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2014 DIGILAW 522 (GUJ)

BANK OF BARODA v. GIRISH SHANTILAL SHUKLA

2014-04-15

K.J.THAKER, VIJAY MANOHAR SAHAI

body2014
ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI) 1. This Letters Patent Appeal has been filed challenging the judgment and order dated 6.5.2013 passed by the learned Single Judge in Special Civil Application No.9092 of 2008 by which the learned Single Judge allowed the writ petition filed by the respondent herein – original petitioner and held that the petitioner is entitled to claim and receive pension from the appellant Bank and the appellant Bank was directed to pay arrears of pension to the original petitioner within a period of three months from the date of the judgment. 2. The facts giving rise to the present Letters Patent Appeal can be summarized as under : The respondent was working as Special Assistant in Bank of Baroda at Moti Khavdi branch, District Jamnagar. The services of the respondent were terminated vide order dated 25.5.2007. The operative part of the dismissal order of the respondent is extracted below :- “Removal from service with superannuation benefits i.e. pension and/ or Provident Fund and gratuity as would be due otherwise under the Rules or regulations prevailing at the relevant time and without disqualification from future employment” and stoppage of one increment for a period of six months.” 2.2 Being aggrieved by the said dismissal order, the respondent preferred appeal before the Appellate Authority which was rejected vide order dated 27.12.2007. 2.3 Thereafter, on 5.2.2008, the respondent has made representation for grant of pension. Thereafter, the respondent approached the Chief Manager of the appellant Bank and requested to grant pension to him. Since no reply was received by the respondent, the respondent sent a notice through his advocate. Despite service of notice, the appellant Bank did not pay pension to the respondent and hence, the respondent preferred writ petition being Special Civil Application No.9092 of 2008 which came to be allowed by the learned Single Judge by the impugned judgment. 3. Mr. Mihir Joshi, learned Senior counsel assisted by Mr. Darshan Parikh appearing for the appellant Bank has submitted that so far as pension is concerned, it is governed by Pension Regulations which are statutory Regulations and are a complete code by itself and pension can be forfeited as per Regulation 22 read with Regulation 31 of the Pension Regulations. 3. Mr. Mihir Joshi, learned Senior counsel assisted by Mr. Darshan Parikh appearing for the appellant Bank has submitted that so far as pension is concerned, it is governed by Pension Regulations which are statutory Regulations and are a complete code by itself and pension can be forfeited as per Regulation 22 read with Regulation 31 of the Pension Regulations. The Regulations being statutory were required to be followed and could not be given go-bye in view of the settlement arrived at between the workmen and the Bank under the Industrial Disputes Act. 3.1 He relied on the decision of the Hon'ble Supreme Court in the case of K.A. Nagamani v. Indian Airlines and others (2009) 5 SCC 515 wherein the Hon'ble Supreme Court has held that “the agreement/settlement arrived at between the Management and its Officers' Association has the effect of pro tanto amending the Recruitment and Promotion Rules. The Rules and the agreement/settlement are complimentary to each other and have to be read together. It is not unusual for the Management to consider the representation of its Officers' Association and arrive at a mutually agreed settlement after negotiations as long as such settlement does not run counter to any statutory instrument. Since the Recruitment and Promotion Rules are not statutory in nature, but are in the nature of guidelines, there are no impediments to uphold the merger of software and hardware cadres into one cadre.” 3.2 He further relied on the decision of the Hon'ble Supreme Court in the case of UCO Bank v. Sanwar Mal (2004) 4 SCC 412 wherein it is held that so far as pension is concerned, it is governed by Pension Regulations which are statutory Regulations and are a complete code by itself and pension can be forfeited as per Regulation 22 read with Regulation 31 of the Pension Regulations. 3.3 Mr. Joshi also relied on the decision of the Hon'ble Supreme Court in the case of C. Jacob v. Director of Geology and Mining and others, (2008) 10 SCC 115 wherein the Hon'ble Supreme Court has held that there is no need for circumspection and care in issuing directions for “consideration”. If the representation on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing “consideration” of such claims. 4. On the other hand, Mr. If the representation on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing “consideration” of such claims. 4. On the other hand, Mr. N.D. Buch, learned counsel appearing for Nanavaty Advocates for the respondent has placed reliance on the recent decision of the Hon'ble Supreme Court in the case of Bank of Baroda v. S.K. Kool (D) through LRS. And another delivered in Civil Appeal No.10956 of 2013 dated 11.12.2013 wherein the Hon'ble Supreme Court has observed as under :- “Having considered the rival submissions we do not have the slightest hesitation in accepting the broad submission of Mr. Gupta that the Regulation in question is statutory in nature and the court should accept an interpretation which would not make any other provision redundant. Bearing in mind the aforesaid principle, we proceed to consider the rival contentions. The terms and conditions of service of the employees are governed and modified by the Bipartite Settlement. Various punishments have been provided under the Bipartite Settlement which can be inflicted on the employee found guilty of gross misconduct. In 2002, a Bipartite Settlement was signed by the Indian Banks’ Association and the Banks’ workmen’s Union with regard to disciplinary action procedure. It is common ground that in the light of the said Bipartite Settlement, clause 6(b) was inserted as one of the punishments which can be inflicted on an employee found guilty of gross misconduct and the same reads as follows : “6. An employee found guilty of gross misconduct may; (a) …………. (b) be removed from service with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment, or xxx xxx xxx” The employee undisputedly has been visited with the aforesaid penalty in terms of the Bipartite Settlement. Article 22 of the Regulation, which is relied on to deny the claim of the employee reads as follows : “22. Article 22 of the Regulation, which is relied on to deny the claim of the employee reads as follows : “22. Forfeiture of service : (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.” From a plain reading of the aforesaid Regulation, it is evident that removal of an employee shall entail forfeiture of his entire past service and consequently such an employee shall not qualify for pensionary benefits. If we accept this submission, no employee removed from service in any event would be entitled for pensionary benefits. But the fact of the matter is that the Bipartite Settlement provides for removal from service with pensionary benefits “as would be due otherwise under the Rules or Regulations prevailing at the relevant time”. The consequence of this construction would be that the words quoted above shall become a dead letter. Such a construction has to be avoided. The Regulation does not entitle every employee to pensionary benefits. Its application and eligibility is provided under Chapter II of the Regulation whereas Chapter IV deals with qualifying service. An employee who has rendered a minimum of ten years of service and fulfills other conditions only can qualify for pension in terms of Article 14 of the Regulation. Therefore, the expression “as would be due otherwise” would mean only such employees who are eligible and have put in minimum number of years of service to qualify for pension. However, such of the employees who are not eligible and have not put in required number of years of qualifying service shall not be entitled to the superannuation benefit though removed from service in terms of clause 6(b) of the Bipartite Settlement. Clause 6(b) came to be inserted as one of the punishments on account of the Bipartite Settlement. It provides for payment of superannuation benefits as would be due otherwise. The Bipartite Settlement tends to provide a punishment which gives superannuation benefits otherwise due. The construction canvassed by the employer shall give nothing to the employees in any event. Will it not be a fraud Bipartite Settlement ? Obviously it would be. It provides for payment of superannuation benefits as would be due otherwise. The Bipartite Settlement tends to provide a punishment which gives superannuation benefits otherwise due. The construction canvassed by the employer shall give nothing to the employees in any event. Will it not be a fraud Bipartite Settlement ? Obviously it would be. From the conspectus of what we have observed we have no doubt that such of the employees who are otherwise eligible for superannuation benefit are removed from service in terms of clause 6(b) of the Bipartite Settlement shall be entitled to superannuation benefits. This is the only construction which would harmonise the two provisions. It is well settled rule of construction that in case of apparent conflict between the two provisions, they should be so interpreted that the effect is given to both. Hence, we are of the opinion that such of the employees who are otherwise entitled to superannuation benefits under the Regulation if visited with the penalty of removal from service with superannuation benefits shall be entitled for those benefits and such of the employees though visited with the same penalty but are not eligible for superannuation benefits under the Regulation shall not be entitled to that. Accordingly, we hold that the employee’s heirs are entitled to superannuation benefits. The entire amount that the respondent is found entitled to along with interest at the rate of 6% per annum should be disbursed within 6 weeks from the date of receipt/communication of this Order.” 5. We have gone through the above referred recent decision of the Hon'ble Supreme Court. In our opinion, since the Hon'ble Apex Court has already decided the matter with regard to the same settlement of the Union with the same Bank and in similar facts, therefore, we should not be detained any further as the controversy is set at rest by the decision of the Hon'ble Supreme Court. The aforesaid decision of the Hon'ble Supreme Court is binding on us under Article 141 of the Constitution of India. 6. We have gone through the decisions relied upon by Mr. Joshi and in our opinion, the said decisions do not help the case of the appellant Bank. We are not able to accept the submissions of Mr. Joshi in view of the above referred recent decision of the Hon'ble Supreme Court which is subsequent to the decisions relied on by Mr. Joshi and in our opinion, the said decisions do not help the case of the appellant Bank. We are not able to accept the submissions of Mr. Joshi in view of the above referred recent decision of the Hon'ble Supreme Court which is subsequent to the decisions relied on by Mr. Joshi and between the Bank before us and Union on the other hand. 7. For the aforesaid reasons, we do not find any merits in this Letters Patent Appeal. This Letters Patent Appeal fails and is accordingly dismissed. Interim relief granted earlier is vacated. We direct the appellant Bank to release the pensionary benefits to the respondent within a period of three months from today. In view of dismissal of Letters Patent Appeal, Civil Application also stands dismissed.