Madras High Court
S.Mohan vs The Indian Overseas Bank on 23 November, 2021
W.P. No.8917 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.11.2021
CORAM
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.P. No.8917 of 2010
and
W.M.P. No.787 of 2019
S.Mohan ... Petitioner
Vs.
1.The Indian Overseas Bank,
Rep. by its Chairman & Managing Director,
763, Anna Salai, Chennai-600 002.
2.The Deputy General Manager,
Industrial Relations Department,
Indian Overseas Bank,
Central Office, 763, Anna Salai,
Chennai-600 002.
3.The Chief Manager,
Indian Overseas Bank,
Egmore Branch,
Chennai-600 008. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying to issue a Writ of Certiorarified Mandamus calling for the
records relating to the proceedings of second respondent in his proceeding
No.IRD/184/346/2008-2009 dated 23.01.2009 and quash the same and
direct the first respondent Bank to include the petitioner in the Pension
Scheme under Indian Overseas Bank (Employees) Pension Regulation 1995
dated 29.09.1995.
1/24
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W.P. No.8917 of 2010
For Petitioner : Mr.Balan Haridas
For Respondents : Mr.N.G.R.Prasad
ORDER
The writ petition is filed challenging the impugned proceedings of the
2nd respondent in proceedings No.IRD/184/346/2008-2009 dated
23.01.2009, insofar as it rejects the petitioner's request to be included in the
Pension Scheme dated 29.09.1995 in terms of the Indian Overseas Bank
(Employees') Pension Regulations 1995 (herein after referred to as 'The
Regulations').
2. Briefly, the facts that may be relevant are as under:
i) The petitioner was an employee of the 1st Respondent Bank. He
had joined the 1st Respondent Bank on 25.01.1973 at its Central Office in
Chennai and worked in its various branches.
ii) On 29.10.1993, a Memorandum of Settlement was reached
between the management of about 58 Banks including the 1st respondent
Bank and their workmen represented by various Unions of workmen in
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W.P. No.8917 of 2010
Banks for evolving a Pension Scheme in Banks for its employees.
iii) The said settlement provided for pension to the Bank Employees
other than SBI as second retirement benefit to be given to workmen in lieu
of Bank's share of contributory Provident Fund.
The relevant portions of the Regulations and the instructions are
extracted hereunder:
"3. Application
These regulations shall apply to employees who,
1)(a) were in the service of the Bank on or after the 1st
day of January, 1986 but had retired before the 1st day of
November, 1993; and
(b) exercise an option in writing within one hundred and
twenty days from the notified date to become member of the
fund."
(c)......."
iv) Pursuant to the above Regulations, a Circular was issued by the
respondent Bank clarifying various aspects relating to the Pension
Regulations while also setting out the Operational Instructions, the relevant
portion of the Operational Instructions is extracted below:
"1.........
2. In case of employees who have already opted for
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W.P. No.8917 of 2010
pension they should authorise the Trustees, Indian Overseas
Bank Staff Provident Fund to transfer the Bank's Contribution
of Provident fund together with interest accrued to Indian
Overseas Bank (Employees') Pension Fund. The letter of
authorisation should be given to PAD(PENSION CELL)
Central office within 60 days from the notified date as per
specimen enclosed to the circular."
v) Importantly, Clause 22(4)(b) of the Regulations provides for
Forfeiture of Service under certain circumstances including participation in
a strike. The relevant portion is extracted below:
(4)(a).....
