F.M. Ibrahim Kalifulla, J.@mdashThis appeal is directed against the order of the learned single Judge dated 14.05.2002, passed in W.P. No. 9572 of 1999.
2. The brief facts are that the appellant joined the third respondent Bank hereinafter called ''the bank'' in September, 1953 as a clerk. In September, 1975 he was promoted as an Officer. He was posted as an Officer-in-charge at Pombur Branch near Tindivanam in South Arcot District in the position as Assistant Manager. He was posted in the said branch on 14.04.1984 and he worked therein till December 1987. He was issued with a charge sheet on 07.07.1989, in relation to certain irregularities in the matter of disbursal of Government sponsored loans under the priority sector. Based on the disciplinary proceedings and the ultimate outcome of the said proceedings, by an order dated 25.01.1990, he was compulsorily retired from service as a measure of penalty. In the normal course, the appellant would have retired on reaching the age of superannuation of 60 years on 28.02.1990.
3. Subsequent to his compulsory retirement, his terminal benefits except Bank''s contribution to P.F. was paid. The appellant filed W.P. No. 9574 of 1991 for payment of bank''s contribution and thereafter that was also paid to him on 28.01.1998.
4. In the meantime, the Punjab National Bank (Employees) Pension Regulations, 1995, came to be issued. The said regulations provided for payment of pension to all those employees who were in service on or after 01.01.1986 and the payment of such pension was with effect from 01.11.1993. For the employees who have already retired prior to 01.11.1993, the regulations provided for grant of pension subject to such employees exercising their option within the specified time limit and also pay back the bank''s contribution to the P.F. with interest at 6% from the date of settlement till the date of refund.
5. The appellant is stated to have exercised his option on 08.07.1994. However, the bank did not come forward to accept the option of the appellant and grant the pension under the above referred to regulations. The appellant made a representation on 20.04.1998. There was a reply by the bank on 28.04.1998. The appellant once again sent a detailed representation on 16.12.1998. By its reply dated 26.04.1999, the respondent bank by referring to Regulation 33(1) of the Pension Regulations rejected the claim of the appellant for pension.
6. Challenging the same, the appellant preferred the present writ petition in W.P. No. 9572 of 1999. The learned single Judge having dismissed the writ petition on 14.05.2002, the appellant has come forward with this appeal.
7. Mr. N.G.R.Prasad, learned Counsel appearing for the appellant, contended that when the appellant exercised his option on 08.07.1994, for grant of pension, the same was also recommended by the Manager of the Chennai office of the Bank on 02.03.1996 and that the appellant was also ready and willing to pay back the bank''s share of P.F. contribution, that going by the provisions contained in the regulations, under clause 2(y), 3(1)(a), 29, 32 and 33, the appellant was entitled for the grant of pension and therefore the rejection of the same by the impugned letter of the respondent bank dated 26.04.1999, was not justified. The learned Counsel contended that the cut-off date of 01.11.1993, stipulated under regulation 33(1) of the regulations cannot deprive the appellant of the payment of pension. The learned Counsel by relying upon the Division Bench judgment of this Court dated 31.08.2006, passed in W.A. No. 1076 of 2006, which related to a case of voluntary retirement which is governed by Regulation 29 of the regulations, contended that whatever stated with reference to a case of voluntary retirement will equally apply to the case of compulsory retirement and therefore applying the ratio of the said Division Bench judgment, the appellant should be granted pension by setting aside the impugned order of the respondent bank.
8. The learned Counsel placed before this Court the judgment dated 31.08.2006, of the Division Bench passed in W.A. No. 1076 of 2006, the decision reported in
9. As against the above submissions Mr. S. Jayaraman, learned Counsel for the respondent bank by taking us through the various provisions viz., 2(r), 2(y), 29, 32 and 33 of the regulations contended that the cut-off date viz., 01.11.1993, fixed in Regulation 33(1) has got a definite purpose and intent and which date was fixed based on the settlement reached with the employees union of the respondent bank and therefore the said cut-off date cannot be altered.
10. According to the learned Counsel, the employees who were compulsorily retired on and after 01.11.1993, alone were entitled for pension under the regulations and that the learned Judge was therefore justified in declining to interfere with the order of the bank dated 26.04.1999. According to the learned Counsel the fixing of the cut-off date did not make any artificial discrimination; that since the payment of pension came to be introduced in banking service for the first time under the above regulations and the same being a new scheme providing for pension, the prescription of a cut-off date cannot be found fault with. The learned Counsel relied upon the decisions reported in 2005 AIR SCW 5664 (State of Punjab v. Amar Nath Goyal), 2007 (3) SLR 697 (Bank of India Retired Officers Association v. Bank of India),
11. Having heard the learned Counsel for the appellant and the respondents and after perusal of the various provisions contained in the 1995 regulations, we find that the crucial question to be decided in this appeal is as to whether the cut-off date fixed in Regulation 33(1) viz., 01.11.1993, for an employee who was compulsorily retired prior to the said date, though he was in service after 01.01.1986, be disentailed for grant of pension can be approved ?
