Allowed

Sudhakar v. Samant v the Chairman and MD Union Bank of India and 2 Ors.

Bombay HC19 Mar 2019WP/863/2015

Case brief

AI extract

What is this about?

The court allowed three writ petitions filed by retired employees of Union Bank of India. The High Court quashed the Bank's decision denying the 2010 Pension Scheme benefits because the option forms were not sent to the petitioners' last known addresses and no proof existed that they were aware of the scheme within the deadline. The petitioners were granted time to submit forms.

What did the court decide?

Decision denying pension scheme benefits quashed; petitioners granted two months to submit option forms; conditional direction to pay dues with interest.

Sudhakar v. Samant Vs the Chairman and MD… — Pension and Retirement Benefits | Bombay HC (2019)

oswp242,329,863.doc

ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.242 OF 2015

¶5

K.K.Balasubramaniam ...Petitioner
vs.

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Union Bank of India & Ors. ...Respondents

¶7

ALONG WITH

¶8

WRIT PETITION NO.329 OF 2015

¶9

Dilip Kumar Ghosh ...Petitioner
vs.
Union Bank of India & Ors. ...Respondents

¶10

ALONG WITH

¶11

WRIT PETITION NO.863 OF 2015

¶12

Sudhakar V. Samant ...Petitioner
vs.
Union Bank of India & Ors. ...Respondents

¶13

Mr.Arif Doctor a/w Ms Neha Dhuru I/b M/s.Mulla &
Mulla & Craigie Blunt & Caroe for the Petitioner in
W.P.Nos.242/2015 and 329/2015

¶14

Mr.Prashant More a/w Ms Kanchan Chindarkar for the
petitioner in WP/863/2015

¶15

Mr.Ashok D. Shetty for the respondent Nos.1 and 2.

¶16

CORAM : A.S.OKA AND SANDEEP K. SHINDE,JJ.
DATE ON WHICH JUDGMENT IS RESERVED:DECEMBER 18, 2018
DATE ON WHICH JUDGMENT IS PRONOUNCED:MARCH 19, 2019

¶17

JUDGMENT: (PER A.S.OKA,J.)

¶18

1These three petitions were taken up for final
disposal, as the controversy which arises in the

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petitions is the same. The petitioners in these
petitions were the employees of the Union Bank of
India (for short `the said Bank'). For the sake of
convenience, we are referring to the facts of the
case in Writ Petition No.242 of 2015. The petitioner
was in the employment of the said Bank from February
1983 till the year 2001. The petitioner took
benefit of the Voluntary Retirement Scheme (for
short `the VRS') offered by the said Bank in the
year 2001. The petitioner pointed out that after
opting for VRS in the year 2001, he took up other
employments. He has stated that during the period
between 2005 to 2013, he was employing with Tech
Mahindra and by virtue of his employment he was
required to travel extensively at various locations
in India and also overseas. The petitioner claims
that during the period from 1st September 2010 till
30th October 2010, he was out of Mumbai. The
petitioner claimed that in the first week of
November 2010, he became aware of the staff Circular
No.5690 dated 27th August 2010 (herein referred to as
the ` the first circular') issued by the said Bank.
Clause 5 of the said Circular provides that the
employees who ceased to be in service on or after
29th September 1995 on account of VRS under Special
Scheme after rendering service for a period of
minimum 15 years shall be eligible to exercise an
option to join pension scheme subject to the terms
and conditions mentioned. Thus, ex-employees of the
said Bank of certain category who had opted for VRS
under certain schemes were treated on par with

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retiring employees. Clause 8 of the circular
provided that the process of submission of option to
join pension scheme will commence from 1st September
2010 and will be closed on 30th October 2010 (both
days inclusive). It was provided that the date of
acknowledgement by the branch office of the option
forms will be reckoned as the date of exercise of
the option. Clause 15 is material for deciding the
controversy in these petitions which reads thus:

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“Clause 15-….. All the Branch Managers/
Departmental Heads are requested to bring
this to the notice of all staff members
against their acknowledgement and in order to
give wide coverage; the following methods may
be adopted.

