Meghalaya High Court
Smti. Tara Sinha vs State Of Meghalaya And Ors on 15 April, 2014
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WP(C) No.176/2013
Smti. Tara Sinha,
W/o (L) Nanda Kumar Sinha,
R/o Village Bakatpur,
PS Silchar, District Cachar (Assam) :::: Petitioner
-Vs-
1. State of Meghalaya,
represented by the Secretary & Commissioner
to the Govt. of Meghalaya, Health & Family Welfare Department,
Shillong, Meghalaya.
2. The Under Secretary to the Govt. of Meghalaya,
Health & Family Welfare Department, Shillong.
3. The Director,
Health Services (Malaria),
Govt. of Meghalaya, Shillong.
4. District Malaria Officer,
Khasi Hills, Shillong, Meghalaya.
5. District Medical & Health Officer,
East Khasi Hills, Shillong Meghalaya. :::: Respondents.
BEFORE
THE HON‟BLE MR JUSTICE T NANDAKUMAR SINGH
For the Petitioner : Mrs. PDB Baruah, Adv
For the Respondents : Mr. ND Chulai, Sr. GA,
Mrs. NG Shylla, GA
Date of hearing : 03.04.2014
Date of Judgment & Order : 15.04.2014
JUDGMENT AND ORDER
The petitioner approached this Court, after a considerable
delay of 12 years, for issuing writ in the nature of mandamus to the
authorities to release the petitioner‟s deceased husband‟s service benefits
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such as pension, gratuity, provident fund, group insurance etc. as early as
possible.
2. Heard Mrs. PDB Baruah, learned counsel for the petitioner and
Mr. ND Chullai, learned Sr. GA assisted by Mrs. NG Shylla, learned GA
appearing for the respondents.
3. Brief facts leading to the filing of the present writ petition as well
as the case of the respondents in their counter affidavit are recapitulated.
The petitioner‟s husband (L) Nanda Kumar Sinha, was appointed as
temporary Surveillance Inspector attached to Silchar Head Quarter unit
under NMEP Scheme until further orders vide order of the Director of Health
Services (H.Q.), Assam, Shillong dated 06.12.1960. In pursuance of the said
appointment order, the petitioner‟s husband (L) Nanda Kumar Sinha joined
his service as temporary Surveillance Inspector attached to Silchar Head
Quarter unit under NMEP Scheme. After joining his service, (L) Nanda
Kumar Sinha had undergone training and completed the same successfully.
The Meghalaya had been curved out from the Assam and attained Statehood
on 21.01.1972 and became full-fledged State under Section 5 of the North
Eastern Areas (Re-organization) Act, 1971. After the separation of
Meghalaya as a full-fledged State, the two States i.e. the State of Assam and
State of Meghalaya under an agreement had to decide in which State the
employees of the erstwhile Assam State have to be allocated under Section
64 of the North Eastern Areas (Re-organization) Act, 1971.
4. The Govt. of Assam, Health & Family Welfare (A) Department
issued a Notification dated 21.05.1981, in pursuance of the provision of
Section 64 of the North Eastern Areas (Re-organization) Act, 1971 that the
persons mentioned in the said Notification are required in connection with the
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affairs of the State of Meghalaya and every such persons, shall be deemed
to have been allocated to the State of Meghalaya w.e.f. the date shown
against their names. In that Notification dated 21.05.1981, (L) Nanda Kumar
Sinha shall deem to have been allocated to the State of Meghalaya w.e.f.
21.01.1972. It is stated that (L) Nanda Kumar Sinha had been permanently
allocated to the State of Meghalaya as per the agreement of the
Governments on 19.02.1980. (L) Nanda Kumar Sinha being the permanent
resident of Bakatpur, Silchar, Cachar, Assam submitted several
representations before the authorities of Assam and Meghalaya to transfer
him from the Govt. of Meghalaya to the Govt. of Assam, but his prayer was
not considered as he had already been allocated permanently to the State of
Meghalaya.
5. (L) Nanda Kumar Sinha died unfortunately at Silchar Medical
Hospital, Silchar, Cachar at the age of 60 years on 07.03.1985 at 2:00 pm
due to a motor accident, while he was on leave according to the writ
petitioner; leaving behind the petitioner and three minor daughters and two
sons. It is stated that the petitioner submitted various representations to the
authorities concerned especially to the Department of Health & Family
Welfare, Govt. of Meghalaya, Shillong, District Medical & Health Officer, East
Khasi Hills, Shillong and District Malaria Officer, East Khasi Hills, Shillong,
that she was suffering from acute financial problems and being the guardian
of five children, she was not in a position to come to Shillong to pursue her
case frequently and as a result, financial benefits and other benefits of her
late husband were not taken up and pending since 1985. Only on
30.05.2000, a legal notice was issued to the authority concerned stating inter
alia facts and circumstances of the case and prayed for releasing the family
pension of the deceased husband of the petitioner and other benefits.
