Gyan Prakash vs General Manager Punjab National ...
2023 Latest Caselaw 18457 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:47945
 
	Judgment reserved on 17.05.2023
 
		Judgment delivered on 21.07.2023
 
	Court No. - 7
 
Case :- WRIT - A No. - 572 of 2013
 
Petitioner :- Gyan Prakash
 
Respondent :- General Manager Punjab National Bank And Others
 
Counsel for Petitioner :- Dinesh Kumar Arya,Jyotindra Prakash Pathak,Laxmi Kant Pathak
 
Counsel for Respondent :- Prashant Kumar,Gopal Kumar Srivastava
 

 
Hon'ble Abdul Moin,J.

1. Heard Sri Jyoti Prakash Pandey, learned counsel for the petitioner and Sri Gopal Krishna Srivastava, learned counsel appearing for the respondent-Bank.

2. Instant writ petition has been filed praying for the following main reliefs:-

(i) Issue a writ, order or direction in the nature of mandamus commanding and directing the opposite parties to give the benefits of the circular dated 16th August 2010 and circular dated 20.09.2010 which was issued in pursuance to the another pension option in terms of 9th Bi-partite settlement (Workmen Employees)/Joint Note dated 27.04.2010 (Officers) contained in Annexure No. 1 & 2 to this writ petition.

3. The case set forth by the petitioner is that the petitioner was appointed on the post of Peon in the year 1960 in Punjab National Bank. Through efflux of time, the petitioner received promotions and finally retired from the post of Clerk on attaining the age of superannuation. The petitioner did not specifically opt for pension and consequently, all retiral dues in lieu of pension were paid to him after his retirement in the year 2000.

4. On 16.08.2010, the Punjab National Bank (Provident Fund and Pension Fund Department) issued a circular seeking option for pension in terms of 9th Bi-partite settlement (Workmen Employees)/ Joint note dated 27.04.2010 which provided that the Indian Bank Association vide circular dated 10.08.2010 had informed that in order to facilitate early implementation, the Government has consented IBA advising all banks that they may undertake the exercise for seeking the option from the employees, both serving and retirees, who did not opt for pension earlier, explaining the terms and conditions for such option. In terms of paragraph 3, the term of settlement/joint note provided for an option for joining the existing pension scheme to be extended, so far as the petitioner is concerned, as per Clause B, to those employees/officer who were in service of the bank prior to 29.09.1995 and retired after that date but prior to the date of settlement/joint note dated 27.04.2010 provided that they exercise an option in writing within sixty days from the date of offer to become the member of the pension fund. The option forms were to be submitted within sixty days of the date of offer as per paragraph 4 (i) of the said circular and the last date for submission of pension option letters by branches to the concerned circle offices was 28.10.2010. It was further provided in paragraph 11 that any option not received or full amount of refund was not made by the stipulated date the same would render the pension option invalid. Copy of the said circular is annexure 2 to the writ petition.

5. The aforesaid circular was followed by another departmental circular dated 20.09.2010, a copy of which is annexure 1 to the writ petition which provided that in terms of the circular dated 16.08.2010, a second pension option was also to be invited from those employees who were in service of the bank prior to 29.09.1995 and had retired after that date but prior to the date of settlement dated 27.04.2010. The said circular categorically provided that all incumbents/divisional heads were required to bring the contents of this circular to the notice of all the retirees and family members of the deceased officer/employee immediately on the last address in their records.

6. The petitioner claims that no information about the circulars dated 16.08.2010 and 20.09.2010 was received by him from the divisional heads despite the specific mandate in the circular dated 20.09.2010 of individual information at the last address and consequently, he was unable to exercise option within the time stipulated in the said circular. He only came to know about the said circulars in June, 2011 and thus submitted an affidavit dated 18.06.2011 opting for pension, a copy of which is annexure 3 to the writ petition followed by representations opting for pension but to no avail and hence the instant writ petition.

