K.A.Padmanabhan vs Syndicate Bank

Mohammed Nias.C.P.,J

The above appeal is filed by the writ petitioner, aggrieved by the dismissal of the writ petition that challenged Ext.P8 order passed by the respondent-Bank declining the claim of the petitioner to be enrolled in the pension scheme.

The relevant facts necessary for the disposal of the writ appeal are as follows:-

The writ petitioner retired from service of the respondent-Bank on 30.04.2010, Earlier a pension scheme was introduced by the bank on 29.09.1995 and employees were entitled to be paid pension on surrender of contributory provident fund balance, to the pension fund created for that purpose. However, the petitioner did not join the same. Thereafter, by Ext.P1, a settlement was entered into between the Union and the India Banks Association providing for a scheme for pension to its employees subject to the conditions mentioned therein. Ext.P2 Circular was issued thereafter on 16.09.2010 providing for the conditions for submission of the revised option for pension. Accordingly, the petitioner submitted his option on 17.10.2010, as directed in Ext.P2 Circular. The conditions while opting for pension are as follows:-

“(1) Exercise an option in writing within 60 days from 17.09.2010 i.e., on or before 15.11.2010 to become a member of pension fund

(2) Refund within 30 days after expiry of the said period of 60 days i.e., on or before 15.12.2010 the entire amount of Bank's contribution to the Provident Fund (including Management portion of NRW, if any, with interest ) and interest accrued thereon received by the employee on retirement and the differential portion of the PF received, if any, while implementing the 9th BPS/Joint Note together with 2.8 times of their revised “pay” for the month of November 2007.”

As stated earlier, the petitioner had opted for the pension vide its request letter dated 17.10.2010, which was within the date for opting the scheme for pension. However the employee did not comply with Condition No.2, namely, to refund the entire amount of Bank's contribution to the provident Fund (including Management portion of NRW, if any, with interest ) and interest accrued thereon received by the employee on retirement and this was cited as a reason for not making the petitioner a member of the pension scheme. His request was turned down by Annexure P5, which was challenged before this Court in WP(C)No.7321 of 2014, where this Court found that though the entire EPF dues including the employers contribution and employees contribution with interest therein, had been deposited in an account with the Syndicate Bank itself, there was delay in making the refund due to some cognitive impairment due to mental ailment suffered by the petitioner and therefore, the case requires sympathetic consideration by the Bank and the Bank was directed to consider whether he can be enrolled prospectively in the pension fund on the refund of the amounts of employers contribution as required in the scheme, as an exceptional case. The bank after consideration of the same passed Ext.P8 order dated 27.12.2017 again citing the same reason that the refund of the contribution as stated above was not remitted before 25.12.2010 and that not having done, the petitioner cannot be enrolled in the scheme. It was however, conceded that the petitioner had opted for the scheme, within time and also paid the amount of Rs.62,440/- equal to 2.8 times of the revised pay for the month of November 2007, which were the two other stipulations to be complied by him.

In the writ petition, the petitioner contended that Ext.P8 was passed mechanically without considering the spirit of Ext.P7 judgment and despite the High Court directing a sympathetic consideration the same was not done. It is also his contention that the twin conditions mentioned in the order to be complied with by persons retired on or after 24.7.2010 are applicable only to the employees who retired prior to 24.7.2010, therefore, the same is not applicable to the petitioner and the findings in Ext.P8 that the refund of employees contribution is a condition precedent for becoming the member of the pension scheme is incorrect. It is also his argument that the petitioner had already authorised the Bank to transfer the entire banks contribution of PF along with interest accrued and the amounts were deposited with the bank itself under Ext.P3 as a fixed deposit. It is his further argument that Ext.P1 being a settlement under the Industrial Disputes Act, is binding on parties and no terms can be added in Ext.P2, which are absent in Ext.P1. The very intention behind Ext.P1 settlement was to provide pensionary benefits to all classes of bank employees who have not opted for pension in 1995 and as such the present stand of the Bank is not only illegal but unreasonable and on these grounds petitioner prayed for quashing Ext.P8 and also to declare that the petitioner is entitled for the pensionary benefits and for a mandamus to direct the respondents to offer the same.

The Bank filed a counter affidavit contending that the last date of exercising option under the second pension scheme was 15.12.2010, which he ought to have complied and that not having been done, the petitioner could not be enrolled in the scheme. The fact that the petitioner operated a Fixed Deposit is not relevant since the bank could not have appropriated the same towards its management contribution. It is conceded in the counter affidavit that the petitioner retired from services of the bank after putting in 36 years of service. In short, the findings in Ext.P8 were sought to be sustained.

Learned Single Judge, who considered the matter accepted the contention of the bank that the petitioner did not comply with one of the conditions in Ext.P2 circular, namely, clause 3 thereof, and therefore, Ext.P8 cannot be held to be illegal. Learned single Judge also directed the respondents to release the amount of Rs.62,440/- which was recovered by the Bank from the pay revision arrears due to the petitioner with effect from 23.6.2010 with applicable interest within a period of three months.

We have heard Sri.George Cherian, the learned senior counsel for the appellants and Sri.R.S.Kalkura, the learned standing counsel for the respondent - Bank.

The learned senior counsel reiterated the contentions taken in the writ petition and submitted that the petitioner had opted for the scheme and thus expressed his willingness and had also given the authorisation to appropriate the amounts, which he had put in a fixed deposit in the very same branch. Admittedly, two of the conditions are complied with by the petitioner and he has expressed his readiness and willingness to comply with the third condition as well. It is his further argument that the circumstances under which the payment was delayed was beyond his control and specifically considered by this Court in Ext.P7 judgment and even the said findings of this Court has been ignored while passing Ext.P8 order. It is his further argument that the schemes introduced subsequently were not made applicable to the petitioner. However, by the subsequent schemes all the employees of the bank including those who were compulsorily retired officers pursuant to disciplinary proceedings and punishment were offered the pension scheme and hence there was no justification at all to deny the benefits to the petitioner.

