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TMI Blog2009 (3) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... ank of India and United Bank of India) who had opted for voluntary retirement under VRS 2000 are entitled to addition of five years of notional service in calculating the length of service for the purpose of the said Scheme as per Regulation 29(5) of Pension Regulations, 1995? - each of the employees had completed 20 years of service - optees have been given retiral benefits by the respective banks under VRS 2000 save and except the benefit of pension under Regulation 29(5) - Their representation in this regard did not yield any result and that necessitated them to approach various High Courts for redressal of their grievance. The views of High Courts differ. Punjab and Haryana High Court has held that employees are entitled to add a period of qualifying service not exceeding five years in terms of the Regulation 29(5); the total qualifying service rendered by an employee seeking voluntary retirement in any case shall not exceed 33 years. With regard to the amendment in Regulation 28, Punjab and Haryana High Court has held that by the said amendment, the provision contained in Regulation 29(5) of the Regulations does not get affected so as to disentitle the employees the benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pension benefits under Regulation 29(5) of the Pension Regulations, 1995, along with the payment of ex-gratia which was a substantial amount. On behalf of banks it was submitted that the employees, having taken benefits under the scheme (VRS 2000), are estopped from raising any issue that their entitlement to pension would not be covered by amended Regulation 28. It was suggested that the employees having taken benefit of the scheme cannot insist for pension under Regulation 29(5). O.P. Swarnakar [ 2002 (12) TMI 605 - SUPREME COURT] was relied upon in this regard wherein it has been held that an employee, having taken the ex-gratia payment, or any other benefit under the scheme cannot be allowed to resile from the scheme. In so far as the present group of appeals is concerned, the employees are not seeking to resile from the Scheme. They are actually seeking enforcement of the clause in the Scheme that provides that the optees will be eligible for pension under the Pension Regulations, 1995. According to them, they are entitled to the benefits of Regulation 29(5). In our considered view, plea of estoppel is devoid of any substance; as a matter of fact it does not arise at all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IL APPEAL NO. 1947 OF 2009(Arising out of S.L.P. No. 8902/2008), CIVIL APPEAL NO. 1948 OF 2009 (Arising out of S.L.P. No. 9029/2008), CIVIL APPEAL NO. 1949 OF 2009 (Arising out of S.L.P. No. 10846/2008) , CIVIL APPEAL NO. 1950 OF 2009 (Arising out of S.L.P. No. 11112/2008), CIVIL APPEAL NO. 1951 OF 2009 (Arising out of S.L.P. No. 11114/2008), CIVIL APPEAL NO. 1952 OF 2009 (Arising out of S.L.P. No. 11115/2008), CIVIL APPEAL NO. 1953 OF 2009 (Arising out of S.L.P. No. 11190/2008), CIVIL APPEAL NO. 1954 OF 2009 (Arising out of S.L.P. No. 11324/2008), CIVIL APPEAL NO. 1955 OF 2009 (Arising out of S.L.P. No. 13428/2008), CIVIL APPEAL NO. 1956 OF 2009 (Arising out of S.L.P. No.23585/2005), CIVIL APPEAL NO. 1957 OF 2009 (Arising out of S.L.P. No. 8050/2006) JAIN, D.K. AND LODHA, RAJENDRA MAL, JJ. JUDGEMENT R.M. LODHA, J. Leave granted. 2. These sixteen appeals arise from the judgments of Punjab and Haryana High Court, Calcutta High Court and Kerala High Court and relate to different banks but since the common issues are involved, it is appropriate that these appeals are dealt with and disposed of by the common judgment. 3. In the month of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the terms and conditions of his employment in the bank, an employee whose application for voluntary retirement is accepted will be paid a lump sum amount equivalent to 60 days salary for each completed year of service. (III) The competent authority may accept or reject the application of an employee for voluntary retirement and the decision of the competent authority shall be final. (IV) No voluntary retirement shall come into effect unless competent authority has passed orders accepting the applications of the employees to retire voluntarily under the scheme. (V) The scheme can be withdrawn at the discretion of the bank at any time without assigning any reason. (VI) It shall be open to the bank to alter/amend the conditions of the scheme. (In the scheme framed by Punjab National Bank such provision is not there). (VII) The applications made under the scheme will be irrevocable and the employee will not have the right to withdraw the application once submitted. (VIII) An employee whose application for voluntary retirement is accepted and relieved from the bank shall be eligible for : (i) gratuity as per Gratuity Act/service gratuity as the case may be; (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority retire from service. Provided that this Sub-regulation shall not apply to an employee who is on deputation or on study leave abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year: Provided further that this Sub-regulation shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking or company or institution or body, whether incorporated or not to which he is on deputation at the time of seeking voluntary retirement; Provided that this Sub-regulation shall not apply to an employee who is deemed to have retired in accordance with Clause (1) of regulation -2. (2) The notice of voluntary retirement given under sub-regulation (1) shall require acceptance by the appointing authority: Provided that where that appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. (3)(a). An employee referred to in sub-reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offer. This Court culled out the following aspects: (i) The banks treated the application from the employees as an offer which could be accepted or rejected. (ii) Acceptance of such an offer is required to be communicated in writing. (iii) The decision-making process involved application of mind on the part of several authorities. (iv) Decision-making process was to be formed at various levels. (v) The process of acceptance of an offer made by an employee was in the discretion of the competent authority. (vi) The request for voluntary retirement would not take effect in present but in future. (vii) The bank reserved its right to alter/rescind the conditions of scheme. 