Central Administrative Tribunal - Delhi
Sh. Jagdish Chand vs Delhi Transport Corporation on 5 October, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA No. 627/2009 With TA NO. 845/2009 New Delhi, this the 5th day of October, 2009 HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) HONBLE MRS. MEERA CHHIBBER, MEMBER (J) Sh. Jagdish Chand, Conductor, (Badge No.3573) R/o House No.843, Khazam Basti, Nangloi, Delhi Cantt. Delhi. Applicant (By Advocate: Sh. Anil Mittal) Versus Delhi Transport Corporation, I.P.Estate, New Delhi. (through its Chairman-cum-Managing Director) Respondent ORDER
Mr. L.K. Joshi, Vice Chairman(A) We are dealing with these two Original Applications in one order as the issues are intertwined and the decision in TA No.627/2009 would decide the issue in TA No.845/2009 also. The facts have been gleaned from both the TAs.
2. The question posed before us is whether an employee of the Respondent DTC would be eligible for pension and other pensionary benefits on resignation from service, if he has completed qualifying service for pension. Judgment of Honourable Delhi High Court in Sudarshan Kumar Vs. Delhi Transport Corporation and another, 1994 (7) SLR 163 (Delhi HC) has been cited to buttress the argument.
3. The facts as culled out from the records would show that the Applicant joined the Delhi Transport Corporation (DTC), the Respondent herein, as Conductor on 1.09.1964. The Applicants service were terminated with effect from 23.12.1985 under Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 (DRTA Regulations), as deemed to have resigned. On labour dispute being raised by the Applicant, Labor Court held the termination of service to be illegal by its order dated 4.02.1998. It was held that the workman was entitled for being reinstated with continuing in service, but he would not be entitled for back wages. Following the directions of the Labour Court, the Applicant was reinstated in the service of the Respondent by order dated 24.06.1998, with immediate effect and with continuity of service, i.e., from the date he was deemed to have resigned from service (23.12.1985) to the date he was reinstated (24.06.1998). It is not in dispute that the Applicant also opted for pension under the scheme of pension of the Respondent. On 11.08.2000, the Applicant applied for premature retirement and for grant of pension. It was rejected by the Respondent on 7.09.2000 on the ground that his application for premature retirement was conditional, which was not permitted under the rules of the Respondent. On 22.09.2000, the Applicant again wrote to the Respondent that he has resigned from the job to look after his ailing wife and that his resignation should be accepted with immediate effect. He also stated in this letter that he should be given all the benefits to which he was entitled till that date, i.e., 22.09.2000. The Respondent gave no response to this letter. Meanwhile, the Applicant had also stopped attending office with effect from 7.09.2000m when his application dated 11.08.2000 for premature retirement was rejected. A notice was issued by the Respondent to the Applicant on 18.01.2001, mentioning therein that he had been absenting from duty since 7.09.2001 without any application for leave and without any prior permission. He was directed to report for duty or in case of his being sick, report to I.P.Depot for medical check-up. The Applicant replied to this notice on 23.01.2001 stating that in view of his resignation dated 22.09.2000, there was no justification for the letter of 18.01.2001. Notwithstanding this, the Respondent sent another notice on 11.06.2001 stating the same as in the earlier letter of 18.01.2001. The Applicant responded to this letter also on 15.06.2001 in the same manner as to the letter dated 18.01.2001. The Respondent then issued a charge sheet dated 27.07.2001 asking him as to why disciplinary proceedings should not be initiated against him for his unauthorized absence from 7.09.2000 onwards. However, the disciplinary proceedings was dropped. The Respondent issued an order dated 6.03.2003 to the effect that the Applicant would retire from service, on superannuation, with effect from 31.07.2003. The order also made a mention of the fact that the Applicant had opted for pension and that his wife Smt. Vidya Devi was his nominee. On 5.09.2003, another order giving details of the Applicants service was issued, which is reproduced below in toto:
Sh. Jagdish Chand, S/o Sh. Tek Chand, Ex-Cond. B.No.3573. P.T.No.18025 was appointed in this corporation on 10-12-63(D/R) & 1.9.64(M/R). Further he has been deem to have resign w.e.f. 23.12.85 vide memo No.HND.3/Cond. Gr/85/6610 dated 24.12.85 and again re-instated in service w.e.f. 24.6.98 without benefit of back wages after the intervening period with continuity of service. He retired from the services of this corporation w.e.f. 31.7.2003 vide memo No.HND.3/Cond./2003/919 dated 6.3.2003. His total period of contribution towards contributory provident fund is less than 16 years and more than 15 years as per detail given below:-
Date of appointment 1.9.64. Dt. Of retirement 31.7.03 Total service 38 yrs. 10 months 30 days. L.W.P. during service 10 yrs. 8 months 30 days. Service deem to have resign w.e.f. 23.12.85 and re-instated w.e.f. 24.6.98. (period count as L.W.P. i.e. 12 yrs. 6 months 1 day. Total L.W.P during service 23 yrs. 2 months 21 days. Net qualifying service 15 yrs. 8 months 9 days.
