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2007 DIGILAW 285 (CAL)

Shibendra Mohan Kushari v. Central Bank of India

2007-04-12

PRATAP KUMAR RAY, TAPAS KUMAR GIRI

body2007
ORDER Heard the learned advocates appearing for the parties. 2. The appellant/writ petitioner moved the writ application seeking relief of payment of retirement benefits under the pension scheme as introduced by the respondent Bank in terms of the Regulation called as "Central Bank of India (Employees) Pension Regulation, 1995 by accepting the option of such change from contributory provident fund scheme to the Pension Scheme as introduced by considering the refund issue of employer's contribution and the interest thereof in terms of the said Regulation 3(9) on applying the provision oft netting that is provision of adjustment of the said amount from the commuted value of pension in tenl1S of the notification of the Bank itself dated March 24, 1995. 3. The learned Trial Judge rejected the writ application on the ground that the option was not rightly exercised as employer's contribution along with the interest thereof in terms of contributory provident fund was not refunded. The learned Trial Judge has not addressed the issue about the adjustment of the said amount from the commuted value of pension and refund of the amount, if any, is possible in terms of the provision of netting as introduced by the concerned Bank in terms of their circular dated March 24, 1995 as well as in terms of the earlier decision of the Small Committee on Pension held on March 26, 1994 read with the clarification of queries as made by the Indian Bank Association with reference to the Question No.5 as formulated thereof on that issue. Before us the appellant filed an application praying for consideration of additional fact that other seven employees identically placed like the petitioner got the benefit of netting that is adjustment of refund of contributory provident fund with commuted value of pension. The Bank/respondent has filed an affidavit answering the issue. But unfortunately the Bank by affirming an affidavit by one Shri Satish Vasant Bhisa who is holding the post of Assistant General Manager of respondent No. 1 has not answered the issue 4 straightway. In the affidavit neither was any denial that seven employees identically placed with the writ petitioner/appellant was benefited. Only plea has been taken that before the Appeal Court such fact cannot be agitated and as the records were not available the appropriate answer could not be advanced. We will deal with that affidavit later on. 4. In the affidavit neither was any denial that seven employees identically placed with the writ petitioner/appellant was benefited. Only plea has been taken that before the Appeal Court such fact cannot be agitated and as the records were not available the appropriate answer could not be advanced. We will deal with that affidavit later on. 4. The rejection of the writ petition by the learned Trial Judge by its judgment and order dated January 10, 2005 passed in W.P. No. 16557 (W) of 2004 against which the appeal has been preferred is only on the ground that there was no refund of the employer's share of contribution and interest thereof as enjoyed by the writ petitioner under the contributory provident fund scheme. The learned Trial Judge held that the writ petitioner was eligible to opt for pension scheme, that the writ petitioner applied for commutation of pension and also held that the petitioner duly filed option seeking transfer from contributory provident fund scheme to pension scheme as introduced by the said Regulation of 1995. The learned Trial Judge refused the relief only on the ground of non-refund of the employer's share of contribution with interest within the stipulated time in terms of Regulation 1995 and pat1icularly Clause 3(9) of the said Regulation. The learned Trial Judge, however, did not address the issue about the availability of the netting facilities. 5. Now, let us consider the issue as to whether the writ petitioner made out a case for adjustment of the amount of contribution of employer's share along with interest thereof as enjoyed by the writ petitioner under the contributory provident fund scheme with commuted value of pension on application of the netting principle which as a policy matter was accepted by the Bank and applied in respect of many employees. 6. We will discuss the issue of netting as the same will throw an answer to the point. In the meeting of the Small Committee on Pension held on March 26, 1994 pursuant to the settlement/joint note on pension signed by the Indian Bank Association with the Workmen Unions/officers Organisation on October 29, 1993, Clause (6) was accepted providing the scope of netting that is adjustment of refund of employer's contribution under contributory provident fund scheme with commuted value of pension. The relevant portions of the Minutes of the Small Committee on Pension reads such: "a small committee consisting of representatives of BEFI and INBEF were included subsequently, to go into details of the pension regulations covering applicability, qualifying service, amount of pension, payment of pension, commutation, family pension, updating and other general conditions. The terms of reference for the committee was to formulate regulations to be adopted by individual boards of the banks for setting up pension fund. This was to be done on similar lines as Reserve Bank of India Pension Regulations applicable to Reserve Bank of India employees, and Central Civil Services (Pension Rules) applicable to Central Government employees, by making applicable to Central Government employees, by making suitable modification in relation to its applicability to the banking industry. Two separate Committees consisting of IBA representatives and representatives of officers' association/workmen unions deliberated on the draft regulations on various dates. 