THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.23459 OF 2013
ORDER
This Writ Petition has been filed seeking a Writ of Mandamus declaring the action of the respondents in not considering the representations of the petitioner dt.14.05.2004, 23.03.2005 and 10.07.2013 as illegal, arbitrary and unconstitutional and consequently to direct the respondents to consider and pass appropriate orders on the representations of the petitioner.
2. Brief facts leading to the filing of this Writ Petition are that the petitioner was appointed as a Cashier with State Bank of Hyderabad on 12.08.1970 and thereafter, the petitioner received promotions from time to time and in the month of March, 1980, he was promoted as Officer (Junior Management Grade-I). It is submitted that the petitioner was posted as Branch Manager of Uttar Kanchi Branch, East Godavari District, Andhra Pradesh in the month of November, 1981.
3. It is submitted that while the petitioner was working at Uttar Kanchi Branch of East Godavari District, the respondent No.3, acting W.P.No.23459 of 2013 2 upon an anonymous complaint, placed the petitioner under suspension and handed over the matter to the Central Bureau of Investigation (CBI), Visakhapatnam for investigation. Thereafter, the petitioner was reinstated into service in January, 1985 subsequent to the report given by the CBI. It is submitted that the copy of the CBI report was not served on the petitioner and the petitioner was made to believe that the CBI has given a report in favour of the petitioner. It is submitted that thereafter, respondent No.3 appointed an enquiry officer to conduct departmental enquiry which resulted in imposing punishment of compulsory retirement which was given effect to by respondent No.3 on 05.01.1989.
4. It is submitted that against the order of compulsory retirement in D.P.C.No.676 dt.20.09.1989, the petitioner filed an appeal to the 2nd respondent, but the same was confirmed by the order of respondent No.2 in D.P.C.No.1876 dt.30.12.1988 and to quash the same, the petitioner filed W.P.No.15531 of 1989. It is submitted that in the above Writ Petition, this Court had initially granted interim order vide order dt.18.12.1992 by setting aside the order of the 1st respondent, against which the respondents preferred an appeal in W.A.No.308 of 1993. It is W.P.No.23459 of 2013 3 submitted that in the Writ Appeal, the Hon'ble Court was pleased to grant interim stay of the order in W.P.No.15531 of 1989 on the condition that the petitioner is paid half of the salary last drawn including permissible Dearness Allowance. It is submitted that the said order was in force till disposal of W.A.No.308 of 1993 on 12.07.1995, whereunder the Hon'ble Court allowed the Writ Appeal filed by the respondents and remanded the matter to the Hon'ble Single Judge for fresh disposal. It is submitted that the Writ Petition was also finally dismissed vide orders dt.06.06.2001.
5. It is submitted that thereafter, the petitioner made a representation to the respondents opting for pension instead of PPF (bank contribution) on 18.07.1994 along with an undertaking in Annexure-B. It is submitted that the petitioner was eligible to avail the pensionary benefits whenever the same are made available by the respondents as per the guidelines issued by the bank from time to time. It is submitted that the petitioner was paid salary from 16.06.1993 to 12.07.1995 as per the direction of this Court in W.A.M.P.No.581 of 1993 in W.A.No.308 of 1993 dt.14.06.1993 and thereafter, the respondents stopped the payment. It is submitted that as per the guidelines of the respondent bank, the W.P.No.23459 of 2013 4 petitioner is entitled to pensionary benefits even after undergoing penalty of compulsory retirement. It is submitted that the petitioner joined the service of the bank on 12.08.1970 and remained in service till 05.01.1989 and therefore, he has rendered service for more than 18 years and 5 months and thereafter also, he continued in service till 1995 which covers the period of 2 years and 1 month and hence, if the said period from 16.06.1993 to 12.07.1995 is also taken into consideration, the total of service of the petitioner would be nearly 20 years 6 months and therefore, he was eligible for pension as per the guidelines of the bank. It is submitted that the petitioner has made representations on 14.05.2004 and 23.03.2005 with a request to sanction pension, but the respondents have not taken any action thereon and therefore, another representation dt.10.07.2013 was also filed, but the respondents have not taken any action thereon. Therefore, the present Writ Petition was filed. Initially, the prayer in the Writ Petition was to give a direction to the respondents to dispose of the representations of the petitioner dt.14.05.2004, 23.03.2005 and 10.07.2013 and that the matter was admitted on 08.08.2013 and thereafter, the matter came up only on 20.06.2022 and was finally heard on 22.06.2022.
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6. In the counter affidavit filed by the respondents, it is stated that since the petitioner had put in only 18 years of service till 05.01.1989, the date on which the order of compulsory retirement was passed and since the punishment imposed on him was given effect to, the petitioner is not entitled to pensionary benefits. It is submitted that the payment of half of the salary last drawn by the petitioner thereafter for a period of 2 years and 1 month was only pursuant to the directions of this Court and therefore, the said period cannot be considered for grant of pension as per the guidelines of the bank. It was further submitted that the representation of the petitioner dt.18.07.1994 was duly replied to by the PPG Department of the bank vide letter dt.03.06.1995 stating that the option to exercise pension from 01.01.1993 is available only to those employees who retired on superannuation and were working as on 01.01.1993 and as the petitioner did not retire on superannuation and was not working as on 01.01.1993, he is not entitled to pensionary benefits. It is submitted that since the representation of the petitioner was already disposed of, the subsequent representation dt.10.07.2013 for the very same relief was not replied to.
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7. The petitioner has filed a reply affidavit to the counter affidavit filed by the respondents stating that the petitioner has put in 20 years and 6 months of service inclusive of the period from 06.06.1993 to 12.07.1995 and therefore, he was eligible for pensionary benefits particularly since he was deemed to have been working as on 01.01.1993. He further submitted that the petitioner is entitled for pension even if the compulsory retirement is imposed by way of punishment.
