Bank Of Baroda & Ors vs Ganpat Singh Deora

Regulations, 1995, (hereinafter referred to as 2

"the Pension Regulations, 1995") was to be

provided to employees who opted for the VRS

Scheme. The said Scheme provided that in order

to be eligible to opt for the Scheme all

permanent employees of the Bank working in

India or India-based Officers working abroad,

who as on 31.3.2001 would have completed/

would be completing minimum 15 years of

service OR who would have completed/would be

completing 40 years of age would be eligible

to apply for voluntary retirement under the

BOBEVRS-2001.

3. Claiming to be eligible under the Scheme,

having completed 40 years of age, the

respondent applied for voluntary retirement

under the said Scheme. At the relevant point

of time the respondent had completed only 13

years of service in the appellant Bank.

However, the respondent's application for

voluntary retirement was accepted by the Bank

and he was paid all retiral benefits 3

applicable to him under the Scheme, but his

request for grant of pension in addition to

the other retiral benefits was not acceded to

by the Bank. After retiring from service on

the acceptance of his application for

voluntary retirement, the respondent filed an

application before the Central Labour

Commissioner, Ajmer, on 24.10.2001 claiming

pension with effect from 1.4.2001. The

appellant Bank opposed the claim of pension

contending that in terms of Regulations 14, 28

and 29 of the Pension Regulations, 1995, the

respondent was not entitled to pension. As

the reconciliation process failed, the dispute

as to whether the refusal of the Bank to

provide pensionary benefits to the respondent

after voluntary retirement, was legal and

justified, was referred to the Industrial

Disputes Tribunal, Jodhpur.

4. On 21.10.2003 when the matter was fixed before

the Tribunal, the Bank went unrepresented and 4

subsequently the Tribunal by its Award dated

23.10.2003 allowed the respondent's claim and

directed the appellant to pay the respondent

pension according to the Pension Regulations,

1995, with effect from 1.4.2001.

5. It appears that before the Tribunal passed its

award on 23rd October, 2003, the Government of

India made certain amendments to Regulation 28

of the Pension Regulations, 1995, which were

adopted by the Board of Directors of the

appellant-Bank in its meeting held on 17th

March, 2003. The said amended Regulation was

published in the Gazette of India on 2nd

January, 2004 and provides as follows:-

"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 5

be framed for such purpose by the Board with the approval of the Government."

Regulation 28 as it stood prior to the aforesaid

amendment is as follows:-

"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."

6. Aggrieved by the Award of the Tribunal, the

appellant-Bank filed a Writ Petition before

the High Court on 24th January, 2004, and the

same was registered as S.B.C.W. No.5766 of

2004. The respondent-employee also filed a

Writ Petition before the High Court in 2005

for implementation of the Award passed by the

Industrial Tribunal and the same was

registered as C.W.P. No.6525 of 2005. The

Writ Petition filed by the respondent was

dismissed by the learned Single Judge of the

High Court on 7th November, 2005, on the

ground that the Industrial Disputes Act is a 6

Code by itself and contains provisions for

enforcement of the Award and the respondent-

employee was, therefore, required to pursue

his remedy accordingly. Aggrieved by the

order of the learned Single Judge, the

respondent-workman filed Special Appeal, being

No. 481 of 2005. The Division Bench of the

High Court took up both the Writ Appeal and

the Writ Petition filed by the appellant-Bank

for hearing and by a common judgment dated

20th December, 2006, dismissed the writ

petition filed by the appellant-Bank and

allowed the Writ Appeal filed by the

respondent-workman and directed release of

pensionary benefits to the respondent within a

period of two months along with interest @8%

on arrears of pensionary benefits from the

date of making of the Award. The said decision

of the Division Bench of the Rajasthan High

Court at Jodhpur is the subject matter of

challenge in the present appeal.

7

7. Mr. Pramod B. Agarwala, learned counsel

appearing for the appellant-Bank, submitted

that under Regulation 29 of the BOBEVRS-2001,

which provides for pension on voluntary

retirement, the petitioner was not eligible to

be considered for availing of the Voluntary

Retirement Scheme. Under the said Regulation

only an employee who had completed 20 years of

service on or after the first day of November,

1993, or by giving notice of not less than

three months in writing to the Appointing

Authority, could retire from service. Mr.

Agarwala, however, also pointed out that by

the amendment of Regulation 28 referred to

hereinabove, the position was altered and it

was provided that with effect from 1st

September, 2000, pension would also be granted

to an employee who opted 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 8

approval of the Government. In other words,

once the Voluntary Retirement Scheme was

introduced, an employee having rendered

service for a minimum period of 15 years would

also be entitled to apply for Superannuation

pension.