7. The argument of learned counsel for the petitioner is that when the circular dated 16.08.2010 was issued seeking options from eligible employees, which included the petitioner who had retired in the year 2000 and was covered by the circular dated 16.08.2010 for the purpose of exercise of option and through the circular dated 20.09.2010, an option was to be exercised by eligible persons after the divisional heads sent information about the said circular to the retirees and family members of the deceased officer on the last address available in their records and the petitioner not having received any information about the said circular, consequently, as soon as he came to know about the said circular in June, 2011 and he having applied for being given the benefit of the said circulars, as such, the respondents be required to act upon his option and to give him pension.

8. Per contra, Sri Gopal Kumar Srivastava, learned counsel appearing for the respondent-Bank argues that the petitioner retired on attaining the age of superannuation in the year 2000. At that time there was no scheme of pension. The service conditions of the employees of the bank are governed by Sastri Award, Desai Award and Bi-partite settlements signed at industry level between Indian Banks' Association representing member basis and Workmen Unions representing workman employees of the bank. The settlements are binding in nature and are applicable on every employee of the bank.

9. The workmen unions/officers associations had raised a demand for introduction of pension scheme. The Indian Bank Association agreed to introduce pension scheme in banks as second retiral benefits i.e in lieu of employers contribution to provident fund. Initially, in respect of officers, a joint note dated 29.10.1993 was signed for introduction of pension for employees/ex-employees as second retiral benefit in lieu of employers contribution to provident fund. The Board of Directors of the respondent-Bank framed the Punjab National Bank (Employees) Pension Regulation, 1995 (hereinafter referred to as "Regulation, 1995") which was published in the official gazette on 29.09.1995 and those employees who retired from the service of the bank between first day of January, 1986 and 31st October, 1993 were covered for benefit of pension in terms of the Regulation, 1995. Subsequent thereto, again a demand was raised at the industry level to provide one more option to the employees who failed to exercise their option for pension in the year 1995. The said demand culminated into of signing the 9th Bi-partite settlement/joint note dated 27.04.2010 vide which another option for pension was extended to the employees of the bank. The sanction of the Central Government was accorded to implement the terms of settlement/joint note dated 27.04.2010 for grant of option to such retirees w.e.f 27.11.2009 who opt for pension and comply with the terms and conditions set out in the settlement/joint note for grant of pension. In pursuance thereof, a circular dated 16.08.2010 was issued communicating the terms and condition for another option of pension. The circular was given wide publicity and an advertisement dated 17.08.2010 was issued in the Indian Express and other regional newspapers . In Uttar Pradesh, Delhi, & Harayana, the same was published in Danik Jagran newspaper. The information regarding the scheme was publicized by branch officers and was also available on the website of the bank. The information was brought to the notice of the retired employees through retirees association. A copy of the newspaper dated 17.08.2010 has been filed as annexure C1 to the counter affidavit.

10. Sri Gopal Kumar Srivastava, learned counsel appearing for the respondent-Bank argues that Clause 3 (B) of the circular dated 16.08.2010 was applicable to the petitioner but he failed to either opt for pension or to return back the amount that had been received at the time of his retirement and thus at this stage, the petitioner cannot be permitted to opt for the pension more particularly when he failed to exercise his option despite the wide publicity given to the circular dated 16.08.2010 followed by the circular dated 20.09.2010.

11. Placing reliance on the averments contained in the supplementary counter affidavit dated 18.04.2022, Sri Gopal Krishna Srivastava, learned counsel appearing for the respondent-Bank also argues that the second pension option/scheme was also made available on the website of the bank and displayed on the notice board of the branch offices and the petitioner, in case he was interested in opting for pension should have opted for pension. It is also contended that the circular dated 20.09.2010 was only applicable to those retirees who had already entered opting for pension under the circular dated 16.08.2010 and that the circular dated 20.09.2010 was not applicable to those retirees who had not opted the pension under the circular dated 16.08.2010 and thus no notice was required to be sent to those employees who had not opted for pension under the circular dated 16.08.2010. Thus, Sri Srivastava states that as the petitioner did not opt for pension under the circular dated 16.08.2010 consequently, despite the circular dated 20.09.2010 having provided for sending of notice at the last address of the retiree, no such notice was required to be sent and consequently, no notice was sent to the petitioner.

