@JUDGMENTTAG-ORDER
K.N. Basha, J.@mdashThe Petitioner has come forward with this writ petition seeking for the relief of quashing the order of the 1st Respondent dated 27.1.1999 and consequently to direct the Respondents to sanction, grant and disburse pension to the Petitioner with effect from 1.12.1999.
2. (a) The case of the Petitioner is that he was appointed as an Officer in the service of the 1st Respondent-Bank on 16.3.2004. He rose to the position of Deputy General Manager. The Petitioner has to leave the 1st Respondent Bank on 30.11.1992 by submitting resignation letter as he has been offered an employment in Bharath Overseas Bank Limited. The Petitioner assumed the charge as Chairman-cum-Chief Executive Officer of Bharath Overseas Bank Limited on 1.12.1992. When the Petitioner left the services of the 1st Respondent Bank, he had an unblemished record of service of 28 years and 8 months and he was aged 52 years. Under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, the 1st Respondent-Bank as well as 13 other Banks were nationalized. Six more Banks were nationalized subsequently. In the year 1974, the Government of India constituted a Committee, viz., Pillai Committee to review the existing terms and conditions of employment. The recommendations of the Pillai Committee were implemented in the year 1979.
(b) All the nationalized Banks including the 1st Respondent Bank framed Officers'' Service Regulations as per the recommendations of the Pillai Committee. The 1st Respondent Bank accordingly framed Indian Bank (Officers) Service Regulations, 1979 which came into force from 1.7.1979. The age of retirement of an officer employees in the 1st Respondent Bank is 58 years in respect of those who joined prior to the nationalisation and the age of retirement is 60 years for all the officers. As per the 4th proviso to Regulation 19(1), nothing in the said regulation shall be deemed to preclude an officer/employee from retiring earlier pursuant to the option exercised by him in accordance with the rules of the Bank. All the nationalized Banks other than the 1st Respondent Bank have framed rules as required under the said proviso to Regulation 19(1). A provision was also made for Voluntary Retirement. Many employees in various other nationalized Banks other than the 1st Respondent Bank who had completed 50 years of age or 25 years of service opted for Voluntary Retirement and received the benefits of the Voluntary Retirement Scheme. The Petitioner also falls well within the said requirement as he had completed 53 years of age and 28 years of service. But the Petitioner was not able to avail the said provision in view of the 1st Respondent Bank had not framed rules for Voluntary Retirement as per the 3rd proviso to Regulation 19 and therefore, he had to submit his resignation on 30.11.1992 in order to take up the position as Chairman-cum-Chief Executive Officer of Bharath Overseas Bank Limited from 1.12.1992. The 1st Respondent Bank also framed Indian Bank (Employees) Pension Regulations, 1995.
(c) When the introduction of the pension scheme in the Banking Industry was advertised by the Indian Bank Association on behalf of the member Banks in the Newspapers on 20.3.1994, the Petitioner sent a letter on 24.3.1994 to the 1st Respondent Bank opting for pension scheme in lieu of Contributory Pension Fund and agreed to refund the Bank''s contribution including interest received thereon as provided for in the scheme. The said letter was acknowledged by the 1st Respondent Bank on 4.4.1994. The Petitioner sent another letter dated 8.3.1995 requesting to be informed for the amount for Management Contribution of Provident Fund to be refunded together with interest from the date of payment to the date of his repayment to make the Petitioner eligible for pension scheme. The Petitioner also explained in the said letter that since there was no Voluntary Retirement Scheme in the 1st Respondent Bank, he had to resign for accepting the employment of Chairmanship of Bharath Overseas Bank Limited and as such, that is only a technical resignation. The 1st Respondent Bank sent a reply to the Petitioner on 14.6.1995 that they have referred the matter to the Indian Bank Association and they have clarified the following:
(1) past resignation eases cannot be equated to retirement;
(2) the definition of Retirement'' as defined in Regulation 2(j)(v) of the Bank Employees'' Pension Regulations, 1993 cannot be extended to Officers resigned from the bank to join Board level posts of private sector Banks.
