IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) , THE DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.15975 of 2001 BETWEEN Sara Yadagiri. ... PETITIONER AND Central Bank of India, Rep. by its Managing Director and two others. ...RESPONDENTS Counsel for the Petitioner: MR. GHANTA RAMA RAO Counsel for the Respondents: MR. C.V. RAJEEVA REDDY The Court made the following: ORDER: Heard Sri Ghanta Rama Rao, learned counsel for the petitioner and Sri C.V. Rajeeva Reddy, learned counsel appearing for the respondents. 2. The parties have filed affidavits, additional affidavits and counter affidavits and additional counter affidavits. However, the gist of the petitioner’s case is as follows: (a) Petitioner initially joined the respondent-bank as Driver in 1972 and later promoted as Clerk in 1988. The respondent-bank framed a pension scheme during 1994 and invited options from the employees leaving it open for the employees either to opt the provident fund scheme or the pension scheme. The last date for exercise of options was 30.11.1994. The petitioner claims that he has submitted his option for pension scheme on 28.10.1994 to the Branch Manager, Hyderabad branch where he was working. He has produced a Xerox copy of the option form, which is counter signed by the Branch Manager in lieu of acknowledgement, submitted by him along with a statement prepared by the branch showing the list of pension optees as on 31.03.1998. The said statement contains a list of 60 employees and the petitioner’s name figures at Sl.No.41. Petitioner has also produced salary slips for November 2000 and January 2001 prepared by the bank, which shows that he is a pension optee. (b) Petitioner, further, alleges that he received the employees provident fund statement for the period ending March 2000 wherein as against the column option for pension it is described as ‘No’ and thereby, petitioner claims that he has corresponded with the respondents reiterating that he has already given option for pension and that there is some mistake in the records, particularly, in the provident fund record, as if he has not opted for pension. The said correspondence was responded to by the respondents reiterating that petitioner is not a pension optee as per the records of the bank and his pension papers were consequently returned. Questioning the said action, the petitioner approached this Court by filing the present writ petition seeking Mandamus that the action of the respondents in not including his name in the eligible persons, who had opted for pension, in spite of petitioner submitting option within the prescribed time is arbitrary and illegal and consequently, direct the respondents to take appropriate action for fixing the payment of pension as per the scheme. 3. The respondent-bank filed counters and additional counters denying the petitioner’s assertion that he has submitted option form within the time and the respondents reiterated that as per the records no such option form was received. It is also alleged that the petitioner has waited for over six years to ventilate his grievance and in spite of knowing that he is not treated as a pension optee, has not approached the Court earlier. The respondent- bank, however, has been fair in making a statement that after 1994, the bank has not paid its contribution towards provident fund and the specific paragraph in the second additional counter affidavit reads as follows: [ “3. I submit that he was paid management contribution towards Provident Fun up to the period 1994 by way of remitting the same to his OD account No.1042702753 with Central Bank of India, Chatta Bazar Branch, Hyderabad on 02.03.2006 for an amount of Rs.1,29,257.89. Thereafter the Bank has not contributed the Provident Fund to the Petitioner’s Account from the date of alleged option date till the date of retirement but till today he has not withdrawn said amount.” The bank, however, has denied that the option form of the petitioner was allegedly signed by the branch manager and as such, submits that on the basis of the Xerox copy, which is unauthenticated, petitioner is not entitled to the relief. 4. Mr. C.V. Rajeeva Reddy, learned counsel for the respondents, also submitted that a dispute of this nature being a dispute of facts, this Court would not entertain the same under Article 226 of the Constitution of India. He, further, submits based upon the decision of the Supreme Court in SAMISHTA DUBE v. CITY BOARD, ETAWAH[1] that even a person working in clerical cadre is a workman and as such, the appropriate course for the petitioner is to approach the Industrial Tribunal so that all questions of fact can be adjudicated upon. 5. Firstly, the Xerox copy of the option form produced by the petitioner shows the signature and seal of the branch where he was working. Secondly, it is also not in controversy that his pay slips, referred to above, specifically show that he is a pension optee. Thirdly, the bank in all fairness has consistently accepted the position that they have stopped contributing employer’s contribution to the provident fund account of the petitioner from 1994 onwards. In addition to the above, the statement of pension optees as on 31.03.1998, which was annexed to the letter of Senior Manager (Operations), Central Bank of India, Hyderabad branch addressed to PRS Department, Regional Office, Hyderabad, shows the list of existing employees, who have opted for pension and in service as on 30.09.1997 was sent to the PRS department vide covering letter of the Hyderabad branch bearing No.HYD:PRS:97- 98/348 dated 25.11.1997. Petitioner’s name figures at Sl.No.41 of the said list. These documents taken together, therefore, clearly show that the petitioner was treated as a pension optee by the bank itself. If really the petitioner had not given any such option, as contended by the bank, there is neither any possible reason as to why his name appears in the list of pension optees under the covering letter dated 25.11.1997 nor it explains as to why the bank has failed to contribute to provident fund from 1994 onwards, so far as petitioner is concerned. It is also evident that the moment petitioner received the statement relating to employees provident fund ending March 2000, he pointed out the mistake by a detailed representation to the bank dated 16.03.2001 and his subsequent correspondence and representation having invoked no response, he had approached this Court by this writ petition in 2001. I am, therefore, unable to see any substance in the claim of the bank that all the above documents mistakenly show the petitioner’s name as pension optee. On the contrary, it appears that in spite of receiving option form from the petitioner and in spite of giving effect to the same for other purposes such as contribution to employer’s provident fund and in the other records of the bank including the salary account, by some mistake at either the branch level or at the regional level the name of the petitioner missed out for extending the benefit of pension scheme. 6. I am also unable to see any such factual dispute, as incapable of resolution on the basis of affidavit evidence in the present case and as such, I see no impediment to grant the relief prayed for under Article 226 of the Constitution of India, particularly, as this writ petition was admitted in 2001 and has been pending on the file of this Court all these years. Petitioner has already retired on voluntary retirement scheme in the hope of pension opted by him and was relieved from service on 30.06.2001. At this distance of time, it would not be appropriate to drive him to Industrial Tribunal, as contended by the respondents. Even otherwise, the learned counsel for the petitioner has brought to my notice that even as late as on 27.04.2010 there was a fresh settlement between the respondent-bank and the employees extending the pension scheme to employees, who were in the service of the nationalized bank as on 29.09.1995 and associate banks of State Bank of India as on 26.03.1996 and continuing in service. The existence of pension scheme even now to the existing employees shows the intention of the bank to extend the pension scheme for all those optees and as such, petitioner having opted for the same, denial of pension to him is clearly arbitrary. The writ petition, therefore, succeeds and shall stand allowed as prayed for. However, there shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J December , 2010 DSK [1] (1999) 3 SCC 14