(4)(b) Nothing in clause (a) shall apply to interruption
caused by resignation, dismissed or removal from service or
for participation in a strike;
provided that before making an entry in the service
record of the Bank employee regarding forfeiture of past
service because of his participation in strike, an opportunity of
representation may be given to such bank employees.
vi) Further, Clause 22(4)(b) of the Regulations was removed vide a
Circular dated 07.12.2000. The relevant amendment is extracted below:
"Amended
Regulation 22(4)(b)
Nothing in Clause (a) shall apply to interruption
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W.P. No.8917 of 2010
caused by resignation, dismissal or removal from service."
vii) Admittedly, the petitioner had not applied within the time
prescribed under the original Regulations which mandated that the option
may have to be exercised within 120 days from the notified date.
viii) Nor, had the petitioner chosen to opt / apply immediately after
removal of the restriction contained in Clause 22(4)(b) vide Circular dated
07.12.2000.
ix) Importantly, on 30.08.2010 another option was extended to the
employees of the Respondent Bank to shift from Provident Fund to Pension
Scheme.
x) On 29.10.2010, the petitioner had submitted his option Form under
the 2010 Scheme and has been drawing pension since 28.02.2011. However,
the petitioner who availed of the option under the extended Scheme dated
30.08.2010 had to comply with the condition of paying 2.8 times of the
petitioner's revised pay for the month of November 2007 towards initial
funding gap.
xi) It is undisputed that the petitioner had made a representation
requesting the Respondent Bank to permit him to exercise the option only
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W.P. No.8917 of 2010
on 25.02.2004, and as there was no orders on the said representation, a writ
petition was filed in W.P.No.12978 of 2005. This Hon'ble Court was
pleased to direct the respondent to consider the representation and pass
orders therein. Pursuant thereto, the impugned orders have been passed by
the 2nd respondent rejecting the request to be included under the 1995
Pension Scheme, which is the subject matter of challenge in the present writ
petition.
3. The thrust of the petitioner's argument is that the Respondent Bank
has extended the benefit of the Pension Scheme to certain other employees
who had opted to the Scheme after the expiry of the period prescribed under
the original Scheme viz., 120 days from the notified date and in support
thereof, reference is made to one L.Balasubramanian in the affidavit filed in
support of the writ petition. It is alleged that the Respondent Bank has
surreptitiously included the name of L.Balasubramanian and a few others
while rejecting the petitioner's request vide his representation dated
25.02.2004.
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4. Against the above background, the following questions of law may
arise for consideration:
a)Whether the Respondent Bank had extended the benefit of the
Pension Scheme to other employees even after the expiry of the period
prescribed under the Pension Scheme.
b)Whether assuming that such extension have been made overlooking
the conditions under the 1995 Scheme, is it permissible for this Court to
extend such benefits to the petitioner on the strength of the fact that
similarly placed employees have been extended/permitted to exercise option
while the petitioner is deprived of such benefit.
5. It is submitted by the learned counsel appearing on behalf of the
petitioner that failure on the part of the Respondent Bank in not permitting
the petitioner to exercise the option of Pension Scheme only on the premise
that such an option was not exercised within the period prescribed while
permitting few others including L.Balasubramian would foul of Article 14
of the Constitution of India. It is the further submission of the learned
counsel appearing on behalf of the petitioner that the Pension being a
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W.P. No.8917 of 2010
beneficial Scheme, once there is a relaxation of the condition to some
employees, not extending such relaxation to few other employees would fall
foul of the equality Clause contained in Article 14 of the Constitution of
India. In support of the above submissions, reliance was sought to be placed
on the following judgments:-
a) Order in W.P.No.39431 of 2005 in the case of K.Padmanabhan vs
Central Administrative Tribunal and others, wherein the decision of the
Hon'ble Supreme Court in the case of Ajay Jadhav vs. Government of Goa
reported in (1999(4)L.L.N.,73) was relied upon and the relevant portion of
the judgment reads as under :
"11........ In the present case, as already noticed, since
the concerned authorities had given benefits to similarly
placed employees, there was no reason to deny the similar
benefits to the present petitioner in part and to treat the
petitioner differently.”
b) State of Karnataka and others vs. C.Lalitha, wherein it was held
that:
"29. Service jurisprudence evolved by this Court from
time to time postulates that all persons similarly situated
should be treated similarly. Only because one person has
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W.P. No.8917 of 2010
approached the court that would not mean that persons
similarly situated should be treated differently. It is
furthermore well settled that the question of seniority should
be governed by the rules. It may be true that this Court took
notice of the subsequent events, namely, that in the meantime
she had also been promoted as Assistant Commissioner which
was a Category I post but the direction to create a
supernumerary post to adjust her name must be held to have
been issued only with a view to accommodate her therein as
otherwise she might have been reverted and not for the
purpose of conferring a benefit to which she was not otherwise
entitled to."
