Sh. B.N. Mahajan vs Union Of India & Ors
2010 Latest Caselaw 2613 Del

                    *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) 1527/1996

%                                                 Date of decision: 17th May, 2010

SH. B.N. MAHAJAN                                              ..... Petitioner
                              Through:      Mr. A.K. De & Mr. Udit Kumar,
                                            Advocates.
                                         Versus
UNION OF INDIA & ORS.                                              ..... Respondents
                   Through:                 Mr. Jagat Arora, Advocate for R-2&3.

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

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 quashing the letter dated 12th January, 1995 of the

respondent no.2 Dena Bank informing the petitioner that he is not eligible for pension

and also seeks a writ of mandamus directing the respondent no.2 Bank to release the

retiral benefits including pension of the petitioner workman. Rule was issued in the

petition on 13th May, 1997.

2. The petitioner joined the services of the respondent no.2 Bank on 15th October,

1970 as a Cashier Clerk and worked with the respondent no.2 Bank for over 23 years.

Earlier there was no provision for pension for the employees of the respondent no.2

Bank; they were only entitled to Contributory Provident Fund and gratuity. However the

demand for pension was being taken up with the Indian Banks' Association (IBA) for a

long time. During the course of negotiations on service conditions between the

employees' union and the IBA, in February, 1990, IBA agreed to introduce pension

scheme in Banks in lieu of Contributory Provident Fund. Ultimately, a settlement in this

regard was signed on 29th October, 1993. The member Banks of the IBA agreed to

introduce pension as a second retiral benefit scheme in lieu of Contributory Provident

Fund. It was further agreed that the said scheme would be available to the category of

employees/retired employees from 1st November, 1993 and/or the date of retirement

whichever is later.

3. The petitioner vide his letter dated 1st February, 1994 to the Bank, with reference

to the settlement dated 29th October, 1993, also making a Bank employee, who had

completed the service of 20 years, eligible for pension sought premature retirement from

the service of the Bank with prior notice of three months w.e.f. 1st February, 1994 to 30th

April, 1994. The respondent no.2 Bank vide its reply dated 12th March, 1994 to the

petitioner informed that till date they had not received any scheme for payment of

pension officially from the IBA and the details of the scheme were still awaited and

hence the Bank could not give any guarantee at that stage for payment of pension for the

employee who takes premature retirement after completion of 20 years of service. The

petitioner was further informed that if he wanted to leave the service of the respondent

no.2 Bank he had to submit his resignation; however the payment of pension will be

subject to the terms and conditions of the pension scheme which then was still to come

into force.

4. The petitioner on 15th March, 1994, asked the respondent no.2 Bank to treat his

earlier letter dated 1st February, 1994 as his resignation from the services of the Bank. He

further stated that since only one month's notice was sufficient to submit the resignation,

he should be relieved of his duties w.e.f. 1st April, 1994 and his previous letter dated 1st

February, 1994 may be treated as notice to the Bank from that date. The petitioner in the

said letter also reserved his right to opt for pension as and when the scheme comes into

force. The respondent no.2 Bank vide its letter dated 31st March, 1994 accepted the

resignation of the petitioner workman and relieved the petitioner workman from the

services of the Bank w.e.f. 31st March, 1994 itself.

5. The Dena Bank (Employees) Pension Regulations, 1995 were notified in the

Gazette of India on 29th September, 1995. The said regulations were framed by the Board

of Directors of the respondent no.2 Bank after consultation with the Reserve Bank of

India and with the previous sanction of the Central Government and in exercise of

powers conferred by Section 19 (2)(f) of the Banking Companies (Acquisition &

Transfer of Undertakings) Act, 1970. Regulation 2(r) defines notified date as the date on

which the regulations are published in the official gazette i.e. 29th September, 1995. The

Pension Regulations apply inter alia to those who retired on or after 1st November, 1993

but before the notified date and who exercised an option in writing within 120 days of the

notified date to become a member of the fund and who, within 60 days of the expiry of

the said period of 120 days, refund the entire amount of Bank's contribution to the

provident fund and interest accrued thereon together with further interest as provided

therein. As per the Regulation 2(y), retirement means cessation from Bank's service

inter alia on voluntary retirement in accordance with provisions contain in Regulation

29. Regulation 22 provides that resignation from service of the Bank entails forfeiture of

entire past service and shall not qualify for pensionary benefits. Regulation 29 provides

that on or after 1st November, 1993 an employee who has completed 20 years of

qualifying service may, by giving notice of not less than three months in writing to the

appointing authority retire from service. However, Regulation 29(2) requires acceptance

by the appointing authority of the notice of voluntary retirement.

6. The petitioner within the prescribed time exercised the option for the pension

scheme. The respondent no.2 Bank, vide its letter dated 1st November, 1994, forwarded

to the petitioner a form required to be filled to exercise the option. The petitioner filled

up the said form and submitted to the respondent no.2 Bank. However the respondent

no.2 Bank, vide its letter dated 12th January, 1995 informed the petitioner that since he

had resigned from service of the Bank he was not eligible for pension. Upon

representations of the petitioner meeting with no success, the present writ petition was

filed.

