Kishan Swarup Sharma vs Allahabad Bank And Others
2022 Latest Caselaw 399 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 35
 

 
Case :- WRIT - A No. - 59680 of 2007
 

 
Petitioner :- Kishan Swarup Sharma
 
Respondent :- Allahabad Bank And Others
 
Counsel for Petitioner :- Manoj Kumar Sharma,Namit Kumar Sharma
 
Counsel for Respondent :- T. Varma,J.S.Pandey,Pashupati Nath Tripathi
 

 
Hon'ble Ajit Kumar,J.

1. Heard Sri Manoj Kumar Sharma, learned counsel for the petitioner and Sri P.N.Tripathi, learned counsel for the respondent bank.

2. By means of present writ petition filed under Article 226 of the Constitution, petitioner has prayed for a writ of certiorari to quash the order dated 26.09.2007 / 19.09.2007,whereby the claim of the petitioner for benefit of old pension scheme has been rejected by holding him not eligible for pension as per Allahabad Bank Officers Employees' (Service) Regulations 1979.

3. It transpires from the documents that have been brought on record that earlier petitioner had approached this Court against the order dated 28th January, 2022 whereby claim of the petitioner had been rejected on the ground that the petitioner had been promoted in the officers' cadre on 4.11.1996 and so old pension scheme in lieu of gratuity was not applicable.

4. It appears that respondent bank issued a circular letter dated 16.11.1995 permitting the employees of the bank to switch over to the pension scheme by giving their option within 120 days from 06.09.1994. This scheme was made applicable to the employees who were in service as on 31.10.1993 and were required to exercise option latest by 30th September, 1994.

5. The petitioner claimed to have exercised his option on 30.11.1994 and, therefore, writ petition filed by the petitioner against the order dated 25th January, 2002 was allowed on the ground that petitioner's pension had not been rejected on the ground that he had exercised option belatedly. Since it was an order remitting the matter to the bank to decide afresh, the Special Leave Petition (Civil) filed by the bank before Supreme Court bearing Special Leave to Appeal (Civil) No. 11822 of 2007, came to be dismissed on 30th July, 2007, however, it was observed in that order by the Supreme Court that while deciding the claim of the petitioner for pension in compliance of order of the High Court dated 16.05.2007 " authorities will not be influenced by any observation made in the said order" . The bank thereafter proceeded to pass order impugned herein this petition holding the petitioner not to be entitled for pension.,While this petition remained pending before this Court, the bank again floated a scheme permitting even the retired employees to exercise option for pension in the year 2010. The petitioner this time exercised his option and now finally pension has been fixed and he is drawing the pension.

6. The petitioner has challenged the order of grant of pay fixation dated 01.12.2010 by means of amendment application seeking application for pensionary benefits taking his option of the 1994 and making it applicable since 2002 when he retired from the respondent bank.

7. Per contra, it is argued by learned counsel for the respondent bank that 2010 policy of the bank, vide its circular letter dated 15.09.2010 was made applicable with certain riders while permitting even its retired employees to exercise option for pension. He, therefore, submits that the once the petitioner has submitted himself to the new pension scheme launched on 15th September, 2010 and filled up his form as per settlement reached vide paragraph 3.10, it is now not open for the petitioner to challenge the same and demand it from the date of retirement.

8. Learned counsel for the petitioner in the rejoinder submits that petitioner's claim in writ petition has remained intact. The challenge to the subsequent order granting pension to the petitioner would not obliterate, under any circumstances his claim already set up in the writ petition, inasmuch as if the petitioner has signed any document while in dire need of regular pensions, looking to the circumstances, it should not be taken as if petitioner waived his right, which otherwise had already accrued to him.

9. Having heard learned counsel for the respective parties, their argument raised across the bar and having perused the documents brought on record, the order of the High Court in the earlier round of litigation, the order of the Supreme Court as well as new pension scheme floated by the bank on 15.09.2010 and the order impugned by way of amendment, in my view only two questions arise here for consideration:

a. Whether the petitioner's claim as per alleged exercise of option in 1994 would have caused accrual of any right of pension on the date of his retirement and so consequential benefits.

b. Whether after applying under the new pension scheme and submitting to the conditions laid down therein, the petitioner's claim would be hit by law of acquiescence and, therefore he would not be able to set up any claim of pension from the date of his retirement.

10. In so far as first point is concerned, I find while this Court allowed the writ petition against the order dated 25.01.2002 whereby the petitioner's claim for pension was rejected on the ground that he had been in an officers' cadre, the observations made there in the judgment while setting aside that order lost their binding effect in view of observations made by the Supreme Court in the Special Leave Petition. It has been an admitted case of the petitioner that petitioner had exercised option belatedly i.e beyond the time prescribed under the circular letter dated dated 06.09.1994.

11. In such above view of the matter, therefore, petitioner could not have set up claim for pension unless and until, the delay in exercising option had been condoned or the circular had been amended extending the time to exercise option. This is not a situation. The respondent bank was not bound or under any obligation to reconsider the exercise of option even if belatedly filed and moreso in the light of observations made by the Supreme Court and, therefore, the bank in my considered view was fully free to decide the matter of claim of pension of the petitioner as per relevant rules and regulations that were applicable.

