Indira K. Menon v Bank of India; Nharakkode Kannankutty Nair v Bank of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941** ## **WP(C).No.17665 OF 2017(G)** ## **PETITIONER:** **INDIRA K. MENON AGED 65 YEARS, W/O JAYACHANDRA MENON, 'NANDANAM', PRA 22,T.C 14/1234, KUMARAPURAM, THIRUVANANTHAPURAM695011** **BY ADVS. SRI.S.SUNIL MAURYAN SRI.N.DHARMADAN (SR.) SRI.P.PREMAN** ## **RESPONDENTS:** **1 BANK OF INDIA REPRESENTED BY THE GENERAL MANAGER STAR HOUSE, C-S, "G" BLOCK, BANDRA KURLA COMPLEX, BANDRA (EAST) MUMBAI 400 051. 2 THE ZONAL MANAGER BANK OF INDIA, ZONAL OFFICE, KALOOR TOWERS, KALOOR-KADAVANTHRA ROAD, COCHIN 682017** **3 THE CHIEF MANAGER BANK OF INDIA, MAIN BRANCH, SILK STREET, CALICUT 673032** - **4 THE SENIOR BRANCH MANAGER BANK OF INDIA, MANIN BRANCH, SILK STREET, CALICUT 673032** **BY ADV. SRI.T.K.SAJEEV, SC ADV.SRI. ADHARSH KUMAR, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.11.2019, ALONG WITH WP(C).24588/2017(W), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.17665 & 24588 OF 2017(G) 2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941** ## **WP(C).No.24588 OF 2017** ## **PETITIONER:** **NHARAKKODE KANNANKUTTY NAIR AGED 67 YEARS, S/O.V.BALAKRISHNAN NAIR, PRANAVAM HOUSE, EDATHARA POST, PALAKKAD-678 611.** **BY ADVS. SRI.S.SUNIL MAURYAN SRI.P.PREMAN** ## **RESPONDENTS:** **BANK OF INDIA** **REPRESENTED BY THE GENERAL MANAGER, HR DEPARTMENT, STAR HOUSE, C-5, G BLOCK, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400 051** **BY SRI.JAWAHAR JOSE, SC, BANK OF INDIA** **SRI.T.K.SAJEEV,SC, BANK OF INDIA IN WPC 17665** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.11.2019, ALONG WITH WP(C).17665/2017(G), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.17665 OF 2017(G) 3** ## **JUDGMENT** Petitioners in both these writ petitions were working in the State Bank of India. Both of them seek benefits of voluntary retirement after tendering resignation. Therefore, these writ petitions are disposed of by this common judgment. 2. Indira K.Menon who is the petitioner in W.P.(C)No.17665 of 2017 submitted Ext.P2 letter dated 02.01.2009 requesting for permission for voluntarily retirement on expiry of the notice period. By Ext.P3 letter, the respondent Bank informed her that she was not eligible to opt for voluntary retirement under the Bank Employees' Pension Regulations, 1995 (“Pension Regulations” for short) as she was a Provident Fund optee. She was informed that she had not completed 30 years of service or 55 years of age for submitting option for voluntary retirement under Regulation 19 of the Officers Service Regulation. 3. Thereupon she submitted Ext.P6 letter **WP(C).No.17665 OF 2017(G) 4** dated 2.3.2009 requesting to treat her application for voluntary retirement submitted on 2.1.2009 as notice for her resignation. She was thereupon relieved from service. 4. While so, Bank had issued Ext.P7 circular dated 10.0.2010 in terms of the agreement/joint note dated 27.4.2010 signed between Indian Bank Association and various Officers' Association/ Workmen Unions informing that option to join the Pension Scheme 1995 was extended to those employees (Officers/award staff) who were in service of the Bank prior to 29.9.1995 and retired after that date and prior to 27.04.2010- the date of settlement, i.e, 27.4.2010. Such employees were asked to exercise an option in writing within 60 days from the date of offer to become a member of the Pension Fund and to refund the entire amount of the bank's contribution to the Provident Fund of the bank, to transfer the entire contribution of the Bank along with the interest accrued thereon to the credit of the Pension Fund. Employees who ceased to be in the service of the Bank on or after 29.09.1995 on **WP(C).No.17665 OF 2017(G) 5** account of voluntary retirement under special scheme after rendering 15 years of service were also eligible to submit option to join the Pension fund subject to the terms and conditions mentioned for retired employees. 