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Gujarat High Court · body

2018 DIGILAW 344 (GUJ)

JAYENDRA N SHAH v. PUNJAB NATION BANK

2018-02-01

MOHINDER PAL

body2018
JUDGMENT : 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the inaction on the part of the respondents in not extending the benefits of pension scheme as extended in pursuance to the 9th Bi-partite Settlement/Joint Note dated 27.4.2010, despite the fact that the petitioner had opted for pension scheme well in time. 2. Facts leading to this petition are that the petitioner is an ex-employee of the respondent no. 1-Bank. He was appointed as a clerk/cashier in the respondent no. 1-Bank on 10.5.1979. On 9.10.1998, a show-cause notice was served upon the petitioner proposing punishment of “Dismissal without notice” from the Bank service in terms of Clause 19.6(a)of the Bi-partite Settlement. However, after hearing the petitioner and considering the relevant records and circumstance of the case, the punishment of “Discharge from services” with superannuation benefits as would be due otherwise, without disqualification from future employment in terms of clause 19.6(b) of the Bi-partite Settlement was substituted upon the petitioner vide order dated 30.11.1998. 3. The 9th Bi-partite Settlement was arrived at in April, 2010 which was signed between Indian Banks' Association and All India Banks Employees Association, whereby, one more option for pension scheme was extended to those employees who were in the service of the Banks prior to 29th September, 1995 in case of Nationalized Banks and who did not opt for pension and had retired after that date subject to their opting to be under the Pension Scheme and refunding the banks' contribution to Provident Fund with interest paid to them at the time of retirement and also contribute their share in meeting 30% of the funding gap. 4. In pursuance to this settlement, a circular came to be issued on 20.9.2010 inviting applications from the employees who were in service of bank prior to 29.9.1995 and who did not opt for pension scheme. 5. The petitioner went to respondent no. 1 bank and initiated the proceedings for availing the benefit of pension scheme. In pursuance to submission of option form, the petitioner was asked to deposit the amount of banks' contribution to PF Fund paid to him i.e. 156% of such contributions. Accordingly, the petitioner deposited an amount of Rs. 1,67,046.30ps with the respondents. The said amount was deposited by the petitioner after borrowing from his relatives and friends. In pursuance to submission of option form, the petitioner was asked to deposit the amount of banks' contribution to PF Fund paid to him i.e. 156% of such contributions. Accordingly, the petitioner deposited an amount of Rs. 1,67,046.30ps with the respondents. The said amount was deposited by the petitioner after borrowing from his relatives and friends. Though the petitioner completed all the required formalities, but the respondents on 12.1.2011 informed the petitioner that he does not come under any of the categories defined therein and cannot be considered for pension scheme. Aggrieved from this decision by the respondents, the petitioner has approached this Court by way of this petition. 6. After notice, the respondents have contested this petition by filing affidavit-in-reply, wherein, it has been stated that the petitioner was not retired from service, on the contrary, he was discharged from service by way of punishment imposed upon him in respect of the charge-sheet dated 20.6.1998. Thus, in view of termination of an employee on account of punishment, he does not come under the purview of definition of 'retirement' in Punjab National Bank (Employees') Pension Regulations, 1995. Thus, the petitioner was not eligible to exercise another option for pension in terms of the settlement dated 27.4.2010. Accordingly, his request to exercise another option for pension was declined by the bank and the PF was refunded as per its replies dated 28.1.2011 and 10.3.2011. Finally, the respondents have prayed for dismissal of the petition. 7. Learned counsel for the petitioner has referred to the order dated 30.11.1998 and has submitted that earlier the authorities have imposed the punishment of dismissal from service, however, the order of dismissal has been modified vide order dated 30.11.1998 and dismissal has been converted into discharged from service with superannuation benefits as would be due otherwise, without disqualification from future employment in terms of clause 19.6.(b) of Bipartite Settlement. The relevant para of this order is reproduced as under: “I, therefore, decide to impose upon you the punishment of 'Discharged from service', with superannuation benefits as would be due otherwise, without disqualification from future employment, in terms of Clause 19.6(b) of the BP Settlement. Accordingly, I impose the punishment of 'Discharged from service' on you with immediate effect. I, also decide not to pay any salary etc. to you for the period of suspension other than the subsistence allowance, which is already paid to you. Accordingly, I impose the punishment of 'Discharged from service' on you with immediate effect. I, also decide not to pay any salary etc. to you for the period of suspension other than the subsistence allowance, which is already paid to you. I decide the case accordingly.” 