N.A. Shankaranarayaria Setty vs ING Vysya Bank Ltd.

Hon''ble Mr. Justice, A.S. Bopanna

The appellant herein is the plaintiff in O.S.No.220/2005. The said suit was filed by the plaintiff seeking for a declaration that he had ceased o be in the services of the defendant/Bank at the end of the office hours on 26.06.2003 by voluntary retirement and not by resignation. Consequentially the relief for payment of the arrears of pension and the future pensions and pensionary benefits applicable to cases of voluntary retirement under the provisions of the Vysya Bank Ltd. (Employees) Pension Regulations, 1995, is sought. The suit however came to be dismissed by the judgment and decree dated 03.11.2009. The appellant is therefore before this Court assailing the same. The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity.

The case pleaded by the plaintiff is that he which is a banking company and according to him, he voluntarily retired from the services of the Bank on 26.06.2003. He had joined the services Gf the Vysya. Bank Ltd as an Officer/Branch Manager in Scale-II on 18.12.1974. He had thereafter earned successive promotions and was working as General Manager, a post in Top Executive Grade Seale-VII with effect from 29.04.2000. The service conditions of. the plaintiff were governed by the Vysya Bank Officers Regulations, 1990 (hereinafter referred to as ''the Regulations 1990'' for short) and Vysya Bank Ltd (Employees) Pension Regulations, 1995 (hereinafter referred to as ''the Pension Regulations 1995''). At the time when the plaintiff joined the services of the defendant-Bank, there was no pension payable to the employees. The Board of Directors of the Bank in its meeting held on 29.02.1996 adopted the Pension Regulations providing for pension as retiral benefit in lieu of contributory provident fund. As per Regulation-3 thereunder, the employees were required to exercise their option to come under the Pension Regulations. The plaintiff claims to have opted for pension and is therefore covered by the Pension Regulations.

In the said background, when the plaintiff was discharging his duties, the President of the defendant-Bank called the plaintiff to his chambers on 26.06.2003 and directed him to voluntarily resign from the services of the Bank is the allegation. It is averred that he was not allowed to leave the chambers without submitting the letter seeking to resign from the services of the Bank as instructed. The plaintiff claims that due to such coercive and intimidatory circumstances, the plaintiff submitted a notice of voluntary retirement dated 26 06.2003. The said letter was accepted as a resignation and the same was communicated to the plaintiff on 26.06.2003 and was relieved from the services of the Bank at the end of the working hours for the day. Immediately on receipt of the letter of acceptance, the plaintiff submitted a detailed representation on 26.06.2003 itself to the President of the defendant-Bank reiterating that he is entitled to the terminal benefits including pension treating his case as a case of voluntary retirement. The plaintiff was however informed by the letter dated 03.07.2003 that he would be entitled to his own contributions to provident fund with interest thereon, gratuity and the privilege leave encashment as per eligibility. The plaintiff thereafter made several representations, the details of which are indicated in the plaint. Since the case of the plaintiff was not considered by the defendant-Bank, the plaintiff relying on the Pension Regulations has sought for a declaration in the nature as prayed in the suit and referred to hereinabove.

The defendants on being served with the suit summons appeared and filed their detailed written statement. The employment of the plaintiff no doubt is admitted. However, the claim made in the plaint is termed as misconceived and untenable. The defendant contends that the plaintiff who was working as an Officer had tendered his resignation on 26.06.2003 and the defendant Bank accepted the same and he was relieved from the duties. Thereafter all his service benefits were settled. Since he had resigned on his own volition, it cannot be considered as voluntary retirement as he had not retired voluntarily oil 26.06,2003. As such it is denied that the plaintiff is entitled to pension as claimed. The plaintiff was rendering service under a contract and having shifted to the contractual package with effect from 01.08.2001 cannot contend otherwise on tendering resignation. The plaintiff has drawn all benefits under the contractual package and the suit filed belatedly is not tnainta:nable. The employee who has resigned is disqualified from availing pension and this aspect is known to the plaintiff who was a party to all earlier settlements. The defendant-Bank had adopted the modified Pension Regulations in the year 1995 and it would apply to employees who were in the service of the Bank on or after 01.01.1986 but, had retired before 01.11.1993. Such of the employees who retired between the said dates were required to exercise option within 120 days from the notified date and refund within 60 days the entire amount of Bank''s contribution to provident fund including interest accrued thereon with further simple interest at 6% p.a. The entitlement claimed by the plaintiff because he had opted to be governed under the Pension Regulation is denied. Regulation No.22 is referred wherein forfeiture of pension is provided in the case of resignation or dismissal or removal or termination.

