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Hori Lal Jain & Others v. Union Of India & Others - WRIT - A No. 49982 of 1999  RD-AH 2136 (29 August 2005)
Civil Misc. Writ Petition No.49982 of 1999
Hori Lal Jain & Ors.
Union of India & Ors.
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Shishir Kumar, J.
The petitioners have approached this Court for a writ of certiorari quashing the order dated 27th February, 1998 (Annex.16) and orders dated 23.12.1997 (Annex.10, 11, 12, 13, and 14) respectively and further a writ in the nature of mandamus directing the respondents to grant pension to the petitioners with arrears after deducting the amount of contribution provident fund for which the petitioners are entitled with interest.
The petitioners were working in the Hindustan Commercial Bank Limited, Head Office Bairahna Road, Kanpur. The Reserve Bank of India framed a Scheme for amalgamation of Hindustan Commercial Bank Limited, Kanpur with the Punjab National Bank, under Section 45 (7) of the Banking Regulation Act, 1949. A memorandum was issued on 18th December, 1986 according to which the Hindustan Commercial Bank Limited, Kanpur was termed as the transferor Bank and the Punjab National Bank, the transferee Bank. Proviso to Clause 10 of the said Memorandum provided that the employees of the transferor Bank who have, by notice in writing given to the transferor or the transferee Bank, at any time before the expiry of one month next following the date on which this Scheme has been sanctioned by the Central Government, intimated their intention of not becoming employees of the transferee Bank, shall be entitled to the payment of such compensation, if any, under the provisions of the Industrial Disputes Act, 1947 and such pension, gratuity, provident fund and other retiral benefits as may be ordinarily admissible under the Rules. It is also apparent from the record that the transferor Bank closed its business from 24th May, 1986. Clause 12 of the said Scheme/agreement clearly states that the transferee bank shall, on the expiry of a period of not more than three years from the date on which this scheme is sanctioned, pay or grant to the employees of the transferor bank the same remuneration and the employees of conditions of service which is applicable to the corresponding Bank. A settlement was reached on 29.10.1993 (Annex.2) which provided that the pension will also be accorded with effect from 01.11.1993 or the date of retirement which ever was later, in case the contributory fund is deposited by the employees concerned. The retired employees who were in service of the Bank on or after 31st December, 1985 and retired on or after 1st January, 1986 but before 1st November, 1993 would also get pension provided that such retired employees apply on their own in the format prescribed by the Bank and refund within six months from 1st November, 1993, the entire contribution including the interest at the rate of 6 percent. The petitioners retired between February, 1986 to October, 1986. The Scheme of amalgamation was enforced with effect from 19.12.1986 and, thus, the Hindustan Commercial Bank Limited merged with the Punjab National Bank formally on 19.12.1986 for all practical purposes.
It has been submitted by learned counsel for the petitioners that they received letters dated 24.11.1995 regarding pension proposal by which the petitioners were asked to refund the bank's contribution of provident fund including interest at the time of retirement along with interest at the rate of 6 percent. The similar letters have also been issued to the various other employees. It has further been submitted that the amount of provident fund which was to be returned by the petitioners had not been finalised and the letter dated 23rd December, 1997 was received that the petitioners were not entitled for pension on the ground that since on the date of merger, i.e. 19.12.1986, the retired employees of the erstwhile Hindustan Commercial Bank did not become the employees of the Punjab National Bank, though according to the memorandum of agreement dated 29.10.1993, the petitioners are entitled for the pension. Therefore, the petition deserves to be allowed.
On the contrary, it has been stated by Shri K.L. Grover and Shri Yashwant Verma, learned counsel appearing for the respondents that the Reserve Bank of India had considered the matter in detail and Regulations of pension etc. and no order could be passed in favour of the petitioners as they were not the employees of the Transferee Bank on the date of amalgamation, i.e. 19.12.1986.
More so, the petitioners never ensured compliance of the settlement as they had never refunded the amount as provided in the agreement. They had retired about 20 years ago and there is nothing on record to show that all of them are still alive and if they have not deposited any amount as per the terms of the settlement, they are not entitled for any relief, whatsoever. The settlement was in two parts. In the first part, they had to give the option and in the second they had to refund the amount with 6 percent interest within the period stipulated therein and as they failed to perform their part, there is no occasion for the writ Court to grant such relief. Thus, the petition is liable to be dismissed.
We have considered the rival submissions made by learned counsel for the parties and perused the record.
