B.S. Manjunath Vs. V. Kannan and Another - Court Judgment

(Prayer: This Ccc (Civil) Is Filed Under Sections 1! And 12 Of The Contempt Of Courts Act Fraying To Initiate Contempt Proceedings Against The Accused For Disobeying The Order Dated 11.07.2012 Passed By This Court In W.P.No.34625/2010 Vide Annexure-A.)

1. This contempt petition is filed complaining of disobedience of the order dated 11.07.2012 passed in Writ Petition No 34625/2010.

2. The grievance of the complainant is that, the persons who are similarly placed as that of the complainant have been extended the benefit, whereas the complainant has been discriminated.

3. The respondents have filed their counter contending that, the direction is to consider the representation of the complainant in view of the order passed by this Court in W.P.Nos.24158-160/2011 and in accordance with law. The law declared by the Apex Court would not extend the benefit to Hie complainant as claimed by him and therefore in law, he is net entitled to the said benefit and they have given an endorsement to that effect.

4. We have heard the learned counsel for the parties. The direction which was issued by this Court reads as under.

"No prejudice will be caused to the respondents, if they are directed to consider the petitioner's representation at Annexure-A and letter at Annexure-C, keeping in view the order of this Court in W.P.Nos.24158- 160/2011 and in accordance with law as expeditiously as possible and in any event not later than six weeks from the date of receipt of copy of this order."

Therefore, we have to see, what is the direction issued in W.P.Nos.24158-24160/2011. In the said proceedings, the learned Single Judge of this Court has held that, merely because, the petitioners have resigned from the service, is not a ground to deny the pension. Therefore, impugned clause No.7 was quashed a±?d the following order was passed:

I. Writ Petitions are hereby allowed.

II. The impugned clause No.7 of circular No. 10191 dated 07.09.2010 as per Annexures-M to M7 are hereby quashed.

III. Petitioners are entitled for pension as per the pension regulations of the respondent bank.

IV. Respondents to calculate and to extend the benefit of pension to the petitioners.

5. The said order was challenged in appeal in Writ Appeal Nos.2956-2977/2012, wherein the order of the learned Single Judge was affirmed. Aggrieved by the said order, a review petition came to be filed which was also came to be dismissed. Aggrieved by both the orders, a Special Leave Petition was preferred to the Apex Court in SLP (Civil) CC No.20811-20832/2013 where, the Apex Court on 06.12.2013 passed the following order:

"Delay condoned.

The special leave petitions are dismissed.

The question of law is kept open."

6. Thereafter, the respondents considered the representation of the complainant and issued an endorsement setting out the aforesaid facts to the effect that, in view of the law declared by the Apex Court in the case ofM.P.Prakhakarn and others Vs. Canara Bank and others,which is decided on 03.10.2012, the complainant is not entitled to the benefit of pension as he has resigned from service. Aggrieved by the same, the present petition is filed.

7. The respondents have challenged the order of the learned Single Judge in appeal. In appeal, the Division Bench held that, 'as the impugned direction was to consider the said representation in accordance with law as expeditiously as possible and in any event not later than six weeks'. The respondents appear to have taken up one after the other proceedings before the Court without any apparent cause of action and the appeals were filed with an application for condoning the delay of 489 days in preferring the appeals. Therefore, the application for condonation of delay and the appeals came to be dismissed.

8. From the aforesaid facts, it is clear that, the direction issued is to consider the i epresentation in terms of the order passed earlier which went up to the Supreme Court and the Supreme Court did not interfere with the order on merits but made it clear that, the question of law is kept open. The direction to pay pension is to be confined to that case alone. It cannot be read as lav/ declared by the Apex Court, as the question of law is kept open. Therefore, the finding of the learned Single Judge that, where an employee who has resigned from service is entitled to the benefit of pension was kept open to be decided.

