IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 21721 of 2002(J)
1. ALL INDIA BANK VOLUNTARY RETIRED
... Petitioner
2. R. RADHAKRISHNAN, S/O. V. RAGHAVAN
3. P.G. NARAYANA PANICKER,
4. BABU. P.P., SIMI NIVAS,
5. R. DHANALAKSHMY, 3/372,
6. K. USHPAVALLY, C-6, T.C.C. COLONY,
7. N.K. NATHAN, PULIMOOTTIL HOUSE,
8. C. KRISHNAKUMARI, "SAROJ"
9. M.R. CHANDRASEKHARAN PILLAI,
10. ALICE MARY, CHIRAYATH HOUSE,
11. A. VENKATESH, SREEKARA MADOM,
Vs
1. THE CHAIRMAN AND MANAGING DIRECTOR,
... Respondent
2. BOARD OF DIRECTORS, C/O. INDIAN BANK,
3. UNION OF INDIA, REPRESENTED BY
For Petitioner :SMT.SUMATHY DANDAPANI (SR.)
For Respondent :SRI.P.K.RAMKUMAR, ADDL.CGSC
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :27/03/2009
O R D E R
S. Siri Jagan, J.
=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=
O.P. No. 21721 of 2002
=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=
Dated this, the 27th March, 2009.
J U D G M E N T
The petitioners are employees who voluntarily retired from the
service of the Indian Bank by availing of the benefits of Ext. P2
scheme, namely, Indian Bank Voluntary Retirement Scheme, 2000, in
the years 2000 and 2001 but after 1-9-2000. Under that scheme,
apart from the ex-gratia benefits offered, the persons retiring
voluntarily under the scheme would be entitled to the following three
benefits:
“1. Gratuity as per Gratuity Act/Service Gratuity as the case may
be.
2. Pension (including commuted value of pension) as per Indian
Bank (Employees’) Pension Regulations 1995/Bank’s contribution
towards provident fund as per rules.
3. Leave encashment as per rules.”
Ext. P1 is the extract from the Indian Bank (Employees) Pension
Regulations, 1995. In clause 29(5) thereof , the qualifying service of
an employee retired voluntarily under that Regulation shall be
increased by a period not exceeding five years, subject to the
condition that the total qualifying service rendered by such employee
shall not in any case exceed thirty-three years and it does not take
him beyond the date of superannuation. According to the petitioners,
the petitioners are also entitled to have the same benefit in so far as
the pension regulations as a whole have been made applicable to
those persons who voluntarily retire under the voluntary retirement
scheme. However, for the purpose of calculating their pension,
weightage of five years provided for in Regulation 29(5) was not given
to them. They filed a representation, Ext. P5, before the Bank which
was rejected by Ext. P6, order holding that the addition of five years
O.P.. No. 21721/2002 -: 2 :-
of qualifying service would be applicable only to those who retire
voluntarily under Regulation 29 and not to those who retire
voluntarily under the scheme which is not contemplated by the Rules.
The petitioners are challenging Ext. P6 order seeking the following
reliefs:
“i) Issue a writ of mandamus or other appropriate writ, order
or direction directing the respondent Bank to disburse pension
and other benefits extending the benefit of increase of qualifying
service by 5 years as provided under Rule of Ext. P1 Regulations
to the petitioners.
ii) issue a writ of certiorari or other appropriate writ, order or
direction quashing Ext. P4 and P6 and similar orders issued in
respect of all the petitioners.
iii) declare that the voluntary retires like the petitioners under
Ext. P2 scheme is entitled to get their pension fixed and paid by
increasing their qualifying service by 5 years as provided under
Rule 29(5) of the pension Regulations of Ext. P1.”
