Central Administrative Tribunal - Allahabad
Unknown vs The Union Of India Through General ... on 3 February, 2012
(Reserved)
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH
ALLAHABAD
ALLAHABAD this the ___________ day of ________, 2012
Present:
HONBLE MR. SANJEEV KAUSHIK, MEMBER- J
ORIGINAL APPLICATION NO. 686 OF 2009
Nafisul Hasan, S/o Late Refiqul Hasan, Aged about 80 years, r/o Village & Post- Mahammadpur, Disctrict- Kanpur Dehar.
Applicant.
V E R S U S
1. The union of India through General Manager, West Central Railway, Jabalpur, JDA Bhawan, Civic Centre, Garaal Jabalpur (M.P).
2. Divisional Railway Manager, West Central Railway, Habib Ganj, Bhopal.
3. General Manager, West Central Railway, Jabalpur, J.D.A Bhawan, Civic Centre, Garatal, Jabalpur (M.P).
..Respondents
Present for the Applicant: Sri O.P. Gupta
Present for the Respondents: Sri Ravi Ranjan
O R D E R
By way of instant Original Application filed under section 19 of Administrative Tribunals Act 1985 the applicant has prayed for quashing of order dated 03.02.2009 passed by the D.R.M.,Bhopal (Annexure-1) and Appellate Order dated 22.05.2009 passed by Respondent No. 3 (Annexure A-2). Further prayer has also been made for a direction to the respondents to count entire period of service rendered by the applicant w.e.f. 1948 to 1970 as qualifying service for the purpose of pension and other retiral benefits.
2. Brief facts of the case are that the applicant, who was initially appointed as Points Man in the Railways on 18.07.1948 promoted in due course as Lever Man, thereafter as Cabin Man in 1968 and resigned from service in June 1970 due to unavoidable family circumstances. Lateron, he applied for restoration of his service in 1971 as he became free from family problems and as a consequence of which on 23.03.1972, the respondents allowed him duty as Gate Man, which is class IV post instead of Cabin Man, which is class III post. In November 1979 the applicant was promoted as Trains Clerk i.e. class III post and thereafter as Chief Trains Clerk in January 1987. The applicant retired on superannuation on 30.06.1987.
3. The grievance of the applicant is that after retirement, the services rendered prior to his resignation i.e. from 1948 till 1972, have not been counted for the purposes of post retiral benefits, hence he preferred a representation dated 11.09.1987. As the respondents did not pay any heed to the said representation, the applicant preferred O.A No. 64/08, which was disposed of by this Tribunal vide order dated 28.11.2008 with direction to the respondents to decide the representation of the applicant. In compliance thereto, the respondents passed the order dated 03.02.2009 (Annexure-1) rejecting the representation of the applicant. Against the order dated 03.02.2009 the applicant preferred an appeal to the General manger, Jabalpur, which too was rejected vide order dated 22.05.2009 (Annexure A-2). Hence the instant O.A.
3. Learned counsel for the applicant Shri O.P. Gupta argued that since the resignation of the applicant was due to unavoidable family circumstance and subsequently on the request made by the applicant, the respondents assigned duty as Gate Man, therefore, once the respondents have appointed the applicant after his resignation then the past services rendered by the applicant before his resignation is to be counted for the purposes of pensionary benefits and other post retiral benefits. He further argued that on the date of submission of his resignation the applicant had already put in more than 20 years of service , which is qualifying service for pensionary benefits and merely submitting the resignation cannot disentitle him for the benefit of past service. In support of his contention, learned counsel for the applicant placed reliance on the judgment of Full Bench of Bombay Bench of this Tribunal in the case of Smt. Shobha M. Zende Vs. U.O.I & Ors. 1997-2001 A.T. Full Bench Judgments pg. 292. He further argued that Rule 67(1) of Railway Servants (Pension) Rules 1993, entitles a railway servant to retire from service after completing 20 years qualifying service by giving notice of not less than three months in writing to the appointing authority hence the resignation of the applicant is liable to be treated and considered as a letter for voluntary retirement on completion of 20 years qualifying service. It is urged by the learned counsel for the applicant that once the applicant was re-appointed then in terms of Rule 41 of Railway Service (Pension) Rules 1993 it is deemed that he was allowed to withdraw resignation.
