Madras High Court
The Director General Of Coast Guard vs Capt.Rc Rajan (Ex.Comdt 0080-E) on 29 April, 2025
Author: S.S. Sundar
Bench: S.S. Sundar, R. Hemalatha
W.A.No.1173 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 07.04.2025
Pronounced on : 29.04.2025
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MRS. JUSTICE R. HEMALATHA
W.A.No.1173 of 2022
and
C.M.P.Nos.20625 of 2022 & 2539 of 2024
The Director General of Coast Guard,
Tatrakshak Mukhalaya,
Coast Guard Head Quarters,
National Stadium Complex,
New Delhi – 110 001. ... Appellant
Vs.
Capt.RC Rajan (Ex.Comdt 0080-E)
Flat 7, Prayag Apartments,
15, I Main Road, Gandhi Nagar,
Adayar, Chennai – 600 020. ... Respondent
Prayer:- Writ Appeal filed under Clause 15 of the Letters Patent against the
order dated 10.01.2022 in W.P.No.14440 of 2009 on the file of this Court.
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W.A.No.1173 of 2022
For Appellant : Mr.ARL.Sundaresan
Additional Solicitor General
assisted by Mr.J.Madana Gopal Rao
Senior Panel Counsel
For Respondent : Mr.Rajagopal
Senior Counsel
for Mr.Vivekanandh
JUDGMENT
S.S. SUNDAR, J.
This intra Court Appeal is to set aside the order of the learned Single
Judge, dated 10.01.2022, in W.P.No.14440 of 2009, allowing the writ
petition filed by the respondent to quash the proceedings of the appellant
dated 11.05.2009 impugned in the writ petition and for consequential
reliefs.
2.Brief facts that are necessary for the disposal of this Writ Appeal are
as follows :
The respondent was a Pilot in Jet Airways. Originally, he joined the
services of Coast Guard in August, 1983. He served in the Coast Guard in
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various capacities like Staff Pilot, Squadron Commander, Commanding
Officer, Instrument Rating Examiner and Pilot Instructor. After putting in
16 long years of service without any break and having 5000 hours of flying
in his service, the respondent/writ petitioner was awarded the DGCG
Commendation, The Tatrakshak Medal for meritorious service, The
Proficiency Award and The Safety Award for accident/incident free flying
during the service in Coast Guard. The respondent had put in 16 long years
of service in Coast Guard. It is stated by the respondent that, after
completing the 16th year of service in Coast Guard, the respondent, due to
personal family circumstances, requested for transfer in Chennai. It is
stated further that, since his request for transfer was not heeded to, the
respondent wanted to voluntarily retire from service. It is further stated that
the respondent was allowed on premature release/discharge from the service
voluntarily on compassionate grounds with effect from 01.07.1999. It is
further stated that the respondent's request for premature release had been
approved by the Government with effect from 01.07.1999. However, the
respondent's request for disbursement of gratuity was rejected by the
appellant by proceedings dated 26.07.2000. Thereafter, the respondent had
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submitted various representations and finally, the respondent submitted his
request on 25.04.2009 seeking payment of gratuity. The request for
payment of gratuity was rejected by the appellant by the order dated
11.05.2009 impugned in the writ petition, for the following reasons :
“2.You were released pre-maturely on your request on
compassionate grounds under Rule 27 of CG (General) Rules,
1986. Your premature release/leaving service before
completion of 20 years of qualifying service do not provide for
pension/gratuity to you. In this regard, premature
release/discharge on own request is considered as 'resignation'
which entails forfeiture of past service and non-entitlement for
any gratuity as per Rule 26 of CCS (Pension) Rules, 1972.
Your case was further taken up with PCDA (N) & PCDA (P)
for re-examination (copy enclosed). However, the same was
not accepted by PCDA (P) due to the above reasons.
3.It is reiterated that your premature discharge from
service on compassionate grounds on own request is
equivalent to resignation for all practical purposes. Hence,
your request for payment of gratuity cannot be reconsidered.”
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3.Challenging the same, the respondent filed the writ petition in
W.P.No.14440 of 2009.
4.The writ petition was opposed by the appellant on the ground that
the writ petitioner is covered by Central Civil Services (Pension) Rules,
1972, (hereinafter referred to as “CCS (Pension) Rules” for brevity) and
hence, the Payment of Gratuity Act, 1972, is not applicable. It is further
stated that, as an officer in the Coast Guard, the writ petitioner cannot be
said to be an employee within the meaning of Section 2(e) of Payment of
Gratuity Act, 1972, and that therefore, the writ petitioner is not at all entitled
to the benefits available under the Payment of Gratuity Act, 1972. It is then
stated that, under Rule 26 of CCS (Pension) Rules, 1972, the writ petitioner,
having resigned from service, is not entitled to gratuity as such resignation
entails forfeiture of past services.
5.However, the learned Single Judge allowed the writ petition by
order dated 10.01.2022, holding that the writ petitioner had contributed his
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gratuity amount to the appellant Department for his 15 years 10 months and
11 days of service in Coast Guard and that he is entitled to gratuity as per
Section 4(1) of the Payment of Gratuity Act, 1972.
