Allahabad High Court
Triloki Nath Tandon vs Allahabad Bank And Ors. on 21 May, 2003
Equivalent citations: (2003)2UPLBEC1474
Author: S.N. Srivastava
Bench: S.N. Srivastava
JUDGMENT S.N. Srivastava, J.
1. By means of the present petition, the petitioner has prayed for a writ of mandamus directing the respondents to record option for pension furnished on 28.11.1994 under Regulations, 1993 before the respondent No. 4, attended with further prayer to release arrears of pension since December, 2001. The petitioner has prayed for further relief of paying interest on delayed payment of terminal dues with effect from 30.11.2001.
2. Petitioner, a Clerk in Allahabad Bank entered the service of the Bank on 24.6.1964 and retired from service on 30.11.2001 upon attaining the age of superannuation. It is averred that the Bank floated new pension scheme and framed Allahabad Bank Employee Pension Regulations, 1993, which was commenced to be effective from 1.11.1993. The University Branch, Moti Katra, Hing Ki Mandi, Agra of the said Bank also received the circular dated 6.9.1994 pursuant to which the petitioner opted for the said pension scheme by exercising his option on the prescribed proforma signifying therein the transfer of entire contribution of the Bank alongwith interest accruing thereon to the credit of pension fund to be created for the purpose. It is further submitted that the petitioner by means of letter dated 20.8.2001 furnished requisite particulars as desired including the copy of pension option Form dated 28.11.94 which were duly forwarded by the Branch Manager of the Agra University, Branch Agra by means of letter dated 24.8.2001. As stated supra the petitioner was superannuated on 30.11.2001. Due to non-receipt terminal dues, the petitioner suffered financial straits and consequently, represented to all concerned to expedite payment of terminal dues as a result of which the amount of gratuity was released and credited to the account of the petitioner after a lapse of four months on 16.3.2002. By means of letter dated 5.4.2002, the Head Office of the Bank released Provident Fund Balance disregarding the option exercised by the petitioner against which the petitioners represented to the authority at the Headquarter. The communication that was received in response to the representation aforestated was that the option was not recorded at its end. It is in the above backdrop that the petition has been filed for the relief claimed herein.
3. It brooks no dispute that the petitioner furnished option on prescribed proforma and within time which was duly forwarded by the Branch Manager. It is also borne out from the record that the petitioner had authorised the Bank to make deduction towards contribution under the Pension Scheme and further that the petitioner retired on 30.11.2001 is also beyond the plea of dispute. What was then the causative factor for disproving the option exercised by the petitioner? The learned Counsel has alluded to wrong enumeration of PPF Account No. 4089 instead of 4039 as the causative factor but, at the same time, he emphasised that the prescribed form filled by the petitioner contained correct PPF number and the mistake crept into sometime when the option was protracting for consideration before the Competent Authority. He further submitted that even if there had occurred some arithmetical mistake, the right that had accrued to the petitioner under the new pension scheme after he had exercised the option cannot be sacrified at the altar of mere technicalities. Sri Himanshu Tiwari appearing for the Bank emphatically contended that it was option submitted by the petitioner, which contained incorrect PPF Account No. 4089 and as a result, action could not be taken and that in the circumstances, the petitioner cannot take advantage of his own mistake. He further submitted that it was statutory requirement to enumerate correct PPF account and he having enumerated incorrect PPF account, the option of the petitioner could not be considered to be a valid option and it was rightly rejected as invalid option.
4. Before proceeding further, it would be apposite to except Regulation 3(3) as below :
"3. Application.-These Regulations shall apply to employees who-
x x x x x x x x x x x x (3)(a) arc 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 to transfer the entire contribution of the Bank alongwith the interest accrued thereon to the credit of the Fund constituted for the purpose under Regulation 5;............"
The factum that the requirements as contained in Regulation 3(3) have been observed in compliance by the petitioner has not been repudiated and what has been disputed by the learned Counsel for the Bank is that the petitioner enumerated in the prescribed form incorrect PPF number. The learned Counsel for the petitioner refuted the contention and in aid of his submission, placed credence on Annexures 2 and 3 to the writ petition from perusal of which it is explicit that it contained correct PPF number. It is not clear from the record as to at what stage the mistake occurred. However, the factum that the petitioner opted for pension scheme brooks no dispute nor is it disputed that the petitioner applied for pension scheme and submitted prescribed form within the time-limit as indicated and as a consequence, contribution was also made. It is also evident from the record that the employer communicated by means of letter-dated 9.5.2002, the fact regarding rejection/non-registration of the option given by the petitioner. Though, the petitioner as stated supra has annexed requisite documents to the petition to indicate that he had exercised and furnished option within the time prescribed and in accordance with the Regulations indicating correct PPF number but, from the perusal of the record it appears that P.P.F. No. 4039 was mispelt as 4089 at some stage up in the hierarchal order. It is crystal clear from the record that the option was submitted within time through proper channel consistent with the mandate of the Regulations. In the circumstances, if employer had found some arithmetical error in the PPF. number of the petitioner, fair-play demanded that he should have communicated with the petitioner by issuing notice for rectification of the error to set the record straight inasmuch as a right had already accrued to the petitioner upon his exercising option for Pension Scheme, 1993, in accordance with the Regulations. The communication about rejection of the option indisputably was served to the petitioner after retirement. In the above set of circumstances, it leaves no manner of doubt, that entire exercise was undertaken by the employer in a secretive manner and behind the back of the petitioner, and by rejecting the option summarily and secretively without issuing notice to the petitioner, the employer acted in a manner which constituted infringement of the right accrued in favour of the petitioner.
