Calcutta High Court
Goutam Nandi vs United Bank Of India & Ors on 13 April, 2017
Author: Arijit Banerjee
Bench: Arijit Banerjee
In the High Court At Calcutta
Constitutional Writ Jurisdiction
Original Side
WP 585 of 2014
Goutam Nandi
-Vs.-
United Bank of India & Ors.
Before : The Hon'ble Justice Arijit Banerjee
For the petitioner : Mr. M. R. Sarbadhikari, Adv.
For the respondents : Mr. R. N. Majumder, Adv.
Heard On : 29.09.2016, 04.10.2016, 08.11.2016, 11.11.2016
17.11.2016, 24.11.2016
CAV On : 01.12.2016
Judgment On : 13.04.2017
Arijit Banerjee, J.:
(1) In this writ application the petitioner, an erstwhile employee of the respondent Bank, claims the following reliefs:
(a) A Rule in the nature of Mandamus commanding the Respondents to act in accordance with law and to release the Leave Encashment of 240 days with interest for delayed payment which the petitioner entitled of Bank rate of 11.5% per annum.
(b) A Rule in the nature of Mandamus commanding the Respondents to pay interest amounting to Rs. 1,87,560.80p on Gratuity amount for delayed payment at Bank's rate of 11.5% per annum for 1410 days.
(c) A Rule in the nature of Mandamus commanding the Respondents to consider the 2nd option of the Writ Petitioner for availment of Pension as per Bank's Pension Regulation/Circular and release the Pension with interest at Bank's rate.
(2) When the petitioner was a Scale-II Officer of the respondent Bank, he was issued a charge-sheet. A domestic enquiry followed. He was dismissed from service of the Bank on 24 August, 2007. The petitioner's appeal against the order of the Disciplinary Authority was dismissed and the order of termination of his service was confirmed by the Appellate Authority by an order dated 2 January, 2008. The petitioner challenged the said orders before this Court by filing WP 120 of 2008. By a judgment and order dated 24 February, 2010 Debasish Kar Gupta, J., set aside the order of dismissal. The operative portion of the said judgment and order reads as follows:-
"In view of the above settled principles of law I quash and set aside the impugned punishment. I further direct the disciplinary authority to pass the final order of punishment against the petitioner by inflicting punishment other than the punishment of 'dismissal which shall ordinarily be disqualification for future employment' upon the petitioner in the light of the above discussion.
The writ petition succeeds to the extent as discussed and directed hereinabove."
(3) The respondent filed an appeal against the order of the learned Single Judge. The said appeal was, however, not pressed subsequently and was dismissed as not pressed by an order of the Division Bench dated 30 August, 2010. This was in view of the fact that by an order dated 11 August, 2010, the Bank had imposed the lesser punishment of compulsory retirement on the petitioner in accordance with the Learned Single Judge's order.
(4) In the above factual background, the present writ application has been filed. As would appear from the prayers in the writ petition extracted above, the petitioner's claim is on three accounts. Firstly, he claims interest on the delayed payment of gratuity. Secondly, he claims leave encashment of 240 days with interest. Finally, he prays for an order directing the respondent Bank to consider his case for availing of pension as per the Bank's Pension Regulations/Circulars. I will deal with each issue separately.
Re: Interest on Gratuity:-
(5) It is not in dispute that the bank released the Provident Fund and gratuity amounts to the petitioner on 2 August, 2012. The Bank has paid interest on the delayed payment of provident fund amount but has not paid interest on the delayed payment of gratuity. The petitioner claims interest on the gratuity amount for the period 24 August, 2007 to 2 August, 2012 amounting to Rs. 1,87,560/- as per calculation shown in annexures P-18 and P-19 to the writ petition. Learned Counsel for the petitioner submitted that interest at a reasonable rate is payable for delay in releasing the gratuity amount and other retiral benefits. In this connection he referred to a Full Bench decision of the Patna High Court in the case of Champaran Sugar Go. Ltd.-Vs.-The Joint Labour Commissioner, 1987 (35) BLJR 104. He also relied on a decision of the Hon'ble Apex Court in the case of Devaki Nandan Prasad-Vs.-State of Bihar, AIR 1983 SC 1184.
