The case was originally listed for hearing for 11th October, 2011

Details of the Proceedings on 11th October, 2011

ITEM NO.2       COURT NO.5    SECTION X    S U P R E M E C O U R T   O> F I N D I A
 
 RECORD OF PROCEEDINGS  WRIT PETITION (CIVIL) NO(s). 25 OF  2005
 

 N.PRADEEP KUMAR    Petitioner(s)
 
 VERSUS

 BANK OF INDIA AND ORS.   Respondent(s)

(With appln(s) for  permission to file  rejoinder  affidavit,permission to file additional documents  and  office  report) (FOR FINAL DISPOSAL)

Date: 11/10/2011 This Petition was called on  for hearing today.
CORAM :  HON'BLE MR. JUSTICE D.K.  JAIN  HON'BLE MR. JUSTICE ANIL  R. DAVE

 For Petitioner(s) Mr. N Pradeep Kumar, in Person
For Respondent(s) Mr. C.U. Singh,Sr. Adv.  Mr. Lalit Bhasin, Adv.  Mr. Mudit Sharma, Adv. Ms. Priyanka Gupta, Adv. Ms. Shreya, Adv  Ms. Nina Gupta, Adv.  Ms. Bina Gupta,Adv.

 UPON  hearing counsel the Court made the following
 O R D E R
 During   the course   of arguments, it has been  brought to our  notice that on 25th August, 2005, while  agreeing to avail  of the benefit of revision of pension  in terms of 8th  bipartite settlement, the petitioner had  given an  undertaking in the following terms :
"I am also aware  that revised  pension being paid to me shall be  effective 01.05.2005   and that no arrears prior to said date and/or
difference in commutation is payable  to me."
 

 Thus, the   plea of learned  counsel for the respondent- bank is that having enjoyed the benefit of  the revision of pension, the petitioner cannot be  permitted to resile  from the  said undertaking  after almost lapse of two years and that too by filing an  application in this writ petition seeking, permission  to place on record the said undertaking by way of an  additional document.
 

 In  this  application, the  petitioner  has stated  that the said undertaking had been obtained  by the bank  under  force, duress and
 coercion.  Faced with the  situation, the petitioner, who appears in  person, prays  for time  to cite  some precedents on the said issue.

CIVIL ORIGINAL JURISDICTION

 WRIT PETITION (CIVIL) NO. 25 OF 2005

 N. PRADEEP KUMAR                           --          PETITIONER

                                 VERSUS

 BANK OF INDIA & ANR.                      --           RESPONDENTS

                                            O R D E R

 1. By this writ petition, filed under Article 32 of the Constitution of India, the petitioner, who took voluntary retirement from the service of Bank of India, respondent No.1 herein, on 15th December,2000, prays for a direction to the bank, for revision of his pension in terms of the 7th Bipartite settlement (wage settlement)dated 27th March, 2000, entered into between the Managements of 55 `A' Class banks with   their workmen which commenced w.e.f.1st November, 1997.It is further prayed that the petitioner be paid pension @ 50% of the average pay of the immediately preceding 10  months on pro rata basis. There is also an ancillary prayer with   regard   to   the entitlement / eligibility of the petitioner for increase of his actual service rendered by 5 years.

2. Insofar as the ancillary prayer is concerned, the same already stands granted in favour of the petitioner by virtue of the decision of this Court in Bank of India & Anr. Vs. K. Mohandas & Ors.1.

3. The petitioner addressed us mainly on the commutation of the average emoluments, defined in Regulation 2(d) of the Bank of India (Employees') Pension Regulation, 1995 (for short `the 1995     regulations') and referred to in Regulation 38(2) of the said Regulations. However, during   the   course of hearing,   it   was brought to our notice that, after the 8th Bipartite settlement was   entered into between the Managements of the said banks, including respondent No.1 bank and their workmen, regarding revision of pension, the petitioner wrote a letter dated 25th August, 2005 to    the Management, which reads thus:-

                     "I am presently drawing Pension/Family Pension through your Cherukupalli Branch in Visakhapatnam Zone and my pension reference no. is S/F S4442 (Old  Ref. No.B7/VR5/33).  