4. Regulation 22(ii) of Chapter V on Family Pension may be substituted as per Annexure- 3 The draft circulated was mutually accepted by the concerned parties. The following points were further discussed and accepted…. 6. Netting of commutation and CPF refund should be provided." The Indian Bank Association also clarified certain queries raised by some of the Banks including the query in respect of such adjustment of refund with commuted value of pension. The Question No. 5 was clarified by holding that netting would be allowed and the retiree only to repay the amount as would' remain payable after deduction of the commuted amount of pension from the amount determined for refund. The Question No.5 and the answer thereof being relevant for us in, deciding the appeal is quoted hereinbelow: . "Q.5. Whether retirees who opt for pension can be allowed the facility of netting while refunding the PF amount? A. Pursuant to the discussions held with the unions/officers' organisation on March 24, 1994, it was agreed that 'netting' would be allowed. Accordingly, bank may require the retiree to repay only that amount which remains after deducting the commuted amount of Pension from the amount determined for refund i.e. provident fund balance plus interest thereon." 7. On October 26, 1995 the Pension Regulation of 1995 was circulated to all the Officers and Branches by the Central Bank of India. Accordingly, bank may require the retiree to repay only that amount which remains after deducting the commuted amount of Pension from the amount determined for refund i.e. provident fund balance plus interest thereon." 7. On October 26, 1995 the Pension Regulation of 1995 was circulated to all the Officers and Branches by the Central Bank of India. The Regulation 3(1)(a) of the said regulation allowed the writ petitioner who retired before the November 1, 1993 to enjoy the pension scheme as introduced. Clause 3(9) of the said regulation also provides that if any option is exercised prior to coming into effect of such regulation in view of the draft circular of regulation, which is applicable in the instant case of the writ petitioner as he applied before coming into effect of such regulation, would be considered as exercise of option by the retiree, but the retiree should refund within 60 days from the notified date, the amount of bank's contribution to the provident fund including interest accrued thereon together with further simple interest in accordance with the provisions of this chapter. Clause (3)(i)(a) and 3.9 reads such: "3(i) (a) were in the service of the Bank on or after the January 1, 1986 but had retired the November 1, 1993…….. (9) Notwithstanding anything contained in sub-regulations (1), (2), (3), (5) and (8) an option exercised before the noticed date by an employee or the family of a deceased employee in pursuance' of the settlement shall be deemed to be an option for the purpose of this chapter if such an employee or the family of deceased employee refund within Sixty days from the notice date the amount of the bank's contribution to the Provident Fund including interest accrued thereon together with a further simple interest in accordance with the provision of this chapter and in case employer's contribution of Provident Fund has not been received from Provident Fund Trust, has authorised or authorises within Sixty days from the notified date the Trustees of the Provident Fund of the Bank to transfer the entire contributions of the Bank to the Provident including interest accrued thereon in accordance with the provisions of this Chapter to the credit of the Fund constituted for this purpose under Regulation 5." 8. This Regulation as already observed by us, was circulated on October 26, 1995 and prior to that as a policy decision, the respondent No. I took a decision of netting that is adjustment of refund of amount of contributory provident fund and interest thereof with commuted value of pension on March 24, 1995 by issuing circular from the Central Office, Provident Fund under CO: PRS: Pension:94-95:3715, a circular letter. This was issued by the Deputy General Manager (PRS) Central Bank of India. The said circular in extenso is quoted hereinbelow: "CO:PRS: Pension: dated March 24, 1995. 94-95: 3715 All Zonal Offices/Regional Offices Reg. Introduction of Pension Scheme Please refer to our letter No. CO/PRS/ PF/Pension/94-95/3575 dated March 3, 1995 for kind attention of the Zonal Manager and the reply whereof is still awaited. We draw your attention to the penultimate paragraph of our above letter "and have your compliance report immediately having forwarded all the formats to Central Office, Provident Fund Department (Pension). ............. 