2. A counter affidavit has been filed supporting the impugned
order. According to respondents, the petitioners are not persons who
have retired voluntarily under Regulation 29, to whom only the
benefit under Regulation 29(5) is applicable. The petitioners being
employees who retired voluntarily under a scheme not envisaged in
the Rules, they are not to be treated as persons retired voluntarily
under Regulation 29(5) and therefore they are not entitled to the
benefits of Regulation 29(5), is the contention raised by the learned
counsel for the Bank. According to him, the petitioner is only entitled
to pension as calculated for a person who retires on superannuation
as per the Rules. He also submits that Regulation 28 of the Pension
Regulations has been amended with effect from 1-9-2000, adding a
proviso, as as a result of which persons who retire voluntarily under
the scheme is taken out of the purview of Regulation 29. He relies on
the decision of the Supreme Court in Bank of Baroda & Others v.
Ganpat Singh Deora, CDJ 2008 S C 2115, wherein while upholding
O.P.. No. 21721/2002 -: 3 :-
similar amendment to the Regulation of Baroda Bank, which is in pari
materia with that of Indian Bank Regulations, the Supreme Court
held that persons voluntarily retired under a scheme is not eligible for
the benefit of Regulation 29 and sub clause (5) thereof.
3. I have considered the rival contentions in detail.
4. The relevant provision of Regulation 29(5) reads thus:
“29. Pension on Voluntary Retirement:-
(1) On or after the first 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 appointing authority retire from service;
xx xx xx
(5) The qualifying service of an employee retiring voluntarily
under this regulation shall be increased by a period not exceeding
five years, subject to the condition that the total qualifying service
rendered by such employee shall not in any case exceed thirty-
three years and it does not take him beyond the date of
superannuation.”
(underlining supplied)
The argument of the petitioners is that the pension regulations
envisage only three types of pension namely, (1) superannuation
pension, (2) pension on voluntary retirement and (3) invalid pension.
In so far as the petitioners are not eligible for superannuation pension
and invalid pension, the only other class of pensioners to which they
can be fitted into is persons who have retired voluntarily. According
to them, the case of persons who retire voluntarily is covered by
Regulation 29 and notwithstanding the fact that Regulation 29 speaks
about persons who retired from service after completing 20 years
giving three months’ notice, the petitioners should be construed as
persons voluntarily retired as per Regulation 29.
5. I am unable to countenance that contention because of the
O.P.. No. 21721/2002 -: 4 :-
amendment to regulation 28, which reads thus:
“28. Superannuation Pension: Superannuation Pension shall be
granted to an employee who has retired on his attaining the age of
Superannuation specified in the Service Regulations or settlements.
Provided that, with effect from 1st day of September, 2000, Pension
shall also be granted to an employee who opts to retire before
attaining the age of Superannuation, but after rendering service for
a minimum period of 15 years in terms of any scheme that may be
framed for such purpose by the Board with the approval of the
Government.”
Therefore, the petitioners who have retired voluntarily under a
scheme have to be treated as a fourth type of pensioners who would
be eligible only for pension calculated as applicable to persons who
have retired on superannuation. In that view of the matter, the
petitioners cannot claim benefits as persons who retired voluntarily
under Regulation 29 in so far as Regulation 29(5) specifically makes
the provision applicable to only persons who retired voluntarily under
Regulation 29(1). This is rightly so, since persons who retires
voluntarily under scheme is entitled more benefits than those who
retire voluntarily under Regulation 29(1) get. This position has been
sufficiently clear by the Supreme Court in the decision of Ganpat
Singh Deora’s case (supra), in which the Supreme Court has held
thus in paragraphs 16 to 21:
“16. The BOBEVRS-2001 itself does not give any indication, other
than what has been stated in paragraph 2, as to which of the
employees of the appellant-Bank would be entitled to opt for
voluntary retirement. It only mentions that all permanent
employees of the bank, who as on 31st March, 2001, would have
completed/would be completing minimum 15 years of service or
those who have completed/would be completing 40 years of age,
would be eligible to apply for voluntary retirement under the
BOBEVRS-2001.
