Mathew Kulathooran v. State Bank of Travancore

- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 15[TH] DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943** **WP(C) NO. 23558 OF 2013** ## **PETITIONER:** MATHEW KULATHOORAN AGED 57 YEARS EMP.CODE NO.114474, LATE SRI.K.M.IDICHANDY, KULATHOOR HOUSE, KADAMANITTA P.O., PATHANAMTHITTA - 689 649. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN SRI.ALEXY AUGUSTINE SRI.GEORGE A.CHERIAN ## **RESPONDENT/S:** THE STATE BANK OF TRAVANCORE HEAD OFFICE, POOJAPURA, TRIVANDRUM-695 012., REPRESENTED BY THE MANAGING DIRECTOR. BY ADV SRI.P.RAMAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2021, THE COURT ON 15/11/2021 DELIVERED THE FOLLOWING: W.P.(C) No.23558/2013 2 ## **JUDGMENT** The writ petitioner joined the services of the respondent-State Bank of Travancore as a cashier cum clerk on 10/11/1980 and was confirmed on 11/5/1981, evidenced by Ext.P1 confirmation letter. He is a physically handicapped person. Due to various ailments, by Ext.P2 letter, dated 12/5/1994, he requested the respondent to relieve him from the employment and to grant voluntary retirement under the invalid pension scheme of the bank with all pensionary benefits. By Ext.P3 letter dated 15/6/1994, the respondent advised the petitioner to wait for further instructions on the request of the petitioner since the modalities/details of the scheme were yet to be finalized. Subsequently, by communications dated 11/11/1994 and 16/2/1995 produced as Exts.P4 and P5, the petitioner was directed to appear before the Medical Board of the Medical College, Kottayam. He claims to have appeared before the Medical Board on 23/2/1995. Petitioner claims that he was not informed by the respondent about the findings of the Medical Board nor took any action on Ext.P2 request of the petitioner. Petitioner claims to have issued several letters thereafter and made personal visits to bank with request to take a decision on Ext.P2 request for voluntary retirement under the Invalid Pension Scheme of the bank as stipulated under Bank Employees (Pension) Regulations, 1993. Petitioner claims that Ext.P6 dated 31/8/2011 was one of the last representation submitted by him. There was no response W.P.(C) No.23558/2013 3 from the respondent. However, the respondent by letter dated 24/9/2012 vide Ext.P7 communication ordered refund of the Provident Fund, stating that the petitioner had ceased to be in service at the close of business on 30/3/1994 on account of voluntary retirement. Ext.P9 is a communication dated 11/6/2013 by which gratuity was paid. Ext.P8 is the lawyer notice dated 26/11/2012 was issued by the petitioner claiming the terminal benefits which he was entitled to. Subsequently, the petitioner produced along with the reply affidavit Ext.P10 and P11 documents which were the communications sent by him on 14/11/1994 and 12/9/1999. Yet another letter was stated to have been issued by him as Ext.P12 on 6/5/2013 claiming the benefits. Grievance of the petitioner was that interest for provident fund under the invalid pension scheme was not granted in spite of keeping the petitioner in tender hooks for long period. The reliefs sought in the writ petition was to grant all pensionary benefits under Regulation 18 of the Bank Employees(Pension) Regulations 1993, which was introduced with effect from 1/11/1993. He also sought for compensation for the mental agony caused to the petitioner by keeping him waiting for the benefits. 2. The respondent appeared and filed a detailed statement followed by the counter affidavit. Contentions set up by the respondent in the above pleadings are that, after 31/3/1994, the petitioner did not report for the duty despite the direction of the bank by Ext.P4 to report for the duty. Several years thereafter, the petitioner submitted Ext.P6 representation seeking payment of gratuity and Provident Fund. A sum of Rs.91,341/- was paid as 4 W.P.(C) No.23558/2013 gratuity and interest and a further sum of Rs.60,067/- which included petitioner's contribution, bank's contribution and interest, paid on 10/6/2013. In the meanwhile, State Bank of Travancore was acquired by the State Bank of India with effect from 1-4-2017. It was contended that the petitioner has no right whatsoever to claim invalid pension after resigning from the service of the bank. The writ petitioner is guilty of inordinate delay and hence the petition is liable to be dismissed in limine. It was contended that, there was no such regulation as Bank Employees(Pension) Regulation 1993, applicable to the employees of the State Bank of Travancore at any point of time. While working in the State Bank of Travancore, the