JUDGMENT
1. The petitioners have approached this Court under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondent-bank to pay pension to the bank employees who have retired under, scheme of 1.11.2000, in terms of Pension Regulations as were in force on that date taking actual emoluments disbursed during preceding ten months prior to the retirement as basis thereof, which includes weigh tage of 5 years of additional service. They have further sought a writ of mandamus commanding respondents to award interest at the rate of 11% on 50% of ex-gratia amount invested in Fixed Deposit, interest at the rate of 18% on delayed payment of retiral benefits and to make available to all the bank employees retired under the scheme free medical reimbursement as was admissible under the Rules.
2. Petitioner no. 1 is an association of Bank of India Retired Employees which is said to have been registered under Societies Registration Act, 1860. Petitioners no. 2 to 5 are the bank employees who have retired under Bank of India Voluntary Scheme 2000 (hereinafter referred to as VRS 2000) circulated vide bank’s circular dated 1.11.2000.
3. The learned Counsel for the petitioner has confined their grievance only to two aspects of the matter – (i) application of normal retirement provisions in addition to benefit under VRS 2000, (ii) Free medical facilities.
4. Sri Navin Sinha, learned Senior Advocate, appearing for the petitioners submitted that VRS 2000, para 5 provides benefits under the said scheme and para 5.1 reads as under:
5.1. In addition to the normal retirement benefits available to an employee] according to the terms and conditions of his employment, in the Bank, an employee whose application for voluntary retirement is accepted, will also be paid a lump sum amount equivalent to 60 days salary (pay plus stagnation Increments plus special pay plus dearness relief) for each completed year of service or salary for the, number of months service is left, whichever is less.
5. Acting upon the aforementioned representation of the bank through VRS 2000, the petitioners no. 2 to 5 and all the members of petitioner no. 1 applied for VRS which was accepted by the Bank. Subsequently when the pensionary benefits were sought to be calculated, the petitioners were informed that benefit of 5 years additional service for the purpose of qualifying service provided under Regulation 5 of the Bank of India Employees Pension Regulations, 1995 (hereinafter referred to as 1995 Regulations) shall not be applicable to those who have retired under VRS 2000 in view of letter dated 13th December 2000 issued by General Manager, Head Office (HR) of the Bank which states that employees who have opted for VRS 2000 are eligible only for superannuation pension under Regulation 28 of Pension Regulations, therefore, provision for adding 5 years notional service to actual service rendered in case of those who opt for voluntary, retirement under VRS 2000 Shall not be applicable. Consequently, while calculating pensionary benefits and emoluments under VRS 2000, the benefit of 5 years notional service in addition to actual service rendered by the petitioners has been denied which is illegal. He also submitted that petitioners after retirement sought to apply for membership of Bank of India Retired Employees Medical Assistance Scheme but the Chief Manager vide letter dated 20th April 2001 has informed that the petitioners are not entitled for such membership and, therefore, the forms of the petitioners have been returned. It is submitted that the scheme is applicable to air employees irrespective of the mode and manner in which such employees have retired and therefore denial of such benefit to the petitioners merely on the ground that they have voluntary retired is clearly illegal, arbitrary and contrary to the scheme itself.
6. Sri Pankaj Bhatia, learned Counsel appearing for the Bank, submitted that Para 4(J) of VRS 2000 empowers the Bank to amend or alter the scheme at any time and reads as under:
J) Right to amend/alter.
The Bank reserves the right to alter and/or amend the above conditions of the scheme. The applications made under the Scheme will be irrevocable and the employees will not have the right to withdraw the application once submitted.
7. Similarly condition 8 of the conditions of VRS 2000 on page 75 of the paper book empowers the General Manager (H.R) to clear any doubt with respect to interpretation of any of the provisions of the scheme by issuing clarification or decision and it reads as under:
8. Interpretation:
in the event of any doubt in interpretation of any of the provisions of the Scheme, it shall be referred to the General Manager (H.R.) for clarification/decision and such clarification/decision shall be final.
