Gauhati High Court
WA/243/2018 on 5 May, 2022
Page No.# 1/16
GAHC010186282018
Judgment reserved on :16th March, 2022
Judgment delivered on : 05.05.2022.
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT APPEALNO.243 OF 2018
1. Mrs. Archana Bhattacharjee,
Wife Of : Biraj Bhattacharjee
Resident of Lumphi Village, Block II;
Opposite Sub Urban Police Station;
P.O & P.S. Dimapur; Dist: Dimapur, Nagaland.
........Appellant/Writ Petitioner
-Versus-
1. The Bank of Baroda, to be represented by its
Chairman & Managing Director, C-26, G-Block, Bandra
Kurla Complex, Bandra (E), Mumbai-400051.
2. The General Manager (HRM) Baroda Corporate
Centre, C-26, G-Block, Bandra Kurla Complex, Bandra
(E), Mumbai-400051.
3. The General Manager (EZO), Bank of Baroda,
Estern Zonal Office, Baroda Tower Plot No. 38/2, Block
No. GN (5th& 6th Floor), Sector-V, Salt Lake City,
Kolkata-700091.
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4. The Chief Manager, Bank of Baroda; N. L. Road,
Dimapur, Nagaland, Pin-797112.
........Respondents
-B E F O R E -
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Advocate for the appellant : Mr. A. I. Uddin, learned counsel.
Advocate for the respondents : Mr. A. K. Roy, learned counsel.
JUDGMENT AND ORDER (CAV)
(Soumitra Saikia, J)
1. The writ petitioner had resigned from her service as an employee of
the Bank of Baroda, Dimapur Branch. The Bank authorities did not
release her pensionary and other retrial benefits. Aggrieved she filed the
writ petition before this Court seeking directions for quashing of the
orders issued by the Bank of Baroda rejecting her prayer for release/grant
of pensionary benefits and a further direction to the respondent-Bank of
Baroda authorities to finalize the pension and other benefits admissible
under law from the date of her release from service and thereafter grant
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the same to the petitioner. The writ petition was dismissed by the learned
Single Judge on the grounds and reasons mentioned in the impugned
order. Being aggrieved, the present writ appeal has been filed assailing
the Judgment and Order of the learned Single Judge dismissing the writ
petition of the appellant/writ petition.
2. The writ petitioner was appointed as a Clerk-cum-Typist in the Bank
of Baroda, Dimapur Branch vide order dated 21.10.1992. Petitioner joined
her service on 27.10.1992. Sometime from the month of November, 2011,
the petitioner suffered illness and accordingly prayed for Medical Leave.
She was referred to a Medical Board, who granted her one month Medical
Leave with effect from 12.11.2011. Thereafter, petitioner rejoined her
duties, but she again fell ill and applied for Medical Leave. The prayer for
Medical Leave was however not granted and instead the petitioner was
advised to work in the cash department. Meanwhile, the health of the
petitioner deteriorated making it difficult for her to attend to her duties in
the cash counter. Her repeated requests for permitting her to carry on her
duties anywhere except the cash counter was not acceded to. Under
these circumstances, the petitioner submitted her application for
resignation from the Bank on medical grounds on 12.01.2012, which was
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accepted by the Bank with effect from 28.03.2012. The petitioner was
released from service with effect from 28.03.2012.
3. The petitioner having not been granted her pension in view of her
resignation approached this Court by filing the writ petition. It was urged
by the petitioner that she had rendered 19 years 6 months of service and
therefore she should have been allowed an invalid pension as her
resignation was on the medical grounds. In the alternative, it was
submitted that for an employee to go on voluntary retirement, the
qualifying service period is 20 (twenty) years. Therefore, the case of the
petitioner ought to have been considered sympathetically as she was
short of 6 (six) months of the qualifying service for voluntarily retirement
along with pension under Regulation 30 of the Bank of Baroda
(Employees') Pension, Regulations, 1995, (herein after referred to as
Regulation of 1995). It was urged that under Regulation 14 of the 1995
Regulation, an employee who has rendered a minimum of 10 years of
service in the Bank is eligible for pension. It is submitted that since under
the Regulations the appellant was eligible for pension, her application
ought to have been considered for grant of pension.
