Bank of India Vs K.Mohandas .

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1942 OF 2009 (Arising out of S.L.P. © No. 22704/2005)

Bank of India & Anr. .. Appellants

Versus K. Mohandas & Ors. ..Respondents

WITH

CIVIL APPEAL NO. 1943 OF 2009 (Arising out of S.L.P. © No. 18215/2006)

N.U. Kurup & Ors. .. Appellants Versus

Union Bank of India & Ors. ..Respondents

WITH

CIVIL APPEAL NO. 1944 OF 2009 (Arising out of S.L.P. © No. 19463/2007)

Punjab & Sind Bank & Ors. .. Appellants

Versus

Baldev Singh .. Respondent

WITH

1

CIVIL APPEAL NO. 1945 OF 2009 (Arising out of S.L.P. © No. 14406/2007)

Punjab & Sind Bank & Ors. .. Appellants

Versus

Baldev Singh ..Respondent

WITH

CIVIL APPEAL NO. 1946 OF 2009 (Arising out of S.L.P. © No. 8772/2008)

Sr.Regional Manager, Punjab National Bank .. Appellant

Versus C.J. Singh & Ors. ..Respondents

WITH

CIVIL APPEAL NO. 1947 OF 2009 (Arising out of S.L.P. © No. 8902/2008)

Punjab National Bank .. Appellant

Versus

Balwant Rai Girdhar & Ors. .. Respondents

WITH

CIVIL APPEAL NO. 1948 OF 2009 (Arising out of S.L.P. © No. 9029/2008)

Punjab National Bank .. Appellant

Versus Anita Garg & Anr. ..Respondents

2

WITH

CIVIL APPEAL NO. 1949 OF 2009 (Arising out of S.L.P. © No. 10846/2008)

Punjab & Sind Bank & Ors. .. Appellants

Versus Ranbir Singh & Ors. ..Respondents

WITH

CIVIL APPEAL NO. 1950 OF 2009 (Arising out of S.L.P. © No. 11112/2008)

Punjab & Sind Bank & Ors. .. Appellants

Versus

Gurcharan Singh Rein & Ors. ..Respondents

WITH

CIVIL APPEAL NO. 1951 OF 2009 (Arising out of S.L.P. © No. 11114/2008)

Punjab & Sind Bank & Ors. .. Appellants

Versus

Harminder Singh & Ors. ..Respondents

WITH

3

CIVIL APPEAL NO. 1952 OF 2009 (Arising out of S.L.P. © No. 11115/2008)

Punjab & Sind Bank & Ors. .. Appellants

Versus

Kulbir Singh Bhatia ..Respondent

WITH

CIVIL APPEAL NO. 1953 OF 2009 (Arising out of S.L.P. © No. 11190/2008)

Punjab & Sind Bank & Ors. .. Appellants

Versus Arvinder Kaur Bedi ..Respondent

WITH

CIVIL APPEAL NO. 1954 OF 2009 (Arising out of S.L.P. © No. 11324/2008)

Punjab & Sind Bank & Ors. .. Appellants

Versus

Bhupinder Singh Sachdeva & Ors. ..Respondents

WITH

4

CIVIL APPEAL NO. 1955 OF 2009 (Arising out of S.L.P. © No. 13428/2008)

Punjab & Sind Bank & Ors. .. Appellants

Versus

Chanan Singh Sidhu .. Respondent

WITH

CIVIL APPEAL NO. 1956 OF 2009 (Arising out of S.L.P. © No.23585/2005)

Subhas Chandra De & Ors. .. Appellants

Versus

United Bank of India & Ors. ..Respondents

AND

CIVIL APPEAL NO. 1957 OF 2009 (Arising out of S.L.P. © No. 8050/2006)

Amitava Mitra & Ors. .. Appellants

Versus

Zonal Manager, Punjab National Bank & Ors. ..Respondents

J U D G E M E N T

R.M. LODHA, J.

Leave granted.

5

2. These sixteen appeals arise from the

judgments of Punjab and Haryana High Court,

Calcutta High Court and Kerala High Court and

relate to different banks but since the common

issues are involved, it is appropriate that these

appeals are dealt with and disposed of by the

common judgment.

3. In the month of May, 2000, Government of

India, Ministry of Finance (Banking Division), advised the

nationalized banks to carry out detailed manpower

planning as these banks were found to have 25% of its

manpower as surplus. A Human Resource Management

Committee was constituted to examine the said issue and

to suggest suitable remedial measures. The committee so

constituted observed that high established cost and low

productivity in public sector banks affect their profitability

and it was necessary for these banks to convert their

human resources into assets compatible with business

strategies. Inter alia, the committee placed the draft

Voluntary Retirement Scheme with the Central

Government that would assist the banks in their efforts to

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optimize their human resources and achieve a balanced

age and skills profile in keeping with their business

strategies. With the approval of the central government,

Indian Bank Association (IBA) circulated salient features

of the draft scheme to the nationalized banks for

consideration and adoption by their respective boards vide

its letter dated August 31, 2000. The Board of Directors of

each of the nationalized banks, keeping in view the

objectives, considered the draft scheme and adopted it

separately.