1. Netting It has been provided in the regulations that employees who retired between the period January 1, 1986 and October 31, 1986 shall refund the CPF balances on account of the employer together with the interest thereon to the bank. A retiree who opts for communication would be eligible to receive the commuted amount of pension from the bank. In order to reduce the hardship, it has been decided and communicated to the banks that the employee may pay only the difference between what he has to refund to the bank and what is due from the bank to him in the form of commuted pension, since the implementation of the pension regulations may take some more time, for the purpose of netting, the amount of commuted pension and the arrears of pension payable from November 1, 1993 to the actual date of implementation may also be taken into account. 2. Determination of common date for making the communication absolute for employees who have retired between January 1, 1986 and October 31, 1993. In terms of Regulation 17 of Pension Regulations, a pensioner may surrender upto maximum of 1/3rd of the pension admissible to him by way of commutation and receive in lieu thereof lumpsum determined in accordance with the commutation factor. The commuted value of pension depends upon the age of the pensioner on his next birthday. In terms of Regulation 17 of Pension Regulations, a pensioner may surrender upto maximum of 1/3rd of the pension admissible to him by way of commutation and receive in lieu thereof lumpsum determined in accordance with the commutation factor. The commuted value of pension depends upon the age of the pensioner on his next birthday. It is further provided that commutation of pension becomes absolute from the date of the medical certificate given by the bank's medical officer if such commutation is required for after one year from retirement. Since the pension regulations may take some time for actual implementation and since completion of the formalities of medical examination of all the retirees may also take sometime, it was felt necessary to determine a common date on which commutation will become absolute. It has now been decided that for employees who retired between January 1, 1986 and October 31, 1993 the date for determining commutation (subject to medical examination) may be one year from the date of retirement or November 1, 1993 whichever is later. This will ensure uniformity in all banks. 3. Interest rate of refund of CPF balances in case of employees who retired after November 1, 1993 till date of effective implementation of pension Regulations. We had communicated that in case employees who retired on or after November 1, 1993 the rate of interest applicable would be the prevailing rate as applicable to PF Many representations have been received that such a rate, which differs from bank to bank is rather too high. Employee's union have also been requesting that the rate interest to be paid by employees who retired on or after November 1, 1993 be lowered. It has been decided by the Managing Committee that employees who retired on or after November 1, 1993 shall also be required to refund the PF balances to the bank with simple interest at the rate of 6% per annum." 9. On a bare reading of Clause (1) under the heading 'Netting' of the said circular it appears that the retiree who opted like the petitioner, the pension scheme under Regulation 1995 were granted the benefit to avoid hardship namely the adjustment of the refund of P.F. money with commuted value of pension. 10. On a bare reading of Clause (1) under the heading 'Netting' of the said circular it appears that the retiree who opted like the petitioner, the pension scheme under Regulation 1995 were granted the benefit to avoid hardship namely the adjustment of the refund of P.F. money with commuted value of pension. 10. Another circular letter of the Bank being RO:JAL:PRS: 95-96/1528 dated January 3, 1996 speaks that with due concurrence of the Government it was decided that the netting facilities as advised in circular letter No. PD:CIR:76/G(11)/1846 dated February 18, 1995 could be applied to the families of such retired employees who have since deceased as well as the other retired employees. This circular letter reads such: "RO:JAL:PRS:95-96/1518 dated January 3, 1996 All Branches. Reg: Central Bank of India (Employees) Pension Regulations 1995 - Withdrawal of option…….. (A) Option (1) Those who have already exercised option for pension and wish to continue to be members of the Pension Scheme need not, exercise fresh option .. (2) Those who have not exercised option for Pension and now wish to become members of the Pension Scheme may exercise option within the period stipulated in Regulation 3. (3) Those who have exercised option for pension on or before November 30, 1994 and now wish to withdraw the option exercised for any reason may be permitted to withdraw the same. However, option exercised after September 29, 1995 in terms of Regulation 3 of Bank (Employees) Regulations, 1995 shall be final and cannot be revoked. (4) All employees, who retired from the services of the Bank on or before January 1, 1986 but before the Notified Date and eligible for pension in terms of Pension Regulation and the families of such retired employees, who are since deceased, may be permitted the facility of 'Netting' as advised in PD:CIR:76/ G(1 D/1846 dated February 18,1995." The above has the concurrence of the Government..." 