Allahabad High Court
Rajender Singh vs Chairman & M.D.,Punjab And Sind ... on 7 February, 2018
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 20.9.2017 Delivered on 7.2.2018 Case :- WRIT - A No. - 25432 of 2011 Petitioner :- Rajender Singh Respondent :- Chairman & M.D.,Punjab And Sind Bank,New Delhi & Others Counsel for Petitioner :- B.N.Chaturvedi,Shruti Malviya,Smt. C.K. Chaturvedi Counsel for Respondent :- K.K.Tiwari,S.C. Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has been filed by the petitioner praying for quashing of the order dated 18.12.2010 passed by the Assistant General Manager (PF), Punjab and Sind Bank, New Delhi and also praying for a writ in the nature of mandamus commanding the respondents to grant pensionary benefits to the petitioner in lieu of provident fund.
2. The petitioner was a clerk in Punjab and Sind Bank, in Branch Office, Railway Road, Ghaziabad and submitted an application of resignation on 24.8.2009, which was accepted by the Bank on 23.9.2009.
3. It is the case of the petitioner that since a memorandum of settlement between the Union of the Bank Employees and Managements of different banks was in the process of being finalised for introducing the Second Pension Option and persons like the petitioner, who was a Provident Fund optee, would in terms of the said settlement, if finalised be granted second option to apply for pension in lieu of Provident Fund, the petitioner was advised by the Bank to move a conditional application for voluntary retirement, but in the form of resignation as applications for voluntary retirement were no longer being accepted.
4. The application dated 24.8.2009 clearly stated that the petitioner was a provident fund optee and was therefore tendering resignation instead of requesting for voluntary retirement, and in case any future option for pension is allowed, his resignation may be treated as a request for voluntary retirement, and so as to consider his period of service as qualifying for pension under the Pension Rules. The application was accepted by the Bank on 23.9.2009 and the petitioner was treated as having resigned. Later on, the process of Second Pension Option was finalised on 27.4.2010, and as required under the memorandum of settlement in between the Union of Employees and Indian Bank Association, the petitioner submitted an option for pension in lieu of provident fund on 7.10.2010 i.e. well within the prescribed time, yet his option for pension was rejected on 18.12.2000.
5. Aggrieved by the order dated 18.12.2010, this writ petition has been filed. It has been stated that since only a conditional request for was made on 24.8.2009 in his application. In case the Bank Authorities were of the opinion that the petitioner could not be treated as voluntarily retired, then they should not have accepted the application as resignation. Conditional resignations are even otherwise not accepted as under the Contract Act, it would only be treated as a conditional offer.
6. Secondly, it has been stated that since the petitioner was allowed to submit pension option on 7.10.2010 to the Bank, the Bank is estopped for rejecting such option. The petitioner had rendered more than 20 years of qualifying service required for purpose of grant of pension. In fact, the petitioner had rendered 32 years of service from January 1977 to September 2009.
7. A counter affidavit has been filed by the Bank bringing on record the settlement dated 27.4.2010 and the clarifications issued by the Indian Bank Association on 6.9.2010 and 24.11.2010.
8. It is the case of the respondent bank that the petitioner's application dated 24.8.2009 was duly accepted by the Manager and the petitioner was thereafter relieved on 23.9.2009. In terms of the Bipartite Settlement, the Second Pension Option Scheme providing for option to join pension scheme of 1995 was notified on 27.4.2010 and the Indian Bank's Association vide its letter dated 6.9.2010 had clarified that Second Pension Option Scheme can be extended to only four categories of employers, namely; (i) serving employees (ii) those employees, who had retired (iii) those employees, who had opted for voluntary retirement under Special Voluntary Retirement Scheme and (iv) families of deceased employees / retirees. No other category could be included like that the of the petitioner, who was an employee, who had resigned.
9. It has been submitted that the Punjab and Sind Bank had again sought for clarification on 24.11.2010, and again it was clarified that besides the four categories already mentioned in the letter dated 6.9.2010 issued by the Indian Bank Association, no other category of employee could be allowed to opt for Pension Scheme.
10. The beneficiaries of the Scheme had to refund the whole of the amount of Bank's contribution to Provident Fund with interest paid at the time of retirement along with 56% of the said amount within the stipulated period i.e. by 29.11.2010.
