Tara Chand vs Central Bank of India and Others

Sandeep Mehta, J.—By way of the instant writ petition, the petitioner has approached this Court assailing the legality and validity of the order Annexure-10 dated 12.09.2001 whereby his prayer for being granted pro-rata pension upon opting for Voluntary Retirement under the Central Bank of India Employees Voluntary Retirement Scheme, 2001 was rejected and for directing the respondent Bank to extend the pensionary benefits to the petitioner upon his retirement w.e.f. 1.4.2001. An alternative prayer has been made in the writ petition that in the event of the court holding petitioner ineligible for pensionary benefits under the CBIEVRS, the respondent Bank be directed to take him back in service with all consequential benefits.

Succinctly stated the facts relevant and germane for disposal of the writ petition are noted hereinbelow:-

The petitioner''s date of birth is 1.2.1944. He joined as a L.D.C. in the respondent Central Bank of India (hereinafter referred to as the Bank) on 2.7.1990. The Bank introduced Employees Voluntary Retirement Scheme, 2001 (hereinafter referred to as the CBIEVRS) for its employees. The scheme was operational during a limited window between 22.2.2001 to 8.3.2001. As per the admitted case of the parties, while joining service, the petitioner had opted for Pension Scheme under the Central Bank of India (Employees) Pension Regulation, 1995 (hereinafter referred to as the Pension Regulations). The petitioner applied for Voluntary Retirement under the CBIEVRS which was accepted on 31.3.2001. He prayed for pensionary benefits but by orders Ex. 6 dated 12.6.2001and Ex. 10 dated 12.9.2001 the petitioner''s claim for pension was declined. Hence, he has approached this Court by way of the instant writ petition praying for the above relief.

A few of the relevant provisions of the Central Bank of India (Employees'') Pension Regulations, 1995 are quoted hereinbelow for ready reference:-

"14. Qualifying Service. - Subject to the other conditions contained in these regulations, an employee who has rendered a minimum of ten years of service in the Bank on the date of his retirement or the date on which he is deemed to have retired shall qualify for pension.

35 Amount of Pension:- 1) In respect of employees who retired between the 1st day of January, 1986 but before the 31st day of October, 1987, basic pension and additional pension will be updated as per the formulate given in Appendix-I.

(2) In the case of an employee retiring in accordance with the provisions of the Service Regulations or Settlement after completing a qualifying service of not less than thirty three years the amount of basic pension shall be calculated at fifty per cent of the average emoluments.

(3) a) Additional pension shall be fifty per cent of the average amount of the allowances drawn by an employee during the last ten months of his service;

b) no dearness relief shall be paid on the amount of additional pension.

Explanation - For the purpose of this sub-regulation "allowances" means allowances which are admissible to the extent counted for making contributions to the Provident Fund.

(4) Pension as computed being aggregate of sub-regulations (2) and (3) above shall be subject to the minimum pension as specified in these regulations.

(5) An employee who has commuted the admissible portion of his pension as per the provisions of regulation 41 of these regulations shall receive only the balance of pension, monthly.

(6)(a) In the case of an employee retiring before completing a qualifying service of thirty three years, but after completing a qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under sub-regulations (2) and (3) and in no case the amount of pension shall be less than the amount of minimum pension specified in these regulations..."

(Emphasis supplied)

Thus, it is seen from Clause 6(a) of the Regulations that an employee who retires after completing ten years of service would be entitled for pro-rata pension.

Some of the relevant clauses of the CBIEVRS, 2001 which are relevant to decide the controversy in hand read as under:-

"ELIGIBILITY:-

4.1. All permanent employees of the bank will be eligible to seek voluntary retirement under the scheme provided they meet the following eligibility criteria as on the date of application:-

a) they have completed 15 years of service in the Bank

OR

b) 40 years of age.

(Emphasis supplied)

OTHER BENEFITS:-

An employee seeking voluntary retirement under the scheme will be eligible for the following benefits in addition to the ex-gratia amount mentioned in Clause 5 above of this scheme:-

i) Gratuity as per Payment of Gratuity Act 1972 or Gratuity payable under the Service Rules as the case may be, as per existing rules;

ii) a) Pension (including commuted value of pension) as per Central Bank of India (Employees'') Pension Regulations 1995 (in case of those who have opted for Pension and otherwise eligible for the same).