12. To answer the said question, the various other provisions contained in the regulations viz., Regulations 2(k) definition of ''date of retirement'', 2(r) definition of ''notified date'', 2(u) definition of ''pensioner'', 2(y) definition of ''retirement'' and Regulation 3(1)(a) to (c), the relevant parts of Regulation 29(1) with its 3rd proviso as well as Regulations 32, 33(1) and 34 are relevant and are extracted below:
2(k) "date of retirement" means the last date of the month in which an employee attains the age of superannuation or the date on which he is retired by the Bank or the date on which the employee voluntarily retires; or the date on which the officer is deemed to have retired;
2(r) "notified date" means the date on which these regulations are published in the official Gazette;
2(u) "pensioner" means an employee eligible for pension under these regulations;
2(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;
* * * * *
3. Application
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; and
b) exercise an option in writing within one hundred and twenty days from the notified date to become member of the Fund; and
c) refund within sixty days after the expiry of the said period of one hundred and twenty days specified in Clause (b) the entire amount of the Bank''s contribution to the Provident Fund including interest accrued thereon together with a further simple interest at the rate of six per cent per annum on the said amount from the date of settlement of the Provident Fund account till the date of refund of the aforesaid amount to the Bank or till the 1st day of April, 1995 whichever is earlier.
* * * * *
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 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.
* * * * *
32. Premature Retirement Pension:
Premature Retirement Pension may be granted to an employee who,:
(a) has rendered minimum ten years of service; and
(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.
33. Compulsory Retirement Pension:
(1) An employee compulsorily retired from service as a penalty on or after 1st day of November, 1993 in terms of Punjab National Bank Officer Employees'' (Discipline and Appeal) Regulations, 1977 or awards/settlement may be granted by the authority higher than the authority competent to impose such penalty, pension at a rate not less than two-thirds and not more than full pension admissible to him on the date of his compulsory retirement 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 the 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 pension or family pension as the case may be, with effect from the 1st day of November, 1993.
13. In the case of the appellant, we find that he was proceeded against by way of disciplinary action for certain acts of misconduct. A perusal of the order of punishment dated 25.01.1990, discloses that while he was working as Assistant Manager of Pombur branch, he was alleged to have committed the following irregularities viz.,
(i) he utilised the services of middlemen in sanctioning and disbursing advances in contravention of Head Office guidelines;
(ii) he did not conduct pre-sanction of appraisal in loan accounts;
(iii) he failed to observe post-sanction safeguards which resulted in expiry of limitation and missing of securities in many loan accounts.
According to the respondent bank, the said irregularities committed by the appellant jeopardised bank''s interest to a great extent. While deciding the imposition of penalty of compulsory retirement, it was observed that the appellant should have conducted regular inspection of securities and ensured obtaining of balance confirmation letters periodically and the appellant''s plea that he was not conversant with Bank''s procedure relating to sticky accounts was not acceptable. The appellant was therefore compulsorily retired with immediate effect by an order dated 25.01.1990.
14. After the passing of the said order, the appellant''s PF account namely his contribution and other terminal benefits was settled. In the normal course but for the order of punishment dated 25.01.1990, the appellant would have retired on 28.02.1990. Since the bank''s contribution was not paid, the appellant moved this Court by filing W.P. No. 9574 of 1991. Subsequent to the filing of the writ petition, the bank paid back its contribution of PF and the writ petition was stated to have been withdrawn by the appellant.
15. Subsequently after the pension regulations was brought into effect, the appellant applied for sanction of pension by exercising his option to refund the bank''s contribution of PF with accrued interest at the rate of 6% per annum from the date of receipt till the date of refund. The said application was submitted by him on 08.07.1994, which was rejected by the respondent bank by its order dated 26.04.1999, stating that in terms of clause 33(1) such of those employees who were compulsorily retired from service as a penalty on or after 01.11.1993, alone can be granted pension and since the appellant was compulsorily retired prior to 01.11.1993, his request cannot be acceded to.
