Central Administrative Tribunal - Bangalore
P K Mohan Lal vs Employees State Insurance Corporation on 25 April, 2023
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OA.No.170/00762/2017/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00762/2017
ORDER RESERVED ON 10.04.2023
DATE OF ORDER: 25.04.2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
P.K. Mohan lal,
S/o K.K. Koru,
Aged 65 years,
R/at No. 39/1, 3rd Cross,
Hanumanthappa Layout,
Sultanpalya, Bengaluru 560 032 .... Applicant
(By Shri M. Narayana Bhat, Advocate)
Vs.
1. Respondent No. 1,
(Deleted vide order dated 16.01.2023 in MA No. 34/2023)
2. Union of India,
Rep. by its Secretary,
Ministry of Home Affairs,
North Block, New Delhi 110 001
3. Respondent No. 3,
(Deleted vide order dated 16.01.2023 in MA No. 34/2023)
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OA.No.170/00762/2017/CAT/BANGALORE
4. Respondent No. 4,
(Deleted vide order dated 16.01.2023 in MA No. 34/2023)
5. The Director,
Intelligence Bureau,
North Block, New Delhi 110 001
6. The Additional Director,
Subsidiary Intelligence Bureau,
Ministry of Home Affairs,
No. 25, Infantry Road,
Bengaluru 560 001
7. Respondent No. 7,
(Deleted vide order dated 16.01.2023 in MA No. 34/2023)
8. Respondent No. 8,
(Deleted vide order dated 16.01.2023 in MA No. 34/2023)
...Respondents
(By Shri H.R. Sreedhara, ACGSC for Respondent No. 2 and
Shri K. Gajendra Vasu, Senior Panel Counsel for Respondents No.
5 & 6)
ORDER
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(a) Issue a writ of certiorari or any other appropriate writ, order or direction quashing the order bearing No. 13/SC/2015(3)878 dated 20.3.2017 produced at 3 OA.No.170/00762/2017/CAT/BANGALORE Annexure-20 as illegal and opposed to Articles 14, 16, 21 and 300A of the Constitution of India;
b) (Deleted vide Order dated 16.01.2023 in MA No.
34/2023)
c) Issue a writ of mandamus or any other
appropriate writ, order or direction directing the Respondents No. 2, 5 and 6 to pay the pro rata Pension and the Gratuity having regard to 10 years 11 months and 3 days service which the Applicant has put in with the Respondent No. 2, 5 and 6 and pay the arrears from the date on which the pension is due till today, with interest at the rate of 15% p.a, to meet the ends of justice.
d) (Deleted vide Order dated 16.01.2023 in MA No. 34/2023)
e) (Deleted vide Order dated 16.01.2023 in MA No. 34/2023)
f) (Deleted vide Order dated 16.01.2023 in MA No. 34/2023)
g) Grant him the costs of this proceedings; and
h) Pass such other order or orders as this Hon'ble Tribunal deems fit and expedient to grant in the circumstances of the case to meet the ends of justice."
2. Briefly stated the facts as narrated by the applicant are that he joined the Subsidiary Intelligence Bureau (SIB) which is functioning under the Ministry of Home Affairs. Thereafter, through proper channel, he made application for appointment in LRDE, Indian Telephone Industries Limited (ITI), Employees' 4 OA.No.170/00762/2017/CAT/BANGALORE State Insurance Corporation (ESIC) and Employees' Provident Fund Organisation (EPFO). The posts held by him in LRDE, ESIC and EPFO were pensionable posts. The applicant tendered technical resignation so as to enable him to join the organisation ITI in which he was appointed. He worked in ITI in Bengaluru for a short period of 4 months and 6 days and he has stated that he is willing to contribute towards the pension contribution for the said period to avoid break in service.
