IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH WEDNESDAY THIS THE EIGHTH DAY OF OCTOBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.13694 of 2002 Between:
M.S.R.Krishna Sarma and 4 others . PETITIONERS And The Chairman and Managing Director, UCO Bank, Kolkatta and another . RESPONDENTS The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.13694 of 2002
ORDER:
The petitioner was an Officer of the respondent-UCO Bank. The respondent bank adopted a pension policy in the year 1993 which prescribed 10 years minimum qualifying service for getting pension and the Bank’s contribution to provident fund will be transferred to pension fund and Bank will not contribute its shares towards provident fund. In normal course, the petitioner would have retired from service on 30th September 2003 on attaining the age of superannuation of 60 years. For that reason, the petitioner opted for the pension scheme adopted by the Bank on 30.11.1994. However, on account of domestic problems, the petitioner had offered voluntary retirement in terms of Circular dated 16.11.2000. Para-7 (ii) (a) of Annexure-I to the said circular reads as follows:
I) Gratuity as per the existing orders (ii) (a) Pension (including commuted value of pension) as per Bank’s Regulations, in case of those who have opted for pension and have put in 20 completed years of service.
OR Bank contribution towards provident fund as per the existing rules.
The petitioner’s version is that he opted for voluntary retirement scheme under the impression that he would be entitled for the return of the Bank’s contribution of provident fund. His option for voluntary retirement scheme was accepted and was relieved on 31.01.2001. He shifted his family from Madhya Pradesh to his native State of Andhra Pradesh. He received ex gratia payment on 26th March, 2001, his gratuity and contribution towards provident fund has not been released. He submitted an application to the respondent Bank on 05.11.2001 requesting to release those amounts. The respondent Bank vide its letter dated 28.11.2001 informed the petitioner to submit an application for pension. In response, the petitioner addressed a letter dated 10.12.2001 to the respondent Bank stating that he was not eligible for pension as per the Circular dated 16.11.2000, as he had not completed minimum 20 years of service as mandated and therefore, requested to pay him the Bank’s contribution to the provident fund. The gratuity and his own contribution to the provident fund upto 31.03.1999 have been released to him. He was informed by the respondent Bank that while processing his pension papers, the requirement of completion of 15 years of service was overlooked due to inadvertence and that he will not be entitled for employer’s contribution to provident fund and it would be admissible to the employees who have completed minimum service of 15 years and accordingly, his claim was rejected. The petitioner therefore filed the present writ petition to declare the action of the respondents in not providing of a provision for return of Banker’s contribution towards provident fund to the petitioner as illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India and consequently set aside the proceedings dated 12.04.2002 and direct the respondents to pay him the Banker’s contribution towards provident fund with interest.
The respondents, in their counter affidavit contended inter alia as follows:
The provision of pension in the Bank Circular dated 16.11.2000 is not complete as on the voluntary retirement scheme, the said circular was followed by another circular dated 22.12.2000 which modified the provision of pension in para 7(ii)(a) of the previous circular. Even if the petitioner had applied for voluntary retirement under the Bank’s Circular dated 16.11.2000, para-7(ii)(a) of the said circular provided for payment of pension to those who completed 20 years of service. The petitioner though was not eligible for pensionary benefits with the full knowledge of the circular, he had applied for voluntary retirement without regard to the subsequent circular dated 22.12.2000, which reduced the minimum period of service from 20 to 15 years. In the later circular, it was clearly mentioned that the employees who apply for voluntary retirement after having rendered minimum of 15 years of service under the voluntary retirement scheme as formulated with specific approval of Government and the Board of Directors will be eligible for pro rata pension for the period of service rendered as if they are to retire on attaining the age of superannuation on that date. The petitioner had opted for payment of pension during 1994. Having exercised his option for pension under the UCO Bank (Employees) Pension Regulations, 1995, his option is irrevocable and the question of allowing him to revoke the option does not arise. Thus, according to the respondent Bank, as the petitioner is not eligible for pension under the voluntary retirement scheme, he is also not entitled for the Banker’s contribution towards provident fund. Thus contending, the respondents sought to dismiss the writ petition.
