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Judgment
T.S. Sivagnanam, J.—This Review Application is directed against the order passed by the Division Bench of this Court in Writ Petition No.
2905 of 1996, which was dismissed by a common order dated 11.06.2012, along with Writ Appeal No. 2320 of 2003. The review petitioner is
the writ petitioner in W.P. No. 2905 of 1996. The Writ Petition was filed for issuance of Writ of Declaration to declare Clause 22 of the General
Insurance (Employees) Pension Scheme 1995 as illegal and unconstitutional insofar as it forfeits the entire past service of an employee on
resignation and consequently direct the third respondent herein to pay the petitioner full pension as in the case of voluntary retirement, in
accordance with the Scheme, with interest, with effect from 1.11.1993. The Writ Petition was tagged along with Writ Appeal No. 2320 of 2003
and both cases were heard together and the Division Bench taking note of the decision of the Honourable Supreme Court in the case of UCO
Bank and Others Vs. Sanwar Mal, , wherein the Supreme Court considered the validity of Regulation 22 of the UCO Bank Employees Pension
Regulations 1995, dismissed the Writ Petition holding that the ""resignation"" and ""retirement"" stand on different footing as explained in the said
decision.
It appears that after arguments in the Writ Appeal and the Writ Petition was concluded, judgment was reserved on 07.06.2011. On
08.08.2011, learned counsel appearing for the petitioner appears to have mentioned before the Division Bench stating that in the decision of the
Honourable Supreme Court in the case of Sheel Kumar Jain V. New India Assurance reported in Sheelkumar Jain Vs. The New India Assurance
Company Ltd. and Others, , the Honourable Supreme Court has taken a decision, which would squarely cover the petitioner''s case.
Subsequently, learned counsel circulated a letter to the Registry of this Court, dated 08.08.2011 with a copy marked to the learned counsel
appearing for the respondent Insurance Company enclosing a copy of the decision of the Honourable Supreme Court in the case of Sheel Kumar
Jain and requested the Registry to post the matter for being mentioned to enable them to get appropriate orders from the Division Bench.
The New India Assurance Co. Ltd., which was the respondent in the case of Sheel Kumar Jain, (supra), moved a review petition before the
Supreme Court in Review Petition(c) No. 425 of 2012 in Civil Appeal No. 6013 of 2011 to review the said judgment. The Honourable Supreme
Court, by order dated 15.3.2012, after considering the averments in the Review Petition, dismissed the same holding that having regard to the facts
and issues involved, no case for review was made and there was no error in the order.
After the dismissal of the review petition by the Supreme Court in the case of Sheel Kumar Jain, (supra), once again learned counsel appearing
for the Writ Petitioner filed a memo dated 26.3.2012 before the Registry stating that W.P. No. 2905 of 1996 was heard by the Division Bench
and orders were reserved on 07.06.2011 and since the decision of the Supreme Court in the case of Sheel Kumar Jain, (supra), covers the
petitioner''s case, a copy of the judgment was circulated to the Court vide letter dated 08.08.2011 and as the Honourable Supreme Court on
15.3.2012 dismissed the Review Petition filed by New India Assurance Company Limited, a copy of that judgment was also enclosed along with
the said memo.
Though the request by the learned counsel for posting the matter for being mentioned was made as early as 08.08.2011, the matter was not
listed before the Division Bench; even after the memo dated 26.3.2012, the matter was not listed. The judgment was pronounced by the Division
Bench on 11.06.2012 without reference to the decision of the Honourable Supreme Court in the case of Sheel Kumar Jain, (supra), dismissing the
Writ Petition along with the Writ Appeal following the earlier order of the Honourable Supreme Court in the case of UCO Bank and Others V.
Sanwar Mal, (supra), wherein the Honourable Supreme Court held that there is difference between the ""resignation"" and ""retirement"", while
interpreting a pension scheme framed by UCO Bank.
In the above circumstances, the petitioner has filed the present Review Application contending that the order in the Writ Petition has to be
reviewed in the light of the decision of the Honourable Supreme Court in the case of Sheelkumar Jain Vs. The New India Assurance Company
Ltd. and Others, , which squarely covers the case of the petitioner and in spite of the same having been brought to the notice of the Division Bench,
the matter was not placed for consideration before the Court and therefore, it is a good ground to review the judgment.
We have heard the submissions of the learned counsel appearing for the third respondent on the above said plea.