16. When we examine the definition "date of retirement" under regulation 2(k) we find that while stating that the said definition would mean the last day of the month in which the employee attains the age of superannuation, it is also stated that such date of retirement would be the date on which the employee is retired by the bank. It also refers to the date on which the said employee voluntarily retires or the date on which the officer is deemed to have retired. Therefore amongst the retirees, there is one category namely an employee who is retired by the bank. When it comes to the question of application of the regulations, Regulation 3(1)(a) makes it clear that the regulations would not apply to employees who were in the services of the bank on or after 01.01.1986, but who had retired before the first date of November, 1993. Therefore reading Regulations 2(k), 2(x), 2(y) and 3(1)(a) together, it can be safely held that all types of retirement namely retirement on reaching the age of superannuation, deemed retirement, voluntary retirement or any other premature retirement would fall within the expression retirement as well as the other provisions of applicability namely Regulation 3(1)(a).
17. A perusal of Regulation 33(1) discloses that even an employee who is compulsorily retired from service as a penalty under the respondent''s bank Discipline and Appeal Regulations or awards/settlement may be granted by an authority higher than the authority competent to impose such penalty, pension at a rate not less than two-thirds and not more than full pension admissible to the employee on the date of his compulsory retirement if he is otherwise entitled to such pension on superannuation on that date. The cut-off date prescribed under the said Regulation 33(1) viz., 01.11.1993, only makes a distinction between the employee who was compulsorily retired prior to 1.11.1993 and after 01.11.1993, in order to be eligible for invoking the said regulation.
18. At this juncture, when we refer to the Division Bench decision relied upon by the learned Counsel for the appellant viz., the one rendered in W.A. No. 1076 of 2006, dated 31.08.2006, that was a case of an employee of Indian Overseas Bank, whose request for voluntary retirement came to be accepted and who was allowed to retire voluntarily. The Division Bench was concerned with a provision contained in the very same regulations with which we are now concerned and in particular Regulation 29 which relates to grant of pension for employees gone on voluntary retirement as well as Regulation 32 which deals with premature retirement pension. Since in that case the voluntary retirement of the concerned employee occurred on 20.09.1988, i.e. before 01.11.1993, though after 01.01.1986, the Bank management in the said case declined to pay pension on the ground that Regulation 29 does not provide for payment of such pension to the employees who had gone on voluntary retirement before 01.11.1993. The Division Bench dealt with the said issue as under in paragraphs 7 and 8 as well as followed a reported decision of the Bombay High Court in
7. There is no dispute that in the present case the respondent has been given premature retirement vide letter dated 9.5.1989. The definition of ''retirement'' provided in clause 2(y) covers all the retirements and also the voluntary premature retirement by the bank before superannuation. It is also not disputed that the Indian Overseas Bank (Employees'') Pension Regulations, 1995 are applicable to all the employees who were in the service of the bank on or after first January, 1986 but had retired before the first day of November, 1993. Regulation 32 states that the premature retirement pension may be granted to an employee who has rendered minimum 10 years of service, retires from service on account of orders of the bank to retire prematurely in the public interest or for any other reasons specified in the service regulations or settlement, if otherwise, he was entitled to such pension or superannuation on that date. A combined reading of Clause (c) of Regulation 2(y) with Regulation 32 and Regulation 34, clearly shows that the scheme is applicable in respect of employees who had retired or died between 1.1.1986 and 31.10.1993. The appellant bank has however contended that the respondent by his own accord voluntarily retired on medical grounds on 9.5.1989 as per non statutory circular bearing permanent EST 104/86 of 27.8.1986 which is based on Central Government''s guidelines dated 25.5.1982 permitting the public sector banks to modify their scheme or appointment on compassionate grounds so as to extend the benefit to the dependants of the employees who retired on medical grounds. The submission is that the respondent retired on his own accord and therefore, his case could not fall under Clause (c) of Regulation 2(y) of the Pension Regulations. We are unable to accept the argument of the bank. In the first place there is nothing in the Regulations to indicate that the Scheme does not cover the employee who has prematurely retired as per the statutory circular. On the other hand the definition of ''retirement'' in Regulation 2(y) is wide and cover all cases of premature retirement where the employee has retired before attaining the age of superannuation specified in Service Regulations or Settlement. Now the Bank has chosen to apply the scheme to the employees who have retired after 1.1.1986. The benefit of the scheme, therefore, must be given to all the employees who have retired after 1.1.1986. It will be totally impermissible to make artificially a further classification amongst the employees retired after 1st January, 1986 as it will be totally irrational, arbitrary and violative of Article 14 of the Constitution. This is more so because under the scheme the employees who have retired prematurely after 1st November, 1993 are expressly covered by the scheme.
