Madras High Court
N.Rajasekaran vs Bank Of Baroda on 24 July, 2023
WP.No.33009/2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 24.07.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.33009/2017
N.Rajasekaran ... Petitioner
Versus
1.Bank of Baroda
rep.by its Chairman and Managing
Director, No.3, Wallchand Hirachand
Marg, Bellard Pier, Bombay 400 038.
2.The General Manager
[Recoveries & Monitored Accounts]
Bank of Baroda, No.3, Wallchand
Hirachand Marg, Bellard Pier
Bombay 400 038.
3.The Deputy General Manager
Bank of Baroda, Zonal Office
No.93, C.P.Ramasamy Road
Alwarpet, Chennai 600 018.
4.Assistant General Manager
Bank of Baroda, No.252A,
TTK Road, II and III Floor
Alwarpet, Chennai 600 016. ... Respondents
1
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Prayer : - Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of a writ of declaration, declaring the action of
the respondents in denying pension to the petitioner on and from the date
when the petitioner is entitled to receive pension under the Bank of Baroda
[Employees'] Pension Regulations, 1995 as illegally, arbitrary and contrary
to law and consequently, direct the respondents to pay pension, arrears of
pension and continue to pay pension to the petitioner under the Bank of
Baroda [Employees'] Pension Regulations, 1995.
For Petitioner : Ms. S.Kaavya for
Mr.Balan Haridas
For RR 1 to 4 : Mr.T.S.Gopalan
ORDER
(1) The writ petition has been filed in the nature of a declaration,
declaring that the action of the respondents in denying pension to the
petitioner on and from the date when the petitioner was entitled to
receive pension under the Bank of Baroda [Employees] Pension
Regulations, 1995, as contrary to law and direct the respondents to
pay the pension, arrears of pension and continue to pay pension to the
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petitioner under the Bank of Baroda [Employees] Pension
Regulations, 1995.
(2) Though learned counsel for the petitioner had argued the case,
learned counsel for the respondent stated that the learned counsel who
is supposed to argue, is held up elsewhere. But, however, the facts are
clear. The facts are simple. The facts are straight forward. Therefore, I
would, instead of sending the matter back to almirah to rest for the
next six years, pass orders.
(3) The writ petitioner had joined the respondent Bank [Bank of Baroda]
on 04.05.1967. He had a very interesting career in the Bank. On
21.11.1991, a charge memo was served on him that proceeded in
manner known to law and finally, he was compulsorily retired on
28.09.1993. Questioning that particular punishment imposed, the
petitioner has filed an appeal. That was rejected on 05.01.1994. He
did not let the matter rest at that. He filed a review and that review
was also rejected on 09.04.1994. The matter could have ended there.
But the respondents appear to have given an option to those who had
retired to opt for a pension scheme. The petitioner, in the first
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instance opted for such scheme by giving an application consequent
to a notice dated 19.03.1994. The application which he made was
rejected on the ground that he had given his application or exercised
his option beyond the cut off date. To his good fortune, the
respondents issued another Notification seeking exercise of such
option. That was on 18.11.1995. The petitioner this time, was a little
more vigilant and exercised his option on 24.11.1995.
(4) It is contended by the learned counsel for the petitioner that the
respondents had actually forwarded the request forms for exercising
the said option and the petitioner had the benefit of receiving those
forms, filling up those forms and forwarding them to the respondents.
The respondents then fell back to their Regulations aforementioned,
namely, the Bank of Baroda [Employees] Pension Regulations, 1995
and placing reliance on two particular Regulations, Regulation No.3
and Regulation No.33, held that the petitioner is not eligible to
exercise such option. The petitioner is aggrieved that he has not been
granted that opportunity of receiving pension, though he had
exercised his option.
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(5) The respondents had filed a counter affidavit, wherein they had stated
that the petitioner had not retired on attaining the age of
superannuation, but had rather been compulsorily retired on charges
being proved and that was a punishment which had been imposed on
the petitioner herein. They had stated further that those who are in
service in the Bank on or after 01.01.1986 but had retired before
01.11.1993, as stipulated under the Regulations were alone eligible to
avail this particular benefit. As on 01.11.1993, it is a fact that the
petitioner had suffered an order of compulsory retirement which was
passed on 28.09.1993. But, it is also a fact that he had filed an appeal
and that appeal was finally disposed of to his disadvantage on
05.01.1994 and a subsequent review was also dismissed on
09.04.1994.