Insofar as the contentious issue regarding the resignation, it is once again contended that the resignation was tendered by the plaintiff on 26.06.2003 and the same was accepted and the service benefits including provident fund has been settled. The averment of the plaintiff that he was called by the President of the defendant Bank to his chambers is denied. Since the plaintiff had resigned and it was accepted, the same cannot be treated as retirement is the contention. The defendants have therefore disputed the case of the plaintiff and have contended that the relief prayed for is liable to be rejected by dismissing the suit.

In the light of the rival contentions, the Court below has framed 6 issues for its consideration, which read as hereunder:

Does the plaintiff prove that he was forced to submit a letter of resignation by the president of defendant bank on 26-6-2003?

Does the plaintiff prove that he took voluntary retirement from the Bank?

Does the plaintiff prove that he is entitle for pension and thus he can claim Rs.26,550/- being arrears of pension with interest @ 18% per annum?

Does the defendant prove that the suit is not p.intainable?

Does the defendant prove that the suit is time barred?

Is the plaintiff entitle for relief? If so what order or decree?

The plaintiff in order to discharge the burden cast on him has examined himself as P.W.1 and has relied on the documents marked as Exhs.P1 to P15(a). Sri R.Kasturi, an Officer of the defendant Bank is examined as DW.1 and the documents at Exhs.D1 to D10 are relied on. The Court below on considering the rival contentions has held all the issues in the negative against the plaintiff and has dismissed the suit.

Sri P.S.Rajagopal, learned senior counsel appearing on behalf of Sri Ganapathi., learned counsEA for the plaintiff would contend that the Court below has not considered the matter in it correct perspective. It is his case that the recignation. dated 26.06.2003 was submitted due to coercion and pressure exerted on the plaintiff. Despite the same, by submitting the said letter the plaintiff had sought that the same be treated as voluntary retirement, Both in the case of resignation as well as voluntary retirement, an employee was required to give three months prior notice. As such, in either case, the resignation/voluntary retirement dated 26.06.2003 should have been accepted only after the lapse of the said period. In the instant case, the plaintiff had rendered more than 29 years of service and was due to retire on 30.09.2003. Therefore, if the said letter was considered as per the Service Regulations, it was almost at the period where the plaintiff in the natural course would have retired from service. Hence, at the fag end, the plaintiff would not have submitted his resignation unless there was coercion and this aspect has not been appropriately considered. Further, the plaintiff had also not sought for immediate acceptance of his resignation/voluntary retirement and the defendants could not have accepted it to the detriment of the plaintiff. The plaintiff was governed under the Pension Regulations 1995 as he had opted for the same as required thereunder and the benefit of pension could not have been denied to the plaintiff by creat:.ng a situation of forfeiture of the same by treating the letter as resignation instead of voluntary retirement. It is in that context, the plaintiff had sought for the declaration that the case of the plaintiff be declared as one of voluntary retirement and the benefits be granted. The learned senior counsel in that regard has referred to the evidence on record and has made specific reference to the cross-examination of D.W.1 wherein he has accepted that the plaintiff had requested to treat the resignation letter as voluntary retirement. It is further pointed out that though the Court below has relied on certain decisions of the Hon''ble Supreme Court with regard to the clear distinction between resignation and retirement, it is his case that by the subsequent decision, this Court as well as the Hon''ble Supreme Court had the occasion to consider the similar Pension Regulations and has granted the benefit to the employee by holding that if the employee has completed the period of qualifying service where under he is entitled to seek voluntary retirement, in such case, even resignation should be considered as voluntary retirement and the benefits should be made available. Hence, he seeks that the appeal be allowed.

