Allahabad High Court
Smt. Kalawati vs State Of U.P. And 3 Others on 22 June, 2021
Bench: Munishwar Nath Bhandari, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 48
Case :- SPECIAL APPEAL DEFECTIVE No. - 314 of 2021
Appellant :- Smt. Kalawati
Respondent :- State Of U.P. And 3 Others
Counsel for Appellant :- Prashant Sharma
Counsel for Respondent :- C.S.C.,Anadi Krishna Narayana
Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Ajai Tyagi,J.
Order on Exemption application is allowed.
Learned counsel for the appellant prays for exemption of filing of certified copy of the impugned order dated 18.02.2021.
The exemption application is allowed.
Order on Special Appeal Defective
Heard Sri Prashant Sharma, learned counsel for the appellant and Sri Vishnu Pratap for respondent through video conferencing.
This appeal has been preferred to challenge the order dated 18.2.2021 passed by Hon'ble Single Judge in Civil Misc. Writ Petition No. 21812 of 2018 (Ram Ji Vs. State of U.P. and three others) and for seeking payment of pensionary benefit.
Learned counsel for the appellant submits that dismissal of the writ petition on the ground of latches was not proper and otherwise in ignorance of the judgment of the Hon'ble Apex Court in the case of Union of India & others Vs. Tarsem Singh 2008(8) SCC 648. On the aforesaid ground itself, the impugned judgment deserves to be set aside.
It is further submitted that option for the pension could not be given within time as per the Memorandum of Understanding (hereinafter referred to as 'MOU') dated 27.4.2010 due to leg injury. The delay was only of seven month. In view of above, the option for pension by the petitioner (deceased) should have been accepted to allow pensionary benefit. Thus denial of benefit of pension by the Respondents was not legally sustainable. It is more so when respondent themselves admitted about the entitlement of the pensionary benefit.
Learned counsel for the respondent bank submits that as per the MOU dated 27.4.2010 option for pension was required to be given within the time frame given therein. For the retired employees, option for pension was required to be given within a period of 60 days. The petitioner did not submit option for pension within a period of 60 days and even amount of provident fund with interest was refunded. In view of the above, the learned Single Judge rightly dismissed the writ petition for claim of pension in absence of option for it. The prayer is accordingly to dismiss the appeal.
We have the rival submissions of learned counsel for the parties and perused the record.
The writ petition has been dismissed on two grounds. First, taking note of latches in filing the writ petition. The petitioner had challenged the order dated 20.7.2011 by maintaining the writ petition in the year 2018 i.e. after a lapse of seven years. By the order dated 20.7.2011, the delayed application submitted by the petitioner to opt for pension was rejected. In fact, the cause of action to file writ petition arose in the year 2011 itself.
In any case taking it to be a case of pension, we could have ignored the delay in filing the writ petition but petitioner failed to show any document to prove option for pension within the time frame given in MOU dated 27.4.2010. As per the MOU between the Indian Banks Association and its workmen represented by All India Bank Employees Association, the retired employees were to apply for option within 60 days. In the instant case, the deceased employee gave option for pensionary benefit in July, 2011. It was not accepted on the ground that option for pension in terms of the MOU was to be given within 60 days. Even if liberal approach could have been taken by the bank, the option for pensionary benefit should have been given by the deceased within a period of sixty days from the date of MOU and not beyond that. The counsel for the appellant submits that due to leg injury, the option could not be given in time. The learned Single Judge found no document to prove leg injury to the petitioner at the relevant time. In absence of any proof, lame execuse taken by the petitioner was not accepted.
In the background aforesaid, the learned Single Judge dismissed the writ petition even on merit. It was found that as per MOU, the retired employee was to exercise their option for pensionary benefit between 13.9.2010 to 11.11.2010 whereas the petitioner approached the bank in the month of July, 2011. In view of above, the petitioner cannot be said to be member of pension scheme in absence of an option.
He accordingly received all the benefits arising out of provident fund apart from other retiral benefits.
Thus, we find no merit in the appeal. The denial of pensionary benefit is in absence of option to become a member of the scheme. Thus, even if the delay in filing of the writ petition is ignored, we find no merit to seek pensionary benefit in absence of its option in terms of MOU.
The appeal, accordingly, fails and is dismissed.
Order Date :- 22.6.2021
Manish Tripathi
