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2018 DIGILAW 1984 (RAJ)

State Bank of India v. S. K. Chakrabartit

2018-09-27

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

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JUDGMENT : MOHAMMAD RAFIQ, J. This appeal has been filed by appellant-State Bank of Bikaner and Jaipur against the order of the learned Single Judge dated 30.6.2004, whereby the writ petition of the respondent was allowed with direction to the appellant to pay to him pension in accordance with law by adjusting contribution towards provident fund and other retiral benefits, if any, paid to him. 2. The respondent-S.K. Chakrabarti was an officer in the State Bank of Bikaner and Jaipur, which later merged with the State Bank of India. He was sent on deputation as a Faculty Member in the State Bank Staff College, Hyderabad vide order dated 2.6.1993 for a period of 2 years. He tendered his resignation from service vide letter dated 27.6.1994. The appellant-bank accepted his letter of resignation vide order dated 26.9.1994. The respondent filed writ petition before this Court in the year 2000 for grant of pensionary benefits challenging Regulation 22 of the State Bank of Bikaner and Jaipur (Employees) Pension Regulations, 1995 (for short-the Regulations of 1995). As per Regulation No. 1 (b) of the Regulations, the Regulations were deemed to have come into force with effect from 29.9.1995. The notified date of the Regulation has been defined in Regulation 2 (r) of the Regulations to mean the date on which these Regulations are published in the official gazette. The Regulations were published in the Official Gazette on 23.3.1996. The SBBJ introduced Pension Scheme vide Pension Regulations of 1995 as sequel to the settlement arrived at between the Indian Banks Association and the All India Bank Employees Association, apart from the other Bank Employees Unions such as the NCBE and the INBEF. The said agreement was signed between the parties on 29.9.1993, which ultimately culminated into the SBBJ (Employees) Pension Regulations, 1995 (for short the Regulations of 1995’), which was introduced in the Bank with effect from 1st November, 1993. 3. According to the appellant, the pension scheme was circulated by Circular No. PER/13/94-95 dated 10.6.1994 to the Controlling Officers/Branch Managers/Chief Managers/Assistant General Managers and Departmental Heads of the Bank. 3. According to the appellant, the pension scheme was circulated by Circular No. PER/13/94-95 dated 10.6.1994 to the Controlling Officers/Branch Managers/Chief Managers/Assistant General Managers and Departmental Heads of the Bank. A request was made in the circular itself to all the authorities referred to above that the contents of the circular must be given wide circulation among the staff members posted under their control in order to ensure that it has been properly published and brought to the knowledge of the Supervising and Award Staff Members. The directions to obtain signatures from the concerned employees find place in para 10 of the Circular. The scheme had to come into effect from 1.11.1993. In para 6 of the Circular, it was clearly stated that the option letter should be submitted to the respective Department Heads/Branch Managers under whom the employees concerned is working and the employees had to exercise their option before September 30, 1994. Subsequently, this date was extended to 30.11.1994 and then further extended upto 120 days from the notified date i.e. the date of publication of the Pension Regulation in the Official Gazette i.e. 23rd March, 1996. In other words, the date of exercising the option was extended further upto 21st July, 1996. According to para no. 4 of the Circular, even the retired employees of the Bank were also entitled to get benefit of pension scheme. 4. Ms. Anita Agarwal, learned counsel for the appellant has argued that the learned Single Judge has erred in law in allowing the writ petition merely on the ground that the respondent was working on deputation as the Faculty Member in the State Bank Staff College, Hyderabad since 2.6.1993 and he was not aware of the bringing out of the new pension scheme. The scheme relating to pension was not sent to the said college at Hyderabad and, therefore, the respondent did not come to know about it. The appellant-bank did not comply the condition incorporated in the Circular as it was not properly circulated to all the employees of the bank especially those who were on deputation outside at that time. The learned Single Judge also took the view that since the respondent-writ petitioner completed more than twenty years of qualifying service as on 1.11.1993, pension was admissible to him in terms of Regulation 29 of the Regulations of 1995. Such an approach was wholly erroneous. The learned Single Judge also took the view that since the respondent-writ petitioner completed more than twenty years of qualifying service as on 1.11.1993, pension was admissible to him in terms of Regulation 29 of the Regulations of 1995. Such an approach was wholly erroneous. The impugned judgement be there fore set aside. 