Sri S.N. Murthy, learned senior counsel appearing on behalf of Sri C. Gowrishankar, learned counsel for the respondent would seek to sustain the judgment passed by the Court below. The learned senior counsel has also referred to the documentary evidence available on record, more particularly the very documents relied on by the plaintiff himself. In that regard, it is contended that the plaintiff is a qualified person and being a Chartered Accountant was dealing with other employees and as such, he is well aware of the Regulations and the distinction between resignation and retirement. In that regard, the letter dated 26.06.2003 is in the form of a resignation letter. The requirement of prior notice would bind the employee, however, it would be open for the employer to waive such notice and accept the resignation as provided under the Regulations. Accordingly, the acceptance letter has been issued and the benefits payable has also been paid. Though a detailed letter dated 26.06.2003 was addressed by the plaintiff on the same day making a request for considering it as voluntary retirement, the same does not allege coercion relating to the resignation. After having accepted the position, the plaintiff for the first time has alleged coercion while issuing the legal notice dated 06.11.2004. Though the plaintiff contended that only the plaintiff and the President were in the chamber when he was coerced, the very letter written by the plaintiff would indicate that according to him there were other persons in the chamber viz., the Heads of Audit Department and Vigilance Department. This would indicate the falsity of the claim of the plaintiff and therefore the contenticn that it should be considered as voluntary retirement is not tenable. The learned senior counsel would further seek to distinguish the judgments relied on by the learned senior counsel for the plaintiff. He further contended that the situation has not altered despite the cited decision, since the relief granted therein is in the facts of the said case which is not akin to the facts herein. In the instant case, the entire case of the plaintiff rested on the allegation that there was coercion in submitting the resignation dated 26.06.2003. When the same has not been proved, the plaintiff would not be entitled to the benefit under the Regulations to treat it as voluntary retirement more particularly in the circumstance where the plaintiff in the absence of choosing for a honourable separation would have subjected himself to disciplinary proceedings. Despite being aware of the position, the plaintiff has chosen to file the suit as an afterthought. The judgment of the Court below therefore does not call for interference is his contention.

Keeping in perspective the case put forth by the parties before the trial Court and the contentions raised in this appeal in view of the judgment of the Court below, the following points would arise for consideration.

i) Whether the Court below was justified in denying the relief to the plaintiff without considering the circumstances and the mariner in which the letter dated 26.06.2003 (Ex.P3) was submitted?

ii) Even if the allegation of coercion is not proved to the hilt, whether the plaintiff would be entitled to the benefit by treating the letter dated 26.06.2003 (Ex.P3) as voluntary retirement?

iii) In view of the position of law enunciated, whether in the facts and circumstances of the present case the plaintiff is entitled to pension by treating his case as voluntary retirement ?

The fact that the plaintiff waG working as Senior Executive in the defendant-Bank as cn 26.06.2003 is not in dispute. It cannot also be disputed that as on the said date, the plaintiff had in all rendered 29 years of service since he had joined service on 18.12.1974. The service conditions of the Officers of the defendant-Bank are regulated under the Regulations 1990 (Ex.R15). Under the said Regulations among other things, Regulation No.17 relates to voluntary retirement which provides that an Officer who has attained 45 years of age or has completed 20 years of qualifying service may apply for voluntary retirement by giving three months prior notice in writing to the Management. The Management has the discretion to permit such Officer to retire or reject the application. The Officer permitted to retire will be eligible for all the terminal benefits. Regulation No.18 relates to the termination of service where under an Officer who has completed 3 years after the date of confirmation may resign from the services of the Bank by giving 90 days prior notice to the Bank or surrendering different kinds of leave to his credit in lieu of notice. The acceptance is at the discretion of the Bank and it takes effect only after acceptance. The Management hao also the discretion to accept the resignation and relieve the Officer at once or at any time before the expiry of the notice period. This being the premise on which the instant case would have to be examined to come to the conclusion as to whether the case of the plaintiff that his case be considered as voluntary retirement could be accepted, the other factual aspects of the matter involved in the case needs to be noticed.

