{"id":29074,"date":"2003-12-04T00:00:00","date_gmt":"2003-12-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/reserve-bank-of-india-anr-vs-cecil-dennis-solomon-anr-on-4-december-2003"},"modified":"2017-01-22T22:24:03","modified_gmt":"2017-01-22T16:54:03","slug":"reserve-bank-of-india-anr-vs-cecil-dennis-solomon-anr-on-4-december-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/reserve-bank-of-india-anr-vs-cecil-dennis-solomon-anr-on-4-december-2003","title":{"rendered":"Reserve Bank Of India & Anr vs Cecil Dennis Solomon & Anr on 4 December, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Reserve Bank Of India & Anr vs Cecil Dennis Solomon & Anr on 4 December, 2003<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Doraiswamy Raju, Arijit Pasayat<\/div>\n
           CASE NO.:\nAppeal (civil)  9547 of 2003\nAppeal (civil)  9549 of 2003\n\nPETITIONER:\nReserve Bank of India & Anr.\t\t\t\t\n\nRESPONDENT:\nCecil Dennis Solomon & Anr.\t\t\t\t\n\nDATE OF JUDGMENT: 04\/12\/2003\n\nBENCH:\nDORAISWAMY RAJU & ARIJIT PASAYAT\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of SLP(C) No. 12159 of 2002)
\n(Arising out of SLP (C) No. 12160\/2002)]<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tLeave granted in both the special leave petitions.\n<\/p>\n
Division Bench of the High Court of Bombay at Nagpur Bench has
\nheld by the impugned judgment that the respondents (hereinafter referred
\nto as ‘the employees’) were entitled to pension in terms of the Reserve
\nBank of India Pension Regulations, 1990 (in short the ‘Pension
\nRegulations’).  The Reserve Bank of India (hereinafter referred to as
\nthe ’employer’) has questioned the correctness of the judgment.\n<\/p>\n
  Factual position is almost undisputed, and brief reference
\nthereto would suffice.\n<\/p>\n
\tRespondents were working in various capacities in the employer
\norganization.  The employees tendered resignation sometimes in 1988.
\nSubsequent to their resignation, the Pension Regulations came to be
\noperative. The said Regulation was made in exercise of powers conferred
\nby clause (j) of sub-section (2) of Section 58 of the Reserve Bank of
\nIndia Act, 1934 (for short the ‘Act’).  The Central Board of the
\nemployer-bank with the previous sanction of the Central Government made
\nthe Regulations. The Reserve Bank of India Staff Regulations, 1948 (in
\nshort ‘Staff Regulations’) which were subsequently amended w.e.f.
\n7.2.1992 were in operation at the relevant time governing the service
\nconditions.  Regulation 26 of the 1948 Regulations dealt with the age of
\nretirement.  Sub-rule (3) thereof which has some relevance to the
\npresent disputes provides that an employee who has attained the age of
\n50 years may voluntarily retire after giving to the Competent Authority
\nthree months’ notice in writing.  Though several other provisions were
\nincorporated in the Regulation w.e.f. 7.2.1992, this provision in sub-
\nrule (3) continued unamended.  By Pension Regulations prescriptions were
\nmade for granting pension to certain categories of employees.