8. In
*****
10. We may also refer to a reported judgment of the Bombay High Court in
With the assistance of the learned Counsel for the parties, I have carefully gone through the pension scheme of 1995. I do not see any distinction in the scheme amongst retired employees. If a proper construction is given to the regulations, in my view, the Bank cannot make a distinction among employees who retire under the voluntary retirement scheme and employees who retire otherwise because the term "retirement" which occurs in the regulations enclose voluntary retirement. There is no reason to confine voluntary retirement only to Regulation 29 of the regulations. If such a construction is given to regulation 29 it clearly violates Article 14. In
19. A comparative consideration of the above referred to decision to the facts of this case it emerges that in the case of voluntary retirement though the regulations specifically provided the cut-off date viz., 01.11.1993 and only such of those employees who voluntarily retired after that date alone were eligible for pension, the Division Bench took the view that even such voluntary retirement is nothing but a premature retirement and therefore applying the provisions contained under Regulation 32 relating to premature retirement pension, the employee who had gone on voluntary retirement before the cut-off date should also be held to be eligible for payment of pension. The Division Bench went on to hold that the fixation of such cut-off date would amount to creating an artificial further classification amongst the employees who retired voluntarily after 01.01.1986 but before 01.11.1993, which was wholly irrational, irrelevant and violative of Article 14 of the Constitution.
20. A further reasoning which weighed with the Division Bench was that when under the regulations the very same category of employees namely those who had gone on voluntary retirement scheme after 01.11.1993, were made eligible, who were also in service after 01.01.1986, a distinction cannot be made in respect of those employees who had gone on voluntary retirement prior to 01.11.1993. The extracted portion of the Bombay High Court Decision goes one step further and states that such position cannot change even if it is granted for the first time.
21. Keeping the above principles set out in the Division Bench decision in mind, when we analyse the other provisions contained in the regulations, we find that in Regulation 2(k) it is specifically provided that the significance of date of retirement means the date on which the employee was retired by the bank. When we examine the definition of retirement as defined u/s 2(y), we find that retirement has been defined to mean cessation from bank service either on attaining the age of superannuation or on voluntary retirement in accordance with Regulation 29 or premature retirement by the bank before attaining the age of superannuation specified in service regulation or settlement.
22. In the service regulations provision for superannuation is provided under Regulation 19(1) which states that the age of retirement of an officer/employee shall be as determined by the Bank in accordance with the guidelines issued by the bank from time to time. The first proviso to the said regulation reads as under:
Provided that the bank may, at its discretion, on review by a special committee/special committees as provided hereinafter in Sub-regulation (2), if it is of the opinion that in public interest an officer/employee on or at any time after the completion of 55 years of age or on or at any time after the completion of 30 years of total service as officer/employee or otherwise which ever is earlier.
The second proviso only provides time of three months notice in writing or three months salary/pay and allowance in lieu of such notice.
23. Apart from such a provision in the service regulations which has been specifically mentioned in the definition of retirement in Regulation 2(y), Regulation 32 of the pension regulations also makes a mention about premature retirement pension. However under Regulation 32(b) while making a provision for grant of premature pension, it is stated that the same may be granted in respect of an employee who has either retired 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/settlement if otherwise he was entitled to such pension on superannuation on that date. While we deal with Regulation 32, it is relevant to note that under Regulation 20 of the service regulations the provision for termination of service is prescribed. Under regulation 20(1)(a) such provision has been made and under Regulation 20(1)(f) it is stipulated that the officer/employee whose services are terminated under Sub-regulation (a) should be paid gratuity, PF including employer''s contribution and all other dues that may be admissible to him as per rules notwithstanding the years of service rendered. Under Regulation 20(1)(g) it is again stipulated that nothing contained in the other Sub-regulation of 20(1) would affect the bank''s right to retire an officer/employee under Regulation 19(1). One other provision which is kept in mind is Regulation 4(h) of the Punjab National Bank Officer Employees'' (Discipline & Appeal) Regulations, 1977. Regulation 4 prescribes the penalties which may be imposed on an officer/employee for acts of misconduct or for any other good and sufficient reason. Regulation 4(h) is one of the major penalties that can be imposed by the bank management on an officer/employee which is compulsory retirement by way of punishment. Therefore, if at all the respondent bank is empowered to compulsorily retire an officer/employee it could be either under Regulation 19(1) in public interest or by invoking Regulation 20(1) of the Service Regulations 1979 or Regulation 4(h) of Punjab National Bank Officer Employees'' (Discipline & Appeal) Regulations 1977.
