IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25..07.2009 PRESENT THE HONOURABLE MR. JUSTICE S.NAGAMUTHU W.P.No.20470 of 1998 N.N.Veerappan .... Petitioner Vs. 1.Union of India, rep. by its Secretary , Department of Banking Affairs, New Delhi. 2.Indian Overseas Bank, rep. by its Chairman, Central Office, 763, Anna Salai, Madras 600 002. 3.Reserve Bank of India, rep. by its Secretary, Shaheed Bhagat Singh Road, Post Box No.10007, Mumbai 400 001. 4.Indian Banks Association, rep. by its Secretary, Stadium House, Veer Nariman Road, Mumbai 400 020. ... Respondents Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Declaration, declaring the non- payment of pension to the petitioner on the ground that he voluntarily retired prior to 01.11.1993 based on the impugned Regulation 2(y) read with Regulations 28 and 29 of the Indian Overseas Bank (Employees') Pension Regulations 1995 as illegal and void and direct the respondents to pay pension to the petitioner with effect from the date of his retirement in accordance with the pension scheme. For petitioner : Mr.V.Prakash, SC for Mr.M.Ramamurthi For respondent (s): Mr.S.Rajasekar, ACGSC for R1 Mr.N.G.R.Prasad for https://hcservices.ecourts.gov.in/hcservices/ M/s.Row and Reddy for R2 No appearance for RR3 and 4 ORDER The petitioner joined as a Messenger in the 2nd respondent Bank in the year 1960 and later on, he was promoted to the clerical cadre. On 19.09.1988, he submitted his application for voluntary retirement on the ground of ill-health due to hyper tension. But, there was no response to the same, despite two of his subsequent letters. Finally, when he approached the Assistant General Manager (Personnel) at Chennai, he claims, he was asked to submit an application for voluntary retirement along with an amount equivalent to one month's pay and other allowances, in lieu of notice period in accordance with service regulations governing the employees of the Bank. Accordingly, he did on 23.03.1989. The same was accepted with effect from 15.02.1989. He had put in 28 years of service in the Bank. Following his retirement, he was paid gratuity and provident fund by the Bank. 2. Subsequently, Indian Overseas Bank (Employees') Pension Regulations, 1995 (hereinafter referred to as "the Pension Regulations, 1995") was introduced in exercise of the power conferred under Clause (f) of sub section (2) of Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings), Act, 1970 (5 of 1970), whereunder, pension option was made available to the employees of the Bank in lieu of the employer's contribution in the Provident Fund on the employees surrendering the same to the Bank According to Clause 29 of the said Pension Regulations, 1995, claiming that he is entitled for pension on voluntary retirement, he applied on 30.11.1993 to the Personnel Administration Department, Central Office for such pension. Finally, by letter dated 05.08.1998, the Chief Officer Pension Cell of the 2nd respondent Bank informed the petitioner that those employees, who had voluntarily retired from the Bank’s service during the period between 01.01.1986 and 31.10.1993 are not eligible for pension in terms of the Pension Regulations, 1995 and the employees who have voluntarily retired on or after 01.11.1993 under Clause 29 of the Pension Regulations, 1995 are alone eligible for voluntary retirement pension. The petitioner challenges the same in this writ petition and seeks a consequential direction to the respondent Bank to grant him pension as per the Pension Regulations, 1995. 3. The contentions of the petitioner are as follows:- (i) The impugned Scheme by excluding those who had retired prior to 01.11.1993, makes an artificial distinction based on a irrational choice of the date arbitrarily and therefore, the exclusion of those who had retired prior to 01.11.1993 is illegal and void as offending Article 14 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ (ii) Since voluntary retirement Scheme was not introduced for the first time by the impugned Pension Regulations, among employees, who have retired voluntarily based on the same procedure and on the same terms and who were paid the same benefits under the impugned Pension Regulations, the Bank has introduced a classification, which is a classification among equals by classifying the retired employees as those who retired prior to 01.11.1993 and those who retired subsequent to 01.11.1993 which offends Article 14 of the Constitution as the said classification is not based on any intelligible differentia which has a rationale nexus with the object to be achieved by the Pension Scheme. (iii) Though the Pension Scheme was introduced on 29.09.1995, it has been given retrospective effect with effect from 01.11.1993. In having given retrospective reach in respect of those employees, it is not rationale to deny such retrospective reach to those who retired prior to 01.11.1993. (iv) The voluntary retirement of the petitioner is governed by Para 522 (2) and 522(3) of Sastry Award applicable to the Award Staff and so under Clause 2 (y) of the Pension Regulations, it should be treated as premature retirement so as to give the benefit of premature retirement pension as provided under Clause 32 of the Pension Regulations. 