Allahabad High Court
Subhash Babu Katiyar vs Aryavart Bank, Lucknow And 3 Others on 6 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 46
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Case :- WRIT - A No. - 11494 of 2019 Petitioner :- Subhash Babu Katiyar Respondent :- Aryavart Bank, Lucknow And 3 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare (Sr. Advocate) Counsel for Respondent :- Amrish Sahai Hon'ble Mrs. Sunita Agarwal,J.
1. Heard Sri Utkarsh Birla learned Advocate holding brief of Sri Siddharth Khare learned Advocate for the petitioner and Sri Amrish Sahai learned counsel for the respondent-Bank.
2. By means of the present petition, the petitioner herein seeks relief in the nature of mandamus for declaration of Regulation 20 of the Aryavart Bank (Employees') Pension Regulations, 2018 as ultra vires the Constitution of India and inoperative so far as it incorporates the condition that resignation would entail forfeiture of past services and consequential disqualification for pension. A writ in the nature of certiorari has been sought for quashing of the communication dated 24.5.2019 issued by the Chief Manager, Aryavart Bank, Head Office, Lucknow. A further direction has been sought commanding the respondents to forthwith sanction pension to the petitioner and make payment of monthly pension regularly each month and disburse all arrears of pension within the time period to be specified by this Court.
3. The facts in brief relevant for deciding the controversy in hands are that the petitioner was initially appointed on the post of Field Supervisor in the Allahabad U.P. Gramin Bank having its Head Office at Banda. While working as such, in the year 1991 he was accorded designation of the Junior Management Grade-I Officer. He, however, had submitted a resignation letter dated 21.12.2015 which was rejected by the order dated 18.3.2016 passed by the Regional Manager, Allahabad U.P. Gramin Bank, Banda. The Chief Manager, Allahabad U.P. Gramin Bank, Banda further sent a communication dated 31.8.2016 to the effect that it was open for the petitioner to submit a fresh resignation. On 9.12.2016, the petitioner submitted a fresh resignation letter which was accepted and the petitioner was relieved from the duties vide order dated 22.2.2017 passed by the Regional Manager, Allahabad U.P. Gramin Bank. With effect from 1.4.2019, two Regional Rural Banks namely Allahabad U.P. Gramin Bank and Gramin Bank of Aryavart have been amalgamated and renamed as 'Aryavart Bank' having its Head Office at Lucknow.
4. It appears that on 1.1.2019, a circular was issued by the General Manager of the then Allahabad U.P. Gramin Bank, Banda to the effect that in pursuance of the judgment of the Apex Court dated 25.4.2018 passed in Special Leave Petition No. 39288 of 2012, the Central Government had issued a circular dated 16.8.2018 directing for sanction of pension to the employees of the Regional Rural Banks. The said circular provided that after approval of the Executive Committee of the bank, with reference to the Allahabad UP Gramin Bank (Officers & Employees') Service (Amendment) Regulations, 2018 and Allahabad U.P. Gramin Bank (Employees') Pension Regulations w.e.f. 7.12.2018, Pension Scheme-2018 and Pension Regulations-2018 would be effective with the directions contained therein.
5. The Clause 1.1 of the said circular, which was duly adopted by the bank, stipulates that the pension scheme would be available to all such employees who remained in the services of the bank between 1.9.1987 to 31.3.2010. The eligible employees/retired employees, under the Employees Pension Scheme, 1995 would be entitled to the benefits of Pension Scheme, 2018, subject to the condition that they submit their option on the prescribed proforma uptil 5.4.2019 or prior thereto (within 120 days from the date of the notification). Further condition is that the benefits of the Provident Fund accorded to such employees under the Pension Scheme 1995, who submit their option, accordingly, had to be returned alongwith the accrued interest thereon.
6. The said circular further provides that in case of discontinuance of service for the reasons other than voluntary retirement such as resignation, dismissal, removal or termination, the entire past services would stand forfeited and consequently, such an employee would not be entitled to pension under the Pension Scheme, 2018.
