Letters Patent Appeal No. 125 of 2013 · Patna High Court · 2012
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.125 of 2013 In Civil Writ Jurisdiction Case No. 13349 of 2012 ====================================================== 1. The State Bank of India through Chief General Manager, State Bank of India, Local Head Office, Patna 2. The Chief General Manager, State Bank of India, Local Head Office, Patna 3. The General Manager, (D & PB), State Bank of India, Local Head Office, Patna 4. The Assistant General Manager, State Bank of India, Region-V, Zonal Office at Ara, Bhojpur 5. The Assistant General Manager, State Bank of India, Region-I, Zonal Office, Patna .... .... Respondents-Appellants Versus 1. Smt. Gita Singh W/o Late Basant Singh Resident of C-103, Charminar Apartment, Road No.- 12, Rajendra Nagar, P.S. Kadamkuan, District- Patna 2. Gourav son of Late Basant Singh Resident of C-103, Charminar Apartment, Road No.- 12, Rajendra Nagar, P.S. Kadamkuan, District- Patna 3. Rinki D/o Late Basant Singh Resident of C-103, Charminar Apartment, Road No.- 12, Rajendra Nagar, P.S. Kadamkuan, District- Patna 4. Tripti Singh D/o Late Basant Singh Resident of C-103, Charminar Apartment, Road No.- 12, Rajendra Nagar, P.S. Kadamkuan, District- Patna .... .... Petitioners-Respondents ====================================================== Appearance :
Legal Reasoning
For the Appellants : Mr. S.D.Sanjay Advocate Mr. Akash Chaturvedi, Advocate For the Respondents : Mr. Amit Prakash, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and 2 Patna High Court LPA No.125 of 2013 (14) dt.18-09-2013 2 / 9 HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 14. 18-09-2013 This Appeal under Clause 10 of the Letters Patent is preferred by the respondent State Bank of India (hereinafter referred to as „the Bank‟) against the judgment and order dated 15th October 2012 passed by the learned single Judge in C.W.J.C. No. 13349 of 2012. The respondent-writ Petitioner, Basant Singh, was at the relevant time employed in the Bank in Junior Management Grade Scale-I. In view of the finding of guilt recorded in a departmental proceeding, he was ordered to be compulsorily retired from service on 31st July 2004. The challenge to the order of compulsory retirement was rejected by the Bench of this Court in L.P.A. No. 500 of 2007 arising from C.W.J.C. No. 7070 of 2005. Since the order of compulsory retirement made against
Decision
the writ petitioner was upheld by the Bench of this Court and by the Hon‟ble Supreme Court, the writ petitioner again approached this Court under Article 226 of the Constitution in above C.W.J.C. No.13349 of 2012 for recovery of the amount of pension with effect from 1st August 2004, balance amount of gratuity, provident fund, leave encashment etc. We are informed at the bar that pending the writ petition all terminal benefits except the pension have been paid to the writ petitioner. The claim for pension was contested by the Bank. According to the Bank, on the date of compulsory retirement of the writ petitioner, he had not completed 25 years of pensionable service. The writ petitioner was, therefore, not entitled to pension. 3 Patna High Court LPA No.125 of 2013 (14) dt.18-09-2013 3 / 9 The learned single Judge has relied upon the statement made on behalf of the Bank in course of hearing of the above referred L.P.A. No.500 of 2007 to the effect that the writ petitioner would be entitled to the pensionary benefits. The learned single Judge has, therefore, allowed the writ petition to the extent that the Bank has been directed to pay pension to the writ petitioner from the date he retired from service. As to the provident fund amount, the learned single Judge has held that whether the writ petitioner applied for it or not, it was the duty of the Bank to remit the amount of provident fund to the writ petitioner soon after he was compulsorily retired from service. The Bank, having failed in its duty and having retained the money, has been directed to pay interest on the amount of provident fund for the period from 1st August 2004 till 18th January 2012 (the date on which the amount of provident fund was paid). Feeling aggrieved, the Bank has preferred this Appeal. Learned advocate Mr. S.D. Sanjay has appeared for the Bank. He has submitted that in the earlier proceedings the statement made on behalf of the Bank was to the effect that the writ petitioner having completed 25 years of service, he would be entitled to the post retirement benefits. Mr. Sanjay has submitted that the said statement should be read in consonance with the relevant rules. If under the relevant rules the writ petitioner were not entitled to the pensionary benefits, he cannot be allowed such pensionary