8. He therefore submitted that in view of the aforesaid provisions, the General Manager. (HR) issued circular dated 13th: December 2000 clarifying that benefit of addition of 5 years’ notional service to actual service under Regulation 29 shall not be applicable to those who opt for voluntary; retirement under VRS 2000. Similarly in respect to medical facilities also he stated that the same is applicable to only : these employees who retire in normal circumstances i.e. after attaining age of superannuation and is not applicable to those who retire under VRS 2000.
9. We have heard learned Counsel for the parties and perused the record.
10. There is no dispute between the “parties” that petitioners have retired accepting the terms and conditions’ of VRS 2000 and the same, therefore, is binding upon both the parties. VRS 2000 circular dated 1.11.2000 has been issued after approval of the said scheme by the Board of Directors of the Bank in, its meeting dated 20th October 2000. The terms and conditions of scheme are also contained in the circular dated 1.11.2000. VRS 2000 is not compulsory for any employee of the Bank and simultaneously there is no corresponding obligation on the. Bank to accept the offer of voluntary retirement of an employee if submitted pursuant to, the circular dated 1.11.2000. On the contrary Para 2(F) of the Circular dated 1.11.2000 provides that the competent authority may accept or reject application of an employee for voluntary retirement keeping in view the organizational requirement or any administrative reason and the decision of the competent authority shall be final. It further provides that no voluntary retirement shall come into effect unless the competent authority has passed orders accepting the application of the employee to retire voluntarily under the scheme. The disability or benefits, if any, which an employee who voluntary retires under the scheme would not be able to claim are provided in Para 2(i) and (j) of the circular dated 1.11,2000 which reads as under:
i) An employee who voluntarily retires under the scheme will not have any claim against the Bank of whatsoever nature and no demand or dispute or difference will be raised by him/her or on his/her behalf, whether for reemployment or compensation or back wages including employment of any of his/her relative on compassionate grounds in the service of the bank or for any other benefit whatsoever.
j) An employee who seeks voluntary retirement under the Scheme will not be eligible for re-employment in the Bank or any of its subsidiaries.
11. Voluntary Retirement-Scheme is neither a punishment nor otherwise provides for any extra disadvantage to the employee concerned since object thereof is to benefit both the organisation and the employees. It has been specifically stated in para 7 of the circular dated 1.11.2000 as under:
7 The main objective of the subject Voluntary Retirement Scheme is to benefit both the Organisation and the employees. The Organisation with rationalisation of manpower, right sizing of number of employees and consequent proper deployment/redeployment of all category of staff as per the requirements would be transformed into a more efficient one with the simultaneous enhancement in the efficiency of the work force and thereby achieve the right size of growth. The employee opting for Voluntary Retirement under the Scheme would be getting attractive compensation as above and the employees continuing with the bank would have better/improved prospects of career growth with skills upgradation.
12. Thus a combined reading of entire circular dated 1.11.2000 makes it clear that employees retiring under the said scheme though are allowed to retire on certain different terms and conditions but still they constitute common group of retired employees of the Bank and are not singled out amongst the category of retired employees. In other words the employees retired under VRS 2000 are also retired employees like other employees of the Bank who retire on attaining age of superannuation or as a result of compulsory retirement or otherwise. Para 5.1 of Annexure-1 of circular dated 1.11.2000 clearly provides that in addition to norma retirement benefits available to an employee according to terms and conditions of employment in the Bank, such employees whose application for voluntary retirement is accepted, he will also be paid lump sum amount equivalent to 60 days salary (pay plus stagnation increment plus special pay plus clearness relief) for each completed year of service or salary for the number of months service is left, whichever is less. The aforesaid condition, therefore, clearly admits normal retiral benefits to an employee which cannot be denied to him. It is not disputed that 1995 regulations were applicable to all the petitioners and therefore Regulation 29 was also applicable to them. However, in order to deny the benefit of Regulation 29(5) respondent no. 2 issued a letter dated 13th December 2000 excluding application of Regulation 29(5) to those employees who retire under VRS 2000. Respondent-Bank has sought to justify the aforesaid letter dated 13th December 2000 firstly on the ground that the Bank possesses power to amend or alter the scheme at any point of time and secondly, power of General Manager (HR) of giving clarification in case of doubt in interpretation. It is no doubt true that an authority who has power to legislate or who has made a provision, can also alter or amend the same in the same manner in which the main provision was made. Such power is also derived from Section 21 of the General Clauses Act, 1897 which reads as under:
21. Power to make, to include power to add to, amend, vary or rescind orders, rules or bye-laws. – Where, by any Central Act or Regulation, a power to issue notification, orders, rules or bye-laws is conferred, then that power, includes a power exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.
