Delhi High Court

Mahaveer Khariwal vs Indian Bank & Another on 2 February, 2009

Author: Ajit Prakash Shah

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 246/2007        Date of Decision : February 02, 2009.
  MAHAVEER KHARIWAL             .... Appellant
                 Through Mr. Rajiv Kapur, Advocate.
            versus
  INDIAN BANK & ANR           .... Respondents
                 Through Mr. V.K. Rao, Advocate with Mr.
                           Saket Sikri, Advocate.

     CORAM:
     HON'BLE THE CHIEF JUSTICE
     HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be                Yes.

allowed to see the judgment?

2. To be referred to the Reporter or not ?                 No.

3. Whether the judgment should be reported                 No.

in the Digest ?
                            ORDER

The short question that arises for our consideration in this

appeal against the decision of the learned single Judge in W.P.(C)

No.16972/2005 dated 11th October, 2006, is whether the respondent

bank was right in declining to accede to the request made by the

appellant for voluntary retirement under regulation 29 of the Indian

Bank (Employees‟) Pension Regulation 1995 (hereinafter referred to

as the „Pension Regulation, 1995‟ for short).

2. The facts giving rise to the present appeal lie in a short compass and may be stated as thus:-

The appellant joined the respondent bank as Probationary

Officer (P.O.) on 17th December, 1975. In course of time, the

appellant was promoted as Chief Manager SMG-IV. In March 1998,

he was transferred and posted as Chief Manager, Colombo Branch,

Colombo. By order dated 13th May, 2003, the appellant was

transferred from Colombo overseas branch to the Defence Colony

Branch, New Delhi as Chief Manager (BM). It appears that the

appellant had applied for 30 days‟ leave to visit London as his son

was admitted in the hospital. The appellant thereafter wrote to the

bank seeking extension of leave. The application for leave as well as

the application for extension of time were refused by the respondent

bank and the appellant was directed to report on duty at the Defence

Colony branch, New Delhi.

On 21st January, 2004, the appellant submitted an application

seeking voluntary retirement from the services of the bank in

accordance with the Circular No.32/97-98 dated 15th July, 1997 and

the format given by the bank for submitting the notice of voluntary

retirement. The appellant has also sent a letter of authority to the

Trustees of PF and Gratuity for adjusting his liabilities, if any, out of the terminal benefits. The relevant portion the letter dated 21st

January, 2004 reads as follows:-

"I have decided to voluntarily retire from the services of the Bank for some personal and family reasons. Please take notice of my voluntary retirement from today. I am unable to serve 3 months notice as required under Regulation 29 of Indian Bank Employees Pension Regulations 1995 and hence hereby authorize the Bank to deduct the salary amount of the notice period from out of amounts payable to me by the Bank on retirement.

I also authorize the Bank to adjust all my liabilities due to the Bank from out of the amount payable to me by the Bank on retirement." (emphasis supplied)

The respondent bank vide letter dated 21st April, 2006, which

was served on the applicant on 23rd April, 2006 refused the request

of the appellant for voluntary retirement on the ground that appellant

was not eligible under Pension Regulations, 1995.

3. The appellant being aggrieved preferred W.P.(C)

No.16972/2005. The first prayer in the writ petition was for quashing

the letter dated 20th April, 2004. The second prayer of the appellant

was for a direction to the respondent to reimburse the educational

expenses for the son of the appellant, who had been sent to

Singapore for his education while the applicant was posted at

Colombo. The third prayer of the appellant was for grant of travelling

allowance bills for the journey from Colombo to Delhi, which was declined by the respondents on account of delay in submitting the

bills. The prayers for travelling allowance bills and education

expenses have been granted by the learned single Judge.

4. In so far as prayer for voluntary retirement is concerned, the

learned single Judge held that the appellant had not given notice of

three months and instead he had requested that three months‟ wages

could be deducted from his retiral benefits. No such alternative is

provided in the Pension Regulations, 1995 and thus the appellant had

not fulfilled the requirements of the Regulation 29.

