Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.2334 of 2021 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Prasanta Kumar Pani Aged about 70 years Son of Late Narayan Pani Flat No.A-1/204, Bright Residency Jagannath Nagar Road No.12, GGP Colony Bhubaneswar District: Khordha. … -VERSUS- 1. Managing Director & Chief Executive Officer, Indian Bank Head Office: 254-260 Avvai Shanmugam Salai Royapettah Chennai – 600 014. 2. Deputy General Manager Indian Bank, Zonal Office B2-East, Sahid Nagar Bhubaneswar – 751 007. … Counsel appeared for the parties: Petitioner. Opposite parties. For the Petitioner : M/s. Saswat Das and Abhishek Mohanty, Advocates W.P.(C) No.2334 of 2021 Page 1 of 44 For the Opposite parties : M/s. Sitanshu Kumar Dey, Rita Dey, N. Pattanaik, Bibaswan Das and Anquib Ansari, Advocates R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 12.08.2024 :: Date of Judgment : 24.09.2024 J UDGMENT Challenging an order dated 28.09.2020 passed by the Managing Director-Chief Executive Officer, Indian Bank, wherein and whereby the prayer of the petitioner to include him as member of Pension Fund in terms of Allahabad Bank (Employees’) Pension Regulations, 1995 has been declined purportedly in compliance of the order dated 04.03.2020 passed by this Court in W.P.(C) No.231 of 2018 with a direction to consider his grievance keeping in view of the new Scheme being introduced by the said Bank on 20.06.2018, this writ petition has been filed craving to invoke extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, with the following prayer(s): “It is, therefore, humbly prayed that this Hon‟ble Court may graciously be pleased to: (i) Admit the writ petition; W.P.(C) No.2334 of 2021 Page 2 of 44 (ii) Call for the records, (iii) (iv) (v) Issue Rule Nisi calling upon the opposite parties to show cause as to why the impugned order dated 28.09.2020 issued by the opposite party no-1(Bank) under Annexure-9 shall not be quashed; If the opposite parties do not show cause or show insufficient cause, issue a writ in the nature of certiorari or any other appropriate writ/writs, order/orders and direction/directions thereby quashing the impugned order dated 28.09.2020 passed by the opposite party No.1 (Bank) under Annexure-9 and declare the same is illegal, arbitrary and non-est in the eye of law. Issue a writ in the nature of Mandamus or any other appropriate writ/writs, order/orders, direction/ directions directing the opposite parties particularly opposite party No.1 (Bank) to allow the petitioner to join the pension scheme in terms of Allahabad Bank (Employees‟) Pension Regulations, 1995 and the Instructions Circular No.11143/PA/2010-11/27 dated 15.09.2010 under Annexure-3 with all pensionary benefits as is admissible to the post of Senior Manager of the erstwhile Allahabad Bank and keeping in view the last pay drawn by the petitioner in consequence of his superannuation as a regular employee of the bank with effect from 31.08.2010 with 12% interest within a reasonable time to be stipulated by this Hon‟ble Court. (vi) Pass such other order/orders, direction/directions as this Hon‟ble Court may deem fit and proper. W.P.(C) No.2334 of 2021 Page 3 of 44 And for this act of kindness, the petitioner as in duty bound shall ever pray.” Facts: 2. Facts, as adumbrated by the writ petitioner, reveal that having joined in service as an Agricultural Field Officer on 10.01.1978 in erstwhile Allahabad Bank (Presently known as Indian Bank/Allahabad Bank after amalgamation) at Regional Office, Kolkata, the petitioner was promoted to the rank of Officer Scale-II on 19.03.1986 and posted as Deputy Manager (Advance) at Cuttack Main Branch, Odisha on 14.07.1986. 2.1. He performed his duty in different capacities being promoted and transferred, but while working in the post of Senior Manager (Advance) in the Regional Office, Mumbai, he was issued with a charge sheet on 17.03.1997 containing eleven charges with respect to transactions related to the period of posting as Senior Manager at Parel Branch, Mumbai from 12.10.1991 to 02.07.1995. 2.2. The penalty of “removal from service” vide order dated 19.08.1999 imposed by the Disciplinary Authority got
Legal Reasoning
