M.K. Prakasan v. Canara Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945** ## **WP(C) NO. 22507 OF 2015** ## **PETITIONER:** **M.K.PRAKASAN AGED 57 YEARS S/O.M.A KUTTAN, MUREEKAD HOUSE, VELIYANADU P.O. ARAKKUNNAM (VIA) ERNAKULAM DISTRICT. BY ADVS. SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA** ## **RESPONDENTS:** **1 THE CANARA BANK REPRESENTED BY GENERAL MANAGER, HRM SECTION, CANARA BANK CIRCLE OFFICE, THIRUVANANTHAPURAM PIN 695039.** - **2 ASSISTANT GENERAL MANAGER. HRM SECTION, CANARA BANK, CANARA BANK CIRCLE OFFICE, THIRUVANANTHAPURAM PIN 695039** **BY ADVS. SRI.PAULY MATHEW MURICKEN, SC, CANARA BANK** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C.)NO.22507 OF 2015 2 ## **JUDGMENT** ## **Dated this the 06[th] day of February, 2024** The petitioner has approached this Court, challenging Ext.P9 communication issued by the 2[nd] respondent, rejecting the claim of the petitioner for pension in terms of the provisions contained in Canara Bank (Employees') Pension Regulations, 1995, and in terms of Ext.P8 judgment of the Hon’ble Supreme Court in **Bank of Baroda v. S.K. Kool [2014 (2) SCC 715]** (Judgment in Civil Appeal No.10956/2013 dated 11.12.2013). 2. The brief facts necessary for a consideration of the issues arising for adjudication are the following:- The petitioner entered service of the 1[st] respondent Bank as a Peon on 23.03.1984. On 14.06.1998, he was placed under suspension, pending disciplinary proceedings. On 13.12.1999, a W.P.(C.)NO.22507 OF 2015 3 charge sheet was issued against him and following conclusion of disciplinary proceedings, on 20.09.2001, a punishment of discharge with superannuation benefits was imposed on the petitioner. It is the claim of the petitioner that the petitioner is thus entitled to pension in terms of Ext.R1(a) Regulations, on the strength of the law laid down by the Hon’ble Supreme Court in **Bank of Baroda** (Supra). 3. The learned Counsel appearing for the respondent bank has referred to Regulation 22 of the Canara Bank (Employees') Pension Regulations, 1995, to contend that, when an employee is dismissed or removed or terminated from service, such dismissal or removal or termination shall entail forfeiture of his entire past service and consequently, the said service shall not qualify for pensionary benefits. It is submitted that, since the claim of the petitioner to pension is in terms of the W.P.(C.)NO.22507 OF 2015 4 aforesaid pension Regulations, which is statutory in nature and are framed in exercise of the powers under Clause (f) of sub-section (ii) of Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, the claim of the petitioner can be considered only in terms of the said Regulations and not dehors the Regulations. 4. Having heard the learned Counsel appearing for the petitioner and the learned Counsel appearing for the respondent bank, I am of the view that the issue raised is covered squarely in favour of the petitioner, in terms of Ext.P8 judgment of the Hon’ble Supreme Court in **Bank of Baroda** (Supra). The Regulations, which were under the consideration of the Hon'ble Supreme Court in that case, appear to be identical to Ext.R1(a) Regulations and those Regulations were also framed in exercise of the power conferred by the W.P.(C.)NO.22507 OF 2015 5 provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. While considering the issue raised in that case, it was held that:- “Mr. Jaideep Gupta, learned Senior Counsel appearing on behalf of the appellant Bank, submits that employees of the Bank of Baroda are governed by the Bank of Baroda (Employees) Pension Regulation, 1995, hereinafter referred to as the Regulation'. According to the learned Senior Counsel, the Regulation has been made in exercise of powers conferred by clause (f) of sub-section (ii) of Section 19 of the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 after consultation with the Reserve Bank of India and the previous sanction of the Central Government. The Regulation, therefore, in his submission is statutory in nature and in terms of Article 22 (1) of the Regulation, removal of an employee from the service of the Bank would entail forfeiture of entire past service and consequently he shall not be entitled to pensionary benefits. According to him, such an employee at the most, would be entitled for compassionate allowance in terms of Article 31 of the Regulation. According to Mr. Gupta, though clause 6 (b) of the Bipartite Settlement provides that an employee found guilty of gross misconduct may be removed from service with superannuation benefits i.e. pension and/or provident fund and gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment, but this, in his submission, would not override or supersede Article 22 (1) of the Regulation, which in no uncertain terms provides for forfeiture of entire W.P.