Raj Kumar vs Union Of India And Ors.

,,,

Sanjiv Khanna, J",,,

The petitioner, Raj Kumar was appointed as a Cook in the Central Reserve Police Force on 22nd May, 1989.",,,

The petitioner tendered his resignation on 28th February, 2000.",,,

The resignation was accepted and the petitioner was discharged from service on 31st March, 2000.",,,

The petitioner has filed the present writ petition challenging vires of Rule 26 of the Central Civil Services (Pension) Rules, 1972, (Pension Rules, for",,,

short) to the extent it states that resignation from service or post entails forfeiture of past service. The forfeiture stipulation in Rule 26, it is submitted,",,,

violates Articles 14, 16, 19 and 21 of the Constitution.",,,

The primary contention of the petitioner is that under Rule 40 of the aforesaid Rules on compulsory retirement, the disciplinary authority is",,,

competent to and can direct grant of pension, gratuity or both at a rate not less than two-thirds and not more than full pension, gratuity or both.",,,

Compulsory retirement is a penalty and, therefore, a government servant who is penalised does not lose and cannot be denied pension or gratuity and",,,

the same have to be paid, at least not less than two-thirds. Reliance is placed upon the judgment of the Madras High Court in M.K. Sivakami versus",,,

the Hon’ble Principal District Judge and Others, Writ Petition No. 30277/2016, decided on 5th April, 2017.",,,

Resignation is a voluntary act of the employee. Once accepted, it leads to termination of the employer-employee relationship. Resignation,",,,

therefore, has its own consequences and cannot be equated to and is not similar to punishments imposed on the government servant. The punishment",,,

commensurates with the misconduct proved and established. The disciplinary and the appellate authorities examine the question of quantum or,,,

proportionality of punishment. In some cases, lower or lesser punishment may be imposed, and in others, order of dismissal and removal maybe",,,

passed, resulting in denial of pension etc.",,,

Supreme Court in LIC v. Shree Lal Meena, (2015) 17 SCC 43, while dealing with the question whether resignation can be equated with voluntary",,,

retirement and consequential retiral benefits, observed:",,,

We think it appropriate to reproduce the discussion from the said judgment [J.K. Cotton Spg. and Wvg. Mills Co. Ltd. v. State of U.P., (1990) 4",,,

SCC 27 …,,,

From the aforesaid dictionary meanings it becomes clear that when an employee resigns his office, he formally relinquishes or withdraws from his",,,

office. It implies that he has taken a mental decision to sever his relationship with his employer and thereby put an end to the contract of service. As,,,

pointed out earlier just as an employer can terminate the services of his employee under the contract, so also an employee can inform his employer",,,

that he does not desire to serve him anymore. Albeit, the employee would have to give notice of his intention to snap the existing relationship to enable",,,

the employer to make alternative arrangements so that his work does not suffer. The period of notice will depend on the period prescribed by the,,,

terms of employment and if no such period is prescribed, a reasonable time must be given before the relationship is determined. If an employee is not",,,

permitted by the terms of his contract to determine the relationship of master and servant, such an employment may be branded as bonded labour.",,,

That is why in Central Inland Water Transport Corpn.v. Brojo Nath Ganguly [Central Inland Water Transport Corpn. v. Brojo Nath Ganguly, (1986) 3",,,

SCC 156 : 1986 SCC (L&S) 429 : (1986) 1 ATC 103] this Court observed as under: (SCC p. 228, para 111)",,,

„111. … By entering into a contract of employment a person does not sign a bond of slavery and a permanent employee cannot be deprived of his,,,

right to resign. A resignation by an employee would, however, normally require to be accepted by the employer in order to be effective.â€​",,,

…,,,

In RBI v. Cecil Dennis Solomon [RBI v. Cecil Dennis Solomon, (2004) 9 SCC 461 : 2004 SCC (L&S) 737] , the Court while analysing the",,,

Reserve Bank of India Pension Regulations, 1990, observed thus: (SCC pp. 467-68, paras 10-11)",,,

“10. In service jurisprudence, the expressions “superannuationâ€, “voluntary retirementâ€, “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, the same are not denied. …",,,