4. In the present batch of appeals, the Voluntary

Retirement Scheme brought out by the Punjab National

Bank, Punjab & Sind Bank, Bank of India, Union Bank of

India and United Bank of India is in issue.

5. The scheme adopted by these banks, although

separately, is identical and bears similar salient features

with some variation in certain respects. It is not

necessary to consider them individually. For the sake of

brevity, we shall refer the scheme as VRS 2000.

6. The objective of VRS 2000 has been:

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-to transform the organizational as more efficient as well as for controlling operational costs;

-to improve the prospects and career growth and skills upgradation for employees by rationalizing the manpower;

-to help the bank to rightsize the growth.

7. We may, at this stage, summarise the salient

features of VRS 2000. These are :

(i) All permanent employees of the bank who have put in minimum 15 years of service or completed 40 years of age on the date of coming into force of the scheme are eligible for voluntary retirement.

(ii) In addition to the normal retirement benefits available to an employee , according to the terms and conditions of his employment in the bank, an employee whose application for voluntary retirement is accepted will be paid a lump sum amount equivalent to 60 days salary for each completed year of service.

(III) The competent authority may accept or reject the application of an employee for voluntary retirement and the decision of the competent authority shall be final.

(IV) No voluntary retirement shall come into effect unless competent authority has passed orders accepting the applications of the employees to retire voluntarily under the scheme.

(V) The scheme can be withdrawn at the discretion of the bank at any time without assigning any reason.

(VI) It shall be open to the bank to alter/amend the conditions of the scheme. (In the scheme framed by Punjab National Bank such provision is not there).

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(VII) The applications made under the scheme will be irrevocable and the employee will not have the right to withdraw the application once submitted.

(VIII) An employee whose application for voluntary retirement is accepted and relieved from the bank shall be eligible for :

(i) gratuity as per Gratuity Act/service gratuity as the case may be;

(ii) own contribution of provident fund and bank contribution towards provident fund, in case of those who have opted for Contributory Provident Fund or own contribution of provident fund and pension in terms of 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 (emphasis supplied) and

(iii) leave encashment as per rules.

8. The period during which VRS 2000 was to

remain in operation in respect of the banks with which

we are concerned is as follows:

Punjab and Sind Bank 01.12.2000 to 31.12.2000

Punjab National Bank 01.11.2000 to 30.11.2000

Bank of India 15.11.2000 to

14.12.2000

Union Bank of India 01.12.2000 to 31.12.2000

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United Bank of India 01.01.2001 to 31.01.2001

9. Section 19 of the Banking Companies

(Acquisition and Transfer of Undertakings) Act, 1970 (for

short ‘ Act 1970’) empowers the Board of Directors to

make regulations consistent with the provisions of the Act

or any Scheme made thereunder after consultation with

the Reserve Bank and with the previous sanction of the

Central Government in respect of matters provided therein.

Section 19 (2)(f) reads thus:

“(2) In particular, and without prejudice to the generality of the foregoing power, the regulations may provide for all or any of the following matters, namely:-- (f) the establishment and maintenance of superannuation, pension, provident or other funds for the benefit of officers or other employees of the corresponding new bank or of the dependants of such officers or other employees and the granting of superannuation allowances, annuities and pensions payable out of such funds.”

10. These banks have made their regulations in

respect of pension separately. Since they bear identical

provisions; we shall refer them as Pension Regulations,

1995 generally. On the date of the commencement of the

VRS 2000, Regulations 28 and 29 read as follows:

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“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.

29. Pension on Voluntary Retirement:-

(1) On or after the 1st 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.

Provided that this Sub-regulation shall not apply to an employee who is on deputation or on study leave abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year:

Provided further that this Sub-regulation shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking or company or institution or body, whether incorporated or not to which he is on deputation at the time of seeking voluntary retirement;

Provided that this Sub-regulation shall not apply to an employee who is deemed to have retired in accordance with Clause (1) of regulation -2.

(2) The notice of voluntary retirement given under sub-regulation (1) shall require acceptance by the appointing authority:

Provided that where that appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.

(3)(a). An employee referred to in sub-regulation (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons therefor.

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(b) On receipt of a request under Clause (a), the appointing authority may, subject to the provisions of Sub-regulation (2) , consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of his pension before the expiry of the notice of three months.

(4) An employee, who has elected to retire under this regulation and has given necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority;

Provided that the request for such withdrawal shall be made before the intended date of his retirement.

(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.

(6) The pension of an employee retiring under this regulation shall be based on the average emoluments as defined under clause (d) of regulation 2 of these regulations and the increase, not exceeding five years in his qualifying service, shall not entitle him to any notional fixation of pay for the purpose of calculating his pension.”