benefits merely on the aforesaid statement. Mr. Sanjay has submitted that the period of leave without pay availed of by a Bank employee is not a pensionable service. If the period of leave without pay availed of by the writ 4 Patna High Court LPA No.125 of 2013 (14) dt.18-09-2013 4 / 9 petitioner were not computed as pensionable service; on the date of the compulsory retirement he had not completed 25 years‟ qualifying service. He, therefore, is not entitled to the pensionary benefits. As to the interest over the amount of provident fund, he has submitted the writ petitioner was compulsorily retired from service on 31st July 2004, he did not that although apply for recovery of the amount of provident fund until December 2010. The Bank did inform the writ petitioner to apply for the recovery of the amount of provident fund, however, the writ petitioner did not do it. The interest imposed upon the Bank is therefore, not justified. Mr. S.D. Sanjay has relied upon the compilation of the Rules, Orders, Instructions etc. governing the service conditions of the Bank employees in respect of settlement of terminal benefits, gratuity, provident fund, pension and family pension. He has particularly relied upon Rule 22 (p.51) that deals with Employees‟ Pension Fund. Clause (i) thereof provides for eligibility for pension after completion of the specified years of pensionable service. Generally, under sub-Clause (e) thereof, the pension is admissible after 25 years‟ pensionable service. Mr. S.D. Sanjay has also relied upon Clause (a) of Rule 21 (p.52) which provides, “No period of leave granted without leave salary or absence without leave shall count as pensionable service.” Mr. S.D. Sanjay has vehemently submitted that during his service, the writ petitioner had availed of leave without pay for 02 years 05 months and 24 days. As on the date of compulsory retirement, though he had rendered a total service of 26 years 09 months and 27 days, the qualifying service he had rendered was of 24 years 04 months and 03 days, a few months 5 Patna High Court LPA No.125 of 2013 (14) dt.18-09-2013 5 / 9 short of the qualifying service of 25 years. The writ petitioner was, therefore, not entitled to the benefits of pension. Mr. S.D. Sanjay has also relied upon the Instructions relating to the settlement of terminal benefits in case no application were submitted by the employee (p.112). He has submitted that paragraph (A) thereof deals with normal retirement. Whereas, paragraph (B) deals with the punished employee. The writ petitioner having been visited with punishment of compulsory retirement, it is the said paragraph (B) which would be applicable. Paragraph (B) provides, inter alia, “As the application may not be forthcoming from the employee who prefers to appeal against the decision, a registered letter should be sent on the employee’s last known address on the lines given in ANNEXURE 32 or ANNEXURE 33 as the case may be vide Corporate Centre Circular No. CDO/ADM/SPL/1275 dated the 2nd June 1997 and CDO/PM/14/SPL/4975 dated the 21st November 1997.” It settled further provides, “All such cases should be expeditiously and the various steps to be followed in this regard are as under: i) On completion of the disciplinary proceedings against the employee, the concerned Branch/Office where the employee was last posted before cessation of service, should immediately take up the process even without the application from the employee and arrange for obtaining sanction of all eligible dues to the employee, irrespective of the fact whether he goes on appeal, review, legal remedy against the decision of the Disciplinary Authority. These cases should also 6 Patna High Court LPA No.125 of 2013 (14) dt.18-09-2013 6 / 9 be reported to the PPG Department for their information and guidance. xxx xxx xxx” The above referred ANNEXURE 32 (page 163) is the format of the reminder letter to be sent to the employee who has been compulsorily retired/removed from service of the Bank, which says, “You are advised to submit appropriate applications as per the prescribed formats at the earliest to enable us to settle your terminal dues without any delay. Please note that failure on your part to submit the said applications within a week from the date hereto might result in delayed payment of your terminal dues and the Bank will not be liable for payment of any interest for the delay.” In the submission of Mr. S.D. Sanjay, in any case a Bank employee is required to make a formal application for recovery of the provident fund dues or any other terminal dues. The Bank is not authorised to withdraw money from the Provident Fund account of its employees and to remit such amount to the concerned employee. Until a formal application