Ramdayal Balai vs Oriental Insurance Company Ltd. ...
2022 Latest Caselaw 12456 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 1498/2017

Ramdayal Balai S/o Shri Narain Balai, R/o 6-A-74, Chandrashekhar Ajad Nagar, Bhilwara.

----Petitioner Versus

1. The Oriental Insurance Company Limited, Through its Chairman cum Managing Director, Head Office A-25-27, Asaf Ali Road, New Delhi-10002

2. The Chief Manager, The Oriental Insurance Company Limited, A-25-27, Asaf Ali Road, New Delhi.

3. The Senior Divisional Manger, The Oriental Insurance Company Limited, S.k. Plaza, Pur Road, Bhilwara

----Respondents

For Petitioner(s) : Mr. Anil Bhandari, Adv. For Respondent(s) : Mr. Jagdish Vyas, Adv.

HON'BLE MR. JUSTICE KULDEEP MATHUR Order Reportable 18/10/2022

By way of filing present writ petition, the petitioner has

prayed for following reliefs:-

I. "The order dated 04.03.2013 (Anx.14) passed by the repsondnet no.2, to the extent it holds that the petitioner is not entitled for pensionary benefits as he did not complete 20 years of service, may be declared illegal and may kindly be quashed.

II. The petitioner who voluntarily retired and completed almost 19 years of service, be declared entitled for pension and commutation of pension under clause 14 of the Pension Scheme, 1995.

III. The respondents may be directed to release the pension and commutation of pension to the petitioner with interest.

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         IV.      That the respondents may be further directed

to revise the basisc pay and other allowances of the petitioner as per revision of pay scales as notified on 08.10.2010 by the Government of India.

V. The respondents may be further directed to revise the gratuity after revision of pay scale with interest.

VI. The respondents may also be directed to release GSLI, Leave encashment, MBIS and other retiral benefits with interest to the petitioner.

VII. Any other appropriate writ, order or direction as may be deemed just and proper in the facts and circumstances of the case may be passed.

VIII. The costs of the writ petition may kindly be ordered to be awarded to the petitioner."

Briefly stated facts of the case are that the petitioner joined

services in the respondent Oriental Insurance Company Ltd. (for

short, 'the company') w.e.f. 14.11.1990, on being appointed

against the post of Assistant (Clerk). The petitioner while holding

the post of Assistant (Clerk) in the Divisional office, Bhilwara of

respondent-company submitted two one month's notices dated

13.04.2009 (Annex.1 and Annex. R/3) praying to relieve him from

services w.e.f. 13.05.2009. The authorities of the respondent-

organization directed the petitioner to deposit a sum of

Rs.4,35,000/- towards outstanding amount of housing loan, so as

to facilitate acceptance of notice dated 13.04.2009. The amount of

outstanding house loan was deposited by the petitioner on

17.06.2009. Consequently, notice seeking resignation (Annex.R/3)

was accepted by the competent authority and the petitioner was

relieved from services w.e.f. 22.06.2009 (Annex. 5). The gratuity

and provident fund was released in favour of the petitioner,

however, the pension and commutation of pension were not

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released. The petitioner being aggrieved by the denial of pension,

submitted numerous representations to the respondents. The

respondent No.2 vide letter dated 04.03.2013 (Annex.14)

informed the petitioner that since he had not completed twenty

years of qualifying service with the respondent-company, claim for

pension is not admissible as per General Insurance (Employees')

Pension Scheme, 1995 (Pension Scheme, 1995)

Learned counsel for the petitioner submitted that the

petitioner vide notice dated 13.04.2009 (Annex.1), requested

respondent-company to accept the notice seeking voluntary

retirement from services and accord all retiral benefits. The said

application was forwarded by respondent No.3 to the Regional

Office, Jaipur. Learned counsel submitted that respondent No.3

vide letter dated 13.05.2009 (Annex.2) informed the petitioner

that application seeking voluntary retirement had been accepted

by the Regional Office, Jaipur subject to clearing the house loan

amount of Rs.4,75,000/-, owed by the petitioner to the LIC

Housing Finance Limited. Learned counsel further submitted that

the respondent No.2 vide communication dated 04.03.2013, in

reply to the petitioner's letter dated 15.02.2013, informed that he

had sought voluntary retirement from services w.e.f. 13.05.2009,

without completing twenty years of service in the respondent-

company, therefore, as per Chapter-5, para-30 of Pension Scheme

of 1995), the pension on voluntary retirement cannot be granted

in his favour. It was urged that chapter-4, para-14 of the Pension

Scheme, 1995 clearly indicates that an employee who has

rendered a minimum ten years of service in the respondent-

company on the date of retirement shall qualify for pension.

