Sukumaran.K.N. v. Kerala Gramin Bank and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 14[TH] DAY OF SEPTEMBER 2022 / 23RD BHADRA, 1944** ## **WP(C) NO. 8818 OF 2021** ## **PETITIONER:** SUKUMARAN.K.N. AGED 64 YEARS S/O. K.S. NARAYANAN VAIDYAR, MANAGER(RTD), KERALA GRAMA BANK, THAZHUTHAREENTAVIDA, ELANGODE P.O, PANOOR - 670692. BY ADVS. S.PRASANTH (AYYAPPANKAVU) SMT.VARSHA BHASKAR ## **RESPONDENTS:** 1 KERALA GRAMIN BANK REPRESENTED BY THE GENERAL MANAGER, KGB TOWERS, AK ROAD, MALAPPURAM - 676505. 2 THE CHAIRMAN KERALA GRAMIN BANK, KGB TOWERS, AK ROAD, MALAPPURAM - 676505. 3 CHIEF MANAGER (HR WING) KERALA GRAMIN BANK, KGB TOWERS, AK ROAD, MALAPPURAM - 676505. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON 14/9/2022 DELIVERED THE FOLLOWING** W.P.(C)No.8818/2021 2 ## **V.G.ARUN J.** ------------------------------------- **W.P.(C) No.8818 of 2021 ---------------------------------** Dated this the 14th day of September 2022 ## **JUDGMENT** The petitioner had joined the Kerala Gramin Bank/first respondent on 17/11/1982. While working as Manager (second line) in the Vythri Branch of the first respondent, petitioner submitted Ext.P1 letter dated 20/4/2016, seeking the Chairman’s permission to resign from service. Before the letter of resignation was accepted and acted upon, petitioner submitted Ext.P2 letter, requesting to allow him to retire from service under Clause 11, Chapter-II of the Kerala Gramin Bank(Officers and Employees) Service Regulations 2013 (the ‘Service Regulations’ for short). The petitioner was thereafter served with Ext.P4 proceedings of the Chairman dated 9/8/2016, accepting his resignation and permitting him to relinquish office on 9/8/2016. Subsequently, the petitioner submitted a request for granting him retirement benefits, in terms of Regulations 3 and 20 of the Kerala Gramin Bank(Employees) Pension Regulations, 2018 (the Pension Regulations” for short). The W.P.(C)No.8818/2021 3 request for pension was rejected _vide_ Ext.P5 dated 18/6/2019. Undaunted, the petitioner submitted Ext.P6 representation requesting to treat his case as retirement instead of resignation and to sanction pension as per Regulation 32 (1) of the Pension Regulations. The request was rejected under Ext. P7, reiterating the Bank's stand that the petitioner is not eligible for pension in view of Regulations 3 and 20 of the Pension Regulations. Aggrieved, this writ petition is filed seeking the following reliefs; _"i). Issue a writ of certiorari or any other appropriate writ or order setting aside Ext.P5 and P7 letters;_ _ii). Issue a writ of mandamus or any other appropriate writ or order an order directing the respondents to treat the relieving of the petitioner from service as retirement under Regulation 11 of Kerala Gramin Bank Service Regulations 2013:_ _iii). Issue a writ of mandamus or any other appropriate writ or order an order directing the 1st respondent to grant the petitioner pensionary benefits for his period of service in the bank as per Ext.P8 Regulations_ _iv). issue an order declaring that the petitioner is eligible for pension and all other s_ ervice benefits considering his relieving from service as retirement." 2. Adv.Prashanth.S, learned counsel for the petitioner, put forth the following contentions; The petitioner was compelled to submit Ext.P1 letter as he was suffering from Bipolar Disorder and Hypomania, as evidenced by Exts.P9 to P11 medical records. Although in Ext.P1 letter the petitioner had requested for permission to resign, the resignation W.P.(C)No.8818/2021 4 did not come into effect, as the petitioner had submitted Ext.P2 letter seeking permission to allow him to retire from service in accordance with Clause 11 of the Service Regulations, prior to the acceptance of his resignation. Even Ext.P4 issued thereafter, does not clearly state that the petitioner's request for resignation is accepted. On the other hand, what is stated is that the petitioner is permitted to relinquish his office and will cease to be an officer of the Bank with effect from 9/8/2016. Being so,the respondents are bound to treat the petitioner as a person compulsorily retired under Clause 11 of the Service Regulations, as he had crossed 55 years and completed 30 years of service as on the date of submission of Ext.P1. 3. The Pension Regulations was notified immediately after the petitioner left the service. Therein the definition of retirement under Regulation 2(x) takes in voluntary retirement also. Hence, the petitioner ought to be treated as a person who had voluntarily retired from service, so that he becomes entitled for retirement benefits. In support of this contention, reliance is placed on the decisions of the Apex Court in **Shashikala Devi v. Central Bank of India And Others [(2014) 16 SCC 260]** , **Asger Ibrahim Amin v. Life Insurance Corporation of India [(2016) 13 SCC 797]** as well the decision rendered by the Division Bench of this Court in **Kunnath Chandrasekharan v. State** W.P.