IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.7.2008 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.36342 of 2003 M.Gopalakrishnan .. Petitioner -vs- 1. The Union of India, rep.by Secretary to Government, Finance (Banking) Department, New Delhi. 2. The Chairman & Managing Director, Indian Bank, 31, Rajaji Salai, Chennai-600 001. .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the respondents herein to settle all the terminal and pensionary benefits due to the petitioner together with interest at 18% per annum from 31.12.1995 till the date of actual payment within a time frame. For petitioner :: Mr.R.Subramanian, SC for Mrs.S.Hemalatha For respondents :: Mr.V.Balasubramanian, SCGSC (R1) Mr.G.Venkatraman for M/s.Aiyar & Dolia (R2) O R D E R The writ petition is filed for a direction to the respondents to settle all the terminal benefits including pension due to the petitioner together with interest at the rate of 18% per annum from 31.12.1995 till the date of actual payment. 2. When the matter came up for admission on 11.12.2003, the learned counsel for the second respondent bank took notice of the writ petition. Subsequently, the matter was adjourned on several dates and finally was admitted on 16.2.2004. Later, an application was also filed for fixing an early date. That application was ordered on 24.7.2007. Till date, the first respondent union of India https://hcservices.ecourts.gov.in/hcservices/ had not filed any counter affidavit. It is only the second respondent, who had filed a counter affidavit dated ''nil'' (March 2008). 3. It is seen from the records that the petitioner had joined as a Probationary Officer in the second respondent bank, even before its nationalisation, in the year 1959. He had worked in various capacities and occupied the post of General Manager till 01.7.1987. Subsequently, he was appointed as the Executive Director of the bank by the Government of India on 02.7.1987. He later became the Chairman and Managing Director of the Bank. 4. When he was an officer of the bank, he was governed by the Service Regulations, PF rules and gratuity rules applicable to officers. On his relinguishment, the second respondent bank settled the terminal benefits, such as, provident fund and gratuity upto the level of General Manager. The provident fund accumulation standing to his credit was also settled on 21.9.1987. He also encashed his privilege leave on 26.2.1988. When he became the Executive Director and thereafter the Chairman-cum-Managing Director, being a whole time director, he was governed by the terms and conditions under which he was appointed by the first respondent Union of India. Though he had reached the age of superannuation as on 31.12.1995, he was not paid his terminal benefits. 5. The second respondent had taken a stand that since the first respondent by a communication dated 30.12.1995 informed him not to release the terminal benefits on account of the pendency of the criminal cases against the petitioner, they have not released the same. He was not entitled to receive the terminal benefits in view of the pendency of the criminal cases. It was also informed that the petitioner's contributory provident fund was released on 31.1.2005. A list of cases pending against the petitioner filed by the CBI, which were either pending investigation or pending trial before a Special Court, was enclosed along with the counter affidavit. In the additional typed set of papers filed by the second respondent, the records relating to various payments were enclosed, the receipt of which is not denied by the petitioner. 6. The communications received from the first respondent Union of India, dated 08.6.2004 and 30.12.2005 may be usefully reproduced below:- ''A. Communication dated 08.6.2004 received from the Under Secretary to Government of India, Ministry of Finance, Department of Economic Affairs (Banking Divisions): "I am directed to refer to your letter dated 24.12.2003 addressed to Secretary (Financial Sector) on the subjected cited above. The matter has been considered https://hcservices.ecourts.gov.in/hcservices/ in consultation of Reserve Bank of India. It is advised that the terminal benefits due to Shri M.Gopalakrishnan may not be released by the bank until further instructions from the Government. 2. You are requested that counter affidavit on behalf of the bank may be got prepared and a copy of the same be forwarded to this Division for filing the similar counter in the matter". B. Communication dated 30.12.2005:- "The tenure of Shri M.Gopalakrishnan, as CMD, Indian Bank will expire on 31.1.1995. It is advised that the terminal benefits like Provident Fund, Gratuity, Leave Encashment etc. due to Shri Gopalakrishnan may not be released by the bank until further instructions from the Government." 7. In accordance with these two communications sent by the Government of India in the counter affidavit filed by the second respondent, in paragraph 6, it was averred as follows:- ''6. .... However, on his superannuation on 31.12.1995, the Ministry of Finance sent a communication to this respondent on 30.12.1995 bearing No.20/02/1987 B O I advising this respondent not to release the terminal benefits. I submit that incidentally the cases initiated by the Central Bureau of Investigation against the petitioner are pending and as such the petitioner may not be entitled to receive the terminal benefits at this stage... ... " But, however, the legal authority for taking such a stand has not been shown. 8. Mr.G.Venkataraman, learned counsel appearing for M/s.Aiyar and Dolia also submitted that since the petitioner had not opted within the time stipulated under the Indian Bank (Employees) Pension Regulations, 1995 and also not remitted the amounts received, he is not eligible for any pension. In support of this proposition, he relied upon the judgment of the Supreme Court in Jai Singh B.Chauhan -vs- Punjab National Bank reported in AIR 2005 SC 3134. As he placed reliance upon paragraphs 8 and 9, they may be usefully reproduced below:- ''8. As per Regulation 3(3)(b) option was to be exercised in writing within one hundred and twenty days from the notified date to become member of the fund". "9. Regulation 3(3)(c) is also of considerable importance. It required transfer of the entire contribution of the Bank along with interest accrued https://hcservices.ecourts.gov.in/hcservices/ thereon to the credit of the fund constituted for the purpose under Regulation 5, and authorized trust of from the amount of the Provident Fund of the Bank to take effect the transfer". 9. The respondents cannot blow hot and cold on the issue relating to the petitioner's pension. By the time the petitioner had reached his age of superannuation, namely, 31.12.1995, he had completed 36 years of service. In the absence of any order interdicting the same, he is eligible for all terminal benefits including superannuation pension. It is only because of the first respondent's letter advising them not to pay the pensionary benefits, the second respondent had not paid his pension and not for the reason now adduced in the counter affidavit. 10. If the petitioner is involved in any criminal case as mentioned in the counter affidavit, then the Criminal Court will have to take care of making recoveries from the properties of the petitioner if a decision is rendered against him. But till such time, the respondents cannot withhold payment of terminal benefits including pension. The first respondent has also not come up with any counter affidavit to justify the legal denial of terminal benefits to the petitioner. The decision in Jai Singh B.Chauhan's case (cited supra) relied on by the second respondent's counsel has no bearing on the present case. It was the definite stand of the bank that they will consider the payment of pension on the basis of the conclusion of the criminal proceedings. Even this stand they were forced to take because of the communication received by the first respondent. 11. Under the circumstances, the writ petition stands allowed. The respondents are directed to pay all the terminal benefits including the superannuation pension to the petitioner within a period of eight weeks from the date of receipt of a copy of this order. Since the pension has been withheld without any legal justification, the petitioner is also entitled to get interest @ 9% per annum on the amounts withheld from the date of superannuation, i.e. 31.12.1995 till the date of payment. However, there will be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. js https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government of India, Finance (Banking) Department, New Delhi. 2. The Chairman & Managing Director, Indian Bank, 31, Rajaji Salai, Chennai-600 001. 1 cc to Ms.Hemalatha, Advocate, SR. 37718 1 cc to Mr.V. Balasubramanian, Advocate, SR. 37591 W.P.No.36342 of 2003 CK (CO) kk 5/1 https://hcservices.ecourts.gov.in/hcservices/