affirmed by the Appellate Authority vide order dated 19.12.2000 with the rejection of the appeal of the petitioner preferred on 04.09.1999 and the Reviewing W.P.(C) No.2334 of 2021 Page 4 of 44 Authority by order 22.02.2002 declined to interfere in the review filed on 15.01.2001. 2.3. Assailing the said order(s) of punishment as confirmed by Authorities of the Bank, writ petition being W.P.(C) No.5845 of 2003 was preferred with prayers to quash the charge sheet as well as the punishment of removal from service and direct the opposite parties to extend all consequential service benefits, which came to be disposed of by a Single Judge vide judgment dated 04.08.2015, relevant portion of which reads as follows: “*** 19. Applying the above mentioned provisions and law laid down by the Apex Court to the present context, it appears that the Enquiry Officer has acted in gross violation of 1976 Regulation by not adhering to the principles of natural justice as required under law, inasmuch as, there is inordinate delay in conducting the enquiry, in consequence thereof the proceeding is vitiated. Accordingly, issue nos.(ii) and (iii) are answered. 20. This Court though was inclined to remit the matter back to the Enquiry Officer for re-adjudication, but it has been brought to notice of the Court that during pendency of the writ application, the petitioner has already attained the age of superannuation and after removal of service, he is residing at his permanent address at Bhubaneswar within territorial jurisdiction of this Court. Therefore, this Court is of the considered view that the entire W.P.(C) No.2334 of 2021 Page 5 of 44 thereof by Appellate Authority proceeding is vitiated due to non-compliance of Principles of natural justice and Rules governing the field. Accordingly, the order of punishment imposed by the Disciplinary Authority in Annexure-4 and confirmation in Annexure-5 and re-confirmation made by Reviewing Authority in Annexure-6 are hereby quashed and to extend all opposite parties are directed consequential service benefits as due and admissible to the petitioner in accordance with law forthwith.
Decision
21. Accordingly, the writ petition is allowed.” 2.4. The fact of no action taken by the opposite parties was brought to the notice of this Court by way of contempt petition, being CONTC No.1833 of 2015, which was disposed of on 23.12.2015 with further direction to the opposite parties to comply with the terms of the judgment dated 04.08.2015 within stipulated period. 2.5. Instead of complying, the opposite parties carried the matter further in intra-appeal under the Letters Patent constituting the High Court of Judicature at Patna before the Division Bench of this Court which gave rise to registration of W.A. No.543 of 2015 challenging the judgment dated 04.08.2015. This Court vide judgment dated 17.10.2016, while confirming the aforesaid judgment of the learned Single Judge, rendered judgment with following observation: W.P.(C) No.2334 of 2021 Page 6 of 44 “*** 10. In view of the discussion made above, there can be no second opinion that the Enquiry Officer had acted in a manner prejudicial to the respondent. It evinces from the record that the Enquiry Officer had proceeded with the enquiry only to punish the respondent. At all stages, respondent was subjected to harassment and prejudice. The respondent had no contribution for the delay caused in initiation of the disciplinary proceeding, manner of submission of the enquiry report as well as the disposal of the appeal. The respondent at present has crossed the age of superannuation. As such, direction for conducting a fresh enquiry would amount to further harassment of the respondent. Further, no fruitful purpose would be served in issuing such a direction for a de novo enquiry for the discussion made above. Thus, we are at one with the learned Single Judge. From the analysis made above, we find no merit in the writ appeal, which is accordingly dismissed.” 2.6. Dissatisfied thereby, Petition for Special Leave to Appeal (Civil) registered as SLP(C) No.35985 of 2016 being moved before the Hon’ble Supreme Court of India, the following order was passed on 16.12.2016: “Heard learned counsel for the petitioner. We do not find any legal and valid ground to entertain this special leave petition. The special leave petition is, accordingly, dismissed. However, the question of law is kept open.” W.P.(C) No.2334 of 2021 Page 7 of 44 2.7. Consequent upon finality being attained with respect to order passed in the disciplinary proceeding, a representation dated 26.12.2016 was submitted by the petitioner for release of consequential service benefits, responding to which the opposite parties released arrear salary, gratuity and amount of Contributory Provident Fund. 2.8. As the petitioner could not avail opportunity of exercising option under Instruction Circular No.11143/PA/2010-11/27, dated 15.09.2010 during the pendency of his dispute challenging punishment of removal from service, a representation was made on 10.02.2017 with a request to the opposite parties to extend such benefits as per entitlement under the Allahabad Bank (Employees’) Pension Regulations, 1995 (“Pension Regulations, 1995”, for brevity), relevant portion of said Circular is quoted hereunder: “*** 1. Eligibility criteria for exercising another Option as envisaged in the Memorandum of Settlement/Joint Note dated 27th April, 2010; 1.1. All workmen employees and officers (hereinafter referred to as „employees‟ for both the categories) who are/were in the service of the Bank as on the date of the Settlement/Joint Note, i.e., 27.04.2010, and exercise option to join the Pension Scheme in terms of the Settlement/Joint Note will contribute W.P.