petitioner submitted Ext.P2 application for voluntary retirement. However, there was no provision for voluntary retirement of staffs at the time when the petitioner submitted Ext.P2. The State Bank of Travancore(Employees) Pension Regulation 1995, which provide for voluntary retirement was not in force at that point of time. Though the petitioner was issued with Ext.P4 memo directing the petitioner to report for duty and subject himself to medical examination by doctors, the bank does not have any document to show that the petitioner had undergone medical examination as directed by Ext.P4. The SBT (Employees) Pension Regulations, 1995 was framed and published in official gazette on 23/3/1996 . The only provision that may be applicable to the petitioner is a provision which relates to the persons who retired on or after 1/11/1993 and who had exercised option and refunded bank's the contribution to Provident Fund and interest, within the stipulated time. The petitioner, though retired on W.P.(C) No.23558/2013 5 or after 1/11/1993, had not submitted any option to join the pension fund and had not refunded the bank's contribution to the Provident Fund. He had submitted his resignation before the Pension Regulation Scheme came into effect. Petitioner was paid only six months interest on the Provident Fund amount, since the Provident Fund Regulation provides for payment of interest only for six months. The petitioner was sleeping over his right from 1995 to 2011. After Ext.P2, the petitioner neither came to the bank nor furnished the required applications claiming gratuity and provident fund. However, after receiving Ext.P8, the bank considered the issue and confirmed that the petitioner had relieved from service. Thereafter, the amounts were paid to him. Regarding pension, whether it is regular pension, compassionate allowance, Family Pension or invalid pension, it is not payable to any employee or ex employee or the dependents, unless the employee had become a member of the Pension Fund. In this case, the petitioner had not opted for pension before resigning or within the stipulated time permitted as per the settlement or under the Pension Regulation. To claim eligibility, the petitioner should have opted under Regulation 3 (1)(c) and forfeited the Bank's contribution to Provident Fund with interest accrued thereon, within the stipulated time which expired in 1995 itself. 3. In the reply affidavit, the petitioner, apart from reiterating the earlier contentions, contended that the State Bank of Travancore (Employees) Pension Regulation 1995 came into force with effect from 29/9/1995. Regulation 30 deals with invalid pension. The Regulation 3 only says that an W.P.(C) No.23558/2013 6 option has to be exercised within 4 months from the date of notification. The bank owes a duty to the petitioner to inform him about the right to exercise the option. The petitioner was not informed till date that he should exercise his option. The petitioner having sought for invalid pension from 1994, there was no necessity for further option. It was recently understood that on the basis of memorandum of settlement dated 27/4/2010, a second option was given to all the employees. But this option was also not extended to the petitioner. The petitioner cannot move from one place to another. The second option was given in 2010 with a view to bring all employees including the retired employees under the umbrella of pension. 4. On the basis of the above pleadings, heard the learned senior counsel Mr.George Cherian for the writ petitioner and Mr.P.Ramakrishnan, the learned counsel for the respondent Bank. Learned senior counsel submitted that in the light of State Bank of Travancore (Employees) Pension Regulation 1995, the petitioner is entitled for the invalid pension contemplated under the regulation. Vehemently opposing the application, learned counsel for the respondent submitted that the petitioner submitted Ext.P2 application for VRS on 12/5/1994. Thereafter, he was advised by the bank by Exts.P4 and P5 applications in the year 1994 to appear before the Medical Board for medical examination. It is not clear whether the petitioner appeared before the Medical Board. However, after being in hibernation for a long period of 17 years, the petitioner suddenly reappeared with Ext.6 representation dated 31/8/2011. It was contended by the learned counsel for the respondent that W.P.