Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2009
(Arising out of SLP (C) No.26879 of 2005)
United Bank of India … Appellant
Versus
Pijush Kanti Nandy & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. The Service Conditions of the employees of United Bank of India are
governed by United Bank of India (Officers) Service Regulations, 1979 (for
short, ‘the Regulations).
Regulation 19 of the Regulations reads as under:
“19.(1) The age of retirement of an officer
employee shall be as determined by the Board in
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accordance with the guidelines issued by the
Government from time to time—
Provided that the Bank may, at its
discretion, on review by the Special Committee as
provided hereinafter in sub-regulation (2) retire an
officer employee on or at any time after the
completion of 55 years of age or on or at any time
after the completion of 30 years of total service as
an officer employee or otherwise, whichever is
earlier;
Provided further that before retiring an officer
employee, at least three months’ notice in writing
or an amount equivalent to three months’
substantive salary/pay and allowances, shall be
given to such officer employee;
Provided also that nothing in this regulation shall
be deemed to preclude an officer employee from
retiring earlier pursuant to the option exercised by
him in accordance with the rules in the Bank.
Explanation :
An officer employee will retire on the last day of
the month in which he completes his age of
retirement.
(2) The Bank shall constitute a Special Committee,
consisting of not less than three members, to
review, whether an officer employee should be
retired in accordance with the first proviso to this
regulation. Such Committee shall, from time to
time, review the case of each officer employee and
no order of retirement shall be made unless the
Special Committee recommends in writing to the
Competent Authority the retirement of the officer
employee.”
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3. The basic fact of the matter is not in dispute. Respondent No.1 herein
joined his services in the appellant bank as MMG Scale-II. On or about
13.2.1989, he sought voluntary retirement in terms of Regulation 19 of the
Regulations. The Bank accepted his offer vide its letter dated 8.5.1989.
Respondent No.1 was allowed to take voluntary retirement w.e.f. 31.5.1989.
4. On or about 1.11.1993, The United Bank of India (Employees)
Pension Regulations, 1993 were introduced for employees of the appellant-
Bank. Option from the employees retired between 1.1.1986 and 1.11.1993
was sought for by the appellant on or before 30.7.1994. However, the last
date for receiving such option was extended till 30.9.1994 vide a circular
dated 30.9.1994.
On or about 1.9.2001, the respondent No.1 filed an application for
exercising his option for pension. The appellant, vide its letter dated
10.10.2001 informed him that he was not entitled to give any option for the
said purpose.
Aggrieved by and dissatisfied with the said letter, the respondent filed
a writ petition before the High Court of Judicature at Calcutta, which was
marked as W.P. No.490 of 2002, praying therein for the following reliefs:
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“a) A writ in the nature of mandamus
commanding the respondents and each of
them their men, servants, agents, and assigns
to act in accordance with the law and allow
Pension Benefits to the writ petitioner from
the date of his retirement in terms of the
United Bank of India (Employees) Pension
Regulation 1995;
b) A writ in the nature of mandamus
commanding the respondents and especially
the respondent Nos1, 2 and 3 to forthwith
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cancel and/or rescind the letter dated 10
October, 2001 being Annexure ‘P-9’ hereto;
(c) Writ in the nature of Prohibition directing
and commanding the respondents and each
of them to desist from withholding the
Pension Benefits to the petitioner;
(d) A writ in the nature of Certiorari directing
and commanding the respondents and each
of them to transmit and produce all the
records relating to this case to the said
Hon’ble Court after certifying the same to
that conscionable justice may be rendered;
e) An order of injunction restraining the
respondents and/or each of them their
servants, men, agents & assigns from
withholding and/or continuing to withhold
the pensionary benefits of the writ
petitioner;
f) Rule Nisi in terms of prayers above.”
Counter affidavit as also a supplementary counter affidavit to the writ
petition were filed by the appellant.
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The said writ petition was allowed by a learned Single Judge of the
High Court by his order dated 20.3.2003. The appellant-Bank preferred an
intra court appeal thereagainst which was also dismissed by the Division
Bench by reason of the impugned judgment.
