Delhi High Court
Sh. Raj Kumar vs Union Of India And Ors. on 22 September, 2017
$~23.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 8494/2017
Date of decision: 22nd September, 2017
SH. RAJ KUMAR ..... Petitioner
Through Mr. Anuj Aggarwal & Mr. Tenzing
Thinlay Lepcha, Advocates.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through Ms. Ruchi Jain, Advocate for UOI
alongwith Mr. Vivek Kumar Singh, DC,
Law, CRPF.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
SANJIV KHANNA, J. (ORAL):
The petitioner, Raj Kumar was appointed as a Cook in the
Central Reserve Police Force on 22nd May, 1989.
2. The petitioner tendered his resignation on 28th February, 2000.
3. The resignation was accepted and the petitioner was discharged
from service on 31st March, 2000.
4. The petitioner has filed the present writ petition challenging
vires of Rule 26 of the Central Civil Services (Pension) Rules, 1972,
W.P. (C) No. 8494/2017 Page 1 of 11
(Pension Rules, for short) to the extent it states that resignation from
service or post entails forfeiture of past service. The forfeiture
stipulation in Rule 26, it is submitted, violates Articles 14, 16, 19 and
21 of the Constitution.
5. The primary contention of the petitioner is that under Rule 40 of
the aforesaid Rules on compulsory retirement, the disciplinary
authority is competent to and can direct grant of pension, gratuity or
both at a rate not less than two-thirds and not more than full pension,
gratuity or both. Compulsory retirement is a penalty and, therefore, a
government servant who is penalised does not lose and cannot be
denied pension or gratuity and the same have to be paid, at least not
less than two-thirds. Reliance is placed upon the judgment of the
Madras High Court in M.K. Sivakami versus the Hon'ble Principal
District Judge and Others, Writ Petition No. 30277/2016, decided on
5th April, 2017.
6. Resignation is a voluntary act of the employee. Once accepted,
it leads to termination of the employer-employee relationship.
Resignation, therefore, has its own consequences and cannot be
equated to and is not similar to punishments imposed on the
government servant. The punishment commensurates with the
misconduct proved and established. The disciplinary and the appellate
authorities examine the question of quantum or proportionality of
punishment. In some cases, lower or lesser punishment may be
imposed, and in others, order of dismissal and removal maybe passed,
resulting in denial of pension etc.
W.P. (C) No. 8494/2017 Page 2 of 11
7. Supreme Court in LIC v. Shree Lal Meena, (2015) 17 SCC 43,
while dealing with the question whether resignation can be equated
with voluntary retirement and consequential retiral benefits, observed:
"14. We think it appropriate to reproduce the discussion from
the said judgment [J.K. Cotton Spg. and Wvg. Mills Co.
Ltd. v. State of U.P., (1990) 4 SCC 27 ...
7. From the aforesaid dictionary meanings it becomes
clear that when an employee resigns his office, he
formally relinquishes or withdraws from his office. It
implies that he has taken a mental decision to sever his
relationship with his employer and thereby put an end
to the contract of service. As pointed out earlier just as
an employer can terminate the services of his employee
under the contract, so also an employee can inform his
employer that he does not desire to serve him anymore.
Albeit, the employee would have to give notice of his
intention to snap the existing relationship to enable the
employer to make alternative arrangements so that his
work does not suffer. The period of notice will depend
on the period prescribed by the terms of employment
and if no such period is prescribed, a reasonable time
must be given before the relationship is determined. If
an employee is not permitted by the terms of his
contract to determine the relationship of master and
servant, such an employment may be branded as
bonded labour. That is why in Central Inland Water
Transport Corpn.v. Brojo Nath Ganguly [Central
Inland Water Transport Corpn. v. Brojo Nath Ganguly,
(1986) 3 SCC 156 : 1986 SCC (L&S) 429 : (1986) 1
ATC 103] this Court observed as under: (SCC p. 228,
para 111)
„111. ... By entering into a contract of
employment a person does not sign a bond of
slavery and a permanent employee cannot be
deprived of his right to resign. A resignation by
an employee would, however, normally require
W.P. (C) No. 8494/2017 Page 3 of 11
to be accepted by the employer in order to be
effective.‟
...
15. In RBI v. Cecil Dennis Solomon [RBI v. Cecil Dennis
Solomon, (2004) 9 SCC 461 : 2004 SCC (L&S) 737] , the
Court while analysing the Reserve Bank of India Pension
Regulations, 1990, observed thus: (SCC pp. 467-68, paras 10-
11)
"10. In service jurisprudence, the expressions
"superannuation", "voluntary retirement", "compulsory
retirement" and "resignation" convey different
connotations. Voluntary retirement and resignation
involve voluntary acts on the part of the employee to
leave service. Though both involve voluntary acts, they
operate differently. One of the basic distinctions is that
in case of resignation it can be tendered at any time,
but in the case of voluntary retirement, it can only be
sought for after rendering prescribed period of
qualifying service. Other fundamental distinction is
that in case of the former, normally retiral benefits are
denied but in case of the latter, the same are not
denied. ...
