Central Administrative Tribunal - Delhi
Lalit Kumar Sehgal vs M/O Labour on 21 May, 2024
1
O.A. No. 954/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 954/2019
Reserved on: 09.05.2024
Pronounced on
on: 21.05.2024
Hon'ble Mr. Manish Garg, Member (J)
Lalit Kumar Sehgal,
S/o Late Sh. Mela Ram Sehgal,
R/o F-47,
47, Sector -41,
Noida, U.P.
....Applicant
(By Advocates: Mr. Abhishek R. Shukla with Mr. Roshan Kumar)
VERSUS
1. Union of India,
Through its Secretary,
Ministry of Labour and Employment,
Shram Shakti Bhawan,
Rafi Marg, New Delhi - 110001.
2. Employees Provident Fund Organisation,
Through,
Central Provident Fund Commissioner,
Bhavishya Nidhi Bhawan,
14, Bhikaji Cama Place, New Delhi - 110066.
3. Steel Authority of India Limited,
Through its Chairman,
Ispat Bhawan, Lodi Road,
New Delhi - 110003.
.... Respondents
(By Advocates: Mr. Siddharth with Mr. Anshul Saxena for
respondent No. 2, Mr. Alakh Kumar for respondent No. 3)
2
O.A. No. 954/2019
ORDER
"No man out of his own private reason ought to be wiser than the law"-
law" 'None Wiser Than the Law' Law'-
Former CJI Justice Shri MN Venkatachaliah's Podcast.
By way of the present OA, filed under Section - 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs :
a. Issue a writ in the nature of Mandamus commanding the Respondent no. 2 to pay the petitioner his pension under the Employees Pension Scheme, 1995 with effect from the date the Petitioner attained the age of 58 years And/or b. Such other order/direction as may may be deemed appropriate in the facts and circumstances of the case.
2. The brief facts of the case as stated by the learned counsel for the applicant are that the applicant joined the office of the respondent No. 3 on 28.11.1972 and continued to work there there till 31 March 2004, when he took Voluntary retirement from service (VRS). In the year, 1972, the applicant became a member of the Employees Family Pension Scheme, 1971 (EFPS, 1971) and made contributions towards it from the year, 1972 to the year, 2000, till the time the Employees Pension Scheme (EPS, 1995) was in existence till as late as 2000 when the Hon'ble Supreme Court upheld the EPS 1995 by way of its 3 O.A. No. 954/2019 judgment in Otis Elevator Employees Union Vs UOI & Ors (2003)12 SCC 68.
3. Learned counsel for the the applicant submitted that it is a matter of record that the applicant made contributions towards EFPS, 1971 for 23 years and highlighted Annex Annex-
P3 of OA and further submitted that thereafter, there were 3 deductions made by Respondent No.3 under EPS, 1995 and no further deductions were made by the employer, i.e., the respondent No.3.
4. Relying upon the judgment of Hon'ble Supreme Court in State of Jharkhand and Ors Vs Harihar Yadav and Anr (2014)2 SCC 114, learned counsel for the applicant argued that in in the instant case, the employer failed to discharge its duty being a model employer of the welfare state. Further, he invited the attention of this Bench to the definition of "Existing Member" as defined in para 2(1)(vi) EPS, 1995 and submitted that it me means an existing employee who is a member of the EFPS, 1971 and as per para 3(4) of EPS, 1995 the net assets of the EFPS, 1971 shall vest in and stand transferred to Employee's Pension Fund. He adds that as per para 12 of the EPS, 1995 a member shall be entitled entitled to monthly member's pension, in 4 O.A. No. 954/2019 the instant case pension, if he has rendered eligible service of 10 years or more and retires or otherwise ceases to be in employment before attaining the age of 58 years and in the instant case, he submitted that the applicant has rendered total of 32 years of service with the respondent no. 3 and thus by virtue of para 2(1)(vi) r/w para 3(4) read along with para 12 of the EPS, 1995 and also by virtue of contributing for 23 years under EFPS, 1971, the applicant is enti entitled to monthly member's pension from the date when he attai attained the age of 58 years i.e. 9th December 2006.
