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2021 DIGILAW 492 (ORI)

Satya Narayan Dora v. State Bank Of India

2021-12-08

B.R.SARANGI

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JUDGMENT Dr. B.R. Sarangi, J. - The petitioner, who was working as Cashier-cum-Clerk-cum-Typist (CCT) under the State Bank of India, has filed this writ petition seeking a writ of mandamus to the opposite parties to sanction pension under the State Bank of India Employees' Pension Fund Rules, with effect from 01.03.2013, on his retirement on attaining the age of superannuation on 28.02.2013. The petitioner further seeks for direction to the opposite parties to pay interest @ 12% per annum on the amount of arrears of pension due to him with effect from 21.03.2015, i.e. the date from which the award became enforceable under Section 17A(1) of the Industrial Disputes Act, 1947, till the same is actually paid. 2. The facts of the case, in a nutshell, are that, the petitioner joined in the permanent post of Cashier-cum-Clerk-cum-Typist (CCT) in State Bank of India on 18.01.1979. While he was working in the Temple Road Branch, Puri, on 30.10.1986, the opposite party-bank placed him under suspension. Steps were also taken to prosecute him by the Central Bureau of Investigation (CBI). Before investigation was completed, the opposite party bank conducted a domestic enquiry against the petitioner and after holding him guilty, dismissed him from service on 17.02.1990. Subsequently, the CBI refused to prosecute the petitioner and consequentially, the Additional Chief Judicial Magistrate, Bhubaneswar discharged him from the case on 03.12.1990. Against dismissal from service on 17.02.1990, the petitioner raised an Industrial Dispute before the Labour Commissioner, Bhubaneswar. The Central Government, vide order dated 28.08.1991 referred the said dispute to the Industrial Tribunal, Orissa, Bhubaneswar for adjudication with the following schedule of reference:- 'Whether the action of the Regional Manager, State Bank of India, Bhubaneswar in dismissing Shri Satya Naryan Dora, C.C.T. from service with effect fro 17-2-1990 is legal and justified? If not, to what relief the workman is entitled to?' 2.1 The Industrial Tribunal, Orissa, Bhubaneswar decided the preliminary issue and passed an order on 18.10.1997 holding the inquiry conducted against the petitioner as unfair and improper. The opposite party bank challenged the same before this Court by filing OJC No. 16529 of 1997. This Court, vide order dated 06.05.2008, without interfering with the order dated 18.10.1997 on the preliminary issue, remitted the matter back to the Industrial Tribunal, Bhubanesar giving liberty to the Bank to lead evidence if it so wanted. The opposite party bank challenged the same before this Court by filing OJC No. 16529 of 1997. This Court, vide order dated 06.05.2008, without interfering with the order dated 18.10.1997 on the preliminary issue, remitted the matter back to the Industrial Tribunal, Bhubanesar giving liberty to the Bank to lead evidence if it so wanted. In the meantime, the said case was transferred from Industrial Tribunal, Orissa, Bhubaneswar to Central Government Industrial Tribunal (CGIT)- cum-Labour Court, Bhubaneswar and re-numbered as Tr. I.D. Case No. 91 of 2001. After due adjudication, the Presiding Officer, CGIT, Bhubaneswar, vide its award dated 21.04.2009, held the dismissal of the petitioner as unjust and illegal and directed for reinstatement of the petitioner in service with 50% back wages. The award dated 21.04.2009 was assailed by the opposite party bank before this Court in W.P.(C) No. 19687 of 2009. This Court, vide order dated 22.01.2014, quashed the relief granted in the award, but upheld the finding of the Tribunal on the preliminary issue and remitted the matter to the CGIT for passing fresh order after hearing arguments from both sides without taking any fresh evidence. As a consequence thereof, the CGIT passed its award on 19.01.2015 holding that the action of the 1st party management (opposite party herein) is not legal and justified in imposing the punishment of dismissal from service of the workman Shri Dora (petitioner herein) with effect from 17.02.1990. Accordingly, the CGIT directed the 1st party management (opposite party herein) to pay an amount of Rs.25.00 lakhs towards compensation to the petitioner. The 1st party management was also directed to pay 50% of the back wages to the petitioner with effect from the date of his dismissal, i.e. 17.02.1990 till the date of his retirement on superannuation, i.e. 28.02.2013. Such award was directed to be implemented within three months from the date of publication of the same in the Gazette of India, failing which the the opposite party bank was directed to pay simple interest @ 12% per annum to the petitioner. 