# Sahajanand Rai v. Union of India & Ors

- **Citation:** (2023) 4 ILRA 267
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-22
- **Case number:** Writ-A No. 53237 of 2014
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sahajanand-rai-v-union-of-india-ors-50102
- **Pages:** 6

## Headnote

A. Civil Law - Bank Clerk-cum-Cashier -
Pension - Memorandum of Settlement
dated
10.04.2002
-
Clause
6(b)
of
Settlement,
2002
provided
that
an
employee
found
guilty
of
gross
misconduct may be removed from service
with superannuation benefits, i.e., Pension
and/or Provident Fund and Gratuity, and
without
disqualification
from
future
employment - On 27.04.2010, another
Memorandum of Settlement, 2010 was
arrived at with regard to introducing the
Pension Scheme - Under the Settlement,
2010, an option was made available for
opting for the Pension Scheme - Later, a
circular letter dated 24.08.2010 was
issued by the Bank, which provided that
employees who have ceased to be in the
service of the Bank on account of penalty
proceedings are not eligible to opt for
joining the pension scheme - Held: once a
settlement has been arrived at between
the parties on 27.04.2010, which provides
pensionary benefits to all categories of
employees whose services were ceased,
they cannot be deprived by a circular that
creates a clause between the employees
whose services are ceased for different
reasons - any provision contrary to the
Settlement, 2010, cannot be inserted by
way of a circular, which is against the
employees (Para 12).
B. Petitioner was removed from service in
terms of Clause 6(b) of the Settlement,
2002,
which
provides
removal
from
service with superannuation benefits, i.e.,
Pension
and/or
Provident
Fund
and
Gratuity - Petitioner submitted his option
for the Pension Scheme in terms of the
Settlement, 2010, which was denied -
Held - In light of Clause 6(b) of the
Settlement, 2002, as well as the judgment
of the Apex Court in the case of Bank of
Baroda, the petitioner is fully entitled to
retiral benefits, and the same cannot be
taken away by way of a circular, which is
in violation of the Settlement, 2010 (Para
14).

Allowed. (E-5)

List of Cases cited:

Bank of Baroda Vs S.K. Kool (Dead) through
Legal Representatives & anr.; (2014) 2 SCC 715

## Text

4 All. Sahajanand Rai Vs. Union of India & Ors.
267
(2023) 4 ILRA 267
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 53237 of 2014

Sahajanand Rai ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar Rai, Sri Ashok Khare (Sr.
Advocate)

Counsel for the Respondents:
A.S.G.I. Sri C.S. Chaturvedi, S.C. Sri
Sanjeev Singh, Ms. Vatsala
A. Civil Law - Bank Clerk-cum-Cashier -
Pension - Memorandum of Settlement
dated
10.04.2002
-
Clause
6(b)
of
Settlement,
2002
provided
that
an
employee
found
guilty
of
gross
misconduct may be removed from service
with superannuation benefits, i.e., Pension
and/or Provident Fund and Gratuity, and
without
disqualification
from
future
employment - On 27.04.2010, another
Memorandum of Settlement, 2010 was
arrived at with regard to introducing the
Pension Scheme - Under the Settlement,
2010, an option was made available for
opting for the Pension Scheme - Later, a
circular letter dated 24.08.2010 was
issued by the Bank, which provided that
employees who have ceased to be in the
service of the Bank on account of penalty
proceedings are not eligible to opt for
joining the pension scheme - Held: once a
settlement has been arrived at between
the parties on 27.04.2010, which provides
pensionary benefits to all categories of
employees whose services were ceased,
they cannot be deprived by a circular that
creates a clause between the employees
whose services are ceased for different
reasons - any provision contrary to the
Settlement, 2010, cannot be inserted by
way of a circular, which is against the
employees (Para 12).
B. Petitioner was removed from service in
terms of Clause 6(b) of the Settlement,
2002,
which
provides
removal
from
service with superannuation benefits, i.e.,
Pension
and/or
Provident
Fund
and
Gratuity - Petitioner submitted his option
for the Pension Scheme in terms of the
Settlement, 2010, which was denied -
Held - In light of Clause 6(b) of the
Settlement, 2002, as well as the judgment
of the Apex Court in the case of Bank of
Baroda, the petitioner is fully entitled to
retiral benefits, and the same cannot be
taken away by way of a circular, which is
in violation of the Settlement, 2010 (Para
14).