In UCO Bank v. Sanwar Mal [UCO Bank v. Sanwar Mal, (2004) 4 SCC 412 : 2004 SCC (L&S) 699] , a two-Judge Bench referred to the",,,

decision in Cecil Dennis Solomon [RBI v. Cecil Dennis Solomon, (2004) 9 SCC 461 : 2004 SCC (L&S) 737] and opined thus: (Sanwar Mal case",,,

[UCO Bank v. Sanwar Mal, (2004) 4 SCC 412 : 2004 SCC (L&S) 699] , SCC pp. 417-19, paras 6 & 9)",,,

“… In the case of retirement, voluntary or on superannuation, there is a nexus between retirement and retiral benefits under the Provident Fund",,,

Rules. Retirement is allowed only on completion of qualifying service which is not there in the case of resignation. When such a retiree opts for self-,,,

financing Pension Scheme, he brings in accumulated contribution earned by him after completing qualifying number of years of service under the",,,

Provident Fund Rules whereas a person who resigns may not have adequate credit balance to his provident fund account (i.e. bank's contribution) and,",,,

therefore, Regulation 3 does not cover employees who have resigned. Similarly, in the case of a dismissed employee, there may be forfeiture of his",,,

retiral benefits and consequently the framers of the Scheme have kept out the retirees (sic resigned) as well as dismissed employees vide Regulation,,,

…,,,

***,,,

… The words “resignation†and “retirement†carry different meanings in common parlance. An employee can resign at any point of time,",,,

even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of,,,

voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment,,,

(sic is the same) but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions “resignationâ€​",,,

and “retirement†have been employed for different purpose and carry different meanings. The Pension Scheme herein is based on actuarial,,,

calculation; it is a self-financing scheme, which does not depend upon budgetary support and consequently it constitutes a complete code by itself. The",,,

Scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from,,,

service. Moreover, resignation brings about complete cessation of master-and-servant relationship whereas voluntary retirement maintains the",,,

,"Classes of Pension (vide

Chapter V of the Pension Rules)","CCSP

Rules","TNP

Rules

(i),Superannuation pension,Rule 35,Rule 32

(ii),Retiring pension,Rule 36,Rule 33

(iii),"Pension on absorption in or under a

corporation, company or body

owned/controlled by the

State/Central Government","Rule 37

Rule 37-A",Rule 34

(iv),Invalid pension,Rule 38,Rule 36

(v),"Compensation pension payable on

discharge owing to abolition of the

post",Rule 39,Rule 38

(vi),"Compulsory retirement

pension","Rule

40",Rule 39

(vii),"Compassionate allowance to

government servants who forfeit

their pension

on being dismissed or removed",Rule 41,Rule 40

Service Regulations and to a government servant who on being declared surplus, opts for voluntary retirement in accordance with Rule 29 of those",,,

Rules). The provision relating to retiring pension makes it clear that a minimum of 20 years' qualifying service is required for retiring pension. It does,,,

not entitle a government servant to retiring pension on completion of ten years' service. Therefore, the petitioner is not entitled to retiring pension.â€​",,,

In the present case, as noticed above, the petitioner had himself terminated the relationship of employer-employee way back in February and",,,

March, 2000. Now, after a gap of nearly 16-17 years, the petitioner claims that he should be paid pension for he had worked for more than ten years.",,,

The representation made by the petitioner was rejected vide order dated 9th December, 2016, which records and also notices the periods of",,,

unauthorised absence from duty. Penalty of confinement for 20 days to Quarter Guard and forfeiture of pay and allowances of certain periods were,,,

imposed. The petitioner also suffered another penalty of 30 days confinement to lines and forfeiture of pay and allowances on account of 128 days of,,,

overstay and desertion. The benefits and payments, in terms of the Rules, upon resignation was paid to the petitioner way back in June and August,",,,

2000. Another amount towards GPF payment was made on 31st January, 2001. Pension and other retirement benefits on retirement were denied, as",,,

they were not granted on resignation. This was accepted.,,,

In view of the aforesaid position, we are not inclined to issue notice in the present writ petition. Assuming the right to pension is a continuing cause",,,

of action, even on merits, we do not think the matter requires a detailed examination and consideration. The writ petition is dismissed.",,,