Central Administrative Tribunal - Delhi
Rajinder Pal Singh vs Delhi Development Authority on 30 October, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.185/2010 MA.No.435/2010 Order reserved on 17th October, 2012 Order pronounced on 30th October, 2012 Honble Shri A.K. Bhardwaj, Member (J) Rajinder Pal Singh s/o Shri Chhattra Singh r/o H.No.318, Sector 1 U/G Vaishali Ghaziabad (UP) .. Applicant (By Advocate: Shri Ajesh Luthra) Versus 1. Delhi Development Authority Through its Deputy Commissioner Vikas Sadan, INA Market New Delhi 2. The Executive Engineer Eastern Division 9 Delhi Development Authority Seed Bed Park, Shakarpur Delhi-92 ..Respondents (By Advocate: Shri Manish Garg) O R D E R
As can be delineated from the counter reply filed on behalf of the respondents, the applicant joined Delhi Development Authority (DDA for short) as muster roll employee w.e.f. 31.12.1981. He was brought on the work charged establishment on 21.7.1984 and was treated as regular work charged employee vide order dated 10.1.1991. He resigned from service on 1.11.2006. In the year 2008, the applicant filed OA-666/2008 before this Tribunal claiming his retiral dues from the respondents, which was disposed of in terms of order dated 31.3.2008 with the following directions:
Claim of applicant is for retiral dues pursuant to his resignation. A representation to this effect is yet to be disposed of. OA stands disposed of with a direction to the respondents to treat the present OA as representation of the applicant and the same may be disposed of by a speaking order within a period of two months from the date of receipt of a copy of this order. No costs.
2. Treating the OA of the applicant as representation, the Executive Engineer /ED-9, DDA, New Delhi disposed of the same by order No.F.2(472)97/ED-9/DDA/1190 dated 5.8.2008 taking the view that a Government servant quitting services on resignation would not be entitled for any pension or gratuity or terminal benefits. Questioning the aforesaid order dated 5.8.2008 and seeking issuance of direction to the respondents to release the retiral / terminal benefits as well as monthly pension due to him in accordance with law, the applicant filed the present OA under Section 19 of Administrative Tribunals Act, 1985 on the following grounds:
in terms of Rule 48-A of CCS (Pension) Rules, 1972 (Rules 1972 for short), the applicant is entitled to pensionary benefits, there cannot be any rational distinction between the employees who resign and retire, the applicant has completed over 20 years of service, thus the respondents could not have withhold his legitimate dues; and the amount of gratuity payable to an employee should be released immediately and in any case within three months from the date of his retirement.
3. In the counter reply filed on behalf of the respondents, it is pleaded that:
the original application filed on 13.1.2010 is barred by limitation, the regular service of the applicant from 10.1.1991 to 31.10.2006 was only 15 years, 9 months and 22 days, i.e., not sufficient to qualify him for gratuity and pension, as an employee qualifies for pension and gratuity only on completion of 20 years of service; and the Government servant quitting service on resignation is not entitled for pension,
4. Shri Ajesh Luthra, learned counsel appeared for the applicant submitted that in terms of G.I., M.F., OM No.F.12(1)-E, V/68, dated 14.5.1968 half of the service paid from contingencies has to be counted towards pension at the time of absorption of a person in regular employment subject to the conditions mentioned in the said OM, thus the applicant was entitled to the benefit of 50% of the service between 31.12.1981 to 10.1.1991 to be added to his regular service of 15 years, 9 months and 22 days for computing the qualifying service for pension.
5. He also contended that the resignation tendered by an employee after having rendered a length of service qualifying for pension would not result in forfeiture of such qualifying service. Referring to the resignation letter, Shri Luthra contended that the applicant being class IV employee was not aware of the expression required to be used for voluntary retirement, thus could use the simple expression tyaag patra while by all means he intended to seek voluntary retirement only.
