ANSARI A. K. v. BHARAT OVERSEAS BANK LTD. — 1997 DIGILAW 1455 (MAD)

Judgment : Y. VENKATACHALAM, J. ( 1 ) SINCE the petitioners in both these writs happened to be the retired officers of the Bharat Overseas Bank Limited, the first respondent in both these writ petitions and both the petitioners are aggrieved by the denial of pension by the respondent-Bank, both these writ petitions have been taken up together with the consent of both the parties and are disposed of by this common order. ( 2 ) THE petitioner, A. K. Ansari, in W. P. No. 8191 of 1996 has filed in the said writ petition invoking Article 226 of the Constitution for a writ of certiorarifed mandamus to quash the order Reference No. 24/133/96, dated May 7, 1996, and to direct the respondent to pay petitioners pension under the Bharat Overseas Bank Employees (Pension) Regulations, 1995, with effect from November 1, 1993. ( 3 ) THE petitioner, Mr. V. Raman, in W. P. No. 9235 of 1996 has filed the said writ petition invoking Article 226 of the Constitution of India for a writ of certiorarified mandamus to call for the records bearing Reference No. CHSECT/102 of 1996, dated May 4, 1996, and the letter No. 24/110 of 1996, dated May 13, 1996, and to quash the same and to issue a direction to the respondent bank to grant the petitioner the pension and the commuted pension with effect from July 1, 1994, as per the Bharat Overseas Bank Ltd. Employees (Pension) Regulations, 1995, and other benefits of additional pension from November 1, 1994, arrears of basic pay and dearness allowance from July 1, 1993, and the arrears of house rent allowance from November 1, 1992. ( 4 ) THE petitioners have filed separate affidavits in support of their petitions wherein they have narrated all the facts and circumstances which forced them to file these writ petitions. The respondent-bank also has filed separate counter affidavits wherein they have rebutted all the material allegations levelled against them one after the other and prayed that the writ petitions may be dismissed for want of the merits. ( 5 ) ARGUMENTS advanced by Ms. R. Vaigai, learned counsel for the writ petitioners and that of T. K. Seshadri, learned counsel for the respondents were heard. ( 5 ) ARGUMENTS advanced by Ms. R. Vaigai, learned counsel for the writ petitioners and that of T. K. Seshadri, learned counsel for the respondents were heard. I have also gone through the entire material documents available on record with due care together with the contents of the affidavits filed by the petitioners and the counter-affidavits filed by the respondent-bank. ( 6 ) THE point for consideration in these writ petitions is as to whether there are any valid grounds to allow these writ petitions or not. First coming to the facts of W. P. No. 8191 of 1996, the petitioner A. K. Ansari joined the respondent-bank on June 9, 1976, as an officer and retired on December 1, 1992, as a Regional Manager on attaining superannuation. It is to be noted that pension was not of the petitioners service conditions, while he was in the service of the respondents-bank. Originally the respondent-bank formulated a pension scheme in the year 1993 and according to the scheme, the benefits thereof would be available in lieu of contributory provident fund. As per the regulations framed thereunder the employees who are desirous of becoming members of the pension scheme should exercise their option for pension in the prescribed format. The letter of option should be signed in the presence of the head of the department or the manager of the branch and attested by such officers. Any additions or alterations in the text of the form would render the option invalid and accordingly forms were supplied to all the employees who desired to become members of the scheme. The pension scheme and the benefits will be available to the eligible employees including those who retired after June 1, 1986, but before November 1, 1993, provided they exercise their option in the prescribed format. According to the petitioner, he exercised his option for pension even as early as July 27, 1994, but he has been denied his pension on the ground that his signature had not been attested by the designated officer of the respondent-bank under whom he had worked last before the last date for option, viz. , March 19, 1996. That was, according to the petitioner with reference to the second letter of option sent by the petitioner, on February 16, 1996, pursuant to the Banks letter dated February 8, 1996. , March 19, 1996. That was, according to the petitioner with reference to the second letter of option sent by the petitioner, on February 16, 1996, pursuant to the Banks letter dated February 8, 1996. His case is that he has complied with all the formalities for getting his pension and if the respondent-bank wants the petitioner to comply with any other formalities, he is willing to do so even now and contended that he cannot be denied pension on the sole ground that his signature had not been attested before the last