5. The appellant is, thus, before us.
6. The respondent voluntarily retired from the services of the Bank as far
back as on 31.5.1989 as has been noticed by us hereinbefore. He claimed
the benefit of pension which was introduced by reason of a Regulation
known as United Bank of India (Employees) Pension Regulations, 1995.
The Regulations were published in the Official Gazette on 29.9.1995 and in
terms of clause (2) of regulation 1, they were to come into force on the said
date.
7. A writ petition was filed before this Court. This Court in its decision
in Bank of India v. Indu Rajagopalan & Ors. [JT 2000 (10) SC 334] held
that the benefit of the said Regulations should be extended to those
employees who have retired on or after 1.1.1986. It is also not in dispute
that the respondent as on the date of his retirement completed 17 years 10
months and 17 days of actual service.
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8. The core question which arises for consideration herein is as to
whether having regard to the provisions contained in clause (5) of
Regulation 29 of the Regulations, he would be entitled to the pensionary
benefits.
Regulation 2(n) defines ‘employee’ to mean :
“ ‘employee’ means any person employed in the
service of the Bank on full time work on
permanent basis or on part-time work or
permanent basis on scale wages and who opts and
is governed by these regulations, but does not
include a person employed either on contract basis
or daily wage basis or on consolidated wages.”
Regulation 2(w) defines ‘qualifying service’ as under :
“ ‘qualifying service’ means the service rendered
while on duty or otherwise which shall be taken
into account for the purpose of pension under these
regulations.”
9. The Regulations, as noticed hereinbefore, was to apply to the
employees who were in service on or after the first day of January 1986 or
who had retired before the first day of November 1993 and exercised the
option in writing within the period prescribed therein.
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Chapter IV of the Regulations provided for qualifying service. We
may notice Regulations 14, 15, 17, 18, 19 and 21 of the said Regulations
which read as under :
“14. Qualifying Service – Subject to the other
conditions contained in these regulations, an
employee who has rendered a minimum of ten
years of service in the Bank on the date of his
retirement or the date on which he is deemed to
have retired shall qualify for pension
15. Commencement of qualifying service –
Subject to the provisions contained in these
regulations, qualifying service of an employee
shall commence from the date he takes charge of
the post to which he is first appointed on a
permanent basis.
16. …
17. Counting of periods spent on leave – All
leave during service in the Bank for which leave
salary is payable shall count as qualifying service;
Provided that extraordinary leave on loss of pay
shall not count as qualifying service except when
the sanctioning authority has directed that such
leave not exceeding twelve months during the
entire service, may count as service for all
purposes including pension.
Broken period of service of less than one year – If
the period of service of an employee includes
broken period of service less than one year, then if
such broken period is more than six months, it
shall be treated as one year and if such broken
period is six months or less it shall be ignored.
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19. Counting of period spent on training –
Period spent by an employee on training in the
Bank immediately before his appointment shall
count as qualifying service.
20. …
21. Period of suspension – Period of suspension
of an employee pending enquiry shall count for
qualifying service where, on conclusion of such
enquiry, he has been fully exonerated or the
suspension is held to be wholly unjustified, and in
other cases, the period of suspension shall not
count as qualifying service unless the Competent
Authority passing the orders under the Service
Regulations or Discipline and Appeal regulations
or Settlements governing such cases expressly
declares at the time that it shall count to such
extent as such authority may declare.”
10. In the aforementioned backdrop, we may notice the provisions
contained in Chapter of the Regulations titled ‘Classes of Pension’.
Regulation 28 provides for superannuation pension. Pension on voluntary
retirement is governed by Regulation 29; clause (1) whereof reads as under :
“Pension on Voluntary Retirement –
st
(1) On or after 1 day of November, 1993, at
any time after an employee has completed
twenty years of qualifying service he may,
by giving notice of not less than three
months in writing to the appointing
authority, retire from service;
Provided that this sub-regulation shall not
apply to an employee who is on deputation
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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.”
Clause (2) of Regulation 29 provides for acceptance of notice of
voluntary retirement by the appointing authority. Other procedural
provisions are contained in clauses (3) and (4). Clause (5) of Regulation 29
reads as under :
“(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.”
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11. The learned Single Judge as also the Division Bench of the High
Court on construction of the provisions of clause (5) of Regulation 29 was of
the opinion that the qualifying service could be extended by a period of five
years having regard to the definition thereof which not only takes within its
umbrage the service rendered while on duty but also service ‘otherwise’
rendered.