(6) Learned Counsel then referred to Secs. 7 (3) and (3A) of the Payment of Gratuity Act, 1972 which read as follows:-
"S. 7(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.
(3A) If the amount of gratuity payable under sub-Section (3) is not paid by the employer within the period specified in sub-Section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long term deposits, as that Government may, by notification specify:
Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground."
Reference was also made to Secs. 4(1) and 4(2)(b) of the Interest Act, 1978 which read as follows:-
"S. 4. Interest payable under certain enactments.-(1) Notwithstanding anything contained in Section 3, interest shall be payable in all cases in which it is payable by virtue of any enactment or other rule of law or usage having the force of law.
(2) Notwithstanding as aforesaid, and without prejudice to the generality of the provisions of sub-Section (1), the Court shall, in each of the following cases, allow interest from the date specified below to the date of institution of the proceedings at such rate as the Court may consider reasonable, unless the court is satisfied that there are special reasons why interest should not be allowed, namely:-
(a) Where money or other property has been deposited as security for the performance of an obligation imposed by law or contract, from the date of deposit;
(b) Where the obligation to pay money or restore any property arises by virtue of a fiduciary relationship, from the date of the cause of action:"
(7) Learned Counsel for the respondent Bank strongly disputed the petitioner's entitlement to receive interest on gratuity. Learned Counsel submitted that there is no provision for payment of interest on delayed payment of gratuity in the service regulations of the respondent Bank unlike Secs. 7 and 8 of the Payment of Gratuity Act. Learned Counsel also relied on Regulation 46(1) of the UBI (Officers') Service Regulations, 1979, in resisting the petitioner's claim. (8) In my opinion, the petitioner's claim for interest on delayed payment of gratuity must succeed. Law is now well-settled that retiral benefits of an employee are payable immediately upon his superannuation. If there is a delay in releasing such benefits for which the employee cannot be blamed, he is entitled to receive interest at a reasonable rate. It is now well-established that the right of a retired employee to get his retiral dues on the date of attaining superannuation is a valuable right which accrues in his favour on the date of his attaining superannuation. Further, gratuity is no more considered to be a bounty to be doled out by the employer at its whim. It is not charity. An employee has a statutory right to receive gratuity upon retirement. If the employer delays in payment of the gratuity amount, he is obliged to pay interest to the retired employee. This is compensatory in nature. In the present case, the order dismissing the petitioner was set aside by this Court by its judgment and order dated 24 February, 2010. The appeal preferred by the Bank against such order was dismissed as not pressed by the Appeal Court's order dated 30 August, 2010. The punishment of dismissal imposed by the respondent Bank on the petitioner was thus found to be unsustainable in law. Hence, the same could not have been a justification for withholding the gratuity of the petitioner. The punishment of dismissal from service having been quashed by this Court, the respondent Bank passed an order dated 11 August, 2010 compulsorily retiring the petitioner from service with effect from 24 August, 2007. Hence the employer - employee relationship between the Bank and the petitioner stood severed notionally from 24 August, 2007. He should, therefore, be entitled to interest on the gratuity amount from that date.
(9) In the Full Bench decision of the Patna High Court referred to by learned Counsel for the petitioner, the Court observed that under Sec. 4 of the Payment of Gratuity Act, gratuity becomes payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, on his superannuation or on his retirement or resignation or on his death or disablement due to accident or disease. The Act now confers a statutory right on the employee. If the requisite conditions are satisfied, gratuity becomes mandatorily payable to him and it becomes so payable on the very date of his superannuation or retirement or resignation or death or disablement as the case may be. Sec. 7 prescribes the time period within which such gratuity is to be paid and Sec. 8 provides the sanction for such payment and procedure for its recovery with interest for the delay in payment caused by the default of the employer. The Act provides that in cases of default, the Controlling Authority would recover the gratuity with compound interest at the rate of 9 per cent per annum by issuance of a certificate recoverable as arrears of land revenue by the Collector. Thus, payment of interest is the mandate of law itself and does not depend on any express claim made by the employee for such interest.