(C.)NO.22507 OF 2015 6 past service on removal from service. Any interpretation other than what has been suggested by him would obliterate Article 22 (1) Regulation, contends Mr. Gupta. Ms. Shilpa Singh, learned counsel appearing on behalf of the employee's heirs, however, submits that the order of the disciplinary authority inflicting the punishment itself entitled the employee to the superannuation benefits and that having attained finality, the same cannot be legally denied. She does not join issue that an interpretation which renders a provision redundant is to be avoided and, in fact, invokes the same in support of her contention. According to her, if the interpretation put by the employer is accepted, clause 6(b) of the Bipartite Settlement shall be rendered otiose. Having considered the rival submissions we do not have the slightest hesitation in accepting the broad submission of Mr. Gupta that the Regulation in question is statutory in nature and the court should accept an interpretation which would not make any other provision redundant. Bearing in mind the aforesaid principle, we proceed to consider the rival contentions. The terms and conditions of service of the employees are governed and modified by the Bipartite Settlement. Various punishments have been provided under the Bipartite Settlement which can be inflicted on the employee found guilty of gross misconduct. In 2002, a Bipartite Settlement was signed by the Indian Banks' Association and the Banks' workmen's Union with regard to disciplinary action procedure. It is common ground that in the light of the said Bipartite Settlement, clause 6 (b) was inserted as one of the punishments which can be inflicted on an employee found guilty of gross misconduct and the same reads as follows: "6. An employee found guilty of gross misconduct may; W.P.(C.)NO.22507 OF 2015 7 (a)……….. (b) be removed from service with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment, or xxxxx xxxxx The employee undisputedly has been visited with aforesaid penalty in terms of the the Bipartite Settlement. Article 22 of the Regulation, which is relied on to deny the claim of the employee reads as follows: “22. Forfeiture of service: (1) Resignation or dismissal or removal or termination of an employee from the service of the Bank shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits.” From a plain reading of the aforesaid Regulation, it is evident that the removal of an employee shall entail forfeiture of his entire past service and consequently such an employee shall not qualify for pensionary benefits. If we accept this submission, no employee removed from service in any event would be entitled for pensionary benefits. But the fact of the matter is that the Bipartite Settlement provides for removal from service with pensionary benefits "as would be due otherwise under the Rules or Regulations prevailing at the relevant time". The consequence of this construction would be that the words quoted above shall become a dead letter. Such a construction has to be avoided. The Regulation does not entitle every employee to pensionary benefits. Its application and eligibility is provided under Chapter II of the Regulation whereas Chapter IV deals with W.P.(C.)NO.22507 OF 2015 8 qualifying service. An employee who has rendered a minimum of ten years of service and fulfils other conditions only can qualify for pension in terms of Article 14 of the Regulation. Therefore, the expression "as would be due otherwise" would mean only such employees who are eligible and have put in minimum number of years of service to qualify for pension. However, such of the employees who are not eligible and have not put in required number of years of qualifying service shall not be entitled to the superannuation benefit though removed from service in terms of clause 6 (b) of the Bipartite Settlement. Clause 6 (b) came to be inserted as one of the punishments on account of the Bipartite Settlement. It provides for payment of superannuation benefits as would be due otherwise. The Bipartite Settlement tends to provide a punishment which gives superannuation benefits otherwise due. The construction canvassed by the employer shall give nothing to the employees in any event. Will it not be a fraud Bipartite Settlement? Obviously it would be. From the conspectus of what we have observed we have no doubt that such of the employees who are otherwise eligible for superannuation benefit are removed from service in terms of clause 6(b) of the Bipartite Settlement shall be entitled to superannuation benefits. This is the only construction which would harmonise the two provisions. It is well settled rule of construction that in case of apparent conflict between the two provisions, they should be so interpreted that the effect is given to both. Hence, we are of the opinion that such of the employees who are otherwise entitled to superannuation benefits under the Regulation if visited with the penalty of removal from service with superannuation benefits shall be entitled for those benefits and such of the employees though visited with the same penalty W.P.