12. The meaning of the word ‘otherwise’ as given in ‘Advanced Law
rd
Lexicon’ (3 Edn – 2005) is as under :
“By other like means; contrarily; different from
that to which it relates; in a different manner; in
another; in any other way; differently in other
respects in different respects; in some other like
capacity.”
[See R & B Falcon (A) Pty. Ltd. v. Commissioner of Income Tax
[2008 (8) SCALE 223].
As a general rule, ‘otherwise’, when following an enumeration, should
receive an ejusdem generis interpretation (per CLEASBY, B. Monck v.
Hilton 46 LJMC 167. The words ‘or otherwise’, in law, when used as a
general phrase following an enumeration of particulars, are commonly
interpreted in a restricted sense, as referring to such other matters as are
kindred to the classes before mentioned, (Cent. Dict.)”
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13. Contention of Mr. Mehta is that the said word only takes within its
purview those classes of cases which are noticed in Chapter IV of the
Regulations and not for the purpose of extending the period of qualifying
service. We agree. Service may not be actually rendered but must be
otherwise rendered. This presupposes that the relationship of employer and
employee must continue at all relevant times.
14. Mr. Mukherjee relied upon a recent decision in Bank of Baroda &
Ors. v. Ganpat Singh Deora [(2009) 1 SCALE 168] wherein this Court was
considering the provisions of the Pension of Regulations of Bank of Baroda
providing for pay-ability of pension to an employee who as on 31.01.2001,
would have completed a minimum of 15 years of service or who could be
completing 40 years of age. The respondent therein at that point of time
merely had completed 13 years of service. Despite that, his application for
voluntary retirement was accepted. When, however, he had sought for the
benefits applicable to him under the Pension Scheme in addition to other
retiral benefits, the same was not acceded to. It was in the aforementioned
factual matrix, the interpretation of Regulation 14, 28 and 29 came up for
consideration. An argument was advanced therein that the terms and
conditions of the voluntary retirement scheme were different from voluntary
retirement contemplated under Regulation 29, as in such an event,
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Regulation 14 will apply containing the general conditions. That argument
was rejected, stating :
“18. However, we are inclined to agree with Ms.
Bhati that Regulation 29 does not contemplate
voluntary retirement under the Voluntary
Retirement Scheme and applies only to such
employees who themselves wish to retire de hors
any Scheme of Voluntary Retirement, after having
completed 15 years of qualifying service for the
said purpose. There is a distinct difference between
the two situations and Regulation 29 would not
cover the case of an employee opting to retire on
the basis of a Voluntary Retirement Scheme.
19. Furthermore, Regulation 2 of the Voluntary
Retirement Scheme, 2001, of the appellant-Bank
merely prescribes a period of qualifying service for
an employee 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
Regulation 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.”
We are not concerned with such a case.
We must also notice that Mr. Mukherjee, learned counsel appearing
on behalf of the respondent contended that if Regulation 29 applies, there is
no reason as to why clause (5) thereof shall not apply.
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15. However, in a subsequent decision of this Court in Bank of India &
Anr. v. K. Mohandas & Ors. [2009 (4) SCALE 576]. In that case also Bank
of India offered a voluntary retirement scheme a similar question had come
up for consideration. Clause (5) of Regulation 29 came up for consideration
therein although the case stricto sensu was concerned with the voluntary
retirement scheme itself. The High Court, however, noticed that two
different views expressed by the Kerala High Court in paragraph 19 of the
judgment. Upon noticing the rival contentions of the parties, the following
was formulated :
“The principal question that falls for our
determination is: whether the employees (having
completed 20 years of service) of these banks
(Bank of India, Punjab National Bank, Punjab &
Sind Bank, Union Bank 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?”
