IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11135 of 2001 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= Whether Reporters of Local Papers may be allowed
1 to see the judgment ?
2 To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy
3 of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the
4 constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= CHANDRAKANT DEVJIBHAI PATEL - Petitioner(s) Versus VIJAYA BANK - Respondent(s) ========================================================= Appearance :
MR ASHOK L SHAH for Petitioner(s) : 1, MR UDAY R BHATT for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 3/11/2012 CAV JUDGMENT
1. This writ petition under Article 226 of the Constitution of India, is at the instance of a former employee of the respondent-Vijaya Bank, wherein the petitioner has prayed for an appropriate writ, order or direction on the respondent to extend the benefits of Vijaya Bank Employees' Pension Scheme, 1993, pursuant to the option given by the petitioner to the Bank, vide letter dated 30th June 1994.
2. The facts shortly stated be thus:
2.1 The petitioner had joined the services of the respondent- Bank in August, 1974. The last posting of the petitioner was as a Senior Manager of the Relief Road Branch at Ahmedabad. The petitioner expressed his desire to discontinue his service in the respondent Bank by tendering a resignation dated 10th September 1992, which was accepted by the respondent-bank, with effect from 30th March 1993. When the petitioner had tendered his resignation for getting premature retirement from the respondent-bank, there was no Voluntary Retirement Scheme or any other Pension Scheme in existence. On his premature voluntary retirement from the respondent-bank with effect from 1st April 1993, the petitioner received his dues towards regular Provident Fund and Gratuity. Except the Provident fund dues and the Gratuity dues, the petitioner had not received any other dues or benefits on being permitted to retire voluntarily.
2.2 It is the case of the petitioner that at the time when he took voluntary premature retirement, the negotiations were going on between Indian Banks Association, the Workmen Union and Officers' Association and the management of various Banks, including the respondent-bank. The negotiations between the Indian Banks Association and the Workmen Unions and Officers'
Association, culminated into a settlement dated 29th September 1993, wherein for the first time, a Pension Scheme was introduced. The respondent-Bank had published its Circular No. 122 of 1994, dated 2nd June 1994, in the matter of introduction of the Pension Scheme as per settlement dated 29th October 1993.
2.3 The petitioner has placed reliance on paragraph 2, Clause (iii) of the Circular dated 2nd June 1994, bearing No. 122 of 1994, which reads as under :-
"2(iii) Retired employees, who were in the service of the bank on or before 31st December, 1985 and retired on or after 1st January, 1986, but before 1st November, 1993 are also entitled for monthly pension and commutation facility as from 1.11.1993, provided they apply for it on their own in the format prescribed and refund the bank Provident Fund Contribution, including interest received thereon along with simple interest of 6% per annum from the date of receipt of the said amounts till the date of refund."
2.4 According to the petitioner, his case squarely falls within the four corners of paragraph 2(iii) quoted above. According to the said paragraph, a retired employee, who was in the service of the bank on or before December, 1985 and retired on or after 1st January 1986, but before 1st November 1993, would also be entitled for monthly pension and with commutation facility from 1st November 1993, provided the retired employee had applied for it on his own in the format prescribed and had refunded the amount towards the bank's provident fund contribution, including interest received thereon, along with the interest at the rate of 6% per annum from the date of receipt of the said amount till the date of refund.
2.5 It is the case of the petitioner that at the time when he had taken voluntary premature retirement, he was in the service of the respondent-bank right from August, 1974 (i.e. on or before 31st December 1985) and had taken voluntary retirement with effect from 1st April, 1993 (i.e. retired on or after 1st January, 1986, but before 1st November 1993), and therefore, he was entitled for getting the monthly pension and commutation facility, as from 1st November 1993, on his satisfying with the conditions laid down in paragraph 2(iii) of the Circular No. 122 of 1994 dated 2nd June 1994.
2.6 The petitioner had, on his own, preferred an application dated 30,h June 1994 under the said rule, in the prescribed format to the Trustees of the Vijaya Bank, Bangalore. In the said application, the petitioner had stated that he had read and understood the Vijaya Bank Employees' Pension Scheme, 1993, and that by the said application, opted for the Bank's Pension Scheme as per the provisions of the said Scheme. The petitioner had also undertook to refund the Bank's contribution towards the Provident Fund, together with accrued interest thereon paid to the petitioner on his retirement, plus simple interest thereon at the rate of 6% per annum, from the date of receipt of the same till the date of refund. As prescribed in the said format, the amount due from the petitioner was to be refunded to the bank within seven days from the date of receipt of the intimation from the bank.
