Full Text
HIGH COURT OF DELHI
Date of Decision: 06th March, 2023
SH. M.S. TOMAR ….. Petitioner
Through: Ms. Aditi Gupta, Advocate with Petitioner-in-person.
SCHEDULED CASTES & ANR. ….. Respondents
Through: Mr. Rajat Arora, Advocate for R-2.
JUDGMENT
1. Present writ petition has been filed by the Petitioner seeking a writ of certiorari for quashing the impugned order dated 27.02.2019 and a writ of mandamus directing Respondent No. 2/Bank of India (hereinafter referred to as the ‘Bank’) to grant compassionate allowance to the Petitioner being a case ‘deserving of special consideration’.
2. Shorn of unnecessary details, the necessary facts are that Petitioner was appointed as an Accounts Clerk with the Bank on 13.12.1976 and thereafter as a Probationary Officer on 14.02.1983. On 06.07.2001, Petitioner was promoted as a Branch Manager and continued so till he was dismissed from service.
3. Major penalty proceedings were initiated against the Petitioner by issuance of a charge-sheet dated 17.05.2004, which culminated into a penalty of ‘dismissal which shall ordinarily be a disqualification for future employment’ in terms of Regulation 4(j) of Bank of India Officer Employees’ (Discipline and Appeal) Regulations, 1976. Suspension period was treated as period not spent on duty, disentitling the Petitioner to pay and allowances in excess of the subsistence allowance already paid during the suspension period. Appeal filed against the dismissal order was rejected on 12.03.2008 and Review Petition also suffered the same fate on 19.10.2010.
4. On 20.10.2010, Petitioner requested the Bank to permit him to join the Pension Scheme under Bank of India (Employees’) Pension Regulations, 1995 (hereinafter referred to as the ‘Regulations, 1995’) followed by several reminders in 2011 and 2012. Petitioner also approached the National Commission for Scheduled Castes alleging inaction and by order dated 31.05.2016, the learned Commission directed the Bank to reconsider the case of the Petitioner. Vide order dated 02.09.2016, Bank rejected Petitioner’s claim and the order was communicated to the Petitioner.
5. On 20.09.2017, Petitioner filed a writ petition in this Court being W.P.(C) 8377/2017 for grant of pensionary benefits, which was withdrawn with liberty to file a representation for grant of compassionate allowance, in accordance with the relevant Regulations.
6. Pursuant to the liberty granted by the Court, Petitioner preferred a representation dated 25.09.2017 seeking compassionate allowance, but the representation was rejected by order dated 06.10.2017, on the ground that dismissed employees are not entitled to exercise option for pension and therefore, compassionate allowance cannot be granted. Petitioner thereafter again filed a writ petition being W.P.(C) 9974/2017, which was disposed of by the Court on 14.01.2019 observing that the impugned order dated 06.10.2017 was an unreasoned order and directing the Bank to decide the representation afresh, keeping in view Regulation 31 of Regulations, 1995 as well as the judgment of the Madras High Court in D. Kalaichevlan v. Union Bank of India and Ors., 2015 SCC OnLine Mad 9114. Pursuant to the directions of the Court, the Bank again considered the pleas of the Petitioner, in light of Regulation 31 and the judgment in
7. Learned counsel for the Petitioner assails the impugned order on multifarious grounds. It is argued that it was not open to the Bank to deny compassionate allowance to the Petitioner on the ground that he has suffered a major penalty of dismissal, as Regulation 31 itself provides an exception to the general rule that dismissal, removal or termination entails forfeiture of Pension and the avowed object is to grant portion of the pension to such an employee on compassionate grounds, in special and deserving cases.
8. It is further urged that the case of the Petitioner deserves a special consideration since both his wife and he are senior citizens, who do not own any property and are suffering from various agerelated ailments with no source of income. Petitioner is also suffering from Necrotizing Pancreatitis (a life-threatening disease), Sub-acute intestinal obstruction, severe joint pains, low backache, Prolapse intervertebral disc and Cataract in both eyes. Petitioner’s daughter is also suffering from a degenerative disc disease and needs regular care.
9. It is further contended that the second reason for rejection of the claim of compassionate allowance that the Petitioner is not a Pension optee, is equally misconceived. From a plain reading of Regulation 31, one cannot decipher the requirement of an employee being a pensioner as a pre-requisite for grant of compassionate allowance and plea of the Petitioner finds strength from the judgment of the High Court of Punjab and Haryana in Parmanand v. Syndicate Bank and Another, 2016 SCC OnLine P&H 5803, where this very Regulation 31 of Regulations, 1995, was under consideration. The Court directed the Respondents therein to pass a speaking order as to whether the Petitioner’s case was deserving of special consideration and if so, to pass a consequential order. The Court held that Regulation 31 makes an exception to the general rule that dismissal forfeits Pension and thus sanction of compassionate allowance does not require that the employee must be eligible for Pension. In fact, the Court observed that at the first stage of considering the eligibility for compassionate allowance, the question whether an employee is entitled to Pension is an irrelevant consideration and this issue becomes relevant only at the second stage of deciding the quantum of compassionate allowance, since it cannot be more than 2/3rd of Pension to which the employee would be entitled if not dismissed/removed/terminated. Reliance is also placed on the judgment of this Court in Smt. Om Wati v. Reserve Bank of India and Anr., 2018 SCC OnLine Del 6543, particularly paragraph 4 thereof and of the Madras High Court in M. Ramanujam v. The Chairman & Managing Director, India Overseas Bank & Ors., 2010 SCC OnLine Mad 5840, for the same proposition.
