SANTHA SAKKU BAI v. STATE BANK OF TRAVANCORE and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 19TH DAY OF MARCH 2018 / 28TH PHALGUNA, 1939** **WP(C).No. 22725 of 2011** **------------------------** ## **PETITIONER** **-----------** ## **MRS.SANTHA SAKKU BAI,** **VRS RETIRED SBT EMPLOYEE, NO.114730,PENSION CODE, 4042, NOW RESIDING AT BHADRA,UNITY PARK, VENNALA PO, KOCHI-28.** **BY ADV.SRI.GEORGE CHERIAN (THIRUVALLA)** ## **RESPONDENT(S):** - **---------------** **1. STATE BANK OF TRAVANCORE, HEAD OFFICE, TRIVANDRUM, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, PIN 695 001.** **2. GENERAL MANAGER (OPERATIONS), STATE BANK OF TRAVANCORE, HEAD OFFICE, TRIVANDRUM PIN 695001.** **3. DEPUTY GENERAL MANAGER (F&A), STATE BANK OF TRAVANCORE, HEAD OFFICE, TRIVANDRUM PIN 695001.** ## **BY ADV. SRI.P.RAMAKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.V.** **WP(C).No. 22725 of 2011 -----------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** ## **--------------------** - **P1: TRUE COPY OF THE STATE BANK OF TRANVACORE VOLUNTARILY RETIREMENT SCHEMEN ISSUED BY THE FIRST RESPONDENT.** - **P2; TRUE COPY OF THE APPLICATION FOR VOLUNTARILY RETIREMENT SUBMITTED BY THE PETITIONER.** - **P3: TRUE COPY OF THE APPLICATION AND RECOMMENDATION FOR THE SUPERANNUATION PENSION.** - **P4; TRUE COPY OF THE REPRESENTATION TO 3RD RESPONDENT DATED 10.7.01.** - **P5: TRUE COPY LETTER DATED 28.9.01 ISSUED BY FIRST RESPONDENT.** - **P6: TRUE COPY OF THE LETTER DATED 5.12.2001.** - **P7: TRUE COPY OF THE ORDER DATED 7.5.02.** - **P8: TRUE COPY OF THE JUDGMENT IN WPC NO 21045/06.** - **P9: TRUE COPY OF THE WRITTEN REQUEST DATED 27.6.11.** - **P10: TRUE COPY OF THE LETTER DATED 15.7.11 BY RESPONDENT.** ## **RESPONDENTS EXHIBITS: NIL** - **---------------------** **/TRUE COPY/** **K.V. P.S.TO JUDGE 24.03.2018** ## **DEVAN RAMACHANDRAN, J.** ----------------------------------------------W.P. (C) No. 22725 of 2011 ----------------------------------------------Dated this the 19[th] day of March, 2018 ## **J U D G M E N T** The petitioner says that she was working as Clerk-Cashier in the services of the State Bank of Travancore, when the Bank brought in the SBT Voluntary Retirement Scheme (SBTVRS) on 31.03.2001. She says that since she had put in 20 years and 8 months of service, she applied under the Scheme, a copy of which was appended to this writ petition as Ext.P1, seeking voluntary retirement. 2. The petitioner admits that she received all the benefits under the Scheme, save the applicable pension which, according to her, was denied on the allegation that she had not put in the requisite number of years in service. The petitioner submits that she, therefore, approached this Court by filing W.P. (C) No. 21045/2006, which culminated in Ext.P8 W.P. (C) No. 22725 of 2011 -2- Judgment, wherein this court held that her actual service of 19 years 11 months and 11 days was liable to be treated as 20 years of qualifying service. The petitioner says that thus she was thus paid pension; but the allegation in this writ petition is that she has been denied benefits under a particular Regulation of the SBT Employees Pension Regulation, 1995 (hereinafter referred to as 'Regulation' in short), where-under the qualifying service of an employee, retiring voluntarily, was directed to be increased by a period not exceeding 5 years, subject to the conditions that the total qualifying service shall not exceed 33 years and that it does not take the period beyond the date of superannuation. The petitioner's assertion is that this benefit has been denied to her and she asserts that the action of the Bank in so doing is illegal and malafide. 3. I have heard the learned Senior Counsel Sri. George Cheriyan assisted by Sri. Alexy Augustine, learned counsel appearing for the petitioner and Sri. P. Ramakrishnan, the learned Standing Counsel, appearing on behalf of the Bank. ## W.P. (C) No. 22725 of 2011 -3- 4. The entire case of the petitioner is edificed on Ext. P1 scheme brought in by the bank. She concedes that she had applied for voluntary retirement under the scheme and that she was granted the benefits of such retirement, as is stipulated therein. As I have already indicated above, she had an earlier apprehension that she was denied pension under the scheme merely because she had not put in 20 years of qualifying service which was granted to her through Ext. P8 Judgment. 