c) Man Singh vs. State of Haryana reported in (2008 (4) LLN 113),
wherein it was held that :
"20.....The concept of equality as enshrined in Article 14
of the Constitution of India embraces the entire realm of State
action. It would extend to an individual as well not only when
he is discriminated against in the matter of exercise of right,
but also in the matter of imposing liability upon him. Equals
have to be treated equally even in the matter of executive or
administrative action...."
The above judgments were relied upon by the learned counsel for the
petitioner only to show that one L.Balasubramanian has been extended the
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W.P. No.8917 of 2010
benefit even after the expiry of the period prescribed under the 1995
Scheme and that similar treatment must be extended to the petitioner, for
failure, would render the action of the respondent vulnerable under Article
14 of the Constitution of India. Further, any action of the State or its
instrumentalities must be guided by fairness and denying the benefit to the
petitioner may not satisfy the said test.
6. The learned counsel appearing on behalf of the respondents in
response to the submissions made by the learned counsel appearing on
behalf of the petitioner submitted that the issue stands covered by the
judgment of the Division Bench of the Karnataka High Court in the case of
Shri.H.Sakharama Shetty and others vs. Bank of India and others dated
02.09.2005 wherein while considering the very same Scheme in a batch of
matters filed by employees of various Banks including the Respondent
herein, held that a number of employees who had taken part in strike had
not opted for the Pension Scheme in view of the forfeiture Clause 22(4)(b).
Apparently, thereafter negotiations were held between the Union and the
Bank wherein it was agreed to delete the forfeiture clause in the Pension
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W.P. No.8917 of 2010
Regulations due to participation in strike and the same was also approved
by the Government and the Regulations stood amended and notified on
22.06.1999. The petitioners therein had filed writ petitions contending that
the benefit of the Pension Scheme has been denied for no fault on their part
and sought for a declaration that the period of 120 days stipulated as per
Regulation 3 (3) of the Pension Regulations for exercising option was only
declaratory and that having regard to the beneficial nature of the
amendment/changes made to the Pension Regulations in 1999, the Banks be
directed to extend the benefit to the employees opting for the Pension
Scheme along with all consequential benefits, even though option was not
exercised within the prescribed period. The Division Bench of the
Karnataka High Court in the case of Shri.H.Sakharama Shetty and others
vs. Bank of India and others after recording the submissions of the Banks
and petitioners therein held as under:
Submission of Respondent Banks :
a) .....The petitioners on their own having opted for
being paid terminal benefits under the Provident Fund Scheme
cannot be permitted to seek fresh option that is not
contemplated under the Regulations.
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W.P. No.8917 of 2010
b) No scheme much less the pension scheme or
regulations governing payment of terminal benefits can be
open ended forever and subject to change in their applicability
even at the option of the ex-employees contrary to the option
exercised by them earlier.
c) The petitioners have derived financial benefits under
the Special Voluntary Retirement Scheme and after ceasing to
be the employees, have come forward seeking an opportunity
to opt for pension which was not even claimed when they were
in service.
d) The Union of India also resisted the claim made by
the petitioners contending that the petitioners were those
employees who chose on their own will not to opt for pension
scheme and therefore they were estopped from raising the said
claim.
e).... With the depleting returns, the pension had become
more lucrative than CPM. As per the actuarial calculations got
done by the IBA, if a fresh option were to be given to the non-
optees, the Banks' would be required to contribute Rs.10,160
crores as on 31.03.2003..."
Submissions of the petitioner/employees :
"a. Having realised their mistake when they decided to
delete the strike clause it was incumbent upon them to provide
one more option to the appellants.