In accordance with Para 26(3) of DTC employees provident fund regulation, 1978 full share of the employers contribution and interest thereon has been held up as the employee has opted DTC Pension scheme as such the employer share may not be released.
Accordingly, full share of the employee contribution towards in respect of Sh. Jagdish Chand, Ex-Cond. B.No.3573, P.T.No.18025 is hereby released. The amount thereof may be paid through cheque to Sh. Jagdish Chand, Ex-Cond. B.No.2573, P.T.No.18025. The provident fund settlement committee has accorded approval for the above in its meeting held on 11.8.2003.
Nothing else is due from the employee.
Notes:- He has opted DTC Pension.
4. It is in the above overview of the facts, we have heard the learned counsel for both parties.
5. Before we may consider the rival contentions, a note has to be taken of the Rules, on the basis of which the arguments have been supported. Regulation 9 (c) of the DRTA Regulations is extracted below:
9. Termination of Services:-
a ..
b ..
(c) Where a regular/temporary employee wishes to resign from his post under the Authority he shall given three/one months notice in writing or pay in lieu thereof to the Authority provided that in special cases, the General Manager may relax, at his discretion the condition regarding the period of notice of resignation or pay in lieu thereof. Rule 26 of the CCS (Pension) Rules 1972 provide for forfeiture of service on resignation. The Rule has been reproduced below:
26. page 52-53 Rules 48 and 48-A (ibid) provide for retirement after 30 years or 20 years qualifying service respectively. These Rules have also been quoted below:
pages 98-1000
6. The Applicant, it is urged by the learned counsel, had sought voluntary retirement under Regulation 9 (c) of the DRTA Regulations on 11.08.2000. This was rejected as conditional by the Respondent. Thereafter he gave another notice on 22.09.2001, requesting that his resignation may be accepted with immediate effect. The Respondent did not give any response to this for three months. The Respondent, on the contrary gave him notices on 18.01.2001 and 11.06.2001 to join duty. The Applicant had replied to these also and clarified that he had already submitted his resignation. Even the disciplinary proceedings initiated against the Applicant on 27.07.2001 were dropped by the Applicant. The learned counsel for the Applicant would strenuously urge that in view of the notice dated 22.09.2000, adverted to above, under Regulation 9 (c) of the DRTA Regulations, the Applicant should be considered to have retired with effect from 22.12.2000 and not from 31.07.2003. In the light of the order of the Labour Court for counting the service from 23.12.1985 to 24.06.1998, the Applicant would have completed the qualifying service for pension under FR 48. In any case, contends the learned counsel, the Applicant is eligible under FR-48A for pension. He would contend that the period of Leave Without Pay (LWP) has been wrongly calculated in the order dated 5.09.2003, adverted to above, by which his qualifying service has been calculated. Placing reliance on Sudarshan Kumar, learned counsel would contend that on completion of qualifying service for pension, his resignation would not have the effect of forfeiture of his pension.
7. In order to appreciate the facts of Sudarshan Kumar case (supra), the relevant paragraphs of the judgement of the Honourable Delhi High Court are reproduced below:
2,3,4,5,6 The arguments on behalf of the petitioner have been summed up in paragraph 8 of the aforementioned judgement:
8.
The Honoruable Delhi High Court observed thus in paragraph 10 of the judgment:
10.
The learned counsel for the Applicant would contend that this judgement applied mutatis mutandis to his case and on this basis desired relief should be given to him.
.
8. The learned counsel for the Respondents has equally emphatically repelled the arguments on behalf of the Applicant. It is argued that the notice dated 11.08.2000 for premature retirement had been rejected by order dated 7.09.2000 of the Respondents. The other application tendering resignation was given on 22.09.2000. However, the Applicant had stopped attending office from 7.09.2000 onwards. The learned counsel would contend that no reply was given to notice for resignation dated 22.09.2000. Adverting to Rule 26 of the CCS (Pension) Rules, 1972, she would contend that under sub-rule 1 of the aforesaid Rule, the resignation would entail forfeiture of past service. She would contend that in the case of Applicant, only sub-rule 1 would be applicable as the other sub-rules 2 to 4 would not be applicable in the case of the Applicant. Further it is urged that the Applicants contention regarding completion of thirty years of qualifying service is totally misconceived. The Applicant had joined service on 1.09.1964. He completed 21 years and three months service from the date of appointment on 1.09.1964 to the date of deemed resignation on 23.12.1985. During this period, he has been granted leave without pay for ten years, eight months and thirty days by including the period of two years and six months from the end of December, 2002 to July, 2003. If this period is deducted from the leave without pay, which has been counted for the period of service, the Applicants service from 1964 to 23.12.1985 would be of 13 years. If the second period of leave without pay in the order dated 5.09.2003, i.e., twelve years, six months and one day is taken into account fully, even then the Applicants service would only be of 25 years, 6 months and 1 day. The learned counsel would, therefore, contend that in so far as Rule 48 of CCS (Pension) Rules, 1972 is concerned, it would not apply in the case of Applicant because his service is less than 30 years. It is only on completion of 30 years of service that the government servant can give a three months notice in writing to the appointing authority and would be deemed to have retired at the end of this period and then he would be entitled to a retiring pension. However, in case of Rule 48-A of the aforesaid Rules, a government servant after completing twenty years of qualifying service may retire from service after giving three months notice in writing. However, the notice for voluntary retirement would require acceptance by the appointing authority. The argument of the learned counsel is that the notice of premature retirement given by the Applicant on 11.08.2000 had been rejected by the Respondent on 7.09.2000. The resignation given on 22.09.2000 could not be stretched to be considered under Rule 48 of the CCS (Pension) Rules because this mainly would apply only to those who have completed thirty years of qualifying service. The resignation given by notice dated 22.09.2000 would only attract the provisions of Rule 26 ibid, which entails forfeiture of service.
