Abraham T.V. v. State Bank of Travancore and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 25[TH] DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943** ## **WP(C) NO. 16175 OF 2014** **PETITIONER:** ABRAHAM T.V,AGED 47 YEARS, S/O.VARGHESE.T.K,RETIRED SPECIAL ASSISTANT,STATE BANK OF TRAVANCORE,MUNDAKAYAM BRANCH,MUNDAKAYAM686513,RESIDING AZT THENGUVELIL HOUSE,PULICKATHADOM,KUTTIPLANGADU.P.O,KOOTTICKAL686514. BY ADVS. SRI.B.ASHOK SHENOY SRI.K.V.GEORGE SRI.P.S.GIREESH SMT.C.G.PREETHA SRI.P.N.RAJAGOPALAN NAIR ## **RESPONDENT/S:** 1 THE STATE BANK OF TRAVANCORE, REPRESENTED BY ITS MANAGING DIRECTOR,HEAD OFFICE,P.B.NO.2704,POOJAPURA,THIRUVANANTHAPURAM-695012. 2 THE CHIEF MANAGER, STATE BANK OF TRAVANCORE,PF,PENSION AND GRATUITY SECTION,FINANCE & ACCOUNTS DEPARTMENT,HEAD OFFICE,P.B.NO.2704,POOJAPURA,THIRUVANANTHAPURAM-695012. 3 THE CHIEF MANAGER STATE BANK OF TRAVANCORE,MUNDAKAYAM BRANCH,MUNDAKAYAM686513. BY ADV SRI.P.RAMAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 5.10.2021, THE COURT ON 25//10/2021 DELIVERED THE FOLLOWING: W.P(C) NO.16175/2014 2 ## **JUDGMENT** The writ petitioner joined the first respondent bank on 4/7/1994 as a cashier-cum-clerk. Over a period of time, he got promoted as the special assistant. While-so, he opted for voluntary retirement under Regulation 29 of the State Bank of Travancore Employees Pension Regulations 1995, a copy of which was produced as Ext.P1. He was relieved from service with effect from 31/1/2014 by Ext.P2 order. He claimed pension under the provisions of the above Regulation by submitting an application to the 1[st] respondent through the 3[rd] respondent. After consideration by the 3rd respondent, by Ext.P4 communication his request was declined on the ground that he had not completed the minimum qualifying service under Rule 29 of Ext.P1. The petitioner had actually completed 19 years six months and 28 days of service. 2. The above order is challenged in the present writ petition. The relief sought is to quash Ext.P4 and to declare that the petitioner had completed 20 years of qualifying service by virtue of Regulation 18 of Ext.P1. Another relief sought was to reckon his pension accordingly. 3. A statement was filed by the respondents jointly. It was contended that the petitioner had not completed 20 years of qualifying service as contemplated under Rule 29. It was stated that Regulation 18 will not come to his rescue, in the light of the facts. He was not entitled to the benefit under Regulation 32 of Ext.P1 as well, since he had not retired under the orders of the Bank to retire prematurely. It was reiterated that he was denied pension for valid reasons. W.P(C) NO.16175/2014 3 4. Heard the learned counsel for the petitioner and the learned counsel for the Bank. 5. Basic facts are not in dispute. It is also an admitted fact that the petitioner had completed 19 years six months and 28 years of service. Under Regulation 2 (w) of Ext.P1, “qualifying service” means the service rendered while on duty or otherwise, which shall be taken into account for the purpose of pension under these Regulations. Regulation No.29 deals with the pension on voluntary retirement. Regulation 29 reads as follows; _Pension on Voluntary Retirement – (1). On or after the 1[st] day of November, 1993, at any time after an employee has completed twenty years of qualifying service, he may, by giving notice of not less than three months in writing to the competent authority retire from service._ 6. Relying on Ground No. B, the learned counsel for the petitioner contended that Ext.P4, and the impugned action of the respondents are illegal and arbitrary. It was contended that the respondents are estopped from denying the pensionary benefits to the petitioner on the premise of not having minimum qualifying service of 20 years, after having accepted his application for voluntary retirement, which was available only to employees who have put in 20 years of service, as per Regulation 29 of Ext.P1 and after having allowed him to retire accordingly. It was contended that by virtue of Regulation 29, only those employees who had completed qualifying service of 20 years alone are entitled to seek voluntary retirement. Since the voluntary retirement application was W.P(C) NO.16175/2014 4 accepted by the respondents, it should be deemed that the bank, after having reckoned the qualifying service in the light of Regulation 18 of Ext.P1, treated the qualifying service as 20 years. It was contended that in the light of the above, after having accepted the voluntary retirement application treating the service as qualifying service of 20 years, the bank cannot now turn round and contend that the petitioner had not completed 20 years of qualifying service. 