Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 1334 (KAR)

Kushala S. Shetty v. Vijaya Bank

2017-09-21

G.NARENDRA

body2017
ORDER : G. NARENDRA, J. 1. Heard the learned counsel for the petitioner and the respondent bank. 2. The undisputed facts necessary for disposal of the lis that has arisen between the parties are as follows:- 3. The husband of the petitioner, one late Shankar P. Shetty, was employed as a Peon in the services of the respondent-bank and was assigned staff Code No. 17447 and was discharging his duties at Sooda Branch of the respondent-bank. That the said Shankar P. Shetty died in harness on 19.04.2000. Pursuant to his death, the respondent-bank has disbursed the terminal benefits and also ex-gratia in view of compassionate appointment to the nominee/dependents. That at the relevant point of the time they were only two types of terminal benefits available to the employees of the respondent bank that is contributory provident fund benefit and gratuity. 4. That pursuant to the persistent demands a bipartite-settlement was arrived at, culminating in an agreement on industrial level on 29.10.1993 which resulted in issuance of the bank circular No. 1997/1995 dated 14.10.1995, notifying the scheme called Vijaya Bank (employees) Pension Regulations 1995, for implementing the proposed pension scheme with effect from 29.09.1995. That the scheme was introduced with the objective of granting pensionary benefits to employees who had rendered services to the bank. The fact remains that the husband of the petitioner did not opt for the pension scheme, in view of the onerous Clause 22 (4)(b) which stipulated for forfeiture of the entire past services of employees who had participated in strikes/protest. This resulted in, another agitation and prolonged negotiations, resulting in the respondent bank deleting the offending clause in the scheme vide circular No. 227/2000 dated 17.11.2000. That though the offending clause came to be omitted the respondent bank did not extend an opportunity to either the employees or the families of employees to opt for the pension scheme in its new firm. 5. This resulted in one more round of talks between the unions and the management resulting in another bipartite settlement dated 27.04.2010 whereby, option was extended to workman to join the pension scheme in its modified norm. The said option came to be published vide Bank circular No. 10191 dated 07.09.2010 and vide Clause A(4) of the Circular the eligibility criteria was stipulated and it reads as follows:- "A. ELIGIBILITY TERMS & CONDIDITIONS TO JOIN THE PENSION SCHEME: 1..... 2..... 3...... 4. The said option came to be published vide Bank circular No. 10191 dated 07.09.2010 and vide Clause A(4) of the Circular the eligibility criteria was stipulated and it reads as follows:- "A. ELIGIBILITY TERMS & CONDIDITIONS TO JOIN THE PENSION SCHEME: 1..... 2..... 3...... 4. The family of those employees who were in the service of the bank prior to 29th day of September 1995 (29.09.1995) but have died while in the service of the Bank after that date but before 27.04.2010 will be eligible for family pension provided: (a) The family of the deceased employees exercises an option in writing within 60 days from the date of this Circular to become a member of the Pension Fund, and (b) Refund within 30 days after expiry of the said period of 60 days mentioned above, the entire amount of Bank's contribution to the Provident Fund and interest accrued thereon received by the nominee/legal heirs of the deceased employee on his/her death, the differential portion of the PF received as Bank's contribution if any, while implementing the 9th Bipartite Settlement/Joint Note dated 27.04.2010 together with 56% of the said total amount. 6. It is not in dispute that the husband of the petitioner passed away on 19.04.2000 whereas, the modified scheme deleting clause 22(4)(b) came into existence on 17.11.2000. It is also not in dispute that, though the scheme was modified vide circular dated 17.11.2000, no option was extended to the employees who had not opted for the pension scheme under the circular dated 14.10.1995. It is also not in dispute that vide circular No. 10191 dated 07.09.2010 such an option came to be extended to the families of the deceased employees who had expired before 27.04.2010 and were in employment prior to 29.09.1995 and had died while in the service of the bank. It is also not in dispute that the family of the deceased employee was required to exercise an option in writing within 60 days from the date of the circular and within 30 days after the expiry of the said period of 60 days, were required to refund in entirety the bank's contribution to the provident fund account, including accrued interest. In the above undisputed facts the petitioner has sought for the following reliefs:- "(a) Issue a writ of certiorari or any other appropriate writ order or direction quashing Annexure - D communication dated 10.07.2014 No. PER & PA PD. PEN.S1775-2014 as the same is arbitrary, illegal and violative of Article 14, 19(1), 21 and 300A of the Constitution of India. (b) Issue a writ of mandamus or any other appropriate writ order or direction, directing the respondents to extend another option to join the pension scheme to the petitioner and grant pension and commutation amount of pension to the petitioner from the date of her entitlement with interest at 12% per annum on the amounts of arrears payable, after adjusting the amounts to be refunded/repaid by the petitioner, which she has been ready all along and even now ready to pay to the Bank as per Annexure-A. (c) Pass such other orders as deemed fit under the circumstances of the case to meet the ends of justice." 