7. The petitioner herein aggrieved by the scheme of Clause 1.7 of the Pension Scheme, 2018 made effective since 7.12.2018.
8. The contention of learned counsel for the petitioner that there is no justification for treating the resignation within the category of termination of service differet from a case of voluntary retirement. Both in the case of resignation and voluntary retirement, choice/option is to be exercised by the concerned employee for not continuing further in the services concerned. The resignation from service being a voluntary act of the employee cannot be treated at par with the case of dismissal, removal or termination of service, which is a consequence of allegations of misconduct against an employee and no such allegation can be found in the case of resignation given by an employee.
9. Regulation 20 of the Aryavart Bank (Employees') Pension Regulations, 2018 is sought to be declared ultra vires with the contention that inclusion of resignation for entailing forfeiture of entire past service therein is without any justification, inasmuch as, such a principle is not known to be a valid principle of law applicable to service jurisprudence. It is contended that Regulation 20 of the Aryavart Bank (Employees') Pension Regulations, 2018 is invalid, inasmuch as, it makes an unreasonable distinction between a case of resignation from service and of voluntary retirement, contrary to the constitutional protection given to the employees in public service. Such a classification is wholly impermissible in the Constitutional scheme and violates Concept of equality enshrined in Article 14 of the Constitution of India.
10. It is further submitted that the petitioner is clearly covered by the Pension Scheme, 2018, inasmuch as, he was in services of the bank between 22.4.1985 to 22.2.2017 (the aforesaid period provided under the Scheme). In order to avail the benefit of the pension scheme, the petitioner had submitted a duly filled option form on 8.2.2019. The said form was, however, returned by the Regional Manager, Allahabad UP Gramin Bank, Regional Office, Chitrakoot vide communication dated 2.3.2019. Further, the Chief Manager, Aryavart Bank rejected the petitioner's prayer by an intimation dated 24.5.2019 giving reason that in terms of the Regulation 20 of the Aryavart Bank (Employees') Pension Regulations, 2018, after the amalgamation of the erstwhile Gramin Bank of Aryavart and Allahabad UP Gramin Bank w.e.f. 1.4.2019, the petitioner having forfeited his services from the bank by giving resignation, is not entitled to pension.
11. The submission is that the order impugned being based upon a provision incorporated in the regulations applicable w.e.f. 1.4.2019 (or in the year 2018), much after the resignation of the petitioner which is of an anterior date i.e. 22.2.2017, is illegal. The reason being that the disqualification, if any, under the said regulations, though accepted as existing without admission, cannot be applied with retrospective effect. No such condition of forfeiture existed at the time when the petitioner had resigned from service of the bank. Penalty clause regarding forfeiture of past services on account of resignation as per the Regulations 2018, thus, cannot be applied to deny the benefits of the Pension Scheme, 2018 to the petitioner.
12. Sri Amrish Sahai learned Advocate appearing for the respondent-Bank, on the other hand, places reliance on several paragraphs of the counter affidavit to state that the petitioner had resigned in compelling circumstances after he was intimated vide communication dated 29.9.2016 of the Regional Manager, Chitrakoot regarding the reported irregularities during his posting at Pahari Branch.
13. He further submits that the regulations namely Allahabad U.P. Gramin (Employees') Pension Regulations, 2018 had been framed by the Board of Directors in exercise of the power conferred by Section 30 readwith sub-section (1) of Section 17 of the Regional Rural Banks Act, 1976 (Act No. 21 of 1976), after consultation with the Sponsor bank and National bank coupled with the sanction of the Central Government. The circular dated 1.1.2019 regarding implementation of the Pension Regulations, 2018 had, thus, been issued for its application to the eligible employees including the retired employees of the bank.
14. The petitioner having been found ineligible for pension, the option form submitted by him was returned in original. On a fresh submission of the application form for availing the pension, the Chief Manager, Aryavart Bank had intimated the petitioner vide letter dated 24.5.2019 that he was not entitled to pension, in terms of Regulation 20 of the Aryavart Bank (Employees') Pension Regulations, 2018, as he had resigned from the services of the bank.