24. When the above provisions confers the power on the respondent bank to compulsorily retire an officer/employee who was in service as on 01.01.1986 and who came to be retired compulsorily by way of punishment or in public interest in our considered opinion, such cessation of employment namely by way of compulsory retirement by way of punishment would also fall well within the four corners of premature retirement.
25. When we examine the dictionary meaning of the expression "premature", in P. Ramanatha Aiyar "Law Lexicon" 2nd Edition, the word "premature" has been explained to mean "happening, or being performed before prior or usual or appointed time". Even going by the above common definition of the expression "premature" it is quite convincing that the said meaning when read along with the happening of an event namely retirement, one can only conclude that it would take within its fold in the absence of any other specific prescription the retirement of an employee prior to normal date on which he would have otherwise retired on superannuation. It will have to be borne in mind that either regulation 2(k) or 2(x) or 2(y) does not specifically exclude or make a distinction of compulsory retirement by way of punishment as one not falling under premature retirement.
26. On the other hand, a reading of Regulation 2(y)(c) of the pension regulations along with Regulation 19(1) first proviso and 20(1) of the 1979 Service Regulations or Regulation 4(h) of Punjab National Bank Officer Employees'' (Discipline and Appeal) Regulations, 1977 persuade us to hold that it would be in order to state that compulsory retirement even by way of punishment having regard to the connotations applicable to it would only fall under the broad classification of premature retirement. Apparently for these reasons, we are able to discern that under the pension regulations, Regulation 33 came to be incorporated providing for payment of pension subject however to the grant of such pension by the authority higher than the authority competent to impose such compulsory retirement as a penalty and the rate at which it should be granted as provided therein.
27. In our considered opinion any other view would run counter to the very object of the bank management in having come forward to grant pension to various categories of employees including those who were retired prematurely in public interest which is otherwise known as compulsory retirement in public interest and also an employee retired compulsorily by way of punishment under Regulations 32 and 33 respectively.
28. We are also convinced that Regulation 32(b) having specifically provided for covering those employees who are prematurely retired in public interest namely those who would fall in the category of compulsorily retired employees in public interest and also employees who were retired for any other reason specified in the service regulations or settlement which would cover other cases of premature retirement which would include compulsory retirement by way of punishment and there could be no other category that would fall within the above said expression premature retirement and those retired by the bank within the expression "for any other reason specified in service regulations or settlement".
29. We therefore hold that an officer/employee who is compulsorily retired by way of punishment would also fall within the category of premature retirement and consequently it cannot be said that he would fall outside the pension regulations in order to exclude him from being eligible to claim pension under the pension regulations in particular Regulation 33(1).
30. With the above conclusion of ours on the various provisions contained in the regulations when we apply the decisions cited before us, in the first place, we are inclined to follow the ratio laid down in the unreported decision of the Division Bench dated 31.08.2006 in W.A. No. 1076 of 2006. The said case though relates to a case of voluntary retirement, similarity in the said case as well as the case on hand are that the officer/employee in that case as well as in the case on hand were in service even after 01.01.1986 and in both the cases, the retirement occurred prior to 01.11.1993. In the case of voluntary retirement also under Regulation 29, it is stipulated that the benefit of pension is payable only in respect of an employee who had retired voluntarily on or after 01.11.1993, like the case of a compulsory retirement from service as a penalty, where also it is provided that such compulsory retirement should have taken place on or after 01.11.1993. In the said decision, the Division Bench has held that such voluntary retirement is nothing but premature retirement by interpreting Regulation 2(y) as well as Regulation 3(1) of the regulations. In that case also the specific contention was that the case of voluntary retirement cannot be brought under Clause (c) of Regulation 2(y) which contention was straightaway rejected by the Division Bench by holding that there is nothing in the regulations to indicate that the scheme does not cover an employee who is prematurely retired as per the statutory circular and while on the other hand the definition of retirement in regulation 2(y) is wide and would cover all cases of premature retirement where an employee is retired before attaining the age of superannuation specified in the service regulations/settlements.
31. The Division Bench went on to hold that it will be totally impermissible to make artificially a further classification amongst the employees retired after 01.01.1986, as it would be totally irrational, arbitrary and violative of Article 14 of the Constitution, more so, when the regulations provides for coverage of such premature retirement after 01.11.1993. In fact the Bombay High Court decision which was followed by the Division Bench dealt with an identical situation. We are in full agreement with the principles and ratio set down in the above referred to decision and applying the same also we hold that such principles mutatis mutandis apply to the case of compulsory retirement by way of punishment subject however to the prescription contained in Regulation 33(1).
