Court No. - 33
Case :- WRIT - A No. - 880 of 2021 Petitioner :- Gramin Bank Retirees Welfare Association And Another5 Respondent :- Chairman Aryavart Bank And 3 Others Counsel for Petitioner :- Chandra Bhan Gupta Counsel for Respondent :- A.S.G.I.,Mahima Jaiswal,Ramesh Kumar Shukla,S.K. Srivastava,Sadhana Singh,Shambhu Chopra(Senior Adv.)
Hon'ble Ashwani Kumar Mishra,J.
Petitioner no.1 is an association of retired employees of Gramin Bank and has approached this Court through its alleged Secretary, who is petitioner no.2. Prayer is made to direct respondent no.1 to refund the amount of pension paid by the Employees Provident Fund Organization under Employees' Pension Scheme, 1995 to members of petitioner association from 58 to 60 years, alongwith interest.
The petitioner no.1 is an association of retired employees of Gramin Bank of Aryavart Bank (Gramin Bank) established under the Regional Rural Bank Act, 1976. The Bank is functioning under the guidelines issued by NABARD, an authority established by Parliament under Act No.61 of 1981. NABARD is a regulatory authority for all institutions functioning for rural development, which includes Regional Rural Banks. The employees of the Gramin Bank were covered under the Pension Scheme introduced under the provisions of Employees Provident Funds and Miscellaneous Provisions, 1952 and Employees Pension Scheme, 1995. As per the Scheme of 1995 members of association were entitled for payment of pension at the age of 58 years. According to the petitioner its members deposited contribution under the Scheme of 1995 and were therefore entitled to payment of pension from age of 58 years.
It transpires that statutory regulations were later framed known as Gramin Bank of Arayavart (Employees) Pension Regulations, 2018, which became effective from 01.04.2018. After the Regulations of 2018 became applicable the employees of the Bank were entitled to pension under the statutory regulations. The age of retirement apparently was fixed at 60 years. It further transpires that on account of introduction of Regulations of 2018 the employees were continued in service upto the age of 60 years, unlike the age of 58 years determined under the Scheme of 1995.
According to the petitioners, employees started receiving pension at the age of 58 years under the pension Scheme of 1995 till they attained the age of 60 years whereafter they started receiving pension under the Regulations of 2018. It appears that between the age of 58 to 60 years employees continued in service and, therefore, received salary for the services rendered by them to the Bank and also received pension under the Scheme of 1995. It is further alleged that the Bank called upon the petitioners/employees to refund the amount of pension received while they were in service. Members of the petitioner association allegedly refunded such amount as is apparent from the pleading in the writ petition. There is nothing on record to show that such refund of pension received under the Scheme of 1995 while they were in service was either under protest or any objection in that regard was raised by them, then. It is only later that petitioners raised a claim for refund of the pension amount returned by them for the period between 58 to 60 years. According to the petitioners, members became entitled to pension upon attaining the age of 58 years and the direction issued by the Bank to recover the pension paid during 58 to 60 years was unauthorized and that its members are entitled to refund of such amount. It is in this backdrop that petitioners have approached this Court for necessary directions.
Writ petition has been entertained. Sri Shambhu Chopra, learned Senior Counsel assisted by Ms. Mahima Jaiswal, has appeared for NABARD and a counter affidavit has been filed on its behalf. Similarly, a counter affidavit has also been filed on behalf of Gramin Bank by Sri R. K. Shukla. Claim raised by the petitioners for refund of the above amount is disputed on the ground that no provision exists either under the Scheme of 1995 or under the Regulations of 2018 on the basis of which petitioners could maintain a claim for refund of the amount already deposited by them without any protest.
Rejoinder affidavit has also been filed to both the counter affidavits.
I have heard Sri C. B. Gupta, learned counsel for the petitioner, Sri Shambhu Chopra, learned Senior Counsel assisted by Ms. Mahima Jaiswal for the NABARD, Sri R. K. Shukla for the respondent Bank and Ms. Sadhana Singh, counsel for the respondent Union of India and have perused the materials brought on record.
The facts as have been noticed above are not in issue. It is settled that pension would be payable to an employee only after he attains the age of superannuation and no provision under the Scheme of 1995 or the statutory Regulations of 2018 is shown which creates right in favour of a serving employee to receive pension also. The very concept of pension is based on the employee having rendered services for requisite number of years and the right to receive pension arises only on the strength of such working either under the regulations or the scheme. The concept of receiving pension, while in service, apparently would not co- exist unless there is any specific provision in that regard.
On behalf of the petitioners reliance is placed upon clause 12(7) of the Scheme of 1995 to submit that entitlement of petitioner to receive pension crystalizes upon attaining the age of 58 years notwithstanding the fact that he be a serving employee. Sub-clause (7) of clause 7 merely provides that a member, if he so desires, may be allowed to draw pension from a date prior to 58 years but not earlier than 50 years of age. This clause, however, has to be read in conjunction with other clauses of the Scheme. Clause 12(1) of the Scheme reads as under:-
"12. Monthly Members Pension. (1) A member shall be entitled to-
(a) superannuation pension if has rendered eligible service of 10 yeras or more and retires on attaining the age of 58 years;
(b) early pension, if he has rendered eligible service of 10 years or more and retires or otherwise ceases to be in the employment before attaining the age of 58 years."
