K.A.Padmanabhan vs Syndicate Bank
2022 Latest Caselaw 11181 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                 &
           THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
 FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
                        WA NO. 1957 OF 2019
  AGAINST THE JUDGMENT IN WP(C) 17382/2018 OF HIGH COURT OF
                              KERALA
APPELLANT/PETITIONER:

            K.A.PADMANABHAN,AGED 67 YEARS
            S/O.LATE ARAN, KUZHIPALLIOPARAMBU HOUSE,
            CHENNAMANGALAM P.O., NORTH PARAVUR,
            PIN-683512.
            BY ADVS.
            GEORGE CHERIAN (SR.)
            SMT.K.S.SANTHI
            SMT.LATHA SUSAN CHERIAN


RESPONDENTS:

    1       SYNDICATE BANK
            HEAD OFFICE MANIPAL, PIN-576104,
            REPRESENTED BY ITS MANAGING DIRECTOR.
    2       THE GENERAL MANAGER (HR),
            SYNDICATE BANK, HEAD OFFICE MANIPAL,
            PIN-576104.
            BY ADV SRI.R.S.KALKURA



     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.11.2022,
THE COURT ON 2.12.2022 DELIVERED THE FOLLOWING:
 WA No.1957 of 2019

                                        2



     A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ
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                                WA No.1957 of 2019
                          --------------------------------------------
                   Dated this the 2nd day of December, 2022


                                  JUDGMENT

Mohammed Nias.C.P.,J

The above appeal is filed by the writ petitioner, aggrieved

by the dismissal of the writ petition that challenged Ext.P8 order

passed by the respondent-Bank declining the claim of the petitioner

to be enrolled in the pension scheme.

2. The relevant facts necessary for the disposal of the writ

appeal are as follows:-

The writ petitioner retired from service of the respondent-Bank on

30.04.2010, Earlier a pension scheme was introduced by the bank on

29.09.1995 and employees were entitled to be paid pension on

surrender of contributory provident fund balance, to the pension fund

created for that purpose. However, the petitioner did not join the

same. Thereafter, by Ext.P1, a settlement was entered into between

the Union and the India Banks Association providing for a scheme for WA No.1957 of 2019

pension to its employees subject to the conditions mentioned therein.

Ext.P2 Circular was issued thereafter on 16.09.2010 providing for

the conditions for submission of the revised option for pension.

Accordingly, the petitioner submitted his option on 17.10.2010, as

directed in Ext.P2 Circular. The conditions while opting for pension

are as follows:-

"(1) Exercise an option in writing within 60 days from 17.09.2010 i.e., on or before 15.11.2010 to become a member of pension fund (2) Refund within 30 days after expiry of the said period of 60 days i.e., on or before 15.12.2010 the entire amount of Bank's contribution to the Provident Fund (including Management portion of NRW, if any, with interest ) and interest accrued thereon received by the employee on retirement and the differential portion of the PF received, if any, while implementing the 9th BPS/Joint Note together with 2.8 times of their revised "pay" for the month of November 2007."

As stated earlier, the petitioner had opted for the pension vide its

request letter dated 17.10.2010, which was within the date for

opting the scheme for pension. However the employee did not comply

with Condition No.2, namely, to refund the entire amount of Bank's

contribution to the provident Fund (including Management portion

of NRW, if any, with interest ) and interest accrued thereon received

by the employee on retirement and this was cited as a reason for not

making the petitioner a member of the pension scheme. His request

was turned down by Annexure P5, which was challenged before this

Court in WP(C)No.7321 of 2014, where this Court found that though

the entire EPF dues including the employers contribution and WA No.1957 of 2019

employees contribution with interest therein, had been deposited in

an account with the Syndicate Bank itself, there was delay in

making the refund due to some cognitive impairment due to mental

ailment suffered by the petitioner and therefore, the case requires

sympathetic consideration by the Bank and the Bank was directed to

consider whether he can be enrolled prospectively in the pension

fund on the refund of the amounts of employers contribution as

required in the scheme, as an exceptional case. The bank after

consideration of the same passed Ext.P8 order dated 27.12.2017

again citing the same reason that the refund of the contribution as

stated above was not remitted before 25.12.2010 and that not having

done, the petitioner cannot be enrolled in the scheme. It was

however, conceded that the petitioner had opted for the scheme,

within time and also paid the amount of Rs.62,440/- equal to 2.8

times of the revised pay for the month of November 2007, which

were the two other stipulations to be complied by him.

