IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 OP.No. 21721 of 2002(J) ----------------------- PETITIONER(S): --------------- 1. ALL INDIA BANK VOLUNTARY RETIRED STAFF ASSOCIATION, REG.NO.ER 130/2002, REPRESENTED BY ITS GENERAL SECRETARY, P.C. RAJENDRAN, V.R.S. BHAVAN, SUB JAIL ROAD, ALUVA. 2. R. RADHAKRISHNAN, S/O. V. RAGHAVAN PILLAI, "VAISHNAVAM", 49/1208 A, INDIRA ROAD, EDAPPALLY, KOCHI-682 024. 3. P.G. NARAYANA PANICKER, PALATHITTAYIL HOUSE, P.O. CHIRAYAKOM, VIA. THAKAZHY, ALAPPUZHA DISTRICT, PIN - 688 562. 4. BABU. P.P., SIMI NIVAS, NORTH ARYAD P.O., ALAPPUZHA-688 542. 5. R. DHANALAKSHMY, 3/372, CHEMBUMUKKU, B.M.C. P.O., KOCHI-21. 6. K. USHPAVALLY, C-6, T.C.C. COLONY, UDYOGAMANDAL, ERNAKULAM. 7. N.K. NATHAN, PULIMOOTTIL HOUSE, EAST STREET, MULLAKKAL, ALAPPUZHA - 688 010. 8. C. KRISHNAKUMARI, "SAROJ" SANATHANAM WARD, ALAPPUZHA-688 001. 9. M.R. CHANDRASEKHARAN PILLAI, CHANDRA MANGALAM, KALAVOOR P.O., ALAPPUZHA - 688 522. 10. ALICE MARY, CHIRAYATH HOUSE, 3/856, CHEMBUMUKKU, K.K. ROAD, THRIKKAKARA P.O., KOCHI-21. 11. A. VENKATESH, SREEKARA MADOM, PALACE WARD, A.N. PURAM, ALAPPUZHA. BY ADV. SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. THE CHAIRMAN AND MANAGING DIRECTOR, INDIAN BANK, HEAD OFFICE, CHENNAI. 2. BOARD OF DIRECTORS, C/O. INDIAN BANK, HEAD OFFICE, CHENNAI. 3. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE (BANKING), NORTH BLOCK, NEW DELHI. ADV. SRI.P.K.RAMKUMAR, ADDL.CGSC FOR 3 SRI.S.EASWARAN FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 21721/2002. ----------------------------------------------------------------- EXT.P1 TRUE COPY OF RELEVANT EXTRACT OF REGULATIONS OF INDIAN BANK. EXT.P2 INDIAN BANK EMPLOYEES' VOLUNTARY RETIREMENT SCHEME, 2000. EXT.P3 RELIEVING ORDER DT. 30-12-2000. EXT.P4 CALCULATION SHEET ISSUED BY INDIAN BANK. EXT.P5 REPRESENTATION SUBMITTED TO THE INDIAN BANK. EXT.P6 LETTER DT. 20-3-2002. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 21721 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 27th March, 2009. J U D G M E N T The petitioners are employees who voluntarily retired from the service of the Indian Bank by availing of the benefits of Ext. P2 scheme, namely, Indian Bank Voluntary Retirement Scheme, 2000, in the years 2000 and 2001 but after 1-9-2000. Under that scheme, apart from the ex-gratia benefits offered, the persons retiring voluntarily under the scheme would be entitled to the following three benefits: “1. Gratuity as per Gratuity Act/Service Gratuity as the case may be. 2. Pension (including commuted value of pension) as per Indian Bank (Employees') Pension Regulations 1995/Bank's contribution towards provident fund as per rules. 3. Leave encashment as per rules.” Ext. P1 is the extract from the Indian Bank (Employees) Pension Regulations, 1995. In clause 29(5) thereof , the qualifying service of an employee retired voluntarily under that Regulation shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty-three years and it does not take him beyond the date of superannuation. According to the petitioners, the petitioners are also entitled to have the same benefit in so far as the pension regulations as a whole have been made applicable to those persons who voluntarily retire under the voluntary retirement scheme. However, for the purpose of calculating their pension, weightage of five years provided for in Regulation 29(5) was not given to them. They filed a representation, Ext. P5, before the Bank which was rejected by Ext. P6, order holding that the addition of five years O.P.. No. 21721/2002 -: 2 :- of qualifying service would be applicable only to those who retire voluntarily under Regulation 29 and not to those who retire voluntarily under the scheme which is not contemplated by the Rules. The petitioners are challenging Ext. P6 order seeking the following reliefs: “i) Issue a writ of mandamus or other appropriate writ, order or direction directing the respondent Bank to disburse pension and other benefits extending the benefit of increase of qualifying service by 5 years as provided under Rule of Ext. P1 Regulations to the petitioners. ii) issue a writ of certiorari or other appropriate writ, order or direction quashing Ext. P4 and P6 and similar orders issued in respect of all the petitioners. iii) declare that the voluntary retires like the petitioners under Ext. P2 scheme is entitled to get their pension fixed and paid by increasing their qualifying service by 5 years as provided under Rule 29(5) of the pension Regulations of Ext. P1.” 