IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.11.2008
CORAM:
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
W.P.Nos. 32502, 36782, 37150, 37197, 37739, 36764/2003 and 1421, 8809 & 11180/2004
V.Kannappan and 19 others ... Petitioners in W.P.No.32502/2003
A.Sundaram and 249 others ... Petitioners in W.P.No.36782/2003
M.Sevuganchetty ... Petitioner in W.P.No.37150/2003
S.Alagappan and 262 others ... Petitioners in W.P.No.37197/2003
S.Thirunaukkarasu and 48 others ... Petitioners in W.P.No.37739/2003
K.R.Chandran and 66 others ... Petitioners in W.P.No.1421/2004
M.Jeyapal and 26 others ... Petitioners in W.P.No.8809/2004
Kalyani and 39 others ... Petitioners in W.P.No.11180/2004
D.G.Ragavendra. ... Petitioner in W.P.No.36764/2003
Vs.
1. Additional Secretary,
Ministry of Finance and Company Affairs,
(Banking and Insurance),
No.235, Jeevandeep Buildings,
Sansad Marg-1,
New Delhi-110 001.
2.Managing Director and
Chief Executive Officer,
ICICI Bank Limited,
Corporate Office, ICICI Towers,
Bandra Kuria Complex,
Bundra East, Mumbai-400 051.
3.Assistant General Manager,
ICICI Bank Limited,
Corporate Office, Karumuthu Nilliam,
No.192, Mount Road,
Chennai-6. ... Respondents
Writ Petitions are filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the 2nd Respondent Bank to pay Pension as per the scheme viz., Bank of Madura Pension Regulation, 1995.
For Petitioners : Mr. T.R.Rajagopal,
Senior Counsel
for
Mr.L.J.Krishnamurthy
For Respondents : Mr. A.L.Somayaji,
Senior Counsel
for
P.L.Narayanan
-----
COMMON ORDER
Petitioner seeks Writ of Mandamus directing the 2nd and 3rd Respondents to pay Pension according to the regulation of Pension scheme in view of Rule 2 (ze), 2 (zea), 35 (i) and 35 (ii) of Bank of Madura Employees Pension Regulations, 1995.
2. Briefly stated case of the Petitioners is as follows:-
(i) Petitioners were originally employed in Bank of Madura and served for more than 20 years in various Branches of Bank of Madura. During 1995, Bank of Madura sent a circular to implement Pension scheme of the employees of Bank of Madura and along with its regulations. Again another Circular dated 01.2.1996 was issued calling for options from the employees to opt for Pension scheme. Petitioners who were in service on erstwhile Bank of Madura have not opted for Pension scheme. Petitioners and some of the Bank employees were in a dilemma whether to opt for Pension scheme or to continue to contribute Provident Fund scheme. According to the Petitioners, they were under the impression that at the time of retirement, a sizable amount would be paid by way of contribution to the Provident Fund.
(ii) Bank of Madura merged with ICICI Bank on 10.3.2001. An order was passed for Amalgamations u/s.44(a) of Banking Regulations Act, 1941. Bank of Madura merged with ICICI Bank and as per Clauses 9 and 10 of the Order of Amalgamations, Petitioners became employees of the transferee Bank without any break or interference in service.
(iii) Petitioners have averred that under threat and coercion employees of erstwhile Bank of Madura have been asked to go on VRS and were threatened with lot of consequences. ICICI Bank had launched Early Retirement Option (ERO) 2003 on 17.6.2003 and the scheme was open during July 2003. According to ICICI Bank, Bank of Madura employees who have opted for pension during 1995-1996 and have completed 20 years of service only would be eligible for Pension benefits under ERO-2003 scheme.
(iv) Case of the Petitioners is that employees who have opted for Pension under ERO scheme fall within the definition of Rule 2 (ze) and 35 (i) & 35(ii) of Bank of Madura Employees Pension Regulations and are eligible for Pension under ERO scheme. But ICICI Bank had refused to pay Pension to those employees who retired on 31.7.2003 on the ground that they ceased to be the employees of ICICI Bank and therefore, they have no right to make an application for Pension. Further, case of the Petitioners is that ICICI cannot refuse Pension to the Petitioners stating that Employees/Petitioners have not opted for Pension during 1995-1996 in the erstwhile Bank of Madura Employees Pension Regulations and therefore, Petitioners seek Writ of Mandamus directing the 2nd Respondent Bank to pay Pension as per the Pension Regulations of 1995.
3. Denying the averments in the Petitions, 2nd and 3rd Respondents have filed counter stating that Petitioners on their own volition have opted for Early Retirement Option Scheme, 2003 introduced by the Respondent Bank for the welfare of the employees and Petitioners have received all retiral benefits viz., employees and employers matching contribution to P.F. with upto date interest and gratuity as specifically mentioned in ERO-2003. Erstwhile Bank of Madura introduced a Pension scheme called Bank of Madura Employees Pension Regulations, 1995 in line with Banking Industry.
4. Respondent Bank averred that in response to the opportunities given by the erstwhile Bank of Madura, out of 2824 employees ( as of 31.10.1993), 1044 employees had exercised their option within the prescribed period. However, Writ Petitioners have not availed those opportunities to exercise their options for Pension. According to ICICI Bank, all employees who are eligible to opt for ERO are the employees who have already opted for Pension and have completed 20 years of service only would be eligible for Pension and P.F. cannot be surrendered in lieu of Pension.
5. Stand of ICICI Bank is that Bank of Madura employees who have opted for Pension and have completed 20 years of service only would be eligible for Pension benefits. It is further averred that all ERO-2003 optees were aware that in case they have not opted for Pension during 1995-1996, they would not be eligible for Pension and as such the decision to opt for ERO-2003 was a conscious and well informed decision taken by the Petitioners. 2nd Respondent ICICI Bank has taken a stand that Writ Petitioners having failed to exercise their option during 1995-1996 and decided to continue under PF and having failed to exercise option for Pension during 1995-1996 are not eligible for Pension. Stand of ICICI Bank is that Petitioners would be eligible for benefits only under ERO-2003 scheme and are not eligible for Pension.
