S.K. Kool, Respondent No. 1 herein (since deceased), was working as a clerk with the Petitioner, Bank of Baroda and while working as such after a departmental inquiry, as a measure of punishment, visited with the penalty of 'removal from service with superannuation benefits as would be due otherwise and without disqualification from future employment'.
S.K. Kool, hereinafter referred to as 'the employee', made a request for leave encashment, which was declined by the Petitioner Bank of Baroda, hereinafter referred to as 'the employer', on the ground that 'where cessation of service takes place on account of employee's resignation or his dismissal/termination/
The employee laid claim for pensionary benefits but the same was also declined. However, the employer advised the employee to ask for sanction of compassionate allowance not exceeding two-thirds of the pension which would have been admissible to him otherwise. A dispute was raised and the competent Government referred the dispute for adjudication by the Industrial Tribunal. The dispute referred to the Industrial Tribunal, hereinafter referred to as 'the Tribunal', reads as follows:
“Whether the action of the management of Bank of Baroda in denying pension and encashment of leave to Shri S.K. Kool is legal and justified? If not, what relief the concerned workman is entitled to?”
Industrial Tribunal ORDERS as :- In view of the facts and circumstances and settled legal position, the tribunal feels no hesitation in holding that the action of the opposite party bank in denying superannuation benefits to the workman is neither legal nor justified. Accordingly it is held that the workman is entitled for his superannuation benefits under the final orders of the disciplinary authority passed on 19.09.03 and any other order passed by some other officer denying superannuation benefits stands set aside. Accordingly the workman is held entitled for all termination benefits like pension, leave encashment, gratuity and commutation of pension subject to adjustment of any amount paid under these heads to the workman.
Against the order of Tribunal, Bank files appeal in High Court , which is dismissed with following observation :- “It is true that both the provisions have to be harmonized. What logically follows from bare reading of the aforesaid provisions is that the disciplinary authority has the competence to inflict punishment of removal from service with a condition that such removal from service shall not in any way result in forfeiture of pensionary benefits to which the workman concerned is otherwise eligible. Only simple reading of the words "AS WOULD BE DUE OTHERWISE" would mean that irrespective of the order of punishment of removal from service, workman would be entitled to superannuation benefits, if it is found due otherwise i.e. if the workman concerned satisfies the other requirement of superannuation benefits under Regulations, 1995, namely, he has completed requisite number of years of working etc.”
Against dismissal order of High Court Bank moves to Supreme Court concludes as under:-
Having considered the rival submissions we do not have the slightest hesitation in accepting the broad submission of Mr. Gupta that the Regulation in question is statutory in nature and the court should accept an interpretation which would not make any other provision redundant. Bearing in mind the aforesaid principle, we proceed to consider the rival contentions. The terms and conditions of service of the employees are governed and modified by the Bipartite Settlement. Various punishments have been provided under the Bipartite Settlement which can be inflicted on the employee found guilty of gross misconduct. In 2002, a Bipartite Settlement was signed by the Indian Banks' Association and the Banks' workmen's Union with regard to disciplinary action procedure. It is common ground that in the light of the said Bipartite Settlement, Clause 6(b) was inserted as one of the punishments which can be inflicted on an employee found guilty of gross misconduct and the same reads as follows:
6. An employee found guilty of gross misconduct may;
(a)...
(b) be removed from service with superannuation benefits i.e.Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment, or
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11. The employee undisputedly has been visited with the aforesaid penalty in terms of the Bipartite Settlement.
12. Article 22 of the Regulation, which is relied on to deny the claim of the employee reads as follows:
22. Forfeiture of service:
(1) Resignation or dismissal or removal or termination of an employee from the service of the Bank shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits.