(6) The issue whether on 01.11.1993 he could consider himself as being
eligible though he had suffered an order of compulsory retirement, is
a moot question and which, to my fortune, has been answered by a
judgment of a Division Bench of this Court dated 10.12.2009 passed
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in WA.No.2768/2002 [C.P.Krishnaswamy Vs. Union of India,
Ministry Of Finance, New Delhi and 3 Others]. That was a judgment
relating to Punjab National Bank and the learned counsel for the
petitioner was extremely insistent in stating that the Regulations for
that particular Bank and the Regulations for the Bank herein, namely,
Bank of Baroda, are Pari Materia and same and the reasonings in that
particular judgment of the Division Bench would equally apply to the
facts of the present case. It is also contended that the facts therein are
also similar to the facts of this case.
(7) So far as the second point on which the respondents had rejected the
petitioner’s request to exercise the option is the reliance placed by
them on Regulation 33 of the Regulations of the respondents Bank.
Regulation 33 also gives a cut off date for exercising such option and
that particular cut off date as is evident from a reading of the said
Regulations is again 01.11.1993.
(8) In effect, the respondents have contended that since the petitioner had
suffered an order of dismissal on 28.09.1993, he was not eligible on
the cut off date on 01.11.1993 to exercise any option whatsoever.
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(9) It is also stated in the counter affidavit which had been sworn to by
one Mr.Suresh Gajendran, who claimed that he was the Deputy
General Manager and Deputy Zonal Head of Chennai Zone in the
respondents Bank, that the judgment in the writ appeal requires re-
consideration. I am not able to understand as to how a party to a
litigation can claim that a judgment of the High Court, particularly, of
a Division Bench, should be reconsidered. There should be some
discipline maintained in pleadings.
(10) Learned counsel for the petitioner, however stated that the
respondents in that particular writ appeal, namely, Punjab National
Bank, have put that order into effect. Any order is binding not only on
the petitioner therein but also lays down a dictum to all those who
rely on those particular Rules.
(11) Regulations 3 and 33 have been very specifically questioned and
analysed and orders have been passed by stating that, that the
particular date in those Regulations are arbitrary. Merely stating that
the judgment requires reconsideration by the respondents herein
cannot advance the case of the respondents. There should be some
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conformity to the Rule of law and discipline must be maintained
while expressing opinions of a Judgment of the Court. Unfortunately,
the respondents do not seem to so care.
(12) At this juncture, learned counsel for the respondent also entered into
the scene and placed a preliminary objection that the writ petitioner
herein is not eligible at all for pension under Regulation 3. He
apparently had further instructions about reconsideration of the
judgment of the writ appeal and stated that there are two other
Division Bench judgments which had held otherwise, but had not
produced copies of the said judgments. Let me therefore, confine to
the judgment of the Division Bench which has been forwarded across
the Bar.
(13) Paragraphs.No.16 and 17 are relevant and they are extracted below:
''16.When we examine the definition ''date of
retirement'' under regulation 2(k) we find that while
stating that the said definition would mean the last day
of the month in which the employee attains the age of
superannuation, it is also stated that such date of
retirement would be the date on which the employee is
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retired by the bank. It also refers to the date on which
the said employee voluntarily retires or the date on
which the officer is deemed to have retired. Therefore
amongst the retirees, there is one category namely an
employee who is retired by the bank. When it comes to
the question of application of the regulations,
regulation 3(1)(a) makes it clear that the regulations
would not apply to employees who were in the services
of the bank on or after 01.01.1986, but who had retired
before the first date of November, 1993. Therefore
reading regulations 2(k), 2(x), 2(y) and 3(1)(a)
together, it can be safely held that all types of
retirement namely retirement on reaching the age of
superannuation, deemed retirement, voluntary
retirement or any other premature retirement would
fall within the expression retirement as well as the
other provisions of applicability namely regulation
3(1)(a).
17. A perusal of regulation 33(1) discloses that
even an employee who is compulsorily retired from
service as a penalty under the respondent's bank
Discipline and Appeal Regulations or
awards/settlement may be granted by an authority
higher than the authority competent to impose such
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penalty, pension at a rate not less than two-thirds and
not more than full pension admissible to the employee
on the date of his compulsory retirement if he is
otherwise entitled to such pension on superannuation
on that date. The cut-off date prescribed under the
said regulation 33(1) viz., 01.11.1993, only makes a
distinction between the employee who was
compulsorily retired prior to 1.11.1993 and after
01.11.1993, in order to be eligible for invoking the said
regulation.''
(14) In the judgment of the Division Bench above referred, there is also a
reference to another judgment of another Division Bench in
WA.No.1076/2006 dated 31.08.2006 which related to an employee of
the Indian Overseas Bank. There, his request for voluntary retirement
came to be accepted and he was allowed to retire voluntarily. The
Division Bench therein, was also concerned with the provision which
contained the very same Regulations and in particular, Regulation 29-
Right to grant of Pension to those who take the option of voluntary
retirement as well as Regulation 32 which deals with premature
retirement. There was also a reference to the judgment of the Bombay
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High Court reported in 1997 [1] LLJ 1094 [Madhav K.Kirthikar Vs.