(C) No.23558/2013 7 for this reason alone, the petitioner is not entitled to any benefit. It was also contended that the petitioner has to sustain his claim for invalid pension on some legally enforceable right and cannot sprout out from nowhere. The learned counsel contended that the only provision for pension available to the employees of the State Bank of Travancore is one available under the Regulations of State Bank of Travancore(Employees)Pension Regulation 1995. However, Regulation 29 applies only to certain categories of employees. The first categories of employees are those who retired on or after the 1[st] November 1993 and has completed 20 years of qualifying service and voluntarily retired giving three months notice. According to the learned counsel for the petitioner, Regulation (3) relates to the persons who are entitled to eligibility under the Act. The second category is applicable to the writ petitioner. However, it provides that a person who have retired on or after 1/11/1993 but before the notified date who exercised an option in writing within one hundred and twenty days from the notified date to become member of the Fund and refund within sixty days after the expiry of the said period of one hundred and twenty days specified in clause (b), the entire amount of the Bank's contribution to the Provident Fund and interest accrued thereon together with a further simple interest at the rate of six percentage per annum on the said amount from the date of settlement of the Provident Fund account till the date of refund of the aforesaid amount to the Bank. The provision applicable is Rule 3((2)(a). However, it was submitted by the learned counsel that the petitioner has neither exercised the option nor satisfied the W.P.(C) No.23558/2013 8 conditions contemplated under Regulation 3(2)(a). In the above circumstances, the petitioner is not entitled to any benefits. 5. Regarding the question of delay, detailed arguments were advanced by both sides. It was contended by the learned counsel for the respondent that the petitioner was sleeping over his right for about to 17 years and hence, he is not entitled to any benefits. I am not inclined to accept the above contention for four specific reasons. 6. Firstly, by Ext.P3 reply dated 15/6/1994 to Ext.P2, the petitioner was informed that the modalities/details of the scheme were not finalised finalized and he was advised to wait for further instructions. Evidently, there was no communication from the side of the bank thereafter intimating him about the further action taken up on Ext.P2 application for VRS. Thereafter, by Ext.P5, he was directed to appear before the Medical Board. The petitioner claims that he had presented before the Medical Board, as reiterated by him in subsequent communications. However, the Bank did not give instructions regarding the further course of action. Secondly, Ext.P8 lawyer notice was sent to the respondent bank wherein it was asserted that several communications were sent by the petitioner to the respondent bank. Those were not replied by the bank nor referred to in the counter affidavit. Hence, the specific averment that the petitioner had been contacting the bank even after Exts.P4 and P5 is only to be accepted. Thirdly, in the writ petition there is a specific averment that, in spite of repeated communications to the bank after Exts.P4 and P5, they were not responded. This is also not denied, except a W.P.(C) No.23558/2013 9 vague averment that the petitioner was sleeping over his right. Lastly, Exts.P10, P11 and P12 are communications stated to have been sent by the petitioner during the period 14/11/1994 to 6/5/2013. It is true there is absolutely no record to show that these communications were served on the respondent. However, in the absence of any specific averment denying the above, I am inclined to accept the contentions of the petitioner that he has been pursuing the grievance and rejecting the claim of the bank that it was highly belated. 7. The next crucial question that arises is whether the petitioner is entitled for any benefit under the scheme. Regulation 1995 came into force on the date when it was notified in the gazette which is 23/3/1996, Evidently, there are provisions in the Regulations which indicate that it has retrospective operation which takes care of persons who had retired before the date of notification. This is clear from clause 3 which refers to persons who were in service and have retired before 1993. Hence, the benefit under the Act even retrospectively, applies to persons who have retired prior to 1993. Regulation 29 relates to pension on voluntary retirement. Regulation 30 relates to invalid pension which is granted to an employee who has rendered minimum ten years of service and retires from service on or after first day of 1993 on account of any bodily or mental infirmity which permanently incapacitates him from service. Regulation 3 relates to the applicability of the Regulation. The clause that is applicable to the petitioner is Regulation 3(2)(a) which relates to persons who have retired on or after 1[st] day of November 1993 but before the W.P.