2.7 It is also the case of the petitioner that he had anxiously waited for the response from the respondent-bank so far as his application was concerned. It is also his case that on similar set of facts, few ex-employees of various other banks including the Canara Bank, the Syndicate Bank, the Union Bank of India and the Bank of India had preferred petitions before the High Court of Karnataka and the Division Bench of the High Court of Karnataka (Coram: Hon'ble Mr.R.P. Sethi, C.J & Hon'ble Mr. Justice G. Patri Basavana Goud) held that all those employees of Banks who had retired between 1.1.1986 and 31.10.1993 prematurely before attaining the age of superannuation were entitled to pension in terms of Pension Regulations, if they were otherwise eligible for the same. It has also been brought to the notice of this Court by the petitioner that a Special Leave Petition was preferred against the said judgment of the Division Bench of the Karnataka High Court, in the Supreme Court of India, being Civil Appeal No.6959 of 1997, and the Supreme Court, vide it's judgment and order dated 5th April 2000, confirmed the said judgment of the Division Bench of the Karnataka High Court, holding that a comprehensive Pension Scheme had been formed, which had come into force with effect from 1st November 1993, and was applicable uniformly to all Bank employees and the Scheme provided for voluntary retirement as well.
2.8 It is the case of the petitioner that vide letter dated 19th May 2000, addressed to the Chairman of the respondent-bank, a request was made to consider the application dated 30th June 1994, and simultaneously, had also brought to the notice of the Chairman of the respondent-bank about the judgment of the Supreme Court, confirming the judgment passed by the Division Bench of the Karnataka High Court.
2.9 According to the petitioner, there was no response at the end of the respondent and ultimately, the respondent-bank, vide letter dated 22nd December 2000, informed the petitioner that the respondent-bank had no provision to pay the pension in respect of the employees who voluntarily retired during the period from 1st January 1986 to 31st October 1993. The bank also informed the petitioner that the judgment of the Supreme Court would apply only to those employees who had approached the Court and the principle as laid down by the Supreme Court could not be made applicable to those employees who were not the parties before the Supreme Court.
3. In the circumstances, the petitioner was left with no other option but to prefer this petition.
4. The record reveals that Rule was issued on 19th March 2002. The respondent-bank appeared and has opposed this petition by filing affidavit-in-reply.
5. Submissions on behalf of the petitioner:
Mr. A.L. Shah, the learned counsel appearing for the petitioner vehemently submitted that the provisions of the Pension Scheme known as "Vijaya Bank Employees' (Pension) Regulations, 1993" would be applicable so far as the case of the petitioner is concerned. The applicability of the said Scheme was made in respect of employees, who were in the employment of the respondent-bank on or before 31st December 1985, and retired on or after 1.1.1986, but before 1.11.1993. According to Mr. Shah, the petitioner fulfilled all the requirements of the said paragraph 2(iii) of the Circular dated 2nd June 1994. According to Mr.Shah the petitioner was in the employment of the Respondent Bank on or before 31.12.1985; the petitioner had retired on or before 1.1.1986 but before 1.11.1993, (the petitioner had retired on 1.4.1993); the petitioner had applied on his own in the prescribed format on 30.6.1994 for being entitled to monthly pension and commutation facility under the Pension Scheme and the petitioner had, as per the prescribed format shown his readiness and willingness to refund to the Respondent Bank within seven days from the receipt of intimation from the Respondent Bank, the Bank's contribution to Provident Fund together with accrued interest thereon with interest at the rate of 6% per annum.
Mr. Shah also submitted that the respondent-bank was not right in coming to the conclusion that the appellant had resigned from service. Mr. Shah submitted that though in the letter dated 10th September 1992 to the Chairman and Managing Director, Vijaya Bank, Bangalore, the petitioner used the word 'resignation', the letter was actually a three-months'
notice for voluntary retirement. He has submitted that the petitioner had rendered more than 17 years of service and 10 years of service was the qualifying service for pension as provided in Regulation 14 of the Regulations, 1995. He has submitted that since the petitioner had rendered more than 10 years of service under the respondent-bank, he was entitled to the pension and such pension could not have been denied to him by saying that he had resigned from service and had not taken voluntary retirement, more particularly, when the respondent-bank itself has construed the letter dated 10th September 1992 as an application for voluntary retirement as reflected from Annexure-T at page 69 of the paper-book. Mr.Shah further submitted that clause 22 of the Pension Scheme, 1995, providing that resignation from the service of the respondent-bank shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits, was not in existence when the petitioner submitted his letter dated 10th September 1992, and the only provision that was in force was clause 20 of the Vijaya Bank (Officers') Service Regulations, 1982 which has been referred to in the earlier part of the judgment which provided that an officer shall not leave or discontinue his service in the bank without first giving a notice in writing of his intention to leave or discontinue the service or resign without first giving a three months' notice in writing to the competent authority of his intention to leave or discontinue the service.