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6. In response to the legal notice dated 30.05.2000, the Under
Secretary to the Govt. of Meghalaya, Health & Family Welfare Department
vide his letter Memo No. Health.133/2000/16 dated 23.10.2000, informed the
counsel of the petitioner that the service book of (L) Nanda Kumar Sinha was
not traceable in the Office of the District Malaria Officer, Shillong and the
Director of Health Services (MI), Shillong had been requested to reconstruct
the same for settlement of family pension and gratuity for releasing to the
family of the deceased employee i.e. (L) Nanda Kumar Sinha. The Under
Secretary to the Govt. of Meghalaya, Health & Family Welfare Department
under his letter dated 14.08.2003, informed the District Malaria Officer, East
Khasi Hills, Shillong that the first and foremost is submission of pension
papers alongwith all the connected documents to the Accountant General
(A&E), Meghalaya, Shillong for settlement of pension and other pensionary
benefits in respect of (L) Nanda Kumar Sinha, Surveillance Inspector,
Meghalaya. As no action had been taken from the side of the concerned
authority for settlement of retirement benefits and other benefits in respect of
petitioner‟s husband (L) Nanda Kumar Sinha, the petitioner again issued a
legal notice dated 14.12.2003 to the Under Secretary to the Govt. of
Meghalaya, Health & Family Welfare Department, Shillong, but there was
also no response from the side of the authority and no steps had been taken
up for releasing family pension, gratuity, group insurance and other benefits
due to (L) Nanda Kumar Sinha. Having no alternative, the petitioner filed the
present writ petition.
7. Respondent No.4 filed affidavit-in-opposition in the present writ
petition wherein, it is stated that (L) Nanda Kumar Sinha remained absent
from his duties for a quite long period. Under the letter of the Unit Officer,
NMEP, Shillong dated 20.05.1970, issued a show cause notice to (L) Nanda
Kumar Sinha for an explanation as to why he did not supervise the spraying
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operation at Pamshutia and adjacent villages as per instructions on
13.05.1970, and without applying for leave or for station leaving permission,
he had been on 17.05.1970 at Police Bazar, Shillong and the satisfactory
explanation should reach the office through Senior Malaria Inspector, Cherra
within 7(seven) days from the date of receipt of the letter. In response to the
said show cause notice dated 20.05.1970, (L) Nanda Kumar Sinha did not
submit any show cause statement. The
Senior Malaria Officer, Cherra under his letter dated 16.05.1970, informed
the Unit Officer, MNEP, Shillong that (L) Nanda Kumar Sinha had left his
posting on 11.05.1970 and since then, he had been absenting from his duties
without any intimation. During the period of his unauthorized absence, (L)
Nanda Kumar Sinha filed an application for leave dated 05.06.1970 to the
State Malarialogist, NMEP, Assam, Shillong for granting leave w.e.f.
22.05.1970, but without supporting medical certificates.
8. Vide letter No.P-15/69/4837 dated 31.10.1970, the Unit Officer,
NMEP, Shillong directed (L) Nanda Kumar Sinha to appear before the Civil
Surgeon U.K.J. Hills for medical examination on 09.11.1970 at Civil Hospital,
Shillong along with medical certificate. But vide letter dated 20.11.1970, (L)
Nanda Kumar Sinha prayed for granting extension of medical leave w.e.f.
29.11.1970 to 27.01.1971 with an assurance to produce the medical
certificate in time. Subsidiary Rule 78 of the Meghalaya Fundamental Rules
and Subsidiary Rules (hereinafter referred to as „F.R. & S.R.‟) states that for
the grant of leave or extension of leave for a period exceeding 2(two)months,
certificate must be obtained from the Board and S.R. 80 states that if
application for leave is certified by a commissioned Medical Officer of the
Govt. or by a Medical In-charge of Civil station to be such as to make it
convenient for him to present at any place in which a committee can be
assembled and the authority competent to grant the leave may accept in lieu
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of the certificate prescribed in S.R. 78 read with S.R. 82. (L) Nanda Kumar
Sinha neither appeared for the medical examination as instructed nor
submitted any medical certificates from approved Medical Officer. The
application for granting leave filed by (L) Nanda Kumar Sinha was made in
contravention of the said provisions.
