Sunita Agarwal vs Allahabad Bank & Anr.
2010 Latest Caselaw 2207 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                   WP(C)1429/2003

%                                                  Date of decision: 27th April, 2010

SUNITA AGARWAL                                             ..... PETITIONER
                               Through: Mr. Sudhir Chandra, Sr. Advocate with Mr.
                                        R.K. Modi & Mr. Bhagabati Prasad,
                                        Advocates
                                          Versus
ALLAHABAD BANK & ANR.                       ..... RESPONDENTS
                 Through: Mr. Yashraj Singh Deora, Advocate

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may                  Yes
          be allowed to see the judgment?

2.        To be referred to the reporter or not?                 Yes

3.        Whether the judgment should be reported                Yes
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner seeks a writ of mandamus directing the respondent bank to

grant the benefit of pension under the Allahabad Bank (Employees') Pension

Regulations, 1995 to the petitioner. It is the case of the petitioner that under the

said Regulations, it was obligatory on the part of the respondent bank to intimate its

officers, including the petitioner, about the said Regulations; that at the relevant

time, the petitioner was on deputation as Manager (Credit) to Rashtriya Mahila

Kosh, Department of Women & Child Development, Ministry of Human Resource

Development, Government of India and was not informed / intimated about the

said Regulations; that she for the first time came to know about the said

Regulations at the time of opting for Voluntary Retirement Scheme and

accordingly made a representation to the respondent bank for grant of pension in

view of the fact that the petitioner could not adopt the said scheme at the relevant

time due to default of the respondent bank. Upon refusal of the respondent bank to

accede to the request of the petitioner, the present petition was filed.

2. This Court on 1st February, 2006 directed the counsel for the respondent

bank to seek instructions whether the respondent bank could accede to the

petitioner's request by recourse to Regulation 55 of the aforesaid Regulations. The

counsel for the respondent bank on 14th March, 2006 expressed inability. Again,

during the hearing on 4th September, 2009, the senior counsel for the petitioner

stated that the petitioner shall make a representation to the Chairman-cum-

Managing Director of the respondent bank under Regulation 55 (supra). This Court

directed the respondent bank to consider the representation of the petitioner within

a period of six weeks with intimation to the petitioner. The respondent bank vide

order dated 31st October, 2009 has rejected the said representation of the petitioner.

The counsels for the parties have been heard.

3. The counsel for the respondent bank at the outset submitted that owing to

the judgment in Jai Singh B. Chauhan Vs. Punjab National Bank 2005 (6) SCC

262, pronounced since the filing of the present writ petition, the matter is not res

integra. He has further contended that the Supreme Court vide order dated 20th

November, 2009 in Civil Appeal No.7682/2009 titled Punjab National Bank Vs.

Mehar Singh has also pronounced on the same matter as in controversy in the

present case. Per contra, the senior counsel for the petitioner has urged that Jai

Singh B. Chauhan (supra) was decided on its own facts and does not consider the

entire legal aspects involved in the controversy.

4. The Allahabad Bank (Employees') Pension Regulations, 1995 were

approved by the Board of Directors of Allahabad Bank in exercise of powers

conferred by Clause (f) of Sub-Section (2) of Section 19 of the Banking Companies

(Acquisition & Transfer of Undertakings) Act, 1970, after consultation with the

Reserve Bank of India and with the previous sanction of the Central Government.

The said Regulations were published in the Gazette of India on 29th September,

1995. The said Regulations inter alia applied to employees of Allahabad Bank

who exercised an option in writing within 120 days from the "notified date" to

become the member of the pension fund and authorized the trust of the Provident

Fund of the bank to transfer the entire contribution of the bank along with the

interest accrued thereon to the credit of the pension fund constituted under the said

Regulations. The Regulations define the "notified date" as the date on which the

said Regulations are published in the Official Gazette.

5. The Allahabad Bank took out a Circular dated 16th November, 1995

addressed to all its offices and branches intimating the employees of the bank of the

aforesaid Regulations. The employees of the bank wanting to exercise the option

under the said Regulations were advised to exercise the same by 27th January,

1996. The offices of Allahabad Bank were advised to bring the contents of said

Circular to notice of all the employees of the branch / office of the bank. Since the

said Regulations were also applicable to retired employees / family members of

retired / deceased employees, the Branch Managers of the bank were by the said

Circular also directed to send a copy of the Circular to each of such retired

employees / family members of the retired employees / deceased employees, at the

last known address, for information and necessary action.

