HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No.1756 of 2005 AND WRIT APPEAL No.708 of 2009 COMMON JUDGMENT: ((Per Hon’ble Sri Justice Sanjay Kumar) These two appeals, W.A.No.1756 of 2005 and W.A.No.708 of 2009, are filed by the respondents in W.P.Nos.7990 of 1998 and 23215 of 2005 respectively, the officers of Indian Bank, aggrieved by the orders passed therein directing the Indian Bank to grant family pension to the writ petitioners with effect from the date on which their husbands passed away and to pay all consequential benefits, including arrears of family pension, to them. The facts of the cases to the extent relevant are stated hereunder: In W.P.No.7990 of 1998, the petitioner was the widow of one S.Lingaiah, who was employed as a Peon by the Indian Bank in the year 1966. He was thereafter promoted as a Clerk in the year 1977. He sought voluntary retirement from service on medical grounds on 08.07.1993 which was accepted by the bank on 21.04.1994 but surprisingly, termed as a resignation. He died thereafter on 11.08.1994. It is not in dispute that his son was provided an appointment in the Indian Bank on compassionate grounds. In so far as W.P.No.23215 of 2005 is concerned, the petitioner was the widow of one Abdul Gaffoor, who was employed by the Indian Bank as a Clerk in the year 1956. He died in harness on 26.11.1992. The petitioner’s son was also given compassionate appointment in the service of the bank. In the year 1995, the Indian Bank introduced a pension scheme titled ‘Indian Bank (Employees) Pension Regulations, 1995’. For availing the pension, the eligibility conditions stipulated therein had to be satisfied. The eligibility conditions were as under:- “(1) The employee has to exercise option in writing within 120 days from the notified date. (on or before 26.01.1996) (2) In respect of those employees, who retire on or after 01.01.1986—such employees have to refund within 60 days after expiry of the said period of 120 days the entire amount of Bank’s contribution to the Provident Fund including interest accrued. (3) Under the scheme, an employee who joined service after the notified date can opt for Provident Fund instead of pension.” Admittedly, the petitioners in both the Writ Petitions applied for grant of family pension under the above scheme after the expiry of the stipulated date. Their applications were rejected by the bank on the ground that they did not fulfill the eligibility conditions, as in one case the employee had ‘resigned’ from service while in the other, the application was made beyond the stipulated time. Aggrieved by the denial of family pension, the petitioners filed the subject writ petitions. By order dated 17.06.2005 passed in W.P.No.7990 of 1998 and order dated 25.03.2008 passed in W.P.No.23215 of 2005, a learned Single Judge of this Court allowed the writ petitions with a positive direction to the Indian Bank to grant family pension to the petitioners in both the cases from the date on which their husbands passed away and to pay all consequential benefits, including arrears of family pension, to them. Perusal of the orders under appeal reflects that in so far as W.P.No.7990 of 1998 is concerned, the learned Single Judge was of the opinion that the bank had committed an error in not extending the benefit of the family pension scheme under the Regulations to the petitioner’s husband and consequently erred in not accepting her application for family pension. The learned Judge took note of the fact that though the petitioner’s husband applied for voluntary retirement on 08.07.1993, it was accepted only on 21.04.1994 and by that time the pension scheme had come into effect, as it was given retrospective operation from 01.11.1993. The learned Judge, therefore, rightly held that the petitioner’s application for grant of family pension could not be rejected on the ground that her husband had ‘resigned’ and that the scheme had no application to him. We have perused the Bank’s proceedings dated 21.4.1994. The subject therein was the application of S.Lingaiah for ‘premature retirement on medical grounds’ and the body of the proceedings reflects that the same was accepted with effect from that day. The stray use of the word ‘resignation’ in the proceedings was, at best, a mistake on the part of the bank and cannot be understood to mean that S.Lingaiah had ‘resigned’ and had not ‘retired’. That was not the understanding of the parties as is clear from a complete comprehensive overview of the proceedings dated 21.4.1994. The rejection of the petitioner’s application on this ground was therefore clearly untenable. In so far as W.P.No.23215 of 2005 is concerned, the order passed therein reflects that the petitioner claimed that she came to know of the pension scheme only in the year 1997 and therefore she submitted her application for grant of such pension on 23.07.1997. Except for the fact that there was delay on her part in making such an application, her eligibility for claiming the pension was not in issue. Faced with this situation, the learned Single Judge found that though the bank had issued a circular to its branches to inform the eligible beneficiaries/employees of the scheme, there was no proof or indication of such communication to all those who stood to benefit under the scheme. Once there was a failure on the part of the bank in communicating the details of the scheme to the petitioner and other beneficiaries, the learned Single Judge was of the opinion that the petitioner could not be punished for the same. The learned Single Judge also placed reliance on the judgment of a Division Bench of the Madras High Court in Writ Appeal No.29 of 1999, which dealt with the time stipulations in the pension scheme as to submission of the application and return of the provident fund in the context of the failure on the part of the bank to communicate the existence and details