9. (L) Nanda Kumar Sinha to whom leave had not yet been
granted again filed a leave application dated 19.01.1971 for extension of
medical leave from 27.01.1971 to 28.03.1971. (L) Nanda Kumar Sinha also
filed another leave application dated 12.06.1971 to the State Malarialogist,
NMEP, Assam, Shillong for granting leave for 6(six) months w.e.f.
27.06.1971 to 29.12.1971. Some of the leave applications filed by (L) Nanda
Kumar Sinha are: - (i) 03.08.1973 for granting leave up to 30.02.1974; and
(ii) 02.06.1982 for granting leave from 01.08.1970 to 22.06.1982. For easy
reference, some of the leave applications filed by (L) Nanda Kumar Sinha
and the directions from the authority to appear before the Medical Board are
quoted below:-
"To,
The State Malarialogist,
NMEP, Assam, Shillong.
(Through proper channel).
Sir,
I have the honour to state that the following few lines for
favour of your kind consideration and sympathetic orders.
I have been again seriously attacked by Gonorrhea and
piles and Rheumatism which are perhaps due to negligence to
the advice of the Doctor for not residing in hilly area of place,
specially, food and where regularity of food cannot be
maintained.
Now as I am laid up in bed due to serious illness, and
also my wife and children have been suffering, from various
diseases, it is essential for me to go on leave. My attending
Doctor advices me to take a complete rest for a month.
Under the circumstances, I would request you to grant
me leave for a month with effect from 22nd May 1970.
Page 6 of 24
The medical certificate will follow.
Yours faithfully,
Sd/-
(on leave)
Surv. Inspector.
Village - Bhakatpur
PO Singari
Distt.Cachar
No.CS/N.M.E.P./70/30
Dt.5.6.70
forwarded
Sd/- H.K. Some,
S.M.I., Cherra
5.6.70
Copy to the State Malarialogist, N.M.E.P., Assam, Shillong for
favour of information.
S.I. (on leave)"
To,
The State Malarialogist,
NMEP, Assam, Shillong.
(Through proper channel).
Sir,
I have the honour to state that I have been availing of
leave on medical ground which will be ended but I have not
completely cured as yet and the physician advices me to
continue to rest for one month more, along with the treatment.
I would therefore request you to be kind enough to grant
further one month leave on medical ground in continuation of
my present leave. The medical certificate along with fitness
certificate will be produced during my joining date.
Yours faithfully,
Sd/-
(on leave)
Surv. Inspector.
Village - Bhakatpur
PO Singari
Distt.Cachar
Dated Bhakatpur, the 17th June, 70,
No.CS-N/NMEP-70/307 dt.25.6.70
Sd/- H.K. Some,
SMI, Cherra.
To,
The State Malarialogist,
National Malaria Eradication Programme,
Page 7 of 24
Assam, Meghalaya.
Subject:- Extension of medical leave for 2(two) months.
Reference:-My petition dated 27th July/1970.
Sir,
In continuation of my petition under reference, I have the
honour to say that I am under the medical ground from 30 th
Set/70 to 28th November/70. But I am not fully cured from
disease and as per the suggestion of physician, I must take
further treatment.
In this connection the medical certificate will be
produced later.
Under the circumstances stated above, I beg to request
you to kindly extend and sanction to me for the period from 30 th
Sept/70 to 28th Nov/70 and for this act of kindness I shall
remain grateful.
Yours faithfully,
Dated Bhakatpur
the 22nd Sept/70 (Nanda Kumar Sinha)
Sur.Inspector (on leave)
Vill. Bhakatpur, PO Singari,
Dist - Chachar.
GOVERNMENT OF MEGHALAYA
OFFICE OF THE UNIT OFFICER N.M.E.P., SHILLONG:
No.P-115/69/ Dt. Shillong, the
To,
Sri. Nanda Kishore Singha,
Surveillance Inspector (on leave)
Village - Bhakatpur
P.O. Singar
District - Cachar
Ref: This office letter No.P-115/69/3906 dt.10.8.70.
You are hereby directed to appear for medical
examination before Civil Surgeon, U.K. & J Hills at Civil
Hospital Shillong on 9.11.70 at 1:00 hours. You are also to
produce your medical certificates etc issued by your previous
physician, if any.