6. It is the case of the petitioner that she, at the relevant time, being on

deputation to the Rashtriya Mahila Kosh, was not notified of the Regulations or the

Circular and learnt of the same much later when exercising the option under a

Voluntary Retirement Scheme.

7. It is the admitted position that the Regulations of the Punjab National Bank,

which were the subject matter of the judgment in Jai Singh B. Chauhan, in so far

as the present controversy is concerned, are identical to that of the respondent

Allahabad Bank. Though the senior counsel for the petitioner at one stage had

contended that in Jai Singh B. Chauhan there was no circular of the bank as in the

present case but the counsel for the respondent bank has invited attention to para 4

of the judgment wherefrom it appears that a Circular was issued in that case also

calling for options. The Supreme Court in the said judgment held that the mode of

publication of the Regulations prescribed being by publication in the Official

Gazette, Jai Singh B. Chauhan, the bank employee in that case, could not be heard

to say that he was not aware of the Regulations. Relying on Pankaj Jain Agencies

Vs. Union of India 1994 (5) SCC 198, it was further held that publication in the

Official Gazette is the customarily recognized official channel. The contention

raised that there was failure to make the law known and the notification did not

acquire elements of operativeness and enforceability was held to be unacceptable.

8. In Mehar Singh (supra), the High Court had allowed the writ petition of the

employee and directed the bank to release the pensionary benefits in terms of the

option exercised belatedly. Even though the bank in that case was erroneously

showing Mehar Singh as a pension optee for a long period of seven years, the

Supreme Court set aside the order of the High Court. It was held that if there was

no discretion left in the bank to accept the belated application, then merely because

the bank treated Mehar Singh for a long period of seven years as a pension optee

would by itself create no rights in favour of Mehar Singh. It was held that there

can be no estoppel against the statute. The Regulations described as law in the said

judgment were held to be clear, i.e. that the employees of the bank were required to

give an option within 120 days of the notified date of the Pension Regulations.

9. It would thus appear that in view of the two judgments (supra) of the

Supreme Court, even if the petitioner herein were to establish that the Regulations

were not in her knowledge and / or of the Circular aforesaid of the bank requiring

all officers / managers of the respondent bank to bring the Regulations to the

knowledge of all employees were to be established, the petitioner would still be not

entitled to any relief.

10. The senior counsel for the petitioner has however contended:-

(i) That the judgment in Jai Singh B. Chauhan is coloured by the

finding that not only was the option not exercised within time but Jai

Singh B. Chauhan had also been utilizing the amounts deposited in

the Provident Fund Account. It is contended that from the said fact,

the Supreme Court inferred that Jai Singh B. Chauhan had decided

not to opt for the pension scheme.

- I, however, do not find any merit in the said contention. The plea of

Jai Singh B. Chauhan also was that he was not in the know of the

Pension Regulations. Thus dealing with the provident fund was

immaterial.

(ii) It is contended that notwithstanding the time prescribed to exercise

the above option from the date of publication in the Official Gazette,

the judgment in Jai Singh B. Chauhan records that the Government

of India, Ministry of Finance, Department of Economic Affairs,

Banking Division had vide letter dated 19th February, 2002 permitted

the bank to accept options belatedly from two categories of

employees and in neither of which categories Jai Singh B. Chauhan

was found to fall. It is urged that thus the time prescribed from the

date of publication in the Gazette was not sacrosanct.

- However, the said argument also does not convince me so as to hold

that I am not bound by the judgments aforesaid of the Supreme Court.

The petitioner also does not fall in the two categories of employees

with respect whereto the Board of Directors of the Bank were

permitted to accept options exercised belatedly. Moreover, the

petitioner in this petition has not challenged the said letter as

discriminatory. It is significant that the judgment in Jai Singh B.

Chauhan was pronounced though after the institution of this petition

but nearly five years ago. The petitioner had an option to thereafter

amend the petition. Nothing of the sort has been done. It was the

contention of the bank in Jai Singh B. Chauhan that there was no

necessity for the Bank to give any individual notices. The said

contention, though not expressly, was accepted by the Supreme

Court.

