Partly allowed

Kailash Ch.Mohanta v. Cheif General Manage

Orissa HC5 May 2017WP(C)/3461/2014

Case brief

AI extract

What is this about?

The Court quashed an order rejecting a petitioner's representation to receive full bank pension without deduction of government compensatory pension. The Court held that appropriating government pension from the bank pension is illegal and directed the Bank to pay both pensions separately.

What did the court decide?

The order of 10.12.2010 was quashed. The Bank was directed to stop debiting Government pension and compute Bank pension afresh to be paid separately.

Kailash Ch.Mohanta Vs Cheif General Manage — Pension and Retirement Benefits | Orissa HC (2017)

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HIGH COURT OF ORISSA,CUTTACK

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Writ Petition (C) No.3461 of 2014

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In the matter of an application under Articles 226 and 227 of the Constitution of India.

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Kailash Chandra Mohanta ……… Petitioner

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Versus

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Chief General Manager, State Bank of India and another ……… Opposite Parties

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For Petitioner : M/s.Pradipta Kishore Nanda, R.Mohanta G.D.Singh and B.M.Chand

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For Opp. Parties : Mr.P.V.Balkrishna and R.Biswal

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PRESENT :

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THE HON’BLE DR. JUSTICE D.P.CHOUDHURY

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--------------------------------------------------------------------------------- Date of hearing:09.03.2017 Date of Judgment:05.05.2017 --------------------------------------------------------------------------------- Dr. D.P.Choudhury, J. Challenge has been made to the order dated 10.12.2010 passed by the opposite party No.1 communicated to the petitioner vide letter dated 11.12.2010 rejecting his representation.

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FACTS

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2. The factual matrix leading to the case of the petitioner, in this writ petition, is that the petitioner entered into service on 8.5.1944 as a Supervisor in the Mayurbhanj State Bank (hereinafter called “the MSB”). After independence, the administration of the State of Mayurbhanj was taken over by the Government of India in pursuance of the instrument of merger dated 17.10.1948 executed between the Maharaja of Mayurbhanj and the Governor General of India, and as such State of

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Mayurbhanj merged with State of Orissa with effect from 1.1.1949. As such, the employees of erstwhile State of Mayurbhanj including the employees of MSB were given full protection with regard to the financial and service benefits. On 13.12.1949, Government of Orissa issued a resolution stating that the persons discharged on or after 1.1.1948 either as surplus or unsuitable for absorption for Government service are eligible to be granted compensation in lieu of notice of discharge under Article 436 of CSR and also in addition, gratuity and pension under Article 426 and 474 of the CSR.

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3. Be it stated that after the State Bank of India (hereinafter referred as “the SBI”) took over the business of MSB as per the terms and conditions of the agreement duly sanctioned by the Government of India under Section 35 of SBI Act. In view of the agreement, Government of Orissa issued notification on 5.5.1961 declaring all posts held by the officers and staff of the MSB are surplus and retrenched them from the service of the State Government. Thereafter, the SBI, by order dated 3.5.1961, gave fresh appointment to the petitioner in accordance with the terms of its agreement with the Government of Orissa. Consequent upon the retrenchment of the petitioner, the Government of Orissa paid him pension with effect from 6.5.1961 as compensation in terms of the instrument and resolution contained in Annexures-2 and 3 respectively. It is stated that the petitioner retired from Bank with effect from 24.4.1983 on attaining the age of superannuation. It is further case of the petitioner that the opposite parties-Bank floated the Employees

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Pension Fund (EPF) for the employees of the Bank, but it did not admit the employees of the amalgamated banks like MSB to the membership of the said EPF. In India at different States, local banks like the MSB merged with SBI and the SBI did not allow the employees of said local banks to join such EPF and thus, giving rise to litigations pending before different High Courts.

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4. The Bombay High Court, in similar facts and circumstances, allowed the prayer of an ex-employee of K.B.Bank Limited and directed the Bank to admit the employees to EPF against which the SBI preferred SLP before the Hon’ble Supreme Court. It is stated that during pendency of that SLP, the opposite parties-Bank, by resolution dated 26.8.1994 admitted the ex-employees of amalgamated Banks to the membership of EPF and gave family pension to those employees. Also the Hon’ble Supreme Court, by order dated 14.12.1994, directed the opposite parties-Bank to admit ex-employees to the membership of EPF subject to surrendering gratuity and other similar benefits received by them from the Bank and also approved resolution dated 26.8.1994 issued by the SBI. In view of the order of the Hon’ble Supreme Court, the petitioner surrendered the benefits received by him and after prolonged persuasions; the management of the opposite parties-Bank admitted the petitioner to EPF as per the direction of the Hon’ble Supreme Court.