The monthly members pension is only a superannuation pension and, therefore, liability to pay pension under the Scheme or the right to receive pension would arise only upon superannuation of the employee concerned and not before it. It is only where employee decides to retire prior to attaining the age of 58 years that he may opt for pension under the Scheme. Sub-clause (7) cannot be read disjunctively to create or acknowledge a right to receive pension even where employee is in service.
Regulations 3(1) & (2) of the Regulations of 2018 are also relevant which reads as under:-
"3. Application.– (1) These regulations shall apply to any employee who -
(a) was in the service of the Bank on or after the 1st day of September, 1987 but had retired on or before 31 March, 2010 who exercise an option in writing within one hundred and twenty days from the notified date, to become a member of the Fund and refund within sixty days after the expiry of the said period of one hundred and twenty days, the entire final amounts received by him (the corpus comprising of Bank's contribution to provident fund under the Employees' Pension Scheme, 1995 and interest accrued thereon till the date of receipt by him of the amount) but without requiring to pay interest on such final amounts from the date of receipt of such final amounts to the date of refund; or
(b) was in the service of the Bank on or after the 1st day of September, 1987 who continue to be in the service of the Bank on or after the notified date and exercise an option in writing within one hundred and twenty days from the notified date, to become member of the Fund and cause to transfer the entire contribution of the Bank along with the interest accrued thereon, to the credit of the Fund constituted under regulation 4; or
(c) was in the service of the Bank between the 1st day of September, 1987 and 31st March 2010 and continued in service on or after effective date but retired before the notified date, if he exercises an option in writing within one hundred and twenty days from the notified date, to become member of the Fund and refund within sixty days of the expiry of the said period of one hundred and twenty days the entire final amounts received by him (the corpus comprising of Bank's contribution to provident fund under the Employees' Pension Scheme, 1995 and interest accrued thereon till the date of receipt by him of the amount) but without requiring to pay interest on such final amounts from the date of receipt of such final amounts to the date of refund:
Provided that the family of the employee who –
(i) was in the service of the Bank on or after the 1st day of September, 1987 but died on or before 31st March, 2010; or
(ii) joined the service between 1st September, 1987 and 31 March, 2010 and died before the effective date; or
(iii) joined the service of the Bank between 1st September 1987 and 31 March 2010 and continued in service on or after the effective date but had died before one hundred twenty days after the notified date without the employee exercising an option in writing to become member of the Fund, shall be entitled to family pension under these regulations, if the family of such deceased employee exercises an option in writing within one hundred and twenty days from the date of the death of the employee or the expiry of one hundred and twenty days from the notified date, whichever is later, to become member of the Fund and refund within sixty days of the expiry of the said period of one hundred and twenty days the entire final amounts received by the family (the corpus comprising of Bank's contribution to provident fund under the Employees' Pension Scheme, 1995 and interest accrued thereon till the date of receipt of the amount by the family) but without requiring to pay interest on such final amounts from the date of receipt of such final amounts to the date of refund.
3(2). An employee or family of the deceased employee not exercising the option under sub-regulation (1) or who, after exercising the option, not refunding the amount shall be deemed not interested in becoming a member of the Fund and shall continue to be governed under the Employees' Pension Scheme, 1995."
Regulation 5(2) also reads as under:-
"The retired employee or the family of the deceased employee opting for Fund under sub- regulation (1) of regulation 3, shall continue to receive the amount of pension component under the Employees' Pension Scheme, 1995 and the balance of the pension payable under these regulations shall be paid out of the Fund."
From the above regulation it is clear that an employee or family of the deceased employee not exercising the option under sub-regulation (1) of regulation 3 or who, after exercising the option, fails to refund the amount shall be deemed to be not interested in becoming a member of the fund under Regulations of 2018 and shall continue to be covered under the Scheme of 1995.
From the perusal of above provisions it is apparent that a employee who was a member of the Scheme of 1995 and desires to receive benefit under Regulations of 2018 would have to refund the pension received between the age 58 to 60 years. It is in that context that members of the petitioner association have refunded the amount of pension received by them between the age 58 to 60 years while they were in service of the Bank. Such refund has been made by them without raising any protest. Having opted to avail the benefit of the Regulations of 2018 by surrendering the benefits received under the Scheme of 1995 cannot later turn around and claim benefit both under the Scheme and the Regulations. The petitioners cannot be permitted to blow both hot and cold and claim benefits under the Scheme and Regulations which otherwise infringes the settled principles of approbate and reprobate.
Learned counsel for the petitioner has placed reliance upon a judgment of the Supreme Court in the case of Somesh Thapliyal and another vs. Vice Chancellor, H.N.B. Garhwal University and other, (2021) 0 Supreme(SC) 474 and para 43 thereof has been relied upon. The aforesaid paragraph has no applicability in the facts of the present case inasmuch as action of the employer is not found to be in teeth of any statutory provisions.
Since the deposit of amount of pension received between 58 to 60 years is in accordance with the orders passed by the authorities of the Bank under Regulations of 2018, no right accrues to the petitioners to seek refund of such amount. No writ of mandamus accordingly would be issued for refund of such amount.
Writ petition, accordingly, fails and is dismissed. No order is, however, passed as to costs.
Order Date :- 29.10.2021 Ashok Kr.