Rajesh Balia, J.
1. We have heard learned Counsel for the parties.
2. The short issue raised in this appeal is whether the petitioner who has been coaxed to seek pre-mature retirement before he has attained the age of superannuation and before he attained the age of voluntarily retirement under the Bank of Baroda (Employee's) Pension Regulations, 1995 (hereinafter referred to as the Regulations of 1995) entitles him to claim pensionary benefits on completing the qualifying service of ten years or more.
3. The admitted position is that the petitioner-appellant has completed ten years of qualifying service and has not completed 15 years or more service and he has not attained the age of superannuation and he sought voluntarily retirement under the Bank of Baroda Employee Voluntary Retirement Scheme (herin after referred to as 'BOBEVRS'), 2001, which was offered by the Bank to its employees.
4. The petitioner claims that the voluntary retirement Scheme carries all the benefits payable under the Rules on voluntary retirement along with additional ex-gratia payment so that employees could be persuaded to seek pre - mature retirement as desired by the Bank even before he could ordinarily seek retirement under Rules with usual retiral benefits. The case of the petitioner in this regard is that a bank employee becomes entitled to pensionary benefits after completing qualifying service of 10 years under the Rules which he had completed. Since he has not sought voluntary retirement under the Pension Regulations, he is not governed by those Rules. Therefore, either he must be deemed to be superannuated under the Scheme or he may be treated to have been pre-matured retired through the voluntary retirement scheme floated by the Bank and at any rate he is governed under Regulation 32 of the Regulations of 1995 which also provides that the pensionary benefits would be available on completion of 10 years of qualifying service.
5. On the other hand, Mr. Chanda, learned Counsel appearing on behalf of Bank states that allowance of pension is not part of scheme except the pension is otherwise available under the Regulations of 1995, since pensionary benefits are available under the Regulations of 1995 to an employee, who seeks voluntary retirement on completion of 15 years of qualifying service, though the qualifying service required of superannuation is 10 years only. The petitioner-appellant does not fulfill that criteria for pensionay benefits under Regulations of 1995 and therefore, he is not entitled to pensionary benefits and is entitled only to ex-gratia payment.
6. We are of the opinion that the respondent Bank being a nationalized Bank is a State within the meaning of Article 12 of the Constitution of India and the question depends upon the interpretation of the Regulations framed by the Bank and the Scheme that has been promulgated with the approval of reserve Bank of India which are all statutory in character, the appellant, who has been offered to seek voluntarily retirement under the Scheme ought not to be left to the procedure of raising an industrial dispute which depends upon the decision of the Appropriate Government to refer the dispute to the Labour Court or not.
7. The petitioner-appellant in DB Special Appeal (W) No. 4814/2005 has raised in industrial dispute when he was denied the pensionary benefits on the grounds stated above. The award having been made in favour of the appellant employee of the Bank, the Bank has chosen to file Section B. Civil Writ Petition No. 5766/2004, challenging the award and has not chosen to implement the award.
8. As the award was not implemented, the employee has preferred SB Civil Writ Petition No. 6525/2005, seeking mandamus against the Bank for implementing the award. There being no interim relief, the writ petition filed by the employee has been dismissed inter alia on the ground that for enforcement of the award a machinery has been provided under the Industrial Disputes Act by approaching an Appropriate Government under Rules 33C(1) and he should be left to knock at the doors of the Appropriate Government for seeking appropriate relief. Hence the DB Civil Special Appeal No. 481/ 2005.
9. We are of the opinion that in the aforesaid circumstances when the enforcement of the award was sought by the petitioner-appellant and the same was under challenge, the petition has been admitted and was pending in this Court. it was only appropriate that in the first instance the writ petition filed by the Bank ought to have been decided and as the consequences thereof, the relief, if any, available to the employee ought to have been directed to be given rather than allowing a retired employee to languish for claiming his pensionary benefits even after its due adjudication. That having not been done so, the employee has challenged the order of the learned Single Judge by way of present special appeal.
10. Having considered precisely the issues raised in both the writ petition so that the dispute can be appropriately disposed off and it should not be left to be decided in piecemeal and to which course learned Counsel for the parties agreed to, we propose to consider the merit of the award made in favour of the workman before taking up the case of the employee about the implementation of the award.
11. As we have noticed above the BOBEVRS, 2001 envisaged that it shall became open for a period of one calendar month, i.e. from 15th January, 2001 to 14.02.2001. The eligibility of the candidates who could apply for retirement under the Scheme as stated in Para v(i) of the scheme is that all permanent employees of the Bank working in India or India-based officers working abroad and, who have completed/ would be completing minimum 15 years of service OR who have completed/would be completing 40 years of age as on the prescribed date, that is, 31st March 2001 shall be eligible to apply for voluntary retirement under BOBEVRS, 2001. The employee in question who has though not completed 15 years of service but has completed 40 years of age applied for voluntarily retirement under BOBEVRS, 2001. para-7 of the Scheme envisages that it was the option of the employer to accept or reject the application made under the Scheme and it was not necessary for the employer to have accepted the option submitted by the employer under the Scheme. Thus, ultimately the decision whether the incumbent is permitted to take retirement under the Scheme rested with the employer and not with the employee. It is envisaged that the rejection or acceptance shall be communicated to the employee within 15 days of such decision and against rejection of such acceptance, the employee shall have right to go in appeal before Appellate Authority and the decision of the Appellate Authority was to be final and binding on both the parties. In the aforesaid scenario, when the employee moved the application in the present case and was accepted by the Bank, the retirement of the workman took place in terms of the scheme and ex-gratia payment as envisaged in the Scheme was made to the employee. However, when he claimed pensionary benefits, the same was refused on the ground that he did not have requisite qualifying service in terms of Rule 29.