\nRegulations 2(12) and 18 thereof read as follows:\n<\/p>\n
“2(12): ‘Retirement’ means retirement in terms of
\nStaff Regulation 26 and other instructions issued by
\nthe Bank under Settlements\/Awards;\n<\/p>\n
18. Forfeiture of service on resignation or dismissal
\nor termination: Resignation or dismissal or
\ntermination of an employee from the service shall
\nentail forfeiture of his entire past service and
\nconsequently shall not qualify for pension payment.”\n<\/p>\n
Some of the provisions of Staff Regulations need to be noted. They read
\nas follows:\n<\/p>\n
\t“Regulation 26. (Unamended- prior to 7.2.1992)-
\n(1)\tan employee, other than an employee in Class IV
\nshall retire at 58 years of age and an employee in
\nClass IV at 60 years of age;\n<\/p>\n
\tProvided that in the case of an employee in
\nClass IV who has reached the age of 55 years the Bank
\nmay, in its discretion, retire him after giving two
\nmonths’ notice in writing if in the opinion of the
\ncompetent authority his efficiency is found to have
\nbeen impaired.\n<\/p>\n
\tProvided further that the Bank may, in its
\ndiscretion, retire an employee, other than an
\nemployee in Class IV, at any time after completion of
\n50 years of age;\n<\/p>\n
\tProvided further in the case of an employee,
\nother than an employee in Class IV, who has attained
\nthe age of 55 years,, his continuance in service up
\nto the age of 58 years shall be subject to his being
\nfound suitable to be retained in service.\n<\/p>\n
\t(2)\tThe power conferred by the provisos to
\nsub-regulation (1) shall be exercised by the
\nGovernor, with the prior approval of the Central
\nBoard in the case of officers and by the Manager,
\nsubject to such general or special instructions as
\nmay be issued by the Governor, in the case of other
\nemployees.\n<\/p>\n
\t(3)\tAn employee who has attained the age of
\n50 years may voluntarily retire after giving to the
\ncompetent authority three months’ notice in writing.\n<\/p>\n
\tRegulation 26 (Amended with effect from
\n7.2.1992): (1)\tAn employee shall retire at 60
\nyears of age but no extension shall be given to any
\nemployee beyond 60 years of age;\n<\/p>\n
\tProvided that an employee who attains the age
\nof superannuation on any day other than the first
\nduring a calendar month, shall retire on the last day
\nof that month;\n<\/p>\n
\tProvided further that in the case of an
\nemployee in Class IV who has reached the age of 55
\nyears the Bank may, in its discretion, retire him
\nafter giving two months’ notice in writing if in the
\nopinion of the competent authority his efficiency is
\nfound to have been impaired;\n<\/p>\n
\tProvided further that the Bank may, in its
\ndiscretion, retire in public interest an employee,
\nother than an employee in Class IV, at any time after
\ncompletion of 50 years of age;\n<\/p>\n
\tProvided further in the case of an employee in
\nClass III and Class I, who has attained the age of 55
\nyears, his continuance in service upto the age of 60
\nyears shall be subject to his being found suitable to
\nbe retained in service.\n<\/p>\n
\t(2)\tThe power conferred by the provisions to
\nsub-regulation (1) shall be exercised by the
\nGovernor, with the prior approval of the Central
\nBoard in the case of officers and by the Manager,
\nsubject to such general or special instructions as
\nmay be issued by the Governor, in the case of other
\nemployees.\n<\/p>\n
\t(3)\tAn employee who has attained the age of
\n50 years may voluntarily retire after giving to the
\ncompetent authority three months’ notice in writing.\n<\/p>\n
\t(3A)\tWithout prejudice to sub-Regulation (3),
\nan employee may voluntarily retire after giving to
\nthe competent authority three months notice in
\nwriting provided he has completed 20 years of service
\nif he is not governed by the Reserve Bank of India
\nPension Regulations, 1990 and 20 years of qualifying
\nservice as defined in the Reserve Bank of India
\nPension Regulations, 1990, if he is governed by the
\nReserve Bank of India Pension Regulations, 1990.\n<\/p>\n
\tProvided that this sub-Regulation shall not
\napply to an employee who is on deputation or study
\nleave abroad, unless, after having been transferred
\nor having returned to India he has resumed the charge
\nof the post in India and served for a period of not
\nless than one year. The requirement of this proviso
\nmay, however, be waived at the discretion of the
\nGovernor.\n<\/p>\n
\tProvided further that this sub-Regulation shall
\nnot apply to an employee who seeks retirement from
