Brijendra Singh vs State Of U.P.Through The Secy. To ...
2017 Latest Caselaw 1481 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 3
 

 
Case :- SERVICE BENCH No. - 398 of 2004
 

 
Petitioner :- Brijendra Singh
 
Respondent :- State of U.P. and others
 
Counsel for Petitioner :- Shachindra Pratap Singh
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Virendra Kumar-II,J.

1. Heard Sri Shachindra Pratap Singh, learned counsel for petitioner and learned Standing Counsel for respondents.

2. This writ petition is directed against judgment and order dated 23.10.2003 passed by Public Services Tribunal, Lucknow (hereinafter referred to as 'Tribunal') in Claim Petition No.302 of 1998 whereby Tribunal has dismissed aforesaid claim petition filed by claimant.

3. Facts in brief are that claimant was appointed on 23.10.1973 as 'Smallpox Supervisor' in department of Medical Health and Family Welfare. After completion of 20 years of service, petitioner submitted an application dated 21.10.1993 seeking voluntary retirement, as per Fundamental Rule 56. However, petitioner did not receive any reply. Therefore, he sent another letter dated 05.06.1997 requesting that now he is fit to perform duty and may be permitted to join duty after getting medically examined.

4. Thereafter, petitioner received a notice dated 13.09.1997 requiring to show cause why his absence from duty be not treated as wilful and unauthorised absence and he be removed from service. Petitioner submitted letter dated 10.09.1997 informing that he has already submitted request for voluntary retirement on 21.10.1993, in respect thereof, nothing was done. Thereafter, he again requested to join service and if department is not inclined to permit rejoin pursuant to letter dated 05.06.1997, his application for voluntary retirement may be accepted.

5. Chief Medical Officer, Fatehpur sent letter dated 24.09.1997 informing that petitioner's letter dated 21.10.1993 was not traceable/available, therefore, he should tell as to when such letter was given and where.

6. Petitioner again requested vide letter dated 17.10.1997 for acceptance of application for voluntary retirement as prayed vide letter dated 21.10.1993.

7. Chief Medical Officer vide letter dated 09.03.1999 treated and read letter dated 21.10.1993 as that of "resignation" and accepted the same. This is the order, which was challenged by petitioner before Tribunal on the ground that respondents, particularly Chief Medical Officer, has illegally treated request of petitioner for "voluntary retirement" as "resignation" so as to deny all accrue benefits to petitioner which are vested in him after working for a long period of 20 years and above. Therefore, impugned order dated 09.03.1999 is patently illegal and respondents should treat petitioner as voluntary retired with all consequential benefits.

8. Learned counsel for petitioner has submitted that request was for voluntary retirement, but respondent has illegally read/understood and accepted request of petitioner for voluntary retirement as "resignation" and not voluntary retirement.

9. The question is "whether it is evident from various letters sent by petitioner that he sought "voluntary retirement" or "resignation"?"

10. First letter dated 21.10.1993 contains subject as 'voluntary retirement from government service'. The contents of letter read as under :-

fuosnu gS fd eSa dqN vifjgk;Z ifjfLFkfr;ksa o'k vc vkSj foHkkx dh lsok djus esas vius dks vleFkZ ik jgk gwWA blfy;s fnukad 31 fnlEcj 1993 ls esjk LoSfPNd lsok fuo`fRr izkFkZuk i= Lohdkj djus dh d`ik djsaA

vr% vkils vuqjks/k gS fd fnukad 31-12-93 dks dk;ZHkkj lkSius gsrq okafNr vkns'k ikfjr djus dk d"V djsa rFkk LosPNk ls lsok fuo`Rr Lohd`r gksus ds QyLo:i fu;ekuqlkj izkIr gksus okys leLr ns; dh ;Fkk'kh?kz Hkqxrku djus dh d`ik djsaA

It is requested that due to some inevitable circumstances, I am finding myself incapable to serve the department further. Therefore, kindly like to accept my application for voluntary retirement with effect from 31 December 1993.

Therefore you are requested to pass the order required for handing over the charge on 31.12.93 and pay all the retirement dues at the earliest which are admissible as per rule in consequence of voluntary retirement being allowed.

