Leave granted.
The appellants in these appeals were originally inducted into
the service of Bank of Madura. By virtue of a scheme of
amalgamation sanctioned by the Reserve Bank of India, the Bank of
Madura was merged with the Industrial Credit and Investment JUDGMENT Corporation of India Bank (hereinafter referred to as the `ICICI
Bank') with effect from 10.03.2001. Consequent upon the aforesaid
merger, the appellants became the employees of the ICICI Bank.
All the appellants are retirees, having sought voluntary
retirement from the ICICI Bank. Their retirement was operative
with effect from 31.07.2003. The appellants' claim is for pension.
The instant claim emerges from the Bank of Madura Employees'
Pension Regulation, 1995 (hereinafter referred to as the `1995
Regulations'). The 1995 Regulations define the voluntary
retirement scheme in Regulation 2(ze). The same is being extracted
hereunder:
“`V.R.S.' 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 V.R.S.”
During the course of hearing, learned senior counsel for
the appellants contended, that the voluntary retirement scheme
contemplated under Regulation 2(ze), would include any other
specific scheme, that may be implemented in future, bringing such
scheme under the 1995 Regulations. It is the submission of the
learned senior counsel for the appellants, that the Early
Retirement Option 2003 (hereinafter referred to as the `ERO 2003) issued by the ICICI JUDGMENTBank on 17.06.2003, was such a scheme, which
was implemented after the promulgation of the 1995 Regulations,
and was brought within the definition of Regulation 2 (ze). In
order to substantiate the instant contention, learned senior
counsel for the appellants invited our attention to Regulation
2(zea). The same is being extracted hereunder:
“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)”
In view of Regulation 2(zea) there can be no doubt whatsoever, that
the ERO 2003 must be deemed to be a voluntary retirement scheme
within the meaning of Regulation 2(ze) of the 1995 Regulations.
Having satisfied this Court, that the appellants would be
entitled to the benefits of the 1995 Regulations, on the basis of
ERO 2003, learned senior counsel for the appellants invited our
attention to Regulation 35. The Regulation, as it was originally
framed, comprised of (iv) clauses. The same is being extracted
hereunder:
“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 JUDGMENTthe 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.
(iii) If an employee who has opted for pension dies
before the date of superannuation but after the date of
his relief under VRS, his family shall be paid family
pension subject to regulation under chapter VII of this
scheme provided the condition stipulated in regulation
35(ii) is complied with.
(iv) The pension amount shall be calculated based on
average emolument i.e. average of pay drawn by an
employee during the last ten months of his service as
per Regulation.”
After the introduction of the ERO 2003 Scheme with effect from
17.06.2003, Regulation 35 was amended so as to add thereto clause
(v). The same is being extracted hereunder:
“(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 Regulation,
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.”
The solitary question that arises for our consideration
is, whether the appellants are entitled to pensionary benefits
under Regulation 35 of the 1995 Regulations. Insofar as the instant
aspect of the matter is concerned, it is necessary to mention, that
all the appellants were in the service of the Bank of Madura when JUDGMENT the 1995 Regulations were introduced. Whilst in the employment of
the Bank of Madura options, were invited under Regulation 35 thrice
over. On the first occasion, the existing employees of the Bank of
Madura were required to exercise their option under Regulation 35,
and to indicate whether they would like to draw pensionary benefits
under the existing voluntary retirement scheme. Right to furnish
the option was to be exercised within a period of 6 months from
25.01.1995 i.e. upto 25.07.1995. The second opportunity was
afforded to the employees of the Bank of Madura on 22.07.1995. The
right to furnish the option was thereby extended for a further
period of three months from 25.07.1995 i.e. upto 25.10.1995. Yet,
again a third opportunity to furnish options was given by the Bank
of Madura to its existing employees on 01.02.1996. Through the
aforesaid Circulars, employees were required to furnish their
option under Regulation 35 of the 1995 Regulations up to
30.05.1996. It is not a matter of dispute that eversince their
induction into the service of Bank of Madura, and thereafter,
whenever options were sought under the 1995 Regulations, none of
the appellants opted for the pension scheme under Regulation 35.