8. The learned counsel for the petitioner reiterated the submissions made in the writ affidavit and also placed reliance upon the following judgments in favour of his contentions that even when a person retires on account of compulsory retirement, if he has put in more than 20 years of service, he would still be eligible for pensionary benefits.
(1) M.V.R. Sastry Vs. The Govt. Of India and others1. (2) A.P. Srivastava (Dead by LRs.) Vs. Union of India and others2.
1 1995 (2) ALD 695 2 (1995) 6 SCC 227 W.P.No.23459 of 2013 7 (3) Ram Ekbal Sharma Vs. State of Bihar and another3.
9. Learned Standing Counsel for the bank, on the other hand, supported the averments made in the counter affidavit and submitted that the period during which the petitioner claims to have been working under the interim orders of this Court cannot be considered as service of the petitioner for the reason that he was not working but was being paid only half of the salary he was last drawing and therefore, it cannot be considered as his full service.
10. Having regard to the rival contentions and the material on record, it is seen that the main prayer in the Writ Petition was to dispose of the representations of the petitioner for grant of full pension on account of his completing more than 20 years of service. This matter is coming up after nearly 10 years and since the counter affidavit speaks of the reasons for non-consideration of the petitioner's request for pension, this Court is of the opinion that no useful purpose would be served by directing the respondent bank to consider and dispose of the 3 (1990) 3 SCC 504 W.P.No.23459 of 2013 8 representations of the petitioner at this late stage. Thus, this Court deems it fit and proper to dispose of the Writ Petition on merits itself.
11. Admittedly, the petitioner had put in 18 years and 5 months of service as on the date of imposition of the punishment of compulsory retirement on 05.01.1989. Thereafter, when the petitioner had challenged the punishment order in the Appeal, the Appeal was dismissed and the Writ Petition filed against the appellate order in W.P.No.15531 of 1989 was allowed vide order dt.18.12.1992. However, this order was also not implemented in view of the Writ Appeal being filed by the respondent bank, i.e., W.A.No.308 of 1993 and this Court had admittedly granted interim stay of the order in W.P.No.15531 of 1989 on the condition that the petitioner be paid half of his salary last drawn including permissible dearness allowance. This order was in force till disposal of the Writ Appeal dt.12.07.1995. Therefore, the petitioner is claiming that since the Writ Petition was allowed vide order dt.18.12.1992, he is deemed to be in service till the said order was ultimately set aside in the Writ Petition. Since he was paid salary from 16.06.1993 to 12.07.1995, according to the petitioner, it covers the period of 2 years and 1 month, and since the total period of such service W.P.No.23459 of 2013 9 (if put together) comes to 20 years 6 months, he is eligible for pensionary benefits. As per the judgments relied upon by the learned counsel for the petitioner, an employee who has put in the minimum qualifying service prescribed for grant of pension, even if subsequently retired compulsorily by way of punishment, is eligible for pensionary benefits. It is therefore necessary to examine the applicability of the above decisions to the facts of the case before this Court.
12. In the case of M.V.R. Sastry Vs. The Govt. Of India and others (1 supra), the Hon'ble High Court of Andhra Pradesh was considering the case of the petitioner therein whose qualifying service was to be counted by taking the age of entry into service and in the said case, he entered into service before reaching 17 years of age. The facts are therefore distinguishable and therefore, the judgment is not applicable to the case of the petitioner herein.
13. The issue in the case of Ram Ekbal Sharma Vs. State of Bihar and another (3 supra) was whether the compulsory retirement was in public interest or by way of punishment. The Hon'ble Supreme Court has held that the Court can lift the veil of the innocuous order in appropriate cases to find out the real basis, i.e., where the order made W.P.No.23459 of 2013 10 under Rule 74(b)(ii) of the Bihar Service Code against an officer having an excellent and unblemished service record was actually based on a report of ex parte enquiry concerning grave charges of misconduct against the officer, the Hon'ble Supreme Court has held that the order of compulsory retirement imposed therein was by way of punishment and as such violative of Articles 311 and 14 of the Constitution of India and Rule 74(b)(ii) of the Bihar Service Code, 1979. Therefore, this decision is also of no help to the petitioner herein, as it is distinguishable on facts.
14. In the case of A.P. Srivastava (Dead by LRs.) Vs. Union of India and others (2 supra), the Hon'ble Supreme Court has held that compulsory retirement will not affect entitlement of the employee to pension if the same is payable for voluntary retirement as on that date. In the said case, the petitioner therein had completed more than 20 years of service before being imposed with the punishment of compulsory retirement and in such circumstances, the Hon'ble Supreme Court has held that when a person voluntarily retires after putting in 20 years of service, he is eligible for pensionary benefits, and therefore, even in the case of imposing of punishment of compulsory retirement after such 20 W.P.No.23459 of 2013 11 years of service, a Government servant is entitled to pensionary benefits. Applying this judgment to the facts of the case herein, it is noticed that though the petitioner has put in 18 years and 5 months of service prior to imposition of compulsory retirement, he had not rendered any service thereafter, but was paid half of the salary last drawn as per the interim directions of this Court as an interim measure. In view thereof, the period for which the petitioner has been paid salary cannot be treated as service rendered by the petitioner and cannot be added to the qualifying service for payment of pensionary benefits. Accordingly, this Court does not find any infirmity in the action of the respondents in not granting the pension to the petitioner.
15. In view of the above, the Writ Petition is dismissed as being without merit. No order as to costs.
16. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 08.09.2022 Svv