5. Pursuant to Ext.P7, the petitioner submitted her option on 21.10.2010. Petitioner submits that when the list of beneficiaries were published, her name was not included in it. Thereupon she filed WP(C)No.14519/2011. She thereafter submitted Ext.P9 representation on 24.9.2012 requesting to process her pension option, extending the benefit of the judgment of the High Court of Karanataka in in _**Vijaya bank vs. Sree**_ _**Narasimhappa.**_ She stated that there is no difference between those who resigned and those who retired on superannuation. She stated that her pension option request was acknowledged by the Bank on 21.10.2010. Her representation was rejected as per Ext.P10 letter stating that they were unable to consider her request in view of the pendency of the writ petition filed by her. She thereafter ## **WP(C).No.17665 OF 2017(G) 6** withdrew her the writ petition and filed WP(C)No.30077/2012. It was disposed of as per Ext.P12 judgment, directing the respondents to consider her representation after affording her an opportunity of hearing. She thereafter submitted Ext.P13 representation before the respondents. Thereafter as per Ext.P14 order, her request was rejected. It is stated that even though she had completed twenty years of service, she was not eligible for voluntary retirement under Employees Pension Regulation, 1995 as she was a Contributory Provident Fund optee. It was further stated that as per Employees Pension Regulation, 1995 and Regulation 19 of Officers Service Regulation, one should have completed 30 years of age or attained the age of 55 to be eligible for submitting application for voluntary retirement. It is further stated that the Bi-partite settlement/joint note dated 27.4.2010, the second pension option was extended to existing employees as well as employees who retired on superannuation, retired voluntarily under Officers Service Regulations/ Special **WP(C).No.17665 OF 2017(G) 7** voluntary retirement scheme approved by the Government of India and family of the deceased employees. It is also stated that the employees who resigned from the Bank were not covered under the scheme. It was also stated that under Regulation 22 of Pension Regulations 1995, resignation or dismissal, or removal or termination from service would entail forfeiture of his entire past service and consequently shall not qualified for pensionary benefits. It was further stated that when pension was introduced in the year 1995, employees resigned from 1.1.1986 to 20.9.1995 were not covered under pension option. They also informed the petitioner that the circumstances leading to the judgment of Karantaka High Court was not applicable to her case, as she was not a pension optee and had not completed 30 years of service or 55 years of age. So it was stated that she was not eligible for submitting option. Petitioner has therefore challenged the rejection of her representation. 6. According to the petitioner when the **WP(C).No.17665 OF 2017(G) 8** second option was given to those who had opted for PF, petitioner who was in service prior to 2010, was entitled to submit her option and she was entitled to be granted pension. 7. A counter affidavit has been filed by the second respondent, reiterating their stand in the impugned letters/orders stating that the petitioner who resigned from service is not eligible for any benefits in view of the Regulations 22 of chapter IV of the Bank of India (Employees) Pension Regulation 1995. It was stated that the petitioner was not eligible for submitting any option for voluntary retirement in view of Regulation 19 of Bank of India (Officers') Service Regulation 1979, as she had not completed the age of 55 years of age or 30 years of service, being Provident Fund optee. It was further stated that the petitioner was not eligible for any benefit on the basis of the bipartite settlement agreement arrived at between Indian Bank Association and Officers union, once she resigned from the service; therefore she is not a person who is eligible for submitting second **WP(C).No.17665 OF 2017(G) 9** option for pension. Those who resigned would not come under the purview of the scheme. It was also submitted that the case considered by the Karnataka High Court was entirely different. 