Tryambak vs The Bank of Maharashtra and Others

A.B. Chaudhari, J.—By the present petition, the petitioners have made the following prayers:

"(a) by an appropriate writ, order or direction, command the respondents to grant the "Pensionary-Benefits" to the petitioner from 17.08.1992, as contemplated under the Bank of Maharashtra (Employees) Pension Regulation, 1995.

(b) hold and declare that the petitioner is entitled for the "Pensionary-Benefits" from 17.08.1992 under the Bank of Maharashtra (Employees) Pension Regulation, 1995."

FACTS:

The petitioner was working as Record Keeper with the respondent-Bank of Maharashtra from 15.10.1956 till 27.01.1991 i.e. for about 34 years 3 months and 12 days. He suffered severe paralytic attack on 27.01.1991, thereby permanently incapacitating him. He, therefore, made an application on 17.08.1992 to his employer Bank of Maharashtra, requesting for voluntary retirement on the ground of his incapacity to work. In response, the employer on 25.01.1993 asked him to appear before the Medical Board and accordingly, he appeared on 10.03.1993. The Medical board certified that he was unfit to render any service in view of his disablement. Nothing was heard on his application dated 17.08.1992 but on 20.12.1995, the employer asked the petitioner to fill up the option form under the Bank of Maharashtra (Employees) Pension Regulation, 1995, which regulation was made effective on 20.09.1995 for the purpose of grant of pension. The petitioner accordingly filled up the option form and submitted the same. On 17.10.1996, however, he received a communication with reference to his application for voluntary retirement from the employer stating therein that the petitioner would not be entitled to pension since the scheme does not apply to those who have resigned from service and in the near future, if fresh instructions are received, his request for pension could be considered. The petitioner was thus denied the relief in entirety by the Bank. During the pendency of the petition, the original petitioner has expired and, therefore, his legal representatives have been brought on record. On 19.06.1998, the petitioner applied to Lok Ayukta, Mumbai and submitted that under clause (i) of the Regulation No. 23 of the Regulation of 1995, retirement could include voluntary retirement provided, 20 years qualifying service is rendered. In response to the writ petition, the employer-Bank of Maharashtra has appeared and filed the submissions opposing the petition. The sum and substance of the defence is that the petitioner had resigned from service since the word "resignation" has been used in the application dated 17.08.1992 and, therefore, he could not be said to have retired voluntarily. Consequently, he is not entitled to pension since his retirement cannot be read as per Regulation 29, therefore, the Bank had communicated to him its decision on 17.10.1996 that he had resigned from service and was not entitled to any pensionary benefits. The respondent-employer, therefore, prayed for dismissal of the writ petition.

SUBMISSIONS:

In support of the writ petition, Mr. Bhuibhar, learned counsel for the petitioners, vehemently submitted that the original petitioner expired during the pendency of the present writ petition, his LRs have been brought on record who are entitled to relief claimed by the original petitioner. He submitted that the application for voluntary retirement, if read, clearly shows that it was not a resignation letter. The application was drafted in English by somebody else and signature of the petitioner, who was a Class-IV employee, is in Marathi language. The petitioner was a lower rank employee who did not understand the English language also. He served for 34 plus years honestly with the Bank and now is being deprived of the pensionary benefits by treating his application for voluntary retirement as resignation, which is wholly unjust. He then contended that the Regulation itself provides for deemed acceptance of voluntary retirement, after a period of three months and, therefore, since no answer was given to his application for voluntary retirement till 17.10.1996, in terms of Regulation, it could be deemed that his request for voluntary retirement was accepted and, therefore, the pensionary benefits should have been extended to him. He then submitted that the petitioner was asked to submit option papers for pension since by that time, the Regulation of 1995 had already come into force from 20.09.1995. The petitioner had submitted his option papers for pension under Regulation of 1995 on 20.12.1995 as asked. Mr. Bhuibhar then contended that the petitioner had suffered paralytic attack which permanently incapacitated him to work w.e.f. 27.01.1991. The employer had sent him for examination by the Medical Board which also certified accordingly. At any rate, according to Mr. Bhuibhar, since the regulation regarding pension had come into force, the petitioner was entitled to at least Invalid Pension due to his incapacity to work. But everything has been refused which has caused serious miscarriage of justice to him. He then, relying on various judgments of the Supreme Court, contended that the petitioner is entitled to interest for delayed payment of pension and gratuity and all benefits and, therefore, interest at the rate of 12% p.a. should be granted to him.