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5. Be it stated that the opposite parties-Bank paid full family pension to twelve employees in addition to compensatory pension received by them from the State Government as per the resolution vide

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Annexure-3, but the rest twelve ex-employees including the present petitioner were only paid family pension but not the compensatory pension received by the Bank from the State Government being appropriated by the opposite parties-Bank on the plea that they had crossed 35 years of age at the time of amalgamation of MSB with the SBI. Against this, the petitioner filed representation to grant him Compensatory Pension but it was rejected for which he filed a writ petition (W.P.(C) No.10622 of 2003) before this Court and vide order dated 21.9.2010, this Court disposed of the said writ petition directing the petitioner to make fresh representation to the opposite parties highlighting the facts and directed the opposite parties-bank to examine the same and if it is found that persons similarly situated like the petitioner were being paid both categories of pension, the same shall be made available to the petitioner. In pursuance of the said order dated 21.9.2010, the petitioner filed his representation to the bank on 11.10.2010, but the opposite party no.1, without appreciating the facts, law and the direction of this Court, rejected the representation of the petitioner illegally.

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6. It is stated that since the Government of Orissa granted compensatory pension with effect from 6.5.1961, the petitioner was receiving the same vide Pension Payment Order contained in Annexure6, which has no nexus with the service rendered with the SBI. The opposite parties-Bank had no authority to appropriate the pension so received by the petitioner from the Government of Orissa for admitting

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him to the members of the EPF of SBI. Moreover, there is no reasonable nexus in allowing Compensatory Pension paid by the Government of Orissa to the employees, who were below 35 years on the date of amalgamation and appropriate the compensatory pension of those employees who were above 35 years on the date of amalgamation and thus, there is clear discrimination under Articles 14 and 16 of the Constitution of India. So, the present writ petition is filed to quash Annexures-1, 2 and 3 and direct the opposite parties-Bank to refund the Compensatory Pension deducted from his pension with interest.

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7. Contrast to the writ petition, opposite parties-Bank filed counter affidavit refuting the allegations made in the same. It is stated in the counter affidavit that the writ petition is not maintainable due to non-joinder of necessary party as the State Government is a necessary party to this writ petition. According to the opposite parties, the petitioner had joined as a Clerk in MSB on 8.5.1944. On 1.1.1949, the Mayurbhanj State merged with the Union of India and its administration was vested with the Province of Orissa. On 26.1.1950, Mayurbhanj became a district of Orissa and the petitioner became a State Government employee. This continued till the petitioner was absorbed in SBI in May, 1961. The SBI Act was enacted in 1955.

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8. Be it stated that on 25.2.1961, the MSB merged with SBI on terms and conditions as decided by the Government of India. According to the terms and conditions, in the event of merger, the surplus staff may be terminated but they can be absorbed, if they desire. There were

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terms and conditions that after absorption, the petitioner and likewise employees would be treated as fresh entrant and to remain on probation for a period of six months. It is stated by the opposite parties that the petitioner among others was further informed in the year 1961 that he would be entitled to all benefits except being admitted to EPF as he is above the age of 35 years as on the date of joining the SBI on 3.5.1961. In order to protect the pay for the past service in MSB, the petitioner was granted three additional increments and his basic pay was fixed at Rs.126/-. In spite of knowing the fact fully well that the petitioner is not entitled to receive the pension on retirement, he entered to the service of SBI and continued upto 24.4.1983. Upon retirement, since the petitioner was not granted pension, he along with others have filed OJC Nos.2704, 2711, 2712, 2713 and 2714 of 1985 before this Court, which were dismissed by common order passed on 24.4.1990. In all these cases, this Court held that pension is not payable by SBI to the employees who entered in service of the bank after the age of 35 years. 9. It is the further case of the opposite parties that during August, 1994, SBI decided for giving pensionary benefits to such employees on humanitarian ground because of the past service rendered in the erstwhile bank due to merger. So, the SBI extended the benefit to the petitioner subject to fulfilment of the requirement of SBI Employees Pension Fund Rules regarding eligibility and surrendering to the SBI with interest service gratuity and similar benefit, if any, received by them from their ex-employer bank. However, Civil Appeal No.3000 of