(C) No.2334 of 2021 Page 8 of 44 from their arrears on account of wage revision in terms of the Settlement/Joint Note between the parties, an amount of Rs.878 crores and Rs.922 crores respectively towards their share in the amount of Rs.1800 crores offered by UFBU towards 30% of the estimated funding gap of Rs.6000 crores (for the Banking Industry as a whole). The said amount is worked out @ 2.8 times of the revised pay for the month of November 2007 for individual employees. 1.2. Another option for joining the existing Pension Scheme (under ABEPR-1995) shall be extended to those employees who: 1.2.1.(a) were in the service of the Bank prior to 29th September, 1995 and continue in the service of the Bank on the date of the Settlement/Joint Note; (b) exercise an option in writing within 60 days from the date of offer, to become a member of the Pension Fund and (c) authorise the Trust of the Provident Fund of the Bank to transfer the entire contribution of the Bank along with interest accrued thereon to the credit of the Pension Fund. *** 3.12. Within 30 days from expiry of option period (i.e., 20.09.2010 to 18.11.2010) the optees, except the existing employees who are in the service of the Bank on the date of option, shall refund the entire amount of the Bank‟s contribution to the Provident Fund and interest accrued thereon received on W.P.(C) No.2334 of 2021 Page 9 of 44 retirement or death, as the case may be. Such refund shall be made together with 56% of the said amount of Bank‟s contribution to Provident Fund and interest thereon, towards optee‟s share of „funding gap‟ explained hereinabove, except where an amount equivalent to 2.8 times of revised „pay‟ of the ex-employer for November 2007 has been withheld from his/her arrear salary on account of wage revision. Regarding setting off the communication value and modalities of remittance, separate instructions will follow.” refund/contribution against the 2.9. As he was not in service at the relevant period on account of order passed by the Disciplinary Authority, challenge against which was sub judice before the Court, he was deprived of exercising the option in terms of aforesaid Instruction Circular dated 15.09.2010. Reference has also been made to another Instruction Circular No.15748/PA/2018-19/31, dated 20.06.2018 issued inviting “Option for Pension/Family Pension under Allahabad Bank (Employees’) Pension Regulations, 1995 to the Officers/Employees, Compulsorily Retired by the Bank” to contend that even in the year 2018 such Pension Regulations, 1995 was in vogue and could be extended to certain class of employees, who were made to retire compulsorily. Since the opposite parties failed to extend the benefit, the petitioner again came up before this Court by way of filing writ petition, registered as W.P.(C) No.231 of 2018, W.P.(C) No.2334 of 2021 Page 10 of 44 which came to be disposed of by order dated 04.03.2020 with the following observation: “Heard learned counsel for the petitioner and learned counsel for the opposite party nos.1 & 2. Taking into account the submission of learned counsel for the petitioner that the petitioner is relying on the new scheme being introduced by the Allahabad Bank filed by way of additional affidavit, this Court finds, the claim of the petitioner requires to be considered by the Chairman and Managing Director, Allahabad Bank-opposite party no.1. In such view of the matter, this Court remits the matter to the opposite party No.1 to consider the case of the petitioner and take a lawful decision in the matter keeping in view the new scheme being introduced by the Bank on 20.06.2018. The entire exercise shall be completed giving opportunity of hearing to the petitioner, within a period of two months from the date of communication of a certified copy of this order by the petitioner. Issue urgent certified copy on proper application.” 2.10. In purported compliance of the order dated 04.03.2020 passed by this Court in W.P.(C) No.231 of 2018, the Managing Director-Chief Executive Officer, Allahabad Bank-opposite party No.1 while rejecting the claim of the petitioner made following observation in his order dated 28.09.2020: “*** W.P.(C) No.2334 of 2021 Page 11 of 44 It is seen that Sri P.K. Pani was treated to have been superannuated on 31.08.2010 as the punishment order was quashed in W.P.