BENCH
F. I. Rebello & H. L. Gokhale
ACTS REFERRED
Industrial Disputes Act, 1947[s. 2(p), s. 18, s. 18(1)]
CASE NO
Appellate Civil Jurisdiction Writ Petition No. 3614 of 1997
.JUDGMENT TEXT
The Judgment was delivered by : F I REBELLO
The petitioners before this Court are the ex-employees of respondent bank. They have resigned from the services of respondent No. 1 between 28th February, 1987 and 1st August, 1992. They have put in services ranging from 16 to 30 years and at the time of resignation were aged between 40 years and 59 years. It is the case of the petitioners that they had to resign because the voluntary retirement scheme was not introduced by the respondent No. 1 bank till 1st June, 1991 though in several other Nationalised Banks it was introduced between 1986-87. It is contended that though the voluntary retirement scheme was effective from 1st June, 1991, the petitioner No. 13 was not aware of its introduction as no wide and adequate publicity was given to the said scheme. He resigned as on 1st August, 1992 and at the relevant time had put in 30 years of service. The officers of respondent No. 1 even though were duty bound to bring it to his notice, did not do so. In the other banks, where the scheme was introduced the employees of those banks had been given certain monetary benefits which have been denied to the petitioner and other similarly situated employees of respondent No. 1 bank. It is set out that this is discriminatory and illegal and violative of Articles 14 and 21 of the Constitution of India. It is pointed out that the 1st respondent has framed the Bank of Maharashtra Officers Service Regulations, 1979 which came into force on 1st July, 1979. Regulation 19 provides that age of retirement of an officer employee shall be determined by the Board in accordance with the guidelines issued by the Government from time to time. It is then pointed out that after framing the said regulations, Nationalised banks including the respondent No. 1 was advised to frame the voluntary retirement scheme for officer employees to permit officers desirous of resigning due to personal or family problems or till health or otherwise to voluntarily retire prior to the age of superannuation. Accordingly such schemes were framed by which the officers were permitted to retire voluntarily instead of resigning under Regulation 20(2). Reference is made to schemes framed by some other Nationalised banks. The 1st respondent, it is contended, deliberately ignored the advise of the 2nd respondent and delayed framing of such voluntary retirement scheme till June 1, 1991 thereby leaving no other exit route to its officer employees desiring to leave prior to such superannuation except by resignation. It is also set out that the 1st respondent had framed Bank of Maharashtra Employees' Provident Fund Rules much prior to its establishment as a nationalised bank on July 19, 1969 as also Rules for payment of gratuity. Adverting to these provisions the petitioners contend that they did not complain or agitate on the 1st respondent framing voluntary retirement scheme, in as much as the officers desirous of leaving the service after completing 10 years service were eligible to receive provident fund and gratuity without deduction and, therefore, it did not make much of a difference to the petitioners in resigning under Regulation 20(2). However, on introduction of Bank of Maharashtra (Employees) Pension Regulations 1995, hereafter referred to as Pension Regulations, the petitioners contend that they found to their dismay that those employees who voluntarily retired after putting in 20 years service in the Bank were eligible to receive pension by refunding the bank's contribution to the provident fund and interest thereon, whereas those who resigned after putting in 20 years service are not eligible for pension. The petitioners contend that they have filed the petition praying that the petitioners who are resignees be treated as retired who have voluntarily retired and, therefore, eligible for pensionary benefits, under the Bank of Maharashtra (Employees) Pension Regulation, 1995. As the 1st respondent refused to grant the reliefs they are constrained to file petition.
The petitioners then contend that various types of regulations including Pension Regulations were prepared by the 2nd respondent, discussed with all Nationalised Banks, Reserve Bank of India and were approved by the Finance Minister of the 3rd respondent and then adopted by the Boards of Directors of the respective Nationalised Banks and again approved by the 3rd respondent. Moreover, guidelines on policy matters were issued by the respondent Nos. 2 and 3 to the banks from time to time. On framing the Regulations the proper implementation of the various regulations such as Promotion policy, Transfer policy, appointment of Competent Authorities, Voluntary Retirement etc. was left to be decided by the Board of each bank. In the matter of framing policy for voluntary retirement is concerned, the respective Board of Directors of various Nationalised Banks did not act expeditiously and with harmony with one another and took their own time to make voluntary retirement scheme for their employees. Different banks introduced voluntary retirement schemes between different dates and because of this disparity of action, the employees of certain banks like the petitioners have been denied the benefits of pension even though the same would be available to the employees of the other nationalised banks, merely because the Board of Directors of the respondent No. 1 bank did not expeditiously act and did notconfer the identical/same/similar benefits on the employees of the respondent No. 1 bank. This, it is contended, is discriminatory and violative of Articles 14 and 21 of the Constitution of India. Reference is then made to the other banks which have introduced the voluntary retirement scheme much earlier. It is contended that the respondent No. 1 made the provisions for voluntary retirement of its employees for the first time with effect from June 1, 1991 by its Circular No. AXI/ST/77/91 dated 10th July, 1991 and there was no provision for voluntary retirement prior to June 1st, 1991. It is pointed out that thus the employees of Bank of India and Canara Bank had an option from 1986 itself to voluntarily retire, if they so desired. The officers of the respondent No. 1 though similarly situated had no option from 1986 to June 1, 1991 to voluntarily retire and were constrained to resign from service in case they did not want to continue in service till they attained the age of superannuation. It is contended that the employees of all the nationalised banks under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 constitute one homogeneous class and are expected to be treated equally by the respondent Nos. 2 and 3. The respondents are duty bound to treat all the employees of all the nationalised banks equally and also to see that public sector banks like the respondent No. 1 and other nationalised banks do not discriminate against their employees by further dividing the entire homogeneous class of all employees of all the nationalised banks into further classes merely on the basis that the employees in question were employed by one nationalised bank or by another. It is also contended that the petitioners and other similarly situated employees of the 1st respondent bank are doing identical work as was being done by their counterparts in other nationalised banks like Canara Bank and Bank of India. The qualification and Responsibilities were the same and even the pay scales and other benefits are then adverted to in order to point out that they are similar. It is once again reiterated that because of this they constitute one homogeneous class and this class cannot be further arbitrarily divided into further sub-classes like resignees and voluntary retirees. Therefore, it is set out that the petitioners who are resignees should be treated as employees or voluntarily retired employees who have resigned. Reference is then made to the circular of 10th July, 1991 by which an officer could take voluntary retirement. The scheme, it is pointed out, suffers from ambiguity and non-application of mind and exhibits lethargy and anti-employee attitude in not falling in line with what the other nationalised banks had done. Canara Bank, it is pointed out, treated the officers who had completed the age of 50 years or put in 20 years of service as eligible for voluntary retirement. Reference is then made to the provisions of the Officers Regulations. It is then contended that Regulation 29 (1) of the Pension Regulations, 1995 which enables the employees of the 1st respondent on completing 20 years of qualifying service to avail of pension on voluntary retirement. Considering the Regulations of Canara Bank and the voluntary retirement scheme of the 1st respondent which treats only those officers who have completed age of 55 years and chose to retire or after 1st June, 1991 as voluntary retirees, be quashed and deleted as the said restrictions are not only discriminatory and unreasonable but are by implication, amended by the provisions of Regulation 29(1) of the Bank of Maharashtra Employees' Pension Regulations, 1955. Reference then is made to a judgment in Writ Petition No. 620 of 1996 where a view has been taken that all officers who voluntarily retired on or after January 1, 1986 after putting in qualifying service of 20 years are entitled to receive pension from November 1, 1993. It is also pointed out that the High Court of Karnataka has also taken similar view and in the opinion of the petitioners Regulation 29 has to be interpreted as not to infringe any fundamental right as the object behind Regulation 29 is to make voluntary retirees eligible for pension on par with retirees who superannuate and considering that the opening words of Regulation 29(1) which read"on or after the 1st day of November, 1993" will have to be treated as applicable to the date from which pension becomes payable to all other retirees, rather than applying these words to date of voluntary retirement so as to exclude large number of voluntary retirees who retired prior to November 1, 1993 and thereby creating arbitrarily an unreasonable classification amongst a homogeneous class of retirees. It is contended that there is no rational behind granting pension only to voluntary retirees and denying pension to resignees even if they are ready and willing to refund the bank's contribution to the provident fund and interest thereon. The distinction between officers who have resigned and officers who have voluntarily retired is thus irrational, arbitrary and discriminatory and cannot be allowed to continue so as to cause grave injustice to the petitioners and other similarly placed resignees.