13. In O.P. Swarnakar, it has been held that scheme is contractual in nature. It amounted to an invitation to offer and not an offer or proposal itself; the application made by the employees was an offer. 14. The statement of law with regard to nature of voluntary retirement scheme expounded in O.P. Swarnakar has been reiterated in HEC Voluntary Retd. Employees Welfare Society v. Heavy Engineering Corporation Ltd. (2006) 3 SCC 708; albeit a different voluntary retirement scheme. 15. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court is on the lines of the view of the single Judge of Kerala High Court that the optees of voluntary retirement under VRS 2000 are not entitled to benefit of addition of five years service under Regulation 29(5). 20. We have heard the senior counsel, counsel for the respective parties and Baldev Singh who appeared in person at quite some length. The written submissions have also been filed by the parties which we considered thoughtfully. 21. The submissions on behalf of the banks may be summarised thus : (i) that Pension Regulations, 1995, as were existing during the operation of VRS 2000, did not cover the class of employees retiring under the Scheme which is contractual in nature. Regulation 28 came to be amended by insertion of proviso thereto to cover the employees retiring under the Scheme inasmuch as by the said amendment, the employees having completed 15 years of service or more became entitled to pension on pro-rata basis; (ii) that voluntary retirement under VRS 2000 cannot be compared or equated with voluntary retirement under Pension Regulations, 1995. VRS 2000 is completely different and distinct scheme from voluntary retirement contemplated under Regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the entitlement to the pension could not have been decided in terms of that Regulation and the pension benefits to the optees could only be given under Regulation 29; (iv) that by making provision in the Scheme that optees would be eligible for the benefits in addition to the ex-gratia amount, inter alia, pension as per Pension Regulations, 1995, the employees understood that what was contemplated was pension under Regulation 29. Any ambiguity in VRS 2000 ought to be construed that harmonized with the intention of the parties; (v) that the amendment in Regulation 28 was introduced for a class of employees who had put in more than 15 years but less than 20 years of service. In terms of Pension Regulations, 1995, as it stood before amendment to Regulation 28, an employee although a pension optee under VRS having not completed 20 years service was not entitled to any pension. In order to take care of this anomalous position and to confer pensionary benefits on such employees, the amendment was brought into effect in Regulation 28 which cannot affect the subject employees who undisputedly have put in more than 20 years of service; (vi) that the employees made the offer to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulations; that an application by an employee for voluntary retirement was a proposal or offer and that upon acceptance of the application for voluntary retirement made by the employee and a communication of acceptance to him, the concluded contract came into existence and the offeree was relieved from the employment, for consideration of the question posed herein, the court need to examine the contract and the circumstances in which it was made in order to see whether or not from the nature of it, the parties must have made their bargain on the footing that a particular thing or state of things would continue to exist. 28. The true construction of a contract must depend upon the import of the words used and not upon what the parties choose to say afterwards. Nor does subsequent conduct of the parties in the performance of the contract affect the true effect of the clear and unambiguous words used in the contract. The intention of the parties must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. The nature and purpose of the contract is an important guide in ascertaining the intention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... existing at that time was not applicable at all. None of the regulations 30 to 34 was attracted. It appears that VRS 2000 evoked huge response, much more than expected and then began the second thought. At the fag end of operation of VRS 2000, at the instance of NBA, the banks proposed amendment in the Pension Regulations and a circular came to be issued. But, by that time, ball had gone out of the hands of the employees; they had already made their offers which were irrevocable; it was not open to them to withdraw the offers as per specific condition incorporated in the scheme (albeit this court in O.P. Swarnakar held that offer could be withdrawn before acceptance) and their offers were accepted and they were relieved. We are afraid, it would be unreasonable if amended Regulation 28 is made applicable, which had not seen the light of the day and which was not the intention of the bank when scheme was framed. The banks in the present batch of appeals are public sector banks and are `State' within the meaning of Article 12 of the Constitution and their action even in contractual matters has to be reasonable, lest, as observed in O.P. Swarnakar, it must attract the wrath of Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of pension, IBA may work out modalities and suggest amendments, if any, required to be made in the pension regulations to ensure that these employees also get the benefit of pension. Yours faithfully, Sd/- (U.P. Singh) Director (IR) 36. Two things immediately become noticeable from the said communication. One is that as per Regulation 29 of Pension Regulations, 1995, an employee can take voluntary retirement after 20 years of qualifying service and become eligible for pension. The other thing is that the Scheme provides that the employees with 15 years of service or 40 years of