O.VIJAYAN v. CENTRAL BANK OF INDIA

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 9TH DAY OF JANUARY 2018 / 19TH POUSHA, 1939 WP(C).No. 21470 of 2014** ## **PETITIONER:** **O.VIJAYAN, AGED 60 YEARS, SON OF CHATHAN, EX-HEAD CASHIER II, CENTRAL BANK OF INDIA, CHENGANNUR BRANCH, CHENGANNUR, RESIDING AT OTTATHARA, NJARAKKAL-682 505, ERNAKULAM DISTRICT.** **BY ADVS.SRI.B.ASHOK SHENOY SMT.C.G.PREETHA SRI.K.V.GEORGE SRI.P.N.RAJAGOPALAN NAIR SRI.P.S.GIREESH** ## **RESPONDENT :** **CENTRAL BANK OF INDIA, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, 1ST FLOOR, METRO PALACE, OPPOSITE ERNAKULAM TOWN RAILWAY STATION, ERNAKULAM NORTH, KOCHI-682 018.** **BY SRI.K.M.ANEESH, SC SRI.ADARSH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-01-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 21470 of 2014** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 COPY OF THE ORDER NO.CRO/HRD/DAD/2012-14/1051 DATED 05/12/2013ISSUED TO PETITIONER BY DEPUTY REGIONAL MANAGER OF RESPONDENT. EXHIBIT P2 COPY OF THE LETTER NO.CRO/SRM/2014-15/199 DATED 4/7/2014 ISSUED BY RESPONDENT TO PETITIONER. EXHIBIT P3 COPY OF THE BIPARTITE SETTLEMENT DATED 10/4/2002 SIGNED BY INDIAN BANKS ASSOCIATION AND UNIONS OF THE WORKMEN IN THE BANKS** **EXHIBIT P4 COPY OF CENTRAL BANK OF INDIA (EMPLOYEES) PENSION REGULATIONS 1995.** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R1(A) COPY OF THE RELEVANT PAGES OF THE REGULATION EXHIBIT R1(B) COPY OF THE CIRCULAR G.O.PRS 2005-06:22 DATED 06/06/2005.** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **P.V.ASHA J.** ## **-------------------------------------** ## **W.P.(C).No.21470 of 2014** **--------------------------------------** Dated this the 9[th ] day of January, 2018 ## **J U D G M E N T** Petitioner, who was working in Central Bank of India, has filed this writ petition challenging Ext.P2 order by which his request for payment of terminal benefits/terminal surrender of earned leave and full pension was rejected on the ground that he was discharged from service based on disciplinary action and that he was eligible for compassionate allowance. 2. Petitioner commenced his service under the respondent-the Central Bank of India on 22.10.1979 as a Clerk. Disciplinary proceedings were initiated against him, while he was working as a Head Cashier, which culminated in Ext.P1 order of punishment of “Discharge from service with superannuation benefits i.e. Pension and/or Provident Fund, gratuity as would W.P.(C).No.21470 of 2014 2 be due otherwise under the rules or regulations prevailing at the relevant time and without disqualification from future employment in terms of clause No.6(d) of Memorandum of settlement dated 10.04.2002.” Ext.P1 order was issued on 05.12.2013. Petitioner submitted a representation requesting for terminal benefits on 14.05.2014. It was rejected as per Ext.P2 letter. Petitioner filed this writ petition at that stage challenging Ext.P2 order, asserting that he is entitled to full pension as well as for commutation of pension and for terminal leave encashment benefit. 3. Ext.P3 Bipartite Settlement was arrived at between the management of 52 'A' Class Banks as represented by the Indian Banks Association and their workmen as represented by the All India Banks Employees Association, National Confederation of Bank Employees, Indian National Bank Employees Federation. Clause 6 of the settlement provides for the punishments which can be awarded when an W.P.(C).No.21470 of 2014 3 employee if found guilty of misconduct. "Discharge 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" is one of the punishments given under Sub-clause (d) of Clause ## 6 of the settlement. Clause 6 (d) reads as follows: “be discharged 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” 4. Respondents have filed a counter affidavit, stating that petitioner, who was discharged from service, is not entitled to normal full pension as claimed by him. It is stated that as per the Central Bank of India (Employees) Pension Regulations, 1995 (Ext.P4) Regulation 31(1) provides that an employee, who is dismissed or removed or terminated from service, shall forfeit his pension. Under the W.P.(C).No.21470 of 2014 4 proviso to this Regulation an authority higher than the authority competent to dismiss or remove or terminate, can sanction compassionate allowance not exceeding two-third of the pension which would have been admissible to him on the basis of the qualifying service. It is further stated that as per Ext.R1(b) Circular issued by the Bank only those who retired from service are eligible for the benefit of encashment of privilege leave. It also provides that those who are compulsorily retired from the service or removed from Bank's service by way of punishment are not eligible for encashment of privilege leave. The petitioner was granted compassionate allowance to the extent of two-third of the pension which is admissible in accordance with his qualifying service. 5. Petitioner has filed a reply affidavit stating that he is entitled to pension as well as encashment of privilege leave. 6. Respondents had also raised a contention W.P.(C).No.21470 of 2014 5 that the writ petition is not maintainable, since petitioner is a workman and he has not approached the Industrial Court being a workman initiating appropriate proceedings under the Industrial Disputes Act. 7. I heard the learned counsel for the petitioner as well as the learned Standing Counsel for the respondent. 8. The objection against the maintainability of the writ petition is coming up for consideration only in the year 2017. At this stage, I do not find any justification in raising or considering the question of maintainability. Moreover the factual circumstances arising in the case are not disputed. Therefore on that ground also the objection against the maintainability of the writ petition cannot be sustained. 