4. In the counter affidavit filed by the 2nd respondent , it is contended as follows: (i) The pension scheme was introduced as per a settlement reached under Section 18 of the Industrial Disputes Act, 1947 and according to clause (11) of the Settlement , the pension scheme should take retrospective effect only from 01.11.1993 and therefore, it cannot be stated that fixation of the said cut off date is arbitrary. (ii) The petitioner did not go on voluntary retirement and as a matter of fact, he left the service of the bank on health grounds under Para 522 (2) and 522 (3) of Sastry Award on 15.02.1989 and so he is not covered under the pension scheme. (iii) The fixation of cut of date cannot be termed as arbitrary since the date was arrived at on the basis of the negotiations between the employees' unions and the management of the https://hcservices.ecourts.gov.in/hcservices/ respondent Bank. (iv) Prior to the coming into force of the Pension Regulations, there was no provision for voluntary retirement for Award Staff under the Award/Settlement. The petitioner being an Award Staff, is not entitled for any of the pensions as provided in the pension scheme. The petitioner has already been paid the provident fund as per the rules that were in force on 15.02.1989 when he left the service of the respondent Bank on health grounds under the Sastry Award and so he is not entitled for voluntary retirement pension, which is governed by the India Overseas Bank (Employees') Pension Regulations, 1995. 5. I have considered the rival submissions and also perused the records carefully. 6. Before going into the facts of the case, let me first analyse the Scheme of the Pension Regulations,1995. Clauses 3 (1) and 3 (2) of the Pension Regulations deal with the eligibility of employees for the application the Pension Regulations for pension. The said provisions read thus: 3. Application These regulations shall apply to employees who, (1) (a) where in the service of the Bank on or after the 1st day of January, 1986 but had retired before the 1st day of November, 1993; and (b) exercise an option in writing within one hundred and twenty days from the notified date to become member of the Fund; and (c) refund within sixty days after the expiry of the said period of one hundred and twenty days specified in clause (b) the entire amount of the bank's contribution to the Provident Fund including interest accrued thereon together with a further simple interest at the rate of six per cent per annum on the said amount from the date of settlement of the Provident Fund account till the date of refund of the aforesaid amount to the bank; or (2) (a) have retired on or after the 1st day of November, 1993 but before the notified date; and (b) exercise an option in writing within one hundred and twenty days from the notified date to become member of the Fund; and (c) refund within sixty days after the expiry of the said period of one hundred and twenty days specified in clause (b) the entire amount of the Bank's contribution to the Provident Fund and interest accrued thereon together with a further simple interest at the rate of six per cent per annum on the said https://hcservices.ecourts.gov.in/hcservices/ amount from the date of settlement of the Provident Fund account till the date of refund of the aforesaid amount to the Bank; or ......... ............." 7. Clause 14 of the Pension Regulations defines the term "Qualifying Service" as follows: "Subject to the other conditions contained in these regulations, an employee who has rendered a minimum of ten years of service in the Bank on the date of his retirement or the date on which he is deemed to have retired shall qualify for pension." 8. Chapter V of the Pension Regulations deals with the Classes of Pension. Clause 28 of the Pension Regulations, provides for "Superannuation Pension" Clause 29 provides for "Pension on Voluntary Retirement"; Clause 30 provides for "Invalid Pension"; Clause 31 provides for "Compassionate Allowance"; Clause 32 provides for "Premature Retirement Pension"; Clause 33 provides for "Compulsory Retirement Pension'; and Clause 34 provides for "Family Pension" in respect of employees who retired or died between 01.01.1986 and 31.10.1993. 