WP/15975/2001 of Sara Yadagiri, Vs Central Bank of India, on 30 December 2010

ORDER:

Heard Sri Ghanta Rama Rao, learned counsel for the petitioner and SriC.V. Rajeeva Reddy, learned counsel appearing for the respondents.

2. The parties have filed affidavits, additional affidavits and counteraffidavits and additional counter affidavits. However, the gist of thepetitioner’s case is as follows:

(a) Petitioner initially joined the respondent-bank as Driver in 1972 andlater promoted as Clerk in 1988. The respondent-bank framed a pensionscheme during 1994 and invited options from the employees leaving it openfor the employees either to opt the provident fund scheme or the pensionscheme. The last date for exercise of options was 30.11.1994. Thepetitioner claims that he has submitted his option for pension scheme on28.10.1994 to the Branch Manager, Hyderabad branch where he wasworking. He has produced a Xerox copy of the option form, which is countersigned by the Branch Manager in lieu of acknowledgement, submitted byhim along with a statement prepared by the branch showing the list ofpension optees as on 31.03.1998. The said statement contains a list of 60employees and the petitioner’s name figures at Sl.No.41. Petitioner has alsoproduced salary slips for November 2000 and January 2001 prepared by thebank, which shows that he is a pension optee.

(b) Petitioner, further, alleges that he received the employees providentfund statement for the period ending March 2000 wherein as against thecolumn option for pension it is described as ‘No’ and thereby, petitionerclaims that he has corresponded with the respondents reiterating that he hasalready given option for pension and that there is some mistake in therecords, particularly, in the provident fund record, as if he has not opted forpension. The said correspondence was responded to by the respondentsreiterating that petitioner is not a pension optee as per the records of thebank and his pension papers were consequently returned. Questioning thesaid action, the petitioner approached this Court by filing the present writpetition seeking Mandamus that the action of the respondents in not includinghis name in the eligible persons, who had opted for pension, in spite ofpetitioner submitting option within the prescribed time is arbitrary and illegaland consequently, direct the respondents to take appropriate action for fixingthe payment of pension as per the scheme.

3. The respondent-bank filed counters and additional counters denyingthe petitioner’s assertion that he has submitted option form within the timeand the respondents reiterated that as per the records no such option formwas received. It is also alleged that the petitioner has waited for over sixyears to ventilate his grievance and in spite of knowing that he is not treated as a pension optee, has not approached the Court earlier. The respondent-bank, however, has been fair in making a statement that after 1994, the bankhas not paid its contribution towards provident fund and the specificparagraph in the second additional counter affidavit reads as follows:

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“3. I submit that he was paid management contribution towardsProvident Fun up to the period 1994 by way of remitting the same tohis OD account No.1042702753 with Central Bank of India, ChattaBazar Branch, Hyderabad on 02.03.2006 for an amount ofRs.1,29,257.89. Thereafter the Bank has not contributed theProvident Fund to the Petitioner’s Account from the date of allegedoption date till the date of retirement but till today he has notwithdrawn said amount.”

The bank, however, has denied that the option form of the petitionerwas allegedly signed by the branch manager and as such, submits that onthe basis of the Xerox copy, which is unauthenticated, petitioner is notentitled to the relief.

4. Mr. C.V. Rajeeva Reddy, learned counsel for the respondents, alsosubmitted that a dispute of this nature being a dispute of facts, this Courtwould not entertain the same under Article 226 of the Constitution of India.He, further, submits based upon the decision of the Supreme Court in SAMISHTA DUBE v. CITY BOARD, ETAWAH[[1]]that even a personworking in clerical cadre is a workman and as such, the appropriate coursefor the petitioner is to approach the Industrial Tribunal so that all questions offact can be adjudicated upon.

5. Firstly, the Xerox copy of the option form produced by the petitionershows the signature and seal of the branch where he was working.Secondly, it is also not in controversy that his pay slips, referred to above,specifically show that he is a pension optee. Thirdly, the bank in all fairnesshas consistently accepted the position that they have stopped contributingemployer’s contribution to the provident fund account of the petitioner from1994 onwards.

In addition to the above, the statement of pension optees as on 31.03.1998,which was annexed to the letter of Senior Manager (Operations), CentralBank of India, Hyderabad branch addressed to PRS Department, RegionalOffice, Hyderabad, shows the list of existing employees, who have opted for pension and in service as on 30.09.1997 was sent to the PRS departmentvide covering letter of the Hyderabad branch bearing No.HYD:PRS:97-98/348 dated 25.11.1997. Petitioner’s name figures at Sl.No.41 of the saidlist. These documents taken together, therefore, clearly show that thepetitioner was treated as a pension optee by the bank itself. If really thepetitioner had not given any such option, as contended by the bank, there isneither any possible reason as to why his name appears in the list of pensionoptees under the covering letter dated 25.11.1997 nor it explains as to whythe bank has failed to contribute to provident fund from 1994 onwards, so faras petitioner is concerned. It is also evident that the moment petitionerreceived the statement relating to employees provident fund ending March2000, he pointed out the mistake by a detailed representation to the bankdated 16.03.2001 and his subsequent correspondence and representationhaving invoked no response, he had approached this Court by this writpetition in 2001.

I am, therefore, unable to see any substance in the claim of the bank that allthe above documents mistakenly show the petitioner’s name as pensionoptee. On the contrary, it appears that in spite of receiving option form fromthe petitioner and in spite of giving effect to the same for other purposes suchas contribution to employer’s provident fund and in the other records of thebank including the salary account, by some mistake at either the branchlevel or at the regional level the name of the petitioner missed out forextending the benefit of pension scheme.

6. I am also unable to see any such factual dispute, as incapable ofresolution on the basis of affidavit evidence in the present case and as such,I see no impediment to grant the relief prayed for under Article 226 of theConstitution of India, particularly, as this writ petition was admitted in 2001and has been pending on the file of this Court all these years. Petitioner hasalready retired on voluntary retirement scheme in the hope of pension optedby him and was relieved from service on 30.06.2001. At this distance oftime, it would not be appropriate to drive him to Industrial Tribunal, ascontended by the respondents. Even otherwise, the learned counsel for thepetitioner has brought to my notice that even as late as on 27.04.2010 therewas a fresh settlement between the respondent-bank and the employeesextending the pension scheme to employees, who were in the service of thenationalized bank as on 29.09.1995 and associate banks of State Bank of India as on 26.03.1996 and continuing in service. The existence of pensionscheme even now to the existing employees shows the intention of the bankto extend the pension scheme for all those optees and as such, petitionerhaving opted for the same, denial of pension to him is clearly arbitrary.

The writ petition, therefore, succeeds and shall stand allowed asprayed for. However, there shall be no order as to costs.

December , 2010DSK

_____________________VILAS V. AFZULPURKAR, J

[1](1999) 3 SCC 14