12. The relevant provision of Service Regulation of 1979 only provide for payment of gratuity. The proviso that has been added to the relevant provision though talks of old pension scheme in lieu of gratuity but this seems to have been incorporated only in the year 1995. The pension scheme for employees of the bank to enable them to exercise the same came to be introduced vide circular dated 06.09.1994 and this provided for the employees in the service of the bank. No doubt, unless and until officers category is saggregated or made exception, the word employee would include officers also but the benefit would go to those who exercised option as per scheme. Moreover, the scheme being pursuant to the agreement reached between All India Bank Federation, All India Bank Officers Association and Indian Bank Association signed on 29th October, 1993, the scheme would include the officers also but petitioner having failed to exercise option for the said purpose within time prescribed for under the circular and the learned counsel for the petitioner having failed to place before this Court any amendment made in the circular so as to extend time limit to exercise option, the petitioner now cannot claim the benefit of any such old pension scheme.

13. Accordingly, therefore, I do not find any good ground to interfere with the order dated 19th September, 2007 originally impugned in the writ petition.

14. In so far as the second point is concerned, I find that circular letter dated 15.09.2010 was nothing but second chance of another option for the employees to join pension scheme. This time it is also meant for those employees who have even retired to join pension scheme under the Allahabad Bank (Employees) Pension Regulations, 1995 in terms of the settlement/joint note dated 27th April, 2010.

15. This is again an outcome of the memorandum of Settlement for the benefit of employees and officers of the bank, reached between and signed by the Indian Banks Association/Workman Union Officers/ Organization.

16. Now term of settlement reached laid condition to permit exercise of option and the provisions containing conditions in paragraphs 3.10 and 3.11 of the circular letter are relevant and so are reproduced hereunder:

"3.10 Employees who have already retired and intend to opt for pension now, may also apply for commutation of a portion of Basic Pension, not exceeding 1/3rd . The commutation value for calculating the lumpsum amount payable on commutation will be based on the age of the retiree on the next date of birth with reference to the date of option. However, to avoid any loss on account of any sort of delay, it is decided that a common date, namely, ''01.09.2010', will be reckoned as the effective date of commutation for those who retired prior to 01.09.2010 and submit their request for commutation within the aforesaid ''option period' of 60 days from 20.09.2010 to 18.11.2010 (both days inclusive). The commuted portion of the pension shall be restored after fifteen years from the date of commutation. No medical examination shall be necessary if the application for commutation is made within one year from the date of retirement. Commutation of a portion of the pension to other pensioners who apply for commutation after one year from the date of retirement will be permitted, subject to medical examination. Medical examination for this purpose may be conducted by Bank's Medical Retainer and where Bank's Medical Retainer is not available, the medical examination may be conducted by Medical Practitioner having at least a qualification of MBBS and submit necessary report/certificate as per format Annexure-IV (Part-II & III). Any expenses in this connection shall be borne by the retiree concerned, who will also declare his/her personal particulars in format (Annexure-IV (Part-i) and sign the same before the examining medical practitioner.

3.11 The bank may consider setting off the commutation amount of the optees against the amount due from him for joining the Pension Scheme as retired employee."

17. From the bare reading of the above provisions, it is clear that an employee was to submit to the above conditions and was to sign the document annexure-II with an undertaking that he has understood these terms of settlement / joint note and is agreeable to the same and would be voluntarily opting for pension scheme by refunding the bank provident fund together with accrued interest thereupon paid to him and also shall refund the banks contribution to provident fund together with accrued interest thereupon paid to such employee on retirement.

18. Accordingly a set off scheme qua the amount to be paid to the bank for joining the pension scheme, against commutation of pension was also prescribed for. Now it was defined to mean an amount of arrears of pension upto 30th November, 2010 from the date following retirement or to 27.11.2009 whichever is later. So cut off date was taken to be 27.01.2009 or date following the retirement whichever is later.

19. After the petitioner submitted his option for pension under the new pension scheme, he was issued with a final settlement and approval order dated 01.12.2010 that carried the recitals " We are pleased to inform that the Contempt Authority has permitted to set off the commutation Amount and Arrear Pension up to 30.11.2010 (from 27.11.2009 or the date following retirement, whichever is later) against the requisite refund and contribution payable by you. " It is thereafter pension has started and petitioner is receiving the pension and it is not the case that petitioner ever accepted pension under the protest.

20. The petitioner having agreed to such above terms and conditions and having signed the annexure II document on 24.09.2010, declaring that he was agreeing to the settlement dated 27.04.2010 while exercising option, now cannot be permitted to take a turn round to challenge the same.

21. The argument therefore, advanced by learned counsel for the respondent bank holds merit that petitioner is now estopped from going back to the date of retirement to enforce even the new scheme benefits.

22. In view of above, therefore, I do not find any good ground to interfere with the settlement reached between the petitioner and the bank on 24.09.2010 and fixation of pension dated 1.12.2010.

The petition, therefore, lacks merit and is accordingly dismissed and consigned to records with no order as to cost.

Order Date :- 4.4.2022/ Sanjeev

Case :- WRIT - A No. - 59680 of 2007

Petitioner :- Kishan Swarup Sharma

Respondent :- Allahabad Bank And Others

Counsel for Petitioner :- Manoj Kumar Sharma,Namit Kumar Sharma

Counsel for Respondent :- T. Varma,J.S.Pandey,Pashupati Nath Tripathi

Hon'ble Ajit Kumar,J.

In RE: Amendment Application.

Allowed.

Order Date :- 4.4.2022

Sanjeev