(d) The 1st Respondent Bank framed Indian Bank (Employees) Pension Regulations, 1995 adopted by the Indian Bank Board on 26.9.1995 and notified in the Extraordinary Gazette on 29.9.1995. The Petitioner again wrote a letter to the 1st Respondent Bank on 14.6.1997 followed by another letter on 13.7.1997 opting for pension scheme. In the said letter, the Petitioner relied on the judgment of a Division Bench of the Karnataka High Court in W.A. Nos. 8897 to 8972 of 1996 dated 30.5.1997 on the right of pension of pension to the officers and also referred to the benefit received by one K. Subramaniam who also left the 1st Respondent Bank during the same relevant period and joined the Board of Indian Overseas Bank. The 1st Respondent Bank sent a reply dated 27.1.1999 expressing its inability to consider the Petitioner''s claim for pension stating that as per the Pension Regulations, pension is payable with retrospective effect from 1.11.1993 in case of employees who have retired or died while in service on or after 1.1.1996. But, in the case of the Petitioner, he had resigned from November 1992 and the persons who have resigned, are not eligible for being considered for pension.
(e) Thereafter, the Petitioner preferred W.P. No. 5235 of 1999 seeking for the relief of direction to the 1st Respondent Bank to consider the claim of the Petitioner for pension and also grant pension from the appropriate date. The said writ petition was dismissed by this Court on the ground that unless the Petitioner challenge the order dated 27.1.1999, the mandamus sought for could not be granted. Aggrieved against the said order, the Petitioner filed W.A. No. 2071 of 2003 and the writ appeal was dismissed on 22.3.2004 with liberty to the Petitioner to challenge the order dated 27.1.1999. Under the above said circumstances, the Petitioner has come forward with the present petition challenging the order dated 27.1.1999.
3. Mr. Vijay Narayanan, learned senior counsel appearing for the Petitioner would contend that as per the 4th proviso to Regulation 19(1) of the Indian Bank (Officers) Services Regulations, 1979, nothing in the said regulation shall be deemed to preclude an officer/employee from retiring earlier pursuant to the option exercised by him in accordance with the rules of the Bank. It is contended that all the other nationalized Banks framed rules except the 1st Respondent Bank making a provision for Voluntary Retirement and as such, the Petitioner has been compelled to submit his resignation on 30.11.1992 as he has been offered an employment of Chairman-cum-Chief Executive Officer in the Bharath Overseas Bank Limited. The learned senior counsel also placed reliance on Regulation 20(2) stipulating 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 his service or resign. The learned senior counsel would also place reliance on 2(1), 2(y) and 3(a) of the Indian Bank (Employees) Pension Regulation, 1995. It is pointed out that Rule 2(1) gives the definition of "Deemed to have retired" which means cessation from service of the Bank on appointment by Central Governments a whole-time Director of Managing Director of Chairman in the Bank or in any other Bank specified in column 2 of the First Schedule of the Act or Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 or in any public financial institution or State Bank of India established under State Bank of India Act 1955. It is further pointed out that Regulation 2(y) defines the term "Retirement". He would contend that many employees in various nationalized Banks who have completed 50 years of age or 25 years of service, opted for Voluntary Retirement Scheme and received the benefits of pension etc., and whereas, the 1st Respondent Bank had not framed rules for Voluntary Retirement Scheme and as such, the Petitioner was not able to opt for Voluntary Retirement Scheme and as a result, the Petitioner has been compelled to submit his resignation on 30.11.1992.
