering the resignation, owing to the "family circumstances and indifferent health". He had also crossed fifty years in age. The appellant was allowed to resign from the post of the Deputy General Manager (Accounts), which he was holding at that time. The request of the appellant for waiver of the stipulated three months notice was also favourably considered by the Corporation. The Central Government in exercise of its power conferred under Section48 of the Life Insurance Corporation Act, 1956 had notified the LIC of India (Staff) Regulations, 1960 and thereafter, the Life Insurance Corporation of India (Employees) Pension Rules, 1995. The Pension Rules provide, interalia, that the resignation from service would lead to forfeiture of the benefits of the entire service including the eligibility for pension.
33. The issue before the Supreme Court was whether the termination of service of the appellant remained unalterably in the nature of resignation, with the consequence of disentitling him from availing of the Pension Scheme or whether it could have been viewed as a voluntary retirement. The Supreme Court while allowing the appeal filed by the Asger Ibrahim Amin held as under: Page 50 of 72 HC-NIC Page 50 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT
5. The second issue which confronts us is whether the termination of service of the Appellant remains unalterably in the nature of resignation, with the consequence of disentitling him from availing of or migrating/mutating the pension scheme or whether it instead be viewed as a voluntary retirement or whether it requires to be regarded so in order to bestow this benefit on the Appellant; who had resigned after reaching the age of fifty and after serving the LIC for over twenty three years. The Appellant resigned from service under Regulation 18 of LIC of India (Staff) Regulations, 1960, which along with the other provisions of relevance is reproduced for facility of reference SECTION 3 TERMINATION Determination of Service:
18. (1) An employee, other than an employee on probation or an employee appointed on a temporary basis, shall not leave or discontinue his service in the Corporation without first giving notice in writing to the competent authority of his intention to leave or discontinue the service. The period of notice required shall be
(a) three months in the case of an employee belonging to Class I;
(b) one month in the case of other employees.
Provided that such notice may be waived in part or in full by the competent authority at its discretion. In case of breach by an employee of the provisions of the subregulation, he shall be liable to pay the Corporation as compensation a sum equal to his salary for the period of notice required of him, which sum may be deducted from any moneys due to him.
Superannuation and Retirement:
19(1) xx (2) An employee belonging to Class I or Class II appointed to the service of the Corporation on or after 1st September,1956, shall retire on completion of 60 years of age, but the competent authority may, if it is of the opinion that it is in the interest of the Corporation to do so, direct such employee to retire on completion of 50 years of age or at any time thereafter on giving him three months notice or salary in lieu thereof.
The following Regulations, on which learned Senior Counsel for the LIC has placed reliance, came to be introduced on 16.2.1996, that is after the Appellant had resigned from service. We have called for and perused this Notification, and as we expected, these provisions apply retrospectively with effect from 1.11.1993. These Regulations ordain, inter alia, that an employee may be permitted to retire (a) on completion of the age of 55 and (b) after completing 25 years in service. In other words, the Corporation has the power to compulsory retire an employee who has attained the age of 50 years if in its opinion such decision is in the interests of the Corporation; and the Page 51 of 72 HC-NIC Page 51 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT employee may seek permission to retire upon completion of 55 years of age and after rendering 25 years of service. This very position finds reiteration in Rule 31 of the Pension Rules under the epithet voluntary retirement , which pandect appears to have been available from the inception i.e. 1.11.1993.
(2A) (a) Notwithstanding what is stated in subrules (1) and (2) above, an employee may be permitted to retire at any time on completion of the age 55 after giving three months notice in writing to the appointing authority of his intention to retire.
(b) (i) Notwithstanding the provisions of Clause (a), an employee governed by the Life Insurance Corporation of India (Employees) Pension Rules 1995 may be permitted to retire at any time after he has completed twenty years of qualifying service, by giving notice of not less than ninety days in writing to the appointing authority.
Provided that this subclause shall not apply to an employee who is on deputation unless after having been transferred or having returned to India, he has resumed charge on the post in India and has served for a period of not less than one year.
Provided further that this subclause shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement.
(ii) The notice of voluntary retirement given under subclause (i) of clause (b) 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."
6. As we have already recounted, the Appellant received a waiver of the requirement of giving three months prior notice of his resolve to "discontinue his service in the Corporation", bestowing legitimacy to the reasons that compelled him to do so. It also brings to the fore that the 1960 Staff Regulations did not provide for voluntary retirement or VRS as has become commonplace today. This Court has clarified and highlighted that resignation and retirement have disparate connotations; that an employee can resign at any time but, in contradistinction, can retire only on completion of the prescribed period of qualifying service and in consonance with extant Rules and Regulations.