2. A counter affidavit has been filed supporting the impugned order. According to respondents, the petitioners are not persons who have retired voluntarily under Regulation 29, to whom only the benefit under Regulation 29(5) is applicable. The petitioners being employees who retired voluntarily under a scheme not envisaged in the Rules, they are not to be treated as persons retired voluntarily under Regulation 29(5) and therefore they are not entitled to the benefits of Regulation 29(5), is the contention raised by the learned counsel for the Bank. According to him, the petitioner is only entitled to pension as calculated for a person who retires on superannuation as per the Rules. He also submits that Regulation 28 of the Pension Regulations has been amended with effect from 1-9-2000, adding a proviso, as as a result of which persons who retire voluntarily under the scheme is taken out of the purview of Regulation 29. He relies on the decision of the Supreme Court in Bank of Baroda & Others v. Ganpat Singh Deora, CDJ 2008 S C 2115, wherein while upholding O.P.. No. 21721/2002 -: 3 :- similar amendment to the Regulation of Baroda Bank, which is in pari materia with that of Indian Bank Regulations, the Supreme Court held that persons voluntarily retired under a scheme is not eligible for the benefit of Regulation 29 and sub clause (5) thereof. 3. I have considered the rival contentions in detail. 4. The relevant provision of Regulation 29(5) reads thus: “29. Pension on Voluntary Retirement:- (1) On or after the first day of November, 1993, at any time after an employee has completed twenty years of qualifying service he may, by giving notice of not less than three months in writing to the appointing authority retire from service; xx xx xx (5) The qualifying service of an employee retiring voluntarily under this regulation shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty- three years and it does not take him beyond the date of superannuation.” (underlining supplied) The argument of the petitioners is that the pension regulations envisage only three types of pension namely, (1) superannuation pension, (2) pension on voluntary retirement and (3) invalid pension. In so far as the petitioners are not eligible for superannuation pension and invalid pension, the only other class of pensioners to which they can be fitted into is persons who have retired voluntarily. According to them, the case of persons who retire voluntarily is covered by Regulation 29 and notwithstanding the fact that Regulation 29 speaks about persons who retired from service after completing 20 years giving three months' notice, the petitioners should be construed as persons voluntarily retired as per Regulation 29. 5. I am unable to countenance that contention because of the O.P.. No. 21721/2002 -: 4 :- amendment to regulation 28, which reads thus: “28. Superannuation Pension: Superannuation Pension shall be granted to an employee who has retired on his attaining the age of Superannuation specified in the Service Regulations or settlements. Provided that, with effect from 1st day of September, 2000, Pension shall also be granted to an employee who opts to retire before attaining the age of Superannuation, but after rendering service for a minimum period of 15 years in terms of any scheme that may be framed for such purpose by the Board with the approval of the Government.” Therefore, the petitioners who have retired voluntarily under a scheme have to be treated as a fourth type of pensioners who would be eligible only for pension calculated as applicable to persons who have retired on superannuation. In that view of the matter, the petitioners cannot claim benefits as persons who retired voluntarily under Regulation 29 in so far as Regulation 29(5) specifically makes the provision applicable to only persons who retired voluntarily under Regulation 29(1). This is rightly so, since persons who retires voluntarily under scheme is entitled more benefits than those who retire voluntarily under Regulation 29(1) get. This position has been sufficiently clear by the Supreme Court in the decision of Ganpat Singh Deora's case (supra), in which the Supreme Court has held thus in paragraphs 16 to 21: “16. The BOBEVRS-2001 itself does not give any indication, other than what has been stated in paragraph 2, as to which of the employees of the appellant-Bank would be entitled to opt for voluntary retirement. It only mentions that all permanent employees of the bank, who as on 31st March, 2001, would have completed/would be completing minimum 15 years of service or those who have completed/would be completing 40 years of age, would be eligible to apply for voluntary retirement under the BOBEVRS-2001. 