M Jayasheela Naik vs Vysya Bank Limited

THIS appeal is by the complainant challenging the order of the District Forum dismissing his complaint.

THE facts in this case are as follows : The complainant was working as an Officer in the opposite party Bank (for short, the ''Bank'') since 13.10.1977. There are no complaints whatsoever against him while he was serving in the Bank. He tendered his resignation to the post, which he held, on 8.8.1997, i.e., after serving the Bank for 19 years 9 months and 25 days. Before the resignation was accepted by the Bank, the complainant had written another letter dated 17.8.1997 to the Bank requesting the Bank to treat the letter submitted by him on 8.8.1997 as a letter opting for Voluntary Retirement from the service of the Bank. At this stage it is necessary to mention that the Bank had introduced a Scheme called ''Vysya Bank Pension Scheme'' (for short, the ''Pension Scheme'') with effect from 1.11.1993. Before the coming into force of the Pension Scheme, the complainant was entitled for the benefit of Provident Fund, for which 10% of the Basic Pay had to be contributed both by the employer and the employee.

AFTER the coming into force of the Pension Scheme, the complainant opted for pensionary benefits under the Pension Scheme on 29.9.1995. Under the Pension Scheme, an employee would be entitled for pension depending upon the qualifying service required for availing the pension.

THE Bank instead of considering the request of the complainant for Voluntary Retirement, passed an Order refusing to accept the request for Voluntary Retirement as per its letter dated 23.8.1997. It appears subsequent to the said letter, the complainants letter for resignation was accepted and the decision to that effect was communicated to the complainant. Consequent on this, the complainant could not get either the Pension under the Pension Scheme or the Provident Fund, to which he was entitled before opting for pension under the Pension Scheme. The Bank consequent on accepting the resignation of the complainant has paid the Provident Fund contributed by the complainant and denied the employers contribution on the ground that the employers contribution towards the Provident Fund was tansferred to the Fund created for payment of pension under the Pension Scheme. This denial of employers contribution of Provident Fund has made the complainant to file the complaint before the District Forum. The case of the Bank is that the complainant is not entitled for pensionary benefits under the Pension Scheme for the reasons that he had not completed 20 years of qualifying service and that the complainant did not retire from service inasmuch he left the job by tendering resignation to the post which he was holding.

THE District Forum after considering the rival contentions raised by the parties passed the impugned order dismissing the complaint of the complainant. The correctness of the said order has been challenged by the complainant in this appeal.

THE fact that the complainant had put in service of 19 years 9 months and 25 days is not disputed. It is not in dispute that the complainant tendered his resignation through his letter dated 8.8.1997. Further, it is also not in dispute that the complainant had written another letter dated 17.8.1997 requesting the Bank to treat the earlier letter dated 8.8.1997 as one for Voluntary Retirement. Mr. I.T. Rai, learned Counsel appearing for the complainant, submitted that when an employee resigns the post held by him without specifying the date, it is open for him to withdraw the letter of resignation before its acceptance. In the instant case, even before the acceptance of the resignation, the complainant had written letter dated 17.8.1997 requesting the Bank to treat his letter of resignation as one for Voluntary Retirement. From this it is clear that the letter of resignation dated 8.8.1997 given by the complainant to the Bank is deemed to have been withdrawn by him before any decision is taken by the Bank on his tendering resignation as he had requested to treat the said letter for voluntary retirement by his letter dated 17.8.1997. The Bank no doubt has rejected the request of the complainant for Voluntary Retirement as per its letter dated 23.8.1997. Subsequent to that, the Bank has accepted the letter of resignation submitted by the complainant, which, in our view, is not correct. The acceptance of the resignation by the Bank, in our view, is not correct, as there was no request by the complainant to consider his case for resignation in the eye of law as on the date of its alleged acceptance, since the letter of resignation is to be treated as letter for voluntary retirement as requested by the complainant in his letter dated 17.8.1999. But rightly or wrongly, the Bank has accepted the resignation of the complainant and relieved him from his duties. Consequent on acceptance of the resignation, the complainant was paid his contribution of Provident Fund. The complainant being a retired employee was forced to accept the payment of Provident Fund to eke out his livelihood. If the Bank had paid the employers contribution of Provident Fund, in all probability, the complainant could not have any grivance as against the Bank.

THE facts referred to above disclose that though the complainant had served the Bank for almost about 20 years, he is deprived of the benefit of the Provident Fund which he would have got had he not opted for pension under the Pension Scheme.