15. Clause 1.7 of the Circular dated 1.1.2019 readwith the Regulation 20 of the Aryavart Bank (Employees') Pension Regulations, 2018 have been relied upon by the learned counsel for the respondent-bank to vehemently submit that the resignation though a voluntary act of an employee but cannot be treated as voluntary retirement. The Apex Court in a recent judgment in Senior Divisional Manager, Life Insurance Corporation of India & others vs. Shree Lal Meena1 decided on 15th March, 2019 has dealt with the same issue and held that an employee resigning even not during the currency of the Pension Rules would not be entitled to pensionary benefits as the scheme disentitle such an employee from getting benefits. A similar pension scheme had been considered by the Apex Court in UCO Bank & others vs. Sanwar Mal2, wherein it was held that the pension scheme disqualifies dismissed employees and the employees who have resigned from membership of the fund. In a self-financing 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 and, therefore, it is to be investigated 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. Under the scheme, the contributory funds has to be investigated and payments are to be made out of them.
16. The other reason given therein is that the retirement is allowed whether voluntary or superannuation, on completion of qualifying service which is not so in the case of resignation. A retiree who opts for self-financing pension scheme, bring in accumulated contributions earned by him after completing qualifying number of years of service under the provident fund rules whereas a person who resigns may not have adequate credit balance to his provident fund account, i.e. bank's contribution and, therefore, the regulations do not cover employees who resigned from service. The framers of the scheme have consequently kept out the resigned as well as dismissed employees from the benefits under the scheme.
17. Having noted the above, it would be apt to go through the scheme of the Pension Regulations' 2018 relevant to deal with the arguments of learned counsel for the petitioner that resignation though a unilateral act but would not entail for forfeiture of service. Further that other ingredients of voluntary retirement being made, the petitioner would be entitled to pension under the regulations treating him as having voluntary retired.
18. Noticeable is that the petitioner herein having resigned on 22.2.2017, the relevant regulations applicable was Employees Pension Scheme, 1995 framed under the Employees Provident Fund and Miscellaneous Provisions Act' 1952. Under the said scheme, the employees of the bank were only entitled to the provident fund, etc. Pension was not being accorded to such employees. In the light of the sanction given by the Central Government, the Board of Directors, in exercise of the power conferred upon it under the Regional Rural Banks Act, 1976, had framed the Pension Regulations, 2018 with respect to the eligible and retired employees of the bank. The said regulation came into force with the Circular dated 1.1.2019.
Relevant Clauses 1.1 to 1.7 of the said Circular are to be quoted hereunder:-
1.1 इस योजना में दिनांक 01.09.1987 से 31.03.2010 तक बैंक सेवा में रहे कार्मिक ही पात्र होगे।
1.2 पेंशन योजना 2018 के लिये पात्र कार्मिक/ सेवानिवृत्त कर्मिक/मृतक कर्मिक आश्रित वर्तमान कर्मचारी पेंशन स्कीम 1995 (कर्मचारी भविष्य निधि एवं प्रकीर्ण उपबन्ध अधिनियम 1952 के स्थान पर पेंशन योजना, 2018 के लिये निर्धारित प्रारूप पर दिनांक 05.04.2019 अथवा उससे पूर्व (अधिसूचित तिथी से 120 दिन) तक विकल्प प्रस्तुत करने के पश्चात् ही पात्र होगे।
1.3 पात्र सेवानिवृत्त कार्मिक तथा मृतक आश्रित पेंशन योजना, 2018 हेतु दिनांक 04.06.2019 अथवा उससे पूर्व (अधिसूचित तिथि से 120 दिन के पश्चात् 60 दिन) कर्मचारी पेंशन योजना, 1995 के अन्तर्गत भविष्य निधि में बैंक द्वारा किये गये अंशदान की सम्पूर्ण राशि एवं उस पर अर्जित ब्याज की राशि वापस करने के उपरान्त ही पात्र होगें।
