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Judgment
K.V. Eapen, Member A
The applicant in the O.A is a Stenographer who was working in the Income Tax Department in Satna, Madhya Pradesh during the period 1969 to 1986. He submits that he had joined on 25.02.1969 as a permanent employee of the Income Tax Department working in various places within Madhya Pradesh. Due to medical issues starting from the second half of 1980, he proceeded on leave in 1981. He had extended his leave twice on medical grounds for 30 days each. He then received a letter from the Income Tax authorities informing him that no further extension would be granted and directing him to report back. However, he submits that due to his illness, he could not do so. He then submitted his resignation letter to the Inspecting Assistant Commissioner of Income Tax, Range I, Jabalpur (Madhya Pradesh) on August, 1981. A copy of the letter dated 01.08.1981 has been produced in the O.A at Annexure A-2. In this letter he wrote as follows in the first paragraph :-
“ For certain strictly personal and physical reasons, I am not in a position to continue in the service of Income Tax Department as Stenographer. As such I hereby tender resignation from my assignment as Stenographer, which may kindly be accepted as early as possible.”
After he submitted his resignation letter, it is submitted that he did not receive any further information in this regard from the respondents. Meanwhile, he submits that he was undergoing treatment and, after improvement in his health and based on the advice of his physician, he submitted a resignation withdrawal application along with a fitness certificate from Medical Officer. A copy of his resignation withdrawal letter along with the fitness certificate, dated 29.10.1986 and 05.09.1986 respectively, have been produced at Annexure A-3 and Annexure A-4.
It is the contention of the applicant that neither his resignation letter nor his withdrawal of resignation letter, were accepted or rejected by the respondents. However, after the submission of the withdrawal letter/fitness certificate as per Annexure A-3 and Annexure A-4 in October 1986, there seems to have been no further follow up on his part until 2010, though he claims that he had made some attempts through representations and through his old friends. He maintains that this was due to the fact that he had a recurrence of the same disease and also as he was doing short term jobs at different places for his livelihood. However he submits that after 2010 ie., his normal date of superannuation, he regularly submitted applications to the 'higher-ups' of the Income Tax Department for service benefits. He requested the respondents to provide information regarding Grade's minimum pension, service gratuity and GPF and other matters etc. On 10.12.2010 he submitted an application to the Commissioner of Income Tax requesting him to sanction his service benefits mentioning therein about non acceptance of his resignation and resignation withdrawal applications. After this there was another break and he submits that he gave another application on 20.06.2016 to the Chief Commissioner of Income Tax with a reminder on 05.09.2016. However, there was no further movement regarding the matter. He submits that he also made a request to the Joint Commissioner of Income Tax on 19.10.2016. (However, all the copies of such representations, reminders etc., purportedly submitted by him have not been furnished in the O.A.) After still some further correspondence, he got a letter, which he has now produced at Annexure A-5 dated 08.05.2017, from the department stating that his service book and personal file are not traceable and directing him to attend the office to settle his case. He submits that then he attended the office on 15.06.2017 and submitted copies of documents concerning his service in the Income Tax Department along with his service history.
From the above, the applicant submits that it can be inferred that the departmental authority has committed to decide the case on the basis of his personal attendance and documents submitted. However, even after this was done and after submission of the documents, the authorities have still failed to provide him the necessary information which was sought regarding his service as well as grant of his pension/benefits. He then filed a RTI application relating to his service/Service Book etc., which was responded to by the authorities by stating “this office came into existence in the year 2001 and this matter is related to the period 1966-1989, long before the existence of this office. The information cannot be provided by this office.” He then submitted an appeal against this to the Appellate Authority, the Principal Commissioner of Income Tax. However, the order of the 1st respondent, Additional Commissioner of Income Tax, in the RTI Application was confirmed by the Appellate Authority/2nd respondent, after giving him a scope for personal hearing. The order of the Appellate Authority passed under Section 19(1) of the Right to Information Act, 2005 has been produced at Annexure A-9. It is indicated therein in response to the queries of the applicant such as to (i) certify whether he had worked in the Income Tax department between 25.02.1969 to 04.11.1986, (ii) certify whether he had submitted resignation and later on withdrew it (iii) details of service book maintained in the department and why it has been misplaced etc., were refused on the ground that the information was not available in the office. The Appellate Authority also confirmed the order of the lower authority. After this a letter, produced as the impugned order at Annexure A-10 written by the Additional Commissioner of Income Tax, Satna was addressed to him. This reads as follow :
“ Sub : Service benefits request for Grade's Min. Pension, Service Gratuity and GPF Amount reg.