17. The conditions relating to completing 15 years of service for
being eligible to apply for BOBEVRS-2001 are special to the
Scheme as also to the case of those employees who wished to
apply for voluntary retirement under the aforesaid Scheme, if theyO.P.. No. 21721/2002 -: 5 :-
had completed or would be completing 40 years of age. The latter
condition appears to have been incorporated in view of the
provisions of Regulations 14 and 32 of the Pension Regulations,
1995, to enable employees who had completed 10 years of service
to also become eligible to apply for premature retirement under
the Pension Regulations, 1995.
18. However, we are inclined to agree with Ms. Bhati that
Regulation 29 does not contemplate voluntary retirement under
the Voluntary Retirement Scheme and applies only to such
employees who themselves wish to retire de hors any Scheme of
Voluntary Retirement, after having completed 15 years of
qualifying service for the said purpose. There is a distinct
difference between the two situations and Regulation 29 would not
cover the case of an employee opting to retire on the basis of a
Voluntary Retirement Scheme.
19. Furthermore, Regulation 2 of the Voluntary Retirement
Scheme, 2001, of the appellant-Bank merely prescribes a period of
qualifying service for an employee to be eligible to apply for
voluntary retirement. On the other hand, Regulations 14 and 29 of
the Pension Regulations, 1995, relate to the period of qualifying
service for pension under the said Regulations, in two different
situations. While Regulation 14 provides that in order to be
eligible for pension an employee would have to render a minimum
of 10 years service, Regulation 29 is applicable to the employees
choosing to retire from service pre-maturely, and in their case the
period of qualifying service would be 15 years. The facts of this
case, however, do not attract the provisions of Regulation 29 since
the respondent accepted the offer of voluntary retirement under
the Scheme framed by the Bank and not on his own volition de
hors any Scheme of Voluntary retirement. In such a case,
Regulation 14 read with Regulation 32 providing for premature
retirement would not also apply to the case of the respondent.
While Regulation 2 of the BOBEVRS-2001 speaks of eligibility for
applying under the Scheme, Regulation 14 of the Pension
Regulations, 1995, contemplates a situation whereunder an
employee would be eligible for premature pension. The two
provisions are for two different purposes and for two different
situations. However, Regulation 28 of the Pension Regulations,
1995, after amendment made provision for situations similar to the
one in the instant case. In the absence of any particular provision
for payment of pension to those who opted for BOBEVRS-2001
other than Regulation 11(ii) of the Scheme, we are once again left
to fall back on the Pension Regulations, 1995, and the amended
provisions of Regulation 28 which brings within the scope of
Superannuation Pension employees who opted for the Voluntary
Retirement Scheme, which will be clear from the Explanatory
Memorandum. However, the period of qualifying service has been
retained as 15 years for those opting for BOBEVRS-2001 and is
treated differently from premature retirement where the minimum
period of qualifying service has been fixed at 10 years in keepingO.P.. No. 21721/2002 -: 6 :-
with Regulation 14 of the Pension Regulations, 1995.
20. We are, therefore, of the view that not having completed the
required length of qualifying service as provided under Regulation
28 of the 1995 Regulations, the respondent was not eligible for
pension under the Pension Regulations, 1995, of the appellant
Bank.
21. In the facts of the case and the terms of the BOBEVRS-2001
and the Pension Regulations, 1995, we are unable to agree with
the interpretation of the BOBEVRS-2001 Scheme and the Pension
Regulations, 1995, as has been done by the learned Single Judge
and the Division Bench of the High Court and We, therefore, allow
the appeal without costs. Consequently, the orders passed by the
Division Bench of the High Court and impugned in this appeal in
D.B. Special Appeal (W) No. 481 of 2005 filed by the respondent
against the dismissal of his Writ Petition CWP No. 6525 of 2005,
are set aside. Similarly, the Writ Petition filed by the appellant-
Bank is allowed along with this Appeal.”
(Underlining supplied)
Therefore, in view of the amended Regulation read with the said
Supreme Court decision, it is abundantly clear that the petitioners
are not entitled to the benefits of Regulation 29(5). Therefore, the
original petition is without any merit and accordingly, the same is
dismissed.
Sd/- S. Siri Jagan, Judge. Tds/