Mangat Rai Sharma vs Indian Bank
2015 Latest Caselaw 2702 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 6783/2013

%                                                            06th April, 2015

MANGAT RAI SHARMA                                              ..... Petitioner
                Through:                 Mr.Harish Sharma, Advocate.

                          versus
INDIAN BANK                                                ..... Respondent
                          Through:       Mr.Himanshu Munshi, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1.     By this writ petition filed under Article 226 of the Constitution of India,

petitioner, who was an employee of the respondent/Indian Bank seeks the

relief that he be granted pension w.e.f 01.9.2010 on account of he having

validly exercised the option of pension on 28.8.2010 i.e well before the cut off

date of 20.11.2010.

2.     The limited issue in the present case is that whether the petitioner had

exercised his option before the cut off date of 20.11.2010.                   The

respondent/Bank rejected the pension option on the ground that the petitioner

had only applied on 23.12.2010 i.e after the cut off date of 20.11.2010, and this


W.P.(C) No.6783/2013                                                Page 1 of 5
 aspect is mentioned in the impugned letter of the respondent/Bank dated

23.12.2010 issued to the petitioner.

3.       Petitioner along with the writ petition has filed an Annexure P-3, his

exercise of option        for pension dated 28.8.2010, and though the

respondent/Bank has denied receiving the same in the counter-affidavit,

however, the respondent/Bank's own letter dated 16.12.2010 shows that the

petitioner had duly given his option in terms of his form dated 03.9.2010 i.e

before 20.11.2010. Since the letter of the respondent/Bank dated 16.12.2010 is

decisive of the issue, the same is reproduced as under:-

     "REF:DGM:ICD:MF2:10                                   Dated: 16.12.2010

     To
     The General Manager (HRM)
     Indian Bank
     Head Office
     66 Rajaji Salai
     Chennai

     Dear Sir,

     Sub: Forwarding of one Application for pension

     We forward herewith representation dated 16.12.2010 received from Mr.
     Mangat Rai Sharma, Chief Manager (Retd.) SR No.3481 who has gone on
     Superannuation from 31.08.2010.

     Earlier we have forwarded the Annexure-I duly filled up by him & forwarded
     to you on 03.09.2010 and we have recovered 2.8 times of Basic Pay
     components of revised pay for November 2007 amounting 103,880/- from him.



W.P.(C) No.6783/2013                                                 Page 2 of 5
      Now we are forwarding his representation dated 16.12.2010 along with
     Annexure-V, Annexure-VII and Annexure-IX.

     Yours faithfully,
     Sd/-
     Deputy General Manager"
                                                               (underlining added)


4.      The petitioner has mentioned about the respondent's aforesaid letter

dated 16.12.2010 in para 12 of his writ petition, and to which the

respondent/Bank in its counter-affidavit has given no effective reply, and this

is obviously so because the respondent/Bank would not be able to deny that the

letter dated 16.12.2010 was issued by its own officer. Para 12 of the counter-

affidavit of the respondent/Bank reads as under:-

         "12. With reference to Para 12 of the Writ Petition it is submitted
         that the statement of the petitioner itself indicates that the pension
         application was submitted belatedly."

5.      It is therefore clear that the petitioner had exercised the option before the

cut off date being 20.11.2010, and therefore the respondent/Bank was bound to

grant pension to the petitioner.

6.      The respondent/Bank has contended in its counter-affidavit that on

retirement of the petitioner, petitioner was credited the amount of provident

fund being the terminal benefit, and it is therefore argued that the petitioner

cannot get the benefit as claimed because the petitioner has received the entire

provident fund amount. This contention of the respondent/Bank is however
W.P.(C) No.6783/2013                                                     Page 3 of 5
 misconceived for the reason that the present is not a case where the petitioner

was a retired employee of the respondent/Bank and that when he exercised the

option he had already received the provident fund at the time of his retirement,

and, the present case is a case where the respondent/Bank in spite of the

petitioner before retirement having exercised the option, credited suo moto the

provident fund amount to the account of the petitioner. The petitioner in his

writ petition has stated that the said amount is still lying in the savings bank

account from 31.8.2010 till date.      Clearly, therefore the respondent/Bank

should not be allowed to take advantage of its own wrong in wrongly crediting

the provident fund amount, more so the petitioner has not utilized the same,

and therefore there cannot be any estoppel against the petitioner in the facts of

the present case.

7.     In view of the above, the writ petition is allowed. Petitioner will be

deemed to have exercised the option validly on 28.8.2010. Petitioner will

within a period of two weeks from today refund the amount which has been

credited in his bank account on account of provident fund which was credited

to his bank account either by issuing a cheque or giving any other authorization

to the respondent/Bank alongwith whatever amount petitioner has received as

interest on this amount. If there is any issue of petitioner paying back a lesser

amount, and if this is so claimed by the respondent/Bank, then the
W.P.(C) No.6783/2013                                                Page 4 of 5
 respondent/Bank will be entitled to debit from the savings bank account of the

petitioner any differential amount towards interest. Petitioner will be entitled

to interest @ 5% per annum simple from the date of retirement of the petitioner

on the amount of arrears of pension which will now be credited to the account

of the petitioner. Future pension in terms of the rules will be paid month by

month to the petitioner by the respondent/Bank.

8.     The writ petition is allowed and disposed of accordingly, leaving parties

to bear their own costs.




APRIL 06, 2015                                    VALMIKI J. MEHTA, J.

KA