A person considering himself aggrieved by any decree or order may apply for review from the discovery of new and important matter or
evidence which, after the exercise of due diligence, was not within his knowledge or on account of some mistake or error apparent on the face of
the record or for any other sufficient reason. In the case on hand, the arguments were advanced in the writ petition and orders were reserved by
the Division Bench on 07.06.2011. On 28.07.2011, the Hon''ble Supreme Court delivered judgment in the case of Sheel Kumar Jain, (supra),
while considering a pension scheme of another Insurance company, which was identical to the scheme framed by the respondent Insurance
company. According to the petitioner, the said decision is squarely applicable to the case of the petitioner. On coming to know about the
judgment, the petitioner circulated a letter to the Registry, dated 08.08.2011, for listing the matter for ''being mentioned''. The copy of the such
letter was also marked to counsel for the respondent Insurance company. The respondent in the case of Sheel Kumar Jain, (supra), was the
National Insurance company. Aggrieved by the said decision, they filed a review petition before the Hon''ble Supreme Court, which was rejected
by order dated 15.03.2012. Since the judgment in the writ petition and in the writ appeal, were yet to be pronounced, the petitioner through his
counsel circulated a memo to the Registry bringing to the notice of this Court about the dismissal of the review petition by the Hon''ble Supreme
Court in the case of Sheel Kumar Jain, (supra),. However, the writ petition was not listed for ''being mentioned'' and orders were pronounced
dismissing the writ petition by order dated 11.06.2012, without taking note of the decision in the case of Sheel Kumar Jain. In the light of the
above facts, we are fully convinced that the petitioner is entitled to invoke the review jurisdiction of this Court, since at the time when the orders
were reserved in the writ petition i.e., on 07.06.2011, judgment was yet to be pronounced by the Hon''ble Supreme Court in the case of Sheel
Kumar Jain, (supra),. On coming to know of the judgment of the Hon''ble Supreme Court, the petitioner brought the same to the notice of this
Court by circulating a letter dated 08.08.2011, followed by a memo dated 26.03.2012, in which the additional fact that the review petition was
also dismissed by the Hon''ble Supreme Court was brought to the notice of this Court. The fact remains, the matter was not posted for further
hearing and orders were passed dismissing the writ petition on 11.06.2012, without taking note of the decision of the Hon''ble Supreme Court in
the case of Sheel Kumar Jain, (supra). Therefore, the review petition is maintainable and accordingly, the same is taken up for consideration on
merits.
We have considered the submissions made by the learned Senior Counsel appearing for the petitioner as well as the learned counsel appearing
for the third respondent Insurance Company.
The facts which are necessary are that the petitioner joined the services of the Life Insurance Corporation of India as Junior Officer (General
Insurance) on 13.6.1964. After nationalisation of General Insurance business on 01.01.1973, the petitioner''s services were transferred to the
United India Insurance Company Limited, third respondent herein, which is a subsidiary of the second respondent General Insurance Corporation
of India. Consequent on such transfer, the petitioner''s services from 1964 was counted for all purposes. The petitioner, while working as Assistant
Manager in the third respondent Insurance Company submitted his resignation, effective from 01.04.1987. At the time of his resignation, the
petitioner had completed 23 years of continuous service. The petitioner was paid terminal benefits being Provident Fund and Gratuity. The
Government of India, by Notification in the official gazette on 28.6.1985, published the General Insurance (Employees'') Pension Scheme, 1995,
with effect from 01.11.1993 and in terms of Clause 3(1)(a), the Scheme shall apply to all employees, who were in service of the Corporation or a
Company, as the case may be, on or after the first day of January, 1986 but had retired before the first day of November, 1993. After the pension
scheme was announced, the petitioner submitted a representation on 20.10.1993 stating that he had completed 23 years of service and by relying
upon Clause 3 of the Pension Scheme requested the third respondent to work out the pension amount payable to him and arrange to remit the
same. Further the petitioner had enclosed the option form RE, which was prescribed under the Scheme and also undertook to refund to the
respondent company the entire amount of Company''s contribution to his Provident Fund amount within the period prescribed, namely,
22.12.1995. That apart, the petitioner undertook to refund the entire amount of non-refundable withdrawal made from the company''s contribution
to his Provident Fund amount with interest and enclosed the option form CPSM for commutation of pension. Since there was no reply to the
petitioner''s representation, the petitioner caused a legal notice dated 22.12.1995 to the third respondent. Since there was no written reply from the
third respondent-Insurance Company, the petitioner approached this Court by filing the Writ Petition being W.P. No. 2905 of 1996 for issuance
of Writ of Declaration to declare Clause 22 of the General Insurance (Employees) Pension Scheme 1995 as illegal and unconstitutional insofar as it
forfeits the entire past service of an employee on resignation and consequently direct the third respondent herein to pay the petitioner full pension as
in the case of voluntary retirement, in accordance with the Scheme, with interest, with effect from 1.11.1993.