3. Earlier, applicant has approached this Tribunal in OA No. 288/2010 challenging the communication dated 03.05.2010 issued by the SIB and the communication dated 19.06.2012 issued by ESIC inter alia seeking a direction to the respondents to pay the arrears of pension due from the respective departments. The said OA was disposed of by this Tribunal vide order dated 05.11.2012 directing the SIB to process the papers of the applicant and forward them to ITI who in turn will forward the same to ESI Corporation. On receipt of these papers, the ESI Corporation may proceed to accept the payment from the applicant on pro-rata basis towards contribution for the period with ITI and having completed the 5 OA.No.170/00762/2017/CAT/BANGALORE formalities the papers may be sent to EPF Corporation. Thereafter, the EPFO was directed to pass the final order granting pension and other benefits to the applicant. Being aggrieved, the SIB as well as EPFO filed Writ Petitions No. 4965/2013 and 7976/2013 respectively before the Hon'ble High Court of Karnataka. The said Writ Petitions were disposed of by a common order dated 21.04.2014 setting aside the order dated 05.11.2012 passed by the CAT in OA No. 288/2010 and remanded the matter to consider the application afresh and pass appropriate orders in accordance with law. Pursuant to which, the matter was considered afresh by this Tribunal. The said OA came to be disposed of vide order dated 23.11.2016 permitting the applicant to make a fresh detailed representation to the SIB and the ESIC within a period of one month from the date of receipt of copy of the order without going into the merits of the case and keeping all the contentions open. On receipt of such representation, the authorities concerned were directed to examine the issue and take a decision on the said representation within three months thereafter. In compliance with the said order, the applicant has submitted separate representations dated 23.12.2016 before the SIB, ESIC and EPF organisation. In pursuant to the said representation, SIB has issued the 6 OA.No.170/00762/2017/CAT/BANGALORE memorandum dated 20.03.2017 (Annexure-A20) holding that no merit is found in the representation submitted by the applicant and the applicant is not eligible to draw pensionary benefits. Being aggrieved, the applicant is before this Tribunal. The relief in this application is restricted inasmuch as the claim with SIB deleting the other respondents.
4. Learned counsel Shri M. Narayana Bhat representing the applicant submitted that applicant has put in service which is more than qualifying service of 10 years, hence denial of pension to the applicant is illegal. The Respondents No. 2, 5 and 6 are liable to pay the pension as the resignation tendered by the applicant in SIB was a technical one and the service that the applicant has put in before joining the ITI was a pensionable service and pension to the said service is required to be paid by the SIB. Respondent No. 2 had agreed to pay pension and it had transferred part of its liability to ESIC. That being the position, there was no reason for them to rescind from the said position and take a volte face and deprive the applicant of his lawful pension.
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5. Applicant after serving the SIB, joined ITI and thereafter the ESI Corporation. He tendered technical resignation to the ESIC. The contesting respondents have not examined the technical resignation given by the applicant while joining ITI which attracts Rule 37 of CCS (Pension) Rules, 1972 ('Pension Rules' for short). Learned counsel has further placed reliance on the appointment order issued by the ITI limited dated 06.02.1984, and the resignation letter dated 22.05.1984 accepted by the ITI on 05.06.1984. Further, learned counsel referred to the letter dated 13.10.2011 issued by PAO (IB), New Delhi authorizing a lump sum pro-rata pension and terminal gratuity to the applicant. Learned counsel further placed reliance on the Notification dated 28.03.2012 and the Note to Rule 39-D of the Central Civil Services (Leave) Rules, 1972 ('Leave Rules' for short).
6. Learned counsel Shri Gajendra Vasu representing the contesting respondents No. 5 & 6 argued that the applicant was initially appointed as Lower Division Clerk in the SIB on 26.09.1973 and later appointed as ACIO II/WT on 03.07.1973. On his selection as Civilian Assistant Security Officer in LRDE (DRDO), Ministry of Defence, he was relieved from SIB on 8 OA.No.170/00762/2017/CAT/BANGALORE 01.03.1982 with permission to hold a lien of two years with the SIB as he was holding quasi-permanent status in SIB. While working in DRDO, he was selected as Deputy Vigilance Officer (Grade II) in ITI Limited, Bengaluru. Following his selection, his lien in SIB was terminated and the resignation tendered by him was accepted w.e.f. 30.01.1984. The applicant served in ITI from 31.01.1984 to 05.06.1984. He relinquished his post in the ITI on 05.06.1984 and joined ESIC on 06.06.1984. The applicant joined EPFO on 19.10.1990 on being selected for the post of Assistant Provident Fund Commissioner in EPFO. While working as Assistant Provident Fund Commission at SAO, Malad, Mumbai, on personal reasons, the applicant tendered his resignation and the same was accepted as per his request and he was relieved of his duties w.e.f. 20.10.1992 vide order dated 16.10.1992.
7. Placing reliance on the OM dated 08.04.1976 issued by the Department of Expenditure, Government of India, learned counsel argued that though SIB had earlier decided to grant pro-rata pension and gratuity to the applicant, the same having been discovered not in conformity with the rules, revised its earlier decision. Inviting the attention of the Bench to Rule 26 (1) of the 9 OA.No.170/00762/2017/CAT/BANGALORE Pension Rules, learned counsel submitted that the applicant had resigned on personal grounds from EPFO where he served last, as such, his past service is liable to be forfeited. Hence, supporting the impugned order dated 20.03.2017, the learned counsel sought for dismissal of the application.
8. Learned counsel Shri H.R. Sreedhara representing Respondent No. 2 supported the arguments advanced by the learned counsel for Respondents No. 5 & 6.
9. We have carefully considered the rival submissions of the learned counsel for the parties and perused the material on record.