6. Contending that demand of Pension is neither a bounty nor a matter of grace and that it is a matter vested right, Mr. T.R.Rajagopalan, learned Senior Counsel for the Petitioners has submitted that Writ can be issued even against a private body. It was further argued that where exercise of power is arbitrary and unfair even in the area of contractual obligation, Writ can be issued.
7. Learned Senior Counsel for the Petitioner further submitted that denial of Pension on the ground that they have not opted for Pension during 1995-1996 under Bank of Madura Pension Scheme is arbitrary and unfair.
8. Mr. A.L.Somayaji, learned Senior Counsel for the Respondents 2 and 3 has contended that Writ of Mandamus is pre-eminent public law remedy and not available as a remedy against the private bodies. It was further argued that under Art.226 of Constitution, power has to be exercised only when public duty involved. It was further urged that ICICI bank is a private Bank not carrying on any public duty and the Banking activity cannot be claimed as discharging public duties and therefore Writ Petitions are not maintainable.
9. Petitioners are the erstwhile employees of Bank of Madura. Bank of Madura merged with ICICI Bank on 10.3.2001. After merger, Petitioners continued to be the employees of transferee bank without any break in service.
10. Evolution of Pensionary benefits in Banking Sector:-
Basically, there were two types of retiral benefits existed before introduction of Pension in Banking Industry (i) Contributory PF; (ii) Gratuity. There was consistent demand for Pension as third retiral benefit. After lot of deliberation in respect of nationalised banks, Government of India agreed for Pension as second benefit in lieu of Contributory Provident Fund (CPF) and not as third benefit. Accordingly, Pension Regulations came into existence in 1995 giving effect retrospectively from 01.11.1993.
11. Post introduction of Pension Regulations in 1995 effective November 1 1993, retiral benefits in banking sector thus changed to:-
(i) PF without matching contribution; (ii) Pension (out of Management Contribution to PF, an amount equivalent to hitherto Management contribution to PF) and (iii) Gratuity.
12. Resultantly, all the new joinees on or after 01.11.1993 were covered in Pension Regulations by design. Since, new Pension scheme has brought change in the retirals, option was given to the existing employees as of 31.10.1993 ( i.e. the date just prior to the effective date of implementation of Pension regulations), employees were afforded an opportunity to exercise option to decide within the time frame whether to continue to CPF and gratuity or to move to PF without matching contribution and gratuity.
13. All the Petitioners who were in services of erstwhile Bank of Madura as on 31.10.1993 were afforded opportunity to exercise their option as to whether they want to be governed by retirals i.e. CPF and gratuity or to avail PF without matching contribution from the employer, Pension and Gratuity as was done in the Banking Industry. The eligible employees allowed to exercise their option within the period of 6 months commencing from 25.1.1995 (Vide Circular No.CO.STF.94/94-95) and subsequently the said period for exercising option was extended to May 1996 on two occasions. Writ Petitioners have not availed the opportunity and exercised option for Pension. According to the Bank, Petitioners on their own volition preferred to continue with the Provident Fund Scheme.
14. Early Retirement Option (ERO) Scheme:-
ICICI Bank introduced ERO-2003 scheme for all employees of the Bank including the employees of erstwhile Bank of Madura Limited, for the welfare of the employees with a view to give soft exit option to those employees. Stand of ICICI Bank is that all employees are eligible to opt for ERO-2003. Further stand of the Bank is that the employees who have already opted for pension and have completed 20 years of service only would be eligible for Pension and PF cannot be surrendered in lieu of Pension.
15. According to ICICI Bank, Regulation 35 eligibility criteria for employees to receive Pension benefits superannuation are (i) employees should have already opted for Pension as enumerated in Regulation 2 (ze); 35 and (ii) and employees should have completed 20 years of service.
16. Briefly the issue involved is whether Pensionary benefits under ERO scheme is available only to those who have already opted for Pension in 1995. Contentious issues between the parties revolve around interpretation of ERO-2003 and Regulations 2 (ze), 2 (ze a) and 35 (ii) which we would would avert shortly.
17. Albeit stand that Petitioners are not eligible for Pension, Bank has mainly raised objection as to maintainability of the Writ Petitions.
18. Maintainability of Writ Petitions:-
Onbehalf of ICICI Bank, Mr.A.L.Somayaji, learned Senior Counsel mainly contended that Writ Petitions are not maintainable, since Writ Petition will not lie against the Respondent Bank which is a Public Limited Company registered under the provisions of Companies Act which is neither created nor governed by any statute. It was mainly argued that Respondent Bank being a Private Sector Bank is neither a State nor an instrumentality of a State within the meaning of Art.12 of Constitution of India and hence, Petitioners cannot invoke Writ jurisdiction. To substantiate his contention that Writ Petition under Art.226 of Constitution is not maintainable against Private Sector Bank, learned Senior Counsel for the Respondents heavily placed reliance upon AIR 2003 SC 4325 [Federal Bank Ltd. v. Sagar Thomas and others].
19. Placing reliance upon (1983) 1 SCC 305 [D.S.Nakara and others v. Union of India] and 1984 (Supp) SCC 410 [Deokinandan Prasad v. State of Bihar and others], Mr. T.R.Rajagopalan, learned Senior Counsel appearing for the Writ Petitioners submitted that payment of Pension is welfare measure wherein retiral benefits is allowed and Respondent Bank though a Private Sector Bank is amenable to Writ jurisdiction in payment of Pension. Learned Senior Counsel for the Petitioners mainly contended that Payment of Pension is a "public function" amounting to discharge of public duty and therefore, when there is violation of that public duty by arbitrary act of the Bank, Writ of Mandamus can be issued even against the Private body. Learned Senior Counsel would further submit that when Private body performs such statutory obligations, Writ can be issued against private bodies also. It was further urged that form of the body is not very much relevant and what is relevant is nature of duty imposed on the body.
20. In Federal Bank's case [AIR 2003 SC 4325], the Hon'ble Supreme Court has elaborately considered the question of maintainability of Writ Petition against Private Sector Bank and referring to Ajay Hasia's case [AIR 1981 SC 487], the Supreme Court has laid down the position as to the maintainability of the Writ Petition:
"17. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.