6.Aggrieved by the same, the respondent in the writ petition, who is
the erstwhile employer of the writ petitioner, has preferred the above Writ
Appeal.
7.Learned Additional Solicitor General appearing for the appellant
Department referred to the definition of “employee” under the Payment of
Gratuity Act, 1972, and submitted that the writ petitioner is not governed by
Payment of Gratuity Act, 1972. Referring to Sections 2, 26 and 27 of CCS
(Pension) Rules, 1972, the learned Additional Solicitor General submitted
that the order of the learned Single Judge, ignoring the non-applicability of
Payment of Gratuity Act, 1972, cannot be sustained. Learned Additional
Solicitor General relied upon the judgment of Division Bench of this Court
in a batch of cases in W.A.Nos.1687 of 2021, etc. batch, [Union of India v.
The Regional Labour Commissioner and others], dated 21.06.2023, in
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support of his arguments.
8.On the other hand, learned counsel appearing for the
respondent/writ petitioner, tried to sustain the order by showing the
reasonings of learned Single Judge while allowing the writ petition.
9.This Court carefully considered the submissions on either side.
10.Learned Single Judge proceeded on the basis that the writ
petitioner had contributed his gratuity amount to the appellant Department
for his 16 years of service in Coast Guard and that therefore, he is entitled to
gratuity as per Section 4(1) of the Payment of Gratuity Act, 1972. Of
course, Section 4(1) of Payment of Gratuity Act, 1972, states that gratuity is
payable to an employee on the termination of his employment after he has
rendered continuous service for not less than five years on his
superannuation or on his retirement or resignation or on his death or
disablement due to accident or disease. However, Section 2(e) of Payment
of Gratuity Act, 1972, reads as follows :
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“2. ... (e) "employee" means any person (other than an
apprentice) who is employed for wages, whether the terms of
such employment are express or implied, in any kind of work,
manual or otherwise, in or in connection with the work of a
factory, mine, oilfield, plantation, port, railway company, shop
or other establishment, to which this Act applies, but does not
include any such person who holds a post under the Central
Government or a State Government and is governed by any
other Act or by any rules providing for payment of gratuity.”
11.Question is whether the appellant is governed by any other Act or
Rule providing for payment of gratuity.
12.In the said context, CCS (Pension) Rules is relevant. Rule 2 of
CCS (Pension) Rules applies to Government servants including Civilian
Government Servants in the Defence Services appointed substantively to
civil services and posts in connection with the affairs of the Union which
are borne on pensionable establishments. The Coast Guard is not an
establishment which is excluded from CCS (Pension) Rules. The CCS
(Pension) Rules specifically provide for not only pension, but also gratuity.
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Under CCS (Pension) Rules, every Government servant who is covered by
CCS (Pension) Rules and who has completed 5 years of qualifying service,
and who is eligible for pension under CCS (Pension) Rules, is eligible for
gratuity. Therefore, this is a case where the respondent is governed by CCS
(Pension) Rules which specifically provide for payment of gratuity.
Therefore, the respondent would not come under the definition of an
“employee” as under Section 2(e) of Payment of Gratuity Act, 1972. When
Section 4(1) of Payment of Gratuity Act, 1972, is not applicable to the
respondent, the learned Judge is not right in granting relief based on Section
4(1)(p) of Payment of Gratuity Act, 1972.
13.Secondly, the learned Additional Solicitor General also relied upon
Rule 26 of CCS (Pension) Rules which reads as follows :
“26.Forfeiture of service on resignation Footnote :
(1) Resignation from a service or a post, unless it is
allowed to be withdrawn in the public interest by the
appointing authority, entails forfeiture of past service.
(2) A resignation shall not entail forfeiture of past
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service if it has been submitted to take up, with proper
permission, another appointment, whether temporary or
permanent, under the Government where service qualifies.
(3) Interruption in service in a case falling under sub-
rule (2), due to the two appointments being at different
stations, not exceeding the joining time permissible under the
rules of transfer, shall be covered by grant of leave of any kind
due to the Government servant on the date of relief or by
formal condonation to the extent to which the period is not
covered by leave due to him.
(4) The appointing authority may permit a person to
withdraw his resignation in the public interest on the following
conditions, namely :-
(i) that the resignation was tendered by the
Government servant for some compelling reasons which
did not involve any reflection on his integrity, efficiency
or conduct and the request for withdrawal of the
resignation has been made as a result of a material
change in the circumstances which originally compelled
him to tender the resignation ;
(ii) that during the period intervening between the
date on which the resignation became effective and the
date from which the request for withdrawal was made,
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the conduct of the person concerned was in no way
improper ;
(iii) that the period of absence from duty between
the date on which the resignation became effective and
the date on which the person is allowed to resume duty
as a result of permission to withdraw the resignation is
not more than ninety days ;
(iv) that the post, which was vacated by the
Government servant on the acceptance of his resignation
or any other comparable post, is available
(5) Request for withdrawal of a resignation shall not be
accepted by the appointing authority where a Government
servant resigns his service or post with a view to taking up an
appointment in or under a private commercial company or in
or under a corporation or company wholly or substantially
owned or controlled by the Government or in or under a body
controlled or financed by the Government.