6. Shri Luthra relied upon the two decisions of the Mumbai Bench of this Tribunal in Shri B.R. Jadhav v. Union of India & others, 1996 (2) ATJ 111 and Smt. Gayabhai Gangaram & others v. Union of India & others, 1999 (2) ATJ 578. He has also relied upon the judgments of the Honble High Court of Delhi in Sudharshan Kumar v. Delhi Transport Corporation & another, 1994 (7) SLR 163 and in Ashwani Kumar Sharma v. Oriental Bank of Commerce, 103 (2003) DLT 738 (DB), judgment of the Honble High Court of Madhya Pradesh in Gopi Pillai v. M.P.E.B, Jabalpur, 2002 (3) ATJ 586, judgment of the Honble High Court of Punjab and Haryana in Kewal Singh v. State of Punjab, 2003 (1) ATJ 462 and the judgment of the Honble High Court of Judicature at Madras in K. Devan v. The District Forest Officer (W.P.No.5170/2011) decided on 15.12.2011. Lastly, he relied upon the judgment of the Honble Supreme Court in Yashwant Hari Katakkar v. Union of India & others, (1996) 7 SCC 113 and submitted that the expression resignation as found in Shorter Oxford Dictionary means retirement, thus merely on the basis of the use of words tyaag patra by the applicant in his letter of quitting the service should not be held against him to deprive him from pension.
7. On the other hand, Shri Manish Garg, learned counsel for the respondents has relied upon the Orders of this Tribunal in Jagdish Chand v. Delhi Transport Corporation (TA-627/2009 with connected TA) decided on 5.10.2009 and Smt. Shanti Devi v. Delhi Transport Corporation (OA-2384/2009) decided on 21.5.2010. He has also relied upon the judgments of the Honble Supreme Court in Union of India & others v. Braj Nandan Singh (Appeal (C) No.4406/2005 decided on 19.10.2005, Reserve Bank of India & another v. Cecil Dennis Solomon & another (Appeal (C) No.9547/2003 with connected Appeal) decided on 4.12.2003, Union of India & others v. Rakesh Kumar (Appeal (C) No.6166/2009 with connected Appeal) decided on 30.3.2001; and Union of India & another v. Madhu E.V. & another (Civil Appeal Nos.9647-9650 of 2003) decided on 26.4.2012.
8. Having relied upon the said judgments, he contended that:
before submitting his resignation, the applicant had not completed the requisite length of service to qualify for pension; and and even if he had rendered qualifying service for pension, the resignation tendered by him resulted in forfeiture of same.
9. Having heard the learned counsel for the parties and perused the records, I find the following propositions to be determined in the present OA:
Whether the OA is barred by limitation?
Whether half of the contingent service rendered by the applicant need to be added in computing the qualifying service for pension?
Whether the resignation from service would result in forfeiture of the past service?
Whether the applicant who resigned after completing 25 years of casual and regular service could be deprived of his pensionary benefits merely on the ground that he did not use the appropriate expression to quit the service with pensionary benefits?
10. As far as the plea of delay is concerned, questioning the impugned order dated 5.8.2008, the applicant had filed OA-2076/2009, which was allowed to be withdrawn in terms of order dated 6.8.2009 with liberty to file the fresh OA. The present OA filed on 31.1.2010 is within one year from 6.8.2009, thus is within the prescribed period of limitation. In acceptance of the said explanation given by the applicant, the application for condonation of delay (MA-435/2012) is allowed.
11. Admittedly, the applicant had rendered regular service of 15 years, 9 months and 22 days before quitting the service w.e.f. 31.10.2006. Beside the regular service, he rendered casual service (paid out of contingencies) from 31.12.1981 to 10.1.1991. In terms of the G.I., M.F., OM No.F.12(1)-E, V/68, dated 14.5.1968 ibid, half of the service paid from contingencies is required to be counted towards pension at the time of absorption of a person in regular employment. As has been viewed by the Honble High Court of Madhya Pradesh in Gopi Pillais (supra), past temporary service should be counted for pensionable benefits. In the said case, the High Court found no permissible or intelligible criteria to discard service rendered by a regular incumbent in work charged establishment particularly when service of work charged establishment is also pensionable while computing qualifying service under Rule 42 of Rules of 1976. Para 14 of the said judgment reads as under:-
14. In R.L. Marwaha v. Union of India, 1987 (4) SCC 31, ex-government servants were absorbed in the service of autonomous bodies; the benefit of past service was directed to be given to all employees. In T.S. Thiryvengudaman v. Sec. to Government of India, (1993) 2 SLR 34. Restriction on pensionary benefits from a particular date was held to be impermissible and unreasonable. In M.C. Dhingra v. Union of India, (1996) 7 SCC 564; AIR 1996 SC 2963 Apex Court has held that past temporary service should be counted for all, fixing of cut off date was held arbitrary. In State of W.B. v. Ratan Behari Dey, (1993) 4 J.T. 504 employers right to upward revision was upheld subject to without bringing discrimination. I find no permissible or intelligible criteria to discard service rendered by a regular incumbent in work charged establishment particularly when service of work charged establishment is also pensionable such benefit obviously has to be clubbed computing qualifying service under Rule 42 of Rules of 1976.