21. Observing that the concept of instrumentality or agency of the Government is not limited to a Corporation created by a statute but is equally applicable to a company or society and in a given case, it would have to be decided on consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression 'authority' in Art.12, in Ajay Hasia's case [AIR 1981 SC 487], the Hon'ble Supreme Court has laid down the following tests:
(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.
(3) It may also be a relevant factor whether the corporation enjoys monopoly status which is State-conferred or State-protected.
(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.
(5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
(6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.
22. On behalf of the Respondent Bank , learned Senior Counsel mainly argued that ICICI Bank is a private Bank carrying on Banking business as a scheduled Bank and cannot be termed as an instrumentality of a State or agency of the Government carrying on statutory public duties. Contending that Writ Petition is not maintainable, learned Senior Counsel heavily placed reliance upon the following observations of the Supreme Court in Paragraphs 32 of Federal Bank's case:
32. For the discussion held above, in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or a company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We dont find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor put any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant Bank. The respondents service with the Bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank. That being the position, the appeal deserves to be allowed.
23. Federal Bank's case does not totally exclude jurisdiction of High Court under Art.226 of Constitution. In the said decision, Supreme Court did refer to certain situations where Writ would lie to compel the Private bodies to perform statutory obligations. Apposite to refer to the observations of the Supreme Court in Para-26.
26. Such private companies would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or for maintaining proper environment, say the Air (Prevention and Control of Pollution) Act, 1981 or the Water (Prevention and Control of Pollution) Act, 1974 etc. or statutes of the like nature which fasten certain duties and responsibilities statutorily upon such private bodies which they are bound to comply with. If they violate such a statutory provision a writ would certainly be issued for compliance with those provisions. For instance, if a private employer dispenses with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, in innumerable cases the High Court interfered and has issued the writ to the private bodies and the companies in that regard. But the difficulty in issuing a writ may arise where there may not be any non-compliance with or violation of any statutory provision by the private body. In that event a writ may not be issued at all. Other remedies, as may be available, may have to be resorted to.
24. Contending that Writ jurisdiction could be invoked only when action involves discharging of public duty, learned Senior Counsel for the Respondent Bank placed reliance upon the decision of Full Bench of this Court in 2004 (3) CTC 1 [P.Pitchumani etc. v. The Management of Sri Chakra Tyres Ltd. rep. by its Managing Director, 10, Jawahar Road, Madurai-2]. The said decision relates to transfer of employees of ICICI Bank and various other Private companies. Observing that dismissals, transfers and matters concerning service conditions of employees are governed by Industrial Disputes Act and observing that violation under Industrial Disputes Act which involve public duties are not amenable to Writ jurisdiction under Art.226 of Constitution of India, Full Bench of this Court has dismissed all the Writ Petitions. Those Writ Petitions arise out of transfers which is incidental to service conditions of employees governed by Industrial Disputes Act which have to be adjudicated by Fora created by Statute and therefore, First Bench of this Court has held that those Writ Petitions are not maintainable.
25. Yet another decision relied upon by the learned Senior Counsel for the Respondent Bank 2007 II LLJ 941 [S. Sundaram and others v. ICICI Bank Limited rep. by its Chairman & MD., Mumbai and another]. In the said decision, learned single Judge has taken the view that Writ Petition against private Bank ICICI Bank is not maintainable. In Sundaram's case, payment of Pension was not in dispute. Only rate of Pension payable to Writ Petitioner was in issue. In such circumstances, learned single Judge has taken the view that there is no statutory obligation on the part of the Respondent Bank to pay Pension as demanded by the Petitioners. Having not made out the case of factual aspects, learned single Judge has dismissed the Writ Petition both on merits as well as on the point of maintainability of the Writ Petition.
26. To substantiate his contention that Writ Petitions are not maintainable, learned Senior Counsel for the Respondent Bank has also placed reliance upon the decision MANU/TN/0056/2008 [ICICI Bank Limited rep. by its Sr. Vice President-HR v. Lakshminarayanan W.A.No.2245/2002 decided on 04.1.2008]. In the said decision, interpretation of Regulation 29 of Pension Regulations was in issue. Copiously, referring to Federal Bank's case, Division Bench of this Court has held that Writ Petition for Pension is not maintainable.
27. Regulation 29 of Pension Regulations relates to "Pension on "Voluntary Retirement" of those who retired on or after 01.11.1993. The said Writ Petitioner having been retired on 01.2.1992, pursuant to his notice to ICICI Bank dated 02.11.1991 and Division Bench held that case of the Writ Petitioner is not covered under Regulation 29 and therefore, he does not come within the definition of 'retirement' under Regulation 2 (w) (b) of Pension Regulations. Observing that Writ Petitioner cannot claim benefit prescribed under Regulation 35, nor he falls within the meaning of 'Retirement' under Regulation 2 (w) (d) of Pension Regulations, Division Bench has taken the view that Writ Petition is not maintainable.
28. The ratio of the above decision relied upon by the learned Senior Counsel for the Respondent Bank cannot be applied to the present batch of Writ Petitions wherein denial of Pension to number of employees is the subject matter in issue. Right of Pension is denied to numerous employees allegedly under mis-interpretation of Regulations 2 (ze), 2 (ze a) and 35 (ii). It is well settled position that Pension protection is a measure of social security for the aged and disabled.
29. Observing that Pension is neither bounty nor a matter of grace depending upon the sweet will of the employer but as payment for past service rendered, in D.S.Nagara's case [(1993) 1 SCC 305], Supreme Court has held as follows:-
29. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison detre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon.
31. From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex-gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to 10 months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.
36. Having set out clearly the society which we propose to set up, the direction in which the State action must move, the welfare State which we propose to build up, the constitutional goal of setting up a socialist State and the assurance in the Directive Principles of State Policy especially of security in old age at least to those who have rendered useful service during their active years, it is indisputable, nor was it questioned, that pension as a retirement benefit is in consonance with and in furtherance of the goals of the Constitution. The goals for which pension is paid themselves give a fillip and push to the policy of setting up a welfare State because by pension the socialist goal of security of cradle to grave is assured at least when it is mostly needed and least available, namely, in the fall of life.