9. That question came to be decided by the Apex Court in the case ofM.R.Prabakar Vs. Canara Bank and othersreported in (2012) 9 SCC 681. After reviewing the entire case law which was the basis for the learned Single Judge to pass the aforesaid order and held that though the concept of resignation is well known in service jurisprudence, the same has not been brought within the definition of retirement under Regulation 2(y). Further, the words 'retired' and 'retirement' have some resemblance in their meanings, but not 'resignation'. Regulation 3(1) (a) specifically used the expression 'retirement' and the expression 'resignation' has not been incorporated either in the definition clause or in Regulation 3(1)(a). We need not labour much on this issue, since the difference between these two concepts i.e., 'resignation' and 'retirement', in the context of the same in Banking Regulations of 1995, came up for consideration before the Supreme Court in the case ofUCO Bank and others Vs. Sanwar Mai (AIR 2004 SC 2135)wherein the Supreme Court has distinguished the words "resignation" and "retirement" and held as under:

"9 ... The words 'resignation' and 'retirement' have 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...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 actual 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 retrial 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"

10. The effect of 'resignation' and 'retirement' to the extent there is severance of employment but in the said case both the expressions are understood differently. Under the Regulations, the expression 'resignation' and 'retirement' have been employed for different purposes and carry different meanings. The pension claimed herein is based 011 real calculation. It is a finance scheme which does not depend upon the budget support and consequently it constitutes completion in itself. The scheme claim covers provident fund is labcur as compared co employees who retire from service. More over, resignation brings out complete cessation of the master and servant relationship maintained for the purpose of grant of retirement. Similarly the acceptance of resignation is dependent upon the discretion of the employer, whereas retirement is after completing of service is in terms of the Rules framed by the Bank. Resignation can be given at any point of time of the service. However, in the case of voluntary retirement, the employee has to complete stipulated service for retirement benefit. In the afore mentioned judgment, this Court has held that, there are different characteristic and criteria for submitting voluntary retirement and exception thereof. Thereafter, they considered the various judgment of the Apex court and then ultimately held that, a person who resigns from employment is not entitled to pension.

11. The learned Counsel for the complainant submits that, when persons who are similarly placed have been extended the said benefit, the complainant cannot be excluded. In support of his contention, he relied on a judgment of the Apex Court in the case of Purnendu Mukyopadhyaya -vs- V.K. Kappor [(2008) 14 SCC 403],where the Apex Court has held that "we do not appreciate the stand of the respondents in this behalf in as much as, whereas in one set of order involving the employees who were similarly situated of those of the appellants, benefits have been given, but the same are being denied to them. Such an action on the part of the respondents in our opinion is wholly unjustifiable. The judgment of a Court, as is well known, should not be read as a statute. It has to be read in its entirety. So read, the appellants had become entitled to the grant of benefits contemplated thereby." "In a case of this nature, in particular, having regard to the fact that the respondents have granted benefits to others, we fail to understand as to how the decision of this Court inJ.S. Parihar -vs- Qanptxt Duggar [(1996) 6 SCC 291]andVijay Singh ”vs- Mittanlal Hindoliya [(1997) 1 SCC 258]could be applicable. The State cannot treat the employees similarly situated differently. It cannot implement the orders in relation to one and refuse to do so in i elation to others. It is also not a case like J.S.Parihar, where while implementing the orders, a particular stand has been taken by the employer giving rrse to a subsequent cause of action. It is also not a case where the order of the Court is capable of two interpretations".

12. From the aforesaid judgments, it is very clear that, if a particular relief is given to a group of employees, the State cannot grant relief to one set of employees and deny the said benefit to another set of employees. In this case, though the complainant is also an employee of a bank, he and the persons who are similarly placed were not granted the benefit under the very same order. His request was to consider his representation for the benefit which was given to the persons who are similarly placed. The Court issued a direction to consider his repicsentation in the light of the orders passed earlier. The orders passed earlier was challenged up to the Hon'ble Supreme Court. Though the Apex Court did not interfere with the order on merits, it made it clear that, the question of law is kept open. When the respondents herein challenged the order passed by the learned Single Judge before a Division Bench, the Division Bench declined to interfere with the order on the ground that, the order of the learned Single Judge is only to consider the representation and therefore, directed the respondents to consider the representation in accordance with law and pass orders. It is thereafter, the representation is considered. The latest judgment of the Apex Court is taken note of, where it has been declared that, there is a remarkable distinction between 'resignation' and 'retirement' and a person who resigns is not entitled to benefit. The order of the learned Single Judge which was affirmed by the: Apex Court earlier was running counter to it and therefore, the question of law was kept open by the Apex Court. The direction is to consider the representation in the light of the earlier order and in accordance with Jaw, Now that the Apex Court has kept the question of law open and subsequently the Apex Court has declared the law on the point, the respondents have to consider the representation in accordance with law declared by the Apex Court. In that view of the matter, it is not a case where contempt proceedings can be initiated for disobedience of the Court order.

13. For the aforesaid reasons, the contempt proceedings are dropped.