Allowed. (E-5)

List of Cases cited:

Bank of Baroda Vs S.K. Kool (Dead) through
Legal Representatives & anr.; (2014) 2 SCC 715
2. S.B.I. Vs Golam Jilani M.A.T. -1053 of 2018

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Ashok Khare, learned
Senior Counsel assisted by Sri Sanjay
Kumar Rai, learned counsel for petitioner
and Ms. Vatsala, learned counsel for
respondent Nos. 2 to 5 (respondent-Bank).

2. By way of present petition,
petitioner is challenging the orders dated
13.10.2010 and 11.08.2014 passed by
Deputy Regional Manager, Bank of India,
Regional Office, Varanasi, by which,
petitioner has been denied the pension and
leave encashment as well as para 3 of
circular dated 24.08.2010.

3. Learned Senior Counsel submitted
that petitioner was appointed on 13.08.1988
268 INDIAN LAW REPORTS ALLAHABAD SERIES
as
Clerk-cum-Cashier
under
the
respondent-Bank
of
India
(hereinafter
referred to as ''Bank') at district Bhadohi,
which is a nationalized bank and comes
within the purview of Article 12 of
Constitution of India. Petitioner was posted
at different places and lastly, he was posted
at district Jaunpur in October, 2001 where
disciplinary proceedings were initiated
against him. He was issued departmental
charge sheet dated 05.01.2002, upon which,
Inquiry Officer has submitted inquiry
report dated 11.02.2002. The inquiry report
was supplied to the petitioner alongwith
show cause notice dated 14.06.2002.
Petitioner has submitted reply to the show
cause notice and ultimately, vide order
dated 19.09.2002 passed by the Chief
Manager/Disciplinary Authority, petitioner
was punished imposing penalty of removal
from service in terms of clause 6(b) of
Memorandum
of
Settlement
dated
10.04.2002 (hereinafter referred to as
''Settlement, 2002'). Against that order,
petitioner has filed an appeal before the
Zonal Manager, Varanasi Zone, Varanasi.
The appeal so filed by the petitioner was
rejected vide order dated 28.03.2003.
Aggrieved by the orders dated 19.09.2002
and 28.03.2003, petitioner has filed Writ
Petition No. 17841 of 2003 (Sahajanand
Rai vs. Bank of India & others) before this
Court, which was also dismissed vide order
dated 24.01.2007. Against that order,
petitioner has filed Special Appeal No. 251
of 2007 (Sahajanand Rai vs. Bank of India
& others), which was also dismissed vide
order dated 09.12.2009. Lastly, petitioner
has filed Special Leave to Appeal (Civil)
No. 9596 of 2010, which was dismissed as
withdrawn vide order dated 09.04.2010
with liberty to the appellant to approach the
High Court by way of a review petition.
Subsequent thereto, petitioner has filed
review petition seeking review of the
Division Bench judgment dated 09.12.2009
passed in Special Appeal No. 251 of 2007.
The review petition has been dismissed by
a Division Bench of this Court vide order
dated 30.07.2010. Against the aforesaid
judgment, petitioner has again preferred
Special Leave to Appeal (Civil) No. 30627
of 2010, which has also been dismissed
vide order dated 15.11.2010. He next
submitted that as a consequence of
aforesaid litigations, the penalty imposed
upon
the
petitioner
by order
dated
19.09.2002 has attained finality.