30. Referring to D.S.Nagara's case [(1993) 1 SCC 305], in 1984 (Supp) SCC 410 [Deokinandan Prasad v. State of Bihar and others] which is a case of non-payment of Pension despite Court's order, Supreme Court has held as follows:-
2. A Constitution Bench of this Court in D.S. Nakara v. Union of India (1983) 2 SCR 165 : (1983) 1 SCC 305:1983 SCC (L&S) 145 : 1983 UPSC 263: (1983) 1 LLJ 104 posed three questions: What is a pension?. What are the goals of pension? and what public interest or purpose, if any, it seeks to serve? and proceeded to answer the same inter alia that Pension is not only a compensation for service rendered in the past but it has a broader significance in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and therefore one is required to fall back on savings. Article 41 obligates the State within the limits of its economic capacity and development to make effective provisions amongst others for assistance in case of old age, sickness and disablement. Pension provisions are to some extent the legislative response to the constitutional expectation. But this legal conundrum would provide a paper guarantee if the statutory right to pension is not translated into action in a reasonably short time on retirement leaving the employee to penury and economic destitution.
31. Article 226 does not state that the Writ will issue only to a public official. It uses the expression "any person or authority, including in appropriate cases, any Government ....". The question as to whether a Writ will issue against non-Governmental entities has been the subject matter of a number of cases. It has been held that the person or authority on whom the statutory duty is imposed need not be a public official or an official body. A mandamus could be issued to a company or an official of a society to compel them to carry out their statutory obligation or fulfill public responsibilities.[Vide AIR 1969 SC 1306 : (1969) 1 SCC 585 (Praga Tools Corporation v. C.A.Immanual]
32. The term 'authority' used in Article 226 in the context, must receive a liberal meaning unlike the term in Article 12. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. It may be pointed out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. The judicial control over the fast expanding maze of the bodies affecting the rights of the people should not be put into water tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicality should not come in the way of granting that relief under Article 226.
33. In (2002) 4 SCC 638 : AIR 2002 SC 1598 [Director of Settlements, A.P. v. M.R.Apparao], the Supreme Court has held as follows:-
"The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion. They must be exercised along the recognized lines and subject to certain self-imposed limitations. The expression 'for any other purpose' in Article 226 makes the jurisdiction of the High Courts more extensive yet the courts must exercise the same with certain restraints and within some parameters."
34. The entire law under the subject has been discussed in Binny Limited case, [(2005) 6 SCC 657], wherein the Supreme Court held that Art.226 could be invoked against a private body if it is discharging public function and the denial of any right is in connection with the public duty cast on the private body. Either statutory or otherwise and the source of such power is immaterial but nevertheless there must be public law element in such action. Observing that Writ of Mandamus under Art.226 though pre-eminently a public law remedy and is available against the private body or person, Supreme Court succinctly laid down the position in Paragraphs 9,10 and 11 as follows:-
9. The superior courts supervisory jurisdiction of judicial review is invoked by an aggrieved party in myriad cases. High Courts in India are empowered under Article 226 of the Constitution to exercise judicial review to correct administrative decisions and under this jurisdiction the High Court can issue to any person or authority, any direction or order or writs for enforcement of any of the rights conferred by Part III or for any other purpose. The jurisdiction conferred on the High Court under Article 226 is very wide. However, it is an accepted principle that this is a public law remedy and it is available against a body or person performing a public law function....
10. The writ of mandamus lies to secure the performance of a public or a statutory duty. The prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities. Originally, the writ of mandamus was merely an administrative order from the Sovereign to subordinates. In England, in early times, it was made generally available through the Court of Kings Bench, when the Central Government had little administrative machinery of its own. Early decisions show that there was free use of the writ for the enforcement of public duties of all kinds, for instance against inferior tribunals which refused to exercise their jurisdiction or against municipal corporations which did not duly hold elections, meetings, and so forth. In modern times, the mandamus is used to enforce statutory duties of public authorities. The courts always retained the discretion to withhold the remedy where it would not be in the interest of justice to grant it. It is also to be noticed that the statutory duty imposed on the public authorities may not be of discretionary character. A distinction had always been drawn between the public duties enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration.....
11. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions. Several corporations and companies have also been formed by the Government to run industries and to carry on trading activities. These have come to be known as public sector undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between public functions and private functions when they are being discharged by a purely private authority. A body is performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest......"
35. By analysis of the above decisions, it emerges that powers under Art.226 of Constitution is very wide and powers are to be exercised by applying Constitutional provisions and if there is violation of fundamental rights or statutory provisions or arbitrariness in discharging the public duty when there is public law element involved. Of course, in the matter of employment of workers by private companies on the basis of contracts entered between them, Court's have been reluctant to exercise power of judicial review and whenever powers were exercised as against the private employers it was solely done based on public law element involved therein.
36. In the present case, it is the case of payment of Pension to number of employees. Payment of Pension is not a bounty payable on the sweet will of the employer. As held by the Apex Court, it is the proprietary right under Art. 31(1) and 19 (1)(f) of Constitution. It is the measure of social security. Though Pension is often described as deferred portion of compensation over the past service, it is in fact in the nature of social security plan to provide for evening life of superannuated employee. Such social security plan are concerned with socio-economic requirements of the Constitution.
37. Payment of Pension is a public duty performed by Respondent Bank . This is all the more so, when interest and right of number of employees are involved. Writ Petitioners have made certain serious averments regarding circumstances in which they opted to go on retirement under ERO-2003 Scheme. The issue involved is question of interpretation of Pension Regulations and when arbitrariness is alleged against the 2nd Respondent Bank, contention regarding non-maintainability of the Writ Petitions cannot be countenanced. Applying the ratio of decisions of the Supreme Court in Binny Limited Case, Writ Petitions are maintainable against the 2nd Respondent Bank which is a private body but in the area of payment of Pension discharging public function. ICICI Bank though a Private exercise Public function when it discharges its duties in payment of Pension which is in the nature of social security plan.