12. In Smt. Gayabhai Gangarams case (supra), this Tribunal viewed that the 50% period of service as casual labour is required to be added towards qualifying service of railway employee for the purpose of pension. Paragraph 4 of the said judgment reads as follows:
4. After hearing the learned counsel for the parties and perusing the record, I find that the respondents have stated in paragraph 4 of their reply that w.e.f. 23.8.1978 the applicant was given monthly temporary status and accordingly he worked as monthly rated casual labour till 27.12.1989. It is further stated that the applicant was regularly appointed as Khalasi w.e.f. 28.12.1989 and worked up to 31.3.1992. The applicant was thereafter promoted as Helper Khalasi w.e.f. 1.4.1992 and he retired from the Railways on 31.3.1996. Under these circumstances, I am of the view that the applicant should have been considered as a regular employee of the Railways w.e.f. 28.12.1989 and not from 1.4.1992 when he was promoted as Helper Khalasi. This period from 28.12.1989 to 31.3.1996 works out to 6 years 3 months and 3 days. From 23.8.1978 to 27.12.1989 the period works out to 11 years 4 months and 4 days. It is not disputed that 50% period of such service as Casual Labour is required to be added towards qualifying service of a Railway employee for the purpose of pension. Accordingly, 50% of this period of 11 years 4 months and 4 days works out to 5 years 8 months and 2 days. If this period is added to the admitted period of regular service of 6 years 3 months 3 days, the period exceeds the minimum required qualifying service of 10 years for the purpose of pension. Accordingly, I am of the view that the applicant is entitled to the reliefs claimed by him in this O.A.
13. Also in B.R. Jadhavs case (supra), the Mumbai Bench of this Tribunal directed the Union of India to count 50% of the service of the applicant therein during the period from 1.1.1972 to 10.10.1989 and add the same to regular service of 4 years and 9 months put in by him to determine his qualifying service for pension.
14. In Kewal Singhs case (supra), the Honble Punjab & Haryana High Court viewed that there is no basic difference between the persons appointed on ad hoc basis and those appointed on work charged basis.
15. In Yashwant Hari Katakkars case (supra), the Apex Court viewed that it would be travesty of justice if an employee is denied pensionary benefits simply on the ground that he was not a permanent employee. Paragraph 3 of the judgment reads as under:-
3. Dr. Anand Prakash, learned senior Advocate appearing for the Union of India, has contended that on March 7, 1980 when the appellant was pre-maturely retired he had put in 18 years of quasi-permanent service. According, to him to earn pension it was necessary to have minimum of 10 years of permanent service. It is contended that since the total service of the appellant was in quasi-permanent capacity he was not entitled to the pensionary benefit. There is nothing on the record to show as to why the appellant was not made permanent even when he had served the Government for 18 years It would be travesty of justice if the appellant is denied the pensionary benefits simply on the ground that he was not a permanent employee of the Government. The appellant having served the Government for almost two decades it would be unfair to treat him temporary/quasi-permanent. Keeping in view the facts and circumstances of this case we hold that the appellant shall be deemed to have become permanent after he served the Government for such a long period. The services of the appellant shall be treated to be in permanent capacity and he shall be entitled to the pensionary benefits. We allow the appeal, set aside the judgment of the Tribunal and direct the respondents to treat the appellant as having been retired from service on' March 7, 1980 after serving the Government for 18 years (more than 10 years as permanent service) and as such his case for grant of pension be finalised within six months from the receipt of this order. The appellant shall be entitled to all the arrears of pension from the date of retirement. No costs.
16. In view of the aforementioned legal position, it is viewed that the 50% of service rendered by the applicant from 31.12.1981 to 10.1.1991 need to be added to regular service of 15 years, 9 months and 22 days rendered by the applicant for the purpose of computing his qualifying service for pension.
17. In terms of Rule 26 of CCS (Pension) Rules, resignation from a service or a post entails forfeiture of past service, except where it has been submitted to take up, with proper with permission, another appointment, whether temporary or permanent, under the Government where service qualifies.