9. Superannuation Pension shall be granted to an employee who has retired on his attaining the age of superannuation specified in the Service Regulations or Settlement. Invalid Pension may be granted to an employee, who was declared by the Bank to be unfit for further service and Compassionate Allowance is applicable to an employee who is dismissed or removed or terminated from service. Compulsory Retirement Pension is applicable to an employee who is compulsorily retired and under Clause 34, the employees who retired or died between 01.01.1986 and 31.10.1993 are entitled for Family Pension with effect from 01.11.1993. 10. In the affidavit filed in support of the writ petition, the petitioner has claimed that he is entitled for pension on "Voluntary Retirement" as provided under clause 29 of the Pension Regulations. According to the said provision, on or after 01.11.1993, an employee who has completed 20 years of qualifying service, may, by giving notice of not less than three months in writing to the appointing authority, retire from service. Such voluntarily retired employee shall be eligible for pension known as " Pension on Voluntary Retirement". 11. During the course of arguments, the learned senior counsel for the petitioner would submit that if not under Clause 29 of the Pension Regulations, at least under Clause 32 of the Pension Regulations, the petitioner is entitled for "Premature Retirement Pension". Under the said provision, Premature Retirement Pension may be granted to an employee who has rendered minimum of https://hcservices.ecourts.gov.in/hcservices/ 10 years of service and who retires from service on account of orders of the Bank to retire prematurely in the public interest or for any other reasons specified in service regulations or settlement, if otherwise, he was entitled to such pension or superannuation on that date. 12. The term "Retirement" has been defined in Clause 2(y) of the Pension Regulations as follows: "Retirement" means cessation from Bank's Service (a) on attaining the age of superannuation specified in Service Regulations or Settlements; (b) on voluntary retirement in accordance with provisions contained in regulation 29 of these regulations; (c) on premature retirement by the Bank before attaining the age of superannuation specified in Service Regulations or Settlement. 13. The term "Retired" has been defined in Clause 2 (x) as follows: "Retired" includes deemed to have retired under clause(I); 14. The term "Deemed to have Retired" has been defined in Clause 2(l) "Deemed to have Retired" means cessation from service of the Bank on appointment by Central Government as a whole – time Director or Managing Director or Chairman in the Bank or in any other Bank specified in Column 2 of the FIRST SCHEDULE of the Act or Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980) or in any public financial Institution or State Bank of India established under State Bank of India Act, 1955 ( 23 of 1955). 15. At this juncture, it is also relevant to refer to the term "Employee" as defined in Clause 2 (n) of the Pension Regulations "Employee" means any person employed in the service of the bank on full time work on permanent basis or on part – time work on permanent basis on scale wages and who opts and is governed by these regulations, but does not include a person employed either on contract basis or daily wage basis or on consolidated wages." https://hcservices.ecourts.gov.in/hcservices/ 16. The above extracted provisions would give a broad idea as to who are all entitled for pension. If an employee retires on attaining the age of superannuation as defined in Clause 2(y)(a) of the Pension Regulations, he will be entitled for pension under Clause 28 viz., superannuation Pension. If a person retires as defined in Clause 2 (y) (b) of the Pension Regulations, then he is entitled for pension under Clause 29 of the Pension Regulations, viz., "Pension on Voluntary Retirement" and if he retires as defined in Clause 2(y) (c) of the Pension Regulations, he will be entitled for pension under Clause 32 of the Pension Regulations viz., "Premature Retirement Pension". 17. One of the contentions of the petitioner, as I have already extracted in the earlier paragraphs of this order, is that he is entitled for pension on voluntary retirement as provided under Clause 29 of the Pension Regulations since his request for voluntary retirement was accepted by the respondent Bank. But, the contention of the respondent Bank is that the petitioner did not go on voluntary retirement as there was no such scheme available prior to the introduction of the Pension Regulations, 1995 in respect of award staff to allow them to go on such voluntary retirement. 18. In the affidavit of the petitioner, it is contended that even before the introduction of the pension scheme, there was a scheme enabling the award staff also to avail the benefit of voluntary retirement. But, the learned senior counsel for the petitioner is not able to substantiate the same during his argument that such Scheme was available for award staff. 