Case: Assistant General Manager Vs. Radhey Shyam Pandey

had opted for voluntary retirement under VRS 2000 are entitled to addition of five years of notional service in calculating the length of service for the purpose of the said Scheme as per Regulation 29(5) of the Pension Regulations, 1995?" 42. To examine the question posed, the Court thought it appropriate to examine the contract and the circumstances in which it was made in order to see whether or not from the nature of it, the parties must have made their bargain on the footing that a particular thing or state of things would continue to exist. 43. I have already referred to Clause 6 of the Scheme, which deals with other benefits. Sub-clause (3) of Clause 6 stipulates that an employee would be entitled to get pension in terms of the State Bank of India Employees Pension Fund Rules on the relevant date. The High Courts have placed reliance on the second part of Rule 22(i)(a). Similar contention has been advanced before us. Per contra, Mr. Rohtagi would submit that it is Rule 22(i)(c) which would be applicable. I find force in the said submission, for Rule 22(i)(a) deals with the concept of retirement and 22(i)(c) deals with the concept of retirement on request. In K. Mohandas (supra), the Rule was read into the Scheme in the absence of any other postulate. Same is the case here and, therefore, I read the Rule to the Scheme. Interpreting the 1995 Regulations, this Court had said that it will apply in entirety and, therefore, benefit was extended in Rule 29(5). Be it noted, in the said Regulation, it was categorically provided that pensionary benefits should be available to a person seeking voluntary retirement if he has put in 20 years of service. Same is the provision here, that is, 20 years of service irrespective of the age. As some doubts had arose, a clarificatory circular was issued on 10.1.2001. Relevant part has already been reproduced earlier. It has been clearly clarified that as per existing Rules, employees who have not completed 20 years of Pensionable Service are not eligible for pension. This clarification is in consonance with the Rules. The amendment facet which has come into existence afterwards is absolutely inconsequential as it deals with different facets of Rule 22(i)(a). In this context, reference to circular dated 11.1.2001 is absolutely necessitous. The relevant part reads as follows: "In this connection, queries have been raised whether an employee who submits his application for retirement under SBIVRS can withdraw such an application subsequently. Corporate Centre have examined the issue and have advised that the scheme is purely voluntary. The role of the employee is active. It is his conscious decision and there will be no reason for his withdrawal of application at a later date. However, there could be few, yet genuine cases where the employees would like to withdraw the application submitted under the scheme for various reasons. It has, therefore, been decided that the employee who has submitted an application for retirement under SBIVRS may be permitted to withdraw the application on or before 15th February, 2001. For this purpose, the employee will have to make a written request which must reach the Branch Manager/head of the Department/Head of the Unit i.e. authority to whom the application for retirement under SBIVRS has been submitted, on or before 15.02.2001. The authority receiving the applications for withdrawal must forward it to the competent authority immediately but not later than the following day and obtain a confirmation to that effect from the competent authority." 44. Both the circulars were almost simultaneous and both were within the knowledge of the employees and if an employee desired to withdraw, he could have done so as time was there till 15.2.2001. None of the Respondents chose to withdraw. In the absence of withdrawal, there cannot be any trace of doubt that the employees would be governed by the rules existing at the time of floating of the Scheme which has to be read into the Scheme, for the Scheme clearly stipulates that the employees availing the benefit of the Scheme would be entitled to pension as per the Pension Rules. I have already scanned the anatomy of the Rules and I notice that there is a categorical distinction between retirement and voluntary retirement. In all the impugned judgments, as I find, the High Courts have not appreciated the said distinction and applied the Rule pertaining to normal retirement. If the decisions in K. Mohandas (supra) and Ganpat Singh Deora (supra) are read carefully, it will go a long way to show that a voluntary retirement and retirement are distinguishable, if the Rule/Regulations/Scheme distinguishes. In the case at hand, it is clear as day that the Rule carves out two categories of retirement, one, normal retirement on superannuation and second, retirement on request i.e. voluntary retirement, ordinarily called the golden handshake and, therefore, the scheme was floated. In the instant case, as I perceive, the Scheme which is more beneficial was provided. It had the pension and the ex-gratia. However, it had a condition as enumerated in the Rule that if an employee had not completed 20 years of service, as per Rule 22(i)(c), he would not get pension. In K. Mohandas (supra), if an employee has completed 20 years of service, apart from pensionary benefits, he would also get the benefit under Regulation 29(5) as stipulated therein. To elaborate, unless one is not entitled to pension, the other additional benefits pertaining to pension do not arise. I may hasten to add that I am only concerned with the concept of voluntary retirement under the Rules and the Scheme and as I find, the Rule cannot be interpreted as employees would be entitled to pension. That is neither the intention nor the spirit of the Rule, which has to be read into the Scheme as a part of it. 45. I have been apprised with regard to the relevant details of the Respondents herein. It is as follows:

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Analysing the said Rule, the High Court opined that the employees would be covered under second part of(a) of Rule 22(i) which was in existence on the date when thesubmitted his request for voluntary retirement. That apart, the High Court has also held even after amendment on 09.03.2001, by which another clause has been added, that is, third part of(a), would not affect the claim of the employees for pension as he is entitled to pension in the second part of Rule 22(i) (a). Here, as I find, the High Court has opined as thewas in service of Bank on 1.11.1993 and had completed 10 years of pensionable service and attained the age of 58 years, he would be entitled to pension. There is no doubt that the Government of India, on 22.5.98, advised all the banks that the age of retirement would be 60 years. Accordingly, the Board of SBI, on 22.5.1998 itself, passed a resolution whereby it fixed the age of retirement 60 years w.e.f. that date. As a consequence ofof age of retirement, the rules were amended and third part of Rule 22(i)(a) was added for all employees who were in service of the bank on or before 22.5.98 and had put in 10 years of pensionable service to be eligible for pension benefit provided that they have attained the age of 60 years. As has been stated earlier, thehad not retired on attaining the age of superannuation but sought voluntary retirement under the SBI VRS. The Bank has placed reliance on the clarificatory circular issued by the Deputy Managing Director on 10/15.1.2001, which lays a postulate that employees who have not completed 20 years of pensionable service are not eligible for pension.Keeping in view the aforesaid pronouncements, I shall advert to the Regulations and the Scheme in question. From the aforesaid two decisions, it is graphically clear that the Court has read into the scheme, Regulations governing the pension. In the case at hand, as I find, the Regulation 22(i)(a) refers to three categories; twenty years of pensionable service and attaining age of fifty years, or as on 1.11.1993 an employee in service has completed ten years of pensionable service provided he has attained the age ofyears, or an employee to be in service of the Bank on or after 22.05.1998 and has completed ten years of pensionable service provided that he has attained the age of sixty years. The High Court has held that the employees would be covered under second part of Clause (a). I have already dealt with(b). Mr. Rohtagi has heavily relied on Clause 22(i)(c). It really requires close scrutiny. It stipulates that a member shall be entitled to pension on completion of 20 years of pensionable service irrespective of the age he has attained if the retirement is at his own request in writing. Thus, there is a distinction between a normal retirement and a voluntary retirement. A voluntary retirement stands in a distinction to retirement and also retirement which comes under Clause 22(i)(b) which dwells on sanction of competent authority and member being incapacitated. A scheme has come into existence because of certain objectives. The objectives of the scheme were to have a balancedproviding for mobility, training, development of skills and succession plans forpositions, to provide for an exit for employees who have an honest feeling that they should now retire and take rest or that there are better opportunities elsewhere, to have overall reduction in the existing strength of the employees and to increase productivity and profitability. Clause 3 of the Scheme provides eligibility criterion. It reads asScheme will be open to all permanent employees of the Bank except those specifically mentioned aswho have put in 15 years of service or have completed 40 years of age as on 31st December 2000. Age will be reckoned on the basis of the date of birth as entered in the service4 deals with ineligibility which need not be referred to. Clause 5 deals with amount ofClause 6 deals with other benefits which I have already referred to. Clause 6(c) clearly stipulates that an employee seeking voluntary retirement would have the benefit of pension in terms of State Bank of IndiaPension Fund Rules on the relevant date.In this context, what I have noticed in the case of K. Mohandas (supra) that the Court has referred to the Scheme to understand the true meaning of several clauses; formulation of the contractual scheme where reference has been made to Pension Regulations 1995 of the Banks which were in appeal before this Court and the special salient features of the scheme which stipulated that an employee whose application for voluntary retirement is accepted and relieved from the Bank shall be eligible for contributory provident fund or own contribution of provident fund and pension in terms of the employees Pension Regulations 1995, in case of those who have opted for pension and have put in 20 completed years of service in the Bank. The Court also referred to Regulations 28 and 29, which deals with superannuation pension and the pension on voluntary retirement respectively. The Court also took note of the fact that all employees who have completed 20 years of service and the amendment in Regulation 28, which was carried out in 2002 with retrospective effect from 1.9.2000 and the amendment inserted a proviso which provided that pension shall also be granted to an employee who opts to retire before attaining the age of superannuation but after having served for a minimum period of 13 years in terms of any scheme that may be framed for the purpose by theBoard with the