7. The short question that fall for consideration is whether the petitioner is entitled for consideration of her application to join the pension scheme? 8. It is contended by the learned counsel for the petitioner that the petitioner is an illiterate lady and is virtually living in penury, post the demise of her beloved husband who died in harness on 19.04.2000 leaving behind the petitioner, a minor son and his aged parents. That on account of discord amongst the family members and ill treatment meted out to her and her 2 1/2 year old son, she was forced to leave the matrimonial house and secure shelter elsewhere. That she had left the notified address even prior to implementation of the modification pension scheme on 27.11.2000. That though the scheme was modified no option was extended to the employees who had not opted for the pension scheme vide circular introduced in the year 1995. That only pursuant to the circular settlement dated 27.04.2010 an option came to be extended to families of employees who died in harness and were in employment prior to 29.09.1995 and passed away prior to 27.04.2010. That only pursuant to the circular settlement dated 27.04.2010 an option came to be extended to families of employees who died in harness and were in employment prior to 29.09.1995 and passed away prior to 27.04.2010. The said agreement dated 27.04.2010 came to be implemented by the respondent bank vide circular dated 07.09.2010 and as per the said circular the family of the deceased employee was required to exercise the option within 60 days and further were required to the bank's contribution to the provident fund account within 30 days commencing from the expiry of the 60 days. 9. It is further contended that the petitioner who had moved away from the matrimonial home was unaware of the scheme that was announced by the respondent bank. It is contended that neither the respondent bank nor its Branch at Sooda intimated the petitioner about the implementation of modified pension scheme. 10. It is submitted that as per Clause 6 of the circular dated 07.09.2010 the branches were advised to guide and assist the family members of the deceased employees for submission of the option for the family pension and that further the branches/offices were required to circulate the circular and it is submitted that the branch neither intimated the petitioner nor was she notified of the same by any of the staff members and that she became aware of the modified scheme only in the year 2012 and that she immediately made attempts to elicit information from the Sooda branch but failed. After multiple visits the staff at the branch advised her to approach the head office. 11. It is submitted that the petitioner made a representation on 19.04.2012 requesting that she may be permitted to avail of the pension option introduced under the circular dated 07.09.2010. But the said representation elicited no reply. That she approached the management through the union in which her late husband was a member and after some time she was informed by the Union members that though the issue was taken up in the joint consultancy committee meeting, the management refused to entertain the plea on the premise that the petitioner had failed to exercise the option within stipulated time and thereafter, vide proceedings dated 10.07.2014 her representation came to be rejected with the endorsement that she had failed to deposit the amount of Rs. 60,349.96 pais before the cut off date i.e. 6.12.2010 and that she had also not exercised the option within the prescribed time limit. The petitioner would place reliance on the order of this court rendered in W.P. No. 21712/2011 and would pray that on parity the petitioner is also entitled for the condonation of the delay seeking for commutation and exercising the option for joining the pension scheme. 12. Per contra the learned counsel for the respondent bank would vehemently contend that the writ petition itself is not maintainable and this court ought not exercise jurisdiction in the matter. He would contend that the petitioner has belatedly approached the respondent for exercising the option and that the belated attempt cannot be entertained by the respondent bank in view the time limit prescribed under the scheme itself. That the respondent bank is not obligated to serve notice of the scheme on every prospective optee. But despite the same the petitioner was notified vide letter dated 09.09.2010. That the court ought not to condone the enormous delay in exercising the option to join the pension scheme and in this regard he would place reliance. The ruling of the Apex Court rendered in the case of Jai Singh B. Chauhan vs. Punjab National Bank and others and has held that the appellant who was employed by the respondent bank was not entitled to belatedly exercise the option to