2.2 The above award of the CGIT dated 19.01.2015 passed in Tr. I.D. Case No. 91 of 2001 was notified by the Government of India, vide Notification No.L-12012.153/91-IR(B-I) dated 19.02.2015 and was published in Part-II-Section-3, Sub-section (ii) of the Gazette of India (weekly), February, 15, 2015 to February 21, 2015. 2.2 The above award of the CGIT dated 19.01.2015 passed in Tr. I.D. Case No. 91 of 2001 was notified by the Government of India, vide Notification No.L-12012.153/91-IR(B-I) dated 19.02.2015 and was published in Part-II-Section-3, Sub-section (ii) of the Gazette of India (weekly), February, 15, 2015 to February 21, 2015. As a consequence thereof, the award became enforceable on 21.03.2015, i.e. after 30 days of the Gazette notification, as provided under Section 17A (1) of the Industrial Disputes Act, 1947. 2.3 The said award was challenged by the opposite party bank before this Court in W.P.(C) No. 15925 of 2015. The petitioner also being aggrieved by non-consideration of his case under the applicable service rules, i.e. Para-521 (3) of Sastry Award, challenged the award in W.P.(C) No. 2715 of 2016. This Court, in a common judgment dated 03.08.2016, set aside the order of payment of compensation of Rs.25.00 lakhs and modified award to the following extent:- '11. In view of the above settled position of law, as it appears from the impugned award, the Tribunal has not gone into the aforesaid principle while awarding compensation. The compensation was awarded without any materials available on record and without giving reason. As such the award of compensation being not sustainable, we set aside the same and modified the award accordingly.' As a consequence thereof, the order of dismissal passed on 17.02.1990 having been set aside, the petitioner had to continue in service throughout till he retired on superannuation on 28.02.2013. Accordingly, the petitioner submitted a representation to implement the award and to pay back wages, pension, gratuity etc. The bank credited an amount of Rs.4,00,000/- in the petitioner's bank account on 14.12.2016 and rest amount of Rs.22,31,873/- on 13.04.2017 towards 50% of back wages without furnishing the details of the calculation of the amount. The petitioner submitted a representation on 27.07.2017 to the Regional Manager of opposite party bank requesting for sanction of payment of pension, but the same was not attended to. The petitioner, therefore, submitted another representation on 03.11.2017 requesting to sanction and make payment of pension with effect from 01.03.2013, i.e. 1st day after his retirement on superannuation on 28.02.2013. The same having not been paid, the petitioner approached this Court by filing the present writ petition. 3. Mr. The petitioner, therefore, submitted another representation on 03.11.2017 requesting to sanction and make payment of pension with effect from 01.03.2013, i.e. 1st day after his retirement on superannuation on 28.02.2013. The same having not been paid, the petitioner approached this Court by filing the present writ petition. 3. Mr. Sidhartha Mishra, learned counsel for the petitioner, contended that the dismissal order passed by the authority having been set aside by the CGIT, and such order of the CGIT having been confirmed by this Court, as a consequence thereof, the petitioner has been allowed to continue in service till attaining the age of superannuation, i.e. 28.02.2013. After being retired from service, he is entitled to get the pension as per the rules. The same having not been paid, the petitioner approached this Court in the present writ petition. He also further contended that the petitioner has been paid 50% back wages in compliance to the order passed by the CGIT, which has also been made confirmed by this Court and also allowed to retire from service on 28.02.2013. There is not only delay in payment of dues admissible to the petitioner, but also the pension amount is due to him. Therefore, the opposite parties are liable to pay interest @ 12% per annum with effect from 21.03.2015, i.e. the date from which the award became enforceable under Section 17A(1) of the Industrial Disputes Act, 1947, till the same is actually paid. To substantiate his contention, reliance has been placed in the cases of D.S. Nakara & Others v. Union of India, AIR 1983 SC 130 ; Deokinandan Prasad v. State of Bihar and Ors, AIR 1971 SC 1409 and State of Jharkhand & Ors v. Jitendra Kumar Srivastava & Anr, (2013) 12 SSC 210. 