8. However, Mr. Agarwala submitted that there was

no dispute with regard to the fact that on

31st March, 2001, which was indicated as the

cut-off date in the Voluntary Retirement

Scheme of the Bank, the respondent had

completed about 13 years and 3 months of

service. Mr. Agarwala submitted that while

applying for voluntary retirement, the

respondent also claimed the benefit of the

Pension Regulations, 1995, paragraph 14

whereof deals with qualifying service for

receiving pension. Paragraph 14 provides that

subject to the other conditions contained in

the Regulations an employee who had rendered

minimum of 10 years of service in the Bank on 9

the date of his retirement or the date on

which he is deemed to have retired, would

qualify for pension. Mr. Agarwala submitted

that apart from Regulation 14 which deals with

qualifying service for pension simplicitor,

Paragraph 29 is a specific provision providing

for pension on voluntary retirement, which was

applicable to the case of the respondent. Mr.

Agarwala submitted that Regulation 29, as

mentioned hereinabove, after amendment of

Regulation 28, empowers an employee, who had

completed 15 years of qualifying service, to

retire from service by giving notice of not

less than 3 months in writing to the

Appointing Authority. Mr. Agarwala reiterated

that the important aspect of the aforesaid

Regulation is that an employee must have

completed 15 years of service on or after 1st

of November, 1993, in order to qualify for

such pension.

10

9. Mr. Agarwala submitted that by no stretch of

imagination would the general condition set

out in paragraph 14 of the Pension

Regulations, 1995, apply in a case of

voluntary retirement, when a specific

provision had been made in the Regulations for

the same.

10. In support of his aforesaid submissions that

the cut-off date indicated in the voluntary

retirement scheme was final, Mr. Agarwala

relied on the decision of this Court in Vice

Chairman & Managing Director A.P. SIDC Ltd.

vs. R. Varaprasad and others, [2003 (XI) SCC

572], where in a similar case involving

voluntary retirement, this Court held that

when the employees opted for VRS on their own

without any compulsion knowing fully well

about the Scheme, guidelines and circulars

governing the same, it was not open to them to

make any claim contrary to the terms accepted.

It was also observed that the Voluntary

Retirement Scheme is a matter of contract 11

between the Corporation and the employees and

it was not for the Court to rewrite the terms

of the contract which had been arrived at by

the contracting parties.

11. Mr. Agarwala submitted that this case was a

fit case for interference by this Court since

both the Tribunal as well as the High Court

appear not to have considered or taken note of

the fact that the respondent was not eligible

for pension as he had not completed 15 years

of qualifying service and it was not open

either to the Tribunal or the High Court to

apply a different standard for the writ

petitioners, and to treat them as employees

coming under the general provisions as

contained in paragraph 14 of the Pension

Regulations, 1995.

12. Mr. Agarwala's submissions were strongly

opposed by Ms. Aishwarya Bhati, learned

advocate appearing for the respondent. She 12

emphatically contended that in a case

involving voluntary retirement Regulation 29

would not apply and that, in fact, Regulation

14 would be relevant. Ms. Bhati urged that

Regulation 29 of the Pension Regulations dealt

not with voluntary retirement under a Scheme

but with cases of premature retirement which

would be quite clear from the wording thereof.

Ms. Bhati urged that Sub-regulation (1) of

Regulation 29 provides for a situation where

an employee wishes to retire from service even

in the absence of a Voluntary Retirement

Scheme. The Regulation contemplates that in

such a case the employee is not only required

to complete 15 years of service but is also

required to give notice of not less than 3

months in writing to the Appointing Authority,

and, thereafter, retire from service.

13. Ms. Bhati also urged that the terms and

conditions of the Voluntary Retirement Scheme

were quite different from the voluntary 13

retirement contemplated under Regulation 29.

Learned counsel urged that the impugned

judgment of the High Court had been passed on

a correct interpretation of the Regulations

and did not warrant any interference.

14. Having carefully considered the submissions

made on behalf of the respective parties, it

appears to us that Ms. Bhati's submissions

have substance.

15. The only question which is required to be

determined in the instant case is whether

Regulation 29 of the Pension Regulations,

1995, could have been applied in the case of

the respondent or whether Regulation 14 has

been rightly applied both by the Tribunal and

the High Court.

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 14

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 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 15

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 16

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, 17

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 18

qualifying service has been fixed at 10 years

in keeping 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) 19

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.

_______________J.

(ALTAMAS KABIR)

_______________J.

(MARKANDEY KATJU) New Delhi Dated:18.12.2008