Receipt of this letter should be acknowledged.
UNIT OFFICER,
N.M.E.P. SHILLONG
Memo No.P-115/69 Dt. Shillong, the
Copy to:-
1.Civil Surgeon U.K. & J Hills, Shillong for present information.
Page 8 of 24
UNIT OFFICER,
N.M.E.P. SHILLONG
To,
The State of Malarialogist,
NMEP, Assam, Shillong.
Through the proper channel.
SUBJECT: PRAYER FOR EXTENSION OF MEDICAL
LEAVE FROM 27TH JANUARY, 1971 TO 28TH MARCH, 1971
(2 MONTHS).
Reference: My petition dated 20.11.70.
Sir,
In continuation of my petition dated 20.11.70 I have the
honour to state that the following few lines for favour of your
kind consideration and favourable orders.
That Sir, I applied for two months leave on medical
ground which is going to be completed. But as per direction of
physician, another 2(two) months leave on the same ground is
absolutely necessary for well treatment of my health and
necessary medical certificate will be produced at the time of
joining.
In this connection I fervently request your honour would
be graciously pleased to consider my case and kindly grant me
an extension of leave with effect from 27th January, 1971 to 28th
March, 1971 = (2 months) for which act of your kindness I shall
remain every grateful to you.
Sd/-
(Nanda Kumar Sinha)
Surveillance Inspector (on leave).
Dated:19th January,‟71 Village-Bhakatpur P.O.Singari Cachar.
To,
The State Malarialogist,
N.M.E.P., Shillong
(Through proper channel).
Subject: LEAVE
Sir,
In continuation for my petition dated 18.3.71, I have the
honour to state that I may kindly be allowed to avail another
extension of leave for 6(six) months with effect from 27 th June
1971 to 29th December, 1971 on the same ground stated
therein for this act of your kindness I as in duty bound shall
ever pray.
Sd/-
(Nanda Kumar Sinha)
Surveillance Inspector (on leave).
Page 9 of 24
Dated:12/6/71 Village-Bhakatpur P.O.Singari Cachar.
Copy in advance to the State Malarialogist N.M.E.P. Assam,
Shillong for favour of information and necessary action.
To,
The Secretary, Medical (A) Deptt.
N.M.E.P., Assam, Shillong.
The Director of Health Services,
N.M.E.P. Assam, Shillong.
(through the Unit Officer, N.M.E.P., Shillong)
Sub:- Extension of medical leave.
Ref:- My leave petition dated 18th April/73.
Sir,
In continuation to my prayer under reference, I have the
honour to state that I am under medical treatment till now,
therefore, pray that your honour would be kind enough to grant
me the earned leave on medical ground upto 30th February,
1974 as I am advised by my physician that my treatment will
require to be continued for another year.
I further pray that your honour would be pleased to
sanction the benefit which I am entitled to during the period of
my leave i.e. leave salary etc. and you will kindly pass
immediate order further payment of the same.
And for this act of kindness I shall remain ever grateful to
you.
Sd/-
(Nanda Kumar Sinha)
Surveillance Inspector (on leave).
. Village-Bhakatpur P.O.Singari Cachar.
Dated:Cachar, the 3rd August, 73
GOVERNMENT OF MEGHALAYA
OFFICE OF THE UNIT OFFICER N.M.E.P. SHILLONG.
No.P-115/69/4838 Dt.Shillong, the 31st Oct, 1970.
To,
Nanda Kumar Sinha
Surveillance Inspector (on leave).
P.O.Singari Cachar,
Village-Bhakatpur.
Ref:- This office letter No.P-115/69/3906 Dt.10.8.70.
Page 10 of 24
You are hereby directed to appear for medical
examination before Civil Surgeon, U.K. & J Hills at Civil
Hospital, Shillong on 9.11.70 at 100 hours. You are also to
produce your medical certificates etc. issued by your previous
physician, if any.
Receipt of this letter should be acknowledged.
UNIT OFFICER,
N.M.E.P. SHILLONG
Memo No.P-115/69 Dt.Shillong, the
Copy to:-
1.Civil Surgeon U.K. & J Hills, Shillong for present information.
UNIT OFFICER,
N.M.E.P. SHILLONG
To,
The Director of Health Services,
Meghalaya, Shillong.
Sub: Grant of medical leave from 1/8/70 to 22/6/82.