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1990 filed by the bank in the case of employees of K.B.Bank Limited was disposed of on 14.12.1994 by the Hon’ble Supreme Court in approving SBI’s Scheme of paying pension to the employees of the taken over Banks. As per the State Bank of India Employees’ Pension Fund Rules, the petitioner was not eligible to become a member of the pension fund being above the age of 35 years on the date of absorption in SBI, as such, he was not eligible to receive the pension. On the other hand, consequent upon the order of the Hon’ble Supreme Court, it was decided to grant pensionary benefits to the employees of MSB, who joined SBI subject to employees meeting the requirements of the SBI Pension Fund Rules.

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10. While the matter stood thus, the petitioner and few others were found receiving pension from the State Government for the service rendered by them to Government. At this juncture, the opposite partiesBank decided to give full pension to the petitioner and other similarly situated persons by counting the period of service rendered by them in the State Government as well as in the SBI for which they made a policy. As a matter of policy, the opposite parties’ management decided that the arrears of full pension minus the pension received by the petitioner from the State Government would be payable on a suitable authorization by such employees and it was also made clear that the future pension payable by the Government of Orissa shall be appropriated by the SBI with the ultimate idea of SBI is to pay full Bank Pension to the petitioner in lieu of appropriating the pension paid by the

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State Government. So, the opposite parties decided to pay net amount, i.e, full Bank Pension less Government Pension at the end of each month, which is neither illegal nor improper. Accordingly, payment of pension policy was approved on 3.11.1998. The petitioner has served MSB for 17 years and his total pensionable service in SBI is less than 20 years. After counting the entire service period in MSB and SBI, the petitioner was extended the pension but the SBI appropriated minimum pension received by them from the State Government. The petitioner was never getting compensatory pension from the State Government and it is not correct to allege that the said pension was given as a retrenchment benefit to the petitioner. Be it stated that the retrenchment benefits is a onetime payment and is never paid from month to month. As the petitioner joined SBI while his age was above 35 years, his case cannot be compared with others, who joined SBI below the age of 35 years of age to get benefit of SBI Pension Fund. The claim of the petitioner to receive total pension both from the State Government and SBI for the same period, is untenable, illegal and invalid. So, it is prayed to dismiss the writ petition.

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11. In reply to the counter affidavit filed by the opposite parties, the petitioner filed rejoinder affidavit reiterating the submissions made in the writ petition and also some facts. It is stated that the petitioner admittedly is receiving compensatory pension from the State Government with effect from 6.5.1961 till date, but the same is appropriated by the opposite parties-SBI without any basis of law. Be it

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stated that the petitioner has worked in MSB from 8.5.1944 to 6.5.1961 and in the SBI, as a new entrant, from 6.5.1961 and continued till his retirement, i.e., on 24.4.1983. So, he worked altogether for 38 years 11 months and 16 days, which is equivalent to 39 years. But in Annexure1, the opposite parties-bank has shown it as 34 years and 7 months deliberately and intentionally. It is further mentioned in the rejoinder that a person is eligible to get SBI Pension from SBI by serving more than twenty years and since the petitioner worked for about 22 years in SBI, he is entitled to receive the pension otherwise from SBI.

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12. It is stated that other 12 retrenched employees of MSB, being appointed in SBI, have been receiving Compensatory Pension from the Government and family pension from the SBI as per the direction of the Hon’ble Supreme Court and the petitioner being similarly situated, is discriminated which is violative of Article 14 of the Constitution of India.

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13. SUBMISSIONS

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Mr.Nanda, learned counsel for the petitioner submitted that admittedly the petitioner has worked under the MSB and due to merger of the MSB with SBI, he was retrenched but granted Compensatory Pension. According to him, the petitioner was receiving Compensatory Pension but after the petitioner joined as a clerk in SBI as a fresh entrant, he is entitled to pensionary benefit of SBI having served for more than 20 years under the SBI. On the other hand, it is submitted that in a similar situation, one employee of K.B.Bank Limited, which was merged with SBI prayed before the Bombay High Court to admit him

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into EPF of SBI and that was allowed. Against that order, the SBI preferred SLP before the Hon’ble Supreme Court where the SBI pleaded that they have taken decision to extend the pensionary benefits to the employees on their surrendering gratuity interest and other similar benefit received by employees. The Hon’ble Supreme Court passed the order stating that neither the employees will claim interest on the late payment of pension nor would deposit interest on the gratuity and similar benefit received by them under the scheme.

