Daya V.K. Namboodiri v. Kerala Gramin Bank and Others

W.P.(C).No.27884/19 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944 WP(C) NO. 27884 OF 2019** ## **PETITIONER:** DAYA.V.K. AGED 56 YEARS D/O.SRI.KUNHIKRISHNAN NAMBOODIRI, RESIDING AT VILLA NO.4, RAINSCAPE, MANAL, P.O.CHALAD, KANNUR670014. BY ADVS. SRI.P.CHANDRASEKHAR SRI.K.K.MOHAMED RAVUF SRI.D.SREEKANTH SHRI. ANOOP KRISHNA ## **RESPONDENTS:** 1 KERALA GRAMIN BANK, REPRESENTED BY ITS CHAIRMAN, KGB TOWERS, A.K.ROAD, MALAPPURAM-676505. 2 GENERAL MANAGER, HUMAR RESOURCE WING, HEAD OFFICE, KERALA GRAMIN BANK, KGB TOWERS, A.K.ROAD, MALAPPURAM-676505. 3 CANARA BANK, REPRESENTED BY ITS CHAIRMAN, HEAD OFFICE, 112 JC ROAD, HALSURPETE, NAGARATHPETE, BANGALURU, KARNATAKA-560002. W.P.(C).No.27884/19 2 4 GENERAL MANAGER, REGIONAL RURAL BANK CELL, CANARA BANK, HEAD OFFICE, 112 JC ROAD, HALSURPETE, NAGARATHPETE, BANGALURU, KARNATAKA-560002. 5 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF ECONOMIC AFFAIRS (BANKING DIVISION), MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHI-110001. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SHRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.K.JOHN MATHAI SRI.PAULOSE C. ABRAHAM MANU S. ASG OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2022, THE COURT ON 26.08.2022 DELIVERED THE FOLLOWING: W.P.(C).No.27884/19 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(C).No.27884 of 2019 = = = = = = = = = = = = = = = = Dated this the 26[th] day of August, 2022** ## **JUDGMENT** - 1.This writ petition is filed seeking direction to the respondents to sanction pension to the petitioner with effect from 01.04.2018 and to disburse the arrears of pension and to continue to pay monthly pension regularly as expeditiously as possible and at any rate, within a time-frame that may be fixed by this Hon'ble Court. - 2.Heard the learned counsel for the petitioner and the learned standing counsel appearing for the respondent Bank. - 3.It is submitted that the petitioner was working as Assistant Manager in the North Malabar Gramin Bank. The North Malabar Gramin Bank was amalgamated into the Kerala Gramin Bank w.e.f. 8.7.2013. The petitioner submitted an option for quitting the service of the Kerala Gramin Bank in W.P.(C).No.27884/19 4 terms of sub-section 3(b) of Section 23A of Chapter VA of the Regional Rural Banks Act, 1976 (hereinafter referred to as the “Act” for short). She was relieved from the bank on 25.4.2015 by Exhibit P1 proceedings 23.4.2015. It is submitted that the petitioner's request for quitting under Section 23A(3)(a) and (b) of the Act was initially rejected on the ground that the amalgamation notification dated 8.7.2013 did not permit quitting of service by employees. The petitioner preferred W.P.(C).No.7070 of 2014 and by judgment dated 10.02.2015, this Court held that the rejection was unsustainable and that the provisions of Section 23A permit the option to the employees to quit the service of the bank, on amalgamation. It is submitted that Exhibit P6 order passed permitting the petitioner to quit specifically provided that the petitioner will be entitled for the “normal retirement benefits eligible to the cadre from where she was to quit” on 30.04.2015, subject to the conditions provided therein. It is pursuant thereto that the petitioner quit service as per Exhibit P1. Relying on the judgments of the Apex Court and Exhibit P7 judgment of the High Court of W.P.(C).No.27884/19 5 Karnataka, it is contended that the petitioner is entitled to all benefits including pension which was made applicable by Exhibit P10 to the employees of the Kerala Gramin Bank. Relying on Exhibits P18 and P19 documents it is contended that the employees of the Karnataka Gramin Bank who were placed in an identical situation had been granted the benefit of pension after exercising the quit option under Section 23A (3)(b) of the Act. 4.A detailed counter affidavit has been placed on record by the respondents contending that the petitioner is by no means entitled to the benefit of Exhibit P10 which is a notification dated 12.11.2018 admittedly issued long after the petitioner's voluntary resignation from service. It is submitted that the petitioner did not retire from service of the 1[st] respondent bank and only those employees, who “retired” from service would be eligible for pension as per Exhibit P10. It is further contended that the effective date for Exhibit P10 is 1.4.2018 and the petitioner who quit the services of the bank before the said date is not entitled to any of the benefits. It is W.P.