4. Mr. P.V. Balakrishna, learned counsel appearing for the opposite party-State Bank of India, contended that this is the second round of litigation arising out of the award passed by the CGIT and, as such, the same is hit by principle of res judicata. It is further contended that against the award of the CGIT dated 19.01.2015 the petitioner had approached this Court by filing W.P.(C) No. 2715 of 2016, praying for release of full wages, allowances; and to treat the period as on duty. It is further contended that against the award of the CGIT dated 19.01.2015 the petitioner had approached this Court by filing W.P.(C) No. 2715 of 2016, praying for release of full wages, allowances; and to treat the period as on duty. i.e. from the date of his suspension on 30.10.1986 till he attained the age of superannuation on 28.02.2013; and to pay all the retirement benefits to him treating him to have retired on attaining the age of superannuation on 28.02.2013. The said writ petition was disposed of by this Court in a common judgment dated 03.08.2016 by modifying the award dated 19.01.2015 in Tr. I.D. Case No. 91 of 2001 passed by the CGIT. The prayer of the petitioner in the said writ petition was to modify the award dated 19.01.2015 in Tr. I.D. Case No. 91/2001 with a direction for payment of full wages and allowances and all other privileges to the petitioner for the period from 30.10.1986, when he was placed under suspension, till 28.02.2013, when he attained the age of superannuation; and to direct the opposite party-State Bank of India to treat the petitioner as on duty from the date of his suspension, i.e. 30.10.1986 till he attained the age of superannuation on 28.02.2013; and to pay all the retirement benefits to him treating him to have retired on attaining the age of superannuation on 28.02.2013. Therefore, for the self same relief the petitioner could not have approached this Court in the present writ petition. Accordingly, he claimed for dismissal of the writ petition on the ground that the same is hit by the principle of res judicata. 5. This Court heard Mr. Sidhartha Mishra, learned counsel for the petitioner, Mr. P.V. Balakrishna, learned counsel for the opposite parties by hybrid mode and perused the record. Pleadings having been exchanged between the parties, with their consent, this writ petition is being disposed of finally at the stage of admission. 6. The factual matrix, as delineated above, are admitted by both the parties. The only question now remains to be considered whether the petitioner is entitled to get the pension after retirement on attaining the age of superannuation on 28.02.2013. 6. The factual matrix, as delineated above, are admitted by both the parties. The only question now remains to be considered whether the petitioner is entitled to get the pension after retirement on attaining the age of superannuation on 28.02.2013. The preliminary objection raised by the opposite parties is that the present writ petition is hit by principle of res judicata, as the order has already been passed by this Court on 03.08.2016 modifying the award dated 19.01.2015 in Tr. I.D. Case No. 91 of 2001. However, due to non-payment of retrial benefits to the petitioner treating him to have attained the age of superannuation on 28.02.2013, the present writ petition has been filed. Though the order of the CGIT has been complied with, so far as payment of dues till 28.02.2013 is concerned, but the same has also been paid at a belated stage in gross violation of Section 17A (1) of the Industrial Disputes Act, 1947 and as such the petitioner is also entitled to get interest thereof. 7. In Maharashtra Chess Association v. Union of India (UOI) and Ors, Civil Appeal No. 5654 of 2019 (arising out of Special Leave Petition (C) No. 29040 of 2018 decided on 29.07.2019), the apex Court held that mere existence of alternate forum, whether adequate or not, does not alter the fundamentally discretionary nature of the High Courts' writ jurisdiction and, therefore, does not create an absolute legal bar on the exercise of writ jurisdiction by a High Court. The apex Court further observed that in exercising its discretion to entertain a particular case under Article 226, a High Court may take into consideration various factors including the nature of the injustice that is alleged by the petitioner, whether or not an alternate remedy exists, or whether the facts raise a question of constitutional interpretation. 8. On perusal of the order dated 03.08.2016 passed in W.P.(C) No.2715 of 2016, it is evident that at paragraph-6 of the order, it has been mentioned as follows:- '6. The Management challenged such Award dated 19.01.2015 in W.P. (C) No. 15295 of 2015 and prayed for quashing of the same. On the other hand the Workman challenged such Award in W.P.