32. We are also fortified by the decision of the Hon''ble Supreme Court reported in
3. The appellant joined the service of the Government of India as temporary Lower Division Clerk in the Central Tractor Organisation on 06.10.1995. He was promoted to the post of Upper Division Clerk on probation on 28.12.1962 and having continued for 8 years, he was referred to the post of temporary Lower Division Clerk on 01.12.1970. Pending initiation of departmental proceeding he was suspended on 01.12.1980. The departmental proceeding was initiated on 10.04.1981. The disciplinary authority finally passed an order of punishment on 01.06.1985.... While the aforesaid proceeding was pending before the Tribunal, the Under Secretary in the Ministry of Home Affairs issued an order prematurely retiring the appellant under Rule 56(j)(ii) of the Fundamental Rules on 26.02.1988, making it effective from 01.03.1988.... The Vice-Chairman gave his opinion that the order of compulsory retirement of a temporary Government servant under Rule 56(j) of the Fundamental Rules is not an order of punishment. He also found that the employee will not be entitled to any pensionary benefit since neither he has retired on reaching the age of superannuation nor he has been declared permanently incapacitated for further government service nor he has sought voluntary retirement after completion of 20 years of service.
While answering the issue raised in the said decision, the Hon''ble Supreme Court has held as under in paragraph 5:
5. ...It has been held by this Court time and again that the pension is not a charity or bounty nor is it a conditional payment solely dependent on the sweet will of the employer. It is earned for rendering a long service and is often described as deferred portion of payment for past services. It is in fact in the nature of social security plan provided for a superannuated government servant....
Again in paragraph 6 the Hon''ble Supreme Court held as under:
6. In view of the legal position that an order of compulsory retirement is not a punishment and pension is a right of the employee for services rendered, we see no justification for denying such right to a temporary government servant merely on the ground that he was required to retire by the employer in exercise of power under Rule 56(j) of the Fundamental Rules....
33. From the above decision of the Hon''ble Supreme Court, the position clearly emerges to the effect that a compulsory retirement is not a punishment but a premature retirement. Though that was the case of compulsory retirement under FR 56(j)(ii) namely in public interest, the Hon''ble Supreme Court took note of the fact that there was an earlier order of punishment dated 01.06.1985 and while certain proceedings initiated by the employer was pending before the Central Administrative Tribunal, the order of compulsory retirement came to be effected on 26.02.1988. In that context, the Hon''ble Supreme Court made it clear that pension is not a charity or bounty nor was it dependent on any condition to be solely imposed by the employer. The Hon''ble Supreme Court also held that payment of pension is a social security scheme for superannuated employees. The above principles laid down by the Hon''ble Supreme Court supports our view that amongst the employees who were compulsorily retired by way of penalty, there cannot be a further classification of those who retired prior to 01.11.1993 and those who retired after 01.11.1993. The contention of the learned Counsel for the respondent bank that such a cut-off date is permissible whenever a new scheme is introduced, with great respect to the learned Counsel, we hold that it will not apply to the case on hand.
34. In the decision of the Hon''ble Supreme Court reported in
78. In view of the authorities indicated above assuming that the two awards are binding on the petitioners, the serious question for consideration is whether the agreement, which may be binding on the parties, would estop them from challenging the Regulations on the ground that the same are void as being violative of Article 14 or 16 of the Constitution. It is well settled that there can be no estoppel against a statute much less against constitutional provisions. If, therefore, we hold in agreement with the argument of the petitioners that the provisions for termination and retirement are violative of Article 14 as being unreasonable and arbitrary, the Awards or the Agreements confirmed by the Awards would be of no assistance to the Corporations.
35. The learned Counsel for the respondent bank to support his contentions as to the fixing of cut-off date viz., 01.11.1993, in Regulations 33(1) contended that the same came to be incorporated based on the settlement dated 29.10.1993, between the management of 58 banks including the respondent bank with their workmen represented by All India Bank Employees Association. The learned Counsel therefore contended that the fixing of cut-off date as 01.11.1993, had the seal of approval of the employees Union apart from the fact that being a new scheme and fixing of such cut-off date with an agreement entered into with the Union would form a reasonable basis for fixing the said date.
36. Having regard to the law laid down by the Hon''ble Supreme Court in the above referred to decision de hors the agreement signed by the respondent bank with the employees Union, there would be no impediment for this Court to examine the validity of fixing of cut-off date in Regulation 33(1). In the event of this Court finding the fixing of the said cut-off date as violative of Article 14 of the Constitution, this Court can always set right the anomaly in order to render justice to the homogeneous group of employees who would be otherwise entitled for pension but for fixing of the cut-off date viz., 01.11.1993.
