Ram Chander vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1890 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner was enrolled as a Washerman in the Border Security Force on 19.2.1990. After training, he was posted to 161 Battalion of the Border Security Force (hereinafter referred to as 'the Force'). He had put in 8 years of service in the said battalion where after he was posted to 42 Battalion of BSF at Bikaner in June 1997. On 6.12.2001, the petitioner received an information that his father had expired, thus, he requested for one month's leave for performing the rituals connected with the death of his father. But the respondent only granted him 15 days leave and on 10.12.2001, he left from Abhore in Punjab to his home town. The petitioner was the only working member of the family and he had to per force overstay the leave and the petitioner joined the Unit on 2.1.2002 after overstaying his leave by 8 days. The petitioner accepted his guilt and prayed for mercy and regularisation of 8 days extra leave. On 26.3.2002, the petitioner was returning from leave when he was pick-pocketed in the train where his identity card was taken away at Bhadra Railway Station. The petitioner got down from the train and lodged an FIR on the said date. The Commandant of 42 Battalion, BSF ordered a Court of Inquiry to investigate the loss of the identity card. However, on the same day the petitioner was called in the Office of the Commandant and was threatened by him and told that he should put up his papers to go on discharge. In spite of the refusal of the petitioner, he was forced to sign on a blank paper on the same day and was discharged from service. His discharge was a shock to him as it was in furtherance to the blank papers being got signed from him by the Officers. The petitioner made his best efforts to get reinstatement with different authorities of the respondent, but of no consequence. Finally on 10.8.2004, the petitioner gave a legal notice to the respondents through his counsel which was not even responded to by the said respondents resulting in filing of the present writ petition. Thus, under this writ petition under Article 226 of the Constitution of India the petitioner prays for quashing of the order dated 26.3.2002 as being illegal and arbitrary. He further prays that he should be reinstated into the service with all benefits.

2. According to the respondents, the petitioner had not approached the Court with clean hands and has filed the writ petition on incorrect averments. Besides that, the petition also suffers from the defect of delay and latches as the petitioner had resigned from service in March 2002 and had filed the present writ petition only after lapse of period of 3 years. The other facts are not disputed but it is stated that the petitioner submitted the application for resignation from service on 25.3.2002 which was accepted by the Commandant vide order dated 26.3.2002 and in terms of Rule 19 of the BSF Rules, 1969 and the office order, the petitioner was not entitled to receive any pensionary benefits as they were denied by the competent authority. A Court of Inquiry was ordered on 26.3.2002 which was completed on 31.3.2002 and a warning letter was issued to the petitioner to be more careful. The petitioner had earned 7 bad entries on various occasions due to 'absence without leave' and 'intoxication' in his 12 years of service, which proved him as an indisciplined person. In spite of punishment, he could not improve. It is denied that the petitioner was discharged from service arbitrarily and forcibly. It is stated that he had resigned from the service voluntarily and the present petition is liable to be dismissed.

3. At the very outset, we may notice that in reply to paragraph 4 of the counter affidavit, i.e. with regard to the 7 bad entries due to 'unauthorised absence' and 'intoxication' in 12 years of service, the same has not been denied by the petitioner in his rejoinder and it is stated "no comments being factual". The petitioner admittedly overstayed the leave granted to him and did not join the Unit till 26.3.2002. He lost his identity card and thereafter he submitted a resignation which was accepted by the authorities. The only ground raised in the present writ petition is that the resignation is not voluntary but is a result of undue pressure and threat given by the Commandant to the petitioner and as such the order of discharge passed on such basis is unsustainable and the petitioner would be entitled to reinstatement with all benefits. It is also stated in the alternative that even if the petitioner's resignation is accepted, still the petitioner would be entitled to receive the pension. This argument was raised in the Court but no such relief has been claimed by the petitioner in the writ petition. The order dated 26.3.2002 reads as under:

ORDER

As approved by the Commandant, resignation tender by No. 90161011 W/M (E/F) Ram Chander of 'D' Copy of this unit is accepted hereby accepted with effect from 31.03.2002 (AN) on his own request without any pensionary benefits under Rule-19, BSF Rule-1969.

2. He is not entitled to get any pensionary benefits under any of the provisions of CCS (Pension) Rules as per order of the Hon'ble Supreme Court of India dated 30.03.2001.