Sir,
With reference to your letter No.195/75 dt. .... Shillong,
the 8th September, 1981, I beg to request your honour to refer
my prayer on the subject submitted in accordance of which a
copy of medical certificate issued under Govt.
Medical certificate is enclosed herewith for favour of your
kind disposal the leave case. I beg to request you to kindly
issue a formal order for joining and in which I place I am to
posted may kindly be informed at an early dated.
Sd/-
(Nanda Kumar Sinha)
Surveillance Inspector (on leave).
Dated:2/6/83 Village-Bhakatpur P.O.Singari Cachar."
10. In the affidavit-in-opposition, it is also categorically stated that
the last pay drawn by (L) Nanda Kumar Sinha was on 09.12.1969 and
thereafter, there was no record for drawing any pay by (L) Nanda Kumar
Sinha and he remained absent from his duties for quite a long period since
1970 without any permission/leave and the last leave application filed by (L)
Page 11 of 24
Nanda Kumar Sinha was 02.06.82 for granting leave from 01.08.1970 to
22.06.1982. (L) Nanda Kumar Sinha was not eligible for getting pension
under the Rules because of his own action. Whatever assurance made by
the authority at any time should not be construed as assurance for release of
pension benefits. For deciding (i) as to whether (L) Nanda Kumar Sinha had
served the qualifying service for pension? (ii) had (L) Nanda Kumar Sinha
acquired the right for pension? (iii) had the petitioner acquired the right for
family pension? and (iv) is there any provision under the leave Rules or any
Rules for granting leave for 12 years?, it may be required to carefully peruse
"Meghalaya Civil Services (Pension) Rules, 1983 (for short "the Pension
Rules of 1983"). The relevant Rules of the Pension Rules of 1983 are quoted
hereunder:-
Commencement of qualifying service:
10. Subject to the provisions of these rules qualifying service
of a government servant shall commence from the date he
takes charge of the post to which he is first appointed either
substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed without
interruption by substantive appointment in the same or another
service or post:
Provided further that:
(a) in the case of a Government servant in a
Class IV service or post who held a lien or a
suspended lien on a permanent pensionable post
prior to the 17th April 1950, service rendered
before attaining the age of sixteen years shall not
count for any purpose, and
(b) in the case of a Government servant not
covered by clause (a) service rendered before
attaining the age of eighteen years shall not
count, except for compensation gratuity.
Conditions subject to which service qualifies:
11. (1) The service of a Government servant shall
not qualify unless his duties and pay are
Page 12 of 24
regulated by the government, or under conditions
determined by the government.
(2) For the purposes of sub-rule (1), the
expression "service" means service under the
government and paid by that government from the
Consolidated Fund of the State or a Local Fund
Administered by that Government but does not
include service in a non-pensionable
establishment unless such service is treated as
qualifying service by that Government.
(3) In the case of a government servant
belonging to other State Governments including
Central Government, who is permanently
transferred to a service or post to which these
rules apply, the continuous service rendered
under the other State Government including
Central Government in an officiating or temporary
capacity, if any, followed without interruption by
substantive appointment, or the continuous
service rendered under that government in an
officiating or temporary capacity, as the case may
be, shall qualify:
Provided that nothing contained in this sub-rule
shall apply to any such Government servant who
is appointed otherwise than by deputation to a
service or post to which these rules apply.
Forfeiture of Service on resignation:
23. (1) Resignation from a service or 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 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................
Page 13 of 24
Condonation of Interruption:
25. (1) The appointing authority may, by
order condone interruptions in the service
of a government servant.
Provided that:-
(i) the interruption has been caused by
reasons beyond the control of the
government servant;
(ii) the total service excluding one or
more interruptions, if any, is not less than
five years duration; and
(iii) the interruption, including two or
more interruptions, if any, does not exceed
one year;
(2) The period of interruption, condoned under
sub-rule (1) shall not count as qualifying service.
............
Compassionate allowance:
37. (1) A Government servant who is dismissed or removed from service shall forfeit his pension and gratuity.
Amount of pension:
39. (1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service.................
45. Except as otherwise provided in rule 47 a family pension not exceeding the rate mentioned in rule 46 will be admissible in case of death of an officer while in service or after retirement, if at the time of death the retired officer was in receipt of a compensation, invalid retiring or superannuation, pension. In case of death while in service, the government servant should have completed a minimum period of one year of service.