7. We shall now consider the Pension Rules of 1995. Rule 3 of Page 52 of 72 HC-NIC Page 52 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT Chapter II thereof, provides that the Rules are applicable to employees (1) who were in the service of the Corporation on or after 1.1.1986 and had retired before 1.11. 1993 i.e. the notified date, or (2) who retired after 1.11.1993; or (3)who were in the service before the notified date and continued to be in service on or after the notified date; or (4) who were in the service on or after 1.1.1986 but had retired on or after 1.11.1993 and before the notified date. What is discernible from these dates is that the Pension Rules of 1995 have included two classes of beneficiaries into one homogenous class, to wit, the employees who had retired before the notified date and those who were to retire after the notified date. In our opinion, the advantage of these beneficent Rules should be extended even to the Appellant who was similarly placed as the retirees mentioned in Rule 3 but for the fact that he had resigned rather than retired. The two provisions caught in the crossfire are Rule 2(s), which defines "retirement" and Rule 23, which deals with the "forfeiture of service":
2(s) "retirement" means, (i) retirement in accordance with the provisions contained in subregulation (1) or subregulation (2) or subregulation (3) of regulation 19 of the Life Insurance Corporation of India (Staff) Regulations, 1960 and rule 14 of the Life Insurance Corporation of India Class III and Class IV Employees (Revision of Terms and Conditions of Service) Rules, 1985 made under the Act;
(ii) voluntary retirement in accordance with the provisions contained in rule 31 of these rules. (emphasis added)
23. Forfeiture of service Resignation or dismissal or removal or termination or compulsory retirement of an employee from the service of the Corporation shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits.
Voluntary retirement, noted in the subRule (ii) of Rule 2(s), has been defined in Rule 31, and it reads as follows:
31. Pension on voluntary retirement (1) At any time after an employee has completed twenty years of qualifying service he may, by giving notice of not less than ninety days, in writing, to the appointing authority, retire from service:
Provided that this subrule shall not apply to an employee who is on deputation 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 subrule shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement.Page 53 of 72
HC-NIC Page 53 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT (2) The notice of voluntary retirement given under subrule (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 subrule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than ninety days giving reasons therefor;
(b) on receipt of a request under clause(a), the appointing authority may, subject to the provisions of subrule (2), consider such request for the curtailment of the period of notice of ninety days 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 ninety days on the condition that the employee shall not apply for commutation of a part of his pension before the expiry of the notice of ninety days.
(4) An employee, who has elected to retire under this rule and has given necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice 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 rule 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 thirtythree years and it does not take him beyond the date of retirement.
(6) The pension of an employee retiring under this rule shall be based on the average emoluments as defined under clause(d) of rule 2 of these rules and the increase, not exceeding five years in his qualifying service, shall not entitle him to any notional fixation of pay for the purpose of calculating his pension.
It seems obvious to us that the Appellant s case does not fall within the postulation of Rule 23 as the last four categories or genres or types of cessation of services are in character punitive; and the first envisages those resignations where the right to pension has not been earned by that time or where it is without the permission of the Corporation.
8. The Respondent Corporation has vehemently argued that the termination of services is under Regulation 18 (supra) of the LIC (Staff) Regulations, 1960 and is not covered by the Pension Rules of 1995. Respondent Corporation has controverted the plea of the Appellant that at the relevant date and time, viz. 28.1.1991 there was Page 54 of 72 HC-NIC Page 54 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT no alternative for him except to tender his resignation, pointing out that he could not have sought voluntary retirement under Regulation 19(2A) of LIC of India (Staff) Regulations, 1960. If that be so, the Respondent being a model employer could and should have extended the advantage of these Regulations to the Appellant thereby safeguarding his pension entitlement. However, we find no substance in the argument of the Respondent since Regulation 19(2A) was, in fact, notified in the Gazette of India on 16.2.1996, that is after the pension scheme came into existence with effect from 1.11.1993. Otherwise there would have been no conceivable reason for the Appellant not to have taken advantage of this provision which would have protected his pensionary rights.
9. We also record that the provisions covered by the definition of "retirement", which do not entail forfeiture of service, are sub regulation (1), subregulation (2), and subregulation (3) of Regulation 19 of the Life Insurance Corporation of India (Staff) Regulations, 1960 and Rule 14 of the Life Insurance Corporation of India Class III and Class IV Employees (Revision of Terms and Conditions of Service) Rules, 1985. None of these provisions provides for voluntary retirement like Rule 31 of the Pension Rules nor does the definition of "retirement" make any mention of aforementioned Regulation 19(2A).