(C).No.27884/19 6 contended that the language of 23A(3)(b) as well as Exhibit P6 would make it clear that the petitioner was entitled only to those benefits that she would normally have received had she retired from service on 30.04.2015 and not to any other benefits which would accrue to the employees, who continued in service. It is submitted that other benefits as stated in Exhibit P6 would not include any benefits which becomes available much later to the employees who were continuing in service and who 'retired' from service. - 5.The learned counsel for the petitioner places reliance on a judgment of this Court in W.P.(C).No.18105 of 2013 and a decision of the Apex Court in **South Malabar Gramin Bank** **v. Coordination Committee of South Malabar Gramin Bank Employees' Union and South Malabar Gramin Bank Officers' Federation and others** [ (2001) 4 SCC 101]. The learned counsel for the respondent would contend that the decision of the Apex Court was only on the question of pay parity and that the said decision has absolutely no application in the instant case. W.P.(C).No.27884/19 7 6.The learned counsel for the respondent would place reliance on a decision of the Apex Court in **Senior Divisional Manager, Life Insurance Corporation of India and others v. Shree Lal Meena** [(2019) 4 SCC 479] on the distinction between resignation and retirement, including voluntary retirement and contends that the petitioner's quitting of service was obviously a case of resignation and that the petitioner cannot seek any benefits which became available to the employees who continued in service of the bank after she quit the service. The decision of the Apex Court in **R.N.Rajanna (Dr.) v. State of Karnataka and another** [(2004) 1 SCC 249] is also relied on to contend that the date of effect of a pension scheme is a policy decision and though the word 'retirement' may take within its fold all kind of retirement when the same is used in the context of superannuation or retirement by way of superannuation and it is well settled that it is only in the case of retirees that the pension scheme would have effect. The decision in **Moti Ram v. Param Dev and another** [(1993) 2 SCC 725] is also W.P.(C).No.27884/19 8 relied on by the learned counsel for the respondent to contend that the resignation involves a spontaneous relinquishment of one's own right in relation to an office and connotes the act of giving up or relinquishment of the office. It is, therefore, contended that an employee who has relinquished his remaining service on his own volition cannot claim the benefits which accrued to other employees who retired from service. The decision of the Apex Court in **BSES Yamuna Power Limited v. Ghanshyam Chand Sharma and another** [(2020)3 SCC 346] is also relied by the learned counsel for the respondent. - 7.I have considered the contentions advanced on both sides at considerable length. The petitioner admittedly was served with Exhibit P1 proceedings dated 25.4.2015 permitting her to quit from service of the bank under sub-section 3(b) of Section 23A of the Act. The relevant provision of the Act reads as follows:- “23A. xxx xxxx xxxx xxxx - (3) Every notification issued under sub-section (1) may also provide W.P.(C).No.27884/19 9 for all or any of the following matters, namely:— xxxx xxxx (b) notwithstanding anything contained in clause (a), where any of the employees of the transferor Regional Rural Banks, not being workmen within the meaning of the Industrial Disputes Act, 1947 (14 of 1947) are specifically mentioned in the notification, or where any employee of the transferor Regional Rural Banks has by notice in writing given to the transferee Regional Rural Bank at any time before the expiry of a period of three months next following the date on which the amalgamation takes effect, intimated his intention of not becoming an employee of the transferee Regional Rural Bank, the payment to such employee of compensation, if any, to which he is entitled under the Industrial Disputes Act, 1947, and such gratuity, provident fund and other