9. The learned counsel appearing for the petitioner relied on the judgment of the Apex Court in **Bank of Baroda v S.K.Kool** [2014(2) SCC 715] and W.P.(C).No.21470 of 2014 6 argued that even in a case of removal the delinquent employee is entitled to terminal benefits. The Apex Court was considering the case of a person, who was removed from service from the Bank of Baroda when he was denied privilege leave. He approached the labour court in an ID and an award was passed in his favour. The Bank challenged the same. After considering the provisions contained in the Bipartite Settlement as well as pension regulations, the Apex Court held that the pension or pensionary benefits cannot be denied to a person who is removed from service. In paragraph 13 of the judgment, the relevant regulation which is also Regulation 22 is reproduced. It provided that “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." The Apex Court held as follows in paragraphs 13, 14 and 15: 13. Regulation 22 of the Regulations, which is relied on W.P.(C).No.21470 of 2014 7 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 for 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 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. 14. The Regulations do not entitle every employee to pensionary benefits. Its application and eligibility is provided under Chapter II of the Regulations whereas Chapter IV deals with 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 Regulation 14 of the Regulations. 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 W.P.(C).No.21470 of 2014 8 required number of years of qualifying service shall not be entitled to the superannuation benefits 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. 15. 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 Regulations 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 but are not eligible for superannuation benefits under the Regulations shall not be entitled to that. W.P.(C).No.21470 of 2014 9 10. It was held that the employees who were 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. It is therefore held that respondent therein was entitled to superannuation benefits. 11. In the present case, the petitioner was awarded the punishment of discharge from service with superannuation benefits. The Central Bank of India Employees Pension Regulations, 1995, which governed the petitioner and based on which the petitioner is denied full pension is in terms of Rule 22(1), which reads as follows: “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. 12. The pension regulations were issued in the year 1995 whereas Ext.P3 memorandum of settlement W.P.(C).No.21470 of 2014 10 was arrived at on 10[th] April, 2002. When the punishment of discharge from service with superannuation benefits was included in Clause 6(d) of the settlement, the pension Regulations were in force, despite the fact that several Banks are parties to the memorandum of settlement and Regulations similar to Regulation 22 were in force in almost all the Banks. 13. Learned counsel for the respondents pointed out that discharge from service was not a punishment at the time when Ext.P4 Regulations were framed. I do not think that can be a reason for interpreting the punishment in such a manner. It cannot be disputed that when Ext.P3 settlement provided for various punishments it did not provide for denial of pension to those who were discharged from service. In case there was such an intention that would have been included in the settlement. But what is provided is they can be discharged from service with superannuation benefits i.e., pension and/or W.P.(C).No.21470 of 2014 11 provident fund and gratuity as could be due otherwise under the Rules or Regulations prevailing at the relevant time. Petitioner, who had service from 1979 to 2013, was eligible for full pension on the basis of the qualifying service. As held by the Apex Court in the judgment (supra), the pension Regulation which provides for forfeiture of pension in the case of those who are dismissed or removed or terminated from service cannot stand in the way of the entitlement of the petitioner for pensionary benefits, under the settlement. It cannot also be said that just because compassionate allowance was admissible to petitioner, full pension can be denied to him because of Clause 6(d) of the Regulations which provides for “Discharge with Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations.” 14. As interpreted by the Apex Court the Regulation Ext.P3 as well as provisions contained in the pension Regulations can be interpreted only to W.P.(C).No.21470 of 2014 12 mean that the person, who is discharged from service, should be entitled to pension without limiting it to compassionate allowance. Even assuming that it is only because of the introduction of the punishment of discharge subsequent to the issuance of the pension Regulation itself as per Ext.P4, an interpretation favourable to the employees has to be adopted, if there is scope for two interpretations. In the absence of any specific provisions it provides that a person, who is discharged from service, is not entitled to pension, the action of the respondents in denying the full pension to petitioner is illegal. Similarly it is the case regarding his encashement of privilege leave which is directly covered by the judgment of the Apex Court (supra). Petitioner would therefore be entitled to pension as well as commuted value of pension and encashment of privilege leave. Ext.R2(b) shall not stand in the way of granting the benefits to the W.P.(C).No.21470 of 2014 13 petitioner. The benefits shall be disbursed to the petitioner within a period of 'three months' from the date of receipt of a copy of the judgment. Sd/- **P.V.ASHA, JUDGE.** AS