Mr. Shah submitted that had there been a provision similar to clause 22 of the Pension Scheme, 1995 in the Service Regulations of 1982, he would not have used the word 'resignation' in his letter dated 10th September 1992.
It is also submitted by Mr. Shah that the respondent-bank has taken a grossly untenable and dishonest stand in its letter dated 22nd December 2000, wherein the respondent-bank had refused to grant pension benefits to the petitioner on the ground that the judgment of the Hon'ble Supreme Court applied only to those employees who had approached the Court in the matter. Mr. Shah submitted that the Supreme Court had interpreted identical Pension Scheme in its said judgment dated 5th February 2000, and the principle laid down would squarely apply to the case of the petitioner. Mr.Shah lastly submitted that the recent pronouncement of the Supreme Court in the case of Sheelkumar Jain V. The New India Assurance Company Limited, reported in AIR 2011 SC 2990, has settled the entire controversy and in view of the said recent pronouncement, no further debate is necessary on the issue.
Mr. Shah therefore, urged to allow this petition and grant the relief as prayed for in the petition.
6. Submissions on behalf of the respondent-Bank:
Mr.Uday R.Bhatt, the learned counsel appearing for the respondent-bank vehemently submitted that the petitioner had in fact resigned from service vide resignation letter dated 10.9.1992, and therefore, the termination of the service of the petitioner would not amount to voluntary retirement as provided in Clause 29 of the Vijaya Bank (Employees') Pension Regulations, 1995, for the following reasons.
1. Petitioner had not completed the minimum qualifying service of 20 years for Voluntary Retirement, as stipulated in Clause 29 of the Vijaya Bank (Employees') Pension Regulations, 1995;
2. Petitioner in his resignation letter dated 10th September 1992 had given only one month's notice;
3. Resignation letter was not submitted to the Appointing Authority;
4. Resignation letter was not accepted by the Appointing Authority but was accepted by the Administrative Office i.e. Divisional Manager, Ahmedabad.
According to Mr.Bhatt, as the termination of the petitioner did not amount to voluntary retirement as provided in Clause 29 of the Regulations, 1995, and consequently the ratio of the judgment of the Supreme Court in Sheelkumar Jain V. The New India Assurance Company Limited (supra) would not help the petitioner in any manner. Mr.Bhatt submitted that in Sheelkumar Jain (supra), the Supreme Court also took into consideration the earlier decision of the Supreme Court in UCO Bank and others v/s. Sanwar Mai (2004) 4 SCC 412, and distinguishing the judgment on facts, held that the principle as laid down in UCO Bank (supra) would not be applicable. However, according to Mr.Bhatt, so far as the facts of the present case are concerned, the principle as laid down in UCO Bank (supra) would squarely apply. Thus, relying on the decision in the case of UCO Bank (supra), Mr.Bhatt submitted that exclusion of an employee who has resigned from the service, from the Pension Scheme could not be termed as arbitrary or violative of Article 14 of the Constitution.
Mr. Bhatt therefore, urged that there being no merit in the petition, the same be dismissed.
7. Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question that falls for my consideration in this petition is as to whether the petitioner is entitled to the benefit of pension as provided under Vijaya Bank (Employees') Pension Regulations, 1995.
8. Before adverting to the rival submissions of the parties, it will be profitable to consider few facts which are not in dispute.
8.1 The petitioner had joined the Bank in August, 1974, and his service came to an end with effect from 1st April 1993. Thus, on the date of cessation of the service, the petitioner had put in around 19 years of service. The respondent-bank, vide letter dated 22nd December, 2000 (Annexure-I to this petition), conveyed in the following words their decision so far as the claim put forward by the petitioner for pension is concerned.
"We refer your letter dated 26.8.2000 and wish to inform you that our Bank has no provision to pay the pension in respect of employees who voluntarily retired during the period from 1.1.1986 to 31.10.1993. Further Court Direction applies only to those who have approached the Court in the matter."
