Calcutta High Court (Appellete Side)
Golam Jilani vs State Bank Of India & Ors on 10 August, 2018
Author: Amrita Sinha
Bench: Amrita Sinha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
W.P 34722 (W) of 2013
Golam Jilani
Vs.
State Bank of India & Ors
For the writ petitioner :- Mr. Mrinmay Bhattacharyya, adv.
Ms. Nibedita Chandan Dey, adv.
For the Respondent :- Mr. Subrata Kumar Sinha, adv.
Nos. 1 to 5
For UOI :- Mr. Santanu Chatterjee, adv. Heard on :- 27.07.2018 Judgement On :- 10.08.2018 Amrita Sinha, J.:-
The petitioner was an employee of the State Bank of India (in short SBI). He joined service on 6th. August 1979. On account of misconduct a disciplinary proceeding was initiated against him and on punishment he was removed from service with effect from 23rd. May 2002. The punishment order dated 27th. May 2004 read as follows:-
"Removed from service with superannuation benefits viz; pension and/or provident fund and gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment."
Pursuant to the above order the petitioner had received his provident fund and gratuity but not his pension. Vide letter dated 22nd. March 2012 the Assistant General Manager (HR), State Bank of India rejected the prayer of the petitioner for grant of pension on the ground that he did not fulfil any of the criteria as mentioned in Rule 22(i)(a) and 22(i)(d) of SBI Pension Fund Rules. It was mentioned that on the date of removal from service the petitioner had put in 22 years 3 months and 17 days of pensionable service and the age of the petitioner on the said date was 41 years 1 month and 10 days.
It has been submitted on behalf of the petitioner that the order of punishment specifically mentioned that the petitioner would be entitled to receive his pension and accordingly the same cannot be denied under any circumstances. Further the authorities had deducted a portion of his salary every month on account of his pension and a considerable sum of money had accumulated in the pension fund of which he was a member. It has been also submitted that the condition imposed by the bank in Rule 22(1)(a) for payment of pension on attaining fifty years of service is discriminatory and in violation of Articles 14, 21 and 300A of the Constitution of India.
The Learned Advocate for the petitioner relies upon the memorandum of settlement dated 29th October 1993 entered between the management of the banks and the workmen association wherein it had been agreed that a minimum period of ten years is required to qualify for receiving pension and as the petitioner had put in more than twenty two years of service accordingly he ought not to be deprived from receiving his pension.
The petitioner relies upon the case of N. Easwaran & Anr. vs. State Bank of India reported in 2007 (5) MLJ 818 wherein a division Bench of the Madras High Court had directed the Bank to grant pensionary and other consequential retiral benefits to the appellants without taking into consideration the cut-off date.
He also relies upon the case of Bank of Baroda vs. S.K. Kool (dead) through legal representative and anr. reported in (2014)3 WBLR (SC) 444 wherein it had been held that employees who are eligible and have put in minimum number of years of qualifying service shall be entitled for pension.
The learned advocate for the Bank submits that though the petitioner had put in more than twenty years of service but as he had not attained the age of fifty years on the date of removal he was not entitled to receive pension as per Rule 22 (a) of the State Bank of India Employees' Pension Fund Rules.
The learned Advocate relies upon an unreported judgment of the Hon'ble Supreme Court dated 18th November, 1996 in the case of Arikaravula Sanyasi Raju vs. The Bank Manager, State Bank of India wherein the Hon'ble Supreme Court held that for voluntary retirement on completion of 22 years of pensionable service Clause (c) of Rule 22 (1) gets attracted. It does not apply to officer who was removed from service for misconduct.
The learned Advocate also refers to an order dated 19th March, 2002 passed by the High Court of Delhi in CW 4355/2001 wherein the Court was dealing with the voluntary retirement scheme of the State Bank of India which was opened in January, 2001. Since the instant case is not relating to voluntary retirement I refrain from dealing with the same.
The question which falls for consideration is whether attaining the cut off age will stand in the way of grant of pension when the petitioner had admittedly put in 22 years 3 months and 17 days of pensionable service in the Bank?
The relevant SBI Pension Fund Rules relying on which the prayer of the petitioner for grant of pension was refused vide letter dated 22nd. March 2012 are set out herein below:
"Rule 22(1)(a) - After having completed 20 years' pensionable service provided that he has attained the age of 50 years."
"Rule 22(1)(d) - After 25 years' pensionable service irrespective of age."
