Judgment:
Majmudar P.B., J.
1. The petitioner, who has resigned from the employment of the first respondent Bank on 16th October, 1986, has approached this Court with a prayer that the respondents may be directed to pay the pensionary benefits to the petitioner in view of the Pension Scheme framed by the Bank.
2. The petitioner was initially appointed as a Clerk in August, 1963 with the respondent No. 1 Bank. It is the case of the petitioner that in the year 1982 his only son unfortunately expired in an accident and since then his wife lost mental balance. Under the circumstances, it was not possible for the petitioner to attend the job as well as to look after his wife. Under these circumstances, the petitioner gave his resignation from the services of the Bank on 16th October, 1986. The respondent bank vide its letter dated 5th January, 1987 informed the petitioner that the resignation of the petitioner was accepted.
3. Subsequently, the respondent Bank framed Pension Regulations in 1995 viz. Dena Bank (Employees') Pension Regulations, 1955. As per the said Regulations, an employee who has resigned or dismissed or removed or if his services are terminated shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits. The application and eligibility is provided under Regulation 3(i)(a) which reads thus:
3. Application - These regulations shall apply to employees who:(i) (a) were in the service of the Bank on or after the 1st day of January, 1986 but had retired before the 1st day of November, 1993; and ....
Since, according to the Bank, the petitioner had already resigned from the services of the Bank, he was not entitled to get any benefit of pension under the aforesaid Regulation. The petitioner ultimately has approached this Court by way of this petition on the ground that at the time when the petitioner resigned, he had put in about 23 years of service and since he was required to resign in view of the circumstances beyond his control, his resignation should be treated as voluntary retirement and the Bank should be directed to pay necessary pensionary benefits to the petitioner and the petitioner is also willing to pay the amount of provident fund and other retiral dues which he received in the year 1986 with interest.
4. We have heard the learned Counsel appearing for the parties. We have also gone through the Regulations as well as examined the matter from the angle as to whether in the facts and circumstances of the case, the resignation tendered by the petitioner can be treated as an application for voluntary retirement from the services of the Bank.
5. It is no doubt true that as per Regulation (3), an employee who was in service of the Bank on or after 1st day of January, 1986 but had retired before the 1st day of November, 1993 is eligible to get pensionary benefits as per the Regulation provided he opts for the same. If the resignation of the petitioner is to be treated as an application for voluntary retirement and if it is held that the petitioner is deemed to have retired from the services on 16th October, 1986, naturally he is entitled to get the benefit as per the Pension Regulations. However, in the instant case, the matter is required to be considered from the angle as to whether the petitioner can be said to be a retired employee of the Bank and whether such retirement took place after 1st day of January, 1986 so as to give any benefit to the petitioner as per the said Regulations. In this connection, it is required to be noted that the resignation of the petitioner was subsequently accepted by the Bank and an intimation to that effect was also given to the petitioner. The petitioner, in fact, had prayed for waiving three months notice period at the time of tendering the resignation and the said request was ultimately accepted by the Bank and three month's notice period was also waived.
6. The concept of 'resignation' and 'retirement' is as such different in nature. So far as 'resignation' is concerned, it is a voluntary act of an employee, to say goodbye to the employer, on his own volition. So far as 'retirement' is concerned, it is a natural consequence where an employee on reaching a particular age is automatically retires. So far as question of resignation is concerned, it is a voluntary act. So far as retirement is concerned, it is a natural consequence of an employment where as per the service regulations an employee retires on attaining the particular age. The employee is not required to make any attempt in this behalf so far as retirement is concerned. As against that, a resignation is a voluntary act by giving intimation to the employer that an employee wants to relinquish his employment. In our view, therefore, resignation and retirement both stand on different footing.
