Sapna Roy vs Union Of India & Ors

I. P. Mukerji, J

This case involves interpretation of Clause 7 of the bipartite settlement read with Regulation 19 of the Officers' Service Regulations of the respondent bank, existing at the material time. It appears that they were the product of a settlement between the bank and its employees. Under it the officers who retired voluntarily or who resigned, were dismissed, terminated from service or compulsorily retired were not eligible to exercise the pension option. Interpretation of these conditions of service has become necessary because of the following facts.

The appellant appointed as Hindi Officer of the bank on 2nd January, 1984. On 12th November, 2005 she was transferred to Siliguri.

She became afflicted with Cervical Spondylosis with multilevel disc degeneration of the lumbar spine. She also developed asthma. A qualified doctor attached to the bank's "staff cardiac clinic", on 6th February, 2007 certified that he agreed with the opinion of the M. R. Bangur, Government Hospital that the appellant was not in a condition to resume her normal duties. This was accepted by the bank which issued a memorandum on 28th April, 2007 acceding to the request of the appellant for premature retirement "due to total incapacity of work". She was paid an exgratia amount of Rs. 8 lakhs. She was relieved of all duties after the office hours of 30th April, 2007. On 27th April, 2010 communicated by a circular dated 27th August, 2010 the respondent bank granted another opportunity to the employees to exercise the option to join the pension scheme. The appellant applied accordingly on 27th October, 2010. The bank informed the appellant by a letter dated 5th July, 2011 that she was not eligible to exercise the option.

The ground relied upon by the bank was that the appellant had retired voluntarily by resignation and was, thus, not eligible for pension by the operation of the said settlement and regulations.

This weighed with the learned Judge. He opined that the bipartite settlement was a contract between the bank and its employees. Separation from service on medical grounds by the employee was voluntary and that she was ineligible to avail of the pension scheme.

In my opinion, this is not a purposive interpretation of the regulations and settlement but a very literal one. The condition concerning voluntary act of resignation referred to in regulation 19 read with the settlement, is material. The other modes of separation of service from dismissal, termination and compulsory retirement are by virtue of unilateral acts by the employer, and not applicable.

Now, when the above conditions refer to resignation it means a decision consciously and voluntarily taken by an employee to be relieved from service. This is quite different from the situation where an employee is forced to resign by reason of an illness which according to the medical certificate accepted by the bank stated that she was suffering from a hundred percent incapacitating illness. The appellant was forced by circumstances to resign. Most certainly, this is not a case where an employee resigns on his/her own volition, avails of all the benefits, leads a life of choice and thereafter tries to get pension.

Hence, in my opinion, Regulation 19 and Clause 7 of the Settlement relating to voluntary retirement had no manner of application to the appellant. She is entitled to the benefit of the pension scheme.

The impugned judgment and order dated 3rd February, 2016 is set aside.

We set aside the decision of the respondent bank dated 5th July, 2011.

The respondent bank is directed to process the application of the appellant for pension resulting in the grant of pension within three months of communication of this order, subject to the appellant surrendering any special benefit received on her resignation/ voluntary retirement, as determined and communicated by the bank within four weeks of communication of this order and surrendered by the appellant within three weeks thereafter.

This appeal (FMA 3809 of 2016) is allowed.

Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.

I agree.