Central Administrative Tribunal - Delhi
Sh. K.A. Dutta vs Union Of India on 20 January, 2009
Central Administrative Tribunal Principal Bench OA 2552/2008 New Delhi this the 20th day of January, 2009 Honble Mrs. Meera Chhibber, Member (J) Sh. K.A. Dutta S/o Late Sh. Ajit Dutta R/o C-117, Sector 36 Greater Noida Dist. Gautam Buddha Nagar, U.P. Applicant (By Advocate Shri A.K. Bhakt) Versus 1. Union of India The Secretary M/o Defence South Block, New Delhi 2. The Director Deptt. of Defence Production/ DGQA, DHQ New Delhi 3. The Controller Quality Assurance (Vehicle) Aurangabad Road, Ahmed Nagar Respondents ORDER (ORAL)
By this OA applicant has sought direction to the respondents to consider the case of applicant for grant of proportionate gratuity with interest in view of letter dated 16.7.1990 issued by respondents themselves.
2. It is submitted by the applicant that he was appointed as Junior Scientific Assistant (hereinafter referred to as JSA) Grade-II on 29.8.1974 and had been working to the entire satisfaction of his superiors. He completed his probation successfully. Unfortunately he was served with a charge-sheet in 1987 for unauthorized absence. The civil surgeon referred him to the psychiatric department. All this led to mental depression and in such state of mind, he tendered his resignation on 8.6.1990 with a request that he be relieved w.e.f. 15.6.1990. Subsequently, he withdrew the resignation on 22.6.1990 but still his resignation was accepted on 16.7.1990 which is absolutely wrong, illegal and arbitrary. Being aggrieved, he filed Writ Petition No. 512/2002. Though the Writ Petition was dismissed but Honble High Court clarified that in case petitioner is entitled to any benefits after resignation was accepted, the same should be paid to the petitioner.
3. In view of above, applicant sought pensionary benefits in view of respondents own letter dated 16.7.1990 but the same has been rejected arbitrarily vide order dated 31.7.2008. Applicant has thus filed the present OA. He has relied on Rule 5 of CCS (Pension) Rules to state that even a person who is allowed to resign is entitled to get proportionate gratuity.
4. I have heard counsel for the applicant. It is relevant to note that the applicant had challenged acceptance of his resignation before the Honble High Court of Delhi in Writ Petition No.512/2002 but the said Writ Petition was rejected on 24.1.2002 (page 33) on the ground of delay and laches.
5. Since his claim for reinstatement had already been rejected as back as in 2002 by the Honble High Court, he cannot be allowed to re-agitate the same issue now meaning thereby applicant had resigned from service which was accepted on 16.7.1990.
6. The question, therefore, arises whether applicant would be entitled to any proportionate gratuity in these circumstances. It is correct that in letter dated 16.7.1990 respondents had stated, he would be entitled to proportionate gratuity. However, it seems when matter was examined further, applicant was found to be not entitled for any gratuity in view of Rule 26 of CCS (Pension) Rules. Accordingly, applicant was informed vide letter dated 31.7.2008 that he is not entitled to any pensionary benefits as his past service stands forfeited in terms of Rule 26 of CCS (Pension) Rules. He was further informed that he was absent from duty w.e.f. 6.11.1989 to 12.7.1990 = 249 days and the period was regularised as EOL W/O pay on private affairs, therefore, there was no leave balance at his credit till the date of resignation.
7. Rule 26 of CCS (Pension) Rules for ready reference reads as under:-
(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 service if it has been submitted to take up, with prior permission, another appointment, whether temporary or permanent, under the Government where service qualifies.
8. It is not even the case of applicant that he had resigned for taking up another appointment with the permission of department. Since it was a simple resignation which was accepted by the department, therefore, applicants case would be covered under sub-rule (1) of Rule 26.
9. Counsel for the applicant relied on Rule 5 of the CCS (Pension) Rules which for ready reference reads as under:-
5. Regulation of claims to pension or family pension (1) Any claim to pension or family pension shall be regulated by the provisions of these rules in force at the time when a Government servant retires or is retired or is discharged or is allowed to resign from service or dies, as the case may be.
(2) The day on which a Government servant retires or is discharged or is allowed to resign from service, as the case may be, shall be treated as his last working day. The date of death shall also be treated as a working day:
Provided that in the case of a Government servant who is retired prematurely or who retires voluntarily under Clauses (j) to (m) of Rule 56 of the Fundamental Rules or Rule 48 or Rule 48-A, as the case may be, the date of retirement shall be treated as a non-working day.
10. It is submitted by the applicant that since applicant was allowed to resign, therefore, he would be entitled to pensionary benefits. This contention has been noted only to be rejected because this rule only states that the persons who are allowed to resign shall be regulated by the provisions of these rules and Rule 26 specifically deals with the persons who have resigned from service. It categorically states on resignation, the past service stands forfeited.
11. Counsel for the applicant could not show any other provision in the CCS (Pension) Rules which entitles a person to get gratuity in spite of resignation having been accepted. He relied on OM dated 11.2.1988 but that is regarding procedure to be followed in accepting the resignation. I have already noted above that this issue cannot be reopened in view of the order passed by Honble High Court of Delhi.
12. Simply because respondents had by mistake written in 1990 that he would be eligible for proportionate gratuity, it would not give any enforceable right to the applicant as there is no such provision in the CCS (Pension) Rules, under which applicant can get gratuity even after resigning from service.
13. In view of above discussion, I find no merit in the OA. The same is accordingly dismissed at admission stage itself. No costs.
(Mrs. Meera Chhibber) Member (J) Rakesh