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W.P. No.8917 of 2010
b. Once the offending clause which was a stumbling
block for the employees to exercise their option was removed,
as a natural corollary the right to exercise option should have
been revised and failure to do so has resulted in a raw-deal
being meted out and an unfair and arbitrary treatment handed
down to the appellants.”
7. The Division Bench of the Karnataka High Court in the case of
Shri.H.Sakharama Shetty and others vs. Bank of India and others finally
held as under:
"17........The explanation sought to be offered by the
appellants herein contending that they were agitating the
matter through their Union and once they were successful in
getting the strike clause deleted by way of an amendment to the
scheme, they have immediately approached this Court cannot
be accepted for the reason that the deletion would enable only
such of those employees who had exercised the option
pursuant to the draft scheme or under the scheme finally
framed to take advantage of the deletion. The deletion cannot
automatically open up the gate for the others who have in fact
taken the benefit under the existing provident fund scheme and
retired from service. Such an approach would apart from
throwing open several areas of uncertainties in the economics
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of the Banks would result in recognising a right that is
unavailable under the scheme. The learned Single Judge was
right in declining the relief sought by the petitioners in this
regard.
18. The contentions advanced by the appellants stating
that the regulation providing for option is not mandatory and
was merely directory cannot be accepted. When the
application of the pension scheme is made subject to
complying with certain conditions and certain consequences
for non-compliance with the conditions are prescribed,
question of treating the same as directory does not arise. The
validity of 1995 Regulations was not called in question and it
operated till 1999 when it stood amended. The advantage of its
deletion could be taken by those who had opted for the scheme
earlier and not by those who never opted for the same."
8. This Court finds that the issue raised by the petitioner stands
covered by the decision of the Division Bench of the Karnataka High Court
in the case of Shri.H.Sakharama Shetty and others vs. Bank of India and
others. This Court further finds that the petitioner having not exercised their
option under the earlier Scheme and having exercised option in 2010
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W.P. No.8917 of 2010
Scheme, it may not be open for the petitioner to resile therefrom.
This Court does not find merit in any of the contention of the
petitioner since besides the issue being covered by the decision of the
Karnataka High Court in the case of Shri.H.Sakharama Shetty and others
vs. Bank of India and others, the above contention of the petitioner
overlooks the following aspects:
a) Pension Regulations / Scheme is statutory in nature and constitutes
"Law" within the meaning of Article 13 of the Constitution of India. The
Preamble to the Regulation / Scheme would make this clear and reads as
under:
"No.PAD/179/2097 in exercise of the powers conferred
by clause(f) of sub section (2) of Section 19 of the Banking
Companies (Acquisition and Transfer of Undertakings) Act,
1970 (5 of 1970), The Board of Directors of Indian Overseas
Bank after consultation with the Reserve Bank of India and
with the previous sanction of the Central Government hereby
makes the following regulations ......."
b) While Article 14 of the Constitution of India frowns upon, any
action which is arbitrary or discriminatory, however, the equality clause in
Article 14 is a positive concept and cannot be the basis for perpetuating an
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W.P. No.8917 of 2010
illegality. The Scheme in issue is hedged by conditions overlooking or
disregarding such conditions would constitute an illegality. Illegality in the
sense of extending a benefit though there is failure to comply with the
conditions. More so, when the Division Bench of the Karnataka High Court
in the case of Shri.H.Sakharama Shetty and others vs. Bank of India and
others has held the conditions to be mandatory. In this regard, the following
decisions are relevant:-
i) M.D.University vs. Jahan Singh, reported in (2007) 5 SCC 77 the
relevant portion of the order reads as under:
"28. Even assuming the respondent and the said Shri
Taneja were similarly situated, we may observe that Article 14
of the Constitution of India carries with it a positive concept.
Article 14 of the Constitution cannot be invoked, for
perpetuating illegality."
ii) Shanthi Sports Club vs. Union of India, reported in (2009) 15
SCC 705 the relevant portion of the order reads as under:
“71. Article 14 of the Constitution declares that:
“14. Equality before law.—The State shall not deny to
any person equality before the law or the equal protection of
the laws within the territory of India.”