8. Learned counsel for the petitioner has further relied upon the decision of the Hon'ble Apex Court in the case of Bank of Baroda vs. S.K. Kool (D) Through L.Rs. And Anr., reported in AIR 2014 SC 915 . 9. On the other hand, learned counsel for the respondents has submitted that, in fact, the petitioner has been discharged on account of punishment imposed upon the petitioner and does not come under the purview of definition of “retirement” in Punjab National Bank (Employees') Pension Regulations, 1995. According to him, in fact, as per clause 21 sub-clause (iv)(b), an employee who is compulsorily retired/removed from service/discharged with superannuation benefits, as would be due otherwise, at that stage and without disqualification from future employment shall not be entitled to the benefits of pension granted by the Circular of 2010. According to him, as on the relevant date in the year 1998, the petitioner was not entitled to superannuation benefits, he cannot be extended the benefits of pension which will be available to other employees. 10. This Court has considered the submissions of both the sides. It could be seen that initially the petitioner was imposed the punishment of dismissal from service, however, in pursuance to his representation, the final order came to be passed on 30.11.1998, according to which, the punishment has been replaced by 'discharged from service' with superannuation benefits as would be due otherwise without disqualification from future employment in terms of clause 19.6(b) of the Bi-partite settlement. 11. It could be seen that petitioner has been discharged from service under Clause 19.6(b) of Bipartite Settlement. Clause 19.6 was available only in First Bipartite Settlement and is not there either in Sixth or seventh Bipartite Settlement. Clause 19.6 of First Bipartite Settlement is reproduced as under: 19.6 An employee found guilty of gross misconduct may: (a) Be dismissed without notice; OR (b) Be warned or censured, or have an adverse remark entered against him; OR (c) Be fined; OR (d) Have his increment stopped; OR (e) Have his misconduct condoned and be merely discharged. 12. Clause 19.6 of First Bipartite Settlement is reproduced as under: 19.6 An employee found guilty of gross misconduct may: (a) Be dismissed without notice; OR (b) Be warned or censured, or have an adverse remark entered against him; OR (c) Be fined; OR (d) Have his increment stopped; OR (e) Have his misconduct condoned and be merely discharged. 12. From the order dated 30.11.1998, it is apparent that the petitioner has been imposed punishment of dismissal which has been replaced with discharged from service with superannuation benefits as would be due otherwise, without disqualification from future employment in terms of clause 19.6(b) of the Bipartite Settlement. Meaning thereby, the petitioner can be warned or censured or at the most an adverse remarks could have been entered in his service record. This Court is of the considered opinion that once the order of dismissal has been replaced with the order of discharged from service with superannuation benefits, the petitioner cannot be denied with the subsequent benefits of grant of pension which are available to the similarly situated other employees. 13. Learned counsel for the respondents has tried to build up a case that, in fact, the petitioner has been retired as per Clauses 21 and 22 of the Sixth Bipartite Settlement, however, there is no such mention of these clauses in the modified order dated 30.11.1998. On the contrary, the decision of the Hon'ble Apex Court relied upon by the learned counsel for the petitioner in the case of Bank of Baroda vs. S.K. Kool (D) Through L.Rs. And Anr., reported in AIR 2014 SC 915 is fully applicable to the facts of this case, wherein, it has been held as under: “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 Clause6(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. 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.” 14. It could be seen that case of the present petitioner is on better footing than the aforementioned case, as the punishment of the petitioner from dismissal from service has been substituted with discharged from service with all consequential benefits. It is further relevant to note that after the petitioner has applied for pensionary benefits, he was allowed to deposit the bank's contribution amounting to Rs. 1,67,046.30ps with the respondents. This money remained with the respondents from time to time, however, later on, it has been returned back to the petitioner as the petitioner has raised loan from is relatives and friends on higher rate of interest. 15. In view of the foregoing discussions, this petition is allowed. The petitioner is held entitled to superannuation benefits including the benefits as per the scheme of the respondents vide circular dated 20.9.2010. The entire amount of arrears, to which, the petitioner is ultimately found entitled, shall be paid along with interest at the rate of 6% per annum from the date such arrears fell due, till its actual payment. The amount of arrears shall be disbursed within a period of six weeks from the date of receipt of the copy of this order. However, the petitioner will deposit Bank's contribution to PF Fund paid to him i.e. 156% (100% towards bank's PF contribution with 56% additional amount) with interest at the rate of 6% per annum within a period of six weeks from the date of receipt of the copy of this order. Rule made absolute.