8. WP(C)No.24588 of 2017 is filed by one Nharakkode Kannankutty Nair. He submitted an application for resignation on 16.10.1997. It is stated that he joined the Bank on 24.3.1969 while working as Middle Manager Scale II; he had given his resignation and relieved from service on 30.11.1997. He approached the Bank with a request for grant him benefit of pension and submitted Ext.P4 representation on 30.11.2015. In Ext.P4 he stated that he submitted his resignation after 29 years of unblemished service in Bank due to personal/compassionate reasons on 16.10.1997 and was relieved from the service from 30.11.1997. He further stated that he had opted for provident fund and he tendered resignation when there was no scheme for VRS. He further stated that when a second option was introduced in August 2010, the same was not offered to him. He stated that he was **WP(C).No.17665 OF 2017(G) 10** staying in USA and could not avail the 2nd option. Therefore he he requested to give pension option (second option) condoning the inordinate delay and release the pension in view of the service rendered by him for a period of 29 years. That request was rejected as per Ext.P5 stating that second option was not admissible to those who resigned from service. The petitioner filed this writ petition challenging Ext.P5 order relying on the provisions contained in Ext.P6, Bank Employees Pension Regulations, 1995. 9. Respondent has filed a counter affidavit stating that as per clause 3(3)(a) the Bank of India (Employees) Pension Regulations, 1995 which was notified on 29.9.1995 employees who were then in service of bank were entitled to get pension provided they should exercise an option in writing within 120 days from the notified date, expressing his intention to become a member of the fund, within 120 days from 29.9.1995. It is stated that the petitioner has not exercised his option in writing, to join the pension fund as prescribed **WP(C).No.17665 OF 2017(G) 11** under clause 3(3)(b) within the stipulated time. It is stated that he was already relieved from the service on 30.11.1997 on resignation. Therefore it is stated that he is not entitled for the pension under the Bank of India (Employees) Pension Regulation, 1995. It is also stated that under clause 22 of the Pension Regulations, the entire past service in the bank is deemed to have been forfeited. It is further stated that the benefit of 1995 pension scheme was extended at bi partite settlement entered between the Indian bank Association and registered employees union and second option is admissible to five categories of persons which are enumerated as follows :- i) The employees who were in the service of bank prior to 29.9.1995 and continue to be the employees as on 27.4.2010. ii) The employees who were in the service of bank prior to 29.9.1995 and retired prior to 27.4.2010. iii) The employees who ceased to be the employees on or after 29.9.1995 on account of **WP(C).No.17665 OF 2017(G) 12** voluntary retirement under the special scheme. iv) The family members of those employees who were in the service of bank prior to 29.9.1995 and obtained voluntary retirement under the special scheme after 29.9.1995. v) The family members of those employees who were in the service of bank prior to 29.9.1995 but have died while in the service of bank after 29.9.1995. 10. Petitioner did not come under any of the above category as he has not exercised the mandatory option, as stipulated therein within a period of 60 days from the date of notification. Therefore, respondent has stated that the petitioner were not eligible for pension. 