17. The conditions relating to completing 15 years of service for being eligible to apply for BOBEVRS-2001 are special to the Scheme as also to the case of those employees who wished to apply for voluntary retirement under the aforesaid Scheme, if they O.P.. No. 21721/2002 -: 5 :- had completed or would be completing 40 years of age. The latter condition appears to have been incorporated in view of the provisions of Regulations 14 and 32 of the Pension Regulations, 1995, to enable employees who had completed 10 years of service to also become eligible to apply for premature retirement under the Pension Regulations, 1995. 18. However, we are inclined to agree with Ms. Bhati that Regulation 29 does not contemplate voluntary retirement under the Voluntary Retirement Scheme and applies only to such employees who themselves wish to retire de hors any Scheme of Voluntary Retirement, after having completed 15 years of qualifying service for the said purpose. There is a distinct difference between the two situations and Regulation 29 would not cover the case of an employee opting to retire on the basis of a Voluntary Retirement Scheme. 19. Furthermore, Regulation 2 of the Voluntary Retirement Scheme, 2001, of the appellant-Bank merely prescribes a period of qualifying service for an employee to be eligible to apply for voluntary retirement. On the other hand, Regulations 14 and 29 of the Pension Regulations, 1995, relate to the period of qualifying service for pension under the said Regulations, in two different situations. While Regulation 14 provides that in order to be eligible for pension an employee would have to render a minimum of 10 years service, Regulation 29 is applicable to the employees choosing to retire from service pre-maturely, and in their case the period of qualifying service would be 15 years. The facts of this case, however, do not attract the provisions of Regulation 29 since the respondent accepted the offer of voluntary retirement under the Scheme framed by the Bank and not on his own volition de hors any Scheme of Voluntary retirement. In such a case, Regulation 14 read with Regulation 32 providing for premature retirement would not also apply to the case of the respondent. While Regulation 2 of the BOBEVRS-2001 speaks of eligibility for applying under the Scheme, Regulation 14 of the Pension Regulations, 1995, contemplates a situation whereunder an employee would be eligible for premature pension. The two provisions are for two different purposes and for two different situations. However, Regulation 28 of the Pension Regulations, 1995, after amendment made provision for situations similar to the one in the instant case. In the absence of any particular provision for payment of pension to those who opted for BOBEVRS-2001 other than Regulation 11(ii) of the Scheme, we are once again left to fall back on the Pension Regulations, 1995, and the amended provisions of Regulation 28 which brings within the scope of Superannuation Pension employees who opted for the Voluntary Retirement Scheme, which will be clear from the Explanatory Memorandum. However, the period of qualifying service has been retained as 15 years for those opting for BOBEVRS-2001 and is treated differently from premature retirement where the minimum period of qualifying service has been fixed at 10 years in keeping O.P.. No. 21721/2002 -: 6 :- with Regulation 14 of the Pension Regulations, 1995. 20. We are, therefore, of the view that not having completed the required length of qualifying service as provided under Regulation 28 of the 1995 Regulations, the respondent was not eligible for pension under the Pension Regulations, 1995, of the appellant Bank. 21. In the facts of the case and the terms of the BOBEVRS-2001 and the Pension Regulations, 1995, we are unable to agree with the interpretation of the BOBEVRS-2001 Scheme and the Pension Regulations, 1995, as has been done by the learned Single Judge and the Division Bench of the High Court and We, therefore, allow the appeal without costs. Consequently, the orders passed by the Division Bench of the High Court and impugned in this appeal in D.B. Special Appeal (W) No. 481 of 2005 filed by the respondent against the dismissal of his Writ Petition CWP No. 6525 of 2005, are set aside. Similarly, the Writ Petition filed by the appellant- Bank is allowed along with this Appeal.” (Underlining supplied) Therefore, in view of the amended Regulation read with the said Supreme Court decision, it is abundantly clear that the petitioners are not entitled to the benefits of Regulation 29(5). Therefore, the original petition is without any merit and accordingly, the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/