retirement benefits ordinarily admissible to him under the rules or authorisations of the concerned transferor Regional Rural Banks immediately before that date.” 8.The right of the employee, who has by notice in writing within three months intimated his intention of not becoming an employee of the transferee bank is for payment for such compensation, if any, to which he is entitled under the Industrial Disputes Act, 1947 and such gratuity, provident fund and other retirement benefits **ordinarily admissible** to (emphasis supplied) him under the rules or authorisations of the concerned transferor regional rural bank immediately before that date. W.P.(C).No.27884/19 10 9.Exhibit P6 is the proceedings dated 26.3.2015 issued to the petitioner. It permitted the petitioner to quit from service of the Kerala Gramin Bank from 30.4.2015. It is stated therein that the petitioner will be entitled to normal retirement benefits eligible to the cadre from which she is going to quit on 30.4.2015. It is contended that all benefits to which the petitioner was entitled as on 30.4.2015 were released to her. It is clear that the normal retirement benefits to which the the petitioner would be entitled under Exhibit P6 would admittedly be the benefits which would be ordinarily admissible to the petitioner as on the date of effect of her option to quit the service. 10.It is the specific contention of the respondents that a person would be entitled to pension only if he or she retires from service and not in a case of voluntary cessation of service. The decision of the Apex Court in **BSES Yamuna Power Limited v. Ghanshyam Chand Sharma and another** [(2020)3 SCC 346] is also relied by the learned counsel for W.P.(C).No.27884/19 11 the respondent. After considering the precedent law on the point including of the Apex Court in **Asger Ibrahim Amin v.Life Insurance Corporation of India** [2016 (13) SCC 797] which was held to be overruled, the Apex Court had held that a resignation cannot held as equivalent to voluntary retirement from service. Relying on a later judgment in **Senior Divisional Manager, Life Insurance Corporation** **of India and others v. Shree Lal Meena** [(2019) 4 SCC 479] the Apex Court found that the view in **Asger Ibrahim Amin** was disapproved in **Shree Lal Meena** that resignation from service entails a forfeiture of past service and therefore a person who resigned from service cannot be held to have voluntarily retired therefrom. - 11.It is the admitted case of the parties that Exhibit P10 notification came into effect only on 2.11.2018. The “effective date” of the notification is specified as 1[st] April, 2018 by Clause 2(k). “Notified date” means the date on which these regulations are published through Official Gazette, which is 2.11.2018. The “date of retirement” is W.P.(C).No.27884/19 12 defined as the last date of the month in which an employee attains the age of superannuation or the date on which he is retired by the Bank or the date on which the employee voluntarily retires. Retirement is defined as cessation from Bank's service i) on attaining the age of superannuation as specified in the service regulations. ii) on voluntary retirement in accordance with provisions contained in regulation 28. iii) on premature retirement by the Bank before attaining the age of superannuation in accordance with provisions contained in regulation 30. Chapter II of Exhibit P10 provides that the regulations shall apply to employees who were in service of the Bank between 1[st] day of September, 1987 and 31[st] day of March, 2010 and continued in service on or after the effective date, but retired before the notified date and submits an option within 120 days from the notified date to become a member of the fund. Chapter V provides for the classes of pension which are superannuation pension, pension on voluntary retirement, invalid pension, compassionate allowance, premature retirement pension, compulsory retirement pension and family pension. W.P.