5. It is the contention of the applicant that the employer made 3 deductions under EPS 1995 but the same was not transferred to the Commissioner an and thereafter to the Central Board of Respondent No. 2 2-EPFO. Also, the employer failed to make further deductions and for the fault of the employer the applicant has been denied his rightful claim over the monthly member's pension after having made contribution contribution for 23 years under EFPS, 1971 Scheme and later on after subsuming of 1971 Scheme in 1995 Scheme. The applicant further contends that as per para 16 A of the EPS 1995 pensionary benefits shall not be denied to the beneficiary due to non non-compliance by the employer, which in the instant case the Respondent No. 3, 5 O.A. No. 954/2019 as employer failed to deduct the contributions under subsumed scheme of 1995 and, thus, as per their own scheme para 16A pension cannot be denied to applicant.
6. Learned counsel for the applic applicant places reliance upon the following judgments of the Hon'ble Supreme Court:
(i) D. S. Nakara & Ors. Vs. UOI, UOI, (1983) 1 SCC 305.
Learned counsel for the applicant submitted that in the said judgment the Hon'ble Supreme Court had clearly stated that pension is not a bounty, but it is a recognition of the past service of the employee and thus it should be granted to the employee.
(ii) State of Jharkhand & Ors vs Jitendra Kumar Shrivastava & Anr (2013) 12 SCC 210 Learned counsel for the applicant submitted that in the said judgment the Hon'ble Supreme Court has held that pension is property U/A 300A of Constitution.
(iii) State of Jharkhand Jharkhand & Vs Harihar Yadav (2014) 2 SCC 114 6 O.A. No. 954/2019 Learned counsel for the applicant submitted that in the said judgment the Hon'ble Supreme Court has held that state is a model employer in welfare state.
7. During the course of the arguments, narrating the facts and circumstances of the present case and to substantiate his arguments, learned counsel for the applicant made a reference to para 12 of the EPS, 1995, and submitted that as per the factual matrix of the present case, the applicant completed eligible ser service of 10 years as on the date of VRS i.e. on 30.03.2004 and is, therefore, very much within the eligibility criteria as contemplated in para 12 of the EPS, 1995. He also made a reference to Para No. 4 of the Employees Pension Scheme, 1995, which reads as under :
4. Payment of contribution. -
(1) The employer shall pay the contribution payable to the Employees' Pension Fund in respect of each member of the Employees' Pension Fund employed by him directly or by or through a contractor.
(2) It shall be the responsibility of the principal employer to pay the contributions payable to the Employees' Pension Fund by himself in respect of the employees directly employed by him and also in respect of the employees employed by or through a contractor.
Provided that that the Central Government shall pay the contribution payable to the Employees' Pension Fund in respect of an employee who is a person with disability under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,, 1995 (1 of 1996) and under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and 7 O.A. No. 954/2019 Multiple Disabilities Act, 1999 (44 of 1999) respectively, upto a maximum of three years from the date of commencement of membership of the Fund.
Emphasizing the word "responsibility of principle employerto pay the contributions payable to the Employees' Pension Fund" in terms of Sub para (2) of Para 4 of the EPS, 1995, learned counsel for the applicant submitted that it was the primary duty of the respondents to pay the contributions.
8. He further invited attention of this Bench to Para 5 and 16A of the EPS, 1995 which read as under :
5. Recovery of damages for default in payment of any contributions. -
(1) Where a employer makes default def ault in the payment of any contribution to the Employees' Pension Fund, or in the payment of any charges payable under any other provisions of the Act or the Scheme, the Central Provident Fund Commissioner or such officer as may be authorised by the Central Government by notification in the Official Gazette in Central this behalf, may recover from the employer by way of penalty, damages at the rates given in the table below ::-
TABLE S.No. Period of default Rates of damages (Percentage of arrears per annum) (1) (2) (3)
(a) Less than two Five months
(b) Two months and Ten above but less than four months
(c) Four months and Fifteen above but less than six months 8 O.A. No. 954/2019
(d) Six months and Twenty Five above (2) The damages shall be calculated to the nearest rupee, 50 paise or more to be counted as the nearest higher rupee and fraction of a rupee less than 50 paise to be ignored.
