S. Ganesh Kumar v. Indian Bank and The General Manager (HRM), Indian Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **THURSDAY ,THE 28TH DAY OF MARCH 2019 / 7TH CHAITHRA, 1941** ## **WP(C).No. 25578 of 2018** ## **PETITIONER/S:** **S.GANESH KUMAR, AGED 61 YEARS, S/O. R. SANKARA RAMA IYER,SENIOR MANAGER(RETIRED), INDIAN BANK, 49/1204-D,INDIRA BYE ROAD, EDAPPALLY, KOCHI - 682 024.** **BY ADV. SRI.R.PARAMESWARA IYER** ## **RESPONDENT/S:** |**1**|**INDIAN BANK**| |---|---| ||**REPRESENTED BY THE MANAGING DIRECTOR AND CHIEF**| ||**EXECUTIVE OFFICER, INDIAN BANK, HEAD OFFICE,**| ||**254-260, AVVAI SHANMUGHAM SALAI, ROYAPPETTAH,**| ||**CHENNAI 600 014.**| |**2**|**THE GENERAL MANAGER (HRM),**| ||**INDIAN BANK, HEAD OFFICE, 254-260, AVVAI**| ||**SHANMUGHAM SALAI, ROYAPPETTAH, CHENNAI 600**| ||**014.**| **BY ADVS. SRI.S.EASWARAN, SC, INDIAN BANK** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 8.03.2019, THE COURT ON 28.3.2019 DELIVERED THE FOLLOWING:** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 25578 of 2018 ----------------------------------------------Dated this the 28[th] day of March, 2019** ## **JUDGMENT** This writ petition is filed with the following prayer: _“to issue a writ of mandamus or any other appropriate writ, order or direction commanding on the respondents to accept his Ext.P6 request for grant of pension from 25.10.2010 and to pay the pension with arrears from 25.10.2010 with interest @10% p.a on the arrears.”_ 2. Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent Bank. 3. The petitioner had joined service of the respondent Bank as a probationary officer in Scale-I on 21.9.1981. He was promoted as Senior Manager Scale-III in 2007 after officiating in various intermediate posts. The petitioner was granted extraordinary leave from 10.9.2007 to 9.9.2010 and had been working abroad. He had provided his residential address and e-mail address to the respondents before proceeding on leave. 4. When the petitioner joined the Bank, there was only contributory pension fund scheme available for employees. When a pension option was made available for the first time, 3 _**WP(C).25578/18**_ the petitioner did not opt for pension. The petitioner submitted his resignation on 3.7.2010. Exhibit P1 e-mail communication had been received by the petitioner requiring him to meet the General Manager. Thereafter, his resignation was accepted on 20.9.2010 by Exhibit P2 communication dated 22.9.2010. Learned counsel for the petitioner submits that the petitioner had returned from Africa on completion of his contract in July, 2017. Thereafter, he came to know that a second option had been available for pension from 23.8.2010 to 21.10.2010 by Exhibit P5 circular. It is contended that the circular specifically stated that in respect of staff on Sabatical/EOL/LLOP, proper communication in writing is to be sent to their last known addresses by registered post and the record should be maintained to ward off any controversy later. It is stated that immediately on coming to know of Exhibit P5 circular, the petitioner submitted Exhibit P6 request, which has been rejected by Exhibit P7. It is stated that though Exhibit P8 request was made by the petitioner undertaking to pay back the P.F. amount received by him with interest, the request has not been considered by the respondents. 5. A counter affidavit has been placed on record on behalf of respondents 1 and 2. It is stated that Exhibit P6 is the first request submitted by the petitioner to exercise the option to be governed by the pension scheme. It is submitted that the decision to introduce pension as a retirement benefit in lieu of the contributory provident 4 _**WP(C).25578/18**_ fund was first mooted in the banking industry on 29.10.1993. A Pension Scheme was introduced in 1995 with options to employees but the petitioner did not avail the option, but opted to the contributory provident fund. It is stated that by Exhibit P5, the option to join pension scheme was made available to provident fund optees also between 23.8.2010 and 21.10.2010. It is stated that the petitioner was a provident fund optee. His resignation, which was submitted on 3.7.2010, was accepted on 20.9.2010. The petitioner was relieved from service only after the option to join the scheme closed. After knowing fully well the consequences of resignation, the petitioner had forfeited all his claims and had resigned from service and received the provident fund amount on resignation. It is stated that the petitioner had taken EOL to join a foreign bank and had worked in the said bank for ten years from 2007 to 2017. He had been advised on 2.8.2010, 12.8.2010 and 10.9.2010 to rejoin the services of the Bank. However, the petitioner had not rejoined and had submitted a letter of resignation. It is further stated that wide publication of the scheme mooted in Exhibit P5 had been made through advertisements in news papers, and registered intimations were also sent to staff on Sabatical/EOL/LLOP at their last known addresses. As eight years had lapsed after the scheme has closed, the proof of despatch was not available with the respondents. It is further stated that the petitioner's voluntary resignation from the services of the Bank entails forfeiture of 5 _**WP(C).25578/18**_ entire prior services and he can have no claim for pension in view of such forfeiture. It is contended that since the petitioner had approached this Court only after eight years from the date of his resignation, the writ petition is highly belated and is liable to fail on that ground alone. 