of the scheme to the intended beneficiaries. It was in these circumstances that the learned Single Judge allowed the Writ Petitions with positive directions. Sri S.S.Prasad, learned Senior Counsel representing the appellants contended that the learned Single Judge erred in issuing a positive Mandamus, which would not be the course adopted by this Court even while allowing writ petitions. It is no doubt true that this Court, exercising discretionary jurisdiction under Article 226 of the Constitution of India and while issuing prerogative writs, would not normally clothe the same in positive and absolute terms. However, the facts of each case would dictate as to how the direction of the Court should be worded. There can be no straight-jacketed principle as to how orders of this Court should be formulated. In any event, in so far as the facts on hand are concerned, we are of the opinion that the learned Single Judge was justified in coming to the conclusion that the bank had not dealt with the cases of the petitioners fairly and had baldly rejected their pleas for grant of family pension. There is nothing on record to show that the bank had effectively communicated to the petitioners the fact that the subject pension scheme had been put in place, requiring the intended beneficiaries to take steps within the time frame stipulated therein. In the absence of such communication, it was not open to the bank to insist upon compliance with such time stipulation. The mere fact that the petitioners’ sons were provided appointments in the bank cannot be taken to mean that the petitioners could be imputed with knowledge of the scheme. Once the bank promulgated the pension scheme with a specified time frame, it was incumbent upon it to see that the same was properly communicated to the intended beneficiaries. Further, in so far as the repayment of the provident fund is concerned, the factual position is far from clear. In the case of S.Lingaiah, the bank filed a counter in W.P.No.7990 of 1998, wherein it stated that his provident fund had been settled on 19.10.1994 and was paid to the petitioner on 21.11.1994. This statement is however proved to be incorrect by the communication dated 19.01.1995 addressed by the Manager, Indian Bank, Nalgonda, to its Senior Manager, Provident Fund Section, Indian Bank, Madras, wherein it was admitted that part of the provident fund amount due to S.Lingaiah had been adjusted against his liabilities with the bank and that the balance amount had not been paid, but was retained by the bank itself. Therefore, the statement in the counter to the effect that the provident fund amount was paid to the petitioner in W.P.No.7990 of 1998 on 21.11.1994 was factually incorrect. Even now, the learned Senior Counsel representing the bank is not in a position to state as to whether the provident fund amounts due to S.Lingaiah were, in fact, paid to his widow or not. Once such payments were not made, the question of repayment of the same by the petitioner in W.P.No.7990 of 1998 would not arise. Similar is the case with the widow of Abdul Gaffoor, the petitioner in W.P.No.23215 of 2005. As there was no effective communication of the pension scheme to the petitioner in the said writ petition, the bank cannot now make out a case that she failed to repay the provident fund amount paid to her after the expiry of her husband. All the more so, if her application for grant of the pension was rejected even before the expiry of the time stipulated for such repayment. The issue of the effective communication of the scheme now stands settled by the judgment of the Division Bench of the Madras High Court in Writ Appeal No.29 of 1999, which finds reference in the order of the learned Single Judge in W.P.No.23215 of 2005. It is stated before us that this judgment had attained finality and was, in fact, implemented by the bank. The findings therein as to proper communication of the scheme and the consequences that would follow from such non- communication would therefore have be extended to the petitioners in these two writ petitions also. As the bank chose to reject the applications submitted by the writ petitioners for grant of family pension by way of cryptic orders without proper application of mind and as the learned Senior Counsel now states that the bank would consider the matters afresh keeping in mind all the relevant aspects, we are inclined to afford an opportunity to the bank to set right its wrongs. The orders passed in W.P.Nos.7990 of 1998 and 23215 of 2005 along with the rejection orders passed by the bank on various dates rejecting the applications of both the writ petitioners for grant of family pension are accordingly set aside. The matters are remitted back to the bank for consideration afresh in the light of our observations supra and keeping in mind the judgment of the Division Bench of the Madras High Court referred supra. The bank shall undertake this exercise with conscious appreciation of the fact that the subject pension scheme is also to benefit the widows/legal representatives of the retired/deceased employees, who rendered long and loyal service to it. Such a scheme necessarily has to be implemented by the bank with this objective in mind and with a consequent liberality in its approach. The bank shall undertake this exercise in the right spirit, giving due opportunity to the Writ Petitioners and complete the same as expeditiously as possible, and in any event not later than three (3) months from the date of receipt of a copy of this Judgment. The Writ Appeals are disposed of accordingly. In the light of this final order, no orders are required in WAMP No.1572 of 2011 in W.A.No.1756 of 2005 and WAMP No.103 of 2011 in W.A.No.708 of 2009, which shall stand dismissed. Parties shall bear their own costs. __________________________ GHULAM MOHAMMED, J ____________________ SANJAY KUMAR, J 08.09.2011 Gsn.