THE Pension Scheme provides that an employee has to put in minimum of 20 years of service in case of Voluntary Retirement in order to get Pension. According to the Bank, the service put in by the complainant is less than 20 years and, therefore, he is not eligible for pension under the Pension Scheme. Copy of the Pension Scheme has been produced by the learned Counsel appearing for the complainant at the time of arguments for our perusal. Clause IV of the Pension Scheme, inter alia provides that the qualifying service required for availing Pension as follows : (a) Minimum 10 years service in case of superannuation. (b) Minimum 20 years in case of Voluntary Retirement. Clause V of the Pension Scheme reads as follows : ''Broken period of service if less than one year but more than six months shall be treated as one year and if it is less than six months it shall be ignored.'' Admittedly, the complainant had put in 19 years 9 months and 25 days of service. As per Clause V, the period of service rendered by the complainant is required to be rounded -off to 20 years and in such case if the employee is permitted to retire voluntarily, he will be entitled for pension under the Pension Scheme. The Bank has rejected the request of the complainant for voluntary retirement on the ground that he has not put in active service of 20 years in the Bank. This reasoning is contrary to Clause IV read with Clause V of the Pension Scheme. Therefore, we are of the view that the decision of the Bank in its letter dated 23.8.1997 declaring that the complainant is not entitled for Pension under the Pension Scheme is liable to be declared as illegal. Consequent on such declaration, the complainant is entitled for pension under the Pension Scheme. In the instant case, the complainant has received his contribution made towards the Provident Fund. When we asked the learned Counsel appearing for the complainant whether the complainant is willing to refund the amount received by him towards his contribution of Provident Fund with interest, he said that the complainant is willing to do so, provided he is given pensionary benefits under the Pension Scheme.

THE learned Counsel appearing for the Bank relying on the decision of the Supreme Court in the case of UCO Bank v. Sanwar Mal, reported in 2004 II CLR 872 submitted that the complainant is not entitled either for the benefit of Pension under the Pension Scheme or for the Provident Fund contributed by the Bank. The facts of the said case are different from the facts involved in the case on hand. Therefore, the law laid down by the Supreme Court in the said case has no application to the present case.

IT is not fair and reasonable to deprive pension to an employee who has served the Bank for about 20 years without any complaint whatsoever. The Bank ought to have considered the case of the complainant under Clause IV read with Clause V of the Pension Scheme. In the instant case, there is no such consideration. The Rules or Regulations providing for pension are for the benefit of the employees and they have to be interpreted in favour of the employees who served the institution. Every employee who is in service expects that he would get pensionary benefits on his retirement for his livelihood during his old age. Therefore, keeping in view that the complainant has served the Bank for nearly 20 years without any complaint whatsoever, we are of the view that the complainant shall not be deprived of the benefits to which he is otherwise entitled under the Pension Scheme. The District Forum without considering the fact that the complainant is entitled for pension under the Pension Scheme has proceeded to dismiss the complaint. Therefore, the order passed by the District Forum is liable to be set aside.

THE complainant in his complaint has prayed for payment of Rs. 1,69,425. However, he has not asked for grant of Pension. If the Bank is willing to withdraw its contribution towards Provident Fund which was transferred to the Fund created under the Pension Scheme for payment of pension to its employees on their retirement, in all probability the complainant will have no grievance. In the event if it is not possible for the Bank to withdraw the said amount from the Fund, then we have no option but to hold that the complainant is entitled for pension under the Pension Scheme. Further, even though the complainant has prayed for payment only to the extent of employers contribution of Provident Fund, ultimately it is for the Forum or the Commission to mould the relief and grant the same in order to do substantial justice to the parties.

IN the result, we pass the following Order: (1) The appeal is allowed. The impugned order is set aside. (2) The complaint of the complainant is allowed in the following terms: (a) The decision of the Bank refusing to accept the request of the complainant for Voluntary Retirement in its letter dated 23.8.1997 is declared as illegal. Consequently, we declare that the complainant is voluntarily retired from service with effect from 23.8.1997. (b) The Bank is directed to consider the case of the complainant for pension under the Pension Scheme, which came into force with effect from 1.11.1993 treating that the complainant had put in 20 years of service as per the Pension Scheme and pay pension with effect from 23.8.1997. The arrears of pension payable to the complainant from 23.8.1997 till payment shall be paid with interest at 6% per annum in accordance with the Pension Scheme, provided the complainant refunds the amount drawn by him towards Provident Fund to the Bank with interest at 6% per annum from the date of receipt of the said amount till the amount is refunded to the Bank. (c) Alternatively, if the Bank intends to pay the Employers Provident Fund to the complainant, it is open for the Bank to pay its Contribution of Provident Fund to the complainant with interest at 6% per annum from the date the said amount became payable to the complainant till the date of actual payment. (d) In the event if the complainant is paid the Provident Fund as directed above, he would not be entitled for pension under the Pension Scheme as directed in para (b) above. (e) Parties to bear their costs.

Appeal allowed.