11. It appears that the benefits provided under

Regulation 29 were not found to be attractive by the

employees and did not help these banks in rightsizing

12

their manpower; thus, arose a necessity of special

scheme. VRS 2000 is, in a way, special scheme

launched for a very limited period.

12. VRS 2000 came up for consideration before

this Court in the case of Bank of India & Ors. vs O.P.

Swarnakar & Ors., (2003) 2 SCC 721. The question

under consideration in that case was whether an

employee who opts for voluntary retirement pursuant to or

in furtherance of a scheme floated by the nationalized

banks would be precluded from withdrawing the said offer.

This Court culled out the following aspects:

(i) The banks treated the application from the employees as an offer which could be accepted or rejected.

(ii) Acceptance of such an offer is required to be communicated in writing.

(iii) The decision-making process involved application of mind on the part of several authorities.

(iv) Decision-making process was to be formed at various levels.

(v) The process of acceptance of an offer made by an employee was in the discretion of the competent authority.

(vi) The request for voluntary retirement would not take effect in present but in future.

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(vii) The bank reserved its right to alter/rescind the conditions of scheme.

13. In O.P. Swarnakar, it has been held that

scheme is contractual in nature. It amounted to an

invitation to offer and not an offer or proposal itself; the

application made by the employees was an offer.

14. The statement of law with regard to nature of

voluntary retirement scheme expounded in O.P.

Swarnakar has been reiterated in HEC Voluntary Retd.

Employees Welfare Society v. Heavy Engineering

Corporation Ltd. (2006) 3 SCC 708; albeit a different

voluntary retirement scheme.

15. The admitted factual position in this batch of

appeals is that each of the employees had completed 20

years of service.

16. It may be noticed that at the fag end of the

operation of VRS 2000, at the instance of IBA and with

the approval of the Central Government, Regulation 28

was proposed to be amended. The amendment in fact

14

was carried out in the year 2002 with retrospective effect

from September 1, 2000. By way of amendment, a proviso

has been inserted to Regulation 28, which reads as

follows:

“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 15 years in terms of any scheme that may be framed for the purpose by the Bank’s Board with the concurrence of the Government.”

17. The optees have been given retiral benefits by

the respective banks under VRS 2000 save and except

the benefit of pension under Regulation 29(5). Their

representation in this regard did not yield any result and

that necessitated them to approach various High Courts

for redressal of their grievance.

18. The views of High Courts differ. Punjab and

Haryana High Court has held that employees are entitled

to add a period of qualifying service not exceeding five

years in terms of the Regulation 29(5); the total qualifying

service rendered by an employee seeking voluntary

retirement in any case shall not exceed 33 years. With

15

regard to the amendment in Regulation 28, Punjab and

Haryana High Court has held that by the said amendment,

the provision contained in Regulation 29(5) of the

Regulations does not get affected so as to disentitle the

employees the benefit provided therein.

19. There are two views in so far as Kerala High

Court is concerned. In the case of K. Mohandas (Civil

Appeal arising out of SLP (c) 22704/2005), the Division

Bench in the Writ Appeal held that the employees seeking

voluntary retirement under VRS 2000 were entitled to

benefit under Regulation 29(5) of Pension Regulations,

1995. However, in the case of N.U. Kurup, the single

Judge held otherwise. The single Judge took the view

that the employees seeking voluntary retirement under

VRS 2000 were entitled to pension under Regulation 28

and that they are not entitled to benefit of addition of five

years service as provided in Regulation 29(5). The view

of the Division Bench of Calcutta High Court is on the

lines of the view of the single Judge of Kerala High Court

that the optees of voluntary retirement under VRS 2000

16

are not entitled to benefit of addition of five years service

under Regulation 29(5).

20. We have heard the senior counsel, counsel for

the respective parties and Baldev Singh who appeared in

person at quite some length. The written submissions

have also been filed by the parties which we considered

thoughtfully.

21. The submissions on behalf of the banks may

be summarised thus : (i) that Pension Regulations, 1995,

as were existing during the operation of VRS 2000, did

not cover the class of employees retiring under the

Scheme which is contractual in nature. Regulation 28

came to be amended by insertion of proviso thereto to

cover the employees retiring under the Scheme inasmuch

as by the said amendment, the employees having

completed 15 years of service or more became entitled to

pension on pro-rata basis; (ii) that voluntary retirement

under VRS 2000 cannot be compared or equated with

voluntary retirement under Pension Regulations, 1995.