The High Court rejected his submission that if the Regulations
including clause (5) of Regulation 29 is applied for the purposed of
voluntary retirement scheme, it would create an anomalous situation
inasmuch as two different class of employees for the purpose of granting
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pension would be created. The Court distinguished the Bank of Baroda’s
case (supra), opining that the same was rendered in the facts thereof, stating:
“49. It is true that the controversy in the case of
Bank of Baroda arose out of the same voluntary
retirement scheme with which we are concerned in
this group of appeals. However, there is vital
factual difference in that case and this group of
appeals. Pertinently that was a case where the
employee had completed only 13 years of service
(not even 15 years of service much less 20 years'
service) although he completed 40 years of age at
the time he offered for voluntary retirement. The
employee's application therein for voluntary
retirement was accepted by the Bank of Baroda
and he was paid all retiral benefits. However, his
request for grant of pension in addition to the other
retiral benefits was not acceded to by the bank. It
was so because he had not completed even 15
years of service. The employee pursued industrial
adjudicatory process for redressal of his grievance
in respect of non-grant of pension by the bank. The
employee's claim was opposed by the Bank of
Baroda contending that in terms of Regulations 14,
28 and 29 of the Pension Regulations, 1995, the
employee was not entitled to pension. The
observations made by this Court in Bank of
Baroda which have been quoted above and relied
upon by the banks in support of their contention
have to be understood in the factual backdrop
namely, that the employee had completed only 13
years of service and, was not eligible for the
pension under the Pension Regulations, 1995 and
for the benefit of addition of five years to
qualifying service under Regulation 29(5), an
employee must have completed 20 years of
service. The question therein was not identical in
form with the question here to be decided. The
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following observations in paragraph 11 of the
report in Bank of Baroda are significant:
...since both the Tribunal as well as the High
Court appear not to have considered or taken
note of the fact that the respondent was not
eligible for pension 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.”
It was laid down :
“53. We hold, as it must be, that the employees
who had completed 20 years of service and were
pension optees and offered voluntary retirement
under VRS 2000 and whose offers were accepted
by the banks are entitled to addition of five years
of notional service in calculating the length of
service for the purposes of that Scheme as per
Regulation 29(5) of the Pension Regulations, 1995.
The contrary view expressed by some of the High
Courts do not lay down the correct legal position.”
We respectfully agree with the view expressed therein.
16. What is qualifying service has been explained in Union of India &
Anr. v. Bashirbhai R. Khilji [(2007) 6 SCC 16], wherein this Court held that
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the respondent being constable in the Central Reserve Police Force, the
Central Civil Services (Pension) Rules, 1972 are applicable. Rule 49
stipulates that the minimum qualifying service of ten years is required for
extending the pension benefit. It was stated that ‘for grant of any kind of
pension, one has to put in the minimum of ten years of qualifying service’.
In that case, Respondent was appointed as armed constable in central
reserve police force. He suffered from pyrogenic meningitis and
neurosensory defines while on duty. He was invalidated from service after
he was declared unfit for duty. Respondent request for invalid pension was
rejected on the ground that he had not completed 10 years of service. The
Division Bench of High Court held that the respondent was entitled to the
invalid pension since his invalidity was 100% and the condition of ten years
of qualifying service could not invoked so as to deny the respondent invalid
pension.
17. We may notice that this Court in Indian Bank & Anr. v. N.
Venkatramani [(2007) 10 SCC 609], held :
“13. It may be true that various provisions of the
Regulations as for example Regulations 16, 17, 19,
23, etc. provided for qualifying service. Regulation
18 is not controlled by any of the said provisions.
It does not brook any restrictive interpretation. It
only provides for a rule of measurement. An
17
employee, as noticed hereinbefore, was entitled to
pension provided he has completed the specified
period of service. How such a period of service
would be computed is a matter which is governed
by the statute. It is one thing to say that a statute
provides for completion of fifteen years of
minimum service, but if a provision provides for
measurement of the period, the same cannot be lost
sight of. Provision of the Regulations which are
beneficial in nature, in our opinion, should be
construed liberally.”
In that case, the question arose as to how the lack in period of service
of less than one year shall be construed. This Court held that Regulation 18
was not controlled by Regulations 16, 17, 19, 23 etc. as it provided for a
Rule of Measurement.
It, is however, trite that even a beneficial legislation should not be
extended to such an extent whereby it would take into within its fold a
situation which was not contemplated under the statute.
18. Could the period of service computed by including a period of five
years as provided for in clause (5) of Regulation 29 is the question. In our
opinion, it was not. Definition of ‘qualifying service’ is restrictive in nature.
