State Bank Of India vs Smt. Prem Kunwar Parihar
2023 Latest Caselaw 5465 MP

                               1

     IN THE HIGH COURT OF MADHYA PRADESH
                       AT I N D O R E
                           BEFORE
         HON'BLE SHRI JUSTICE SUSHRUT ARVIND
                  DHARMADHIKARI
                               &
     HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA

                  ON THE 3rd OF APRIL, 2023

                  WRIT APPEAL No. 89 of 2020

BETWEEN:-
   STATE BANK OF INDIA, CHAIRMAN, STATE BANK OF INDIA,
1.
   CENTRAL OFFICE, NARIMAN POINT, MUMBAI (MAHARASHTRA)
   ASSISTANT GENERAL, THROUGH MANAGER, STATE BANK OF
   INDIA, PENSION PROVIDENT FUND AND GRATUITY DEPARTMENT,
2.
   LOCAL HEAD OFFICE, STATE BANK OF INDIA, THIRD FLOOR
   HOSHANGABAD ROAD, BHOPAL (MADHYA PRADESH)
   ASSISTANT GENERAL, THROUGH MANAGER, STATE BANK OF
3. INDIA, REGIONAL OFFICE, STATE BANK BUILDING, BUDHWARIA,
   UJJAIN (MADHYA PRADESH)
   BRANCH MANAGER, STATE BANK OF INDIA, BOTALGANJ BRANCH,
4.
   NEEMUCH ROAD, MANDSAUR (MADHYA PRADESH)
                                               .....APPELLANTS

(SHRI PIYUSH MATHUR,      SENIOR ADVOCATE WITH      MS.   KIRTI
PATWARDHAN, ADVOCATE)


AND
SMT. PREM KUNWAR PARIHAR S/O LATE HAMIR SINGH PARIHAR,
BALIJI TIFFIN CENTER, DOSHI BUILDING ABHINANDAN MAIN,
MANDSAUR (MADHYA PRADESH)
                                               .....RESPONDENT

(SHRI R. B. SINGH, ADVOCATE)
__________________________________________________________
                                     2
       This appeal coming on for admission this day, JUSTICE

SUSHRUT ARVIND DHARMADHIKARI passed the following:

                                ORDER

Heard finally with the consent of both the parties.

2. This writ appeal filed under Section 2(1) of of the Madhya Pradesh Uccha Nyayalaya Ki Nyayapeeth Ko Appeal Adhiniyam, 2005 assails the order dated 17/10/2019 passed in W.P. No.18033/2017 by which the writ petition filed by the respondent has been allowed.

3. The respondent had filed a writ petition No.18033/2017 seeking following reliefs :-

"A. To direct to respondents to sanction and pay the family pension since 27/10/2015, within specified time alongwith interest as per bank rate and to pay regular family pension and to pay arrears of pension of husband since 24/10/2010 till 27/10/2015 and to quash removal from service order dated 12/10/2010 and to quash appeal rejection order from removal from service, if any issued by the respondents and to quash family pension rejection order dated 02/04/2017 and to quash family pension rejection order dated 20/05/2017 and to quash family pension rejection order dated 14/07/2017. Respondents be directed to pay entire amount of pension and family pension (alongwith interest @ 18% per month since 24/10/2010 till the date of actual payment made to petitioner) and to pay salary and all consequential benefits since 24/10/2010 till actual payment (alongwith interest @ 18% per month since 24/10/2010 till the date of actual payment made to petitioner).

B. To award the costs of this petition from the respondents. C. Any other relief which this Hon'ble Court may deem fit in the facts and circumstances of the case in favour of petitioner and against the respondents."

4. The learned Single Judge allowed the writ petition with the following directions :-

"The respondents/Bank have removed the husband of the petitioner from the services with a condition that he shall be entitled for pension and gratuity etc. The Bank has not removed him from his services forfeiture the pensionary benefits. The "proviso" has wrongly been applied in the case of the petitioner. There is no question of removal from the service after completion of age of 60 years. The Bank's employee/officer person can be terminated or removed from the service only before the age of retirement and in the case of the petitioner, while passing the order of removal of service, he has been held entitled to get the pension and other pensionary benefits. As per proviso, only after attaining the age of 60 years, in case of retirement from service the employee is entitled for the pension, but in the case of removal/termination before attaining the age of superannuation, the discretion lies with the Bank either to forfeit the pensionary benefits or grant the benefit with removal from service. In the present case, the husband of the petitioner was removed from the services with a condition that he will get the pensionary benefits. Therefore, irrespective of his age, at the time of removal, he would entitled to get the pension after completion of age of 60 years and irrespective to the fact that he was in service or not. Therefore, the respondent have given the wrong interpretation of Clause 22(i)(a) of the SBI Employees Pension Fund Rules and denied the pension to Late Hamir Singh Parihar and family pension to the petitioner. Hence, the impugned order is unsustainable in law.