16. In UCO Bank v. Sanwar Mal [UCO Bank v. Sanwar Mal,
(2004) 4 SCC 412 : 2004 SCC (L&S) 699] , a two-Judge
Bench referred to the decision in Cecil Dennis
Solomon [RBI v. Cecil Dennis Solomon, (2004) 9 SCC 461 :
2004 SCC (L&S) 737] and opined thus: (Sanwar Mal
case [UCO Bank v. Sanwar Mal, (2004) 4 SCC 412 : 2004
SCC (L&S) 699] , SCC pp. 417-19, paras 6 & 9)
"... In the case of retirement, voluntary or on
superannuation, there is a nexus between retirement
and retiral benefits under the Provident Fund Rules.
Retirement is allowed only on completion of qualifying
service which is not there in the case of resignation.
When such a retiree opts for self-financing Pension
Scheme, he brings in accumulated contribution earned
by him after completing qualifying number of years of
service under the Provident Fund Rules whereas a
person who resigns may not have adequate credit
balance to his provident fund account (i.e. bank's
contribution) and, therefore, Regulation 3 does not
cover employees who have resigned. Similarly, in the
case of a dismissed employee, there may be forfeiture
of his retiral benefits and consequently the framers of
the Scheme have kept out the retirees (sic resigned) as
well as dismissed employees vide Regulation 22. ...
***
9. ... The words "resignation" and "retirement" carry
different meanings in common parlance. An employee
can resign at any point of time, even on the second day
of his appointment but in the case of retirement he
retires only after attaining the age of superannuation or
in the case of voluntary retirement on completion of
qualifying service. The effect of resignation and
retirement to the extent that there is severance of
employment (sic is the same) but in service
jurisprudence both the expressions are understood
differently. Under the Regulations, the expressions
"resignation" and "retirement" have been employed for
different purpose and carry different meanings. The
Pension Scheme herein is based on actuarial
calculation; it is a self-financing scheme, which does
not depend upon budgetary support and consequently it
constitutes a complete code by itself. The Scheme
essentially covers retirees as the credit balance to their
provident fund account is larger as compared to
employees who resigned from service. Moreover,
resignation brings about complete cessation of master-
and-servant relationship whereas voluntary retirement
maintains the relationship for the purposes of grant of
retiral benefits, in view of the past service. Similarly,
acceptance of resignation is dependent upon discretion
of the employer whereas retirement is completion of
service in terms of regulations/rules framed by the
Bank. Resignation can be tendered irrespective of the
length of service whereas in the case of voluntary
retirement, the employee has to complete qualifying
service for retiral benefits. Further, there are different
yardsticks and criteria for submitting resignation vis-à-
vis voluntary retirement and acceptance thereof. Since
the Pension Regulations disqualify an employee, who
has resigned, from claiming pension, the respondent
cannot claim membership of the fund. In our view,
Regulation 22 provides for disqualification of
employees who have resigned from service and for
those who have been dismissed or removed from
service. Hence, we do not find any merit in the
arguments advanced on behalf of the respondent that
Regulation 22 makes an arbitrary and unreasonable
classification repugnant to Article 14 of the
Constitution by keeping out such class of employees."
17. In Sheelkumar Jain v. New India Assurance Co.
Ltd. [Sheelkumar Jain v. New India Assurance Co. Ltd.,
(2011) 12 SCC 197] , the Court made a distinction between
effect of resignation and voluntary retirement while
interpreting the General Insurance (Employees') Pension
Scheme, 1995 ...
Be it noted, in the said case it has also been stated that:
(Sheelkumar Jain case[Sheelkumar Jain v. New India
Assurance Co. Ltd., (2011) 12 SCC 197] , SCC p. 206, para
30)
"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."
8. The aforesaid quotation draws distinction between the terms,
resignation, retirement on superannuation, voluntary retirement etc.
The aforesaid terms in the service law have different connotations and
consequences. Payment of pension is subject to terms of employment
and applicable rules. Resignation, in the absence of specific or implied
stipulation to the contrary, leads to forfeiture of past service under
Rule 26, and therefore, denial of pension. In case, and if we accept the
plea of the petitioner, we would be re-writing the service law and
equating resignation with other terms like voluntary retirement,
retirement on superannuation or for that matter punishment of
compulsory retirement with right to pension.
9. We do not think the petitioner can claim discrimination or
violation of Articles 14, 16, 19 or 21 of the Constitution asserting that
where punishment of compulsory retirement is imposed, employee is
entitled to pension which would be not less than two-thirds.
Resignations are entirely distinct and separate. The government
neither compels nor forces the employee to leave. On resignation, the
employee exercises his/her option and choice to leave employment.
