Orissa High Court

Afr vs State Bank Of India on 8 December, 2021

                 ORISSA HIGH COURT: CUTTACK

                       W.P.(C) No. 24026 of 2017

          In the matter of an application under Article 226 of
          the Constitution of India.
                               ---------------

AFR Satya Narayan Dora ..... Petitioner

-Versus-

          State Bank of India
          and another                     .....      Opp. Parties

              For Petitioner    :    M/s. Sidhartha Mishra (1)
                                     and     R.R.   Mohanty,
                                     Advocates.

              For Opp. Parties :     M/s. P.V. Balakrishna
                                     and R. Biswal, Advocates

          P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing and judgment: 08.12.2021

DR. B.R. SARANGI, J. The petitioner, who was working as

Cashier-cum-Clerk-cum-Typist (CCT) under the

State Bank of India, has filed this writ petition

seeking a writ of mandamus to the opposite parties

to sanction pension under the State Bank of India

Employees' Pension Fund Rules, with effect from // 2 //

01.03.2013, on his retirement on attaining the age

of superannuation on 28.02.2013. The petitioner

further seeks for direction to the opposite parties to

pay interest @ 12% per annum on the amount of

arrears of pension due to him with effect from

21.03.2015, i.e. the date from which the award

became enforceable under Section 17A(1) of the

Industrial Disputes Act, 1947, till the same is

actually paid.

2. The facts of the case, in a nutshell, are

that, the petitioner joined in the permanent post of

Cashier-cum-Clerk-cum-Typist (CCT) in State Bank

of India on 18.01.1979. While he was working in the

Temple Road Branch, Puri, on 30.10.1986, the

opposite party-bank placed him under suspension.

Steps were also taken to prosecute him by the

Central Bureau of Investigation (CBI). Before

investigation was completed, the opposite party

bank conducted a domestic enquiry against the

petitioner and after holding him guilty, dismissed // 3 //

him from service on 17.02.1990. Subsequently, the

CBI refused to prosecute the petitioner and

consequentially, the Additional Chief Judicial

Magistrate, Bhubaneswar discharged him from the

case on 03.12.1990. Against dismissal from service

on 17.02.1990, the petitioner raised an Industrial

Dispute before the Labour Commissioner,

Bhubaneswar. The Central Government, vide order

dated 28.08.1991 referred the said dispute to the

Industrial Tribunal, Orissa, Bhubaneswar for

adjudication with the following schedule of

reference:-

"Whether the action of the Regional Manager, State Bank of India, Bhubaneswar in dismissing Shri Satya Naryan Dora, C.C.T. from service with effect fro 17-2-1990 is legal and justified? If not, to what relief the workman is entitled to?"

2.1 The Industrial Tribunal, Orissa,

Bhubaneswar decided the preliminary issue and

passed an order on 18.10.1997 holding the inquiry

conducted against the petitioner as unfair and // 4 //

improper. The opposite party bank challenged the

same before this Court by filing OJC No. 16529 of

1997. This Court, vide order dated 06.05.2008,

without interfering with the order dated 18.10.1997

on the preliminary issue, remitted the matter back

to the Industrial Tribunal, Bhubanesar giving

liberty to the Bank to lead evidence if it so wanted.

In the meantime, the said case was transferred from

Industrial Tribunal, Orissa, Bhubaneswar to

Central Government Industrial Tribunal (CGIT)-

cum-Labour Court, Bhubaneswar and re-numbered

as Tr. I.D. Case No. 91 of 2001. After due

adjudication, the Presiding Officer, CGIT,

Bhubaneswar, vide its award dated 21.04.2009,

held the dismissal of the petitioner as unjust and

illegal and directed for reinstatement of the

petitioner in service with 50% back wages. The

award dated 21.04.2009 was assailed by the

opposite party bank before this Court in W.P.(C) No.

19687 of 2009. This Court, vide order dated // 5 //

22.01.2014, quashed the relief granted in the

award, but upheld the finding of the Tribunal on the

preliminary issue and remitted the matter to the

CGIT for passing fresh order after hearing

arguments from both sides without taking any fresh

evidence. As a consequence thereof, the CGIT

passed its award on 19.01.2015 holding that the

action of the 1st party management (opposite party

herein) is not legal and justified in imposing the

punishment of dismissal from service of the

workman Shri Dora (petitioner herein) with effect

from 17.02.1990. Accordingly, the CGIT directed the

1st party management (opposite party herein) to pay

an amount of Rs.25.00 lakhs towards compensation

to the petitioner. The 1st party management was

also directed to pay 50% of the back wages to the

petitioner with effect from the date of his dismissal,

i.e. 17.02.1990 till the date of his retirement on

superannuation, i.e. 28.02.2013. Such award was

directed to be implemented within three months // 6 //

from the date of publication of the same in the

Gazette of India, failing which the the opposite party

bank was directed to pay simple interest @ 12% per

annum to the petitioner.