47. Notwithstanding the provisions in rules 45 and 46 above, if a government servant after rendering minimum 7 (seven) years continuous service dies while in service, the family of such government servant may be granted a pension at the rates and conditions mentioned below:-Page 14 of 24
(i) For a period of 7 (seven) years from the date following the date of death or till the date on which officer would have reached the normal age of superannuation had he remained alive, whichever period is shorter, the pension payable under this Section will be at 50 per cent of the basic pay last drawn, subject to a maximum of twice the pension admissible under rule 46 above.
.................. "
11. It is well settled law that the pension is neither a bounty not a matter of grace depending upon the sweet will of the employer, nor an ex-
gratia payment. It is a payment for the past service rendered. It is a social welfare measure rendering socio-economic justice to those who in the hey-
day of their life ceaselessly toiled for the employer or an assurance that in their old age they would not be left in lurch. In a case of Pre Constitution (44 th Amendment) Act, 1978, the Constitution Bench in Deokinandan Prasad vs. State of Bihar & Ors: AIR 1971 SC 1409 held that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to the officer employee not because of the said order but by virtue of the Rules. Pension is not a bounty payable on the sweet will and pleasure of the Government and that on the other hand, the right to pension is a valuable right vesting in a Government servant. Right to receive pension is property under Article 31 (1) and by a mere executive order the State has no power withhold the same. Similarly, the said claim is also property under Article 19 (1) (f) and it is not saved by sub-article (5) of Article 19. The Constitution Bench in D.S. Nakara & Ors vs. Union of India & Ors: (1983) 1 SCC 305 held that:-
"29. Summing-up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a Page 15 of 24 measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and therefore, one is required to fall back on savings. One such saving in kind is when you gave your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon."
12. A person cannot be deprived of his pension without the authority of law, which is the constitutional mandate and enshrined in Article 300-A of the Constitution. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. It is thus a hard earned benefit which accrues to an employee and is in the nature of property. The Apex Court in State of Jharkhand & Ors vs. Jitendra Kumar Srivastava & Anr: (2013) 12 SCC 210 held (Paras 8, 15, 16 & 17 of the SCC in Jitendra Kumar Srivastava‟s case (Supra)) that:
8. It is an accepted position that gratuity and pension are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and unblemished service. Conceptually it is so lucidly described in D.S. Nakara v. Union of India : (1983) 1 SCC 305 : 1983 SCC (L&S) 145 by D.A. Desai, J. who spoke for the Bench, in his inimitable style, in the following words:
(SCC pp.319-20, paras 18-20).
"18. The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalized? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service?Page 16 of 24
19. What is a pension? What are the goals of pension?
What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division or retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.
20. The antiquated notion of pension being a bounty of gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar: (1971) 2 SCC 330 : 1971 Supp SCR 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone‟s discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh:(1976) 2 SCC 1 : 1976 SCC (L&S) 172 :
(1976) 2 LLJ 377 It is thus a hard earned benefit which accrues to an employee and is in the nature of "property". This right to property cannot be taken away without the due process of law as per the provisions of Article 300-A of the Constitution of India.
15. In State of W.B v. Haresh C. Banerjee : (2006) 7 SCC 651 : 2006 SCC (L&S) 1719 this Court recognized that even when, after the repeal of Article 19 (1) (f) and Article 31 (1) of the Constitution vide Constitution (Forty-fourth Amendment) Act, 1978 w.e.f. 20-6-1979, the right to property no longer remained a fundamental right, it was still a constitutional right, as provided in Article 300-A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court.
16. That fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in "property". Article 300-A of the Constitution of India reads as under:-
Page 17 of 24
"300-A. Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law."
Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
17. It is hardly needs to be emphasized that the executive instructions are not have statutory character and, therefore, cannot be termed as "law" within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we notices above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different."