Thereupon, the employee is free and can take up employment or do
anything he/she wants. The government, even if it wants, cannot
compel and force the employee to work for it. It is denied benefit and
advantage of the said person as an employee. Noticeably, in cases of
dismissal or removal unless otherwise stipulated, an employee would
lose his right to pension and retirement benefits. Resignation can be
given for varied reasons including employment with third party, self
employment or with the intent to avoid disciplinary proceedings.
10. Supreme Court in C. Jacob versus Director of Geology and
Mining and Another, (2008) 10 SCC 115 had observed:-
"19. ... Entitlement to pension is governed by Chapter V of
the said Rules, which enumerates the classes of pension and
conditions for entitlement. The enumerated classes of
pension are:
Classes of Pension (vide CCSP TNP
Chapter V of the Pension Rules Rules
Rules)
(i) Superannuation pension Rule Rule 32
(ii) Retiring pension Rule Rule 33
(iii) Pension on absorption in Rule Rule 34
or under a corporation, 37
company or body Rule
owned/controlled by the 37-A
State/Central Government
(iv) Invalid pension Rule Rule 36
(v) Compensation pension Rule Rule 38
owing to abolition of the
post
(vi) Compulsory retirement Rule Rule 39
(vii) Compassionate allowance Rule Rule 40
to government servants 41
who forfeit their pension
on being dismissed or
removed
20. A government servant, whose case does not fall under
any of the classes of pensions enumerated in Chapter V, is
not entitled to pension. If a government servant is not able
to make out entitlement to any class of pension specified in
Chapter V of the Pension Rules, there is no question of
having recourse to the Rules in the Chapter dealing with
regulation of amount of pension (Chapter VI of the TNP
Rules or Chapter VII of the CCSP Rules) for determining
the quantum of pension.
21. Admittedly, the petitioner was not "superannuated"; nor
was he absorbed in any corporation/company/body owned
by the State/Central Government; nor did he retire on
account of any infirmity which incapacitated him for
service; nor was he discharged on abolition of his post. Nor
is he claiming compassionate allowance (on being
dismissed/removed after putting in service of an extent
which would entitle him to pension but for the
dismissal/removal). The only other categories of pension
are compulsory retirement pension and the retiring pension.
A government servant compulsorily retired from service as
a penalty, may be granted by the authority competent to
impose such penalty, pension at a rate not less than two-
third admissible to him on the date of his compulsory
retirement. If a government servant is not otherwise
admissible to pension, he cannot obviously be granted
pension on compulsory retirement. There is no such grant in
this case. That leaves us with retiring pension.
22. Rule 33 of the TNP Rules provides that a retiring
pension shall be granted to a government servant who
retires, or is retired, in accordance with the provisions of
Rule 42 of the said Rules. Rule 42 of the TNP Rules
provides that a government servant, who under
Fundamental Rule 56(d), retires voluntarily or is required
by the appointing authority to retire in public interest shall
be entitled to a retiring pension (corresponding Rule 36 of
the CCSP Rules which provides that a retiring pension shall
be granted to a government servant who retires, or is retired,
in advance of the age of compulsory retirement in
accordance with the provisions of Rules 48 or 48-A of those
Rules or Rule 56 of the Fundamental Rules or Article 459
of the Civil Service Regulations and to a government
servant who on being declared surplus, opts for voluntary
retirement in accordance with Rule 29 of those Rules). The
provision relating to retiring pension makes it clear that a
minimum of 20 years' qualifying service is required for
retiring pension. It does not entitle a government servant to
retiring pension on completion of ten years' service.
Therefore, the petitioner is not entitled to retiring pension."
11. In the present case, as noticed above, the petitioner had himself
terminated the relationship of employer-employee way back in
February and March, 2000. Now, after a gap of nearly 16-17 years,
the petitioner claims that he should be paid pension for he had worked
for more than ten years. The representation made by the petitioner was
rejected vide order dated 9th December, 2016, which records and also
notices the periods of unauthorised absence from duty. Penalty of
confinement for 20 days to Quarter Guard and forfeiture of pay and
allowances of certain periods were imposed. The petitioner also
suffered another penalty of 30 days confinement to lines and forfeiture
of pay and allowances on account of 128 days of overstay and
desertion. The benefits and payments, in terms of the Rules, upon
resignation was paid to the petitioner way back in June and August,
2000. Another amount towards GPF payment was made on 31 st
January, 2001. Pension and other retirement benefits on retirement
were denied, as they were not granted on resignation. This was
accepted.
12. In view of the aforesaid position, we are not inclined to issue
notice in the present writ petition. Assuming the right to pension is a
continuing cause of action, even on merits, we do not think the matter
requires a detailed examination and consideration. The writ petition is
dismissed.
SANJIV KHANNA, J.
NAVIN CHAWLA, J.
SEPTEMBER 22, 2017
VKR
