United Bank of IndiA. Vs. Sri Ganesh Chandra Konwar, Son of Sri Bihubar Konwar. - Court Judgment

SooperKanoon Citationsooperkanoon.com/915394
SubjectBanking
CourtGuwahati High Court
Decided OnMar-07-2011
Case NumberWrit Appeal 308 of 2008.
JudgeI. A. ANSARI ; C. R. SARMA, JJ.
ActsBanking Companies (Acquisition and Transfer of Undertakings) Act, 1970 ;
AppellantUnited Bank of IndiA.
RespondentSri Ganesh Chandra Konwar, Son of Sri Bihubar Konwar.
Appellant AdvocateMr. S. Dutta; Mr. K.K. Dey; Mrs. M. Choudhury; Mrs. R. Kaur; Mr. D. Baruah, Advs.
Respondent AdvocateMr. B. D. Goswami, Adv.
Excerpt:
[aftab alam ; r.m. lodha, jj.] the respondent worked in the appellant-bank as cashier-cum-clerk. the enquiry was first fixed on november 15, 1994 but on that date the respondent did not appear without giving any intimation to the enquiry officer. due to his non- appearance the enquiry was adjourned to november 28, 1994. after recording his evidence, the enquiry officer closed the enquiry and submitted his report holding the respondent guilty of all the charges. the industrial tribunal found and held that the domestic enquiry held against the respondent suffered from violation of the principles of natural justice. it appears that from the bank this letter was not handed over to the enquiry officer. admittedly, the respondent had not appeared for the enquiry on two earlier dates. in those circumstances and having regard to the fact that the witness intended to be examined by the management in support of the charge had come in connection with that enquiry from delhi to dehradun for the third time, the enquiry officer decided to proceed with the enquiry and examine him ex parte. pw.1 happened to be the branch manager where the respondent was posted at the material time and where the misappropriation was committed by him.1. whether an employee of the union bank of india (in short, 'the bank') constituted with the banking companies (acquisition and transfer of undertakings) act, 1970, who opts to go on voluntary retirement under a voluntary retirement scheme (in short, 'vrs'), is entitled to receive pension if he happens to have completed 10 years of service in his employment with the bank, is the question, which has been mooted for decision in this appeal.2. before we endevour to answer the question, mooted above, it is necessary to take note of the facts and circumstances leading to this appeal, which has been preferred by the bank against the judgment and order, dated 15.05.2007, passed, in wp(c) no.9612/2003, whereby a learned single judge of this court has allowed the writ petition holding that the respondent herein, who was an employee of the bank, and who has voluntarily retired from service under a voluntary retirement scheme, is entitled to receive pension, because he has completed 10 years of regular service.3. by its circular, dated 23.12.2000, the bank introduced voluntary retirement scheme, 2000, (in short, 'the vrs, 2000') with a view to streamlining the human resources of the bank so as to ensure optimum productivity and profitability. the respondent herein, who had been serving, at the relevant point of time, as an employee of the bank, having applied for voluntary retirement, under the vrs, 2000, voluntarily retired from service on 14.03.2001. having so retired, the respondent applied to the bank for granting him pension too. by its letter, dated 16.07.2003, the bank informed the respondent that he was not eligible to receive pension as he had not completed 15 years of service at the time of obtaining his release from employment on being voluntarily retired, under the vrs, 2000, inasmuch as it is only an employee, who has completed 15 years of service at the time of obtaining voluntary retirement, under the vrs, 2000, who would be entitled to receive pension in terms of regulation 28 of the united bank of india (employees') pension regulations, 1995. the refusal of the bank to grant him pension was put to challenge by the respondent by making an application under article 226. this application gave rise to wp(c) no.9612/2003, which came to be disposed of by the judgment and order, dated 15.05.2007, under appeal, whereby the respondent was held entitled to receive pension on the ground that he had completed 10 years of regular service in the bank and was, according to the learned single judge, entitled to receive pension under regulation 14. the learned single judge has accordingly directed the bank to make the pension available to the respondent. aggrieved by the direction, so given, the bank is, in appeal, before us.4. we have heard mr. s. dutta, learned counsel, for the bank, and mr. bd goswami, learned counsel, for the respondent. 