11. Hence, the respondent No. 1 once has issued such circular letter accepting as a policy decision to allow netting that is adjustment of refund with commuted value of pension, cannot take the plea that option has not been properly exercised under Clause 3(9) of the Regulation as within the time schedule the employer's contribution thereof was not refunded. Hence, the respondent No. 1 once has issued such circular letter accepting as a policy decision to allow netting that is adjustment of refund with commuted value of pension, cannot take the plea that option has not been properly exercised under Clause 3(9) of the Regulation as within the time schedule the employer's contribution thereof was not refunded. It is an ill-plea on the mouth of the respondent No.1 the Central Bank of India who is bound as per its own circular letter and in the instant case despite filing of the application praying commutation of pension before the year 1995 with proper medical certificate and filing of option for transfer of the pension scheme, the Bank when had the duty and responsibility to decide the issue in terms of netting provision by directing the writ petitioner/ appellant on working out the mathematical calculation of the total amount of refund of provident fund money which is the liability of the writ petitioner/appellant on adjusting the same with commuted value of pension the Bank did not take any action and slept over the matter. Here lies an arbitrary and unfair action of the Bank. 'The Central Bank of India is a Nationalised Bank and the principle that the State must act as a model employer is squarely applicable so far as dealing of the Bank with their employees concerned including retirees. The writ petitioner/appellant by way of supplementary affidavit has taken a categorical point by giving the names of the seven employees who were granted same benefit of netting being identically situated like the writ] petitioner/appellant namely, retiree prior to the year 1993, by giving the details in paragraphs 2(iii), (iv) and (v). Such supplementary affidavit reads such: "2(iii) - In terms of the facilities of netting] provided in the circular dated March 24, 1995 which has issued prior to notification dated September 29, 1995 (In short said Notification) and circular dated January 3, 1996 issued after said notification Central' Bank of India has provided such netting facilities to employees some of whom are known to me. Their names and addresses are given hereinbelow: Name of the employees Year of retirement (1) Hriday Ranjan Chakraborty 1987 Pandapara Road, Subhas Lane, Jalpaiguri: P. O. and District, Jalpaiguri. (2) Hrikesh Gupta Sharma 1988 New Town Para, P. O. And District Jalpaiguri. (3) Gopal Chandra Chakraborty 1990 Seshbatti, Pandapara Road, P. O. An District-Jalpaiguri. Their names and addresses are given hereinbelow: Name of the employees Year of retirement (1) Hriday Ranjan Chakraborty 1987 Pandapara Road, Subhas Lane, Jalpaiguri: P. O. and District, Jalpaiguri. (2) Hrikesh Gupta Sharma 1988 New Town Para, P. O. And District Jalpaiguri. (3) Gopal Chandra Chakraborty 1990 Seshbatti, Pandapara Road, P. O. An District-Jalpaiguri. (4) Anil Sarkar 1990 Mohantapara Extension, P.O. and District-Jalpaiguri. (5) Probodh Chandra Mukherjee 1990 Mohantapara Extension, P.O. and District-Jalpaiguri. (6) Rabindranath Bhattacharya 1990 BD-72. Salt Lake City, Kolkata 700064. (7) Amal Krishna Aikath BS-178, 1987 Salt Lake City, Kolkata-700064. 2(iv) - From the records it would further be evident that Sri Hriday Ranjan Chakraborty, Hrikesh Sharma, Gopal Chandra Chakraborty, Anil Sarkar and Probodh Chandra Mukherjee have attained their age of superannuation in the year 1987, 1988, 1990, 1990 and 1990 respectively and they were working in the Jalpaiguri Region of Central Bank of India. So far as Rabindra Nath Bhattacharjee and Amal Krishan Aikath are concerned they have retired from the services in the year 1990 and 1987 respectively and they attained their superannuation while working in the Kolkata Region of Central Bank of India. 2(v) - From the statements made hereinabove and from the records it would be evident that I have been treated unequally amongst the equals. In other words an attempt was made to deprive me of my pensionary benefits by the respondent-bank in not giving netting facilities to me though the same facilities have been provided by the respondent-bank to the above noted persons who are similarly situated with myself. The reasons for discrimination is not known to me. From records it would be crystal clear that I am similarly situated with the above mentioned persons who have been given pensionary benefits after allowing netting facilities to them by adjusting their contributory provident fund dues with their commuted value of pension and now they have been receiving pension from the respondent-bank but in my 'case the respondent-bank has acted arbitrarily, illegally and unreasonably in not giving pension in terms of its own circular after providing netting facilities to myself. Till date respondent-bank did not even inform me what amount I have to return to the bank after deducting my commuted value of pension." 12. The respondent No. 1 through its Assistant General Manager Mr. Bhise has answered this affidavit by a counter affidavit affirmed on April 11, 2007. Till date respondent-bank did not even inform me what amount I have to return to the bank after deducting my commuted value of pension." 