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14. He further submitted that relying on the aforesaid decision of the Hon’ble Supreme Court, the petitioner had filed a writ petition bearing W.P.(C) No.10629 of 2003 where this Court directed the petitioner to file a fresh representation, but at the same time, this Court has observed that the decision of the SBI to pay the Bank Pension less Government Pension at the end of each month inasmuch as it is stated that SBI has decided to appropriate the pension paid by the State Government in lieu of full pension to the petitioner is impermissible. He again contended that accordingly the representation was made by the petitioner but the opposite parties-SBI passed an illegal order vide Annexure-1. So, he prays to allow the writ petition.

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15. Mr.Balakrishna, learned counsel for the SBI submitted the petitioner was an employee of erstwhile MSB, which was merged with SBI as per the order of the Government and before merger, necessary option with terms and conditions were given to the employees of MSB and on acceptance of the same, employees were reappointed in SBI.

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Thereafter, the petitioner continued in SBI till his retirement and some of the employees filed writ petitions before this Court, which were dismissed. Some of the employees, who were reappointed in SBI after 35 years of age, filed cases before different High Courts for claiming pension from the SBI under Banks Pension Scheme and against the rejection order, they went to Hon’ble Supreme Court and the Hon’ble Supreme Court directed the Bank to draw up a scheme for grant of pension to those employees, who joined the SBI after 35 years of age. Accordingly, a scheme was prepared, which was approved by the Hon’ble Supreme Court and necessary direction was issued by the bank to the branch where such employees were working to surrender their service gratuity and other similar benefits. The scheme could not be implemented in its true spirit due to the poor maintenance of records in Government Departments for which the ex-employees requested the Bank to calculate the pension on the basis of actual length of service and the monthly pension payable may be reduced by the amount of monthly Government Pension already paid. Accordingly, the amount already received from the State Government by ex-employees was appropriated on due calculation by SBI. He further submits that as per SBI Circular dated 14.3.1997 with regard to collective reference being made by several employees of MSB, the SBI pension amount is being sanctioned and deposited in their account after appropriating their Government Pension. He further submitted that the petitioner is entitled

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for one pension but not both pensions, i.e, Government Pension and Bank Pension.

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16. Main Point For Consideration

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Whether the petitioner is entitled to Government Pension

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and the Bank Pension together or he is entitled to both pensions separately?

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17. DISCUSSIONS

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It is admitted fact that the petitioner was an employee of MSB being appointed on 8.5.1944. It is not in dispute that the MSB merged with SBI as per merger agreement dated 17.10.1948 between the Ruler and the Central Government and the surplus staff of MSB including the petitioner were terminated and the SBI appointed the petitioner as a Clerk with the condition that he is to be treated as fresh entrant with effect from 3.5.1961. It is also admitted fact that the petitioner, while working in the SBI, retired from service on attaining the age of superannuation at 60 years on 24.4.1983. The petitioner claiming the same relief had approached this Court in W.P.(C) No.10629 of 2003 and this Court, on 21.9.2010, passed order directing the petitioner to make representation to the opposite parties highlighting the facts in favour of him and the opposite party-SBI would pass the order according to law. In W.P.(C) No.10629 of 2003, this Court passed the following direction:

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“5. Undisputedly, the past services of the petitioner rendered in Mayurbhanj State Bank have been taken into account for the purpose of making the superannuation pension to the petitioner by the

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State Bank of India. Therefore, I do not find any illegality or irregularity in the action of the State Bank of India so far as it relates to superannuation pension. But at the same time, the assertion of the petitioner that 12 nos. of employee of Mayurbhanj State Bank who are similarly placed alike the petitioner having been granted compensatory pension as well as superannuation pension which fact having not been disputed by the State Bank of India, without entering into the arena of controversy, I would permit the petitioner to make a representation to the appropriate authority of the State Bank of India highlighting these aspects and the competent authority of the State Bank of India shall examine such factual aspect and if it is found that the persons similarly situated like the petitioner were being paid both categories of pension, the same shall be made available to the petitioner within a period of one month from the date of receipt of the representation of the petitioner. I have so directed to keeping in view the fact that the petitioner is presently 88 years old and is in the fag end of life.