5. The genesis of the controversy herein is the manner in which paragraph VII of the Ext. P1 scheme is phrased, whereunder, certain 'other benefits' are enumerated for persons who apply for voluntary retirement under it. In sub paragraph III of paragraph VII of the scheme, it is provided that pension in terms of the “State Bank of Travancore Employees Pension Fund Rules on the relevant date” would also be granted to a person who seeks voluntary retirement under the scheme. The relevant provision relating to pension under the SBT Employees Pension Regulations, 1995 (hereinafter referred to as the W.P. (C) No. 22725 of 2011 -4- “Regulations” for brevity) is Regulation 29 thereof, under which, it is stipulated that an employee has to complete 20 years of qualifying service to obtain that pension. It is on this basis that the bank had initially found the petitioner not eligible for pension because she had not put in 20 years of service. This position has, however, been rectified for the petitioner through Ext. P8 Judgment, wherein, a declaration has been made that she has put in 20 years of service. 6. The only surviving question is whether the provisions of Regulation 29 (5) of the Regulations, which provides that the qualifying service of an employee retiring voluntarily, under those Regulations, will be increased by a period not exceeding 5 years, would become applicable to those persons who had applied to retire under Ext. P1 scheme also. The controversy between the parties in this area is, in fact, on account of paragraph 7 (III) of Ext. P1 scheme, which specifically excludes the benefits under Regulation 29 (5) of the Regulations, to those who seek voluntary retirement under Ext. P1 scheme. ## W.P. (C) No. 22725 of 2011 -5- 7. The learned senior counsel appearing for the petitioner submits that paragraph 7 (III) of the scheme is invalid and illegal since it is against the mandate of the Regulations, which according to him, has the force of law. According to him, when Regulations 29 (5) of the Regulations provides that such an extension will be applicable to all the persons who retire voluntarily, such benefits cannot be denied to a person who retires under Ext. P1 scheme through an executive order. He also has a further case that, in fact, the petitioner's retirement, though applied for under Ext. P1 scheme, is to be construed as being under the Regulations also. He asserts that this has been conceded by the bank, as is evident from Exts. P5 and P7, and, therefore, that his client cannot be denied the benefits of Regulation 29 (5) of the Regulations. 8. The learned standing counsel for the bank Sri. Ramakrishnan contends that these submissions of the learned senior counsel are completely unfounded for the reason that Regulation 29 (5) makes it clear that the benefits under it are only for employees W.P. (C) No. 22725 of 2011 -6- retiring voluntarily under those Regulations viz., The SBT Pension Regulations, 1995. Sri. Ramakrishnan submits vehemently that the petitioner did not retire voluntarily under the pension Regulations, but that she had retired under Ext. P1 scheme which is a composite one and which cannot be attacked and accepted in pieces and parts as is now being done by the petitioner. Sri. Ramakrishnan further adds that the above contentions of the petitioner have already obtained the attention of a Division Bench of this Court in the Judgment in writ appeal No. 1824 of 2014 and he points out that the view of the Division Bench, as is recorded in paragraphs 12, 18, 27 and 30 of the said Judgment, are against the petitioner's assertions herein. Since the view of the Division Bench is vital, I deem it appropriate to extracted it as below; _“12. Regulations 1995 are statutory Regulations framed under sub-section (2) of Section 63 of the State Bank of India (Subsidiary Banks) Act, 1959, by the State Bank of India in consultation with the Board of Directors of the State Bank of Travancore_ W.P. (C) No. 22725 of 2011 -7- _with approval of the Reserve Bank of India. Regulation 2 (i) deals with retirement, Regulation 14 deals with qualifying service, Regulation 28 deals with superannuation pension, Regulation 29 deals with pension on voluntary