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4. Learned counsel for the appellants submits that the circumstances
under which the appellant submitted her resignation ought not to be taken
as resignation per se. The attending circumstances which preceded her
submission of the letter for resignation when taken into account, the only
conclusion will be that it was in the nature of a voluntarily retirement.
5. The respondent/Bank disputed the contentions of the petitioner. It
was submitted that Regulation 14 of the 1995 Regulation is not applicable
as the resignation was submitted on the basis of Medical certificates,
which were for the periods 13.12.1993 to 02.11.2009 although the
petitioner submitted her resignation on 12.01.2012. There was no
medical emergency because of which the petitioner had to resign.
6. It is also submitted that as per the Attendance Register, petitioner
was shown absent from the time the petitioner's leave period ended till
the time her resignation took effect, except on 11.02.2012. The
representation of the petitioner seeking pension was rejected by the Bank
as the petitioner had resigned from service. As per Regulation 22 (1),
resignation entailed forfeiture of the entire past service and consequently,
the employee is not eligible for pension.
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7. Before proceeding further, it is necessary to extract the relevant
provisions of 1995 Regulations, namely Regulation 14, Regulation 22 (1)
and Rule 30 of the 1995 Regulations.
"14. Qualifying service.
Subject to the other conditions contained in these
regulations, an employee who has rendered a minimum of
ten years of service in the Bank on the date of his
retirement or the date on which he is deemed to have
retired shall qualify for pension.
22. Forfeiture of Service.
(1) Resignation or dismissal or removal or termination of an
employee from the service of the Bank shall entail for
forfeiture of his entire past service and consequently shall
not qualify for pensionary benefits.
30. Invalid Pension.
(1) Invalid pension may be granted to an employee who,-
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a) has rendered minimum ten years of service; and
(b) retires from the service on or after the 1 st day of
November 1993 on account of any bodily or mental
infirmity, which permanently incapacities him for the
service.
(2) An employee applying for an invalid pension shall
submit a medical certificate of incapacity from a medical
officer approved by the Bank.
(3) Where the Medical Officer approved by the Bank has
declared the employee fit for further service of less
laborious character than that which he had been doing, he
should, provided he is willing to be so employed, be
employed on lower post and if there be no means of
employing him even on
a lower post, he may be admitted to invalid pension.
(4) No medical certificate of incapacity for service may be
granted unless the applicant produces a letter to show that
Page No.# 8/16
the Competent Authority is
aware of the intention of the applicant to appear before the
medical officer approved by the Bank.
(5) The medical officer approved by the Bank shall also be
supplied by the Competent Authority in which the applicant
is employed with a statement of what appears from official
records to be the age of the applicant".
8. It is also necessary to extract the resignation letter of the petitioner
dated 12.01.2012.
"Re:- Resignation from Banks service on Medical Ground.
With reference to the above undersigned would like to
submit the following for your perusal and onward
transmission for doing the needful.
You are aware that I am suffering from various
ailment owing to chocolate cyst in my overy and am not in
a position to continue with my job at this state of health.
Page No.# 9/16
I therefore urge you to take up the matter with the
appropriate authority for necessary formality and action.
Thanking you in anticipation."
9. Upon perusal of the Regulation of 1995, it is seen that under
Regulation 14, the qualifying service prescribed for an employee is a
minimum of 10 (ten) years of service in the Bank. Under Clause 29, of the
Regulation of 1995, it is prescribed that any employee, who has completed
20 (twenty) years of qualifying service, may upon making a request by
giving notice of not less than 3 (three) months in writing to the appointing
authority, may retire from service. As per Regulation 22 of the Regulation of
1995, any resignation or dismissal or removal or termination of an employee
from the service of the Bank entails forfeiture of the entire past service and
consequently shall not qualify for pensionary benefits.