38. Entitlement of Pensionary benefits under VRS Scheme:-
Drawing Court's attention to Regulations 2 (ze), 2 (zea) and 3 (9) (a) to (c) and 35 (ii), learned Senior Counsel Mr.T.R.Rajagopalan has submitted that erstwhile Bank of Madura and ICICI Bank are unique in nature with regard to the option of Pension. It was contended that in other Banks, there was no provision similar to Regulations 2 (ze) and 35 (ii) found in the Respondent Bank scheme.
39. It was submitted that as per Regulation 2 (m) of Bank of Madura Employees Pension Scheme, permanent employee is alone eligible for the scheme and not a temporary employee. The permanent employee must have completed twenty five years of service and opted for the scheme. The time for opting the scheme is given in Regulations 2 (zea) and 35(ii). It was therefore contended that Petitioners squarely come under the rules and are entitled to the Pension. It was further submitted that Petitioners have not received the benefits of ERO-2003 in full as stated by the Respondents.
40. Contention of ICICI is that erstwhile Bank of Madura introduced a Pension scheme called Bank of Madura Employees Pension Regulations, 1995 (for short BME Regulations) in line with the Banking Industry. Pension scheme was compulsorily made applicable to those employees who joined on or after 01.11.1993. Those employees who were on the Rolls of the Bank as of 31.10.1993 were given an opportunity to exercise their option for Pension as per the Respondents' Bank Circular No.CO.STF.94/95 dated 25.1.1995 within a period of six months. Subsequently, the same was extended on two occasions.
41. In response to the opportunities given by the erstwhile Bank of Madura, out of 2824 employees (on the roll as of October 31, 1993), 1044 employees had exercised their option within the prescribed period. It is stated that the Writ Petitioners have not availed those opportunities to exercise their option for pension even after the extended period and have chosen to remain and continue to be the member of the Provident Fund. Case of ICICI Bank is that having not exercised the option within the stipulated time during 1995-1996, Petitioners are not entitled to maintain the Writ Petition.
42. Case of ICICI Bank is that having not chosen to exercise their option, Petitioners are not entitled to claim Pensionary benefits and cannot maintain the Writ Petitions. It is the further case of ICICI Bank that after the expiry of period of exercising options by 30.05.1996, the Bank has not given any further opportunity to those employees to opt for Pension.
43. Learned Senior counsel for the Respondents has submitted that Pension scheme was extended to those employees who opted under VRS in the year 1993-1994. Stand of the Bank is that at the time of introduction of Pension scheme in the Respondent Bank in the year 1995, it was decided that those employees of the Respondent Bank who had already retired under VRS Scheme introduced by the Respondent Bank in the year 1993 & 1994 may be given the benefit of Pension provided (i) those employees should have completed 20 years of service and (ii) they exercise option for Pension within 60 days from the date of notice to be sent to them with format of such option. Therefore, according to Respondent Bank Pension Scheme was extended to those employees who opted under VRS in the year 1993 and 1994.
44. It was further argued that Clause 2 (ze) is not applicable to the Petitioners who have not exercised their option for Pension. To put it shortly, stand of ICICI is that Regulation 2 (ze) was introduced with a view to safe guard the interest of those who have exercised their options for Pension and retired in 1993-1994.
45. Insofar as, ERO-2003, it was submitted that all the employees were put on information that they would be entitled for the benefits provided under the Scheme including medical insurance. It was further argued that by Frequently Asked Questions (FAQ), it was made known that all employees are eligible to opt for ERO-2003 and that only those employees who have already opted for Pension in 1995 only would be eligible for Pension. It was also argued that Writ Petitioners (excepting Writ Petitioners in W.P.No.11180/2004 & 36764/2003) have opted retirement under ERO-2003 and that Writ Petitioners have received the entire ERO-2003 benefits and they were informed in advance and that they are entitled to the benefits only as per ERO-2003 Scheme together with all their terminal benefits. Learned Senior Counsel would submit that Petitioners who have opted under ERO-2003 Scheme were paid the eligible benefits under ERO-2003 Scheme.
46. Plea of ICICI Bank is that case of Writ Petitioners would not fall within the ambit of Clause 2 (ze) is wholly devoid of merits. The merits of the contention revolves around interpretation of Regulations 2 (ze), 2 (zea) and 35 (ii).
47. Bank of Madura Employees Pension Regulations:-
Chapter II contains application and eligibility of Pension. Clause 3 (9) (a) to (c) deals with VRS which reads as under:-
"3 (9) (a) : Retired under VRS as defined in Regulation 2 (ze);
(b) : exercise an option in writing within the stipulated time as contained in Regulation 35 to become member of the Fund;
and
(c) : refund within thirty days from the date of superannuation the entire amount of the Bank's contribution to the Provident Fund and interest accrued thereon together with a further simple interest at the rate of six per cent per annum from the date of settlement of the Provident Fund Account till the date of refund of the aforesaid amount to the Bank as contained in Regulation 35."
48. Clause 2 (ze) of Regulation which deals with 'VRS' reads as under:-
" Regulation 2 (ze) : 'VRS' means Bank of Madura Employees' Voluntary Retirement Scheme enclosed to the circular CO.STF:39/94-95 dated July 21, 1994, or any other specific scheme that may be implemented in future bringing such scheme under the definition of this regulation. The employees who have completed 20 years of service in the bank and who have retired subsequent to the expiry of the scheme mentioned in the Circular CO:GM:CIR:2/93-94 dated May 20, 1993, and who were extended the additional benefits in addition to the normal retirement benefits shall be deemed and considered to have retired under VRS."
49. Two conditions are pre-requisites for VRS Regulation 2 (ze):-
Employees who have completed 20 years of service in the Bank and who have retired subsequent to the expiry of the Scheme mentioned in the Circular CO:GM:CIR:2/93-94 dated 20.5.1993;
and
who were extended the additional benefits in addition to the normal retirement benefits.
50. ERO-2003 was preceded with certain Resolutions bringing Amendment Pension Regulations. Resolutions relating to ICICI Bank Employees Pension Scheme on 30.06.2003 runs as follows:-
"Resolved that necessary amendment be carried out in the regulations governing the payment of pension to the members, particularly to amend the definition of VRS as mentioned in regulation 2 (z) (e) so as to mean and include the Early Retirement Option 2003 scheme of the Bank and to execute the deed of variation in this regard and submit the same to the Office of Commissioner of Income Tax for approval".