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W.P. No.8917 of 2010
The concept of equality enshrined in that article is a
positive concept. The Court can command the State to give
equal treatment to similarly situated persons, but cannot issue
a mandate that the State should commit illegality or pass
wrong order because in another case such an illegality has
been committed or wrong order has been passed. If any
illegality or irregularity has been committed in favour of an
individual or a group of individuals, others cannot invoke the
jurisdiction of the High Court or of this Court and seek a
direction that the same irregularity or illegality be committed
in their favour by the State or its agencies/instrumentalities. In
other words, Article 14 cannot be invoked for perpetuating
irregularities or illegalities.... "
iii) Chandigarh Admn. v. Jagjit Singh reported in [(1995) 1 SCC
745], the relevant portion of the order reads as under:
“8. … We are of the opinion that the basis or the
principle, if it can be called one, on which the writ petition has
been allowed by the High Court is unsustainable in law and
indefensible in principle. Since we have come across many
such instances, we think it necessary to deal with such pleas at
a little length. Generally speaking, the mere fact that the
respondent Authority has passed a particular order in the case
of another person similarly situated can never be the ground
for issuing a writ in favour of the petitioner on the plea of
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discrimination. The order in favour of the other person might
be legal and valid or it might not be. That has to be
investigated first before it can be directed to be followed in the
case of the petitioner. If the order in favour of the other person
is found to be contrary to law or not warranted in the facts and
circumstances of his case, it is obvious that such illegal or
unwarranted order cannot be made the basis of issuing a writ
compelling the respondent Authority to repeat the illegality or
to pass another unwarranted order. (emphasis in original) The
extraordinary and discretionary power of the High Court
cannot be exercised for such a purpose. Merely because the
respondent Authority has passed one illegal/unwarranted
order, it does not entitle the High Court to compel the
authority to repeat that illegality over again and again. The
illegal/unwarranted action must be corrected, if it can be done
according to law—indeed, wherever it is possible, the court
should direct the appropriate authority to correct such wrong
orders in accordance with law—but even if it cannot be
corrected, it is difficult to see how it can be made a basis for
its repetition. (emphasis supplied) By refusing to direct the
respondent Authority to repeat the illegality, the court is not
condoning the earlier illegal act/order nor can such illegal
order constitute the basis for a legitimate complaint of
discrimination. Giving effect to such pleas would be
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W.P. No.8917 of 2010
prejudicial to the interests of law and will do incalculable
mischief to public interest. It will be a negation of law and the
rule of law......”
c) Though, under Article 226 of the Constitution of India, the High
Court is a Court of equity, nevertheless, there cannot be any direction even
in exercise of the power under Article 226 of the Constitution of India,
which is contrary to law. In this regard, the following decisions are relevant:
i) Council for Indian School Certificate Examination v. Isha
Mittal, reported in (2000) 7 SCC 52, the relevant portion of the order reads
as under:
“4. ..... Considerations of equity cannot prevail and do
not permit a High Court to pass an order contrary to the law.”
ii) In the case of Union Bank of India v. Rajat Infrastructure (P)
Ltd., reported in (2020) 3 SCC 770, the relevant portion of the order reads
as under:
“14. Furthermore, we may add that the High Court has
no powers akin to powers vested in this Court under Article
142 of the Constitution. The High Court cannot give directions
which are contrary to law.”
iii) State of Bihar v. Arvind Kumar, reported in (2012) 12 SCC 395,
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the relevant portion of the order reads as under:
“16. In Manish Goel v. Rohini Goel [(2010) 4 SCC 393 :
(2010) 2 SCC (Civ) 162 : AIR 2010 SC 1099] this Court has
held that: (SCC p. 399, para 14)
“14. Generally, no court has competence to issue a
direction contrary to law nor can the court direct an authority
to act in contravention of the statutory provisions. The courts
are meant to enforce the rule of law and not to pass the orders
or directions which are contrary to what has been injected by
law.””
d) The petitioner having exercised the option under the Second
Scheme cannot now turn around and seek relaxation of certain clauses,
including the condition which would require the petitioner to pay a sum of
2.8 times the petitioner's revised pay for the month of November 2007
towards initial funding gap.