The petitioners further contend that negotiations were going on since 1990 between managements of Scheduled Banks represented by Indian Banks Association, respondent No. 2 herein and Unions, Associations and Federations of Bank workmen and officers about the demand for pension being introduced as a benefit to retired bank employees. A settlement came to be signed on 23rd October, 1993 between the respondent No. 2 representing 58 signatory banks and Union/Associations representing lakhs of bank employees whereby it was agreed to pay from 1st November, 1993 pension to bank employees who retired on or after 1st January, 1986 on condition that such bank retirees exercise option to take pension in lieu of and by refunding bank's contribution to the contributory Provident Fund and interest thereon at 6% from the date of receipt of Provident Fund amount by bank retirees who retired prior to 1st November, 1993 till the date of refund. It is averred that on coming to know of the settlement some of the petitioners and other officers addressed a letter on 13th December, 1993 to the Chairman and Managing Director of the 1st respondent bank requesting that the concerned department of the 1st respondent should be instructed to look into their claim for possession. In the meantime the Indian Banks Association published a notice in Times of India dated 18th March, 1994 about introduction of pension scheme for bank employees who retired on or after January 1, 1986 and advising such retirees to obtain formats of the option letter from where they had retired. Reference is then made to the draft scheme which was circulated and that has been adverted to. It is pointed out that some of the petitioners called on the respondents to treat their resignation as voluntary retirement and pay them pension, so also the petitioner No. 2 had applied for pension that his resignation be treated as voluntary retirement.
It is the case of the petitioners that they had received reply from the respondents denying the claim of the petitioners by placing reliance on Regulation 22(1) of the Pension Regulations. The petitioners contend that the respondent No. 1 in that notice pointed out to them that those who resigned, forfeit the entire past service and consequently are not qualified for pension and that voluntary retirement pension is payable under Regulation 29 (1) only to those who retire on or after November 1, 1993. The petitioners in turn in their reply contended that Regulation 22 (1) is irrational, unjust and not legally tenable in as much as it deals with different categories of cessation of service and clubs different classes of employees like those who resign honourably and those who are dismissed or removed as punishment for misconduct and treats them on the same footing. It is contended that this is not only unjust and harsh but is also illegal and unconstitutional as the consequences of honourable resignation and removal or dismissal by way of punishment cannot be same. Regulation 22 (1) as far as reslgnees are concerned suffers from the vice of capricious discrimination in as much as the class of resignees itself is treated differently in different provisions of the Regulations. Various regulations are then adverted to as to why the various clauses cannot be treated as one class. It is pointed out that there are regulations including Regulation 33 under which General Managers who are appointed by Respondent No. 3 as Executive Directors of Chairman and Managing Directors and who resign from service do not forfeit their past service. It is also pointed out that the petitioners constitute the unfortunate case of resignees and this is discriminatory and unjust. Regulation 22 (1), it is pointed out, is thus rendered nugatory due to contradictory provisions in various regulations and being discriminatory, unreasonable and capricious deserves to be quashed. In the case of petitioners there can be only 3 classes viz. (i) who retire on superannuation, (ii) those who retire prior to superannuation whether by voluntary retirement or by resignation and (iii) those who are made to retire whether by dismissal, removal, compulsory retirement or premature retirement. It is the petitioners contention that acrimonious distinction between voluntary retirees and resignees and those who are deemed to have retired needs to be removed and all of them should be declared entitled to pension after qualifying service of only 10 years along with those who retire on superannuation. It is then set out that those who have retired on or after 1st January, 1986 are to be paid pension from 1st November, 1993 and only the artificial cut off date of 1st November, 1993 in Regulation No. 29(1) also deserves to be quashed. It is then further set out that Regulation No. 22(1) be quashed or the word "Resignation" therein be quashed. Similarly the words
"on or after 1-11-1993 at the beginning of Regulation 29(1) be quashed and deleted. In the matter of completing 20 years of service contained in Regulation 29(1) of the Pension Regulations, 1995 it is set out that the same is unnecessary, unreasonable and discriminatory as against the qualifying service required for other classes of retirement, which have been then set out. It is, therefore, stated that the petitioner Nos. 1 to 7, 12, 13, and 14 have put In more than 20 years of service before resigning are entitled to an addition of not exceeding 5 years for calculation of pension payable to them, whereas the petitioner Nos. 8 to 11 who resigned after putting in 10 years of service but before putting in 21 years of service would also qualify as voluntary retirees. It is, therefore, contended that refusal by the 1st respondent to treat the petitioners resignation as voluntary retirement and further refusal to reconsider its earlier decision in respect of the petitioner No. 13 is unjust and illegal. For the aforesaid reasons the reliefs prayed for are to quash and set aside. Article 22(1) of the Pension Regulations being violative of Articles 14 and 21 of the Constitution of India and to quash and set aside the word "resignation" from the said Regulation 22(1). For a declaration that the Regulation 29(1) of the said Regulations is applicable to all voluntary retirees retiring on or after January 1, 1986 instead of November 1, 1993. As a consequence to direct the respondents to pay forthwith pension to the petitioners from 1st November, 1993 under the Bank of Maharashtra (Employees) Pension Regulations, 1995 along with arrears upto date with interest at the bank rate thereon.
An affidavit has been filed on behalf of the respondent No. 1. It is contended to the specific contention of the petitioner No. 13 that voluntary retirement scheme was widely published and many employees took benefit of the same and the petitioner No. 13 is deemed to have notice of the said scheme. The contention of the petitioners that the bank should have introduced the voluntary retirement scheme in 1979 it is contended is not tenable. There is no compulsion on any nationalised bank to apply the voluntary retirement scheme which the respondent No. 1 bank made applicable in June, 1991. The applicability of the scheme, it is contended, depends on availability of funds and other considerations, which determine if the scheme is viable. The discretion is entirely with the bank and is exercised keeping the bank's and national interest in the perspective. Each bank introduced the scheme on different dates and that even the most publicised voluntary retirement scheme of the year 2000 is not uniform in its application to all the nationalised banks. The requirement of each bank and the viability of the scheme is the sole criteria for application of the scheme and on the same basis the 1st respondent made the scheme applicable in June, 1991. The decision is a policy decision based on intricate financial implication and not amenable for challenge under Article 226 of the Constitution. It is then contended that the petitioners who have resigned are not entitled to pension under the Pension Regulation and that the interpretation sought to be placed on various circulars and rules is not correct. The Pension Regulations of 1995 have been framed pursuant to the settlement arrived at and the petitioners are not entitled to the benefit of the said regulations. No discrimination has been practiced against the petitioners who had resigned on their own volition and for their own benefit. It is pointed out that such persons have been placed on par with those dismissed, removed or terminated and benefits of past service of such employees is forfeited. The 1995 Regulations makes applicable for pension only to those employees who have retired and not to those who have resigned. It is, therefore, submitted that the petition ought to be rejected.
