Present: Mr. Ashish Aggarwal vs “Besides on 3 November, 2008

            CWP No.15465 of 2001(O&M)

Present:    Mr. Ashish Aggarwal, Advocate
            for the petitioner.

            Mr. G.S. Bajwa, Advocate
            for the respondents.

                                    ****

The dispute in this case relates to the rejection of the claim of

the petitioner for opting for the pension scheme of the New Bank of India

on the ground of a delay of 5 months in having exercised the same. The

explanation given by the petitioner for the delay is that he was on long leave

and came to know about the scheme after 14.06.1996 and thereafter applied

for option of the pension scheme on 25.06.1996.

Learned counsel for the respondent argued that the petitioner

had gone abroad on long leave without leaving any correspondence address

and therefore neither it was the duty of the bank nor in fact the bank could

inform the petitioner about the notification of the pension scheme.

Learned counsel for the respondent has further argued that the

notification of the scheme had duly prescribed the cut off date and that

there was no unreasonableness or unfairness since it was a financial matter.

A Division Bench of this Court in the case of Usha Dogra vs.

Central Bank of India, 2003(1) RSA 440 (DB) held as follows:

“Besides, we are, in any case, unable to agree with the

stand of the respondents that the Regulations providing for

opting for pension would disentitle the employee for the grant

of pension on his failure to exercise an option in writing within

120 days from the notified date to become member of the Fund

and authorise the trust of the Provident Fund of the Bank to

transfer the entire contribution of the Bank along with interest
accrued thereon to the credit of the Fund constituted for the

purpose under Regulation 5….

…. The grant of pension to citizens and the

employees is the fulfillment of a constitutional promise

inasmuch as it partakes the character of public assistance in

cases of unemployment, old age, disablement or similar other

cases of undeserved want. The regulations of the respondent-

bank merely make effective the constitutional mandate. The

Hon’ble Supreme Court in the case titled Deokinandan Prasad

vs. State of Bihar, AIR 1971 Supreme Court page 1409

affirmed the decision of the Full Bench of this Court in the case

of K.R. Erry vs. State of Punjab, AIR 1967 Punjab page 279

holding that pension is not to be treated as a bounty payable on

the sweet will and pleasure of the Government and that the

right to superannuation pension including its amount is a

valuable right vesting in a government servant. This has been

the settled legal position. The Hon’ble Supreme Court in

Subarta Sen vs. Union of India, 2001 (8) Supreme Court Cases

71 observed as under:-

“Payment of pension does not depend upon

Pension Fund. It is the liability undertaken by the

Company under the Rules and whenever becomes due

and payable is to be paid. As observed in Nakara’s case

pension is neither a bounty, or a matter of grace

depending upon the sweet will of the employer, nor an

ex-gratia payment. It is a payment for the past services

rendered. It is a social welfare measure rendering socio-

economic justice to those who is the heyday of their life

ceaselessly toiled for the employees on an assurance that

in their old age they would not be left in the lurch.”

Keeping in view the above said facts and circumstances, the

petition is allowed and a direction is issued to the respondent-bank to bring

Sh. Sham Lal Bhalla on the pension scheme. All the consequential benefits

that accrue thereunder shall be paid to the petitioner who is, however, liable

to return the bank’s contribution to the provident fund along with interest

thereto, within a period of 2 months from the date of receipt of certified

copy of this order. Consequent thereto the respondent-bank shall calculate

the pension amount and arrears of pension shall be paid to the petitioner

within a further period of 2 months. It is, further, directed that the arrears of

pension would carry the same interest which the petitioner has to repay to

the bank while refunding the bank contribution to the Provident Fund.

November 3, 2008                                           (Ajay Tewari)
Sonia                                                          Judge