7. The counsel for the petitioner has contended that the pension scheme notified on

29th September, 1995, is pursuant to the settlement of 29th October, 1993; it is for this

reason only that provision as aforesaid is made for employees retiring after 1st November,

1993 but before the notified date. He contends that the petitioner in accordance with the

said settlement only had sought voluntary retirement but since there was delay on the part

of the respondent no.2 Bank in bringing and enforcing the scheme inspite of agreement

of 29th October, 1993, he was made to resign instead of being permitted voluntary

retirement. He contends that the petitioner had resigned subject to his right to pension

and Bank also in the letters aforesaid had represented that his claim for pension shall be

considered in accordance with the regulations to come into force. Much emphasis is laid

on the correspondence exchanged wherein the subject is mentioned as "premature

retirement". It is thus contended that the resignation of the petitioner cannot be treated as

one within the meaning of Regulation 22 which leads to forfeiture of pensionary benefits.

It is further contended that the grant of pension in lieu of Contributory Provident Fund is

a welfare/beneficiary measure and should be interpreted accordingly.

8. The counsel for the respondent no.2 Bank has on the contrary contended that the

present case is squarely covered by the judgment of the Supreme Court in UCO Bank Vs.

Sanwar Mal 2004 (2) LLN 775. It was held by the Supreme Court therein that an

employee who has resigned is, under the Pension Regulations, not entitled to pensionary

benefits. However that was a case of resignation simpliciter in or about 1988 i.e. even

prior to the settlement of 29th October, 1993 and the employee there had not sought to

first voluntary retire and subsequently made to resign.

9. In the present case the petitioner had sought voluntary retirement in accordance

with the settlement already arrived at. However, since the Scheme/Regulations were then

still to be framed and notified, the respondent no.2 Bank informed the petitioner that

voluntary retirement was not possible and if he still chose to quit the service of the Bank,

he had to resign. Else, the settlement and even the scheme as notified in1995

contemplates voluntary retirement after 1st November, 1993 on completing 20 years of

service. Seen in that light, the resignation obtained from the petitioner workman appears

to be a "technical resignation" as taken when a government servant leaves on

appointment in another government department and which "technical resignation" does

not have legal consequences of a resignation and does not result in loss of pensionary

benefit, length of service etc. However, notwithstanding the same, I am not inclined to

hold in favour of the petitioner workman for three reasons:-

10. Firstly, Regulation 29 providing for voluntary retirement does not make voluntary

retirement a unilateral act of the employee. It is not that on notice of voluntary retirement

being given by an employee, the employee has a right to such retirement. Notice of

voluntary retirement requires acceptance by the appointing authority. In the absence of

any averment that the said clause of acceptance was introduced subsequently or was not a

part of the settlement of 29th October, 1993 it has to be presumed that the petitioner on 1st

February, 1994 while giving the notice of voluntary retirement was aware of the

requirement of it being accepted. In fact the petitioner gave three months' notice of

voluntary retirement as per the said regulations. Notice of the petitioner for voluntary

retirement was not accepted. When the same was not accepted, the petitioner, even in

accordance with the settlement, was not entitled to retire voluntarily. Thus, the petitioner

cannot now contend that his case was one of voluntary retirement and not of resignation.

The petitioner on the respondent no.2 Bank not accepting the notice of voluntary

retirement chose to resign from the services of the respondent no.2 Bank and thus is to be

held to have resigned with consequence of forfeiture of pensionary benefits and cannot

be held to have retired.

11. Secondly, the unequivocal intent of the petitioner is also evident from the

petitioner reducing the notice period from three months as required in case of voluntary

retirement to one month as required in case of resignation. The petitioner sought

discharge and was discharged immediately, even before the expiry of three months. The

petitioner by his said conduct unequivocally gave up his claim of voluntary retirement.

12. Lastly, during the hearing, it was informed that the retiral benefits of the

petitioner including the Bank's contribution towards Provident Fund were released to the

petitioner on 6th January, 1995. Though till then the respondent no.2 Bank had not

communicated rejection of option exercised by the petitioner workman for pension, the

petitioner nevertheless accepted the said retiral benefits. The same also constitutes an

unequivocal act on the part of the petitioner of reneging from the pension scheme he had

opted for. Upon the same being put to the counsel for the petitioner, he contends that the

petitioner is ready and willing to deposit the same back with interest. However, the

question is not of such willingness of the petitioner. If the petitioner intended his case to

be that of voluntary retirement and thus of being eligible for pension, the petitioner ought

not to have accepted the said retiral benefits. It was enquired from the counsel whether

such acceptance was without prejudice to the right to claim pension. The answer is in the

negative.

13. The petitioner appears to have been in a great hurry to leave the services of the

respondent no.2 Bank. Upon the respondent no.2 Bank refusing the notice of voluntary

retirement, the petitioner while opting to resign also reduced the notice period and sought

discharge immediately. Apparently, the petitioner was leaving for greener pastures and

has no equities in his favour.

14. The Supreme Court in Jai Singh B. Chauhan Vs. Punjab National Bank (2005)

6 SCC 262 and in order dated 20th November, 2009 in Civil Appeal No.7682/2009 titled

Punjab National Bank Vs. Mehar Singh has inter alia held that under the regulations

no discretion had been left in the Bank and the said regulations are a piece of subordinate

legislation and there can be no estoppel against the statute. The regulations described as

law in Mehar Singh were held to be clear and not capable of any interference.

15. There is therefore no merit in the petition; the same is dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE)

17th May, 2010 pp