concurrence of the Government. The Court took note of the fact that the benefits provided under Regulation 29 were not found to be attractive by the employees and, therefore, the necessity arose for floating a special scheme i.e.The grievance of the optees in the case was that they were given the retiral benefits by the00 save and except the benefit of pension under Regulation 29(5). Regulation 29(5) in the case of those banks is asqualifying 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 exceedOne of the contentions canvassed by the Bank was that the Regulation 29 does not cover the persons retired underwhich is dehors the statutory scheme for voluntary retirement. The counter submission on behalf of the employees was that by making provisions in the scheme that the optees would be eligible for the benefits in addition to theamount, inter alia, pension as per the Pension Regulations, 1995, the employees understood that what was contemplated was pension under Regulation 29 and, therefore, any ambiguity in VRS 2000 ought to have been construed and harmonized with the intention of the parties; Regulation 29 was the onlyunder the Pension Regulations, 1995, applicable to the voluntary retirement and, therefore, Regulation 29, ipso facto, became the terms of the contract; and that each and every paragraph of Regulation 29 can be made applicable to an opteeof more than 20 years of service without coming into conflict with any provision of the scheme; the notice period of three months in Regulation 29(3) can be waived at the discretion of the banks.To examine the question posed, the Court thought it appropriate to examine the contract and the circumstances in which it was made in order to see whether or not from the nature of it, the parties must have made their bargain on the footing that a particular thing or state of things would continue to exist.I have already referred to Clause 6 of the Scheme, which deals withse (3) of Clause 6 stipulates that an employee would be entitled to get pension in terms of the State Bank of India EmployeesPension Fund Rules on the relevant date.The High Courts have placed reliance on the second part of Rule 22(i)(a). Similar contention has been advanced before us. Per contra, Mr. Rohtagi would submit that it is Rule 22(i)(c) which would be applicable. I find force in the said submission, for Rule 22(i)(a) deals with the concept of retirement and 22(i)(c) deals with the concept of retirement on request. In K. Mohandas (supra), the Rule was read into the Scheme in the absence of any other postulate. Same is the case here and, therefore, I read the Rule to the Scheme. Interpreting the 1995 Regulations, this Court had said that it will apply in entirety and, therefore, benefit was extended in Rule 29(5). Be it noted, in the said Regulation, it was categorically provided that pensionary benefits should be available to a person seeking voluntary retirement if he has put in 20 years of service. Same is the provision here, that is, 20 years of service irrespective of the age. As some doubts had arose, a clarificatory circular was issued on 10.1.2001. Relevant part has already been reproduced earlier. It has been clearly clarified that as per existing Rules, employees who have not completed 20 years of Pensionable Service are not eligible for pension. This clarification is in consonance with the Rules. The amendment facet which has come into existence afterwards is absolutely inconsequential as it deals with different facets of Rule 22(i)(a). In this context, reference to circular dated 11.1.2001 is absolutely necessitous.Both the circulars were almost simultaneous and both were within the knowledge of the employees and if an employee desired to withdraw, he could have done so as time was there till 15.2.2001. None of thechose to withdraw. In the absence of withdrawal, there cannot be any trace of doubt that the employees would be governed by the rules existing at the time of floating of the Scheme which has to be read into the Scheme, for the Scheme clearly stipulates that the employees availing the benefit of the Scheme would be entitled to pension as per the Pension Rules. I have already scanned the anatomy of the Rules and I notice that there is a categorical distinction between. In all the impugned judgments, as I find, the High Courts have not appreciated the said distinction and applied the Rule pertaining to normal retirement. If the decisions in K. Mohandas (supra) and Ganpat Singh Deora (supra) are read carefully, it will go a long way to show that a voluntary retirement and retirement are distinguishable, if the Rule/Regulations/Schemethe case at hand, it is clear as day that the Rule carves out two categories of retirement, one, normal retirement on superannuation and second, retirement on request i.e. voluntary retirement, ordinarily called the golden handshake and, therefore, the scheme was floated. In the instant case, as I perceive, the Scheme which is more beneficial was provided. It had the pension and theHowever, it had a condition as enumerated in the Rule that if an employee had not completed 20 years of service, as per Rule 22(i)(c), he would not get pension. In K. Mohandas (supra), if an employee has completed 20 years of service, apart from pensionary benefits, he would also get the benefit under Regulation 29(5) as stipulated therein. To elaborate, unless one is not entitled to pension, the other additional benefits pertaining to pension do not arise. I may hasten to add that I am only concerned with the concept of voluntary retirement under the Rules and the Scheme and as I find, the Rule cannot be interpreted as employees would be entitled to pension. That is neither the intention nor the spirit of the Rule, which has to be read into the Scheme as a part of it.