10. The facts of the case disclose that the Appellant has worked for over twenty years and had tendered his resignation in accordance with the provision of Regulation 18 of LIC of India (Staff) Regulations, 1960, which, as is apparent from its reading, does not dissimulate between the termination of service by way of resignation on the one hand and voluntary retirement on the other, or distinguish one from the other. Significantly, there was no provision for voluntary retirement at the relevant time, and it was for this reason that the Pension Rules of 1995 specifically provided for it under Rule 31. In this backdrop of facts, we need not dwell much on the issue because the case of Sheelkumar Jain v. New India Assurance Co. Ltd., (2011) 12 SCC 197 is on all fours of this case.
11. In Sheelkumar, the Appellant resigned from the services of the Respondent Company after serving for over 20 years on 16.12.1991. His resignation was offered and granted under Clause 5 of General Insurance (Termination, Superannuation and Retirement of Officers and Development Staff) Scheme, 1976. Thereafter, the Central Government formulated General Insurance (Employees') Pension Scheme, 1995 with retrospective effect from 1.11.1993. Sheelkumar applied for pension under this Scheme, which was declined on the ground that resignation from service would entail forfeiture of service Page 55 of 72 HC-NIC Page 55 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT under Clause 22 of the General Insurance (Employees') Pension Scheme, 1995. The Appellant moved the High Court challenging the rejection of his claim. His writ petition as well as the writ appeal was dismissed by the High Court. The Appellant then moved this Court, whereby we noted that Clause 5 of the Scheme of 1976 did not mention resignation nor was the Appellant made aware of the distinction between resignation and voluntary retirement; that this distinction was a product of the General Insurance (Employees ) Pension Scheme of 1995. This Court observed:
20. Subpara (1) of Para 5 does not state that the termination of service pursuant to the notice given by an officer or a person of the Development Staff to leave or discontinue his service amounts to "resignation" nor does it state that such termination of service of an officer or a person of the Development Staff on his serving notice in writing to leave or discontinue in service amounts to "voluntary retirement". Subpara (1) of Para 5 does not also make a distinction between "resignation" and "voluntary retirement" and it only provides that an employee who wants to leave or discontinue his service has to serve a notice of three months to the appointing authority.
21.We also notice that subpara (1) of Para 5 does not require that the appointing authority must accept the request of an officer or a person of the Development Staff to leave or discontinue his service but in the facts of the present case, the request of the appellant to relieve him from his service after three months notice was accepted by the competent authority and such acceptance was conveyed by the letter dated 28101991 of the Assistant Administrative Officer, Indore.
xxxxx
23. The 1995 Pension Scheme was framed and notified only in 1995 and yet the 1995 Pension Scheme was made applicable also to employees who had left the services of Respondent 1 Company before 1995. Paras 22 and 30 of the 1995 Pension Scheme quoted above were not in existence when the appellant submitted his letter dated 1691991 to the General Manager of Respondent 1 Company. Hence, when the appellant served his letter dated 1691991 to the General Manager of Respondent 1 Company, he had no knowledge of the difference between "resignation" under Para 22 and "voluntary retirement" under Para 30 of the 1995 Pension Scheme. Similarly, Respondent 1 Company employer had no knowledge of the difference between "resignation" and "voluntary retirement" under Paras 22 and 30 of the 1995 Pension Scheme, respectively.
24. Both the appellant and Respondent 1 have acted in accordance with the provisions of subpara (1) of Para 5 of the 1976 Scheme at the time of termination of service of the appellant in the year 1991. It is in this background that we have now to decide whether the termination of service of the appellant under subpara (1) of Para 5 Page 56 of 72 HC-NIC Page 56 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT of the 1976 Scheme amounts to resignation in terms of Para 22 of the 1995 Pension Scheme or amounts to voluntary retirement in terms of Para 30 of the 1995 Pension Scheme.
25. Para 22 of the 1995 Pension Scheme states that the resignation of an employee from the service of the corporation or a company shall entail forfeiture of his entire past service and consequently he shall not qualify for pensionary benefits, but does not define the term "resignation". Under subpara (1) of Para 30 of the 1995 Pension Scheme, an employee, who has completed 20 years of qualifying service, may by giving notice of not less than 90 days in writing to the appointing authority retire from service and under subpara (2) of Para 30 of the 1995 Pension Scheme, the notice of voluntary retirement shall require acceptance by the appointing authority. Since "voluntary retirement" unlike "resignation" does not entail forfeiture of past services and instead qualifies for pension, an employee to whom Para 30 of the 1995 Pension Scheme applies cannot be said to have "resigned" from service.