Admittedly, it is evident from the records that all the petitioners had retired between 28th February, 1986 to 31st October, 1986. The respondents rejected the claim of the petitioners in view of the decision, which reads as under:-
"By a scheme of amalgamation dated 18th December 1986 (the scheme), Hindustan Commercial Bank, Kanpur was amalgamated with Punjab National Bank. Clause 10 of the Scheme provided that all employees of the transferor bank (Hindustan Commercial Bank), except those specified in the Schedule, shall continue in service and shall be deemed to have been appointed by Punjab National Bank. In terms of the first proviso of clause 10, the employees of the Hindustan Commercial Bank had option to intimate their intention of not becoming the employees of the transferee bank. However, Scheme did not provide for or otherwise deal with the retired employees of the transferee bank. Therefore, the scheme has no application in respect of the employees who had already ceased to be in the service of the transferor bank on the appointed date i.e. 19th December, 1986. Punjab National Bank (Employees) Pension Regulations, 1995 provide for pension to its employees who were in service of the bank on or after 1st January, 1986. Since the employees of the transferor bank, who had retired before the date of its amalgamation, were never the employees of Punjab National Bank, the question of their being given pensionary benefit does not arise."
In paragraph 7 of the counter affidavit, it has been admitted by the respondents that the Punjab National Bank (Employees) Pension Regulations, 1995 provided for pension to the employees of the Punjab National Bank who retired on or after 01.01.1986 pursuant to the settlement arrived between the management of 58 Banks and their workmen. However, as all the petitioners retired prior to the date of amalgamation, i.e. 19.12.1986, they had been found to be ineligible for the reason that none of them had ever been employee of the transferor Bank. The transferor Bank had no pension Scheme. Giving the benefit to these petitioners treating them to be the employees of the transferee Bank would amount to apply the said amalgamation order with retrospective effect, which is neither desirable nor permissible in law. There is nothing in the scheme of amalgamation which provided to give benefit to any employee who stood retired from service of the transferor Bank before the merger took place.
Undoubtedly, the petitioners cannot claim that they had ever been employees of the Punjab National Bank as they had retired prior to the date of amalgamation and they retired as the employees of the transferor Bank and could not attain the status of the transferee Bank. However, at the same time, the settlement dated 29.10.1993 also requires to be given effect for the reason that every settlement is binding between the parties and each party has to perform its part. The relevant part of the same reads as under:-
"2. Pension as a second retiral benefit scheme in lieu of contributory provident fund shall be available to the following category of employees/retired employees from 1st November, 1993 or the date of retirement, whichever is later.
(iii) Retired employees who were in service of the merged bank on or after 31st December, 1985 and retired on or after 1st January, 1986 but before 1st November, 1993 provided that such retired employees apply for it on their own on the format prescribed by each bank and refund within a period of six months reckoned from 1st November, 1993, the bank's entire contribution to the provident fund including interest received with further simple interest at the rate of withdrawal of the provident fund amount till the date of refund."
It is not permissible for the respondents to submit that their case was liable to be rejected only on the ground that they had never been the employees of the transferee Bank as they were also bound by the said settlement dated 29.10.1993. The order impugned which has been passed only on the ground that they had never been the employees of the transferee Bank and stood retired prior to the date of amalgamation, cannot be sustained in the eyes of law but the question does arise as to whether the petitioners could enforce the terms of the settlement without performing their part. Sub-clause (iii) of Clause (2) of the said agreement contained two parts. Firstly, they had to give an option for the pension on a prescribed format and secondly to refund the amount with interest within a period of six months reckoning from 1st November, 1993. Thus, the crystal clear term had been incorporated in respect of the refund of the amount of provident fund etc. with interest. The period for refund expired on 31.04.1994 and a period of about 12 years has lapsed. Shri R.K. Jain, learned Senior Counsel for the petitioners has fairly admitted that none of the petitioners had ever refunded any amount, whatsoever. As the petitioners failed to perform their part, we are of the considered opinion that they cannot claim any relief, whatsoever, in equitable court.
We find no force in the submissions made by learned counsel for the petitioners that there was no occasion for the petitioners to refund any amount as it could be adjusted in the arrears of pensions to be paid to them for the reason that it would amount to variation of the terms and conditions of the settlement. We also find no force in the submission made by Shri Jain that this Court can permit the petitioners even today to deposit the said amount for the reason that the petitioners stood retired 20 years ago. The settlement was reached 12 years ago. Even Mr. Jain is not fully aware as to whether all the petitioners are still alive or not. Much water has flown and, thus, it is not desirable to pass such an order. There may be some force in the submissions made by Shri Jain that the demand of refund itself was made in 1995, therefore, the respondent Bank itself understood that the amount may be refunded at a later stage. The letters written by the Bank dated 24.11.1995 and 27.11.1995 (Annex.8 and 9) make it clear that the petitioners have been informed the amount to be refunded as no attempt had ever been made by any of the petitioners to refund the amount. They cannot claim any relief, whatsoever, in equity without performing their part of the contract.
In view of the above, we do not find any force in the petition. It is accordingly dismissed.
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