R.S.A. No. 3254 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3254 of 2007 (O&M) Date of decision: 28.04.2009 R.L. Budhwar ....appellant versus Central Bank of India and another ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. I.P. Atre, Advocate, for the appellant. Mr. Alok Jagga, Advocate, for the respondents. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 16.4.2007 passed by the learned lower appellate Court, vide which the suit filed by the plaintiff/appellant has been ordered to be dismissed. The plaintiff brought a suit for declaration, that he was entitled to pensionary benefits on his retirement after attaining the age of superannuation. The non-release of pensionary benefits was illegal, wrongful and contrary to the service conditions, besides being violative of principles of natural justice and equity. Consequential relief of mandatory injunction was also prayed for directing the R.S.A. No. 3254 of 2007 (O&M) -2- defendant/respondents to release the consequential benefits. The pleadings of plaintiff/appellant in the suit were that he entered employment of Central Bank of India on 14.7.1958 While he was posted as Accountant in Sector 35-D, Chandigarh Branch of the Bank, his services were terminated on 13.2.1991, on the allegations of mis-conduct. The plaintiff challenged the order of termination by invoking the provisions of the Industrial Disputes Act. During conciliation proceedings on the demand notice, an understanding was reached, wherein he was asked to make representation, to the defendant/respondents, against the said termination. He was given re- employment in the Bank on 13.9.1991, on the basis of understanding reached during conciliation proceedings. The plaintiff/appellant thereafter, served Sohana Branch, as Assistant Manager, and retired on 13.8.2000, on attaining the age of superannuation. The services of the plaintiff were not terminated on account of either disorderly or riotous behaviour or on account of act involving moral turpitude. He was re-employed in the Bank, that too in the management cadre. It was claimed that plaintiff/appellant had more than 10 years of qualified service, entitling him to claim pension on retirement. On introduction of the pension scheme, plaintiff/appellant was asked either to opt for pension scheme or double the provident fund i.e. his share as well as share of the Bank. The plaintiff/appellant opted for pension scheme, which was duly notified by the defendant/respondents in their various statements issued from time to time. The R.S.A. No. 3254 of 2007 (O&M) -3- plaintiff/appellant, on his retirement was given his contribution of provident fund and the share of the Bank was withheld in view of the fact that the plaintiff/appellant had opted for pension scheme. On the facts stated above, the plaintiff/appellant claimed release of retiral benefits as well as the pension. On notice, the suit was contested by the defendant/respondents, where they appeared and filed written statement, taking preliminary objections, that the suit for declaration simpliciter was not maintainable, as it did not fall within the purview of Section 34 of the Specific Reliefs Act. It was further claimed that suit for declaration and injunction was not competent, as the plaintiff has failed to pay the requisite Court fee. Allegations were also levelled that the plaintiff's conduct was not fair in claiming the relief under the Specific Reliefs Act and, therefore, the suit as framed was barred under Section 41 (h) of the Specific Reliefs Act. Stand was also taken that the plaintiff concealed the facts from the Hon'ble Court that he was, in fact, removed from service on 13.2.1991. It was also the case set up, that it was on the mercy appeal of the plaintiff/appellant, that he was given re- employment. He was not entitled to any benefit of previous service, prior to re-employment. The plea of estoppel was also raised against the relief claimed. On merits, it was pleaded that the plaintiff/appellant was appointed afresh on 13.9.1991. He had not completed 10 years of service on 31.8.2000, when he superannuatted. He was not qualified for the pensionary benefits, as that was the spirit behind the representation Annexure D-1, upon which Bank relied and passed order Annexure D-2 R.S.A. No. 3254 of 2007 (O&M) -4- i.e. appointment of plaintiff/appellant on 13.9.1991. The defendant/respondents admitted that the option was sought in general from all employees assuming that the concerned officials would apply in the relevant category, in which they fell, but merely by any such general letter or even express option, the employee was not entitled to claim the waiver of applicability of the basic terms and conditions of the employment. It was claimed that by virtue of his dismissal, he has lost his right to claim the employer's contribution. Likewise, for the subsequent service as a fresh appointee, his contribution towards the provident fund was paid to him and there is nothing left to be paid to the plaintiff by the defendant/respondents, as Bank's contribution was transferred to pension scheme. Rejoinder was not filed. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues: - "1. Whether the plaintiff is entitled to declaration and mandatory injunction as prayed for? OPP 2. Whether the suit is not maintainable? OPD 3. Relief." The learned trial Court, on appreciation of evidence, decreed the suit. The defendant/respondents preferred an appeal. The learned lower appellate Court reversed the findings of the learned trial Court. In view of the fact, that mere option of the plaintiff claiming to come under pension scheme was not to over-ride the statutory rules. The finding was recorded that the defendant/respondents framed statutory rules i.e. Employees (Pension) Regulations, 1995. Under Regulation 22, R.S.A. No. 3254 of 2007 (O&M) -5- resignation, or dismissal or removal or termination from service entailed forfeiture of entire past service and, therefore, he was not qualified for the pensionary benefits. By interpreting Regulation 22 of the pension Regulations, 1995, the learned lower appellate Court held that the plaintiff/appellant did not qualify for the pension. The learned lower appellate Court also recorded a finding that the service rendered by the plaintiff/appellant after his re-employment on 13.9.1991 till the date of his superannuation did not qualify for pensionary benefits, as he had not completed 10 years of service. The findings of the learned trial Court on issues No. 1 and 2 were reversed and the suit was ordered to be dismissed. The learned counsel appearing on behalf of the appellant contends, that this appeal raises the following substantial questions of law: - "1. Whether the Courts are bound to grant relief made out on the facts and circumstances of the case to do substantial justice even if it is not the main prayer, but arises out of the relief claimed? 2. Whether the judgment and decree passed by the learned lower appellate Court is outcome of mis-reading of provisions of Employees (Pension) Regulations, 1995 and, thus, perverse?" In support of the substantial questions of law, the learned counsel for the appellant contends, that it cannot be disputed that the persons who are not entitled to pensionary benefit, are to be granted benefit under the scheme of provident fund, as per policy of the Bank. R.S.A. No. 3254 of 2007 (O&M) -6- The Bank, therefore, could not deny benefit under pension scheme and also forfeit provident fund contribution on the principle of equity and good conscious. There is force in the contention raised by the learned counsel for the appellant. It cannot be disputed that the employees who are not governed by pensionary regulations in the Bank are entitled to benefit under the provident fund scheme. The Bank under the provident fund scheme is required to deposit the matching contribution which is payable to the employee on his retirement on attaining the age of superannuation. The plaintiff/appellant admittedly was given fresh appointment as a result of understanding reached in conciliation proceedings started on issuance of demand notice. It is also not in dispute, that the appellant retired from service on attaining the age of superannuation. In view of the Regulation 22, the case of the appellant was not covered under the pension regulation, his amount of provident fund transferred to pension scheme could not be retained by the Bank and was required to be paid back to the plaintiff/appellant, as in the eventuality of plaintiff/appellant having been not covered under the pension regulation, was certainly entitled to benefit under the provident fund scheme. The defendant/respondent could not deny both the benefits to the plainitff/appellant merely because his past service before re-employment was not to be included. Even if seen from other angle, it was for the defendant/respondent to have informed the plaintiff/appellant that he would not be entitled to pension under the scheme, as his date of superannuation was known to the Bank, as the service particulars of the plaintiff/appellant were with the Bank, as R.S.A. No. 3254 of 2007 (O&M) -7- he was in the service of the Bank since 1958. It is rightly contended that in the facts and circumstances of the case, the learned lower appellate Court ought to have given him alternative relief of release of provident fund, as made out from the facts and circumstances of the case to do substantial justice. The learned counsel for the appellant further contends that the judgment and decree passed by the learned lower appellate Court is outcome of mis-reading of provisions of the pensionary benefits, as the period of absence, between termination of service and re-employment should have been condoned by the Bank and, therefore, the learned lower appellate Court was not justified in reversing the judgment and decree passed by the learned trial Court. This plea of the learned counsel for the appellant cannot be accepted. Once fresh appointment was given, it could not result in condoning the period of absence. In case he was to be given benefit for past service, he could have been re-instated in service by declining him