7. At this stage, reference is required to be made to a decision of the Supreme Court in the case of (Uco Bank and Ors. v. Sanwar Mal) : 2004 DGLS (soft) 157 : (2004)4 S.C.C. 412. In the said case the Supreme Court has considered the aspect about 'resignation' and 'retirement' in paragraph 9 which reads thus:
We find merit in these appeals. The words 'resignation' and 'retirement' carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment; but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment (sic is the same) but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions 'resignation' and 'retirement' have been employed for different purpose and carry different meanings. The Pension Scheme herein is based on acturial calculation; it is a self-financing scheme, which does not depend upon budgetary support and consequently it constitutes a complete code by itself. The scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from service. Moreover resignation brings about complete cessation of master-and-servant relationship whereas voluntary retirement maintains the relationship for the purposes of grant of retiral benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/rules framed by the Bank. Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retiral benefits. Further, there are different yardsticks and criteria for submitting resignation vis-a-vis voluntary retirement and acceptance thereof. Since the Pension Regulations disqualify an employee, who has resigned, from claiming pension, the respondent cannot claim membership of the fund. In our view, Regulation 22 provides for disqualification of employees who have resigned from service and for those who have been dismissed or removed from service. Hence, we do not find any merit in the arguments advanced on behalf of the respondent that Regulation 22 makes an arbitrary and unreasonable classification repugnant to Article 14 of the Constitution by keeping out such class of employees. The view we have taken is supported by the judgment of this Court in the case of (Reserve Bank of India v. Cecil Dennis Solomon) : 2003 DGLS (soft) 287 : (2004)9 S.C.C. 461. Before concluding we may state that Regulation 22 is not in the nature of penalty as alleged. It only disentitles an employee who has resigned from service from becoming a member of the fund. Such employees have received their retiral benefits earlier. The Pension Scheme, as stated above, only provides for a second retiral benefit. Hence there is no question of penalty being imposed on such employees as alleged. The Pension Scheme only provides for an avenue for investment to retirees. They are provided avenue to put in their savings and as a term or condition which is more in the nature of an eligibility criterion, the Scheme disentitles such category of employees as are out of it.
8. Mr. Sugdhare, learned Counsel appearing for the petitioner, vehemently submitted that in the present case the petitioner had already completed 23 years of service and had substantially contributed towards the provident fund scheme. He submitted that considering the said fact it should be construed that the petitioner has voluntarily retired from service as he had substantially contributed towards the provident fund. If we accept the submission of the learned Counsel, the effect would be that if a person resign within a short period from the services after his initial appointment, his resignation is to be treated differently as against one who has resigned after 20-25 years of service. There cannot be any distinction which can be made in this behalf. The Court is required to consider Regulation (3) framed by the respondent Bank. On a clear reading of the said Regulation, it is not possible for us to accept the say of the petitioner that the resignation given by the petitioner should be construed as an application for voluntary retirement. Learned Counsel for the petitioner, however, relied upon the decision of the Supreme Court in the case of [J.K. Cotton Spinning and Weaving Mills Co. Ltd., Kanpur v. State of U.P. and Ors.) : 1990 DGLS (soft) 370 : 1991(1) L.L.J. 39 : 1990(4) S.C.C. 27 : A.I.R. 1990 S.C. 1808, a copy of which is annexed to the petition at Exhibit B. So far as the aforesaid case is concerned, it is in connection with retrenchment of an employee. In the aforesaid case, the question was as to when the service of an employee is terminated consequent upon the employer accepting the resignation voluntarily tendered by the employee, whether the same amounts to 'retrenchment' within the meaning of Section 2(s) read with Section 6-N of the U.P. Industrial Disputes Act, 1947. In the said case, the Tribunal decided in favour of workman by holding that the provisions of retrenchment is applicable to the facts of the case. The writ petition filed against the said order was dismissed by the High Court. The matter was carried further before the Supreme Court. The Supreme Court came to the conclusion that the High Court was not right in concluding that because the employer accepted the resignation offer voluntarily made by the employee, the employer terminated the service of the employee and such termination, therefore, fell within the expression 'retrenchment'. Accordingly the orders of the High Court as well as of the Tribunal were set aside. Relying on this judgment, learned Counsel for the petitioner submitted that in the aforesaid case the resignation was treated as a voluntary retirement of a workman and in view thereof in the instant case also the resignation should be considered as a voluntary retirement. 9. It is required to be noted that the observations of the Supreme Court in the aforesaid case is entirely in different context. The observations in the aforesaid judgment is to be construed in the light of the definition 'retrenchment'. So far as the case on hand is concerned, this Court is required to consider Regulation (3) of the Pension Regulation framed by the Bank. It clearly provides that an employee who has resigned or whose services have been terminated is not entitled to the benefit under the said Regulation. In our view, it is not possible for us to hold that the resignation letter written by the petitioner should be treated as an application for voluntary retirement. Even as per the Rules of the Bank, an employee may resign from service after giving three months notice and accordingly the aspects regarding 'resignation' and 'retirement' both stands on a different footing. Even at the relevant time, as per the Rules of the Bank, a person could have taken voluntary retirement after completing about 30 years of service. Since the petitioner had not completed 30 years of service at that time, naturally he was not entitled to submit an application for voluntary retirement and, therefore, ultimately be opted for resignation which he had tendered and same was accepted by the Bank. In our view, the point involved in the present case is covered by the judgment of the Supreme Court in the case of Uco Bank (supra).