(Emphasis supplied)

A clarification was issued in regards to Clause 2.5 of the CBIEVRS vide C.O. Circular No. PRS 2000-01 : 232 dated 31 January, 2001. The Bank relies upon the clarification for supporting its decision not to grant pensionary benefits to the petitioner. The clarification is also reproduced hereinbelow for the sake of ready reference:-

"2.5 In terms of clause 6 of the scheme, an employee seeking voluntary retirement under this scheme will, in addition to the ex-gratia amount to the extent stated therein, be eligible for gratuity as per existing Act/Rules, as the case may be, and pension (including commuted value of pension) as per Pension Regulations (In case of those who opted for pension and otherwise eligible for the same) or Banks'' contribution towards PF (in respect of employees opted to PF), Leave encashment as per existing rules.

In this context, it is clarified that in terms of the proposed amendments to Pension Regulations, the employees who opted for pension but completed minimum 15 years of service and opt for voluntary retirement under this scheme would also be eligible for pro-rata pension for the period of service rendered as if they are to retire on attaining the age of superannuation. In other words, such employees are not eligible for the addition of 5 years notional weightage which is otherwise available to other pension optees retired voluntarily under Regulations 29 of Pension Regulations. This provision is applicable pending adoption of the amendment to Regulation 78 of Central Bank of India (Employees'') Pension Regulation, 1995, through due process."

(Emphasis supplied)

The petitioner''s case is that he had served the Bank in excess of the minimum 10 years of qualifying service required under the Pension Regulations, 1995 and had also crossed the age of 40 years as per Clause 4.1(b) of the CBIEVRS, 2001. Thus he is entitled to receive proportionate pension/pro-rata pension.

Learned counsel appearing on behalf of the Bank has laid reliance upon the clarification to Clause 2.5 of the CBIEVRS, 2001 in order to support the Bank''s decision that as the petitioner had not completed 15 years of service, therefore, he was not entitled to get pensionary benefits under either of the Schemes.

Learned counsel for the petitioner relies upon the judgment rendered by the Hon''ble Supreme Court in a bunch of civil appeals led by Bank of India and Anr. Vs. R. Mohandas reported in (2009) 2 SCC (L&S)-32 and contends that the said Clause 2.5 of the Scheme was declared to be arbitrary and unconstitutional by the Supreme Court and thus the same could not have been utilized to deny the petitioner the right to receive pension under the CBIEVRS, 2001. He further submits that otherwise also, from a bare language of clarification to Clause 2.5, it is evident that the clarification is based on proposed amendments in the Pension Regulation. The Bank has not come out with a case that the proposed amendments were effected in the Pension Regulations, and therefore, reliance on the clarification effected in clause 2.5 of the Scheme is of no avail whatsoever to the Bank as the same never came in force.

Having heard and considered the arguments advanced by the counsel for the parties and after going through the Central Bank of India (Employees) Pension Regulations, 1995 and Central Bank of India Employees'' Voluntary Retirement Scheme, 2001, particularly clause 4.1 thereof, this Court is of the firm opinion that the petitioner who was above forty years of age and had completed 11 years of service in the Bank was definitely entitled to opt for voluntary retirement and simultaneously claim pension under the Scheme. The petitioner''s voluntary retirement was accepted by the Bank with open eyes. It is undisputed that the petitioner had opted for pension under the Pension Regulation, 1995. Clause 6(ii) of the CBIVERS, 2001 entitles the petitioner to pension (including commuted value of Pension) as per the Pension Regulations, 1995. Clause 2.5 of the CBIVERS, 2001 and the clarification thereto having been declared arbitrary and unconstitutional by the Supreme Court, there could not have been any justification for the Bank to have resorted to the clarification for denying the petitioner of his rightful pensionary benefits under the Central Bank of India (Employees'') Pension Regulations, 1995.

In view of the aforesaid discussion, the writ petition deserves to be and is hereby allowed. The orders Ex.6 dated 12.6.2001 and the order Ex. 10 dated 12.9.2001 are hereby declared illegal, quashed and set aside. The respondent Bank is directed to extend benefits of pro-rata/proportionate pension to the petitioner to the extent of his entitlement in terms of the CBIEVRS, 2001 read with the Central Bank of India (Employees'') Pension Regulations, 1995 within a period of three months from today. For the period during which the said benefits were arbitrarily and illegally withheld by the Bank, the petitioner will be entitled to interest on the withheld amount @ 9% per annum from the date of accrual till payment is made in light of judgment of the Hon''ble Supreme court in S.K. Dua Vs. State of Haryana and Another, AIR 2008 SC 1077 : (2008) 1 CLT 701 : (2008) 116 FLR 636 : (2008) 1 JT 331 : (2008) 1 SCALE 284 : (2008) 3 SCC 44 : (2008) 1 SCC(L&S) 563 : (2008) 3 SLJ 104 : (2008) AIRSCW 689 : (2008) 1 Supreme 95 . No order as to costs.