No further opportunity for tendering an option, for grant
of pension under a voluntary retirement scheme, was sought after
the amalgamation of Bank of Madura with the ICICI Bank (with effect
from 10.03.2001). In sum and substance therefore, it is apparent
that even after the absorption of the appellants in the employment
of the ICICI Bank, the appellants never chose to be governed by
Regulation 35, of the 1995 Regulations.
On 17.06.2003, ICICI Bank introduced the ERO 2003 Scheme. JUDGMENT It afforded an opportunity to its employees to avail of the
voluntary retirement scheme contemplated thereunder. Eligibility
therefor was expressed in paragraph 4 of the scheme. The same is
being reproduced hereunder:
“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
organization merged with the Bank will be
considered as eligible service in terms of
respective schemes of amalgamation.”
A perusal of the eligibility clause of the scheme reveals, that an
employee who had rendered at least 7 years of service and had
attained the age of 40 years on 31.07.2003, was eligible to apply
for voluntary retirement, under the ERO 2003 Scheme. It is not a
matter of dispute, that all the appellants were eligible for
seeking voluntary retirement, under the ERO 2003 Scheme. All the
appellants actually applied for voluntary retirement, under ERO
2003 Scheme. Their applications for voluntary retirement were
submitted well before the last date i.e.31.07.2003. Consequent upon
the acceptance of their voluntary retirement, all the appellants
availed of the monetary benefits due to them under the ERO 2003
Scheme. On 10.08.2003, all monetary post retiral benefits including
provident fund, were duly paid to the appellants. Having availed of
the aforesaid benefits, the appellants raised a claim for grant of
pension under Regulation 35 of the 1995 Regulations, on 14.08.2003.
At this juncture, it is necessary to delineate the
benefits, that would flow to those who sought voluntary retirement JUDGMENT under the ERO 2003 Scheme. These benefits were expressed in
paragraph 8 of the scheme. They include “One Time Cash Benefit” (as
per paragraph 8A), “Annuity Benefit” (as per paragraph 8B), “Other
Benefits”, including group medical insurance, encashment of balance
privilege leave, amounts payable on retirement date under the
Bank's Provident, Gratuity, Superannuation Funds, and payments
under Pension/Family Pension Scheme, if any, as per the Rules of
the respective Funds/Scheme of the Bank (as per paragraph 8C).
Insofar as the benefit of pension claimed by the appellants is
concerned, the same was provided for under the heading “Pension
Benefit” in paragraph 8D of the ERO 2003 Scheme. Paragraph 8D is
being extracted hereunder:
“8D Pension Benefit
The Eligible Employees who have opted for the
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.”
A perusal of paragraph 8D of the ERO 2003 Scheme reveals, that such
employees who “have opted for the pension benefits as per the
erstwhile Bank of Madura Employees' Pension Regulations, 1995”,
alone would be eligible for pension.