12. In this regard, reliance has been placed on a Division Bench judgment of this Court passed in Writ Petition No. 1695 (SB) of 2011 Inre; Radhey Shyam Kapoor Vs. Allahabad Bank and Ors decided on 21.09.2011, the judgment of the Apex Court in the case of Union of India and Ors Vs. M.K.Sarkar reported in (2010) 2 SCC 59 as well as the judgment of the Apex Court in the case of Jai Singh B. Chauhan Vs. Punjab National Bank and Ors reported in 2005 (6) SCC 262.

13. On the basis of the aforesaid judgments, the argument of Sri Gopal Kumar Srivastava, learned counsel appearing for the respondent-Bank is that when the scheme inviting options for pension had been given wide publicity through gazette notification and newspapers and the petitioner failed to exercise his option then he cannot be allowed to exercise his option at a subsequent stage. Thus, it is prayed that the writ petition deserves to be dismissed.

14. Heard the learned counsel appearing for the contesting parties and perused the records.

15. From the arguments as advanced by the learned counsels appearing for the contesting parties and perusal of records it emerges that the petitioner who was working in the respondent-Bank retired from the post of clerk on attaining the age of superannuation in the year 2000. Admittedly, at the time of his retirement he did not opt for pension and consequently, all retiral dues in lieu of pension were paid to him. On 16.08.2010, a pension option in terms of 9th Bi-partite settlement was issued by the respondent-bank. The said circular provided for seeking option in the pension scheme to be extended, as per paragraph 3 (A) of the circular to those employees/officers who were in service of the bank prior to 29.09.1995 and continued to be in service of the bank on the date of settlement dated 27.04.2010 or have retired on or after 27.04.2010. Likewise, paragraph 3 (B) of the circular provided that those employees/officers who were in service of the bank prior to 29.09.1995 and retired after that date but prior to the date of settlement dated 27.04.2010 could exercise an option in writing within sixty days of the date of offer to become a member of the pension fund. It is nobody's case that the petitioner was not entitled to apply and opt for pension in pursuance to the circular dated 16.08.2010 meaning thereby that it is admitted by the respondent-bank that the petitioner was perfectly entitled to opt for pension in terms of the said circular. Admittedly, the petitioner never opted for pension in terms of the said circular within the time specified in the circular.

16. Subsequent thereto, another circular dated 20.09.2010 was issued by the bank which provided in paragraph 2 (a) that the retired officers/employees or family member of the deceased officers/employees could exercise an option in writing within 60 days from the date of offer i.e from 26.08.2010 to 25.10.2010. The persons who opted for pension were also required to refund within thirty days after expiry of the said period of 60 days, 100 % of the amount of bank's contribution to the provident fund including the interest paid thereon and additional 56 % of the bank's contribution to provident fund. The said circular also required all the incumbents/divisional heads to bring the contents of the circular to the notice of all the retirees and family members of the deceased officer/employees immediately on the last address available in their records in the following words:-

"All incumbents/Divisional Heads are requested to bring the contents of this circular to the notice of all the retirees and family members of the deceased officer/employee immediately on the last address available in their records."

17. No such stipulation was provided in the circular dated 16.08.2010. Perhaps realizing this, while issuing the circular dated 20.09.2010 and referring to the circular dated 16.08.2010 it was categorically provided that the contents of the circular be brought to the notice of the retirees on the last address available in the record. Thus, a positive act was required to be done by the divisional heads in order to ensure that the contents of the said circular were informed to the retirees at the last address available in their records.