8.2 On 10th September 1992 i.e. the date on which the petitioner had tendered his resignation letter, the petitioner was governed by Vijaya Bank (Officers') Service Regulations, 1982, as amended upto 31st March 1991. Regulation 20 of the Service Regulation reads as under:-
"20. [1] Subject to sub-regulation (3) of Regulation 16, the Bank may terminate the services of any officer by giving him three month's notice in writing or by paying him three month's emoluments in lieu thereof (2) An officer shall not leave or discontinue his service in the Bank without first ciivinci a notice in writing of his intention to leave or discontinue the service or resign. The period of notice required shall be three months and shall be submitted to the competent authority as prescribed in these regulations.
Provided that the Competent Authority may reduce the period of three months or remit the requirement of notice."
9. I shall now look into few relevant provisions of the Regulations, 1995.
1. Short title and commencement:-
(1) These regulations may be called Viiaya Bank (Employees') Pension Regulations, 1995.
(2) xxxx xxxx
2. Definitions:-
In these regulations, unless the context otherwise requires:-
(a) "Act" means the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980);
(b) "actuary" shall have the meaning assigned to it in clause (1) of section 2 of the Insurance Act, 1938 (4 of 1938);
(c) to (m) xxxx xxxx
(n) "employee" means any person employed in the service of the Bank on full time work on permanent basis or on part-time work on permanent basis on scale wages and who opts and is governed by these regulations, but does not include a person employed either on contract basis or daily wages basis or on consolidated wages;
(o) to (s) xxxx xxxx
(t) "pension" includes the basic pension and additional pension referred to in Chapter VI of these regulations;
(u) xxxx
(v) xxxx
(w) "qualifying service" means the service rendered while on duty or otherwise which shall be taken into account for the purpose of pension under these regulations;
(x) xxxx
(y) "retirement" means cessation from Bank's service:-
(a) on attaining the age of superannuation specified in Service Regulations or Settlements;
(b) on voluntary retirement in accordance with provisions contained in regulation 29 of these regulations;
(c) on premature retirement by the Bank before attaining the age of superannuation specified in Service Regulations or Settlement;
(``) xxxx (zaj "service regulations" means Vijaya Bank (Officers') Service Regulations, 1982 made under section 19 of the Act;
(zb) to (zf) xxxx xxxx
3. Applications:
These regulations shall apply to employees who-
(1) (a) were in the service of the Bank on or after the 1st day of January, 1986 but had retired before the 1st day of November, 1993;
(b) xxx 14. Qualifying Service:-
Subject to the provisions contained in these regulations, an employee who has rendered a minimum of ten years of service in the Bank on the date of his retirement or the date on which he is deemed to have retired shall qualify for pension, 22. Forfeiture of service:-
(1) Resignation or dismissal or 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;
(2) An interruption in the service of a Bank employee entails forfeiture of his past service, except in the following cases, namely;-
(a) authorised leave of absence;
(b) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the bank employee dies or is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension;
(c) transfer to non-qualifying service in an establishment under the control of the Government or Bank if such transfer has been ordered by a competent authority in the public interest;
(d) joining time while on transfer from one post to another,
(3) Notwithstanding anything contained in sub- regulation (2), the appointing authority may, by order, commute retrospectively the periods of absence without leave as extraordinary leave.
(4)(a) In the absence of a specific indication to the contrary in the service record, an interruption between two spells of service rendered by a bank employee shall be treated as automatically condoned and the pre- interruption service treated as qualifying service;
(b) Nothing in clause (a) shall apply to interruption caused by resignation, dismissal or removal from service or for participation in a strike;
Provided that before making an entry in the service record of the Bank employee regarding forfeiture of past service because of his participation in strike, an opportunity of representation may be given to such bank employees.
29. Pension on Voluntary Retirement:-
(1) On or after the 1st day of November, 1993, at any time after an employee has completed twenty years of qualifying service he may, by giving notice of not less than three months in writing to the appointing authority retire from service;
Provided that this sub-regulation shall not apply to an employee who is on deputation or on study leave abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than on year.
Provided that this sub-regulation shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking or company or institution or body, whether incorporated or not to which he is on deputation at the time of seeking voluntary retirement:
Provided that this sub-regulation shall not apply to an employee who is deemed to have retired in accordance with clause (1) of regulation 2.
(2) The notice of voluntary retirement given under sub- regulation (1) shall require acceptance by the appointing authority:
Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
(3)(a) An employee referred to in sub-regulation (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons therefore;
(b) On receipt of a request under clause (a), the appointing authority may, subject to the provisions of sub-regulation (2), consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for communication of a part of his pension before the expiry of the notice of three months.
(4) An employee, who has elected to retire under this regulation and has given necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority;
Provided that the request for such withdrawal shall be made before the intended date of his retirement
(5) The qualifying service of an employee retiring voluntarily under this regulation shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty-three years and it does not take him beyond the date of superannuation.