7. In this regard, it is essential to refer to Regulation 18 which reads as follows: _18.Broken period of service of less than one year :- If the period of service of an employee includes broken period of service less than one year, then if such broken period is more than six months,it shall be treated as one year and if such broken period if six months or less, it shall be ignored._ 8. Relying on the above provision, learned counsel for the petitioner vehemently contended that, in this case the petitioner has completed more than 19 and half years of service, which should be rounded off invoking Regulation 18 and it should be treated as 20 years of qualifying service, by reckoning the broken period of six months and 28 days of service as one year service. 9. This contention was vehemently opposed by the learned counsel for the bank by contending that Regulation 18 will apply only when there is a break in service during the period of service and only in such cases, if the break in service exceeds six months, it shall be treated as one year and if it is less than six months, it should be ignored. It was contended that, applying the above W.P(C) NO.16175/2014 5 principles, the petitioner was not entitled for the benefit under Regulation 18. 10. To support the case of the petitioner, the learned counsel for the petitioner emphatically relied on Ext.P5 judgment of this court in an identical situation. In that case, which is _**Santha Sakku Bai v. State Bank of India in W.P.(C) No.21045/2006**_ , the petitioner therein was an employee of the Bank and had put in actual period of service of 20 years eight months and four days. However, she had availed 259 days of leave under various heads. Reducing the period of leave from the total length of service, the petitioner had to her credit, a total service of 19 years, 11 months and 11 days. Petitioner therein contended that by applying Regulation 18, the said period of 19 years 11 months and 11 days was liable to be treated as qualifying service of 20 years, entitling her for superannuation pension. The bank did not accept that contention, which was challenged in the above writ petition. By Ext.P5 judgment, the learned Single Judge held that, on terms of Regulation 18, since the petitioner had more than 19 years and six months of service, it has to be treated as 20 years of service. Regulation 29 which deals with payment of superannuation stipulates that an employee who has completed 20 years of qualifying service is entitled to superannuation pension. Therefore, applying the Regulation 18, it has to be held that the petitioner had 20 years of qualifying service as on 31/3/2021. 11. Distinguishing the above decision from the facts of this case, the learned counsel for the bank strongly contended that in that case, the petitioner therein had more than 20 years of service including the leave availed by him. Excluding that only, he had 19 years 11 months and 11 days of actual service. W.P(C) NO.16175/2014 6 Accordingly, this court invoked Regulation 18 to treat the period exceeding six months as one year. Such peculiar facts are not available in the case at hand, it was contended. 12. I am not inclined to accept the above contentions of the learned counsel for the Bank. It is pertinent to note that in Ext.P5 judgment, the petitioner had only qualifying service of 19 years 11 months and 11 days. It was in that context, Regulation 18 was called in aid. Applying it, it was treated as 20 years of actual service. The facts therein is exactly similar as that of the present case. This has also to be noted in the background that Regulation 29 provides that the applications for voluntary retirement of employees who have completed 20 years of actual service alone would be accepted. Hence, it has been presumed that by accepting the voluntarily retirement application, the bank in principle, accepted as having completed 20 years of actual service, possibly by invoking Regulation 18. There is no other explanation for accepting his application for VRS, if the contention of the bank that he had not completed 20 years of qualifying service is accepted. The learned counsel for the bank contended that Regulation 18 applies only when there is a broken period of service intervening the actual period of service and when there is a fraction of an year at the end of service. The contention of the learned counsel for the petitioner was that, the word broken period of service, as available in Regulation 18, has to be reckoned as a break between the service and if that exceeds six months, it would be treated as one year. I am not inclined to accept the above contention in the light of the words employed in Regulation 18. It says that if W.P(C) NO.16175/2014 7 the period of service of employee includes broken period of service of less than one year, Regulatin 18 would apply, as the case may be. That means, if one employee had not completed a full year of service that broken portion of the period would be rounded off, depending on whether it exceeds six months or is less than six months. 