11. The Bank has stated in its counter affidavit that the option submitted by the petitioner dated 5.10.2010 in the Bank on 7.10.2010 was on the proforma meant only for retired employees and not for an employee, who had resigned from service. The petitioner had tried to mislead the Bank by submitting his option, but he did not fall within the eligibility criteria of the memorandum of settlement dated 27.4.2010.
12. Ms. Shruti Malviya at the time of argument of the case has submitted that when the petitioner tendered his resignation, it was conditional in nature, on 24.8.2009, stating clearly therein that he was a Provident Fund optee and therefore, in case, in future, any option for pension is allowed retrospectively, then his resignation be treated as a request for voluntary retirement, and this period of service be treated as qualifying service for computation of pension under the Pension Rules.
13. It is also the case of the petitioner that although conditional resignation is usually not accepted, in his case it was accepted on 23.9.2009, meaning thereby that the condition mentioned in the said resignation letter was also accepted by the Authorities concerned. Later on, a pension option became available due to memorandum of settlement agreed between the workmen / employees of the bank and the bank concerned, and on 18 December 2010, a letter was issued to the petitioner, who was an Officer employee that he may submit his option for joining the pension scheme before the prescribed date. The petitioner thereafter submitted his option by filling up the form meant for the same, within the prescribed time. His case has been rejected by the impugned order dated 18.12.2010 on the ground that he has resigned from service and not retired voluntarily.
14. Counsel for the petitioner states that in his rejoinder affidavit, the petitioner has mentioned the reason for submitting an application for resignation. He has filed a letter dated 25.10.2008 issued by the Manager of the Bank saying that the petitioner was a Provident Fund optee and therefore not entitled to voluntary retirement. However, he could consider submitting his resignation. It was on the basis of this assurance given by the Bank that the petitioner had no option, but to submit his resignation. However, this resignation was also conditional as mentioned aforesaid.
15. Counsel for the bank, Sri K.K. Tiwari states that as is well known resignation entails forfeiture of benefits of prior service.
16. Counsel for the petitioner, Ms. Shruti Malviya has submitted that qualifying service for grant of pension is only 20 years as per the Regulations of the Bank and the petitioner had served the bank for 32 years. Only because application for voluntarily retirement was not being accepted at the current point of time, the petitioner was forced to submit a resignation application. She has referred to judgments of this Court and of the Supreme Court. They are as follows:-
(i) Judgment and order dated 16.8.2016 passed in Writ-A No. 2322 of 2014 Dr. Ram Kishore Shukla Vs. State of U.P. & 4 others.
(ii) Anil Kumar Gupta Vs. State of U.P. & others 2015 (1) ADJ 264.
(iii) Asger Ibrahim Amin Vs. Life Insurance Corporation of India 2015 (6) AWC 5829.
(iv) Judgment and order dated 28.7.2011 passed in Civil Appeal No. 6013 of 2011 by Supreme Court in Sheel Kumar Jain Vs. The New India Assurance Corporation Ltd. & others.
17. Counsel for the petitioner has also relied upon a judgment rendered by the High Court of Karnataka at Bangalore in Writ Petition No. 24158/24160 of 2011 Sri C. Narasimhappa Vs. Vijaya Bank decided on 18.4.2012.
18. Sri K.K. Tiwari has placed reliance upon a Single Judge decision rendered in the case of Kalyanam Raja Gopal Vs. Andhra Bank, Government of India decided on 4.4.2012 by the Andhra Pradesh High Court, and has also placed reliance upon a judgment rendered by another Division Bench of the Madras High Court in the case of K.G. Krishnan Vs. Indian Overseas Bank decided on 26.10.2009 and a judgment rendered by the Hon'ble Supreme Court in the case of State Bank of Patiala Vs. Phoolpati decided on 23.2.2005.
19. It is settled law that resignation entails forfeiture of past service. The Hon'ble Supreme Court in Reserve Bank of India & another Vs. Cecil Dennis Solomon & another 2004 (9) SCC 461 was considering the case of the respondents therein, who were employees of Reserve Bank of India, who had tendered their resignation and were getting superannuation benefits under the Contributory Provident Fund and Gratuity Schemes.
20. Subsequently, the Reserve Bank of Indian introduced the Pension Regulations of 1990. These Regulations defined retirement and in Regulation 18, it was provided that on resignation past service would be forfeited and would not qualify for entitlement to pension. The earlier staff Regulations enabled an employee attaining a specified age to voluntarily retire after giving requisite notice.