11. The learned Senior Counsel appearing for the petitioner relied on the judgments of the apex court in Sheelkumar Jain V The New India Assurance company Ltd & others: (2011)12 SCC 197 and Shashikala Devi V Central Bank of India: (2014) 16 SCC 260 and the judgment of the Division Bench of the Karnataka High Court decided on 30.8.2012 in **WP(C).No.17665 OF 2017(G) 13** support of the contention that the petitioner was entitled to be trated as retired on superannuation and granted pension despite resignation. It was argued that the judgment in _**Vijaya Bank (supra)**_ rendered by the Division Bench of the Karnataka High Court considered an identical issue with reference to a case of resignation where similar contentions were raised as in Ext.P14 letter rejecting her representation. The Division Bench after considering the contentions and referring to the terms “forfeiture” and Regulation 22 of the Pension Scheme, found that the resignation tendered in similar circumstances could be treated as voluntary retirement. 12. The learned Standing counsel for the respondents relied on the judgments in _**UCO Bank and Others v. Sanwar Mal, Oriental Bank of Commerce v. Ashwini Kumar Sharma and another and Chairman, Bank of India and another v. Narendra Kantilal Dave and another [(2004)4 SCC 412], Reserve Bank of India and another v. Cecil Dennis Solomon and another [(2004) 9 SCC 461], Mr.Prabhakar and others v.**_ **WP(C).No.17665 OF 2017(G) 14** _**Canara Bank and others [(2012) 9 SCC 671], Jai Singh B.Chauhan v. Punjab National Bank and others**_ _**[(2005) 6 SCC 262].** It was also_ pointed out that the submission of option within 120 days provided under regulations 3 (3)(b) is held mandatory in the judgment in _**Jai Singh B.Chauhan v. Punjab National Bank and others [(2005) 6 SCC 262]**_ . It is also pointed out that the judgment relied on by the learned Senior Counsel in _**Sheelkumar Jain'case**_ , _**(supra)**_ was already referred to larger bench in judgment in **Senior Divisional Manager,** _**Life Insurance Corporation of India Limited and others v. Shre Lal Meena [(2015) 17 SCC 43]**_ and it has been answered in **Senior Divisional Manager,** _**Life**_ _**Insurance Corporation of India and others v. Shree Lal Meena [(2019) 4 SCC 479],**_ where it was held as follows: _**“42.** It is relevant to note that M.R. Prabhakar(2012) 9 SCC 671 dealt with a similar scheme for employees of Canara Bank, and the plea was that such of the employees who had resigned must be construed as voluntarily retired, thus, entitling them to pensionary benefits. Suffice to say that, once_ ## **WP(C).No.17665 OF 2017(G) 15** _again, the principle was of differentiation between the concept of “voluntary retirement” and “resignation”. Regulation 2(y) as applicable to the employees of Canara Bank, being pari materia to Rule 2(y) under the Pension Regulations of 1995, had brought in “voluntary retirement” in the definition of “retirement”, but had not considered it appropriate to bring in the concept of “resignation”. Service jurisprudence, recognising the concept of “resignation” and “retirement” as different, and in the same regulations these expressions being used in different connotations, left no manner of doubt that the benefit could not be extended, especially as resignation was one of the disqualifications for seeking pensionary benefits, under the Regulations.”_ 13. It was found that _**Sheel Kumar Jain V New**_ _**India Assurance : (2011)12**_ .SCC 197 was rendered following the judgment in **Sudhir Chandra Sarkar v. TISCO Ltd.: (1984) 3SCC 369** _,_ which was rendered while considering the definition of “retirement” as per the Retiring Gratuity Rules, 1937, which was expansive and all-inclusive, excluding only the removal by discharge due to misconduct. 14. In view of the judgment of the apex court in Shreelal Meena's case (supra) _**[(2019) 4 SCC 479]**_ , the judgment relied on by the learned Senior **WP(C).No.17665 OF 2017(G) 16** Counsel would not apply to the case of the petitioner. Pointed out the observation in paragraph 37 of the judgment in the 3 judge Bench in Sreelal Meena's case, which specifically dealt with the delay in seeking enforcement of his right, Sri. Jawahar, the learned Standing Counsel pointed out that the petitioner in WP(C)No.24588 of 2017 who submitted his option after 18 years cannot be allowed to raise any claim at this distance of time to submit option or 2nd option for pension. 