Learned counsel appearing for the respondents submits that as per letter dated 08.11.2001, the employees entitled is for pensionary benefit, if he surrenders the gratuity amount received by him on his retirement from the Bank's service. The husband of the petitioner was paid the gratuity amount after removal from the service which the petitioner is liable to return then only she can claim the pensionary benefit. There is no dispute about the aforesaid provisos applicable to the bank employees. If the petitioner is willing to get pensionary benefit for her husband as well as for herself, she is liable to return the gratuity amount to the Bank. Hence, the impugned order is set aside. The

respondents are directed to calculate the arrears of pension and finalize the family pension of the petitioner and the same shall be released to the petitioner subject to surrender of gratuity amount. The entire exercise be completed within a period of three months from the date of this order.

With the aforesaid, the petition stands allowed. No order as to cost.

CC as per rules."

5. Brief facts of the case are that husband of respondent Late Hamir Singh Parihar was appointed as Bank Guard on 01/07/1975 in Botalganj - Branch, District-Mandsaur. He was convicted vide judgment dated 05/08/2010 passed in Criminal Case No.43/2010 for the offence punishable under Section 304(B) and 34 of the IPC. On account of conviction, he was removed from the bank services vide order dated 12/10/2010 with retrospective effect i.e. with effect from 05/08/2010. Being aggrieved by the aforesaid, he preferred an appeal against the order of removal before the appellate authority on 11/11/2010, however the husband of the respondent expired on 27/10/2015, meaning thereby, the prosecution proceedings stood closed. After the death of husband, the respondent submitted an application for releasing of arrears of pension, gratuity and family pension. Vide impugned order dated 02/04/2017, the appellants rejected the representation on the ground that as on 05/08/2010 Late Hamir Singh Parihar was aged about 59 years, 9 months and 12 days. Since he had not completed 60 years of age, therefore, he was not entitled for pension and accordingly, the respondent is also not entitled for family pension.

6. Being aggrieved by the direction appellants has preferred this writ appeal on the ground that the learned Single Judge had failed to

appreciate that the respondent's Late husband namely - Hamir Singh Parihar was discharged from service because he was convicted for the offence involving moral turpitude. Learned Single Judge had failed to appreciate that as per rule 22(i)(a) of the Pension Rules, the husband of respondent was in employment as on 22/05/1998, he would have been entitled for the pension only on attainment of 60 years of age, whereas aforesaid requirement was not fulfilled by the husband of respondent, therefore, he is not entitled for pension. Thirdly it was contended that the learned Single Judge had erred in coming to the conclusion that employee will be entitled for pension on surrender of the amount of gratuity, since there is no rule which postulates such kind of directions.

7. Learned senior counsel appearing for the appellants has contended that the husband of respondent was permitted to withdraw his gratuity amount and he was satisfied. In the meanwhile he died on 27/10/2015 and thereafter on 13/10/2016 the wife i.e. respondent filed an application for grant of family pension and other benefits. The application was rejected on 02/04/2017 on the ground that on the date of relieving of service i.e. on 05/08/2010, the husband had not aged 60 years of age. Learned senior counsel for the appellants further contended that the learned Single Judge erred in directing the payment of family pension and other benefits to the respondent. More over there is no provision under the rules to refund the gratuity and thereafter pension would start. On these grounds alone, writ appeal deserves to be allowed.

8. Per contra, learned counsel for the respondent opposed the prayer and submitted that the order passed by learned Single Judge needs no interference. However, on a query of this Court as to whether the respondent has deposited the gratuity amount, learned counsel submitted that he readily agreed that there is no such rules which provides refund of gratuity and thereafter the pension would start. He fairly stated that till

date no amount of gratuity has been deposited with the appellants.

9. Heard learned counsel for both the parties.

10. Appellants - Bank has framed certain regulations in exercising of the powers conferred by sub-section (1) readwith clause (o) of sub- section (2) of Section 50 of State Bank of India Act, 1955 (in short "the Act, 1955).

11. Rule 17 of the Act, 1955 reads as under :-

"17. Accrual of pension. - The pensions shall begin to accrue on the first day succeeding that of retirement and shall be payable monthly to the beneficiary personally or to his order when supported by a life certificate bearing his signature and attested by a Magistrate or Banker [or by a digital life certificate through video-based identification.]"