(C) No.5845 of 2003 and the consequential benefits were settled. After claiming all benefits like salary, PL encashment, Provident Fund, Gratuity for the entire period. Sri P.K. Pani has requested that the benefit of Pension also may be extended to him. He has further submitted that Compulsorily Retired Employees were given the option to join the Pension Scheme in 2018. The Scheme introduced on 20.06.2018 submitted by Sri P.K. Pani before the Hon‟ble High Court was for extending the Pension‟s Option to Compulsorily retired employees who had applied to join the Pension Scheme when it was extended in 2010 but were not permitted by Banks for the reason that they were imposed with the punishment of Compulsorily Retirement, is not applicable in the case of Sri P.K. Pani who was treated as having superannuated on 31.08.2010 and had received consequential benefits. It is pertinent to note here that, many Provident Fund optees who were in the service of the Bank in 2010 have not joined the Pension Scheme and have continued to remain as PF optees. Some of these employees have on a later date, citing various reasons, requested the Bank to be allowed to join the Pension Scheme. However, the same could not be permitted as the Scheme was opened and closed with a stipulated timeframe and the eligibility was subject to fulfilment of terms & conditions specified therein, by the employee. including The Bank has paid all relevant benefits backwages to Sri P.K. Pani as per Court order, treating him to have superannuated. The Bank however cannot extend the benefit of the Scheme on a presumption that W.P.(C) No.2334 of 2021 Page 12 of 44 had the retiree been in the service of the Bank on the relevant date he might have opted to join the Pension Scheme. In the light of the above, I find that the request of Sri P.K. Pani to be included in the Pension Scheme and for grant of pension cannot be considered favourably and is hereby declined.” 2.11. Assailed in the instant writ petition is said decision of the opposite party No.1. Hearing: 3. On being noticed, the opposite parties have filed counter affidavit and the petitioner has also filed rejoinder affidavit. Pleadings, being completed and exchanged amongst the counsel for respective parties, on consent of counsel for the parties, this matter is taken up for final hearing at the stage of admission. 3.1. Accordingly, heard Sri Saswat Das, learned Advocate for the petitioner and Sri Sitanshu Kumar Dey, learned Advocate for the opposite parties and the matter stood reserved for preparation and pronouncement of Judgment. Rival contentions and submissions: 4. Sri Saswat Das, learned counsel appearing for the petitioner submitted that having worked in and for the opposite party-Bank since 10.01.1978, the petitioner W.P.(C) No.2334 of 2021 Page 13 of 44 was not in service by virtue of an order dated 19.08.1999 imposing penalty of removal from service by the Departmental Authority. It is contended that had he not been so removed, he would have continued till 31.08.2010, i.e., the date of attaining the age of superannuation. Therefore, referring to Circular dated 15.09.2010, he submitted that though the petitioner fulfils the conditions stipulated in said Circular, but for the period for exercise of option specified in the said Circular, he ought to have been afforded opportunity to exercise such option condoning such period in consideration of the fact that he was not in service during the period so specified. It is the opposite parties who proceeded further in the matter after the learned Single Judge quashed the punishment of removal from service, but they remained unsuccessful before the Division Bench of this Court as well as the Hon’ble Supreme Court of India. The dispute came to an end with the dismissal of special leave to appeal preferred by the opposite parties on 16.12.2016. 4.1. It is submitted by the learned counsel for the petitioner that though there is no interdiction in Regulation 14 of the Regulations, 1995, with respect to period within which the option for availing pensionary benefit under such Regulations, the stipulation as to such period in the Circular dated 15.09.2010 being contrary to said W.P.(C) No.2334 of 2021 Page 14 of 44 provision, the terms of said Circular is required to be treated as directory. Ignoring such cut-off period restriction, the petitioner should have been granted opportunity to exercise the option as specified under the Pension Regulations read with the Circular dated 15.09.2010. 5. At this stage Sri Sitansu Kumar Dey, learned Advocate for the opposite parties laid objection to the contention of the learned counsel. He would submit that the Instruction Circular dated 15.09.2010, being binding on the opposite parties, no condition laid therein can be ignored or relaxed at the option of the authority concerned. 