is made, the Bank is under no obligation to pay the Provident Fund amount to the employee suo motu. He has submitted that although repeated intimation as envisaged by the above paragraph was sent to the writ petitioner soon after his compulsory retirement from service, the writ petitioner chose not to make a formal application until December 2010. After receipt of such formal application, the Bank has processed the same and paid up the Provident Fund amount to the writ petitioner. The Bank, therefore, cannot be held to be at fault. Nor the Bank should have been saddled with the liability to pay interest over 7 Patna High Court LPA No.125 of 2013 (14) dt.18-09-2013 7 / 9 the amount of provident fund. Learned advocate Mr. Amit Prakash has appeared for the respondent-writ petitioner. He has contested the Appeal. He has relied upon the Instructions in respect of compulsory retirement (p.54). He has submitted that the standing Instructions of the Bank debars inflicting of penalty of compulsory retirement unless an officer has completed required pensionable service. It reads, “Therefore, it will not be in order to inflict the penalty of compulsory retirement unless an officer has completed required pensionable service i.e. 25 years of pensionable service interms of Rule 22(i)(d) or 20 years of pensionable service with attainment of age of 50 years interms of Rule 22(i)(a) vide Corporate Centre Circular No. PA/CIR/82 dated the 15th April 1987.” We have considered the rival submissions and the relevant Rules/Instructions relied upon by the learned advocates. The above referred Instruction, which debars infliction of penalty of compulsory retirement unless the officer has completed required pensionable service, discloses the intention of the Bank that even an employee who has been compulsorily retired on punitive grounds is entitled to pension. Therefore, unless the writ petitioner had completed required pensionable service, the writ petitioner could not have been visited with the punishment of compulsory retirement. It, therefore, does not lie in the mouth of the Bank that the writ petitioner had not completed the required 25 years of pensionable service and that he is not entitled to pension. We, therefore, affirm the decision of the learned single Judge insofar as the entitlement of the writ petitioner to receive pension is concerned. 8 Patna High Court LPA No.125 of 2013 (14) dt.18-09-2013 8 / 9 As to the provident fund, the learned single Judge has held that the Bank was under obligation to process for settlement of terminal dues even without application by the employee and that the Bank had retained the amount of provident fund till the same was paid in 2012. The Bank is, therefore, liable to pay interest over the said amount. We are afraid, we are unable to agree with the reasoning of the learned single Judge. True, the relevant Instructions do require that in case any employee does not apply for recovery of the terminal benefits, it is the Bank which should take the initiative and settle the terminal benefits as soon as possible. But in case of the punished employee, the said Instructions also require that the Bank shall send a registered letter in terms of ANNEXURE 32. As recorded hereinabove, ANNEXURE 32 in turn provides for intimation to the employee to make an application in the prescribed format. Thus, it is apparent that for recovery of his Provident Fund dues, a retired employee of the Bank is required to make application in the prescribed format. In our opinion, until such application is made in the prescribed format, the Bank does not incur liability to process the terminal dues and to pay the same to the concerned employee. In the present case, it is undisputed that the writ petitioner did not make application for recovery of the provident fund amount in prescribed format until December 2012. After receipt of such application, the Bank processed the same and remitted the amount of provident fund to the writ petitioner on 23rd September 2011. In our opinion, the Bank cannot be held responsible for the delay in application made by the writ 9 Patna High Court LPA No.125 of 2013 (14) dt.18-09-2013 9 / 9 petitioner. In the circumstances, the Bank ought not to have been directed to pay interest for the delay in remittance of amount of provident fund. For the aforesaid reasons, the Appeal is partially allowed. The impugned order dated 15th October 2012 made by the learned single Judge in respect of the entitlement of the writ petitioner to pensionary benefits is upheld and affirmed. The direction to pay interest on the provident fund dues of the writ petitioner from 1st August 2004 till 18th January 2012 is set aside. (R.M. Doshit, CJ) (Ashwani Kumar Singh, J) Pawan/-