16-A. A. Guarantee of pensionary benefits. - None of the pensionary benefits under the Scheme shall be denied to any member or beneficiary for want want of compliance of the requirement by the employer under sub-paragraph sub paragraph (1) of paragraph 3 provided, however, that the employer shall not be absolved of his liabilities under the Scheme.
9. Learned counsel for the applicant also relied upon the decision rendered rendered by the Hon'ble Supreme Court in Civil Appeal No. 3462/2023 titled Calcutta State Transport Corporation and Ors. vs. Ashit Chakraborty and Ors Ors.
Para 11 of the said judgment reads as under:
11. It is not in dispute that the respondent no.1 had exercis exercised his right to receive pension under the 1990 Regulations in the year 1991. Thereafter, it was the duty of the Corporation to have given effect to the same. Merely because there were some wrong deductions from his salary and he was treated as member of th the CPF Scheme, cannot be permitted to be raised as a ground to defeat his rightful claim. The pension was to start after retirement of the respondent. When the same was not released to him, immediately representation was made by him. As no response was received received from the appellant, the writ petition was filed. The argument that there are number of similarly situated employees who will also stake their claims, will not deter this Court in granting the relief to the respondent, which is legitimately due to him. Rather this argument shows that the Corporation was at fault in implementing the 1990 Regulations in the cases of number of employees though these were notified on 4.1.1991 and were given retrospective effect from 1.4.1984.
Technical objections are sought to be raised, which are not tenable. For any fault on the part of the Corporation, the employees cannot be made to suffer.
10. Mr. Siddharth, learned counsel for the respondent No. 2, i.e., EPFO vehemently opposed the OA and submitted that the prerequisite prerequisite of drawing pension from a 9 O.A. No. 954/2019 contributory pension fund is to have contributed into the same. Giving brief details of the Employees' Pension Scheme, 1995 (EPS) he submitted that EPS is a contributory pension Fund set up under Section 6A of Employees' Provident Provident Funds & Miscellaneous Provisions Act, 1952 (EPF Act wherein the employees contribute 24% of the basic wages paid to them, to their provident fund account, and the contribution is equi equi-proportionately collected through two routes: 12% from the employe employee (called employee-contribution) employee contribution) and 12% from the employer (employer--contribution).
contribution). However, it is settled that irrespective of the nomenclature, both these contributions are employee's contributions, vide paragraph 10 of the final order dated 14.09.2023 passed passed by Hon'ble Supreme Court in Civil Appeal no. 8762/2012 titled The Regional Provident Fund Commissioner v. Dodaballapur Spinning Mills Pvt. Ltd and paragraph 15 of the Full Bench judgment of Hon'ble Madras High Court in Gowri Spinning Mills (P) Ltd. v.
v. Assistant Provident Fund Commissioner 2006 (5) CTC 1. Having received his wages, the employee entrusts these contributions to the employer, for being deposited into his provident fund account and part of the contributions received into the provident fund 10 O.A. No. 954/2019 account, amounting to 8.33% of the basic wages, is monthly diverted by the employer to pension scheme, vide section 6A of the EPF Act. This diversion of funds is made by the employer under intimation to the employee because it funds his pension at the cost cost of a reduced provident fund. The employee learns of this diversion through monthly and annual statements as it decides whether he wishes to have a larger provident fund or a larger pension. The benefits under the two schemes are characteristically different ent Provident fund scheme yields a large one one-time lump sum at the time of retirement from employment, however, the pension scheme commences small monthly payments after the employee's exit from the pension scheme at the age of 58 years (paragraph 6A of the pension scheme mandatorily ceases membership at 58 years) till his demise, and then half the pension to his dependents after his demise. Therefore, employees often gravitate towards provident fund scheme which offers a much larger amount in one go at the time of retirement.