13. Taking cue of the ratios decidendi in the cases discussed above, it is clear that pension is not the bounty of the employer, it is a benefit earns by dint of his long, continuous, faithful and unblemished service under the service Rules or under the relevant Rules or under the pension rules. Pension is in the nature of property and that this right to property cannot be taken away without due process of law as per the provisions of Article 300-A of the Constitution of India. The core questions fall for consideration in the present case is that (i) had (L) Nanda Kumar Sinha acquired the right for pension by din of his long, continuous, faithful and unblemished service under the pension Rules i.e. the Pension Rules of 1983? Under Rule 39 of Pension Rules of 1983, there should be at least qualifying service of 10(ten) years for pension or for acquiring the right for pension. Rule 25 (1) of the Pension Rules of 1983, clearly provided that the appointing authority may, by order condone interruptions in the service of a Govt. servant to the maximum Page 18 of 24 of 5(five) years duration. The last leave application filed by (L) Nanda Kumar Sinha dated 02.06.82, was for granting leave for 12 years i.e. w.e.f. 01.08.1970 to 22.06.1982. In the service jurisprudence, it is so clear that an employee has no vested right to seek leave for any period and leave is to be granted by the concerned authority under the leave Rules. There is no Rule under any leave Rules in the present case in hand for granting leave for 12 years. The maximum period for condoning interruptions in the service of a Govt. servant is up to 5(five) years duration only under Rule 25 of the Pension Rules of 1983, over and above, there is no order for granting leave for 12 years to (L) Nanda Kumar Sinha and no order for condoning interruptions in the service of (L) Nanda Kumar Sinha .
14. The Apex Court in a catena of cases, held that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities (Ref:- (i) Syndicate Bank vs. Staff Assn.: (2000) 5 SCC 65 and (ii) Aligarh Muslim University vs. Mansoor Ali Khan: (2000) 7 SCC 529). Paras 13, 14, 21, 23 & 25 of the SCC in Mansoor Ali Khan‟s case (Supra) read as follows:-
"13. These are the different situations in which Rule 5(8) (i) and
(ii) apply. Point No.1 is decided accordingly.
14. ........ It will be seen that Rule 10 deals with a different aspect. Now Rule 10(c)(i) states that no permanent employee shall be granted leave of any kind for a continuous period of more than 5 years. However, Rule 10(c)(ii) states that when an employee does not resume duty after remaining on leave for a continuous period of 5 years, or where an employee - after the expiry of his leave - remains absent from duty ( otherwise than on foreign service or on account of suspension) for any period which together with the period of the leave granted to him exceeds 5 years, - he shall, (unless the Executive Council in view of the exceptional circumstances of the case otherwise determine), be deemed to have resigned and shall accordingly Page 19 of 24 cease to be in the University service. This is the purport of Rule 10(c). Point 2 is decided accordingly.
21. As pointed recently in M.C. Mehta Vs. Union of India (1999 (6) SCC 237), there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao vs. Govt. of A.P.: AIR 1966 SC 828: (1966) 2 SCR 172, it is not necessary to quash the order merely because of violation of principles of natural justice.
23. Chinnappa Reddy, J. in S.L.Kapoor's case: (1980) 4 SCC 379, laid two exceptions (at p.395) namely, " if upon admitted or indisputable facts only one conclusion was possible", then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.
25. The 'useless formality' theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above,- there has been considerable debate of the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta: (1999) 6 SCC 237 referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, De. Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some others have said, that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via-media rules. We do not think it necessary, in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case."
15. The employee has right to abandon service at any time voluntarily by submitting his resignation and alternatively, not joining or reporting for duty for a long period. The abandonment of service is a unilateral action of the employee resulting coming an end of the service Page 20 of 24 automatically without requiring any order to be passed by an employer. However, absence from duty in beginning may be misconduct and even if the order for punishment for misconduct is not passed by the employer, the employee who continuously abandoned the service for a long period cannot be treated in service. The Apex Court in Vijay S Sathaye vs. Indian Airlines Limited & Ors: (2013) 10 SCC 253 held that:-
"12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service at any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.
13. In Jeewanlal (1929) Ltd. vs. Workmen: AIR 1961 SC 1567, this Court held as under: (AIR p.1570, para 6) "6. ......... there would be the class of cases where long unauthorized absence may reasonable give rise to an inference that such service is intended to be abandoned by the employee."
(See also Shahoodul Haque vs. Registrar, Coop.
Societies: (1975) 3 SCC 108: 1974 SCC (L&S) 498:
AIR 1974 SC 1896).
14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as "retrenchment" from service. (See State of Haryana vs. Om Prakash: (1998) 8 SCC 733: 1999 SCC (L&S) 262)."
