Pension to Pre 01-11- 1993 Resignees - Issue before Three Judge Bench of SC
The law under article 141 of Constitution of India was "settled" by Supreme Court of India in UCO Bank vs. Sanwarmal as applicable to pre 01-11- 1993 resignees in Banks for eligibility of pension. Whether the Court has taken all the facts and principles of justice into consideration while deciding the issue is a moot point now as no other possible view can be expressed by lower Courts when SC pronounces law. Hopes raised by the decision of a coordinated bench in Sheelkumar Jain vs. New India Assurance Company were put to rest by M.R.Prabhakar and others. Vs. Canara Bank and others. with restatement of the law pronounced in UCO Bank vs. Sanwarmal. The Division Bench in MR Prabhakar was of the view that in Sheelkumar the court considered the "Insurance Scheme" while in the former the Court was considering "Pension Scheme". Here also, there is no use grumbling that both are "pension schemes" and both the regulations are in para materia. It is so because what the Apex court says is law. The liberal interpretation of the beneficial provisions to achieve the desired objects advanced by the Court in Sheelkumar Jain could not sustain for long. The benefit of it could not be made applicable to Ex Bank Employees in M.R.Prabhakar and others vs. Canara Bank, Union Bank of India, Syndicate Bank and State Bank of Mysore by the strict "literal" interpretation of the regulations. Initially this case was heard by the same Division Bench which decided Sheelkumar Jain. But the mighty battery of advocate lobby in SC representing all the four PSBs could manage the case transferred to a different bench . Finally Banks had the last laugh. The result is denial of pension to bank resignees prior to 1993 till date. By and large, the decision in MR Prabhakar has cast its ugly shadow on 2nd option of pension to resignees post 29-09- 1995 too. On 12-10- 2015, a noble bench(headed by a Justice who had earlier decided Vijaya Bank case in KHC) of SC in Asger Ibrahim Ameen vs. LIC of India relying on the authority of Sheelkumar Jain observed that "State as a model employer should construe provisions of a beneficial legislation in a way that extends the benefits thereunder to its employees, instead of curtailing it", and ordered that pension should be extended to the employee even when the employee has "resigned" as the resignation is in essence voluntary retirement because he has put up twenty years of service enabling voluntary retirement and he has fulfilled substantially the essential conditions of voluntary retirement. The court observed as below while allowing the appeal:.
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"The commendable objective of the Pension Rule is to extend benefits to a class of people to tide over the crisis and vicissitudes of old age, and if there are some inconsistencies between the statutory provisions and the avowed objective of the statute so as to discriminate between the beneficiaries within the class, the end of justice obligates us to palliate the differences between the two and reconcile them as far as possible. We would be failing in our duty, if we go by the letter and not by the laudatory spirit of statutory provisions and constitutional rights guaranteed under Article 14 of the Constitution of India."
This Bench went further. While Interpreting the term "Resignation"( In regulation 23 of LIC Pension Regulations)which was not defined either in the Pension Regulations or Service Regulations, the court virtually defined the expression "Resignation" by observing that the relevant "regulation envisages where the right to pension has not been earned by that time or where it is without the permission of the Corporation(LIC)" It means, where the employee has not completed 20 years of qualifying service or where the employee has completed the qualifying service if the employee left the service on his own without acceptance of the resignation/deemed permission of the competent authority. It is not out of place here to mention that the petitioner did not receive pension till 22nd July 2016 eventhough the court ordered payment within 15 days of the order. On 26-11- 2016, the Division Bench headed by Justice Deepak Mishra (who was the co-author of the judgement in MR Prabhakar) in SLP(C) No.24108/2012(now CA 14739/2015) Sr. Divisional Manager, LIC vs. Lal Meena, (which is an identical case of Asger Ameen) differed with the authority in CA 10251/2014 Asger Ameen vs. Lic of India(evidently with Sheelkumar) and referred the matter to Chief Justice of India for placing before larger bench. The relevant portion of the judgement is extracted here below:
" We may further note here that whether an employee can take voluntary retirement would depend upon the conditions of employment and the rules applicable to the scheme of voluntary retirement. When Rule 31 was not in operation, the question would arise whether the benefit can be given to an employee who had retired from service. Be it noted that the 1995 Rules are not entirely retrospective. They have limited retrospectivity. Rule 31 expressly has not been made retrospective. Retrospectivity creates a given fiction and, therefore, unless there is express provision or it can be impliedly inferred from the plain and unambiguous language used, a provision should not be given retrospectivity. To arrive at the real meaning, it is always necessary to understand the scope and object of the whole enactment or the rules. In the said context, the relevant factors are general scope and purview of the statute; remedy sought to be achieved; former state of law and what was contemplated. Unless these conditions are satisfied, it is difficult to treat Rule 31 of the 1995 Rules as retrospective, in the absence of any deemed clause that the employees who had earlier resigned shall be treated as employees as if they had voluntarily retired. In fact, if such an interpretation is placed on the said Rule, it will be travelling beyond 31 the language employed therein. In Asger Ibrahim Amin (supra), retrospectivity has been given to Rule 31, and for said purpose the amendment to the 1960 Regulations, specifically Regulation 19(2A) has been taken recourse to. In our view, when Rule 31 covers the field of voluntary retirement and does not make it retrospective, there being a real difference between resignation and retirement, it is not seemly to read the amended regulations to the rules to make the same retrospective. Therefore, we are unable to concur with the view expressed in Asger Ibrahim Amin"
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Now one more case of Pre 1993 reached the Apex Court in the way of SLP No.36288/2015 Punjab National Bank vs. H.C.Arora against the Judgement of Punjab and Haryana Court, Chandigarh. Notice was served on the respondent , who filed his counter affidavit. The SC website says it is likely to be listed on 22/11/2016. The vital aspect of the case is that the writ petitioner, who is an eminent social activist and an advocate of good standing, in the case challenged the vires of the regulation 29 of Pension Regulation 1995 which are applicable to retirees on superannuation only during the period 01.01.86 to 31.10.1993 discriminating the resignees/voluntary retirees during the period with qualifying service. In that context he got a favourable judgement on the ratio of Sheel Kumar Jain. Now Bank has filed SLP basing on the ratio in MR Prabhakar.
In the mean time four more cases of Pre 1993/95 resignees reached Apex Court by way of SLPs No.5716-19/2016 M.Venkateswara Rao and 3 others vs. Andhra Bank against AP High Court Judgement allowing Review Petitions. The Petitioners won the cases before single judge and division bench of APHC. Bank preferred SLP in SC and withdrew the petition with liberty to file review petition in HC. Bank filed Review Petitions, cited M.R.Prabhakar case and got Review petitions allowed on 09/10/2015. Now these ex-employees are before the Supreme Court with SLPs.
The Chief Justice of India allocated the reference made by the Division Bench in CA 14739/2015 over disagreement in CA 10251/2014 to the three judge bench headed by Hon. Ranjan Gogoi, who would be future justice of India some time in 2018. It is not known, whether any specific point was referred to or the whole Case CA 14739/2015 was referred to. If the specific point was referred to, the bench would answer only that point and refer the case back to the original Division Bench for final adjudication. The three judge benches normally sit at 2.00 p.m. on every Monday and Friday. The case is yet to be listed before the three judge bench, as per the advocate representing the case. If past is any indication, under normal circumstances. it takes around one year for disposal. It may vary, if the Bench has more cases pending.
The Petitioners in SLP 5716-19/2016 M.Venkateswara Rao and others could successfully plead that their issue is similar to the one in CA 14739/2015(LIC case) and secured the Division Bench order on 08/03/2016 to issue notice to Andhra Bank and got the SLPs tagged with CA 14739/2015. Now the issue of the Bank Resignees prior to 1993 also has been referred to the larger bench. This is a big a success on the part of the petitioners, case managers and advocates. Primia facie they could establish that Sheel Kumar is no "Insurance Scheme" but a "Pension Scheme" on par with Bank Pension scheme and the Regulation affecting the expression "Resignation" in both the Regulations is identical.
The settled legal position is :"Beneficial legislation should have liberal construction with a view to implementing the legislative intent but where such a beneficial legislation has a scheme of its own there is no warrant for the court to travel beyond the scheme and to extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered by the scheme".
Let us hope the court will interpret "Resignation" in Regulation 22 of Bank Pension Regulations 1995 vis-à- vis Voluntary Retirement in Regulation 29 of Pension Regulaitons 1995. If there is any confliction, it would harmonise as done in Bank of Baroda vs. SK. Kool. The author of this article refrains from going in detail to the points differed by the Division Bench in CA 14739/2015 on the authority of Asger Ameen vs. LIC of India (CA 10251/2014) and also wish to avoid speculation over the impending judgement of the larger bench.
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