join the pension scheme. It also ruled against the necessity and obligation on the part of the bank to serve individual notice. From a reading of the ruling it is apparent that the facts of the present case on hand are different from the facts involved therein. The Apex Court ruled against the appellant on the premise that the appellant was an employee the bank and that he failed to avail the opportunity despite being in the know about the option extended by the bank. The Hon'ble Apex Court also ruled that the bank is not obligated to serve individual notice in the light of the contention that the scheme was notified in the official gazette and even otherwise, the appellant did not come within the two indicated categories and hence was not entitled. He would further place reliance on the ruling of the Lucknow Bench of the High Court of Allahabad in Writ petition No. 1695(SB)/2011. He would further place reliance on the ruling of the Lucknow Bench of the High Court of Allahabad in Writ petition No. 1695(SB)/2011. On a perusal of the fact involved therein, it is seen that the petitioner was a former employee of the bank unlike in the case on hand. Further, reliance is placed on bank instruction circular No. 11143/PA/2010/27 dated 15.09.2010 which was said to have been widely circulated and the court also took note of the fact that the respondent Allahabad Bank had afforded opportunity on three occasions, to opt for the pension scheme within the stipulated time, but the petitioner had failed to exercise the option at any of the three stages. In the case on hand, the petitioner has been afforded an opportunity only once i.e. under the circular dated 07.09.2010 and yet again it is a case involving an employee and not an illiterate spouse of the deceased employee and further placing reliance on the ruling of the Apex Court in the case of M.K. Sarkar held that no individual notice is necessary. It further concluded that as option was given on three occasions and despite the same, the petitioner the employee had chosen to remain a beneficiary of the contributory provident fund scheme and having exercised his choice diligently it concluded that the present attempt seeking to exercise the option was an afterthought and hence it was of the opinion that no injustice would be caused by rejecting the writ petition. 13. The learned counsel for the petitioner would place reliance on another ruling of the Apex Court reported in 2010 2 SCC 1959 which yet again involved a retired employee, who had not chosen to exercise the option for joining as a member of the pension scheme. The Hon'ble Apex Court was pleased to observe that though he had contended that he was not individually intimated about the extension of the option to join the scheme he never pleaded that he was unaware of the order extending the benefit of the option. The Hon'ble Apex Court after appreciation of the facts involved therein held that the tribunal and High Court erred in holding that merely being aware of the scheme was not sufficient notice and individual communication was mandatory. It further held that it was unreasonable to expect the department to maintain records regarding intimation after the passage of 22 years. The Hon'ble Apex Court after appreciation of the facts involved therein held that the tribunal and High Court erred in holding that merely being aware of the scheme was not sufficient notice and individual communication was mandatory. It further held that it was unreasonable to expect the department to maintain records regarding intimation after the passage of 22 years. It further held that when notice or knowledge of the availability of the option was clearly inferable, the employee cannot after a long time be heard to contend that in the absence of written intimation of the option, he still was entitled to exercise the option and was pleased to set aside the order of the finding of the tribunal and the high court and was pleased to allow the appeal filed by the union of India. 14. The learned counsel for the respondent would place reliance on another ruling rendered by the High Court of Gujarat. The facts involved therein were that the husband of the petitioner died in harness on account of a massive heart attack that the son of the petitioner was taken into service of the bank on compassionate grounds. Thereafter, the spouse of the deceased employee belatedly submitted her application to join the pension scheme. In the facts involved therein and placing reliance on ruling of the Apex Court in Jai Singh B. Chauhan Vs. Punjab National Bank the court was pleased to hold that publication of the scheme in the official gazette constituted a public notice and was pleased to reject the contention of the petitioner that she was not aware of the circular and held that the ratio laid down by the Apex Court in the afore stated ruling squarely applies to the facts of the said case and was pleased to uphold the proceedings of the bank rejecting the request of the petitioner. 15. In view of the above, the learned counsel for the respondent would pray that the petitioner who is also similarly placed as the applicants in the rulings referred, it ought to be held that no individual notice is required to the petitioner and knowledge of the scheme ought to be attributed to the petitioner and consequently writ petition requires to be rejected. 