18. In Braj Nandan Singhs case (supra), the Honble Supreme Court viewed that after the acceptance of resignation in terms of Rule 26 of CCS (Pension) Rules, the past service stands forfeited and that being so it has to be held that for being entitled to pension the concerned employee need to have the qualifying period of service. Relevant excerpt of the said judgment reads as under:-
It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent.
Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. M/s Price Waterhouse and Anr. (AIR 1998 SC 74)) The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner (1846 (6) Moore PC 1), Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. (JT 1998 (2) SC 253)). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).
The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981).
In Dr. R. Venkatchalam and Ors. etc. v. Dy. Transport Commissioner and Ors. etc. (AIR 1977 SC 842), it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.
The above position was highlighted by this Court in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat and Another (AIR 2004 SC 3946).
The High Court's judgment affirming the order of the Tribunal cannot be sustained and deserves to be set aside which we direct. The appeal is allowed but without any order as to costs.
19. In Cecil Dennis Solomons case (supra), the Honble Supreme Court viewed that there are four types of retirement and the resignation does not fit into anyone of the said (page 20 of the judgment). Relevant excerpt of the said judgment reads as under:
Under Regulation 26 of the Staff Regulations, four types of retirements were contemplated as on Ist November, 1990 i.e. (a) Retirement on Superannuation, (b) Compulsory Retirement on Invalidation, (c) Compulsory Retirement and (d) Voluntary Retirement. Resignation does not fit into any one of the said categories.
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 prescribed period of qualifying 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 mandated, while in case of the latter, permission of the concerned 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 automatically 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 becomes 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 circumstances e.g. pendency of disciplinary proceedings, the employer can exercise the power. On the contrary, as noted by this Court in Dinesh Chandra Sangma v. State of Assam (AIR 1978 SC 17), while the Government reserves its right to compulsorily retire a Government servant, even against his wish, there is a corresponding right of the Government servant to voluntarily retire from service. Voluntary retirement is a condition of service created by statutory provision whereas resignation is an implied term of any employer-employee relationship.
Looking from any angle the High Court judgment is indefensible and is set aside and the writ petitions filed by the respondents-employees stand dismissed. Appeals are allowed. There shall be no orders as to costs.
20. In view of the aforementioned, it is held that the resignation from service in terms of Rule 26 (1) of CCS (Pension) Rules entails forfeiture of past service and the service so forfeited does not reckon as qualifying service for pension. In the present case, on acceptance of his resignation w.e.f. 1.11.2006, the applicant espoused his claim for gratuity and pensionary benefits by making representations dated 20.4.2007, 6.8.2007 and 25.9.2007. In terms of application/letter dated 1.11.2006, the applicant had requested the concerned Executive Engineer to accept his tyaag patra. In the said application/letter, he has not mentioned any provision of rules, i.e., Rules 26 or 48-A of CCS (Pension) Rules. From the expression used in the letter, the motive and intention of the applicant cannot be inferred. However, his subsequent representation dated 20.4.2007, 6.8.2007 and 25.9.2007 (Annexure A-3) strengthen the plea of Shri Ajesh Luthra, learned counsel for the applicant that the applicant desired to quit the service with pensionary benefits. In his representation dated 12.9.2008 (Annexure A-7), he specifically stressed that his resignation was accepted under voluntary retirement scheme. Paragraph 3 of the said representation reads as under:-
3. It is stated that I have completed more than 20 years continuous service under CCS (Pension) Rules I am entitled for all benefits emmerated in the Rule 48 (A) of the CCS Pension Rule 1972. My resignation was accepted/under voluntary retirement scheme. Further a Govt. servant becomes eligible to get gratuity after completion of 1 year service. In the present case I have rendered over 20 years service gratuity & leave encashment cannot be denied. More over for granting pension the qualifying service has been prescribed 10 years kindly go through the rule not only this I am entitled for two type of gratuity No.1 retirement Gratuity & 2 is service gratuity.