5. considering the fact that the eligibility criteria for obtaining the benefit of the vrs, 2000, are embodied in para 4(i) thereof, para4(i) is reproduced hereinbelow: "4.eligibility: (i) all permanent full time employees of the bank will be eligible for seeking voluntary retirement under the scheme provided they meet the following eligibility criteria on the date of application. (a) they have completed 15 years of service or (b) attained 40 years of age."5. from a careful reading of sub-clauses (a) and (b) of clause (i) of para 4, it becomes clear that an employee, in order to avail the benefit of the vrs, 2000, ought to have satisfied any of the two eligibility criteria inasmuch as he must have either (a) completed 15 years of service or (b) he must have attained 40 years of age. in the case at hand, the respondent had not completed 15 years of service, but he did attain the age of 40 years. the respondent was, therefore, eligible to avail the benefit of the vrs, 2000, on the ground of his attaining the age of 40 years. while attaining the age of 40 years, he had not completed 15 years of service. was he entitled to receive pension, though he had not completed 15 years of service? this is the question, which we have to answer.6. it needs to be, now, noted that para 6 of the vrs, 2000, contains those other benefits, which are to be made available to an employee, who opts to avail the benefit of the vrs, 2000. para 6 reads as under:"6. other benefits : an employee seeking voluntary retirement under the scheme will be eligible for the following benefits in addition to ex-gratia amount mentioned in para 5 above scheme - (i) gratuity as per gratuity act/service gratuity as the case may be.(ii) a) pension (including commuted value of pension) as per united bank of india (employees') pension regulations, 1995, or b) bank's contribution towards staff provident fund as per existing rules, as the case may be.(iii) leave encashment as per rules."7. from a bare reading of sub-clause (a) of clause (ii) of para 6, it clearly transpires that in order to make an employee, who opts to go on voluntary retirement under the vrs, 2000, entitled to receive pension, he must satisfy the condition of eligibility as embodied in united bank of india (employees') pension regulations, 1995 (in short, 'the regulations'). we, therefore, turn our attention to the regulations.8. what is, now, important to note is that regulation 14, which prescribes the qualifying period of service for a person, who has become eligible to receive pension, reads as under:"14. qualifying service - subject to the other conditions contained in these regulations, an employee, who has rendered a minimum of ten years of service in the bank on the date of his retirement or the date on which he is deemed to have retired shall qualify for pension."9. close on the heels of regulation 14, regulation 28 embodies the classes of pension. regulation 28, before it underwent amendment on 12.01.2004, read as under: "28. superannuation pension - superannuation pension shall be granted to an employee who has retired on his attaining the age of superannuation specified in the service regulations or settlements."10. as regulation 29 deals with pension on voluntary retirement, the relevant portion thereof too is extracted below: "29. pension on voluntary retirement -(1) on or after 1st day of november, 1993, at any time after an employee has completed twenty years of qualifying service he may, by giving notice or not less than three months in writing to the appointing authority retire from service. provided... provided....(2) the notice of voluntary retirement given under sub-regulation(1) shall require acceptance by the appointing authority."11. what is, now, of immense importance to note is that regulation 28 had earlier made pension available to an employee, who retires on attaining the age of superannuation and the qualifying period of service as contained in regulation 29 had been 20 years. having taken note of the fact that an employee of the bank, who retires before attaining the age of superannuation, was not entitled to receive pension if he applies for voluntary retirement, the indian bank association sought to provide to an employee, who opts to go on voluntary retirement, under the vrs, 2000, if he had rendered a minimum 15 years of service. regulation 28 was accordingly amended on 12.01.2004. the amended regulation 28 reads, now, as under:"28. superannuation pension.-superannuation pension shall be granted to an employee who has retired on his attaining the age of superannuation specified in the service regulations or settlements: provided that, with effect from 1-9-2000 pension shall also be granted to an employee who opts to retire before attaining the age of superannuation, but after rendering service for a minimum period of 15 years in terms of any scheme that may be framed for such purpose by the board with the approval of the government."12. a bare reading of the amended regulation 28 shows that ordinarily, an employee would be eligible to receive pension if he retires on superannuation; but the proviso to regulation 28 clarifies that pension shall also be granted to an employee, who opts to retire under a voluntary retirement scheme before attaining the age of superannuation provided that he has rendered a minimum period of 15 years of service. it, thus, becomes clear that under regulation 28, a bank employee would be entitled to receive pension if he chooses to retire under a vrs, provided that he has completed minimum period of 15 years of service on the day he so retires voluntarily. what logically follows from the above discussion is that an employee, who chose to retire under the vrs, 2000, he would have been entitled to receive pension provided that he had completed the minimum period of 15 years of service on the day he so retired.13. in the case at hand, the respondent was duly retired from the service of the bank on 14.03.2001. the amended regulation 28 was, therefore, squarely applicable to the case of the respondent; but he, having not completed the minimum prescribed period of service of 15 years, was not entitled to receive pension. the