Bank of India].
(15) The Division Bench in WA.No.1076/2006 relating to an employee of
the Indian Overseas Bank, had extracted the judgment of the Bombay
High Court which is as follows:-type marked portion below:-
''7.There is no dispute that in the present case
the respondent has been given premature retirement
vide letter dated 9.5.1989. The definition of
'retirement' provided in clause 2(y) covers all the
retirements and also the voluntary premature
retirement by the bank before superannuation. It is
also not disputed that the Indian Overseas Bank
(Employees') Pension Regulations, 1995 are applicable
to all the employees who were in the service of the bank
on or after first January, 1986 but had retired before
the first day of November, 1993. Regulation 32 states
that the premature retirement pension may be granted
to an employee who has rendered minimum 10 years of
service, retires from service on account of orders of the
bank to retire prematurely in the public interest or for
any other reasons specified in the service regulations
or settlement, if otherwise, he was entitled to such
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pension or superannuation on that date. A combined
reading of clause (c) of Regulation 2(y) with
Regulation 32 and Regulation 34, clearly shows that
the scheme is applicable in respect of employees who
had retired or died between 1.1.1986 and 31.10.1993.
The appellant bank has however contended that the
respondent by his own accord voluntarily retired on
medical grounds on 9.5.1989 as per non statutory
circular bearing permanent EST 104/86 of 27.8.1986
which is based on Central Government's guidelines
dated 25.5.1982 permitting the public sector banks to
modify their scheme or appointment on compassionate
grounds so as to extend the benefit to the dependants of
the employees who retired on medical grounds. The
submission is that the respondent retired on his own
accord and therefore, his case could not fall under
clause (c) of Regulation 2(y) of the Pension
Regulations. We are unable to accept the argument of
the bank. In the first place there is nothing in the
Regulations to indicate that the Scheme does not cover
the employee who has prematurely retired as per the
statutory circular. On the other hand the definition of
'retirement' in Regulation 2(y) is wide and cover all
cases of premature retirement where the employee has
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retired before attaining the age of superannuation
specified in Service Regulations or Settlement. Now the
Bank has chosen to apply the scheme to the employees
who have retired after 1.1.1986. The benefit of the
scheme, therefore, must be given to all the employees
who have retired after 1.1.1986. It will be totally
impermissible to make artificially a further
classification amongst the employees retired after 1st
January, 1986 as it will be totally irrational, arbitrary
and violative of Article 14 of the Constitution. This is
more so because under the scheme the employees who
have retired prematurely after 1st November, 1993 are
expressly covered by the scheme.''
(16) The Division Bench in C.K.Krishnasamy’s case [referred above], had
thereafter examined other Regulations relating to pension. It is useful
to extract the relevant paragraphs:
''26. On the other hand, a reading of regulation 2(y)(c)
of the pension regulations along with regulation 19(1)
first proviso and 20(1) of the 1979 Service Regulations
or Regulation 4(h) of Punjab National Bank Officer
Employees' (Discipline and Appeal) Regulations, 1977
persuade us to hold that it would be in order to state
that compulsory retirement even by way of punishment
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having regard to the connotations applicable to it
would only fall under the broad classification of
premature retirement. Apparently for these reasons, we
are able to discern that under the pension regulations,
regulation 33 came to be incorporated providing for
payment of pension subject however to the grant of
such pension by the authority higher than the authority
competent to impose such compulsory retirement as a
penalty and the rate at which it should be granted as
provided therein.
27. In our considered opinion any other view
would run counter to the very object of the bank
management in having come forward to grant pension
to various categories of employees including those who
were retired prematurely in public interest which is
otherwise known as compulsory retirement in public
interest and also an employee retired compulsorily by
way of punishment under regulations 32 and 33
respectively.
28. We are also convinced that regulation 32(b)
having specifically provided for covering those
employees who are prematurely retired in public
interest namely those who would fall in the category of
compulsorily retired employees in public interest and
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also employees who were retired for any other reason
specified in the service regulations or settlement which
would cover other cases of premature retirement which
would include compulsory retirement by way of
punishment and there could be no other category that
would fall within the above said expression premature
retirement and those retired by the bank within the
expression #for any other reason specified in service
regulations or settlement.
29. We therefore hold that an officer/employee
who is compulsorily retired by way of punishment
would also fall within the category of premature
retirement and consequently it cannot be said that he
would fall outside the pension regulations in order to
exclude him from being eligible to claim pension under
the pension regulations in particular regulation 33(1).''