37. Having regard to our conclusion on Regulation 33(1) where we have found based on the prescription contained in other regulations the fixing of cut-off date viz., 01.11.1993, was unjustified, arbitrary, unreasonable and discriminatory, we hold that irrespective of the agreement dated 29.10.1993, with the employees Union, the said fixation of cut-off date viz., 01.11.1993, cannot operate against the interest of the officers/employees who were in service after 01.01.1986 and who happen to compulsorily retire by way of punishment even before 01.11.1993, for whom also Regulation 33(1) is applicable. Therefore, they are entitled to invoke Regulations 33(1) and the authority competent is bound to decide their claim in accordance with law.
38. The learned Counsel for the respondent bank placed reliance upon the decision of the Hon''ble Supreme Court reported in 2005 AIR SCW 5664 (State of Punjab v. Amar Nath Goyal). In paragraph 24, the Hon''ble Supreme Court held as under:
24. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government/State Governments to limit the benefits only to employees, who retire or die on or after 01.04.1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level.
39. The question posed for consideration in that case was as to whether the decision of the Central and State Governments to restrict their revision of the quantum of gratuity as well as the increased ceiling of gratuity consequent upon merger of a portion of dearness allowance into dearness pay reckonable for the purpose of calculating gratuity by prescribing a cut-off date , was irrational or arbitrary. In that context, the Hon''ble Supreme Court held as stated in paragraph 24 of the Judgment. We do not find any scope to apply the said ratio to the facts of this case. In the first place, financial constraint was not the reason to treat a set of employees falling under the same category differently. Consequently, that was not the case where the applicability of the higher benefits was restricted to one set of employees while denying the same benefit to another set of employees who were also similarly placed. The claim in that case was made by various group of employees who were all retirees long prior to the cut-off date and none in that group were made eligible for conferment of the benefits.
40. In contra distinction to the case on hand were amongst employees who were in service after 01.01.1986. One set of employees who were compulsorily retired by way of punishment after 01.11.1993, were conferred with the benefit while those who retired prior to 01.11.1993, were denied the said benefit. We therefore do not find any scope to apply the said decision.
41. The learned Counsel for the respondent bank then relied upon the decision of the Hon''ble Supreme Court reported in
42. Like in the other decision of the Hon''ble Supreme Court reported in 2005 AIR SCW 5664 (State of Punjab v. Amar Nath Goyal), here again, the Hon''ble Supreme Court was pleased to accept the extraordinary financial burden that was taken into account while fixing the cut-off date and have accepted such fixation and have held that the same was reasonable and not arbitrary. We therefore do not find any scope to apply the ratio of the said decision to the facts of this case.
43. The learned Counsel for the respondent bank has referred to one another decision of the Hon''ble Supreme Court reported in
Now, it is open to the Sate or to the Corporation, as the case may be, to change the conditions of service unilaterally. Terminal benefits as well as pensionary benefits constitute conditions of service. The employer has the undoubted power to revise the salaries and/or the pay scales as also terminal benefits/pensionary benefits. The power to specify a date from which the revision of pay scales or terminal benefits/pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. So long as such date is specified in a reasonable manner, i.e., without bringing about a discrimination between similarly situated persons, no interference is called for by the court in that behalf.
As held by the Hon''ble Supreme Court whenever such cut-off date is specified, the authorities are bound to show that it has got sound reasoning and there cannot be a distinction between similarly situated persons. As found by us in the case on hand, the officer/employee who were compulsorily retired by way of punishment and amongst the officer/employee who were in service after 01.01.1986, a discriminatory treatment is meted out to those who were imposed with such punishment prior to 01.11.1993 and those who have retired after 01.11.1993, which is wholly arbitrary and therefore the same cannot be permitted to remain.
44. Reliance was placed upon a single Judge decision of the Gujarat High Court reported in 2007 (3) SLR 679 (Bank of India Retired Officers Association v. Bank of India). In the said case, the challenge was to the grant of pension to the employees who are in employment between 01.01.1986 to 01.11.1993 for whom the benefit of pension was extended only from 01.11.1993, and not from the date of their actual retirement. The challenge was on the ground that the fixation of such future date for grant of pension was discriminatory. The learned Judge rightly held that when a new scheme was introduced, it was open for the bank to exclude altogether the employees retired prior to 01.11.1993, having come forward to grant pension as from 01.11.1993, cannot be held to be arbitrary or discriminatory. We do not find the issue raised and decided in that case to be in comparison to the case on hand.