4. The learned senior counsel would submit that when the pension scheme was introduced and the same was advertised in the newspapers on 20.3.1994, the Petitioner made a representation on 24.3.1994 to the 1st Respondent Bank for considering his claim for pension scheme in lieu of Contributory Provident Fund. The Petitioner also made further representations on 8.3.1995 and 14.6.1995. But, the 1st Respondent Bank replied that past resignation cases cannot be equated to retirement. It is further contended that one K. Subramaniam, General Manager, who was appointed as Executive Director of Indian Overseas Bank by the Central Government was given the pensionary benefits during the relevant period and whereas the 1st Respondent Bank denied the said benefit to the Petitioner herein. The learned senior counsel would submit that there is an inordinate delay in framing the Rules and Regulations by the 1st Respondent Bank and as a result, the Petitioner has been deprived of his opportunity to opt for Voluntary Retirement Scheme instead of submitting his resignation in view of the offer of employment as Chairman-cum-Chief Executive Officer in the other Bank, viz., Bharath Overseas Bank Limited.
5. The learned senior counsel also placed reliance on the following decisions:
(i) R. Veerasamy v. Tamil Nadu Electricity Board (Madras) (1998) 7 SLR 303 and
(ii)
6. Per contra, Mr. G. Venkataraman, learned Counsel appearing for Respondents 1 and 3 would submit that the Petitioner is not entitled to draw analogy from the case of one K. Subramanian as he was appointed by the Central Government and the Government of India has its own method of selection. Further, it is submitted that the Indian Overseas Bank at which the said person was appointed is a Nationalized Bank and his appointment was made u/s 9 of Central Act 1970 and his cessation of employment is by virtue of law. He would submit that the Petitioner on his own volition submitted his resignation from the services of the Indian Bank and got himself appointed to the post of Chairman-cum-Chief Executive Officer of a private sector Bank. It is contended that the Petitioner is well aware about the consequences of his resignation and by no stretch of imagination, the resignation of the Petitioner could be treated as Voluntary Retirement. Learned Counsel would submit that merely because some nationalized Banks such as Canara Bank, Bank of India and Union Bank of India, have framed Voluntary Retirement Scheme long before 1955, it does not mean that the Indian Bank also should have framed the rules at the relevant point of time. It is contended that the Indian Bank (Officers) Services Regulations, 1979 does not provide any provision for Voluntary Retirement Scheme and only under the Indian Bank (Employees) Pension Regulations, 1995, a provision was introduced for Voluntary Retirement Service as per Regulation 29 and the said provision is applicable to the employees as well as the officers. Therefore, it is contended that the Petitioner having submitted his resignation as early as on 30.11.1992, cannot claim the benefit of Voluntary Retirement Scheme provided as per Regulation 29 of the Indian Bank (Employees) Pension Regulations, 1995, which came into force on 29.5.1995. It is submitted that the Petitioner cannot place reliance on the judgment of the Division Bench of the Karnataka High Court in W.A. Nos. 8897 to 8972 of 1996 dated 30.5.1997.
7. The learned Counsel appearing for Respondents 1 and 3 would submit that while Regulation 29 of the Pension Regulations, 1995, was not struck down as invalid, Karnataka High Court directed the Banks to extend the benefit under Regulation 29 to the voluntary retirees of the said Banks who voluntarily retired between 1.1.1986 and 31.10.1993, as per Voluntary Retirement Scheme. It is pointed out that when the matter was taken up to the Hon''ble Apex Court, the Hon''ble Apex Court left open the question, viz., whether the implementation of the cut off date for grant of benefit of pension to officers employees of the said Banks, who had voluntarily retired between 1.1.1986 and 31.10.1993, was invalid or arbitrary or not. Learned Counsel also placed reliance on the decision in Union Bank of India v. Venkatesh Gopal Mahishi and Anr. (2007) 2 SCC 296. He would submit that the resignation from service cannot be in law treated as Voluntary Retirement from service to suit the convenience of the Petitioner.
8. In support of his contention, the learned Counsel appearing for the Respondents 1 and 3 would place reliance on the following decisions:
(a)
(b)
9. This Court has carefully considered the rival contentions put forward by either side and also thoroughly scrutinised the entire materials available on record.