VRS 2000 is completely different and distinct scheme

from voluntary retirement contemplated under Regulation

17

29 of the Pension Regulations, 1995; (iii) that Regulation

29(5) of Pension Regulations, 1995, read: “the qualifying

service of an employee retiring voluntarily under this

regulation shall be increased by a person not exceeding …

……” The words “under this regulation” would mean

‘under Regulation 29’ and no other interpretation to the

meaning could be attributed to these words; (iv) that during

operation of VRS 2000, the concerned banks had brought

out circulars to bring to the notice of the concerned

employees the proposed amendment and, thus, the

employees were aware of the proposed amendment of

Pension Regulations and could have withdrawn their offer

but in the absence of such withdrawal and after having

accepted the benefits under VRS 2000, they are estopped

under law from challenging the Scheme or claiming

benefit of addition of five years of notional service in

calculating the length of service for the purposes of

pension and (v) that Regulation 29 does not cover

persons retiring under VRS 2000 which is de hors the

statutory scheme for voluntary retirement.

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22. On the other hand, on behalf of the

employees, it was contended: (i) that Pension

Regulations, 1995, were framed and notified in the year

1995 that provides for different classes of pension which

might be available to a pension optee, inter alia, two

classes of these pension are; superannuation pension

(Regulation 28) and pension on Voluntary Retirement

(Regulation 29); that VRS 2000 was brought out with the

object of optimizing human resources at various levels for

achieving the balanced age and skills profile in keeping

with business strategies and the banks allowed its

employees to retire voluntarily under the Scheme with an

intention to confer attractive benefits in addition to ex-

gratia and such additional benefits also included pension

as per Pension Regulations, 1995; (ii) that VRS 2000 is

not statutory in nature; rather, it is an invitation to treat by

the bank to its employees to offer for voluntary retirement.

The offer for voluntary retirement was founded on the

terms of scheme. By acceptance of the said offer made

by the employees, the concluded contract came into

existence between the bank and the employee which

19

could not have been altered; (iii) that on the date of the

relieving the concerned employees, Regulation 28 had not

been amended and, therefore, the entitlement to the

pension could not have been decided in terms of that

Regulation and the pension benefits to the optees could

only be given under Regulation 29; (iv) that by making

provision in the Scheme that optees would be eligible for

the benefits in addition to the ex-gratia amount, inter alia,

pension as per Pension Regulations, 1995, the

employees understood that what was contemplated was

pension under Regulation 29. Any ambiguity in VRS

2000 ought to be construed that harmonized with the

intention of the parties; (v) that the amendment in

Regulation 28 was introduced for a class of employees

who had put in more than 15 years but less than 20 years

of service. In terms of Pension Regulations, 1995, as it

stood before amendment to Regulation 28, an employee

although a pension optee under VRS having not completed

20 years service was not entitled to any pension. In order

to take care of this anomalous position and to confer

pensionary benefits on such employees, the amendment

20

was brought into effect in Regulation 28 which cannot

affect the subject employees who undisputedly have put

in more than 20 years of service; (vi) that the employees

made the offer to retire from service in terms of the

Scheme which was accepted by the banks without any

reservation. In terms of the Scheme under the head ‘other

benefits’, the optees are eligible for benefit of pension as

per Pension Regulations, 1995. Regulation 29 was the

only regulation under the Pension Regulations,1995,

applicable to voluntary retirement and, therefore,

Regulation 29, ipso facto, became the term of the contract

and (vii) that each and every paragraph of Regulation 29

can be made applicable to an optee of 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.

23. The principal question that falls for our

determination is : whether the employees (having

completed 20 years of service) of these banks (Bank of

India, Punjab National Bank, Punjab & Sind Bank, Union

21

Bank of India and United Bank of India) who 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 Pension Regulations, 1995 ?

24. As noticed above, Pension Regulations, 1995,

came to be framed by each of the afore-referred banks

separately in exercise of the powers conferred by clause(f)

of sub-Section 2 of Section 19 of the Act, 1970. In the

interpretation clause various expressions have been

defined.

25. Regulation 2(t) defines ‘pension’:

“pension” includes the basic pension and additional pension referred to in Chapter VI of these Regulations”.

Regulation 2(y) defines ‘retirement’:

“retirement” means cessation from bank’s service

“(a)…………………

(b) on voluntary retirement in accordance with provisions contained in Regulations 29 of these Regulations.

(c)………”

26. Chapter V of Pension Regulations deals

with the various classes of pension:

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superannuation pension (Regulations 28);

voluntary retirement pension (Regulation 29);

invalid pension (Regulation 30); premature

retirement pension (Regulation 32) and

compulsory retirement pension (Regulation 33).

27. In view of the admitted position that VRS

2000 was a contractual scheme; that it was an

invitation to offer containing a term that optee

will also be eligible for pension as per Pension

Regulations; that an application by an

employee for voluntary retirement was a

proposal or offer and that upon acceptance of

the application for voluntary retirement made by

the employee and a communication of

acceptance to him, the concluded contract

came into existence and the offeree was

relieved from the employment, for

consideration of the question posed herein, the

court need 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

23

parties must have made their bargain on the

footing that a particular thing or state of things

would continue to exist.

28. The true construction of a contract must

depend upon the import of the words used and

not upon what the parties choose to say

afterwards. Nor does subsequent conduct of

the parties in the performance of the contract

affect the true effect of the clear and

unambiguous words used in the contract. The

intention of the parties must be ascertained

from the language they have used, considered

in the light of the surrounding circumstances

and the object of the contract. The nature and

purpose of the contract is an important guide

in ascertaining the intention of the parties.