(C)No.8818/2021 5 ## **Bank of India and Others [2019 (5) KHC 34]** . 4. Learned Standing Counsel for the respondents refuted the contentions and submitted that the writ petition is liable to be dismissed on the ground of delay alone. It is pointed out that the petitioner was relieved from service on 9/8/2016 and had, for the first time, requested to treat his resignation as retirement in the year 2019. Thereafter, the the writ petition was filed only in November 2021. No explanation is offered for the inordinate delay. 5. On the merits of the petitioner’s contentions, it is submitted that the Human Resources Wing of the Bank had sent Ext.R1(a) letter dated 25/7/2016 to the petitioner, expressing inability to consider petitioner's request for retirement under Clause 11 and informing that the request will be considered under Regulation 10 of the Service Regulations. It is contended that the petitioner having willfully suppressed Ext.R1(a) document, and the writ petition is liable to be dismissed on that ground alone. 6. It is submitted that an officer or employee shall ordinarily retire on completion of 60 years of age, but Regulation 11 clothes the Chairman with the power to retire an officer or employee at any time after completion of 55 years of age or 30 years of service, based on the recommendation of the Special Review Committee. Being so, the W.P.(C)No.8818/2021 6 petitioner cannot choose to bring his resignation under Regulation 11, since such power is to be exercised by the Chairman on the recommendation of the Special Review Committee. It is contended that a reading of Ext.P1 shows that the petitioner had clearly expressed his intention to resign. Moreover, in paragraph 4 of the writ petition, it is stated that the petitioner was compelled to tender resignation letter owing to his mental and physical illness. 7. Refuting the contention that the petitioner is eligible for retirement benefits under the Pension Regulations it is submitted that there was no pension scheme in force when the petitioner resigned from the service. Further, in Regulation 2(x), retirement is defined as cessation from the bank service; i). on attaining the age of superannuation as specified in the service regulations, ii). on voluntary retirement as provided under Rule 27 and iii) on premature retirement by the bank before attaining the age of superannuation. As the definition of retirement contains cessation of service in the aforesaid three eventualities alone and the petitioner having voluntarily resigned from the service of the bank, cannot claim pension under the Pension Regulations. Moreover, the Pension Regulations is applicable only to employees who retired voluntarily after 1-4-2018. It is contended that resignation is distinct and different from voluntary retirement and one W.P.(C)No.8818/2021 7 cannot be substituted for the other. In support of this proposition, learned Counsel relied on the decisions in **Senior Divisional Manager, Life Insurance Corporation of India Limited and Others v. Shree Lal Meena [(2019) 4 SCC 479]** , **BSES Yamuna Power Limited v. Ghanshyam Chand Sharma And Another [(2020) 3 SCC 346]** and **Union of India and Another v. Abhiram Varma [ 2021 SCC OnLine SC 845].** 8. In reply, learned Counsel for the petitioner submitted that Ext.R1(a) letter was never served on the petitioner and can only be a manipulated document. Attention is drawn to Ext.P12 submitted under the Right to Information Act and the reply given at Ext.P13. It is pointed out that the evasive manner in which the reply is couched is by itself sufficient proof of the fact that no decision was taken on Ext.P1 till the petitioner submitted Ext.P2 representation. Learned counsel further contended that the Bipolar Disorder and Hypomania suffered by the petitioner falls under the definition of disability under the Persons with Disabilities Act, 1995 and hence the petitioner is entitled for the protection under Section 47 of the Act. 9. From the contentions urged, the first question arising for consideration is whether Ext.P1 is a letter of resignation. For answering this question, the wording in Ext.P1 has to be carefully scrutinized. On W.P.