(C) No. 2715 of 2016 on the ground of inadequate relief granted by the Tribunal and prayed for enhancement of the compensation and payment of full wages. The Management challenged such Award dated 19.01.2015 in W.P. (C) No. 15295 of 2015 and prayed for quashing of the same. On the other hand the Workman challenged such Award in W.P.(C) No. 2715 of 2016 on the ground of inadequate relief granted by the Tribunal and prayed for enhancement of the compensation and payment of full wages. As such, the Award dated 19.01.2015 passed in Tr. Industrial Dispute Case No. 91 of 2001 is impugned in both the writ petitions.' Therefore, this Court has taken note of the fact that the relief sought for in W.P.(C) No. 2715 of 2016 does not relate to the pensioanry benefit, as sought for in the present writ petition. Thereby, the present writ petition cannot be said to be a bar by the doctrine of res judicata. Otherwise also, in view of the law stated above, considering the fact that the petitioner is being harassed and arbitrarily deprived of the lawful entitlement of pension, even though his dismissal has been struck down, after 25 years of litigation he is not being paid his pensionary benefit due and admissible to him in accordance with law. This Court has discretionary power vested on it under Article 226 of the Constitution of India to be exercised to do justice to the petitioner. Therefore, the plea taken by the opposite party- bank that the present writ petition is hit by doctrine of res judicata cannot sustain and accordingly the said plea is negatived. 9. Coming to the question of payment of pensioanry benefits to the petitioner, the Central Board of the State Bank of India, in exercise of the powers conferred under Section 50 of the State Bank of India Act, 1955 and after consultation with Reserve Bank of India with the previous sanction of the Central Government, prescribed detailed regulations of the pension scheme applicable to the employees of the Bank by formulating 'State Bank of India Employees' Pension Fund Rules', hereinafter to be referred as 'Pension Rules'. The relevant rules of Pension Rules are extracted below for proper adjudication. '7. The relevant rules of Pension Rules are extracted below for proper adjudication. '7. Save as provided in rule 8 every permanent employee (including a permanent part-time employee who is required by the Bank to work for more than six hours a week) in the service of the Bank, who is entitled to pension benefits under the terms and conditions of his service shall become a member of the Fund from -(a) the date from which he is confirmed in the service of the bank.' xxx xxx xxx 14 An employee dismissed from the Bank's service for willful neglect or fraud shall forfeit all claims upon the fund for pension. xxx xxx xxx 17. Pension shall begin to accrue on the first day succeeding that of retirement and shall be payable monthly to the beneficiary personally or to his order when supported by a life certificate bearing his signature and attested by a magistrate, justice of the peace or banker. xxx xxx xxx 20. Save as provided in rule 21, with effect from 1.11.93, service rendered by an employee/member from the date of his admission to the fund up to the date of retirement in terms of rule 22 infra from Bank's service shall be reckoned as service for pension. xxx xxx xxx 22 (i) A member shall be entitled to a pension under these rules on retiring from the Bank's service- xxx xxx xxx (d) After twenty five years' pensionable service- 23. xxx xxx xxx (4) No pension shall be paid to a member unless it has been sanctioned by the trustees under these rules.' 10. Taking into consideration the aforementioned rules, the petitioner joined in permanent post of CCT under State Bank of India on 18.01.1979 and was confirmed in service on 18.07.1979, after completion of six months probation period, and was admitted as a member of the State Bank of India Employees' Pension Fund Rules, as stipulated in Rule-7(a). As such, he continued as a member till he was dismissed on 17.02.1990. When the dismissal order was struck down by the CGIT and this Court upheld the decision of the CGIT, the employment of the petitioner and his membership under the pension fund are deemed to have not been terminated, but continued throughout till the date of his retirement on attaining the age of superannuation on 28.02.2013. When the dismissal order was struck down by the CGIT and this Court upheld the decision of the CGIT, the employment of the petitioner and his membership under the pension fund are deemed to have not been terminated, but continued throughout till the date of his retirement on attaining the age of superannuation on 28.02.2013. As such, the petitioner has completed more than 34 years of service, which exceeds 25 years of pensionable service as per Rule-22 (i) (d) of the Pension Rules. 