learned single judge, however, directed that the benefit of pension shall be made available to the respondent, because it is, according to the learned single judge, regulation 14, which is applicable to the case of the respondent.14. the question, therefore, which, now, arises for consideration is whether regulation 14 could have been resorted to in the case of the respondent. it needs to be noted that regulation 14 prescribes the minimum qualifying period of service of 10 years, on the date of retirement, in order to entitle an employee of the bank to receive pension. the learned single judge has taken the view that regulation 14 applies, because the term retirement, appearing in regulation 14, is, according to the learned single judge, not restricted to superannuation. is this view correct?15. while considering the question, posed above, it needs to be noted that the amended regulation 28 shows that an employee would be entitled to receive the benefit of pension if he opts to retire before attaining the age of superannuation provided that he has rendered service for a minimum period of 15 years in terms of any scheme that may be framed for such purpose by the board with the approval of the government. it is, therefore, regulation 28, which was applicable to the facts of the present case.16. dealing with the fact situation of a case similar to the one at hand, the supreme court, in bank of baroda and others v. ganpat singh deora, reported in (2009) 3 scc 217, has clearly taken the view that regulations 14 and 29 relate to the period of qualifying service for pension under the said regulations in two different situations. while regulation 14 provides that in order to be eligible for pension, an employee would have to render a minimum of 10 year's service, regulation 29 is applicable to the employees choosing to retire from service prematurely. in the present case, the respondent herein had opted to go on voluntary retirement under the vrs, 2000, and not on his own volition dehors the said scheme. in such circumstances, regulation 14 read with regulation 32, which provides for premature retirement, would also not apply. it is regulation 28, which applies to a situation of present nature, whereunder when an employee of the bank opts to go on retirement under a vrs, such as, the vrs, 2000, he would be entitled to pension if he has completed 15 years of service in the bank. in ganpat singh deora (supra), the supreme court has observed: "30. on the other hand, regulations 14 and 29 relate to the period of qualifying service for pension under the said regulations in two different situations. while regulation 14 provides that in order to be eligible for pension, an employee would have to render a minimum of 10 year's service, regulation 29 is applicable to the employees choosing to retire from service prematurely, and in their case, the period of qualifying service would be 15 years."17. concluded the supreme court, in ganpat singh deora (supra), thus:"33. we are, therefore, of the view that not having completed the required length of qualifying service as provided under regulation 28 of the 1995 regulations, the respondent was not eligible for pension under the pension regulations, 1995 of the appellant bank." 18. from what have been discussed above and taking into account what has been laid down in ganpat singh deora (supra), we are clearly of the view that the learned single judge seriously fell into error in treating the case of the respondent under regulation 14, which was meant for employees, who retire on superannuation, but have completed 10 years of service. regulation 14 was, thus, not applicable to the facts of the present case. it is regulation 28, we may reiterate, which is applicable to the present case.19. because of what have been discussed and pointed out above, we are constrained to hold that the direction given to the appellants by the learned single judge to make 'pension' available to the respondent, is not sustainable in law.20. it has, however, been pointed out by mr. goswami, learned counsel for the respondent, that the respondent has not been paid gratuity nor has been furnished the details of the accounts of the loan, which he had taken and the dues, if any, which he is liable to pay. responding to the grievances, so expressed, mr. dutta, learned counsel for the bank, submits that the bank, who is appellant in the present appeal, would ensure that the gratuity and details of the accounts of the loan be made available to the respondent.21. considering the matter in its entirety and in the interest of justice, while this appeal is allowed, the direction given by the learned single judge to make the pension available to the respondent is hereby set aside. the bank is directed to ensure that within three month's from today, the gratuity and also the details of the loan account of the respondent be made available to the respondent.22. with the above observations and directions, this appeal shall stand disposed of.23. no costs.
Judgment:
1. Whether an employee of the Union Bank of India (in short, 'the bank') constituted with the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, who opts to go on voluntary retirement under a Voluntary retirement Scheme (in short, 'VRS'), is entitled to receive pension if he happens to have completed 10 years of service in his employment with the bank, is the question, which has been mooted for decision in this appeal.