10. The crux of the question involved in this matter is to the effect whether the Petitioner who has submitted his resignation on 30.11.1992 from the services of the 1st Respondent Bank while he was holding the position as Deputy General Manager for taking an employment of Chairman-bum-Chief Executive Officer of Bharath Overseas Bank Limited on 1.12.1992, is entitled to seek the relief of pensionary benefits by invoking the provision for Voluntary Retirement Scheme.
11. The fact remains that the Petitioner submitted his resignation as early as on 30.11.1992 in order to accept the employment of Chairman-cum-Chief Executive Officer of Bharath Overseas Bank Limited on 1.12.1992. It is pertinent to note that at the relevant period, the 1st Respondent Bank followed the procedure in respect of the service condition of the Bank Officers contemplated under the Indian Bank (Officers) Services Regulations, 1979 which came into force on 1.7.1979. Regulation 20(2) reads as here under:
20(2) 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 his 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 further that the competent authority may reduce the period of three months or remit the requirement of notice."
In view of the above said provision, the Petitioner submitted his resignation on 30.11.1992 in view of the offer of better employment in the other Bank as stated above. It is seen that the said Bharath Overseas Bank Limited is a private sector Bank and subsequently, it got merged with the Indian Overseas Bank on 1.4.2007. The 4th proviso to Regulation 19(1) of the Indian Bank (Officers) Services Regulations 1979 reads as here under:
"Provided also that nothing in this regulation shall be deemed to preclude an officer employee from retiring earlier pursuant to the option exercised by him in accordance with the rules in the Bank.
12. As per the said proviso, several Banks framed its own Voluntary Retirement rules. As far as the 1st Respondent Bank is concerned, the Voluntary Retirement Scheme is provided under the Indian Bank (Employees) Pension Regulations, 1995 which came into force on 29.5.1995. Regulation 29 of the Pension Regulations, 1995 deals with the pension on voluntary retirement which reads as here under:
29. Pension on Voluntary Retirement:
(1) On or after 1.11.1993, 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 on 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 one year.
Provided further 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 thereof.
(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 the 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 Commutation of a part of the 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 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.
Therefore, it is crystal clear that at the time of submission of resignation by the Petitioner in the year 1992, the Voluntary Retirement Scheme was not available to the employees or the officers of the 1st Respondent Bank as the Pension Regulations itself came into force only in the year 1995. Therefore, the question of availing the benefit of Voluntary Retirement Scheme not at all arises in respect of the case of the Petitioner. It is pertinent to note that in the affidavit filed by the Petitioner, the Petitioner has not made a whisper to the effect that while submitting his resignation letter dated 30.11.1992, he has stated to the effect that only in the absence of the Voluntary Retirement benefit Scheme provided by the 1st Respondent Bank by framing rules and regulations, he has been compelled to submit such resignation letter, with a view to take up the employment in the other Bank.
13. It is also relevant to state that the Petitioner cannot claim that he is not aware about the consequences of submitting his resignation as he was holding highest position of Deputy General Manager in the 1st Respondent Bank. Therefore, knowing fully well that he cannot claim any pensionary benefits, the Petitioner opted to submit his resignation and such being the position, the Petitioner now cannot claim the relief of pensionary benefits by invoking the provisions under the Indian Bank (Employees) Pension Regulations, 1995 which came into force only in the year 1995.
14. At this juncture, it is relevant to refer Regulation 22(1) of the Indian Bank (Employees) Pension Regulations 1995 which reads as here under:
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."
The reading of the above provision makes it crystal clear that the Petitioner having submitted his resignation, he is not entitled to seek the relief of pensionary benefits under the Indian Bank (Employees) Pension Regulations 1995, as his entire past services have been forfeited as per the above said provision.
15. The learned Counsel appearing for the Respondents 1 and 3 has rightly placed reliance on the decisions of the Hon''ble Apex Court in UCO Bank and Ors. v. Sanwar Mal (supra) wherein the Hon''ble Apex Court has held as here under at p. 493 of LLJ:
....
6. 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(1) states that 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. In other words the pension scheme disqualifies such dismissed employees and employees who have resigned from membership of the fund.
....