This is in view of the fact that once an option is exercised under a
Scheme, it may not be permissible to pick and choose the beneficial
clause/elements alone of the Scheme. Any such exercise would result in
arbitrariness and therefore ought to be avoided.
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9. As a matter of fact, reliance on the fact that L.Balasubramanian has
been extended the benefit, appears to be wholly misplaced and contrary to
the facts inasmuch as it has been clarified by the respondent in their counter
that L.Balasubramanian had opted for the Scheme within time and what was
submitted by L.Balasubramanian after the expiry of the period for opting
under the Scheme was only an authorisation. The relevant portion reads as
under:
"11. The contention of the petitioner in para 8 that
during the year 1998-99 many employees including one
L.Balasubramanian, clerical employee having Roll No.7482
were surreptitiously included in the pension scheme is
factually incorrect. During that period the employee who have
already exercised their option for pension were asked to give a
letter of authorisation for transfer of employers share of
provident fund to the Pension Fund. This is only a further step
in the case of employees who had already exercised their
option."
Thus, L.Balasubramanian had opted within the time lines prescribed
under the 1995 Scheme and it was only the authorisation to the Trustees,
Indian Overseas Bank Staff Provident Fund to transfer the Bank's
Contribution of Provident Fund, as set out in Clause 2 of Operational
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W.P. No.8917 of 2010
Instructions dated 01.11.1995 which was submitted subsequently.
10. This Court is of the view that the case of L.Balasubramanian who
had opted within the time prescribed under the 1995 Scheme and the
petitioner who had not opted to under the 1995 Scheme cannot be treated on
par. This is also in view of the fact that while exercise of option is a
substantive condition, the submission of authorisation is procedural in
nature and thus the petitioner cannot be treated on par with
L.Balasubramanian, who had complied with the substantive requirements
under the 1995 Scheme.
11. This Court also finds that the petitioner has not been vigilant for
despite the fact that vide Circular dated 07.12.2000, there was an
amendment to the Clause 22(4)(b), the petitioner had made a representation
only on 25.02.2004. The lapse of 4 years remains unexplained. It has been
consistently held that relief under Article 226 of the Constitution of India is
only to those who are vigilant and not those who sleep over their rights. The
maxim “Vigilantibus, et non Dormientibus, Jura Subveniunt” - the law
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W.P. No.8917 of 2010
assists who are vigilant, not those who sleep over their right is relevant and
has been consistently applied by the Apex Court in a catena of cases. Some
of them being:
i) Delhi Airtech Services (P) Ltd. v. State of U.P., reported in (2011)
9 SCC 354.
ii) Dohil Constructions Co. (P) Ltd. v. Nahar Exports Ltd., reported
in (2015) 1 SCC 680.
iii) State of U.P. v. Dayanand Chakrawarty, reported in (2013) 7
SCC 595.
12. Thus, viewed from any angle this Court finds no merit in the writ
petition, and the impugned proceedings is sustained. The writ petition
stands dismissed. No costs. Consequently, the connected Writ
Miscellaneous Petition is closed.
23.11.2021
Speaking (or) Non Speaking Order
Index : Yes/ No
mka
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W.P. No.8917 of 2010
MOHAMMED SHAFFIQ, J.
mka
To
1.The Chairman & Managing Director,
The Indian Overseas Bank,
763, Anna Salai, Chennai-600 002.
2.The Deputy General Manager,
Industrial Relations Department,
Indian Overseas Bank,
Central Office, 763, Anna Salai,
Chennai-600 002.
3.The Chief Manager,
Indian Overseas Bank,
Egmore Branch, Chennai-600 008.
W.P.No.8917 of 2010
and
W.M.P. No.787 of 2019
23.11.2021
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