11. Further Mr. Siddharth, learned counsel for the respondents argued that the applicant is one such employee who gravitated towards larger provident fund instead of pension. He has admitted withdrawing his entire 11 O.A. No. 954/2019 provident fund in 2004 and thus having never contributed to the pension scheme to retain a larger provident fund and then having withdrawn the provident fund 2004, the applicant has waived off his rights under the pension scheme. Furthermore, mere membership of the provident fund und scheme does not entitle an employee to the benefits under the pension scheme and he highlighted that the provident fund scheme is a defined contribution scheme, which means that the provident fund is a mere aggregation of the total contributions with the the earned interest. He adds that the pension scheme, however, is a defined benefits scheme: the benefits are not contingent on the contribution but predefined as a function of the last drawn wages. Paragraph 12 of the pension scheme formulates the monthly pension as:
"Monthly member's pension = Pensionable Salary X Pensionable Service 70"
In this formula, he submits, that the pensionable salary is the average of the last drawn wages and pensionable service is the service during membership of the scheme for which the contributions are received or receivable. Thus, according to the formula, m monthly pension is pensionable salary that accrues at a rate of 12 O.A. No. 954/2019 1/70 p.a. during member's pensionable service. Therefore, to ensure that the contribution received during the pensionable service is sufficient to pay the future pension, the pension fund is actuarially actuarially valued annually under paragraph 32 of the pension scheme and hence, default in monthly contributions is impermissible under the pension scheme. Therefore, a member of the provident fund scheme cannot ipso facto claim benefits of the pension schem scheme unless he shows that he has contributed every month throughout his membership and for the same reason, retrospective contributions to the pension scheme are also impermissible because retrospective contributions were never actuarially valued under paragr paragraph 32 of the pension scheme.
12. Learned counsel for the respondents has placed reliance upon the judgment of the Hon'ble Supreme Court in Employees Provident Funds Organisation vs. Sunil Kumar B 2022 INSC 1171 wherein difference between provident fund scheme and pension scheme was recognized by the Hon'ble Supreme Court.
13. Learned counsel for the respondents argued that the applicant has insisted in the OA that he had made three 13 O.A. No. 954/2019 monthly contributions to the pension scheme while he was posted at Bokaro Bokaro Steel Plant. He has relied on a TDS certificate in Form 16B under Income Tax Act. This does not help his case for two reasons. Firstly, the certificate records the total contribution towards contributory provident fund, and does not state if any part of it was diverted from the provident fund scheme to pension scheme Further, there is nothing to indicate if the reference to provident fund there is of the provident fund under EPF Act or the Provident Fund Act, 1925 or any other provident fund. If such contributions contributions were made, the applicant has to seek their refund from the employer. Secondly, the contributions under the pension scheme are required every month throughout the membership of the pension scheme, so that they can be valued annually by the actuary under paragraph 32 of the pension scheme and this annual actuarial valuation of the contributions is the lynchpin of the pension scheme. Placing relying upon the judgment of the Hon'ble Supreme Court in Mafatlal Group Staff Association. v Regional Commissioner, Commissioner, Provident Fund (1994) 4 SCC 58 he submitted that the Hon'ble Supreme Court called the periodic valuation of contributions "a salutary principle" because it ensured that the benefits 14 O.A. No. 954/2019 remain commensurate to the contributions. The relevant part of the said judgment is extracted below:
"8. Clause 34-DD of the Scheme provides for valuation of the Fund by a valuer appointed by the Central Government at intervals of three years. Basing on such valuation, the Central Government "may alter the rate of contributions tions payable under this Scheme or the scale of any benefit admissible under this Scheme or the period for which such benefit may be given". In other words, the clause provides for periodic review of the working of the Scheme and in case any surplus is foufound, its benefit is extended to the employees in one of the three ways mentioned in Clause 34-D(2).