10. Rule 37 of Pension Rules reads thus:
"37. Pension on absorption in or under a corporation, company or body (1) A Government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Company wholly or substantially owned or controlled by the Central Government or a State Government or in or under a Body controlled or financed by the Central Government or a State Government, shall 10 OA.No.170/00762/2017/CAT/BANGALORE be deemed to have retired from service from the date of such absorption and subject to sub-rule (3) he shall be eligible to receive retirement benefits if any, from such date as may be determined, in accordance with the orders of the Central Government applicable to him .
EXPLANATION. - Date of absorption shall be -
(i) in case a Government employee joins a corporation or company or body on immediate absorption basis, the date on which he actually joins that corporation or company or body;
(ii) in case a Government employee initially joins a corporation or company or body on foreign service terms by retaining a lien under the Government, the date from which his unqualified resignation is accepted by the Government."
11. Rule 26 of the Pension Rules reads thus:
"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 forfeiture of past service.
(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies."11
OA.No.170/00762/2017/CAT/BANGALORE
12. Rule 39-D of the Leave Rules and the 'Note' thereof reads thus:
"39-D. Cash equivalent of leave salary in case of permanent absorption in Public Sector Undertaking/Autonomous Body wholly or substantially owned or controlled by the Central/State Government A Government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Company wholly or substantially owned or controlled by the Central Government or State Government or in or under a body controlled or financed by one or more than one such Government shall be granted suo motu by the authority competent to grant leave cash equivalent of leave salary in respect of earned leave at his credit on the date of absorption subject to a maximum of 300 days. This will be calculated in the same manner as indicated in Clause (b) of sub-rule (2) of Rule
39. NOTE.-- The expression 'permanent absorption' used in Rule 39-D shall mean the appointment of a Government servant in a Public Sector Undertaking or an Autonomous Body, for which he had applied through proper channel and resigns from the Government service to take up that appointment."
13. Though in the earlier round of litigation the applicant has claimed pensionary benefits considering his service rendered in 12 OA.No.170/00762/2017/CAT/BANGALORE SIB, ITI, ESIC and EPFO, now has restricted his claim only to SIB and ITI. Undisputedly, ITI is not a pensionary service/post. The appointment order dated 06.02.1984 (Annexure-A24) indicates that the applicant was appointed as Deputy Vigilance Officer, Grade 2 in the pay scale of Rs. 1100-60-1940 with effect from 31.01.1984 on a salary at Rs. 1100/- per month basic plus Dearness Allowance in force from time to time. The probation period was for one year, however, the applicant has submitted his resignation on 22.05.1984 to the said post to join ITI.
14. The order passed in OA No. 288/2010 was challenged by the Respondent No. 6 and the EPFO before the Hon'ble High Court of Karnataka in Writ Petition No. 4965/2013 connected with Writ Petition No. 7976/2013. The said Writ Petition came to be disposed of setting aside the impugned order dated 05.11.2012 passed by this Tribunal in OA No. 288/2010 and remanding the matter to this Tribunal to consider the application afresh and pass appropriate orders in accordance with law observing that the contentions based on Rules 26, 37 and 49 cannot be considered before the Hon'ble High Court for the first time. It was urged by the contesting respondents that the Tribunal has committed an error in arriving at 13 OA.No.170/00762/2017/CAT/BANGALORE a conclusion that the applicant has voluntarily retired from service w.e.f. 21.10.1992.
15. The applicant having resigned from the post at SIB had joined ITI w.e.f. 31.01.1984 and he has served in ITI from 31.01.1984 to 05.06.1984. Undisputedly, the post in ITI was not a pensionable post/service. The applicant knowing very well about this fact has come forward to contribute towards the pension contribution for the said period of 4 months and 6 days to avoid break in service. Undisputedly, the applicant joined ESIC on 06.06.1984 resigning from the said post. Subsequently, being selected for the post of Assistant Provident Fund Commissioner in EPFO, he joined the said post on 19.10.1990. While working as Assistant Provident Fund Commissioner at SAO Malad, Mumbai, on personal reasons, the applicant tendered his resignation and the same was accepted as per his request and he was relieved of his duties w.e.f. 20.10.1992 vide order dated 16.10.1992. The applicant having tendered the resignation from EPFO where he served last, Rule 26 (1) of the Pension Rules attracts and, as such, the same entails forfeiture of past service. To seek exception from that clause or to attract sub clause (2) of Rule 26, the said resignation ought to 14 OA.No.170/00762/2017/CAT/BANGALORE have been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the government where service qualifies. On the combined reading of these two clauses of Rule 26, it cannot be viewed differently considering only the technical resignation submitted in SIB to join ITI ignoring his last service at EPFO.