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Learned counsel thus urged that the impugned letter dated

04.03.2013 (Annex.14) denying pension and commutation of

pension to the petitioner is not in conformity with the provisions

contained in Pension Scheme, 1995, therefore, the same deserves

to be declared illegal and arbitrary by this Court. In support of

aforesaid contentions reliance was placed on the following

judgments:-

(i) Mahaveer Prasad Pareek Vs. United India Insurance Company Ltd. & Ors. (D.B. Civil Special Appeal (Writ) No.178/2009;

(ii) Yashwant Hari Katakkar Vs. Union of India & Ors. (arising out of S.L.P. No.6365 of 1988;

(iii) National Insurance Company Ltd. & Anr. vs. Kirpal Singh reported in 2014 AIR SCW 965;

(iv) Ghanshyam Ramani Vs. The New India Assurance Company Ltd. & Ors. (D.B. Civil Special Appeal (Writ) No.607/2008).

Per contra, learned counsel for the respondent-company

submitted that the petitioner has not approached this Court with

clean hands and the material facts vital for adjudication of the

present controversy have been suppressed. It is submitted that

the petitioner vide notice dated 13.04.2009 (Annex.1), sought

voluntary retirement from services however, it appears that the

petitioner on realising that non completion of twenty years of

services would dis-entitle him from applying for voluntary

retirement from services, submitted yet another application dated

13.04.2009 (Annex. R/3), intending to resign from the services of

the respondent-organization w.e.f. 13.05.2009. The resignation

letter dated 13.04.2009 (Annex. R/3) was accepted by the

respondent-company on clearing of all outstanding advances and

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loans w.e.f 22.06.2009 (Annex.5). Learned counsel further

submitted that all terminal benefits as a consequence of

acceptance of petitioner's resignation from services had already

been released in his favour.

Learned counsel submitted that the petitioner is trying to

take undue advantage of inadvertent mistake crept in certain

communications issued by the respondent-company wherein

words "voluntary retirement" was used in place of "resignation".

Lastly it was urged that the resignation of the petitioner was

accepted by the respondent-company in the month of June, 2009,

whereas the present writ petition has been filed in the year 2017,

without explaining the inordinate delay of 8 years in approaching

this Court. In support of above mentioned contentions, learned

counsel placed reliance on the following judgments:-

(i) Senior Divisional Manager, Life Insurance Corporation of India & Ors. Vs. Shree Lal Meena reported in (2019) 4 SCC 479;

(ii) BSES Yamuna Power Limited Vs. Ghanshyam Chand Sharma & Anr. reported in (2020) 3 SCC 346;

(iii) M.R. Prabhakar & Ors. Vs. Canara Bank & Ors. reported in (2012) 9 SCC 671;

(iv) Executive Engineer, Lower Vana Project, Irrigation Department, Wardha Vs. Maroti Bapurao Auchat & Ors reported in (2012) 9 SCC 680;

(v) National Insurance Special Voluntary Retired/Retired Employees Association & Anr. Vs. United India Insurance Co. Ltd. & Anr. (Civil Appeal No.10775 of 2018 arising out of SLP (C) No.31906/2017);

(vi) Manojbhai N. Shah & Ors. Vs. Union of India & Ors. reported in (2015) 4 SCC 482;

(vii) Aam Beema Seva Nivratt Karmchari Samiti Vs. Union of India & Ors. (D.B. Civil Writ Petition No.113/2015);

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(viii) The Oriental Insurance Company Limited & Ors. Vs. Aam Beema Seva Nivratt Karamchari Samiti & Ors. (D.B. Civil Special Appeal (Writ) No.1027/2013;

Heard learned counsel for the parties and perused the

material available on record.

Para-14, Chapter-IV and Para-30, Chapter-V of the Pension

Scheme, 1995 is reproduced herein below for ready reference:-

"Chapter-IV Qualifying Service (14) Qualifying Service.-

Subject to the other condition contained in this scheme, an employee who has rendered a minimum ten years of service in the Corporation or a Company, on the date of retirement shall qualify for pension. Chapter-V Classes of Pension (30) Pension on voluntary retirement.- (1) At any time after an employee has completed twenty years of qualifying service, he may, by giving notice of not less than ninety days, in writing to the appointing authority, retire from service:

Provided that this sub-paragraph shall not apply to an employee who is on deputation unless after having been transferred or having returned in India he has resumed charge of the post in India and has served for a period of not less than one year:

Provided further that this sub-paragraph shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. (2) The notice of voluntary retirement given under sub- paragraph (1) shall require acceptance by the appointing authority:

Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.

(3) (a) An employee referred to in sub-paragraph (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than ninety days giving reasons therefor;

(b) on receipt of request under clause (a), the appointing authority may, subject to the provisions of sub-paragraph (2), consider such request for the curtailment of the

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period of notice of ninety days on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of ninety days on the condition that the employee shall not apply for commutation of a part of his pension before the expiry of the notice of ninety days. (4) An employee who has elected to retire under this paragraph and has given necessary notice to that effect to the appointing authority shall be precluded from withdrawing his notice except with the specific approval of such authority:

Provided that the request for such withdrawal shall be made before the intended date of his retirement. (5) The qualifying service of an employee retiring voluntarily under this paragraph shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty three years and it does not take him beyond the date of retirement. (6) The pension of an employee retiring under this paragraph shall be based on the average emoluments as defined under clause (d) of paragraph 2 of this scheme and the increase, not exceeding five years in his qualifying service, shall not entitle him to any notional fixation of pay for the purpose of calculating his pension; Explanation: For the purpose of this paragraph, the appointing authority shall be the appointing authority specified in Appendix-I to this scheme."