21. The Supreme Court considered its earlier decision and observed that the High Court was in error in equating the case of resignation to voluntary retirement. The two are conceptually different in service jurisprudence, and different consequences would flow depending upon one or the other of the course adopted by the litigant. in paragraph 10, it observes as under:-
"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, the 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 Vs. 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 Vs. 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. On the contrary, as noted by this Court in Dinesh Chandra Sangma Vs. 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."
22. Judgment rendered in the case of Reserve Bank of India & another (supra) was relied upon by the Supreme Court in UCO Bank & others Vs. Sanwar Mal (supra). Pursuant to a settlement between Indian Bank's Association and All India Bank Employees Association, the appellant Bank had framed the UCO Bank Employees Pension Regulations 1995. Under the settlement, the Pension Scheme was to be applicable subject to certain stipulations, to all retired employees, who were service in the Bank on or after 31.12.1985 and who retired on or after 1.1.1986, but before 1.11.1993, the respondent therein was an employee of the appellant Bank, who had resigned in 1988 and has accepted his Provident Fund without protest. After introduction of pension scheme, he submitted his option, which was rejected by the Bank. Thereafter the respondent therein filed a Civil Suit, which was decreed in his favour and the decree was upheld by the first Appellate Court and by the High Court. The Bank filed Special Leave Petition, which was entertained.
23. Regulations 3 of the Regulations introduced in 1995, referred to retirees only and not to those, who had resigned or had been dismissed or removed from the Bank. Pension was to be given out of a Pension Fund, which would consist of contributions by the Bank at the rate of 10% per month of the pay of the employee, and accumulated contribution of the Bank to the Provident Fund along with interest approved upto date of transfer of Contributory Provident Fund to Pension Fund, and the amount consisting of contributions of the Bank along with interest refunded by the employees, who retired before notified date, but who opted for pension in accordance with the Regulations, and investment in annuities / securities purchased from money of the Fund and other contributions by the Bank and other incomes from investment. The scheme was thus a self financed scheme to be run on the basis of contributions of the employee and the Bank.
24. The Supreme Court observed in paragraph 6 thus:-
"To sum up, the pension scheme embodied in the regulation is a self- supporting 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 the 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 wards, 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 where as 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 not there in case of resignation. When such a retiree opts for self-financing pension scheme, he brings in accumulated contribution earned by him after completing qualifying number of years of service under provident fund rules where as a person who resigns may not have adequate credit balance to his provident fund account (i.e. banks contribution) and, therefore, the regulation 3 does not cover employees who have resigned. Similarly, in the case of a dismissed employee, there may be forfeiture of his retrial benefits and consequently the framers of the scheme have kept out the retirees 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, clause 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."
25. In paragraph 9 thereafter, the Hon'ble Supreme Court observed thus:-
"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-a-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 & another Vs. Cecil Dennis Solomon & another, reported in (2003) 10 Scale 449. Before concluding we may state that clause 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 or condition which is more in the nature of an eligibility criteria, the scheme disentitles such category of employees as are out of it."
26. The Supreme court in State Bank of Patiyala Vs. Phoolpatti Civil Appeal No. 1363 of 2005 decided on 23.2.2005, was considering the case of the widow of one Hari Ram, who joined these service of the appellant Bank on 9.1.1985 and in the normal course he would have retired on 6.6.2005, but on 7.1.2002 he submitted his resignation on 4.2.2002, late Hari Ram however sought to withdraw his proposed resignation, but the Bank did not permit the same. Another letter was sent by late Hari Ram on 4.3.2002 reiterating his prayer for accepting his resignation.
27. The request for resignation was accepted and late Hari Ram was relieved from the Bank services on 4.3.2002. Late Hari Ram thereafter expired on 8.6.2002. The widow of late Hari Ram approached the High Court contending that the resignation was withdrawn before it came into affect, but the Bank submitted that late Hari Ram had again submitted a letter on 4.3.2002, which was accepted and he was relieved and Hari Ram never questioned the Bank and he availed all his retiral benefits. It was as an afterthought that it was argued that the acceptance of the latter of resignation should have been before 1.3.2002, and in fact Hari Ram had been allowed to continue till 4.3.2002, therefore the relationship of employer and employee had not snapped and therefore it cannot be said that Hari Ram had actually resigned.