3. Upon notice the respondents filed detailed counter affidavit and contested the claim. Learned counsel for the respondents Shri Ravi Ranjan argued that as the applicant resigned from service, therefore, he was entitled for SRPF and no gratuity was payable to him. The applicant was re-engaged on 22.03.1972 as a Gateman in Grade Rs. 70-85 as a fresh entrant in service vide letter dated 22.03.1972. Thereafter he was given increments and promotion till retirement on 30.06.1987. Mr. Ranjan further argued that since the applicant was re-engaged as fresh face w.e.f. 22.03.1972 his services at the time of retirement was counted from 22.03.1972 to 30.06.1987 and accordingly the retiral dues i.e. P.F, gratuity, and pension was calculated and paid to him. It is averred that the since the applicant has himself resigned from service, hence rule 41 of Railway Service (Pension) Rules, as relied on by the applicant, is not applicable as the applicant was never permitted to withdraw his resignation in public interest, nor the Railway administration has asked suo-moto from the applicant to withdraw his resignation. Learned counsel for the respondents urged that the resignation by a Railway servant from service , unless it is allowed to be withdrawn in public interest by the appointing authority, shall lead to forfeiture of his past service. Lastly he requested for dismissal of O.A.
6. I have considered the submission made by learned counsel for parties and have gone through the record as well the judgment cited by the respective parties.
7. The question arises for determination is whether an employee, who is having qualifying service for post retiral benefits, tenders unconditional resignation, which was accepted, is entitled for retiral benefits or the same will be forfeited or his resignation will be converted into a request for voluntary retirement? The applicant herein joined the respondents department on 18.07.1948 and in June 1970 he submitted his resignation. Later on in the year 1971, the applicant requested to withdraw his resignation and to restore his service. Vide order dated 23.03.1972 the respondents allowed the applicant to join as Gate Man, which is Class IV post. Thereafter he was given promotion and ultimately allowed to retire on attaining the age of superannuation on 30.06.1987. The request of the applicant for counting his past service from 1948 to 1972 towards qualifying service, was rejected by the respondents by impugned order on the pretext that he has tendered resignation. It is not disputed that before resignation the applicant had put in more than 24 years of service and as per rules, 20 years service is the qualifying service for getting retiral benefits on seeking voluntary retirement. But the distinction between a resignation and voluntary retirement is well-known in service jurisprudence. Voluntary retirement, having regard to the scheme of the pension regulations, may be accepted or may not be accepted as it is subject to express approval of the employer whereas a resignation becomes effective upon expiry of the stipulated period upon service of notice. Honble Supreme Court in the case of Moti Ram v. Param Dev reported in SCC pp 735-36 para 16 has observed as under:
16. As pointed out by this Court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the act of giving up of relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it [Union of India v. Gopal Chandra Misra ]. If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment taken effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it.
8. It is not disputed that the resignation of the applicant dated 11.09.1970 has been accepted by the respondents on 08.01.1971 and all admissible dues have also been paid to him on 24.02.1971, as reflected in service book , which is appended with the Counter Affidavit. The applicant was re-engaged on 22.03.1972, which is also clear. The applicant tendered his resignation as Class III employee and he was re-engaged as Class IV employee i.e. Gate Man. Therefore, the word re-engaged denotes it is a fresh appointment and not in continuation of earlier appointment. It is settled proposition of law that resignation, if accepted, terminates the relationship of employee and employer and also forfeits all retiral benefits , which an employee earns during his service. The above view finds support from the judgment of Hon'ble Supreme Court in the case of Chanel Mal Chayal v. State of Rajasthan in which principle of law has been well settled that an incumbent is entitled to withdraw his resignation before acceptance. After acceptance of resignation jural relationship between the employee and employer ceases and employee cannot claim withdrawal of resignation nor reinstatement to the post. The incumbent cannot claim as a matter of right to be reemployed also when there is no rule relating to re-employment after acceptance of resignation.
9. Further Rule 41 of Pension Rules 1993, which reads as under, also mandates the same that if a resignation is accepted then it must lead to forfeiture of the past service unless it is allowed to be withdrawn in public interest : -
41. Forfeiture of service on resignation (1). Resignation by a railway servant from a service or a post, unless it is allowed to be withdrawn in the public interest by the appointing authority shall lead to forfeiture of his past service.
2. A resignation shall not lead to 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 for pension.
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 railway 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 railway 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, 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 railway servant is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninty days;
(iv). That the post, which was vacated by the railway servant on the acceptance of his resignation or any other comparable post, is available. But it is not the position, as contained in rule 41, in the present case as it is reflected from the service book, the resignation of the applicant was accepted but on his own requested he was re-engaged.
10. In view of the above the applicant has no case. The reliance placed by the learned counsel for the applicant in the case of Smt. Shobha M. Zende (Supra) is not applicable in the facts and circumstances of the case as the order itself says .in the facts and circumstances of any particular case
11. In view of the above, we find no reason to interfere with the impugned order. Accordingly, the O.A is dismissed being devoid of merits. No costs.
(Snajeev Kaushik) Member-J Anand/ ??
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8 O.A No. 686/2009