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2021 DIGILAW 258 (HP)

Roshan Deen v. Bank of Baroda

2021-04-23

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present writ petition under Article 226 of the Constitution of India is maintained by the petitioner against the respondents praying therein for the following substantive reliefs : (i) “That rejection of the option of the petitioner vide letters dated 8.11.2010, Annexure P9, 7.1.2011, Annexure P10, 8.2.2013, Annexure P14 and 28.2.2013, Annexure P15 may kindly be set aside; (ii) That if it is found that there is anything in the Joint Note dated 27.4.2010, Annexure P6 and clarification dated 9.11.2012, Annexure P11 excluding the category of prematurely retired officer on total incapacity for the purpose of exercising option for Pension Scheme, in that event such exclusion may also be quashed and set aside being in violation of Articles 14 and 16 of the Constitution of India, with all consequential benefits; (iii) That the respondent Bank may be directed to accept the option of the petitioner, Annexure P8 submitted pursuant to Joint Note dated 27.4.2010, Annexure P6 circulated vide circular dated 9.9.2010, Annexure P7 and another option submitted by him vide Annexure P13, pursuant to clarification dated 9.11.2012, Annexure P11 and consequently he may be held entitled to the pensionary benefits becoming due and payable to him as per Pension Regulations 1995, with all consequential benefits. 2. As per the petitioner, he joined as Accounts Clerk in respondent Bank on 27.2.1978 and he was promoted as Special Assistant on 25.3.1985 and thereafter promoted as an Officer Scale-I on 1.2.1990. 3. It has been submitted that in the year 1995, the Bank of Baroda (Employees’) Pension Regulations, 1995 Annexure P1 were notified and as per Regulation 3(3) of these Regulations, the Regulations were applicable to the employees in service of the Bank before the notified date, who continued in service on or after the notified date and exercised an option in writing within 120 days from the date notified to become the member of the fund. The petitioner did not exercise any option under the aforesaid Regulations. 4. It has been averred that the petitioner met with an accident in 1996 and he was promoted as an Officer Scale-II in 1997. However, on account of serious injuries sustained by him, he was under treatment in CMC, Ludhiana and as such, he opted to forgo the said promotion. 5. 4. It has been averred that the petitioner met with an accident in 1996 and he was promoted as an Officer Scale-II in 1997. However, on account of serious injuries sustained by him, he was under treatment in CMC, Ludhiana and as such, he opted to forgo the said promotion. 5. It has been submitted that the respondent-Bank issued circular dated 14.10.2005 whereby Scheme for “Payment of Ex-gratia amount in lieu of appointment of dependents of deceased employees on compassionate grounds in exceptional cases” which was introduced and the aforesaid Scheme was modified vide circular dated 2.2.2006. 6. It has been submitted that the petitioner submitted representation dated 27.12.2006, Annexure P3, relying on Annexure P2, Scheme and applied for premature retirement on the ground of his total incapacitation. It has been submitted that the respondent-Bank further modified the Scheme circulated on 14.10.2005 and modified on 2.2.2006 vide circular dated 12.11.2007, Annexure P4. 7. It has been averred that vide letter dated 20.12.2007, Annexure P5, the petitioner was informed that the competent authority had favourably considered his retirement under the scheme for financial relief to employees seeking retirement on the grounds of total incapacitation and that the bank had sanctioned Rs. 8 lacs (Rupees eight lacs) AS FINANCIAL RELIEF under the above Scheme payable to him only after settlement of terminal benefits and recovery of all dues. He was relieved from Bank service with effect from 20.12.2007. Further, it has been averred that in terms of Agreement/ Joint Note dated 27.4.2010, the respondent Bank vide circular dated 9.9.2010, decided to give option to join the “Captioned Pension Scheme” to the categories of employees detailed therein. The petitioner submitted his option for joining the Pension Scheme in question vide his representation with stipulated time. 8. It has been submitted that vide letter dated 8.11.2010, the petitioner was informed as under: “…. present second option is extended to those who have (I) superannuated on retirement (ii) opted for VRS under BOBEVRS 2001 and (iii) dependents of the employees who have superannuated on retirement or opted for VRS under BOBEVRS 2001.” The petitioner was informed that in view of the aforesaid position he did not fall within eligibility criteria for exercising the option. Further, that the petitioner submitted another representation dated 19.11.2010, requesting therein that he was entitled to exercise option and made a request to reconsider his case. 9. Further, that the petitioner submitted another representation dated 19.11.2010, requesting therein that he was entitled to exercise option and made a request to reconsider his case. 9. It has been submitted that vide letter dated 7.1.2011 the petitioner was informed as under: “In this connection, we have to inform that your request for allowing another option for pension has been examined, in terms of Bipartite Settlement/Joint Note dated 27.4.2010 and in consultation with IBA, Mumbai, and have to advise you that another option for pension cannot be extended to you as you have taken premature retirement on account of total incapacitation, which is outside the purview of Bipartite Settlement/Joint Note dated 27.4.2010.” 