retirement, Regulation 32 deals with premature retirement pension and Regulation 33 deals with compulsory retirement pension._ _18. From the facts as noted above it is evidently clear that the 2001 Scheme contained a specific clause, Clause 7 (III) that although the applicants shall be entitled to the pension in terms of the State Bank of Travancore Employees Pension Fund Rules, however, the benefit of increased qualifying service as provided under Regulation 29 (5) of the Regulations will not be applicable to those claiming voluntary retirement under the 2001 Scheme. The 2001 Scheme which was an invitation to offer to the employees and Officers was with a specific clause that benefit under Regulation 29 (5) shall not be admissible. As noted above, appellants also gave declaration giving their consent that benefit of increased service as provided under Regulation 29(5)_ W.P. (C) No. 22725 of 2011 -8- _shall not be available to the employees who opted for the voluntary retirement under the 2001 Scheme. Appellants who opted for voluntary retirement under the 2001 Scheme with open eyes and explicit conditions cannot subsequently turn down and claim the benefit under Regulation 29 (5) which was expressly mentioned not to be given to those employees who opted for voluntary retirement._ _27. The main distinguishing feature in the present case with the above case is that in the 2001 Scheme there was clear categorical clause 7 (III) which specifically provided that the benefit of increased qualifying service as provided under Regulation 29 (5) of SBT Pension Regulations 1995 will not be applicable to those who seek voluntary retirement under this scheme. Thus judgment of the Apex Court in Bank of India v. K.Mohandas (supra) is clearly distinguishable and does not help the appellants in the present case. Argument based on estoppel was rejected by the Apex Court in the said case holding that the employees are not seeking to resile from the Scheme rather they are actually seeking enforcement of the clause in the Scheme which provides that they_ W.P. (C) No. 22725 of 2011 -9- _will be entitled to the benefit under Regulation 29 (5). Present is a case where the employees having accepted the condition that they shall not be entitled to the benefit under Regulation 29 (5) and they have signed the declaration to that effect are clearly resiling from the Scheme which is not permissible and they are estopped from claiming the benefit under Regulation 29(5)._ _30. There is another reason on account of which submission of the appellants that Regulation 29 (5) is applicable in the present case has to be rejected. As noted above, Regulation 29 related to 'pension on voluntary retirement'. Regulation 29 (1) provided that an employee who has completed 20 years of qualifying service by giving notice not less than three months in writing to the competent authority retire from service. The said right was given to an employee to seek voluntary retirement. Regulation 29 (5) was thus envisaged in such a situation where an employee seeks voluntary retirement after giving a notice. Voluntary retirement under the 2001 Scheme is not akin to voluntary retirement as contemplated in Regulation 29. In this context reference of the Apex_ W.P. (C) No. 22725 of 2011 ## -10- _Court judgment in Bank of Baroda v. Ganpat Singh Deora ([2009] 3 SCC 217) is relevant. In the above case the Apex Court was considering the provisions of the Bank of Baroda (Employees') Pension Regulations, 1995 and the Bank of Baroda Employees Voluntary Retirement Scheme, 2001. Regulation 29 of the Bank of Baroda (Employees') Pension Regulations, 1995 was identical to the Regulation 29 of the SBT Regulations 1995. In Bank of Baroda v. Ganpat Singh Deora (supra) the employees who had completed 13 years of service and attained the age of 40 years opted for voluntary retirement. the was Application of employees accepted by the bank and was paid retiral benefits under the Scheme but request for grant of pension in addition to other benefits was not accepted by the bank. The matter was referred to the Industrial Tribunal, Jodhpur which gave an award in favour of the employees which was challenged by Bank of Baroda by filing Writ Petition under Article 226 of the Constitution of India. Respondent-employee also filed