13. The learned counsel for the petitioner, to support his contention, further relied on a decision reported in _**State Bank of Patiala v. Pritam Singh Bedi and Others ((2014) 13 SCC 474**_ ) wherein an identical question was under consideration before the Supreme Court. In that decision, employees of State Bank of Patiala, who had availed the benefit of VRS under State Bank of Patiala Voluntary Retirement Scheme, 2001, but had not completed 20 years of qualifying service under Rule 29 of the State Bank of Patiala(Employees)Pension Regulation 1995, had approached the Supreme Court claiming benefit under Regulation 18 of the State Bank of Patiala Voluntary Retirement Scheme 2001. In that case, Regulations 29 and 18, were exactly similar as Rule 29 and Rule 18 in the case at hand. Accepting the contention of the employees that they are entitled to the benefit of Rule 18 notwithstanding the fact that they had completed 20 years of qualifying service, but had completed 19 years ten months and 28 days of qualifying service are entitled to be reckoned as 20 years of qualifying service, the Supreme Court held that Regulation 18 of the Pension Regulation 1995 provides that if broken period is more than six months it shall be treated as one year. Therefore, all the respondents/writ petitioners, having completed more than 19 years and six W.P(C) NO.16175/2014 8 months service in the bank had to be treated to have completed 20 years of service. 14. In this context, the interpretation given to the term “break in service” considered by the Supreme Court in its various decisions including in _**Hans Raj v. State of Punjab and Others [(1985) 1 SCC 134]**_ , **Banaras Hindu University, Varanasi and another v. Indra Pratap Singh (AIR 1992 SC 780)** and _**State of Maharashtra v. Shashikant S.Pujari And Others [(2006) 13 SCC 175)**_ is relevant. In all the above cases, the term 'break in service' in the context of continuity in service was considered by the Supreme Court. In all the cases, Supreme Court proceeded on the basis that 'break in service', is one that occurs in the course of employment, and break in service during the interregnum. Definitely, the term employed in the pension regulations, applicable to the facts of this case is “broken period of service” and not “break in service” and both are not synonymous and should receive different meaning. 15. In the light of the above, it is clear that by applying Ext.P5 judgment and the principle laid down by the Hon'ble Supreme Court in State Bank of Patiala v. Pritam Singh Bedi and others case (cited supra), the petitioner is entitled for pension, treating his qualifying service as 20 years by virtue of Regulation 18 of Ext.P1. In Ground No. F, the petitioner herein had raised an alternative contention that by virtue of Regulation 32 of Ext.P1, when the petitioner satisfies two conditions specified in sub clause (a) and (b), in as much as he rendered minimum ten years of service and retired from service contemplated by sub clause (b) therein, he ought to have been granted pension W.P(C) NO.16175/2014 9 accordingly. Though there is strong ground in favour of the petitioner, in the light of my finding earlier under Regulation 29 coupled with Regulation 18, I find no reason to consider the alternative prayer. 16. Having considered the entire facts and in the light of the discussion above, the prayer sought by the petitioner is liable to accepted. The writ petition is accordingly allowed quashing Ext.P4 and directing the respondent to quantify the pension payable to the petitioner and to issue pension payment order as expeditiously as possible at any rate within a period of two months from the date of receipt of a copy of this judgment. The pension shall be payable within one month thereafter along with other emoluments, if any. Sd/- ## **SUNIL THOMAS** **Judge** dpk W.P(C) NO.16175/2014 10 ## **APPENDIX OF WP(C) 16175/2014** PETITIONER EXHIBITS EXT.P1 COPY OF THE STATE BANK OF TRAVANCORE (EMPLOYEES)PENSION REGULATIONS,1995 NOTIFIED IN THE GAZETTE DATED 23.3.1996 EXT.P2 COPY OF LETTER MNO.AGM II/K/DATED 31.1.2014 ISSUED BY THE 3RD RESPONDENT TO PETITIONER EXT.P3 COPY OF THE APPLICATION FOR PENSION DATED 6.3.2014 SUBMITTED BY THE PETITIONER TO THE IST RESPONDENT THROUGH 3RD RESPONDENT EXT.P4 COPY OF THE LETTER NO.AGM II/K/DATED 20.6.2014 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER EXT.P5 COPY OF THE JUDGMENT DATED 27.8.2009 OF THIS HON'BLE COURT IN WP(C)21045 OF 2006.