10. A reference has also been made to the Bank of Baroda (Officers')
Service Regulations, 1979 and a Bipartite Settlement dated 10.04.2002
between the Bank and the staff regarding Disciplinary Action against
Workman/Staff and Procedure thereof. It is submitted by referring to the
clause 6 of the bipartite settlement that there are various punishments
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prescribed for an employee found guilty of gross misconduct. Under clause
(a), it is provided that an employee can be dismissed from service without
notice. But under Clauses (b), (c) and (d) there are punishments prescribed
where an employee may be removed from service or be compulsorily retired
or be discharged from service. Under all these Clauses, the employee,
however, would be entitled to superannuation benefits i.e. Pension and/or
Provident Fund and Gratuity as would be due otherwise under the Rules or
Regulations prevailing at the relevant time and without disqualification from
future employment.
11. It is submitted that where even in respect of an employee removed,
compulsorily retired and discharged from service, superannuation benefits
are available, it is wholly unjust to deny the present appellant of any
superannuation benefits by simply relying on her application for retirement
without taking into account the attending circumstances, more particularly,
when the employee had already completed 19 years 6 months of service.
The Judgment of the Apex Court rendered in Bank of Baroda Vs S. K. Kool
(Dead) Through Legal Representatives and another reported in (2014) 2
SCC 715 is relied upon by the learned counsel for the appellant to support
his contention that in the face of conflict between the Pension (Regulations),
1995 and any clause of the Bipartite Settlement, that the benefits conferred
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under the Bipartite Settlement ought to be conferred on the employees only
in respect of those employees who are eligible and have put in a minimum
number of years of service to qualify for pension.
12. In Bses Yamuna Power Limited Vs Ghanshyam Chand Sharma and
another reported in (2020) 3 SCC 346, the question of retiral benefit
pursuant to resignation came up for consideration. In the case before the
High Court, it was submitted on behalf of the employee that he had
completed 20 (twenty) years of service and therefore, he had "voluntarily
retired" and had not "resigned" from service. The contentions were upheld
by the High Court and the matter came up before the Apex Court. The
questions addressed before the Apex Court were:-
i) that the employee had not completed 20 (twenty) years
of service and therefore, he was ineligible for pension,
ii) in any case by resigning, he had forfeited his past service
therefore, could not claim the pensionary benefits.
13. Before the High Court the Judgment of the Apex Court rendered in
Asger Ibrahim Amin Vs LIC, reported in (2016) 13 SCC 797 was relied upon.
The said Judgment of the Apex Court in Asger Ibrahim Amin was referred to
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a Larger Bench of Apex Court in LIC Vs Shree Lal Meena, reported in (2015)
17 SCC 43, the Larger Bench subsequently pronounced the Judgment which
is reported in (2019) 4 SCC 479 (LIC Vs Shree Lal Meena (2nd)). In LIC Vs
Shree Lal Meena (2nd), ((2019) 4 SCC 479), the Apex Court had overruled
the view taken earlier in Asger Ibrahim Amin. In LIC Vs Shree Lal Meena
(1st), reported in (2015) 17 SCC 43, the Apex Court took the view that the
provisions in respect to pension on voluntarily retirement under Rule 31 was
not applicable retrospectively because the relevant provision had not been
enacted in retrospective effect. The relevant portion of the Judgment is
extracted below:-
"9. The Court in Shree Lal Meena (1) 5took the view that the
provision with respect to pension on voluntarily retirement
(Rule 31) was not applicable retrospectively because the
relevant provision had not been enacted with retrospective
effect. Crucially, the Court noted that by making the provision
on voluntary retirement applicable retrospectively, and making
a determination in the facts of each case whether an employee
had "resigned" or "voluntarily retired", the decision in Asgar
Ibrahim Amin3obliterated the distinction between resignation
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and retirement. The Court noted that there is a "real difference
between resignation and retirement". They cannot be used
interchangeably, and the court cannot substitute one for the
other merely because the employee has completed the
requisite number of years to qualify for voluntary retirement".