In Devaki Nandan Prasad (supra), the Hon'ble Apex Court also expressly recognized the retired employee's right to receive interest on delayed payment of pensionary benefits.
(10) Regulation 46 (1) of the UBI (Officers') Service Regulations, 1979 reads as follows:-
"46. Gratuity:
(1) Every officer, shall be eligible for gratuity on :-
(a) Retirement;
(b) Death
(c) Disablement rendering him unfit for further service as certified by a medical officer approved by the Bank;
(d) Resignation after completing ten years of continuous service; or
(e) Termination of service in any other way except by way of punishment after completion of 10 years of service;"
The punishment of dismissal that was imposed by the Bank on the petitioner was found by this Court to be unsustainable in law. Accordingly the same was set aside. Pursuant to the leave granted by this Court to impose a lesser punishment, the petitioner was compulsorily retired. However, the respondent Bank took a conscious decision to release the gratuity amount in favour of the petitioner. Thus, Regulation 46, even as understood by the Bank did not stand in the way of paying the gratuity benefit to the petitioner. Hence, had the petitioner been compulsory retired instead of being dismissed, in the first place, he would have been entitled to receive the gratuity amount on the date of termination of his service. The delay in paying the gratuity to the petitioner was occasioned by dismissal of the petitioner by the Bank which was found to be legally unsustainable. Thus, the delay was not because of any fault on the part of the petitioner. Viewing the matter from this angle also the petitioner should be entitled to interest on delayed payment of gratuity by way of compensation.
(11) In view of the aforesaid, the petitioner's prayer for interest on delayed payment of gratuity is allowed.
Re: Leave Encashment:-
(12) Learned Counsel for the petitioner submitted that in spite of repeated representations made to the Bank for releasing leave encashment, the Bank remained silent. My attention was drawn to letters dated 7 August, 2012 and 30 July, 2013 written by the petitioner to the Bank. Learned Counsel relied on a circular issued by the Head Office of the respondent Bank bearing No. PD/DIR/16/2003 dated 11 June, 2003 which is reproduced hereunder:-
"
UNITED BANK OF INDIA DISCIPLINARY & INDUSTRIAL RELATIONS DIVISION HEAD OFFICE : KOLKATA Circular Letter No. PD/DIR/16/2003 11 th. June 2003 All Disciplinary Authorities Sub:- Entitlement to different Terminal Benefits Of the Officer Employees and Award Staff Inflicted with the punishment/on case of Their retirement etc. Attention of all concerned is hereby invited to this office earlier Circular Letter No. PD/DICS/08/89 dated 20-05-1999 wherein it has been mentioned under Clause - 1 that on compulsory retirement of officers by way of punishment, no encashment of leave would be admissible as leave lapses in terms of Regulation 38 of United Bank of India (Officers') Service Regulation 1979.
As there was no mention regarding eligibility of leave encashment in case of compulsory retirement by way of punishment in the United Bank of India (Officers') Service Regulation 1979, the matter was referred to Indian Banks' Association. In reply to our such reference, Indian Banks' Association has informed under their letter dated 14- 06-1997 that on officer who has been compulsorily retired would be eligible to receive benefits as available to the officers who retired from service after reaching the date of superannuation. Accordingly, the encashment of Privilege Leave may be permitted to such officers who have been awarded punishment of compulsory Retirement from service.
In view of the above decision of Personnel Committee of Indian Banks' Association, the leave encashment benefits would also be admissible to the officers who have been awarded punishment of Compulsory Retirement at par with those officers who retire from service after reaching superannuation age.
This will come into retrospective effect from 14th June, 1997.
General Manager Sd.--
(Personnel)"
(13) Learned Counsel for the petitioner also relied on a circular dated 11 May, 2015 issued by the Indian Banks' Association pertaining to encashment of leave on compulsory retirement, the relevant portion whereof reads as follows:-
"Based on the various representations received from banks in the matter, quoting the court's decision and Government of India decision, the HR Committee at its meeting held on 6.4.2015 discussed the issue and was of the view that the officers/employees in Public Sector Banks may be permitted for encashment of privilege leave to their credit on compulsory retirement in view of the similar provisions in SBI/Government of India. The matter was placed before the Managing Committee at its meeting held on April 30, 2015. The Committee deliberated the matter and approved the recommendations of the HR Committee and decided to permit encashment of PL for compulsory retired employees/officers.