21. In Ashwani Kumar Sharmas case (supra), the Honble Delhi High Court noted the view of Honble Supreme Court in J.K. Cotton Mills Spinning and Weaving Mills Company Ltd. v. State of U.P. & others, 1990 SCC (L&S) 570, that the term resign as found in Shorter Oxford Dictionary includes retirement. The Honble High Court has also noted the view taken in by the Apex Court in Union of India & others v. Lt. Col. P.S. Bhargava, (1997) 2 SCC 28 that once an officer has to his credit the minimum period of qualifying service, he earns a right to get pension. Paragraphs 40 to 50 of the said judgment read as under:-
40. In J.K. Cotton Spinning and Weaving Mills Company Ltd. v. State of UP and Ors., 1990 SCC (L&S) 570, it was held:
"The meaning of term 'resign' as found in the Shorter Oxford Dictionary includes 'retirement'. Therefore, when an employed voluntarily tenders his resignation it is an act by which he voluntarily gives up his job. We are, therefore, of the opinion that such a situation would be covered by the expression 'voluntary retirement' within the meaning of Clause (i) of Section 2(s) of the State Act. In Santosh Gupta case Chinnappa Reddy, J. observed as under: (SCC p. 342, para 5) "Voluntary retrenchment of a workman or the retrenchment of the workman or reaching the age of superannuation can hardly be described as termination, by the employer, of the service of a workman."
(Here the word "retrenchment' has reference to 'retirement'.) The above observation clearly supports the view which commends itself to us."
41. In Union of India and Ors. v. Lt. Col. P.S. Bhargava, Kirpal, J., as the learned Chief Justice then was, observed:
"19. ...Once an officer has to his credit the minimum period of qualifying service, he earns a right to get pension and as the Regulations stand, that right can be taken away only if an order is passed under Regulation 3 or 16. The cases of voluntary resignations of officers, who have to their credit the minimum period of qualifying service are not covered by these two Regulations and, therefore, such officers, who voluntarily resign, cannot be automatically deprived of the terminal benefits."
42. In Sudarshan Kumar v. Delhi Transport Corporation, , it was held that an employee cannot be deprived of his qualifying service for earning pension only because he resigns. Relying, inter alia, on the decision of the Apex Court in D.S. Nakara and Ors. v. Union of India, it was held:
"10. If a person is entitled to pension on retirement after completing qualifying service, it follows that, the said benefit is a benefit earned by the employee because of the service rendered by him. Can it be said that the benefit so earned ceases to be a benefit only because, at the end of the qualifying service, the employee resigns? If that is to be the law, will it not be penalizing such a person for resigning from service, resulting in the forfeiture of the benefit earned. The letter dated 2.9.1993 (Annexure 2) written to the petitioner proceeds on the assumption that benefit of past service will be lost on resignation as per Rule
26. But it fails to consider the implications of Rule 48 and the need to treat all employees who rendered qualifying years of service on equal footing. It should be noted that the petitioner had no occasion to persuade the first respondent-Corporation to retire him by applying a Rule similar to Rule 48 of the Rules. Question of exercising option did not arise in the year 1986 by which time the petitioner had resigned from service, however, the result of the resignation was in no way different from the normal retirement. In both the cases the employee concerned will be going out of the actual service after rendering a requisite number of qualifying service. In the circumstances, I am of the view that the term "retired w.e.f. 3rd August, 1981" found in Clause 3 of the Officer Order No. 16 should include a person who resigned also w.e.f. 3rd August, 1981 after rendering qualifying years of service of 30 years as stated in Rule 48 of the Rules. I ma of the view that the phraseology used in Clause 3 of the Scheme should be understood in a liberal sense so as to extend the benefit to all those who rendered the qualifying service and there cannot be any artificial distinction between a person who retired and a person who resigned."
43. In Jagpal Singh v. Delhi Transport Corporation, a learned Judge of this court relied upon Sudarshan Kumar v. DTC and Ors., 1994 (7) SLR 163 for negativing a defense that for the purpose of earning pension, an employee must complete 30 years of qualifying service.
44. In Delhi Transport Corporation v. Shri Baijnath Bhargava and Ors., LPA 33/98, one of the questions which were raised before the Division Bench was:
"6. Whether an employee who had resigned from service would be entitled to pension because of Rule 26 of the CCS (Pension) Rules?"
45. Upon consideration of the prevailing rules and upon surveying the case laws on the subject, it was observed:
"This leaves us with the last question namely an employee having resigned from service whether he is entitled to pension?
Learned Single Judge placed reliance upn the decision in Sudarshan Kumar v. Delhi Transport Corporation and Anr. 1994 (7) SLR 163 wherein it was held that benefit of the Pension Scheme extends to all those who renders qualifying service. It was held that there cannot be any distinction between a person who retires and a person who resigned. In both cases the employee goes out of service after rendering requisite qualifying service. Learned Single Judge observed that para 3 of the Scheme should be understood in a liberal sense so as to extend benefit of the Pension Scheme to all those who rendered the qualifying service and there cannot be any artificial distinction between a person who retires and a person who resign.