19. The contention of the respondent Bank is that the petitioner left the service and he was not allowed to go on voluntary retirement. 20. Admittedly, there was neither any regulations, nor a scheme in force prior to the Pension Regulations, 1995 to enable an award staff to seek voluntary retirement. It was, for the first time, such provision was introduced for award staff only in the Pension Regulations, 1995. The learned senior counsel for the petitioner is unable to bring to the notice of this Court any such voluntary retirement scheme for award staff other than the Pension Regulations, 1995. Therefore, the contention of the learned senior counsel for the petitioner that the petitioner went on voluntary retirement with effect from 15.02.1989 cannot be accepted. Consequentially, it has to be held that the petitioner is not entitled for voluntary retirement pension as provided under Clause 29 of the Pension Regulations. 21. Now, it has to be analysed as to whether the petitioner is entitled for premature retirement pension under Clause 32 of the Pension Regulations. Clause 2(y)(c) of the Pension Regulations, https://hcservices.ecourts.gov.in/hcservices/ which defines premature retirement, states that such premature retirement can be made by the Bank either as per the service regulations or as per a settlement. Though, the learned senior counsel for the petitioner initially made an argument that there is such service regulation enabling the award staff to opt for premature retirement, he could not quote the service regulation which so enables. However, he would develop his argument to say that, as per the settlement which culminated in "Sastry Award", the award staff can prematurely be retired as defined in Clause 2 (y)(c) of the Pension Regulations and so the petitioner would be entitled for premature retirement pension as per Clause 32 of the Pension Regulations. 22. The term "Settlement" has been defined in Clause 2(zb) of the Pension Regulations as follows:- "Settlement" means memorandum of settlement agreed between the management of the Bank represented by the association authorised by them and workmen of such Bank represented by trade unions authorised by them". 23. It should be noticed that as per the settlement reached between the employees' union and the banks, the Tribunal for the adjudication of Industrial Disputes concerning Banking Companies, Chaired by Sri. S.Panchapagesa Sastry, retired Judge of High Court of Judicature, Madras, passed an Award. Section IV of Chapter XXV of the Award deals with procedure for termination of employees. In para 522 of the Award, the Tribunal has directed thus: " The service of any employee other than a permanent employee or probationer may be terminated, and he may leave service, after 14 days' notice. If such an employee leaves service without giving such notice he shall be liable for a week's pay (including all allowances)." 24. There is no controversy at all that para 522(4) of the Award is applicable to a Class of employees who are not permanent employees, but known as "Award Staff". 25. In the case on hand, admittedly, the petitioner gave a letter seeking retirement. As per the directions of the respondent Bank, he remitted one month's pay and allowances in lieu of the notice period and the same was accepted by the Bank and thereafter, he was allowed to leave the service. The cessation of service of the petitioner may be termed as "termination" in terms of para 522(4) of the Award. 26. The next question is as to whether such termination amounts to premature retirement as defined in Clause 2(y)(c) of the Pension Regulations. Clause 2(y) of the Pension Regulations defines the term "Retirement" meaning thereby cessation from Bank's https://hcservices.ecourts.gov.in/hcservices/ service on any one of the other conditions enumerated therein. Here, termination from service, in simple terms, is a kind of cessation from Bank's service. Such cessation would mean retirement as defined in Clause 2 (y) of the Pension Regulations. Such retirement is premature retirement , if the same was made in tune with the Sastry Award. Therefore, there can be no difficulty in holding that the petitioner's termination from service amounts to premature retirement as defined in Clause 2 (y) (c) of the Pension Regulations. Thus, the petitioner should be given the benefit of premature retirement pension as provided in Clause 32 of the Pension Regulations, if he satisfies the other conditions of the said provision. 27. For premature retirement, two conditions are to be satisfied under Clause 32 of the Pension Regulations, viz., i) he should have rendered minimum of 10 years of qualifying service; and (ii) he retired from service by an order of the Bank to retire prematurely in the public interest or for any other reasons specified in service regulations or settlement. 