Resolved further that regulation 35 governing the pension payment to the employees who opt for VRS be amended so that the employees who opt for retirement under the Early Retirement Option 2003 scheme of the Bank are provided with the benefit of monthly pension payments immediately from the succeeding month." (emphasis added)
51. Regulation 2 (zea) was added by way of amendment after Regulation 2 (ze) with effect from 01.07.2003. Contention of the Bank is that Pension benefits are applicable only to those employees who exercised their option for Pension in 1995 and those who have retired on VRS during 1993-1994 and Regulation 2 (zea) and 35 (ii) would not be applicable to ERO-2003. Hollowness of the above submission is evident on careful analysis of ERO-2003 scheme vis-a-vis Pension Regulations.
52. Regulation 2 (ze) reads as follows:-
'VRS' means Bank of Madura Employees' Voluntary Retirement Scheme enclosed to the circular CO.STF:39/94-95 dated July 21, 1994, or any other specific scheme that may be implemented in future bringing such scheme under the definition of this regulation. The employees who have completed 20 years of service in the bank and who have retired subsequent to the expiry of the scheme mentioned in the Circular CO:GM:CIR:2/93-94 dated May 20, 1993, and who were extended the additional benefits in addition to the normal retirement benefits shall be deemed and considered to have retired under VRS.
53. The above resolution and regulation 2 (zea) make it clear that regulation was amended so that the employee who opt for retirement under ERO-2003 scheme are provided with the benefit of monthly pension payment. Explanation of monthly pension payment to ERO-2003 optees only be the meaningful interpretation of the above resolution.
54. As per Regulation 2 (m) of BME Pension Regulations, permanent employee alone is eligible for the Scheme and not a temporary employee. Permanent employee must have completed 20 years of service and must have opted for the Scheme.
55. Regulation 35 relates to Pension to Employees retiring under VRS. Regulation 35 (i) & (ii) reads as under :-
"35. Pension to Employees retiring under VRS (i) An employee who has opted for pension and who retired under VRS enumerated in Regulation 2 (ze) of these regulations and who has completed twenty years of service in the bank shall be eligible for pension from the date of his attaining the age of superannuation i.e., the date on which he would have retired had he continued in the employment if he is otherwise eligible under these regulations.
(ii) The eligible employees who have already retired under VRS may exercise their irrevocable option in writing in the format prescribed by the Bank within sixty days from the date of notice to be sent to them. Such employees have to refund the bank's entire contribution to the Provident Fund including interest received with further simple interest at the rate of six percent per annum from the date of withdrawal of the Provident Fund amount till the date of refund. The refund of the amount shall be made to the bank within thirty days from the date of superannuation to enable the employee to get the benefits under pension scheme. Otherwise it will be deemed that the member has opted out of the pension scheme.
56. Sub clause No. (v) was added in regulation 35 by way of amendment effective from 1.7.2003 which reads as under:-
"(v) An employee who has opted for pension under this Regulations and who opts for retirement under ICICI Bank Early Retirement Option-2003 as enumerated in regulation 2 (zea) of this Regulations, and who has completed 20 years of services in the Bank shall be eligible for pension from the date of retirement thereunder and the payment of pension to him shall commence from the succeeding month."
57. Much emphasis was laid upon regulation 35 (v) to contend that ERO-2003 optees to become eligible for pension :- (i) must have earlier opted for pension in 1995; (ii) employee must have completed 20 years of service to be eligible for pension. Laying emphasis upon the newly added regulation 35 (v), on behalf of the Respondent Bank, it was mainly contended that Petitioners have not earlier opted for pension and therefore, Petitioners are not eligible for pension.
58. Writ Petitioners (excepting two Writ Petitions W.P.No.11180/2004 and W.P.No.36764/2003) numbering about 723 are the ERO-2003 optees. According to the Bank, ERO-2003 scheme is entirely different and that Writ Petitioners were paid the benefits under ERO-2003 scheme and Petitioners are not eligible to claim Pension under Pension Regulations. Early Retirement Option-2003 came into effect w.e.f. 01.07.2003.
59. Clause-4 deals with eligibility under ERO-2003 scheme which reads as under:-
4. Eligibility : All permanent employees of the Bank who have completed at least 7 years of service and are 40 years of age as on July 31, 2003 will be considered eligible to opt for the benefits under the scheme. For the purpose of this clause, the services rendered by the permanent employees in the organisations merged with the Bank will be considered as eligible service in terms of respective schemes of amalgamation.
60. Clause-7 deals early retirement benefits which reads as under:-
Early Retirement Benefit : Eligible Employees would, subject to the terms and conditions of the scheme, be eligible to receive the benefits as set out in clauses 8A/8B, 8C and 8D hereof as may be applicable.
61. Clause 8A deals with one time cash benefit which reads as under:-
One time Cash Benefit : An Eligible Employee shall be entitled to the following benefit, subject to applicable tax deduction at source:
(i) 3 months' salary for every completed year of service or
(ii) Salary for the Remaining Months of Service; whichever is less.
62. Clause 8B deals with Annuity Benefit which is as under:-
Annuity Benefit : Subject to applicable tax deduction at source, if the Eligible Employees so desire, provided there are adequate number of such Eligible Employees, the Bank may consider buying an annuity for the benefit of Eligible Employees out of the total benefit amount mentioned in Clause 8A payable to Eligible Employees, less applicable tax, if any. The annuity benefit will be payable monthly for a certain specified period.
63. Clause 8C deals with other benefits which is relevant. Clause 8C reads as under:-
8C. Other Benefits : An Eligible Employee shall also be entitled to the following benefits, subject to applicable tax deduction at source:
(i) Group Medical insurance cover of Rs.4,00,000/- (Rupees Four lakh) per annum, will be extended to each Eligible Employee upto his normal date of retirement.
The insurance cover will be available for the Eligible Employee, his spouse and dependant children upto the age of 24 years but shall not exceed a number of four including the eligible employee; total insurance cover being not over Rs.4,00,000/- (Rupees Four lakh) per annum.
