Writ Petition No. 11359 of 2013. Case: Ramesh Gajanan Nigudkar Vs The Bank of Baroda and Anr.. High Court of Bombay (India)
| Case Number | Writ Petition No. 11359 of 2013 |
| Counsel | For Appellant: Mr. S.A. Vaidya a/w Ms. Sangita Walke, Advs. and For Respondents: Mr. Lancy D'Souza a/w Ms. Deevika Agarwal I/b Mr. V.M. Parkar, Mr. D.A. Dubey a/w Mr. M.M. Chunawalla, Advs. |
| Judges | Anoop V. Mohta & G.S. Kulkarni, JJ. |
| Issue | Constitution of India - Articles 226, 14, 21, 12 |
| Judgement Date | August 18, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
G.S. Kulkarni, J.
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Rule returnable forthwith. Respondents waives service. By consent of the parties taken up for final hearing.
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This is an unfortunate case wherein the petitioner who retired after 39 years of unblemished service with the 1st respondent, has been deprived of the benefits of pension under the Bipartite Settlement/Joint Note dated 27 April 2010, when admittedly he is held eligible for pension, the reason being that the petitioner did not deposit within three days, some amount as stated under the 1st Respondent's acceptance letter. In nutshell the facts are:
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The petitioner joined service of the 1st respondent as a subordinate staff on 4 March 1967. After thirty nine years of service, the petitioner superannuated on 31 October 2006.
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It is the petitioner's case that the 1st respondent had earlier entered into a settlement with the Bank employees and accordingly a Circular/Notification was issued under which employees who retired post 1995 (29 September 1995) were entitled to a pension option. However as it was intended that the benefit of a pension option be further extended. The United Forum of Bank Unions comprising of different Unions/Associations of Workmen and Officers of Banks (UFBU) and Indian Bank Association (for short 'IBA') entered into a Memorandum of Understanding dated 25 February 2008 to consider extending another option for pension to those employees who did not opt for pension when the Bank Employees' Pension Regulations 1995 dated 29 September 1995/26 March 1996 were implemented. Accordingly, a Joint Note dated 27 April 2010 was signed between the IBA and Workmens Union to offer pension option to certain category of employees. This was communicated to the member banks of IBA for its implementation by notification dated CIR/HR & IR/G2/665/90/201011/ 999 dated 10 August 2010. Pursuant to the said Joint Note a Circular dated 9 September 2010 was issued by the 1st respondent. The relevant extract of the said Circular needs to be noted and reads thus:
"Re:Pension OptionBank of Baroda Employees' Pension) Regulation 1995Implementing Pension Settlement pending amendment to Pension (Regulations) issuance of option letters to existing Employees/Officers."
In terms of the Agreement/Joint note dated 27.4.2010 entered into/agreed between IBA and the Workmen Unions Officers Organizations it has been advised by Indian Banks Association vide their communication under reference No.CIR/HR &IR/G2/695/00/201011/ 999 dated 10.8.2010 that option to join captioned pension scheme to be extended to these employees/Officers.
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Who were in service of the bank prior to 29th September 1995 and continue in the service of the bank on the date of Bipartite Settlement/Joint Note i.e. 27th April 2010.
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Such employees shall exercise an option in writing within 60 days from the date of the offer to become a member of the Pension Fund and
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Shall authorize 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 along with the pension cost equivalent to 2.8 times of the revised pay for the month of November 2007 recovered from the arrears paid on account of Bipartite Settlement/Joint Note dated 27.4.2010 towards estimated individual funding gap.
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Who were in service of the bank prior to 29th September 1995 and retired after that date and prior to the date of this Bipartite Settlement/J oint Note i.e. 27 th April 2010.
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Such employees shall exercise an option in writing within 60 days from the date of offer to become a member of the Pension Fund and
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Shall refund within 30 days after expiry of the said period of 60 days, the entire amount of the banks contribution to the Provident Fund and interest accrued thereon received by the employee/officer on retirement together with his/her share in contribution towards meeting 30% of Rs.3115 crores which is estimated and reckoned as the funding gap. On an individual basis, the payment over and above the bank's contribution to Provident Fund and interest thereon has been worked out at 50%of the said amount of bank's contribution to Provident Fund and interest thereon received by the employee/officer on retirement."
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The petitioner fell in category B above having retired on 31 October 2006. A pension option was not applicable under the said joint note to those employees who would retire on or after 1 April 2010. In pursuance of the above circular/notification, the petitioner submitted an application dated 7 October 2010 to the 1st respondent availing a pension option.