10. Learned counsel for the Bank, per contra, defends the impugned order and submits that after the direction of this Court, a personal hearing was given to the Petitioner on 21.02.2019 and his representation was considered in the light of Regulation 31 of Regulations, 1995 as well as judgment of Madras High Court in
Provident Fund optee when he was dismissed and had never opted for Pension during his service. By a Circular No.112/2013 dated 26.04.2018, option was given by the Bank to PF optees, who had compulsorily retired from the Bank, to join the Pension Fund, but there is no provision in any existing Regulation or Circular, which permits a PF optee to join Pension Fund after dismissal. Regulation 31 envisages grant of compassionate allowance only to an employee eligible for Pension, which has been forfeited on account of the major penalty of dismissal, removal or termination from service and thus Petitioner’s case cannot be considered for grant of compassionate allowance as he did not opt for Pension while in service. Being a PF optee, even if the Petitioner would have retired in the normal course on superannuation, he could not have availed pensionary benefits and which is why his earlier writ petition for pension was withdrawn by him, when the Court was not inclined to grant the relief. Reliance is placed by learned counsel on the judgment of the Madras High Court in W.P. No. 22700/2016 titled as V. Chandrasekar @ Sivachandran v. Punjab National Bank, General Manager, New Delhi & Another, where the issue for consideration was exactly the one that arises here as to whether a PF optee on dismissal would be entitled to grant of compassionate allowance. After deliberating on the issue, the Madras High Court held that since Petitioner at no point of time opted for the Pension Scheme, he is not eligible to claim compassionate allowance.
11. I have heard learned counsels for the parties and examined the contentions of the parties.
12. The conundrum that this Court is called upon to resolve is whether Petitioner is entitled to compassionate allowance de hors the admitted fact that he is not a ‘Pension-optee’ and had consciously exercised option for being a PF optee. In order to arrive at a conclusion on this aspect, one would need to examine the provisions of Regulation 31, which are extracted hereunder for ready reference:-
13. Regulation 31 is in two parts. The first part provides that an employee who is dismissed/removed/terminated from service shall forfeit his Pension. This is the general rule and is in consonance with Regulation 22 of Regulations, 1995, which stipulates that ‘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. The second part of the Regulation 31 provides an exception to the first part and gives a discretion to an Authority higher than the Authority competent to dismiss/remove/terminate from service, in cases ‘deserving of special consideration’ to sanction compassionate allowance not exceeding two-thirds of the Pension, which would have been admissible to the said employee on the basis of qualifying service rendered upto the date of imposition of one of the major penalties, provided in the Regulation.
14. In my considered view, the only way in which Regulation 31 can be interpreted and read is that compassionate allowance can be granted in ‘deserving cases’ only to an employee, who is otherwise eligible for grant of Pension and would have been granted pension, but for the intervening circumstance of imposition of a major penalty of dismissal/removal/termination and cannot be granted to a nonpensioner. This interpretation flows from conjoint reading of expressions ‘shall forfeit his pension’ and ‘not exceeding two-thirds of the pension which would have been admissible’ consciously used in Regulation 31. Any interpretation to the contrary, so as to hold that even a non-pensioner would be entitled to compassionate allowance would lead to a perilous position, where a non-pensioner on superannuation would not be entitled to receive pension, being a nonpension optee, while another non-pensioner who suffers a major penalty of dismissal for proven delinquency, would receive some portion of the pension in the form of compassionate allowance though otherwise not entitled to pension. If accepted, this position will place the dismissed/removed/terminated employee on a higher pedestal and more advantageous position than another employee who retires on superannuation, without a blemish but does not get pension since he had not opted for the same. I am afraid this Court cannot subscribe to this interpretation of Regulation 31. The avowed purpose and objective behind Regulation 31 is to provide a succour to an employee, whose pension is forfeited, even after having served for the qualifying period, on account of an act of delinquency, but the calling circumstances are so special and deserving of compassion that some part of the pension can be sanctioned as compassionate allowance. The matter can be seen from another angle. The trigger of the take away/deprivation of pension under Regulation 31 is imposition of a major penalty. The provision itself, however, carves out an exception and permits grant of maximum 2/3rd pension, if special circumstances warrant and thus logically seen if there is no entitlement to pension, imposition of major penalty cannot trigger ‘taking away’ something that does not exist and the question of grant of a portion thereof cannot arise. Therefore, in my view, eligibility for grant of pension is a sine qua non for consideration for grant of compassionate allowance.
