United
Bank of India Vs. Pijush Kanti Nandy & Ors. [2009] INSC 1396 (4 August
2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2009
(Arising out of SLP (C) No.26879 of 2005) United Bank of India ... Appellant
Versus Pijush Kanti Nandy & Ors. ... Respondents
S.B.
Sinha, J.
1.
Leave granted.
2.
The Service Conditions of the employees of United Bank of India
are governed by United Bank of India (Officers) Service Regulations, 1979 (for
short, `the Regulations).
Regulation
19 of the Regulations reads as under:
"19.(1)
The age of retirement of an officer employee shall be as determined by the
Board in 2 accordance with the guidelines issued by the Government from time to
time-- Provided that the Bank may, at its discretion, on review by the Special
Committee as provided hereinafter in sub-regulation (2) retire an officer
employee on or at any time after the completion of 55 years of age or on or at
any time after the completion of 30 years of total service as an officer
employee or otherwise, whichever is earlier;
Provided
further that before retiring an officer employee, at least three months' notice
in writing or an amount equivalent to three months' substantive salary/pay and
allowances, shall be given to such officer employee;
Provided
also that nothing in this regulation shall be deemed to preclude an officer
employee from retiring earlier pursuant to the option exercised by him in
accordance with the rules in the Bank.
Explanation
:
An
officer employee will retire on the last day of the month in which he completes
his age of retirement.
(2) The Bank
shall constitute a Special Committee, consisting of not less than three
members, to review, whether an officer employee should be retired in accordance
with the first proviso to this regulation. Such Committee shall, from time to
time, review the case of each officer employee and no order of retirement shall
be made unless the Special Committee recommends in writing to the Competent
Authority the retirement of the officer employee."
3.
The basic fact of the matter is not in dispute. Respondent No.1 herein
joined his services in the appellant bank as MMG Scale-II. On or about
13.2.1989, he sought voluntary retirement in terms of Regulation 19 of the
Regulations. The Bank accepted his offer vide its letter dated 8.5.1989.
Respondent
No.1 was allowed to take voluntary retirement w.e.f. 31.5.1989.
4.
On or about 1.11.1993, The United Bank of India (Employees)
Pension Regulations, 1993 were introduced for employees of the appellant- Bank.
Option from the employees retired between 1.1.1986 and 1.11.1993 was sought for
by the appellant on or before 30.7.1994. However, the last date for receiving
such option was extended till 30.9.1994 vide a circular dated 30.9.1994.
On or
about 1.9.2001, the respondent No.1 filed an application for exercising his
option for pension. The appellant, vide its letter dated 10.10.2001 informed
him that he was not entitled to give any option for the said purpose.
Aggrieved
by and dissatisfied with the said letter, the respondent filed a writ petition
before the High Court of Judicature at Calcutta, which was marked as W.P.
No.490 of 2002, praying therein for the following reliefs:
4
"a) A writ in the nature of mandamus commanding the respondents and each
of them their men, servants, agents, and assigns to act in accordance with the
law and allow Pension Benefits to the writ petitioner from the date of his
retirement in terms of the United Bank of India (Employees) Pension Regulation
1995;
b) A writ
in the nature of mandamus commanding the respondents and especially the
respondent Nos1, 2 and 3 to forthwith cancel and/or rescind the letter dated
10th October, 2001 being Annexure `P-9' hereto;
(c) Writ
in the nature of Prohibition directing and commanding the respondents and each
of them to desist from withholding the Pension Benefits to the petitioner;
(d) A
writ in the nature of Certiorari directing and commanding the respondents and
each of them to transmit and produce all the records relating to this case to
the said Hon'ble Court after certifying the same to that conscionable justice
may be rendered;
e) An
order of injunction restraining the respondents and/or each of them their
servants, men, agents & assigns from withholding and/or continuing to
withhold the pensionary benefits of the writ petitioner;
f) Rule
Nisi in terms of prayers above."
Counter
affidavit as also a supplementary counter affidavit to the writ petition were
filed by the appellant.
5 The
said writ petition was allowed by a learned Single Judge of the High Court by
his order dated 20.3.2003. The appellant-Bank preferred an intra court appeal
thereagainst which was also dismissed by the Division Bench by reason of the
impugned judgment.
5.
The appellant is, thus, before us.
6.
The respondent voluntarily retired from the services of the Bank
as far back as on 31.5.1989 as has been noticed by us hereinbefore. He claimed
the benefit of pension which was introduced by reason of a Regulation known as
United Bank of India (Employees) Pension Regulations, 1995.
