1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 425 OF 1998 1 Jal Patel, 24, Glamour, Malcom Baug, Jogeshwari West, Mumbai 400 102. (Deceased) 2 Dina Jal Patel, (Deceased) Legal Representatives/heirs: 2A Dara Jal Patel, Parsi, residing at 24, Glamour, Malcom Baug, Jogeshwari (West) Mumbai 400 102. 2B Aspi Jal Patel, Parsi, at present residing at 1/11 Pakuranga Road, Auckland 1706, New Zealand. … Petitioners. Versus 1 Union of India 2 The Union Bank of India, through the Deputy Manager, Dept. of Personnel, P.F. Section, Motlibai House, Fort, Mumbai 1. … Respondents. 2 Mr. Sarosh Bharucha i/b D. Ferreira & Diwan for the petitioners. Mr. Y.R. Mishra a/w Y.S. Bhose for respondent no.1. Mr. Ashok D. Shetty a/w Rita Joshi for respondent no.2. CORAM: D.K. DESHMUKH & R. G. KETKAR, JJ. DATED: 17th August, 2009. JUDGMENT: (Per R.G. Ketkar, J.) 1 The Petitioners challenge the Union Bank of India Employee’s Pension Scheme, 1993 (for short “the said scheme”) to the extent it excludes the parents of the deceased employee from the benefit of the pension and forfeits the employer’s contribution to the Provident Fund Account of a deceased employee. The petitioners in the alternate claim the benefit of the Union Bank of India (Employees) Pension (Amendment) Regulations, 2002 which enlarge the definition of the term family. The controversy arises in the following circumstances: 2 Kurush Jal Patel joined the respondent Bank as a clerk on May 5, 1962. During the course of the employment, he duly filled in Form No.1 on January 11, 1996 opting to become member of Bank Pension Scheme, as per the provisions of the said Scheme and irrevocably authorised the Bank/trustees of Contributory fund to transfer entire contribution of the Bank 3 along with entire interest accrued thereon to the credit of Pension Fund to be created for the said purposes. 3 Kurush Patel died on December 5, 1996 who was bachelor at the time of death and died intestate. By memo dated February 1, 1997 the respondent No.2 paid to the parents of the said Kurush Patel an amount of Rs. 2,20,171.44 paise being full and final settlement of the claim against the trustees of the Union Bank of India Employee’s Provident Fund. The said amount was arrived at after deducting 100% Banks contribution transferred to Pension Fund Account to the extent of Rs. 1,61,855.46. 4 By communication of October 12, 1997 Mrs. Dina Jal Patel, mother of Kurush Patel enquired as to under what provisions the amount of Rs. 1,61,855.46 was transferred to the Pension Fund. Request was made to furnish Rules of the Pension so as to enable her to claim the said amount. This was responded by the respondent No.2 by letter dated October 15, 1997 enclosing there with the relevant provisions of the Union Bank of India (Employees) Pension Regulations, 1995 ( for short “the Regulations”) along with Form No. 1. Clause 2 (o) of the Regulations defines the term ‘family’ and reads thus: 4 2. Definitions:- in these Regulations, unless the context otherwise requires, (o) “Family” in relation to an employee means: (a) wife in the case of a male employee or husband in the case of a female employee; (b) a judicially separated wife or husband, such separation not being granted on the ground of adultery and the person surviving was not held guilty or committing adultery; (c) son who has not attained the age of twenty-five years and unmarried daughter who has not attained the age of twenty-five years, including such son or daughter adopted legally; 5 By communication dated October 31, 1997, Mrs. Dina Jal Patel was informed that according to the Provident Fund Rules, the employees who have opted for Pension scheme are not eligible for Bank’s contribution to the Provident Fund, since Kurush Patel had opted for Pension scheme, the accumulation of Bank’s Contribution to the Provident Fund account was transferred to Pension Fund account. Initially, Jal Patel and Dina Jal Patel, parents of Kurush Patel instituted above petition. 5 After their death, the present petitioners have been brought on record. Mr. Sarosh Bharucha, learned counsel for the petitioners strenuously contended that Pension is measure of socio economic justice. Pension is in the nature of compensation for the services rendered in the past. It is a post retirement benefit and is in the nature of economic security on which an employee depends after his retirement. This being the basic purpose for which law provides for pension, the term “family” should be liberally interpreted so as to include the parents. 