(C.)NO.22507 OF 2015 9 but are not eligible for superannuation benefits under the Regulation shall not be entitled to that. Accordingly, we hold that the employee's heirs are entitled to superannuation benefits. The entire amount that the respondent is found entitled to along with interest at the rate of 6% per annum should be disbursed within 6 weeks from the date of receipt/communication of this Order. In the result, we do not find any merit in this appeal and it is dismissed accordingly with costs of Rs.50,000/- (rupees fifty thousand) to be paid by the appellant to the respondent No. 1 along with other dues and within the time stipulated above.” The provisions of the Canara Bank Service Code, under which penalty was imposed on the petitioner also appear to be identical to the provisions considered by the Hon'ble Supreme Court in the aforesaid judgment. The Hon'ble Supreme Court also considered Regulation 22 of the Pension Regulations applicable to the Bank of Baroda, which is identical to the provisions contained in Ext.R1(a). Therefore, this Writ Petition can only be allowed, following the judgment of the Hon'ble Supreme Court in **Bank of Baroda** (Supra). W.P.(C.)NO.22507 OF 2015 10 5. At this stage, the learned Counsel appearing for the respondent bank submits that, Ext.P1 order of punishment was issued on 20.09.2001. It is submitted that the petitioner challenged the proceedings before the Central Government Industrial Tribunal, through ID No.330/2006 and the punishment imposed on the petitioner was upheld by Ext.P2 award dated 31.03.2009. It is submitted that the present Writ Petition was filed only in the year 2015, seeking the benefit of pension. It is submitted that, in such circumstances, the claim of the petitioner for pension will have to be restricted to the period after the date of filing of the Writ Petition. 6. I consider the submission of the learned Counsel appearing for the respondent bank to be reasonable. However, it is noticed that the petitioner had filed an application claiming pension through Ext.P5 on 19.04.2010. Therefore, I am of W.P.(C.)NO.22507 OF 2015 11 the opinion that the pension payable to the petitioner shall be for the period after 19.04.2010 and the claim of the petitioner for pension from the date of Ext.P1 order will stand rejected. Therefore, this Writ Petition is allowed. It is directed that the respondent shall pay pension to the petitioner in terms of his eligibility under Ext.R1(a) Regulations, from 19.04.2010. If the amounts due to the petitioner are calculated and paid within a period of three months from the date of receipt of a certified copy of this judgment, the petitioner will not have any claim for interest. If the amounts are not paid as above, within three months, the amounts payable to the petitioner will carry interest at the rate of 6% per annum. ## **Sd/-** ## **GOPINATH P.** ## **JUDGE** NB/6-2 W.P.(C.)NO.22507 OF 2015 12 ## **APPENDIX OF WP(C) 22507/2015** ## **PETITIONER EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF DEPUTY GENERAL MANAGER DATED 20.09.2001. EXHIBIT P2 TRUE COPY OF THE AWARD IN ID NO.330/2006 DATED 31.03.2009. EXHIBIT P2(A) TRUE COPY OF THE RELEVANT COPY OF MEMORANDUM OF SETTLEMENT, CONTAINING THE 6TH BIPARTITE SETTLEMENT REGARDING WAGE REVISION AND CHANGES IN OTHER SERVICE IN OTHER SERVICE CONDITIONS. EXHIBIT P3 TRUE COPY OF RELEVANT PAGES OF MEMORANDUM OF SETTLEMENT DATED 10.04.2002. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 23.07.2002 OF THE 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF THE REPRESENTATIONS FILED BY THE PETITIONER DATED 19.04.2010 EXHIBIT P6 TRUE COPY OF THE REPRESENTATIONS FILED BY THE PETITIONER DATED 27.05.2013. EXHIBIT P7 TRUE COPY OF THE REPLY GIVEN BY THE CANARA BANK DATED 05.09.2014 UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P8 TRUE COPY OF JUDGMENT IN CIVIL APPEAL NO.10956/2013 DATED 11.12.2013. EXHIBIT P9 TRUE COPY OF LETTER DATED 06.11.2014 , THE ASSISTANT GENERAL MANAGER OF THE 1ST RESPONDENT. RESPONDENT EXHIBITS: EXHIBIT R1(a) A TRUE PHOTOCOPY OF THE CANARA BANK (EMPLOYEES’) PENSION REGULATIONS 1995** ## **TRUE COPY** **P.A. TO JUDGE**