Gujarat High Court
Central Bank Of India vs Kiritkumar Lallubhai Chauhan on 10 March, 2023
Bench: Hemant M. Prachchhak
C/LPA/156/2023 ORDER DATED: 10/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 156 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 21371 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/LETTERS PATENT APPEAL NO. 156 of 2023
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CENTRAL BANK OF INDIA
Versus
KIRITKUMAR LALLUBHAI CHAUHAN
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Appearance:
MR UDAY M JOSHI(380) for the Appellant(s) No. 1
MR NAVALDAN R LANGA(2943) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 10/03/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. This is an appeal by the appellant-Bank, challenging the
judgment and order passed by the learned Single Judge, Dated:
28.09.2022, in Special Civil Application No. 21371 of 2017, whereby,
the learned Single Judge quashed and set aside the impugned
communication dated 25.11.2010, issued by the appellant-Bank,
denying the pensionary benefits to the opponent-employee.
2. The brief facts of the case, leading to the filing of the present
appeal, reads thus;
The opponent-employee came to be appointed as a bank officer
by the appellant-Bank on 10.04.1978 and after rendering services for
about 31 years, the opponent-employee tendered his resignation on
C/LPA/156/2023 ORDER DATED: 10/03/2023
17.07.2009.
2.1 Thereafter, the concerned Branch Manager made
recommendations for acceptance of the resignation of the opponent-
employee on 16.08.2009.
2.2 Pursuant to the above, Senior Manager (HR) of the appellant-
Bank addressed a communication, Dated: 18.02.2010, to the Regional
Manager, Baroda, wherein, it was mentioned that the appellant-Bank
had accepted the resignation of the opponent-employee.
2.3 After completing the procedural formalities, the appellant-Bank
accepted the resignation of the opponent-employee on 30.04.2010 and
he was relieved from the services, accordingly.
2.3.1 It appears that, before the acceptance of the resignation of the
opponent-employee on 30.04.2010, the Indian Banks Association had
entered into a settlement with the employees' union on 27.04.2010 for
providing another option of pension to the employees, who did not opt
for Pension Scheme, when the same was introduced in the year 1995.
2.3.2 The All India Banks Association also had issued circulars to the
banks for early implementation of the said Joint Note. It appears that the
Board of Directors of the appellant-Bank also accorded approval to take
steps, as per the aforesaid circular, in its meeting held on 28.08.2010.
Not only that, the Board of Directors had also instructed the Bank to act
upon the Joint Note vide its communication dated 10.08.2010.
2.4 In view of the signing of the Joint Note, the opponent-employee
filled-up forms for opting for pension scheme. However, the appellant-
C/LPA/156/2023 ORDER DATED: 10/03/2023
Bank denied the said benefit to the opponent-employee vide its
communication dated 25.11.2010.
2.5 Being aggrieved with the same, the opponent-employee filed
Special Civil Application No. 21371 of 2017, wherein, the learned Single
Judge passed the impugned judgment and order dated 28.09.2022.
Hence, the present appeal.
3. Learned Advocate, Mr. Joshi, appearing for the appellant-Bank
mainly submitted that the opponent-employee tendered his resignation
on 17.07.2009 and he was to be relieved from the service, as
mentioned in the communication issued by the appellant-Bank, from the
date that may be intimated to the opponent-employee in the future.
Accordingly, the opponent-employee was intimated vide communication
dated 30.04.2010 that his resignation has been accepted and he is
relieved from the service. It was, thereby, submitted that the present is
the case of resignation by the opponent-employee.
3.1 In support of his submission, learned Advocate, Mr. Joshi, placed
reliance on Regulation 22 of the Central Bank of India (Employees')
Pension Regulations, 1995 ('Regulation of 1995' in brief), which
provides that in case of resignation or dismissal or removal or
termination of services of an employee, there shall be forfeiture of the
entire past service and consequently, dis-entitlement to pension in case
of such an employees.
3.1.1 Learned Advocate, Mr. Joshi, therefore, submitted that, since, the
opponent-employee had tendered his resignation on 17.07.2009, he is
not entitled to claim or get the benefit of the Joint Note, which was
C/LPA/156/2023 ORDER DATED: 10/03/2023
signed on 27.04.2010.