The prayer sought for by the petitioner was resisted by the respondents by filing counter affidavit inter alia contending that the provisions
making the benefits of the scheme outside the scope for a resignee was perfectly valid, reasonable and bona fide. Further, it was submitted that the
resignation cannot be equated with termination, removal etc., and the contention of the petitioner was incorrect. The respondents further stated that
Clause 22 of the Scheme only specified the circumstances under which the past service of an employee was forfeited. Apart from the resignation,
termination, dismissal, removal etc., there were other circumstances that lead to forfeiture of past service. It is further stated that the petitioner had
not superannuated nor voluntarily retired but had resigned from the services of the respondent, therefore, he had no right to claim pension.
The Division Bench of this Court rejected the prayer of the petitioner by placing reliance on the decision of the Honourable Supreme Court in
the case of UCO Bank and Others Vs. Sanwar Mal, . It is to be noted that in the said judgment, the Honourable Supreme Court considered the
validity of Regulation 22 of the UCO Bank Employees'' Pension Regulation 1995. The Honourable Supreme Court observed as follows:
In the case of retirement, voluntary or on superannuation, there is a nexus between retirement and retiral benefits under the Provident Fund Rules.
Retirement is allowed only on completion of qualifying service which is not there in the case of resignation. When such a retiree opts for self-
financing Pension Scheme, he brings in accumulated contribution earned by him after completing qualifying number of years of service under the
Provident Fund Rules whereas a person who resigns may not have adequate credit balance to his provident fund account (i.e. bank''s contribution)
and, therefore, Regulation 3 does not cover employees who have resigned.
Thus, the Division Bench concluded that the judgment of the Supreme Court squarely applies to the case on hand, which drew a line between
the employees who have retired voluntarily and those who have resigned their services. Therefore, the Division Bench held that resignation and
retirement stand on different footing as has been explained and distinguished by the Honourable Supreme Court in the case of UCO Bank and
Others V. Sanwar Mal, (supra), and the petitioner herein having resigned his service cannot claim equality with the persons who retired/voluntarily
retired from their services, so as to claim benefits under the Pension Schemes.
In the case of Sheel Kumar Jain, (supra), the petitioner therein was an employee of the New India Assurance Company Limited and after
having completed 20 years of service, gave a letter to the Management on 16.9.1991 saying that he would like to resign from his post and
requested to treat the letter as three months'' notice and to relieve him from service. The letter was accepted by the Management and the employee
was informed that his resignation has been accepted by the competent authority with effect from 16.12.1991, i.e., after the completion of three
months'' notice period. After the introduction of the pension scheme, the petitioner therein made a request for sanction of pension and he had also
exercised the option as exercised by the petitioner herein in the Form prescribed under the Scheme. The respondent therein did not consider his
request favourably and therefore, he approached the Madhya Pradesh High Court by filing a Writ Petition, wherein he sought for a direction to pay
pension under the Scheme. The Writ Petition was dismissed by the learned single Judge of the High Court, which was confirmed by the Division
Bench. As against which, the employee preferred an appeal before the Honourable Supreme Court. The Honourable Supreme Court considered
several decisions including the decision in the case of UCO Bank and Others V. Sanwar Mal, (supra), and examined the words ''resignation'' and
''voluntary retirement''. Referring to the decision in the case of UCO Bank and Others V. Sanwar Mal, (supra), and in the case of Reserve Bank of
India and Another Vs. Cecil Dennis Solomon and Another, , the Honourable Supreme Court observed that in those decisions, Courts were not
called upon to decide whether the termination of services of the employee was by way of resignation or voluntary retirement, whereas, in the case
before the Supreme Court they were called upon to decide the issue whether the termination of the services of the appellant in 1991 amounted to
resignation or voluntary retirement.