18. Admittedly, no information of the said circular was sent by the respondent-bank as has categorically been stated by Sri Gopal Krishna Srivastava, learned counsel appearing for the respondent-Bank as already indicated above.

19. The reason for not informing the petitioner about the circular dated 20.09.2010, as has been argued by Sri Srivastava on the basis of the supplementary affidavit dated 18.04.2022, is that the circular dated 20.09.2010 was only applicable to those who opted for pension in pursuance to the circular dated 16.08.2010.

20. The said argument of Sri Srivastava is patently misconceived inasmuch as a perusal of the circular dated 20.09.2010 would indicate that the circular was being issued in furtherance to the earlier circular dated 16.08.2010 inviting options from the retired employees or the family members of deceased employees to exercise an option to opt for pension. Nowhere does the circular dated 20.09.2010 restrict its information or applicablity to only those retirees/family members of the retirees who had opted for pension in terms of the circular dated 16.08.2010. Thus, the said argument of Sri Srivastava is rejected.

21. It goes without saying that where a thing is to be done in a particular manner it is to be done in that manner or not at all.

22. In the instant case, though the earlier circular dated 16.08.2010 nowhere provided for its information to be sent at the last address of the retired employees as such, the respondent-bank may have a legitimate excuse of only circulating it with the union or putting it on the notice board or for that matter uploading it on the official website or notifying it in newspaper but then there cannot be any excuse or reason for not informing the retired employees about the circular dated 20.09.2010 more particularly when it categorically stipulates that the contents of the said circular had to be brought to the notice of all the retirees at the last address available in the record of the divisional heads. Thus, once admittedly the respondent-bank failed to inform the petitioner of the circular dated 20.09.2010 of opting for pension, as such, as soon as the petitioner came to know about the said circular he opted for pension which option has not been acceded to by the respondent-bank on the grounds taken in the counter affidavit which, keeping in view the discussion made above are not found to be valid in the eyes of law.

23. So far as the judgment cited by the learned counsel for the respondent-bank, in the case of Jai Singh B. Chauhan (supra) is concerned the circular which was considered by the Apex Court nowhere provided for sending of an individual notice and also there was as no such requirement in the regulations. In this view of the matter, the Apex Court held that there was no requirement of any individual notice.

24. Likewise, in the case of M.K.Sarkar (supra) again there was no requirement of sending of an individual notice as is the case in the instant writ petition. Thus, the said judgment would have no applicability in the facts of the instant case.

25. Likewise, even before the Division Bench of this Court in the case of Radhey Shyam Kapoor (supra) the circular which provided for sending of an individual notice was never involved. Thus, even the said judgment would have no applicability in the facts of the instant case.

26. Accordingly, none of the aforesaid judgments as have been cited on behalf of the respondent-bank would have any applicability in the facts and circumstances of the instant case where an individual notice was required to be sent to the retirees by the divisional heads which admittedly was not sent by the respondent-bank.

27. Keeping in view the aforesaid discussion, the writ petition is allowed. A writ of mandamus is issued to the respondent no. 1 i.e General Manager, Punjab National Bank, Head Office Rajendra Bhawan, Rajendra Palace, New Delhi to consider the option of the petitioner for pension in terms of circulars dated 16.08.2010 & 20.09.2010 in case the petitioner gives an option for pension within a period of four weeks from the date of receipt of a certified copy of this order. It is directed that the pension option of the petitioner shall not be rejected on the ground of the petitioner not having opted for pension within the time stipulated in the aforesaid circulars.

28. Let the decision be taken in this regard within a period of three months from the date of receipt of option from the petitioner.

29. It is also provided that in case the respondent no. 1 i.e General Manager, Punjab National Bank, New Delhi is not the competent authority to accept the option for pension then the said option would be remitted to the authority competent to do so for an order to be passed within the aforesaid period of time.

Order Date :- 21. 07.2023

Pachhere/-

(Abdul Moin, J)