28. The Supreme Court did not accept the argument of the learned counsel for the respondents therein and held that Hari Ram had tendered his resignation, which was sought to be withdrawn, but the withdrawal was not accepted and subsequently, there was a reiteration for the prayer for voluntarily resignation and the Bank also relieved late Hari Ram w.e.f. 5.3.2002. Thus, the Division Bench judgment holding that a appellant Bank was not justified in relieving Hari Ram from services of the Bank w.e.f. 5.3.2002 was held to be vitiated and was set aside.
29. Learned counsel for the respondents, Sri K.K. Tiwari has also relied upon judgment rendered in K.G. Krishnan Vs. Indian Overseas Bank by the Madras High Court on 26.10.2009. The writ petitioner therein had submitted a letter for voluntary retirement, which the Bank did not accept as the employee had not completed requisite 30 years of service nor had attained 55 years of age, the employee therefore made a request for accepting his resignation, which was accepted and the employee was relieved on 7.1.1992 and the terminal benefits were also sanctioned by the Bank, which were received by the appellant.
30. Later on, the appellant submitted a representation for pension. The Bank rejected the same saying that since he had resigned, he was not eligible for pension. The appellant filed writ petition for a declaration that he had voluntarily retired from service of the Bank on 7.1.1992, and also challenged the order passed by the Bank rejecting his representation for pension.
31. The Writ-Court dismissed the writ petition and thereafter Intra Court Appeal was filed. The Division Bench held that the appellant submitted a letter of resignation with a request to treat the same as voluntary retirement and the respondents Bank was not justified in accepting the same as resignation particularly when the appellant was eligible to get a voluntary retirement, as according to him, he had completed 52 years of age and 33 years of total service. The Bank did not accept service rendered in Sri Vanketeshwar Bank Ltd. as qualifying service as the appellant had been discharged from the erstwhile Bank and was appointed afresh in the respondents' Bank. The said private Bank had not been merged or amalgamated with the Indian Overseas Bank and therefore continuity could not be claimed by the appellant. The appellant being not eligible for voluntary retirement had tendered his resignation on health grounds, and the same was accepted.
32. The Madras High Court relied upon judgment rendered by the Hon'ble Supreme Court in the case of UCO Bank Vs. Sanwar Mal (supra) and held that since the Scheme itself disentitled such category of employees, who had resigned, the appellant could not now insist that he may be treated as a retiree and not as a person who had resigned.
33. Sri K.K. Tiwari has also relied upon a Single Judge decision of Andhra Pradesh High Court decided on 4.4.2012, the writ petitioner therein upset with his frequent transfers tendered his resignation on 18.7.2009 in the structured format requesting waiver of six months of notice period and to be relieved on 31.7.2009. He sent a letter to the Bank and sought reinstatement in service. Alternatively, he also sought that his resignation be treated as voluntary retirement and he be given all consequential benefits. The petitioner was a member of Contributory Provident Fund Scheme and he had not opted for Pension Scheme, or the Voluntary Retirement Scheme. This request was rejected by the Bank, the Court held that there was no withdrawal of resignation at any point of time before its acceptance and even though a letter of acceptance may not have been actually communicated to the writ petitioner, the fact is that he was relieved and so it shall be deemed that his application was accepted and the relationship between the petitioner and the respondent Bank had come to an end. Therefore, it could not be said that the offer of the petitioner to resign lapsed after 31.7.2009, in fact such offer remained operative till the date he was relieved, as the employee could not show withdrawal of his resignation before it became effective.