3.2 Learned Advocate, Mr. Joshi, invited the attention of this Court to
the order passed by the learned Single Judge of this Court in Special
Civil Application No. 14293 of 2011, Dated: 12.03.2018, and placed
reliance on the observations made in Paragraphs- 25 and 25.1, thereof,
which reads as follows;
"25. For the said purpose it is necessary
to keep in focus that (i) the petitioner,
vide his letter dated 29.6.2009,
tendered resignation and he severed
his relation with the bank by
means of resignation/ by submitting
resignation; and that (ii) the bank
accepted said resignation vide order
dated 8.10.2009.
25.1 Thus, the petitioner's case is a case
of "cessation of service" on
account of "resignation" and not
by way of "retirement on
superannuation" or even "voluntary
retirement before attaining age for
superannuation."
3.2.1 Learned Advocate, Mr. Joshi, also placed reliance on the decision
of the Hon'ble Apex Court, rendered in the case of 'POWER FINANCE
CORPORATION LIMITED VS. PRAMOD KUMAR BHATIA', reported
in (1997) 4 SCC 280, more particularly, Paragraphs-11 to 15, thereof.
3.2.2 After referring to the aforesaid decision, learned Advocate, Mr.
Joshi, submitted that in the aforesaid case, the Hon'ble Apex Court has
clearly pointed out the difference between 'Retirement' and
C/LPA/156/2023 ORDER DATED: 10/03/2023
'Resignation'.
3.3 Learned Advocate, Mr. Joshi, therefore, submitted that the
impugned order passed by the learned Single Judge be quashed and
set aside and the present appeal be allowed.
4. On the other hand, learned Advocate, Mr. Langa, submitted that
the Joint Note was signed by the employer and the union of the
employees on 27.04.2010, i.e. before the acceptance of the resignation
of the opponent-employee.
4.1 It was submitted that the opponent-employee tendered his
resignation on 17.07.2009 and the same was accepted on 30.04.2010,
meaning thereby, the opponent-employee was in service, as on
27.04.2010, and therefore, he would be entitled to get the benefits of
the pension scheme of the appellant-Bank.
4.2 Learned Advocate, Mr. Langa, hence, submitted that the learned
Single Judge committed no error, while passing the order dated
28.09.2022 and therefore, the present appeal be dismissed.
5. We have heard the learned Advocates for the parties and we
have also perused the material placed on record and the same would
reveal that the opponent-employee joined services with the appellant-
Bank in the year 1978 and he continued to serve with the appellant-
Bank, till the date of acceptance of his resignation, i.e. upto 30.04.2010.
Thus, the opponent-employee has put in about 31 years' service,
whereas, for claiming or getting the benefit of pension, the qualifying
service is 20 years, as per the aforesaid regulation.
C/LPA/156/2023 ORDER DATED: 10/03/2023
5.1 Here, it is pertinent to note that the petitioner tendered his
resignation, for personal reasons, on 17.07.2009. However, the
appellant-Bank vide its communication dated 18.10.2010, intimated the
opponent-employee that he shall be relieved from the service on the
date that may be communicated to him in the future. Subsequently, the
opponent-employee was intimated vide communication dated
30.04.2010 that his resignation was accepted and he is relieved from
the service with effect from the date of communication, i.e. 30.04.2010.
5.2 From the record, it is revealed that before the resignation of the
opponent-employee was accepted by the appellant-Bank on
30.04.2010, the appellant-Bank had signed Joint Note with the
employees' union on 27.04.2010. As per the said Joint Note, another
opportunity was to be given to the employees to join the pension
scheme, who could not opt for pension scheme, earlier. Clauses-2 (a)
and 2(b) of the said Joint Note, provides thus;
"(2)
(a) were in the service of the bank prior
to 29 th September 1995 in case of
Nationalized Banks / 26 th March 1996 in
case of Associate Banks of State Bank of
India and continue in the service of the
bank on the date of this Joint Note;
(b) exercise an option in writing within
60 days from the date of offer, to become
a member of the Pension Fund and
(c) authorize the Trust of the Provident
Fund of the bank to transfer the entire
contribution of the bank along with
interest accrued thereon to the credit of
C/LPA/156/2023 ORDER DATED: 10/03/2023
the Pension Fund."