5. The pension and gratuity have been held to be no longer any bounty to distributed by the Government and they have come to be upgraded to the status of valuable rights and property in their hands by a catena of decision of the Apex Court. In my view, once the petitioner exercised his option for new pension scheme and observed, in compliance all formalities for entitling himself to it, some arithmetical error in enumeration of PPF number, though, it is not clear as to what stage it occurred, cannot extinguish the obliterate the right to pension. There is no gainsaying the fact, that the right of pension accrued to the petitioner once he exercised his option for new pension scheme, which was duly forwarded to the end of the authority clothed with the power to accept the option and it is nobody's case that the petitioner was ever communicated with in regard to incorrect PPF number nor the Counsel for the Bank argued on the lines that compliance with the requirement of displaying correct PPF number is a statutory requirement nor did he draw my attention to any such statutory requirement and therefore, non-compliance with it would not automatically result in rejection of the option and in the circumstances, it does not commend to me for acceptance that any arithmetical error which occurred in enumerating PPF number would be fraught with the consequence verging on denial of right to pension to the petitioner. In the ultimate analysis, I am of the view that the petitioner is entitled to pension and authorities were not justified in rejecting option exercised by him in respect of new Pension Scheme.
6. It was lastly argued by the learned Counsel for the petitioner, that the petitioner is entitled to interest on delayed payment of terminal benefits and further submitted that delay, if any is not attributable to the petitioner but, apportioned the blame to recalcitrant attitude of the respondents. To enforce his contention, the learned Counsel for the petitioner placed credence on several pronouncements of the Apex Court including decisions in D.S. Nakara v. Union of India, AIR 1983 SC 130; All India Reserve Bank Retd. Officers Association and Ors.v. Union of India, AIR 1992 SC 767; Salabuddin Mohd. Yunus v. State of A. P., AIR 1984 SC 1905; Smt. Sushila Bhatnagar v. State of U.P., (1998) 3 UPLBEC 2214 (SC), and Jagdish Narain Chopra v. Alld. District Co-operative Bank Ltd., (1999) 2 UPLBEC 1591 (SC). In D.S. Nakara's case, the Apex Court observed that pension is neither a bounty nor a matter of grace depending on the sweet will of the employer, but a vested right. It is not an ex-gratia payment but, it is payment for past service. In All India Reserve Bank Retd. Officers Association's case, the Apex Court held the pension a fundamental right and a right to receive pension was equated to right to property under Sub-clause (f) of Article 19(1) of the Constitution. In Smt. Sushila Bhatnagar's case, the Apex Court ruled that retiral benefits are not charity but, a deferred payment earned by service rendered by employee and owing to delay in settlement/disbursement of pension, 12% simple interest awarded. Besides the above precedents cited by the learned Counsel for the petitioner, in support of his case for award of interest on delayed payment I notice the authority in State of Kerala and Ors.v. M. Padmanabhan Nair, (1985) 1 SCC 429, which in my view is an authority in connection with the proposition propounded by the learned Counsel for the petitioner. The observation made aptly by the Apex Court is execpted below :
"Usually, the delay occurs by reason of non-production of the L.P.C. (last pay certificate) and the NLC (no liability certificate) from the concerned Departments but, both these documents pertain to matters, records whereof would be with the concerned Government Departments. Since, the date of retirement of every Government Servant is very much known in advance we fail to appreciate why the process of collecting the requisite information and issuance of these two documents should not be completed at least a week before the date of retirement so that the payment of gratuity amount could be made to the Government Servant on the date he retires or on the following day and pension at the expiry of the following month. The necessity for prompt payment of the retirement dues to a Government Servant immediately after his retirement cannot be over-emphasised and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement."
7. From a bare perusal of the record, it is too explicit to be ignored that the authorities sat tight over the matter for over five months and when the authorities woke up to the urgency of making payment of retiral benefits to the petitioner, he was communicated about release of terminal benefits at the same time communication rejection of the option on the ground that it contained incorrect PPF number. In view of the observation aforestated, I am of the view, that it is a pre-eminently fit case in which the petitioner should be awarded interest on delayed payment of terminal benefits at the rate of 9% on delayed payment.
8. In the result, the petition is allowed and the order of rejection elated 9.5.2002 (Annexure 12 to the petition) is hereby quashed. As a necessary consequence, the option exercised by the petitioner is held to be valid entitling him to pension on the basis of PPF No. 4039 and also interest on delayed payment thereof. The petitioner shall be paid pension and arrears alongwith interest on delayed payment at the rate of 9% within a period of three months from the date of production of a certified copy of this order. It is further directed that the respondents shall take all necessary steps treating the option as validly exercised option to pay regular pension to the petitioner on month to month basis as mandated under the Rules.