The
Regulations were published in the Official Gazette on 29.9.1995 and in terms of
clause (2) of regulation 1, they were to come into force on the said date.
7.
A writ petition was filed before this Court. This Court in its
decision in Bank of India v. Indu Rajagopalan & Ors. [JT 2000 (10) SC 334]
held that the benefit of the said Regulations should be extended to those
employees who have retired on or after 1.1.1986. It is also not in dispute that
the respondent as on the date of his retirement completed 17 years 10 months
and 17 days of actual service.
8.
The core question which arises for consideration herein is as to
whether having regard to the provisions contained in clause (5) of Regulation
29 of the Regulations, he would be entitled to the pensionary benefits.
Regulation
2(n) defines `employee' to mean :
"
`employee' means any person employed in the service of the Bank on full time
work on permanent basis or on part-time work or permanent basis on scale wages
and who opts and is governed by these regulations, but does not include a
person employed either on contract basis or daily wage basis or on consolidated
wages."
Regulation
2(w) defines `qualifying service' as under :
"
`qualifying service' means the service rendered while on duty or otherwise
which shall be taken into account for the purpose of pension under these
regulations."
9.
The Regulations, as noticed hereinbefore, was to apply to the
employees who were in service on or after the first day of January 1986 or who
had retired before the first day of November 1993 and exercised the option in
writing within the period prescribed therein.
7 Chapter
IV of the Regulations provided for qualifying service. We may notice
Regulations 14, 15, 17, 18, 19 and 21 of the said Regulations which read as
under :
"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
15.
Commencement of qualifying service - Subject to the provisions contained in
these regulations, qualifying service of an employee shall commence from the
date he takes charge of the post to which he is first appointed on a permanent
basis.
16. ...
17.
Counting of periods spent on leave - All leave during service in the Bank for
which leave salary is payable shall count as qualifying service;
Provided
that extraordinary leave on loss of pay shall not count as qualifying service
except when the sanctioning authority has directed that such leave not
exceeding twelve months during the entire service, may count as service for all
purposes including pension.
Broken
period of service of less than one year - If the period of service of an
employee includes broken period of service less than one year, then if such
broken period is more than six months, it shall be treated as one year and if
such broken period is six months or less it shall be ignored.
19.
Counting of period spent on training - Period spent by an employee on training
in the Bank immediately before his appointment shall count as qualifying
service.
20. ...
21.
Period of suspension - Period of suspension of an employee pending enquiry
shall count for qualifying service where, on conclusion of such enquiry, he has
been fully exonerated or the suspension is held to be wholly unjustified, and
in other cases, the period of suspension shall not count as qualifying service
unless the Competent Authority passing the orders under the Service Regulations
or Discipline and Appeal regulations or Settlements governing such cases
expressly declares at the time that it shall count to such extent as such authority
may declare."
10.
In the aforementioned backdrop, we may notice the provisions
contained in Chapter of the Regulations titled `Classes of Pension'.
Regulation
28 provides for superannuation pension. Pension on voluntary retirement is
governed by Regulation 29; clause (1) whereof reads as under :
"Pension
on Voluntary Retirement - (1) On or after 1st day of November, 1993, at any
time after an employee has completed twenty years of qualifying service he may,
by giving notice of not less than three months in writing to the appointing
authority, retire from service;
Provided
that this sub-regulation shall not apply to an employee who is on deputation 9
or on study leave abroad unless after having been transferred or having
returned to India he has resumed charge of the post in India and has served for
a period of not less than one year;
Provided
further that this sub-regulation shall not apply to an employee who seeks
retirement from service for being absorbed permanently in an autonomous body or
a public sector undertaking or company or institution or body, whether
incorporated or not to which he is on deputation at the time of seeking
voluntary retirement;
Provided
that this sub-regulation shall not apply to an employee who is deemed to have
retired in accordance with clause (1) of regulation 2."
Clause
(2) of Regulation 29 provides for acceptance of notice of voluntary retirement
by the appointing authority. Other procedural provisions are contained in
clauses (3) and (4). Clause (5) of Regulation 29 reads as under :
"(5)
The qualifying service of an employee retiring voluntarily under this
regulation shall be increased by a period not exceeding five years, subject to
the condition that the total qualifying service rendered by such employee shall
not in any case exceed thirty-three years and it does not take him beyond the
date of superannuation."
11.