(ii) Encashment of balance privilege leave (as per leave rules) and unclaimed Leave Travel Allowance, if any, standing to the credit of the Eligible Employee on the Retirement Date.
(iii) Amounts payable on Retirement Date under the Bank's Provident, Gratuity, Superannuation Funds, and Pension/Family Pension Scheme, if any, as per the Rules of the respective Funds/Schemes of the Bank or Statutory Provident Fund Authority as the case may be.
64. Clause 8D deals with Pension Benefit which is as under:-
Pension Benefit : The Eligible Employees who have opted for pension benefit as per the erstwhile Bank of Madura Employees' Pension Regulations, 1995, will be eligible for the same as per the terms and conditions of the said Regulations.
65. On the basis of Clause 35 (ii) BME Pension Regulations and Clause 8D of ERO-2003, it was mainly argued that only those who have exercised their option for Pension benefits as per Pension Regulations, 1995 alone are eligible to Pension benefits. Plea of the Bank is not in consonance with resolutions passed prior to introduction ERO-2003 and of Clause 8C (iii) of ERO-2003. As per Clause 8C (iii) an eligible employee shall also be entitled to the benefits which are payable on retirement date as under:-
Clause 8C (iii) Amounts payable on Retirement Date under the Bank's Provident, Gratuity, Superannuation Funds, and Pension/Family Pension Scheme, if any, as per the Rules of the respective Funds/Schemes of the Bank or Statutory Provident Fund Authority as the case may be.
66. As per BME Pension Regulations, 1995, permanent employees of the Bank who have completed 20 years of service are entitled to be paid pension under the Scheme.
67. ERO-2003 covers wide range of employees. As per Clause 4 of ERO-2003, all the employees of the Bank who have completed at least 7 years of service and or 40 years of age as on 31.07.2003 are eligible to opt for the benefits under the ERO-2003 scheme. In other words, even those who have completed 7 years of service are eligible to opt for retirement under ERO-2003 scheme. In case of Writ Petitioners, all of them have completed 20 years of service who are eligible for Pension under BME Pension Regulations, 1995. When the Writ Petitioners are entitled to pension under the existing scheme, as per Clause 8C (iii) of ERO-2003, they are eligible to receive Pension/family Pension. It is only for that purpose Regulation 2 (zea) was added by way of amendment to Bank of Madura Employees Pension Regulations, 1995. At the risk of repetition, we may again refer to Regulation 2 (zea) which reads as under:-
"2 (zea) : Voluntary Retirement Scheme means and to be understood as ICICI Bank Early Retirement Option 2003 scheme and this amendment in benefits will cover only those employees who avail of such early retirement option under ICICI Bank Early Retirement Option, 2003 scheme. (effective from 01.7.2003)
68. Regulation 2 (zea) read with ERO 8 (c) (iii) makes it abundantly clear that employee who opts for retirement under ICICI Bank ERO-2003 and who has completed 20 years of service in the Bank shall be eligible for Pension from the date of retirement. Writ Petitioners (excepting 7 Writ Petitioners in W.P.No.11180/2004 viz., Nirmal Kumar, R.Valliappan, K.R.Srimathee, S.Kaliyapural, Raja Elayakumar, M.Umayal and K.Paramasivam) have completed 20 years of service and opted for ERO-2003. Clause 8C (iii) of ERO-2003 read with amended Regulation 2 (zea) of BME Pension Regulations would make it clear that those who have completed 20 years of service and opted under ERO are to be construed as retiring under VRS. All the Writ Petitioners (excepting 7 Writ Petitioners in W.P.No.11180/2004 viz., Nirmal Kumar, R.Valliappan, K.R.Srimathee, S.Kaliyapural, Raja Elayakumar, M.Umayal and K.Paramasivam) who have completed 20 years of service are eligible to get Pension.
69. Regulation 35 (ii) reads as under:-
"The eligible employees who have already retired under VRS may exercise their irrevocable option in writing in the format prescribed y the Bank within sixty days from the date of notice to be sent to them. Such employees have to refund the bank's entire contribution to the Provident Fund including interest received with further simple interest at the rate of six percent per annum from the date of withdrawal of the Provident Fund amount till the date of refund. The refund of the amount shall be made to the bank within thirty days from the date of superannuation to enable the employee to get the benefits under pension scheme. Otherwise it will be deemed that the member has opted out of the pension scheme."
70. Writ Petitioners though, they have not opted for Pension in 1995, having opted for ERO-2003 and having completed 20 years of service are eligible to receive Pensionary benefits as per Regulation 35, A combined reading of Regulation 2 (ze) read with Clause 8C (iii), all the Writ Petitioners (excepting 7 Writ Petitioners in W.P.No.11180/2004 viz., Nirmal Kumar, R.Valliappan, K.R.Srimathee, S.Kaliyapural, Raja Elayakumar, M.Umayal and K.Paramasivam) are eligible to receive Pension. In the counter, it is averred that Pension Regulation was introduced during the year 1995 and all the employees are governed by Regulations. While so, no distinction could be made between who have ERO optees by saying that they would not be covered under BME Pension Regulations, 1995.
71. W.P.No.11180/2003 :-
Out of 40 Writ Petitioners, 33 are Provident Fund optees claiming Pension who have completed 20 years of service. Seven Pension optees with less than 20 years of service. Though, 33 Writ Petitioners are Provident Fund optees as they have completed 20 years of service, as per Regulation 2 (zea) read with 35 (ii), those 33 Writ Petitioners are entitled for Pension.
72. Remaining seven Writ Petitioners are: (1) Nirmal Kumar, (2) R.Valliappan, (3) K.R.Srimathee, (4) S.Kaliyapural, (5) Raja Elayakumar, (6) M.Umayal and (7) K.Paramasivam. Employees seeking VRS to be eligible for pension a minimum 20 years of service required as per Regulation 35(ii). The above said seven Writ Petitioners have not completed 20 years of service have referred Regulation 14 of Pension Regulations which makes eligible for pension on completion of 10 years "subject to other conditions contained in the Regulations". According to the learned counsel for the Respondents subject to other conditions which are covered under Chapter V i.e. Classes of Pension like (i) invalid pension (Regulation 30), and (ii) pre-mature retirement pension (Regulation 32).