Ref : Your letter to the O/o.the Pr. Chief Commissioner of Income Tax (CCA) MP & CG Bhopal dated 21.02.2019.
In this context following points are worth mentioning here :
That you left the office in 1981 without intimation to any of your authority.
In August, 1981 you submitted the resignation.
In 1986 you again came on fore and submitted medical and fitness certificates.
After 1986 to 10.02.2010, there was no communication between you and the department.
It is not known as to whether you between 1981 to 1986 and 1986 to 2010 was at which place in India (whether you were really in India or in another job in India or in abroad). If you were really under treatment in India, you should have intimated to your higher authorities. As per the service rules, if someone is absent for more than 5 years he is deemed to have left the job.
Keeping in view of the above, your application is hereby rejected.
Yours faithfully,
Sd/-
Additional Commissioner of Income Tax,
Range – Satna.”
(emphasis supplied)
It is the submission of the applicant that he accepts that there has been some delay in the submission of his application for service benefits, which was due to the recurrence of his illness and his moving around for short term assignments for his livelihood. He further, however, submits that it was the department which has denied him the opportunity to rejoin the service as they did not take a decision on his resignation withdrawal application and, thus, he was forced to take short term jobs. It is the main contention of the applicant that neither his resignation nor resignation withdrawal applications have been rejected. He had completed more than 12 years of continuous service prior to proceeding on medical leave in 1981 and the resignation and the resignation withdrawal applications have not been considered yet. Thus, having no decision from the department in this regard he is entitled to (i) Grade's minimum pension (ii) service gratuity and (iii) GPF amount with retrospective effect. In addition, the departmental authorities had committed to decide his case when they asked him to be present and submit copies of the documents. He submits that it is their fault that there has been a loss of his Service Book and other records as it was their duty to keep the service books, personal file and other service records/details pertaining to the applicant's confirmed, continuous and permanent service in safe custody. The Service Book in any case could have been restructured in his view. His claim for benefits is only for the actual period he had worked in the department prior to proceeding on leave. He is thus eligible for minimum pension, service gratuity and GPF amount after adjusting any recoverable amount if any. He therefore seeks the following reliefs :
(i) Order calling for the records leading to Annexure A-1 to Annexure A-10 and set aside Annexure A-10 finding that the same is illegal and arbitrary.
(ii) Order directing the respondents to grant the service benefits (i) Grade's Minimum Pension (ii) Service Gratuity (iii) GPF to the applicant.
(iii) Order or direction as prayed for by the applicant in due course which shall be just and proper.
The respondents in their reply statement have submitted that the applicant, as per his own submission, was present in the department from February 1969 to February 1981 (12 years). However, the next correspondence with the department was made by him only in 1986 (ie., after 5 years). After this, subsequent correspondence was made by him in 2010 (ie., after 14 years). Subsequent to this, correspondence was again made in 2016, after 6 years. It is submitted that he has thus effectively been pursuing the matter continuously only after 37 years and the case is thus hopelessly barred by laches. The respondents rely on State of T.N vs. Seshachalam (2007) 10 SCC 137 wherein the Hon'ble Supreme Court observed that : “Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others......”