The Hon'ble Supreme Court in the case of S.K. Kool (supra) has dealt with the expression 'as would be due otherwise' and held that the same would mean only such employees who are eligible and have put in minimum number of years of service to qualify for pension. The Hon'ble Court specifically observed that 'the Bipartite Settlement tends to provide punishment which gives superannuation benefits otherwise due. The construction canvassed by the employer shall give nothing to the employee in any event. Will it not be fraud Bipartite Settlement? Obviously it would be. From the conspectus of what we have observed we have no doubt that such of the employees who are otherwise eligible for superannuation benefits are removed from service in terms of clause 6(b) of the Bipartite Settlement shall be entitled to superannuation benefits. It is the only construction that would harmonise the two provisions. It is well settled rule of construction that in case of apparent conflict between the two provisions, they should be interpreted that effect is given to both.' The Hon'ble High Court of Madras at the time of deciding the case of N. Easwaran & Anr. (supra) took into consideration various decisions to arrive at the conclusion whether fixing up of cut off age for appointment in service as prescribed under unamended Rule 8(c) of the SBI Employees Pension Fund Rules is ultra vires Article 14 of the Constitution of India.
At the time of deciding the aforesaid case Madras High Court took note of the fact that as per old Rule 22(1)(c) an employee for earning pension was to serve at least 25 years in the bank. Subsequently, by an amendment the eligibility criterion was relaxed with effect from 20th September, 1986 prescribing 20 years of pensionable service irrespective of age.
In the instant case though the petitioner had completed more than 22 years of service but he had been denied pension on the ground that he had neither attained the age of fifty years nor put in twenty five years of service on the date of his removal.
On a plain reading of the SBI Employees Pension Fund Rules it appears that Rule 22 (1) (a) mentions the cut off age for entitlement of pension, Rule 22 (1)(b) provides for receiving pension after completion of 20 years irrespective of age subject to approval from the doctor as regards his physical incapacity and Rule 22(1)(c) specifies that an employee after completion of 20 years irrespective of age will be entitled to pension at his request in writing.
So, from the above it is absolutely clear that there is already a provision for payment of pension on completion of twenty years of pensionable service in case of physical incapacity or on request. It is not such that there is an absolute bar for grant of pension unless the employee attains fifty years of age.
The Hon'ble Supreme Court in the case of S.K. Kool (supra) has very clearly explained the expression 'as would be due otherwise'. The Supreme Court specifically held that the bipartite settlement would be rendered fraudulent if the above expression is not given a harmonious construction between the contradictory provisions.
It appears that the petitioner had completed the pensionable service period but due to the imposition of punishment of removal from service he could neither complete 25 years in service nor attain 50 years of age. Since the service tenure of the petitioner had been cut short due to the imposition of punishment accordingly the cut off age of attaining 50 years ought not to be taken into consideration for calculating his pensionable service period. Unless such a harmonious construction is given to the pension Rules and the bipartite agreement then an employee even on completion of his pensionable service period will not be entitled to receive pension due to non-attaining the cut off age. This will lead to double jeopardy as the petitioner had already been removed from service because of his misconduct, denial of pension in such a case will render the bipartite agreement a farce. Both the provisions being contradictory to each other the same ought to be interpreted in a reasonable manner that effect may be given to both.
Moreover, at the time of imposition of punishment the bank was aware that the petitioner had completed more than 22 years of service but had not reached fifty years of age hence, according to their explanation the petitioner would not be entitled to receive pensionary benefit. In spite of having the aforesaid information within their knowledge the bank imposed punishment wherein it had been specifically mentioned that the petitioner was removed from service with superannuation benefits namely pension and/or provident fund and gratuity "as would be due otherwise". This clearly indicates that as per the pension Rules of the Bank had the petitioner opted for retirement instead of being removed from service on the said date the petitioner would have been entitled to receive all his superannuation benefits including pension. As such the date of removal of the petitioner ought to be treated as his date of retirement and pension to be released accordingly.
The judgment of the Supreme Court delivered in the case of Arikaravula Sanyasi Raju (supra) was passed in the year 1996. The position has considerably been changed after passing of the order in Bank of Baroda vs. S.K. Kool (supra) wherein the Supreme Court dealt with the expression 'as would be due otherwise'. In view of the subsequent decision of S.K. Kool (supra) the judgment of Arikaravula Sanyasi Raju is not applicable in the instant case.
In accordance with the discussions made hereinabove it is held that the petitioner is entitled to receive his pension. The impugned order dated 22nd. March 2012 issued by the Assistant General Manager (HR), State Bank of India, local head office is hereby set aside. The writ petition is disposed of directing the respondent bank to take steps for releasing the pensionary benefit of the petitioner at an early date but not later than a period of three months from the date of receipt of a copy of this order.
W.P. No. 34722 (W) 2013 is disposed of accordingly.
No order as to costs.
Urgent certified photocopy of this judgement, if applied for, be supplied to the parties or their advocates on priority basis upon compliance of usual legal formalities.
(Amrita Sinha, J.)