5.1. In this regard, relying on the judgment dated 20.11.2019 of this Court rendered by a learned Single Judge in W.P.(C) No.7326 of 2012 (Dhirendra Kumar Behera Vrs. Indian Bank), learned counsel for the opposite parties- Bank submitted that in similar circumstances as that of the present case, the cut-off date stipulated for exercise of option from the date of offer to become member of the Pension Fund could not be relaxed. Analysis and discussions: 6. Undisputed facts are culled out as follows: W.P.(C) No.2334 of 2021 Page 15 of 44 a. The petitioner joined in service on 10.01.1978 and faced disciplinary proceeding being initiated on 17.03.1997 with respect to alleged transactions during 12.10.1991 to 02.07.1995. b. The Disciplinary Authority imposed penalty of “removal from service” vide order dated 19.08.1999; which being challenged in appeal, the Appellate Authority confirmed such penalty vide order dated 19.12.2000. The review against such order(s) also got dismissed on 22.02.2002. c. Questioning propriety of such punishment as upheld by the Authorities of the Bank, writ petition under Article 226/227 was preferred leading to registration of W.P.(C) No.5845 of 2003 in this Court, wherein not only the order imposing punishment by the Disciplinary Authority as confirmed by the Appellate Authority as well as the Reviewing Authority was quashed but also the Authorities were directed to extend all consequential service benefit(s). Such view of the learned Single Judge also got confirmed vide judgment dated 17.10.2016 of the Division Bench in the intra-Court appeal, being W.A. No.543 of 2015, preferred by the opposite parties. Further proceeding in SLP(C) No.35985 of 2016 before the W.P.(C) No.2334 of 2021 Hon’ble Supreme Court of India by the opposite Page 16 of 44 parties-Bank remained unsuccessful as said SLP got dismissed on .16.12.2016. 7. The pertinent question, therefore, emanates from the above factual matrix is that whether the petitioner is entitled to the benefit conferred under the Allahabad Bank (Employees’) Pension Regulations, 1995 read with Instruction Circular dated 15.09.2010. 8. It was vehemently argued by the learned counsel that the petitioner had the requisite qualifying service for availing benefit under the Pension Regulations vide Allahabad Bank Head Office Notification dated 29.09.1995, formulated in exercise of powers conferred by clause (f) of sub-section (2) of Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, Regulation 14 ibid. stands thus: “14. Qualifying Service.— Subject to the other conditions contained in these regulations, an employee who has rendered a minimum of ten years of service in the Bank on the date of his retirement or the date on which he is deemed to have retired shall qualify for pension.” 8.1. Having joined in service on 10.01.1978, though the petitioner was handed over the penalty of removal from service on 19.08.1999, he had completed ten years of service in the Bank by the time of his retirement on Page 17 of 44 W.P.(C) No.2334 of 2021 31.08.2010 (as he would have continued in service without the punishment in Disciplinary Proceeding). It is noteworthy that since the punishment was nullified by this Court, it is deemed that the petitioner got retired on 31.08.2010 on attaining the age of superannuation, which fact has been admitted by the opposite parties in counter. 8.2. As per eligibility criteria specified in paragraph 1.2.1(a) of the Instruction Circular dated 15.09.2010, it is admitted by the opposite parties in the counter affidavit that the petitioner has been in service prior to 29.09.1995 and continued as on the date of Settlement/Joint Note, i.e., 27.04.2010 as he is allowed to retire on 31.08.2010 after finality in the dispute regarding removal from service has been attained by dismissal of special leave to appeal by the Hon’ble Supreme Court of India. 8.3. Sri Saswat Das, learned Advocate pointed out the following factual depiction made by the opposite parties in the counter affidavit: “4. That so far as contention made in paragraph 16(a) to (d) that since after dismissal of SLP the opposite parties treated the petitioner as in service and allowed him to superannuate as a regular employee with effect from 31.08.2010 on attaining the age of superannuation there is no doubt the service of the petitioner is covered within sub-clause (a) sub-clause Page 18 of 44 W.P.