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CASE NO.: Appeal (civil)  6721 of 2004

PETITIONER: SYNDICATE  BANK,  BANGALORE

RESPONDENT: SATYA SRINATH

DATE OF JUDGMENT: 17/04/2007

BENCH: A.K.MATHUR & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T  

A.K.MATHUR,J.    

                        This appeal is directed against the order dated 7th April,  2003  passed by the Division of  the Karnataka High Court whereby the   Division Bench has  set aside the order of the learned Single Judge  and  allowed the writ petition No. 25322 of  1999,  quashed the  impugned  order dated 26th June, 1999 and directed  the  management of the  appellant-Bank to pay the pension  to the respondent from 1.11.1993.                 The respondent  was the employee of  the  Syndicate Bank.   The  respondent remained unauthorisedly absent  w.e.f. 11.3.1992 and  a  notice dated 18.11.1992 was issued to her calling upon her either to  report back for duty or submit  explanation for her  absence within 30  days  i.e. on or before 21.12.1992.  It was also stipulated that if she failed  to comply with the directions  she would be deemed to have voluntarily  retired from the service of  the bank on expiry  of 30 days from the date  of  notice in terms of Clause 17(a) of the Vth   Bipartite Settlement.  The  respondent (herein) sent her explanation  but the Bank Management  did not find the explanation satisfactory.   Therefore,  the  appellant  vide letter dated 10.12.1992 informed the  respondent(herein)  that she  was deemed to have voluntarily  retired from service w.e.f. 23.12.1992 in  terms of Clause 17(a)  of the  Vth   Bipartite Settlement and she  was  deemed to have  ceased from the  service of the bank from that date.   The explanation sent by the respondent (herein) was that due to illness  she was  unable to report for  duty immediately and sought extension of    time to report for duty and submitted  an   application  for extension of  leave  supported by a medical certificate.   Aggrieved against the  order  passed by the  appellant, the respondent filed the writ petition No.  1259/1995  in the High Court seeking  a  direction to the  appellant bank  to reinstate her into service with all benefits. Learned Single Judge vide  order dated 23.1.1995 dismissed the writ petition on the ground that  there was inordinate delay in assailing the validity of the  order dated  30.12.1992.   Meanwhile the Syndicate Bank (Employees’) Pension   Regulations, 1995 ( hereinafter to be referred to as the Regulation) came  into force on 29.9.1995  i.e. the date of  publication  of the Regulations in  the Official Gazette.  The  appellant issued a circular dated 4.11.1995   stating the Regulations were applicable to the following categories of  employees: i)      Those who were in the service  of the Bank on or after 1.1.1986   but had retired before 29.9.1995. ii)     Those who were in the service of the  Bank before 29.9.1995 and  continued to be in the service of the Bank on or after 29.9.1995. iii)    Those who joined  the services of  the Bank on or after 29.9.1995. iv)     to (viii)  omitted as  are not relevant.         ***                                     ***                             ***

       It was clarified that the ex-employees who had voluntarily retired

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in terms of Bank’s Service Regulations Clause No. 19(1) or deemed to  have voluntarily retired in terms of  Vth   Bipartite Settlement, between  1.1.1986 and 31.10.1993 are not eligible for pension under the pension  Regulations, 1995.         It was also mentioned that   regulation 29 of Pension Regulations  1995 provided for voluntary retirement of the employees who had  completed 20 years of qualifying service by giving notice of not less than  3 months, in writing, subject to the conditions laid down therein.         The said  circular  also provided that ex-employees  who had not  exercised  their option for pension under the Regulations earlier could   exercise their  option  under  the scheme within  120 days from  29.9.1995.  In pursuance  of that circular  the  respondent  applied for  pension  scheme on 28.12.1995 but the same was rejected by the   management on 22.1.1996.  Aggrieved against the order, the  respondent(herein) filed a writ petition No. 1370 of 1987 before the High  Court.  Learned Single Judge allowed the writ petition by order dated  17.2.1989 and held that since the  respondent  retired from   service  after 1.1.86  she was eligible  for pensionary benefits under the  Regulations  and the High Court remanded the matter  to the Bank for  fresh consideration  of the  claim  of the respondent(herein).  After the   remand  the appellant bank reconsidered the matter  and  rejected the  same by communication dated 26.6.1999. The reasons given by the  appellant-bank   for the rejection read as under:         "You remained absent from duties continuously from  11.3.1992.  Even after service of  notice since you did not  join the duties  nor submit any explanation for your  absence, you were  deemed to have  voluntarily  vacated/retired from the Bank’s service with effect from  22.12.1992 in terms of  Clause 17 of the Vth   Bipartite  Settlement.            Please note that such deemed retirement was not  brought about  by any positive action on the part of the  Bank but is wholly on account of your own action.  Your  cessation in service became final as the writ petition filed by  you  challenging the  Bank’s  order dated 30.12.1992 was  dismissed by  the Hon’ble  High Court by its order dated  25.1.1995.  It is, therefore, observed that you did not cease  to be in the bank’s service on reaching the age of  superannuation nor did you seek and obtain voluntary   retirement as per Regulation No. 29 of the Syndicate Bank  (Employees) Pension Regulations, 1995. It is also not a case  of premature retirement as described in the Pension  Regulations because there is no positive action on the part  of the Bank.  Your action in effect amounted to  abandonment of service.   It is thus seen that you do not  come within the scope of the Pension Regulations entitling  you to receive pension.  Further the Bank’s circular No.  226/95/BC/PD/61/SWD dated 4.11.1995,  it has been  clarified that the ex-employees who have voluntary retired  in terms of the  Bipartite Settlement, between 1.1.1986 and  31.10.1993 are not eligible for pension under the Pension  Regulations, 1995.    You cease to be in the services  of the   Bank w.e.f. 22.12.1992 and hence you are not entitled to  pension.  Even assuming without conceding that you had  retired voluntarily from the services of the Bank as per the  Pension Regulations, 1995, you would not be entitled to  pension under the Pension Regulations, as you retired  before 1.11.1993."