2. Before we endevour to answer the question, mooted above, it is necessary to take note of the facts and circumstances leading to this appeal, which has been preferred by the bank against the judgment and order, dated 15.05.2007, passed, in WP(C) No.9612/2003, whereby a learned Single Judge of this Court has allowed the writ petition holding that the respondent herein, who was an employee of the bank, and who has voluntarily retired from service under a Voluntary Retirement Scheme, is entitled to receive pension, because he has completed 10 years of regular service.

3. By its circular, dated 23.12.2000, the bank introduced Voluntary Retirement Scheme, 2000, (in short, 'the VRS, 2000') with a view to streamlining the human resources of the bank so as to ensure optimum productivity and profitability. The respondent herein, who had been serving, at the relevant point of time, as an employee of the bank, having applied for voluntary retirement, under the VRS, 2000, voluntarily retired from service on 14.03.2001. Having so retired, the respondent applied to the bank for granting him pension too. By its letter, dated 16.07.2003, the bank informed the respondent that he was not eligible to receive pension as he had not completed 15 years of service at the time of obtaining his release from employment on being voluntarily retired, under the VRS, 2000, inasmuch as it is only an employee, who has completed 15 years of service at the time of obtaining voluntary retirement, under the VRS, 2000, who would be entitled to receive pension in terms of Regulation 28 of the United Bank of India (Employees') Pension Regulations, 1995. The refusal of the bank to grant him pension was put to challenge by the respondent by making an application under Article 226. This application gave rise to WP(C) No.9612/2003, which came to be disposed of by the judgment and order, dated 15.05.2007, under appeal, whereby the respondent was held entitled to receive pension on the ground that he had completed 10 years of regular service in the bank and was, according to the learned Single Judge, entitled to receive pension under Regulation 14. The learned Single Judge has accordingly directed the bank to make the pension available to the respondent. Aggrieved by the direction, so given, the bank is, in appeal, before us.

4. We have heard Mr. S. Dutta, learned counsel, for the bank, and Mr. BD Goswami, learned counsel, for the respondent.

5. Considering the fact that the eligibility criteria for obtaining the benefit of the VRS, 2000, are embodied in para 4(i) thereof, para

4(i) is reproduced hereinbelow:

"4.ELIGIBILITY:

(i) All permanent full time employees of the Bank will be eligible for seeking voluntary retirement under the Scheme provided they meet the following eligibility criteria on the date of application.

(a) They have completed 15 years of service or

(b) Attained 40 years of age."

5. From a careful reading of Sub-Clauses (a) and (b) of Clause (i) of para 4, it becomes clear that an employee, in order to avail the benefit of the VRS, 2000, ought to have satisfied any of the two eligibility criteria inasmuch as he must have either (a) completed 15 years of service or (b) he must have attained 40 years of age. In the case at hand, the respondent had not completed 15 years of service, but he did attain the age of 40 years. The respondent was, therefore, eligible to avail the benefit of the VRS, 2000, on the ground of his attaining the age of 40 years. While attaining the age of 40 years, he had not completed 15 years of service. Was he entitled to receive pension, though he had not completed 15 years of service? This is the question, which we have to answer.