an application for implementation of the award passed by the Tribunal. Writ Petition filed by the employee was dismissed by the High Court observing_ W.P. (C) No. 22725 of 2011 -11- _that the Industrial Disputes Act itself is a self contained provision for enforcement of the award. Aggrieved by the said judgment a Special Appeal was filed before the Division Bench. The Division Bench by a common judgment decided the Special Appeal filed by the employee as well as the Writ Petition filed by the Bank against the award of the Tribunal. The Division Bench dismissed the Writ Petition filed by the Bank and allowed the writ petition filed by employees against which the matter was taken to the Supreme Court. A submission was raised on behalf of the employee before the Apex Court that terms and conditions of the voluntary retirement scheme 2000 were quite different from the voluntary retirement contemplated under Regulation 29. The said submission was noted by the Apex Court in paragraph 23 which is to the following effect;_ _“23. Ms. Bhati also urged that the terms and conditions of Voluntary Retirement Scheme were quite different from the voluntary retirement contemplated under Regulation 29. Learned counsel urged that the impugned judgment of the High Court had been passed on a correct interpretation of the Regulations and did not warrant any interference.”_ W.P. (C) No. 22725 of 2011 -12- 9. On a consideration of the various submissions made before me, I am drawn to the query whether the petitioner, who admittedly retired from service under Ext. P1 scheme, would now obtain the locus to say that she should be granted the benefits under the Regulations also. The submission of the learned senior counsel appearing for the petitioner is, of course, that the petitioner should be construed to have retired not merely under Ext. P1 scheme, but as also under the provisions of the Pension Regulations and he points out to Exts. P5 and P7 in strength of his assertion. I see that Ext. P5 and P7 are communications issued by the bank to the petitioner denying her the benefit that she sought for under Regulation 29 (5) of the Pension Regulations. In Ext. P5, the bank has said that even in the case of a person who is retiring under the Ext. P1 scheme, he or she would be entitled to pension only in terms of Regulation 29 of the Pension Regulations. It is the same view that has been reiterated in Ext. P7, wherein they again say that pension is payable to employees who retired under the VRS scheme only W.P. (C) No. 22725 of 2011 **==> picture [28 x 11] intentionally omitted <==** under Regulation 29, which pre-stipulates a minimum of 20 years of service. The learned counsel, therefore, asserts that this makes it ineluctable that the Pension Regulations also would apply in tandem with the Ext. P1 Scheme with respect to persons like the petitioner. 10. I have considered the submissions of the learned senior counsel with great amount of care. I am afraid that I cannot accede to these submissions for the simple reason that the benefits under Regulation 29 of the Pension Regulations have been made applicable to the petitioner only because of paragraph 7 (3) of Ext. P1 Scheme. If paragraph 7 was absent from Ext. P1, then the benefits of pension would not have been applicable to the petitioner at all. Under paragraph 7 (III), it is specifically provided that the pension in terms of the Pension Regulations would be available even to a person who applies under Ext. P1 scheme. However, after saying so, it has added a restriction, in making the provisions of section 29 (5) of the Regulations not applicable in the case of persons who retired under its W.P. (C) No. 22725 of 2011 **==> picture [28 x 11] intentionally omitted <==** provisions. Therefore, the submission of the learned senior counsel that the provisions of the Pension Regulations would also act in tandem with the Ext. P1 Scheme cannot find legal sustenance. This is because, certain provisions of the Pension Regulations have been made specifically applicable in the case of persons who applied for retirement under the Scheme because of the specific provisions contained therein and for no other reason. In that view, obviously, the petitioner cannot say that she would be entitled to all the benefits under the SBT Pension