5. Learned counsel appearing for the appellant contended that

as per regulation 29 an employee would be eligible to pension on

voluntary retirement in case he has completed 20 years of qualifying

service and the appellant has admittedly worked with the respondent

bank for more than 27 years, hence appellant is eligible for voluntary

retirement. Learned counsel further submitted that neither in the

impugned order dated 20th April, 2004 nor in the counter affidavit, the

respondent bank has alleged that due to administrative exigency the

request was declined. He submitted that period of three months is for

the benefit of the employee and not for the bank. In support of his

contention he referred to the decision of the Supreme Court in Shri Mohan Singh Malhi Vs. State of Punjab, 1976 (3) SCC page 21.

Learned counsel also submitted that the bank has failed to

communicate the order of rejection within the statutory period of 3

months and therefore, the permission for voluntary retirement must

be deemed to have been granted in view of the mandatory language

of regulation 29. He relied upon the decision of the Supreme Court in

Tek Chand Vs. Dile Ram reported in 2001 (3) SCC page 290 to

contend that rejection after the specified period is of no consequence

and that the application for voluntary retirement must be deemed to

be accepted.

6. On the other hand, Mr. V.K. Rao, counsel appearing for the

bank submitted that purpose of giving the notice of three months to

the bank is to allow the management of the bank sufficient time to

make provision for an alternative hand. He submitted that the

Pension Regulations, 1995 do provide an opportunity to give less

than three months‟ notice, but it is left to the discretion of the

respondent bank to accept any such prayer. He submitted that

regulation 29(2) itself makes it very clear that the notice of voluntary

retirement shall require acceptance by the appointing authority.

Therefore, deeming provisions shall not come into play. Learned counsel also submitted that as per first proviso to regulation 29 in

case of deputation or study leave abroad, the employee has to serve

in India on a resumed post for a period of one year before issuing

notice of voluntary retirement. The appellant having not completed

one year service after his transfer to Delhi was, therefore, not eligible

to apply for voluntary retirement.

7. We have given our anxious thought to the rival contentions

advanced at the Bar. In the present case the applicability of the

regulation 29 is not disputed. The said regulation permits an

employee to apply for voluntary retirement after completion of 20

years of service. Admittedly the appellant had rendered more than

27 years of service and thus he was eligible for applying voluntary

retirement. Sub clauses 2 and 3 of regulation 29, which are material

for our purpose read as follows:-

"(2) The notice of Voluntary retirement given under sub-regulation (1) shall require acceptance by the appointing authority;

Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.

(3) (a) AN employee referred to in sub-regulation (1) may make a request in writing to the appointing authority to accept notice of Voluntary Retirement of less than three months giving reasons thereof.

(b) On receipt of a request under clause (a), the appointing authority may, subject to the provisions of sub-regulation (2), consider such request for the curtailment of the period of the notice of three month on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for Commutation of a part of the pension before the expiry of the notice of three months." (emphasis supplied)

8. A plain reading of above provisions make it clear that it is

open for an employee to make a request for the waiver of the period

of notice of three months. In fact the appellant had applied for waiver

of thee months‟ notice period and to deduct wages of three months in

lieu of three months‟ notice. The rejection order does not state that

due to administrative exigency the prayer of appellant for voluntary

retirement could not be granted nor it was stated that application was

rejected for want of three months‟ notice. No such contention is

raised even in the counter affidavit. It appears that the respondent

bank has relied upon the first proviso of regulation 29 in order to

contend that the appellant was not eligible to apply for voluntary

retirement. The proviso is reproduced below:-

"Provided that this sub-regulation shall not apply to an employee who is on deputation or on study leave on abroad unless after having been transferred or having returned to India he was resumed charge of the post in India and has served for a period of not less than one year........."

9. In the first place, the appellant was not on deputation at the

relevant point of time. He was merely posted at Colombo branch,

which is clear from the letter of posting dated 19th March, 1998 (page

31 of the paper book). Thus, the proviso to regulation 29 is also not

attracted in the present case.

10. In Mohan Singh Vs. State of Punjab, the Court was

concerned with the provision of rule 5.32(c) of Punjab Civil Service

Rules, which provided that a retiring pension shall also be granted to

a government servant, who retires on or after attaining the age of 55

years by giving not less than three months‟ notice of his intention to

retire to the appointing authority. The Court observed that the object

of the notice is to give sufficient time to the government servant,