9. The learned counsel for the Respondent would most emphatically urge that the judgement in Sudarshan Kumar (supra) is completely distinguishable in the facts and circumstances of this case. When the petitioner in the aforesaid Writ Petition before the Honourable Delhi High Court resigned, there was no provision for voluntary retirement under Rule 48 of the CCS (Pension) Rules. She would point out that in paragraph 4 of the aforesaid judgement, which has been reproduced in the preceding paragraphs, it has clearly been brought out by the Honourable High Court that Rule 48 of the aforesaid Rules was not applicable to petitioner at that time. The Honourable Court has further considered the argument that such a provision was not available in the .Under these circumstances, the Delhi High Court has come to the conclusion that the petitioner had no occasion to persuade the DTC to retire him by applying a Rule similar to Rule 48 of the CCS (Pension) Rules, 1972 and question of exercising option in the year 1986 did not arise .. the petitioner had resigned from service. However, in the case of the Applicant such a provision was in existence and, therefore, his case is substantially different from the case of Sudarshan Kumar (supra). The learned counsel has also placed reliance on Union of India and other Vs. Braj Nandan Singh, AIR 2005 SC 4403. Braj Nandan Singh, the respondent before the Honourable Supreme Court had joined service on 14.10.1959 and tendered his resignation on 16.05.1977. The resignation was accepted on 17.05.1977. Almost twenty years later, the respondent filed a representation before the Chief Post Master General, Bihar for grant of pension. The same was rejected on the ground that the respondents right for pension had been forfeited by operation of Rule 26 (1) of the CCS (Pension) Rules, 1972. The respondent approached the Patna Bench of the Central Administrative Tribunal, which by an order dated 14.03.2001 held that forfeiture of past service was not sustainable in law. It was held that by operation of Rule 26, the benefit of available to a retired government servant cannot be denied on the purported ground of forfeiture of past service. The Writ Petition of the Union of India was rejected by the Patna High Court. The Honourable Supreme Court held that the High Courts judgement confirming the order of the Tribunal could not be sustained, by observing thus:
6 and 7 in full The learned counsel has also placed reliance on the judgement of the Honourable Supreme Court in Reserve Bank of India and another Vs. Cecil Dennis Solomon and another, 2004 (1) SLR 431. In a similar case of forfeiture of pension on resignation in the context of Pension Regulations of the Reserve Bank of India, the Honourable Apex Court observed thus distinguishing between voluntary retirement and resignation:
Para 9 of RBI
10. In service jurisprudence, the expres-sions superannuation, voluntary retirement, compulsory retirement and resignation con-vey different connotations. Voluntary retire-ment 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 distinc-tions 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 prescribed period of quali-fying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, same is not denied. In case of the former, permission or notice is not mandate, while in case of the latter, permission of the con-cerned employer 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 Punjab National Bank v. P. K. Mittal (AIR 1989 SC 1083), on interpretation of Regulation 20(2) of the Punjab National Bank Regulations, it was held that resignation would automati-cally take effect from the date specified in the notice as there was no provision for any acceptance or rejection of the resignation by the employer. In Union of India v. Gopal Chandra Misra (1978 (2) SCC 301), it was held in the case of a Judge of the High Court having regard to Article 217 of the Constitution that he has an unilateral right or privilege to resign his office and his resignation be-comes effective from the date which he of his own volition, chooses. But where there is a provision empowering the employer not to accept the resignation, on certain circum-stances e.g. pendency of disciplinary pro-ceedings, the employer can exercise the power.
Having given our utmost consideration to the rival contentions and after perusal of records placed before us, we are of the considered opinion that the Applicant in the instant case had resigned from service of the Respondent - DTC on 22.09.2000. His pension, therefore, would be forfeited as per provisions of Rule 26 of the CCS (Pension) Rules, 1972. The Applicant, as the calculation shown by the learned counsel for the Respondents, would show has not completed thirty years of qualifying service. The learned counsel for the Applicant had argued that in the alternative, since he has completed twenty-five years of service, Rule 48-A of the CCS (Pension) Rules would be applicable to him and he would be eligible for pension by virtue of his application dated 22.09.2000. However, he is clearly barred from this because by application dated 22.09.2000, the Applicant had resigned from service. His application dated 11.08.2000, had been rejected as per provisions of Rule 48-A of the CCS (Pension) Rules.