(C).No.27884/19 13 12.Having considered the contentions advanced, I am of the opinion that the petitioner, who quit the services of the bank on her own option, cannot claim to be an employee who “retired from service” to claim the benefits arising from Exhibit P10. Retirement is specifically defined in Exhibit P10 as cessation from the bank service on attaining the age of superannuation on voluntary retirement or on premature retirement in accordance with provisions of Regulation 30. The pensionary benefits are made applicable to employees, who were in service of the bank and continued in service on or after the effective date, but 'retire' before the notified date and submit an option within 120 days from notified date to become the member of the fund. The petitioner was a person, who was in service of the bank between 1.9.1987 and 31.3.2010. However, she had unilaterally decided to quit the services of the bank and by Exhibit P1 proceedings she was permitted to do so. Having quit the services of the bank in 2015, she cannot claim the benefit of pension which was brought into effect only by notification dated 21.11.2018 with W.P.(C).No.27884/19 14 effective date of 1.4.2018. True, the petitioner would have been entitled to pension had she retired from service. However, since retirement is specifically defined in Exhibit P10 and since the petitioner is not a person who retired from service going by the meaning attributed to retirement in Exhibit P10, I am of the opinion that the claim raised by the petitioner that she is entitled to pension from 1.4.2018 cannot be accepted. The contention that other retirement benefits ordinarily admissible would take in the pension which had not been made applicable at the time when the petitioner voluntarily quit the services of the bank, cannot be accepted. Therefore, the petitioner would not be entitled to claim such reliefs in view of the fact that she had as a matter of fact quit the services of the bank w.e.f. 30.4.2015. The writ petition, therefore, fails and the same is accordingly dismissed. **==> picture [23 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.27884/19 15 ## **APPENDIX OF WP(C) 27884/2019** PETITIONER EXHIBITS EXHIBIT P1 PHOTOCOPY OF THE LETTER NO.9/KGB/HRW/57/2015 DATED 25.4.2015 OF THE 2ND RESPONDENT - GENERAL MANAGE, KERALA GRAMIN BANK, MALAPPURAM. - EXHIBIT P2 PHOTOCOPY OF THE PROCEEDINGS - NO.9016/E.NO.640/PAIRD/2009 DATED 10.12.2009 OF THE GENERAL MANAGER, KERLA GRAMIN BANK. - EXHIBIT P3 PHOTOCOPY OF THE NOTIFICATION DATED 8.7.2013 PUBLISHED IN THE GAZETTE OF INDIA EXTRAORDINARY DATED 8.7.2013. - EXHIBIT P4 PHOTOCOPY OF THE PUBLIC NOTICE DATED 8.7.2013 ISSUED BY THE 1ST RESPONDENT. - EXHIBIT P5 PHOTOCOPY OF THE NOTICE DATED 4.10.2013 OF THE PETITIONER TO THE 1ST RESPONDENT - CHAIRMAN. - EXHIBIT P6 PHOTOCOPY OF THE LETTER NO.9/KGB/55/2015/HRW DATED 26.3.2015 OF THE 2ND RESPONDENT. - EXHIBIT P7 PHOTOCOPY OF THE ORDER DATED 22.3.2011 IN WRIT PETITION NO.20034 OF 2003(SRES) OF THE HON'BLE HIGH COURT OF KARNATAKA AT BANGALORE. - EXHIBIT P8 PHOTOCOPY OF THE JUDGMENT DATED 23.8.2012 IND.B.CIVIL SPECIAL APPEAL (W) NO.2021 OF 2011 OF THE HON'BLE HIGH COURT OF JUDICATURE OF RAJASTHAN AT JODHPUR. W.P.(C).No.27884/19 16 - EXHIBIT P9 - PHOTOCOPY OF THE ORDER DATED 25.4.2018 IN SLP(C)NO.39288 OF 2012 OF THE HON'BLE SUPREME COURT. - EXHIBIT P10 PHOTOCOPY OF THE KERALA GRAMIN BANK (EMPLOYEES') PENSION REGULATIONS, 2018NOTIFICATION DATED 2.11.2018-GAZETTE DATED 31.12.2018. - EXHIBIT P11 PHOTOCOPY OF THE NOTICE DATED 7.1.2019 OF THE 2ND RESPONDENT. - EXHIBIT P12 PHOTOCOPY OF THE APPLICATION FORMS FOR PENSION WITH THE REQUISITE DOCUMENTS AND COVERING LETTER DATED 17.1.2019. - EXHIBIT P13 PHOTOCOPY OF THE PRINT OUT OF THE SMS MESSAGE RECEIVED BY THE PETITIONER. - EXHIBIT P14 - PHOTOCOPY OF THE REPRESENTATION DATED 26.3.2019 ADDRESSED TO THE CHAIRMAN, KERALA GRAMIN BANK ALONG WITH THE POSTAL ACKNOWLEDGEMENT CARD. - EXHIBIT P15 PHOTOCOPY OF THE REPRESENTATION DATED 12.4.2019 OF THE PETITIONER TO THE CHIRMAN, KERALA GRAMIN BANK, MALAPPURAM WITH ACKNOWLEDGEMENT. - EXHIBIT P16 PHOTOCOPY OF THE REPRESENTATION DATED 2.5.2019 OF THE PETITIONER TO THE CHAIRMAN, KERALA GRAMIN BANK, MALAPPURAM. EXHIBIT P17 TRUE COPY OF THE PRINT - OUT OF E-MAIL REPRESENTATION DATED 12.6.2019 OF THE PETITIONER TO THE CHAIRMAN, KERALA GRAMIN BANK, MALAPPURAM. W.P.(C).No.27884/19 17 EXHIBIT P18 TRUE COPY OF THE REVISED PENSION PAYMENT ORDER DATED 17.10.2019 OF K.C YERRISWAMY STAFF NO.195,FIRMER ASSISTANE MANAGER, PRAGATHI KRISHNA GRAMIN BANK Exhibit P19 TRUE COPY OF LETTER DATED 14.02.2022 OF KARNTAKA GRAMIN BANK TO SRI A DYUTHISENAN. True copy PS to Judge