13. The circular dated 1.1.1.2000 was issued containing decision of Board of Directors of the Bank in respect of the scheme. The Board of Directors consequently possess power to amend and alter the conditions of scheme and they reserve such power expressly also under Para 2(J) of the circular dated 1.11.2000. It is not the case of the respondents that letter dated 13.12.2000 has been issued communicating decision of the Board of Directors of the Bank or the contents of the said letter is an amendment made by the Bank in the scheme itself.
14. On the contrary in Para 9 of the counter affidavit, respondents claim that communication dated 13.12.2000 did not bring any change but was clarificatory in nature and was issued with the aim to enlarge the scope of benefits, of pension. The case of respondents, therefore, is that the letter dated 13.12.2000 is not an amendment or alteration of VRS 2000 or circular dated 1.11.2000 but is clarificatory in nature. This leads to the question as to whether respondent no. 2 in the purported exercise of power of clarification could issue an order which has the effect of altering or amending the conditions of the scheme. An order clarifying certain doubt or ambiguity cannot have the effect of extending or reducing the effect of application of ali or any of the provision itself. The purpose of clarifying is to remove doubt with respect to meaning and implementation of the provision concerned but by means of clarification the ambit and scope of provision itself can neither be restricted nor altered. Under VRS 2000 the conditions for retirement which have been approved by the Board of Directors are clearly stated to have contained in Annexure-1 to the circular dated 1.11.2000. It includes Para 5 of the scheme which is at page 72 of the paper-book. Para 5.1 clearly provides that in addition to normal retiral benefits available to an employee according to terms and conditions of employment in the Bank he shall be paid lump sum amount equivalent to 60 days salary for each completed years of service or salary for the number of months service is left, whichever is less. Para 5.2 gives the benefit of leave encashment and Para 5.3 provides benefits with respect to gratuity and Provident Fund and Pension etc. The letter dated 13.12.2000 has been issued by referring to Para 5.3(ii) of the scheme and therefrom respondent no. 2 has drawn an inference that the provisions pertaining to Pension Regulation, 1995 would not apply to those persons who seek voluntary retirement under the said scheme. In our view this is clearly a misreading of the provisions of the scheme. Various Clauses of Para 5 of the scheme operate in different fields and have is be given effect to in their entirety without restricting the scope thereof unless they are amended or altered by competent authority as provided in the scheme itself. Para 5.1 for the purpose of calculation of lump sum amount allows application of normal retiral benefits under the terms and conditions of the Bank and therefore the same has to be given effect to. Similarly under Para 5.3(ii) the employees who have opted for contributory Provident Fund, they would be entitled for own contribution or Bank’s contribution towards Provident Fund but for others own contribution towards Provident Fund and pension in terms of 1995 Regulations would be applicable provided they have completed 20 years of service in the Bank. Para 5.3 (ii) therefore in specific terms attract 1995 Regulations also. We are thus clearly of the opinion that letter dated 13.12.2000 issued by respondent no. 2 is not mere clarificatory but intends to enforce a new condition having the effect of alteration or amendment of VRS 2000 though respondent no. 2 was not competent to do so. In the garb of clarification such alteration and amendment by respondent no. 2 is wholly impermissible. Therefore, letter dated 13.12.2000 cannot sustain and the petitioners are entitled for payment of emoluments strictly in accordance with VRS 2000 as contained in the circular dated 1.11.2000. Now coming to the second limb of the issue regarding entitlement of the petitioners to become member of Pre-Medical Assistance Scheme (hereinafter referred to as MAS), we find that a copy of the said scheme has been placed on record as Annexure-13. The said membership is available to various category of employees as provided in Para 4 of MAS which reads as under:
4. Membership:
The membership of the Scheme is restricted to the following:
I (a) Those who have retired from the service of the Bank on superannuation.