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a) Display the copy of the circular on the
Notice Board at the Branch/Office.

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b) Copies of the circular to be sent to the
Local Retired Employees' Association.

¶28

c)In case of Retired Employees/Family of the
eligible expired employees, a copy of the
option form may be sent to last known
address.

¶29

Co-operation of all staff members is
solicited for timely exercising the option
andarefurtherrequestedto
publicize/canvass the information to all
concerned, so that, all eligible/willing

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oswp242,329,863.doc

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employees, retired/family members of deceased
employees get the benefit of the scheme.”

¶32

(underline supplied)

¶33

2According to the case of the petitioner, he was
eligible to the benefit of pension scheme as after
rendering the service for more than 15 years, he had
opted for VRS in the year 2000-2001 and obtained VRS
from the said Bank on 21st April 2001. A specific
case made out by the petitioner is that a copy of
the option form was not made available to him. There
was no intimation given to the petitioner in any
form about the said circular. He has claimed that as
he was extensively travelling during the period from
1st March 2010 to October 2010, only in November
2010, he became aware of the option to join the
pension scheme under the first circular.

¶34

3It is the case of the petitioner that
immediately after acquiring the knowledge about the
first circular, he tried to obtain a copy of the
form from the said Bank but the same was not
provided on the ground that the forms were to be
submitted on or before 30th October 2010. However,
the petitioner obtained option form from his
colleague and tried to submit it to the Bank but it
was not accepted. Hence, the petitioner met higher
Officials of the said Bank including the General
Manager who advised the petitioner to submit a
representation.Accordingly,thepetitioner
submitted representations/reminders dated 16th

¶35

5 oswp242,329,863.doc

¶36

November 2010, 29th January 2011 and 16thJanuary
2012. By a letter dated 14th February 2012, the
second respondent (General Manager of the said
Bank) informed the petitioner that he had not
exercised the option within the time provided by the
first circular and therefore, his request for
allowing him to exercise option cannot be acceded
to. The petitioner claims that after the receipt of
the said letter, he took up the matter through the
Association of Retired Employees of Union Bank of
India.

¶37

4The petitioner has pointed out that in the
first circular it was mentioned that the employees
who had taken VRS under the Regulation 19(1) of the
Officers' Service Regulation were not eligible to
apply for opting for the pension scheme.

¶38

5Another circular was issued on 16th January 2013
(for short `the second circular') by the said Bank
for extending option provided in the first circular
to those officers who took VRS under Regulation
19(1) of the Officers' Service Regulation, 1979 (for
short `the said Regulation'). Based on the second
circular, the petitioner again applied for exercise
of option for opting for the pension scheme. As the
said application was not acted upon, the petitioner
by a letter dated 24th November 2014 called upon the
respondents to grant benefit of the said pension
scheme to the petitioner.

¶39

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oswp242,329,863.doc

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6The prayer in these petitions is essentially
for issuing a writ of mandamus to the said Bank
enjoining the said Bank to allow the petitioner to
opt for option under the first circular. A specific
contention was raised in the petitions that a copy
of the option form was not sent at the last known
address of the petitioner and that he was not aware
of the first circular till first week of November
2010.

¶42

7There is a reply filed by Shri Gopal Krishna
Panda, the Chief Manager of the first respondent-
Bank. It is contended in the reply that a copy of
the first circular was displayed on the notice board
of all the Branches/offices of the Bank. It is
further contended that the assistance of the Local
Retired Employees' Association of the said Bank was
also taken to make retirees acquainted with the
procedure under the first circular. Moreover, there
was a newspaper notification issued by the said
Bank. It is pointed out that more than 3000 retired
employees/family members of the deceased employees
applied as per the first circular during the
stipulated period of 60 days from 1st September 2010
to 30th October 2010. It was stated that the request
made by the petitioner was not accepted as he did
not submit the option form within 60 days. Moreover,
it was submitted that the petitioner is not entitled
to benefit of the second circular as the petitioner
had not retired under the Regulation 19(1) of the
said Regulation. There is a rejoinder filed by the

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oswp242,329,863.doc

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petitioner reiterating that the option form or a
copy of the first circular was never sent to his
last known address as provided under sub clause c of
clause 15 of the first circular.