date. ( 7 ) PER contra, it is the case of the respondent-bank in the first instance, the petitioner also collected the printed format but he submitted only a typed letter of option after deletion of the column for attestation and also other instructions relating to attestation and according to the respondent-Bank, the petitioner thus deliberately and wilfully submitted an invalid letter of option without attestation and, therefore, the option exercised by the petitioner was not valid. However, it is significant to note that the said pension scheme, 1993, did not come into force. ( 8 ) SUBSEQUENTLY, the respondent-bank formulated a revised pension scheme and the same is governed by the Bharat Overseas Bank Limited Employees (Pension) Regulations, 1995, framed by the Board of Directors of the respondent-bank. The said regulations, inter alia, provide that employees who were in the service of the Bank on or after January 1, 1986, and who retired before November 1, 1993, are eligible to the pension scheme, subject to their exercising their option within 120 days from the date on which the pension regulations came into force. The regulations came into force on November 20, 1995, and as the said date becomes the notified date, the period of 120 days was to expire on March 19, 1996. It is to be noted that as per Regulation 3 (9), an option already exercised by an employee before the notified date should be deemed to be an option under the Banks Pension Regulations, 1995, if such an employee would refund within 60 days from the notified date the amount of the banks contribution to provident fund including interest accrued together with further simple interest till the date of payment. ( 9 ) IT is stated by the respondent-bank that even though this petitioners earlier letter of option dated July 27, 1994, was invalid as detailed in the previous paragraphs, with a view to give another option to the petitioner to avail of the benefits, a fresh format was forwarded by the respondent along with its covering letter dated February 8, 1996, with specific instructions to the effect that the signature should be attested by the head of the department or the manager of the branch where the employee was working at the time of retirement. Here, it is significant to note that this time also the petitioner returned an incomplete form on February 15, 1996, i. e. , without attesting the same. Further, from the counter-affidavit, it is seen that even though the respondents officials contacted the petitioner asking him to rectify the irregularities, he refused to comply with the instructions and did not submit a valid option before the due date, viz. , March 19, 1996, thereby forfeiting his claim to become a member of the Banks pension scheme. Subsequently, the petitioner sent a telex message on April 19, 1996, and then a lawyers notice on May 1, 1996, and tried to rectify the irregularity. But it is stated by the resppndent-Bank that since the letter of option was not in order and the petitioner having failed to comply with the formalities within the prescribed time, the question of rectification of the irregularity did not arise. Further, it is another significant aspect to note that when the respondent-Banks officials requested the petitioner on two occasions to rectify the mistakes, the petitioner did not care to do so and also informed the respondent that his signature can be verified from the records of the bank and that shows the attitude of the petitioner. Further, yet another significant aspect to be noted in this case is that both the letter of options of the petitioner under 1993 and 1995 pension regulations were defective for want of attestation and even when that was brought to his notice, he did not care to do so. Further, yet another significant aspect to be noted in this case is that both the letter of options of the petitioner under 1993 and 1995 pension regulations were defective for want of attestation and even when that was brought to his notice, he did not care to do so. On a careful perusal of the affidavit of this petitioner, it is seen that he has not clearly explained that two letters of option were sent by him and both of them without his signature being not attested as required by the regulations, he rather concealed these things in his affidavit and, therefore, it is clear that this petitioner has not come forward before this Court with clean hands. Now, coming to the facts of the other writ petition W. P. No. 9235 of 1996, the petitioner, Raman, joined the respondent-Bank on January 3, 1977, as a grade II officer and retired on June 30, 1994, as scale-IV officer on superannuation. Here, according to the petitioner herein even on September 28, 1994, he opted for pension as per the Regulations, 1993, which was amended in 1995. It is his case that after the Regulations, 1995. were framed, even though some of his colleagues received the option form, he did not receive such an option form though it was stated by the Bank that such a form has been sent to