1.4 पेंशन के लिये इन विनियमो में अन्तर्विष्ट शर्तों के अधीन रहते हुए ऐसे कार्मिक जिसने बैंक में न्यूनतम दस वर्ष, की सेवा पूर्ण की हो, पेंशन के लिये पात्र होगे लेकिन मृत कार्मिक के प्रकरण में उक्त उपबन्ध प्रभावी नहीं होगा।
1.5 पेंशन के लिये अर्हक सेवा में वेतनहानि, असाधारण छुट्टी (वेतन रहित) एवं निलम्बन अवधि (जिसको सेवा अवधि में नहीं माना गया) को शामिल नहीं किया जायेगा।
1.6 यदि किसी कर्मचारी की सेवा में एक वर्ष से कम का खण्डित (वेतन रहित अथवा निलम्बन अवधि सहित) सेवाकाल सम्मिलित है जो कि छह माह से अधिक है तो उसे एक वर्ष माना जायेगा और यदि ऐसा खण्डित काल छह माह या उससे कम है तो उसे छोड़ दिया जायेगा।
1.7 सेवाकाल के समपहरण हेतु स्वैच्छिक सेवानिवृत्त के अलावा किसी कर्मचारी के बैंक के सेवा से त्यागपत्र देने या उसके पद्च्युत् किये जाने या हटाये जाने या सेवा समाप्ति पर उसकी सम्पूर्ण पिछली सेवा समपृहत हो जायेगी और परिणामस्वरूप इन विनियमों के अधीन पेंशन प्राप्त करने हेतु पात्र नहीं होगे।"
19. After merger of two Regional Rural Banks namely Allahabad U.P. Gramin Bank and Gramin Bank of Aryavart w.e.f. 1.4.2019, Aryavart Bank (Employees') Pension Regulations, 2018 are applicable.
20. Regulation 20 of the Aryavart Bank (Employees') Pension Regulations, 2018 is also to be quoted hereunder:-
"20. Forfeiture of service:-
(1) Resignation not amounting to voluntary retirement or dismissal or removal or termination of an employee from the service of the Bank shall entail for forfeiture of his entire past service and consequently shall not quality for pension under these regulations."
21. A careful perusal of the said provisions indicates that both the above regulations namely Allahabad U.P. Gramin Bank Pension Regulation and Aryavart Bank (Employees') Pension Regulations, 2018 provide for forfeiture of past services of an employee who has resigned from services of the bank and that he shall not qualify for pension under the regulations, consequently. Clause 1.7 of Allahabad U.P. Gramin Bank (Employees') Pension Regulations, 2018 and Regulation 20 of the Aryavart Bank (Employees') Pension Regulations while excluding discontinuance of service on account of voluntary retirement provides that resignation, dismissal, removal or termination of an employee shall entail forfeiture of his entire services which shall not qualify for pension under the regulations.
22. The petitioner herein is aggrieved by the aforesaid scheme and states that the Pension scheme, 2018 has illegally been made applicable with retrospective effect and is available to all those employees who had retired between 1.9.1987 to 31.3.2010 from the services of the Bank, when the scheme was not in vogue, subject to them giving option to seek coverage of the scheme.
23. The contention is that the petitioner having worked during the aforesaid period and having submitted option form within the time prescribed under the Pension Regulations, 2018 cannot be denied benefit of the scheme.
24. The submission is that the petitioner has put in 32 years of continuous service in the respondent bank and his voluntary act of leaving services of the bank after such a long stint was on account of adverse medical conditions. The resignation letter dated 23.11.2016 filed with the rejoinder affidavit has been placed to state that reading of its content would demonstrate that the petitioner had expressed his inability in discharging work of the bank on account of his adverse physical conditions and family circumstances. Further, at the point of time when the petitioner tendered his resignation, i.e. on 23.11.2016, there did not exist any forfeiture clause. Thus, there was no question of the petitioner having knowledge of the fact that his resignation from service would result in forfeiture of his entire past services. Had it been so, the petitioner would not have resigned and as such applying the forfeiture clause in the case of the petitioner would amount to giving retrospective effect to a penal provision, for which there can be no justification.