3. In the writ petition, the petitioner contended that Ext.P8

was passed mechanically without considering the spirit of Ext.P7

judgment and despite the High Court directing a sympathetic

consideration the same was not done. It is also his contention that

the twin conditions mentioned in the order to be complied with by WA No.1957 of 2019

persons retired on or after 24.7.2010 are applicable only to the

employees who retired prior to 24.7.2010, therefore, the same is not

applicable to the petitioner and the findings in Ext.P8 that the refund

of employees contribution is a condition precedent for becoming the

member of the pension scheme is incorrect. It is also his argument

that the petitioner had already authorised the Bank to transfer the

entire banks contribution of PF along with interest accrued and the

amounts were deposited with the bank itself under Ext.P3 as a fixed

deposit. It is his further argument that Ext.P1 being a settlement

under the Industrial Disputes Act, is binding on parties and no terms

can be added in Ext.P2, which are absent in Ext.P1. The very

intention behind Ext.P1 settlement was to provide pensionary

benefits to all classes of bank employees who have not opted for

pension in 1995 and as such the present stand of the Bank is not only

illegal but unreasonable and on these grounds petitioner prayed for

quashing Ext.P8 and also to declare that the petitioner is entitled for

the pensionary benefits and for a mandamus to direct the

respondents to offer the same.

4. The Bank filed a counter affidavit contending that the

last date of exercising option under the second pension scheme was

15.12.2010, which he ought to have complied and that not having WA No.1957 of 2019

been done, the petitioner could not be enrolled in the scheme. The

fact that the petitioner operated a Fixed Deposit is not relevant since

the bank could not have appropriated the same towards its

management contribution. It is conceded in the counter affidavit that

the petitioner retired from services of the bank after putting in 36

years of service. In short, the findings in Ext.P8 were sought to be

sustained.

5. Learned Single Judge, who considered the matter

accepted the contention of the bank that the petitioner did not

comply with one of the conditions in Ext.P2 circular, namely, clause 3

thereof, and therefore, Ext.P8 cannot be held to be illegal. Learned

single Judge also directed the respondents to release the amount of

Rs.62,440/- which was recovered by the Bank from the pay revision

arrears due to the petitioner with effect from 23.6.2010 with

applicable interest within a period of three months.

6. We have heard Sri.George Cherian, the learned senior

counsel for the appellants and Sri.R.S.Kalkura, the learned standing

counsel for the respondent - Bank.

7. The learned senior counsel reiterated the contentions WA No.1957 of 2019

taken in the writ petition and submitted that the petitioner had opted

for the scheme and thus expressed his willingness and had also given

the authorisation to appropriate the amounts, which he had put in a

fixed deposit in the very same branch. Admittedly, two of the

conditions are complied with by the petitioner and he has expressed

his readiness and willingness to comply with the third condition as

well. It is his further argument that the circumstances under which

the payment was delayed was beyond his control and specifically

considered by this Court in Ext.P7 judgment and even the said

findings of this Court has been ignored while passing Ext.P8 order. It

is his further argument that the schemes introduced subsequently

were not made applicable to the petitioner. However, by the

subsequent schemes all the employees of the bank including those

who were compulsorily retired officers pursuant to disciplinary

proceedings and punishment were offered the pension scheme and

hence there was no justification at all to deny the benefits to the

petitioner.

8. The learned standing counsel for the Bank,

Sri.R.S.Kalkura on the other hand submits that the petitioner not

having complied with the conditions of the scheme, which was a

condition precedent for enrolling him in the scheme, cannot have a WA No.1957 of 2019

complaint about Ext.P8. It is also submitted that several employees

who did not opt within the time granted were refused the benefit

and therefore the petitioner also should be denied the same.

9. We have heard the arguments on both sides and perused

the pleadings and the documents on record.

10. The conditions for enrolling of the pension scheme

are as extracted above. The fact that the petitioner has opted for the

scheme and also complied with the requirement of making the

contribution from the pay revision arrears is not disputed. It is also

evident that towards compliance with the third requirement, viz.,

refund within 30 days after expiry of the said period of 60 days i.e.,

on or before 15.12.2010 the amount required for the same was made

available by the petitioner and the same is evident from Ext.P3

demand draft maintained with the same branch. The petitioner had

also given Ext.P2 authorisation clearly authorising the bank to

transfer the entire contribution with the bank along with the entire

interest accrued to the credit of the pension fund. Ext.P4 letter sent

by the petitioner to the Bank on 25.1.2011 points out that he was laid

up with sickness and that he belongs to SC/ST community coming

from a lower middle class family and he has two unmarried WA No.1957 of 2019

daughters and wife who are fully dependent on him. He had

categorically stated in the said letter that the required amount of

EPF was held in the branch as fixed deposit. Ext.P4 was forwarded by

the Branch Manager to the General Manager with a request to

consider the same favourably obviously realising the truth of the

request in Ext.P4. It was the said request which is rejected by Ext.P5.

We also note that the Bank had come with a subsequent circular

dated 26.12.2012 extending the option to join the scheme even to

those who did not opt for pension earlier and who took voluntary

retirement on or after 29.9.1995. Still further, by Ext.P10 bank

extended the benefit of joining the scheme to those who had

compulsorily retired by way of punishment. Thus, it can be seen that

no class of employees were left out in the schemes covered by

Exts.P1 and P2 and later by Exts.P6 and P10. That being the

position, the bank was totally unjustified in not heeding to the

request of the petitioner in Ext.P4.