The defendant-Bank adopted the Pension Regulations, 1995, which is similar to all other banking establishments. The said Regulations were also made applicable to retired employees who were in the services of the Bank on 01.01.1986 but had retired before 01.11.1993. The plaintiff being in service of the Bank as on the date of notifying the said Regulations was also entitled to take benefit of the Pension Regulations subject to the option being exercised within 120 days from the notified date to become a member of the fund. In the instant case, the plaintiff has exerdsed his option. Though certain contentions were urged by the defendants with regard to the plaintiff serving under the contractual package and therefore contending that the plaintiff would not be entitled to the benefit of Pension Regulations, the DW.1 in his cross examination has admitted that the Regulations are applicable to the persons working under contractual package scheme. On that aspect in any event, the Court below has held that the Regulations are applicable. Under the said Pension Regulations, 1995 (Ex.P14), Regulation No.22 provides for forfeiture of service wherein it is stated that resignation or dismissal or removal or termination of an employee from the service of the Bank shall entail forfeiture of his entire past service and consequently shall not qualify for the pensionary benefits. Further, Regulation No.29 provides for payment of pension on voluntary retirement wherein it is stated that an employee who has completed 20 years of qualifying service may give notice of three months to retire from service. Sub-Regulation-(3)(a) also envisages for an employee to make a request to accept notice of voluntary retirement of less than three months giving reasons there for.

It is in the background of the Pension Regulations containing a provision for forfeiting the service in the cace of resignation so as to disentitle pensionary benefits, the question as to whether the cessation of employment of the plaintiff in the defendant-Bank is by way of resignation or by voluntary retirement has assumed importance, more particularly in a situation, where the plaintiff herein is qualified in all other respects to seek voluntary retirement except that the letter dated 26.06.2003 does not specify the notice period. Further, the defendant-Bank has rejected the request for voluntary retirement made in that letter and has accepted it as the resignation. It is in that context the plaintiff was before the Court below praying the relief as noticed above.

In justification of the relief sought, the plaintiff has pleaded that he had been summoned to the chambers of the President on 26.05.2003 and he was coerced to submit the resignation. Though he submitted the letter dated 26.06.2003 (Ex.P3 which is also marked as Ex.D3 by confronting it to the plaintiff), under such circumstances, he had also sought for considering it as application for voluntary retirement as he was qualified for the same. The plaintiff apart from examining himself as PW.1 and. stating with regard to the circumstance under which the said letter was submitted has also relied on the documents at Exhs.P4 to P11 to contend that immediately on receiving the letter intimating the acceptance of the resignation, on the same day i.e., 26.06.2003, he has made a detailed representation (Ex.P5) seeking that his case be considered as voluntary retirement and by the letter dated 27.06.2003 (Ex.P6) he has referred to the actual situation under which the letter dated 26.06.2002 was submitted. It is true that no other person has been examined to establish the fact of submitting the letter under coercion. Though there was a specific issue relating to the aspect of coercion, to the said extent, the Court below though has noticed the said azpe67, there is no specific finding as to whether there is coercion or not. But considering that issue Nos.1 to 3 were taken up together, the Court below on taking note of the decisions cited on behalf of the defendant-Bank has accepted the letter dated 26.06.2003 (Ex.P3) on its face value as resignation. It has thereafter adverted to consider the purport of the words ''resignation'' and `retirement'' as held by the Hon''ble Supreme Court and has thereafter answered the issues in the negative against the plaintiff.