The learned standing counsel for the Bank, Sri.R.S.Kalkura on the other hand submits that the petitioner not having complied with the conditions of the scheme, which was a condition precedent for enrolling him in the scheme, cannot have a complaint about Ext.P8. It is also submitted that several employees who did not opt within the time granted were refused the benefit and therefore the petitioner also should be denied the same.

We have heard the arguments on both sides and perused the pleadings and the documents on record.

The conditions for enrolling of the pension scheme are as extracted above. The fact that the petitioner has opted for the scheme and also complied with the requirement of making the contribution from the pay revision arrears is not disputed. It is also evident that towards compliance with the third requirement, viz., refund within 30 days after expiry of the said period of 60 days i.e., on or before 15.12.2010 the amount required for the same was made available by the petitioner and the same is evident from Ext.P3 demand draft maintained with the same branch. The petitioner had also given Ext.P2 authorisation clearly authorising the bank to transfer the entire contribution with the bank along with the entire interest accrued to the credit of the pension fund. Ext.P4 letter sent by the petitioner to the Bank on 25.1.2011 points out that he was laid up with sickness and that he belongs to SC/ST community coming from a lower middle class family and he has two unmarried daughters and wife who are fully dependent on him. He had categorically stated in the said letter that the required amount of EPF was held in the branch as fixed deposit. Ext.P4 was forwarded by the Branch Manager to the General Manager with a request to consider the same favourably obviously realising the truth of the request in Ext.P4. It was the said request which is rejected by Ext.P5. We also note that the Bank had come with a subsequent circular dated 26.12.2012 extending the option to join the scheme even to those who did not opt for pension earlier and who took voluntary retirement on or after 29.9.1995. Still further, by Ext.P10 bank extended the benefit of joining the scheme to those who had compulsorily retired by way of punishment. Thus, it can be seen that no class of employees were left out in the schemes covered by Exts.P1 and P2 and later by Exts.P6 and P10. That being the position, the bank was totally unjustified in not heeding to the request of the petitioner in Ext.P4.

As stated earlier, the petitioner had opted for the scheme and had substantially complied with the terms of the scheme. This Court had found in Ext.P7 judgment, which has become final, that it was on cognitive impairment due to the mental ailment suffered by the petitioner that he could not take steps to actually transfer the amount, which was held in fixed deposit under the very same branch for which he had already given authorisation, and therefore the case merits a sympathetic consideration. Even the judgment of this Court was disrespected while passing Ext.P8 order wherein the officer who passed the same holds that no sympathetic consideration is warranted. We find the said act and attitude of the bank to be absolutely unacceptable. The petitioner and his family members had run from pillar to post to get enrolled in the pension scheme as is revealed by the bank itself in the counter affidavit. The petitioner had put in 36 years of service in the bank with no complaints whatsoever and alleging non compliance of one condition out of the three, the petitioner was not given the relief. Though, we find force in the argument of the learned counsel for the appellant that Ext.P1 settlement cannot be varied by Ext.P2, we are not pronouncing finally on the same as it is not required in the facts of the case. Nor do we consider it necessary to consider the entitlement of the appellant to the subsequent schemes Exts.P6 and P10.

The reason for the delay of around 45 days is on account of the ailment of the appellant which again is beyond his control. The alleged noncompliance of one of the conditions could not have resulted in such dire consequences for the appellant more so, when the entire amount required for compliance was already in a fixed deposit with the bank and the appellant had authorised the bank to appropriate towards his contribution to the bank under the pension scheme. We find the stand of the bank in Ext.P8 to be completely arbitrary, unreasonable, unfair and unjust. The manner in which the judgment of this Court was treated also leaves much to be desired. By tendering almost the exact amount payable by the appellant as contribution and not utilising the said amount for any other purpose, it has to be taken that the appellant had shown his readiness and willingness to part with the said amount for getting enrolled in the pension scheme as he had also given an authorisation to the Bank which is clear from Ext.2. The pension scheme itself is a beneficial scheme as is clear from Exts.P1 and P2 and the later schemes Exts.P6 and P10 wherein the central idea was to include all the employees including those who took voluntary retirement scheme as also those who were imposed with a punishment of compulsory retirement. In such a scheme the attempt of the employer bank ought to have been to help the appellant to get enrolled in the scheme and not to defeat the same on hyper technicalities. Treating the appellant worse than a person who was punished in a disciplinary proceedings leading to his voluntary retirement, to put it mildly is highhanded and totally disproportionate.

In the result, the judgment of the learned single Judge is set aside and WP(C)No.17382 of 2018 is allowed. It is declared that the petitioner is entitled for being enrolled in the pension scheme pursuant to his application dated 17.10.2010 and entitled to all the benefits of such enrollment from that date. Ext.P8 is set aside. The respondents will take appropriate steps to enroll the petitioner in the pension scheme after appropriating the money in his fixed deposit towards compliance of the third condition namely, the entire amount of Bank's contribution to the Provident Fund (including Management portion of NRW, if any, with interest ) based on authorisation given by the petitioner as if he has complied with all the conditions with effect from the date of his application and pay all the consequential benefits with interest at the rate of 9% per annum for the arrears till actual payment and continue to pay the monthly pension hereafter without default.

The writ appeal is allowed as above.