JAYANT NICHHABHAI DESAI Vs. UCO BANK

JUDGEMENT

(1.) The petitioner, a former employee of the UCO Bank, the respondent herein [hereinafter referred to as, "the Bank"], claims a right to receive pension under the UCO Bank [Employees] Pension Regulations, 1995 [hereinafter referred to as, "the Pension Regulations"]. It is the claim of the petitioner that on 16th March, 1994, he retired from service of the Bank after putting in thirty four years of service. Under the Pension Regulations the entire service of the petitioner was pensionable service. Nevertheless, the Bank has refused to pay pension to the petitioner. Feeling aggrieved, the petitioner has preferred the present petition.

(2.) Dr. Thakar has relied upon the application for voluntary retirement made by the petitioner on 16th March, 1994. He has submitted that at the relevant time, the Pension Regulations of 1993 were in force. Relying upon the said Pension Regulations, the petitioner applied for voluntary retirement on 16th March, 1994 with immediate effect. Dr. Thakar has submitted that on reaching the age of superannuation, the petitioner would have retired from service in the month of November, 1995. However, as the petitioner had recently lost his wife and he had arranged marriage of his daughter, the petitioner took voluntary retirement on 16th March, 1994. The petitioner also filled in option form opting for the Pension Scheme. The said option was accepted by the Bank. Under communication dated 1st December, 1994, the Bank had informed the petitioner that the option exercised by him was irrevocable. Hence, the petitioner was entitled to receive pension on the principle of legitimate expectation and also of promissory estoppel. He has submitted that the Bank had given wide publicity to its Pension Regulations of 1993. Relying on the provisions contained in the Pension Regulations of 1993, the petitioner had opted for voluntary retirement. Had the petitioner been not assured of the pension, he would not have opted for voluntary retirement from service and would have continued until he reached the age of superannuation. He has further submitted that the Bank is a nationalized bank, an instrumentality of the State. The Bank is expected to be an ideal employer and be fair in its dealings with its employees. The petitioner having taken voluntary retirement, induced by the Pension Regulations of 1993, should not now be refused the benefit of pension. He has submitted that the recalcitrant attitude of the Bank has resulted into a great financial loss to the petitioner in december of his life. He has submitted that in refusing pension to the petitioner, the Bank has relied upon the contents of the application for voluntary retirement made by the petitioner, rather than the intention of the petitioner. He has submitted that at the relevant time the petitioner was experiencing hard times. If under anxiety or duress suffered by the petitioner, the petitioner had used the words 'resignation' instead of 'retirement' in his application, the petitioner cannot be said to have resigned from service. He has submitted that in his application dated 16th March, 1994 the petitioner had categorically stated that, "I would also like to submit that the benefits of pension and other voluntary retirement benefits may also be extended to me as per the Rule." Thus, the intention of the petitioner to take voluntary retirement was explicit in the said application. The petitioner, therefore, should be treated to have taken voluntary retirement and be paid the retirement benefits accordingly. In support of his arguments, Dr. Thakar has relied upon the judgments of the Hon'ble Supreme Court in the matters of Union Bank of India & Ors. vs. Lt. Col. P.S Bhargava [1997 (2) SCC 28]; of Bank of India vs. Indu Rajagopalan & Ors. [2001 (9) SCC 318]; of V. Kasturi v. Managing Director, State Bank of India, Bombay & Anr. [ AIR 1999 SC 81]; of R. Subramaniam vs. Chief Personnel Officer, Central Railways, Ministry of Railways [(1996) 10 SCC 72]; and of Sabrata Sen & Ors. vs. Union of India & Ors. [2001 (8) SCC 71]. He has relied upon the judgment of the Karnataka High Court in the matter of Y.R Shenoy & Ors. vs. Syndicate Bank & Ors. [2003-II LLJ 977] and of this Court in the matter of Gujarat State Khadi Gramodyog Board Pensioners Association vs. Gujarat State Khadi Gramodyog Board [2004 (1) GLH 18] and the order dated 3rd August, 2004 made in the matter of Ms. Annie Verghese vs. UCO Bank [Special Civil Application No. 3558 of 2003 :: Coram- K.S Jhaveri, J.]. Dr. Thakar has submitted that the judgments of the Hon'ble Supreme Court in the matter of Reserve Bank of India & Anr. vs. Cecil Dennis Solomon & Anr. [2004 AIR SCW 1402] and of Jai Singh B Chauhan vs. Punjab National Bank & Ors. [2005 AIR SCW 3664] are distinguishable.

