Punjab-Haryana High Court
H.S. Sodhi vs Oriental Bank Of Commerce on 18 August, 2004
Equivalent citations: (2005)140PLR805
Author: Surya Kant
Bench: Surya Kant
JUDGMENT Surya Kant, J.
1. By invoking the writ jurisdiction of this Court under the Article 226/227 of the Constitution of India, the Petitioner has come up with the following prayers:
(i) to issue a writ in the nature of certiorari for quashing order-cum-letter dated March 7, 1998 (Annexure P-9) whereby his representation has been rejected by the bank;
(ii) a writ in the nature of mandamus be issued commanding the Respondents to "grant additional special pension as per Clause 26 of the Pension Regulations, 1995" as the Petitioner possesses higher qualification in addition to more than 10 of years qualifying service as required by the afore-mentioned clause; and
(iii) a writ in the nature of mandamus may be issued commanding the Respondents to grant interest @ 18 per cent on the delayed payments of arrears of revised pay scale, pension, commutation less paid to the Petitioner as well as on the arrears of provident fund on revision wages.
2. The petitioner joined the Oriental Bank of Commerce, namely, Respondent No. 1 (hereinafter" referred to as the Bank) as Manager in the year 1972 on having been selected on the basis of his higher qualification of post graduation with C.A.I.I. Part 1; at the time when the petitioner was recruited, the upper age limit for direct recruitment to the post of Manager was of 25 years whereas he was 38 years of age and it was only on account of higher qualification coupled with 10 years experience which was earned by the petitioner while working as Manager in the Punjab State Cooperative Land Mortgage Bank, the prescribed age limit was relaxed in his case by the Bank; the petitioner was promoted as Senior Manager (MMS Grade-III) in the year 1992. He was placed in the pay scale of Rs. 4020-4190 in the year 1998 and was thereafter promoted to the rank of Chief Manager in the pay scale of Rs. 4520-5320 known as SMGS-IV; the petitioner retired from service on superannuation on May 31, 1994; at the time of retirement of the petitioner, certain amendments in the service regulations of the bank were anticipated, therefore, ad hoc payments were made to him in April 1996 i.e. after about two years as per the old pay scales; on August 22, 1996, amendments were carried out in the service regulations and a revised pay scale of Rs. 8970-10450 was announced vide circular dated August 22, 1996 (Annexure P-1) in scale IV retrospectively with effect from 1st July, 1993' pension scheme known as "Oriental Bank of Commerce (Employees) Pension Regulations, 1995" were introduced; the petitioner opted for the same and in terms thereof all those employees, who were in service of the Bank after 11.11.1993 but had retired before the notified date, where also made eligible for pension; thus, the petitioner also became eligible for pension as per these regulations; the Chief Manager of the Bank vide his communication dated February 5, 1996 (Annexure P-2) offered pensionary benefits to the petitioner on ad hoc basis which the petitioner accepted under protest; the petitioner noticed that his pension was wrongly fixed and represented to the Chief Manager, Pension Department that he was actually entitled for commuted pension of Rs. 1,47,9747- instead of Rs. 69,307/- it was thereafter that vide letter dated March 6, 1996 a cheque of Rs. 4,910.65 was issued after deducting Rs. 1,22,700.43 as provident fund contribution share of the Bank and interest thereupon amounting to Rs. 11,657/-thereby holding the petitioner entitled to a total amount of Rs. 1,39,268/- that whereas the revised scale were released to the working staff of the Bank in June 1995 the petitioner got the benefit only in October 1996 after a lapse of one year and four months for which also he is entitled to be paid interest @ 18% per annum: that the bank was charging interest, @ 6% per annum on its contribution towards provident fund and which was later on surrendered to the Bank by those officers who had opted for pension under the new Pension Regulations of 1995; the petitioner was informed that he too has been subject to the charge of afore-mentioned interest and an amount of Rs. 7490/- was withheld on this count; that since the revised pay scale was released to the petitioner in October 1996, his commutation of pension was also delayed to which he is entitled to payment of interest as he has been paid Rs. 9,111/- less of the total amount of commutation, apart from less payment of Rs. 10,805/- towards pension as well as Rs. 9,790/- less towards provident fund. Since he has claimed interest @ 18% per annum upon these amounts, he is entitled for an amount of Rs. 30,381/- towards interest
3. The second grievance of the petitioner is that as per Clause 26 of the Pension Regulations, 1995, he is entitled to add qualifying service of minimum 5 years towards his total service qualifying for pension as he was recruited after relaxing the maximum age limit on account of he being in possession of post graduate specialised qualification, apart from 10 years actual experience in the managerial capacity. Both these claims, namely, payment of interest and the benefit of 5 years additional service towards qualifying service were raised by the petitioner before the Bank through a legal notice dated November 18, 1996 (Annexure P-6) but having received no response, he approached this court by way of C.W.P. No. 3706 of 1997 which was disposed of vide an order dated December 22, 1997 by permitting the petitioner to withdraw the same and to represent the competent authority which in turn was to decide the same within a period of three months. The afore-mentioned representation of the petitioner, however, has since been rejected by the Bank vide communication dated March 7, 1998 (Annexure P-9) giving rise to the filing of mis writ petition.