5.3 From the above it is clear that as on the date of the signing of the
Joint Note, i.e. on 27.04.2010, the opponent-employee was in service of
the appellant-Bank and therefore, the opponent-Bank had sent a
communication dated 22.09.2010 to the opponent-employee, intimating
him that, since, he is eligible for another option for pension, as per the
Joint / Settlement Note dated 27.04.2010, he may fill-up the necessary
form and send the same to the appellant-Bank on, or before,
08.11.2010. Not only that, the appellant-Bank also deducted an amount
of Rs.90,440/- being the 2.8 times of the Revised Pay of the opponent
employee, as on 7th November, from the arrears of Wage Revision on
30.06.2010 towards the contribution of the opponent-employee to the
funding gap for another option for pension. A copy of the
communication dated 22.09.2010 is produced at Page-30 of the
compilation.
5.4 Upon the receipt of the letter dated 22.09.2010, the opponent-
employee filled-up the requisite forms, exercising his option for pension
scheme, and sent it to the appellant-Bank. However, the appellant-Bank
vide impugned communication dated 25.11.2010 rejected the request of
the opponent-employee to grant the benefit of pension scheme,
intimating him that the same is available to certain category of
employees only. Which clearly appears to be unjust and improper on
the part of the appellant-Bank.
5.5 At this stage, it would be relevant to refer to the observations
made by the Apex Court at Paragraph-7 in the case of 'POWER
FINANCE CORPORATION LIMITED ' (Supra), which reads as under;
C/LPA/156/2023 ORDER DATED: 10/03/2023
"It is now settled legal position that
unless the employee is relieved of the
duty, after acceptance of the offer of
voluntary retirement or resignation, jural
relationship of the employee and the
employer does not come to an end. since
the order accepting the voluntary
retirement was a conditional one, the
conditions ought to have been complied
with. Before the conditions could be
complied with, the appellant withdrew the
scheme. consequently, the order accepting
voluntary retirement did not become
effective. Thereby no vested right has
been created in favour of the respondent.
The High court, therefore, was not right
in holding that the respondent has
acquired a vested right and, therefore,
the appellant has no right to withdraw the
scheme subsequently."
5.5.1 From the aforesaid observations made by the Apex Court, it
becomes clear that unless the employee is relieved of the duty, after
acceptance of the offer of voluntary retirement or resignation, jural
relationship of the employee and the employer does not come to an
end.
5.6 In the case on hand, as observed herein above, the opponent-
employee tendered his resignation on 17.07.2009, whereas, his
resignation was accepted or he was relieved from the service with effect
from 30.04.2010. Thus, as on the date of the signing of the Joint Note,
i.e. on 27.04.2010, the opponent-employee was very much in service
and therefore, the reliance placed on the Regulation 22 of the
Regulation of 1995 by the learned Advocate, Mr. Joshi, is
C/LPA/156/2023 ORDER DATED: 10/03/2023
misconceived.
5.7 It may also be noted that, since, the learned advocate appearing
for the appellant-Bank was not remaining present before the learned
Single Judge, the Court was compelled to proceed with the matter in the
absence of the learned advocate for the appellant-Bank. Thus, the
reliance placed on the decision of the Apex Court by the learned
Advocate would render no assistance to the case of the appellant-Bank.
5.8 Similarly, the reliance placed on by the learned Advocate, Mr.
Joshi, on the decision of the learned Single Judge of this Court in
Special Civil Application No. 14293 of 2011, Dated: 12.03.2018, also
does not help the case of the appellant-Bank.
6. In the result, the present appeal fails and is DISMISSED,
accordingly. The judgment and order passed by the learned Single
Judge, Dated: 28.09.2022, in Special Civil Application No. 21371 of
2017 is, hereby, confirmed.
(VIPUL M. PANCHOLI, J)
(HEMANT M. PRACHCHHAK,J)
UMESH/-