10. The learned Counsel for the petitioner submitted that the Supreme Court in the aforesaid case has not gone to the concept of 'qualifying service'. In the aforesaid judgment the Supreme Court has also not considered Regulation 14 framed by the Bank. It provides 20 years of qualifying service for voluntary retirement and ten years minimum qualifying service for pension. In our view, it is not open for us to examine this question as ultimately the Supreme Court has laid down the law which is binding on all courts. The judgment of the Supreme Court in the aforesaid case is in connection with Regulations of the Uco Bank which is in pari materia and identical to the Regulation with which we are concerned in the present matter. The learned Counsel for the petitioner has also relied upon a Division Bench judgment of this Court in the case of (Commissioner of Income tax, Bombay v. D.P. Malhotra) 1997(3) Mh.L.J. 903. In the aforesaid case, a Division Bench of this Court was concerned with the aspect about income not to be included in the total income of the assessee. In that context, while construing Section 10(10-AA) of the Income Tax Act, 1961, this Court has considered as to whether termination of employment by resignation amounts to retirement' within the meaning of this clause or not. It was found that the retirement and resignation may stand on same footing so far as the question about total income of assessee i.e. employee is concerned. In our view, the interpretation given in connection with other statutory enactments cannot be made applicable to the facts of the present case especially when this Court is required to interpret the Pension Regulations framed by the Bank and more precisely Regulation (3) which we have pointed out earlier.
11. Learned Counsel for the petitioner relied upon a judgment of the Supreme Court in the case of (Bank of India v. Indu Rajagopalan) : 2000 DGLS (soft) 688 : 2001 Lab.I.C. 2120 : 2001(9) S.C.C. 318. In the aforesaid case, the Supreme Court after considering the facts and circumstances held that only few employees are likely to be affected and upheld the directions issued by the High Court in favour of the employees. The Supreme Court has held that since there is no significant financial or other burden of difference so far as those who have voluntarily retired and those who had ordinarily retired, they should be given said benefit. However, the Supreme Court has not interfered with the order of the High Court in view of the fact that the financial burden was negligible. In this case the Court is required to consider as to whether the resignation given by the petitioner can be considered as an application for voluntary retirement.
12. Learned Counsel for the petitioner fairly submitted that in view of the judgment of the Supreme Court in Uco Bank's case (supra), the challenge to Regulation 22 of the Pension Regulation, 1995 no longer survives.
13. In view of what is stated above, in our view, the resignation given by the petitioner in the year 1986 cannot be considered as an application for voluntary retirement simply because subsequently Pension Regulations were introduced with effect from a particular date. The petitioner after submitting his resignation neither can be said to be in employment of the Bank in any manner nor it can be said that the petitioner is stated to have been retired from the aforesaid date. Considering the said aspect, in our view, it cannot be said that the Bank has acted arbitrarily in any manner in not giving pensionary benefits to the petitioner in view of the fact that he had already resigned from the services of the Bank and had taken all his dues at the relevant time which includes gratuity and provident fund. Considering the said aspect, we do not find any merit in the petition. The writ petition is accordingly dismissed. Rule is discharged. There shall be no order as to costs.