5. Ms. Anita Agarwal, learned counsel for the appellant has further submitted that the case of the respondent could not be said to be covered under Regulation 29 of the Regulations of 1995 in any manner whatsoever. Clause 29 provides for payment of pension in the event of voluntary retirement. No such request for voluntary retirement was ever made by the respondent. As per first proviso to Regulation 29 of the Regulations of 1995, the provision for pension on voluntary retirement is not applicable to an employee who is on deputation. As per the Regulation, the employee on deputation can seek voluntary retirement only if he resumes charge of the post in India and thereafter has served for a period of not less than one year with the bank. In the present case, the respondent was on deputation and therefore his case was not covered by Regulation 29 of the Regulations of 1995. Moreover, he also did not serve the bank for a period of at least one year after termination of deputation to be able to apply for voluntary retirement in terms of Regulation 29. It is argued that clause 29 (6) of the Regulations provides pension to an employee retiring under the aforesaid Regulation shall be based on the average emoluments as defined under clause (d) of regulation 2 of the Regulations of 1995, according to which “average emoluments” means the average of the pay drawn by an employee during the last ten months of his service in the Bank. Learned Single Judge without looking into the provisions of Regulation 29 of the Regulations of 1995 has passed the aforesaid judgement equating the resignation by the respondent with voluntary retirement, which is wholly illegal. 6. It is argued that learned Single Judge has committed a grave error of law by observing that resignation of the respondent was in terms of provisions of voluntary retirement contained in bipartite settlement. 6. It is argued that learned Single Judge has committed a grave error of law by observing that resignation of the respondent was in terms of provisions of voluntary retirement contained in bipartite settlement. Referring to definition of “retirement” in clause 2(y) of the Regulations, it is argued that the resignation does not fall in any one of the three clauses there under. In fact, clause 22 of the Regulations governs the case of resignation. It is also one of the events of disqualification. The definition also includes an employee who is deemed to have voluntarily retired from the Bank's service in terms of the provision for voluntary cessation of employment contained in Bipartite Settlement. Learned counsel for the appellant referring to Regulation 19 of the Regulations of the State Bank of Bikaner & Jaipur (Officers’) Service Regulations, 1979 submitted that voluntary retirement can be sought by the employee on completion of thirty years of service as according to that an officer could voluntary retire from the service of the Bank on attaining the age of fifty eight years or upon the completion of thirty years, whichever comes first. In the instant case, the respondent completed service of only 20 years and 8 months. Since he had not completed thirty years of service, he in any case was also not eligible to seek voluntary retirement. He could not seek voluntary retirement even under Regulation 29 (1) of the Regulations of 1995 because he had been on deputation while he submitted the resignation, which was accepted, whereas he could apply for voluntary retirement only after completing one year upon resumption of duties with the bank. 7. It is argued that the validity of Clause 22 of the Regulations of 1995 has been upheld by the Supreme Court in Civil Appeal No. 3192/1999, UCO Bank v. Sanwarmal, Civil Appeal No. 607/2003, Oriental Bank of Commerce v. Ashwini Kumar Sharma and Civil Appeal No. 1506/2003, Chairman, Bank of India v. Narendra Kantilal Dave Learned Single Judge has erred in law in directing payment of pension to the respondent ignoring the fact that the respondent resigned from service of the bank and resignation was accepted by the bank. The pension scheme was given full publicity and this was known to all employees of the different bank. The pension scheme was given full publicity and this was known to all employees of the different bank. The negotiations were held between Indian Banks Association and the All India Bank Employees Association, therefore, it cannot be believed that the respondent, who was working on the senior post of Assistant General Manager would be unaware about the change in the conditions of service in the bank. Learned counsel argued that even otherwise as per Regulation 19 of the Regulations of 1979, the respondent was not entitled to pensionary benefits even if he applied for voluntary retirement rather than submitting resignation. 8. Ms. Anita Agarwal, learned counsel for the appellant in support of her arguments has relied on the judgement of the Supreme Court in UCO Bank v. Sanwar Mal- (2004) 4 SCC 412 and Reserve Bank of India v. Cecil Dennis Solomon; (2004) 9 SCC 461 . Learned counsel also relied on coordinate bench judgement of this Court at Principal Seat, Jodhpur in Shri Sohanlal Soni (since deceased) through L.Rs. v. State of Rajasthan, D.B. Special Appeal (Writ) No. 376/2007 decided on 5.1.2018. 9. Shri R.N. Mathur, learned Senior Counsel assisted by Shri K.J. Mehta, learned counsel for the respondent has opposed the appeal. It is contended that the case set up by respondent before the learned Single Judge in the writ petition and also before the division bench now is that since he was working as Faculty Member in the Staff College, Hyderabad, it was incumbent on the part of the Principal or the Vice Principal of the Staff College and for that matter, the Controlling Authority, to bring the aforesaid Circular to his notice in accordance with condition no. 6 of the Pension Scheme. The appellant-bank did not send copy of the Circular to the Principal and the Vice Principal of the Staff College. The Circular was never brought to his knowledge either by the bank or by the Controlling Authority or the Head of the Staff College. The respondent-writ petitioner was completely unaware of the scheme introduced by the SBBJ. Since he had put in actual service of 20 years and 8 months in the bank, he would have been entitled to get the benefit of pension scheme even if he sought voluntary retirement. The respondent-writ petitioner was completely unaware of the scheme introduced by the SBBJ. Since he had put in actual service of 20 years and 8 months in the bank, he would have been entitled to get the benefit of pension scheme even if he sought voluntary retirement. Although after the Pension Scheme was introduced, the respondent could have sought voluntary retirement only after completing 25 years of service, but there was virtually no difference between voluntary retirement and regisnation because the pension scheme was not prevalent in the Bank prior to November 1, 1993. Had the pension scheme been brought to the notice of the respondent, who was on deputation and was working out of the establishment of the Bank, instead of submitting resignation, he would have proceeded on voluntary retirement. 