28. In the case on hand, the petitioner has not retired either in the interest of public or for any other reasons specified in the service regulations. The contention of the learned senior counsel for the petitioner is that the petitioner has retired prematurely by satisfying the requirements of the settlement viz., Sastry Award. As I have already extracted supra, in para 522 (4) of the Award, there are no reasons stated in the award on which alone an award staff may be terminated. The only condition is that the award staff should issue 14 days' notice and if he fails to do so, he is liable to pay a week's pay including all allowances. In the case on hand, there is no denial of fact that the petitioner paid one month's pay including all allowances and also issued notice. Therefore, as defined in Clause 32 (b) of the Pension Regulations, the petitioner has retired from service as per the settlement viz., Sastry Award. Further, he was in service for 28 years. Thus he satisfies both the clauses 32 (a) and 32(b) of the Pension Regulations. Therefore, there can be no difficulty in holding that the petitioner is entitled for premature retirement pension under Clause 32(b) of the Pension Regulations. 29. But, the learned counsel for the respondent Bank would submit that the Pension Regulations, 1995 in its entirety, is not applicable to the award staff. According to him, it is applicable only to the regular employees of the Bank. He would further submit that even in respect of regular staff of the Bank, as per the regulations, those who have retired on or after 01.11.1993 alone are entitled for voluntary retirement pension. The learned counsel would rely on a judgement of the Hon'ble Supreme Court in Union Bank of India v. Venkatesh Gopal Mahishi and another [ 2007 (2) L.L.N. 77]. https://hcservices.ecourts.gov.in/hcservices/ 30. Per contra, the learned senior counsel for the petitioner would submit that the Pension Regulations, 1995 are applicable even for award staff and the crucial date viz., 01.11.1993 has already been declared to be unreasonable and arbitrary by the order of this Court dated 14.06.2006 made in W.P.No.5113 of 2002 (P.N.Balasubramaniam v. The Management of Indian Overseas Bank). He would further submit that an appeal preferred in W.A.No.1076 of 2006 against the said order, was dismissed by a Division Bench of this Court on 31.08.1996. He would further submit that Civil Appeal filed against the said order before the Hon'ble Supreme Court in Civil Appeal No.4177 of 2007 was dismissed on 30.07.2008. Therefore, the question as to whether the Pension Regulations are applicable to award staff and whether the crucial date is enforceable, are no more res integra, it is contended. 31. I have carefully gone through the judgement of the Hon'ble Supreme Court in Union Bank of India vs. Venkatesh Gopal Mahishi and another cited supra. In para 22 of the said judgement, the Hon'ble Supreme Court, while dealing with the question as to whether the impugned regulation is applicable to award staff or nor, has not answered the same and as a matter of fact, the Hon'ble Supreme Court has left the same open. The relevant portion of the judgement in para 24 are as follows:- "24. ..... The respondent No.1 has not denied his status as an award staff when he sought retirement on medical grounds. Thus, the respondent No.1 cannot take the benefit of the letter, dated 20 September 1993, received by him from the Chief Manager of the appellant-bank, treating him as voluntarily retiree from the service of the bank with effect from 1 November 1993 under the Pension Regulations as nomenclature of the words "Voluntarily Retired" used in the said letter will not change the status of the respondent No.1 from award staff to any other category of the employee of the appellant-bank. Thus, Regulation 29, upon which reliance is placed by the respondent No.1, is not attracted in his case and his claim for pension is not covered thereunder." 32. On carefully going through the above judgement of the Hon'ble Supreme Court, I am of the view that the ratio laid down in the said judgement has got no application to the facts of the present case. In that case, the workman claimed compensation under Clause 29 of the Pension Regulations stating that he had gone on voluntary retirement. The Hon'ble Supreme Court took note of the fact that in respect of award staff, under the service regulations prior to the impugned pension regulation, since there was no https://hcservices.ecourts.gov.in/hcservices/ provision enabling the award staff to go on voluntary retirement, it cannot be stated that the workman went on voluntary retirement so as to satisfy Clause 29 of the Pension Regulations and so, an award staff, who retired prior to 01.11.1993 is not entitled for voluntary retirement pension under Clause 29 of the Pension Regulations, 1995. In view of the said settled position, as I have concluded in para 20 of this judgement,