12. The Labour Court made its award dated 23.01.2003 in favour of the incumbent by accepting his claim as no counter was filed, nor any affidavit was submitted on behalf of the Bank to resist the claim of the incumbent. The Labour Court was of the opinion that once the employee was allowed to seek voluntary retirement and he was retired voluntarily, the employer cannot say that he has not completed the requisite amount of qualifying service, which would entitle him to claim pensionary benefits.
13. Having considered the rival contentions made by the learned Counsel for the parties, we are of the opinion that though the reasoning given by the Labour Court is not clear in its terms, the conclusion reached by it is correct and does not call for any interference by this Court.
14. Under the Regulations of 1995, the incumbent was entitled to seek voluntary retirement at any time after the employee has completed 15 years of qualifying service. He may by giving a notice of not less than three months in writing to the appointing authority retire from service.
15. The minimum eligibility period of service requiring for operation of Rule 29 of the Regulations of 1995 was originally fixed as 20 years. However, at the time when the petitioner-appellant opted under the Scheme, the eligibility period for voluntary retirement under the Scheme was 10 years only.
16. A person, who is voluntary retired in terms of Rule 29 of the Regulations of 1995, becomes eligible for pensionary benefits on entering the eligibility criterion. The minimum qualifying service requiring to entering the scheme of voluntary retirement was 10 years. The very important aspect of Rules 29 of the Regulations of 1995 is that it was an absolute option of the employee to seek retirement on completion of 15 years of qualifying service and there is no option of age to seek retirement merely on completion of certain age unless he has completed 15 years of qualifying service. If the Scheme of BOBEVRS, 2001 is read dehors the Regulations of 1995 and Rule 29, then Rule 29 cannot be invoked for the purpose of determining pension by treating the incumbent to be voluntary retired under Rule 29. In fact, the scheme can be considered in Rule 29 for the purpose of permitting a workman to seek voluntary retirement even before completing 15 years of qualifying service only on point of age the entitlement to pension under Rule 29 is not on the basis of completing qualifying service of 15 years but is on being eligible to seek voluntary retirement. If the BOBEVRS, 2001 is considered to be part of the Scheme and the incumbent had become eligible by fulfilling the eligibility criterion for seeking voluntary retirement, the provisions relating to the pension is made available to the person who had been allowed to seek voluntary retirement and pensionary benefits would become due automatically to him and not on completion of 15 years of qualifying service. In a sense the scheme is only a relaxation in Rule 29 about seeking voluntary retirement prematurely with extra benefit then available to voluntary retirement seekers under Rule 29.
17. It is apparent from the following provision that 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 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. Thus, on seeking voluntary retirement, a person under Rule 29 gets benefit of five years additional qualifying service for computing pension. The pensionary benefit is not depending on fixed period of qualifying service but depends upon valid acceptance of the voluntary retirement application. The petitioner becomes entitled to pensionary benefits on becoming eligible to seek voluntary retirement by fulfilling the condition as relaxed by the Scheme of 2001.
18. If on the other hand, the voluntary retirement is not in terms of Rule 29, it having been prescribed on different eligibility criteria for seeking pensionary benefits which provided ex-gratia payment in addition to other benefits, the case will clearly fall within the parameters of pension on premature retirement under Rule 32 of the Regulations of 1995. Rule 32 of the Regulations of 1995 reads as under:
32. Premature Retirement Pension.-Premature Retirement Pension may be granted to an employee who,--
(a) has rendered minimum ten years of service;
(b) retires from service on account of orders of the Bank to retire prematurely in the public interest or for any other reason specified in service Regulations or settlement, it otherwise he was entitled to such pension on superannuation on that date.
19. Therefore, if the petitioner's retirement under the Scheme is not treated as voluntary retirement on fulfillment of the eligibility conditions under Rule 29 as Scheme is dehors the Rules, the case would fall within the ambit of premature retirement under Rule 20 as for reasons other then superannuation on a Scheme flouted by the bank in public interest to reduce its work force on principle of golden hand shake. Then, the workman becomes entitled to pensionary benefits on completion of ten years of qualifying service which was also fulfilled by the incumbent in the present case.
20. Thus, viewed from any angle, the incumbent cannot be denied pensionary benefits merely on the basis of ex-gratia payment. It the case of the petitioner-appellant is considered to be as voluntary retirement in terms of Rule 29, the pensionary benefits is extended to a person who has been allowed to seek voluntary retirement as per Rule 29 as relaxed in its operation by the Scheme and if the case of the petitioner-appellant does not fall under Rule 29, then, it falls under the pre-mature retirement as employer's act to seek voluntary retirement of its employees in public interest. The Scheme floated by the Nationalized Bank with the approval of Reserve Bank of India must be presumed to be a Scheme to seek voluntary retirement of the employees by the Bank in public interest.
21. In that view of the matter, we are of the opinion that no interference is called for in the award dated 23.01.2003 rendered by Labour Court and Industrial Tribunal, Jodhpur in favour of incumbent Ganpat Singh Deora. Accordingly, the writ petition filed by the Bank is dismissed with no order as to the cost.
[DB Civil Special Appeal (W) No. 481/2005]
22. Since we have found on merit that the award passed by Labour Court did not call for interference and the incumbent is entitled to seek pensionary benefits as a result of voluntary retirement under the Scheme of 2001, the appeal deserves to be allowed. Accordingly, the appeal is allowed. The writ petition filed by Ganpat Singh Deora is allowed and the respondent-Bank is directed to release the pensionary benefits to the petitioner-appellant within a period of two months. The petitioner shall be entitled to interest at the rate of 8% on arrears of pensionary benefits from the date of making of the award.