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6. It appears from paragraph-7 of the additional counter affidavit filed by the State Bank of India that the State Bank of India has decided to pay only the net amount i.e. the Bank Pension less the Govt. Pension at the end of each month inasmuch as it is stated that the State Bank of India had decided to appropriate the pension paid by the State Govt. In lieu of full pension to the petitioner. Such decision of the State Bank of India, in my considered opinion, is impermissible for the reasoning that the State Bank of India cannot appropriate the compensatory pension and again deduct the same from the Bank Pension payable to the petitioner. If the petitioner is not entitled to receive the compensatory pension, the same may not be made available which shall be subject to the outcome of the representation made by the petitioner pursuant to the direction hereinabove. But at the same time, the said amount cannot be appropriated by the State Bank of India and again it cannot be deducted from the superannuation pension payable to the petitioner, which has been arrived at by taking into consideration the length of service rendered by the petitioner in the Mayurbhanj State Bank as well as the State Bank of India.”

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18. In view of the aforesaid direction/observation passed by this Court, the petitioner made representation but that was disposed of by rejecting the same vide Annexure-1. The finding of the opposite partiesSBI is available at Paragraph-4 of the said Annexure-1, which is reproduced as under:

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“4. After carefully considering the submissions of Sri Mohanta in his representation dt. 11.10.2010 in the light of the directions of the Hon’ble Court, my observation in the matter are as under:

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(a) Sri Mohanta asserts that 12 other MSB retirees, who are similarly placed, are being paid Govt Pension (called compensatory pension by the petitioner) as well as superannuation pension from SBI. While it is true that the 12 MSB retirees named by the petitioner are/were paid Govt. Pension as well as superannuation pension (from SBI), they are not similarly place as the petitioner. The said 12 retirees were all below 35 years of age as on the date of confirmation in SBI service and were eligible to be enrolled as members of the SBI pension fund as per rule. The petitioner and four others, who were above 35 years of age, were not eligible for enrolment as member of SBI Pension Fund, but subsequently allowed to draw pension by the Corporate Centre of SBI vide sanction note dt.3.11.1998, stipulating inter alia that amount of Pension released to them by the State Government would be credited to State Bank of India Pension Fund Account.

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(b) The SBI pensions of the said 12 retirees have been calculated by taking into account their pensionable service in SBI only and not in the erstwhile MSB, whereas in the case of the petitioner, SBI pension has been calculated by taking into consideration his period of pensionable service in MSB as well as in SBI. Tabular data furnished hereunder would make the position amply clear.

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Name	TOTAL	TOTAL
	PENSIONABLE	SERVICE
	SERVCIE IN MSB +	COUNTED
	TOTAL SERVICE IN	FOR

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		SBI	PENSION IN SBI
1	Jagannath Mishra	39yr 05m	23yr 06m
2.	Pravat Kumar Sayal	40yr 04m	25yr 07m
3.	K.C.Mishra	40yr 11m	24yr 07m
4.	Prasad Ch. Behera	41yr 08m	31yr 02m
5.	Ramakanta Mohapatra	40yr 10m	27yr 09m
6.	Sarbeswar Behera	40yr 04m	27yr 06m
7.	Rameswar Jena	43yr 03m	29yr 02m
8.	Balabhadra Pati	41yr 02m	32yr 07m
9.	Biseswar Giri	47yr 10m	28yr 06m
10.	G.C.Das	40yr 08m	27yr 08m
11.	Amulya Kumar Singh	43yr 01m	25yr 06m
12.	Ramhari Das	37yr 03m	22yr 11m
	K.C.Mohanta	34yr 07m	34yr 07m

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Thus, while the said 12 retirees are getting two separate pension-one for their service in MSB and the other for their service in SBI, Sri Mohanta is receiving single pension for his service in both MSB and SBI taken together. He has thus not been discriminated against other retirees.

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(c) In view of the above, Sri Mohanta’s contention that, since the other 12 ex-employees are entitled to Govt. Pension, he is also entitled to receive the same, is not tenable as he is not similarly placed.