In the above backdrop, the reliance placed on the decisions cited by the learned senior counsel for the plaintiff with reference to similar Pension Regulations prevailing in other establishments to contend that when an employee has qualified in all respects to seek for voluntary retirement and in such circumstance, even if the resignation is submitted, the same is to be treated as voluntary retirement needs to be looked into. In the case of Smt. Satya Srinath Vs. Syndicate Bank, the Division Bench of this Court was considering a similar Regulation wherein an employee who had been voluntarily retired from service with effect from 23.12.1992 for unauthorised absence was seeking benefit of the Pension Regulations which had been subsequently adopted and had provided benefit to persons who were in service as on 01.01.1986 but had retired before 01.11.1993. This Court taking note that the Regulations are remedial statute intended to benefit the retired employee and should receive liberal construction has thereafter proceeded to hold that an employee who has put in more than the minimum qualifying service would be entitled to the benefit even in the case of resignation. The said view is affirmed by the Hon''ble Supreme Court in the case of Syndicate Bank -vs- Smt. Satya Srinath 1 (2009) 16 SCC 4221.

In the case of Purtfab National.Bunk vs. P.K.Mittal (1989 Supp.(2) SCC 174 the issue relating to the notice period for resignation was considered by the Hon''ble Supreme Court and it was held that the proviso which enabled the competent authority to reduce the period of three months should not be interpreted as enabling the Bank to thrust a resignation on an employee with effect from a date different from the one on which he can make his resignation effective under the terms of the Regulation. In that case, the employee had indicated that the resignation would become effective from 30.06.1986 though he submitted the letter on 21.01.1986 but, the same was accepted on 07.02.1986 itself which was disapproved by the Court. In the case of Maya Bank vs. Sri C.Narasimhappa and Ors (W.A.Nos.2956-2977/2012 DD 30.07.2012), the Hon''ble Division Bench of this Court while considering a similar Regulation where the employees concerned had been denied the benefit, has upheld the decision of the learned Single Judge wherein the resignation was directed to be treated as retirement since they were qualified in that regard to seek for voluntary retirement.

The learned senior counsel for the plaintiff in addition to the said decisions placed much reliance on the decision of the Hon''ble Supreme Court in the case of Sheelkumar Jain Vs. The New India Assurance Company Ltd. and Others, which in fact has been relied on in the case of Sri C. Narasimhappa and others (supra). In the said case, the Hon''ble Supreme Court while concidering a similar Regulation has in the facts of the said case held that the employee who had resigned after serving three months notice is entitled to the benefits of pension as he was otherwise qualified for seeking voluntary retirement as on the date of the resignation. It is to be noticed that in the said decision, the Hon''ble Supreme Court has taken note of the earlier decisions in the case of Sanwar Mal and Cecil Dennis Solomon which were relied on by the Court below in the instant case.

The learned senior counsel appearing for the defendant-bank however sought to distinguish the case of Sheel Kumar Jain as against tile case on hand by contending that the facts are not similar as evident from the contention which is notized in para 5 of that judgment. It was a case of an employee who was seeking the benefits subsequently when the Regulation came into force and in the said case, since he had given three months notice arid had also worked for three months which is similar to the provision for voluntary retirement, the case has been accepted. It is further pointed out that the Hon''ble Supreme Court has stated that the statutory provisions will have to be construed in each case to find out whether the termination of service was by resignation or by way of voluntary retirement. It is therefore contended that in the instant case, it is a clear case of resignation and as such none of the decisions relied on by the learned senior counsel for the plaintiff is beneficial in the present facts.

No doubt, the facts in all the above cases are not exactly similar to the facts in the present case. Though the said decisions are not akin to the present facts on all fours, similar Regulations were considered in all the said cases and a beneficial interpretation in favour of the employee was provided. However, the basic principle decided in all the cases is that if an employee is otherwise qualified and if all the conditions relating to voluntary retirement are met, the cessation of employment even if jt is by submitting resignation, such cases would have to be treated as one of voluntary retirement and the pensionary benefits should be made available. In all the said cases, though the resignations had been submitted, the notice period was also served which was akin to the voluntary retirement. However, the Hon''ble Supreme Court in Sheel Kumar Jain''s case on laying down the principle has held that the decision is to be arrived in the facts of each case. Hence it is necessary for me to revert back to the case put forth in the instant case and to arrive at a conclusion as to whether in the instant case, the communication dated 26.06.2003 should be construed as resignation or as voluntary retirement.