10. It has been averred that the Indian Banks’ Association vide circular dated 9.11.2012, issued further clarifications with a view to provide another option for pension to non-optees for Pension Scheme of 1995. Further, that pursuant to circular dated 9.11.2012 of Indian Banks’ Association, the respondent Bank issued circular dated 4.12.2012, giving another option to join Pension Scheme to eligible officers who had taken voluntary retirement in terms of Regulation 19(1) of the Bank of Baroda Officers Regulations, 1979. Hence, the petitioner accordingly submitted his option to join the aforesaid Pension scheme. 11. It has been submitted that vide letter dated 8.2.2013, the petitioner was informed as under: “….you have opted for premature retirement on the grounds of total incapacitation from Banks Service and your case does not fall within the eligibility criteria.” 12. The petitioner submitted another representation dated 18.2.2013 for allowing him to opt for pension. Further, submitted that vide letter dated 28.2.2013, the petitioner was informed that in terms of relevant circular those officers who had opted for voluntary retirement under Regulation 19(1) of BOBOSR, 1979 only were covered and that petitioner does not fall in the eligibility criteria. 13. Reply to the petition filed and as per the respondent, the present petition is misconceived, malafide and vexatious and has been moved simply with the purpose to gain the benefit under the Scheme retrospectively, which otherwise is not available to him. 13. Reply to the petition filed and as per the respondent, the present petition is misconceived, malafide and vexatious and has been moved simply with the purpose to gain the benefit under the Scheme retrospectively, which otherwise is not available to him. It has been submitted that on 30.05.2007, the petitioner sought premature retirement from Bank’s service under Cl.VI(a) of the Scheme/ Circular dated 12.11.2007 for the “Payment of Exgratia amount in lieu of appointment on compassionate grounds or appointment of dependents of the deceased employees on compassionate grounds in exceptional cases” hereinafter called the “Scheme”, which was meant for financial relief to the dependents of the deceased employees/ employees retiring on total incapacitation on compassionate grounds and at that time, the petitioner was Manager, posted at Clock Tower Branch, Ludhiana and suffering from permanent brachial plexus injury causing monoplegia of right upper limb with permanent shooting pains due to neuralgia and tennis elbow of left arm. He was examined by the Standing Medical Board, Civil Hospital, Ludhiana, who had declared him unfit for Banking job. After completion of necessary formalities, which were found in order, he was sanctioned an amount of Rs.8,00,000/. 14. It has been submitted that while sanctioning the premature retirement, the petitioner was also considered and given the financial Ex-gratia relief of Rs.8 lacs, which was given to him considering the fact that he was of a pension optee (of first pension option in the year 1995). The benefits of pension were to an extent factored in the above amount of Rs.8 lacs and therefore, the petitioner could not now again claim for pension benefits. Further, submitted that the decision was conveyed by Head Office to Assistant General Manager, Chandigarh vide letter dated 10.12.2007 and accordingly the petitioner was relieved from Bank’s service on 20.12.2007. Hence, the petitioner is estopped from claiming any benefit under any other scheme which were non-existent at the time of his retirement. Furthermore, no benefit on subsequent circulars can be taken once the option is exercised by the petitioner and the Ex-gratia amount of Rs. 8 lacs stood accepted. 15. It has been submitted that the petition is bad for nonjoinder of necessary parties. Furthermore, no benefit on subsequent circulars can be taken once the option is exercised by the petitioner and the Ex-gratia amount of Rs. 8 lacs stood accepted. 15. It has been submitted that the petition is bad for nonjoinder of necessary parties. Since the Union of India, Indian Banks Association and other Workmen Unions, who were party to the Agreement/Joint Note dated 27.04.2010, on which basis the circular dated 9.9.2010 and the option to join Pension Scheme was floated/ extended to the employees of the respondent-Bank, have not been impleaded, hence, the replying respondent has prayed for dismissal of the present petition. 16. I have heard the learned counsel for the parties and gone through the record. 17. Mr. Dilip Sharma, learned senior counsel for the petitioner has argued that the petitioner has given option for pension within the stipulated time, but when his option was rejected, the petitioner cannot deposit the retiral benefits within the stipulated time and thereafter, he maintained the present writ petition. He has further argued that the petitioner has been discriminated vis-a-vis other similarly situated persons. 