26. In the facts of the present case, we find that the appellant had completed 20 years of qualifying service and had given notice of not less than 90 days in writing to the appointing authority of his intention to leave the service and the appointing authority had accepted notice of the appellant and relieved him from service. Hence, Para 30 of the 1995 Pension Scheme applied to the appellant even though in his letter dated 1691991 to the General Manager of Respondent 1 Company he had used the word "resign".
12. What is unmistakably evident in the case at hand is that the Appellant had worked continuously for over 20 years, that he sought to discontinue his services and requested waiver of three months notice in writing, and that the said notice was accepted by the Respondent Corporation and the Appellant was thereby allowed to discontinue his services. If one would examine Rule 31 of the Pension Rules juxtaposed with the aforementioned facts, it would at once be obvious and perceptible that the essential components of that Rule stand substantially fulfilled in the present case. In Sheelkumar, this Court was alive to the factum that each case calls for scrutiny on its own merits, but that such scrutiny should not be detached from the purpose and objective of the concerned statute. It thus observed:
30. The aforesaid authorities would show 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 and while construing the statutory provisions, the court will have to keep in mind the purposes of the statutory provisions.Page 57 of 72
HC-NIC Page 57 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT
31. The general purpose of the 1995 Pension Scheme, read as a whole, is to grant pensionary benefits to employees, who had rendered service in the insurance companies and had retired after putting in the qualifying service in the insurance companies. Paras 22 and 30 of the 1995 Pension Scheme cannot be so construed so as to deprive of an employee of an insurance company, such as the appellant, who had put in the qualifying service for pension and who had voluntarily given up his service after serving 90 days notice in accordance with subpara (1) of Para 5 of the 1976 Scheme and after his notice was accepted by the appointing authority.
13. The Appellant ought not to be deprived of pension benefits merely because he styled his termination of services as "resignation" or because there was no provision to retire voluntarily at that time. The commendable objective of the Pension Rule is to extend benefits to a class of people to tide over the crisis and vicissitudes of old age, and if there are some inconsistencies between the statutory provisions and the avowed objective of the statute so as to discriminate between the beneficiaries within the class, the end of justice obligates us to palliate the differences between the two and reconcile them as far as possible. We would be failing in our duty, if we go by the letter and not by the laudatory spirit of statutory provisions and the fundamental rights guaranteed under Article 14 of the Constitution of India.
14. Reserve Bank of India v. Cecil Dennis Solomon, (2004) 9 SCC 461 relied upon by the Respondent, although distinguishable on facts, has ventured to distinguish "voluntary retirement" from "resignation" in the following terms:
10. In service jurisprudence, the expressions "superannuation", "voluntary retirement", "compulsory retirement" and "resignation"
convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary. In Punjab National Bank v. P.K. Mittal (1989 Supp (2) SCC 175) on interpretation of Regulation 20(2) of the Punjab National Bank Regulations, it was held that resignation would automatically take effect from the date specified in the notice as there was no provision for any acceptance or rejection of the resignation by the employer. In Page 58 of 72 HC-NIC Page 58 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT Union of India v. Gopal Chandra Misra ((1978) 2 SCC 301) it was held in the case of a judge of the High Court having regard to Article 217 of the Constitution that he has a unilateral right or privilege to resign his office and his resignation becomes effective from the date which he, of his own volition, chooses. But where there is a provision empowering the employer not to accept the resignation, on certain circumstances e.g. pendency of disciplinary proceedings, the employer can exercise the power.
(emphasis is ours) The legal position deducible from the above observations further amplifies that the socalled resignation tendered by the Appellant was after satisfactorily serving the period of 20 years ordinarily qualifying or enabling voluntary retirement. Furthermore, while there was no compulsion to do so, a waiver of the three months notice period was granted by the Respondent Corporation. The State being a model employer should construe the provisions of a beneficial legislation in a way that extends the benefit to its employees, instead of curtailing it.
15. The cases of Shyam Babu Verma v. Union of India, (1994) 2 SCC 521; State of M.P. v. Yogendra Shrivastava, (2010) 12 SCC 538; M.R. Prabhakar v. Canara Bank, (2012) 9 SCC 671; National Insurance Co. Ltd. v. Kirpal Singh, (2014) 5 SCC 189; UCO Bank v. Sanwar Mal, (2004) 4 SCC 412 relied upon by the parties are distinguishable on facts from the present case.