2.2 The above award of the CGIT dated

19.01.2015 passed in Tr. I.D. Case No. 91 of 2001

was notified by the Government of India, vide

Notification No.L-12012.153/91-IR(B-I) dated

19.02.2015 and was published in Part-II-Section-3,

Sub-section (ii) of the Gazette of India (weekly),

February, 15, 2015 to February 21, 2015. As a

consequence thereof, the award became enforceable

on 21.03.2015, i.e. after 30 days of the Gazette

notification, as provided under Section 17A (1) of

the Industrial Disputes Act, 1947.

2.3 The said award was challenged by the

opposite party bank before this Court in W.P.(C) No.

15925 of 2015. The petitioner also being aggrieved

by non-consideration of his case under the

applicable service rules, i.e. Para-521 (3) of Sastry // 7 //

Award, challenged the award in W.P.(C) No. 2715 of

2016. This Court, in a common judgment dated

03.08.2016, set aside the order of payment of

compensation of Rs.25.00 lakhs and modified

award to the following extent:-

"11. In view of the above settled position of law, as it appears from the impugned award, the Tribunal has not gone into the aforesaid principle while awarding compensation. The compensation was awarded without any materials available on record and without giving reason. As such the award of compensation being not sustainable, we set aside the same and modified the award accordingly."

As a consequence thereof, the order of dismissal

passed on 17.02.1990 having been set aside, the

petitioner had to continue in service throughout till

he retired on superannuation on 28.02.2013.

Accordingly, the petitioner submitted a

representation to implement the award and to pay

back wages, pension, gratuity etc. The bank

credited an amount of Rs.4,00,000/- in the

petitioner's bank account on 14.12.2016 and rest // 8 //

amount of Rs.22,31,873/- on 13.04.2017 towards

50% of back wages without furnishing the details of

the calculation of the amount. The petitioner

submitted a representation on 27.07.2017 to the

Regional Manager of opposite party bank requesting

for sanction of payment of pension, but the same

was not attended to. The petitioner, therefore,

submitted another representation on 03.11.2017

requesting to sanction and make payment of

pension with effect from 01.03.2013, i.e. 1st day

after his retirement on superannuation on

28.02.2013. The same having not been paid, the

petitioner approached this Court by filing the

present writ petition.

3. Mr. Sidhartha Mishra, learned counsel

for the petitioner, contended that the dismissal

order passed by the authority having been set aside

by the CGIT, and such order of the CGIT having

been confirmed by this Court, as a consequence

thereof, the petitioner has been allowed to continue // 9 //

in service till attaining the age of superannuation,

i.e. 28.02.2013. After being retired from service, he

is entitled to get the pension as per the rules. The

same having not been paid, the petitioner

approached this Court in the present writ petition.

He also further contended that the petitioner has

been paid 50% back wages in compliance to the

order passed by the CGIT, which has also been

made confirmed by this Court and also allowed to

retire from service on 28.02.2013. There is not only

delay in payment of dues admissible to the

petitioner, but also the pension amount is due to

him. Therefore, the opposite parties are liable to pay

interest @ 12% per annum with effect from

21.03.2015, i.e. the date from which the award

became enforceable under Section 17A(1) of the

Industrial Disputes Act, 1947, till the same is

actually paid.

To substantiate his contention, reliance has

been placed in the cases of D.S. Nakara & Others // 10 //

v. Union of India, AIR 1983 SC 130; Deokinandan

Prasad v. State of Bihar and Ors, AIR 1971 SC

1409 and State of Jharkhand & Ors v. Jitendra

Kumar Srivastava & Anr, (2013) 12 SSC 210.

4. Mr. P.V. Balakrishna, learned counsel

appearing for the opposite party-State Bank of

India, contended that this is the second round of

litigation arising out of the award passed by the

CGIT and, as such, the same is hit by principle of

res judicata. It is further contended that against the

award of the CGIT dated 19.01.2015 the petitioner

had approached this Court by filing W.P.(C) No.

2715 of 2016, praying for release of full wages,

allowances; and to treat the period as on duty. i.e.

from the date of his suspension on 30.10.1986 till

he attained the age of superannuation on

28.02.2013; and to pay all the retirement benefits to

him treating him to have retired on attaining the

age of superannuation on 28.02.2013. The said writ

petition was disposed of by this Court in a common // 11 //

judgment dated 03.08.2016 by modifying the award

dated 19.01.2015 in Tr. I.D. Case No. 91 of 2001

passed by the CGIT. The prayer of the petitioner in

the said writ petition was to modify the award dated

19.01.2015 in Tr. I.D. Case No. 91/2001 with a

direction for payment of full wages and allowances

and all other privileges to the petitioner for the

period from 30.10.1986, when he was placed under

suspension, till 28.02.2013, when he attained the

age of superannuation; and to direct the opposite

party-State Bank of India to treat the petitioner as

on duty from the date of his suspension, i.e.