An additional affidavit has been filed on behalf of the respondent No. 1 pursuant to rejoinder being filed by the petitioners. It is contended that term "resignation" and "retirement" are separate and have distinct meaning as also consequence in service jurisprudence. It is submitted that if retirement and resignation are treated at par it will be in contravention of the express language of the regulations and will amount to exercising the powers of regulation making authority which is not permissible. The scheme has been framed after following the proper procedure under Section 19 of the Banking Acquisition and Transfer of Undertaking Act, 1970 with the approval of the Central Government. The regulations are, therefore, statutory in nature and need to be implemented by applying strict interpretation. On resignation from service an employee is debarred from qualifying for pension and under the regulations he forfeits the past service rendered by him, whereas under voluntary retirement an employee is qualified for the retirement benefits under the scheme. The petitioners had resigned. They have thus forfeited their service. It is then set out that the Officers who resigned from the services prior to coming into effect of the scheme cannot be equated with the officers who opted for voluntary retirement from the services under the pension regulations. The petitioners, it is contended, have received the terminal benefits as admissible under the Rules which were in-existence at that time. The employer-employee relationship between the petitioners and respondent has come to an end. The petitioners have received their full dues as applicable and there is no moral and legal obligation on the respondent to pay the petitioners further benefits under the new scheme. The petitioners have no legal right to claim pension. Reference is then made to various Special Leave Petitions pending before the Apex Court and also the stay granted in one of those matters.
From the above, the following issues arise for determination :
(1) Can a resignation by an officer governed by the Bank of Maharashtra Officers Service Regulations, 1979 be treated as voluntary retirement under the Pension Regulations and if so, considering the definition of "voluntary retirement" in clause 2 (y) of the Pension Regulations whether persons who voluntary retired (resigned) between 1st January, 1986 and 1st November, 1993 can be said to have retired from the service of the bank.
(2) Is classification of retirees into those who have voluntary retired previous to 1st November, 1993 and from 1st November, 1993 arbitrary and has to be ignored and all voluntary retirees are to be treated alike and paid pension from 1st November, 1993 on fulfilling other conditions.
(3) Is clause 22 (1) of the Pension Regulations which provides for forfeiture of past service in case of resignation, dismissal or removal or termination of service, void and illegal being arbitrary and hence violative of Articles 14 and 21 of the Constitution of India and consequently whether it is open to the Court to quash the word "resignation" from Regulation 22.
(4) Consequently are the petitioners entitles to a declaration that Regulation 29 (1) is applicable to all those who voluntarily retired including those who resigned from January 1, 1986 instead of November 1, 1993.
For the purpose of deciding the issues, we may first consider the various Rules/Regulations and settlements which are essential for disposal of the issues which arise herein. There are in force what are known as The Bank of Maharashtra Officers Services Regulations 1979. By an amendment which cama into effect from 10th July, 1991, the bank introduced the concept of voluntary retirement. By virtue of that amendment an officer employee may be permitted to retire voluntarily from the services of the bank at any time after-attaining age of 55 years by giving 3 months notice Under Rule 2 an Officer employee, retiring voluntarily, shall be entitled to all the benefits as available in the case of normal retirement in accordance with the provisions of Bank of Maharashtra Officers' Service Regulations, 1979 including encashment of accumulated privilege leave, The Circular dated 10th July, 1993 further provided that the Bank may, at its discretion on review by the Special Committee as provides hereinafter in Sub-Regulation (2) retire an officer employee on or at any time after the completion of 55 years of age or on or at any time after completion of 35 years of total service as an officer employee or otherwise whichever is earlier.
A settlement was entered into between various banks and unions included the respondent No. 1 Bank on 28th October, 1993 under Section 2(p) and Section 18 (1) of the Industrial Disputes Act, 1947 read with Rule 58 of the Industrial Disputes (Central) Rules 1957. By virtue of this settlement it was provided that the banks which are set out in schedule I to the settlement shall introduce pension as second retirement benefit scheme in lieu of contributory provident fund were it does not exist for the workmen employees. By clause 2 of the settlement Pension as a second retfral benefit scheme was to be introduced in lieu of contributory provident fund and was to be made available to the category of employees/retired employees from 1st November, 1993 or the date of retirement, whichever is later. They consist of :
(i) Employees who join service of the bank on or after 1st November, 1993;
(ii) Employees in service of the bank as on 31st October, 1993 and who on or before 30th June, 1994 exercise an option in writing in response to bank's notice to this effect to be given not later than 31st December, 1993 to become members of the pension scheme and to cease to be members of the contributory provident fund scheme with effect from 1st November, 1993. (iii) Retired employees who were in service of the bank/merged bank on or after 31 st December, 1985 and retired on or after 1st January, 1986 but before 1st November, 1993 provided that such retired employees apply for it on their own on the format prescribed by each bank and refund within a period of six months reckoned from 1st November, 1993, the bank's entire contribution to the provident fund including interest received with further simple interest at the rate of 6 per cent per annum from the date of withdrawal of the provident fund amount till the date of refund.
Under clause 3 Pension was payable on retirement in terms set out therein. Under clause 5, employees voluntarily retiring after 20 years of completed service as per provisions to be incorporated in the scheme were to get proportionate pension. The qualifying service of an employee voluntarily retiring on completion of 20 years of actual service was to increased by a period not exceeding five years.
As stated earlier there are in force Regulations known as the Officer's Service Regulations, 1979 which were framed in exercise of powers conferred by Section 19 read with sub-section (2) of Section 12 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. These Regulations did not provide for voluntary retirement. These regulations pursuant to an amendment on 10th July, 1991 introduced and provided for voluntary retirement. Regulations thereafter came to be framed by the Bank which are known as the Maharashtra (Employees) Pension Regulations 1995 which came into force from 29th September, 1995. Under Regulation No. 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. "Notified date" means the date on which these regulations are published in the official gazette which is 25th September, 1995. "Qualifying service" means the service rendered while on duty or otherwise which shall be taken into account for the purpose of pension under these regulations. Under regulation 2(x) "retired" includes deemed to have retired under clause (1). Under Regulation 2(y) "retirement" means cessation from bank's services, (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; and (c) on premature retirement by the bank before attaining the age of superannuation specified in Service Regulations or Settlement.
Chapter II is the Chapter pertaining to application and eligibility. Under Regulation 3 the regulation is to 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.
We are really not concerned with the other parts of Regulation 3.
Chapter IV sets out qualifying service. The only relevant regulation in this Chapter is Regulation 22(1) which provides for forfeiture of past service and reads thus :
"*
22(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.
"
Chapter V deals with Classes of Pension. Regulation 28 provides for Superannuation Pension-Superannuation pension shall be granted to an employee who has retired on his attaining the age of superannuation specified in the Service Regulations or Settlements. Regulation 29 provides for Pension on Voluntary Retirement and are applicable after 1st November, 1993 in respect of an employee who has completed 20 years of qualifying service and applies for retirement by following the procedure set out therein and that the same is accepted by the employer. Regulation 30 provides for invalid pension and again applies to those who have retired on or after 1st November, 1995. Regulation 31 provides for compassionate allowance in case an employee who is dismissed or removed or terminated from service and who has to forfeit his pension. However, the authority higher than the authority competent to dismiss or remove or terminate him from service may, if (i) such dismissal, removal or termination is on or after the 1st day of November, 1993; and (ii) the case is deserving of special consideration, sanction a compassionate allowance not exceeding two-thirds of the pension which would have been admissible to him on the basis of the qualifying service rendered upto the date of his dismissal, removal or termination. Regulation 32 provides for premature retirement pension. Regulation 33 provides for compulsory retirement pension again in respect of an employee who is retired after 1st November, 1993.
