JUDGMENT Mukul Mudgal, J.
1. This Letters Patent Appeal challenges the order of the Learned Single Judge dated 16th May 2002 dismissing CWP No. 6999/99 filed by the Appellant.
2. The petitioner joined services of Respondent No. 1, Oriental Insurance Company Limited on 1.1.1960 and rose to the post of Manager. On 21.1.1976 by a Gazette Notification, the General Insurance (Termination, Superannuation and Retirement of Officers and Development Staff) Scheme 1976 (said Scheme) was brought into force and from then on amended from time to time. The last amendment was carried out on 23.12.1991 and the said Scheme provided for both voluntary retirement and determination of service. The petitioner completed 55 years of age on 24.3.1992 by which time he had rendered 32 years of service and submitted his resignation from service with a request for waiver of the requisite three months notice. The Petitioner stated that he was governed by the Contributory Provident Fund Scheme to which he had subscribed and Provident Fund and Gratuity were the only two post retiral benefits which were available to an employee. The papers of the petitioner were processed and were subjected to vigilance clearance. On such clearance being received the resignation was accepted on 22.4.1992. With the competent authority agreeing to waive the notice period, the petitioner was relieved from duty from the said date.
3. On 28.6.1995 the Government of India enforced the General Insurance (Employees) Pension Scheme, 1995 (hereinafter referred to as the Pension Scheme) by a Gazette Notification. According to Clause 3 of the Pension Scheme, employees who were in service of the company on or after 1.1.1986 but had retired before 1.11.1993 were allowed an option to opt for the Pension Scheme subject to fulfillling certain other conditions including refund of matching contribution of Provident Fund. Such option had to be exercised within 120 days from the notified date.
4. The petitioner sought to exercise the option within the stipulated period and approached the concerned authorities by making a representation to the effect that his resignation is in fact liable to be treated as voluntary retirement for him to avail the benefits of the Pension Scheme since there was, in fact, no difference between the two modes of cessation of service. The petitioner submitted his application vide letter dated 12.12.1995. The petitioner was asked to get himself medically examined on 16.1.1996. The petitioner was requested to notify the date of his commutation of pension which was replied to by the petitioner vide letter dated 19.1.1996. The petitioner was also reimbursed the medical expenses on 8.8.1996 in pursuance to his application. Since the pension was thereafter not released to the petitioner, the petitioner preferred the writ petition No. 6999/99 before a learned Single Judge.
5. The Writ Petition (C) No. 6999/99 was opposed by the Respondents on the ground that the petitioner had resigned from service and had not sought voluntary retirement and accordingly could not claim benefit of a clause which only pertained to voluntary retirement. The main contention of the petitioner was two fold, one that after superannuation age and completion of 20 years of service the distinction between voluntary retirement and resignation becomes insignificant for the cause of the petitioner and secondly the issuance of the Option Form (Pension) by the respondents on the request of the petitioner meant that the Respondents had accepted petitioner's application as one for "Voluntary Retirement". The Learned Single Judge dismissed the Petitioner's writ primarily on the ground that the Petitioner resigned and as such, in terms of Clause 22 of the Pension Scheme which only applied to the employees seeking voluntary retirement, is not entitled to any pension.
6. The principle issue involved in the present appeal is whether the appellant could avail all the benefits of 1995 Pension Scheme because the appellant had not voluntarily retired but resigned from the services of the respondent Bank. The 1976 Scheme provided for method of cessation of service as under:
(4A) Notwithstanding anything contained in the foregoing sub paragraphs, an officer or a person of the Development staff may be permitted subject to vigilance clearance, to seek voluntary retirement on completion of 55 years of age or at any time thereafter on giving three months notice in writing to the appointing authority of his intention to retire. Provided that on a written request from an officer or a person of the Development Staff, such notice may be waived in full or in part by the appointing authority.
(5) An officer or a person of the development staff other than one on probation, shall not leave or discontinue this service without first giving notice in writing to the appointing authority of his intention to leave or discontinue the service and the period of notice required to be given shall be three months:
Provided that such notice may be waived in part or in full by the appointing authority at its discretion.
7. The petitioner had completed 55 years of age on 24.3.92 and completed 32 years of service. He submitted his resignation from service with a request for waiving of the three months notice period. Upon waiver of this notice period and vigilance and other clearances his resignation was accepted on 22.4.92 and he was relieved from duty on the said date.
8. More than three years after the petitioner's resignation and consequently ceasing to be an employee of the respondent company, on 28.6.95 the General Insurance (Employees) Pension Scheme, 1995 (hereinafter referred to as "the 1995 Scheme") was brought into force. Clause 3 of the 1995 Scheme postulated that the employees who were in the service of the company on or after 1.1.1986 but had retired before 1.11.93 were allowed an option to opt for the Pension Scheme subject to fulfillling certain other conditions including refund of Provident Fund and said option has to be exercised within 120 days from the notified date, i.e., 28.6.95. Such an option was sought to be exercised by the petitioner by representing that his resignation was in fact treated as voluntary retirement as essentially there was no difference between resignation and voluntary retirement. Since the respondent declined to give the benefit of the 1995 Scheme to the petitioner, therefore, the writ petition leading to this appeal was filed. The learned Single Judge in the order dated 16.5.2002 (in WP(C) No. 6999/1999) held as follows:
(a) Reaching the age of 55 years was the very pre-requisite for seeking the benefit of voluntary retirement under the 1976 Scheme.
(b) The petitioner had submitted his resignation which had been accepted in 1992.
(c) The 1995 Scheme as per Clause 3(1) (a) made the Scheme applicable to the employee who were in service after 1.1.86 but had retired before 1st day of November, 1993.