It uses the word ‘means’ and not ‘includes’ or ‘means and includes’. Thus,
the construction of ‘qualifying service’ must ordinarily be kept confined to
the service rendered while on duty. He may be in service even otherwise
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although not rendering any duty. Those exigencies of situation are covered
by the other types of cases which would come within the purview thereof. A
person who is not in service cannot be said to be entitled to the benefit
thereof. The term ‘otherwise’ should be read ejusdem generis . The term
‘otherwise’ in the context of the ‘Regulations’ should be construed so that it
can become meaningful one. For the said purpose, the employee concerned
was required to be in service. It is not possible to hold in absence of any
express words that the eligibility criteria laid down in the Regulations for
obtaining the benefit of pension, i.e., the qualifying service should be
construed in such a manner that a person even not in service would be
deemed to be in service. The statute does not raise a legal fiction. A strict
construction of the term “qualifying service” therefor, in our opinion, would
not be appropriate.
In Siddeshwari Cotton Mills (P) Ltd. v. Union of India (UOI) & Anr.
[(1989) 2 SCC 458], the Supreme Court while discussing the definition of
‘manufacture’ under section 2(f) of the Central Excise and Salt Act, 1944
whether the relevant process fall within ‘any other process" thereby within
the provision of section 2(f)(v) the Court looked at the meaning of ‘the
expression ejus-dem-generis...’ which means of the same kind or
nature'...signifies a principle of construction whereby words in a statute
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which are otherwise wide but are associated in the text with more limited
words are, by implication, given a restricted operation and are limited to
matters of the same class or genus as preceding them. If a list or string or
family of genus-describing terms is followed by wider or residuary or
sweeping-up words, then the verbal context and the linguistic implications
of the preceding words limit the scope of such words.
The Court also discussed various other texts while looking at the term.
In ‘Statutory Interpretation’ Rupert Cross says:
“...The draftsman must be taken to have inserted
the general words in case something which ought
to have been included among the specifically
enumerated items had been omitted...”
The principle underlying this approach to statutory construction is that
the subsequent general words were only intended to guard against some
accidental omission in the objects of the kind mentioned earlier and were not
intended to extend to objects of a wholly different kind. This is a
presumption and operates unless there is some contrary indication. But the
preceding words or expressions of restricted meaning must be susceptible of
the import that they represent a class. If no class can be found, ejusdem
20
generis rule is not attracted and such broad construction as the subsequent
words may admit will be favoured. As a learned author puts it:
“...if a class can be found, but the specific words
exhaust the class, then rejection of the rule may be
favoured because its adoption would make the
general words unnecessary; if however, the
specific words do not exhaust the class, then
adoption of the rule may be favoured because its
rejection would make the specific words
unnecessary.”
Cessation of contract of service may be of different types, i.e., by
punishment or by end of contract. It, however, does not take within its
purview an order of suspension as the same does not bring about a cessation.
19. In National Textile Corporation (M.P.) Limited v. M.R. Jadhav [(2008
(7) SCC 29], this Court held:
“Subject, of course, to the terms “invitation to
treat” as also those of the offer as envisaged under
the Contract Act, an offer has to be accepted.
Unless an offer is accepted, a binding contract
does not come into being. A voluntary retirement
scheme contemplates cessation of the relationship
of master and servant. The rights and obligations
of the parties thereto shall become enforceable
only on completion of the contract. Unless such a
stage is reached, no valid contract can be said to
have come into force. Acceptance of an offer
must, therefore, be communicated.”
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20. We, therefore, are of the opinion that in a case of this nature, clause
(5) of Regulation 29 would be attracted only in a case where the concerned
employee has completed 20 years of qualifying service. Clause (5) of 29
would be applicable for the purpose of granting a higher monetary benefit in
the matter of computation of pension. It does not provide for measurement
of the period as was in the case of Indian Bank (supra).
21. For the reasons aforementioned, the impugned judgment cannot be
sustained, it is set aside accordingly. The appeal is allowed. However, in
the facts and circumstances of this case, there shall be no order as to costs.
.……………………….J.
[S.B. Sinha]
……………………..…J.
[Deepak Verma]
New Delhi;
August 4, 2009