¶46

8The prayers made in the other two petitions
are of more or less similar and there is a similar
reply and rejoinder. Even the factual contentions
raised by the parties are similar.

¶47

9The learned counsel for the petitioner has
taken us through the averments made in the petition,
reply and rejoinder. Our attention was invited to
clause 15 of the first circular which mandated that
a copy of the option form should be sent to last
known address of retired employees. The submission
is that there is no material placed on record to
show that option form was sent to last known address
of the petitioners. Even wide publicity to clause
15 of the said circular was not given.

¶48

10The learned counsel for the said Bank submitted
that the requirement set out in clause 15 cannot be
said to be mandatory and the fact that wide
publicity was given to the said circular is very
clear as more than 3000 option forms were received
by the Bank within time.

¶49

11Reliance was placed by the parties on the
decision of the Apex Court in the case of Union Of

¶50

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oswp242,329,863.doc

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India and others vs. M.K.Sarkar1 and Union Of India
vs.D.R.R.Sastri2. An unreported Judgment of this
Court dated 12th June 2013 in Writ Petition No.1020
of 2012 in the case of Kayoli Sorabji Mirza vs.
Union Bank of India and others was also relied upon.

¶53

12We have considered the submissions. We have
perused the petition, reply and rejoinder. Firstly,
we refer to the factual aspects in Writ Petition
No.242 of 2015. In Writ Petition No.242 of 2015,
there are specific assertions made in paragraph 3.5
that the petitioner became aware of the first
circular only in the first week of November 2010. In
Writ Petition No.863 of 2015, the petitioner has
specifically contended that a copy of option form
was never sent to the petitioner at his last known
address on the record of the said Bank. This
averment is in paragraph 4 of the petition. In
paragraph 2 of the petition, the petitioner has
stated that after his retirement, he partially
shifted to his native place at Pawas, Taluka and
District Ratnagiri. In paragraph 3, he has stated
that in the month of November 2010, when he came to
Bombay that he became aware about the first
circular. In paragraphs 3.5 and 3.6 of the Writ
petition No.329 of 2015, the specific case of
petitioner therein is that option form was never
sent to him and he became aware about the first
circular in the first week of November 2010.

¶54

2 (1997) 1 SCC 514

¶55

1 (2010) 2 SCC 59

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9 oswp242,329,863.doc

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13Perusal of the affidavits in reply of the
petitioner in all three petitions will show that it
is not the specific case made out that the option
forms in terms of the first circular were sent at
the last known addresses of the respective
petitioners which were known to the said Bank. There
is nothing placed on record to show that the
petitioners in these petitions were made aware of
the first circular. It is not the case made out in
the affidavit in reply that any of the petitioners
were not entitled to the benefit of the scheme
formulated by the first circular. Therefore, the
petitioners were prevented from exercising the
option under the first circular.

¶58

14 Perusal of the first circular shows that the
same is applicable to those employees of the said
Bank who opted for VRS under the Special Voluntary
Schemes, after rendering minimum 15 years of
service. The said employees were given option to
join pension scheme subject to various terms and
conditions incorporated in the first circular.
Depending upon the category of employees, they were
required to submit option forms either online or in
physical form and the last date for submission of
the forms was 30th October 2010. Perusal to clause
15 of the first circular shows that the Branch
Managers/Departmental Heads were requested to ensure
that the said circular should be brought to the
notice of all the staff members against their
acknowledgements. Moreover, they were advised to

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adopt three modes for informing the employees. One
of the three specific modes in the case of retired
employees/families of the eligible expired employees
was that a copy of the option form may be sent to
their last known addresses. In the present case, no
material is placed on record to show that an attempt
was made to send option forms to the petitioners in
these petitions at their last known addresses which
were available with the Bank. There is nothing
brought on record to show that before 30th October
2010, the petitioners were not even made aware about
the first circular. These three petitions have been
filed in between January 2015 to April 2015 after
representations made by the petitioners therein were
not considered.