We are in full agreement with the view taken by learned Single Judge in Sudarshan Kumar's case (supra) Learned Single Judge held that employee who was in service on 27.11.1992 and had thereafter resigned from service, in case had rendered requisite qualifying service and exercised option within the prescribed period or extended period, will also be entitled to pension on fulfilllment of the other conditions."
46. In a case before one of us (Sikri, J.), entitled Amita Singh v. Air India and Anr., 2000 VII AD (Delhi) 16, a question arose as to whether when an employee for personal reasons prays for voluntary retirement, can the same had been taken to be a resignation so as to deprive her from the grant of pensionary benefits, it was held:
"9. In view of the aforesaid position in law, it does not lie in the mouth of respondent to argue that since the petitioner did not submit request for voluntary retirement, and what the petitioner submitted was only a letter of resignation, her request of voluntary retirement could not be acceded to. This is not all the reason disclosed in letter dated 10.9.1997. On the contrary, as observed earlier, this letter proceeds on the basis that petitioner made request for voluntary retirement but the same could not be acceded to only on the ground that there was no provision for the same in respect of workmen category to which the petitioner belonged. Thus respondents having themselves proceeded on the basis tat there was a request for voluntary retirement made by the petitioner are precluded from contending that petitioner submitted letter of resignation only and not the request for voluntary retirement."
47. In the instant case also, it appears that the respondents themselves had proceeded on the basis that it was a case of voluntary retirement.
48. In DTC Retired Employees' Association and Ors. v. Delhi Transport Corporation and Ors., as regards the deemed option for pension scheme by employees who had not exercised any option within the prescribed time-limit, it was held that the scheme was applicable only to the employees who were in service on the cut off date.
49. In B.M. Ramachandra v. Canara Bank and Ors., Writ Petitions Nos. 3919 to 3994 of 1996 decided on 20th September 1996, Bakthavatsalam, J. of the Karnataka High Court emphasized the reason for difference in qualifying period for pension and gratuity stating:-
"9. I do not see any distinction amongst the retired employees. If a proper construction are given to the Regulations cited supra, in my view the Bank cannot make a distinction among the employees who retired under the scheme of voluntary retirement scheme and employees who retired otherwise because the term 'retirement' which occurs in the Regulations includes voluntary retirement. I do not see any reason to confine voluntary retirement only under Regulation - 29 of the Regulations. If such a construction is given to Regulation 29 of the Regulations, it offends Article 14 of the Constitution of India, as argued by the learned Counsel for the Petitioners. It is always open to this Court to give a construction of the Regulations to achieve the objects. As such in my view, the voluntary retirement which is found in the regulations has to be taken as it applies to all the employees who have opted under the voluntary retirement scheme, as found in Regulation 3(1) of the Regulations. In my view a combined reading of Regulation - 3 read with Regulation 34 clearly shows that the petitioners are also entitled to get the pensionary benefits which are extended by the Bank, even though it is for the first time. What the bank wants is a distinction between the employees who are retired and the employees who sought voluntary retirement and retired. This distinction surely in my view is violative of Article 14 of the Constitution of India. The Supreme Court in ALL INDIA RESERVE BANK RETIRED OFFICERS ASSOCIATION and Ors. v. UNION OF INDIA and Ors. has held as follows:
"5. The concept of pension is now well known and has been clarified by this Court time and again. It is not a charity or bounty nor is it gratuitous payment solely depends on the whim or sweet will of the employer. It is earned for rendering long service and is often described as deferred portion of compensation for past service. It is in fact in the nature of a social security plan to provide for the December of life of a superannuated employee. Such social security plans are consistent with the socio-economic requirements of the constitution when the employer is a State within the meaning of Article 12 of the Constitution.' In my view it is not a new retirement benefit. The regulations framed by the Bank is for giving the pensionary benefits to all the employees of the Bank either retired on attaining the age of superannuation or retired under the scheme of voluntary retirement scheme. Therefore, I do not think it is correct on the part of the Bank to fix the cut off date as 1.1.93 to give the benefit of the Pension scheme. In my view the cut off date fixed for entitlement of pension to the employees who retired voluntary is arbitrary when the Bank decides to extend the benefit of Pension to its employees, I do not think it can make any distinction between the employees who are retired and employees who sought voluntary retirement and retired. A I have already stated, even the regulations framed in 1995 do not contemplated such a situation.,"
50. Yet again, a Division Bench of Karnataka High Court, speaking through R.P. Sethi, Chief Justice, as the learned Judge then was, in Writ Appeals Nos. 8897 to 8972 of 1996 and connected cases decided on 30th May 1997, wherein the question of cut off date provided for in the regulation of the Canara Bank came up for consideration, held:
"12. The distinction sought to be drawn by the appellants wit respect to the retirees before 1.11.93 and retirees there-after appears only to be imaginary and not real. The draft pension Regulations were held applicable to the persons like the writ petitioners and the same were enforced obviously without any amendment or alteration, w.e.f. 29.9.95. The learned Single Judge was therefore right in holding tat the Regulation were applicable to all the employees who had opted for voluntary retirement notwithstanding the cutoff date of 1.11.1993.