25. It is contended that in similar facts situation, the Apex Court in the case of Shashikala Devi vs. Central Bank of India and others3 has held that the employee having expressed his inability of discharging work of the bank properly on account of his adverse physical condition and family circumstances in the resignation letter, he would not be disentitled for the benefit of pension. The use of the expression "resignation" is not conclusive even when the regulation makes a clear distinction between "resignation" and "voluntary retirement". The Supreme Court had further directed therein to treat the letter of resignation as a notice of voluntary retirement of the employee and for curtailment of three months notice period. He was, thus, held entitled to the retiral benefits due under the relevant rules.
26. The submission is that the facts in the present case show similar position and the view taken by the Apex Court in Shashikala Devi3 is squarely applicable in the present case.
27. To deal with the above, having noticed the forfeiture clauses of the Pension Regulations, 2018 as applicable w.e.f. 1.1.2019, it would be appropriate to go through the entire pension scheme so as to understand whether the benefit of it can be given to the petitioner with retrospective effect much after his resignation.
28. Clause 4 of the Pension Scheme, 2018 is relevant to be extracted as under:-
"4.1 बैंक द्वारा "इलाहाबाद यूपी ग्रामीण बैंक (कर्मचारी) पेंशन निधि" का गठन किया जायेगा। इस पेंशन निधि के माध्यम से पात्र कर्मचारी या उसके आश्रित को पेंशन योजना, 2018 के अनुसार पेंशन का भुगतान किया जायेगा।
4.2 पात्र कार्मिक/सेवानिवृत्त कार्मिक/ मृतक कर्मिक आश्रित द्वारा कर्मचारी पेंशन योजना, 1995 के भविष्य निधि में बैंक द्वारा किये गये अंशदान की सम्पूर्ण राशि एवं उस पर अर्जित ब्याज की राशि जो कि बैंक को वापस की जायेगी, "इलाहाबाद यूपी ग्रामीण बैंक (कर्मचारी) पेंशन निधि" में अन्तरिक की जायेगी।
4.3 इलाहाबाद यूपी ग्रामीण बैंक (कर्मचारी) पेंशन निधि" में कार्मिकों के वेतन के दस प्रतिशत प्रति मास की दर से बैंक द्वारा अंशदान अंतरिक किया जायेगा। वेतन से अभिप्राय भविष्य निधि में अंशदान के लिये शामिल किये जाने वाले अवयवो से है।
4.4 इलाहाबाद यूपी ग्रामीण बैंक पेंशन निधि के रखरखाव एवं विनिवेश हेतु पेंशन ट्रस्ट का गठन किया जायेगा।
4.5 ट्रस्टीज द्वारा बैंक की निवेश नीति के प्रवधानों का अनुपालन करते हुए पेंशन फण्ड को बेहतर यील्ड प्रदान करने वाली संस्थाओं में निवेशित किया जायेगा। फण्ड रूल्स को परिवर्तित करने का अधिकार नियोक्ता के पास निहित होगा जो ट्रस्टीज को तीन माह का नोटिस देकर फण्ड रूल्स को परिवर्तित कर सकेगा।"
29. Clause 4.1 of the said scheme envisages creation of a pension fund and that the pension would be payable to the bank employees from the said fund.
30. Clause 4.2 contemplates that all eligible employees who were benefited under the Employees Pension Scheme, 1995 had to return the entire amount of contribution towards provident fund alongwith accrued interest to the bank for transfer of the same in the pension fund known as "Allahabad U.P. Gramin Bank (Karmchari) Pension Nidhi".