30.10.1986 till he attained the age of

superannuation on 28.02.2013; and to pay all the

retirement benefits to him treating him to have

retired on attaining the age of superannuation on

28.02.2013. Therefore, for the self same relief the

petitioner could not have approached this Court in

the present writ petition. Accordingly, he claimed for // 12 //

dismissal of the writ petition on the ground that the

same is hit by the principle of res judicata.

5. This Court heard Mr. Sidhartha Mishra,

learned counsel for the petitioner, Mr. P.V.

Balakrishna, learned counsel for the opposite

parties by hybrid mode and perused the record.

Pleadings having been exchanged between the

parties, with their consent, this writ petition is

being disposed of finally at the stage of admission.

6. The factual matrix, as delineated above,

are admitted by both the parties. The only question

now remains to be considered whether the

petitioner is entitled to get the pension after

retirement on attaining the age of superannuation

on 28.02.2013. The preliminary objection raised by

the opposite parties is that the present writ petition

is hit by principle of res judicata, as the order has

already been passed by this Court on 03.08.2016

modifying the award dated 19.01.2015 in Tr. I.D.

Case No. 91 of 2001. However, due to non-payment // 13 //

of retrial benefits to the petitioner treating him to

have attained the age of superannuation on

28.02.2013, the present writ petition has been filed.

Though the order of the CGIT has been complied

with, so far as payment of dues till 28.02.2013 is

concerned, but the same has also been paid at a

belated stage in gross violation of Section 17A (1) of

the Industrial Disputes Act, 1947 and as such the

petitioner is also entitled to get interest thereof.

7. In Maharashtra Chess Association v.

Union of India (UOI) and Ors, Civil Appeal No.

5654 of 2019 (arising out of Special Leave Petition

apex Court held that mere existence of alternate

forum, whether adequate or not, does not alter the

fundamentally discretionary nature of the High

Courts' writ jurisdiction and, therefore, does not

create an absolute legal bar on the exercise of writ

jurisdiction by a High Court. The apex Court further

observed that in exercising its discretion to // 14 //

entertain a particular case under Article 226, a

High Court may take into consideration various

factors including the nature of the injustice that is

alleged by the petitioner, whether or not an

alternate remedy exists, or whether the facts raise a

question of constitutional interpretation.

8. On perusal of the order dated 03.08.2016

passed in W.P.(C) No.2715 of 2016, it is evident that

at paragraph-6 of the order, it has been mentioned

as follows:-

"6. The Management challenged such Award dated 19.01.2015 in W.P. (C) No. 15295 of 2015 and prayed for quashing of the same. On the other hand the Workman challenged such Award in W.P.(C) No. 2715 of 2016 on the ground of inadequate relief granted by the Tribunal and prayed for enhancement of the compensation and payment of full wages. As such, the Award dated 19.01.2015 passed in Tr. Industrial Dispute Case No. 91 of 2001 is impugned in both the writ petitions."

Therefore, this Court has taken note of the fact that

the relief sought for in W.P.(C) No. 2715 of 2016

does not relate to the pensioanry benefit, as sought // 15 //

for in the present writ petition. Thereby, the present

writ petition cannot be said to be a bar by the

doctrine of res judicata. Otherwise also, in view of

the law stated above, considering the fact that the

petitioner is being harassed and arbitrarily deprived

of the lawful entitlement of pension, even though

his dismissal has been struck down, after 25 years

of litigation he is not being paid his pensionary

benefit due and admissible to him in accordance

with law. This Court has discretionary power vested

on it under Article 226 of the Constitution of India

to be exercised to do justice to the petitioner.

Therefore, the plea taken by the opposite party-

bank that the present writ petition is hit by doctrine

of res judicata cannot sustain and accordingly the

said plea is negatived.

9. Coming to the question of payment of

pensioanry benefits to the petitioner, the Central

Board of the State Bank of India, in exercise of the

powers conferred under Section 50 of the State // 16 //

Bank of India Act, 1955 and after consultation with

Reserve Bank of India with the previous sanction of

the Central Government, prescribed detailed

regulations of the pension scheme applicable to the

employees of the Bank by formulating "State Bank

of India Employees' Pension Fund Rules",

hereinafter to be referred as "Pension Rules". The

relevant rules of Pension Rules are extracted below

for proper adjudication.