After the Regulations were notified a Circular was issued dated November 10, 1995. The salient features of the Regulations are set out and para 8 of that Circular reads as under :
"*
8. As clarified by I.B.A. employees who have voluntarily retired in terms of Bank's Service Regulations or deemed to have voluntarily retired in terms of Settlement between 1-1-1986 to 31-10-1993 shall not be eligible for pension on Voluntary Retirement and this position be clarified, in response to queries.
"
In support of their contentions, parties have relied on several judgment which may now be adverted to and discussed. Reliance was placed in the case of Sudarshan Kumar v. Delhi Transport Corporation & Anr. decided on 18th October, 1994 in Civil Writ Petition No. 4833 of 1993 by a learned Single Judge of the Delhi High Court. In that case what was in issue was the Rules of Delhi Transport Corporation. The Delhi Transport Corporation instituted a Pension Scheme for those who retired with effect from 3rd August, 1981 which was introduced by Office Order No. 16 dated 27th November, 1992. The petitioner who had not retired, but had resigned filed a petition contending that an artificial distinction had been made between persons who retired and those who resigned at a time when there was no occasion for the concerned person to opt for retirement or seek retirement in the manner provided by the Rules. On behalf of the respondents one of the. contentions raised was that considering CCS. Pension Rule 26 a Government servant who resigns from service or post forfeits the benefits of past service and, therefore, he is not entitled for pension benefits. The learned single Judge considered the nature of pension by relying on the judgment in the case of D. S. Nakara and Ors. v. Union of India, 1982 SC 158. The learned Judge had proceeded to hold that if a person is entitled to pension on retirement after completing, qualifying service, it follows that, the said benefit is a benefit earned by the employee because of the service rendered by him and in that context no distinction can be made between the person who has resigned or retired and on the basis of the scheme held that it has to be understood in a liberal sense so as to extend the benefit to all those who rendered the qualifying service and there cannot be any artificial distinction between a person who retired and a person who had resigned. Next reliance was placed on the judgment of the Division Bench of this Court in the case of Cecil Dennis Solomon and Anr. v. Reserve Bank of India and Anr., in Writ Petition No. 615 of 1996 and 2586 of 1997 (2002 L.L.M.). In that case what was under consideration were the Regulations of the Reserve Bank of India. It was contended that Regulation 16 of the Reserve Bank of India Staff Regulations, 1990 which was a regulation pertaining to forfeiture of service was arbitrary. Before the learned Bench it was also contended that the Regulation 26(3A) of the Reserve Bank of India Staff Regulations 1948 is not prospective in nature and, therefore, the petitioner is entitled to grant of benefit of pension as resignation is equivalent to voluntary retirement. In both the petitions the date of resignation of all the petitioners were prior to 1st November, 1990 i.e. the date on which the Pension Regulation came into effect. All of them had resigned before the RBI service Regulations of 1990 had come into existence. Earlier the service conditions of the R.B.I. employees were governed by the Staff Regulations, 1948. Regulation 26 was not amended when the petitioners were in service to include sub-regulations (3A). Sub-regulation (3A) as introduced in the Staff Regulation 1998 provided for voluntary retirement in the manner provided therein and further in the event an employee had completed qualifying service for pension in terms of the regulations for pension as in force. Even prior to this amendment there was Regulation which provided for voluntary retirement on completing the age of 50 years. The Reserve Bank of India Regulation of 1990 for the first time introduced a Pension Scheme to those employees who joined the bank service on or after 1st September, 1990. Apart from that benefit was also given to those who were in service prior as on 1st January, 1986 and had retired between 1st January, 1986 but before 1st September, 1990 provided they exercised the option as provided by these Regulations. Regulation 16 provided for forfeiture of service on resignation or termination of an employee. It was these regulations which were under consideration. The Reserve Bank of India was not a party to the settlement while the other bank had entered on 28th October, 1993 with the Unions. The learned Division Bench of this Court held that resignation from service is not equivalent to dismissal or termination both of which are the acts of management, but conversely, resignation is more akin to voluntary retirement. The Court further recorded that the Regulation 16 was not applicable as it was prospective in operation and not retrospective. In other weirds what the learned Division Bench held was that resignation and voluntary retirement was the same thing and the forfeiture of service provided by Regulation 16 could be applied only prospectively and would not apply to those persons who had resigned before the regulation of 1990 had come into force. It is not necessary to further discuss or distinguish the judgment as the judgment has been subsequently set aside by the Apex Court.
In J.K. Cotton Spinning and Weaving Mills Company Ltd. v. State of U.P. and Ore., 1990 II CLR 542 SC what was in issue was whether resignation would amount to retrenchment within the meaning of Section 2(s) of the U.P. Industrial Disputes Act, 1947. The Apex Court held that resignation is in the nature of voluntary retirement and would not constitute retrenchment and as such the employer was not bound to pay compensation. It would thus be clear that what was considered was the definition of resignation/voluntary retirement in the context of retrenchment benefits.
A learned Judge of the Andhra Pradesh High Court in the case of T. Ramesh Babu v. Union Bank of India, Central Office, Mumbai, 1998 I CLR 1221 was considering the claim for pension by the petitioner before it. In that case the petitioner was on leave. He wrote a letter on 9th November, 1998 seeking voluntary retirement and sought to opt for pension under the pension scheme which was being introduced. When the correspondence was going on, he wrote a letter that as he was not being paid salary during his leave of absence he had decided to go in for private employment and therefore, he was tendering his resignation' which should be accepted and he should be released at the earliest for taking up the private assignment. He also stated that as and when the voluntary retirement pension scheme is announced he should be considered for the same. His resignation was accepted on 16th June, 1994. He had also produced correspondence to show that he had filed forms for claiming pension, after the scheme had been framed in September, 1995. His case was rejected by the Bank on the ground that he has resigned, it was contended on behalf of the petitioner therein that Indian Banks Association had issued the clarification by letter of 4th January, 1996 stating that settlement regarding the pension scheme having been signed on 29th October, 1993 providing for introduction of the Pension Scheme with effect from 1st November, 1993 even those who had resigned from service or voluntarily retired subsequently would be entitled to have their claim considered if such request had been left out of consideration only on the ground that the pension scheme had not been finalised and adopted by the time the applications were made. It was further contended that his initial application was pending from 9th November, 1993 after trie date of coming into force of the Pension Scheme from 1st November, 1993 and as such he was entitled for the benefits. Regulation 22 of the Union Bank of India Regulations provided that resignation of an employee from service before he fulfills the rest of the service shall not qualify for pensionary benefits. The learned Judge held that the clarification issued by the Indian Bank Association clearly overrides this regulation and also relied upon another unreported decision of that Court. It is not necessary for us to deal with that matter considering the facts and even otherwise it is impossible to accept the contention that a clarification would override the provisions of Regulation which are clear unless the regulation was ambiguous and the clarification was issued to remove the ambiguity.
Sadanand Parshuram Limaye v. Bank of India decided on 18th November, 2002 in Writ Petition No. 1154 of 1996 is a judgment of the Division Bench of this Court. In that case the petitioner was compulsorily retired pursuant to the disciplinary proceedings. He has joined the service on 17th June, 1946 and was compulsorily retired on 30th March, 1988 and was due for superannuation within a couple of months. The service regulations for Bank of India came into force from 29th September, 1995 and was also made applicable to all the employees who had retired during the period 1st January, 1986 to 31st October, 1993. As he had retired in 1988 he exercised the option to join the pension scheme. On behalf of the respondent it was contended that though he was compulsorily retired his retirement was not in terms of the Bank of India Officers (Discipline & Appeal) Regulations, 1976 or in conformity therewith. The punishment of compulsory retirement amounted to major penalty. Another submission on behalf of the bank was that under Regulation 33 the employees who are compulsorily retired from service as penalty after 1st November, 1993 alone are entitled to pension at the rate not less than 2/3rd and not more than the full pension admissible to them. On consideration of the Regulations as also Regulation 32 which provides for premature retirement and Regulation 33 which provides for compulsory retirement the learned Division Bench held that the retirement cannot be treated as passed under Discipline and Appeal Regulations and the case would be covered by the Regulation covering premature retirement in public interest and directed payment of pension under Regulation 32(b). The judgment clearly is on those set of facts and distinguishable. This judgment can be of no assistance for what is being canvassed and argued before this court.