From a plain reading of the aforesaid Regulation, it is evident that removal of an employee shall entail forfeiture of his entire past service and consequently such an employee shall not qualify for pensionary benefits. If we accept this submission, no employee removed from service in any event would be entitled for pensionary benefits. But the fact of the matter is that the Bipartite Settlement provides for removal from service with pensionary benefits "as would be due otherwise under the Rules or Regulations prevailing at the relevant time". The consequence of this construction would be that the words quoted above shall become a dead letter. Such a construction has to be avoided.
The Regulation does not entitle every employee to pensionary benefits. Its application and eligibility is provided under Chapter II of the Regulation whereas Chapter IV deals with qualifying service. An employee who has rendered a minimum of ten years of service and fulfils other conditions only can qualify forpension in terms of Article 14 of the Regulation. Therefore, the expression "as would be due otherwise" would mean only such employees who are eligible and have put in minimum number of years of service to qualify for pension. However, such of the employees who are not eligible and have not put in required number of years of qualifying service shall not be entitled to the superannuation benefit though removed from service in terms of Clause 6(b) of the Bipartite Settlement. Clause 6(b) came to be inserted as one of the punishments on account of the Bipartite Settlement. It provides for payment of superannuation benefits as would be due otherwise. The Bipartite Settlement tends to provide a punishment which gives superannuation benefits otherwise due. The construction canvassed by the employer shall give nothing to the employees in any event.
Will it not be a fraud Bipartite Settlement? Obviously it would be.
From the conspectus of what we have observed we have no doubt that such of the employees who are otherwise eligible for superannuation benefit are removed from service in terms of Clause 6(b) of the Bipartite Settlement shall be entitled to superannuation benefits. This is the only construction which would harmonise the two provisions. It is well settled rule of construction that in case of apparent conflict between the two provisions, they should be so interpreted that the effect is given to both. Hence, we are of the opinion that such of the employees who are otherwise entitled to superannuation benefits under the Regulation if visited with the penalty of removal from service with superannuation benefits shall be entitled for those benefits and such of the employees though visited with the same penalty but are not eligible for superannuation benefits under the Regulation shall not be entitled to that.
Accordingly, we hold that the employee's heirs are entitled to superannuation benefits. The entire amount that the Respondent is found entitled to along with interest at the rate of 6% per annum should be disbursed within 6 weeks from the date of receipt/communication of this Order.
In the result, we do not find any merit in this appeal and it is dismissed accordingly with costs of Rs. 50,000/- (rupees fifty thousand) to be paid by the Appellant to the Respondent No. 1 along with other dues and within the time stipulated above.
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In view of the above judgment it can be safely concluded that:-
1) The Act of Resignation is NOT considered as an offence / misconduct NEITHER in bipartite settlement NOR in officer’s service rules to attract the punishment of forfeiture of past service for pensionary benefits.
2) Relieving letters of the Bank given to Resigned Employees Nowhere states that you are not eligible for superannuation benefits. i.e. Gratuity, Encashment of Leave, Provident Fund & Pension.
3) None of legislation In India OR in the world inflicts PUNISHMENT for the act which is not defined as an OFFENCE.
Finally the “question of law” which was kept open by the Judiciary in the matter of VIJAYA BANK on 06/12/2013 has been decided in this case on 11/12/2013,as under:-
“Resignation or dismissal or removal or termination of an employee from the service of the Bank shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits except where the Service Regulations/Service Rules/Settlements do not disentitle such employee from receiving superannuation benefits “.
This is exactly same clause which IBA & Unions agreed in the settlement of 1993 at Regulation 10 in Pension Regulation circulated by the IBA on 17/03/1994.
In brief, any employee [on resignation, dismissal, compulsory retired] on cessation of his prior to completion of qualifying service as laid down in Regulation 14 of Bank Employees Pension Regulation 1995 shall not be eligible for Pensionary Benefits.
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NOW ONCE AGAIN IBA & ALL UFBEU MEMBERS OF UFBEU ARE APPEALED TO UNDO THE INJUSTICE CAUSED TO THE BANKING EMPLOYEES WHO ARE DENIED PENSION ON UNETHICAL GROUND.
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