4. Upon notice, written statement has been filed on behalf of the bank to the following effect:
The petitioner joined the Bank in 1972 when it was a company registered under the Companies Act as it came to be nationalised in the year 1980 only: the petitioner was recruited as per the guide-lines prevailing at that time "without attaching any special consideration with regard to the age of the petitioner from either side", it has been denied that there has been any delay in releasing the benefit, of revised pay scale to the petitioner. The circular re-fixing the pay scale was issued in August 1996, though these pay scales were revised retrospectively from the year 1993, immediately, payments as per the revised pay scales were made to the petitioner on October 09, 1996. He cannot claim parity with the existing staff who war, made payment on ad hoc basis to be adjusted against the arrears. Since the petitioner had already retired from service in May, 1994, therefore, he was not entitled to receive ad hoc payments in June 1995. With regard to the Bank's contribution towards provident fund, it has been explained that the petitioner has used the amount Rs. 1,22,700/- from 01.04.1995 till it was refunded in April 1996 without payment of any interest. Similarly, regarding the release of pension and/or commutation to the petitioner is concerned, it has been explained that the Pension Regulations came into force in September/October, 1995 whereas the payments were made to him in April 1996. The claim of the petitioner regarding counting of 5 years additional qualifying service in terms of Clause 26 of the Pension Regulations has also been contested on the plea that the benefit under this provision is admissible only to the employees appointed under the particular requirements.
5. No replication was filed by the petitioner controverting the factual averments made by the Bank in its written statement.
6. I have heard Shri P.S. Patwalia, learned Senior counsel for the petitioner and Shri Jagat Arora, learned counsel representing the Bank and have perused the record.
7. Shri Patwalia has raised two-fold submissions, namely; (i) that the delay in the release of revised pay scale and arrears thereof as well as in the release of pension and its commutation is proved beyond any doubt, therefore, the petitioner is entitled to be paid interest upon these delayed payments; and (ii) the petitioner having been recruited as Manager in the Bank on the basis of post graduate specialised qualification with 10 years actual experience as Manager in a Cooperative Bank, he is entitled to the benefit of Clause 26 of the Pension Regulations, therefore, 5 years additional service needs to be counted towards his total qualifying service.
8. On the other hand, Shri Jagat Arora has contested both the claims and while relying upon the averments made in the written statement, coupled with a letter dated August 19, 1996 which the petitioner himself has placed on record as Annexure P-5, has contended that there has been absolutely no delay in the release of different payments nor the petitioner or other employees of the Bank have been subjected to interest @ 6% per annum on the account of Bank's contribution towards provident fund which these employees were required to refund on having opted for the pension as the interest upon the Bank's contribution towards provident fund was made chargeable till April 1, 1995 only instead of June 30, 1996 vide the afore-mentioned circular dated August 19, 1996 (Annexure P.5). While contesting the claim of the petitioner under Clause 26 of the Pension Regulations, Shri Arora submits that in view of third proviso to Clause 26 of the Pension Regulations, the petitioner is not entitled to the benefits in question. Reliance has been placed by him upon a circular dated August 6, 1996 issued by the Ministry of Finance, Govt. of India as well as judgment of the High Court of Karnataka in Vittal Pai B. v. Syndicate Bank, 2000-III L.L.J. (Suppl.) 1563 and a Division Bench judgment dated December 4, 2000 of this court passed in C.W.P. No. 6382 of 1999 (Hans Raj Monga v. Union of India and Ors.,).
9. It is the pleaded case of the petitioner himself that when he retired on superannuation on May 31,1994, certain amendments in service regulations of the Bank were anticipated, therefore, ad hoc payments of retiral benefits were offered and received. The amendments in the service regulations were actually carried out on August 22, 1996. It is not disputed that the petitioner and for that matter even other employees of the Bank were benefited by these amendments as the petitioner got a revised pay scale of Rs. 8970-10450 retrospectively with effect from July 1, 1993. The petitioner, therefore, is not entitled to claim any interest on the arrears of retiral benefits or salary etc. which, on his retirement, he would have got in the pre-revised scales only but the same were delayed so that the anticipated amendments could come into force and benefits flowing therefrom could be taken even by those employees who retired after the cut off date.
