M. Vasantha v. The General Manager, Union Bank of India, 239, Vidhan Bhavan Marg, Nariman Point, Mumbai 400 021

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.07.2009CORAM:THE HONOURABLE MR.JUSTICE R.SUDHAKARW.P.No.1921 OF 2003M. Vasantha ..PetitionerVs.1.The General Manager,Union Bank of India,239, Vidhan Bhavan Marg,Nariman Point,Mumbai 400 021.2.The Sr. Manager (Personnel),Dept. of Personnel,Nodal Regional Office,Chennai.3. The Chief Manager, Union Bank of India,Nungambakkam Branch,Chennai.34. ..RespondentsPrayer: Petition filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorarified Mandamus calling for therecords of the 2nd respondent in its proceedings No.NRO/DP/950,dated 19.6.2002 and quash the same and direct the 2nd respondent togrant pension to the petitioner in terms of Union Bank of IndiaEmployees pension Regulation Scheme, 1993, dated 28.5.1994. For Petitioner : Mr. A. ArulmozhiFor Respondents : Mr. D. KrishdnanO R D E RThe petitioner in this case joined the first respondentbank on 11.11.1974 as a part time sweeper and confirmed as a peonin the year 1986. On 25.8.1994, the bank issued staff circularNo.4085 relating to the pension scheme, called Union Bank of IndiaEmployees' Pension Regulations 1993. In terms of the said scheme,the employees, who joined the services of the bank on or after https://hcservices.ecourts.gov.in/hcservices/

01.11.1993, will be eligible to come under the pension scheme.Under the scheme, if the employees in service of the bank as on31.10.93 opted for the pension scheme, contribution to theprovident fund stands transferred to the pension fund. Theoption has to be exercised by the employees on or before 30.9.1994.According to the petitioner, she opted for the pension schemethrough the Branch Manager, Nungambakkam Branch, Chennai. The caseof the petitioner is that after she opted for the pension scheme,the provident fund statement showed that the employee alonecontributed to the provident fund and the employer did not makehis contribution in terms of Union Bank of India Employees'Pension Regulation Scheme 1993. The petitioner was under theimpression that she is covered under the pension scheme. Thepetitioner opted for voluntary retirement and was relieved from theservices of the bank on 20.1.2001 under the Union Bank voluntaryretirement scheme 2000-01. On such voluntary retirement, she cameto know that the petitioner is not shown as a pension optee.Therefore, on 9.4.2001, the petitioner made a representation to theManager, P.F. Section, to verify the records and consider her caseas a pension optee particularly in view of the fact that the bank'scontribution towards provident fund is not shown in the providentfund statement for more than six years. Thereafter, on 19.7.2001,the personal department of the bank has intimated that thepetitioner has not opted for pension as per records. However, afurther direction was issued to the Senior Manager of NungambakkamBranch, Union Bank of India that the petitioner's contributiontowards provident fund from April 1996 to January 2001 should bemade immediately to the provident fund department so as to settlethe provident fund dues to the petitioner. Apparently, only atthe behest of the petitioner, such an action has been taken by therespondent bank. 2. It is stated in letter dated 16.8.2001 that thecontribution towards provident fund from April 1996 to January 2001was at Rs.21,864/- and thereafter on 1.9.2001, a memo of accountwith the working sheet of the provident fund account of thepetitioner shows that the bank's contribution with interest isRs.79,177.03. On such deposit to the provident fund department,the petitioner states that she has withdrawn the amount withoutprejudice. Thereafter, the petitioner requested the department toconsider her claim of pension optee stating that since the bank hasnot made any contribution from April 1996 to January 2001, the pleaof the petitioner that she has opted for pension scheme should beaccepted. The contention of the bank that no such option wasexercised by the petitioner is a belated stand taken to overcomethe claim of the petitioner. 3. In the counter filed by the bank, in paragraph 3, ithas been clearly accepted that the bank's contribution towards https://hcservices.ecourts.gov.in/hcservices/ provident fund was paid on 31.8.2001 only long after theretirement. According to the bank, the petitioner did not opttill 30.9.1994 for pension scheme to come within the purview of1993 Scheme. It was further contended that the petitioner receivedentire provident fund contribution including the managementcontribution and therefore, the question of opting under thepension scheme does not arise.4. Assuming without admitting that the petitioner didnot opt for the 1993 pension scheme, one fact is clear that on andfrom April 1996, the Bank has not made its contribution to theprovident fund in respect of the petitioner and it is only afterretirement of the petitioner, the entire contribution has beendeposited after a claim for pension by the petitioner. This factgives credence to the claim of the petitioner that she opted forpension scheme. If petitioner does not fall in 1993 scheme, shewill be entitled to pension scheme which came into effect from 1995for which the date for exercising the option is 26.1.1996. 