12. Rule 20 of the Act, 1955 reads as under :-

"20. Reckoning of service for pension. - Save as provided in regulation 21, with effect from the 1st November, 1993, service rendered by an employee or member from the date of his admission to the Fund up to the date of retirement in terms of regulation 22 from the Bank's service shall be reckoned as service for pension."

13. Rule 22 of the Act, 1955 reads as under :-

"22. Minimum service for pension. - (1) A member shall be entitled to a pension under these regulations on retiring from the Bank's service-

(a) after having completed twenty years' pensionable service provided that he has attained the age of fifty years or if he is in the service of the Bank on or after the 1st November, 1993, after having completed ten years pensionable service provided that he has attained the age of fifty eight years or if he is in the service of the Bank on or after the 22nd May, 1998, after having completed ten years pensionable service provided that he has attained the age of

sixty years;

(b) after having completed twenty years' pensionable service, irrespective of the age he shall have attained, if he shall satisfy the authority competent to sanction his retirement by approved medical certificate or otherwise that he is incapacitated for further active service-

(c) after having completed twenty years pensionable service, irrespective of the age he shall have attained at his request in writing;

(d) after twenty five years' pensionable service. (2) A member who has attained the age of fifty-five years or who shall be proved to the satisfaction of the authority empowered to sanction his retirement to be permanently incapacitated by bodily or mental infirmity from further active service (such infirmity not being the result of irregular or intemperate habits) may, at the discretion of the trustees, be granted a proportionate pension. (3) A member who has been permitted to retire under clause (c) of sub-regulation (1) shall be entitled to proportionate pension."

14. On perusal of Rule 22 (1) (a) of the Act, 1955, three conditions have been laid down to fulfill criteria for grant of gratuity.

"(i) An employee should have completed 20 years pensionable service and attained the age of 50 years.

(ii) If an employee is in service of bank after 01/11/1993, he ought to have completed 10 years of pensionable service and also attained the age of 58 years.

(iii) If an employee should be in service of bank on or after 22/05/1998 he ought to have completed 10 years of pensionable service and must have attained the age of 60 years."

15. In the present case, none of the conditions are applicable to the respondent husband. The husband of respondent had very happily taken all retiral dues and satisfied. It is only after death of husband of

respondent for the first time, family pension claim made by the respondent in the year 2016.

16. The Regulations of 14 do not provide for grant of pension to the person who has not fulfilled the conditions laid-down under Rule 22 of the Act, 1955.

17. In view of thereof, learned Single Judge has erred in coming to the conclusion that the husband of respondent was removed from bank services vide order dated 05/10/2010 with a direction that he shall be entitled for pension/provident fund/gratuity as per rules.

18. On perusal of the order dated 05/10/2010, it is seen that specific condition has been imposed to the effect that "lsok ls dk;ZeqDr fd;s tkus dk n.M vf/ko"kZ&fuorZu dk fgrykHk lfgr (lqij,U;q,'ku csfufQV) TkSls fd isU'[email protected]"; fuf/k ,oa xzsP;wVh tks Hkh fu;e ,oa 'krksZ ds vUrxZr ns; gks RkFkk Hkfo"; esa jkstxkj gsrq v;ksX; ?kksf"kr fd;s fcuk ".

19. Admittedly as per Rule 22 of the Act, 1955, none of the conditions were satisfied by respondent's husband, therefore, he was not at all entitled for grant of pension. As a consequence respondent is also not eligible for grant of family pension.

20. So far as second direction to the effect that if the respondent surrenders the gratuity amount received by her husband on his retiral dues is concerned and thereafter pensionary benefit would start is misplaced in view of the fact that the order dated 08/11/2001 does not envisage that in case the gratuity amount is returned back, then, the pensionary benefits can be allowed. Infact as per paragraph 3 of the aforesaid letter, it is for the employee to fill-up the option form to become member of SBI Employee's Provident Fund in lieu of service gratuity for which they were entitled.

21. In the present case, the respondent husband never filled-up the

option form, so as to become member of Pension Fund. In such a situation the direction to deposit the gratuity amount and thereafter the respondent would become entitled for pension is also misplaced.

22. In view of the foregoing analysis and reasoning assigned, the order dated 17/10/2019 passed in W.P. No.18033/2017 by the learned Single Judge cannot be allowed to stand. As a consequence, the order of learned Single Judge dated 17/10/2019 passed in W.P. No.18033/2017 is hereby set-aside.

23. Writ appeal stands allowed.

No order as to costs.

         (S.A. DHARMADHIKARI)              (PRAKASH CHANDRA GUPTA)
                  JUDGE                                JUDGE
Aiyer*
Digitally signed by
JAGADISHAN AIYER
Date: 2023.04.06
11:20:58 +05'30'