11. As stated earlier, the petitioner had opted for the

scheme and had substantially complied with the terms of the

scheme. This Court had found in Ext.P7 judgment, which has become

final, that it was on cognitive impairment due to the mental ailment

suffered by the petitioner that he could not take steps to actually WA No.1957 of 2019

transfer the amount, which was held in fixed deposit under the very

same branch for which he had already given authorisation, and

therefore the case merits a sympathetic consideration. Even the

judgment of this Court was disrespected while passing Ext.P8 order

wherein the officer who passed the same holds that no sympathetic

consideration is warranted. We find the said act and attitude of the

bank to be absolutely unacceptable. The petitioner and his family

members had run from pillar to post to get enrolled in the pension

scheme as is revealed by the bank itself in the counter affidavit. The

petitioner had put in 36 years of service in the bank with no

complaints whatsoever and alleging non compliance of one condition

out of the three, the petitioner was not given the relief. Though, we

find force in the argument of the learned counsel for the appellant

that Ext.P1 settlement cannot be varied by Ext.P2, we are not

pronouncing finally on the same as it is not required in the facts of

the case. Nor do we consider it necessary to consider the entitlement

of the appellant to the subsequent schemes Exts.P6 and P10.

12. The reason for the delay of around 45 days is on

account of the ailment of the appellant which again is beyond his

control. The alleged noncompliance of one of the conditions could

not have resulted in such dire consequences for the appellant more WA No.1957 of 2019

so, when the entire amount required for compliance was already in a

fixed deposit with the bank and the appellant had authorised the

bank to appropriate towards his contribution to the bank under the

pension scheme. We find the stand of the bank in Ext.P8 to be

completely arbitrary, unreasonable, unfair and unjust. The manner in

which the judgment of this Court was treated also leaves much to be

desired. By tendering almost the exact amount payable by the

appellant as contribution and not utilising the said amount for any

other purpose, it has to be taken that the appellant had shown his

readiness and willingness to part with the said amount for getting

enrolled in the pension scheme as he had also given an authorisation

to the Bank which is clear from Ext.2. The pension scheme itself is a

beneficial scheme as is clear from Exts.P1 and P2 and the later

schemes Exts.P6 and P10 wherein the central idea was to include all

the employees including those who took voluntary retirement scheme

as also those who were imposed with a punishment of compulsory

retirement. In such a scheme the attempt of the employer bank

ought to have been to help the appellant to get enrolled in the

scheme and not to defeat the same on hyper technicalities. Treating

the appellant worse than a person who was punished in a disciplinary

proceedings leading to his voluntary retirement, to put it mildly is

highhanded and totally disproportionate.

WA No.1957 of 2019

13. In the result, the judgment of the learned single

Judge is set aside and WP(C)No.17382 of 2018 is allowed. It is

declared that the petitioner is entitled for being enrolled in the

pension scheme pursuant to his application dated 17.10.2010 and

entitled to all the benefits of such enrollment from that date. Ext.P8

is set aside. The respondents will take appropriate steps to enroll the

petitioner in the pension scheme after appropriating the money in his

fixed deposit towards compliance of the third condition namely, the

entire amount of Bank's contribution to the Provident Fund

(including Management portion of NRW, if any, with interest ) based

on authorisation given by the petitioner as if he has complied with all

the conditions with effect from the date of his application and pay all

the consequential benefits with interest at the rate of 9% per annum

for the arrears till actual payment and continue to pay the monthly

pension hereafter without default.

The writ appeal is allowed as above.

Sd/- A.K.JAYASANKARAN NAMBIAR, JUDGE

Sd/- MOHAMMED NIAS C.P., JUDGE dlk 29.11.2022 WA No.1957 of 2019

APPENDIX OF WA 1957/2019

PETITIONER'S ANNEXURES ANNEXURE I TRUE COPY OF PENSION FUND FROM 2010 ONWARDS UNDER RTI ACT FROM THE RESPONDENT

RESPONDENTS ANNEXURES EXHIBIT R1A TRUE COPY OF THE RELEVANT PORTIONS OF THE JOINT NOTE DATED 27.4.2010

EXHIBIT R1B TRUE COPY OF THE LETTER DATED 25.11.2010 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER DEMANDING REFUND OF THE AMOUNT.

EXHIBIT R1C TRUE COPY OF THE REPRESENTATIONNDATED 25.1.2011 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT.

EXHIBIT R1D TRUE COPY OF THE REPRESENTATION DATED 9.5.2011 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT.

EXHIBIT R1E TRUE COPY OF THE COMMUNICATION DATED 7.2.2011

EXHIBIT R1F TRUE COPY OF THE COMMUNICATION DATED 4.6.2011

EXHIBIT R1G TRUE COPY OF THE REPRESENTATION DATED 2.1.2013 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT BANK WA No.1957 of 2019

EXHIBIT R1H TRUE COPY OF LETTER NO.64/0012/HO/SWD/PEN/2010 DATED 18.1.2013 ISSUED BY THE SECOND RESPONDENT BANK TO THE PETITIONER.