16. 16. This court wishes to place on record that there can be no quarrel with the law laid down by the Hon'ble Apex Court but is of the considered opinion that the same are inapplicable to the facts and circumstances involved in the instant case. 17. The first distinguishable factual feature involved in the rulings relied upon by the respondent is that all of them were retired employees and in the last referred ruling the petitioner was no doubt the wife of the deceased employee but it is pertinent to note that she was also the mother of the existing employees i.e. her son who had been granted employment on compassionate grounds. In these circumstances, knowledge of the scheme could be attributed to the said persons as they were both literate and aware of the scheme unlike in the case on hand. 18. The petitioner herein has contended that she is not literate and lost her husband at a young age and had to bear the costs of bringing up a child aged about 2 1/2 years. She has clearly pleaded in here presentation that she was totally unaware of the option extended by the bank in the year 2010 i.e. almost more than 10 years after the demise of her husband and she became aware only after coming across a retired employee. It is seen that the scheme was devised in the year 1995 but the late husband of the petitioner failed to exercise the option and thereafter, the next option to join the scheme came to be extended 15 years thereafter. It is not in dispute that the petitioner's husband passed away 10 years prior to the date on which the option to join the pension scheme came to be extended. In view of the long passage of time, the question that arises in the minds whether a person who is, admittedly is not an employee can be expected to keep pace and follow the developments with regard to service conditions of the employees of the respondent bank for 10 long years and whether it can be successfully contended that knowledge can be imputed to such a person who is far removed from the place where the developments have occurred. The other distinguishable feature of the case on hand is the Clause (c)(6) and the concluding clause. The other distinguishable feature of the case on hand is the Clause (c)(6) and the concluding clause. By the said clauses it can be deduced that the management was alive to the fact of existence of people like petitioner who would require to be put on notice and ought to be guided and advised regarding the merits, demerits of the scheme and benefits that would accrue to them. 19. Though it is contended by the learned counsel for the respondent that the petitioner has been individually notified apart from placing on record the letter dated 09.09.2010 addressed to the petitioner despite grant of opportunities, no other corroborative material like dispatch register or acknowledgement card are placed before the court to demonstrate the fact that the petitioner has been notified in terms of Clause (c)(6) and the un-numbered concluding clause of the circular. Nothing is placed on record to demonstrate that the officers of the bank have either circulated the circular or have at any time guided or assisted or advised the petitioner in this regard. 20. Though it is trite law that, no individual notice is required in respect of settlement notified in the official gazette. In the instant case, it is deducible otherwise in view of the peculiar facts and contentions. On a conjoint reading of clause C(6) and un-numbered concluding clause of the circular and annexure-R3 letter it is apparent that the respondent had envisaged individual notices to dependent of employees who had died in harness. 21. It is also relevant to note that the impugned order dated 10.07.2014 has been based on the premise that despite the individual notice dated 09.09.2010 option has not been exercised by the petitioner. 22. Hence, in the light of the assertion by the petitioner and in the light of the failure of the respondent bank to place any demonstrable material to corroborate the fact of service of notice on the petitioner, and in the peculiar facts of the case, this court is of the considered opinion that the petitioner is entitled to a partial relief. The writ petition is partly allowed. 23. On the directions of this court the respondent bank has placed on record a memo calculating the amount to be refunded to the bank, the arrears of pension and the future monthly pension. The writ petition is partly allowed. 23. On the directions of this court the respondent bank has placed on record a memo calculating the amount to be refunded to the bank, the arrears of pension and the future monthly pension. In the considered opinion of this court in view of the delay the petitioner would not be entitled for arrears of pension between 07.09.2009 till the date of application. ORDER The impugned proceedings dated 10.07.2014 is quashed. The respondent bank is directed to reconsider the representation of the petitioner in the light of the observations made by this court. While so reconsidering it is open to the bank to calculate and grant pension that is after receiving the sum due and payable by the petitioner. The writ petition stands disposed off accordingly.