Mohammad Rafiq, J. - (1.) THIS writ petition has been preferred by petitioner Hari Singh Kasinbar with the prayer that by issuing a writ of mandamus, order dated 28/2/2011 (ASnn. 3) passed by the respondents be quashed and set -aside and respondents be directed to accept his option for pension scheme as formulated by its Board of Directors in their meeting held on 21/8/2010 and grant him all consequential benefits. Petitioner was appointed as Clerk in the respondent Bank on 22/3/1982. He was promoted on the post of Computer Operator in the year 2001. While working with the Branch of the Bank at Bharatpur in 2001, he on attaining the age of superannuation retired on 21/1/2001. By a bipartite settlement took place between the workman and the bank authorities in April 2010, a new pension scheme was formulated and the same was duly approved by the Board of Directors of the Bank in its meeting held on 21/8/2010. According to the same scheme, an employee willing to avail the pension was required to opt to become a member of the pension fund and submit his option form within time stipulated before 31/10/2010 as per the stipulation made in the said settlement. A Circular bearing No. 2690 was issued on 27/8/2010 whereby, all the branch managers and head of the departments were required to take action in order to give wide coverage to the new pension scheme by different given modes and provide the copy of the option form to the retired employees at their last known addresses as per the said Circular dated 27/8/2010 so as to enable them to exercise an option in writing within sixty days from the date of offer to become a member of the pension fund. In terms of clause 4 of the said circular, another option for joining existing pension scheme came to be extended for the categories mentioned under the said clause, which includes the employees/officers, who were in the services of the bank prior to 29/9/1995 and retired after that date but prior to 27/4/2010, the date on which the aforesaid settlement was arrived at. The only condition to become the member of the pension fund as per clause 4(ii)(c) was that the retired employees were supposed to refund the entire amount of the bank's contribution to the Provident Fund and interest accrued thereon received by the employee/officer on retirement together with his share in contribution towards meeting 30% of the funding gap amounting to 56% of the bank's contribution to the Provident Fund and interest accrued as per the terms and conditions set out in the settlement/joint note dated 27/4/2010 within thirty days after expiry of the aforesaid period of sixty days.
(2.) SHRI Saransh Saini, learned counsel for the petitioner has argued that it was enjoined upon all the branch managers and head of the departments to bring the said circular to the notice of all the staff members by giving it wide coverage to avail the pension scheme and in case of retired employees, to send the communication to this effect to their last known address. Learned counsel for the petitioner in this connection has drawn attention of the court towards a note given below clause 15 of the Circular dated 27/8/2010 (Ann. 1), which has given modes for wide coverage of such circular namely; (i) copy of the circular should be displayed on the notice board at the Branch Office, (ii) copies of the circular to be sent to the local retired employees' associations and (iii) in case of retired employees/family of the eligible expired employees, a copy of the option form may be sent to last known address. Learned counsel for the petitioner has argued that no information whatsoever was given to the petitioner at any point of time that he was required to opt for pension scheme nor option form was ever supplied to him. Petitioner came to know about the pension scheme and the option given to the retired employees only when after retirement, he visited the branch office in February 2010. Petitioner immediately submitted an application to the Branch Manager on 21/2/2011 stating that he was not informed about the pension scheme despite the mandatory obligation on the part of the concerned branch office to supply him such option form. Branch Manager forwarded the application of the petitioner with his recommendation to the Regional Office vide Ann.2 on 21/2/2011 itself. Petitioner received a letter from the CIBER Manager, Regional Office on 28/2/2011 informing that his option has not been accepted because it was received after the cut -off date i.e. 30/10/2010. Learned counsel argued that had the respondents informed petitioner about requirement of exercising option,. there was no reason for the petitioner not to exercise the option in time. In any case, whatever amount petitioner was required to refund would be accompanied by the interest and therefore for the corresponding period of delay also, petitioner is ready to pay the interest, which delay in any case is not attributable to the petitioner. Per contra, Shri Rupin Kala, learned counsel for the respondents has opposed the writ petition and argued that pension scheme of the respondent bank was available as a retirement benefit and governed by the Union Bank of India (Employees) Pension Regulations, 1995 (for short, the "Regulations of 1995"), which came into force w.e.f. 29/9/1995. Petitioner was required to opt for the pension scheme but he did not opt the same within the prescribed period of 120 days in terms of Regulation 3(b) of the Regulations of 1995 when it was circulated by the bank. Petitioner opted for Contributory Provident Fund instead of the pension at the relevant time. He took voluntary retirement under bank's special Voluntary Retirement Scheme 2001. Otherwise also, a definite benefit Scheme was proposed and formulated for pension in the banking industry in the year 1993 on the basis of settlement arrived at between the Indian Banks' Association, representing members Banks and All India Bank Employees Association. Under the said scheme, retired employees and families of deceased employees, retired/expired on or after 1/1/1986 till 31/10/1993, including the existing employees/officers on the bank's roll as on 31/10/1993, were given an option to opt for pension instead of Contributory Provident Fund by exercising option for availing the benefit of pension within the stipulated time. The bank brought the Instruction dated 28/5/1994 in the matter with option forms in which the existing employees and retired employees were required to exercise their option. Initially, the time limit for exercising such option was till 30/9/1994 but it was subsequently extended till 30/11/1994. The said pension scheme of 1993 got its final shape in the year 1995 as the statutory Regulation governing pension to the employees of the respondent bank when in exercise of powers conferred by clause (f) of sub -section (2) of Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 170, the Board of Directors of the Union Bank of India with the concurrence of the Reserve Bank of India and prior sanction of the Central Government, approved the Regulations, which was notified in the official Gazette of India on 29/9/1995. The Indian Banks' Association pursuant to the settlement/joint note dated 27/4/2010 came out with a notice to all concerned, which was published in various newspapers across the country both with the regional and national circulation. Respondent bank came out with Circular No. 5690 dated 27/8/2010 in this regard, which was widely circulated and displayed on the notice boards of the branches/offices of the bank. The last date for exercise of the option in terms of the aforesaid instruction Circular was 30/10/2010. Larger number of eligible employees/retired employees/widow of deceased ex -employees exercised option for pension and those who did not, continued to remain members of the Contributory Provident Fund Scheme.
(3.) LEARNED counsel in support of his arguments has relied on the judgment of Supreme Court in Union of India and others v. M.K. Sarkar : : (2010) 2 SCC 59 and argued that the Supreme Court held therein that when a scheme stipulates that benefits thereunder will be available only to those who exercise the option within a specified time, option should obviously be exercised within such time. Learned counsel for the respondents has also placed reliance upon another judgments of the Supreme Court in Pepsu Road Transport Corporation, Patiala v. Mangal Singh and others : : (2011) 11 SCC 702, Sunil Poddar and others v. Union Bank of India : : (2008) 2 SCC 326 and Government of Andhra Pradesh and others v. P. Laxmi Devi (Smt) : : (2008) 4 SCC 720. In so far as judgment of the Supreme Court in P. Laxmi Devi (Smt) supra is concerned, it is argued that in view of use of the word "has to be construed as mandatory in nature", in the present case, option was required to be exercised mandatorily within time stipulated. Reliance has also been placed on yet another judgment of the Supreme Court in Som Mittal v. Government of Karnataka : : (2008) 3 SCC 753 : 2008(4) RLW 3005 (SC) to the same effect.;