Reliance was also placed in the case of Madhav K. Kirtikar v. Bank of India, 1997 (2) MLJ 559 by a learned Single Judge of this Court. In that case the petitioner had joined the bank in 1946 and had retired from service from 1st August, 1987. He opted for voluntary retirement in accordance with Rule contained in Bank of India Officers Regulation 1979. Pursuant to the Pension Scheme being introduced and the officers being called upon to exercise options, the petitioner exercised the option vide letter of 22nd July, 1994. On 29th September, 1995 the Bank of India (Employees) Pension Regulations, 1995 were brought into force. Under the old regulations an employee could retire after completion of 30 years of service. Under Regulation of 1995 he can retire after 20 years of service and such employee shall be eligible for pension. The bank brought to the notice of the petitioner that the employee who had voluntarily retired during the period 1st January, 1985 to 31st October, 1993 would not be eligible for pension as he had voluntary retired prior to 1st November, 1993 and the pensionary benefits could not be extended to him. Under the Regulations retirement also included voluntary retirement in accordance with Regulation 29 of the Regulations and the Regulations were to apply to those who had retired after 1st day of January, 1986 but before 1st November, 1993. The learned Judge held that when the bank decides to extend the benefit of pension to its employees it cannot make any distinction between the employees who have retired and employees who sought voluntary retirement and retired and accordingly held that the petitioner therein would be entitled to exercise option for pension.
Reference was then made to the judgment of a Division Bench of the Delhi High Court in the case of Mr. Ashwani Kumar Sharma v. Oriental Bank of Commerce in CWP 7016/2001 decided on 23rd September, 2002. In that case what was in issue was the Pension Scheme as formulated by the Oriental Bank of Commerce and Bank of India. On behalf of the respondents in their affidavit filed before this Court it Is pointed out that S.L.Ps. have been preferred against the judgments before the Apex Court and are pending before the Apex Court. In another matter of UCO Bank arising from the decision of the Punjab & Haryana High Court which was in favour of the employees in S.L.P. (Civil) No. 18878 of 1998 had been filed where the Apex Court was pleased to grant leave and by order dated 10th May, 1999 stayed the operation of the impugned judgment. In the light of that it would not be proper for this Court to comment on the said judgments.
Reference is also made to the judgment of a Division Bench of the Karnataka High Court in the case of Canara Bank v. Shri B. M. Ramachandra & Ors. in Writ Appeals Nos. 8897 to 8972 of 1996 decided on 30th May, 1997. The matter arose from the judgment of a learned single Judge of the Karnataka High Court. In that case what was in issue was whether a distinction could be made between employees who were retired under the scheme of voluntary retirement artd those who had retired otherwise. The learned Single Judge of the Karnataka High Court had taken a view that it was not possible to distinguish the two. The view of the learned single Judge was also upheld by the Division Bench. However, what will be material to note is that the issue therein was of voluntary retirement and not of resignation. The learned Division Bench of the Karnataka High Court proceeded on the footing that the definition of "retirement" in Regulation No. 2(y)(b) would suggest that no distinction was intended to be made with the employees who had retired between 1st January, 1986 and 31st October, 1993 and the employees who retired after 1st November, 1993 and that there was no specific exclusion of such retirees. The relevant regulations have not been placed before us. However, in so far as the regulations in the present case and the definitions which were adverted to earlier do not define voluntary retirement, but defines "retirement" under Regulation 2(y) to include those who have retired in accordance with the provisions contained in Regulation 29. Regulation 29 is applicable to those who have voluntarily retired after 1st November, 1993. It will be clear, therefore, that the definition clause under the Regulation of the respondent No. 1 bank covers only those cases of persons who have voluntarily retired after 1st November, 1993. It will not be possible for us to agree with the ratio of the Division Bench of the Karnataka High Court considering that the regulations only provide to provide pensionary benefit to those who have retired after 1st November, 1993 and who fulfilled the requirements and other conditions as stipulated thereon. At any rate the issue before the Division Bench of the High Court was not in respect of those who had resigned between 1st January, 1986 and before 1st November, 1993.
Reference was also made to the judgement of the Apex Court in the case of Bank of India v. Indu Rajagopalan & Ors. JT 2000 (10) SC 334. That was a case of those who have retired under the scheme of voluntary retirement and those who have retired between 1st January, 1986 to 31 st October, 1993. On the facts of that case the Apex Court did not interfere with the judgment in that case. Again the matter pertained to those who retired under the scheme of voluntary retirement and those who have retired between 1st January, 1986 to 31st October, 1993. There are some other judgments which were adverted to, which in our opinion, do not require discussion considering what is in issue before this Court and in those judgments.
On the other hand on behalf of the respondent bank the learned Counsel has relied on various judgments which will be adverted, to the extent that is necessary.
In All India Reserve Bank Retired Officers Association and Ors. v. Union of India & Ors. 1992 II CLR 89 S.C. the issue before the Apex Court was the fixation of cut-off date by the Reserve Bank of India for introduction of Pension Scheme with effect from 1st January, 1986 and excluding those who had earlier retired. The Apex Court considering the contentions held that when the State decides to revise and liberalise an existing pension scheme with a view to augmenting the social security cover granted to pensioners, it cannot ordinarily grant the benefit to a section of the pensioners and deny the same to others by drawing an artificial cut-off line which cannot be justified on rational grounds and is wholly unconnected with the object intended to be achieved. But when an employer introduces an entirely new scheme which has no connection with the existing scheme, different considerations enter the decision-making process. One such consideration may be the financial implications of the scheme and the extent of capacity of the employer to bear the burden. Keeping in view its capacity to absorb the financial burden that the scheme would throw, the employer would have to decide upon the extent of applicability of the scheme. The Apex Court further held that the cut-off date on 1st January, 1986 is not arbitrarily fixed by the Bank authorities as the rational for fixing the cut-off date as 1st January, 1986 was the same as in the case of Central Government employees based on the recommendations of the Fourth Central Pay Commission. The Apex Court also considered the concept of pension and reiterated that it is not a charity or bounty nor is it gratuitous payment solely dependent on the whims or sweet will of the employer and that it is earned for rendering long service and is often described as deferred portion of compensation for past service and is in fact in the nature of a social security plan to provide for the December of life of a superannuated employee and such security plans are consistent with the socio-economic requirements of the Constitution when the employer is a State within the meaning of Article 12 of the Constitution.
In Commander Head Quarter, Calcutta & Ors. v. Capt. Biplabendra Chanda, 1996 SC 1630 the issue was again fixing of cut-off date in respect of new revised rules and payment of pension. Challenge of discrimination was negated by the Apex Court holding that it was not a case where discrimination is being made amongst Pensioners who were similarly situated and if the respondents contention was to be accepted it would have very curious consequences that even a person who had retired long earlier would equally become eligible for pension on the basis of the 1986 Rules.
In Govt. of Tamilnadu & Anr. v. K. Jayaraman, 1997 II CLR 404 SC is the case of the employees who had resigned and fell short of the requisite length under the Rules in force to be eligible for pension. On account of subsequent amendment to the Rules the employee was satisfying the requirement of qualifying service. The Apex Court, however, held that the subsequent amendment would not apply and the respondent would not be entitled to pension.