12. The respondent No. 1 through its Assistant General Manager Mr. Bhise has answered this affidavit by a counter affidavit affirmed on April 11, 2007. The answer of the aforesaid paragraphs of the writ petitioner, appellant as quoted above by the bank in paragraphs 12 and 13 is quoted herein-below: "12. That the contents of paragraph 2(iii) and 2(iv) of the affidavit cannot be properly replied for non-submission of the fur particulars by the appellant. Since the appellant has made specific averments, the burden of proof, therefore, rests upon him to furnish the full details. It is respect full submitted that the records of that sever employees are not available at the Bank, the same being very old. The respondent-bank does not keep any old records beyond 8 years as per the provisions of Section 457 of Banking Regulations Act, .1949. Hence, the respondent-Bank is not in a position to submit as to whether netting facility even if allowed to the seven employees as alleged. Moreover, without making those employee parties in the writ petition no averments can be made in respect of them. Further, this alleged fact has not been mentioned in the writ petition. This new fact cannot, therefore, be introduced in the appeal at the hearing stage. Nor the particulars of those employees such as their status, actual date of their retirement, dates of option for pension by them etc., have not furnished. Hence, the respondent-Bank is not in a position to furnish anything about them regarding allowing netting facility to them. 13. That the contents of paragraph 2(v) 0f the affidavit are denied and disputed. It is specifically submitted that the appellant has not been treated unequally amongst the equal. The appellant cannot substantiate by any documentary proof that netting facility has been allowed to the alleged seven persons and denied to him. The netting facility even, if any, cannot be automatic. One has to give the clear option for availment of such facility. It is respectfully submitted that the appellant having not opted for pension at all his option for commutation of pension and availment of netting facility thereof have no relevancy. The netting facility even, if any, cannot be automatic. One has to give the clear option for availment of such facility. It is respectfully submitted that the appellant having not opted for pension at all his option for commutation of pension and availment of netting facility thereof have no relevancy. By applying principle of reasonable classification the appellant cannot be held to have been treated unequally as because it is logically and legally presumed that those seven persons must have opted properly for availment of pension in accordance with pension Rules and norms and netting facility even, if any, mayor may not have been allowed to them. Only they are the proper person who can vouchsafe the same as the Bank is not in a position to produce 8 years old documents which must have been destroyed. It is also relevant to point out that pension rule being a beneficial statute may receive liberal construction; but the same cannot be extended beyond the Statutory Scheme, while construing a Statute, sympathy has no role to play. This is the view of the Hon'ble Apex Court. Thus non-compliance of the Statutory Pension Scheme and provision thereof by the appellant render the appellant not entitled to the sympathy consideration against the law."" 13. On a bare reading of the answer it appears that there is no denial by the respondent No.1 that those seven employees whose names and other particulars were given in details by the writ petitioner/appellant with the contention that the netting policy was applied in respect of their cases, has not been denied. 14. Hence, having regard to the aforesaid findings and observations, we are of the view that the Bank dealt with the matter not only in arbitrary and unfair way though the Bank was duty- bound to follow the fairness and reasonableness principle in terms of the judgment passed in the Tala Cellular v. Union. of India case AIR 1996 SC 11 : (1994) 6 SCC 651 wherein the Apex Court held that all actions of the Government and its instrumentality must pass a test of fairness and reasonableness, the Bank also breached Article 14 of the Constitution of India by discriminating and dealing with the case of the writ petitioner/appellant vis-a-vis the aforesaid ,even employees. In respect of those cases they have allowed netting as there is no denial of the Bank of such netting. In respect of those cases they have allowed netting as there is no denial of the Bank of such netting. But in the case of the writ petitioner that has not been followed. 15. Since the pension scheme is the outcome of the social welfare legislation and to mitigate the suffering of the old retirees, the Bank itself took policy decision in the tune of the decision of the Indian Bank Association to allow the netting that is adjustment of refund of contributory provident fund money with commuted value of pension, the respondent No. 1 was bound to decide that issue in favour of the writ petitioner also. 16. Having regard to the documents as admitted it appears that the writ petitioner appellant tiled the option may not be in the prescribed format but in substance it was done which has not been denied by the Bank itself. Furthermore, it is a settled legal position now that tiling of any application in a particular format is within the domain of procedural law and any lapse or laches of non-submission of any application in the prescribed form, the application if is tiled otherwise expressing the material contents thereof, which in the instant case is present, as it appears from the application dated June 17, 1994 the technicalities of the procedural law of non-tiling the option in the prescribed format will not be an embargo. 