age shall be eligible to take voluntary retirement under the Scheme and under Regulation 29, the employees having rendered 15 years of service or completed 40 years of age but not completed 20 years of service shall not be eligible for pensionary benefits on taking voluntary retirement under the Scheme. The use of the words `such employees' in the communication is referable to employees having rendered 15 years of service but not completed 20 years of service and, therefore, it was decided to bring in amendment in the Regulations so that employees having not completed 20 years service do not l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es who have completed 20 years of service or more, it is no discrimination. Such provision can neither be said to be arbitrary nor can be held to be violative of any constitutional or statutory provisions. The weightage of five years under Regulation 29(5) is applicable to the optees having service of 20 years or more. There is, thus, basis for additional benefit. Merely because the employees who have completed 15 years of service but not completed 20 years of service are not entitled to weightage of five years for qualifying service under Regulation 29(5), the employees who have completed 20 years of service or more cannot be denied such benefit. 39. On behalf of the banks, it was contended that Pension Regulations, 1995, are statutory in nature and these Regulations cannot be altered, amended or read down in view of any contract or a contractual scheme. It was submitted that any contract (or contractual scheme), contrary to a statutory law would be hit by Section 23 of the Contract Act and, therefore, it is the contract or the scheme which has to be modified, altered or read down to bring it in tune with the provisions of statutory Regulations and not the other way round. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended on behalf of the banks that VRS 2000 was a self-contained Scheme and it provided for special benefits in the form of ex-gratia. It was submitted that ex-gratia was not available to the employees claiming voluntary retirement under Pension Regulations and it was because of that, that Scheme did not envisage granting of pension benefits under Regulation 29(5) of the Pension Regulations, 1995, along with the payment of ex-gratia which was a substantial amount. It is true that VRS 2000 is a complete package in itself and contractual in nature. However, in that package, it has been provided that the optees, in addition to ex-gratia payment, will also be eligible to other benefits inter alia pension under the Pension Regulations. The only provision in the Pension Regulations at the relevant time during the operation of VRS 2000 concerning voluntary retirement was Regulation 29 and clause(5) thereof provides for weightage of addition of five years to qualifying service for pension to those optees who had completed 20 years service. It, therefore, cannot be accepted that VRS 2000 did not envisage grant of pension benefits under Regulation 29(5) of the Pension Regulations, 1995, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee to be eligible to apply for voluntary retirement. On the other hand, Regulations 14 and 29 of the Pension Regulations, 1995, relate to the period of qualifying service for pension under the said Regulations, in two different situations. While Regulations 14 provides that in order to be eligible for pension an employee would have to render a minimum of 10 years service, Regulation 29 is applicable to the employees choosing to retire from service pre-maturely, and in their case the period of qualifying service would be 15 years. The facts of this case, however, do not attract the provisions of Regulation 29 since the respondent accepted the offer of voluntary retirement under the Scheme framed by the Bank and not on his own volition de hors any Scheme of Voluntary Retirement. In such a case, Regulaion14 read with Regulation 32 providing for premature retirement would not also apply to the case of the respondent. While Regulation 2 of the BOBEVRS -2001 speaks of eligibility for applying under the Scheme, Regulation 14 of the Pension Regulations, 1995, contemplates a situation whereunder an employee would be eligible for premature pension. The two provisions are for two different pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lord Denning: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. 46. It was highlighted by this Court in Ambica Quarry Works Vs. State of Gujarat,(1987) 1 SCC 213: 18....The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. 47. In Bhavnagar University vs. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111, this Court held that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. 48. This Court in Bharat Petroleum Corporation Ltd. vs. N.R. Vairamani, (2004) 8 SCC 579, emphasized that the Courts should not place reliance on decisions without disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as he had not completed 15 years of qualifying service...... ....... 50. The decision of this Court in Bank of Baroda is, thus, clearly distinguishable as the employee therein had not completed qualifying service much less 20 years of service for being eligible to the weightage under Regulation 29(5) and cannot be applied to the present controversy nor does that matter decide the question here to be decided in the present group of matters. 51. On behalf of banks it was submitted that the employees, having taken benefits under the scheme (VRS 2000), are estopped from raising any issue that their entitlement to pension would not be covered by amended Regulation 28. It was suggested that the employees having taken benefit of the scheme cannot insist for pension under Regulation 29(5). O.P. Swarnakar was relied upon in this regard wherein it has been held that an employee, having taken the ex-gratia payment, or any other benefit under the scheme cannot be allowed to resile from the scheme. 52. Insofaras the present group of appeals is concerned, the employees are not seeking to resile from the Scheme. They are actually seeking enforcement of the clause in the Scheme that pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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