After considering the Scheme, the Hon''ble Supreme Court held that the 1995 Pension Scheme was framed and notified only in 1995 and yet
the 1995 Pension Scheme was made applicable to employees who had left the services of respondent company before 1995. After referring to
Clauses 22 and 30 of the 1995 Pension Scheme, the Hon''ble Supreme Court pointed out that those provisions were not in existence when the
appellant therein submitted his letter dated 16.9.1991 and the appellant therein had no knowledge of the difference between ''resignation'' and
''voluntary retirement'' under Clauses 22 and 30 of the 1995 Pension Scheme. The Hon''ble Supreme Court further pointed out that similarly, the
insurance company (employer) had no knowledge of the difference between ''resignation'' and ''voluntary retirement'' under Clauses 22 and 30 of
the 1995 Pension Scheme. In the background of the above facts, the Honourable Supreme Court proceeded to decide whether the termination of
service of the appellant under sub-clause (1) of clause 5 of the 1976 Scheme amounted to resignation in terms of Clause 22 of the 1995 Pension
Scheme or amounted to voluntary retirement in terms of Clause 30 of the 1995 Pension Scheme and held as follows:
Clause 22 of the Pension Scheme, 1995 states that resignation of an employee from the service of the Corporation or a Company shall entail
forfeiture of his entire past service and consequently shall not qualify for pensionary benefits, but does not define the term ''resignation'';. Under
sub-clause (1) of Clause 30 of the Pension Scheme, 1995, an employee, who has completed 20 years of qualifying service, may by giving notice
of not less than 90 days in writing to the appointing authority retire from service and under sub-clause (2) of Clause 30 of the Pension Scheme,
1995, the notice of voluntary retirement shall require acceptance by the appointing authority. Since ''voluntary retirement'' unlike ''resignation'' does
not entail forfeiture of past services and instead qualifies for pension, an employee to whom Clause 30 of the Pension Scheme, 1995 applies
cannot be said to have ''resigned'' from service. In the facts of the present case, we find that the appellant had completed 20 years qualifying
service and had given notice of not less than 90 days in writing to the appointing authority of his intention to leave service and the appointing
authority had accepted notice of the appellant and relieved him from service. Hence, Clause 30 of the Pension Scheme, 1995 applied to the
appellant even though in his letter dated 16.09.1991 to the General Manager of respondent No. 1-Company he had used the word ''resign''.
After referring to the decision in the case of Sudhir Chandra Sarkar Vs. Tata Iron and Steel Co. Ltd. and Others, and in the case of AIR 1997
565 (SC) , the Honourable Supreme Court observed that the said decisions show that the Court will have to construe the statutory provisions in
each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of
voluntary retirement and while construing the statutory provisions, the Court will have to keep in mind the purposes of the statutory provisions.
Accordingly, while allowing the appeal, the Apex Court held as follows:
The general purpose of the Pension Scheme, 1995, read as a whole, is to grant pensionary benefits to employees, who had rendered service in the
Insurance Companies and had retired after putting in the qualifying service in the Insurance Companies. Clauses 22 and 30 of the Pension Scheme,
1995 cannot be so construed as to deprive of an employee of an Insurance Company, such as the appellant, who had put in the qualifying service
for pension and who had voluntarily given up his service after serving 90 days notice in accordance with sub-clause (1) of Clause 5 of the Scheme,
1976 and after his notice was accepted by the appointing authority.
It has to be pointed out that the decision in the case of Sheel Kumar Jain, (supra), is squarely applicable to the case on hand. The Scheme,
which is subject matter of consideration in this Review Petition is the same Scheme, which was subject matter of consideration before the Supreme
Court in the case of Sheel Kumar Jain, (supra). Both the appellant before the Hon''ble Supreme Court and the petitioner in this Review Petition
had worked in the Insurance Company and both of them had resigned within the cut off date fixed under the Scheme, i.e., the Scheme was made
applicable for such of those cases, who were in service as on 1.1.1986 to 1.11.1993.
In the case before the Hon''ble Supreme Court, the respondent Insurance Company was also a subsidiary of the General Insurance
Corporation and the provisions are one and the same. Further more, the Hon''ble Supreme Court pointed out that at time the petitioner submitted
his letter requesting to relieve the petitioner from the service, he had completed 20 years of service and at that point of time, the Scheme, which
was in vogue, namely, 1976 Scheme, the concept of ''voluntary retirement'' did not find place.
The objection of the third respondent Insurance Company in this Review Petition is that the Honourable Supreme Court in the case of Sheel
Kumar Jain, (supra), did not go into the prospective application of the Scheme and that the Honourable Supreme Court was not correct in its
observation that the appellant had no knowledge about the difference between ''resignation'' and ''voluntary retirement''.
In our view, the stand taken by the respondent is wholly untenable and the decision having been rendered by the Honourable Supreme Court is
binding on the respondent, since the Scheme, which is subject matter in this Review Petition is a self-same Scheme, which came up for
consideration before the Honourable Supreme Court in the case of Sheel Kumar Jain, (supra). Further, the petitioner''s case cannot be thrown out
solely on the ground of having financial difficulties or it would lead to similar claims by other resigned employees and such a plea cannot be a
ground to deny the relief to the petitioner, especially when the petitioner is entitled to the said benefit. Accordingly, the Review Petition is allowed.
Even though the petitioner prayed for a declaration to declare Clause 22 of the 1995 Scheme as illegal, yet, going by the decision of the Apex
Court in the case of Sheel Kumar Jain, (supra), we have no hesitation in holding that even without striking down Clause 22, the review petitioner is
entitled to the benefits of the Pension Scheme. The third respondent Insurance Company shall implement the order immediately based on his
representation already made, wherein the review petitioner undertook that he would return back whatever benefits he had received on resignation.
The respondent shall consider and pass orders in this regard within a period of three weeks from the date of receipt of a copy of the order. No
costs.