4. He next submitted that vide
impugned order, petitioner was removed
from service in terms of Clause 6(b)
Settlement, 2002, which provides removal
from service with superannuation benefits
i.e. Pension and/or Provident Fund and
Gratuity etc. As petitioner was not paid
pension,
therefore,
he
has
moved
application under Right To Information
Act, 2005, which was replied to the
petitioner
vide
communication
dated
26.12.2010 that the total amount due to the
petitioner under the head of Provident Fund
and Gratuity had been adjusted towards
loans advanced to the petitioner from the
said bank as also from Bank of India
Employees Cooperative Credit Society Ltd.
He further submitted that on 27.04.2010, a
Memorandum of Settlement (hereinafter
referred to as ''Settlement, 2010') has been
arrived
between
the
Indian
Banks
Association and the Workmen Association
with regard to introducing Pension Scheme
in the banking industry as a second retiral
benefit in lieu of Contributory Provident
Fund. Under the Settlement, 2010, an
option was made available for opting for
the Pension Scheme and it was also
available to employees who had ceased to
be in service in the concerned bank.
Petitioner has submitted his option for
4 All. Sahajanand Rai Vs. Union of India & Ors.
269
opting Pension Scheme in terms of the
aforesaid Settlement, which was denied
vide impugned order having reference of
circular letter dated 24.08.2010 (hereinafter
referred to as ''Circular') issued by the
Bank, which provides that option for
Pension Scheme shall not be available to
the employees whose services stood ceased
as a consequence of the disciplinary
proceedings.
Impugned
order
dated
11.08.2014 has also been passed rejecting
the application of the petitioner for sanction
of pension.

5. He firmly submitted that the
Settlement, 2010 made available an option
to all members of the Contributory
Provident Fund irrespective of their current
status of being an employee of the Bank or
having ceased to be an employee of the
bank. There exists no such clause in the
Settlement, 2010, which may preclude the
petitioner from exercising his option for
pension. Further, Clause 3 of the Circular,
which has been relied upon by the
respondents in rejecting the application of
the petitioner is a clause contrary to the
Settlement, 2010, which is having no such
provisions.
Binding
terms
of
the
Settlement, 2010 cannot be subject to any
alteration by means of a circular letter
issued by the respondent-bank. He next
submitted
that
entitlement
for
pension/leave
encashment
under
respondent-bank is based upon a qualifying
service of 10 years towards credit and
petitioner is fulfilling such requirements as
he was continuous in service from
13.08.1988 to September, 2002. Petitioner
is having no objection for adjustment of
amount of Contributory Provident Fund
towards
loans
of
the
petitioner,
as
mentioned in the communication of Deputy
Regional Manager dated 26.12.2010, but
after deduction of same, amount of
pension/leave encashment should have
been paid to the petitioner. It is next
submitted that similar issue was before the
Apex Court in the matter of Bank of
Baroda vs. S.K. Kool (Dead) through
Legal Representatives and another; (2014)
2 SCC 715 (Civil Appeal No. 10956 of
2013) decided on 11.12.2013, in which
Apex Court with detail finding has held
that in case of penalty of removal from
service
with
superannuation
benefits,
employee shall be entitled for those benefits
arising out of bipartite Settlement. He firmly
submitted that no inclusion can be made in
bipartite Settlement by a circular and
definition of retirement is very well
considered in the matter of Bank of Baroda
(Supra) which provides that even the
employees, who have been terminated along
with superannuation benefits in terms of
Clause 6(b) of Settlement, 2002, are entitled
for pensionary benefits, which includes such
employees also who have been awarded
penalty.

6. Per contra, Ms. Vatsala has
vehemently opposed the submissions of
counsel for petitioner, but could not dispute
the facts so argued by learned Senior
Counsel. She only submitted that similar
issue was before Calcutta High Court in the
matter of State Bank of India v. Golam
Jilani (M.A.T. -1053 of 2018) decided on
18.02.2019. In the said case, after termination
under Clause 6(b) of Settlement, 2002,
pension was denied and the Court has finally
held that after punishment, he has rightly
been denied for the pension.

7. I have considered the submissions of
counsel for parties and perused the records as
well as judgments cited above.

8. It is undisputed that petitioner was
awarded punishment of removal from
270 INDIAN LAW REPORTS ALLAHABAD SERIES
service in terms of Clause 6(b) of
Settlement, 2002, against which, petitioner
has contested up to the Apex Court, but
could not succeed.

Clause 6(b) of Settlement, 2002
is quoted below:-

"6. An employee found guilty of
gross misconduct may;

(a).............

(b) be removed from service with
superannuation benefits i.e. Pension and /or
Provident Fund and Gratuity as would be
due
otherwise
under
the
Rules
or
Regulations prevailing at the relevant time
and without disqualification from future
employment, or"

9. From the perusal of clause 6(b) of
the Settlement, 2002, there is no dispute
that petitioner was removed from service,
but not precluded from superannuation
benefits i.e. pension and/or provident fund
and gratuity as would be due otherwise
under the Rules or Regulations prevailing
at the relevant time. Petitioner was also not
disqualified for future employment.

