C.W.P. No.13441 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.13441 of 2008 DATE OF DECISION: OCTOBER 14, 2009 Banwari Lal Kararia .....PETITIONER Versus Punjab National Bank and another ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Mr.R.K. Malik, Sr. Advocate, with Mr.S.S. Malik, Advocate, for the petitioner. Mr.P.K. Dutta, Advocate, for the respondents. .. SATISH KUMAR MITTAL, J. The petitioner, who at present is working as Deputy Manager in Punjab National Bank Branch at Fatehabad, has filed the instant petition for quashing the order dated 30.1.2006 (Annexure P6) whereby he has been treated as Non Pension Optee; as well as the order dated 9.7.2008 (Annexure P14) whereby his representation against the above-said order has been rejected. Briefly, in the present case, the petitioner was appointed with the respondent bank as Clerk-cum-cashier on 11.5.1981. He was promoted to J.M.G. Scale-I on 16.9.1986. The petitioner was the member of the General Provident Fund Scheme as prevalent in the respondent bank. In the year 1993, in view of an understanding arrived at between the Management C.W.P. No.13441 of 2008 -2- of the bank and the Employees' Union by a bilateral agreement dated 29.10.1993, the Pension Scheme was introduced by the bank and was circulated vide Circular No.1431 dated 27.6.1994. In terms of the said Circular, options were invited from the employees. The petitioner vide letter dated 30.9.1994, copy of which has been annexed as Annexure P2, opted for the Pension Scheme. The respondent-bank vide Annexure P3 issued another Circular No.1520 dated 15.11.1995 in terms of Punjab National Bank (Employees) Pension Regulations, 1995, which were framed by the respondent-bank under Clause (f) of Section 19(2) of the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970, after consultation with the Reserve Bank of India and approval of the Central Government. In terms of provisions of Regulation 3 of the said Scheme, again options were invited from the employees for opting the Pension Scheme. In the said letter, it was specifically made clear that those employees who had already exercised their option in pursuance of the earlier Circular, were not required to submit the fresh options. Further, the employees who had exercised pension option pursuant to the earlier Circular in the year 1994, were given liberty to withdraw their pension option. Since the petitioner had already exercised his option vide letter dated 30.9.1994 under the earlier Circular, he did not exercise the fresh option. It is the case of the petitioner that under the Circular dated 15.11.1995, he did not withdraw his option given by him under the earlier Circular dated 27.6.1994. In pursuance of the option given by the petitioner, his Provident Fund amount of Employer's share was transferred to the Pension Fund. In this regard, the petitioner has annexed letters dated 25.11.1997 and C.W.P. No.13441 of 2008 -3- 22.2.1998 as Annexures P4 and P5. It is also admitted position that since March 1997 to January 2006, the Contributory Fund of the petitioner was deposited in the Pension Fund Trust Account. In the salary slip of the petitioner also, he was always shown as Pension Optee. After more than 11 years of the option given by the petitioner, the respondent bank vide letter dated January 30, 2006 informed the petitioner that on scrutiny of the record it was found that his name was appearing in List-II submitted by Regional Office/Zonal Office, Hisar, i.e. the list of employees who did not opt for pension or withdraw their pension option exercised earlier. Immediately, the petitioner filed a representation on 14.2.2006 informing the respondents that he had opted for the Pension Scheme by giving in writing vide letter dated 30.9.1994 and he did not withdraw the said option subsequently. It is pertinent to mention here that the Senior Manager of the Branch Office, Fatehabad has confirmed that as per the record, the petitioner had submitted his option for pension and accordingly in the record he was shown as Pension Optee. Copy of the said recommendation has been annexed by the petitioner as Annexure P8. Subsequently, on clarification by the Head Office, the Senior Manager, Regional Office, Hisar informed the Head Office that there is no document or proof traceable on the basis of which the name of the petitioner could have been included in List-II. It has been specifically stated that as per the salary slip of the petitioner, he was a Pension Optee and his regular contribution to the Pension Fund was accordingly made. In spite of all this, the representation filed by the petitioner was rejected vide letter dated July 9, 2008 (Annexure P14) and he has been treated as Non Pension Optee. Hence the petitioner has challenged those orders. C.W.P. No.13441 of 2008 -4- In the written statement, the respondents have not disputed the exercise of option by the petitioner vide letter dated 30.9.1994 (Annexure P2), but it has been stated that later on the petitioner has withdrawn the said option. Resultantly, his name was reflecting in List-II. However, with the written statement, no letter or material has been annexed whereby the petitioner is alleged to have withdrawn the option given by him in pursuance of the Circular dated 27.6.1994. I have heard the counsel for the parties. In the written statement, the submission of option letter dated 30.9.1994 by the petitioner has not been disputed. In view of the aforesaid facts, now only question which is to be answered is whether the petitioner had withdrawn the option given by him vide letter dated 30.9.1994 in view of the Circular dated 27.6.1994. In the written statement, except the averments made that the petitioner has withdrawn his option in view of the Circular dated 15.11.1995 and that is why his name was reflected in List-II, no material has been placed on record to the effect that the petitioner had ever withdrawn the Pension Option given by him. It is admitted position that after the Pension Option given by the petitioner, his Provident Fund amount of Employer's share was transferred to the Pension Fund Trust Account. This fact is reflecting from letters Annexures P4 and P5. It is also admitted position that since March 1997 to January 2006, the Contributory Fund of the petitioner was deposited in the Pension Fund. Further, in the salary slip of the petitioner also, he was always shown as Pension Optee. During the course of arguments, counsel for the respondents was asked to show any material which indicate that the petitioner had ever withdrawn the Pension Option given by him in writing vide letter dated C.W.P. No.13441 of 2008 -5- 30.9.1994 (Annexure P2) under Circular dated 27.6.1994, he was unable to defend the action of the respondent bank and could not produce any material in support of the averments made by the respondent bank in the written statement. From these facts, it appears that at one point of time the name of the petitioner was wrongly mentioned in List-II, and on the basis of that, the respondents have taken a false stand that the petitioner had withdrawn his Pension Option. Therefore, in my opinion, the action of the respondent bank in treating the petitioner as Non Pension Optee is wholly illegal and arbitrary. In view of the above, this petition is allowed with costs, which are assessed at Rs.25,000/-, and the impugned order dated 30.1.2006 (Annexure P6) is hereby quashed, and the respondents are directed to treat the petitioner as Pension Optee in terms of Punjab National Bank (Employees) Pension Regulations, 1995. The costs be deposited with the Haryana State Legal Services Authority. It will be open for the respondents to recover the amount of costs from the official of the bank, who is responsible for taking the false stand before the Court. October 14, 2009 (SATISH KUMAR MITTAL) vkg JUDGE