Hariharan.R v. The General Manager, Personnel Department, Indian Bank, Head Office, Chennai; and 3 others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY,THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940** ## **WP(C).No. 4330 of 2010** ## **PETITIONER/S:** **HARIHARAN.R, FORMERLY CLERK/SHROFF S.R.NO.17490, INDIAN BANK, PALLICKAL BRANCH, ADOOR, KERALA, T.C.NO 32, ASWATHY, PALAMVILA LANE,, N.C.C.ROAD, AMBALAMUKKU PO,THIRUVANANTHAPURAM, 690 005.** **BY ADVS. SMT.SREEDEVI KYLASANATH SMT.SHALEENA RAJAN SMT.V.J.SAFEENA SRI.V.SADASIVAN** ## **RESPONDENT/S:** - **1 THE GENERAL MANAGER, PERSONNEL DEPARTMENT, INDIAN BANK, HEAD OFFICE, 31-RAJAJAI SALAI, CHENNAI 600 001.** - **2 THE DY.GENERAL MANAGER HRM HRM DEPARTMENT, INDIAN BANK, HEAD OFFICE, CHENNAI 600 001.** - **3 THE ZONAL MANAGER INDIAN BANK, ZONAL OFFICE ,, ERNAKULAM, KOCHI.** - **4 THE CHAIRMAN MANAGING DIRECTOR THE INDIAN BANK, HEAD OFFICE CHENNAI 600 001.** **BY ADV. SRI.S.EASWARAN – SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 4330/10 2 ## **JUDGMENT** The petitioner, who concededly resigned from the services of the Indian Bank, has approached this Court seeking that the said Bank be directed to pay him eligible pension, under the provisions of the Indian Bank (Employees) Pension Regulations, 1995 (hereinafter referred to as Pension Regulations for short). Obviously, being aware of the specific stipulations of the Pension Regulations, which prohibits payment of pension in the case of resignation, the petitioner has also challenged Regulation 22(1) thereof as being illegal and unlawful. 2. The essential facts that deserve my attention, for resolution of the issues in this case, is that the petitioner is stated to have had 30 years of unblemished service when, on 31.05.2002, he resigned by submitting Ext.P1 request. This request appears to have been accepted by the competent Authority of Bank with WPC 4330/10 3 effect from 06.07.2002 and consequently, he was deemed to have been terminated from service. The petitioner admits that all his terminal benefits, including gratuity and provident fund, had been sanctioned and received by him; but he appears to have later realised that on account of Regulation 22(1) of the Pension Regulations, he has been denied pension, even though he had more than 30 years of service. He, therefore, asserts that this Regulation is bad and consequently, prays that the Bank be directed to pay him the eligible pension. He relies on the judgment of the Hon'ble Supreme Court in **Sheelkumar Jain v. New India Assurance Company Ltd and Others [AER 2011 Supreme Court 2990]** , wherein, according to him, the declaration of law is that even persons who had resigned from service would be entitled to pension, since the provisions of Pension Regulations are intended to grant pension and not to deny it. WPC 4330/10 4 3. On the afore assertions, the petitioner prays that Exts.P8 to P10, which are the communications issued to him by the Bank denying him pension, be also quashed. 4. I have heard Sri. Achuth Kylas, the learned counsel for the petitioner and Sri. S. Easwaran, the learned Standing Counsel for the Indian Bank. 5. The various provisions in the Regulations, a copy of which is placed on record as Ext.P11, cover both the scenarios-where an employee resigns from service and when he voluntarily retires from service, albeit under two different heads. Regulation 22(1) stipulates forfeiture of past service, thus being consequentially disentitled to pension, in the case of resignation, dismissal, removal or termination from service; while Regulation 29(1) provides for pension on voluntary retirement. Therefore, it is obvious from these WPC 4330/10 5 prescriptions that there is a clear distinction between resignation and retirement as regards entitlement to pension; and hence, when the petitioner had consciously preferred Ext.P1 resignation letter, being fully cognizant that Regulation 22(1) would thereafter dis-entitle him pension, he will have to establish that the Statutory Provisions are so unconscionable that this Court would be constrained to strike it down. 6. Sri. Achyuth Kylas, learned counsel appearing for