31. Clause 4.3 contemplates that the pension fund would be created from the contribution of the bank on monthly basis at the rate of 10% per month of the salary of its employees. The "salary" means all component or part of the contributions being included in the provident fund. Clause 4.4 provides that for upkeep and maintenance of the pension fund, a Pension Trust would be constituted.
32. It is, thus, clear that the scheme of pension in the Pension Regulations, 2018 is a contributory pension scheme and is on self-finance principles. The membership of the pension fund though is not dependent on any requisite number of period of service rendered by an employee who becomes member of the pension fund by just being born in service, but Clause 2 of the Scheme further provides for the eligibility criteria for payment of pension which reads as under:-
2. पेंशन की दरः "2.1 पेंशन की पात्रता हेतु 33 वर्ष या उससे अधिक अर्हक सेवा पूर्ण करने के पश्चात् सेवा विनियमों या समझौते के उपबन्धों के अधीन सेवानिवृत्त होने वाले कार्मिकों की मूल पेंशन की रकम की संगणना उनके दस माह के औसत वेतन पर 50 प्रतिशत की दर से जायेगी। वेतन से अभिप्राय भविष्य निधि में अंशदान के लिये शामिल किये जाने वाले अवयवों से है।
2.2 पेंशन की पात्रता हेतु 33 वर्ष से कम किन्तु 10 वर्ष की अर्हक सेवा पूर्ण करने के पश्चात् सेवानिवृत्त होने वाले कर्मिकों को प्रो-राटा आधार पर पेंशन की रकम देय होगी।"
33. Thus, it can be seen that the clause 2.1 provides the rate at which pension would be payable to the eligible employees who had completed 33 years or more period of service. Whereas Clause 2.2 refers to the rate of pension which would be payable to the eligible employees having rendered less than 33 years of service but not less than 10 years of qualifying service.
34. The Pension Regulations, 2018, thus, clearly provides that all such employees who had retired by superannuation or on account of voluntary retirement would be entitled to pension subject to their eligibility under the scheme. However, pension would not be payable to those who have resigned or removed, dismissed or terminated from the services of the bank as past services, in such a case, would stand forfeited. A clear distinction has, thus, been drawn in the Pension Regulations in this regard. There is no ambiguity with regard to the retirement (either on superannuation or voluntary) being the condition precedent for grant of pension.
35. It is trite in the field of the statutory interpretation that where by liberal reading of the rule, no ambiguity is found in the language employed therein and the true impart of the rule can be given from its plain words, the Court would not add anything to it. The reading of the rule giving it a literal interpretation by plain and simple reading without adding any word to it is the first principle of statutory interpretation.
36. In service jurisprudence, the expressions "superannuation", "voluntary retirement", "compulsory retirement" and "resignation" convey different connotations. In the same rule namely clause 1.7, expressions like 'resignation'/'dismissal', 'removal' and 'termination' have been used. It is settled that when different expressions are used in the same rule in different context, then all of them cannot be given the same meaning [Reference: Kanhaiyalal Vishindas Gidwani vs. Arun Dattatray Mehta4].
37. In the instant case, the submissions of learned counsel for the petitioner are two folds; (i) first is that since Regulations, 2018 covers all those employees who had worked between 1.9.1987 to 31.3.2010, the benefit of pension cannot be denied to him as he has fulfilled requirement of submission of the option form and is ready to deposit the amount received by him towards provident fund under the then Employees Pension Scheme-1995; (ii) Second submission is that the condition that the resignation would amount to forfeiture of past services has been implemented for the first time by the Regulations, 2018 notified on 1.1.2019, the penalty of forfeiture of past services cannot be applied with retrospective effect. As there was no occasion for the petitioner to know that his resignation from service would entail such consequence, i.e. would disentitle him to the benefit of pension in future, the forfeiture clause cannot be invoked; (iii) Third submission is that the forfeiture clause of the Pension Rules, 2018 is in contravention of the fundamental principles of right to equality in service as guaranteed under Article 14 of the Constitution of India and thus, ultra vires the Constitution of India.