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(d)As regards the observation of the Hon’ble High Court that the SBI is appropriating the Govt. Pension and again deducting the same from the Bank Pension of Sri Mohanta, it is clarified taht he full SBI pension(calculated by taking into account his total service in MSB and SBI) as well s Government pension are being credited each month to his bank account (No.11043689044) at our Baripada branch. As stipulated in the sanction note of SBI’s Corporate Centre dt.03.11.1998, the Govt. Pension so paid is subsequently debited to his bank account and the amount is remitted to SBI’s Central Accounts Office, Kolkata for credit to the SBI Pension Fund a/c maintained thereat. The net pension paid to Sri Mohanta, therefore, consists of the entire amount of SBI pension credited to his account each month. Thus, it is not true that SBI pension credited to his account each month. Thus, it is not true that SBI is appropriating the Govt. Pension and again deducting the same from the bank pension of Sri Mohanta.

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e) The other submission of Sri Mohanta such as reference to merger agreement dated 17.10.1948, Government Resolution dt.13.12.1949, Government Treasury Rules and Account Code, and Supreme Court order of 1994 etc, have no relevance so far as payment of SBI pension is concerned, as the same is governed by the State Bank of India Pension Rules enjoying statutory force. SBI pension has been sanctioned to Sri Mohanta in accordance with the said Rules by the appropriate authority vide SBI’s Corporate Centre note dt.3.11.1998.”

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19. Learned counsel for the SBI, drawing attention to the above order, submitted that the service of the petitioner has been counted by taking into account his past service where other employees are not given that benefit for which it cannot be said that the petitioner has been discriminated. He also submitted that the petitioner is not eligible to be a member of SBI Pension Fund as he was above the age of 35 years at the time of absorption in the SBI, but the Bank has extended the benefit of granting pension to the petitioner.

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20. The Resolution dated 14.12.1949 vide Annexure-3 clearly enshrines that the ex-State personnel who retire on or after 1.1.1948, but before being absorbed in the service of the Provincial Government, on superannuation, retiring or invalid pension, will be entitled to the benefit of pension as was admissible under the rules of the State concerned as they stood on 31.12.1947. Further, it is clear from the above Resolution that person discharged on or after 1.1.1948 being found either surplus to requirements of the Government or unsuitable for absorption in Government service, are eligible to be granted compensation in lieu of notice of discharge to which they are entitled to. Annexure-5 to the writ petition shows that on 5.5.1961, the Office of the

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District Magistrate, Mayurbhanj, Baripada issued a notification stating that all the posts held by the officers and staff of the MSB under State Government were declared surplus and retrenched with effect from 6.5.1961.

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21. Annexure-4 shows that the opposite parties-SBI has issued letter of offer to the petitioner on 3.5.1961 to absorb him as a Clerk on the condition that he would be treated as a fresh entrant in the SBI service and would be paid the salary with three advance increments. In that offer letter, it has been also made clear that since the petitioner was over the age of 35 years, he is not entitled to the membership of the SBI Employees’ Pension Fund.

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22. Learned counsel for the petitioner submitted that even if the other employees are getting the pensionary benefits, the petitioner was discriminated by not extending the same benefit. On going through the State Bank of India Employees’ Pension Fund Rules, 1955, it appears that the persons, who is above 35 years of age, cannot be allowed to join the pension fund but, at the same time under Rule-22, it is made clear that a person, who has completed twenty years of service, is eligible to get pension. On going through the relevant rules, it does not appear that the provisions should apply to the members of the SBI Pension Fund as there are clear indications in the said Rule that the persons having service for more than twenty years can be a member to get pension.

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23. However, it is admitted in the counter affidavit filed by the SBI that the bank had decided to give full pension to the employees, who are getting minimum pension from the State Government for the service rendered by them to the Government. So, the Bank decided that while the total service in both MSB and SBI would be taken into account for payment of pension by the SBI, the pension already received by those employees including the present petitioner from Orissa Government would be deducted from the arrears of pension payable to them on a suitable authorization by such employee and only the net amount shall be paid. It is further admitted in the counter affidavit that it was decided that the future pension payable by the Government of Orissa shall be appropriated by SBI and the ultimate idea of the SBI is to appropriate the pension paid by the Government in lieu of paying Full Bank Pension to the petitioner and four others for which the SBI paid the net amount of bank pension less Government Pension at the end of each month by which SBI has not committed any illegality. For this, a policy was prepared and approved by the Managing Director, SBI on 3.11.1998 and in that policy, the term and condition is that the employees would be asked to give an irrevocable authority to the SBI to credit their Government Pension to a specific account of the pension paying branch to be appropriated by the Bank.