(iii) The senior counsel contends that the Circular dated 16th November,

1995 of the respondent bank, notwithstanding the Regulations,

enjoined intimation of the Regulations to all concerned, to enable

them to exercise the option. It is contended that for this reason only a

special provision was made with respect to officers of Allahabad

Bank deputed to Vijaya Bank and Central Bank of India and

intimation at the last known address to the retired employees / family

members of retired / deceased employees were sent. It is contended

that there is no provision in the said Circular for intimation to the

petitioner, the sole employee of the bank deputed to Rashtriya Mahila

Kosh and who constituted a class by herself. It is urged that thus

there was no communication to the petitioner.

- I am unable to accept the said contention also or to hold that for the

reason of the same, the petitioner is entitled to any relief inspite of the

binding dicta aforesaid of the Supreme Court. Firstly, as aforesaid,

there was a Circular in Jai Singh B. Chauhan also and

notwithstanding the same the time for exercising the option was

computed in terms of the Regulations from the date of publication

thereof in the Official Gazette and not from the date of the Circular.

Secondly, the Supreme Court in Mehar Singh has unequivocally held

that under the Regulations no discretion was left in the bank. Lastly,

I find that the said Circular is not in accordance with the Regulations.

The Regulations did not require issuance of any such Circular and

provide for the publication in the Official Gazette as sufficient

communication to all employees and made the said publication as the

starting point of the time prescribed for exercising the option. The

counsel for the respondent bank has in this regard also drawn

attention to State of Maharashtra Vs. Mayer Hans George 1965 (1)

SCR 123 where the Supreme Court held that where there is

a statutory requirement as to the mode or form of publication and

they are such that, in the circumstances, the Court holds to be

mandatory, a failure to comply with those requirements might result

in there being no effective order, the contravention of which could be

the subject of a prosecution and a failure to comply with those

requirements might result in the Court holding that there was no

publication. It was further held that where there is no statutory

requirement, the rule is of publication in the usual form i.e. in the

Official Gazette i.e. the Gazette of India. The argument that

notification in the Official Gazette is not effective for being not

brought to the actual notice was rejected. Reliance in this regard is

also placed on Union of India Vs. Ganesh Das Bhojraj 2000 (9)

SCC 461 to contend that the principle aforesaid laid down in Mayer

Hans George (supra) in relation to a penal provision has been held to

be of general application. The counsel for the respondent has also

referred to Ram Singh Vijay Pal Singh Vs. State of U.P. 2007 (6)

SCC 44 where the Director of Agricultural Produce Markets Board

had issued a letter on the basis whereof relief was claimed; the

Supreme Court held that if the letter was contrary to the powers

which could be exercised by the Board of Directors under the statute,

the Courts could not issue any mandamus to the Board to do

something contrary to the Statute. It is contended that the

Regulations aforesaid are a piece of subordinate legislation and the

petitioner cannot be granted relief on the basis of the Circular which

is not in terms of the Regulations and granting of which relief would

be contrary to the Regulations. There is merit in the said contention

of the counsel for the respondent.

(iv) The senior counsel for the petitioner in rejoinder contended that the

respondent bank is a "state" within the meaning of Article 12 of the

Constitution of India and invoked Article 14 of the Constitution to

contend that the action of the bank in the present case is arbitrary. It

is contended that the petitioner on deputation at the relevant time was

similarly placed as the retired employee / legal heirs of the retired /

deceased employee and there is no rationale in the Circular, while

providing for issuance of individual notices to such persons who are

not expected to be in the know of the Regulations being far away

from the bank, to not provide the same for the petitioner who, also

owing to deputation, was working away from the bank. It is

contended that there is no rationale in the Regulations for providing

for a period of 120 days only for exercising the option. The senior

counsel for the petitioner also relies on D.S. Nakara Vs. Union of

India (1983) 1 SCC 305 to contend that prescribing of a cut off date

is discriminatory.

- I am afraid, the said contention cannot be accepted. Neither has the

petitioner challenged the Regulations nor are there any pleadings to

the said effect. The senior counsel has also contended that the aspect

of arbitrariness has not been gone into in Jai Singh B. Chauhan or in

Mehar Singh. However, the Supreme Court having authoritatively

pronounced on the subject is deemed to have considered all aspects of

the controversy and it is not for this Court to hold the judgments of

the Supreme Court to be not binding on such grounds.