29. In Ottoman Bank of Nicosia vs. Ohanes

Chakarian, AIR 1938 PC 26, Lord Wright made

these weighty observations:

“----- that if the contract is clear and unambiguous, its true effect cannot be changed merely by the course of conduct adopted by the parties in acting under it.”

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30. In Ganga Saran vs. Firm Ram Charan Ram

Gopal, AIR 1952 SC 9, a four Judge bench of this Court

stated:

“Since the true construction of an agreement must depend upon the import of the words used and not upon what the parties choose to say afterwards, it is unnecessary to refer to what the parties have said about it.”

31. It is also a well-recognized principle of

construction of a contract that it must be read as a whole

in order to ascertain the true meaning of its several

clauses and the words of each clause should be

interpreted so as to bring them into harmony with the other

provisions if that interpretation does no violence to the

meaning of which they are naturally susceptible. [(The

North Eastern Railway Company vs. L. Hastings) (1900 AC

260)].

32. The fundamental position is that it is the

banks who were responsible for formulation of the terms

in the contractual Scheme that the optees of voluntary

retirement under that Scheme will be eligible to pension

25

under Pension Regulations, 1995, and, therefore, they

bear the risk of lack of clarity, if any. It is a well-known

principle of construction of contract that if the terms

applied by one party are unclear, an interpretation

against that party is preferred. [Verba Chartarum Fortius

Accipiuntur Contra Proferentum].

33. What was, in respect of pension, the intention

of the banks at the time of bringing out VRS 2000? Was

it not made expressly clear therein that the employees

seeking voluntary retirement will be eligible for pension as

per Pension Regulations? If the intention was not to give

pension as provided in Regulation 29 and particularly sub-

regulation (5) thereof, they could have said so in the

scheme itself. After all much thought had gone into the

formulation of the VRS 2000 and it came to be framed

after great deliberations. The only provision that could

have been in mind while providing for pension as per

Pension Regulations was Regulation 29. Obviously, the

employees, too, had benefit of Regulation 29(5) in mind

when they offered for voluntary retirement as admittedly

Regulation 28 as was existing at that time was not

26

applicable at all. None of the regulations 30 to 34 was

attracted. It appears that VRS 2000 evoked huge

response, much more than expected and then began the

second thought. At the fag end of operation of VRS

2000, at the instance of NBA, the banks proposed

amendment in the Pension Regulations and a circular

came to be issued. But, by that time, ball had gone out of

the hands of the employees; they had already made their

offers which were irrevocable; it was not open to them to

withdraw the offers as per specific condition incorporated

in the scheme (albeit this court in O.P. Swarnakar held

that offer could be withdrawn before acceptance) and

their offers were accepted and they were relieved. We

are afraid, it would be unreasonable if amended

Regulation 28 is made applicable, which had not seen the

light of the day and which was not the intention of the

bank when scheme was framed. The banks in the

present batch of appeals are public sector banks and are

‘State’ within the meaning of Article 12 of the Constitution

and their action even in contractual matters has to be

reasonable, lest, as observed in O.P. Swarnakar, it must

27

attract the wrath of Article 14 of the Constitution.

34. Any interpretation of the terms of VRS 2000,

although contractual in nature, must meet the test of

fairness. It has to be construed in a manner that avoids

arbitrariness and unreasonableness on the part of the

public sector banks who brought out VRS 2000 with an

objective of rightsizing its manpower. The banks decided

to shed surplus manpower. By formulation of the

Special Scheme (VRS 2000), the banks intended to

achieve its objective of rationalizing its force as they were

overstaffed. The Special Scheme was, thus, oriented to

lure the employees to go in for voluntary retirement. In

this background, the consideration that was to pass

between the parties assumes significance and a

harmonious construction to the Scheme and Pension

Regulations, therefore, has to be given.

35. The amendment to Regulation 28 can, at best,

be said to have been intended to cover the employees

with 15 years of service or more but less than 20 years of

service. This intention is reflected from the

communication dated September 5, 2000 sent by the

28

Government of India, Ministry of Finance, Department of

Economic Affairs (Banking Division) to the Personnel

Advisor, Indian Banks’ Association. The said letter may be

set out as it is which reads thus:

“F.No.4/8/4/2000-IR

Government of India Ministry of Finance Department of Economic Affairs (Banking Division)

New Delhi, the 5th Sept.2000

To The Personnel Advisor, Indian Bank’s Association, Mumbai.

Sub: Amendment to Regulation 29 of the Pension Regulations.