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24. Learned counsel for the SBI submitted that since the petitioner has served for 17 years and his total pensionable service in SBI is less than 20 years, he was receiving minimum pension from the

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Government and otherwise also not eligible to get pension from SBI for which SBI, on humanitarian point of view, extended the pensionary benefit by taking service of two banks into consideration and in return, the Bank appropriated the minimum pension received by him from the State Government for which it is not open to challenge by the petitioner. 25. Learned counsel for the petitioner further filed rejoinder affidavit challenging the facts of 39 years of service rendered by the petitioner in MSB and SBI. According to him, since the petitioner has worked from 1944 to 1961 in MSB, which is 17 years and from 1961 to 1983 in SBI, which is 22 years where he is supposed to get full pension under SBI and proportionate pension from State Government. In this regard, Annexure-1 showing the total service rendered by the petitioner

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in MSB and SBI appears to be not correct inasmuch as in Annexure-1, it has been mentioned that 34 years of service totally rendered by the petitioner whereas he has rendered 39 years of service by totalling the years of service in both the banks by the petitioner. Since the opposite parties have admitted the petitioner for granting pension whether by taking his past service into consideration or not, but the fact remains that the opposite parties have admitted to grant pension to the petitioner.

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26. As per the provisions of SBI Employees’ Pension Fund Rules, 1955 (hereinafter called as “the Rules, 1955”), the employee who has rendered 20 years of service at the time of retirement and attained the age of 50 years of age, is entitled to the pension.

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27. Since the petitioner has rendered 22 years of service and retired at the age of 60 years, he is entitled to the pension under SBI. In no way, his period of service with SBI falls short of requirement to grant pension.

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28. Learned counsel for the Bank submitted that the petitioner has given irrevocable authority to appropriate his pension available from the State Government as per the policy of the SBI. Although the time was granted to produce such irrevocable authority to the bank vide order dated 20.10.2016, concerned officer of the Bank filed affidavit stating that the said file is not treacable. On the other hand, the opposite parties-Bank failed to produce the authority of the petitioner allowing the SBI to appropriate the Government Pension available to him. Moreover, if the SBI, on humanitarian point of view, grants Bank Pension by counting the past service of the petitioner and at the same time, appropriating the Government Pension available to the petitioner, in no way the SBI has showed any good gesture by sanctioning better pension to the petitioner.

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29. It is revealed from Annexure-1 that the Government Pension as has been credited in each month to the bank account of the petitioner has been subsequently debited from his account and the amount is remitted to SBI Central Accounts Office, Kolkata for credit to the SBI Pension Fund account maintained there. When the opposite parties failed to prove the authority of the petitioner to debit such amount from his bank account and the same to be appropriated by the SBI, the action

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of the SBI is neither legal nor proper. The same view has also been taken by this Court while disposing of the earlier writ petition of the petitioner, as stated above. This Court at paragraph-6 of the judgment dated 21.9.2010, have categorically mentioned that “such decision of the State Bank of India, in my considered opinion, is impermissible for the reasoning that the State Bank of India cannot appropriate the compensatory pension and again deduct the same from the Bank Pension payable to the petitioner.” The said view has not been challenged by the SBI in any forum. While disposing of the representation of the petitioner filed pursuant to the earlier direction of this Court, such view could not be considered properly by SBI. So, in my considered opinion, the representation of the petitioner has not been disposed of keeping in view the observation made by this Court in W.P.(C) NO.10629 of 2003.

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30. Mr.Balakrishna, learned counsel for the SBI submitted that there is no discrimination to the petitioner and the private bank in the country like MSB merged with SBI by taking over their business and during August, 1994, the SBI has decided to give pensionary benefit to such employee on humanitarian ground subject to meeting the requirement of SBI Employees’ Pension Fund Rules regarding eligibility and surrendering to SBI with interest service gratuity and similar benefit, if any received by them from their ex-employer-bank and while the said matter was moved before the Hon’ble Supreme Court, the Hon’ble Supreme Court, in C.A. No.3000/1990 filed by one similar

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employee of K.B.Bank Limited, have approved the SBI Scheme of paying pension to the employees of taken over Banks. He further submitted that since the petitioner was not eligible to become a member of Pension Fund because of his age is above 35 years at the time of his absorption in the SBI but in view of the order of the Hon’ble Supreme Court, the pensionary benefits to the employees of MSB were allowed. He placed the order of the Hon’ble Supreme Court and on going through the same, it appears that Their Lordships have approved the resolution of the SBI, 1994 but no where Their Lordships have directed the SBI to appropriate the compensatory pension or similar pension by the Bank after the same being debited from the Bank Pension account of the employees. Therefore, the contention of the learned counsel for the Bank seems to have no force.