15. This Court is fortified in its view by the judgment of the High Court of Rajasthan in Idan Puri v. Union of India & Ors., 2006 SCC OnLine Raj 56, wherein the Petitioner challenged an award of the Industrial Tribunal-cum-Labour Court declining to grant compassionate allowance to the Petitioner/workman. The stand of the Respondent was that Petitioner was not a part of the pension scheme and thus there was no question of grant of compassionate allowance after dismissal from service. The High Court upheld the Labour Court award on the ground that when the Petitioner was not a pension optee, he would not be covered under the Manual of Railway Pension Rules, 1950 and thus not entitled to compassionate allowance. In this context, it is relevant to refer to the observations of the Madras High Court in
V. Chandrasekar @ Sivachandran (supra). Relevant paras of the judgment are as under:- “3. The writ petitioner submitted a letter on 04.08.2015 addressed to the Hon'ble Prime Minister of India which was forwarded to the respondent bank for consideration in respect of sanction of compassionate allowances. The said application was considered by the respondent bank and they have declined to grant the benefit of compassionate allowance on the ground that the writ petitioner was a PF Optee at the time of imposition of the referred pension. This apart, the petitioner was not eligible for opting pension in terms of second pension option as per PF and Pension Department, Circular No.08/2010 dated 16.08.2010. xxx xxx xxx
7. This Court is of an opinion that, the writ petitioner was admittedly dismissed from service on account of the allegations of unauthorized absence. The said order of dismissal reached finality. The only claim of the writ petitioner is that he is eligible for compassionate allowance under the pension regulations. The petitioner admits the fact that he continued as PF Optee. However, he claims that the opportunity to exercise the second option was denied by the bank, since they have not provided any information in this regard. However, this Court cannot consider such disputed facts and the writ petitioner being employed as Clerk/Typist at the first instance and thereafter promoted to the post of Officer Grade-1, he cannot plead ignorance of law or the procedures followed by the bank. The petitioner served as Officer Grade-1 and subsequently opted to serve in the lower post.
8. This being the factum of the case, the writ petitioner cannot claim any ignorance in respect of the procedures followed and in respect of the implementation of pension scheme in the bank. As far as the benefit of compassionate allowance is concerned, the same is contemplated under the pension regulations. In view of the fact that, the writ petitioner at no point of time opted for pension scheme, he is not eligible to claim the said compassionate allowance. Admittedly, the writ petitioner continued only as a PF Optee. Further it is not disputed that all the benefits as applicable to the PF Optee had been settled in favour of the writ petitioner and he had received the same.”
16. Insofar as the judgment in Parmanand (supra) is concerned, this Court is not persuaded to take a similar view that Regulation 31 does not require that the employee must be eligible for Pension and this consideration only arises while computing the quantum of compassionate allowance, for the reasons stated above. Insofar as the judgment in M. Ramanujam (supra) is concerned, the Madras High Court only granted liberty to the Petitioner to approach the Respondent by submitting a detailed representation seeking compassionate allowance in terms of Regulation 31(1)(ii) of the applicable Regulations. In fact, the issue that arises in the present case of the impact of an employee being a non-pensioner was not even an issue in the said case. As far as the judgment of this Court in Smt. Om Wati (supra), relied upon by the Petitioner is concerned, suffice would it be to state that there is no discussion on Regulation 31 in the said case and the Court directed grant of compassionate allowance primarily looking at the special circumstances of the Petitioner whose husband being an employee of the Respondent had expired and her only son on whom she was dependent had deserted her on account of which she was deprived of any means of livelihood.
17. In my view, the decision of the Bank impugned herein stating that Petitioner is not entitled for compassionate allowance, being a non-Pension optee, cannot be faulted with. As rightly urged on behalf of the Bank, there is no provision in any existing Regulation/Circular which permits the Petitioner to change his option from PF optee to a Pension optee post the imposition of major penalty of dismissal. Thus, the relief sought by the Petitioner cannot be granted for the aforesaid reasons.
18. Having so held, this Court cannot shut its eyes to the fact that Petitioner has served the Bank for over 28 years and as candidly submitted by counsel for the Bank, the said period of his service was unblemished, save and except, for the present delinquency leading to the penalty of dismissal. It is also not disputed by the Bank that the Petitioner and his family, more particularly, his daughter are suffering from serious medical ailments. Considering these factors holistically, the Court has put to the learned counsel for the Bank if the Petitioner can be enrolled as a member/subscriber to any medical or health or insurance scheme of the Bank. Learned counsel submits that the Bank has certain medical assistance/insurance schemes which are issued for the benefit of retired employees.
19. Let a representation be made by the Petitioner to the Bank seeking benefits under the different medical/insurance schemes issued by the Bank. As and when the representation is received, the Bank shall decide the same in accordance with law and the terms of the relevant schemes/policies.
20. Writ petition is accordingly dismissed.