(C) No.23558/2013 10 notified date. It contemplates two conditions to be satisfied by the applicant. The first one is an exercise of an option in writing within 120 days from the notified days to become the member of the Fund. Secondly, he has to refund within sixty days, after the expiry of 120 days specified in clause (b), the entire amount of bank's contribution. Definitely, these are mandatory conditions to be followed by the petitioner. 8. Learned counsel for the respondent vehemently contended that, no such option has been submitted by the petitioner. It was also contended that the petitioner has not voluntarily retired. The third contention was that the petitioner is not covered by the above Regulation. Regarding the crucial question whether the petitioner has voluntarily retired from service, some indication is available in Ext.P3. It clearly shows that, Ext.P2 application was not rejected on the ground that there was no provision for voluntarily retirement. On the other hand, Ext.P3 reiterates that the modalities/details of the scheme were yet to be finalised and hence, the petitioner was advised to wait for further instructions in the matter. Though it was vehemently contended by the bank that the petitioner has not applied for voluntary retirement, nor was it accepted by the bank, it seems that by Exts.P4 and P5 issued by the bank after Ext.P3 communication, it was asserted that the petitioner was absent from duty unauthorisedly since 31/3/1994. It was stated that the leave application was not acceptable and he was called upon to report for duty. By Ext.P5, the petitioner was directed to appear before the Medical Board on an allegation that he was on unauthorised leave . This is W.P.(C) No.23558/2013 11 an indication that the notwithstanding the submission of voluntary retirement application as Ext.P2 and requiring him to wait for further instructions, thereafter, the bank took the stand that the petitioner was on unauthorized absence. Regarding what transpired thereafter, divergent views are available. According to the bank, there is no record to show whether the petitioner had appeared before the Medical Board. On the other hand, there are specific assertions in the pleadings as well as in Ext.P11 communication that the petitioner had appeared before the Board. Normally if the petitioner neither appeared before the Board nor continue to be unauthorised absence, the bank would have taken action for unauthorised action which would have ended in a disciplinary action. On the other hand, the bank has no case that any decision was taken by the bank pursuant to Exts.P4 and P5 against the petitioner alleging that he was unahtorisedly absent. On the other hand, Exts.P7 and P9 which are the communications issued by the respondent regarding the Provident Fund refund as well the Gratuity, there is a specific reference that the petitioner had ceased to be in service with effect from 30/3/1994 consequent to the voluntary retirement. After having thus accepted that the petitioner had ceased to be in office pursuant to voluntary retirement, the bank cannot now turn round and say that the petitioner had not retired voluntarily. Absolutely no document is produced as to when, how and under what circumstances, an order of acceptance of voluntary retirement was accepted. The reference to 30/3/1994 as the date on which the voluntary retirement was accepted runs contrary to the specific assertion in W.P.(C) No.23558/2013 12 Exs.P4 and P5 that the petitioner was unauthroisedly absent after 31/3/1994. Anyhow, it has to be accepted that the bank has confirmed that the application for voluntary retirement was accepted by the Bank. This also runs contrary to the specific contention of the bank that there was no scheme for voluntary retirement. 