73. Laying emphasis upon Clause 29(5) Chapter V, Mr. T.R.Rajagopalan, learned Senior Counsel for the Petitioners has submitted that the qualifying service of an employee retiring voluntarily under this regulation shall be increased by a period of not exceeding five years and if that five years added to those seven Writ Petitioners, they would also be entitled to get Pension under BME Pension Regulations,1995.
74. Clause 29 (5) reads as under:-
"29(5) : The qualifying service of an employee retiring voluntarily under this regulation shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty three years and it does not take him beyond the date of superannuation."
75. It was contended that period of 5 years should be added to those seven Writ Petitioners and that they are deemed to have completed 20 years of service. Clause 29 (5) would be applicable only to those of the employee retiring voluntarily who is otherwise eligible to apply for VRS. To apply for VRS, 20 years of qualifying service is a pre-requisite. Only when an employee satisfies the essential pre-requisite to go on VRS, Clause 29 (5) can be availed. When seven of the Writ Petitioners lacks the essential pre-requisite of 20 years of qualifying service to go on VRS, they cannot seek to avail the benefit of Clause 29 (5). The contention that by applying Clause 29 (5), five years of qualifying service is to be added to those Writ Petitioners who do not possess the essential pre-requisite defies logic. Since, 7 Writ Petitioners have not completed 20 years of service are not eligible to get Pension under BME Pension Regulations, 1995.
76. W.P.No.36764/2003:-
Petitioner was an employee of Bank of Madura and retired from service on 08.09.1993. As per Pension Regulations of Bank of Madura, Petitioner having opted for Pension is entitled to receive Pension. Petitioner made an application for payment of Pension on 07.02.1995. But his application was rejected by the Bank giving reason as not retired ordinarily.
77. Mr. A.L.Somayaji, learned Senior Counsel for the Respondents was fair in submitting that Writ Petitioner Raghavendra in W.P.No.36764/2003 would be eligible to get Pension as he has opted for Pension even in 1995. Hence, Petitioner in W.P.No.36764/2003 is eligible to get Pension.
78. W.P.Nos.32502, 36782, 37150, 37197, 37739/2003, 1421 and 8809/2004:-
In the result, all the seven Writ Petitions are allowed with the following directions and observations:-
It is held that all the Writ Petitioners are eligible to Pension under Bank of Madura Employees Pension Regulations, 1995.
Arrears of Pension is payable to the Writ Petitioners and also the future Pension as admissible under the Regulations.
As contemplated under Regulation 35 (ii), all the Writ Petitioners are to refund to the Bank entire contribution to the Provident Fund including interest received with further simple interest at the rate of 6% p.a. from the date of payment of P.F. amount till the date of refund.
The P.F. amount to be refunded along with interest to be repaid to the Bank by the Writ Petitioners shall be adjusted from out of the arrears of Pension payable to the Writ Petitioners.
After adjustment of arrears of pension, if PF amount becomes payable by the Petitioners, Petitioners shall pay the same along with accrued interest within 60 days from the date of receipt of copy of this Order.
After adjusting the PF amount along with accrued interest, if any balance arrears of Pension payable to the Writ Petitioners shall be paid within a period of four months from the date of receipt of copy of this order.
Monthly pension payable to the Petitioners shall be paid commencing from January 2009 which is payable in the first week of February 2009.
79. W.P.No.11180/2004:-
In the result,
It is held that Petitioners 8,14,20,22,25,29,30 [ Nirmal Kumar, R.Valliappan, K.R.Srimathee, S.Kaliyapural, Raja Elayakumar, M.Umayal and K.Paramasivam] are not entitled to Pension under Regulation 35 (ii) and the Writ Petition is dismissed as against those seven Writ Petitioners.
Insofar as other 33 Writ Petitioners, they are eligible to Pension.
Arrears of Pension is payable to the Writ Petitioners and also the future Pension as admissible under the Regulations.
As contemplated under Regulation 35 (ii), all the Writ Petitioners are to refund to the Bank entire contribution to the Provident Fund including interest received with further simple interest at the rate of 6% p.a. from the date of payment of P.F. amount till the date of refund.
The P.F. amount to be refunded along with interest to be repaid to the Bank by the Writ Petitioners shall be adjusted from out of the arrears of Pension payable to the Writ Petitioners.
After adjustment of arrears of pension, if PF amount becomes payable by the Petitioners, Petitioners shall pay the same along with accrued interest within 60 days from the date of receipt of copy of this Order.
After adjusting the PF amount along with accrued interest, if any balance arrears of Pension payable to the Writ Petitioners shall be paid within a period of four months from the date of receipt of copy of this order.
Monthly pension payable to the Petitioners shall be paid commencing from January 2009 which is payable in the first week of February 2009.
80. W.P.No.36764/2003:-
In the result, the Writ Petition is allowed with the following directions and observations:-
It is held that the Writ Petitioner is eligible to Pension under Bank of Madura Employees Pension Regulations, 1995.
Arrears of Pension is payable to the Writ Petitioner and also the future Pension as admissible under the Regulations.
As contemplated under Regulation 35 (ii), the Writ Petitioner is to refund to the Bank entire contribution to the Provident Fund including interest received with further simple interest at the rate of 6% p.a. from the date of payment of P.F. amount till the date of refund.
The P.F. amount to be refunded along with interest to be repaid to the Bank by the Writ Petitioner shall be adjusted from out of the arrears of Pension payable to the Writ Petitioner.
After adjusting the PF amount along with accrued interest if any balance arrears of Pension payable to the Writ Petitioner shall be paid within a period of four months from the date of receipt of copy of this order.
Monthly pension payable to the Petitioners shall be paid commencing from January 2009 which is payable in the first week of February 2009.
bbr
To
The Additional Secretary,
Ministry of Finance and Company Affairs,
(Banking and Insurance),
No.235, Jeevandeep Buildings,
Sansad Marg-1,
New Delhi 110 001
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