(C) No.2334 of 2021 in 1.2.1 of clause 1.2 of the Circular dated 15.09.2010 and the petitioner was treated to be a regular employee who was in service of the bank prior to 29.09.1995 and continued in service of the bank on the date of settlement/joint note, i.e., 27.04.2010 and under no circumstances the petitioner can be deprived from availing the opportunity to join the terms of Circular dated Pension Scheme 15.09.2010 and further that the petitioner had to fight the litigation for sixteen years from the date of termination till the order of dismissal was passed by the Hon‟ble Apex Court in the year 2016 and it is not a fact that the Petitioner knowingly did not exercise option in terms of the circular and subsequently requested the bank to avail the Pension Scheme rather it is a fact that the circumstances with effect from the date of removal till the final order passed by the Hon‟ble Apex Court were not within the control of the Petitioner and the Petitioner was compelled to fight litigation in several court of law to protect his integrity therefore the petitioner under no circumstances can be equated with other employees who did not avail the Pension Scheme and requested the bank at a later date to consider their case and that had there been no departmental proceeding the Petitioner could have availed the Scheme and therefore the case of the petitioner is to be treated as special case and further that the opposite party No.1 was under impression that the petitioner wants to avail pension under 2018 Scheme rejected his claim and that the the opposite party No.1 amendment brought clauses of Allahabad Bank (Employees‟) Regulations, 1995. In terms of the amendment there is no doubt the Page 19 of 44 failed to different to appreciate interest and W.P.(C) No.2334 of 2021 employees of the bank who were in service of the bank prior to 29.09.1995 and continued in the service of the bank as on 27.04.2010 have been brought under the purview of Pension Scheme, are all self-serving contentions for the reason that as per sub-clause 1.1 of Clause 1 of Annexure-10 of the writ petition the circular dated 20.06.2018, pension option to be extended to those officers/employees who were in the service of the Bank before 29the September, 1995 and compulsorily retired on by the bank between 29.09.1995 to 27.04.2010 did not opt for pension under the said pension scheme of 1995 shall be eligible for pension under ABEPR 1995 *** and as per sub-clause 2.3 of clause 2 Officers/ employees who were retired from Bank‟s service other than compulsorily retirement *** shall not be eligible. Thus it is crystal clear that annexure 10 had no applicable to the case of the Petitioner. It is further submitted that the amendment referred to in Paragraph 12(d) at the face of it indicates that the amendment is subject to the proviso that such employees meets the requirement and comply with the condition laid down in the settlement. It is respectfully submitted that annexure-3 to the writ petition the Circular dated 15.09.2010 specifically provides under the heading of Eligibility Criteria for exercising another Option as envisaged in the Memorandum of Settlement/Joint Notes dated 27.04.2010 under sub-clause 1.2.1 (a) & (b) of clause that “those employees were in the service of the bank prior to September, 1995 and continue in the date of the service of settlement/joint note exercise an option in writing within 60 days from the date of offer to become a member of the Page 20 of 44 fund ***”. Thus the bank on the pension i.e. W.P.(C) No.2334 of 2021 applicable of the said circular being subject to exercise of option has no application to the case of the Petitioner who initially had not chosen to join the Pension option when the Pension scheme was introduced in 1995 and after claiming all benefits like salary, PL encashment, Provident Fund, gratuity for the entire period has requested that the benefit of Pension also may be extended to him on the ground that had the retiree been in service of the bank on the relevant date he might have opted to join the Pension Scheme is untenable under law and hence there is no illegality in the decision arrived at in annexure-9 providing reasons for such finding.” 8.4. As it appeared from the above assertion, only objection that is raised by the opposite parties is that the petitioner having not exercised the option within 60 days from the date of offer to become a member of the Pension Fund, he is disentitled from availing the benefit of Pension Regulations read with Instruction Circular dated 15.09.2010. Such an objection appears to be tainted with non-application of mind and none can be supposed to perform which is impossible due to the prevailing circumstances beyond control at the relevant point of time. From 1999, when he was removed from service, to 2016, when the special leave to appeal got dismissed by the Hon’ble Supreme Court of India, the petitioner had no control over the events and he was outside the Bank service. Therefore, it is obvious that he could not have W.P.