\nservice for being absorbed permanently in an
\nautonomous body or a public sector undertaking to
\nwhich he is on deputation at the time of seeking
\nvoluntary retirement.\n<\/p>\n
\t(3B)\tThe notice of voluntary retirement given
\nunder sub-Regulation (3A) shall not be valid unless
\nit is accepted by the Competent Authority;\n<\/p>\n
\tProvided that where the Competent Authority
\ndoes not communicate its decision not to accept such
\nnotice before the expiry of period specified in the
\nnotice, the retirement shall become effective from
\nthe date of expiry of such  period.\n<\/p>\n
(3C)\tThe Competent Authority may, if so
\nrequested by the employee retiring pursuant to sub-
\nRegulation (3) or (3A), waive the notice of voluntary
\nretirement with respect to its full period or part
\nthereof if the Competent Authority is satisfied that
\nsuch waiver will not cause any administrative
\ninconvenience.\n<\/p>\n
\t(3D)\tAn employee who has elected to
\nvoluntarily retire pursuant to sub-Regulation (3A)
\nand has given notice shall not be entitled to
\nwithdraw the notice except with the permission of the
\nCompetent Authority, provided that the request for
\nsuch withdrawal shall be made before the intended
\ndate of his retirement”.\n<\/p>\n
\tSince the respondents-employees had tendered resignation, making
\nthem ineligible writ applications were filed before the High Court
\nquestioning legality of Regulation 18.  The High Court by the impugned
\njudgment held that Regulation did not have any retrospective operation
\nand, therefore, the employer was legally bound to grant pension.\n<\/p>\n
\tMr. R.N. Trivedi, learned Additional Solicitor General submitted
\nthat the entire approach of the High Court was erroneous. On one hand it
\ncame to hold that Regulations were not retrospective in operation, yet
\nultimate direction was to work out the pension by taking recourse to
\n1990 Pension Regulations.  It also recorded a finding that there cannot
\nbe any doubt that resignation from service being not equivalent to
\ndismissal or termination which are the acts of the management, is more
\nakin to voluntary retirement.  It held that as Regulation 18 of the
\nPension Regulations was not attracted, the claim for pension was to be
\nallowed.  The Pension Regulations clearly ruled out payment of pension
\nfor those employees who go out by tendering resignation.  There was no
\nquestion of the respondents-employees taking voluntary retirement as
\nthey had not attained the age of 50 years in terms of sub-Regulation (3)
\nof Regulation 26 of the Staff Regulation of 1948.  The respondents-
\nemployees have not stated as to under  which statute or Regulation they
\nwere claiming pension.  From the tenure of the pleadings in the writ
\npetition and the arguments it appears that they wanted only to get
\nadvantage of Pension Regulations. But at the same time they contended
\nthat it did not have retrospective operation.\n<\/p>\n
\tPer contra, learned counsel for the respondents-employees
\nsubmitted, only 37 employees were to be benefited and only 3 had
\napproached the Court. That being the position, this is not a fit case
\nwhere the jurisdiction under Article 136 of the Constitution of India,
\n1950 (for short the ‘Constitution’) has to be exercised.  Further, by
\nadministrative decisions, the Central Board had decided to extend the
\nbenefit to the employees like the respondents.  That being so, on the
\nfortuitous ground that the Central Government had declined to accept the
\nrecommendations, the benefits could not have been denied.  Staff
\nRegulations were in the nature of administrative decisions and the
\ngovernment decision was inconsequential.  Once the Board had decided to
\ngrant the benefit and even had suggested amendments to Staff
\nRegulations, there was no question of any government approval thereof.\n<\/p>\n
In Reserve Bank and Another v. S. Jayarajan<\/a> (1995 supp(4) SCC 584)
\nthe view expressed in V.T. Khanzode and Ors. v. Reserve Bank of India
\nand Anr.<\/a> (1982 (2) SCC 7) was reiterated that the Staff Regulations are
\nadministrative in nature. The Central Board is authorized to take such
\nadministrative decisions and Central Government’s approval\/decision is
\nnot necessary. Therefore, if changes were to be introduced in the Staff
\nRegulations and the Central Board takes a decision, there would not be
\nany necessity for taking approval of the Central Government.  But the
\nposition is different so far as the Pension Regulations are concerned.