I have heard Sri Y.S.Venkata Rao, learned counsel appearing for the petitioner and Sri E.Sambasiva Pratap, learned counsel appearing for the respondents.
The contention of the petitioner is based on the plain reading of para-7(ii)(a) of the Circular dated 16.11.2000 relating to the voluntary retirement scheme, which has been extracted hereinabove. The learned counsel would submit that clause-(b) of the circular applies to the petitioner because he has not completed 15 years of service and it is mandatory on the part of the respondents to pay the Bank’s contribution to the provident fund of the petitioner. According to the learned counsel for the petitioner, when once the petitioner retired under the voluntary retirement scheme, the respondent Bank cannot deny him its contribution of provident fund on the ground that he opted for pension which is irrevocable.
On the other hand, it is the contention of the learned counsel appearing for the respondents that since the petitioner is not eligible for pension under the voluntary retirement scheme, he is also not entitled to claim the Bank’s contribution towards provident fund. In support of his contention, the learned counsel relied on the judgment of the Hon’ble Supreme Court in Bank of Baroda v. Ganpat Singh
[1]
Deora .
In the said case before the Supreme Court, the respondent therein claiming to be eligible under the voluntary retirement scheme having completed 40 years of age applied for voluntary retirement under the said scheme. At that relevant point of time, he had completed only 13 years of service in the appellant bank. However, the respondent’s application for voluntary retirement was accepted by the Bank and he was paid all retrial benefits applicable to him under the scheme, but his request for grant of pension in addition to the other retrial benefits was not acceded by the Bank.
In response to the claim for pension, the Supreme Court took the view that the respondent who did not have the requisite qualifying service of 15 years is not entitled to pension even though he had completed 40 years of age for purpose of availing of VRS under the BOBEVRS, 2001.
The claim put forth by the respondent before the Supreme Court in the above referred case and the petitioner in the present case are not identical. In the instant case, the petitioner is not claiming any pension. His only grievance is that in terms of the para-7(ii)(a) of the Circular dated 16.11.2000, he is entitled for Bank’s contribution under the voluntary retirement scheme for which he had opted.
In support of his contention, the learned counsel appearing for the petitioner relied on a judgment of the Hon’ble Supreme Court in
[2]
Allahabad Bank v. A.C.Aggarwal wherein it was held that where employee has been paid gratuity in terms of 1972 Act along with Contributory Provident Fund maturity amount, such employee cannot be denied benefit of pension under Old Pension Scheme, 1974. Furthermore, conversely, even if such employee had opted for pension, he could have legitimately claimed gratuity without being required to refund amount of pension already received by him.
In the instant case, the claim of the petitioner is required to be examined in terms of para-7(ii)(a) of the Circular dated 16.11.2000. Para-7(ii)(a) of the said Circular enables the petitioner for pension in case he had put in 20 completed years of service. Clause-(b) alternatively provides for Bank’s contribution towards provident fund as per the existing rules. Therefore, ineligibility of the petitioner to claim pension under the voluntary retirement scheme does not automatically disentitle him for claiming Bank’s contribution towards provident fund. The proceedings dated 12.04.2002 interpreting that since the petitioner is not entitled for pension under voluntary retirement scheme, he is also not entitled for Bank’s contribution towards provident fund is wholly misconceived because it goes against the plain reading of para-7 of the Circular dated 16.11.2000.
As rightly contended by the petitioner, when once he was permitted to get retirement under the voluntary retirement scheme, having opted for pension during 1994, cannot be denied the Bank’s contribution towards provident fund on the ground that his option for pension is irrevocable though he is not entitled for the same. The proceedings dated 12.04.2002 are therefore liable to be set aside. Consequently, the proceedings dated 12.04.2002 are set aside. The respondents are directed to pay the petitioner the Bank’s contribution towards provident fund, within a period of 2 (two) months from the date of receipt of a copy of this order.
The Writ Petition is accordingly allowed. No order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in consequence.
R.KANTHA RAO,J Date: 08.10.2014 Dsr
[1] (2009) 3 SCC 217
[2] (2013) 4 SCC 141