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31. On the other hand, it is revealed from Annexure-1, the order of rejection of the representation of the petitioner, that 12 retirees employees were getting two separate pension, i.e, one for MSB and the other is for SBI whereas the petitioner is receiving single pension. It is stated by the learned counsel for the opposite parties that those 12 employees were below the age of 35 years on the date of absorption in SBI service for which they are allowed to SBI pension. Learned counsel for the petitioner submitted that even if they were below the age of 35 years and they are allowed both categories of pension, there is no reason as to why the petitioner would be awarded one Bank Pension by calculating the past service in MSB and the service in SBI? When the

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petitioner has already been paid the Bank Pension by appropriating the Government Pension available to him, the question of ineligibility of the petitioner to receive the Bank Pension because of his entry to SBI after the age of 35 years gets duped. On the other hand, as a matter of policy, in 1994, the opposite parties-Bank has started to pay the Bank Pension only to the petitioner. When 12 employees are getting separate pension for the service rendered in MSB as well as in the SBI, in the facts and circumstances of the case of the petitioner, as stated above, he should be also paid the similar benefit and single out of his case would, therefore, is discrimination as per Articles 14 and 16 of the Constitution of India.

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32. From the above discussions, the Court is of the view that appropriate of the Government Pension by the opposite parties-Bank is unjust and improper and not sustainable in the eye of law when the petitioner has already rendered service for more than 20 years in SBI and the SBI has admittedly made policy to grant Bank Pension to the employees of the MSB which merged with SBI, the appropriate pension duly calculated under SBI should be separately paid to the petitioner. On the whole, it is observed that the petitioner is entitled to Government Pension and Bank Pension both separately, as available to other 12 such absorbed employees of MSB. The point is answered accordingly.

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33. CONCLUSION

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In view of the earlier decision of this Court dated 21.9.2010 passed in W.P.(C) No.10629 of 2003 and in view of the discussion made

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herein above, the Court is of the opinion that the representation of the petitioner has not been disposed of in accordance with law. On the other hand, the order dated 10.12.2010 passed by the Chief General Manager, SBI, opposite party no.1 being not sustainable in law is liable to be quashed and the Court do so.

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34. The petitioner has also made prayer that the SBI in appropriating the compensatory pension paid to him by the Government of Orissa be declared as illegal. In terms of the above discussion, the Court is of the considered view that appropriating compensatory Government Pension credited to the bank account of the petitioner after debiting the same from his bank account to the appropriate account of the bank by SBI is illegal and unjust and the Court do declare so.

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35. The petitioner has made prayer in the writ petition to refund the compensatory pension debited from his pension account with interest. In view of the above discussions, when the compensatory pension debited from the bank account of the petitioner and again the full pension for the total years of service of the petitioner in MSB as well as in SBI being paid, there requires computations of accounts, which is a matter of finding of fact and in the writ petition, the same relief cannot be granted. Moreover, payment of interest on compensatory pension debited does not arise where there is no computation of such amount debited from the bank account of the petitioner and the total amount paid to the petitioner by the SBI. On the other hand, the writ petition is

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disposed of with further direction to the SBI not to debit any Government Pension credited to the bank account of the petitioner and at the same time to compute the Bank Pension afresh after taking into account the twenty-two years and some months of service rendered by the petitioner in SBI and pay him the Bank Pension separately.

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36. In the result, the writ petition is partly allowed and the entire directives made above be complied by the SBI within a period of four months from the date of this order.

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…....…………………..…… Dr.D.P.Choudhury,J

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Orissa High Court, Cuttack Dated the 5^th Day of May,2017/B.Nayak,

Kailash Ch.Mohanta v. Cheif General Manage

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Kailash Ch.Mohanta v. Cheif General Manage

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