Aggrieved against  that order the respondent filed another writ  petition before the High Court.  This came to be registered vide writ  petition No. 25322 of 1999.  Learned Single Judge  held that the   respondent was not entitled   to pension under the  relevant  regulations and dismissed the writ petition vide order dated

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27.7.1999.  Aggrieved against  that order also,  the matter  was taken  up by the  respondent (herein) in  appeal before  the Division Bench  and the Division Bench after considering the matter came to the   conclusion that the respondent  was entitled to pension as per  Regulations.   Hence,  the present appeal.         It is a fact that the respondent(herein)  was in the service   of the Bank since 7th April, 1969 and she had retired from the bank  service w.e.f. 22.12.1992 and as per the regulation, the employees of  the  Bank  who opted for pension   were in  the service of the Bank on  or after 1.1.1986 but was  retired before 29.9.95.   Therefore, this  condition stands fulfilled.    These  two parameters are not in dispute.    The only question  that  calls for  determination is that as per the  Regulation  and the circular dated 4.11.1995 issued by the  Bank  whether the respondent is entitled  to pension or not?  As per the  clarification issued by the  bank that    ex-employees who  had  voluntarily  retired from the bank’s  service  or deemed to have    voluntarily retired between 1.1.1986 and 31.10.1993,  would not be  eligible for pension under the Pension Regulation. Now,  the question is whether the respondent was deemed to  have voluntarily retired  as per Vth   Bipartite Settlement or she  has  been retired  by the appellant-bank.     There can be two  class of  persons; one who sought voluntary  retirement  or the other  who  was deemed to have voluntarily retired. It is not the case of the   voluntary retirement but she was  made to  retire by the order of the  management.   Therefore,  she  does not fall in either of  the two  categories.  The  respondent(herein) remained absent because of her  ill-health and she submitted  her application for extension of leave on  medical ground but the management instead  of  taking  sympathetic   view, retired the respondent from the services of the bank.   As she  does not  fall either of the above two categories, this is the third  category  which is not contemplated in the regulations.     However,   an attempt was made to  bring her case in terms of the Clause 17(a)   which says that if an employee absents himself  from work for a  period of 90 days or more consecutive days, without submitting   leave application on  his credit  or beyond  a period of leave  sanctioned originally/subsequently and if the management is  reasonably satisfied that the incumbent  has no intention of joining  duties, the management may at any time thereafter give notice to the  employee and call him/her to report for  duty  and require  the   employee to  furnish explanation within 30 days of the date of notice.    If the employee does not  satisfy the management,  he/she can be  deemed to have retired on expiry  of the notice.   In the event, the  employee satisfies the bank , he/she can report  for duty thereafter  within 30 days  of the expiry  of the  notice without prejudice to the  bank’s rights to take action under the service rules.  In this regard  Clause 17(a) of the Vth Bipartite Settlement reads as under: "(a) when an employee absents himself from work for a  period of 90 days or more consecutive days, without  submitting an application for leave on his credit or  beyond period of leave sanctioned  originally/subsequently or when there is satisfactory  evidence that he has taken employment in India or  when management is reasonably satisfied that he has  no intention of joining duties,  the management may at  anytime thereafter give a notice to the employee at his  last known address calling upon him to report for duty  within 30 days of the date of notice,   stating  inter alia  the grounds for coming to the conclusion that the  employee had no intention of joining duties and  furnishing necessary  evidence,  where available.   Unless  the employee reports  for duty within 30 days of  the notice or gives an explanation for  absence within  the said period of 30 days satisfying the management  that he has not taken up another employment or a  vocation and that he has no intention of not joining

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duties,  the employee will be deemed to have voluntarily  retired from Bank’s service on the expiry of the said  notice.  In the event of the employee  submitting  a  satisfactory reply,  he shall be permitted to report for  duty thereafter within 30 days of the date of expiry of  the aforesaid notice without prejudice to the bank’s  right to take action under the law or rules of service."