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It is the case of the petitioner that subsequently another Circular was issued by the 1st respondent on 9 December 2010 whereby all retired employees who were eligible for a pension option were stated to be also eligible for a loan under the Baroda Loan to Retirees for Pension Option." The petitioner states that being a retired employee the petitioner was covered under the said Circular and was entitled for a loan as per Notification dated 27 April 2010 and further notification dated 9 December 2010. The 1st respondent has disputed issuance of any such Circular dated 9 December 2010. However, the 1st respondent does not dispute that such a loan was made available to the retired employees.
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The petitioner avers that the 1st respondent accepted the petitioner's application holding him eligible for grant of pension. As also the petitioner was allowed to undergo a medical examination for availing the commuted value of 1/3rd of the basic pension. The 1st respondent issued a communication dated 9 December 2010 addressed to the petitioner accepting the pension option form. To this letter was enclosed a calculation sheet showing the amount of pension/commutation and pension for the period 27 November 2009 to 31 October 2010 as also taking into account certain CPF amount which was initially received at the time of retirement by the petitioner which was required to be refunded to the 1st respondent. Accordingly a summarized amount of Rs.3,17,280/was arrived at which was required to be refunded by the petitioner to the 1st respondent. What is crucial to be noted in this letter are the following contents:
" You are therefore advised to deposit an amount of Rs.THREE LACS SEVENTEEN THOUSAND TWO HUNDRED EIGHTY ONLY in the Account No.0930200030378 in the name of BOB PENSION COST RECOVERED RETIRED EMPLOYEES ACCOUNT opened for the purpose on or before 12.12.2010 failing which option exercised by you shall stand cancelled and no correspondence in this regard will be entertained. Please note that while depositing the above amount, you should ensure that branch invariably mentions your Name,EC Number and Form No in transaction particulars.
Bank has launched "Baroda Loan to Retirees for Pension Option" to pay the amount of difference between the refundable amount of PF payable by the retirees option for pension vide Circular NO.BCC:BR102: 336 dated 4.12.2010. KINDLY CONTACT PENSION PAYING BRANCH FOR THE PURPOSE." (emphasis supplied)
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Thus, what can be seen from the above contents of the acceptance letter, is that within three days the petitioner was called upon to deposit Rs.3,17,280/failing which the consequence would be that the option exercised by the petitioner would stand canceled and no correspondence in this regard would be entertained. At the same time the petitioner was informed that the 1st respondent had launched a "Baroda Loan to Retirees for Pension Option" so as to enable the petitioner to avail of a loan and to pay the amount of difference between the refundable amount of Provident fund payable by the retirees, and for that purpose the petitioner was required to contact the pension paying branch. The case of the petitioner is that this letter dated 9 December 2010 was received by the petitioner on 14 December 2010.
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The petitioner therefore by his letter dated 18 December 2010 addressed to the Assistant General Manager of the 1st respondent requested for extension of the date for deposit of the amount of Rs.3,17,280/. The petitioner specifically recorded that the said letter of the 1st respondent dated 9 December 2010 accepting the petitioner's pension option was received by the petitioner on 14 December 2010 and thus in any event the difference amount could not have been deposited by 12 December 2010. The petitioner also stated that he was a retired person, not earning anything and it was difficult for him to immediately remit the amount as per the 1st respondent's letter dated 9 December 2010 as he was required to avail loan from Goregaon (West) Branch, Mumbai as permissible for making the said payment. It was therefore, requested that the date of payment of Rs.3,17,280/be extended as also the concerned branch be advised to sanction and disburse loan to the petitioner and credit the amount of Rs.3,17,280/in the 1st respondent's recovery account.
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The above letter of the petitioner dated 18 December 2010 was forwarded by the Deputy General Manager to the General Manager by his letter dated 21 December 2010 recording the fact that the petitioner had received the pension option acceptance letter dated 9 December 2010 after the expiry of the payment date i.e.12 December 2010 and as the date of deposit of the principal amount had lapsed, the General Manager was requested for instructions/guidance in the matter. An endorsement was made on said letter by the Senior Manager (HRM) Regional Office stating and confirming that the General Manager had advised on telephone that case of the petitioner was referred to the Head Office, Pension Department directly by email seeking guidance. It was recorded that "We trust that action must have been taken at your end." Notably the fact that the pension option acceptance letter dated 9 December 2010 was received late by the petitioner on 14 December 2010 was never disputed by the 1st respondent.
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Thereafter, the General Manager of the...
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