Sir,

I am directed to refer to this Division’s letter No. 11/1/99 IR dated 29th August, 2000 conveying Government’s no objection for circulation of Voluntary Retirement Scheme in Public Sector Banks. The scheme, inter-alia, provides that employees with 15 years of service or 40 years of age shall be eligible to take voluntary retirement under the scheme. As per provisions contained in Regulation 29 of Pension Regulations an employee can take voluntary retirement after 20 years of qualifying service and thereafter becomes eligible for pension. Thus employees having rendered 15 years of service or completing 40 years of age but not having completed 20 years of service shall not be eligible for pensionary benefits on taking voluntary retirement under the scheme.

In order to ensure that such employees do not lose the benefit of pension, IBA may work out

29

modalities and suggest amendments, if any, required to be made in the pension regulations to ensure that these employees also get the benefit of pension.

Yours faithfully, Sd/-

(U.P. Singh) Director (IR)”

36. Two things immediately become noticeable

from the said communication. One is that as per

Regulation 29 of Pension Regulations, 1995, an employee

can take voluntary retirement after 20 years of qualifying

service and become eligible for pension. The other thing is

that the Scheme provides that the employees with 15 years

of service or 40 years of age shall be eligible to take

voluntary retirement under the Scheme and under

Regulation 29, the employees having rendered 15 years of

service or completed 40 years of age but not completed

20 years of service shall not be eligible for pensionary

benefits on taking voluntary retirement under the Scheme.

The use of the words ‘such employees’ in the

communication is referable to employees having rendered

15 years of service but not completed 20 years of service

and, therefore, it was decided to bring in amendment in

30

the Regulations so that employees having not completed

20 years service do not loose the benefit of pension. The

amendment in Regulation 28, as is reflected from the

afore-referred communication, was intended to cover the

employees who had rendered 15 years service but not

completed 20 years service. It was not intended to cover

the optees who had already completed 20 years service

as the provisions contained in Regulation 29 met that

contingency.

37. Even if it be assumed that by insertion of the

proviso in Regulation 28 (in the year 2002 with effect from

September 1, 2000), all class of employees under VRS

2000 were intended to be covered, such amendment in

Regulation 28, needs to be harmonized with Regulation 29,

particularly Regulation 29(5) which provides for addition of

qualifying service by five years for the optees who had put

in 20 years service or more subject to the condition that

total qualifying service rendered by such employee shall

not in any case exceed 33 years. This would be in tune

and consonance with the explanatory note appended to

the amendment in Regulation 28 wherein it is stated that

31

the amendment with retrospective effect would not

adversely affect any employee or officer of the respondent-

bank. That would also meet the test of fairness.

38. The contention was raised on behalf of the

banks that if Regulation 29(5) of the Pension Regulations,

1995, is applied for the purposes of VRS 2000, the same

would create an anomalous situation inasmuch as two

different classes of employees for the purpose of granting

pension would be created, namely, a class of employees

who had completed 15 years of service but less than 20

years of service and this class would not be entitled to

receive benefits under Regulation 29(5) while the

employees who had completed 20 years service or more

would be entitled to receive the benefit under Regulation

29(5). It was submitted that by such construction a class

within the class would be created which is impermissible.

We do not agree. If a special benefit under Regulation

29(5) is available to the employees who had completed 20

years of service or more, by no stretch of imagination, can

it be said that it is discriminatory to those employees who

had completed 15 years of service but not completed 20

32

years. In view of the provision contained in Regulation 29

(5), if the optees who have not completed 20 years get

excluded from the weightage of five years which has been

given to optees who have completed 20 years of service

or more, it is no discrimination. Such provision can

neither be said to be arbitrary nor can be held to be

violative of any constitutional or statutory provisions. The

weightage of five years under Regulation 29(5) is

applicable to the optees having service of 20 years or

more. There is, thus, basis for additional benefit.

Merely because the employees who have completed 15

years of service but not completed 20 years of service are

not entitled to weightage of five years for qualifying

service under Regulation 29(5), the employees who have

completed 20 years of service or more cannot be denied

such benefit.

39. On behalf of the banks, it was contended that

Pension Regulations, 1995, are statutory in nature and

these Regulations cannot be altered, amended or read

down in view of any contract or a contractual scheme. It

was submitted that any contract (or contractual scheme),

33

contrary to a statutory law would be hit by Section 23 of

the Contract Act and, therefore, it is the contract or the

scheme which has to be modified, altered or read down to

bring it in tune with the provisions of statutory Regulations

and not the other way round. The contention does not

impress us. It is misplaced assumption that by reading

Regulation 29(5) in the Scheme, the Pension Regulations

would get altered or amended. Can it be said that

statutory relationship of employee and employer brought

to an end prematurely by contractual VRS 2000

amounted to alteration or amendment in the statutory

Regulations. Surely, answer has to be in negative and

that must answer this contention. The precise effect of

Pension Regulations, for the purposes of pension, having

been made part of scheme, is that Pension Regulations,

to the extent, these are applicable, must be read into the

Scheme. It is pertinent to bear in mind that interpretation

clause of VRS-2000 states that the words and

expressions used in the scheme but not defined and

defined in the Rules/Regulations shall have the same

meaning respectively assigned to them under

34

Rules/Regulations. The Scheme does not define the

expression ‘retirement’ or ‘voluntary retirement’. We have,

therefore, to fall back on the definition of ‘retirement’

given in Regulation 2(y) whereunder voluntary retirement

under Regulation 29 is considered to be retirement.