Member banks may kindly note the above decision of the HR Committee/Managing Committee of IBA and be guided accordingly. The date of effect of the above decision will be from the date of the decision of the Managing Committee, i.e. April 30, 2015."
(14) Learned Counsel has relied on as many as ten decisions of various High Courts and the Apex Court in support of his submission that an employee who is compulsorily retired is entitled to leave encashment. The decisions are as follows:-
(i) Deepak Sapra-vs.-Panjab National Bank (Delhi High Court Division Bench) - Judgment dated 18 September, 2013 delivered in LPA 693 of 2013.
(ii) Satish Chandra Kumar-vs.-Syndicate Bank (P & H High Court) -
Judgment dated 4 September, 2013 delivered in CWP No. 16416 of 2011.
(iii) Sreeram Ramamurthy-vs.-Andhra Bank (Andhra Pradesh High Court) - Judgment dated 22 March, 2012 delivered in WP No. 9069 of 2011.
(iv) Andhra Bank-vs.-Sreeram Ramamurthy (Andhra Pradesh High Court Division Bench) - Judgment dated 8 August, 2013 delivered in WA No. 905 of 2012.
(v) Oriental Bank of Commerce-vs.-Jinder Singh (P & H High Court) - Judgment dated 13 July, 2011 delivered in LPA No. 1147 of 2011.
(vi) D. Kalaichelvan-vs.-Union Bank of India (Madras High Court) - Judgement dated 25 July, 2012 delivered in WP No. 27311 of 2010.
(vii) Jyotirmay Roy-vs.-Punjab National Bank (Calcutta High Court) - Judgment dated 3 April, 2012 delivered in WP No. 1562 of 2010.
(viii) Surinderjit Singh-vs.-Punjab and Sind Bank (P & H High Court) - Judgment dated 16 July, 2015 delivered in CWP No. 4816 of 2012 - Upheld by the Division Bench and the Supreme Court.
(ix) Bank of India-vs.-Sri Sribrata Deb (Calcutta High Court) - Judgment dated 8 September, 2016 delivered in MAT 698 of 2016.
(x) UCO Bank-vs.-Anju Mathur (P & H High Court) - Judgment dated 7 March, 2013 delivered in LPA No. 566 of 2012.
(15) Learned Counsel for the Bank referred to Regulation 4 of the United Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976 and submitted that punishment of compulsory retirement is a major penalty. Learned Counsel also relied on a circular dated 27 November, 2000 issued by the Indian Banks' Association which, inter alia, stated that an officer whose services are terminated or is compulsory retired as a punishment as per Regulation 4 of the Officer Employees' (Discipline and Appeal) Regulations will not be entitled to leave encashment on retirement. He submitted that the petitioner has no legally enforceable right to claim leave encashment benefits on the basis of the respondent Bank's circular dated 11 June, 2003 as the said circular was issued inadvertently overlooking the provisions of Regulation 38 of the UBI Officers' Service Regulation 1979 read with the Indian Banks' Association circular dated 27 November, 2000. Learned Counsel then referred to a circular dated 19 October, 2012 issued by the respondent Bank, inter alia, to the effect that an officer who has been discharged, dismissed or terminated or has been compulsory retired after imposition of punishment as per Regulation 4 of the United Bank of India Officer Employees' (Discipline and Appeal) Regulations 1976 will not be entitled for leave encashment.