18. Mr. Deepak Bhasin alongwith Mr. Sambhav Bhasin, learned counsel for the respondent-Bank has argued that the petitioner already stood retired from service and thereafter he made an application for the pension and so it could not be considered and rightly rejected by the respondent-Bank. 19. In rebuttal, Mr. Dilip Sharma learned senior counsel for the petitioner has argued that in fact the Scheme was for all the persons in service or who has retired. 20. After hearing the learned counsel for the parties, I have gone through the record in detail. 21. This Court finds that the Scheme was introduced by the respondent-Bank. This Scheme covers retired persons. The respondent-Bank has in the similar circumstances after getting the retiral benefits deposited, allowed the pension to one similarly situated persons. Further, vide Circular dated 04.12.2012, the respondent-Bank has issued the Circular and Condition No.A of which reads as under: “A. Officers who were in service of the bank prior to 29 th September 1995 and had taken voluntary retirement from Bank’s service on or after 29.9.1995 upto 11.11.2010 under Regulation 19(1) of Bank of Baroda Officers’ Service Regulations 1979. I. Such employees shall exercise an option in writing within 60 days from the date of offer to become a member of the Pension Fund and; II. I. Such employees shall exercise an option in writing within 60 days from the date of offer to become a member of the Pension Fund and; II. Shall refund within 30 days after expiry of the said period of 60 days, the entire amount of the bank’s contribution to the Provident Fund and the interest accrued thereon received by the officer on voluntary retirement together with his/ her share in contribution towards meeting the funding gap. On an individual basis the payment over and above the bank’s contribution to Provident Fund and interest thereon has been worked out at 56% of the said amount of bank’s contribution to Provident Fund and interest thereon received by the officer on voluntary retirement, i.e. (a) Bank’s Contribution to Provident Fund + (a) Interest thereon + (c) 56% of (a) & (b).” “…..The option to join pension scheme can be exercised during 04.12.2012 to 01.02.2013 (both days inclusive) i.e 60 days. The ex-employees who have completed one year from their date of cessation from service on account of voluntary retirement under Regulation 19(1) of Bank of Baroda Officers’ Service Regulations 1979 and desirous to commute a fraction of pension (maximum 1/3rd) are required to undergo medical examination and produce fitness certificate in the proforma attached to this circular. Please note that only surviving ex-employee can commute the pension and dependents apply for family pension are not eligible to commute the pension. Please note that to avoid any loss on account of any sort of delay, if option for commutation is submitted within the above period of 60 days, the date of commutation is fixed as 01.02.2013 for those who have voluntarily retired under Regulation 19(1) of Bank of Baroda Officers’ Service Regulation 1979, prior to 01.02.2013. This will mean that they will be paid full pension from 27.11.2009 provided that employees/ officers who voluntarily retired under Regulation 19(1) of Bank of Baroda Officers’ Service Regulations 1979 after that date shall get pension from the respective dates of their voluntary retirement till above date i.e. 01.02.2013 and from aforesaid date, reduced pension will be payable. The period of 15 years for restoration of the commutation will also start from aforesaid date.” 22. The Pension Regulations, 1995 deals with the pension. The period of 15 years for restoration of the commutation will also start from aforesaid date.” 22. The Pension Regulations, 1995 deals with the pension. The distinction between voluntary retirement and premature retirement on the basis of physical incapacitation is not a regulation classification and the petitioner constitute the clause of the people of voluntary retirement, as the petitioner was eligible under the Pension Regulations, 1995. In these circumstances, this Court comes to the conclusion that the rejection of the proposal of the petitioner and not allowing him to deposit the retiral benefits within the stipulated time is not legally permissible as the classification made by the respondent-Bank is an unreasonable classification beyond the confines of legitimacy. 23. In these circumstances, the present writ petition is allowed and it is ordered that the respondent-Bank will consider the case of petitioner for the pension under the Schemes issued by the respondent-Bank from time to time and especially as per the Circular dated 04.12.2012 and allow the petitioner to deposit the retiral benefits including compensation in lieu of not availing the benefit of compassionate appointment alongwith interest at the rate applicable to the house loan from time to time and thereafter grant him pension in accordance with the Rules and notifications issued from time to time. 24. In the peculiar facts and circumstances of the case, the instant writ petition is allowed alongwith costs which is quantified as Rs.10,000/. Pending application(s) if any, shall also stands disposed of.