16. We thus hold that the termination of services of the Appellant, in essence, was voluntary retirement within the ambit of Rule 31 of the Pension Rules of 1995. The Appellant is entitled for pension, provided he fulfils the condition of refunding of the entire amount of the Corporation s contribution to the Provident Fund along with interest accrued thereon as provided in the Pension Rules of 1995. Considering the huge delay, not explained by proper reasons, on part of the Appellant in approaching the Court, we limit the benefits of arrears of pension payable to the Appellant to three years preceding the date of the petition filed before the High Court. These arrears of pension should be paid to the Appellant in one instalment within four weeks from the date of refund of the entire amount payable by the Appellant in accordance of the Pension Rules of 1995. In the alternative, the Appellant may opt to get the amount of refund adjusted against the arrears of pension. In the latter case, if the amount of arrear is more than the amount of refund required, then the remaining amount shall be paid within two weeks from the date of such request made by the Appellant. However, if the amount of arrears is less than the amount of refund required, then the pension shall be payable on monthly basis after the date on which the amount of refund is entirely adjusted.
17. The impugned Judgments of the High Court are set aside and Page 59 of 72 HC-NIC Page 59 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT the Appeal stands allowed in the terms above. However, parties shall bear their respective costs.
34. In the case of Kamlesh Natvarlal Bhatt (Supra), a Division Bench of this Court considered an almost identical issue. After an exhaustive review of the various decisions of the Supreme Court and also, considering the Regulation 22 of the Pension Regulations, it held as under: We have thoughtfully considered the respective arguments. An employee who resigns from service ceases to have any relation with the employer with effect from the date of acceptance of resignation. The position of such an employee is not synonymous with the one who retires on attaining the age of superannuation or who is retired in accordance with the rules regulating the conditions of service. The relationship between an employee who retires on attaining the age of superannuation or otherwise subsists with the employer for the limited purpose of grant of pension and other retiral benefits. In an appropriate case the employer can also take disciplinary action against a retired person. As against this, no semblance of relation subsists between the employer and the employee who has resigned from service. Such an employee cannot be subjected to any disciplinary action in relation to the misconduct which may have been committed in the course of employment. Therefore, appellant has no right to claim pension and other retiral benefits.
In UCO Bank vs. Sanwar Mal (2004)4 SCC 412, the Supreme Court highlighted the distinction between the words ?resignation? and ? retirement? in the following words:
"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 Page 60 of 72 HC-NIC Page 60 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT 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. Further, there are different yardsticks and criteria for submitting resignation visavis voluntary retirement and acceptance thereof."
In Reserve Bank of India Vs. Cecil Dennis Solomon and another , (2004) 9 SCC 461, the Supreme Court reiterated the views expressed in Sanwar Mal's case (supra) and observed:
"The expressions "superannuation", "voluntary retirement", "compulsory retirement" and "resignation" convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. Resignation can be tendered at any time but voluntary retirement can be sought for only after rendering the requisite period of qualifying service. In case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary."
In our opinion, the ratio of the law laid down in the afore mentioned decisions is squarely applicable to the appellant's case. In Premji Khanji Masani v. Regional Manager, United India Insurance Co.Ltd. (supra) and Letters Patent Appeal No.23 of 1997, Hina A.Desai v. Government of Gujarat and others decided on 28.9.2005, two Division Benches of this Court have expressed similar view and held that a person who has resigned from service can not claim pensionary benefit.
We are further of the view that the appellant can not take benefit of the option exercised by him for pension scheme. Rule 22 of the Pension Regulations, which provides for forfeiture of service reads as under:
"22. Forfeiture of service: 1) Resignation 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 pensionary benefits;Page 61 of 72
HC-NIC Page 61 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT (2) An interruption in the service of a Bank employee entails forfeiture of his past service, except in the following cases, namely:
(a) authorised leave of absence;
(b) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the Bank employee dies or is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension;
(c) transfer to nonqualifying service in an establishment under the control of the Government or Bank if such transfer has been ordered by a competent authority in the public interest;
(d) joining time while on transfer from one post to another.
(3) Notwithstanding anything contained in subregulation (2), the appointing authority may, by order, commute retrospectively the periods of absence without leave as extraordinary leave.
(4) (a) In the absence of a specific indication to the contrary in the service record, an interruption between two spells of service rendered by a bank employee shall be treated as automatically condoned and the preinterruption service treated as qualifying service;
(b) Nothing in clause (a) shall apply to interruption caused by resignation, dismissal or removal from service or for participation in a strike:
Provided that before making an entry in the service record of the Bank employee regarding forfeiture of past service because of his participation in strike, an opportunity of representation may be given to such bank employees."
A reading of the above reproduced regulation makes it clear that resignation or dismissal or removal or termination of service entails forfeiture of the past service. In view of the plain language of this Regulation, the appellant will be deemed to have forfeited his past service because he had voluntarily resigned from service and in that view of the matter he can not claim pension on the basis of the service rendered till the date of acceptance of resignation.