16. Taking cue of the ratios lay down in (i) Vijay S Sathaye‟s case (Supra) (ii) Jeewanlal‟s case (Supra) (iii) Shahoodul Haque‟s case (Supra) and (iv) Om Prakash‟s case (Supra), this Court is of the considered view that (L) Nanda Kumar Sinha, who voluntarily abandoned the service beyond the prescribed period for leave for which leave of any kind can be granted, should be treated to have resigned and ceased to be in service. Resignation Page 21 of 24 from service shall entail forfeiture of past service of (L) Nanda Kumar Sinha under Rule 23 of the Pension Rules of 1983 and if his past service is forfeited, (L) Nanda Kumar Sinha did not complete the qualifying service for pension under Rule 39(1) of the Pension Rules of 1983. In consequence thereof, the petitioner shall not get family pension under Rules 45 & 47 of the Pension Rules of 1983. The distinction between "resignation" and "voluntary retirement" have been clearly considered and illustrated by the Apex Court in M.R. Prabhakar & Ors vs. Canara Bank & Ors: (2012) 9 SCC 671. The terms "retirement" and "resignation" are two different concepts and bear different considerations and consequences in the service jurisprudence. While resignation brings about complete cessation of master-and-servant relationship, voluntary retirement maintains relationship for purposes of grant of retiral benefits in view of past service. Resignation can be tendered irrespective of length of service whereas in case of voluntary retirement, employee has to complete qualifying service for retiral benefits. In the present case, (L) Nanda Kumar Sinha did not complete the qualifying service for retirement benefits and as such, his voluntarily abandonment of service by any stretch of imagination or hypothesis, can be taken as voluntary retirement and therefore, as held by the Apex Court in the cases discussed above, his voluntarily absence from service for a period which cannot be covered by any form of leave will automatically result to cessation of service. Paras 14, 15 & 19 of the SCC in M.R. Prabhakar‟s case (Supra) read as follows:-
"14. The appellants, in our view, did not retire from the service, but resigned from the service. Appellants tried to build up a case that in the absence of a legal definition of „voluntary retirement‟ or in the absence of legally prescribed consequences of „resignation‟, it must be understood in the sense of voluntary relinquishment of service. It was pointed out that there can be no distinction between „voluntary retirement‟ and „resignation‟ and those expressions are to be understood in their ordinary literal sense.Page 22 of 24
15. We find it difficult to accept the contentions raised by the appellants. There is no ambiguity in the definition clause under Regulation 2(y) which has statutorily brought in the „voluntarily retirement‟ as „retirement‟. Though the concept of „resignation‟ is well known in Service Jurisprudence, the same has not been brought within the definition of „retirement‟ under Regulation 2(y). Further, the words „retired‟ and „retirement‟ have some resemblance in their meanings, but not „resignation‟. Regulation 3(1)(a) specifically used the expression „retirement‟ and the expression „resignation‟ has not been incorporated either in the definition clause or in Regulation 3(1)(a). We need not labour much on this issue, since the difference between these two concepts „resignation‟ and „retirement‟, in the context of the same Banking Regulations 1995, came up for consideration before this Court in Sanwar Mal: (2004) 4 SCC 412: 2004 SCC (L&S) 699, wherein this Court has distinguished the words „resignation‟ and „retirement‟ and held as follows: (SCC p.419, para 9) "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 .... 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.
(emphasis added)
19. We may point out in Sheelkumar Jain: (2011) 12 SCC 197 that this Court was dealing with an insurance scheme and not the pension scheme, which is applicable in the banking sector. The provisions of both the scheme and the Regulation are not pari materia. In Sheelkumar Jain case: (2011) 12 SCC 197, Page 23 of 24 while referring to Para 5, this Court came to the conclusion that the same does not make distinction between „resignation‟ and „voluntary retirement‟ and it only provides that an employee who wants to leave or discontinue his service amounts to „resignation‟ or „voluntary retirement‟. Whereas, Regulation 20(2) of the Canara Bank (Officers) Service Regulations 1979 applicable to banks, had specifically referred to the words „resignation‟, unlike Para 5 of the Insurance Rules. Further, it is also to be noted that, in that judgment, this Court in Para 30 held 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."
17. For the foregoing discussions, this Court is of the firmed view that (L) Nanda Kumar Sinha did not acquire the right for pension. In the result, the petitioner has no right for family pension. However, as the Govt. did not pass any order for imposing major penalty of dismissal or removal from service to (L) Nanda Kumar Sinha, there cannot be denial of gratuity to (L) Nanda Kumar Sinha. (Ref:- D.V. Kappor vs. Union of India & Ors: AIR 1990 SC 1923).
18. In the result, this writ petition is partly allowed to the extent that the respondents shall release the gratuity, provident fund and group insurance, if not already released, to the petitioner within a period of three months from the date of receipt of a certified copy of this judgment and order.
19. In view of above, this writ petition is partly allowed to the extent indicated above.
JUDGE Lam Page 24 of 24