Para-14, Chapter-IV of the Pension Scheme, 1995 deals with

the cases where an employee stands superannuated from services

on rendering ten years of services. This Court has no hesitation in

concluding that Para-14, Chapter-IV of the Pension Scheme, 1995

does not apply to the present case, as it is only applicable upon an

employee who is retiring from services on attaining the age of

superannuation.

Para-30, Chapter-V, deals with the right of an employee

working in the respondent-company claiming pension on voluntary

retirement from services. The said para in unambiguous terms

states that the pension on voluntary retirement will be available to

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an employee who has completed twenty years of qualifying

service. In other words, in order to become eligible for pension on

voluntary retirement, an employee is required to render twenty

years of service.

It is noticed that as on 22.06.2009, the petitioner had not

completed twenty years of service making him eligible for pension

in terms of Para-30, Chapter-V of the Pension Scheme of 1995.

The judgments cited by learned counsel for the petitioner

have no application to the present case, as the claim for pension

in the present case is to adjudged in light of the provisions of

General Insurance (Employees') Pension Scheme, 1995 and not

under any other Scheme.

Hon'ble the Supreme Court in the case of LIC Vs. Shree Lal

Meena reported in (2019) 4 SCC 499 elucidated the distinction

between "resignation" and "voluntary retirement" in the following

terms:

"22. ... [quoting RBI v. Cecil Dennis Solomon, SCC pp. 467-68, para10] '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 the prescribed period of qualifying service. Another fundamental distinction is that in case of the former, normally retiral benefits are denie4d but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in the case of

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the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary.' "

In view of the law enunciated by Hon'ble the Apex Court,

terms "resignation" and "voluntary retirement" do not bear the

same meaning. When an employee resigns, it amounts to a

voluntary act on the part of an employee to end the existing

employer-employee relationship which generally entails forfeiture

of past services along with non-admissibility of pensionary and

retiral benefits. Whereas, in the cases of voluntary retirement,

requirement of a qualifying period of service needs to be fulfilled.

Admittedly, in the present case period of twenty years of

qualifying service with a notice of not less than 90 days is

essential for voluntary retirement.

Hon'ble the Supreme Court in the case of The Ramjas

Foundation v. Union of India, reported in AIR 1993 SC 852

held that the when a person approaches a Court of Equity in

exercise of its extraordinary jurisdiction under article 226/227 of

the Constitution, he should approach the Court not only with clean

hands but also with clean mind, clean heart and clean objective.

Similarly, in the case of Shri K. Jayaram & Ors. V.

Bangalore Development Authority & Ors. (Civil Appeal

No(s) 7550-7553 of 2021, Hon'ble the Apex Court held that a

litigant who has suppressed the material facts and have not come

to the Court with clean hands are not entitled for the

extraordinary, equitable and discretionary relief.

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     It      is    noticed       that       the      petitioner         submitted      two

applications/notices dated 13.04.2009 i.e. Annex. 1 and Annex. R/

3 addressed to the Regional Manager, Oriental Insurance Company

Limited, Regional Office, Jaipur. The petitioner however, has

placed on record only one application/notice dated 13.04.2009

(Annex.1) wherein voluntary retirement from services was sought

w.e.f. 13.05.2009. The other application of the even date i.e.

13.04.2009 (Annex. R/3) tendering resignation has not been

placed on record before this Court. This clearly shows that the

petitioner has not approached this Court with clean hands and has

suppressed the application/notice dated 13.04.2009, for

resignation from services with a clear intention to mislead the

Court.

It is a settled proposition of law that the Courts of law are

meant for imparting justice and the one who approaches the Court

must come with clean hands. Every litigant is under a solemn

obligation to candidly and correctly disclose all the

material/important facts which have bearing on the adjudication of

the issues raised in the case. He/she owes a duty to the court to

bring out all the facts and desist from concealing/suppressing any

material fact within his/her knowledge or which he/she could have

known by exercising due diligence expected of a person of

ordinary prudence. A dishonest litigant cannot be allowed to

misuse the judicial process for personal gains.

In view of above, this Court does not find any merit in the

present writ petition. The same is accordingly dismissed with costs

which is quantified at ₹10,000/- to be deposited within a period of

four weeks from the date of order with the Rajasthan State Legal

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Services Authority, Jodhpur and receipt thereof may be placed in

the file.

All pending applications are also dismissed.

(KULDEEP MATHUR),J Prashant

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