(Translation by Court)

11. Second letter is dated 10.09.1997 in which also, with reference to letter dated 21.10.1993, in first para, he has used the word 'voluntary retirement'. The contents of aforesaid letter read as under :-

d`i;k vius i=kad&lh0,[email protected] [email protected]@97&[email protected]] fnukad 13-8-1997 dk lUnHkZ ysus dk d"V djsaA

bl lEcU/k esa voxr djkuk gS fd dqN vifjgk;Z ifjfLFkfr;ksa o'k eSa vkidks lEcksf/kr mfpr ek/;e ls vius izkFkZuk i= fnukad 21 vDVwcj 1993 ds }kjk jktdh; lsok ls LosPNk ls R;kx i= izHkkjh fpfdRlkf/kdkjh] izk0Lok0dsUnz xksiky xat dks iathd`r i= }kjk izsf"kr fd;k Fkk ftlesa fnuakd 31 fnlEcj 1993 rd izR;sd n'kk esa R;kx i= Lohd`r fd;s tkus dk vuqjks/k fd;k FkkA bldh iqf"V gsrq eSaus ekl fnlEcj 93 esa gh iqu% dk;ZHkkj xzg.k fd;k fdUrq R;kx&i= Lohd`r gks tkus dh iqf"V u gks ldus ds dkj.k rFkk vU; ifjfLFkfro'k eq>s iqu% vodk'k ij tkuk iM+kA

iqu% vodk'k ij tkus ds ckn ls fnukad 16-1-94 rd fujUrj izkFkZuk i= bl vis{kk ls izsf"kr djrk jgk fd R;kx i= Lohd`r gks tkus dh lwpuk fof/kor izkIr djk nh tk;sxhA fdlh Hkh Lrj ls dksbZ lwpuk izkIr u gksus ds dkj.k fnukad 5-6-97 dks iathd`r i= }kjk iqu% dk;ZHkkj xzg.k djkus gsrq vuqjks/k fd;k FkkA fdUrq ;ksxnku izLrqr djus dh vuqefr iznku djus ds ctk; vkius mi;qZDr lUnfHkZr i= }kjk fujk/kkj vkjksi yxk;s gSa tks ekU; ugha gSA

vr,o vki ls iqu% vuqjks/k gS fd esjs LoSfPNd R;kxi= dks fof/kor Lohd`r djus dh d`ik djsa vFkok iqu% dk;ZHkkj xzg.k djus dh vuqefr iznku djus dh vuqdEik djsaA

May kindly have the reference of your letter No. C.M.O./ Aarop patra/ Sthan/ 97-98/ 1825, date 13.08.1997.

In this regard, it is to bring to your knowledge that due to some inevitable circumstances, I had dispatched my application dated 21 October 1993, addressed to you through proper channel for voluntary retirement from Government service through registered post in favour of In-charge Medical Officer, P.H.C. Gopal Ganj wherein it was requested that under any condition, the resignation should be accepted by 31 December 1993. For its confirmation, I took over the charge again in December 93 but due to non-confirmation of acceptance of resignation and other circumstances, I had to proceed on leave.

After proceeding on leave again, I kept on sending the applications continuously up to 16.1.94 in this anticipation that the information of acceptance of resignation would be duly acknowledged. Because of not receiving any information from any level, on 5.6.97, I requested to get me take over the charge again through a registered letter. But, instead of granting permission to offer my services, you have leveled baseless charges through aforementioned letter, which are not admitted.

Therefore, you are again requested to duly accept my voluntary resignation or else grant permission to take over the charge again.

(Translation by Court)

12. Third letter is dated 17.10.1997, sent by petitioner and contents thereof are reproduced as under :-

vkids i=kad&lh0,[email protected]'k [email protected]&[email protected] fnukad 24-9-97 ds lanHkZ esa dguk gS fd eSaus 21-10-93 ds i= }kjk 31-12-93 ls LosPNk ls lsokfuo`Rr gsrq izkFkZuk i= Hkstk Fkk] ftldh Nk;k izfr vkidks lkFk esa Hkst jgk gwWA pwafd eq>s izkFkZuk i= Lohd`r gksus dh dksbZ Hkh lwpuk ugha izkIr gqbZ FkhA vr% eSaus izk0Lok0dsUnz] xksikyxat ij Tokbu fd;k FkkA vki mifLFkfr iaftdk ls lR;kfir djk ysaA

;g fd eSaus Lo;a gh vkidks y[kuÅ dk irk fn;k gS vkSj ;gha ls i=kpkj Hkh dj jgk gwWA vr% eSa vkidks fdlh Hkh izdkj ls xqejkg ugha dj jgk gwWA rFkk tks Hkh vkjksi eq> ij yxk;s tk jgs gSa og fujk/kkj gSA

;g fd esjk LosPNk lsokfuo`Rr izkFkZuk i= Lohd`r djds eq>s rnksijkUr feyus okys ns;ksa dk 'kh?kz gh Hkqxrku djus dh d`ik djsaA egku d`ik gksxhA

Regarding your letter No. C.M.O/ Adesh Patra/ 97-98/ 2135 dated 24.09.97, it is to state that I had sent application for voluntary retirement with effect from 31.12.93 through letter dated 21.10.93, copy of which is enclosed herewith. As I have not received any information regarding acceptance of the application, I had joined at P.H.C. Gopalganj. You may get it verified from the Attendance Register.