The determination of the claim of the appellants would,
therefore, essentially emerge from an interpretation of Regulation
35 of the 1995 Regulations. This is so because paragraph 8D of the
ERO 2003 Scheme, mandates it as such. It is, therefore, that we
shall advert to Regulation 35 aforementioned to determine the claim
of the appellants. To draw a legitimate inference, Clauses (i) and
(ii) of Regulation 35 need to be read together. Clause (ii) of Regulation 35 relates to employees who had already retired by
accepting voluntary retirement i.e., the employees who had retired
before the promulgation of the 1995 Regulations. Such employees
were allowed to 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. We are not concerned with this clause
inasmuch as all the appellants were in service of the Bank of
Madura when the 1995 Regulations were promulgated. Clause (i) read
with Clause (ii) of Regulation 35 would reveal, that a claim for
pension, whether the employee was in service or had retired at the
time of promulgation of the 1995 Regulations, was sustainable only
on behalf of such employees “who have opted for pension”, and who
retire under a voluntary retirement scheme, governed by Regulation
2(ze)/2(zea) of the 1995 Regulations. Therefore, employees were
only to be entitled to pensionary benefits, if they had exercised
their options for pension. Concededly, none of the appellants had
exercised such option for pension under the 1995 Regulations. The
submission on behalf of the appellants was, that exercise of option
prior to the promulgation of a voluntary retirement scheme would be
inconceivable. How could one opt for what is not known? It was
therefore the contention of the learned senior counsel for the
appellants, that the question of the appellants having opted before
the VRS scheme introduced by the ICICI Bank in 2003 could not
arise, as their right to opt would emerge only when they chose to
retire voluntarily under the ERO 2003 Scheme.
It is not possible for us to accept the aforesaid
submissions of the learned senior counsel for the appellants. JUDGMENT Regulation 35 Clause (i) would make a lot of difference in terms of
evaluating the rights of the appellants. If the appellants had
exercised their option for drawing pension, then they would
simultaneously opt out of the provident fund scheme. Viewed in the
manner expressed above, option for pension assumes great
significance under Regulation 35(i). Consequent upon an employee
not exercising an express option for pension, the employer (on
behalf of the employee, as also on its own behalf) shall regularly
deduct and deposit an appropriate amount in the provident fund
account of the concerned employee. This exercise would cease
immediately on the exercise of a positive option for pension. As
already noticed hereinabove, none of the appellants had opted for
the pension under Regulation 35(i), and therefore, they continued
to be governed, for post retiral benefits, by the other
alternatives available to them.
In addition to Clauses(i) and (ii) of Regulation 35,
Clause (v) of Regulation 35, which has also been extracted
hereinabove, is also of great significance. The binding words of
Clause (v) are clear and express. The mandate is, that “an employee
who has opted for pension under the 1995 Regulations, and who opts
for retirement under ICICI Bank Early Retirement Option 2003”,
shall be eligible for pension. Clause (v) of Regulation 35 has to
be read with paragraph 8D of the ERO 2003 Scheme which provides,
that eligible employees who had opted for the pension benefit as
per the erstwhile 1995 Regulations, will be eligible for the same
as per the terms and conditions of the said Regulations. We are
satisfied that since the appellants had not opted for pension under JUDGMENT the 1995 Regulations, they are clearly disentitled to claim
pensionary benefits under Regulation 35 of the 1995 Regulations,
even after the ERO 2003 Scheme was made a part and parcel of
Regulation 2 (ze)/2(zea), and even after the amendment of
Regulation 35 by adding clause (v) thereto.
It is essential for us while determining the controversy
in hand to refer to Regulation 3(9)(a) and (b) of the 1995
Regulations, which were relied upon, on behalf of the appellants.
The same are being extracted hereunder:
“3. Application:- These regulations shall apply to
employees who, 1(a) to (8) xxxxxxxxxxxxxx
“(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.”
It was the vehement contention of the learned senior counsel for
the appellants, that exercise of option has to be with reference to
the acceptance of voluntary retirement under a voluntary retirement
scheme, and therefore, exercise of such option would be made when
the employee chooses to voluntarily retire under a voluntary
retirement scheme. It is not possible for us to accept the
contention advanced at the hands of the learned senior counsel for
the appellants, because Regulation 3(9)(b) explicitly clarifies,
that the exercise of option should be in writing within the
stipulated time expressed in Regulation 35 of the 1995 Regulations.
For the reasons recorded hereinabove, we find no merit in
these appeals and the same are accordingly dismissed. As a sequel to dismissal of the JUDGMENTappeals, the applications for intervention do
not survive for consideration, and the same are accordingly
dismissed.