10. It is further contended that Regulation 22 of the Regulations of 1995 in so far as it disqualifies person who has tendered resignation from the service irrespective of any further condition such as the resignation submitted subsequent to the cut off date for application of the pension scheme should be ignored. Regulation 22, which disentitles a person who has submitted resignation, to pension after the cut off date is arbitrary, unreasonable and unjust inasmuch as it does not take into consideration the event that resignation is submitted by such employee in absence of the pension scheme and for him resignation or voluntary retirement does not mean much. Since the cut off date for applicability of the pension scheme is October 30, 1993, all those persons who were in service on the aforesaid date form one class and there can not be any distinction inter se amongst the persons falling in the same class or category. Denial of the pension scheme on the basis of subsequent event of resignation is a discrimination amongst the persons falling in the same category. The representation was submitted by the respondent on 10.9.1998 and then again on 2.12.1998 to apply pension scheme in his case was illegally rejected on the ground that he could not exercise option as per Circular dated 10.6.1994. Learned senior counsel therefore prayed that the appeal be dismissed. 11. We have given our anxious consideration to the rival submissions and perused the material on record. 12. Learned senior counsel therefore prayed that the appeal be dismissed. 11. We have given our anxious consideration to the rival submissions and perused the material on record. 12. Regulation 22 of the Regulations of 1995 clearly provided that resignation or dismissal or removal or termination of an employee from the service of the Bank including that of an employee, who is deemed to have voluntarily retired from the Bank's service, in terms of the provision for voluntary cessation of employment contained in Bipartite Settlement shall entail forfeiture of his entire past service and consequently shall not qualify for the pensionary benefits. It is not in dispute that the constitutional validity of Regulation 22 was subjected to challenge and has been upheld by the Supreme Court in Civil Appeal No. 3192/1999, UCO Bank v. Sanwarmal, Civil Appeal No. 607/2003, Oriental Bank of Commerce v. Ashwini Kumar Sharma and Civil Appeal No. 1506/2003, Chairman, Bank of India v. Narendra Kantilal Dave The consequence of resignation, according to the aforementioned provision was forfeiture of entire past service and therefore the incumbent who has resigned from service, regardless of the fact whether he qualifies for voluntary retirement or not, would not be entitled to claim pensionary benefits. 13. The Supreme Court in Cecil Dennis Solomon, supra reversed the judgement of the High Court holding that the High Court erred in equating resignation to voluntary retirement and allowing the claim of employees of RBI, who had resigned, to pension on that basis. It was held that resignation does not fall within any of the four types of situations contemplated in Regulation 26. The expressions “superannuation”, “voluntary retirement”, “compulsory retirement” and “resignation” convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time; but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, same are not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the concerned employer is a requisite condition. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, same are not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the concerned employer is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary. 14. In UCO Bank, supra, the Supreme Court on the question of distinction between “resignation” and “retirement” held that they convey different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. While resignation brings about complete cessation of master and servant relationship, voluntary retirement maintains the relationship for the purposes of grant of retiral benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/rules framed by the bank. Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retiral benefits. Moreover, there are different yardsticks and criteria for submitting resignation vis-a-vis voluntary retirement and acceptance thereof, held the Supreme Court. 15. This very question came up for consideration before the single bench of this Court at Principal Seat Jodhpur in Sohan Lal Soni v. State of Rajasthan; 2006 (5) WLC (Raj.) 511. The writ petitioner in that case had challenged the constitutional validity of Rule 208 of the Rajasthan Service Rules, 1951 and Rule 50 (1) of the Rajasthan Civil Service Pension Rules, 1996. The single bench of this Court in the judgement authored by one of us (Mohammad Rafiq, J.) upheld the validity of the Rule. The division bench in D.B. Special Appeal (Writ) No. 376/2007 vide judgement dated 5.1.2018 has maintained the said judgement by dismissing the appeal relying on judgement of the Supreme Court in Reserve Bank of India & Arn. v. Cecil Dennis Solomon, supra. 