38. Insofar as the first and second argument of the learned counsel for the petitioner are concerned, they are self-defeating. What is material circumstance in the matter is that the petitioner herein had resigned. When the Pension Rules were promulgated on 1.1.2019, the petitioner was not in the category of a retired employee rather he was an employee who had resigned from service. The consequence of resignation being forfeiture of services in the Pension Rules, 2018, only those employees who had worked between 1.9.1987 to 31.3.2010 and retired whether on superannuation or voluntary, would only be entitled to pension. With the application of the Rules, 2018 in the case of the petitioner, it is crystal clear that he being an employee resigned from service would not be entitled to pension. In any case, on the relevant date when the petitioner took a conscious decision to disengage himself from the service of the bank, on the terms and conditions of service as prevalent on that date, the Pension Rule was not in existence. What could have happened in case of existence of the forfeiture clause or the pension rule at the time of resignation is not a circumstance, which in our view, would have any bearing on the present controversy. It cannot be accepted that had forfeiture clause been in existence, the petitioner would not have resigned from service knowing its repercussions. It is not possible for the Court to presume such a circumstance.
39. Now, this court is left with the question of vires of the forfeiture clause of the Pension Rules, 2018.
40. In Reserve Bank of India and another vs. Cecil Dennis Solomon and another5, in the similar circumstances, the Apex Court has decided the plea of an employee to grant pension after he had tendered resignation though much prior coming into operation of the Pension Regulations. It was held in paragraphs '10' and '11' of the report as under:-
"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. P.K. Mittal (AIR 1989 SC 1083), 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. 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 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 v. State of Assam (AIR 1978 SC 17), 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."
41. Further issue being raised herein has been set at rest with the decision of the Apex Court in Senior Divisional Manager, Life Insurance Corporation of India1 by a three judges Bench of the Supreme Court. The question whether the employees who had resigned from service prior to the notification of the pension scheme would be entitled to the benefit of pension scheme came up in a reference. Noticing diversions of judicial views of the Supreme Court, the principles enunciated in Reserve Bank of India5 have been followed to hold that the voluntary retirement is a concept read into a condition of service, which has to be created by the statutory provision. Whereas resignation is a unilateral determination of employer-employee relationship, an implied term of it, as an employee cannot be treated as a bounded labour. Further, the decision in UCO Bank2 in the case of similar pension scheme had been noted with approval in the Paragraph '24' of the said report as under:-
"24. In UCO Bank & Ors. v. Sanwar Mal9 , once again, in the case of a similar pension scheme, the observations were made as under:
"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 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 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 self-financing 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 retiree opts for selffinancing Pension Scheme, he brings in accumulated contribution earned by him after completing qualifying number of years of service under the Provident Fund Rules whereas a person who resigns may not have adequate credit balance to his provident fund account (i.e. bank's contribution) and, therefore, 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 (sic resigned) 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, Regulation 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 self financing 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 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 a 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."
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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 17 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 (sic is the same) 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 self-financing 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 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 vis-à-vis 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 v. Cecil Dennis Solomon & Anr. (supra). 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 18 or condition which is more in the nature of an eligibility criterion, the Scheme disentitles such category of employees as are out of it."
It was concluded in paragraph '25' as under:-
"25. We may only note that in the above discussed judgement, an argument assailing the Regulation for forfeiture of service, based on Article 14 of the Constitution of India was repelled. The provisions under the new Regulations were held not to be in the nature of penalty, but a disentitlement, as a consequence of having resigned from service and, thus, being disentitled from having become a member of the fund........xxxxxxxxxxxxxxxxxxxx".
42. The principles laid down in M.R. Prabhakar vs. Canara Bank & others6 and J.M. Singh vs. LIC7 have further been approved in the following words in the above quoted paragraph '25' itself:-
"25. xxxxxxxxxxxxxxxxxxxxxxxxxxxx There are other judgments also in the same line, but not laying down any additional principles and, thus, it would suffice to just mention them, i.e. M.R. Prabhakar & Ors. v. Canara Bank & Ors.10 and J.M. Singh v. Life Insurance Corporation of India & Ors.11."