Mr. Ghare, learned counsel for the respondents-Bank, vehemently opposed the writ petition and submitted that the Regulation of 1995 did not apply in the case of the petitioner because he became disabled in the year 1991 itself and had resigned from service. There is no provision for grant of pension to the employees who have resigned from service and, therefore, the employer was right in refusing to grant any pension, which was accordingly communicated to him on 17.10.1996. The petitioner having resigned, the question of consideration of his case as voluntary retirement for the purpose of Invalid Pension also did not arise. He, therefore, prayed for dismissal of the writ petition.

CONSIDERATION:

We have heard learned counsel for the rival parties at length. We have also perused the entire record. We find from the record, particularly Annexure-D that the petitioner was working as Class IV employee with the Bank of Maharashtra and his date of birth is 28.12.1936 as per record maintained by the Bank. Considering the normal age of retirement of Class IV employee in Nationalized Bank which is 60 years, the date of superannuation of the petitioner would be 27.12.1996. The Bank of Maharashtra (Employees) Pension Regulation, 1995 came into force w.e.f. 20.09.1995 and in other words, the pension became applicable to these employees from that date namely 20.09.1995. The petitioner is lucky that his date of superannuation falls beyond that date by more than a year. That apart, the respondents-Bank itself had sent the petitioner for examination by Medical Board in view of his request for retirement from service due to permanent disablement due to serious paralytic attack. The Medical Board had certified that he was having permanent incapacity to work and was unable to work. No decision on his application for voluntary retirement was taken by the Bank till communication dated 17.10.1996 was issued in the matter of his rejection for claim or for pension. For deciding the submissions made by learned counsel for the rival parties as to the resignation or voluntary retirement, we have carefully perused the application that was filed by the petitioner seeking voluntary retirement. The application is in English language, written by somebody else and the petitioner has singed in broken Marathi language obviously because the petitioner was not educated. The tenor of the application clearly shows that the petitioner suffered from paralysis was unable to resume his duties and, therefore, pursuant to the earlier circular dated 29.01.1999 he wanted to take his application for voluntary retirement on medical ground. It appears that there was a scheme for such type of persons who are permanently incapable but then none of the parties to the petition have shown the said circular and, therefore, one cannot say anything further on that aspect. Nevertheless, the case of the petitioner luckily falls in the Regulation of 1995 which came into force on 20.09.1995 as against the date of his superannuation i.e. 27.12.1996. The Regulation No. 29 (1) and (2) read thus:

"29. Pension on Voluntary Retirement:

(1) On or after the 1st day of November, 1993, at any time, after an employee has completed twenty years of qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority retire from service;

Provide that this sub-regulation shall not apply to an employee who is on deputation or on study leave abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year. Provided further that this sub-regulation shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking or company or institution or body, whether incorporated or not to which he is on deputation at the time of seeking voluntary retirement:

Provided that this sub-regulation shall not apply to an employee who is deemed to have retired in accordance with clause (1) of regulation 2.

(2) The notice of voluntary retirement given under sub-regulation (1) shall require acceptance by the appointing authority:

Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period."

It is clear from the above regulation that there is deemed grant of voluntary retirement in case the appointing authority does not refuse to grant permission and retirement shall become effective from the said period i.e. the period of 3 months. In the present case, we have no hesitation in holding, upon reading of the application filed by the petitioner, that the application was nothing but for "voluntary retirement" and the word "resignation" used in bracket was superfluous and introduced by the writer of the application. But then the substance of the application if seen is that the petitioner asked for the voluntary retirement in view of his incapacity to work due to paralytic attack. No only that the employer acted thereon, sent him for examination by the Medical Board, which also certified him to be disabled person, unable to resume duties. We, therefore, reject the the submission made by the employer that the application dated 17.08.1992 was a resignation.

Now coming to the Regulation No. 29, we find that there would be deemed voluntary retirement of petitioner, three months after i.e. w.e.f. 31.01.1994. In view of the fact that the application for voluntary retirement could be made only after 01.11.1993 and since the petitioner''s application remained undecided, it can be taken as the one made or registered on 01.11.1993. Therefore, the voluntary retirement would come into force w.e.f. 31.01.1994 i.e. three moths after the effective date i.e. 01.11.1993 for the purpose of complying with the voluntary retirement scheme but then the next question is about applicability of the pensionary benefits to the petitioner.