16. The division bench in D.B. Special Appeal (Writ) No. 376/2007 vide judgement dated 5.1.2018 has maintained the said judgement by dismissing the appeal relying on judgement of the Supreme Court in Reserve Bank of India & Arn. v. Cecil Dennis Solomon, supra. 16. In Union of India v. Braj Nandan Singh (2005) 8 SCC 325 , the validity of Rule 26 of the CCA Rules was challenged. The argument raised in that case was that a resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment. Rule 26 sub-rules (1) and (2) has limited operation and does not wipe out entitlement to pension as quantified in Rule 49. Rejecting the argument, the Supreme Court held that the language of Rule 26 sub-rules (i) and (2) is very clear and unambiguous. After the acceptance of resignation, in terms of Rule 26 sub-rule (1), the past service stands forfeited. 17. The Supreme Court in M/s. J.K. Cotton Spg. Wvg. Mills Company Ltd., Kanpur v. State of U.P. AIR 1990 SC 1808 held that when an employee voluntarily tenders his resignation, it is an act by which he voluntarily gives up his job. In Union of India v. Rakesh Kumar (2001) 4 SCC 309 , the Supreme Court interpreted Rule 19 of the BSF Rules relating to resignation from service in the context of claim which was regulated by Rule 49 of the CCA (Pension) Rules. While rejecting the prayer for grant of pension proportionate to the period of service rendered by the employees concerned, the Supreme Court held that when the Rule specifically provides that the resignation from a service or post entails forfeiture of past service unless resignation is submitted to take up, with proper permission, another appointment under the government where service qualifies, the employee concerned cannot claim pension. The employee who has resigned from his post after completing more than 10 years of qualifying service but less than 20 years would not be eligible to get pensionary benefits. 18. In view of the catena of the judgements referred to above, the respondent cannot be granted pensionary benefits on the spacious plea that since he was on deputation and remained completely unaware of the pension scheme being introduced. 18. In view of the catena of the judgements referred to above, the respondent cannot be granted pensionary benefits on the spacious plea that since he was on deputation and remained completely unaware of the pension scheme being introduced. The appellant has demonstrated that introduction of the pension scheme was result of long drawn process of negotiations between the Indian Banks Association and the All India Bank Employees Association, apart from the other Bank Employees Unions such as the NCBE and INBEF. The agreement was signed between the parties on 29.9.1993, which ultimately culminated into the SBBJ (Employees) Pension Regulations, 1995. The appellant, even though on deputation at that time, cannot pretend to be ignorant about such an important development concerning his condition of service and those of his fellow officers especially when the appellant was working on a senior post of Assistant General Manager. The learned Single Judge in our considered view was not justified in accepting this assertion of the appellant on his mere ipse dixit. The writ petition itself was filed with delay of six years. 19. Even otherwise Regulation 19 (1) of the Regulations of the State Bank of Bikaner & Jaipur (Officers’) Service Regulations, 1979, which was applicable to respondent when he resigned, provided that an officer shall retire from the service of the Bank on attaining the age of fifty eight years or upon the completion of thirty years, whichever comes first. Fourth proviso to the Regulation 19 (1) provides further that an officer who has completed 25 years’ service may be permitted by the Executive Committee to retire from the Banks service, subject to his giving three months’ notice in writing or pay in lieu thereof unless this requirement is wholly or partly waived. On the day the respondent tendered resignation i.e. 27.6.1994, he did not complete requisite twenty five years of service, which was short by more than five years. Besides that, Regulation 29 of the Pension Regulations of 1995 also puts a rider on the right of those on deputation to straightaway seek voluntary retirement. Regulation 29 (1) provides that on or after the 1st day of November, 1993 at any time after an employee has completed twenty years of qualifying service he may by giving notice of not less than three months in writing to the competent authority retire from service. Regulation 29 (1) provides that on or after the 1st day of November, 1993 at any time after an employee has completed twenty years of qualifying service he may by giving notice of not less than three months in writing to the competent authority retire from service. This provision thus in effect reduced the qualifying period of service for the purpose of voluntary retirement from 25 years to 20 years. This provision itself has come into effect on 29.9.1995 much after tendering of resignation by the respondent on 27.6.1994. Even otherwise, this provision is subject to a rider contained in first proviso thereof in the terms that this sub-regulation shall not apply to an employee who is on deputation or on study leave abroad unless after having been transferred or having returned to India, he has resumed charge of the post in India and has served for a period of not less than one year. In either of the eventualities, the respondent-writ petitioner would not be entitled to claim benefit of pension. 20. In view of above discussion, the impugned order passed by the learned Single Judge dated 30.6.2004 cannot be sustained and is set aside and consequently the appeal is allowed and the writ petition is dismissed with costs.