The learned Single Judge as also the Division Bench of the High
Court on construction of the provisions of clause (5) of Regulation 29 was of
the opinion that the qualifying service could be extended by a period of five
years having regard to the definition thereof which not only takes within its
umbrage the service rendered while on duty but also service `otherwise'
rendered.
12.
The meaning of the word `otherwise' as given in `Advanced Law
Lexicon' (3rd Edn - 2005) is as under :
"By
other like means; contrarily; different from that to which it relates; in a
different manner; in another; in any other way; differently in other respects
in different respects; in some other like capacity."
[See R
& B Falcon (A) Pty. Ltd. v. Commissioner of Income Tax [2008 (8) SCALE
223].
As a
general rule, `otherwise', when following an enumeration, should receive an
ejusdem generis interpretation (per CLEASBY, B. Monck v. Hilton 46 LJMC 167.
The words `or otherwise', in law, when used as a general phrase following an
enumeration of particulars, are commonly interpreted in a restricted sense, as
referring to such other matters as are kindred to the classes before mentioned,
(Cent. Dict.)"
13.
Contention of Mr. Mehta is that the said word only takes within
its purview those classes of cases which are noticed in Chapter IV of the
Regulations and not for the purpose of extending the period of qualifying
service. We agree. Service may not be actually rendered but must be otherwise
rendered. This presupposes that the relationship of employer and employee must
continue at all relevant times.
14.
Mr. Mukherjee relied upon a recent decision in Bank of Baroda
& Ors. v. Ganpat Singh Deora [(2009) 1 SCALE 168] wherein this Court was
considering the provisions of the Pension of Regulations of Bank of Baroda
providing for pay-ability of pension to an employee who as on 31.01.2001, would
have completed a minimum of 15 years of service or who could be completing 40
years of age. The respondent therein at that point of time merely had completed
13 years of service. Despite that, his application for voluntary retirement was
accepted. When, however, he had sought for the benefits applicable to him under
the Pension Scheme in addition to other retiral benefits, the same was not
acceded to. It was in the aforementioned factual matrix, the interpretation of
Regulation 14, 28 and 29 came up for consideration. An argument was advanced
therein that the terms and conditions of the voluntary retirement scheme were
different from voluntary retirement contemplated under Regulation 29, as in
such an event, 12 Regulation 14 will apply containing the general conditions.
That argument was rejected, stating :
"18.
However, we are inclined to agree with Ms. Bhati that Regulation 29 does not
contemplate voluntary retirement under the Voluntary Retirement Scheme and
applies only to such employees who themselves wish to retire de hors any Scheme
of Voluntary Retirement, after having completed 15 years of qualifying service
for the said purpose. There is a distinct difference between the two situations
and Regulation 29 would not cover the case of an employee opting to retire on
the basis of a Voluntary Retirement Scheme.
19.
Furthermore, Regulation 2 of the Voluntary Retirement Scheme, 2001, of the
appellant-Bank merely prescribes a period of qualifying service for an employee
to be eligible to apply for voluntary retirement. On the other hand,
Regulations 14 and 29 of the Pension Regulations, 1995, relate to the period of
qualifying service for pension under the said Regulations, in two different
situations. While Regulation 14 provides that in order to be eligible for
pension an employee would have to render a minimum of 10 years service,
Regulation 29 is applicable to the employees choosing to retire from service
pre- maturely, and in their case the period of qualifying service would be 15
years."
We are
not concerned with such a case.
We must
also notice that Mr. Mukherjee, learned counsel appearing on behalf of the
respondent contended that if Regulation 29 applies, there is no reason as to
why clause (5) thereof shall not apply.
15.
However, in a subsequent decision of this Court in Bank of India
& Anr. v. K. Mohandas & Ors. [2009 (4) SCALE 576]. In that case also
Bank of India offered a voluntary retirement scheme a similar question had come
up for consideration. Clause (5) of Regulation 29 came up for consideration
therein although the case stricto sensu was concerned with the voluntary
retirement scheme itself. The High Court, however, noticed that two different
views expressed by the Kerala High Court in paragraph 19 of the judgment. Upon
noticing the rival contentions of the parties, the following was formulated :
"The
principal question that falls for our determination is: whether the employees
(having completed 20 years of service) of these banks (Bank of India, Punjab
National Bank, Punjab & Sind Bank, Union Bank of India and United Bank of
India) who had opted for voluntary retirement under VRS 2000 are entitled to
addition of five years of notional service in calculating the length of service
for the purpose of the said Scheme as per Regulation 29(5) of Pension
Regulations, 1995?"