him by ordinary post and his grievance is that the bank stated that his option letter dated September 28, 1994, was not in order and that he was not entitled to pension because he did not exercise his option before the prescribed time, viz. , March 19, 1996. ( 10 ) PER contra, the respondent-bank contended that even though at the time of Regulations, 1993, this petitioner also collected the printed format, he chose to submit a typed letter or option dated September 28, 1994, after altering the text of the printed format and without getting his signature attested and that the petitioner thus deliberately and wilfully submitted an invalid letter of option without attestation and, therefore, the option exercised by the petitioner was not valid. Further, subsequently, after the Regulations, 1995, though the petitioners earlier letter of option dated September 28, 1994, was invalid, with a view to give another option to the petitioner to avail of the benefits, a fresh format was forwarded by the respondent along with a covering letter dated February 8, 1996, with a specific instruction to the effect that the signature should be attested by the head of the department or the manager of the branch where the employee was working at the time of retirement. As stated in the earlier case, under the Regulations, 1995, the employees have to exercise their option within 120 days from the notified date November 21, 1995; and the said period of 120 days expired on March 19, 1996. But only after the expiry of the time-limit the petitioner addressed a letter dated April 11, 1996, to the Chairman of the respondent-bank enquiring about the pension and on April 23, 1996, he addressed another letter complaining that he had not received the letter of option for which a reply dated May 4, 1996, was sent as to how the petitioner would not be entitled to the benefits of the pension scheme, since he failed to submit the letter of option within the specified time and that when the petitioner sent a legal notice a reply was sent by the bank on May 13, 1996, informing that since the petitioner had failed to exercise the option within the time, it was not open to him to claim any benefit under the pension scheme. ( 11 ) FURTHER, here it is the case of the respondent that inspite of the respondent forwarding a fresh option format on its own on February 8, 1996, with instructions that the same should be completed and returned on or before March 19, 1996, the petitioner did not exercise the option at all and that the letter of option was sent to all the employees only by ordinary post. It is also stated on behalf of the respondent that though there was no obligation cast upon the respondent, to send a fresh format, the Bank did so, but the petitioner did not choose to exercise the option within the specified time under the Pension Regulations, 1995. It is also stated on behalf of the respondent that though there was no obligation cast upon the respondent, to send a fresh format, the Bank did so, but the petitioner did not choose to exercise the option within the specified time under the Pension Regulations, 1995. It is also submitted by the respondents that it is not incumbent upon the respondent to send communication to all the retired employees to exercise their option, when the IBA of which this respondent is a member had issued a press release to the employees to contact their head office. It is stated by the respondent that in spite of this position the respondent had sent a communication dated February 8, 1996, to the petitioner. ( 12 ) FURTHER, in this case, it is an admitted fact that there was a long pending litigation between the petitioner and the Bank in regard to the voluntary retirement matter of this petitioner and in that regard, they went up to the Supreme Court. The petitioners contention is that the bank had this in mind in not settling his pension and they are teasing him because he dragged them to Court. The respondent denied the said allegation and stated that there is no mala fide Or illegality or arbitrariness as alleged in the affidavit. It is the main contention on behalf of the respondent-bank that when the petitioner has failed to exercise his option within the specified time, nothing more can be done by this respondent and the petitioner for his fault cannot blame the respondent. ( 13 ) IT is significant to note that in this case also, while exercising the option under the Regulations, 1993, the petitioner failed to submit his option in a valid manner and as prescribed by the said Regulations. It is also significant to note that even though he collected the printed format, he chose to submit a typed letter of option dated September 28, 1994, as in the other petitioners case, after altering the text of the printed format and without getting his signature attested and, therefore, it is clear that this petitioner deliberately and wilfully submitted an invalid letter of option without attestation and that, therefore, the option exercised by the petitioner was not