V Rambabu vs Union Of India
2023 Latest Caselaw 1847 AP

        THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                WRIT PETITION No.22840 of 2020

V. Rambabu, S/o Vamana Rao, aged 71 years, Employee
No.106456 (Retd. Assistant Manager), R/o C-5, Renuka
Enclave, Madhugardens, Vijayawada -520 010, Krishna District.

                                                           ... Petitioner

                                Versus

Union of India, represented by its Secretary, Ministry of
Finance, Department of Financial Service, New Delhi and
another.
                                           ... Respondents


Counsel for the petitioner                : Sri P. Prabhakara Rao,
                                            learned counsel,

Counsel for respondents                   : Learned Assistant
                                            Solicitor General and
                                            Sri A. Hari Narayana,
                                            Learned standing counsel

                                ORDER:

Petitioner, resigned as employee of Syndicate Bank and

whose resignation was accepted by the employer w.e.f.

30.04.1998, filed the above writ petition under Article 226 of the

Constitution of India, assailing letter in Ref.No.428/2020/

0012/HO:AM/SWD, dated 03.07.2020 issued by Assistant

General Manager of respondent No.2 whereby authority

intimated that petitioner is not eligible for pension.

2. Facts of the case, in brief, are:

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                                                 W.P.No.22840 of 2020

a) Petitioner joined on 02.12.1970 in Syndicate Bank,

Nationalized Public Sector Bank, as Clerk and subsequently, he

was promoted as Officer w.e.f. 20.05.1996. Later Syndicate

Bank was merged with Canara Bank w.e.f. 01.04.2020.

b) The Petitioner has put on more than twenty-seven years

of service. Petitioner, due to health problems, was constrained

to give notice of resignation on 31.01.1998. In the said notice,

petitioner requested for permission to opt for pension, if a

chance for option is given with retrospective basis. However,

authorities vide letter, dated 07.04.1998 informed that

petitioner had not opted for pension and hence, he is not eligible

for pensionary benefits.

c) Indian Bank Association and the Bank Employees

Unions entered memorandum and finally a joint note was

signed on 27.04.2010 providing second option, to those who

have not exercised their option in the first instance to join in the

pension scheme. The said benefit was made applicable to such

of employees who were in service prior to 29.09.1995 in case of

Nationalized Banks or 26th March, 1996 in case of Associate

Banks of State Bank of India and continue in the service of the

bank on the date of settlement. The said settlement further

manifests that exercising option should be in writing within Page 3 of 16 SRS,J W.P.No.22840 of 2020

sixty days from the date of offer to become a member of the

Pension Fund and to refund, within thirty days after expiry of

sixty days, the entire amount of the banks contribution to the

Provident Fund and interest accrued thereon received by the

employee on retirement together with his share in contribution

towards meeting 30% of Rs.3115 crores which is estimated and

reckoned.

d) The petitioner underwent a series of health problems,

and he took treatment. In the year, 2017, he had to undergo

major bye-pass surgery. Petitioner could not opt for pension

scheme in time along with other employees due to lack of

complete information as to the efficacy of joint note dated

27.04.2010.

e) While so, petitioner, on noticing the judgment, dated

17.06.2020 of Calcutta High Court, made representation dated

22.06.2020 and the same was replied by the authority dated

03.07.2020 stating that petitioner is not eligible for pensionary

benefits. Assailing the same, the present writ petition is filed.

3. Counter affidavit was filed on behalf of respondent No.2.

a) It was contended inter alia that this writ petition, per se,

is not maintainable in view of laches and in ordinate delay on Page 4 of 16 SRS,J W.P.No.22840 of 2020

the part of petitioner. Petitioner admittedly did not avail the

opportunity for pension when second opportunity was given by

the erstwhile Syndicate Bank on 27.04.2010. Petitioner resigned

from the services and the same was accepted. Petitioner was

relieved from services on 30.04.1998 itself and after lapse of

nearly two decades, petitioner approached Bank and hence,

petitioner's case cannot be considered.

b) Petitioner is ceased to be in service of Syndicate Bank

from 01.05.1998. Thus, he was not pensioner when his

employer Syndicate Bank merged with respondent No.1-Canara

Bank as on 01.04.2020. Erstwhile Syndicate Bank settled

terminal benefits i.e. staff provident fund, gratuity, etc., in June,

1998 itself. Since petitioner resigned from the service,

petitioner's case cannot be considered even as per second

settlement, dated 27.04.2020. Eventually prayed to dismiss the

writ petition.