13. It is acknowledged principle of the interpretation and the Rule of construction that if any impugned action is reasonably capable of construction which does not involve the infringement of any fundamental rights, that construction must be preferred though the same may reasonably be possible to adopt in an another manner which may lead to the infringement of fundament rights. Applying such a test in the present case it would be seen that if the interpretation sought to be put by the appellants is accepted, the same would amount in violation of fundamental rights of equality as enshrined in Articles 14 & 16 but if the construction is assumed in favor of the employees, the same would not result in the violation of any right much less a fundamental right. In interpreting a provision the Courts are required to keep in mind the facts and circumstances under which the provision is enacted or made, its purpose and object and the ultimate result sought to be achieved. Having regard to the facts and circumstances of the case and the position of law as noted herein above it can safely be held that the Regulations were intended to be made applicable to all the voluntarily retired employees notwithstanding the cut off date."
22. In Madhu E.V.s case (supra), following the view taken in Union of India & others v. Rakesh Kumar, (2001) 4 SCC 309 and Raj Kumar & others v. Union of India & another, (2006) 1 SCC 737, the Honble Supreme Court has observed that the pensionary benefits are not ordinarily available on resignation under CCS (Pension) Rules since Rule 26 provides for forfeiture of service on resignation. However, by virtue of G.O. dated 27.12.1995 read with Rule 19 of BSF Rules, the member of BSF would be entitled to get pensionary benefits if he is otherwise eligible. Paragraph 12 of the said judgment reads as under:-
12. In view of the decisions of this Court in Union of India & Others Vs. Rakesh Kumar (supra) and Raj Kumar & Others Vs. Union of India and Another (supra), the legal position that emerges is this : Rule 19 of the BSF Rules does not entitle any pensionary benefits on resignation of its personnel. The pensionary benefits are not ordinarily available on resignation under CCS (Pension) Rules since Rule 26 provides for forfeiture of service on resignation. However, by virtue of G.O. dated December 27, 1995 read with Rule 19 of BSF Rules, the member of BSF would be entitled to get pensionary benefits if he is otherwise eligible. Such personnel must, therefore, satisfy his eligibility under CCS (Pension) Rules. The CCS (Pension) Rules do not provide that a person who has resigned before completing 20 years of service is entitled to the pensionary benefits. Rule 49 only prescribes the procedure for calculation and quantification of pension amount and not the minimum qualifying service.
23. In K. Devans case (supra), the Honble High Court of Judicature at Madras has viewed that a person resigned from service because of his ill health would be entitled to pensionary benefits. Paragraphs 7 and 8 of the said judgment read as under:
7 In such a situation, a question arise whether the service of an employee can be forfeited if person asks for resignation on the ground of ill-health, which is allowed by the State. Under Rule 23, a person is entitled for all benefits if he is allowed to resign for appointment in some other post under the Government. The Rule is silent with regard to resignation, if given on the grounds of illness or ill-health for which permission is granted by the competent authority. In case, if it is held that the person, who has resigned because of illness or ill-health, as at par with the class of employees, who resign for misconduct or any adverse record, and the class of employees, who resign to join other Government organisation are kept in a separate class for grant of pensionary benefits, in such case one may doubt Rule 23 violative of Article 14 vis-`-vis those who resign for illness or ill-health and is accepted by the competent authority. Therefore, we hold that those who resign because of illness or ill-health and not because of any misconduct or adverse record and are allowed to do so by the State are entitled for the same benefit which is allowed to those who resign to join another service under the State. Comparing the employees who are allowed to resign because of illness or ill-health at par with those employees who resign because of misconduct or adverse record will be otherwise violative of Article 14 of the Constitution of India.