Learned Counsel then relied on a decision dated 17 December, 2012 delivered by a Division Bench of this Court in APO 284 of 2012 (Punjab National Bank-vs.- Jyotirmay Roy) wherein it was held that a compulsory retirement cannot be equated with ordinary retirement and thus a compulsorily retired officer is not entitled to the benefit of leave encashment. Learned Counsel submitted that although a subsequent Division Bench of this Court in the case of Bank of India-vs.-Sri Sribrata Deb (supra) agreed with the view of the Delhi High Court in Deepak Sapra (supra) and although the Special Leave Petition against the Delhi High Court's judgment in Deepak Sapra (supra) has been dismissed by the Hon'ble Apex Court, the Hon'ble Apex Court has kept the question of law open. He submitted in view of the conflict between the two judgments of two Division Benches of this Court, the issue should be referred to a Larger Bench.
(16) Rule 38 of the United Bank of India (Officers') Service Regulations, 1979 reads as follows:-
"R.38. Save as provided below, all leave to the credit of an officer shall lapse on resignation, retirement, death, discharge, dismissal or termination for any reason whatsoever;
Provided that where an officer retires from the Bank's service in terms of Regulation 19 of these Regulations or seeks voluntary retirement on or after 1st November, 1993 in terms of United Bank of India (Employees') Pension Regulations, 1995 he shall be eligible to be paid a sum equivalent to the emoluments of any period not exceeding 240 days of privilege leave that he had accumulated;
Provided further than where an officer dies while in service there shall be payable to his legal representative sums which would have been payable for the period not exceeding 240 days of privilege leave to his credit as on the date of his death."
(17) This Rule pertaining to the entitlement of Bank Officers to leave encashment is the same or substantially similar in case of most of the Nationalized Banks. In Deepak Sapra-vs.-Punjab National Bank (supra), the Punjab National Bank contended by placing reliance on Regulation 38 of the Punjab National Bank Officers' Service Regulations, 1979, which is in pari materia with Rule 38 of the UBI Officers Service Regulations that compulsory retirement imposed as a penalty would disqualify the employee for leave encashment benefits. Learned Single Judge of the Delhi High Court accepted the Bank's contention and rejected the petitioner's claim for leave encashment. The appeal of the retired employee was allowed by the Division Bench which observed, inter alia, as follows:-
"8. Thus, in respect of all categories of retirees, the first proviso states that such employees would be eligible to payment of leave encashment benefits. Advisedly, the regulation which was framed after prior consultation with and approval of the Central Government made no distinction between one class of retirees and another. Indeed there is no dispute about the fact that the cessation of service as a result of retirement can be on the occurrence of three contingencies - attainment of superannuation; option by the employee to voluntarily retire from the service, and the third, retirement of an employee upon imposition of a penalty or exercise by the employer upon imposition of a penalty or exercise by the employer of an option to compulsorily retire the employee on this attaining a certain age or having served for a certain number of years, in public interest. The first proviso makes no distinction between one class of retirees and another. In other words, each one of them, in terms of Regulation 38 of the 1979 Regulations is entitled to leave encashment benefit. In the case of those imposed with penalty of compulsory retirement, there is no dispute that pension - as applicable and other terminal benefits are given. In these circumstances, to single-out one class of retirees, i.e. those imposed with compulsory retirement and deny them the benefit of leave encashment would be contrary to plain intent of Regulation LPA693/2013 Page 7 38 of the 1979 Regulations. This Court is clear that the first part of the learned Single Judge's reasoning that he preferred and relied upon the bank's circular of 18.01.2001 is clearly erroneous. That circular flies in the face of the first proviso to Regulation 38 of 1979 Regulations and could not have added words as it sought to, in the present instance. Another reason which persuades us to hold as we do, i.e. to say that compulsory retirees would be entitled to leave encashment benefits is that singling-out such class of employees for denial for one specific type of retirement benefit is also arbitrary and furthers no rationale, having regard to the express terms of Regulation 38 of the 1979 Regulations.
9. This Court is, therefore, of the opinion that the reasoning embodied in the Full Bench judgment of the Punjab and Haryana High Court in UCO Bank and Ors. v. Anju Mathur [LPA 566/2012, decided on 07.03.2013], which specifically dealt with Regulation 38, is the correct one. The effect and purport of the decision in Jitendra Kumar Srivastava (supra) is the same with one superadded reason that leave encashment benefits are property, being vested rights, which cannot be deprived of without authority of law. The conclusion that this Court is reaching is identical to that reached by the Supreme Court, i.e. that in the absence of specific regulation, depriving one class of retirees (such as those imposed with penalty of compulsory retirement) leave encashment benefits is unwarranted and unsupported in law."