The High
Court rejected his submission that if the Regulations including clause (5) of Regulation
29 is applied for the purposed of voluntary retirement scheme, it would create
an anomalous situation inasmuch as two different class of employees for the
purpose of granting 14 pension would be created. The Court distinguished the
Bank of Baroda's case (supra), opining that the same was rendered in the facts
thereof, stating:
"49.
It is true that the controversy in the case of Bank of Baroda arose out of the
same voluntary retirement scheme with which we are concerned in this group of
appeals. However, there is vital factual difference in that case and this group
of appeals. Pertinently that was a case where the employee had completed only
13 years of service (not even 15 years of service much less 20 years' service)
although he completed 40 years of age at the time he offered for voluntary
retirement. The employee's application therein for voluntary retirement was
accepted by the Bank of Baroda and he was paid all retiral benefits. However,
his request for grant of pension in addition to the other retiral benefits was
not acceded to by the bank. It was so because he had not completed even 15
years of service. The employee pursued industrial adjudicatory process for
redressal of his grievance in respect of non-grant of pension by the bank. The
employee's claim was opposed by the Bank of Baroda contending that in terms of
Regulations 14, 28 and 29 of the Pension Regulations, 1995, the employee was
not entitled to pension. The observations made by this Court in Bank of Baroda
which have been quoted above and relied upon by the banks in support of their
contention have to be understood in the factual backdrop namely, that the
employee had completed only 13 years of service and, was not eligible for the
pension under the Pension Regulations, 1995 and for the benefit of addition of
five years to qualifying service under Regulation 29(5), an employee must have
completed 20 years of service. The question therein was not identical in form
with the question here to be decided. The 15 following observations in paragraph
11 of the report in Bank of Baroda are significant:
...since
both the Tribunal as well as the High Court appear not to have considered or
taken note of the fact that the respondent was not eligible for pension as he
had not completed 15 years of qualifying service....
50. The
decision of this Court in Bank of Baroda is, thus, clearly distinguishable as
the employee therein had not completed qualifying service much less 20 years of
service for being eligible to the weightage under Regulation 29(5) and cannot
be applied to the present controversy nor does that matter decide the question
here to be decided in the present group of matters."
It was
laid down :
"53.
We hold, as it must be, that the employees who had completed 20 years of
service and were pension optees and offered voluntary retirement under VRS 2000
and whose offers were accepted by the banks are entitled to addition of five
years of notional service in calculating the length of service for the purposes
of that Scheme as per Regulation 29(5) of the Pension Regulations, 1995.
The
contrary view expressed by some of the High Courts do not lay down the correct
legal position."
We
respectfully agree with the view expressed therein.
16.
What is qualifying service has been explained in Union of India
& Anr. v. Bashirbhai R. Khilji [(2007) 6 SCC 16], wherein this Court held
that 16 the respondent being constable in the Central Reserve Police Force, the
Central Civil Services (Pension) Rules, 1972 are applicable. Rule 49 stipulates
that the minimum qualifying service of ten years is required for extending the
pension benefit. It was stated that `for grant of any kind of pension, one has
to put in the minimum of ten years of qualifying service'.
In that
case, Respondent was appointed as armed constable in central reserve police
force. He suffered from pyrogenic meningitis and neurosensory defines while on
duty. He was invalidated from service after he was declared unfit for duty.
Respondent request for invalid pension was rejected on the ground that he had
not completed 10 years of service. The Division Bench of High Court held that
the respondent was entitled to the invalid pension since his invalidity was
100% and the condition of ten years of qualifying service could not invoked so
as to deny the respondent invalid pension.
17.
We may notice that this Court in Indian Bank & Anr. v. N. Venkatramani
[(2007) 10 SCC 609], held :
"13.
It may be true that various provisions of the Regulations as for example
Regulations 16, 17, 19, 23, etc. provided for qualifying service. Regulation 18
is not controlled by any of the said provisions.
It does
not brook any restrictive interpretation. It only provides for a rule of
measurement. An 17 employee, as noticed hereinbefore, was entitled to pension
provided he has completed the specified period of service. How such a period of
service would be computed is a matter which is governed by the statute. It is
one thing to say that a statute provides for completion of fifteen years of
minimum service, but if a provision provides for measurement of the period, the
same cannot be lost sight of. Provision of the Regulations which are beneficial
in nature, in our opinion, should be construed liberally."
In that
case, the question arose as to how the lack in period of service of less than
one year shall be construed. This Court held that Regulation 18 was not
controlled by Regulations 16, 17, 19, 23 etc. as it provided for a Rule of
Measurement.