9. In this regard, the question whether the petitioner is entitled for the benefit under Regulation 3(2)(b) is to be considered. It seems that as on the date of acceptance of voluntary scheme, the option of the petitioner under the voluntary scheme was in existence as evident from Ext.P2. At no point of time, the bank had called upon him to exercise the option, if any. In all the representations, the petitioner has been seeking for voluntary retirement and seeking invalid pension. Since, the option exercised by the petitioner was pending consideration, there was no reason for a second option. Hence, it has to be considered that the petitioner has satisfied the first condition, though it is not strictly in terms of regulation 3 (2) (b) which provides for exercising option within 120 days from the date of notification, Since the option was pending consideration, it could only be treated as one exercised in response to the Regulation. The learned counsel for the writ petitioner invited my attention to copy of Circular No.30/1994 dated 23/4/1994 referred to by the respondent in the counter affidavit, A copy of the above staff circular was placed before the court for perusal. By virtue of a memorandum of settlement signed between Indian Bank Association and Workmen Unions, it was agreed that the pension scheme in banking industry shall be made effect with effect W.P.(C) No.23558/2013 13 from 1/11/1993 as the second retiral benefit in lieu of contribution towards Provident Fund by the Bank. Clause 2 (1) of the above Circular clearly shows that it applies to all employees/officers who are in the rolls as on 31/10/1993 shall have option either for pension scheme with effect from 1/11/1993, or to retain the contributory pension scheme. If opted for pension he should irrevocably authorise the bank or the trustees of the contributory pension fund to transfer the entire contribution to the bank. A copy of the memorandum of settlement between the workmen of 58 banks and the Indian Bank associations are was also placed for perusal. 10. It seems that the provision of exercise of the right was liberally extended to the parties. The trend of the court also regarding this is clear from the decision of the Supreme Court in _**National Insurance Co.Ltd. v. Kripal Singh(2014 (5) SCC 189)**_ wherein referring to the General Insurance (Employee's) Special Voluntary Retirement Scheme 2004, it was held that the employees opting for voluntary retirement under Special VRS,2004 would also qualify for payment of pension, if they had qualifying service of ten years under Para 14 of the Pension Scheme 1995. It was held that there is no reason as to why the expression “retirement” in the context in which that expression was being examined , would justify a more liberal interpretation, not only because of the provision for payment of pension was a beneficial provision, which ought to be interpreted more liberally to favour grant, rather than refusal of the benefit but also the Voluntary Retirement Scheme itself was intended to reduce surplus manpower, by encouraging, if not alluring W.P.(C) No.23558/2013 14 employees, to opt for retirement by offering them benefits like ex-gratia payment and pension not otherwise admissible to the employees in the ordinary course. 11. Having considered this in the above perspective, cumulatively considering that the petitioner had submitted his option and that it was not acted thereupon, till a specific request was made by the petitioner almost 17 years thereafter, there is no reason as to why the second part of clause 3 (2) (b) should not be liberally interpreted. Accordingly, I am inclined to direct that the bank shall extend the scheme of pension as applicable to the parties as if the option to refund has been exercised in due course. The bank shall call upon the petitioner to exercise his option as contemplated under Regulation 3 and to refund within sixty days, the entire amount of bank's contribution to the Provident Fund and interest accrued thereon and thereupon shall pay the entire arrears of pension and the future pension in regular intervals as if the petitioner has been extended the pension under the State Bank of Travancore Employees (Pension) Regulations 1995. The writ petition is allowed accordingly. Sd/- **SUNIL THOMAS Judge** dpk W.P.(C) No.23558/2013 15 ## **APPENDIX OF WP(C) 23558/2013** PETITIONER EXHIBITS EXHIBIT.P1. TRUE COPY OF THE CONFIRMATION LETTER DATED 9/5/1998 ISSUED BY THE RESPONDENT EXHIBIT.P1. TRUE COPY OF THE REPRESENTATION DTED 12/5/1994 SUBMITTED BY THE PETITIONER EXHIBIT.P1. TRUE COPY OF THE LETTER DATED 15/6/1994 ISSUED BY THE RESPONDENT EXHIBIT.P1. TRUE COPY OF THE MEMO DATED 11/11/1994 ISSUED BY THE RESPONDENT EXHIBIT.P2. TRUE COPY OF THE LETTER DATED 16/2/1995 ISSUED BY THE RESPONDENT EXHIBIT.P3. TRUE COPY OF THE REPRESENTATION DATED 31/8/2011 SUBMITTED BY THE PETITIONER EXHIBIT.P4. TRUE COPY OF THE LETTER DATED 24/09/2012 ISSUED BY THE RESPONDENT EXHIBIT.P5. TRUE COPY OF THE LAWYER NOTICE DATED 26/11/2012. EXT.P6: COPY OF THE REPRESENTATION DATED 31/8/2011 SUBMITTED BY THE PETITIONER. EXT.P7: COPY OF THE LETTER DATED 24/9/2012 ISSUED BY THE RESPONDENT. EXT.P8: COPY OF THE LAWYER NOTICE DATED 26/11/2012 ISSUED TO THE RESPONDENT. EXT.P9: COPY OF THE LETTER DATED 11/6/2012 ISSUED BY THE RESPONDENT.