6. It needs to be, now, noted that para 6 of the VRS, 2000, contains those other benefits, which are to be made available to an employee, who opts to avail the benefit of the VRS, 2000. Para 6 reads as under:

"6. OTHER BENEFITS : An employee seeking voluntary retirement under the Scheme will be eligible for the following benefits in addition to ex-gratia amount mentioned in para 5 above scheme -

(i) Gratuity as per Gratuity Act/Service Gratuity as the case may be.

(ii) a) Pension (including commuted value of pension) as per United Bank of India (Employees') Pension Regulations, 1995, or b) Bank's contribution towards staff Provident Fund as per existing Rules, as the case may be.

(iii) Leave Encashment as per rules."

7. From a bare reading of Sub-Clause (a) of Clause (ii) of para 6, it clearly transpires that in order to make an employee, who opts to go on voluntary retirement under the VRS, 2000, entitled to receive pension, he must satisfy the condition of eligibility as embodied in United Bank of India (Employees') Pension Regulations, 1995 (in short, 'the Regulations'). We, therefore, turn our attention to the Regulations.

8. What is, now, important to note is that Regulation 14, which prescribes the qualifying period of service for a person, who has become eligible to receive pension, reads as under:

"14. Qualifying service - Subject to the other conditions contained in these regulations, an employee, who has rendered a minimum of ten years of service in the Bank on the date of his retirement or the date on which he is deemed to have retired shall qualify for pension."

9. Close on the heels of Regulation 14, Regulation 28 embodies the classes of pension. Regulation 28, before it underwent amendment on 12.01.2004, read as under:

"28. Superannuation Pension - Superannuation pension shall be granted to an employee who has retired on his attaining the age of superannuation specified in the Service Regulations or Settlements."

10. As Regulation 29 deals with pension on voluntary retirement, the relevant portion thereof too is extracted below:

"29. Pension on Voluntary retirement -

(1) On or after 1st Day of November, 1993, at any time after an employee has completed twenty years of qualifying service he may, by giving notice or not less than three months in writing to the appointing authority retire from service.

Provided...

Provided....

(2) The notice of voluntary retirement given under sub-regulation

(1) shall require acceptance by the appointing authority."

11. What is, now, of immense importance to note is that Regulation 28 had earlier made pension available to an employee, who retires on attaining the age of superannuation and the qualifying period of service as contained in Regulation 29 had been 20 years. Having taken note of the fact that an employee of the bank, who retires before attaining the age of superannuation, was not entitled to receive pension if he applies for voluntary retirement, the Indian Bank Association sought to provide to an employee, who opts to go on voluntary retirement, under the VRS, 2000, if he had rendered a minimum 15 years of service. Regulation 28 was accordingly amended on 12.01.2004. The amended Regulation 28 reads, now, as under:

"28. Superannuation pension.-Superannuation pension shall be granted to an employee who has retired on his attaining the age of superannuation specified in the Service Regulations or settlements: Provided that, with effect from 1-9-2000 pension shall also be granted to an employee who opts to retire before attaining the age of superannuation, but after rendering service for a minimum period of 15 years in terms of any scheme that may be framed for such purpose by the Board with the approval of the Government."

12. A bare reading of the amended Regulation 28 shows that ordinarily, an employee would be eligible to receive pension if he retires on superannuation; but the proviso to Regulation 28 clarifies that pension shall also be granted to an employee, who opts to retire under a voluntary retirement scheme before attaining the age of superannuation provided that he has rendered a minimum period of 15 years of service. It, thus, becomes clear that under Regulation 28, a bank employee would be entitled to receive pension if he chooses to retire under a VRS, provided that he has completed minimum period of 15 years of service on the day he so retires voluntarily. What logically follows from the above discussion is that an employee, who chose to retire under the VRS, 2000, he would have been entitled to receive pension provided that he had completed the minimum period of 15 years of service on the day he so retired.

