UNITED BANK OF INDIA v. PIJUSH KANTI NANDY AND ORS

Citation: [2009] 12 S.C.R. 509

Court: Supreme Court of India

Bench: S.B. SINHA, DEEPAK VERMA

Case summary

UNITED BANK OF INDIA v. PIJUSH KANTI NANDY AND ORS.pdf

Judgment text

(2009] 12 S. C. R. 509 ...... UNITED BANK OF INDIA v. PIJUSH KANTI NANDY AND ORS. (Civil Appeal No. 5084 of 2009) AUGUST 4, 2009 [S. B. SINHA AND DEEPAK VERMA, JJ. ) ·- ' .. Service Law - Banking Service - Pension - Entitlement --+ to - Held: Respondent not entitled to pension as he did not complete the requisite qualifying service - United Bank of. India (Employees) Pension Regulations, 1995 - Regns. 2(w) and 29(5). Interpretation of Statutes - 'ejusdem generis' rule - ·Discussed. ~ Respondent voluntarily retired from appellant-bank in 1989. l'ension was introduced for employees of appellant-bank vide the United Bank of India (Employees) Pension Regulations, 1995, which gave option for pension to employees who retired from 1986 to 1993. Respondent filed application for exercising the option. The application was dismissed, purportedly since he did not complete 20 years of qualifying service.

On the date of retirement, the respondent had completed about 17 years and 10 months of actual service. He filed writ petition. The High Court computed the qualifying service of respondent by including a period of five years in terms of clause 5 of regulation 29 and allowed the writ petition. The High Court held that the ' . >( qualifying servit:e could be extended by a period of five years which not only took within its umbrage the service rendered while on duty but also service 'otherwise' rendered. In appeal to this Court, the question which arose for consideration was whether the respondent was entitled to the pensionary benefits having regard to the provisions contained in clause 5 of regulation 29 of the United Bank of India (Employees) Pension Regulations, 1995. Allowing the appeal, the Court HELD: 1. 1. 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.

[Para 17] [525-C-D] 1. 2. The period of service could not be computed by including a period of five years in terms of clause (5) of Regulation 29. 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 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. One may be in service even otherwise 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 benefits 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. The statute does not raise a legal fiction. [Para 18] [525-D-H; 526-A] AND ORS. 1. 3. 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 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 generis rule is not attracted and such broad construction as the subsequent words may admit will be favoured. [Para 18] [526-G-H; 527-A] 1. 4.

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 wol'ld 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. [Para 20] [527-G-H; 528-A] Bank of Baroda & Ors. v. Ganpat Singh Oeora (2009) 1 SCALE 168 and Indian Bank & Anr. v. N. Venkatramani (2007) 10 sec 609, distinguished. Bank of India & Anr. v. K. Mohandas & Ors. 2009 (4) SCALE 576, relied on. R & B Falcon (A) Pty. Ltd. v. Commissioner of Income Tax 2008 (8) SCALE 223; Union of India & Anr. v. Bashirbhai R. Khilji (2007) 6 SCC 16; Siddeshwari Cotton Mills (P) Ltd. v. Union of India & Anr. (1989) 2 SCC 458 and National ' :i4 7extile Corporation (M. P. ) Limited v. MR. Jadhav (2008) 7 sec 29, referred to. B. Monck v. Hilton 46 LJMC 167, referred to.

Advanced Law Lexicon; 3rd Edition, 2005 and Statutory Interpretation by Rupert Cross, referred to Case Law Reference: 2008 (8) SCALE 223 referred to Para 12 (2009) 1 SCALE 168 distinguished Para 14 2009 (4) SCALE 576 relied on Para 15 (2007) 6 sec 16 referred to Para 16 (2001) 1o sec 609 distinguished Para 17 (1989) 2 sec 458 referred to Para 18 (2ooa) 1 sec 29 referred to Para 19 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5084 of 2009. From the Judgment & Order dated 19. 09. 2005 of the High Court of Judicature at Calcutta in G. A. No. 2638 of 2003 in A. P. O. No. 256 of 2003 in A. P. O. T. No. 186 of 2003 in W. P. No. 420 of 2002. Dhruv Mehta, Yashraj Singh Deora, Mohit Abraham, T. S. Sabarish (for K. L. Mehta & Co. ) for the Appellants. Rana Mukherjee, Siddharth Gautam, Goodwill lndeevar, for the Respondents. \ The Judgment of the Court was delivered by 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) ) - (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 Lexicon' (3rd 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. Diet. )" 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 SCALI:: 168) wherein this Court was considering the provisions of the Pension of Regulations of Bank of Baroda providing for payability 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, 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 '. ' AND ORS. [S. R SINHA, J. ] purpose. ! here 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. --+ 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 ~ o( 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 Regulcttion 29 is ctpplied 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 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 UNITED BANK OF ! NOIA v. PIJUSH KANT! NANDY 523 ~ 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 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 ---1 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 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 0 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 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 UNITED BANK OF INDIA v. PIJ'USH KANT! NANDY 525 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 although not rendering any duti 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 tem1 'otherwise' in the context of the 'Regulations' shoul. d 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 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 AND ORS. [S. B. SINHA, J. ] -~ meaning must be susceptible of the import that they represent a class. If no class can be found, ejusdem generis rule is not attracted and such broad construction as the subsequent words may admit will be favoured. As a learned author puts it: ''.

)fa 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 cessatiorL "1 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. " .. ~ 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 A 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 B 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. B. B. B. Appeal allowed.