valid. Further, subsequently even after the Regulations, 1995 with a view to give another option to the petitioner to avail of the benefits, a fresh format was forwarded by the respondent along with its covering letter dated February 8, 1996, and it was sent to the petitioner also by ordinary post as in the case of all the employees. It has to be accepted that it is not incumbent upon the respondent to send communication to all the retired employees to exercise their option, when the IBA of which this respondent is a member had issued a press release to the employees to contact their head office. The petitioner has failed to fulfil the prescribed conditions while first sending his option i. e. he forwarded his option without getting his signature attested as specifically prescribed under the Regulations. Not only that in both the cases, the petitioners concerned though have collected the printed format chose to submit only a typed letter of option after altering the text of the printed format and without getting their signature attested. Further, in this case, though according to the petitioner he did not receive the fresh format, it is not his case that he had no knowledge about the details in regard to the same. He himself stated that some of his colleagues have received the option form. That being so, he might have also noticed all the other details including that of the last date. In that case, it is his duty to get such a form by contacting the authorities in person. One cannot expect that things may be got done by phone and correspondence only. As seen from the facts of both these cases, both these petitioners took it as a prestige issue and avoided any personal contact with the authorities concerned in clearing their doubts, if any. Further, this petitioner cannot also deny the knowledge of the issuance of the fresh forms and the expiry date. Because, it is admitted that the IBA has issued a press release in all the leading magazines about these things. Having failed in their first attempt these petitioners could have atleast availed of the next chance they got. But, both of them miserably failed in doing so. Having failed in both the times, it is not fair on the part of the petitioners blaming the respondents on one ground or the other. Having failed in their first attempt these petitioners could have atleast availed of the next chance they got. But, both of them miserably failed in doing so. Having failed in both the times, it is not fair on the part of the petitioners blaming the respondents on one ground or the other. ( 14 ) IT is settled law that if a statute or law or regulations prescribe certain things to be done in a particular way, they have to be done only in that way and their compliance in any other way is not at all compliance and it is violation of the said rule, law or regulation. Admittedly, in both these cases even at the first instance, i. e. , during the Regulations, 1993, when the respondent-Bank itself issued printed format and wanted that it has to be followed strictly as prescribed in the said Regulations. The petitioners neglecting that printed form conveniently submitted only a typed letter option that too, after altering the text of the printed format and without getting their signature attested. Though in the second case W. P. No. 9235 of 1996, the petitioner pleaded non-receipt of fresh format during the second time, that was not accepted by the Court for the reasons stated earlier. Whereas in the case of the petitioner in W. P. No, 8191 of 1996, even during the second time he forwarded his option without getting his signature attested just like as he did in the first time. It is significant to note that when the officials tried to get the defect rectified, and wanted his signature to be attested, he informed the respondent Banks officials that his signature can be verified from the records and also it is alleged by the respondent that this petitioner refused to talk with the Personnel Manager and disconnected the line and further he had informed the respondents officials that he was not inclined to speak with the personnel manager. Having done all these things, it is now belatedly pleaded by him that if the respondent-bank wants him to comply with any other formalities he is willing to do so, even now. But on the next line itself he has categorically stated that he cannot be denied pension on the sole ground that his signature had not been attested before the last date. This only shows his attitude and adamant nature. But on the next line itself he has categorically stated that he cannot be denied pension on the sole ground that his signature had not been attested before the last date. This only shows his attitude and adamant nature. Further, it is admitted even by his own submission in the affidavit that his signature has not been attested, which is prescribed specifically under the regulations. His conduct shows that as he was a regional manager, probably he might have thought that he need not follow the conditions