11. At this stage, the argument of the senior counsel for the petitioner of

Regulation 55 empowering the Board of Directors of the bank to allow the option

to be exercised belatedly also requires to be considered. The said Regulation is as

under:

"55. Power to issue instructions The Chairman and Managing Director of the Bank may from time to time issue instructions as may be considered necessary or expedient for the implementation of these regulations."

It is urged that the aforesaid vests a discretion in the Chairman & Managing

Director. It is further contended that the said Regulation has not been considered

by the Supreme Court.

12. The power vested in the Chairman & Managing Director to issue

instructions for implementation of the Regulations cannot be read as vesting a

power in the Chairman & Managing Director to alter the Regulations. The power

is to be exercised only in implementation. In the matter of publication of the

Regulations, the Regulations are and have been held to be self contained i.e.

publication for enabling the concerned person to exercise option is from the date of

publication in the Official Gazette. The power under Regulation 55 cannot be read

as empowering the Chairman & Managing Director to alter the manner of

publication.

13. Be that as it may, this Court had directed the Chairman & Managing

Director to consider the representation of the petitioner and decision dated 31st

October, 2009 in that regard has been placed on record. In the said decision, it has

been informed that as per the MOU dated 29th October, 1993 signed between the

Indian Bankers Association on behalf of its member banks on the one hand and the

representatives of the recognized trade unions of bank employees and banking

industry and of which the petitioner was a member on the other hand, pension as

second retirement benefit in lieu of employers contribution to Employees Provident

Fund account was introduced and it was agreed that the employees / officers of the

bank would be required to exercise the option. The last date prescribed in the

Circular then issued was till 30th November, 1994. However, in implementation of

the pension scheme, the Regulations aforesaid were notified and in which the date

for exercising the option was prescribed as within 120 days from publication in the

Official Gazette. It was for this reason only that in the Circular dated 16th

November, 1995 relied by the petitioner, it was provided that employees / officers,

who had exercised the option pursuant to the earlier Circular dated 6th September,

1994 need not exercise the option again. The Chairman & Managing Director of

the respondent bank in the said decision has also controverted the plea of the

petitioner being not in the know of the pension scheme for the reason of being on

deputation. It is stated that the petitioner was on deputation from 5th July, 1995 to

31st December, 1997 i.e. from after the Circular dated 6th September, 1994. It is

further stated that the petitioner being a senior officer, would have been aware of

the pension scheme and chose not to exercise the option and at the time of seeking

voluntary retirement in 2001 changed her mind and which cannot be permitted.

14. Though inspite of the legal position aforesaid, the question of whether the

petitioner was in the know of the Regulations is not relevant but elaborate

submissions were addressed on the said aspect. The senior counsel for the

petitioner has contended that the respondent bank imputed knowledge to the

petitioner of the Regulations and the Circular only for the reason of the petitioner,

while on deputation in Rashtriya Mahila Kosh drawing her salary from one of the

branches of the respondent bank. It is contended that merely because the petitioner

had an account with the respondent bank cannot be a reason for imputing

knowledge to the petitioner of the Regulations and the Circular. The counsel for

the respondent bank rebuts by contending that the demand of the employees /

officers of the bank for a pension scheme was pending and brewing for long and it

is inconceivable that the petitioner was not in the know of the same.

15. This Court in the exercise of writ jurisdiction cannot go into the disputed

question of attributing knowledge to the petitioner. Moreover, the knowledge

being attributed by the Regulations from the Official Gazette, the said question

does not arise for consideration.

16. Before parting with the case, it may be noted that the counsel for the

respondent has fairly brought to the attention of this Court that the Allahabad High

Court had passed an order directing the respondent bank to give benefit of the

pension scheme to an employee who had not exercised the option within the

prescribed time. It is informed that SLP (Civil) No.14355/2007 was preferred by

the respondent Allahabad Bank against the said order and which was disposed of

vide order dated 7th January, 2008; the Supreme Court though dismissed the SLP,

but clarified that the same should not be treated as a precedent. This however

further fortifies me to hold that had the Supreme Court considered the judgment of

the Allahabad Bank to be a correct exposition of law, the occasion for clarifying

that the same should not be treated as a precedent would not have arisen.

There is no merit in the petition; the same is dismissed. No order as to

RAJIV SAHAI ENDLAW (JUDGE) 27th April, 2010 gsr