10. Later on, another Settlement, 2010
arrived
between
the
Indian
Banks'
Association and the Banks' workmen's
Union
regarding
introducing
pension
scheme in the banking industries as second
retiral benefits in lieu of contributory funds.
The Settlement, 2010 provides for an
option for opting the pension scheme and it
was available to the employees who had
ceased to be in service in employment of
the concerned-bank. Relevant paragraph of
the Settlement, 2010 is quoted below:-

"4. Employees who ceased to be
in service on or after 29th September 1995
in case of Nationalized Banks/26th March
1996 in case of Associate Banks of State
Bank of India on account of voluntary
retirement under special scheme after
rendering service service for a minimum
period of 15 years, shall be eligible to
exercise an option to join the Pension
Scheme subject to the terms and conditions
mentioned for retiring employees opting for
joining the Scheme."

11. From the perusal of same, it is
apparently clear that every employee, for
any reason, ceased to be in service on or
after 29th September 1995 in case of
Nationalized Banks/26th March 1996 in
case of Associate Banks of State Bank of
India, shall be eligible to opt the scheme.
Later
on,
Circular
has
been
issued
depriving
such
employees
to
take
pensionary
benefits
on
account
of
resignation/voluntarily
retirement
under
Officers
Service
Regulation
19/incapacitation/on medical grounds/any
other type of cessation on account of
penalty proceedings are not eligible to opt
for joining the pension scheme. Relevant
paragraph of Circular is quoted below:-

"3. It also may be noted that the
employees who have ceased to be in the
service
of
Bank
account
of
Resignation/Voluntarily
retired
under
Officers
Service
Regulation
19/incapacitation/on medical grounds/any
other type of cessation on account of
penalty proceedings are not eligible to opt
for joining the pension scheme. Also
existing Pension optees cannot revoke their
option from pension to CPF."

12. The contention of counsel for
petitioner is correct for the reasons that
once a settlement has arrived between the
parties on 27.04.2010 which provides
pensionary benefits to all category of
employees whose services were ceased,
4 All. Sahajanand Rai Vs. Union of India & Ors.
271
they cannot be deprived by a circular which
creates a clause between the employees
whose services are ceased for different
reasons. In fact, once Settlement, 2010
arrived between the parties, any provision
contrary to that cannot be inserted by the
way of Circular which is against the
employees. The very same issue was
subject matter of Apex Court in the matter
of Bank of Baroda (Supra) in which, Apex
Court
has
taken
specific
view
that
employees, who have been removed from
service in terms of Clause 6(b) of
Settlement, 2002, shall be entitled for
superannuation
benefits.
Relevant
paragraph Nos. 14, 15 & 16 of the
judgment are quoted below:-

"14. The Regulation does not
entitle every employee to pensionary
benefits. Its application and eligibility is
provided
under
Chapter
II
of
the
Regulation whereas Chapter IV deals with
qualifying service. An employee who has
rendered a minimum of ten years of service
and fulfils other conditions only can qualify
for pension in terms of Article 14 of the
Regulation. Therefore, the expression "as
would be due otherwise" would mean only
such employees who are eligible and have
put in minimum number of years of service
to qualify for pension. However, such of
the employees who are not eligible and
have not put in required number of years of
qualifying service shall not be entitled to
the superannuation benefit though removed
from service in terms of clause 6(b) of the
Bipartite Settlement. Clause 6(b) came to
be inserted as one of the punishments on
account of the Bipartite Settlement. It
provides for payment of superannuation
benefits as would be due otherwise.