(6) The pension of an employee retiring under this regulation shall be based on the average emoluments as defined under clause (d) of regulation 2 of these regulations and the increase, not exceeding five years in his qualifying service, shall not entitle him to any notional fixation of pay for the purpose of calculating his pension.
32. Premature Retirement Pension:-
Premature retirement Pension may be granted to an employee who:-
(a) has rendered minimum ten years of service;
(b) retires from service on account of orders of the Bank to retire prematurely in the public interest or for any other reason specified in service regulations or settlement, if otherwise he was entitled to such pension on superannuation on that date.
34. Payment of pension or family pension in respect of employees who retired or died between 1.1.1986 to 31.10.1993:-
(1) Employees who have retired from service of the Bank between the 1st day of January, 1986 and the 31st day of October, 1993 shall be eligible for pension with effect from the 1st day of November, 1993.
(2) The family of a deceased employee governed by the provisions contained in sub-regulation (7) of regulation 3 shall be eligible for family pension with effect from the 1st day of November, 1993.
In my opinion, it is very clear from the language of sub- clause (2) of Regulation 20 of the Service Regulations, 1982, that an officer could leave or discontinue his service or resign after giving in writing to the competent authority of his intention to leave or discontinue the services and the period of such notice required to be given was three months. It is in accordance with this statutory provision that the petitioner submitted his letter dated 10th September 1992 to the Chairman and Managing Director of the bank, saying that he would like to resign from his post and requesting him to treat one month's notice from the date of the letter i.e. 10th September 1992 and it is in accordance with this regulation that the competent authority accepted his resignation with effect from 30th March 1993 i.e. after completion of three months' notice as provided under Regulation 20 of the Service Regulations, 1982. Regulation 20 does not state that the termination of service pursuant to the notice given by an officer to leave or discontinue his service amounts to 'resignation' though the word 'resign' has been used, more particularly, when it does not state that such termination of service of an officer of the bank of his serving notice in writing to leave to discontinue in service amounts to Voluntary retirement'. Regulation 20 does not also make a distinction between 'resignation' and 'voluntary retirement' and it only provides that an officer who wants to leave or discontinue his service has to serve a notice of three months to the competent authority. In the facts of the present case, the request of the petitioner to relieve him from his service was accepted by the competent authority and such acceptance was conveyed by the letter dated 30th March 1993 of the Divisional Manager of the bank.
The Pension Scheme, 1995 was framed and notified only in 1995 and yet the Pension Scheme, 1995 was made applicable also to employees who had left the services of the respondent-bank before 1995. Clauses 14 and 22 of the Pension Scheme, 1995 quoted above were not in existence when the petitioner submitted his letter dated 10th September 1992 to the Chairman and Managing Director of the bank. Hence, when the petitioner served his letter dated 10th September 1992 to the Chairman and Managing Director of the bank, he had no knowledge of the difference between 'resignation' under Regulation 20 and 'voluntary retirement' or 'premature retirement' because as such there was no provision of any voluntary retirement or premature retirement.
In the facts of the present case, 1 find that the petitioner had completed 17 years' qualifying service and had given notice in writing to the competent authority of his intention to leave service and the competent authority had accepted notice of the petitioner and relieved him from service. I am of the view that clause 14 of the Pension Scheme, 1995 applied to the petitioner even though in his letter dated 10th September 1992 to the Chairman and Managing Director of the respondent-bank he had used the word 'resignation' and more particularly when clause 14 of the Regulations itself provides that an employee who has rendered a minimum of 10 years of service in the bank on the date of his retirement shall qualify for pension. If I accept the submission of Mr.Bhatt that since the petitioner had resigned from service, clause 22 of the Regulations would apply, then this will lead to a very anomalous situation wherein an employee who has put in 10 years of service will qualify for pension but an employee who has put in more than 17 years of service would not qualify for pension as he had discontinued his service by tendering resignation.
The general purpose of the Pension Scheme, 1995 as held by the Supreme Court in the case of Sheelkumar Jain (supra), read as a whole, is to grant pensionary benefits to employees who had rendered service in the bank and had left the service or had retired after putting in the qualifying service in the bank. In my opinion, clause 22 of the Pension Scheme, 1995 cannot be so construed as to deprive an employee of a bank, such as the petitioner, who had put in the qualifying service for pension and who had voluntarily given up his service after serving one month's notice in accordance with clause 20 of the Service Regulations, 1981, which was accepted by the competent authority. The bank itself appears to have considered and construed the notice of the petitioner dated 10th September 1992 as one for voluntary retirement, as reflected from the reply of the bank dated 22nd December 2000 which is annexed as Annexure-T to the petition at p.69 of the paper-book.