(17) In 1992 Supp. [1] SCC 644 [All India Reserve Bank Retired
Officers Association and Others Vs. Union of India], it was held as
follows:-
''45.The learned counsel then relied upon an
unreported decision of the Delhi High Court rendered
in Civil Writ No.3830 of 1998 dated 30.08.1999. In the
said judgment the issue involved is identical to the case
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on hand. The learned single Judge by applying the
decision of All India Reserve Bank Retired Officers
Association and others Vs. Union of India (1992 Supp
(1) SCC 644) took the view that fixing of the cut-off
date of 01.11.1993, being a reasonable classification
was justified. Since there is intelligible difference
between two sets of classification and the classification
has a nexus to the fixation of the cut-off date. We are
not in a position to approve the reasoning of the
learned Judge for more than one reason. In the first
place we do not find any detailed consideration of the
various regulations of the pension regulations, 1995.
In the earlier part of our Judgment we have considered
the regulations where the definition of 'date of
retirement', 'retirement' and regulation Nos.3, 29 and
32, consideration of which, persuade us to hold that
there was a discriminatory treatment meted out to a set
of employees falling in a homogeneous group and by
fixing the cut-off date, arbitrary discrimination is
shown. Secondly, we had an opportunity to consider
the case of voluntary retirement for whom also a
similar cut-off date has been prescribed under
regulation 29 which has been held to be arbitrary,
discriminatory and violative of Articles 14 and 16 of
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the Constitution...''
(18) It had been very specifically stated that the respondent Bank therein,
had not provided any valid ground for discriminating between
compulsorily retired employees as a measure of punishment prior to
01.11.1993 and after 01.11.1993. Finally, the Division Bench had
concluded as follows:-
''49.For all the above stated reasons, we hold
that the cut-off date viz., 01.11.1993, fixed in
regulation 33(1) of the Punjab National Bank
Employees' Pension Regulations, 1995 as arbitrary,
discriminatory and violative of Articles 14 and 16 of
the Constitution. We therefore set aside the impugned
order of the respondent bank dated 26.04.1999, in
RM:PER:MR381:99 and consequently direct the
respondent bank to entertain the option exercised by
the appellant in the format of Annexure II dated
08.07.1994, applying regulation 33(1) of the
regulations and the competent authority prescribed
under Regulation 33(1) to pass appropriate orders in
accordance with law. Such exercise shall be carried
out by the respondent bank within eight weeks from the
date of receipt of a copy of this order. Since the
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appellant is now 79 years old, in the interest of justice,
it will be appropriate for the respondent bank to pass
orders as expeditiously as possible within the
stipulated time granted in this judgment. The appeal
stands allowed. No costs.''
(19) The ratio applies to the case on hand. Though the learned counsel for
the respondents stated that there are contrary views taken by the other
Division Benches in their respective judgments, unfortunately, the
same had not been placed for consideration before this Court.
(20) This judgment is placed before me, applies to the facts of this case
and I would therefore, also follow it and hold that the cut off date
namely 01.11.1993, stated in Regulation 33[1] of the respondents
Bank Regulations, which is pari-materia to the Punjab National Bank
[Employees] Regulations, 1995, is arbitrary, discriminatory and
violative of Articles 14 and 16 of the Constitution of India.
(21) Holding the same view as that of the Division Bench, I would direct
that the respondents must pass necessary orders as expeditiously as
possible. The writ petitioner was aged 72 years on the date of filing of
the writ petition in the year 2017 and by any mathematical
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calculation, should be at least 78 years as on this date. The Division
Bench, had given a time period of eight weeks for compliance from
the date of receipt of that particular order. Since the learned counsel
for the respondents still has some grievances, let me extend that time
period and grant a time period of sixteen weeks from the date of
receipt of a copy of this order for making necessary compliances. The
respondents may work out the arrears and pass necessary proceedings
in that regard.
(22) The writ petition stands allowed. No costs.
24.07.2023
AP
Internet : Yes
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WP.No.33009/2017
To
1.The Chairman and Managing
Director, Bank of Baroda
No.3, Wallchand Hirachand
Marg, Bellard Pier, Bombay 400 038.
2.The General Manager
[Recoveries & Monitored Accounts]
Bank of Baroda, No.3, Wallchand
Hirachand Marg, Bellard Pier
Bombay 400 038.
3.The Deputy General Manager
Bank of Baroda, Zonal Office
No.93, C.P.Ramasamy Road
Alwarpet, Chennai 600 018.
4.Assistant General Manager
Bank of Baroda, No.252A,
TTK Road, II and III Floor
Alwarpet, Chennai 600 016.
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WP.No.33009/2017
C.V.KARTHIKEYAN, J.,
AP
WP.No.33009/2017
24.07.2023
https://www.mhc.tn.gov.in/judis
