V.K. Jain vs The Managing Director

Instant petition has been filed by an officer of Middle Management Grade Scale-III who stood retired on 31.01.2010 with the grievance that the procedure adopted by the respondent bank in releasing commutation of pension to a retired person is discriminatory and arbitrary and he too needs indulgence of this Court for maintaining parity amongst the retired officers to whom commutation has been permitted by the bank who too are facing departmental/judicial enquiry, in clear ignorance of Reg. 47 of the State Bank of Bikaner and Jaipur (Employees'') Pension Regulations, 1995 (Regulations, 1995).

At the first instance it will be appropriate to quote Reg. 46 & 47 of the Regulations, 1995 which is relevant for the present purpose reads ad infra:-

Provisional Pension-

(i) An employee who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued, a provisional pension, equal to the maximum pension which would have been admissible to him would be allowed subject to adjustment against final retirement benefits sanctioned to him, upon conclusion of the proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld etc., either permanently or for a specified period.

(2) In such cases the gratuity shall not be paid to such an employee until the conclusion of the proceedings against him. The gratuity shall be paid to him on conclusion of the proceedings subject to the decision of the proceedings. Any recoveries to be made from an employee shall be adjusted against the amount of gratuity payable.

Explanation--In this chapter-

(a) the expression ''serious crime'' includes a crime involving an offence under the Official Secrets Act, 1923 (19 of 1923);

(b) the expression "grave misconduct" includes the communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, such as is mentioned in section 5 of the Official Secrets Act, 1923 (19 of 1923) which was obtained while holding office in the Bank so as to prejudicially affect the interests of the general public or the security of the State.

(c) the expression "fraudulently" shall have the meaning assigned to it u/s 25 of the Indian Penal Code, 1860 (45 of 1860);

(d) the expression "Criminal breach of trust" shall have the meaning assigned to it u/s 405 of the Indian Penal Code, 1860 (45 of 1860);

(e) the expression "forgery" shall have the meaning assigned to it u/s 463 of the Indian Penal Code, 1860 (45 of 1860).

Commutation of pension during departmental or judicial proceedings--An employee against whom departmental or judicial proceedings have been instituted before the date of his retirement or a person against whom such proceedings are instituted after the date of his retirement shall not be eligible to commute a fraction of his provisional pension, or pension, as the case may be authorised under these regulations during the pendency of such proceedings.

Reg. 46 clearly envisages that a retiree facing judicial/departmental enquiry is eligible for provisional pension and Reg. 47 provides that the retiree is not eligible for commutation of fraction of provisional pension or pension during departmental/judicial proceedings. It has been averred in the writ petition that withholding to commute fraction of provisional pension or pension as provided under Reg. 47 is arbitrary and no purpose is going to be served in withholding commutation more so when full pension as provisional pension is being paid/released to the retiree who is facing departmental/judicial enquiry.

The petitioner further submits that despite specific Reg. 47 under the scheme of Regulations, 1995 commutation has been permitted to such of the retirees who are facing either departmental/judicial enquiry and were pending on the date of commutation being released and according to him it is still pending before the appropriate competent authority.

It has been alleged by him that Sh. PD Bhargava who too was an officer of Scale-I and is facing judicial enquiry along with him after having been retired from service, despite a charge-sheet in the instant case came to be filed against the petitioner including Sh. PD Bhargava in March, 1996 and charge was also framed in 2003, still the responsible officer concealing all these material facts permitted to grant benefit of commutation to Sh. PD Bhargava on 01.01.2010 along with others, reference of which has been made in para-18 of the writ petition (page-11) and when he made complaint by submitting representation neither he was responded nor any action was taken by the bank and that compelled him to approach this Court by filing instant petition.

The Officers present in person for SBBJ, jointly submits that in light of Reg. 47 at least the present petitioner is not entitled for commutation as prayed for but as regards Sh. PD Bhargava is concerned indisputably commutation was permitted to him pending criminal trial on 01.01.2010 and in this regard after the complaint was received the matter is pending active consideration with the bank. But what is the outcome of the pending consideration has not been brought to the notice of the Court.

We have heard the parties present in person and also perused the material available on record.

From perusal of Regulations, 1995, it transpires that the bank has introduced a scheme for grant of pension and other retiral benefits to the retirees who are covered under the scheme of Regulations, 1995 and Reg. 47 which is relevant for the present purpose envisages that such of the employees who are facing departmental/judicial proceedings are not eligible to get their fraction of provisional pension or pension commuted during pendency of proceedings and in our considered view it is always open for the Rule Making Authority in granting eligibility to the retirees in claiming commutation of pension and it certainly has a nexus with the object to be achieved but the incumbent otherwise cannot claim as a matter of right unless permitted under the law and in our considered view Reg. 47 is intra-vires to the mandate of Constitution and is in conformity with Article 14 of the Constitution.

As regards the later submission made regarding discrimination amongst the employees who are facing criminal trial and commutation has been sanctioned on 01.01.2010, in our considered view they too were not entitled in terms of Reg. 47 of Regulations, 1995 but if at all there is any concealment or misrepresentation on their behalf it was for the officer of the bank to take appropriate action & scrutinize before any action is being taken under the law.

Since complete material is not made available before us, it will not be appropriate to comment upon but at the same time consider it appropriate that the Deputy General Manager, Jaipur Zone, Jaipur, who as informed, is the competent authority for the purpose to look into the matter and if commutation has been permitted to the persons, referred to, or any other incumbent which is in contravention of Reg. 47 of the Regulations, 1995 it is expected to take appropriate action in public interest.

In our considered view the petitioner at least cannot claim parity with the persons, referred to, in violation of Reg. 47 of Regulations, 1995. The discrimination which can be claimed & prayed for is always a positive discrimination and any discrimination in contravention of the scheme is not permitted under the law and if at all the respondent has committed error or illegality in passing of order in contravention of the scheme of Regulations, 1995 at least this Court cannot be permitted to ask to commit further illegality in granting parity as prayed for by the petitioner.

It has been brought to the notice of the Court that this practice is very prevalent in bank in releasing gratuity of the retirees who are facing departmental/judicial enquiry despite the fact that the retiree is not eligible to release of gratuity under Reg. 46(2) of the Regulations, 1995. The officers present in Court submits that ordinarily it is withheld only when there is a case of monitory loss being caused to the bank or moral turpitude against the retiree.

We are sorry to say that condition which has been taken note of by the bank for the purpose of invoking Reg. 46(2) of the Regulations, 1995 is not in conformity with the mandate of law and it is expected from the bank to re-examine & take appropriate action under the law in respect of such of the employees who are facing departmental/judicial enquiry at the time of their retirement from service.

Consequently, the writ petition is devoid of merit and dismissed with the observations made (supra). However, it is expected from the bank to take appropriate action which the law permits.