       In the present case, the respondent(herein) submitted her  explanation and sought extension of time  on medical ground.  But the  management of the Bank instead of considering the matter  sympathetically, ordered for premature retirement  under the  purported   exercise  of Clause 17(a)  .   It is not the case that she had   voluntarily retired but it is a case where the bank has retired her as a  measure of punishment because they were not satisfied by her  explanation.    Therefore, it is not a case which can be covered by the  clarification issued by the Bank and   it cannot be deemed that she has  voluntarily retired.  The contingency in the present case   is not  covered by the aforesaid  Circular dated 4.11.1995.   In the present  case the respondent has put in  almost 20 years’ of service and  has  taken leave  on medical ground  which is being denied to her.    In  Clause 17 (a)  what is contemplated is that a person who deliberately  does not join the office and leaves  the office without any  satisfactory   explanation,  then it is open for the management to resort to  Clause  17(a).  But in the present case,  the facts are very glaring that  incumbent has put in 20 years of service and unfortunately  she fell  sick and sought for extension of leave on medical ground,  that was  denied to her.   Therefore, it is not  the case of the  abandoned service  or  she did not send any  reply to the notice sent by  the management.    However, she  has made a humble reply to satisfy her authorities,  that  taking  leave was beyond her control, i.e. ill health.  But the authorities  retired her  prematurally and  denied the  pension  of 20 years of  service.  Therefore, this kind of action  is unfair, arbitrary which  cannot be countenanced.     In fact the order passed by the bank  clearly states  it is not the case of premature retirement and it is not  the case that she has sought voluntary  retirement or premature  retirement. It is the  bank who has retired her and  that kind of  contingency is not covered in the  clarification made by the bank.    It  is a case of  deemed  voluntary retirement forced  on her.  The said  contingency  is not covered under the aforesaid order of authorities.     It was a forced retirement  by the  respondent-bank.   

Learned counsel has tried to persuade us that the letter rejecting   her representation  for pension was because of her  deemed retirement   brought  about  by    her,   on    account   of    her     own   action.    This  observation  of the bank is not correct.  In fact the retirement has been  forced by the bank.   It  is   not  the case  that she  was not willing to join   the service but was  unable to join  due to ill-health.  The decision of  management,  "deemed to have been voluntarily retired"  is totally  misconceived.  Learned counsel has tried to place a strong reliance on the case of  Punjab & Sind Bank and Others Vs. Sakattar Singh  reported in (2001)  1 SCC 214 wherein  no domestic inquiry was held and  three letters  were issued to the incumbent  directing him to join the duty and seeking    explanation  for unauthorized absence.    The  respondent submitted the  joining report  that he was  suffering from eye ailment  that was  not  accepted by the authorities and the services were terminated.  The High  Court set aside the termination and the matter came up before  this  Court  and  this Court in the facts and circumstances of the case held  that  the rules of natural justice  should be borne in mind  in the  relevant fact situation.   But in the present case, as already mentioned  above, the  fact that she  had submitted  her explanation  supported by a  medical certificate    was not accepted by the bank- management  and  she was forced to retire.  This contingency is not covered under  circular

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dated 4.11.1995.  Our attention was also invited to the case of UCO Bank and  Others Vs. Sanwar Mal  reported in (2004) 4 SCC 412 wherein  their   Lordships made a distinction between "resignation and retirement", that  it  carries a different  meaning  and it was observed that an employee  can resign any time but he  retires only  on  superannuation or  in case  of voluntary retirement  on completion of  qualifying service.   The   expression  ’resignation’  and ’voluntary retirement’   are deliberate   abandonment  of service.  Each expression carries different connotation  and each case has to be examined  whether  it was a case of voluntary   retirement sought by the employee or he has been retired on account of  superannuation or he has resigned or he has been retired compulsorily  as a measure of punishment.   But so far as the present controversy  is  concerned,  the  compulsory retirement/ the premature retirement has  been imposed by the  appellant,  it is not voluntarily  sought by the  respondent.  It  is a clear case  of  compulsory retirement ordered  by  the Management  and that contingency has not been contemplated  in  the circular issued on 4.11.1995.   Therefore,  in any case,   we are of  the  opinion that she could not be denied the benefit of her 20 years’ of  service when she  comes  within the pension scheme that  she was  employed  prior to  1986 and retired before 29.9.95.  Therefore,   she is  entitled to pension.   In this view of the  matter, we are of the opinion  that the view taken by the  Division Bench of High Court is correct and  there is no merit in this appeal  filed by the Bank.  Hence, the same is  dismissed with no order as to costs.