8. We, accordingly, hold that the petitioner is entitled to all the benefits to which the employees are otherwise entitled to under the Proviso to Rule 23, i.e., those who have been allowed to resign to join some other post under the State. The respondents are, accordingly, directed to pay the petitioner the pension and gratuity with 8% interest p.a., within three months from the date of receipt/production of a copy of this order, in accordance with law, taking into consideration the years of service rendered by him with further direction to pay provident fund and other retirement benefits within one month from the date of the petitioner submits appropriate application in the format prescribed by the State, failing which the petitioner will also be entitled for 8% interest on the same. The Writ Petition stands disposed of with the aforesaid observations, but there shall be no order as to costs.
24. In Sudarshan Kumars case (supra), Honble High Court of Delhi in paragraph 1o has held as under:-
(10) If a person is entitled to pension on retirement after completing qualifying service, it follows that, the said benefit is a benefit earned by the employee because of the service rendered by him. Can it be said that the benefit so earned ceases to be a benefit only because, at the end of the qualifying service, the employee resigns? If that is to be the law, will it not be penalising such a person for resigning from service, resulting in the forfeiture of the benefit earned. The letter dated 2.9.1993(Annexure 2) written to the petitioner proceeds on the assumption that benefit of past service will be lost on resignation as per Rule 26. But it fails to consider the implications of Rule 48 and the need to treat all employees who rendered qualifying years of service on equal footing. It should be noted that the petitioner had no occasion to persuade the first respondent-corporation to retire him by applying a Rule similar to Rule 48 of the Rules. Question of exercising option did not arise in the year 1986 by which time the petitioner had resigned from service, however, the result of the resignation was in no way different from the normal retirement. In both the cases the employee concerned will be going out of the actual service after rendering a requisite number of qualifying service. In the circumstances, I am of the view that the term "retired w.e.f. 3rd August 1981" found in Clause 3 of the Office Order No.16 should include a person who resigned also w.e.f. 3rd August 1981 after rendering qualifying years of service of 30 years as stated in Rule 48 of the Rules. I am of the view that the phraseology used in Clause 3 of the Scheme should be understood in a liberal sense so as to extend the benefit to all those who rendered the qualifying service and there cannot be any artificial distinction between a person who retired and a person who resigned.
25. In view of the aforementioned factual and legal position, particularly the successive letters/representations written by the applicant to the respondents after acceptance of his resignation on 1.11.2006 requesting for payment of pension, it is held that the acceptance of resignation of the applicant in terms of communication dated 1.11.2006 cannot entail in forfeiture of his past service in terms of Rule 26 of CCS (Pension) Rules. The respondents ought to have dealt with his representations dated 20.4.2007, 6.8.2007 and 25.9.2007 objectively and apprised the applicant about the intent, context and ramification of their acceptance letter dated 1.11.2006. In the event of taking the view not to allow the applicant to take voluntary retirement with pensionary benefits, they could have asked him to resume the duty. The stand taken by the applicant in his representation dated 12.9.2008 (Annexure A-7) that his resignation was accepted in voluntary retirement scheme also needed to be addressed by the respondents.
26. In the aforementioned peculiar circumstances, the OA is disposed of with the following directions:
the pensionable service rendered by the applicant till 31.10.2006 shall include 15 years, 9 months and 7 days plus 50% of the period 31.12.1981 to 10.1.1991, the respondents would have a re-look at the quietus of service of applicant w.e.f. 31.10.2006 and consider the same as his voluntary retirement from service, in case they are of the view that the applicant could not have been permitted to retire voluntarily, they may recall the order dated 1.11.2006 and ask the applicant to resume the duties and in case of their failure to do so within three months from the date of receipt of a copy of this order, the applicant would be deemed as voluntarily retired from service with pensionary benefits with arrears of monthly pension from the date of filing the present OA, in the event of recall of the order dated 1.11.2006 and refusal of the applicant to resume the duties, it would be presumed that he had all intentions to resign from service entailing the forfeiture of past service, No costs.
( A.K. Bhardwaj ) Member (J) /sunil/