¶62

15Now, we turn to the decisions relied upon by
the parties. In the case of Kayoli Sorabji Mirza
(supra), the Division Bench of this Court was
dealing with the said first circular as is clear
from the facts stated in paragraph 4. In paragraphs
9 and 10, the Division Bench held thus:

¶63

“9 After having heard both the learned Counsel at length, in our view, petitioner is entitled to get the benefit of 2010 Pension Scheme, he being a retired bank employee and the Scheme otherwise is specifically applicable to him. It is an admitted position that the petitioner was abroad during the said period of two months and as such,

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firstly, he was not aware of the said Scheme
which was made applicable to the retired
employees and, secondly, he was not aware of
the said period during which the said
application was to be tendered.

¶67

10Taking into consideration these peculiar
facts and circumstances of the case and
particularly the fact that the petitioner was
abroad during the said period of two months
and was therefore not in a position to make
the application for opting for the said
Scheme, Respondent No.1-Bank is directed to
make 2010 Pension Scheme application to the
petitioner through he had not filed his
application for option during the said period
of two months...”

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(under supplied)

¶69

16Thus, on facts, the three cases in hand are
similar in the sense that there is a material placed
on record to show that the option forms were not
sent to the petitioners at their last known
addresses. There is no material placed on record to
show that petitioners were even made aware in some
manner about the existence of the first circular
prior to 30th October 2010.

¶70

17In the case of Union Of India vs.D.R.R.Sastri
(supra), the Apex Court granted benefit of
Liberalised Pension Scheme to the employee on the
ground that similarly placed were granted pension

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long after prescribed time limit. The Bank has
pressed into service the decision of the Apex Court
in the case of Union of India vs.M.K.Sarkar (supra).
This was a case where it was found that retired
person was aware of the scheme at the relevant time
but there was no written individual communication to
the retired employee about the scheme. Secondly, it
was held that the person who is aware about the
availability of the option form cannot contend that
after twenty two years he was not served with the
notice of availability of option. Therefore, appeal
preferred by the Union of India was allowed.

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18In the facts of the case in hand it is not
possible to record a finding that the petitioners
were even aware of the first circular before the
last date fixed for exercising the option. Secondly,
immediately after they became aware, they made
correspondence with the said Bank and called upon
the said Bank to allow them to exercise the option.
Therefore, on facts, aforesaid decision of the Apex
Court in the case of Union of India vs. M.K.Sarkar
(supra) will have no bearing and applicability in
the present case.

¶75

19Accordingly, the petitions must succeed.
However, if the petitioners were required under the
first circular to deposit requisite amounts, they
will have to deposit the same with reasonable
interest from 1st November 2010 as may be demanded by
the said Bank. Hence, we pass the following order:

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(I) The decision of the said Bank of denying the
benefits of the first circular to the petitioners in
these petitions are hereby quashed and set aside;
(II) It will be open to the petitioners in these
petitions to submit option forms in terms of the
first circular to the appropriate Authority of the
said Bank within two months from today;

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(III) If the first circular requires the petitioners
to deposit certain amounts with the said Bank, on
being called upon by the said Bank, the petitioners
shall deposit the requisite amounts within the time
fixed by the Bank with a reasonable interest as
demanded;

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(IV) Needless to add that if the option forms are
submitted by the petitioners within the stipulated
time, after compliance with necessary requirements,
the same shall be dealt with in accordance with the
law by the said Bank;

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(v) Rule is made absolute on above terms with no
order as to costs.

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(SANDEEP K. SHINDE,J.)(A.S.OKA,J.)

Sudhakar v. Samant v the Chairman and MD Union Bank of India and 2 Ors.

Case brief

What is this about?

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Sudhakar v. Samant v the Chairman and MD Union Bank of India and 2 Ors.

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