Regulation No. 30 would be relevant in the case of the petitioner. We quote regulation 30 as under in entirety:

"30. Invalid Pension

(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 1st day of November, 1994 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 the medical certificate 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 ahd been doing, he should, provided he is willing, to be so employed, be employed on lower post and if there is 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 appeared from official records to be the age of applicant."

It is clear from the above that the case of the petitioner fits in all the requirement for Invalid Pension. The regulation is for the employees who retired from service on or after 01.11.1993. The retirement age of the petitioner, as stated by us, in normal course would be 27.12.1996 because the employer did not pass any order till 17.10.1996 or till the date of his retirement granting him retirement on any count. It will have to be, therefore, deemed that the petitioner retired from service after 01.11.1993. If three months from 01.11.1993 is taken into account for consideration of his application for voluntary retirement, in that case, the petitioner would retire from service from 31.01.1994 which is obviously after 01.11.1993. Thus, we have no doubt that it can safely be held that the petitioner retired from service after 01.11.1993 on account of permanent disablement. Insofar as the the Regulation No. 30 in Sub clause 2, 3, 4 and 5 are concerned, the formalities were already completed by the Bank by sending the petitioner for examination by Medical Board which also certified accordingly. In that view of the matter, we think the petitioner was clearly entitled to invalid pension. However, the respondent-Bank of Maharashtra, made clear injustice to him by not granting him at least Invalid Pension ignoring the fact that the petitioner had honestly served more than 34 years as Class-IV employee. The Bank of Maharashtra, a model employer, should not have acted grisly with him. It is well settled that the pension is not a bounty and, therefore, by granting Invalid Pension to the petitioner, the employer cannot claim to have obliged him. Be that as it may. The petitioner would be entitled to the reliefs regarding pension and all other terminal benefits.

The next question is about award of interest on the delayed payment of pension. We have seen the decisions cited by learned counsel for the petitioner in the case of Gorakhpur University and Others Vs. Dr. Shitla Prasad Nagendra and Others, and State of Kerala and Others Vs. M. Padmanabhan Nair, . The Apex court in Gorakhpur University & Ors...vs.. Dr. Shitla Prasad Nagendra & ors. observed thus:

"5...This Court has been repeatedly emphasising the position that pension and gratuity are no longer matters of any bounty to be distributed by Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest...."

The apex Court in State of Kerala and others vs. M. Padmanabhan Nair held thus:

"4. Unfortunately such claim for interest that was allowed in respondent''s favour by the district Court and confirmed by the High Court was at the rate of 6 per cent per annum though interest at 12 per cent had been claimed by the respondent in this suit. However, since the respondent acquiesced in his claim being decreed at 6 per cent by not preferring any cross objections in the High Court it would not be proper for us to enhance the rate to 12 per cent per annum which we were otherwise inclined to grant."

In our opinion, looking to the fact that legal heirs of the petitioner would be paid the dues in lump sump, it would not be proper to award 12% interest as claimed by the petitioners. We are, therefore, of the view that 10% simple interest on the pensionary benefits would subserve the interest of justice. Hence, we make the following order.

(i) Writ Petition No. 3583/2001 is allowed.

(ii) It is declared that the petitioner stood voluntarily retired w.e.f. 20.09.1995, in accordance with Regulation No. 30 of the Bank of Maharashtra (Employees) Pension Regulations.

(iii) The original petitioner is held entitled for grant of Invalid Pension. The respondents are directed to pay the Invalid Pension calculated from 20.09.1995 in terms of Regulation No. 30 along with simple interest at the rate of 10% p.a. thereon till actual payment is made to the legal heirs of the petitioner.

(iv) The respondents-Bank of Maharashtra shall finalize and make payment of the entire amount of pensionary benefits along with interest at the rate of 10% p.a. on or before 31.12.2015 and upon failure, the respondent-employer shall be liable to pay interest at the rate of 18% p.a. w.e.f. 01.01.2016 to the legal heirs of the petitioner.

Rule made absolute in the above terms. No order as to cost.