11. The legal fiction created in the award passed by the CGIT, where the petitioner is imagined not to have been dismissed, but continued in service throughout, till his retirement on 28.02.2013, which in fact and reality has not happened as per the settled position of law in respect of a legal fiction and has to be given full effect and to be carried to its logical conclusion, imagining its consequence, i.e. the entitlement of the petitioner to pension after retirement on superannuation, also as real. As the petitioner has fulfilled all the requirement of the Pension Rules as has been discussed above, he is entitled to get the pension and more so, such pension is accrued with effect from 01.03.2013 under Rule-17 of the Pension Rules. 12. If the consideration is made from other angle, the definition of the term 'wages' under Section 2 (rr) of the Industrial Disputes Act, 1947, the order by the CGIT for payment of wages @ 50% for the entire period from the date of illegal dismissal on 17.02.1990 till the date of retirement of the petitioner on superannuation on 28.02.2013, clearly implied that the Tribunal deemed that the terms of employment of the petitioner with opposite parties was fulfilled for which it ordered for payment of wages @ 50% for the said period. The petitioner having been paid wages for his employment with the State Bank of India till his retirement on superannuation on 28.02.2013, he is entitled to get pension with effect from 01.03.2013 under Rule-17 of the Pension Rules. 13. In D.S. Nakara (supra), at paragraph-31, the apex Court observed that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right. 14. 13. In D.S. Nakara (supra), at paragraph-31, the apex Court observed that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right. 14. In Deokinandan (supra), the apex Court at paragraph-29 observed as follows 'that the grant of pension does not depend upon any order. It is only for the purpose of quantifying the amount having regard to the service and other allied matters that it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of any such order but by virtue of the rules.' 15. In Jitendra Kumar (supra), the apex Court at paragraph-8 observed as follows:- 'It is thus hard earned benefit which accrues to an employee and is in the nature of 'property'. This right to property cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India.' 16. Therefore, in view of the settled position of law, as discussed above, the right to receive pension does not depend on any order and it flows by virtue of the Pension Rules. The pension accrued to the petitioner under the statutory provisions of the Pension Rules, is in a nature of property, which cannot be taken away by the opposite parties without due process of law. As a consequence thereof, the pension, which has been accrued to the petitioner under the Pension Rules, cannot be denied to him without adopting due process of law. Since there is no adherence of any rule for denying the benefit admissible to the petitioner under the Pension Rules, the same cannot be withheld or stopped or denied to the petitioner in any manner. Consequentially, the opposite parties are obliged under law to pay pension to the petitioner. 17. So far as the claim towards interest is concerned, in view of the provisions contained under section 17A(1) of the Industrial Disputes Act 1947, the award shall become enforceable on the expiry of thirty days from the date of its publication under section 17. Since the award was published on 21.02.2015 and the same became enforceable after 30 days of its publication in official gazette, with effect from 21.03.2015, which has also been confirmed by this Court by order 03.08.2016. Since the award was published on 21.02.2015 and the same became enforceable after 30 days of its publication in official gazette, with effect from 21.03.2015, which has also been confirmed by this Court by order 03.08.2016. Thereby, the petitioner is also entitled to get interest at least @12% per annum on the amount of arrear pension as due and admissible to him in accordance with law. 18. In view of the fact and law, as discussed above, this Court directs the opposite parties to pay the pension to the petitioner with effect from 01.03.2013, as the due date of retirement was 28.02.2013 and also to pay interest @ 12% per annum with effect from 21.03.2015 for the delayed payment of arrear pension amount to the petitioner, in view of the provisions contained under Section 17A(1) of the Industrial Disputes Act, 1947, till the same is actually paid. 19. Accordingly the writ petition is allowed. No order as to costs.