(C)No.8818/2021 8 such scrutiny it can be seen that the petitioner has given the subject as “ three months prior notice to get resignation”. In the body part of the letter also , the petitioner has requested to treat the letter as his ‘notice for getting resignation’. As such, it is evident that the petitioner's intention was to resign from the service of the Bank after giving due notice. In this context, it may be apposite to consider Regulation 10(1) of the Service Regulations, extracted here under for easy reference. “1 _0. Termination of Service by Notice (1) (a): No officer or employee shall leave or discontinue his service in the Bank without first giving notice in writing to the Appointing Authority of his intention to leave or discontinue his service or resign;_ _(b). The period of notice required shall be ; -_ _i).Three months, in the case of confirmed officer or confirmed employee_ _ii). One month, in the case of officer or employee who is on probation._ _(c). In case of breach of clause(b) of sub -reg_ ulation(1), an officer or employee shall be liable to pay to the Bank as compensation a sum equal to his pay for the period of notice required of him.” A comparison of the wordings of Regulation 10(1) with Ext.P1 leaves no room for doubt that Ext.P1 is a notice intimating the ptitioner’s intention to resign from service. 10. The next question is whether, having completed 55 years of age and 30 years of service, the petitioner could be retired under Regulation W.P.(C)No.8818/2021 9 11 of the Service Regulations. As rightly contended by the learned Standing Counsel, officers or employees of the Bank shall ordinarily retire on completion of 60 years of age, but the first proviso to Regulation 11(1) empowers the Chairman to retire an officer or employee at any time after completion of 55 years of age or 30 years of service, based on the recommendation of the Special Review Committee. As such, the power to retire an employee or officer is vested exclusively with the Chairman and no employee or officer can seek to compel the Chairman to compulsorily retire him/her from service on the premise that he is not mentally fit and has completed 55 years of age or 30 years of service. Hence, the prayer for treating the petitioner's case as retirement under Regulation 11 can only be rejected. 11. The final question to be considered is whether the petitioner's resignation could be treated as voluntary retirement in view of the introduction of the Pension Regulations. In this regard it is pertinent to note that as per Regulation 2 (x)(iii), retirement includes cessation from bank service on voluntary retirement in accordance with the provisions contained in Regulation 28. In this context, it may be relevant to consider Regulation 28 which reads as under; _“28. Invalid Pension :-_ W.P.(C)No.8818/2021 10 _1). Invalid pension may be granted to an employee who ;-_ _(a) has rendered minimum ten years of service ; and_ _(b). retires from the service on or after the effective date on account of any bodily or mental infirmity, which permanently, incapacitates him for the service._ _2). An employee applying for an invalid pension shall submit a medical certificate of incapacity from a medical officer approved by the Bank._ _3). Where the medical officer approved by the Bank has declared the employee fit for further service of less laborious character than that which he had been doing, he may, provided he is willing to be so employed, be employed on lower post and if there be no means of employing him even on a lower post, he may be admitted to invalid pension.”_ _4). No medical certificate of incapacity for service may be granted unless the applicant produces a letter to show that the competent authority is aware of the intention of the applicant to appear before the medical officer approved by the Bank._ _5). The medical officer approved by the Bank shall also be supplied by the competent authority in which the applicant is employed, with a statement of what appears from official records to be the age of the applicant."_ A reading of the provision makes it clear that only an employee who has retired from service on or after the effective date (1-4-2018) on account of bodily or mentally infirmity which permanently incapacitates him from service is eligible for invalid pension. The ancillary question is whether the petitioner can be treated as a voluntarily retired employee, since he W.P.(C)No.8818/2021 11 had resigned prior to the effective date. Similar question was considered by the Apex Court in in Sa _shikala Devi_ 's case(cited supra). Therein, even though the employee had resigned from his employment by submitting a letter, the Apex Court accepted the contention that the employee actually intended to seek voluntary retirement and not to submit his resignation. The Apex Court found that at the time of writing the letter, the employee was left with just about one and a half years of service and therefore it would be too imprudent for any one to suggest that an employee who had worked with such commitment to earn the appreciation of the Management would have so thoughtlessly given up the retirement benefits in the form of pension etc.The Supreme Court went on to hold that at any rate there ought to be some compelling circumstance to suggest that the employee had consciously given up the right and benefit, which he had acquired so assiduously. It was also held that, pension not being a bounty but a right which the employee acquires on account of long years of sincere and good work done by him, the Court will be slow in presuming that the employee intended to waive or abandon such a valuable right without any cogent reason. ## 12. Later, in _**Shree Lal Meena**_ **(** supra), the Apex Court held that, when an employee resigns he takes a conscious decision to disengage himself from the service on the terms and conditions prevalent on that W.P.