Retirement is allowed only on completion of qualifying service which is not there in the case of resignation.......................
9. We find merit in these appeals. The words "resignation" and "retirement" carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of Voluntary Retirement of completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions "resignation" and "retirement" have been employed for different purposes 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 evidence 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 criteia 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 merits 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 and Anr. v. Cecil Dennis Solomon and Anr. (supra). 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.
16. The principle laid down by the Hon''ble Apex Court in the decision cite supra, is squarely applicable to the facts of the instant case as in this case also the Petitioner has submitted his resignation on his own as early as on 30.11.1992 and as such, he cannot claim the relief of pensionary benefits by placing reliance on the introduction of Voluntary Retirement Scheme provided under the Indian Bank (Employees) Pension Regulations 1995 which came into force on 29.5.1994. By no stretch of imagination, the resignation could be equated with the Voluntary Retirement.
17. The learned senior counsel appearing for the Petitioner placed reliance of the Division Bench judgment of the Karnataka High Court in W.A. Nos. 8897 to 8972 of 1996 dated 30.5.1997. The said matter was taken on appeal before the Hon''ble Apex Court and the Hon''ble Apex Court by the order dated 31.12.2001 has left open the question of law involved in that matter. The learned Counsel appearing for the Respondents 1 and 3 has rightly brought to the notice of this Court the decision of the Hon''ble Apex Court in Union Bank of India v. Venkatesh Gopal Mahishi and Anr. (supra) wherein the Hon''ble Apex Court has referred the above matter in respect of the judgment rendered by the Karnataka High Court, which reads as here under:
25. This Court in its order dated 3.12.2001, titled as Union of India v. B.M. Ramachandra Rao observed as under:
Leaving the question of law open, inasmuch as connected appeals (C.A. No. 6959 of 1997 and batch) have been dismissed, we see no reason to interfere. The appeals are dismissed. No costs.
26. It becomes clear from the reading of the above extracted order that the question of law, i.e., imposition of the cut-off date for the grant of benefits of pension to the employees of the banks who have voluntarily retired between 1.1.1986 and 31.10.1993, was left open.
In view of the above said position, the Petitioner cannot place reliance on the judgment of the Division Bench of the Karnataka High Court.
18. The learned senior counsel appearing for the Petitioner also placed reliance on the decision of the Rajasthan High Court in State of Rajasthan and Ors. v. J.N.V. University and Ors. (supra). The reading of the above decision makes it crystal clear that the provisions referred by the Rajasthan High Court are entirely different from the provisions of the Indian Bank (Officers) Services Regulations 1979 and the Indian Bank (Employees) Pension Regulations, 1995. Therefore, the Petitioner cannot take shelter under the principle laid down in the above said decision of the Rajasthan High Court.
19. The perusal of the impugned order dated 27.1.1999 issued by the 1st Respondent Bank reveals that the prayer of the Petitioner was already considered and the Bank expressed its inability to accede the request of the Petitioner for payment of pension through its letter dated 14.6.1995 and in spite of the same, the 1st Respondent Bank once again considered the request made by the Petitioner through his letter dated 13.7.1998 and issued the impugned order. It is specifically mentioned in the impugned order dated 27.1.1999, that the Petitioner having resigned in November 1992, he is not eligible for being considered for pension. It is specifically stated that in terms of 18A guidelines "retirement" covers mainly General Managers who had taken up Board level appointments in terms of appointment letter issued by the Government and it cannot be extended to officers resigning from the Bank to join Board Level posts of Private Sector Banks. At this juncture, it is relevant to reiterate that admittedly, the Petitioner who was functioning as Deputy General Manager of the 1st Respondent Bank had opted to take the employment in a Private Sector Bank, viz., Bharath Overseas Bank Limited as its Chair-man-cum-Chief Executive Officer. The impugned order does not disclose any infirmity or illegality warranting interference of this Court.
20. In view of the aforesaid reasons, this Court is of the considered view that the writ petition is devoid of merits. Accordingly, the writ petition is dismissed. No costs.