45. The learned Counsel then relied upon an unreported decision of the Delhi High Court rendered in Civil Writ No. 3830 of 1998 dated 30.08.1999. In the said judgment the issue involved is identical to the case on hand. The learned single Judge by applying the decision of All India Reserve Bank Retired Officers Association and Ors. v. Union of India 1992 Supp (1) SCC 644 took the view that fixing of the cut-off date of 01.11.1993, being a reasonable classification was justified. Since there is intelligible difference between two sets of classification and the classification has a nexus to the fixation of the cut-off date. We are not in a position to approve the reasoning of the learned Judge for more than one reason. In the first place we do not find any detailed consideration of the various regulations of the pension Regulations, 1995. In the earlier part of our Judgment we have considered the regulations where the definition of ''date of retirement'', ''retirement'' and Regulation Nos. 3, 29 and 32, consideration of which, persuade us to hold that there was a discriminatory treatment meted out to a set of employees falling in a homogeneous group and by fixing the cut-off date, arbitrary discrimination is shown. Secondly, we had an opportunity to consider the case of voluntary retirement for whom also a similar cut-off date has been prescribed under Regulation 29 which has been held to be arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution. The Division Bench decision of this Court has followed another decision in an identical case rendered by the Bombay High Court. The various reasoning rendered in those decisions were all fully convincing and were in tune with the Constitutional mandate and therefore by applying those reasoning we have held that the cut-off date fixed in Regulation 33(1) is liable to be interfered with. We do not find any such detailed discussion in the order of the learned single Judge, though the learned Judge has dealt with the very same regulation namely Regulation 33(1) with which we are also concerned. With great respect to the learned Judge, we are not therefore inclined to follow his conclusions.
46. As against the above decisions we find some of the decisions relied upon by the learned Counsel for the appellant fully supports our conclusions. The Hon''ble Supreme Court in 2000 I LLJ 223 (Bank of India v. Indu Rajagopalan) dealt with a case of voluntarily retired employees for whom in the pension regulations a cut-off date viz., 01.11.1993, was fixed which was held to be violative of Article 14 and 16 of the constitution by the Division Bench of our High Court, the Hon''ble Supreme Court while repelling the contention of the bank management has held as under in paragraph 3:
3. All that has happened is in such of the banks where a Scheme for voluntary retirement was available, certain employees retired under that scheme. Now a comprehensive Pension Scheme has been framed which came into force w.e.f. November 1, 1993 and applicable uniformly to all Bank employees which provides for voluntary retirement as well. The applicability of these Rules to those employees who have voluntarily retired w.e.f. January 1, 1986 to October 31, 1993 is raised in these matters. It is not possible for Shri V.R. Reddy, learned senior counsel who appears for the appellants to point out that there is any significant financial or other burden or difference so far as those who had voluntarily retired and those who had ordinarily retired. In that event where there is no distinction, the authorities having sought to make a distinction and not applied the regulations framed subsequent to their retirement, the High Court has given appropriate directions. We also notice that the number of employees who have retired in this manner is also very small. Therefore we think no interference is called for in these appeals. The appeals are, therefore, dismissed with no order as to costs.
Applying the said decision also to the case of compulsory retirement by way of penalty, the respondent bank has not placed before us any valid ground for discriminating between compulsorily retired employees as a measure of punishment prior to 01.11.1993 and after 01.11.1993.
47. Reliance was also placed upon the decision of the Hon''ble Supreme Court reported in
48. The learned Counsel for the respondent placed reliance upon the recent decision of the Hon''ble Supreme Court reported in
49. For all the above stated reasons, we hold that the cut-off date viz., 01.11.1993, fixed in Regulation 33(1) of the Punjab National Bank Employees'' Pension Regulations, 1995 as arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution. We therefore set aside the impugned order of the respondent bank dated 26.04.1999, in RM:PER:MR381:99 and consequently direct the respondent bank to entertain the option exercised by the appellant in the format of Annexure II dated 08.07.1994, applying Regulation 33(1) of the regulations and the competent authority prescribed under Regulation 33(1) to pass appropriate orders in accordance with law. Such exercise shall be carried out by the respondent bank within eight weeks from the date of receipt of a copy of this order. Since the appellant is now 79 years old, in the interest of justice, it will be appropriate for the respondent bank to pass orders as expeditiously as possible within the stipulated time granted in this judgment. The appeal stands allowed. No costs.