(b) Those who have been allowed to retire from Bank’s service on medical grounds.
(c) Those who have taken voluntary retirement from the Bank’s service in terms of the provisions of Bank of India (Officers’) Service Regulations, 1979 and who are not gainfully employed.
(d) Those who have taken voluntary retirement from the Bank’s service in terms of the provisions of Bank of India Employees’ Pension Regulations, 1995, after completion of 25 years of age or 30, years of service in the Bank and not gainfully employed.
(e) Spouses of those retired employees mentioned above, if they are not gainfully employed.
(f) Spouses of those employees who die in harness, who are not gainfully employed (gainfully employed means those who are in employment and monthly salary/wages p.m. Is Rs. 1,500/- or more).
Clarifications:
(i) Employees who will be retiring from the service of the Bank here-after, as mentioned above and their spouses, shall be eligible to become members.
(ii) Those who ceased to be in the employment of the Bank or who will cease to be in the service of the Bank for reasons other than those mentioned above will not be eligible for membership and benefits under the scheme. II For acquiring the membership, a retired employee/spouse of the deceased retired employee shall have to make one time lump sum contribution towards membership fee, equal to 50% of the basic pay last drawn/payable to self while in employment of the bank, one of them only need to become a member of the scheme.
15. Learned Counsel for the respondents contended that the persons who are allowed to opt for voluntary retirement under VRS 2000 cannot be equated to those who retire under 1995 Regulations for the reason that a completely different kind of package and incentive is offered to those who retire under VRS 2000. Since they are given a very handsome amount, the benefit of various scheme applicable to other normally retired persons cannot be extended to them. Despite of Court’s query the learned Counsel for the Bank could not show as to what he meant by the term “normal retirement” and others. An employee can be allowed to retire in the manner as provided in the terms and conditions applicable to him. Membership of MAS is applicable to those who retire from the Bank’s service on attaining of superannuation or on medical grounds or those who have taken voluntary retirement under Bank of India (Officers’) Service Regulations, 1979 or those who have taken voluntary retirement under 1995 Regulations and have fulfilled other requisite qualifications. Merely because the petitioners have retired under VRS 2000 itself would not dis-entitle them from benefit of MAS if they otherwise fulfil the requirement of Para 4 of the said scheme. It appears that the Bank has not considered the claim of the petitioners for the purpose of extension of the said scheme to the petitioners in correct perspective but has returned their storms only on the ground that they have retired voluntary under VRS 2000 scheme and have been paid different incentive and benefits and therefore MAS is not applicable. This approach of the Bank cannot be said to be just, valid and in accordance with law. In our view the matter is required to be re-examined by the competent’ authority in accordance with Para 4 of MAS and he should pass a fresh order accordingly.
16. In the result the writ petition is allowed. The respondents are directed to redetermine the emoluments to the petitioners as a result of VRS 2000 in the light of circular If dated 1.11.2000 read with its Annexure-1, excluding the letter dated 13.12.2000 issued by respondent no,2. In case any further amount is found payable to the petitioners the same shall be paid expeditiously preferably within a period of six months. Respondents are further directed to consider the applications of the petitioners for membership of Bank of India Retired Employees Assistance Scheme in the light of the provisions contained in Para 4 of the said scheme and also the observations made above and pass a fresh order in accordance with law expeditiously preferably within three months from the date of production of a certified copy of this order.