10. Coming to the delay, if any, in the release of arrears of revised pay and/or leave encashment to the petitioner, it is the conceded position that circular (Annexure P-1) granting the revised pay scales was issued on August 22, 1996. The petitioner was paid the arrears of revised pay and leave encashment on October 9,1996. There is, thus, hardly any inordinate delay on the part of the Bank in releasing these arrears, therefore, there is no merit in the claim of the petitioner to claim interest thereupon as well.
11. So far as the claim of interest upon the pension and its commutation is concerned, it has been brought on record that "Oriental Bank of Commerce (Employees) Pension Regulations, 1995" came into force in the month of September/October, 1995. After the refund of contributory provident fund, the petitioner was actually released pension under these Regulations and the benefit of its commutation in April, 1996. It is quite reasonable that some amount of period is spent in calculations and release of actual payments whenever a new scheme like the one referred to above is introduced. The delay of 6 to 7 months in the release of such benefits, particularly when there is no material on record to suggest that the other similarly situated employees were released the benefit immediately in October, 1995, in my view, the Bank cannot be burdened with any additional liability to pay interest upon the aforesaid payments as the very welfare of its employees including those like the petitioners who were in the service of the Bank after November 1, 1993 but had retired before the pension scheme came into force.
12. It appears that the petitioner felt aggrieved on account of "ad hoc payments" made by the Bank to its serving employees in anticipation of revision of the pay scales whereas no such benefit was extended to the retired employees like the petitioner. The Bank, however, has clarified, and in my view rightly so, that ad hoc payments were released to the existing staff conditionally to be adjusted against the arrears. Since the payments made to the serving employees were secured without there being any risk of "excess payments" as any such payment could be adjusted against their future arrears and/or salaries. On the other hand, there was no such "security" available to the Bank in the case of retired employees, therefore, the Bank was justified in law in not taking risk of making "Ad hoc payments" in the case of retired employees. The "serving employees" of the Bank constitute a class apart, and the action of the Bank in exceptional clause of "reasonable classification."
13. There would have been, however, some justification in the claim of the petitioner for the grant of interest upon the arrears of commutation of pension at the same rate which the Bank had charged from its employees on the amount of its contribution towards provident fund which the employees were required to refund when they opted for the pension scheme. This claim of the petitioner, however, has become infructuous in view of the circular dated August 19, 1996 (Annexure P-5) which provides that;
"We are enclosing a list of pensions (Pensioners) who had surrendered there bank contribution and are drawing monthly pension from your branch. Bank had charged interest @ 6% p.a. till 31.1.1996 and in some cases till 30.6.1996. Now as per latest guide-lines received from the IBA we have been informed that interest on bank contribution is to be charged only till 1.4.1995. So as per the directions from IBA we are now refunding excess interest charged"....
Thus, I find no merit in the first submission of Shri Patwalia, which is accordingly repelled.
14. In relation to the second contention, namely, the benefit of additional service of 5 years towards total qualifying service of the petitioner under Clause 26 of the Pension Regulations, it will be apposite to reproduce Clause 26, which reads as under:
"26. Addition to qualifying service in special circumstances.- An employee shall be eligible to add to this service qualifying for superannuation pension (but not for any other class of pension) the actual period not exceeding one fourth of the length of his service or the actual period by which his age at the time of recruitment exceeded the upper age limit specified by the Bank for direct recruitment or a period of five years, whichever is less, if the service or post to which the employee is appointed is one-
(a) for which post-graduate research or specialist qualification or experience in scientific, technological; or professional fields, is essential; and
(b) to which candidates of age exceeding the upper age limit specified for direct recruitment are normally recruited;
(c) for which the candidate was given age relaxation over and above the maximum age limit fixed by the Bank on account of his possessing higher qualifications or experience;
Provided that this concession shall not be admissible to an employee unless his actual qualifying service at the time he quits the service in the Bank is not less than ten years:
Provided further that this concession shall be admissible if the recruitment rules in respect of the said service or post contain specific provision that the service or post is one which carries benefit of this regulation;
Provided also that the recruitment rules in respect of any service or post which carries the benefit of this regulation shall be made with the approval of the Central Government."
15. True it is that as per sub-clause (c) above, an employee "shall be eligible" to add to his service qualifying for pension, a period of 5 years if the service or post to which he is appointed is one for which the candidate was given age relaxation over and above the maximum age limit fixed by the Bank on account of his possessing higher qualifications or experience. However, the aforementioned benefit is subject to three pre-conditions including the one incorporated in the third proviso that the recruitment rules in respect of any service or post which carries the benefits of this regulation "shall be made with the approval of the Central Govt." It has been asserted by Shri Arora, learned counsel for the Bank that clause 26 is prospective in nature and its benefit will be admissible to the serving employees of the Bank only if there exist a specific provision in the recruitment rules to the effect that the said service/post "is one which carries benefits of this regulation" and/or the recruitment rules in respect of such service/post are amended with the approval of the Central Govt. According to Shri Arora, none of these eventualities exists in the present Clause 26 itself, as in para 3 of its written statement, the Bank has specifically disputed the fact that the petitioner was recruited as Manager attaching any special consideration with regard to his age, etc.