(6) When an order is passed by the appointing authority
allowing a person to withdraw his resignation and to resume
duty, the order shall be deemed to include the condonation of
interruption in service but the period of interruption shall not
count as qualifying service.
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(7) A resignation submitted for the purpose of Rule 37
shall not entail forfeiture of past service under the
Government.”
14.Since CCS (Pension) Rules, 1972, govern the respondent and Rule
26 of the said Rules entails forfeiture of past services in the cases of
resignation from service or a post unless it is allowed to be withdrawn in
public interest by the Appointing Authority, this Court is unable to sustain
the view of the learned Single Judge. One of the submissions of writ
petitioner before the Writ Court is that the writ petitioner had not resigned,
but was permitted to go on premature release and that therefore, there
cannot be a forfeiture of past services. It is seen from the impugned order in
the writ petition that the writ petitioner was released prematurely on
compassionate grounds under Rule 27 of Coast Guard (General) Rules,
1986, notified by the Central Government in exercise of the powers
conferred by Sub-Section (1) read with Clauses (a), (d), (e), (f), (k) and (l)
of Sub-Section (2) of Section 123 of the Coast Guard Act, 1978 (Act 30 of
1978). Rule 27 of Coast Guard (General) Rules, 1986, reads as follows :
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“27.Procedure for discharge/release or retirement on
own request : (1) A member of the Coast Guard may, in
exceptional cases, obtain his discharge, release or retirement
from the service on extreme compassionate grounds, i.e. in
cases where it is clear that undoubted material hardship will
be caused to the member of the Coast Guard or his family
members by his retention in the service.
(2)The Central Government or the Additional Director
General may, having regard to the circumstances of any case,
permit discharge, release or retirement of an officer from the
service before attaining the age of retirement. The question of
discharge, release or retirement shall be a matter within the
discretion of the Central Government or Deputy Director
General as the case may be.
(3)The Additional Director General in the Coast Guard
Headquarters may discharge, release or retire a member of the
Coast Guard other than on officer on compassionate grounds.
(4)Application for discharge, release or retirement on
compassionate grounds shall be forwarded by the
Commanding Officer through the Regional Commander, to
Coast Guard Headquarters for further necessary action.”
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15.It is the case of the appellant that premature release/leaving service
before completion of 20 years of qualifying service does not provide for
pension/gratuity to the employee. It is also stated that the premature release
or discharge on the request of writ petitioner was considered as resignation
which entails forfeiture of past services. The writ petitioner himself
admitted that his decision to seek premature release or resignation was on
account of rejection of his request for transfer to a place very near to his
native. It is also stated in the affidavit filed by the writ petitioner that he is
compelled to go on voluntary retirement due to the family compulsion, as
his parents were under the threat of murderous attack by a convict who was
under 14 years of imprisonment. Under Rule 26 and Rule 27, even though
the term “premature release” and resignation are not specifically
differentiated under the Coast Guard (General) Rules, 1986, which
specifically deal with service, for the purpose of gratuity, Rule 26 of CCS
(Pension) Rules, cannot be excluded from application in the case of the
respondent/writ petitioner.
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16.It is true that, under Section 14 of Payment of Gratuity Act, 1972,
provisions of Payment of Gratuity Act, 1972, shall have effect
notwithstanding anything inconsistent therewith contained in any enactment
other than the Payment of Gratuity Act, 1972. However, under Payment of
Gratuity Act, 1972, gratuity is payable to an employee on the termination of
his employment. However, the term “employee” is defined under Section
2(e) of the Act. When this Court has held that the writ petitioner is not an
employee as defined under Section 2(e) of the Payment of Gratuity Act,
1972, the contention of the writ petitioner that he is entitled to gratuity
under Payment of Gratuity Act, 1972, cannot be accepted. When we fall
back on CCS (Pension Rules), the writ petitioner, who has resigned from
service though after completion of 15 years of service, is not eligible for
gratuity on account of forfeiture of past services as provided under Rule 26
of CCS (Pension) Rules.
17.Therefore, in view of the conclusions we have reached, this Court
is unable to sustain the order of the learned Single Judge. As a result, this
Writ Appeal is allowed and the order of the learned Single Judge, dated
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10.01.2022, made in W.P.No.14440 of 2009, is set aside. Consequently, the
writ petition in W.P.No.14440 of 2009 stands dismissed. Connected
miscellaneous petitions are closed.
(S.S.S.R., J.) (R.H., J.)
mkn 29.04.2025
Internet : Yes
Index : Yes
Neutral Citation : Yes
To
The Director General of Coast Guard,
Tatrakshak Mukhalaya,
Coast Guard Head Quarters,
National Stadium Complex,
New Delhi – 110 001.
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S.S. SUNDAR, J.
and
R. HEMALATHA, J.
mkn
Judgment in
29.04.2025
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