                     I am eligible to get increase in monthly pension being paid to me on account of the recent revision in the Pension payable to the bank's employees.   I request you to pay me such revised pension, at your earliest. I understand that you are agreeable to release such revised pension,  effective 01.5.2005, pending compliance of legal formalities connected with such revision, subject to my furnishing letter of authority/undertaking  authorizing you to make recoveries of excess payments made if any to me while giving the revised pension on an adhoc basis.

                     Accordingly, I hereby irrecoverably authorize you to make any recoveries /adjustments out of my  future pension, if it is revealed at any time that I have been paid such increased pension wrongly. I undertake to repay the amount immediately on demand, in lump sum. This undertaking/authority is irrevocable   and   binding    upon   me/my   legal heirs/nominees as well.

    I am also aware that revised pension being paid to me shall be effective 01.05.2005 and that    no arrears prior to said date and/or difference in commutation is payable to me."

4. Emphasizing on the last paragraph of the letter, learned senior counsel appearing for the bank submits that, having agreed not to   claim any arrears prior to 1st May, 2005 and having availed of the benefits    of   the   enhanced   revised   pension,   the   petitioner   is  estopped from pressing this petition with the aforesaid prayers.

  It is pointed out that the said letter had been written by the petitioner to the bank much after the filing of the present writ   petition.

  5. Confronted with the situation, the petitioner, who appears in person, submits that, apart from the fact that the said letter had been obtained by the bank under force, duress and coercion,     the statement in the letter to the effect that he was aware that no arrears prior to 1st May, 2005 were payable to him, being contrary to the `1995 regulations', cannot be used against him.     It is asserted that since the petitioner was in a  distressing situation, he was unable to resist the offer made  by the bank. In support of this proposition, the petitioner     has relied on the decisions of this Court in Pawan Alloys &  Casting Pvt. Ltd. Meerut Vs. U.P. State Electricity Board &  Ors.2 and Central Inland Water Transport Corporation Ltd. & Anr. Vs. Brojo Nath Ganguly & Anr.3

6. We are unable to persuade ourselves to agree with the petitioner and are of the view that in the light of the afore-extracted letter dated 25th August, 2005, he cannot be permitted to pursue       this petition for more than one reason.

    Firstly,  the question whether or  not the said   letter was written by  the petitioner under   coercion      etc.,    is    a   disputed question of fact, which cannot be gone into in a writ petition under Article 32 of the Constitution. Secondly, the petitioner, who took voluntary retirement from the bank is neither an illiterate nor an ignorant  person. He   has   been   in   the    service   of    the   bank     on   a reasonably high post for a long time and was in a position to appreciate the terms of all the bipartite settlements arrived at between the bank's association and their employees and has in fact availed benefits under the subsequent bipartite settlements. We are convinced that the said letter was written by the petitioner with a clear understanding of its implications.     We, thus, find substance in the objection raised on behalf of the respondent-bank that, in the light of the said letter, which in fact, has all the attributes of an undertaking, the petitioner cannot now be permitted to resile from the same.

7. In view of the above, we are constrained to dismiss the writ   petition on that short ground.    We order accordingly. Rule is discharged.

                                      (D.K. JAIN, J.)

                                     (ANIL R. DAVE, J.)

NEW DELHI;

OCTOBER 12, 2011.

ITEM NO.1(PH)                   COURT NO.5            SECTION X

              S U P R E M E    C O U R T   O F    I N D I A

                            RECORD OF PROCEEDINGS

                       WRIT PETITION (CIVIL) NO(s). 25 OF 2005

N.PRADEEP KUMAR                                      Petitioner(s)

                    VERSUS

 BANK OF INDIA AND ANR.                               Respondent(s)

 (With appln(s)  for permission to    file  rejoinder affidavit, permission to file additional documents and office report) (FOR FINAL DISPOSAL)

Date: 12/10/2011    This Petition was called on for hearing today.

CORAM :

          HON'BLE MR. JUSTICE D.K. JAIN

          HON'BLE MR. JUSTICE ANIL R. DAVE

For Petitioner(s)       Mr. N Pradeep Kumar, in Person

For Respondent(s)       Mr.   C.U. Singh,Sr. Adv.

                        Ms.   Nina Gupta, Adv.

                        Mr.   Mudit Sharma, Adv.

                        Ms.   Priyanka Gupta, Adv.

                        Ms.   Shreya, Adv.

                        Ms.   Bina Gupta,Adv.

             UPON hearing counsel the Court made the following

                                 O R D E R

                    Court Master                   Court Master