3. He will be struck off strength of this unit with effect from 31 Mar 2002 (AN).

Sd/-

No.Estt/42Bn/Resign/RC/2002/3930-36 (JAI RAM SINGH)

Dated, the 26 Mar 2002. DY COMDT/ADJUTANT

FOR COMMANDANT

42 BN BSF

26 Mar 2002

4. The above order was passed in furtherance to the resignation submitted by the petitioner. During the course of hearing, the respondents had even produced the original resignation, submitted by the petitioner on 25.3.2002. This resignation was written in Hindi and was duly signed by the petitioner. The petitioner made no attempt or effort to withdraw his resignation at any subsequent time. In fact, he has not withdrawn the said resignation, even till date, on the ground that it was got signed from him under duress or threat. On the contrary, the petitioner had also, a day or two later, signed a 'No Objection' or 'No Claim' Certificate in regard to pension etc. Duress, Coercion or threat would render a document, executed in furtherance to such an act, as bad only if the petitioner is able to discharge his onus by making specific averments, and at least, prima facie, establishing the same by documentary or other circumstances. In the present case, the petitioner took no steps to withdraw the said resignation at any subsequent stage. In fact, having been discharged as back as on 26.3.2002, the petitioner ought to have reacted to such an action of duress and threat of the respondents, immediately after he was away from the influence of the respondents. That would have been the normal conduct of any person with common prudence. Having failed to take such a step, the petitioner cannot take advantage of his own wrong.

5. The other contention raised on behalf of the petitioner that despite his resignation, the petitioner would be entitled to get the pension in terms of Rule 49 of the Central Civil Services (Pension) Rules and the Office Order relied upon by the respondents, is equally without any merit. We need not really dilate on this contention as the same is squarely covered by the judgment of the Supreme Court in the case of Union of India v. Rakesh Kumar , where the Supreme Court held as under:

It only provides that if a member of the force who resigns and to whom permission in writing is granted to resign then the authority granting such permission may reduce the pensionary benefits if he is eligible to get the pension. Therefore, by erroneous interpretation of the rules if pensionary benefits are granted to someone it would not mean that the said mistake should be perpetuated by direction of the Court. It would be unjustifiable to submit that by appropriate writ, the Court should direct something which is contrary to the statutory rules. In such cases, there is no question of application of Article 14 of the Constitution. No person can claim any right on the basis of decision which is de hors the statutory rules nor there can be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship. If rules are not providing for grant of pensionary benefits it is for the authority to decide and frame appropriate rules but Court cannot direct payment of pension on the ground of so-called hardship likely to be caused to a person who has resigned without completing qualifying service for getting pensionary benefits. As a normal rule, pensionary benefits are granted to a government servant who is requred to retire on his attaining the age of compulsory retirement except in those cases where there are special provisions.

In the result, there is no substance in the contention of the learned Counsel for the respondents that on the basis of Rule 49 of the CCS (Pension) Rules or on the basis of G.O., the respondents who have retired after completing qualifying service of 10 years but before completing qualifying service of 20 years by voluntary retirement, are entitled to get pensionary benefits. Respondents who were permitted to resign from service under Rule 19 of the BSF Rules before the attainment of the age of retirement or before putting such number of years of service as may be necessary under the Rules, to be eligible for retirement are not entitled to get any pension under the provisions under CCS (Pension) Rules. Rule 49 only prescribed the procedure for calculation and quantification of pension amount. The G.O. dated 27.12.1995 does not confer any additional right of pension on the BSF employees.

6. Thus, the contention of the petitioner that the petitioner would be entitled to receive pension despite his resignation cannot be accepted. Rule 19 of the Border Security Force Rules read with Rule 26 of the CCS (Pension) Rules and the office order clearly indicates that in the event a person resigns from service, unless otherwise the resignation is permitted to be withdrawn in public interest, it would entail forfeiture of past service. The expression 'Entail' in its common parlance is understood as something which is "necessary or inevitable'. The Black's Law Dictionary by Bryan A Garner (8th Edition) defines the word 'Entail' as "To make necessary; to involve, To limit the inheritance of (an estate) to only the owner's issue or class of issue, so that none of the heirs can transfer the estate. 'Entail' in relation to 'estate' as described in 'The Law Lexicon', 1997 Edition by Justice Y.V. Chandrachud is "An estate settled with regard to the rule of its descent". The Law Lexicon cum Digest by N.M. Mulchandani, Advocate describes the word 'Entail' as "To limit the passage of an estate to a specified line of heirs." The Cambridge International Dictionary of English describes the word 'Entail' as 'Formal or specialized to make (something) necessary, or to involve (something)'.

7. Thus, forfeiture of pension would be an automatic consequence. In this case, the authorities never permitted the petitioner to withdraw his resignation. In fact, no such request was made by the petitioner at any point of time. The obvious result thereof is that the petitioner is not entitled to the relief claimed in the present writ petition.

8. Consequently, this writ petition is dismissed, while leaving the parties to bear their own costs.