D(2). Sub Sub-clause (2) of Clause 34-DD no doubt places the said matter in the discretion of the Central Government but it goes without saying that such discretion has to be exercised in a fair manner keeping in view all the relevant circumstances and contingencies...
...
14. While it is not possible for us to embark upon an enquiry into the correctness or otherwise of the rival statements and particulars furnished by the p parties, the fact remains - which we should emphasise that there should be a broad correspondence between what the employees contribute and what they get in return. We have already expressed ourselves on this aspect while dealing with the plea of discrimina discrimination, which we do not think it necessary to repeat here. The benefits to be provided to them under the several schemes should broadly approximate to and be commensurate with what they contribute. This is what Clause 34 34-D of Pension Scheme provides, in particular icular sub sub-clause (2) thereof.
Though, worded as an enabling provision, it contains a salutary and an obligatory principle which the Government should always keep in view. We agree, as already emphasized hereinbefore, that no conclusions should be drawn by taking any single instance and that the matter must be decided taking an overall view, yet the inescapable test remains, viz., there must be a broad correspondence between what the employees pay and what they and their families get ultimately. It cannot bbe that while the Fund accumulates, the employees and their families decay. The scheme is one conceived in their interest and for their benefit and it should prove so in practice. It is the statutory duty of the respondents to ensure that both the contribut contributions by employees and the benefits flowing to them must be broadly commensurate. Since actuarial appraisal is done every three years, as 15 O.A. No. 954/2019 provided by the statutory scheme itself, we are sure that the observations made herein will be kept in mind and necessary adjustments made"
14. Concluding his arguments, Mr. Siddharth, learned counsel for the respondent No. 2 submits that this OA filed by the applicant seeking pension without having contributed, violates the balance struck between the contributions and benefits, benefits, as held by Supreme Court and accordingly, deserves dismissal.
15. Mr. Alakh Kumar, learned counsel for the respondent No. 3 argued that no relief is sought against respondent No. 3 and therefore, per se, the OA is not maintainable. He made a reference reference to para 1 to 3 of brief facts of his counter reply which read as under :
1. The Applicant was posted at Bokaro during the period from January, 1 996 to the year 2002. Thereafter he was posted at Delhi. He voluntarily left the services of the answering Respondent No. 3 in the year 2004. It is the case of the Applicant himself that he completed the formalities and had also applied for pension at the time of leaving his job with the answering Respondent in the year 2004 and he became entitled to the Pension Pension on attaining the age of 58 years in the year 2006.
The Applicants case is that after his continuous follow up action not yielding any results, he made a representation in November/2017 for payment of pension and thereafter the Writ Petition was filed, initially initially before the Hon'ble High Court of Delhi and the same has been transferred to this Tribunal as the instant O.A. No. 954 of 2019.
2. The present Application for condonation of delay in filing the Writ Petition and hence the present Original Application is for seeking condonation of delay of 619 days between July/20 16 to 12.04.2018 only. The Applicant has no grounds for condonation of delay from the year 2006 upto July/2016. Cause of action, if any, arose in favour favour of the Applicant, as per his own version, in the year 2006 i.e. when the pension was not paid. 16 O.A. No. 954/2019 Hence, the delay w.e.f. 2006 needs to be satisfactorily explained by cogent reasons.
3. It is the case of the Applicant himself that he came to know about cessation c of membership of the Applicant from the Employees Family Pension Scheme', 1971 and consequently also of the Employees Pension Scheme', 1995 on account of non non- payment of contribution by the Applicant during the period as early as in January, 1996 to to the year 2002. The Applicant having applied for pension as early as in the year 2004 and his attaining the age of 58 years in the year 2006 making him entitled to the grant of Family Pension, if at all, and non receipt of any Family Pension even after 2006, 2006, entitled the Applicant for accrual of cause of action latest by the year 2006 and any action on behalf of the Applicant was maintainable latest till the year 2008. The mere act of preferring a representation much thereafter i.e. in the year 2017 is of no consequence in explaining the delay during the intervening period from the year 2006 till July/2016. The continuous inaction of the Application till the year 2017 without any valid, cogent or justifiably reason/ground is fatal to the Applicant's case.