\nThe said Regulations were framed with the sanction of the Central
\nGovernment and are framed in exercise of the powers conferred by clause\n<\/p>\n
(j) of sub-section (2) of Section 58.  If the Central Board recommended
\nfor changes in the Pension Regulations, sanction of the Central
\nGovernment is mandatory. This aspect seems to have been lost sight by
\nthe High Court and the respondents cannot derive any advantage from the
\nmere recommendations made by the Central Board suggesting changes to the
\nRegulations.  The Central Government has specifically dealt with the
\nrecommendations and has turned them down. Unless the recommendations for
\nthe amendment are approved, they have no binding force or application to
\nmake any claim thereon.  Further, the respondents who claim that they
\nwere not claiming the benefit under the Pension Regulations could not
\npoint out any other source to which their claims could be linked. The
\nrespondents-employees were getting superannuation benefits accruing to
\nthem under the contributory provisions and gratuity schemes. The High
\nCourt was also in error in equating the case of resignation to voluntary
\nretirement. The two are conceptually different in the service
\njurisprudence and different consequences would flow depending upon one
\nor the other of the courses.\n<\/p>\n
Under Regulation 26 of the Staff Regulations, four types of
\nretirements were contemplated as on Ist  November, 1990 i.e. (a)
\nRetirement on Superannuation, (b) Compulsory Retirement on Invalidation,\n<\/p>\n
(c) Compulsory Retirement and (d) Voluntary Retirement. Resignation does
\nnot fit into any one of the said categories.\n<\/p>\n
In service jurisprudence, the expressions superannuation,
\nvoluntary retirement, compulsory retirement and resignation convey
\ndifferent connotations. Voluntary retirement and resignation involve
\nvoluntary acts on the part of the employee to leave service. Though both
\ninvolve voluntary acts, they operate differently. One of the basic
\ndistinctions is that in case of resignation it can be tendered at any
\ntime; but in the case of voluntary retirement, it can only be sought for
\nafter rendering prescribed period of qualifying service. Other
\nfundamental distinction is that in case of the former, normally retiral
\nbenefits are denied but in case of the latter, same is not denied. In
\ncase of the former, permission or notice is not mandated, while in case
\nof the latter, permission of the concerned employer is a requisite
\ncondition. Though resignation is a bilateral concept, and becomes
\neffective on acceptance by the competent authority, yet the general rule
\ncan be displaced by express provisions to the contrary. In Punjab
\nNational Bank v. P.K. Mittal (AIR<\/a> 1989 SC 1083), on interpretation of
\nRegulation 20(2) of the Punjab National Bank Regulations, it was held
\nthat resignation would automatically take effect from the date specified
\nin the notice as there was no provision for any acceptance or rejection
\nof the resignation by the employer. In Union of India v. Gopal Chandra
\nMisra<\/a> (1978 (2) SCC 301), it was held in the case of a Judge of the High
\nCourt having regard to Article 217 of the Constitution that he has an
\nunilateral right or privilege to resign his office and his resignation
\nbecomes effective from the date which he, of his own volition, chooses.
\nBut where there is a provision empowering the employer not to accept the
\nresignation, on certain circumstances e.g. pendency of disciplinary
\nproceedings, the employer can exercise the power.
\n\tOn the contrary, as noted by this Court in Dinesh Chandra Sangma
\nv. State of Assam (AIR<\/a> 1978 SC 17), while the Government reserves its
\nright to compulsorily retire a Government servant, even against his
\nwish, there is a corresponding right of the Government servant to
\nvoluntarily retire from service. Voluntary retirement is a condition of
\nservice created by statutory provision whereas resignation is an implied
\nterm of any employer-employee relationship.\n<\/p>\n
Looking from any angle the High Court judgment is indefensible and
\nis set aside and the writ petitions filed by the respondents-employees
\nstand dismissed.  Appeals are allowed. There shall be no orders as to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Reserve Bank Of India & Anr vs Cecil Dennis Solomon & Anr on 4 December, 2003 Author: A Pasayat Bench: Doraiswamy Raju, Arijit Pasayat CASE NO.: Appeal (civil) 9547 of 2003 Appeal (civil) 9549 of 2003 PETITIONER: Reserve Bank of India & Anr. RESPONDENT: Cecil Dennis Solomon & Anr. DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-29074","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nReserve Bank Of India & Anr vs Cecil Dennis Solomon & Anr on 4 December, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/reserve-bank-of-india-anr-vs-cecil-dennis-solomon-anr-on-4-december-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Reserve Bank Of India & Anr vs Cecil Dennis Solomon & Anr on 4 December, 2003 - 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