Even otherwise, the appellant's case does not fall in any of the provisions contained in Chapter V of the Pension Regulations which specifies different kinds of pension i.e. Superannuation Pension(Regulation 28), Pension on voluntary retirement (Regulation
29), Invalid Pension (Regulation 30), Compassionate Allowance (Regulation 31), Premature Retirement Pension (Regulation 32), Compulsory Retirement Pension (Regulation 33) and Family Pension (Regulation 34). None of the provisions contained in the Regulations provide for grant of pension to a person who has resigned from service. Therefore, the appellant's prayer for grant of pension can not be Page 62 of 72 HC-NIC Page 62 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT entertained.
No other point has been argued.
For the reasons mentioned above, the appeal is dismissed.
35. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writapplicants are entitled to the pensionary benefits under the Regulations.
36. It is well settled law that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer, nor an exgratia payment. It is a payment for the past service rendered. It is a social welfare measure rendering the socioeconomic justice to those who in the heyday of their life ceaselessly toiled for the employer or an assurance that in their old age they would not be left in lurch. The Constitution Bench in Deokinandan Prasad vs. State of Bihar & Ors:
AIR 1971 SC 1409 held that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to the officer employee not because of the said order but by virtue of the Rules. Pension is not a bounty payable on the sweet will and pleasure of the Government and that on the other hand, the right to pension is a valuable right vesting in a Government servant. The right to receive pension is property under Article 300A and by a mere executive order the State has no power to withhold the same. Similarly, the said claim is also property under Article 19 (1) (f) and it is not saved by subarticle (5) of Article 19. The Constitution Bench in D.S. Nakara & Ors vs. Union of India & Ors: (1983) 1 SCC 305 held that: Page 63 of 72 HC-NIC Page 63 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT "29. Summingup it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and therefore, one is required to fall back on savings. One such saving in kind is when you gave your best in the heyday of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon."
37. A person cannot be deprived of his pension without the authority of law, which is the constitutional mandate and enshrined in Article 300 A of the Constitution. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. It is thus a hard earned benefit which accrues to an employee and is in the nature of property. The Apex Court in State of Jharkhand & Ors vs. Jitendra Kumar Srivastava & Anr: (2013) 12 SCC 210 held (Paras 8, 15, 16 & 17 of the SCC in Jitendra Kumar Srivastava's case (Supra)) that:
8. It is an accepted position that gratuity and pension are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. Conceptually it is so lucidly described in D.S. Nakara v. Union of India : (1983) 1 SCC 305 : 1983 SCC (L&S) 145 by D.A. Desai, J. who spoke for the Bench, in his inimitable style, in the following words: (SCC pp.31920, paras 18
20).
"18. The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalized? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation Page 64 of 72 HC-NIC Page 64 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service?
19. What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division or retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.
20. The antiquated notion of pension being a bounty of gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar: (1971) 2 SCC 330 : 1971 Supp SCR 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone‟s discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh:(1976) 2 SCC 1 : 1976 SCC (L&S) 172 : (1976) 2 LLJ 377 It is thus a hard earned benefit which accrues to an employee and is in the nature of "property". This right to property cannot be taken away without the due process of law as per the provisions of Article 300A of the Constitution of India.
15. In State of W.B v. Haresh C. Banerjee : (2006) 7 SCC 651 : 2006 SCC (L&S) 1719 this Court recognized that even when, after the repeal of Article 19 (1) (f) and Article 31 (1) of the Constitution vide Constitution (Fortyfourth Amendment) Act, 1978 w.e.f. 2061979, the right to property no longer remained a fundamental right, it was still a constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (DeathcumRetirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court.
16. That fact remains that there is an imprimatur to the legal Page 65 of 72 HC-NIC Page 65 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT principle that the right to receive pension is recognized as a right in "property". Article 300A of the Constitution of India reads as under: "300A. Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law." Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
17. It is hardly needs to be emphasized that the executive instructions are not have statutory character and, therefore, cannot be termed as "law" within the meaning of the aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we notices above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different."
38. There need not be any more debate on the proposition that pension is not the bounty of the employee, it is a benefit earned by dint of his long, continuous, faithful and unblemished service under the service Rules or under the relevant Rules or under the pension rules. Pension is in the nature of property and that this right to property cannot be taken away without due process of law. The word "Law" under Article 300A of the Constitution would mean a validly enacted law meaning thereby a just and reasonable law.