16. Heard learned counsel for the respective parties and perused the records.
Analysis and Conclusion:
17. Learned counsel for the applicant had specifically relied upon the decision rendered by the Hon'ble Supreme Court in Calcutta State Transport Corpora Corporation and Ors. vs. Ashit Chakraborty and Ors Ors. (supra). The same cannot be applied to the facts and circumstances of the present case inasmuch as the present case pertains to a Group -A A Officer, who joined the Indian Iron and Steel Company Ltd. on 28.11.1970.
28.11.1970. In the year, 1971, the Government of India introduced Employees Family Pension Scheme. On 28.11.1972, the applicant was taken as permanent employee of the Indian Iron and Steel Company 17 O.A. No. 954/2019 Ltd., which became a subsidiary of the Steel Authority of India Ltd. (SAIL) in the year, 1972. It is not in dispute that the applicant became a member of Employees Family Pension Scheme, 1971 and contributed towards the same till the year, 1995. It is also not in dispute that in November, 1995, the Employees Family Pension Scheme was converted to Employees Pension Scheme, 1995 but was implemented at a much later stage and it was compulsory for the Employees Family Pension Scheme members to be members of new Emp Employees Pension Scheme, 1995. The applicant herein took VRS for good cause.
18. It is a matter of record that in January, 1996, the applicant was transferred to Bokaro Steel Plant of SAIL as Deputy General Manager-Coke Manager Coke Ovens and in the year, 2002 he was further urther transferred to the Corporate Office of SAIL as Joint Director. Subsequently he was promoted as Executive Director in March, 2003 and took VRS on 30.03.2004. The applicant was at one of the highest rank as Executive Director. The rule position qua tthe eligibility/entitlement was very well known to the applicant when he took the VRS. It is not disputed by the applicant that he went abroad for employment after taking VRS and 18 O.A. No. 954/2019 completing the necessary formalities. It is the case of the applicant that he completed all the formalities and applied for pension during his visit to India in the year 2006.
19. The applicant has assumed that though he took VRS from the service in the year, 2004, he is also eligible for grant of the pension under the Employees P Pension Scheme, 1995 as he attained the age of 58 years in December, 2006. The applicant relocated back to India in March, 2012 and thereafter, had been representing the authorities for grant of pension under Employees Pension Scheme, 1995.
20. The issue which arises for consideration in the present OA is, as to whether the applicant who took VRS in March, 2004 and also took away all the financial benefits, which accrued to him at the relevant point time time, is also eligible for taking the benefit of deposits of subscriptions at a later stage and whether he even after taking VRS is entitled for grant of pension under the Employees Pension Scheme.
21. It is not disputed that the prerequisite of drawing pension from a contributory pension fund is to have contribution ibution towards EPS.
EPS. Employees' Pension Scheme, 1995 ("EPS") is a contributory pension fund set up under 19 O.A. No. 954/2019 section 6A of Employees' Provident Funds & Miscellaneous Provisions Act, 1952 ("EPF Act"). Admittedly, the applicant did not contribute to EPS during his his membership except for three months. Section 6 of EPF Act mandates equi equi-
proportionate contributions from an employee and his employer into employee's provident fund account under Employees' Provident Funds Scheme, 1952 ("EPFS"). These contributions must be made every month. Part of the employer's share of the contribution is diverted to EPS under section 6A(2)(a). Therefore, whatever was not received into EPS was retained by the applicant in his provident fund which he withdrew at the time of his superannuation.
nuation. The applicant contends that his employer had erred in not making monthly contributions for the applicant under EPS. However, the employer cannot be now directed to retrospectively contribute to EPS which mandates contributions to be made contempor contemporaneously to every wage month of every year of an employee's membership of EPS. The contributions are planned and invested every year to yield the pensionary benefit benefits. Hence, the applicant cannot be paid pension without having contributed periodically at the the relevant time by him.
