Kerala High Court
T.K.Uthaman vs State Bank Of India Sbi on 23 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
WP(C) NO. 12733 OF 2021
PETITIONER:
T.K.UTHAMAN
AGED 68 YEARS
S/O. KUTTAPPAN, THEKKINEZHATATH HOUSE (PANAD)
THATTAMPADY, KARUMALLOOR P.O, N. PARAVUR, PIN 683511
BY ADVS.
GEORGE CHERIAN (SR.)
K.S.SANTHI
ALEXY AUGUSTINE
LATHA SUSAN CHERIAN
GEORGE A.CHERIAN
RESPONDENT/S:
1 STATE BANK OF INDIA SBI
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, WITH
ITS CORPORATE OFFICE AT MADAME CAMA ROAD, NARIMAN
POINT, MUMBAI 400 021
2 STATE BANK OF INDIA
REPRESENTED BY ITS CHIEF GENERAL MANAGER, LOCAL HEAD
OFFICE, S.S KOVIL ROAD, THAMPANOOR, TRIVANDRUM 695 001
BY ADV P.RAMAKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
9.09.2021, THE COURT ON 23/9/2021 DELIVERED THE FOLLOWING:
WPC No.12733/2021 2
JUDGMENT
The petitioner retired from the service of State Bank of
Travancore on 31/3/2001 under the SBT Voluntary retirement scheme
(circular No.2/2001 dated 20/1/2001). Under the VRS scheme,persons who
have put in 15 years of service or have completed 40 years of age as on
31/1/2001, were eligible to claim the benefit of scheme and thereby,they
were entitled to various terminal benefits, including pension in terms of State
Bank of Travancore(Employees)Pension Regulation 1995. Subsequently,
State Bank of India, acquired by way of amalgamation, the business,
including the assets and liabilities of the State Bank of Travancore, by virtue
of the Provisions of State Bank of India Act, 1955 on 12/2/2017.
2. According to the petitioner,he had entered service of the State
Bank of Travancore on 1979 and has thereby put in 21 years and four
months of service. Though he was given various benefits, by Ext.P2
communication, he was informed that the petitioner had not completed 20
years of qualifying service as per regulation No.29 of the State Bank of
Travancore(Employees)Pension Regulations, 1995 and hence not entitled
for pension.This is challenged in this writ petition.
3. Petitioner contended that the Government of India by Ext.P3
communication dated 5/9/2000, had directed Indian Bank Associations to
work out modalities and to suggest amendments required to be made to the
pension regulations to ensure that employees with 15 years of service also
get the benefit of pension. By Ext.P4 communication, the Indian Banks
Association addressed all public sector banks to make necessary
amendments to regulation No.28, to extend the benefit to employees who
had retired under the special scheme. Though the Government of India
had directed the SBI to carry out necessary amendments in the pension
Regulations of Associate Banks of SBI by Ext.P5 communication, the State
Bank of India did not amend the State Bank of Travancore(Employees)
Pension regulations, 1995.
4. Another contention of the petitioner was that, by virtue of
Regulation 2(y) of pension Regulation 1995, read with Regulation 14, the
persons who have rendered minimum ten years of service on the date of
retirement, is entitled for pension. However, in the meanwhile, several
similarly situated persons who had availed the VRS scheme had
approached this court seeking the benefit of pension. Petitioner filed W.P.
(C) No.19093/2006 seeking the relief. In Ext.P6 counter affidavit, it was
stated that the petitioner had put in 18 years and 9 months service at the
time of retirement and in the light of Regulation 29 which prescribed
minimum 20 years of qualifying service, the petitioner was held to be not
entitled for the benefit. Accordingly, the writ petition was dismissed.
5. Yet another contention of the petitioner was that, Ext.P7 Bipartite
settlement dated 27/4/2010 was entered into between the Indian Banks
Association and the workmen on 27/4/2010. By virtue of the bipartite
settlement, the employees who had ceased to be in service after 29/9/1995
in case of Nationalized Banks, and in case of Associate Banks of State Bank
of India on 26/3/1996 on account of voluntary retirement under special
scheme after completing service for a minimum period of 15 years shall be
entitled to exercise the option to join the pension scheme, subject to the
terms and conditions. Thereafter, several retired employees of State Bank
of Travancore who were denied pension, moved this Court. By Ext.P8
judgment in W.P.(C) No.26563/2012, it was declared that the petitioners
therein and who were similarly situated as that of the petitioners were
entitled for pension under the bipartite settlement and also under the State
Bank of Travancore Voluntary Retirement Scheme. The bank challenged
the above judgment in W.A.No.947/2014 and connected cases, which
were dismissed by Ext.P9 judgment, confirming the judgment of the learned
Single Judge. Thereafter, the petitioner moved this court by filing W.P.(C)
No.19093/2006 which was dismissed by Ext.P10, holding that the petitioner
was not entitled for pension, though he had service of 18 years and 9
months as per Ext.P6 counter affidavit.