13. In the case at hand, the respondent was duly retired from the service of the bank on 14.03.2001. The amended Regulation 28 was, therefore, squarely applicable to the case of the respondent; but he, having not completed the minimum prescribed period of service of 15 years, was not entitled to receive pension. The learned Single Judge, however, directed that the benefit of pension shall be made available to the respondent, because it is, according to the learned Single Judge, Regulation 14, which is applicable to the case of the respondent.

14. The question, therefore, which, now, arises for consideration is whether Regulation 14 could have been resorted to in the case of the respondent. It needs to be noted that Regulation 14 prescribes the minimum qualifying period of service of 10 years, on the date of retirement, in order to entitle an employee of the bank to receive pension. The learned Single Judge has taken the view that Regulation 14 applies, because the term retirement, appearing in Regulation 14, is, according to the learned Single Judge, not restricted to superannuation. Is this view correct?

15. While considering the question, posed above, it needs to be noted that the amended Regulation 28 shows that an employee would be entitled to receive the benefit of pension if he opts to retire before attaining the age of superannuation provided that he has rendered service for a minimum period of 15 years in terms of any scheme that may be framed for such purpose by the Board with the approval of the Government. It is, therefore, Regulation 28, which was applicable to the facts of the present case.

16. Dealing with the fact situation of a case similar to the one at hand, the Supreme Court, in Bank of Baroda and others v. Ganpat Singh Deora, reported in (2009) 3 SCC 217, has clearly taken the view that Regulations 14 and 29 relate to the period of qualifying service for pension under the said Regulations in two different situations. While Regulation 14 provides that in order to be eligible for pension, an employee would have to render a minimum of 10 year's service, Regulation 29 is applicable to the employees choosing to retire from service prematurely. In the present case, the respondent herein had opted to go on voluntary retirement under the VRS, 2000, and not on his own volition dehors the said scheme. In such circumstances, Regulation 14 read with Regulation 32, which provides for premature retirement, would also not apply. It is Regulation 28, which applies to a situation of present nature, whereunder when an employee of the bank opts to go on retirement under a VRS, such as, the VRS, 2000, he would be entitled to pension if he has completed 15 years of service in the bank. In Ganpat Singh Deora (supra), the Supreme Court has observed:

"30. On the other hand, Regulations 14 and 29 relate to the period of qualifying service for pension under the said Regulations in two different situations. While Regulation 14 provides that in order to be eligible for pension, an employee would have to render a minimum of 10 year's service, Regulation 29 is applicable to the employees choosing to retire from service prematurely, and in their case, the period of qualifying service would be 15 years."

17. Concluded the Supreme Court, in Ganpat Singh Deora (supra), thus:

"33. We are, therefore, of the view that not having completed the required length of qualifying service as provided under Regulation 28 of the 1995 Regulations, the respondent was not eligible for pension under the Pension Regulations, 1995 of the appellant Bank."

18. From what have been discussed above and taking into account what has been laid down in Ganpat Singh Deora (supra), we are clearly of the view that the learned Single Judge seriously fell into error in treating the case of the respondent under Regulation 14, which was meant for employees, who retire on superannuation, but have completed 10 years of service. Regulation 14 was, thus, not applicable to the facts of the present case. It is Regulation 28, we may reiterate, which is applicable to the present case.

19. Because of what have been discussed and pointed out above, we are constrained to hold that the direction given to the appellants by the learned Single Judge to make 'pension' available to the respondent, is not sustainable in law.

20. It has, however, been pointed out by Mr. Goswami, learned counsel for the respondent, that the respondent has not been paid gratuity nor has been furnished the details of the accounts of the loan, which he had taken and the dues, if any, which he is liable to pay. Responding to the grievances, so expressed, Mr. Dutta, learned counsel for the bank, submits that the bank, who is appellant in the present appeal, would ensure that the gratuity and details of the accounts of the loan be made available to the respondent.

21. Considering the matter in its entirety and in the interest of justice, while this appeal is allowed, the direction given by the learned Single Judge to make the pension available to the respondent is hereby set aside. The bank is directed to ensure that within three month's from today, the gratuity and also the details of the loan account of the respondent be made available to the respondent.

22. With the above observations and directions, this appeal shall stand disposed of.

23. No costs.