(C)No.8818/2021 12 date. Any subsequent scheme would not accrue to his benefits, except to the extent which is specifically made applicable to the employee. Explaining the difference between ‘resignation’ and ‘voluntary retirement’, the Supreme Court held that, 'voluntary retirement' is a concept read into the conditions of service, while resignation is unilateral determination of the employer – employee relationship by the employee. Merely because of the element of voluntariness involved in resignation and voluntary retirement, the two terms can be equated. The position was further explained in _**BSES Yamuna Power Limited**_ (supra) in the following words ; _“The decision to resign is materially distinct from a decision to seek voluntary retirement. The decision to resign results in the legal consequences that flow from a resignation under the applicable provisions. These consequences are distinct from the consequences flowing from voluntary retirement and two may not be substituted for each other based on the length of an employee's tenure.”_ 13. Recently, in _**Abhiram Varma**_ (supra), the Apex Court, after referring to the decisions in **Shree Lal Meena** and **B.S.E.S. Yaumuna Power Ltd.** (supra) and held as follows; _“35. The law laid down by this Court in the case of Shree Lal Meena(supra) has been reiterated by this Court in a subsequent decision in the case of BSES Yamuna Power Ltd.(supra) and in the subsequent decision, this Court also considered the observations made in paragraph_ W.P.(C)No.8818/2021 13 _26 in Shree Lal Meena(supra) that while pension schemes do form beneficial legislation in a delegated form, a beneficial construction cannot run contrary to the express terms of the provisions. It is further observed that the issue cannot be dealt with on a charity principle. When the legislature, in its wisdom brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication. Therefore, having tendered the “resignation”, the respondent has to suffer the consequences and now cannot be permitted to take 'U' turn and say that what the respondent wanted was “premature retirement” and not “resignation”._ In view of the law laid down in the above decisions, the prayer for treating the petitioner's resignation as voluntary retirement has to be turned down. 14. As regards the contention that the petitioner is entitled for the protection under Section 47 of the Persons with Disabilities Act, 1995, no such claim is seen to have been raised before the respondents at any point of time. Therefore, the respondents were demanded of the opportunity to deal with the claim. As such the issue cannot be decided in this writ petition. In the result, the writ petition is dismissed, leaving open the W.P.(C)No.8818/2021 14 petitioner's right to agitate his claim based on Section 47 of the Persons with Disabilities Act,1995 before the respondents. Sd/- **V.G.ARUN Judge** dpk W.P.(C)No.8818/2021 15 |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE COPY OF THE LETTER DATED 20.04.2016 SENT| ||BY THE PETITIONER TO THE 2ND RESPONDENT.| |EXHIBIT P2|TRUE COPY OF THE LETTER DATED 30.05.2016 SENT| ||BY THE PETITIONER TO THE 2ND RESPONDENT.| |EXHIBIT P3|TRUE COPY OF THE EXTRACT OF KERALA GRAMIN| ||BANK SERVICE REGULATIONS 2013.| |EXHIBIT P4|TRUE COPY OF THE PROCEEDINGS NO.| ||9/KGB/HRW/RB/1955/2016 DATED 09.08.2016| ||ISSUED BY THE 2ND RESPONDENT.| |EXHIBIT P5|TRUE COPY OF LETTER NO.9/KGB/HRW/589/2019| ||DATED 18.06.2019 ISSUED BY THE 3RD| ||RESPONDENT.| |EXHIBIT P6|COPY OF THE PRESENTATION DATED 07.09.2020| ||SUBMITTED BY THE PETITIONER BEFORE THE 2ND| ||RESPONDENT.| |EXHIBIT P7|TRUE COPY OF LETTER| ||NO.9/KGB/HRW/CKS/1414/2020 DATED 20.10.2020| ||SENT BY THE 3RD RESPONDENT TO THE PETITIONER.| |EXHIBIT P8|TRUE COPY OF THE EXTRACT OF KERALA GRAMIN| ||BANK (EMPLOYEES) PENSION REGULATIONS, 2018.| |EXHIBIT P9|TRUE COPY OF THE DISCHARGE SUMMARY DATED| ||31.08.2011 OF THE PETITIONER ISSUED BY VRC| ||HOSPITAL AND REHABILITATION CENTRE.| |EXHIBIT P10|TRUE COPY OF THE DISCHARGE SUMMARY DATED| ||10.03.2012 OF THE PETITIONER ISSUED BY VRC| ||HOSPITAL AND REHABILITATION CENTRE.| |EXHIBIT P11|TRUE COPY OF THE PRESCRIPTION DATED| ||13.11.2016 ISSUED BY VRC HOSPITAL AND| ||REHABILITATION CENTRE TO THE PETITIONER.|