(C) No.2334 of 2021 Page 21 of 44 the occasion to exercise his option within 60 days from the date of Settlement/Joint Note. 8.5. In order to draw analogy, Sri Saswat Das, learned Advocate brought on record the fact that by Instruction Circular bearing No.15748-PA/2018-19/31, dated 20.06.2018, period of “sixty days from the date of Circular” has been granted to the employees, who got “compulsorily retired by the Bank” to exercise option to become a member of the Pension Fund. At this juncture referring to order dated 04.03.2020 passed by this Court in W.P.(C) No.231 of 2018, it has been submitted by learned counsel that the opposite party No.1 was directed “to consider the case of the petitioner and take a lawful decision in the matter keeping in view the new scheme being introduced by the Bank on 20.06.2018”. It may be pertinent to notice that the opposite party No.1 has ignored to obey the true purport of direction contained in the judgment dated 04.08.2015 rendered in W.P.(C) No.5845 of 2003, wherein this Court inter alia “directed to extend all consequential service benefit as due and admissible to the petitioner in accordance with law forthwith”. 8.6. It is manifest from the statement made in the counter affidavit by the Bank (as extracted in foregoing paragraph) read with the impugned order dated 28.09.2020 passed by the opposite party No.1 that the W.P.(C) No.2334 of 2021 Page 22 of 44 Managing Director and Chief Executive Officer misdirected himself while rejecting the relief claimed by the petitioner. 8.7. Sri Saswat Das, learned Advocate in order to countenance his submission that there was no scope to reject the claim of the petitioner, placed on record the fact that the Government of India in Ministry of Finance (Department of Financial Services) vide Letter No.e-F No.4/8/2023-IR, dated 16.03.2024 extended the option of pension to the resignees who were otherwise eligible to join the Pension Scheme under the Bank Employees’ Pension Regulations, 1995 (Annexure-12). 8.8. This Court finds force in the submission that the Bank has been extending the benefit under the Pension Regulations in the year 2018 and 2024 to the compulsory retirees and the resignees respectively. Therefore, there is no scope to deny similar benefit to the employees like the petitioner who was before the Appellate Authority, this Court and the Hon’ble Supreme Court of India right since 1999 till 2016, and could not exercise option to become member of the Pension Fund during 2010 due to circumstances beyond his control. After finalisation of his matter, when the petitioner was treated to have been in service seamlessly till he attained the age of superannuation on 31.08.2010, he should W.P.(C) No.2334 of 2021 Page 23 of 44 have been afforded opportunity to exercise the option as contained in the Instruction Circular dated 15.09.2010. 8.9. Thus, denying to reap the benefit of Instruction Circular dated 15.09.2010 on the ground that the petitioner did not exercise option within stipulated period contained therein to become member of the Pension Fund in terms of Pension Regulations, 1995 is illogical and irrational inasmuch as the circumstances which fell upon the petitioner during 1999 to 2016 did not allow him to avail the benefit. At this stage it may be apt to have regard to Popatrao Vyankatrao Patil Vrs. State of Maharashtra, (2020) 3 SCR 789: “8. In Madras Port Trust Vrs. Hymanshu International, (1979) 4 SCC 176 this Court held: (SCC p. 177, para 2) „2. for technical pleas *** It is high time that Governments and public authorities adopt the practice of not relying upon the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the W.P.(C) No.2334 of 2021 Page 24 of 44 purpose of resisting such a claim has become unavailable.‟ 9. In a three-Judge Bench judgment of Bhag Singh Vrs. UT of Chandigarh, (1985) 3 SCC 737 this Court held: (SCC p. 741, para 3) „3. *** The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen.‟ ***” 8.10. It may, in the present context, be fruitful to discuss the maxim Impotentia Excusat Legem (Impossibility excuses the law and Inability excuses the non-observance of the law) or Lex Non-Cogit Ad Impossiblia (the law shall not expect the performance of the impossible) 8.11. In Industrial Finance Corporation of India Ltd. Vrs Cannanore Spinning & Weaving Mills Ltd., (2002) 5 SCC 54 it has been observed that where law creates a duty or charge and the party is disabled to perform it, without any default in him and has no remedy over, there the law will in general excuse him; and though the impossibility of performance is, in general, no excuse for not performing an obligation which a party has expressly undertaken by contract, yet when the obligation is one W.P.(C) No.2334 of 2021 Page 25 of 44 implied by law, the impossibility of performance is a good excuse. 8.12. In Re: Special Reference No.1 of 2002, Ref. by President,