(3.) The petition is contested by Mr. Parikh. He has submitted that the Pension Regulations were brought into operation on 29th September, 1995. He has denied that the petitioner had voluntarily retired from service. He has submitted that at the relevant time, the employees of the Bank were governed by the Contributory Provident Fund Scheme. On 16th March, 1994, the petitioner had resigned from service. On his resignation from service he had been paid the terminal benefits under the Contributory Provident Fund Scheme including the amount of contribution by the Bank. He has further submitted that the Pension Regulations, particularly Regulation 10 thereof provides for Forfeiture of service. It provides that, "Dismissal, termination of or resignation by an employee from the service except where the Service Regulations/Service Rules/Settlements do not dis-entitle such employee from receiving superannuation benefits shall forfeit his entire past service and consequently shall not qualify for pension payment." Regulation 17 of the Pension Regulations provides for Pension on Voluntary Retirement. Sub-regulation [i] thereof empowers an employee of the Bank to seek voluntary retirement after he has completed twenty years of qualifying service; after giving three months' notice in writing to the competent authority. Sub-regulation [ii] thereof provides that notice of voluntary retirement given under sub-regulation [i] shall not be effective unless it is accepted by the competent authority. In the submission of Mr. Parikh the said Regulation envisages giving of three months' notice by the employee and the acceptance of such notice by the competent authority. He has submitted that in the present case, the petitioner had submitted resignation on 16th March, 1994. The application made by the petitioner was captioned : "Resignation from Bank's Service." In the body of his application also, the petitioner did mention, "..I hereby, therefore, tender my resignation w.e.f today i.e. 16th March, 1994 and request you to recover one month's salary from my Savings Bank Account No. 51155 with Nariman Point Branch, in lieu of the required notice period." Mr. Parikh has submitted that considering the text of the application made by the petitioner, it is evident that the petitioner had intended to resign from service with immediate effect. As he had not given one months' notice as required under the prevalent conditions of service, he offered to pay salary for the notice period. The petitioner's resignation was accepted by the Bank. The said acceptance was communicated to the petitioner on 6th February, 1995. On acceptance of his resignation, the petitioner was offered retirement benefits under the prevalent CPF Scheme which too the petitioner accepted without protest. The petitioner had applied for encashment of privilege leave which the Bank denied under its communication dated 13th February, 1995. The denial to allow encashment of privilege leave on the ground that the petitioner had resigned from service was also accepted by the petitioner. Thus, the petitioner was aware that he had resigned from service and that the Bank had accepted him as having resigned from service. The petitioner's claim for pension under the Pension Regulations was refused by the Bank under communication dated 29th September, 1997. Nevertheless, the petitioner did not raise the claim for pension until 17th August, 2001. Thus, the claim for pension under the Pension Regulations made by the petitioner is clearly an afterthought and is not tenable. The said claim also requires to be rejected on the ground of delay, laches and acquiescence. In support of his submissions Mr. Parikh has relied upon the judgments of the Hon'ble Supreme Court in the matters of UCO Bank & Ors. vs. Sanwar Mal & Ors. [(2004) 4 SCC 412]; and of O.N.G.C Limited vs. G.S Chugani & Anr. [(1999) 1 SCC 194]. He has also relied upon the judgment of this Court in the matter of Jatunbibi w/o. Gulam Mahiyodin Sheikh & Ors. vs. State of Gujarat & Anr. [2001 GLH 461] and the order of the Division Bench [Coram :- GS Singhvi & Anant S. Dave, JJ.] in the matter of Jitendra Shantilal Shukla vs. Bank of Baroda & Ors. {Letters Patent Appeal No. 1206 of 2004 in Special Civil Application No. 12341 of 2002 :: Decided on 25th April, 2005].