6 He further submitted that a post retirement benefit in the nature of pension must be made available to the employee on his retirement or his death, to his legal heirs and in particularly to old parents. The amount of pension cannot be made available to certain heirs such as spouse and children only and in the absence of these heirs, the employer can forfeit the said amount. 7 He further submitted that the term family as defined in the said Regulations is amended so as to include parents who were wholly dependant on the employee when the employee was alive. Clause (c ) of Regulations 2 (o) is substituted by following clauses: 6 “(c) son or unmarried daughter or widowed/divorced daughter, who has not attained the age of twenty-five years, including such son or daughter adopted legally.” “(d)” parents who were wholly dependent on the employee when he/she was alive, provided the deceased employee had left behind neither a widow/widower nor a child.” 8 Kurush Patel had neither left widow nor a child and consequently in the light of inclusion of parents in the definition of the term family, the parents would be entitled to get amount of compensation. 9 On the other hand, learned counsel appearing for the respondents submitted that Kurush Patel died on December 5, 1996. He had opted for becoming the member of Bank Pension Scheme as per the provisions of the said scheme. He irrevocably authorized the bank/trustees of the Contributory Fund to transfer the entire contribution of the banks along-with entire interest accrued thereon to the credit of Pension Fund to be created for the said purpose. Form No.1 signed by Kurush Patel on January 11, 1996 recorded that he understood that 7 with effect from November 1, 1993 the bank will not make any contribution to his Provident Fund Account. 10 The learned counsel for the respondents further submitted that at the time of death of Kurush Patel, parents were not included in the term family as defined in clause 2 (o) of the Regulations. If that be so, the parents or other legal heirs and representatives not covered by clause 2 (o) of the Regulations cannot maintain the present petition. In so far as amendment to the term the family made in the year 2002 is concerned, he submitted that the amendment is not applicable to the case of the petitioners. 11 After hearing the learned counsel for the parties, we are of the opinion that as per the Regulations of 1995 parents were not included in the term family. Kurush Patel died on December 5, 1996, when these Regulations were in force. If that be so, the parents of the deceased employee cannot maintain the petition. In so far as amendment made to the term “family” in the year 2002 is concerned, that will obviously operate prospectively. The rights of the heirs and legal representatives of the deceased employee are crystallized at the time of the death of the employee. At the time of the death 8 of Kurush Patel on December 5, 1996, only such heirs and legal representatives of the deceased Kurush Patel covered by clause 2 (o) of the Regulations were entitled to receive the benefits under the Regulations. Since the parents were not covered, they cannot maintain the petition and consequently, they are not entitled to any relief. 12 As set out earlier during the pendency of this petition, even the parents of Kurush Patel expired and the present petitioners were brought on record. In our opinion, the present petitioners who are brothers of Kurush Patel are not entitled to any relief having regard to the definition of term family under clause 2 (o) of the Regulations, as also amended definition of the term family made in the year 2002. 13 The respondent/bank had made this regulation in exercise of the powers conferred by section 19 read with section 12(2) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, in consultation with the Reserve Bank of India and with the previous sanction of the Central Government. We are also unable to acceed to the prayer made by the petitioners to declare that clause 2 (a)(ii) of the Union Bank of India (Employees’) Pension (Amendment) 9 Regulations, 2002, is deemed to have always been part of the Union Bank of India (Employees’) Pension Regulations, 1995. In our opinion, the amendment is clearly prospective and consequently such declaration cannot be granted. In the result, petition fails and the same is dismissed. Rule is discharged. However, in the facts and circumstances of the case, there shall be no order as to costs. (D.K. DESHMUKH, J) (R.G. KETKAR, J)