the petitioner, commenced his submissions by saying that Regulation 22(1) of the Pension Regulations is extremely iniquitous in its operation, in as much as that it does not give any flexibility to a person, who is constrained to seek resignation on account of emergent situation, to do so with the benefit of pension. Illustratively, he says that in this case, the petitioner was suffering from certain WPC 4330/10 6 debilitating diseases, forcing him to seek resignation through Exhibit P1 letter. The learned counsel further adds that it was in such extenuating circumstances that his client could not wait even for ninety days, so as to retire voluntarily and that he was compelled to make his request for resignation. After saying so, he relies on the decision in **Balram Gupta v. Union of India and Another (1987 KHC 757)** to submit that in such exceptional circumstances, the Bank must show some empathy while dealing with their employees and that his client should be given the benefit of pension even though he has concededly resigned from service. 7. Sri. S. Easwaran, the learned Standing Counsel for the Indian Bank, in response to the contentions of the petitioner, submits that the conduct of the petitioner would take it beyond doubt that he was aware of the difference in the applicable Regulations, but that he had still WPC 4330/10 7 chosen to resign, when he could have waited after issuing a 90 days notice, for voluntary retirement. The learned counsel says that the pleadings are silent as to why the petitioner chose not to voluntarily retire under Regulation 29(1) and to seek immediate resignation under Regulation 22(1) and therefore, that he cannot now say that notwithstanding the conspicuous difference in the terminology used in these two Regulations, both such scenario must entitle him to pension. Sri. Easwaran, further says that the Regulations, having brought into force as early as in the year 1995; and the petitioner, being a Senior Officer, must certainly be held to be aware of the difference in the concepts of resignation and retirement and therefore, that his attempt to challenge this Regulation, more than 8 years after resigning from service is untenable. 8. As regards the judgment of the Hon'ble WPC 4330/10 8 Supreme Court in **Sheelkumar Jain** (supra), Sri. Easwaran contends that the said judgment was delivered by the Hon'ble Supreme Court in the context of certain other schemes, namely, The General Insurance (Employees) Pension Scheme, 1995 and The General Insurance (Termination), Superannuation and Retirement of Officers and Development Staff Scheme, 1976; whereas, the issues involved in this case are with respect to a completely different set of Regulations, which apply to this Bank, having been adopted by it from the Model Regulations published by the Indian Bank Association. The learned counsel says that this distinction has been clearly noticed by the Hon'ble Supreme Court in a subsequent judgment in **M.R. Prabhakar and Others v. Canara Bank and Others [(2012) 9 SCC 671]** , wherein, **Sheelkumar Jain** (supra) was clearly distinguished in the following manner: 18. The learned counsel appearing for WPC 4330/10 9 the appellants have placed heavy reliance on the _Sheelkumar Jain_ and submitted that in the light of that judgment, the decision rendered in _Sanwar Mal_ requires reconsideration. We find it difficult to accept the contention raised by the learned counsel appearing for the appellants. 19. We may point out that in _Sheelkumar Jain_ this Court was dealing with an insurance scheme and not the pension scheme, which is applicable in the banking sector. The provisions of both the scheme and the Regulations are not in pari materia. In _Sheelkumar Jain_ case, while referring to Para 5, this Court came to the conclusion that the same does not make distinction between “resignation” and “voluntary retirement” and it only provides that an employee who wants to leave or discontinue his service amounts to WPC 4330/10 10 “resignation” or “voluntary retirement”. Whereas, Regulation 20(2) of the Canara Bank (Officers) Service Regulations, 1979 applicable to banks, had specifically referrd to the words “resignation”, unlike Para 5 of the Insurance Rules. Further it is also to be noted that, in that judgment, this Court in para 30 held that the Court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement. 