34. The aforesaid decisions that have been cited by the learned counsel for the Bank are all distinguishable on facts.
35. Learned counsel for the petitioner on the other hand has relied upon a decision rendered in Sheel Kumar Jain Vs. New Indian Assurance Company Ltd. AIR 2011 SC 2990 Civil Appeal No. 6013 of 2011, wherein the Supreme Court after considering judgments rendered in Reserve Bank of India Vs. Cecil Dennis Soleman and Uco Bank Vs. Sanwer Mal observed thus:-
"7. We have perused the decisions of this Court cited by learned counsel for the respondents. In Reserve Bank of India & another Vs. Cecil Dennis Soloman & another (supra) employees of the Reserve Bank of India had tendered their resignations in 1988 and were getting superannuation benefits under the provident fund contributory provisions and gratuity schemes. Subsequently, the Reserve Bank of India Pension Regulations, 1990 were framed. The employees who had tendered resignations in 1988 claimed that they were entitled to pension under these new Pension Regulations and moved the Bombay High Court for relief and the High Court held that the Reserve Bank of India was legally bound to grant pension to such employees. The Reserve Bank of India challenged the decision of the Bombay High Court before this Court and this Court held that as the employees had tendered resignation which was different from voluntary retirement, they were not entitled to pension under the Pension Regulations. Similarly, in UCO Bank & Ors., etc. v. Sanwar Mal, etc. (supra) Sanwar Mal, who was initially appointed in the UCO Bank on 29.12.1959 and was thereafter promoted to Class III post in 1980, resigned from the service of the UCO Bank after giving one month's notice on 25.02.1988. Thereafter, the UCO Bank (Employees') Pension Regulations, 1995 were framed and Sanwar Mal opted for the pension scheme under these regulations. The UCO Bank declined to accept his option to admit him into the pension scheme. Sanwar Mal filed a suit for a declaration that he was entitled to pension under the Pension Regulations and for a mandatory injunction directing the UCO Bank to make payment of arrears of pensions along with interest. The suit was decreed and the decree was affirmed in first appeal and thereafter by the High Court in second appeal. The UCO Bank carried an appeal to this Court and this Court differentiated "resignation" from "voluntary retirement" and allowed the appeal and set aside the judgment of the High Court. In these two decisions, the Courts were not called upon to decide whether the termination of services of the employee was by way of resignation or voluntary retirement. In this case, on the other hand, we are called upon to decide the issue whether the termination of the services of the appellant in 1991 amounted to resignation or voluntary retirement."
(emphasis supplied)
36. The Supreme Court after distinguishing Reserve Bank of India Vs. Cecil Dennis Soleman (supra) and UCO Bank (supra) considered the Regulations. The Supreme Court considered the facts of the case and held that at the time when the appellant Sheel Kumar Jain had served a letter dated 16.9.1991 saying that he would like to resign from his post and requesting the General Manager to treat the letter as three months notice and to relieve him from his service. The services of the appellant were governed by the General Insurance (Termination, Superannuation and Retirement of Officers and Development Staff) Schemes 1976, which provided that a member of the Development Staff shall not leave or discontinue his services without first giving a three months notice in writing to the Appointing Authority. Clause 5 of the said Regulations of 1976 did not make any distinction between resignation or voluntary retirement and it only provided that an employee, who wanted to leave or discontinue in service was to serve a notice of three months to the Appointing Authority. This three months notice was given and the appellant was relieved thereafter by the Competent Authority.
37. On the other hand, the Pension Scheme that was introduced in 1995 provided under clause 22 that resignation or dismissal or removal or termination or compulsory retirement of an employee would entail forfeiture of his entire past service and consequently the same shall not qualify for pension along with interest.
38. Under clause 30 it provided for pension on voluntary retirement and that any employee after completing 20 years of qualifying service, may by giving notice of not less than 90 days in writing to the Appointing Authority could retire voluntarily from service and such voluntary retirement shall become effective from the date of expiry of the said period of 90 days, unless it was rejected by the Appointing Authority. An employee, who had elected to retire under clause 30 was entitled to pension.
39. The Supreme Court held that the Pension Scheme of 1995 was framed and notified only after the appellant had left the services in 1991, and therefore clauses 22 & 30 of the Pension Scheme of 1995 could not be applied to create any distinction between voluntary retirement and resignation. The appellant had completed 20 years of qualifying service and had given notice of 90 days in writing to the Appointing Authority of his intention to leave service of the company, and therefore he was entitled for payment of retiral benefits like pension and gratuity etc.
40. The Supreme Court relied upon earlier decisions rendered by it in Sudhir Chandra Sarkar Vs. Tata iron & Steel Corporation Ltd. AIR 1984 SC 1064 and Union of Indian Vs. Lt. COL. P.S. Bhargava 1997 (2) SCC 28 and observed in paragraph 13 thus:-
"13. The aforesaid authorities would show that the Court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement and while construing the statutory provisions, the Court will have to keep in mind the purposes of the statutory provisions."