That, I myself have given you the address of Lucknow and am also making the correspondence from here itself. Therefore, I am not misleading you in any manner and whatever allegations have been leveled against me are baseless.

That, accepting my application for voluntary retirement, may kindly like to pay all the consequential dues to me as soon as possible. I shall be highly obliged.

(Translation by Court)

13. It is evident from the aforesaid that in first letter dated 21.10.1993, petitioner has very categorically stated that his request for voluntary retirement be accepted but in his second letter dated 10.09.1997 while referring to his earlier letter dated 21.10.1993, petitioner this time has used the word 'swechha se tyagpatra' i.e. 'voluntary resignation', but in third letter he has said that his request for voluntary retirement be accepted.

14. Learned Standing Counsel has contended that in letter dated 10.09.1997, petitioner has categorically used the word resignation, therefore, his intention was to resign from service and that is why it was accepted by respondents. Hence, petitioner cannot be treated to be retired voluntarily from the service.

15. Having given anxious consideration to the entire facts and circumstances of the case, we are of the view that petitioner was a para-medical class-III staff and cannot be said to be well versed in service terminology. He has used the word "voluntary retirement" in his first letter. In second letter, it appears that he could not make distinction between the words 'retirement' and 'resignation'. Therefore, referring to letter dated 21.10.1993, he has used the word "voluntary resignation". Subsequently he became wiser, very quickly, and in the next very month, he requested authority concerned to accept his application for "voluntary retirement".

16. It is not disputed by learned Standing Counsel that petitioner had completed 20 years of service. As per fundamental rule 56 he could have sought voluntary retirement preserving all retiral benefits.

17. Retiral benefit is not a bounty. It is earned by a government servant after rendering service for a particular period. Petitioner has earned retiral benefits after rendering service for a particular period and entitled to get the same, as vested in him under law.

18. If that be so, we do not find any reason, why petitioner would seek 'resignation' instead of 'voluntary retirement' when in law, he was entitled to the same with retiral benefits intact.

19. Respondents are trying to take a technical advantage of either lack of understanding on the part of petitioner or inter-changeable use of words, 'resignation' and 'retirement'. In the second letter dated 10.09.1997, though, in first letter dated 21.10.1993 and third letter dated 17.10.1997, petitioner has consistently used the words "voluntary retirement".

20. Moreover, petitioner had sought voluntary retirement w.e.f. 31.12.1993 and the same had not been objected/rejected or denied by respondents. He should have been treated to have retired on 31.12.1993 and thereafter whatever benefits would have been admissible to him under law, should have been provided to him.

21. In the present case, letter dated 21.10.1993 was not accepted. Therefore, petitioner sought permission to rejoin duty by letter dated 05.06.1997. Hence, it may be said that he withdrew his request for "voluntary retirement".

22. Then again he sent letter dated 10.09.1997 stating that his request for "voluntary resignation" be accepted or be allowed to join duty. This letter dated 10.09.1997 is a conditional letter therefore, if it is treated to be a case of 'resignation', then this letter should not have been accepted being conditional resignation.

23. Moreover, Chief Medical Officer did not advert to letter dated 10.09.1997. Petitioner sent third letter dated 17.10.1997 which should have been treated in the light of earlier two letters. No doubt, neither request for voluntary retirement nor resignation was accepted as prayed. Hence, it was not open to Chief Medical Officer to accept anything else than what was requested by last application submitted by petitioner. Letter dated 17.10.1997 is very clear and shows that he requested Chief Medical Officer to accept his "voluntary retirement".