In the case of Subramaniam V. v. Central Bank of India, 2003-I-LLJ, 146 the petitioner had resigned in September, 1986 in accordance with the Central Bank of India (Employees') Pension Regulations, 1995 and the same was accepted by the respondent. He had completed 30 years of continuous service and voluntarily retired from service. On retirement all terminal benefits were paid in terms of the existing Rules. The Central Bank of India framed Pension Regulations and Regulation 3 covered employees who were in service of the bank on or after 1st January, 1986. The petitioner claimed that he was in service in September, 1986 and, therefore, entitled to claim pension under the Regulations. The same was turned down. It was the contention on behalf of the petitioners that resignation also meant voluntary retirement. His application for pension was rejected. The learned Judge of the Madras High Court framed various questions which are similar to some of the contentions raised herein. One of the points was whether regulation 22(1) of the Pension Regulation is liable to be declared as unconstitutional. Regulation 22 which is the provision for forfeiture of service in case of those who are dismissed, removed or terminated or resigned. The learned Judge recorded a finding that the petitioner had not voluntarily retired. The learned Judge also negated the contention that those who have resigned could not be equated with those who were dismissed or removed from service and clubbing them together would be arbitrary. The learned Judge further held that the petitioner was covered by the C.P.F. Scheme as he had resigned earlier and in these circumstances rejected the challenge.
Reliance was then placed in the case of Tamil Nadu Electricity Board v. R. Veerasamy & Ors., 1999 SC 1034. The Tamil Nadu Electricity Board introduced Pension scheme for its employees which was prospective in nature. Those who had retired previous to 1st July, 1986 were not entitled to Pension as they were governed by the Contributory Provident Fund Scheme and all retiremental benefits had been drawn by them. It is only those who were on service on 1st July, 1986 who were entitled to the benefit of pension scheme. This was challenged on the ground that the Board in treating differently those who retired before 1st July, 1986 and those who retired subsequently was acting illegal or arbitrarily. The Apex Court relied on the judgment of V. Kasturi v. Managing Director, State Bank of India, Bombay & Anr. 1998 II CLR 1041 SC. The Apex Court quoted from the said judgment wherein it was held that :
"*
If an employee at the time of his retirement is not eligible for earning pension and stands outside the class of pensioners, if subsequently by amendment of the relevant pension rules any beneficial umbrella of pension scheme is extended to cover a new class of pensioners and when such a subsequent scheme comes into force, the erstwhile non-pensioner might have survived, then only if such extensions of pension scheme to erstwhile non-pensioners is expressly made retrospective by the authorities promulgating such scheme; the erstwhile non-pensioner who has retired prior to the advent of such extended pension scheme can claim benefit of such a new extended pension scheme. If such new scheme is prospective only, old retirees non-pensioners cannot get the benefit of such a scheme even if they survive such new scheme. They will remain outside its sweep.
"
The Court further observed that the respondent before it cannot claim the benefit of scheme which came into operation from a date subsequent to the date of retirement. The judgment in D. S. Nakara v. Union of India was distinguished.
The learned Counsel for the petitioner has now placed before us the judgment of the Apex Court in Reserve Bank of India and Anr. v. Cecil Dennis Solomon and Anr. 2003 SC 1074. The judgment of the Division Bench of this Court has been set aside. The Apex Court has now clearly held that in service jurisprudence, the expressions superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. It will be gainful to reproduce the following paragraphs :
9. In service jurisprudence, the expressions superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time; but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the concerned employer is a requisite condition. Though resignation is a bilateral concept, and becomes affective on acceptance by the competent authority, yet the general rule can be displaced by the express provisions to the contrary. In Punjab National Bank v. P. K. Mittal, on interpretation of Regulation 20(2) of the Punjab National Bank Regulations, it was held that resignation would automatically take effect from the date specified in the notice as there was no provision for any acceptance or rejection of the resignation by the employer. In Union of India v. Gopal Chandra Misra, it was held in the case of a Judge of the High Court having regard to Article 217 of the Constitution that he has an unilateral right or privilege to resign his office and his resignation becomes effective from the date which he, of his own volition, chooses. But where there is a provision empowering the employer not to accept the resignation, on certain circumstances e.g. pendency of disciplinary proceedings, the employer can exercise the power.
On the contrary, as noted by this Court in Dinesh Chandra Sangma v. State of Assam, while the Government reserves its right to compulsorily retire a Government servant, even against his wish, there is a corresponding right of the Government servant to voluntarily retire from service. Voluntary retirement is a condition of service created by statutory provision whereas resignation is an implied term of any employer-employee relationship."*
Consequent to this judgment all judgments relied upon by the petitioner to contend that, resignation, voluntary retirement and retirement are the same stand overruled.
We may now deal with the first two issues. No doubt it would also depend on the definition used in the regulations/rules. It is contended on behalf of the petitioners that pension is nothing but deferred payment for the past services rendered and is not a bounty and as such an officer employee completing minimum requisite qualifying service would be entitled to pension as an entitlement, depending on the requisite qualifying service. It was also argued that pension payable would be irrespective of the different mode/cessation of service. Thus all the modes/cessation of service are covered as long as they are not by way of disciplinary action. Learned Counsel has submitted that resignation amounts to voluntary retirement which Is a form of retirement and therefore, those resigning between 1st January, 1986 and 1st November, 1993 and considering the definition of the word retirement would be entitled to pension.
On the other hand it was contended on behalf of the respondents, meeting the case of the petitioners that some banks had made the voluntary retirement scheme applicable in the year 1986-87 and the bank of Maharashtra held not deliberately delayed the voluntary retirement scheme till 1st June, 1991. Each of the nationalised bank was permitted to have its own policies and dates of implementation of various schemes under the Banking Companies (Acquisition and Transfer of Undertakings Act). The schemes which were brought into force with effect from a particular date is a policy decision of the bank and unless the regulations specifically stipulate that they are operative retrospectively, the Court cannot engraft retrospectively into the said regulations and hold that they should be made applicable retrospectively. Such a contention if made would be untenable and the petition must proceed on the footing that the petitioners opted to resign from the respondent bank under Regulations of 1979, fully conscious of their rights and implications of such resignations. On resignation there was a severance of relationship between the petitioners and the respondent bank. All the petitioners have accepted the benefit of provident fund and gratuity. It is also pointed out that the scheme which came into effect in the year 1991 and the Regulations which came into force with effect from 1995 would govern only those employees who were in service at that time and not to those who have resigned.