16. The arguments of the learned counsel for the applicant that Rule 37 of the Pension Rules is applicable to the case on hand cannot be countenanced since no material is placed to establish the absorption of the applicant in the service or post in ITI. The appointment issued by the ITI dated 06.02.1984 evinces that the applicant was appointed as Deputy Vigilance Officer, Grade 2. Nowhere it is stated that he was absorbed in service of the ITI. Moreover, he has served in that post only for a short period of 4 months and 6 days, it was not a pensionable post. In terms of para 5.2 of the Government of India Office Memorandum dated 29.08.1994, where no terminal benefits for the previous service have been received, the previous service in such cases will be counted as qualifying service for pension only if the previous employer accepts pension liability for the service. In accordance 15 OA.No.170/00762/2017/CAT/BANGALORE with the principles laid down in the said OM, in no case, pension contribution/liability shall be accepted from the employee concerned and hence no contribution/liability could be accepted from the employees concerned. Accordingly, the request of the applicant was treated as not in consonance with the Headquarters office instructions dated 16.11.2007 inasmuch as payment of pension contribution for the period of service at ITI. The said instructions clearly states that the combined service rendered by the corporation employees who are borne on the pensionable establishment of Central/State Governments and Autonomous/Statutory bodies/Institutions (including Banks/ Financial Institutions/Public Undertakings set up under Central/State Acts) has to be considered. In such circumstances, ITI being non-pensionable establishment, service rendered by the applicant cannot be counted for pension/gratuity benefits and accordingly ESI Corporation had come forward to contribute pro- rata pensionary as well as retirement benefits for the period of service rendered in ESI to EPFO. ESI Corporation has taken a stand that in no case the pension contribution liability shall be accepted from the employee concerned for the purpose of counting past service. There should be continuous service in government 16 OA.No.170/00762/2017/CAT/BANGALORE departments/institutions where pension is payable. In view of the applicant joining EPFO after resigning from ESIC and again submitting his resignation for personal reasons, acceptance of the same and thereby relieving him from his duties w.e.f. 20.10.1992 vide order dated 16.10.1992 changes the entire scenario.
17. In this regard, it is apt to refer to the judgment of the Hon'ble Apex Court in the case of BSES Yamuna Power Ltd. Vs Sh. Ghanshyam Chand Sharma & Anr. in Civil Appeal No. 9076/2019, DD 05.12.2019, wherein the Hon'ble Apex Court has held thus:
"13. We now turn to the question of whether the first respondent had completed twenty years in service. During the present proceedings, our attention was drawn to the fact that the first respondent had applied for voluntary retirement on 14 February 1990. By a letter dated 25 May 1990 the appellant denied the first respondent's application for voluntary retirement on the ground that the first respondent had not completed twenty years of service. It was thus urged that the appellant's decision to deny the first respondent voluntary retirement was illegal as the first respondent had completed twenty years of service.
14. This argument cannot be accepted. Even if he was denied voluntary retirement on 25 May 1990, the first respondent did not challenge this decision but resigned, on 7 17 OA.No.170/00762/2017/CAT/BANGALORE July 1990. The denial of voluntary retirement does not mitigate the legal consequences that flow from resignation. No evidence has been placed on the record to show that the first respondent took issue with the denial of voluntary retirement between 25 May 1990 and 7 July 1990. To the contrary, in the legal notice dated 1 December 1992 sent by the first respondent to the appellant, the first respondent admitted to having resigned. The first respondent's writ petition was instituted thirteen years after the denial of voluntary retirement and eventual resignation. In the light of these circumstances, the denial of voluntary retirement cannot be invoked before this Court to claim pensionary benefits when the first respondent has admittedly resigned.
15. On the issue of whether the first respondent has served twenty years, we are of the opinion that the question is of no legal consequence to the present dispute. Even if the first respondent had served twenty years, under Rule 26 of the CCS Pension Rules his past service stands forfeited upon resignation. The first respondent is therefore not entitled to pensionary benefits."
(Emphasis supplied)
18. In the light of the said judgment, even if the applicant had served for more than 10 years in SIB, under Rule 26 of the Pension Rules, his past service stands forfeited upon his resignation in EPFO.
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19. As discussed in the preceding paragraphs, no material is placed on record to establish that the applicant was absorbed in ITI or any Corporation or Company or Autonomous body to attract Rule 37 of the Pension Rules and the explanation thereof. Hence, explanation to Rule 37 would be of no assistance to the applicant.
20. Rule 39-D of the Leave Rules have no relevancy in the adjudication of the dispute involved in this case. Reliance placed by the learned counsel for the applicant on the 'Note' to Rule 39-D is wholly misconceived and this argument cannot be accepted.
21. For the reasons aforesaid, the application is bereft of merit and is accordingly dismissed. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/