24. In taking above view that petitioner's request should have been treated to be voluntary retirement, we find support from a recent authority in Asger Ibrahim Amin Vs. Life Insurance Corporation of India (2016) 13 SCC 797 wherein, Court has observed that difference between 'resignation' and 'voluntary retirement' is that in the later case, employee concerned having completed qualifying service is entitled for all consequential retiral benefits which may not be possible if it is a case of resignation. Court also found that employee having worked for 20 years or more is entitled to for retiral benefits. Therefore, termination of his service by 'resignation' should have been treated as "voluntary retirement". Relevant observations made in paras-16, 17, 19 and 21 are reproduced as under :-

16. What is unmistakably evident in the case at hand is that the appellant had worked continuously for over 20 years, that he sought to discontinue his services and requested waiver of three months' notice in writing, and that the said notice was accepted by the respondent Corporation and the appellant was thereby allowed to discontinue his services. If one would examine Rule 31 of the Pension Rules juxtaposed with the aforementioned facts, it would at once be obvious and perceptible that the essential components of that Rule stand substantially fulfilled in the present case. In Sheelkumar [Sheelkumar Jain v. New India Assurance Co. Ltd., (2011) 12 SCC 197] , this Court was alive to the factum that each case calls for scrutiny on its own merits, but that such scrutiny should not be detached from the purpose and objective of the statute concerned. It thus observed: (SCC pp. 206-07, paras 30-31)

"30. The aforesaid authorities would show that the court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement and while construing the statutory provisions, the court will have to keep in mind the purposes of the statutory provisions.

31. The general purpose of the 1995 Pension Scheme, read as a whole, is to grant pensionary benefits to employees, who had rendered service in the insurance companies and had retired after putting in the qualifying service in the insurance companies. Paras 22 and 30 of the 1995 Pension Scheme cannot be so construed so as to deprive of an employee of an insurance company, such as the appellant, who had put in the qualifying service for pension and who had voluntarily given up his service after serving 90 days' notice in accordance with sub-para (1) of Para 5 of the 1976 Scheme and after his notice was accepted by the appointing authority."

17. The appellant ought not to be deprived of pension benefits merely because he styled his termination of services as "resignation" or because there was no provision to retire voluntarily at that time. The commendable objective of the Pension Rules is to extend benefits to a class of people to tide over the crisis and vicissitudes of old age, and if there are some inconsistencies between the statutory provisions and the avowed objective of the statute so as to discriminate between the beneficiaries within the class, the end of justice obligates us to palliate the differences between the two and reconcile them as far as possible. We would be failing in our duty, if we go by the letter and not by the laudatory spirit of statutory provisions and the fundamental rights guaranteed under Article 14 of the Constitution of India.

19. The legal position deducible from the above observations further amplifies that the so-called resignation tendered by the appellant was after satisfactorily serving the period of 20 years ordinarily qualifying or enabling voluntary retirement. Furthermore, while there was no compulsion to do so, a waiver of the three months' notice period was granted by the respondent Corporation. The State being a model employer should construe the provisions of a beneficial legislation in a way that extends the benefit to its employees, instead of curtailing it.

21. We thus hold that the termination of services of the appellant, in essence, was voluntary retirement within the ambit of Rule 31 of the 1995 Pension Rules. The appellant is entitled for pension, provided he fulfils the condition of refunding of the entire amount of the Corporation's contribution to the provident fund along with interest accrued thereon as provided in the 1995 Pension Rules. Considering the huge delay, not explained by proper reasons, on the part of the appellant in approaching the Court, we limit the benefits of arrears of pension payable to the appellant to three years preceding the date of the petition filed before the High Court. These arrears of pension should be paid to the appellant in one instalment within four weeks from the date of refund of the entire amount payable by the appellant in accordance with the 1995 Pension Rules. In the alternative, the appellant may opt to get the amount of refund adjusted against the arrears of pension. In the latter case, if the amount of arrear is more than the amount of refund required, then the remaining amount shall be paid within two weeks from the date of such request made by the appellant. However, if the amount of arrears is less than the amount of refund required, then the pension shall be payable on monthly basis after the date on which the amount of refund is entirely adjusted.

25. In the present case, we are clearly of the view that it was not open to Chief Medical Officer to ignore letter dated 17.10.1997 and accept 'resignation' referring to an earlier letter dated 10.09.1997. Therefore, impugned order dated 09.03.1999 in so far as it has accepted alleged request of petitioner as resignation w.e.f. 10.09.1997 is quashed. We declare that acceptance of termination from service of petitioner shall be treated to have caused as "voluntary retirement" w.e.f. 01.02.1998 i.e. after expiry of three months from the date of request of petitioner, made for voluntary retirement, vide letter dated 17.10.1997.

26. Judgment of Tribunal taking an otherwise view also cannot be sustained. Hence, impugned judgment and order dated 23.10.2003 passed by Tribunal is hereby set aside.

27. Writ petition is allowed in aforesaid manner.

Order Date :- 31.5.2017

Chitranjan