5. The bank has, in paragraph 10 of the counteraffidavit, accepted the mistake by not remitting the contributionto the provident fund from April 1996 to January 2001. This couldbe so because of the petitioner opted for pension scheme in theyear 1995 and the bank stopped its contribution to Employeeprovident fund. The petitioner employee alone has made thecontribution towards provident fund. If this is accepted, the bankcannot resile from its obligation to accept the petitioner's claimthat she will be entitled to the benefit under the pension schemewith effect from 29.9.1995 as stated in paragraph 9 of the counteraffidavit. 6. In such situation, the respondent bank offered aproposal to the petitioner to redeposit the entire provident fundcontribution together with 6% interest so as to consider the claimunder the pension scheme. If the petitioner re-deposits the amount,which has already been withdrawn by her, the claim under pensionscheme gets revived. The learned counsel for the petitioner afterconsultation with the petitioner has filed an affidavit and therelevant portion reads as follows:-" I submit that in response to the proposal thesecond respondent has filed a memo dated 29.6.2009furnishing the calculation of the amount which I have torefund to the bank. https://hcservices.ecourts.gov.in/hcservices/ The calculation is as follows:-Bank Contribution of P.F. Rs. 79,177.03 6% interest per annum from from 1.9.2001 till 29.6.2009 Rs. 37,184.99 --------------------- Total Rs.1,16,362.02 ---------------------I submit that I further understand that I haveto pay the simple interest until the date of actualrefund made to the bank. I undertake to pay the amountof Rs.1,16,362.02 as on 29.6.2009 with further interestuntil the date of refund."7. Accordingly, the petitioner seeks pension with effectfrom 20.1.2001, (i.e.) the date of retirement under the voluntaryretirement scheme. The respondent Bank has also agreed to thisproposal. Once, it is accepted that the petitioner has opted underthe pension scheme and she is willing to deposit the amount whichhas been withdrawn by her, the plea for pension has to be acceptedas bonafide. Due to lapses on the part of the respondent bank, thepetitioner cannot be put to prejudice. 8. The petitioner is directed to deposit the amount,which has been withdrawn by her with 6% interest from 1.9.2001till the date of actual deposit as stated above within a period offour weeks from the date of receipt of a copy of this order. Therespondent bank, having accepted the proposal, is directed tocollect the amount to be deposited by the petitioner with 6%interest till the date of actual deposit. As and when thepetitioner makes such a deposit, the respondent bank has to issuenecessary proceedings and process the pension papers in accordancewith law and pay the pension. The writ petition is disposed ofwith the above direction. No costs. 10.7.2009This Petition having been posted on 23.12.2009 under thecaption "for being mentioned" subsequent to the order of this Courtdated 10.07.2009 and made herein and in the presence of theaforesaid Advocates, the court made the following Order:This matter is listed today under the caption "beingmentioned" at the instance of the learned counsel for therespondents. 2. Learned counsel for the respondents stated that the https://hcservices.ecourts.gov.in/hcservices/ proposal to redeposit the entire provident fund contribution withinterest was an offer made by the petitioner in accordance with theprovisions of the Union Bank of India Employees' PensionRegulations 1993 and the respondent bank only offered to considerthe same. To this effect he pleaded that the order should bemodified. 3. The respondent bank has to consider the case of thepetitioner in accordance with the Union Bank of India Employees'Pension Regulations 1993. The offer made by the petitioner is onlyin accordance with the above said Pension Regulations. There is nonecessity to clarify any further except to state that therespondent Bank will proceed on the basis of the Union Bank ofIndia Employees' Pension Regulations 1993. sd/-Asst.Registrar/true copy/ra Sub Asst.RegistrarTo1. The General Manager, Union Bank of India, 239, Vidhan Bhavan Marg, Nariman Point, Mumbai 400 021.2. The Sr. Manager (Personnel), Dept. of Personnel, Nodal Regional Office, Chennai.3. The Chief Manager, Union Bank of India, Nungambakkam Branch, Chennai.34.+ 1 c.c. to Mr. D. Krishnan, Advocate. S.R.No.71624. W.P.No.1921 of 200310.7.2009/23.12.2009KU (CO)GSK 10.08.2009.km/28.1.2010