"7. Save as provided in rule 8 every permanent employee (including a permanent part-time employee who is required by the Bank to work for more than six hours a week) in the service of the Bank, who is entitled to pension benefits under the terms and conditions of his service shall become a member of the Fund from -

(a) the date from which he is confirmed in the service of the bank."

         Xxx                   xxx                xxx

         14       An employee dismissed from the Bank's

service for willful neglect or fraud shall forfeit all claims upon the fund for pension.

xxx xxx xxx

17. Pension 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, justice of the peace or banker.

                             // 17 //




       xxx                     xxx                   xxx

20. Save as provided in rule 21, with effect from 1.11.93, service rendered by an employee/member from the date of his admission to the fund up to the date of retirement in terms of rule 22 infra from Bank's service shall be reckoned as service for pension.

xxx xxx xxx

22 (i) A member shall be entitled to a pension under these rules on retiring from the Bank's service-

       xxx                     xxx                   xxx
       (d)      After   twenty       five   years'   pensionable
       service-

       23.
       xxx      xxx xxx

(4) No pension shall be paid to a member unless it has been sanctioned by the trustees under these rules."

10.       Taking        into          consideration             the

aforementioned     rules,   the       petitioner       joined    in

permanent post of CCT under State Bank of India

on 18.01.1979 and was confirmed in service on

18.07.1979, after completion of six months

probation period, and was admitted as a member of

the State Bank of India Employees' Pension Fund

Rules, as stipulated in Rule-7(a). As such, he

continued as a member till he was dismissed on // 18 //

17.02.1990. When the dismissal order was struck

down by the CGIT and this Court upheld the

decision of the CGIT, the employment of the

petitioner and his membership under the pension

fund are deemed to have not been terminated, but

continued throughout till the date of his retirement

on attaining the age of superannuation on

28.02.2013. As such, the petitioner has completed

more than 34 years of service, which exceeds 25

years of pensionable service as per Rule-22 (i) (d) of

the Pension Rules.

11. The legal fiction created in the award

passed by the CGIT, where the petitioner is

imagined not to have been dismissed, but continued

in service throughout, till his retirement on

28.02.2013, which in fact and reality has not

happened as per the settled position of law in

respect of a legal fiction and has to be given full

effect and to be carried to its logical conclusion,

imagining its consequence, i.e. the entitlement of // 19 //

the petitioner to pension after retirement on

superannuation, also as real. As the petitioner has

fulfilled all the requirement of the Pension Rules as

has been discussed above, he is entitled to get the

pension and more so, such pension is accrued with

effect from 01.03.2013 under Rule-17 of the

Pension Rules.

12. If the consideration is made from other

angle, the definition of the term "wages" under

Section 2 (rr) of the Industrial Disputes Act, 1947,

the order by the CGIT for payment of wages @ 50%

for the entire period from the date of illegal

dismissal on 17.02.1990 till the date of retirement

of the petitioner on superannuation on 28.02.2013,

clearly implied that the Tribunal deemed that the

terms of employment of the petitioner with opposite

parties was fulfilled for which it ordered for payment

of wages @ 50% for the said period. The petitioner

having been paid wages for his employment with the

State Bank of India till his retirement on // 20 //

superannuation on 28.02.2013, he is entitled to get

pension with effect from 01.03.2013 under Rule-17

of the Pension Rules.

13. In D.S. Nakara (supra), at paragraph-31,

the apex Court observed that pension is neither a

bounty nor a matter of grace depending upon the

sweet will of the employer and that it creates a

vested right.

14. In Deokinandan (supra), the apex Court

at paragraph-29 observed as follows

"that the grant of pension does not depend upon any order. It is only for the purpose of quantifying the amount having regard to the service and other allied matters that it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of any such order but by virtue of the rules."

15. In Jitendra Kumar (supra), the apex

Court at paragraph-8 observed as follows:-

"It is thus hard earned benefit which accrues to an employee and is in the nature of "property". This right to property cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India."

// 21 //

16. Therefore, in view of the settled position

of law, as discussed above, the right to receive

pension does not depend on any order and it flows

by virtue of the Pension Rules. The pension accrued

to the petitioner under the statutory provisions of

the Pension Rules, is in a nature of property, which

cannot be taken away by the opposite parties

without due process of law. As a consequence

thereof, the pension, which has been accrued to the

petitioner under the Pension Rules, cannot be

denied to him without adopting due process of law.

Since there is no adherence of any rule for denying

the benefit admissible to the petitioner under the

Pension Rules, the same cannot be withheld or

stopped or denied to the petitioner in any manner.

Consequentially, the opposite parties are obliged

under law to pay pension to the petitioner.

17. So far as the claim towards interest is

concerned, in view of the provisions contained

under section 17A(1) of the Industrial Disputes Act // 22 //

1947, the award shall become enforceable on the

expiry of thirty days from the date of its publication

under section 17. Since the award was published on