15. The Bipartite Settlement
tends to provide a punishment which gives
superannuation benefits otherwise due. The
construction canvassed by the employer
shall give nothing to the employees in any
event. Will it not be a fraud Bipartite
Settlement? Obviously it would be. From
the conspectus of what we have observed
we have no doubt that such of the
employees who are otherwise eligible for
superannuation benefit are removed from
service in terms of clause 6(b) of the
Bipartite Settlement shall be entitled to
superannuation benefits. This is the only
construction which would harmonise the
two provisions. It is well settled rule of
construction that in case of apparent
conflict between the two provisions, they
should be so interpreted that the effect is
given to both. Hence, we are of the opinion
that such of the employees who are
otherwise
entitled
to
superannuation
benefits under the Regulation if visited
with the penalty of removal from service
with superannuation benefits shall be
entitled for those benefits and such of the
employees though visited with the same
penalty
but
are
not
eligible
for
superannuation
benefits
under
the
Regulation shall not be entitled to that.

16. Accordingly, we hold that the
employee's
heirs
are
entitled
to
superannuation benefits. The entire amount
that the respondent is found entitled to
along with interest at the rate of 6% per
annum should be disbursed within 6 weeks
from the date of receipt/communication of
this Order."

13. Learned counsel for respondents
have also placed reliance upon the
judgment of Calcutta High Court in the
matter of State Bank of India (Supra). The
said case was about interpretation of Rule
14 of State Bank of India Employees
Pension Fund Rules, 1955. In that case,
petitioner was not entitled under the
provisions of Rule 14 of Rules, 1955 to get
272 INDIAN LAW REPORTS ALLAHABAD SERIES
pensionary benefits as he was not fulfilling
the requirement of Rule, 14. Further, in that
case, minimum requirement for grant of
pension was 20 years of qualifying service
whereas in the present case, minimum
requirement of qualifying service for
pension as well as leave encashment is 10
years. It is the case of petitioner that he is
having qualifying service of 10 years,
which was not denied in the counter
affidavit. Learned counsel for respondentBank has also not produced any Rules
which prohibits for payment of pension and
other retiral benefits as in the case of State
Bank of India (Supra).

14. In the light of Clause 6(b) of
Settlement, 2002 as well as judgment of
Apex Court passed in Bank of Baroda
(Supra), petitioner is fully entitled for
retiral benefits and the same cannot be
taken away by the way of Circular, which
is in violation of Settlement, 2010.

15. Therefore, under such facts of the
case as well as law laid down by the Apex
Court, let a writ of certiorari is issued
quashing paragraph-3 of Circular dated
24.08.2010 as well as impugned orders
dated 13.10.2010 & 11.08.2014.

16. Accordingly, writ petition is
allowed.

17. No order as to costs.

18.

Respondents-authorities
are
directed to pay all retiral benefits including
pension/leave
encashment
provided
petitioner fulfils all other requirements
required under the Rules of Bank.

19. Liberty is given to the Bank to
adjust the amount of loan advanced to the
petitioner from the Bank and also from
Bank of India Employees Cooperative
Credit Society Ltd., if already not adjusted.
----------
(2023) 4 ILRA 272
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-B No. 14278 of 1986

Smt. Dhanraji & Ors. ...Petitioners
Versus
Dy. Director of Consolidation, Varanasi &
Ors. ...Respondents

Counsel for the Petitioners:
Sri Shashi Kumar Dwivedi, Sri Hanuman
Kinkar, Sri V.K.S. Chaudhary, Sri R.S.
Maurya, Sri Manoj Kumar Singh

Counsel for the Respondents:
Sri Triveni Shanker, Sri Awadhesh Kumar,
Sri R.K. Pandey, Sri S. Rai, Sri A.R. Dubey,
Sri L.P. Singh, Sri Manish Pandey

Civil Law-Constitution of India, 1950-Article
226-Uttar Pradesh Consolidation of Holdings
Act, 1953-Sections 5(c) (ii) & 12- Writ
petition against the orders rejecting the
petitioners' claim for mutation- Absolutely
no requirement of a previous written
permission from the Settlement Officer of
Consolidation in transferring the entire
holding by a bhumidhar during time that a
consolidation scheme is in force- Authorities
below have committed a manifest error of
law in holding the sale deed to be void for
violation of Section 5(c)(ii)- It is not this
Court's province to re appreciate evidence
but to ensure that the Authorities of fact
below do not omit relevant evidence by
basing their findings on stray St.ments here
and there.(Para 46, 47, 50)

Evidence Act, 1872-Sections 107 & 108-
Section 107 raises a presumption that a