In that light, though the learned senior counsel for the defendant-Bank contended that the document at E:x.D3 dated 26.06.2003 is the resignation submitted by the plaintiff being well aware of the Regulations and the same has been accepted and proceeded further, with reference to Ex.P6, it was further contended that certain irregularities in the discharge of his duties had been noticed and it is in that context the plaintiff had submitted the resignation to airoid being penalised. But, to that effect, there is absolutely no pleading in the written statement nor has DW,1 the witness examined on behalf of the defendant bank stated anything with regard to this aspect. Understandably they have avoided doing so, as otherwise the defendant-Bank by pleading in that regard would have conceded that the resignation was extracted, which would have acquired the colour of being punitive.

In Ex. P6 there is a reference made by the plaintiff himself that he had been called by the President on 26.06.2003 in the presence of heads of Audit and also Vigilance department, The President is stated to have given two options either to resign or to accept suspension. The learned senior counsel for the defendant-Bank in fact referred to that portion to contend that even as per the plaintiff, there were others in the chamber of the President and it cannot be accepted that only plaintiff and President was there and he had been coerced to resign. If this is kept in perspective and in that context if the defence is noticed wherein the defendant-Bank only contends that the plaintiff had submitted his resignation and the same was accepted, the resignation in the present facts cannot be considered as resignation which had been submitted in the normal course to accept such contention of the defendant-Bank on its face value. It is difficult to accept as to why in a normal circumstance, the plaintiff would have forfeited the benefit of such long service when admittedly he was aware of the Regulations and he had the left over service period of only short duration to retire in regular course. That period was also sufficient to be treated as notice period for voluntary retirement. Therefore, certainly there was some external pressure to which the plaintiff has succumbed.

Further, what has been stated by the plaintiff in the communication dated 27.06.2003 (Ex.P6) has not been controverted. In fact there is an indication that the resignation was not free and voluntary but, was in the unavoidable circumstance when the employee was left in a position to choose between the devil and the deep sea. Keeping this aspect in view, though the letter dated 26.06.2003 (Ex.D.3) does not refer to the notice period as in the cases cited supra, neither does the plaintiff seek immediate acceptance of the same. Further, it does not however stop at merely tendering the resignation. In fact the plaintiff proceeds farther in the said letter to request that the same be treated as voluntary retirement. If it was in the natural course, the defendant-Bank ought to have kept in view the Regulations 1990 and should have accepted the same with effect from the lapse of the period stipulated therein unless there was some other compulsion for it to exercise its diem etion as contained in the proviso to accept it at once and the same should have been brought forth at least in the written statement filed in the suit. Instead the original of the said letter which is marked at Ex. D3 would indicate as per the note therein that on the same day it has been accepted with immediate effect and it further states that the voluntary retirement is denied. Thereafter on the same day, the a;:ceptance letter has been issued (Ex.D4). On receipt of the acceptance letter, the plaintiff also on the very same day i.e., 26.06.2003 made a representation (Ex.P5 8a D5) wherein the plaintiff has indicated the long length of service he has put in and has again requested that his case be considered for voluntary retirement. In reply to the same, by the communication dated 03.07.2003 (Ex.D6), the defendant-Bank has cryptically rejected the request for voluntary retirement.

If the above said documents are perused, it would be clear that the plaintiff in fact was pleading to accept his case as one of voJuntary retirement. No doubt in service jurisprudence and even under the Regulations in the instant case, the employer would have the prerogative to accept or reject the request for voluntary retirement keeping in view the requirements of the organisation., eligibility, pending disciplinary proceedings if any etc., but in any event, such exercise of power cannot be arbitrary and is always open to judicial scrutiny and review. In that background, when in the instant case the very subject letter dated 26.06.2003(Ex.D3) which is construed as a resignation also seeks for treating it as voluntary retirement and admit the plaintiff for the benefits of the voluntary retirement and a further request was also made by another representation on 26.06.2003 itself and such requests were rejected cryptically, the same called for judicial scrutiny and suit was instituted. In that circumstance, when the plaintiff was before the Court and had stated with regard to the situation under which his letter was treated as resignation, as noticed, the defendant-Bank except contending that it is just a resignation and it has been accepted has not provided any explanation as to the impediment that had occasioned for it to have accepted it as voluntary retirement when such request had been made and no reasons had been indicated for rejection of his request letter.

