Barid Baran Banerjee v. State Bank of India — 1997 DIGILAW 406 (CAL)

JUDGMENT SATYABRATA SINHA, J. 1. This appeal is directed against a judgment and order dated 31.5.91 passed by a learned single Judge of this Court in C.O. No. 4830 (W) of 1988 whereby and whereunder the said learned Judge dismissed the writ application filed by the writ petitioners. 2. The fact of the matter shortly stated is as follows:- The petitioner nos. 1 to 3 are retired employees of the State Bank of India. Originally, they were appointed as Clerks in Imperial Bank of India. Petitioner No.4 is an association of pensioners of the State Bank of India. Allegedly Imperial Bank of India provided 2 retiring benefits to its employees one being contributory provident fund with contributions on either side of 5% of basic salary of the employees and also guaranteed a pension out of pension section of a fund known as Imperial Bank of India Employees' Pension and Guarantee Fund. Both the aforementioned funds vested in the trustee, who was arrayed as respondent no.2. An industrial dispute was raised by the employees of the State Bank of India, and the said dispute was referred to a Tribunal known as Shastri Tribunal. An award was made by the said Tribunal in the year 1954. As against the Award of the said Tribunal, an appeal was preferred. By reason of the Award of the said Tribunal, recovery and/or realisation of contribution from the employees since July 1931, had been directed to be discontinued. According to the writ petitioners, as despite the said direction, contributions made by them from 1931 onwards were not refunded, they filed the aforementioned writ application. 3. The learned trial Judge upon taking into consideration all aspects of the matter, inter alia, held that paragraphs 410, 411, 412, 413 and 414 of Shastri Award would show that thereby compulsory contribution by the employees to the pension fund was stopped, and the counsel appearing on behalf of the employees did not press for refund of the contribution made in the past, and reserved the right to take proceedings elsewhere with regard thereto. It is stated that the recommendation of the said Tribunal in terms of the said Award was given effect to. 4. Imperial Bank of India, in terms of the provisions of State Bank of India Act, 1955, stood transferred to and vested in State Bank of India with effect from 1.7.55. It is stated that the recommendation of the said Tribunal in terms of the said Award was given effect to. 4. Imperial Bank of India, in terms of the provisions of State Bank of India Act, 1955, stood transferred to and vested in State Bank of India with effect from 1.7.55. It appears that some of the retired employees of the State Bank of India filed a writ petition in the High Court of Judicature at Bombay marked as Writ Petition No. 3136 of 1982 and Rege, J, speaking for the Division Bench, by a judgment and order dated 19th July 1983, inter alia, found the Various Officers who retired thereafter and who had paid contribution to the fund during their service made an application to the State Bank of India for the refund of contribution made by them to the fund between 1st July 1955 and 1st April 1968. It was held:- "There does not appear to be any serious challenge to the claim of the petitioners. According to the Id. counsel for the State Bank of India in fact the Bank had recommended the said payment to the Union of India, respondent no.3 for its sanction. The stand taken by the Union of India is that they are not concerned with the said payment as the State Bank of India was an autonomous body. However, the learned counsel for the Union of India has stated that the Union of India has no objection to whatever order that this court may pass in connection with the said refund. In that view of the matter, in our view, the petitioners would be entitled to the refund of their contribution to the said pension fund made by them between the period 1st July 1955 and 1st April 1968." 5. In this writ application, however, the petitioners have, inter alia, prayed for issuance of a Writ of or in the nature of Mandamus commanding the respondents to refund the contribution of the petitioners with interest rand further commanding the respondents to give better pensionary benefit out of the pension fund including increased D.A. and medical aid to the petitioners and other pensioners. 6. A bare perusal of the judgment passed by the learned trial Judge, however, would show that the writ application was confined only to the prayer of refund of the said contribution made by the writ petitioners. 6. A bare perusal of the judgment passed by the learned trial Judge, however, would show that the writ application was confined only to the prayer of refund of the said contribution made by the writ petitioners. The learned trial Judge while dismissing the writ application, inter alia, observed that – (a) no proceeding had been taken from the date of Shastri Award till 1988 although the said Award was passed in 1962; (b) the said Shastri Award or the Desai Award following the Shastri Award did not order for any refund of contribution and thus it must be held that such a prayer was refused; (c) it was further observed-Moreover, it was admittedly a part of the conditions of the ex-employees of the Imperial Bank of India which provided that contribution of the 5% of the salary to the pension fund since 1931 and as such contribution continued till Shastri Award recommended its stoppage and the State Bank of India as the successor Bank of Imperial Bank of India stopped such contribution. But when such contribution to the pension fund was in terms of the Rules prevalent governing the then employees of Imperial Bank of India it was part of their service conditions. Therefore, the employees contributed 5% to their salary treating the same as part of their conditions of service to enjoy their pension from the pension fund. However, that contribution was subsequently stopped. But the stopping of such contribution by the employees did not render the contributions so far made illegal and void. On behalf of the petitioners it is urged that the Supreme Court in AIR 1983 SC 130 has clearly held that the pension is a right which accrues to an employee as result of the past service rendered by the employees to the employer and it is, therefore, the settled law that in order to enjoy such pension no employees has to contribute anything and the contribution as far made must, therefore, be treated to be illegal. There is also strong force in the submission of the respondents that even the contribution of the employees to the pension fund were not at all adequate to cover all the pensionary benefits which the ex-employees of the Imperial Bank of India are still enjoying. 