4. Heard both the learned counsels.

5. Learned counsel for the petitioner would contend that

petitioner, by the date of retirement, had put in 27 years of

service and he got qualifying service to get pension. He would

further submit that petitioner resigned from the employment Page 5 of 16 SRS,J W.P.No.22840 of 2020

due to health problems and hence, petitioner resigned due to ill

health, as such it cannot be termed as resignation, at the most

petitioner's resignation can be termed as voluntary retirement.

Hence, the petitioner is eligible for pensionary benefits. He

would further submit that in the notice of resignation, petitioner

also requested for permission to opt for pension. However, the

same was not considered. He would submit that since petitioner

is under medication, he is not aware of the settlement, dated

27.04.2010 of Indian Banks' Association on behalf of the

Managements and their Workmen represented by All India Bank

Employees' Association etc.,. He would further submit that

latches or delay does not apply to the facts of the case.

6. Learned standing counsel, on the other hand, would

contend that petitioner resigned from service. Application made

by the petitioner, nearly after 22 years of his service, per se is

not maintainable. His employer, Syndicate Bank rejected

pensionary benefits to the petitioner, by letter, dated

07.04.1998 and the same was communicated to the petitioner.

He would submit that petitioner did not challenge the said

letter. After waiting for two decades, the petitioner based on

order of Calcutta High Court made representation to the

authorities. He would submit that in fact the order of Calcutta Page 6 of 16 SRS,J W.P.No.22840 of 2020

High Court in FMA No.4412 of 2016 does not apply to the facts

of the present case. He would also submit that representation,

dated 22.06.2020 does not indicate any medical reasons,

however, in the affidavit, averment has been made that

petitioner resigned due to ill health. He submits that there is no

illegality in the rejection proceedings.

7. The point to be considered is whether petitioner is entitled

to pensionary benefits pursuant to the settlement, dated

27.04.2010?

8. The facts regarding petitioner's joining in Syndicate Bank,

his getting promotion, resignation letter, dated 31.01.1998 and

acceptance of resignation w.e.f 31.04.1998 are not in dispute.

9. In United Bank of India vs. Sri Swapan Kumar Mullick

& Ors. (FMA No.4412 of 2016), Division Bench of High Court

of Calcutta while placing reliance on decision reported in

Shashikala Devi vs. Central Bank of India & Ors 1 and UCO

Bank & Ors. Vs. Sanwar Mal2 directed the authorities to

consider amendment of Regulation 22 of the United Bank of

India (Employees') Pension Regulations, 1995, according to the

circular of the Indian Banks Association dated 30.06.2015 with

2014(16) SCC 260

2004 (4) SCC 412 Page 7 of 16 SRS,J W.P.No.22840 of 2020

or without retrospective effect within three months of physical

communication of said order. In the case before Calcutta High

Court, petitioner therein resigned due to depression and that

was taken note by the Calcutta High Court and considered that

resignation by depression whether amounts to resignation or

voluntary retirement. In fact, petitioner therein served for more

than three decades. Hon'ble Court in the fact situation, came to

the conclusion that the employee did not resign and hence

directed the respondent to consider the case of the petitioner

therein.

10. In the case on hand, no scrap of paper is filed to

substantiate the averment in the affidavit that petitioner

resigned due to ill health. Even the representation, dated

22.06.2020 made by the petitioner does not indicate that

resignation was tendered due to ill health. Medical

record/history filed along with writ petition is of the year, 2008

and thereafter. This Court cannot give much weight to the

medical history filed by the petitioner along with writ petition,

since petitioner's resignation is of the year, 1998. As can be

seen from Ex.P4, dated 07.04.1998 addressed to the petitioner

by Assistant General Manager, the request of the petitioner

opting pension, if a chance for option is given on retrospective Page 8 of 16 SRS,J W.P.No.22840 of 2020

basis, was denied. Inspite of the same, for the reasons best

known, petitioner did not challenge the said proceedings.