16. In my view, Shri Arora is right in contending that the benefit provided in clause 26 of the Pension Regulations is pre-conditional and unless these conditions are satisfied, the benefit under this regulation cannot be claimed. Firstly, there is no material on record to suggest that the petitioner was recruited by granting the "age relaxation" only on account of his possessing higher qualifications or the experience. Secondly, no provision of recruitment rules, amended or enforced after the pension scheme of 1995 came into force, has been brought to my notice which prescribe the grant of such benefit to the members of the service and/or holder of a post. Thirdly, it is not the case of the petitioner that any amendment in the recruitment rules, conferring this benefit, has been brought into force with the approval of the Central Govt. In the absence of any such material on record, I am unable to accept the second contention of Shri Patwalia as well.
17. To be fair to Shri Arora, he has placed reliance upon a Division Bench judgment dated December 4, 2000 delivered by this Court in C.W.P. No. 6382 of 1999 (Hans Raj Monga v. Union of India and Anr.). In my view, the issue as to whether the benefit of additional service towards the qualifying service for pension in terms of Regulation 26 would be admissible or not, was not directly in issue before the Division Bench. In that case, an argument was raised that a pension scheme purported to be of the year 1993 ought to have been enforced instead of the Pension Regulations of 1995 and an argument was raised that the 2nd proviso to Clause 26 of the Pension Regulations suffer with the vice of un-reasonableness. The argument was, however, turned down by the Division Bench by observing that:-
"We are in agreement with the arguments advanced on behalf of the respondent-bank. We find that there is nothing unreasonable in the 2nd proviso to regulation 26. It is an additional benefit sought to be granted to a certain categories of employees and admittedly the petitioner does not fall in that category. It may be mentioned that the pension scheme has been made applicable to the employee who retired from the bank on or after 01.01.1986. It, therefore, excludes employees who had retired prior to 01.01.1986..."
18. In the case of Vittal Pai B. v. Syndicate Bank, 2000-111 L.L.J. (Suppl) 1563, certain substantial questions were raised before a learned Single Judge of the Karnataka High Court including the following questions.
"(3) Whether the appointment of the petitioner to the Executive Grade by means of order Annexure-C dated April 30, 1969 can be treated as an appointment made to a post to which specialist qualification or experience in professional field is required?
(4) Whether, in view of the second and third proviso given to Regulation 26 of the Pension Regulations, in the absence of recruitment rules of the Bank providing for making the Regulations applicable to the post held by the Petitioner with the approval of the Central Government, the petitioner is entitled for the benefit of five years of service as claimed by him?
It appears that an argument was raised on behalf of the petitioner that second and third proviso to Regulation 26 of the Pension Regulations were in the teeth of Article 14 and 16 of the Constitution of India and were liable to be struck down being discriminatory. The contention, however, was rejected by the learned Single Judge in para 11 of the judgment, relevant part of which reads as follows:
"11. Now, the last question is as to whether the second and third provisos given to Regulation 26 of the Pension Regulations are required to be struck down and discriminatory in nature as contended by Sri Rajagopal. Even on this question, I am unable to accede to the submission of Sri Rajagopal. As noticed by me earlier, when the Pension Scheme is made operative retrospectively, Regulation 26 of the Pension Regulations, in my view, is prospective in operation. Further, payment of pension was not one of the conditions of service, which was applicable to the employees of the Bank till passing of the Pension Regulations. Therefore, merely because the benefit of Regulation 26 is not given to all the employees including the employees who have retired from service, it is not possible to take the view that the second and third provisos given to Regulation 26 are liable to be struck down as discriminatory in nature. The benefit of previous service is an additional concession given by the Pension Regulations; and that too to limited number of posts which satisfy the requirements laid down in the said Regulations. While framing the Pension Regulations, since new benefits are extended, in my view, it is open to the Bank to make it prospective in operation. It is not the case where the petitioner and other employees of the Bank were entitled for the benefit of the Pension Scheme and an additional benefit under the Scheme is sought to be given, to the existing benefits...."
19. No other point was urged by learned counsel for the parties.
20. For the reasons afore-mentioned, I find no merit in this Writ Petition which is accordingly dismissed with no order, however, as to costs.