7. There is also strong force in the submission of the respondents that even the contribution of the employees to the pension fund were not at all adequate to cover all the pensionary benefits which the ex-employees of the Imperial Bank of India are still enjoying. 7. The learned Trial Judge, however, noticed that the amount of pension has since been revised to a great extent and the ex-employees of the Imperial Bank of India are now being paid pension from the fund, which is now wholly contributed by the Management. 8. Mr. Bhattacharya, the learned counsel appearing on behalf of the appellant-petitioners, inter alia, submitted that reliance placed by the learned Trial Judge in the judgment of the Apex Court in D.S. Nakara vs. Union of India has been subsequently followed and in that view of the matter keeping in view the observation made in the Awards known as Shastri Award and Desai Awards, the court should have taken into consideration the grant of reliefs prayed for. The learned counsel has also drawn our attention to a letter dated 7th April, 1987 as contained in annexure 'B' to the writ application, wherein also the judgment of the Bombay High Court aforementioned has been referred to. In that letter it was stated that:- "We wish to bring to your notice that no contributions during this period were collected from employees of the Bank Governed by Award as equal to Award of Shastri Tribunal. In other words, the Bank's Pension Fund became non-contributory for the Award employees with effect from 1.7.1955. On the basis of Bombay High Court's order the pension Funds have become non-contributory for officers as well with effect from 1.7.1955. Prior to 1.7.1955, the funds were contributory and contribution made by members have not been refunded to any category of members except as provided specifically in the fund Rules i.e. in case of death etc. These rules are equally applicable to all members including your clients. You will, therefore, observe that there has been neither any discrimination nor is there any merit in your claim for refund of contribution to your clients." 9. Mr. These rules are equally applicable to all members including your clients. You will, therefore, observe that there has been neither any discrimination nor is there any merit in your claim for refund of contribution to your clients." 9. Mr. Chakraborty, learned counsel appearing on behalf of the respondent, on the other hand submitted that although contributions were made by the employees of the then Imperial Bank of India since 1931, even no particulars thereof are available and as such the learned trial Judge was perfectly justified in passing the impugned order. 10. Having heard the learned counsel for the parties, we are of the opinion that keeping in view the judgment of the Bombay High Court and annexure 'B' to the writ application aforementioned, there cannot be any doubt that the respondents were bound to refund the contributions made by the petitioners, if any, between the period 1st July, 1955 and 1st April, 1968. However, we are also of the opinion that the learned trial Judge has rightly held that the claim of the petitioners to obtain a writ of mandamus directing the respondents to refund the entire amount of contribution from 1931 onwards should not be granted on the ground that the claim is a stale one. Admittedly, Desai Award was passed in the year 1962. The writ application was filed in the year 1988. For all over those years the petitioners did not take any steps despite the fact that the counsel appearing on their behalf before Shastri Tribunal had not pressed the claim of refund but merely stated that they would do the same before an appropriate forum if so advised. Such a stand was taken by the employees of the State Bank of India as far back as in the year 1954. The petitioners, therefore, must be held to have been sleeping over their rights for a long time and in that view of the matter, we are of the opinion that the learned Trial Judge cannot be said to have arbitrarily refused to exercise his discretion in granting an equitable relief to the petitioners on the ground of delay. It is now well known that while a discretion has been exercised by a Court, the appeal court does not interfere therewith unless the same appears to be against a principle of law. It is now well known that while a discretion has been exercised by a Court, the appeal court does not interfere therewith unless the same appears to be against a principle of law. In Gujarat Steel Tubes Limited vs. Gujarat Steel Tubes Mazdoor Sabha & other, AIR 1980 SC 1896 , the Apex Court has clearly stated that in the matter of exercising appellate power in respect of a matter arising out of an order passed by a learned Judge exercising his discretionary jurisdiction, the appeal court will not interfere only because another opinion is possibly to be taken. It is stated that the appeal court would not interfere when the judgment is not right but when the judgment is clearly wrong. 11. So far as the ground of delay is concerned, the question has also been considered by the Supreme Court in Hamsaveni & other vs. State of T.N. & other, 1994(6) SCC 51 . 12. For the reasons aforementioned, we allow the appeal in part and direct that the respondent shall refund the contributions made by the petitioners, if any, in between the period 1st July, 1955 and 31st March, 1968, if not already refunded. The petitioners or any other member of the petitioner no.4 Association may furnish particulars about the contributions made by them in between the aforementioned period and the State Bank of India shall make necessary refund in terms of this order within twelve weeks from the date of furnishing of such particulars and upon verification of records. So far as the petitioner nos. 1 to 3 are concerned, as their names and designation have clearly been stated in the writ application, we have been assured that the refund of contributions in terms of this order shall be made within six weeks from date if not already paid. 13. In the facts and circumstances of this case, there will be no order as to costs. 14. Let a plain copy of the operative portion of this order duly countersigned by the Assistant Registrar (Court) be handed over to the learned counsel for the parties on usual undertaking. I agree. Appeal allowed in part.