6. Learned counsel for the petitioner placed reliance on the deicion of the Apex Court in _**Dakshin Haryana Bijli Vitran Nigam and Others v. Bachan Singh**_ [AIR 2009 SC 2745] to contend that where the circular allowing employees to opt for pensionary benefits was not shown to have been properly communicated to the employees, the benefit of such option cannot be denied to them. After considering the various decisions with regard to the impermissibility of arbitrary action of the State, the Apex Court held that it would be totally unreasonable and irrational to deny the pensionary benefits under the scheme, when the employer has failed to produce any record showing that the instructions were actually got noted in writing from the respondent. It was held that in the absence of any such material, it can well be inferred that the respondent had no knowledge about the options called by the employer. Relying on the decision of the Apex Court in _**Pepsu Road Transport Corporation, Patiala v. Amandeep Singh and Others**_ [AIR 2017 SC 321], it is contended that it is only where the regulations do not indicate that personal intimation is not required to be served that the employer can contend 6 _**WP(C).25578/18**_ that the employees should opt within the specific time prescribed. 7. The learned counsel appearing for the Bank would, on the other hand, rely on the provisions of the Indian Bank (Employees) Pension Regulations, 1995 (for short, 'the Pension Regulations'). It is stated that the said Regulations were applicable to all employees and that an option in writing was required to be submitted within the time. The petitioner had opted for the provident fund in pursuance of the Regulations. Regulation 22 of the Pension Regulations specifically provided that resignation or dismissal or removal or termination of an employee from the services of the Bank shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits. The learned counsel would also place reliance on _**M.R.Prabhakar and others v. Canara Bank and others**_ [(2012)9 SCC 671]. Employees in that case, who had been denied pensionary benefits on account of resignation, had taken up a contention that resignation must be considered as voluntary retirement, thus entitling them to pensionary benefits. Considering the provisions of the Pension Regulations as also the distinction between the terms 'retirement' and 'resignation', the Apex Court clearly held that the employees, who tendered their letters of resignation, had forfeited their past service and could not claim pension under any circumstances. A decision of the learned single Judge of this Court in W.P(C).No.4330 of 2010 which construed the provisions of Regulation 22.1 of the Pension Regulations 7 _**WP(C).25578/18**_ is also relied upon. After considering the decision in _**M.R.Prabhakar's case (supra)**_ and the earlier decision in _**Sheelkumar Jain v. New India Assurance Company Ltd.**_ [AIR 2011 SC 2990], this Court held that Regulation 22.1 of the Pension Regulations clearly prohibits payment of pension to an employee, who resigns from service voluntarily. It was found that since voluntary retirement and resignation are completely distinct concepts in service law parlance, the employee who resigned from service would not be entitled to claim pension, since he forfeites his entire prior service. 8. I have considered the contentions advanced on either side. The petitioner had submitted his resignation on 3.7.2010. The resignation had been accepted by Exhibit P2 proceedings. The contention of the petitioner is that his resignation would not entail forfeiture of his past service, since it does not amount to termination of his service. It is further contended that had the petitioner known of the further option as provided in Exhibit P5, he would not have resigned from service and it was only on account of the failure on the part of the respondents to inform him of the further option available to him that he had been forced to resign from service. On a consideration of the contentions advanced, I am of the opinion that the arguments raised by learned counsel for the petitioner are completely misconceived. The petitioner claims that he was entitled to have been informed of the further option available to him to opt for pension in terms of Exhibit P5. 