IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7417   OF 2008

(@ SPECIAL LEAVE PETITION (C) NO.7764  of  2007)

Bank of Baroda & Ors. …Appellants

Vs.

Ganpat Singh Deora   …Respondent

J U D G M E N T  

ALTAMAS KABIR,J.

1. Leave granted.

2. The respondent herein was an employee of the

Bank  of  Baroda,  the  appellant  herein.   On

14th December, 2000, the Bank introduced the

‘Bank of Baroda Employees Voluntary Retirement

Scheme-2001’  (hereinafter  referred  to  as

“BOBEVRS-2001”). Under the said Scheme, along

with terminal benefits pension in terms of the

Bank  of  Baroda  (Employees  Pension)

Regulations, 1995, (hereinafter referred to as

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“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

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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

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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

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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

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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.

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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,

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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

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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)

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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

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