It would have been possible to consider the said contention. However, in our opinion after the judgment of the Apex Court in Reserve Bank of India & Am. v. Cecil Dennis Soloman & Anr. (supra) that contention will have to be rejected. We have already reproduced the relevant paragraphs of the judgment, which considering the expression voluntary resignation. The Apex Court has held that though both involve voluntary acts, they operate differently. Resignation can be tendered at any time, but voluntary retirement can only be sought after rendering prescribed period of qualified service. Similarly, retiral benefits are denied to those who have resigned, but in case of the latter the same is not denied. In the case of resignees some other distinctions are also set out. It is therefore clear that the Apex Court has sought to read the word "resignation" and "voluntary retirement" as two distinct words in service jurisprudence. The Pension Regulations in respect of the other banks are similar in nature to the Pension Regulations as introduced by the Reserve Bank of India. In fact the cut-off date as 1st January, 1986 came, because of the introduction of the Pension Regulations by the Reserve Bank of India consequent upon the acceptance of the recommendations of the IVth Pay Commission. It is in that context that the said Regulation was made applicable in so far as the banks are also concerned from that date. Apart from that it may be noted that in the settlement between the Unions and the banks it was clearly set out that pension as a second retiral benefit scheme was being introduced in lieu of contributory provident fund and would be available to the category of employees set out in the settlement from 1st November, 1993 or the date of retirement, whichever is later. The persons eligible were (1) employees who join service of the bank on or after 1st November, 1993; (2) employees in service of the bank as on 31st October, 1993 and on or before 30th June, 1994 and also exercise an option in writing in response to bank's notice to this effect and to be given not later than 31st December, 1993 to become members of the pension scheme and to cease to be members of the contributory provident fund scheme with effect from 1st November, 1993 and irrevocably authorise the bank or the trustees of the contributory provident fund to transfer the entire contribution of the bank along with entire interest accrued thereon to the credit of pension fund to be created for this purpose; (3) retired employees who were in service of the bank/merged bank on or after 31st December, 1985 and retired on or after 1st January, 1986 but before 1st November, 1993 provided that such retired employees apply for it on their own on the format prescribed by each bank and refund within a period of six months reckoned from 1st November, 1993, to the bank, the banks contribution to the provident fund including interest. Apart from that under clause 5, employees voluntarily retiring after 20 years of completed service as per provisions to be incorporated in the scheme would also get proportionate pension. It is therefore, clear that in so far as voluntary retirement is concerned, only those persons would be entitled who had put in 20 years of complete service as per provisions to be incorporated in the Scheme and would get proportionate pension. The settlement also provided that the pension scheme would be introduced from 1st November, 1993. It also provided that only a class of retirees, who had retired after 1st January, 1986 but before 1st November, 1993 would be eligible provided they refund the banks contribution to the Provident Fund along with interest. We have noted earlier that in the year 1991 the Bank of Maharashtra Officers' Service Regulations had been amended whereby an employee was permitted to retire voluntarily from the service of the bank at any time after the age of 55 years. Their pensionary benefits were to be the same as that of retirees considering Rule 2 of the amendment. In so far as Pension Regulations are concerned now Regulation 29 for the first time provides for Pension on voluntary retirement and the regulation is clear in as much as it applies only to those who voluntarily retire after the 1st day of November, 1993 provided such employee has completed 20 years of qualified service. Apart from that a Circular by the bank which was issued on 10th November, 1995 further clarified the position by setting out in paragraph 8 as under :
"8. As clarified by I.B.A. employees who have voluntarily retired in terms of bank's Service Regulations or deemed to have voluntarily retired in terms of settlement between 1st January, 1986 to 31st October, 1993 shall not be eligible for pension on voluntary retirement and this position be clarified in response to queries."*
A perusal of the definition 'retirement' would make it clear that only those who voluntary retire in accordance with the provisions contained in Regulation 29 would be eligible. One of the requirement of Regulation 29 is that such person ought to have completed 20 years of service on or after 1st November, 1993. The extended meaning of the word "retirement" cannot, therefore, be applied to those who have resigned before 1st January, 1993. In so far as those persons who have voluntarily retired before 1st November, 1993 at the highest they would be covered by the Bank of Maharashtra Officers Service Regulations. It is also pointed out that another requirement was completion of 30 years of service. In so far as such employees who have voluntary retired under the Regulation of 1979 they are entitled to the same benefits available to those who normally retire in accordance with the provisions of the Bank of Maharashtra Officers Service Regulations, 1979. Therefore, only those persons who have retired, pursuant to the amendment notified on 10th July, 1991 at the highest could have claimed benefits under Regulation 3. We are really not dealing with that issue and consequently are not called upon to decide the same finally. At any rate, however, those who resigned would not fall under the definition of retirement considering that they are not included in the definition of retirement.
Considering the above to our mind and also the judgment in the case of Tamil Nadu Electricity Board (supra) it is clear that it is open to an employer to fix the cut-off date and when such date is fixed it is only those who are in service on the said date who would be entitled to the benefit. It is also open to an employer considering the passage of time to introduce a new scheme. Once such scheme is introduced it can provide as to who would be entitled to the benefits of the said scheme and it is not necessary that every scheme must provide for past employees. Considering the above and specifically the judgment of the Apex Court in Reserve Bank of India & Anr. v. Cecil Soloman (supra) which has reversed the judgment of this Court, we are of the considered opinion that it is not possible to equate the word "resignation" with the words "voluntary retirement" and then to read the words "voluntary retirement" into the word "retirement" for the purpose of clause 29 of the Pension Regulations. The extended meaning of the word "retiree" as seen in clause 2(y) are in respect of those retirees who retire in terms of clause 29. It is only that class of voluntary retirees who would be retiring under the Pension Regulations who would be eligible for the benefit. This has also been made clear by the circular. We, therefore, hold that the act of rejecting the petitioners claim cannot be said to be arbitrary and/or inconsistent with the regulations. The settlement with the Union and the bank clearly provided as to whom the pensionary benefits would be made available and it has been introduced as a new terminal benefit. The settlement was under Section 2(p) read with Section 18 of the I.D. Act followed by the Regulations. It will, therefore, not be possible for this Court to hold that the petitioners who have resigned would be entitled to be treated as having retired and consequently entitled to pension. The first two issues must, therefore, be answered accordingly.
We now come to the third issue that Section 22(1) of the Pension Regulations is illegal and/or void. On behalf of the petitioners it is pointed out that forfeiture of the entire past service and consequential denial of pension to employees who resign from service as provided for by Regulation 22(1), by clubbing them with those employees who are dismissed, removed or terminated from service, is arbitrary, discriminatory and bad in law. The submission is that the clubbing those who resigned/retired on their own volition with those employees who were dismissed or removed from service by the employer is unreasonable and, therefore, the classification is arbitrary. Alternatively, it is contended that Regulation 31(1) enables the bank to grant compassionate allowance upto 2/3rd of pension to employees dismissed, removed or terminated. Regulation 32(b) enables the bank to grant full pension to the employees who prematurely retired under Order of the bank and also similarly there is Regulation which enables the bank to give pension to employees who were compulsorily retired by the bank as penalty. Excluding only those who have resigned would amount to denial to them the benefit of pension and, therefore, arbitrary. Reliance is placed in the judgment in the case of Bank of India v. Indu Rajgopalan (supra). It is next submitted that the expression resignation or voluntary retirement as per the dictionary meaning is one and the same. It is submitted that in view of the judgment in Bank of India v. Indus Rajgopalan the qualifying words "on or after 1st November, 1993" stand deleted from Regulation 29(1). It is next submitted that in accordance with the established principles of interpretation of statute the provisions in subsequent sections/regulations will control/over ride the provisions of prior sections/regulations. Regulation 22(1) which provide or forfeiture of past services of the employees who were dismissed, removed or terminated from service is negatived/qualified by the provisions of Regulation 31(1), 32 and 33 as set out earlier. Similarly forfeiture of service and denial of pension to resignees is also controlled/over ridden by provisions of Regulation 29 as well as Regulation 34(1) which provides that all employees who retired between the period 1st January, 1986 till 31st October, 1993 shall be eligible for pension with effect from 1st November, 1993. Some of the petitioners, it is contended, gave 3 months notice of their intention to leave the bank's service as per Regulation 20(2) of the Bank of Maharashtra Officer's Service Regulations 1979. It is, therefore, submitted that those who have put in qualifying service and who decided to leave the bank, their case would be covered by the provisions of Regulation 29. It is further submitted that the petitioners acted on the promises held out by the respondent bank. For the aforesaid reasons it is sought to be contended that Regulation 22 which provides for forfeiture of service of resignees is illegal and null and void and/or in the alternative the word "resignation" must be struck down.