39. I hasten to add that although pension is not a bounty but is claimable as a matter of right, yet the right is not absolute or unconditional. The person claiming pension must establish his entitlement to such pension in law. The entitlement might be dependent upon various considerations or conditions. In a given case, the retired Page 66 of 72 HC-NIC Page 66 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT employee is entitled to pension or not depend on the provisions and interpretation of Rules and Regulations.
40. Indisputably all the writapplicants before me had tendered resignation from service of the respective banks and thereby had put an end to their service. Each of the writapplicants resigned from service before the Pension Regulations, 1995 came into force. It is for the first time in the Pension Regulations, 1995 that voluntary retirement was introduced. Regulation 29 provides for Pension on voluntary Retirement. The respondents have resisted the claim of the writapplicants on the ground that the 1995 Pension Scheme will not apply as Regulation 22 of the 1995 Pension Scheme provides that when a person has resigned from service, he would not be entitled to pension, thereby, drawing distinction from having voluntarily retired.
41. Various judgments of the Supreme Court have been relied upon as referred to above, but the reliance is more strong on the judgments in the case of Sheelkumar Jain (Supra) and M.R. Prabhakar (Supra).
42. The ratio of the judgment in the case of Sheel Kumar Jain is that if an employee is not expected to know that inspite of serving the qualifying service period, he would not be entitled to grant of pension under a subsequent implemented Pension Scheme (which operates from a retrospective dates) his resignation will lead to forfeiture of the services, then, once an employee has otherwise completed the requisite period of qualifying service for grant of pension under the retrospectively operating pension scheme, the language of a resignation letter should not be treated as one seeking a resignation by the employee, but that the letter should be treated as an application for voluntary retirement.
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43. Thus, in Sheelkumar Jain (supra), the Supreme Court took an equitable view considering that a person is not expected to know the adverse consequences against him unless so provided by the relevant Rules and especially when the benefits of the Pension Scheme is given retrospectively whereby the qualifying service completes many years earlier/prior to the introduction of the Pension Scheme (i.e.in the retrospective period) and in which period there would be persons who would had "resigned" but who on the date of resignation had otherwise completed the qualifying service period for the grant of the pension.
44. I have an honest confession to make that my heart really is in accordance with the ratio in the case of Sheelkumar Jain's Case. What I have just said is reflected in my judgment and order dated 03/11/2012 passed in the case of Chandrakant Devji Patel Vs. Vijya Bank (Supra). However, as pointed out above, the view taken by me did not find favour with the Division Bench of this Court and the judgment was set aside. One more reason to say so is that in none of the counter affidavits filed by the Banks, there is no reference to the earlier service rules of the banks that prior to the application of the 1995 Pension Scheme the distinction was in fact drawn between the 'resignation' and 'voluntary retirement'.
45. The decision of the Supreme Court in the case of M.R. Prabhakar (supra) makes all the difference. In M.R. Prabhakar (supra), the Supreme Court distinguished Sheelkumar Jain's case (supra) on the ground that the same dealt with the pension scheme of the Insurance Companies and not the Pension Scheme of the Banks, and that according to the Regulation 22 of the 1995 Pension Scheme of the Banks, if a person had resigned, the same would result in forfeiture of his services and such a person is Page 68 of 72 HC-NIC Page 68 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT not entitled to the benefits of 1995 Pension Scheme.
46. In the aforesaid context, I may quote the observations made by a learned Single Judge of the Delhi High Court in the case of Anand Parkash Batra Vs. Central Bank of India; Writ Petition (Civil) No. 5698 of 1998; decided on 30/09/2013.
6(i) I must state that it is a moot point for consideration at an appropriate time by the Supreme Court that if a scheme operates retrospectively i.e it commences at a date for its implementation many years prior to the same being introduced, then surely an adverse consequence of denial of benefits of such retrospectively operating scheme should not be denied to an employee whose services come to an end in the retrospective period unless such employee was made aware of the adverse consequences. In this regard it bears note that it is held by the Supreme Court in a catena of judgments that terminal benefits are not a bounty but are natural entitlements which become due to an employee for the services rendered by the employee with the employer organization. Therefore, once the necessary qualifying service period has been completed by the employee, terminal benefits should be granted as a matter of course because they flow from the aspect of rendering continuous service with the bank for the qualifying period and they be not denied on the technical ground that the employee had "resigned‟.