(d) The petitioner had resigned and not retired from service.
(e) The Hon'ble Supreme Court in V.M. Gadre v. M.G. Diwan and Bombay High Court in CWP No. 1825/1996 titled Madhukar Rangnath Kulkarni v. New India Assurance Co. Ltd. decided on 25th September, 1996 held that it is not for the Court give a go by to the mandate of Pension Scheme and substitute it by what is not envisaged in the Scheme. Para 2(t) of the Pension Scheme reads as follows:
(t) 'retirement means:
(i) the retirement in accordance with the provisions contained in paragraph 12 of General Insurance (Rationalisation and Revision of Pay Scales and other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Scheme, 1974 notified under the notification of Government of India, in the Ministry of Finance (Department of Revenue and Insurance) number S. O. 326 (E) dated the 27th May, 1974;
(ii) the retirement in accordance with the provisions contained in paragraph 4 of the General Insurance (Termination, superannuation and Retirement of Officers and Development Staff), Scheme, 1976 notified under notification of Government of India, in the Ministry of Finance (Department of Economic Affairs) number S. O. 627 (E) dated 21st September, 1976;
(iii) voluntary retirement in accordance with the provisions contained in paragraph 30 of this scheme;
(f) The reading of Para 4 of the 1976 Scheme clearly showed that the Scheme deals with superannuation and retirement, Para 4A deals with voluntary retirement and Para 5 deals with determination of service and there was clear distinction between the two. Sub para (iii) of para (t) refers to voluntary retirement in accordance with the Scheme. Thus, it only deals with voluntary retirement under the Pension Scheme.
(g) That voluntary retirement under the 1995 Scheme only included voluntary retirement as per para 30 of the 1995 Scheme and not voluntary retirement under the 1976 Scheme.
(h) That the voluntary retirement was excluded from the definition of retirement under the 1976 Scheme.
(i) Consequently, any voluntary retirement sought under the 1976 Scheme could not made the petitioner eligible under the 1995 Scheme.
(j) Para 22 of the 1995 Scheme clearly disqualifies a person who resigned from pensionary benefits and judicial interpretation cannot be resorted to treat such a resignation as voluntary retirement.
9. In this view of the matter the writ petition was dismissed by the learned Single Judge by impugned judgment dated 16.5.2002. This led to the present Letter Patent Appeal (LPA).
10. Mr. Pradeep Bakshi, the learned Counsel for the appellant laid considerable stress on the fact that the petitioner had sought waiver of the requisite three months notice period. It is his plea, therefore, that the said waiver of the notice period clearly implied and indicated that the resignation was required to be treated as voluntary retirement.
11. It is necessary to set out Clause 22 of the 1995 Scheme relied upon by the counsel for the appellant. Clause 22 of the 1995 Pension Scheme reads as under:
(22) Forfeiture of service. -
Resignation or dismissal or removal or termination or compulsory retirement of an employee from the service of the Corporation or a Company shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits
12. In our view, the above plea has no substance. A perusal of Clause 22 clearly demonstrates that in order to avail the benefit of the 1995 Scheme what was required was voluntary retirement and not resignation from service. Furthermore, Clause 5 of the 1976 Scheme which was applicable at the time when the petitioner resigned from the service of the respondent company, also clearly provided that while submitting the resignation, three months notice was required to be given. Thus, the emphasis placed by Mr. Bakshi on the factor that the three months notice was waived leading to the cessation of the appellant's service by way of resignation tantamount to voluntary retirement is unsustainable. This is so because at the relevant time in 1992, the cessation of service by the medium of resignation required a three months notice period as per Clause 5 of the 1976 Scheme. We are thus in entire agreement with the finding of the learned Single Judge in respect of the above clauses.
13. In any event, in our view the position of law arising in this appeal is clearly settled by the judgment of the Hon'ble Supreme Court AIR 2004 SC 2135, relied upon by the learned Counsel for the appellant himself in UCO Bank and Ors. v Sanwar Mal. Paragraph 9 of the said judgment reads as under:
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 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 here is based on actuarial 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 disqualifying 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 @ page-SC 2141 and unreasonable classification repugnant to Article 14 of the Constitution by keeping out such class of employees. The view we have been taken is supported by the judgment of this Court in the case of Reserve Bank of India and Anr. v. Cecil Dennis Solomon and Anr. reported in 2003 [10] Scale 440. Before concluding we may state that Clause 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 provided 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 criteria the scheme disentitles such category of employees out of it.
14. We are of the view that the Hon'ble Supreme Court has thus held that the said Regulations clearly stipulate the difference between resignation and retirement both which have different purposes and carry different meanings. It was also held by the Hon'ble Supreme Court that the resignation brings about complete cessation of the master-servant relationship whereas the 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 the discretion of the employer whereas retirement is completion of service in terms of regulations/rules framed by the Company.
15. Thus it is clear that both resignation and voluntary retirement connote different situations and can not be construed to be one. In the petitioner's case the petitioner resigned in 1992 and the Scheme came into force in 1995. Clause 22 of the 1995 Scheme clearly provides that in order to avail of the benefit of the 1995 Scheme, voluntary retirement is what was required as opposed to mere resignation from service.
16. We are bound by the law laid down by the Hon'ble Supreme Court in the UCO Bank case (supra) and reiterate that while both resignation and voluntary retirement have a similar ultimate result in the form of a severance of service, the conditions under which they come about and the repercussions are different and hence cannot be treated as one.
17. Consequently, in view of the above position of law, we are unable to agree with the pleas raised by the learned Counsel for the appellant and accordingly, the appeal is dismissed.