We may now answer the said contention. As noted earlier what is important to note is that pension as retiral benefit have been introduced for the first time pursuant to the Pension Regulations. The Regulation itself came into force puisuant to a settlement between the Unions and various banks including the respondent Bank. It is, therefore, clear that the earlier retiral benefit which was in the form of a contributory provident fund, was given a go-bye and a pension scheme instead was introduced. It is in the context of the language of Regulation 22 and the date on which the regulation has come into force or the benefit is made available, that will have to be considered. At the outset it may pointed out that the language of Regulation 22 itself is clear. There is no ambiguity. Regulation 22 is found in Chapter IV, which provides for qualifying service. Four categories of persons who are denied pension under Regulation 22 is set out. It is clear that one such case is of termination of services by the employee who no longer wants to continue in service of the employer. In that context as earlier held resignation is different from other forms of retirement including voluntary retirement. Retirement normally is on superannuation. Voluntary retirement is in terms of Regulations framed by the bank under which an employee can voluntarily retire after completing minimum number of years in terms of Regulation/Rules. Both requirements of retirement and voluntary retirement are, therefore, pursuant to Regulations/Rules made by the bank. The second aspect of the matter is that though resignation and voluntary retirements, like resignation, dismissal or removal or termination amounts to termination of employment either by the employee or employer, nevertheless what Regulation 22 does is to exclude the named categories from availing of the benefit of pension which is payable either on superannuation under Regulation 28; Voluntary retirement under Regulation 29;. Invalid pension under Regulation 30; premature retirement pension and compulsory retirement pension. Apart from that there is no other pension except a provision for compassionate allowance in respect of the employee who is dismissed, removed or terminated from services. In other words in so far as those who are dismissed, removed or terminated their past service is forfeited and does not qualify for pension. In terms of Regulation 31(1) an employee who is dismissed or removed or terminated from service forfeits his pension. However, the Regulations still provides for what is known as compassionate allowance to those who have been dismissed, removed or terminated on or after 1st November, 1993 and the bank is of the opinion that the case is deserving and requires special consideration. The Regulations, therefore, provides for grant of pension only in certain cases of termination of employment by the employer. In so far as employee is concerned it is only on the employee voluntarily retiring and fulfilling the conditions laid down in Regulation 29. Therefore, clubbing together of categories set out under Rule 22 cannot be said to be arbitrary and/or unreasonable and/or to have no nexus with the object namely forfeiture of service, which results in denial of pension as they have no qualifying service. The other aspect of the matter and as pointed out earlier is that pension as retiral benefit is in force from 1st November, 1993 except for a category of employees who are governed by the provisions of Regulation 3. It was open to the employer to introduce a new retiral benefit and to fix the date as to when it was to be brought into force and the benefits payable thereof. This is called the cut-off date which the Apex Court has held can be provided for. In fact a similar issue as in the present case Is covered by the judgment in the case of Tamilnadu Electricity Board (supra) where the Court observed that those who had retired before 1st July, 1986 and those who were in employment on the said date cannot be treated alike as they do not belong to one class. It is not as if a subordinate legislation in the form of Regulation 22 has been enacted for the first time. There are such regulations in force in the case of Central Government and State Governments. Therefore, merely because those who have resigned are placed along with those who are dismissed, rempved or terminated cannot be said to be arbitrary and consequently illegal and null and void being violative of Art.14 also 21 of the Constitution of India. Under the present pension regulations, the employees are aware that if they resign they are not entitled to pension. Before the pension regulations there was no provision for pension. Petitioners cannot be aggrieved that after pension Regulations have come into force resignees are placed along with those who are dismissed or terminated or removed. It is open to the employer when such employer introduces a new scheme to fix a date when the scheme would come into force and to whom the scheme would be applicable. If resignees are placed along with those dismissed, removed or terminated it would be for the petitioners to point out why such classification is unreasonable and consequently violative of Article 14 of the Constitution of India. We have earlier noted the submissions of the petitioners as to why such clubbing is arbitrary. It will not be possible for us to accept the said contention considering that the settlement under the I.D. Act itself provided for as to who would be entitled to pension. Clause 2 of the Settlement clearly sets out that Pension was being introduced as a second retiral benefit and available to those who retired from service from 1st November, 1993 or the date of retirement, whichever is later. Clause 3 of the settlement makes it further clear that it is payable on retirement A distinction is made between those who retired on superannuation and those who voluntarily retired. Once a settlement was in force it was binding on the banks as well as the petitioners before us. Subsequent to the settlement to give effect to the settlement the Regulations had been framed. Therefore, if resignees are placed along with those who are dismissed, removed or terminated it cannot be said to be arbitrary and/or that there is no reasonable basis for such classification. Regulation 22 includes all those who would not be entitled to pension under the Pension Regulations. Merely because there are some Regulations which provide for pension for shorter period of service ipso facto will not result in resignees also being entitled for pension. It is no doubt true that the Division Bench of this Court in Cecil Dennis Solomon (supra) had taken the view that clubbing resignees along with those who are dismissed, removed or terminated will be arbitrary. As noted earlier, that judgment has been set aside. All the four categories are cases of termination of employment either by the employee or the employer. Merely because there are some other regulations which provide for compassionate allowance to those who are dismissed or terminated or removed does not make the regulation null and void. The service of such employees is terminated by the employer. The Regulation confers power on the employer in such cases to period for compassionate allowance. It is not pension as pension cannot be given to such employees. It is also discretionary and not mandatory. Its object being to ward of penury. The burden was on the petitioners to have established that Regulation 22 is arbitrary. The petitioners have been unable to discharge the onus cast upon them in that context. The third contention as raised on behalf of the petitioners has to be rejected.
Once Issue No. 3 is answered against the petitioners it must consequently follow the Issue No. 4 has also been answered against the petitioners.
Thus it becomes clear that the respondent bank for the first time introduced the Pension Scheme applicable from 1-11-1993. The Regulation was made not suo moto, but pursuant to a settlement arrived at with the Union. The settlement is under Sections 2(p) and 18(1) of the Industrial Disputes Act and therefore, is binding on all parties to the settlement including employees working in the Bank. Even to make Regulation 29 applicable this Court would have to read the words voluntary retirement in Regulation 29 as including resignees. The Court would have no such power. Such an interpretation is also not possible. A Court of law does not ordinarily issue directions in the form of subordinate legislation. It strikes down a provision which is arbitrary or illegal. It is only when the ends of justice require and for doing complete justice between the parties and more so in the case of violation of fundamental rights, Courts do sometimes issue appropriate writs and other directions on the facts and circumstances of each case. Regulation 29 itself makes it clear that it will be applicable from 1st November, 1993. It will, therefore, not be open to this Court to read the regulation by omitting the said date. Also considering the terminology in service jurisprudence it is not possible to read the word "resignation" as voluntary retirement and consequently retirement. We are of the considered view that there is no merit in these submissions.
We are only left with the case of heirs of the petitioner No. 13. in that case the said petitioners resignation was accepted on 1-8-1992. On that date he could have opted for voluntary retirement. He fulfilled all the requirements. His case could have been considered under Regulation 3. The case of the original petitioners was that he was unaware of the same. We do not propose to go into the matter. The learned Counsel on behalf of the respondent bank makes a statement that she has instructions that the case of the said petitioner now represented by his legal heirs will be considered as a special case for pension considering the facts and circumstances of the case. We accept the statement made on behalf of the respondent bank and direct the respondent bank to give an opportunity to the legal representatives through the widow of the deceased as to whether they are ready to avail of pension/family pension benefits and in the event they are willing to give up the retiral benefits which are to returned in terms of Regulation 3. If the legal representatives of the deceased accept the
said proposal then they be paid pension/family pension including arrears in terms of the Regulations. The issue of interest after 1994, both by Bank and the L.Rs. on delayed payment can be resolved by the parties.
With the above observations, petition stands disposed of. Rule stands discharged. No order as to costs.
No comments:
Post a Comment