11. Further, category II

(a) of Memorandum of settlement, dated 27.04.2010

indicates that pension scheme shall be extended to the

employees who were in service of the bank prior to

29.09.1995 in the case of Nationalized Banks or

26.03.1996 in case of Associate Banks of State Bank of

India and retired after that date and prior to the date of

the settlement;

(b) one can exercise option in writing within sixty days

from the date of offer to become a member of the Pension

Fund and (c) the employee should refund, within thirty

days after expiry of the said period of sixty days, the entire

amount of the banks contribution to the Provident Fund

and interest accrued thereon received by the employee on

retirement together with his share in contribution towards

meeting 30% of Rs.3115 crores, estimated and reckoned

as the funding gap for those eligible under Clause 2(II),

2(III) and 2(IV) of this agreement.

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                                                   W.P.No.22840 of 2020

12. Though learned counsel for the petitioner would contend

that the petitioner resigned service, due to ill health, in the

absence of resignation letter made by the petitioner, this Court

cannot appreciate the contention of petitioner qua resignation

due to several health problems. It is an undisputed fact that

petitioner served in Syndicate Bank for 27 years and submitted

resignation after qualified service. However, clause 22(1) of the

E-SBEPR, would indicate that for resignation or dismissal or

removal or termination of an employee from the service of the

Bank, shall entail for forfeiture of entire past service and

consequently shall not qualify for pensionary benefits.

13. Based on the facts of that case by placing reliance upon

Shashikala Devi's case the Division bench of Calcutta High

Court concluded that though word 'resign' was used, it cannot

be termed as resignation but, at the most, it is only voluntarily

retirement and petitioners therein are entitled to benefit.

However, as stated supra unless petitioner places before this

Court, letter of resignation, it is difficult for this Court to go into

the fact and appreciate as to whether the petitioner resigned

due to ill health or voluntarily retired. Hence, this Court, in the

absence of any cogent material, shall not give a finding that the

petitioner resigned service due to ill health.

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                                               W.P.No.22840 of 2020

14. Admittedly, the petitioner was communicated, with letter

dated 07.04.1998 stating that he is not entitled to pensionary

benefits. When petitioner was intimated prior to acceptance of

his resignation, by letter, dated 07.04.1998, petitioner could

have challenged the said action of respondents in not extending

pensionary benefits.

15. As per memorandum of settlement dated 27.04.2010, one

must exercise the option within sixty days from the date of offer

to become member of the pension fund. When such an offer was

provided in the settlement, petitioner failed to exercise the

option. In the affidavit filed in support of this writ petition,

petitioner contended that due to lack of proper information

about memorandum, he could not make application. It is

pertinent to mention here that in para No.9 of the writ affidavit,

petitioner contended that he was going around hospitals and

hence, he could not response in time due to lack of proper

information. In para No.5 of the affidavit, he contended that in

the year, 2017, he had to undergo major bye-pass for heart and

as such he became completely out of touch with his colleague

employees and about his pension scheme. Settlement was

arrived at on 27.04.2010 and sixty days' time was given. The

divergent or inconsistent statements of petitioner in para Nos.5 Page 11 of 16 SRS,J W.P.No.22840 of 2020

and 9 would show that petitioner, after pronouncement of

judgment by the Calcutta High Court in FMA No.4412 of 2016

(the facts does not apply to the facts of the case), made

application to the bank to the extend pensionary benefits. The

Hon'ble Apex Court considering belated representation qua a

'stale' or 'dead' issue/dispute observed as under in C. Jacob vs.

Director of Geology and Mining & Anr.3:

"The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation, does not involve any 'decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex- employee gets relief, which he would not have got on account of the long delay, all by reason of the direction to 'consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/high Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation and proceeding to examine the claim on merits and grant relief. In this manner, the bar of limitation of the laches gets obliterated or ignored."