The matter could also be looked into with a different angle. Clause 30 of the Pension Scheme, 1995 which has been relied upon by the Supreme Court in Sheelkumar Jain (supra) is pari materia to clause 29 of the scheme applicable in the present case. If the only objection of the Bank is that the petitioner had not completed 20 years of qualifying service to claim voluntary retirement, then in such circumstances, what has Bank to say as regards sub-clause 5 of clause 29, which reads as under :
"(5). The qualifying service of an employee retiring voluntarily under this regulation shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty-three years and it does not take him beyond the date of superannuation.>} It appears that a provision has been made for increasing the qualifying service for the purpose of claiming voluntary retirement subject to a rider that such increase shall not be more than five years and the total qualifying service rendered by an employee shall not in any case exceed thirty-three years so as to take him beyond the date of superannuation. I may only say that this aspect has not been touched by Mr.A.L.Shah, the learned counsel appearing for the petitioner. However, in the interest of justice, I have thought fit to even make a reference of clause 29(5) of the Regulations.
I shall now look into the decision of the Supreme Court in the case of Sheelkumar Jain (supra) which has been heavily relied upon by Mr.A.L.Shah, the learned counsel appearing for the petitioner. In that case, the appellant was appointed as an Inspector in Liberty Insurance Company Limited. Liberty Insurance Company was nationalized and merged in the respondent-company i.e. the New India Assurance Company Limited. The services of the appellant were absorbed in respondent-company. The appellant served a letter dated 16th September 1991 to the General Manager of respondent- company, saying that he wanted to resign from his post and requested to treat the letter as a three months notice and thereby relieved him from his services. The Assistant Administrative Officer, by his letter dated 28th October 1991, had informed the appellant that his resignation has been accepted by the competent authority with effect from 16th December 1991 i.e. after completion of three months notice. Accordingly, the appellant was relieved from his services on 16th December 1991. Thereafter, the General Insurance (Employees') Pension Scheme, 1995 was framed by the Central Government in exercise of its powers under Section 17-A of the Act. The Pension Scheme, 1995 was made applicable also to the employees who were in the service of respondent-company on or after 1st January 1986 but had retired before the first day of November 1993 and exercised option in writing within 120 days from the notified date, provided the employee refunded within the specified period the entire amount of the company's contribution towards the provident fund including interest thereon as well as the entire amount of non-refundable withdrawal, if any, made from the company's contribution towards the provident fund amount and interest thereon. On 20th October 1995, the appellant had submitted an application to the respondent-company opting for the Pension Scheme, 1995 and had also given an undertaking to refund to respondent-company the entire amount of company's contribution towards the provident fund account together with interest as well as the entire amount of non-refundable withdrawal. The respondent-company, however, intimated the appellant that the Pension Scheme, 1995 was not applicable to those who had resigned from the respondent-company, and since the appellant had resigned, he would not be entitled for the Pension Scheme, 1995. The appellant then had to file a writ-petition before the Madhya Pradesh High Court. The learned Single Judge of the Madhya Pradesh High Court dismissed the petition. Thereafter, an appeal was preferred before the Division Bench of the Madhya Pradesh High Court and the Division Bench confirmed the view of the learned Single Judge that as the appellant had resigned from service, even if he had worked for 20 years in the respondent-company, he could not be equated with an employee who had taken voluntary retirement from service under the Scheme, 1995. Thereafter, the appellant preferred an SLP before the Supreme Court and before the Supreme Court, it was submitted that the High Court was not right in coming to the conclusion that the appellant had resigned from service. In this factual background of the entire matter, the question which fell for the Hon'ble Supreme Court was, as to whether the termination of services of the appellant of that case amounted to resignation or voluntary retirement.