As noticed above, it is true that the said letter does not indicate reference to the notice period. In the instant case, the plaintiff having served for 29 years was due to retire in the regular course on 30.09.2003. Keeping that in perspective, if the said letter was treated as application for voluntary retirement as requested, the plaintiff could have still served for three months as he had remaining semice of 3 months and 4 days. Instead the defendant bank has proceeded to not only treat the same as resignation, but has accepted it on the same day and relieved the plaintiff with immediate effect. Even assuming that there were certain allegations against the plaintiff, it was open for the defendant-Bank to proceed in accordance with law, but securing the resignation in such circumstance and denying the benefit of long service would amount to imposing the punishment without compliance of the due procedure. The contention that the resignation was submitted as he wanted to get away from the punishment could have been accepted in a situation if the plaintiff had submitted a plain letter of resignation without referring to voluntary retirement under the very same letter and if no representation was made on the same day as has been done in the present case but if he had belatedly approached the Court. Therefore, in the backdrop of the present facts, though the aspect relating to coercion has not been established by examining any other person or placing such material, in a civil case when the matter is considered from the touchstone of preponderance of probabilities, the circumstances would make the case of the plaintiff more probable te be accepted.

In the above background, when the plaintiff had the qualifying service required under the Regulations as on 26.06.2002 and when he would have been entitled to the benefits under the Pension Regulations but for the forfeiture contemplated therein by treating the f.:tter as resignation, the benefit of the Pension Regulation:, would have to be made applicable to the plaintiff by treating the same as voluntary retirement. Though unlike in the cited cases the notice period has not been indicated in the letter, the circumstances discussed above will disclose that even the said period was available to be computed at that stage. The further contention of the defendant-Bank that the plaintiff has received the provident fund contribution of the defendant bank in settlement of the benefits on resignation being accepted also cannot be of avail. The plaintiff in any event was agitating his right for voluntary retirement from the date his request was turned down and his case was treated as resignation. In a situation where he had lost the employment and there would be no income from that day which had come as a bolt from the blue, the receipt of the amount cannot be held to his disadvantage since in any event the instant Regulations while making it applicable to the employees who had already retired and had received their Provident Fund benefits has made a provision for refund of the amount and thereafter take benefit of the Pension Regulations as provided in Regulation 3(c) of the Pension Regulations, 1995. Hence, the case of the plaintiff also could be regulated in a similar manner.

That being the position, I am unable to sustain the impugned judgment and decree passed by the Court below as I find that the Court below was not just''.fied. The Point No.1 raised herein is answered accordingly. In that view, the Point Nos.2 and 3 are answered in favour of the plaintiff holding that the plaintiff is entitled to the benefit of pension under the Pension Regulations, 1995, by treating his case as one of voluntary retirement. In the result, the following:

ORDER

i). The appeal in.RFA No.309/2010 is allowed and the judgment and decree dated 03.11.2009 passed in 0.S.No.2201/2005 is set aside.

ii). Consequently, the suit in O.S.No.2201/2005 is decreed in favour of the plaintiff.

iii). It is accordingly declared that the plaintiff has voluntarily retired from the services of the defendant-Bank with effect from 26.06.2003 and the plaintiff is therefore entitled to the benefits as provided under the Vysya Bank Ltd. (Employees) Pension Regulations, 1995.

iv). The plaintiff shall therefore refund the Bank''s contribution to the Provident Fund as per the procedure and requirement contained in Regulation 3(1)(c) of the Pension Regulations, 1995, within 60 days from this day.

v). The defendant Bank is directed to calculate the arrears of pension from 27.06.2003 and pay the same to the plaintiff with interest at 6% p.a. till the date of payment and thereafter continue to pay the pensionary benefits as provided iinder the Pension Regulations, 1995.

vi). The plaintiff shall be entitled to the costs throughout.

vii). Draw up the decree accordingly.