17. Hence, having regard to the facts and materials, the impugned judgment of the learned Trial Judge is not legally sustainable: and accordingly. It is set aside and quashed. Having regard to the facts, we are allowing the writ application by directing the respondent Bank to inform the writ petitioner/appellant within two weeks from this date, the amount if any, is still required to be refunded on applying' the netting principle and netting policy as discussed namely, adjustment of commuted value of pension with provident fund contribution and its interest thereon. 18. It is made clear that Calcutta Office is dealing with the matter and will inform accordingly and the respondent Bank will not be allowed to take any plea that the Head office which is situated at Bombay will deal with the matter and thereby will delay the issue. 18. It is made clear that Calcutta Office is dealing with the matter and will inform accordingly and the respondent Bank will not be allowed to take any plea that the Head office which is situated at Bombay will deal with the matter and thereby will delay the issue. On beings; rightly informed by the Bank the writ petitioner/appellant will refund the money, if any is payable, and the Bank authorities will release all retirement benefit in terms of the pension Regulation 1995 including arrear thereof by four weeks thereafter. The arrear amount should be paid by two months from this date positively and the current pension amount should be released within one month from this date. 19. It is made clear that the point of delay in filing the writ application was taken by the respondent Bank. But the learned Trial Judge rejected such contention by holding that the doors of the writ Court should not be closed without examining the claim on merits particularly when it relates to the pension of an ex-employee. No appeal has been preferred assailing such finding of the learned Trial Judge by the Bank. Furthermore, before us the respondent Bank has not taken any point about delay. Hence, it will be deemed that the respondent Bank has conceded the point and accordingly has not urged. The policy decision of the organisation and/or circular letter of the policy making body has its full effect and force in the organisation itself. Reliance may be placed to the judgment passed by a Constitution Bench. 20. The Bank-respondent has urged two cases namely, Jaisingh B. Chauhan v. Punjab National Bank, AIR 2005 SC 3134 : (2005) 6 SCC 262 : 2005-III-LLJ-182 and Maruti Udyog Ltd. v. Ramlal AIR 2005 SC 851 : (2005) 2 SCC 638 : 2005-I-LLJ-853 to oppose this appeal. With due respect with reference to the said judgment, we are of the view that the same has no applicability in the instant case in view of the simple reason that question of netting and its applicability was not the subject matter of those cases. It is a settled law that a judgment is a ratio decidendi with reference to the point of law as adjudicated on the reflection of the facts as considered. It is a settled law that a judgment is a ratio decidendi with reference to the point of law as adjudicated on the reflection of the facts as considered. It is also a settled law that even if for a change of single word a judgment cannot be considered as a binding precedent to deal with other cases. Reliance may be placed to the judgment passed in the case Regional Manager v. Pawan Kumar Dubey, AIR 1976 SC 1766 : (1976) 3 SCC 334 : 1976-II-LLJ-266, judgment of Judges Bench as subsequently relied upon and referred to in the case Chandra Prakash Shahi v. State of Uttar pradesh, AIR 2000 SC 1706 : (2000) 5 SCC 152 , wherein at paragraph 7, the Court held: "It is a rule deducible from the application of law to the facts and circumstances of a case which constitutes ratio decidendi and not some consequence based upon the facts which may evident to be similar. One additional or different fact can make a world of difference between conclusion in two cases, even when the same principle is applied in each case to similar facts." It is the view of the Constitution Bench judgment passed in the case State of Punjab v. Baldev Singh. AIR 1999 SC 2378 : (1999) 6 SCC 172 relying upon the earlier views of the' Apex Court passed in the case C.I.T. v. Sun Engineering Works (P) Ltd., AIR 1993 SC 43 : (1992) 4 SCC 363 that "a decision is an authority for which it decides and not everything said therein constitutes precedent. The Courts are obliged to employ intelligent techniques in the use of precedent bearing it in mind that a decision of the Court takes its colour from the questions involved in the case in which it was rendered." 21. Having regard to such legal principle of considering a judgment as precedent, the aforesaid judgment as relied upon by the respondent No. 1 has no applicability in view of the factual matrix of the case where a policy-decision of benefit of netting the subject-matter of its applicability. 22. The appeal and the writ petition both stand allowed. 23. Stay as prayed for by the o respondent-bank is refused. 24. Let urgent xerox certified copy of this order, if applied for, be given to the learned advocates appearing for the parties expeditiously.