    2009 (10) SCC 115
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                                                 W.P.No.22840 of 2020

16. In Krishena Kumar vs. Union of India4 the Hon'ble

Supreme Court while considering options given to the Railway

employees to shift to pension scheme, held that prescription of

cut off dates while giving each option was not arbitrary or

lacking in nexus. Hon'ble Apex Court also held that provident

fund retirees, who failed to exercise option within the time, were

not entitled to be included in the pension scheme on any

ground of parity. Respondent therein who did not exercise

option available when he retired in 1976, was not entitled to

seek an opportunity to exercise option to shift to the pension

scheme, after the expiry of the validity period for option scheme,

that too in the year 1998 after 22 years.

17. In Karnataka Power Corpn. Ltd. V. K. Thangappan 5, the

Hon'ble Apex Court took note of factual position and laid down

that nearly for two decades the respondent workmen therein

had remained silent and mere making of representations could

not justify a belated approach.

18. In the State of Orissa v. Pyarimohan Samantaray 6, the

Hon'ble Apex Court opined that making of repeated

representations is not a satisfactory explanation of delay.

  1990 (4) SCC 207

  2006 (4) SCC 322

  1977 (3) SCC 396
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                                                     W.P.No.22840 of 2020

19. In BSNL v. Ghanshyam Dass7, three-Judge Bench of the

Hon'ble Apex Court reiterated the principle laid down in

Jagdish Lal v. State of Haryana8, and proceeded to observe

that as the respondents therein preferred to sleep over their

rights and approached the Tribunal in 1997, they would not get

the benefit of the order dated 07.07.1992.

20. In State of T.N. v. Seshachalam9, the Hon'ble Apex Court

testing the quality clause on the bedrock of delay and laches

pertaining to grant of service benefit, observed as under:

"16. ... filing of representations alone would not save the period of limitation. Delay of laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."

21. In NDMC v. Pan Singh10, the Hon'ble Apex Court opined

that though there is no period of limitation provided for filing a

writ petition under Article 226 of the Constitution of India, yet

ordinarily a writ petition should be filed within a reasonable

2011 (4) SCC 374

1997 (6) SCC 538

2007 (10) SCC 137

2007 (9) SCC 278 Page 14 of 16 SRS,J W.P.No.22840 of 2020

time. In the said case the respondents had filed the writ petition

after seventeen years and the court, as stated earlier, took note

of the delay and laches as relevant factors and set aside the

order passed by the High Court which had exercised the

discretionary jurisdiction.

22. In the case on hand, as discussed supra, memorandum of

settlement was signed on 27.04.2010. If petitioner claims

benefit under 26(ii), he could have exercised option in writing

within sixty days from the date of offer to become member of

pension funds. He further could have refunded, within thirty

days after expiry of sixty days, the entire amount of his bank

contribution to the Provident Fund and interest accrued

thereon.

23. In the affidavit, as discussed supra, the averments in para

Nos.5 and 9 regarding delay is contradictory and self-

explanatory. In a case relating to pension, the Hon'ble Apex

Court in Krishena Kumar's case held that since petitioner

therein could not avail the opportunity, same cannot be

extended. This Court is conscious that pension is not bounty

granted by the Government. However, at the same time, Court

also cannot ignore laches on the part of the petitioner in

approaching the authority regarding pension scheme.

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                                                 W.P.No.22840 of 2020

24. As discussed supra, petitioner having made representation

dated 22.06.2020 seeking pensionary benefits pursuant to

settlement dated 27.04.2010, by placing reliance upon

judgment of Calcutta High Court, failed to explain any reasons

much less, valid or cogent reasons in the affidavit, about not

making application immediately after the scheme came into

operation. A stale or dead issue cannot be revived and the reply

to representation of the petitioner does not give fresh cause of

action to the petitioner.

25. In view of the above, this Court does not find any merit in

writ petition.

Accordingly, this writ petition is dismissed.

As a sequel, all the pending miscellaneous petitions shall

stand closed.

                                             _________________________
                                             SUBBA REDDY SATTI, J
Date : 11.04.2023
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                                           W.P.No.22840 of 2020

THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

WRIT PETITION No.22840 of 2020

Date : 11.04.2023

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