(18) In UCO Bank-vs.-Anju Mathur (supra), a Full Bench of the Punjab and Haryana High Court held that a Bank Officer who has been compulsorily retired by way of penalty shall also be entitled to leave encashment. This is because Regulation/Rule 38 of the UCO Bank Officers Service Regulations did not exclude an officer who retired by reason of punishment of compulsory retirement having been imposed on him.
(19) This issue came up before an Hon'ble Division Bench of this Court in Bank of India-vs.-Sri Sribrata Deb (supra). In that case relying on the Delhi High Court's judgment in Deepak Sapra (supra) and the Full Bench judgment of the Punjab and Haryana High Court in UCO Bank-vs.-Anju Mathur (supra), the leaned Single Judge held that leave encashment would be available to an employee who had been compulsorily retired from service by way of punishment. In appeal preferred by the Bank, Learned Counsel for the Bank argued that the judgment in Deepak Sapra (supra) was challenged by the Punjab National Bank by filing a SLP and a stay had been granted by the Supreme Court and since Regulation 38 is the same in case of most of the Nationalized Banks, the issue is pending before the Hon'ble Supreme Court. The Hon'ble Division Bench rejected the argument for Learned Counsel of the Bank and held as follows:-
"On 16th December, 2013 the Supreme Court had granted a stay in respect of Deepak Sapra's case. The matter was heard on 25 August, 2015 along with the Special Leave Petition filed by the different Banks in respect of the issue as to whether leave encashment can be granted to an employee on his compulsory retirement. There can be no dispute that the judgment of the Delhi High Court was affirmed by the Supreme Court on 25th August, 2015 as the SLP filed by the Punjab National Bank was dismissed along with two other SLPs filed by different Banks.
Mr. Majumdar has submitted that since the question of law has been kept open by the Supreme Court, the appeal should be admitted.
We are afraid that we do not agree with the submission of the learned Counsel. The Delhi High Court in Deepak Sapra's case relied on the judgment of the Full Bench of the Punjab & Haryana High Court in UCO Bank & Ors. vs. Anju Mathur decided on 7th March, 2013 and observed that the interpretation of Regulation 38 of the Punjab National Bank Officers' Service Regulations, 1979, which is pari materia with Regulation 38 of the Bank of India's Officers' Service Regulation, 1979, was correct. The judgment in Deepak Sapra's case relies on the decision of the Supreme Court in the case of State of Jharkhand & Ors. vs. Jitendra Kumar Srivastava & Anr. reported in (2013) 12 SCC 210 where the Supreme Court held in identical circumstances that in the absence of a statutory provision an employee cannot be deprived of his leave encashment benefits on the basis of administrative instructions.
Therefore, in our opinion, there is no warrant for admitting the appeal as the issue as to whether leave encashment is payable to those who have been compulsorily retired has been decided by the Supreme Court.
The appeal is dismissed."
(20) In view of the aforesaid, I need not advert to the other decisions cited on behalf of the petitioner. It is clear that Rule 38 does not disentitle the petitioner to the benefits of leave encashment in spite of the fact that he was compulsorily retired by way of punishment.
(21) In so far the case of Punjab National Bank-vs.-Jyotirmay Roy (supra) is concerned, in that case, there was a Bank circular laying down the eligibility for leave encashment and travelling allowance which was to the following effect:-
"The eligibility for the benefits of leave encashment and travelling allowance to officers who have been imposed penalty under Regulation 4 of the Officer Employees' (Discipline & Appeal) Regulation was examined by the Personnel Committee of Indian Banks Association and it has been advised that officers whose services are terminated or compulsorily retired as a punishment will not be entitled to the above benefits. However, such officers who are retired under the circumstances mentioned in Regulation 19 of PNB Officers' Service Regulations would be entitled to encash the accumulated Privilege Leaves and for the facility of travelling allowance on retirement."