Regulation 29 uses the expression, ‘voluntary retirement

under these Regulations’. Obviously, for the purposes of

the Scheme, it has to be understood to mean with

necessary changes in points of details. Section 23 of the

Contract Act has no application to the present fact

situation.

40. It was submitted on behalf of the banks that

amendment to Regulation 28 has neither been challenged

nor the said Regulation has been declared ultra vires and,

therefore, that provision cannot be rendered otiose by

taking recourse to Regulations 29. It is true that validity

and legality of Regulation 28 has not been put in issue. It

was apparently not done because, according to the

employees, amended Regulation 28 although made

retrospective could not have affected the concluded

contract. We have already indicated above as to how the

35

amendment in Regulation 28 in the year 2002 with effect

from September 1, 2000 could not have applied to the

optees under the Scheme who had completed service of

20 years. Lack of challenge to the Regulation 28 by the

employees is, therefore, not very material. It is not correct

to say that by taking recourse to Regulation 29, the

amendment to Regulation 28 is rendered otiose.

41. It was vehemently contended on behalf of the

banks that VRS 2000 was a self-contained Scheme and it

provided for special benefits in the form of ex-gratia. It

was submitted that ex-gratia was not available to the

employees claiming voluntary retirement under Pension

Regulations and it was because of that, that Scheme did

not envisage granting of pension benefits under Regulation

29(5) of the Pension Regulations, 1995, along with the

payment of ex-gratia which was a substantial amount. It is

true that VRS 2000 is a complete package in itself and

contractual in nature. However, in that package, it has

been provided that the optees, in addition to ex-gratia

payment, will also be eligible to other benefits inter alia

pension under the Pension Regulations. The only

36

provision in the Pension Regulations at the relevant time

during the operation of VRS 2000 concerning voluntary

retirement was Regulation 29 and clause(5) thereof

provides for weightage of addition of five years to

qualifying service for pension to those optees who had

completed 20 years service. It, therefore, cannot be

accepted that VRS 2000 did not envisage grant of pension

benefits under Regulation 29(5) of the Pension

Regulations, 1995, to the optees of 20 years service along

with payment of ex-gratia. The whole idea in bringing out

VRS 2000 was to rightsize workforce which the banks

had not been able to achieve despite the fact that the

statutory Regulations provided for voluntary retirement to

the employees having completed 20 years service. It was

for this reason that VRS 2000 was made more attractive.

VRS 2000, accordingly, was an attractive package for the

employees to go in for as they were getting special

benefits in the form of ex-gratia and in addition thereto,

inter alia pension under the Pension Regulations which

also provided for weightage of five years of qualifying

service for the purposes of pension to the employees who

37

service for the purposes of pension to the employees who

had completed 20 years service.

42. In support of their contention that the

employees, who have sought voluntary retirement under

VRS 2000, are not entitled to benefit of Regulation 29(5)

of Pension Regulations, 1995, on behalf of banks, heavy

reliance was placed on a decision of this Court in the

case of Bank of Baroda and Ors. Vs. Ganpat Singh

Deora, 2009 (1) Scale 168. As a matter of fact, it was

submitted that the decision of this Court in the case of

Bank of Baroda concludes the controversy and the legal

position is no more res integra. Reliance in this

connection was placed on the following observations:

“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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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

38

Regulation 29 would not cover the case of an employee opting to retire on the basis of a Voluntary Retirement Scheme.

19. Furthermore, Regulations 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 Regulations 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, Regulaion14 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, Regulations 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 with Regulation 14 of the Pension Regulations, 1995.”

39

43. A word about precedents, before we deal with

the aforesaid observations. The classic statement of

Earl of Halsbury , L.C. in Quinn vs. Leathem, 1901 AC

495, is worth recapitulating first:

“Before discussing Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make; and one is to repeat what I have very often said before –that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logically at all.”

44. This Court has in long line of cases followed

the aforesaid statement of law. In State of Orissa vs.

Sudhansu Sekhar Misra, AIR 1968 SC 647, it was

observed:

40

“…. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it.”

45. In the words of Lord Denning:

“Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.”

46. It was highlighted by this Court in Ambica Quarry

Works Vs. State of Gujarat,(1987) 1 SCC 213:

“18….The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.”

47. In Bhavnagar University vs. Palitana Sugar Mill

(P) Ltd., (2003) 2 SCC 111, this Court held that a little

difference in facts or additional facts may make a lot of

difference in the precedential value of a decision.