20O.A. No. 954/2019
22. It is evident that the applicant took VRS from a very senior position and choose to remain silent for a long period of time. The applicant in a way is trying to shift the burden of non deposition non-deposition of contributions to the respondents, dents, ignoring the fact that he himself took VRS in March, 2004 and, had also taken back the amount due and admissible to him as per his entitlement at the relevant point of time.
23. In dealing with entitlement to benefits of VRS Scheme, the Ape Court in CIVIL APPEAL NO(S). 778 OF Hon'ble Apex 2023 [@ SPECIAL LEAVE PETITION (CIVIL) NOS.1902 OF 2019] MAHARASHTRA STATE FINANCIAL CORPORATION EX-
EX EMPLOYEES ASSOCIATION & ORS.
VERSUS STATE OF MAHARASHTRA & ORS decided on 02.02.2023, observed as under :-
"8. However, in the opinion of this court, employees who secured VRS benefits and left the service of MSFC voluntarily during this period, stand on a different footing. They cannot claim parity with those who worked continuously, discharged their functions, and and thereafter superannuated. VRS employees chose to opt and leave the service of the corporation; they found the VRS offer beneficial to them."
them.
24. It is not in dispute that the Hon'ble Supreme Court (i) D. S. Nakara & Ors. Vs. UOI (supra (supra) had stated that pension is not a bounty but it is a recognition of the past service of the employee, however, in the facts and 21 O.A. No. 954/2019 circumstances of the present case, we are of the view that the applicant cannot be granted pension inasmuch as he himself took VRS in March, 2004 and did not contribute towards the EPS.
25. In Civil Appeal No. 9076 of 2019 @SLP (C) No. 6553 of 2018 BSES Yamuna Power Ltd. Versus Sh. Ghanshyam Chand Sharma & Anr. decided on 5.12.2019, the Hon'ble Apex Court observed as under :-
:
"12.
12. In the present case, the first respondent resigned on 7 July 1990 with effect from 10 July 1990. By resigning, the first respondent submitted himself to the legal consequences that flow from a resignation under the provisions applicable to his service. Rule 26 of the Central Civil Service Pension Rules 1972states that:
"26.
26. Forfeiture of service on resignation (1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails a forfe forfeiture of past service..."
Rule 26 states that upon resignation, an employee forfeits past service. We have noted above that the approach adopted by the court in Asger Ibrahim Amin has been held to be erroneous since it removes the important distinction between resignation and volun voluntary retirement.
Irrespective of whether the first respondent had completed the requisite years of service to apply for voluntary retirement, his was a decision to resign and not a decision to seek voluntary retirement. If this court were to re-classify re hiss resignation as a case of voluntary retirement, this would obfuscate the distinction between the concepts of resignation and voluntary retirement and render the operation of Rule 26 nugatory. Such an approach cannot be adopted. Accordingly, the finding of the Single Judge that the first respondent "voluntarily retired"" is set aside."
26. In view of the above, we find that the decision of the respondents to deny the benefit of pension to the applicant 22 O.A. No. 954/2019 cannot be found fault with as the applicant, who took VRS for good cause, cause cannot seek benefit of pension pension. Thus, the respondents have taken a conscious decision keeping in view the facts and circumstances of the case by not granting the benefit of pension to the applicant. The expression "voluntary retirement" is cession of jural relationship between the employer and the employee which is altogether independent of 1995 Pension Scheme. Even otherwise, view from the angle of the effect of Sub Sub-
Rule (1) of Rule 27 Pension Rules
Rules, i.e., Effect of
interruption in service cannot be sidelined ""An interruption in the service of a Government servant entails forfeiture of his past service", which is foundati foundation in arriving at "qualifying service" for purpose of eligibility of pension.
27. Accordingly, the OA is dismisse dismissed. Pending MAs, if any, shall also stand disposed of. No costs.
(Manish Garg) Member (J) /as/