It, is
however, trite that even a beneficial legislation should not be extended to
such an extent whereby it would take into within its fold a situation which was
not contemplated under the statute.
18.
Could the period of service computed by including a period of five
years as provided for in clause (5) of Regulation 29 is the question. In our
opinion, it was not. Definition of `qualifying service' is restrictive in
nature.
It uses
the word `means' and not `includes' or `means and includes'. Thus, the
construction of `qualifying service' must ordinarily be kept confined to the
service rendered while on duty. He may be in service even otherwise 18 although
not rendering any duty. Those exigencies of situation are covered by the other
types of cases which would come within the purview thereof. A person who is not
in service cannot be said to be entitled to the benefit thereof. The term
`otherwise' should be read ejusdem generis. The term `otherwise' in the context
of the `Regulations' should be construed so that it can become meaningful one.
For the said purpose, the employee concerned was required to be in service. It
is not possible to hold in absence of any express words that the eligibility
criteria laid down in the Regulations for obtaining the benefit of pension,
i.e., the qualifying service should be construed in such a manner that a person
even not in service would be deemed to be in service. The statute does not
raise a legal fiction. A strict construction of the term "qualifying service"
there for, in our opinion, would not be appropriate.
In
Siddeshwari Cotton Mills (P) Ltd. v. Union of India (UOI) & Anr. [(1989) 2
SCC 458], the Supreme Court while discussing the definition of `manufacture'
under section 2(f) of the Central Excise and Salt Act, 1944 whether the
relevant process fall within `any other process" thereby within the
provision of section 2(f)(v) the Court looked at the meaning of `the expression
ejus-dem-generis...' which means of the same kind or nature'...signifies a principle
of construction whereby words in a statute 19 which are otherwise wide but are
associated in the text with more limited words are, by implication, given a
restricted operation and are limited to matters of the same class or genus as
preceding them. If a list or string or family of genus-describing terms is
followed by wider or residuary or sweeping-up words, then the verbal context
and the linguistic implications of the preceding words limit the scope of such
words.
The Court
also discussed various other texts while looking at the term.
In
`Statutory Interpretation' Rupert Cross says:
"...The
draftsman must be taken to have inserted the general words in case something
which ought to have been included among the specifically enumerated items had
been omitted..."
The
principle underlying this approach to statutory construction is that the
subsequent general words were only intended to guard against some accidental
omission in the objects of the kind mentioned earlier and were not intended to
extend to objects of a wholly different kind. This is a presumption and
operates unless there is some contrary indication. But the preceding words or
expressions of restricted meaning must be susceptible of the import that they
represent a class. If no class can be found, ejusdem 20 generis rule is not
attracted and such broad construction as the subsequent words may admit will be
favoured. As a learned author puts it:
"...if
a class can be found, but the specific words exhaust the class, then rejection
of the rule may be favoured because its adoption would make the general words
unnecessary; if however, the specific words do not exhaust the class, then
adoption of the rule may be favoured because its rejection would make the
specific words unnecessary."
Cessation
of contract of service may be of different types, i.e., by punishment or by end
of contract. It, however, does not take within its purview an order of
suspension as the same does not bring about a cessation.
19.
In National Textile Corporation (M.P.) Limited v. M.R. Jadhav
[(2008 (7) SCC 29], this Court held:
"Subject,
of course, to the terms "invitation to treat" as also those of the
offer as envisaged under the Contract Act, an offer has to be accepted.
20.
Unless an offer is accepted, a binding contract does not come into
being. A voluntary retirement scheme contemplates cessation of the relationship
of master and servant. The rights and obligations of the parties thereto shall
become enforceable only on completion of the contract. Unless such a stage is
reached, no valid contract can be said to have come into force. Acceptance of
an offer must, therefore, be communicated."
21.
We, therefore, are of the opinion that in a case of this nature,
clause (5) of Regulation 29 would be attracted only in a case where the
concerned employee has completed 20 years of qualifying service. Clause (5) of
29 would be applicable for the purpose of granting a higher monetary benefit in
the matter of computation of pension. It does not provide for measurement of
the period as was in the case of Indian Bank (supra).
22.
For the reasons aforementioned, the impugned judgment cannot be
sustained, it is set aside accordingly. The appeal is allowed. However, in the
facts and circumstances of this case, there shall be no order as to costs.
.............................J. [S.B. Sinha]
.............................J. [Deepak Verma]
New Delhi;
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