13.1. In LIC Vs Shree Lal Meena (2nd), the Apex Court upheld the
interpretation in LIC Vs Shree Lal Meena (1st), (2015) 17 SCC 43 and noted
that the retrospective application of the provision on voluntarily retirement
in LIC Pension Rules would lead to an absurd result. While upholding in LIC
Vs Shree Lal Meena (2nd), reference was also made to RBI Vs Cecil Dennis
Solomon reported in (2004) 9 SCC 461, wherein it was held:-
"10. In service jurisprudence, the expressions
"superannuation", "voluntary retirement", "compulsory
retirement" and "resignation" convey different connotations.
Voluntary retirement and resignation involve voluntary acts on
the part of the employee to leave service. Though both
involve voluntary acts, they operate differently. One of the
basic distinctions is that in case of resignation it can be
tendered at any time, but in the case of voluntary retirement,
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it can only be sought for after rendering the prescribed period
of qualifying service. Another fundamental distinction is that
in case of the former, normally retiral benefits are denied but
in case of the latter, the same is not denied. In case of the
former, permission or notice is not mandated, while in the
case of the latter, permission of the employer concerned is a
requisite condition. Though resignation is a bilateral concept,
and becomes effective on acceptance by the competent
authority, yet the general rule can be displaced by express
provisions to the contrary."
14. The findings of the Apex Court in these judgments highlighted that
there is a material distinction between the concept of "resignation" and
"voluntarily retirement" and while holding that pension schemes do form
beneficial legislation, it cannot run contrary to the express term of the
provisions.
15. Upon consideration of the entire facts pleaded and also upon due
consideration of the various judgments pronounced, it is held that, where an
employee has resigned from service there arises no question of whether he
has in fact, voluntarily retired or resigned. The decision to resign is
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materially distinct from a decision to seek voluntarily retirement. Decision to
resign results in the legal consequence that flow from resignation under
applicable provisions. These consequences are distinct from consequences
flowing from voluntarily retirement at the two may not be substituted for
each other based on a length of an employees' tenure.
16. In the facts of the present case, there is no denial that the
employee had resigned and submitted her application for resignation on
12.01.2012, the said resignation was submitted on medical grounds which is
apparent from the resignation letter itself. The said resignation letter was
accepted on 28.03.2012. Although she represented before the authority
seeking pension by representation dated 03.06.2012, which was replied by
the Bank on 07.06.2012, and the writ petition was came to be filed only in
the year 2017. The appellant sought to interpret the provisions of Regulation
22 (1) of the Pension Regulation, 1995. It was sought to be urged that the
forfeiture of past services as prescribed under Regulation 22 will apply in
cases of termination, removal or dismissal from service. But since she had
resigned on medical grounds it cannot be treated to be a resignation
simpliciter. That apart, she having completed 19 years 5 months 1 day which
is short of only 6 months and 29 days from the qualifying period of 20 years
necessary for voluntarily retirement, it cannot be concluded that she will opt
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for resignation without her service benefits.
Such interpretation in the face of the law laid down by the Apex Court
cannot be accepted. That apart there is no explanation by the appellant as
regards the delay of about 5 (five) years in filing the writ petition.
17. Under these circumstances, we do not find any infirmity in the
views arrived at by the learned Single Judge. The Judgment of the learned
Single Judge does not require any interference in intra Court Appeal. The
appeal being devoid of any merit, the same is therefore dismissed.
18. No order as to cost.
JUDGE CHIEF JUSTICE
Comparing Assistant