15. It is seen that petitioners in both these writ petitions, are claiming pension after they tendered resignation. In view of the Regulation 22 of Pension Regulations, the entire service rendered by them have been forfeited as held by the 3 judge Bench judgment in Sreelal Meena's case, where the terms 'resignation', pension, etc. are considered and explained. Therefore, the judgment of the Karnataka High Court also, relied on by the Senior counsel will not be of any help to the petitioners and the opportunity for 2nd option under the bi partite settlement cannot be extended to the **WP(C).No.17665 OF 2017(G) 17** persons like petitioners who tendered resignation, in the light of the judgment of the apex court rendered after considering identical provisions in LIC Pension Regulations 1995 as well as Andra Bank Pension Regulations 1995 which contain identical provisions. Therefore both these writ petitions are dismissed. **SD/-** **P.V.ASHA JUDGE** ACM/11.11.2019 **WP(C).No.17665 OF 2017(G) 18** ## **APPENDIX OF WP(C) 17665/2017** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 A TRUE COPY OF THE SERVICE PARTICULARS OF THE PETITIONER** - **EXHIBIT P2 A TRUE COPY OF THE NOTICE FOR VOLUNTARY RETIREMENT DATED 2/01/2009** - **EXHIBIT P3 A TRUE COPY OF THE REPLY OF 2ND RESPONDENT ISSUED THROUGH 3RD RESPONDENT DATED 26/2/2009** - **EXHIBIT P4 A TRUE COPY OF THE BANK OF INDIA EMPLOYEES PENSION REGULATIONS.** - **EXHIBIT P5 A TRUE COPY OF THE BANK OF INDIA (OFFICERS) SERVICE REGULATIONS 1979** - **EXHIBIT P6 A TRUE COPY OF THE LETTER DATED 2/3/2009 REQUESTING TO TREATING HER VRS REQUEST AS RESIGNATION.** - **EXHIBIT P7 A TRUE COPY OF THE CIRCULAR VIDE NO.104/64 ISSUED BY THE 1ST RESPONDENT DATED 24/8/2010 WHICH MENTIONS THE JOINT AGREEMENT DATED 27/4/2010 AND THE COMMUNICATION NO.CIR/HR & IR/G2/665/90/2010-11/999 DATED 10/8/2010** - **EXHIBIT P8 A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIT DATED 21/10/2010 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P9 A TRUE COPY OF THE REPRESENTATION DATED 24/9/2012 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P10 A TRUE COPY OF THE REPLY DATED 8/10/2012 RECEIVED BY THE PETITIONER THROUGH EMAIL COMMUNICATION.** - **EXHIBIT P11 A TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WRIT PETITION NO. 14519 OF 2011 DATED 15/11/2012** **WP(C).No.17665 OF 2017(G) 19** ## **EXHIBIT P12** **A TRUE COPY OF THE JUDGMENT DATED 11/01/2016 IN THE WRIT PETITION NO.30077 OF 2012** **EXHIBIT P13** **A TRUE COPY OF THE HEARING NOTE DATED 24/2/2016 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT NO.2** - **EXHIBIT P14** - **A TRUE COPY OF THE REPLY LETTER DATED 10/3/2016 ISSUED FROM THE OFFICE OF RESPONDENT NO.2** - **RESPONDENT'S EXHIBITS:** **EXHIBIT R2(A) TRUE COPY OF THE ABSTRACT OF BANK OF INDIA (OFFICERS') SERVICE REGULATIONS, 1979** - **EXHIBIT R2(B) TRUE COPY OF THE ABSTRACT OF TERMS OF SETTLEMENT OF 9TH BI-PARTITE SETTLEMENT DATED 27.4.2010** - **EXHIBIT R2(C)** - **THE TRUE COPY OF THE APPLICATION FOR PENSION OPTION SUBMITTED BY THE PETITIONER IN ANNEXURE III OPTION FORM** - **EXHIBIT R2(D) TRUE COPY OF THE ABSTRACT OF CHAPTER IV OF BANK OF INDIA PENSION REGULATIONS, 1995, COVERING REGULATION 22** **EXHIBIT R2(E) TRUE COPY OF THE CIRCULAR NO.CIR/HR&IR/G2 665/90/2010-11/999, DATED 10.8.2010.** **WP(C).No.17665 OF 2017(G) 20** ## **APPENDIX OF WP(C) 24588/2017** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 : A TRUE COPY OF THE SERVICE PARTICULARS OF THE PETITIONER.** **EXHIBIT P2 : A TRUE COPY OF THE RESIGNATION LETTER DATED 16-10-1997.** **EXHIBIT P3 : A TRUE COPY OF THE CIRCULAR VIDE NO.104/64 ISSUED BY THE RESPONDENT DATED 24-8-2010 WHICH MENTIONS THE JOINT AGREEMENT DATED 27-4-2010 AND THE COMMUNICATION NO.CIR/HR&IR/G2/665/90/2010-11/999 DATED 10-8-2010.** - **EXHIBIT P4 : A TRUE COPY OF THE LETTER DATED 30-11-2015 SEND BY THE PETITIONER TO RESPONDENT BANK.** - **EXHIBIT P5 : A TRUE COPY OF THE REPLY LETTER DATED 23-22016 SHOWING THE RESPONSE OF RESPONDENT BANK.** - **EXHIBIT P6 : A TRUE COPY OF THE BANK OF INDIA EMPLOYEES PENSION REGULATIONS, 1995** **EXHIBIT P7 : A TRUE COPY OF THE LETTER DATED 07 APRIL 2016 ISSUED BY THE DEPUTY CHIEF EXECUTIVE OF INDIAN BANKS ASSOCIATION TO ALL INDIA BANK RETIREES FEDERATION.**