In that context, the Hon'ble Division Bench held that the learned Single Judge erred by making compulsory retirement to mean ordinary retirement thereby bringing the petitioner within the eligibility clause of the said Bank's circular. Hence, there is no real conflict between the judgment and order in that case and the judgment and order in the case of Bank of India-vs.-Sri Sribrata Deb (supra). (22) In so far as the Indian Banks' Association Circular dated 27 November, 2000 and the Circular dated 19 October, 2012 issued by the respondent Bank are concerned, the same have no statutory force and cannot override Regulation 38 of the UBI Officers' Service Regulation, 1979. In fact, learned Counsel for the respondent Bank himself submitted that the said Service Regulations framed under Sec. 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, are statutory in nature. In this connection learned Counsel also relied on a decision of the Hon'ble Apex Court in the case of Ramesh Chandra Sharma-vs.-Punjab National Bank & Anr, (2007) 9 SCC 15. In that case, the Hon'ble Apex Court observed that the concerned Regulations having been framed by the Bank in exercise of power conferred by statute, the Regulations are statutory in nature. (23) Accordingly, the petitioner's claim for leave encashment succeeds. Re: Second Option for availment of pension:-
(24) Learned Counsel for the petitioner contended that the petitioner admittedly did not opt for option at the first stage. However, as per the policy of the entire banking industry, at the behest of the Government of India, those employees who did not opt for pension at the first stage were given a second opportunity to opt for pension on certain conditions. However, the petitioner could not take advantage of the second option since he was under termination of service. However, upon receipt of the order of compulsory retirement, the petitioner exercised his option for availment of pension vide letter dated 18 November, 2010 followed by letter dated 14 April, 2011.
Further, the order dated 11 August, 2010 issued by the Disciplinary Authority imposing the punishment of compulsory retirement on the petitioner in substitution of punishment of dismissal itself states that the petitioner would be entitled to superannuation benefits i.e. pension and/or provident fund and gratuity as would be due under the prevailing Rules and Regulations. Hence, the Bank should be directed to consider the petitioner's prayer for pension as per the Bank's Pension Regulations/Circulars, submitted learned Counsel.
(25) Learned Counsel for the Bank submitted that at the time of dismissal from service, the petitioner was not a pension optee as per the Pension Scheme introduced in the year, 1995. This showed that the petitioner preferred the CPF Scheme rather than the Pension Scheme. Hence, it was not possible for the Bank to consider the petitioner's plea of pension.
(26) I completely agree with Mr. Majumder, Learned Senior Counsel, for the Bank that the Bank could not have considered the petitioner's request for pension prior to his termination since he had not opted for the Pension Scheme. However, after the punishment of dismissal was substituted by that of compulsory retirement, the petitioner did make representations to the Bank for opting for the Pension Scheme. It seems such representations have not elicited any response. Since the petitioner is entitled to the superannuation benefits, I only direct the respondent no. 2 to consider the petitioner's representations for coming under the Pension Scheme of the Bank and take a reasoned decision in respect thereof in accordance with law and the applicable rules and regulations of the Bank, if any, within a period of eight weeks from the date of communication of this order, after giving an opportunity of hearing to the petitioner. The decision so taken by the respondent no. 2 shall be communicated to the Bank within a fortnight from the date of the decision. Conclusion:-
(27) This writ petition succeeds. The respondents are directed to pay interest on the gratuity amount paid to the petitioner at the rate of 9 per cent per annum with effect from 1 September, 2007 till the date of actual payment. The respondents shall also release in favour of the petitioner leave encashment for 240 days with interest at the rate of 8 per cent annum from 1 September, 2007 till the date of actual payment.
Both the aforesaid payments shall be made to the petitioner within 12 weeks from date. As regards the petitioner's exercise of option for pension, the respondent no. 2 shall take a reasoned decision in the matter as indicated above within eight weeks from the date of communication of this order.
(28) WP No. 585 of 2014 is accordingly disposed of, without, however any order as to costs.
(29) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance with necessary formalities.
(Arijit Banerjee, J.)