(ii) A most important aspect for giving benefit of pension scheme is noted and stated by the Supreme Court in the case of UCO Bank Vs. Sanwar Mal (2004) 4 SCC 412, as "The pension scheme herein is based on actuarial calculation; it is a self financing scheme, which does not depend budgetary support and consequently it constitutes a complete code by itself. The scheme essentially covers retires as the credit balance to their provident fund account is larger as compared to employees who resigned from service." Thus, clearly there is a valid reason to treat resignation as retirement qua those employees who have at the time of resignation rendered the requisite qualifying service for grant of pension and they ought to be treated differently for being entitled to grant of pension under the scheme than those persons who on resignation have not completed the period of qualifying service inasmuch as the employee who renders the qualifying service has that much credit to his provident fund by which no budgetary support is required for payment of pension.
I am of the very same view as expressed by the learned Single Page 69 of 72 HC-NIC Page 69 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT Judge of the Delhi High Court referred to above.
47. I am not impressed by the submission canvassed on behalf of the writapplicants that Regulation 22 of the Pension Regulations, 1995 is arbitrary and unreasonable, and therefore violative of Article14 of the Constitution of India. I need not to go into this issue because the same has been answered by the Supreme Court in the case of Sanwar Mal (supra). The relevant observations are as under: 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. Further, there are different yardsticks and criteria for submitting resignation visavis voluntary retirement and acceptance thereof. Since the Pension Regulations disqualify an employee, who has resigned, from claiming pension, the respondent cannot claim membership of the fund. 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 & Anr. v. Cecil Dennis Solomon & Anr. reported in [2003 (10) Scale 449]. Before concluding we may state that Regulation 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.
48. So far as the facts of each of the writapplications are concerned, as stated above, they all had resigned from service. Ultimately it comes to this that the Court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee Page 70 of 72 HC-NIC Page 70 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT was a termination by way of resignation or a termination by way of voluntary retirement and while construing the statutory provisions, the Court should keep in mind the purpose of the statutory provisions.
49. When the writapplicants submitted their resignations, there was no provision for retirement and there was only a provision for resignation. The decision in the case of Shashikala Devi (Supra) would also not save the situation for the writapplicants. In the said case, the question was whether the letter of the employee was one of resignation or for voluntary retirement. The Court took the view that it would depend on the circumstances in which the letter was written by the employee. It was held that mere expression used in the letter would not be determinative. The Supreme Court on a reference to the letter, wherein, the employee had spelt out the reasons for resigning based on his medical condition and attendant circumstances concluded that the employee had, in fact, sought voluntary retirement and never intended to resign from service. Mauzi Ram the deceased employee had rendered more than 34 years of service in the respondentbank. He was, therefore, qualified to receive pension in terms of the Regulations applicable to him. The Supreme Court considered the Regulation 29 which provides for the voluntary retirement. Mauzi Ram had completed more than twenty years of service by 8th October, 2007. As on 8th October, 2007 the deceasedemployee was entitled either to resign from service or to seek premature retirement in terms of Regulation 29.
50. So far as the cases in hand are concerned, I need not undertake the exercise to ascertain whether or not the communications at the relevant point of time were letters of resignation simpliciter or could well have been treated to be a request for voluntary retirement because prior to 29/09/1995 i.e. the date of enforcement of the Pension Page 71 of 72 HC-NIC Page 71 of 72 Created On Tue Nov 08 00:41:39 IST 2016 C/SCA/10854/2003 CAV JUDGMENT Regulations, the employees of the Banks were entitled to avail voluntary retirement in terms of the Regulation 19 of the Bank (Officers') Service Regulations which provided for three months prior notice and completion of 30 years of service or attaining 55 years of age. Indisputably, none of the above referred conditions were fulfilled and therefore, the writapplicants could not have availed the benefits of voluntary retirement in terms of the Regulation 19.
51. At the time, when the writapplicants tendered their resignations, they knew very well that they were not fulfilling the conditions as provided in Regulation 19 of the Bank (Officers') Service Regulations to seek voluntary retirement. If they were entitled to seek voluntary retirement, obviously they would have applied for the same rather than resigning from service. None of the writapplicants completed 30 years of service with the respective banks nor had reached the age of 55 years at the time of tendering their resignations nor had given three months prior notice. For one reason or the other they had put to an end the service voluntarily and they did so by tendering resignations. So far as the writapplicants of the Special Civil Application No.10856 of 2003 are concerned, they resigned on medical grounds and also, took the benefit of compassionate appointment which was given to the Son.
52. I also take notice of the fact that in the judgment of Shashikala Devi (Supra), there is no reference to the decision of the M.R. Prabhakar (Supra).
53. For the forgoing reasons, all the writapplications fail and are hereby rejected. Rule is discharged.
(J.B.PARDIWALA, J.) aruna Page 72 of 72 HC-NIC Page 72 of 72 Created On Tue Nov 08 00:41:39 IST 2016