8 _**WP(C).25578/18**_ The window for exercising option was available from 25.7.2010 to 21.10.2010. The petitioner admittedly did not exercise his option. His first attempt to make a complaint with regard to the inability to exercise option was submitted on 25.1.2018 (Exhibit P6). The respondents had raised a preliminary objection to this writ petition on the ground that it is highly belated. No justifiable reason is forthcoming for the long delay in approaching this Court also apart from stating that th petitioner was unaware of the chance to opt as provided in Exhibit P5. Learned counsel for the petitioner further contends that the provisions under Regulation 22 of the Pension Regulations with regard to forfeiture of past service do not apply to the petitioner. 9. The Apex Court has specifically considered the distinction between resignation and retirement in terms of the Pension Regulations and has held that resignation from service specifically entails the forfeiture of past service. This Court has held, following the decisions of the Apex Court, that the clear meaning of Rule 22 would only be that a voluntary resignation from service would entail forfeiture of past service. The question whether the petitioner had been individually put on notice of the chance to opt, would therefore be irrelevant in the instant case, since the petitioner had submitted a letter of resignation on 3.7.2010 which had been accepted by Exhibit P2 and the petitioner had forfeited his past service on account of his resignation. The petitioner had also availed all benefits under the 9 _**WP(C).25578/18**_ contributory pension fund scheme, which he was entitled to, on the basis of the option earlier exercised by him. 10. The decisions relied on by learned counsel for the petitioner are with regard to the communication of the circular individually to the petitioner. The petitioner has chosen to approach this Court eight years after his resignation. Exhibit P5 is a circular dated 21.8.2010. It is true that it contains a clause that the option is to be informed to all employees. It is contended by the respondents in the counter affidavit that such communication had been made in terms of the circular to all employees. In view of the fact that the petitioner had waited for eight years before approaching this Court, I am of the opinion that the respondents cannot be held liable to produce material to show that the information in Exhibit P5 had been sent to the petitioner's last known address in view of the long delay. The further contention of learned counsel for the petitioner that resignation as stated in Regulation 22 of the Pension Regulations is to be read in pari materia that the words 'dismissal' or 'removal' or 'termination' and can only refer a punitive action as against the petitioner is also misconceived. Resignation is a voluntary act of withdrawing from the employment by an employee at the discretion of the employee. The Apex Court in _**UCO Bank v. Sanwar Mal**_ [(2004)4 SCC 412] has clearly spelled out the distinction between the words 'resignation' and 'retirement' in common parlance. The Apex Court in _**Prabhakar's case (supra)**_ has, construing the 10 _**WP(C).25578/18**_ provisions of the Canara Bank (Employees') Pension Regulations, 1995, which is in pari materia to the Indian Bank (Employees) Pension Regulations, 1995, held that an employee, who resigns from service forfeits his earlier service and therefore cannot seek the option for pension as in the case of an applicant for voluntary retirement. I am of the opinion that the contentions raised by learned counsel for the petitioner are devoid of merits. In view of the circumstances as stated above and in view of the fact that the petitioner has waited for more than eight years before approaching this Court seeking the benefit of a re-option, I am of the opinion that the relief as claimed by the petitioner in this writ petition are not liable to be allowed. **==> picture [36 x 46] intentionally omitted <==** The writ petition fails. The same is accordingly dismissed. Sd/- **ANU SIVARAMAN JUDGE** _vgs_ 11 _**WP(C).25578/18**_ ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE COMMUNICATION DATED 2.8.2010.** **EXHIBIT P2 TRUE COPY OF THE E-MAIL LETTER DATED 22.09.2010 OF O AND M DEPARTMENT. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 12.08.2010. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 25.10.2010 RELIEVING THE PETITIONER. EXHIBIT P5 TRUE COPY OF THE CIRCULAR NO. HRM: 92/201011 DATED 21.08.2010.** **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 25.01.2018. EXHIBIT P7 TRUE COPY OF THE REPLY DATED 13.02.2018. EXHIBIT P8 TRUE COPY OF THE LETTER DATED 28.03.2018. EXHIBIT P9 TRUE COPY OF THE STATUS REPORT DATED 24/07/2018.**