41. The Supreme Court in another judgment rendered in Asger Ibrahim Amin Vs. Life Insurance Corporation of India 2015 (6) AWC 5829 was considering the question whether the appellant was entitled to claim pension even though he had resigned from service of his own violation and held that the appellant who had resigned after reaching the age of 50 years and after serving LIC for over 23 years, would be said to have retired voluntarily.
42. The Supreme Court relied upon its earlier decision rendered in the case of Sheel Kumar Jain (supra) to hold that the LIC Staff Regulations of 1960 did not make any difference between resignation and retirement. The observations made by the Supreme Court in paragraphs 10 & 13 are being quoted herein below:-
"----------. Under sub-clause (1) of Clause 30 of the Pension Scheme, 1995, an employee, who has completed 20 years of qualifying service, may by giving notice of not less than 90 days in writing to the appointing authority retire from service and under sub-clause (2) of Clause 30 of the Pension Scheme, 1995, the notice of voluntary retirement shall require acceptance by the appointing authority. Since `voluntary retirement' unlike `resignation' does not entail forfeiture of past services and instead qualifies for pension, an employee to whom Clause 30 of the Pension Scheme, 1995 applies cannot be said to have `resigned' from service. In the facts of the present case, we find that the appellant had completed 20 years qualifying service and had given notice of not less than 90 days in writing to the appointing authority of his intention to leave service and the appointing authority had accepted notice of the appellant and relieved him from service. Hence, Clause 30 of the Pension Scheme, 1995 applied to the appellant even though in his letter dated 16.09.1991 to the General Manager of respondent no.1-Company he had used the word `resign'."
13. The aforesaid authorities would show that the Court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement and while construing the statutory provisions, the Court will have to keep in mind the purposes of the statutory provisions. The general purpose of the Pension Scheme, 1995, read as a whole, is to grant pensionary benefits to employees, who had rendered service in the Insurance Companies and had retired after putting in the qualifying service in the Insurance Companies. Clauses 22 and 30 of the Pension Scheme, 1995 cannot be so construed as to deprive of an employee of an Insurance Company, such as the appellant, who had put in the qualifying service for pension and who had voluntarily given up his service after serving 90 days notice in accordance with sub-clause (1) of Clause 5 of the Scheme, 1976 and after his notice was accepted by the appointing authority."
(emphasis supplied)
43. Ms. Shruti Malviya has also relied upon by a decision rendered by Division Bench of this Court in Anil Kumar Gupta Vs. State of U.P. 2015 (10) ADJ 264 (DB) and a judgment rendered by a Coordinate Bench on 16.8.2016 in Writ-A No. 2322 of 2014 (Dr. Ram Kishore Shukla Vs. State of U.P. & 4 others), which are to the effect that if an employee who has rendered qualifying service of more than 20 years decides to leave his service and mentions the same as resignation, it would not disentitle such an employee from pensionary benefits which he would have otherwise become entitled to had he chosen to retire voluntarily from such service in such a case at the most the employer can adjust the amount due from such person for the notice period of three months, with the arrears of pension payable to such employee on his retirement.
44. In the case of the petitioner, he had admittedly rendered 32 years of service w.e.f. January 1977 upto September 2009. At the time when he chose to leave the services of the Bank, there was no option for voluntary retirement for a Contributory Provident Fund optee. The petitioner had therefore given one month's notice to the Bank and submitted his resignation with the rider that in case in future Second Pension Option became applicable retrospectively, then his resignation should be considered as voluntary retirement.
45. The petitioner has expressed his willingness to refund whatever he has received as Provident Fund, Contribution from the Bank as well as interest thereon, as also 56 % over and above the same as required under the Bipartite Settlement, there is no reason for the Bank not to treat his resignation as voluntary retirement in view of law settled by the Hon'ble Supreme Court as discussed herein above.
46. The writ petition is therefore allowed. The impugned order dated 18.12.2010 is quashed.
47. The respondent Bank may adjust 60 days salary received by the petitioner for the period of 60 days by which his notice for voluntary retirement has fallen short in the arrears of pension, which would become admissible to the petitioner
48. The respondent Bank is directed to pass appropriate orders reconsidering the case of the petitioner in the light of the observations made herein above and pass appropriate orders within a period of three months from the date a certified copy of this order is produced before him.
Order Date :- 7.2.2018/Arif