benefit for the period of his absence. No fault can be found with the finding of the learned lower appellate Court holding that he was not entitled to pensionary benefits under the pension scheme, for not having completed 10 years of service. There is, thus, no mis-reading of the provisions. The learned counsel for the respondents-Bank, however, contends that the plaintiff/appellant is not entitled to benefits under the provident fund scheme, for the reason that he opted for pension scheme and, therefore, his contributions towards provident fund were not deducted, therefore, at best plaintiff could claim benefit under the R.S.A. No. 3254 of 2007 (O&M) -8- provident fund till the date of his option and not thereafter. It is also the contention of the learned counsel for the defendant/respondents that under the scheme, he was also entitled to benefit of family pension, under which his family would have been entitled to, in event of his death, before attaining the age of superannuation. It is also contended by the learned counsel for the defendant/respondents that on opting for pension scheme, the contribution made by the Bank towards provident fund was transferred to the pension fund and it is not open to the plaintiff now to claim back the said amount. The contentions raised by the learned counsel for the defendant/respondents cannot be accepted being contrary to equity and good conscious. The contentions raised may be applicable in general, but not in peculiar circumstances of the case. In the case in hand, admittedly, in pursuance to the option made by the plaintiff/appellant to come to the pension scheme, his request was accepted and Bank's contribution standing in his account was transferred to pension scheme, and he was treated to be covered under the scheme. It was only on attaining the age of superannuation that the benefit of pension has been denied, by raising objection that the previous service rendered was not to be counted, because of undertaking given at the time of re-employment. Further, that he has not completed 10 years of service. The fault, if any, lies with the defendant/respondents, as it was aware that the plaintiff/appellant was to retire before completing 10 years of service, as service particulars were with the Bank, being their employee since 1958. The defendant/respondent, being a State agency, cannot be allowed to play with the life of the persons by giving an impression, that he was R.S.A. No. 3254 of 2007 (O&M) -9- duly covered under the pension scheme, on basis of which plaintiff/appellant transferred his PF amount to pension scheme and changed his position to his detriment. The learned lower appellate Court, therefore, was in error in holding that the principle of estoppel was not applicable to the defendant/respondents. The finding qua estoppel can only be restricted to grant of pension because of pension regulation, as far as release under the provident fund is covered, the Bank is certainly estopped on the principle of estoppel from denying the said release. The action in not releasing provident fund is, thus, unfair, inequitable and against good conscious besides being arbitrary. The learned counsel for the respondents contends that the plea of the learned counsel for the appellant that he was entitled to alternative relief, cannot be allowed to be raised for the first time in regular second appeal, as that was not raised before the learned Courts below. This contention again is mis-conceived, as it is settled law that the Court on the facts and circumstances proved, can always grant lesser relief than the one asked for doing substantial justice, without amendment of the pleading. The relief of release of provident fund in alternative along with Bank's contribution is lesser relief than the one claimed by the plaintiff/appellant i.e. claiming pensionary benefits and pension under the pension Regulations. This contention of the learned counsel for the respondents also deserves to be rejected. The Courts are meant to do substantial justice, on proved facts. Once it was proved that the plaintiff/appellant was not covered under pension regulation, there was no justification to withhold the amount of R.S.A. No. 3254 of 2007 (O&M) -10- PF in his account transferred to pension scheme and thus denying him both the benefits. The defendant/respondent, a State agency has been harsh to plaintiff/appellant. The offer made by Court to consider release of provident fund under scheme was also declined, on the technical pleas raised by learned counsel, as noticed above. The first substantial question of law is answered in favour of the plaintiff/appellant. The judgment and decree passed by the learned lower appellate Court is modified and the suit of the plaintiff/appellant is decreed for alternative relief. He is entitled to benefit under the provident fund scheme, and will be entitled to release of provident fund with Bank's contribution. He is held entitled to interest on the amount @ 9% from the date of his retirement till payment. Appeal partly allowed. (Vinod K. Sharma) Judge April 28, 2009 R.S.