Regulations automatically when she applied for retirement under Ext. P1 Scheme. I cannot find favour of this submission and I am, therefore, forced, without having any other option, to repel the same. 11. As regards the validity of paragraph 7 (III) of the Scheme is concerned, I am cognizant of the submissions of the learned senior counsel that it is contrary to the Employees Pension Regulations and, therefore, that it should be deemed to be illegal and unlawful. Before I answer this specifically, I must W.P. (C) No. 22725 of 2011 -15- place it on record that this submission may perhaps be counter productive to the petitioner also. I say this because, as I have already indicated above, but for paragraph 7 (III) of Ext. P1 Scheme, persons like the petitioner would not be entitled to pension at all. This is obvious because paragraph 7 enumerates “other benefits” under the scheme and stipulates that “the pension payable to a person under regulation 29 would also be one such other benefit”. If this provision have not been there, the petitioner obviously would not obtain the benefit of pension under the Scheme either. 12. Viewed from that perspective, I must consider whether the restriction regarding the applicability of regulation 29 (5) in the Scheme is legal or otherwise. As has been held by the Division Bench in **K. Bhaskaran Nair and others V. State Bank of Travancore and others** (supra), the acceptance of Ext. P1 is a matter of contract between the employee and the bank. Once the petitioner had accepted the terms of Ext. P1, it can only be construed that she had affirmed to every term thereof and not W.P. (C) No. 22725 of 2011 **==> picture [28 x 11] intentionally omitted <==** that she accepts some and rejects the other. This is particularly because she has already accepted the benefits under the scheme, including the pension, even by litigating before this Court which lead to Ext. P8 Judgment. Hence, when she admits that pension was applied by her not under the Employees Pension Regulations but under the Ext. P1 Scheme, it cannot be up to her to now contend that the restrictive clauses in Ext. P1 Scheme cannot apply to her. This is the same view as have been affirmed by the Division Bench in **K. Bhaskaran Nair and others** (supra). I am in complete affirmation with the views of the learned Division bench and I, therefore, do not see any reason to deviate therefrom. 13. Sri. George Cherian, learned senior counsel at this moment interjects to say that, paragraph 7 (III) is also bad because it is vague and therefore, that applying the principles of _contra proferentem,_ the said provision will have to be struck down. I understand that this submission has been made because in paragraph 7 (III), it prescribes that pension in terms of State W.P. (C) No. 22725 of 2011 **==> picture [28 x 11] intentionally omitted <==** Bank of Travancore Employees Pension Fund Rules would apply and that there is no such Pension Fund Rules applicable to the bank and that only the Employees Pension Regulations, 1995 are available. I am not sure whether this contention can be allowed to be taken forward by the petitioner because she herself has litigated before this Court which lead to Ext. P8 Judgment, wherein, she had contented, as was found in her favor, that the Employees Pension Regulations, 1995 are the relevant Regulations to apply under paragraph 7 (III) and not what is termed as “State Bank of Travancore Employees Pension Fund Rules”. These words in paragraph 7 (III) of the regulations can only be a mistake or a typographical error since it is conceded even by the petitioner that there is no such Pension Fund Rules applicable to the bank. 14. In the circumstances above and in the conspectus of my observations afore and also being guided by the view of the learned Division bench in K. Bhaskaran Nair and others V. State Bank of Travancore and others (supra), I dismiss this writ W.P. (C) No. 22725 of 2011 **==> picture [28 x 11] intentionally omitted <==** petition finding the reliefs prayed for and the contentions raised before being bereft of merits and therefore, without the requirement of any intervention from this Court under Article 226 of the Constitution of India. This Writ petition is thus disposed of. **Sd/DEVAN RAMACHANDRAN JUDGE** TTB/EB/27.03.2018