BHAGUBHAI F SONI Vs. UNION BANK OF INDIA

JUDGEMENT

(1.) The observations made by the Hon'ble apex court in case of M.S. Grewal and another v. Deep Chand Sood and others reported in (2001) 8 SCC 151 are relevant and material in light of the facts of the present case. The said observations are, therefore, reproduced as under:

(2.) By way of this petition, the petitioner has challenged the denial of pension to the petitioner on the ground that the same is arbitrary, capricious, unreasonable, irrational, violative of the fundamental right of the petitioner under Article 14 and 16 of the Constitution. Brief facts of the present petition are to the effect that the petitioner herein had worked with the respondent bank for a period of more than 28 years. The petitioner was compulsorily retired from service by order dated 5.12.1986. Said order was challenged by the petitioner by filing special civil application no. 6982 of 1987 wherein consent terms were arrived at between the parties before this Court according to which the petitioner was treated to have voluntarily retired with effect from 5.12.1986. Thereafter, in the year 1995 and more particularly on 29.9.1995, the Union Bank of India (Employees) Pension Regulations, 1995 [hereinafter referred to as "the Regulations" for the sake of brevity] were brought in to force according to which, the employees who have retired on or after 1.11.1993 are entitled to pension. According to clause 2(y), 'retirement' includes retirement on voluntary retirement in accordance with the provisions contained in regulation 29 of the Regulations. According to the petitioner, by order dated 31.7.1990 passed in the aforesaid petition, the petitioner was treated to have retired voluntarily from service with effect from 5.12.1986 and, therefore, the petitioner is being denied pension on the ground that he has not voluntarily retired from the service on or after 1.11.1983 as per clause 3(2) of the Regulation. According to the petitioner, the petitioner was given the option Form for pension by letter of the bank dated 1.7.1994 and the petitioner submitted necessary forms opting for pension by letter dated 11.7.1994. Thereafter, since the case of the petitioner was not considered for pension, the petitioner again wrote letter dated 7.12.1994 claiming pension. Thereafter, he again wrote letter dated 30.12.1994 claiming pension. Thereafter, the petitioner received a reply from the Manager, Department of Personnel, Pension Cell, the Central Office of the respondent bank dated 4.12.1995 stating that since the petitioner had retired from the service of the bank before 1.11.1993, he was not eligible for pension under the Scheme. Thereafter, a letter dated 12.2.1996 was written by the petitioner. According to the petitioner, the employees of the other banks like the Bank of India etc. had approached the High Court of Karnataka and the High Court of Karnataka has decided in favour of the employees. Thereupon, the bank had approached the Hon'ble Supreme Court against the judgment of the Karnataka High Court and in the case of Bank of India versus Indu Rajgopalan 2000-I-LLJ-1617, the Hon'ble Supreme Court dismissed the appeal of the bank holding that the employees were voluntarily retired between 1.1.1986 and 31.10.1993 are also entitled to pensionary benefits. According to the petitioner, pension scheme of the bank which were before the Supreme Court and the respondent bank is identical and, therefore, the petitioner is also entitled to pension. The petitioner thereafter wrote a letter to the bank on 8.8.2000 claiming pension. The petitioner was informed by the bank by letter dated 26.8.2000 that the matter was taken up with the Zonal Office. Thereafter, the respondent bank has informed the petitioner on 20.9.2000 informing that as per the settlement between the bank and the petitioner, the petitioner was eligible for voluntary retirement pension as per the judgment of the Hon'ble Supreme Court but the bank was considering the eligibility of the petitioner for pension in view of the condition of settlement. Thereafter, the petitioner made a representation dated 18.11.2000 and then, the petitioner received reply dated 17.1.2001 that in view of the consent terms dated 31.7.1990, the petitioner is not entitled to pension. The petitioner has, therefore, approached this Court by way of this petition challenging the action of the respondent in denying pension to him.

(3.) During the course of hearing, learned advocate Mr. Clerk has submitted that by letter dated 20.9.2000, the respondent bank had agreed to the effect that the petitioner has become eligible for voluntary retirement pension as per the latest apex court decision in this regard. He has submitted that however, in order to find out the eligibility for the same in light of various service conditions mentioned in the settlement, the respondent bank required legal opinion and thereafter by letter dated 17.1.2001, the bank has raised one contention for denying the pension to the petitioner that since the petitioner has waived his right for claiming pension in terms of the settlement arrived at between the parties in the earlier petition before this Court, the petitioner is not entitled to claim any amount of pension under the Scheme and on that sole ground, his claim for pension was rejected by the respondent bank. He has relied upon the decision of the apex court in case of Bank of India and Indu Rajagopalan and Others reported in 2000-I-LLJ page 1617 and has submitted that in the said decision, the apex court has observed that the retirement includes voluntary retirement and the employees who retired after January 1, 1986 are also covered by the Pension Scheme framed in the bank with effect from November, 1993. In the said matter before the Hon'ble Supreme Court, petition from the employees was allowed by the High Court and the decision of the High Court was upheld on an appeal preferred by the bank. He has also relied upon the another decision of the apex court in case of Associated Hotels of India Ltd. versus S.B. Sardar Ranjit Singh reported in AIR 1968 SC 933 wherein the Hon'ble apex court has considered the principles of waiver and has observed that a waiver is an intentional relinquishment of a known right; there can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. Relying upon this decision of the Hon'ble apex court, he has submitted that it is undisputed fact between the parties that pursuant to the settlement arrived at between the parties before this Hon'ble Court in earlier petition on 31.7.1990, the petitioner was treated to have retired voluntarily with effect from 5.12.1986 instead of compulsory retirement. He has submitted that at that point of time, neither the petitioner nor the respondent bank were aware of this legal right because the Scheme was not in existence; the scheme came into effect only from 29.9.1995 and, therefore, at that point of time, the petitioner was not aware of his legal right and such legal right had not accrued in his favour at that point of time. He has then submitted that when the right accrued in terms of the Regulations which was made applicable to all the employees who have voluntarily retired after 1st January, 1986 and, therefore, when the order of compulsory retirement has been treated as voluntary retirement with effect from 5th December, 1986, in view of that, the petitioner is entitled to have the benefit of the pension scheme which has been denied without any justification to the petitioner. He has submitted that at one occasion, by letter dated 20th September, 2000, the respondent bank has accepted eligibility of the petitioner for voluntary retirement but subsequently, on the ground of waiver, such legally accrued right has been denied. According to Mr. Clerk, in view of these facts and also in view of the principles laid down by the apex court in case of Associated Hotels Ltd. (supra), the petitioner is entitled to pensionary benefits under the Scheme of 1995 and he has further submitted that the petitioner has received the amount of provident fund from the respondent bank and there is specific provision under the scheme that in such circumstances, while calculating the pensionary benefits under the Scheme of 1995, whatever amount has been received by the employee for the period between 1.1.1986 to 1.11.1993, said amount is required to be adjusted against the pensionary benefit and in case if any more amount is required to be paid by the employee, same can be adjusted by the employer - bank. Such formula has already been prescribed under the Rules. However, he has made it clear before this Court that though the petitioner has already received the amount of provident fund from the bank, same can be adjusted while calculating the pensionary benefits of the petitioner and in case if anything more is required to be paid, then, the petitioner is ready and willing to pay and/or deposit before the respondent bank without raising any objection. He has, therefore, submitted that the respondent bank may be directed to grant pensionary benefits to the petitioner accordingly while declaring that the denial of pension by the respondent bank on the ground of waiver is not legal and valid.