prescribed by the Regulations. Otherwise, there is absolutely no occasion for him to deliberately forward his options without his signature attested as prescribed, in both the chances available to him. Before law everybody is equal and nobody is above law. Even if he is Regional Manager or General Manager or even a Branch Manager or ordinary officer law is common to all. If a rule or regulation prescribes that certain things are to be done in a particular way, that has to be done or complied with only in such a manner and there is no exemption for anybody whoever may be and whatever his position may be. Therefore, on a detailed discussion made by me in the above paragraphs and in the facts and circumstances of these cases, I come to the conclusion that there is absolutely no merit in both these writ petitions and they are liable to be dismissed. ( 15 ) LEARNED counsel appearing for the parties have cited so many decisions in support of their case. It is the case of the respondent that the writ petitions are not maintainable because the respondent-Bank is a company incorporated under the provisions of the Companies Act, 1956 and that, therefore, the respondent herein is not a State or other authority or an instrumentality of State within the meaning of Article 12 of the Constitution of India and hence the respondent is not amenable to the writ jurisdiction of this Court. In support of the said contention, Mr. In support of the said contention, Mr. T. K. Seshadri, learned counsel for the respondent Bank, relied upon a decision in Praga Tools Corporation v. C. V. Manual, wherein it has been held that, the company being a non-statutory body and one incorporated under the Companies Act, there is neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus nor is there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. He also relied on the decisions in Arun Madan v. Oriental Bank of Commerce, 1987 Suppl SCC 535, wherein it was held that the order of termination of the service of the appellant was passed before the respondent-Bank was nationalised. The High Court was, therefore, right in holding that a writ petition under Article 226 of the Constitution was not maintainable against an order made when the Bank was a public limited company. Therefore, the appeal is dismissed. No costs. ( 16 ) PER contra learned counsel for the respondent Ms. R. Vaigai relied on the decisions in Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust v. V. R. Rudani, wherein it has been held that, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty, there is no such limitation for our High Courts to issue the writ in the nature of mandamus, Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to any person or authority. It can be issued for the enforcement of any of the fundamental rights and for any other purpose. Learned counsel for the petitioners, Ms. This is a striking departure from the English law. Under Article 226, writs can be issued to any person or authority. It can be issued for the enforcement of any of the fundamental rights and for any other purpose. Learned counsel for the petitioners, Ms. R. Vaigai, also relied on the decisions in Madras Labour Union v. Binny Ltd. , 1995-I-LLJ-588 (Mad-DB) wherein it was held : that a writ will issue against a private body to protect the fundamental rights declared under Part III of the Constitution of India, and contended that in this case because of the arbitrary denial of pension even though the petitioners are qualified to and eligible to receive the same, it is in gross violation of Article 21 of the Constitution of India, the petitions filed by the writ petitioners herein invoking Article 226 of the Constitution against the respondent-bank are maintainable. There is force in such contention in view of the pronouncements of the Supreme Court cited by learned counsel for the petitioners. Therefore, the contention raised by the respondent Bank that these writ petitions are not maintainable because the respondent-Bank is a company incorporated under the provisions of the Companies Act, 1956, and it is not a State or authority within the meaning of Article 12 of the Constitution of India and hence the respondent is not amenable to the writ jurisdiction of this Court, cannot at all be accepted. For the reasons stated in the pronoucement of the Supreme Court and of our High Court as cited above and as they squarely apply to the facts and circumstances of the case, this Court held that these writ petitions are maintainable before this Court under Article 226 of the Constitution of India. But, however, for the reasons stated in the previous paragraphs of this order, this Court has already come to the conclusion that these writ petitioners have not made out a case for the interference of this Court under Article 226 of the Constitution of India and that there is absolutely no merit in these writ petitions and that, therefore, they are liable to be dismissed. ( 17 ) IN the result, both these writ petitions are dismissed. No costs.