9. Sri. S. Easwaran finally submits that the prayers made in this writ petition, both to set aside Regulation 22(1) of the Regulations as also for a declaration of entitlement of the petitioner to pension, would obtain no forensic support and therefore, prays that this writ petition be dismissed. 10. I have considered the submissions made WPC 4330/10 11 by Sri. S. Easwaran as afore very anxiously and I must say that I find substantial force in them. This is particularly because in **M.R. Prabhakar** (supra), it was the provisions of the Canara Bank (Officers) Service Regulation, 1995, that was considered by the Hon'ble Supreme Court, which is in _pari materia_ to the Pension Regulations involved in this case. Therefore, normally, this Court cannot go beyond the views and conclusions therein, it being binding on this Court and consequently, the conclusions of the said judgment would have to be applied to this case also. 11. In any event of the matter, the petitioner's allegations that the Bank has refused him the retiral benefits are not edificed on any other factor except Regulation 22(1) of the Pension Regulations, which inhibits such payment when an employee resigns from service voluntarily; and therefore, when the WPC 4330/10 12 petitioner had another exit avenue open to him for voluntarily retiring from service under Regulation 29(1) with full pension, I cannot find the former Regulation to be in any manner, unconscionable or as is now alleged by the petitioner. 12. It is indubitable that if the petitioner was desirous of being entitled to pension, he could certainly have used the avenue available under Regulation 29(1) of the Pension Regulations to voluntarily retire, which option was available to him by giving a 90 days notice, at the end of which, he could have retired; rather than making Ext.P1 request for resignation from service forthwith. The difference in these two Regulations are too apparent and manifest to be missed and therefore, the petitioner's contention that, notwithstanding the stipulations therein, an employee would be entitled to the pension- WPC 4330/10 13 whether he resigns or retires from service, is unacceptable and incapable of imprimatur of this Court. In the afore circumstances, I find no option to grant any reliefs as has been prayed for by the petitioner and subsequently, therefore, I am constrained to dismiss this writ petition repelling all the grounds and contentions impelled by the petitioner. **Sd/-** **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 4330/10 14 ## APPENDIX ## PETITIONER'S/S EXHIBITS: - EXHIBIT P1 TRUE COPY OF THE REQUEST FOR SANCTIONING VOLUNTARY RETIREMENT DATED 31/5/2002. - EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 8/6/2002 OF THE ASSISTANT GENERAL MANAGER - EXHIBIT P3 TRUE COPY OF COMMUNICATION DATED 24/7/2002 SANCTIONING AMOUNT DUE ON STAFF PROVIDENT FUND. - EXHIBIT P4 TRUE COPY OF THE RECEIPT CUMCALCULATION SHEET ATTACHED TO THE COMMUNICATION DATED 24/7/2002. - EXHIBIT P5 TRUE COPY OF THE LETTER NO. HO.HRM. PENSION. 17490. 2006-07 DATED 14/11/2006 OF THE ASSISTANT GENERAL MANAGER (AS). - EXHIBIT P6 TRUE COPY OF THE APPEAL PETITION DATED 21/10/2009 SUBMITTED BEFORE THE CHAIRMAN AND MANAGING DIRECTOR - EXHIBIT P7 TRUE COPY OF THE REMINDER DATED 1/12/2009 SUBMITTED BY THE PETITIONER - EXHIBIT P8 TRUE COPY OF - REF.NO.HO/HRM/DPC/317/2009 DATED 18/12/2009 OF 2ND RESPONDENT. - EXHIBIT P9 TRUE COPY OF REMINDER DATED 31/12/2009 FILED BEFORE THE 4TH RESPONDENT. - EXHIBIT P10 TRUE COPY OF LETTER NO. HO/HRM/DPC005/2009 11/1/2010 OF CHIEF MANAGER. - EXHIBIT P11 TRUE COPY OF THE RELEVANT PORTION OF INDIAN BANK (EMPLOYEES) PENSION REGULATION 1995. WPC 4330/10 15 THE LIST OF EMPLOYEES WHO OPTED FOR PENSION AND ISSUED BY PENSION CELL OF INDIAN BANK SHOWING PETITIONER'S NAME AS SERIAL NO. 24. EXHIBIT P13 TRUE COPY OF THE JUDGMENT OF THE HONOURABLE COURT IN SHEEL KUMAR JAIL V.NEW INDIA ASSURANCE COMPANY LTD. AIR 2011 SC 2990.