43. The decision in Shashikala Devi3 relied by the learned counsel for the petitioner has also been considered in paragraph '26' to state as under:-
"26. There are some observations on the principles of public sectors being model employers and provisions of pension being beneficial legislations [Shashikala Devi vs. Central Bank of India, (2014) 16 SCC 260 : (2015) 3 SCC (L&S) 319 ; Asger Ibrahim Amin v. LIC, (2016) 13 SCC 797 : (2015) 3 SCC (L&S) 12. We may, however, note that as per what we have opined aforesaid, the issue cannot be dealt with on a charity principle. When the Legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication. The provisions will have to be read as they read unless there is some confusion or they are capable of another interpretation. We may also note that while framing such schemes, there is an important aspect of them being of a contributory nature and their financial implications. Such financial implications are both, for the contributors and for the State. Thus, it would be inadvisable to expand such beneficial schemes beyond their contours to extend them to employees for whom they were not meant for by the Legislature.".
44. The forfeiture clause of the pension scheme therein has been noted and it was held that having explained the difference between 'resignation' and 'voluntary retirement', mere categorisation of resignation by the appellant as "premature retirement" is of no avail. The principle of forfeiture of service would be attracted. The plea that the employees who had resigned must be construed as voluntarily retired, thus, entitling them to pensionary benefits, was repelled. It was held that the principle was of distinction between the concept of 'voluntary retirement' and 'resignation' in M.R. Prabhakar6, the Regulation 2(y) of the Pension Scheme applicable to the employees of Canara Bank therein was pari materia to the Rule 2(y) under the Pension Regulations of 1995 subject matter of consideration in Senior Divisional Manager, Life Insurance Corporation of India1.
45. It was noted that the Pension Regulations had brought in the concept of "voluntary retirement" in the definition of "retirement", but had not considered it appropriate to bring in the concept of 'resignation'. It was held that Service jurisprudence recognising the concept of 'resignation' and 'retirement' as different and in the same provision/regulation, these expressions being used in different connotations left no room for doubt that the benefit could not be extended, especially as resignation was one of the disqualifications for seeking pensionary benefits under the Pension Regulations.
46. In view of the legal principles enunciated by the Apex Court in Senior Divisional Manager, the light of the forfeiture clause of the Pension Regulation as applicable to the employees of Life Insurance Corporation of India therein, which is pari materia to the relevant regulation 1.7 herein of the Allahabad U.P. Gramin Bank (Employees') Pension Regulations, 2018 readwith Aryavart Bank (Employees') Pension Regulations, 2018, it is clear that the said decision squarely covers the issues raised herein.
47. Having analyzed different clauses of the Pension Rules, 2018 in the preceding paragraphs, it is evident that grant of pension under the said scheme is not permissible to an employee who had resigned from service. The forfeiture clause in the said Pension Regulations, 2018 would be attracted in case of all such employees who had resigned from service, whether prior to the promulgation of the Rules, 2018 w.e.f. 1.1.2019 or thereafter.
48. In view of the above discussions, all the submissions of learned counsel for the petitioner to challenge the vires of the forfeiture clause of the Pension Regulations, 2018 are found misconceived. Suffice it to reiterate that once the service jurisprudence itself recognizes the concept of 'resignation' and 'voluntary retirement' being different and in the same regulation 1.7, these expressions are used in different connotations, the principle of equality as enshrined in Article 14 of the Constitution of India has no application.
49. In view of the above, both challenge to the Regulation 20 of the Aryavart Bank (Employees') Pension Regulations, 2018 being ultra vires and validity of the decision of the Chief Manager, Aryavart Bank, Head Office, Lucknow to deny pension to the petitioner, are hereby repelled.
50. The writ petition is found devoid of merits and hence dismissed.
Order Date :- 6.1.2020
Brijesh (Sunita Agarwal, J.)