The Supreme Court, setting aside the orders of the Division Bench of the High Court, allowed the SLP preferred by Sheelkumar Jain, holding as under :
"7. We have perused the decisions of this Court cited by learned counsel for the respondents. In Reserve Bank of India and Anr. v. Cecil Dennis Solomon and Anr. (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 and Ors., etc, v. Sanwar Mai, etc., (AIR 2004 SC 2135 : 2004 AIR SCW 2294) (supra) Sanwar Mai, 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 Mai opted for the pension scheme under these regulations. The UCO Bank declined to accept his option to admit him into the pension scheme. Sanwar Mai 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
8. For deciding this issue, we have to look at the Clause 5 of the Scheme, 1976 made under Section 10 of the Act under which the services of the appellant were terminated after he submitted his letter dated 16.09.1991 to the General Manager of respondent No. 1-Company saying that he would like to resign from his post and requesting him to treat the letter as three months' notice and to relieve him from his services. Clause 5 of the Scheme, 1976 is quoted hereinbelow:
"5. Determination of Service:
(1) An officer or a person of the Development Staff, other than one on probation shall not leave or discontinue his service without first giving in writing to the appointing authority of his intention to leave or discontinue the service and the period of notice required to be given shall be three months;
Provided that such notice may be waived in part or in full by appointing authority at its discretion.
Explanation I - In this Scheme, month shall be reckoned according to the English Calendar and shall commence from the day following that on which the notice is received by the Corporation or the Company, as the case may be.
Explanation E - A notice given by an officer or a person of the Development Staff under this paragraph shall be deemed to be proper only if he remains on duty during the period of notice and such officer or person shall not be entitled to set off any leave earned against the period of such notice.
(2) In case of breach by an officer or a person of the Development Staff of the provisions of sub- paragraph
(1) , he shall be liable to pay to the Corporation or the Company concerned, as the case may be, as compensation a sum equal to his salary for the period of notice required of him which sum may be deducted from any monies due to him."
It will be clear from the language of sub-clause (1) of Clause 5 of the Scheme, 1976 that an officer or a person of the Development Staff could leave or discontinue his services after giving in writing to the appointing authority of his intention to leave or discontinue of the services and the period of such notice required to be given was three months. It is in accordance with this statutory provision that the appellant submitted his letter dated 16.09.1991 to the General Manager of respondent No. 1- Company saying that he would like to resign from his post and requesting him to treat the letter as three months' notice and to relieve him from his services and it is in accordance with this statutory provision that the competent authority accepted his resignation with effect from 16.12.1991, i.e. after completion of three months' notice. Sub-clause (1) of Clause 5 does not state that the termination of service pursuant to the notice given by an officer or a person of the Development Staff to leave or discontinue his service amounts to "resignation" nor does it state that such termination of service of an officer or a person of the Development Staff on his serving notice in writing to leave or discontinue in service amounts to "voluntary retirement". Sub-clause (1) of Clause 5 does not also make a distinction between "resignation" and "voluntary retirement" and it only provides that an employee who wants to leave or discontinue his service has to serve a notice of three months to the appointing authority. We also notice that sub-clause ( l j of Clause 5 does not require that the appointing authority must accept the request of an officer or a person of the Development Staff to leave or discontinue his service but in the facts of the present case, the request of the appellant to relieve him from his service after three months' notice was accepted by the competent authority and such acceptance was conveyed by the letter dated 28.10.1991 of the Assistant Administrative Officer, Indore.
9. We may now look at Clauses 22 and 30 of the Pension Scheme, 1995 which are quoted hereinbelow:
"22. Forfeiture of Service : Resignation or dismissal or removal or termination or compulsory retirement of an employee from the service of the Corporation or a Company shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits.
30. Pension on Voluntary Retirement: (1) At any time after an employee has completed twenty years of qualifying service, he may, by giving notice of not less than ninety days, in writing to the appointing authority, retire from service:
Provided that this sub-paragraph shall not apply to an employee who is on deputation unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year:
Provided further that this sub-paragraph shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement.
(2) The notice of voluntary retirement given under subparagraph (1) shall require acceptance by the appointing authority:
Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
(3)(a) An employee referred to in sub-paragraph (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than ninety days giving reasons therefor;
(b) on receipt of request under clause (a), the appointing authority may, subject to the provisions of subparagraph (2), consider such request for the curtailment of the period of notice of ninety days on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of ninety days on the condition that the employee shall not apply for commutation of a part of his pension before the expiry of the notice of ninety days.
(4) An employee who has elected to retire under this paragraph and has given necessary notice to that effect to the appointing authority shall be precluded from withdrawing his notice except with the specific approval of such authority:
Provided that the request for such withdrawal shall be made before the intended date of his retirement
(5) The qualifying service of an employee retiring voluntarily under this paragraph shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty three years and it does not take him beyond the date of retirement
(6) The pension of an employee retiring under this paragraph shall be based on the average emoluments as defined under clause (d) of paragraph 2 of this scheme and the increase, not exceeding jive years in his qualifying service, shall not entitled him to any notional fixation of pay for the purpose of calculating his pension;
Explanation : For the purpose of this paragraph, the appointing authority shall be the appointing authority specified in Appendix-I to this scheme."