6. In the present writ petition, the petitioner claimed that he was not
aware of the proceedings initiated by others which resulted in Ext.P8 and
Ext.P9 judgment and was informed only recently about Ext.P9 judgments in
the writ appeal and that the persons having a minimum period of 15 years
service are eligible for pension. Hence, he submitted representation on
26/3/2019 as Ext.P11, which was not replied, is the grievance of the
petitioner.
7. The petitioner has approached this court in this writ petition
seeking a direction to the respondents to pay to the petitioner the
pensionary benefits due to him from the date of retirement, in the light of
Exts.P7 to P9, with interest at the rate of 12% per annum.
8. The respondents filed a joint statement contending that the
petitioner was not entitled for pension since he had not completed the
minimum qualifying service. Accordingly, he is not entitled for pension in the
light of State Bank of Travancore(Employees) Pension Regulation 1995. He
did not have the requisite qualifying service. It was also contended that the
petitioner had filed W.P.(C) No.19093/2006 five years after his retirement,
seeking pension and also challenging Regulation 17 of the State Bank of
Travancore(Employees) Pension Regulations, which prescribed 20 years of
qualifying service. The bank took the contention that the petitioner had not
satisfied the requirement of 20 years of qualifying service, which was
accepted by the court. The writ petition was dismissed by Ext.P10
judgment directing the petitioner to approach the Board of Governors of the
Bank, to regularise the loss of pay, if such remedy was available. It was
further contended that, though by Exts.P8 and P9 judgments, this court had
held that employees retired under VRS 2001, who have completed the
minimum eligibility criteria of 15 years, are entitled to pension, however, the
petitioner had not, at any point of time, sought any such relief or benefit. He
had claimed pension on the ground that he had completed 20 years of
service and even challenged Regulation 17 of the Pension Regulation to
canvas his claim for qualifying service of 20 years. Those contentions were
repelled by Ext.P10 judgment. Hence, at this length of time, petitioner
cannot claim that right which was not advanced till now, it was contended.
9. The petitioner claimed pension on the ground that , he was
governed by Regulation 14 of the SBT employees pension Regulations,
which qualify a person who had rendered minimum ten years of service on
the date of retirement. Petitioner relied on regulation 2(y) of the pension
Regulation and regulation 14 to substantiate it. At the outset, I am not
inclined to accept that contention, since that relates to normal retirement
under the SBT employees pension regulations, 1995. Evidently, the
regulation that applies in this case is regulation 29 and hence the above
contention is not sustainable.
10. The claim of the petitioner was set up on the premise that he had
completed 20 years of qualifying service. According to the petitioner, he
joined service in 1979 and accordingly, had put in 21 years and 4 months
service. It seems that the petitioner had availed leave on several occasions
during the above tenure. There is nothing on record to show that the leave
has been regularised. The claim of 20 years of qualifying service is set up
on the basis that, if the leave is regularised, he is entitled for the qualifying
service of 20 years. It seems that at no point of time earlier, the petitioner
had sought for regularisation of leave and no attempt was made by the
respondent also to get it sanctioned. Further, this plea of 20 years was
rejected by the learned Single Judge by Ext.P10 judgment. Hence it is to be
held that the petitioner has not attained the qualifying service of 20 years,
and as seen from the records, had put in 18 years and 9 months service.
Hence, the claim on that basis is also liable to be rejected.
11. Another ground on which the petitioner has set up his claim was
on the basis of instructions of the Government of India by Ext.P3
communication, directing the Indian Banks Association to extend the benefit
of pension to employees who have completed 15 years of qualifying service
and had availed VRS scheme. In turn, the Indian Banks Association by Ext.
P4 had directed all the public sector banks to make necessary amendments
to regulation 28. Contention of the petitioner was that, in the light of the
above, he was entitled for the pension. I am not inclined to accept this
contention, since Bank has not modified or amended its regulations limiting
the qualifying service to 15 years. Hence, benefit on that ground is also not
available.
12. The last ground, which appears to be more sustainable, is on the
basis of the bipartite settlement entered into between the two unions and the
management, as Ext.P7. There is no dispute that by Ext.P7, it was
extended to employees similarly situated as that of the petitioner. Such
employees had moved this court and by Ext.P8 judgment , it was held that
the condition that imposed minimum qualifying service of 20 years in clause
1(a)(v) was against the above bipartite settlement and hence was
quashed . Consequently, it was declared that the petitioners therein were
entitled to pension under Ext.P7 bipartite settlement. This was confirmed in
Ext.P9 judgment by the Division Bench. Hence, the eligibility of petitioners
and similarly situated persons to claim benefit, is confirmed.