41

48. This Court in Bharat Petroleum Corporation

Ltd. vs. N.R. Vairamani, (2004) 8 SCC 579, emphasized

that the Courts should not place reliance on decisions

without discussing as to how the factual situation fits in

with the fact situation of the decision on which the reliance

is placed. It was further observed that the judgments of

courts are not to be construed as statutes and the

observations must be read in the context in which they

appear to have been stated. The Court went on to say

that circumstantial applicability, one additional or different

fact may make a word of difference between conclusions

in two cases.

49. It is true that the controversy in the case of

Bank of Baroda arose out of the same voluntary retirement

scheme with which we are concerned in this group of

appeals. However, there is vital factual difference in that

case and this group of appeals. Pertinently that was a

case where the employee had completed only 13 years of

service( not even 15 years of service much less 20 years’

service) although he completed 40 years of age at the time

he offered for voluntary retirement. The employee’s

42

application therein for voluntary retirement was accepted

by the Bank of Baroda and he was paid all retiral benefits.

However, his request for grant of pension in addition to

the other retiral benefits was not acceded to by the bank.

It was so because he had not completed even 15 years of

service. The employee pursued industrial adjudicatory

process for redressal of his grievance in respect of

non-grant of pension by the bank. The employee’s claim

was opposed by the Bank of Baroda contending that in

terms of Regulations 14, 28 and 29 of the Pension

Regulations, 1995, the employee was not entitled to

pension. The observations made by this Court in Bank of

Baroda which have been quoted above and relied upon by

the banks in support of their contention have to be

understood in the factual backdrop namely, that the

employee had completed only 13 years of service and,

was not eligible for the pension under the Pension

Regulations,1995 and for the benefit of addition of five

years to qualifying service under Regulation 29(5), an

employee must have completed 20 years of service. The

question therein was not identical in form with the

43

question here to be decided. The following observations

in paragraph 11 of the report in Bank of Baroda are

significant:

“……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…… …….”

50. The decision of this Court in Bank of Baroda

is, thus, clearly distinguishable as the employee therein

had not completed qualifying service much less 20 years of

service for being eligible to the weightage under

Regulation 29(5) and cannot be applied to the present

controversy nor does that matter decide the question here

to be decided in the present group of matters.

51. On behalf of banks it was submitted that the

employees, having taken benefits under the scheme (VRS

2000), are estopped from raising any issue that their

entitlement to pension would not be covered by amended

Regulation 28. It was suggested that the employees

having taken benefit of the scheme cannot insist for

44

pension under Regulation 29(5). O.P. Swarnakar was

relied upon in this regard wherein it has been held that an

employee, having taken the ex-gratia payment, or any

other benefit under the scheme cannot be allowed to resile

from the scheme.

52. Insofaras the present group of appeals is

concerned, the employees are not seeking to resile from

the Scheme. They are actually seeking enforcement of the

clause in the Scheme that provides that the optees will be

eligible for pension under the Pension Regulations, 1995.

According to them, they are entitled to the benefits of

Regulation 29(5). In our considered view, plea of

estoppel is devoid of any substance; as a matter of fact it

does not arise at all in the facts and circumstances of the

case.

53. We hold, as it must be, that the employees who

had completed 20 years of service and were pension

optees and offered voluntary retirement under VRS 2000

and whose offers were accepted by the banks are

entitled to addition of five years of notional service in

calculating the length of service for the purposes of that

45

Scheme as per Regulation 29(5) of the Pension

Regulations, 1995. The contrary view expressed by some

of the High Courts do not lay down the correct legal

position.

54. The only question now remains to be seen is

whether the concerned employees are entitled to interest

on unpaid pension.

55. Although it has been held by us that the subject

employees are entitled to the weightage in terms of

Regulation 29(5) of Pension Regulations, 1995, but we are

satisfied that any award of interest on unpaid pension

would not be in the interest of justice. It is so because

different High Courts did not have unanimous judicial

opinion on the issue. Punjab and Haryana High Court

and the Division Bench of the Kerala High Court upheld the

contention of the employees with regard to applicability of

Regulation 29(5) to the optees who had completed 20

years of service while the Division Bench of the Calcutta

High Court and a single Judge of the Kerala High Court

took exactly an opposite view. The stance of the banks,

46

although found not meritorious, cannot be said to be

totally frivolous. We, accordingly, hold that the subject

employees are not entitled to interest on unpaid pension.

56. The result of the foregoing discussion is that

the appeals preferred by the banks must fail and are

dismissed while the appeals of the employees deserve to

be allowed and are allowed accordingly. The respective

banks shall now recalculate, within one month from today,

the pension payable to the concerned employees by

giving them the benefit of Regulation 29(5). However, the

employees shall not be entitled to interest on unpaid

pension. The pending applications in these appeals

stand disposed of. The parties shall bear their own costs.

…………………………..J (D.K. Jain)

…………………………..J (R.M. Lodha)

New Delhi, March 27, 2009

47

48

BANK OF INDIA Vs K.MOHANDAS .

BANK OF INDIA Vs K.MOHANDAS .