10. The Pension Scheme, 1995 was framed and notified only in 1995 and yet the Pension Scheme, 1995 was made applicable also to employees who had left the services of the respondent No. 1-Company before 1995. Clauses 22 and 30 of the Pension Scheme, 1995 quoted above were not in existence when the appellant submitted his letter dated 16.09.1991 to the General Manager of respondent No.l-Company. Hence, when the appellant served his letter dated 16.09.1991 to the General Manager of respondent No.l-Company, he had no knowledge of the difference between 'resignation' under Clause 22 and 'voluntary retirement' under Clause 30 of the Pension Scheme, 1995. Similarly, the respondent No. 1-Company employer had no knowledge of the difference between 'resignation' and 'voluntary retirement under Clauses 22 and 33 of the Pension Scheme, 1995 respectively. Both the appellant and the respondent No.l have acted in accordance with the provisions of sub- clause (1) of Clause 5 of the Scheme, 1976 at the time of determination of service of the appellant in the year 1991. It is in this background that we have now to decide whether the determination of service of the appellant under sub-clause (1) of Clause 5 of the Scheme, 1976 amounts to resignation in terms of Clause 22 of the Pension Scheme, 1995 or amounts to voluntary retirement in terms of Clause 30 of the Pension Scheme, 1995. Clause 22 of the Pension Scheme, 1995 states that resignation of an employee from the service of the Corporation or a Company shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits, but does not define the term "resignation". 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.l-Company he had used the word 'resign'.
11. We may now cite the authorities in support of our aforesaid conclusion. In Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd. and Ors., (AIR 1984 SC 1064) (supra), the plaintiff had rendered continuous service under the respondent from 31.12.1929 till 31.08.1959, i.e. for 20 years and 8 months. He submitted a letter of resignation dated 27.07.1959 and his resignation was accepted by the respondent by letter dated 26.08.1959 and he was released from his service with effect from 01,09.1959. On these facts, a three-Judge Bench of this Court held:
"The termination of service was thus on account of resignation of the plaintiff being accepted by the respondent. The plaintiff has, within the meaning of the expression, thus retired from service of the respondent and he is qualified for payment of gratuity in terms of Rule 6."
12. In Union of India and Ors. v. Lt. Col P.S. Bhargava, (AIR 1997 SC 565 : 1997 AIR SCW 493) (supra), respondent joined the Army Dental Corps in 1960 and thereafter he served in various capacities as a specialist and on 02.01.1984 he wrote a letter requesting for permission to resign from service with effect from 30.04.1984 or from an early date. His resignation was accepted by a communication dated 24.07.1984 and he was released from service and he was also informed that he shall not be entitled to gratuity, pension, leave pending resignation and travel concession.
On receipt of this letter, he wrote another letter dated 18.08.1984 stating that he was not interested in leaving the service. This was followed by another letter dated 22.08.1984 praying to the authority to cancel the permission to resign. These letters were written by the respondent because he realized that he would be deprived of his pension, gratuity, etc. as a consequence of his resignation.
These subsequent letters dated 18.08.1984 and 22.08.1984 were not accepted and the respondent was struck off from the rolls of the Army on 24.08.1984. On these facts, the Court held:
"Once an officer has to his credit the minimum period of qualifying service, he earns a right to get pension and as the Regulations stand that right to get pension can be taken only if an order is passed under Regulations 3 or 16."
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."
I am of the view that the principle as laid down by the Supreme Court in Sheelkumar Jain (supra) would squarely apply so far as the present petition is concerned. To say that since the petitioner had resigned from service he would not be entitled to pension even though he had put in more than 17 years of service would be frustrating the very object with which the Pension Scheme, 1995 came to be enacted. Once the petitioner has to his credit the minimum period of qualifying service, I am of the view that he earns a right to get pension as provided under the Regulation of 1995.
In the result, this petition succeeds. The respondent-bank is directed to consider the claim of the petitioner for pension in accordance with the Pension Scheme, 1995, more particularly keeping in mind Regulation 14 and Regulation 34 of the Regulations, 1995, and calculate the amount of pension which was due and payable from the date of coming into force of the Regulations, 1995.
The respondent-bank is directed to undertake this exercise and complete the same within a period of four weeks from today and pay the entire arrears towards the pension at the rate of 9% interest per annum within two weeks thereafter.
In the facts and circumstances of the case, there shall be no order as to costs.
Mohandas/Moin
(J.B.PARDIWALA, J.)