13. However, though on facts, the petitioner is entitled for the benefit
of bipartite settlement and Exts.P8 and P9 judgments, the obstacle that
stands in the way of the petitioner is Ext.P10 judgment. The petitioner had
moved this court in W.P.(C) 19093/2006 on the single premise that he had
completed 20 years of qualifying service and Regulation 17 of the Pension
Regulation was ultra vires. This was rejected by the court. It has become
final, in the absence of any challenge.
14. Perusal of Ext.P10 shows that, the only ground on which the
petitioner claimed pension was that, he had attained minimum qualifying
service and even assuming that he had completed only 18 years and 9
months service, Regulation 17, in so far as it fixed the period of qualifying
service as 20 years, was ultra vires. Both the contentions were repelled by
Ext.P10, which has become final. No doubt, in that writ petition the
petitioner had not taken up a ground that he was entitled to pension by
virtue of Ext.P7 bipartite settlement and also in the light of Exts.P8 and P9
judgments. Absolutely, no such averments was made in the writ petition nor
any argument advanced on it. It seems that the petitioner was totally
ignorant about the bipartite settlement as well as the proceedings initiated by
similarly situated persons which ended in Exts.P8 and P9.
15. It is pertinent to note that, even though the petitioner was
absolutely negligent and the counsel appearing for him never advanced an
argument based on Ext.P7, the bank also neither brought it to the notice of
the court at the time of disposal by Ext.P10. Exts.P8 and P9 judgments
were rendered in the year 2014. Though the writ petition leading to Ext.P10
was filed much earlier, Ext.P10 judgment was rendered on 24/3/2015, much
after Exts.P8 and P9. Necessarily,the bank had an obligation to bring it to
the notice of the court . The bipartite settlement which was applicable to
parties and the binding precedents laid down by this court in the earlier
judgments in Ext.P8 by a learned Single Judge and confirmed by Ext.P9 by
the Division Bench of this Court was not brought to the notice of this court.
Hence, I am inclined to hold that Ext.P10, which was rendered without
noticing the binding precedent in Ext.P9, will not bar the petitioner from
claiming such right now. Since the petitioner did not raise a claim on the
basis of Ext.P7, nor had voluntarily and knowingly abandoned such a claim
in the earlier proceeding, it will neither estopp the petitioner from raising
such a claim nor bar him from raising such a contention in a subsequent
proceedings. Having considered this, I am not inclined to accept Ext.P10
as a bar in the petitioner setting up a claim on the basis of Ext.P7 in the
present writ petition.
16. In the above circumstances, I am convinced that the petitioner is
entitled to get the benefit of Ext.P7 bipartite settlement in the light of Exts.P8
and P9 judgments. It is so declared.
In the result, the writ petition stands allowed. It is declared that the
petitioner is entitled to get the benefits of the pension in the light of Ext.P7
settlement. Accordingly, the respondents shall calculate the pensionary
benefits due to the petitioner from the date of retirement in the light of
Exts.P8 and P9 and shall pay him the amounts due accordingly. Steps shall
be taken to issue him revised pension pay order. This exercise shall be
completed within a period of two months from the date of receipt of a copy of
this judgment.
Sd/-
SUNIL THOMAS
Judge
dpk
APPENDIX OF WP(C) 12733/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE APPLICATION FOR PENSION
Exhibit P2 TRUE COPY OF THE LETTER DATED 28-09-2001
ISSUED BY THE FIRST RESPONDENT
Exhibit P3 TRUE COPY OF THE LETTER DATED DATED 5-09-
Exhibit P4 TRUE COPY OF THE LETTER DATED 11-12-2000
ISSUED BY INDIAN BANKS ASSOCIATION.
Exhibit P5 TRUE COPY OF THE LETTER DATED 1-07-2002
ISSUED BY GOVERNMENT OF INDIA.
Exhibit P6 TRUE COPY OF THE COUNTER AFFIDAVIT IN
W.P(C) NO. 19093/2006 WITHOUT EXHIBITS
Exhibit P7 TRUE COPY OF THE MEMORANDUM OF SETTLEMENT
BETWEEN INDIAN BANKS ASSOCIATION AND THE
WORKMEN REPRESENTED BY DIFFERENT UNIONS
SIGNED ON 27-04-2010
Exhibit P8 TRUE COPY OF THE JUDGMENT IN W.P(C) NO.
26562/12 OF THIS HON'BLE COURT.
Exhibit P9 TRUE COPY OF THE JUDGEMENT DATED 17-09--
14 IN W.A NO. 937/14 OF THIS HON'BLE
COURT.
Exhibit P10 TRUE COPY OF THE JUDGEMENT DATED 24-03-
2015 IN W.P(C0 NO. 19093/2006
Exhibit P11 TRUE COPY OF THE LETTER DATED 26-3-2021
BY THE PETITIONER TO THE RESPONDENT