Similarly, in State of Orissa vs. Pyarimohan Samantaray (1977) 3 SCC 396 it is found that making of repeated representations is not a satisfactory explanation of delay. The said principle was reiterated in State of Orissa vs. Arun Kumar Patnaik (1976) 3 SCC 579. Similarly, in Chennai Metropolitan Water Supply and Sewerage Board & Ors. vs. T.T.Murali Babu in Civil Appeal No.1941/2014 arising out of S.L.P.(C) No.15530/2013 decided on 10.02.2014, the Hon'ble Supreme Court observed that :“Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction......... A court is not expected to give indulgence to such indolent persons who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.”
The respondents submit that the applicant had submitted his resignation letter on 01.08.1981. They have produced a copy of the same at Annexure R-1. After receipt of the same they had issued a letter to the applicant on 18.02.1982 at his his leave address informing him that his total outstanding dues were Rs.6122/-, whereas his GPF balance upto 1981 was only Rs.1310/- and also that he had not submitted his TA, LTC and medical bills. A copy of this letter dated 18.02.1982 is produced at Annexure R-2. The applicant submitted a reply to this letter, produced at Annexure R-3, according to which he claimed that the amount outstanding against him was only Rs.1042/-. After this, no further correspondence is available. Further, the letter given by the applicant at Annexure R-3 ends with the following sentence “May I hope that you will move your good office to settle this affair at an early date, or else permit me to join my duties disregarding my resignation.” It is submitted that the letter at Annexure R-2 given by the respondents to him had informed him that he should refund the outstanding advance and only then would his resignation letter be considered. However, he did not respond to these communications except for his response at Annexure R-3 contesting the amount due. He then kept silence in the matter until 29.10.1986 when he submitted an application seeking withdrawal of his resignation dated 01.08.1981. Thus, it is contended by the respondents that he was absent from duty for a continuous period exceeding five years as his withdrawal letter was dated 29.10.1986. It is pointed out that, as per Rule 12(2) of the CCS (Leave) Rules, 1972, a Government servant who remains absent from duty for a continuous period exceeding five years other than on foreign service, with or without leave, shall be deemed to have resigned from the Government service. However, it is also to be noted that the said Rule 12 (2) of the CCS (Leave) Rules has also has a provision which reads as follow :
“ Provided that a reasonable opportunity to explain the reasons for such absence shall be given to such Government Servant before provisions of sub-rule (2) are invoked.”
It is submitted by the respondents that the above sequence of events shows that the applicant had first proceeded on leave on the ground of illness. When he requested for further extension of leave, the same was denied and he was directed to rejoin duty which he willfully chose not to. Instead he submitted his resignation. At that point of time, on the basis of the documents submitted by the applicant, there was some dispute regarding the dues to be recovered or to be paid. The matter remained as such. Later, the applicant submitted a withdrawal letter after more than five years that his health had vastly improved and also that he had been doing short term jobs in the meanwhile. However, the fact remains it is contended that he had remained absent unauthorizedly for long period. This would amount to voluntary abandonment of service resulting in termination of service, automatically, even without any order from the respondents. Also, since there is abandonment of service by the applicant, he is not entitled to any pensionary benefits as his period of absence cannot be regularized as per law. In this connection, the respondents bring to notice the decision reported in Vijay S Sathaye vs. Indian Airlines Limited & Ors. (2013) 10 SCC 253 wherein it has been stated at paragraphs 8 and 9 as follow :
“8. Even otherwise, the petitioner was asked to continue in service till the decision is taken on his application. However, he did not attend the office of the respondents after 12.11.1994 in view of the above, as the petitioner had voluntarily abandoned the services of the respondents; there was no requirement on the part of the respondents to pass any order whatsoever on his application and it is a clear-cut case of voluntary abandonment of service and the petitions are liable to be dismissed.
It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.”
(emphasis supplied)
Further, the respondents have also drawn attention to Rule 26 of CCS (Pension) Rules, 1972 relating to forfeiture of service on resignation, which reads as follow :
“1. Resignation from a service or post, unless it is allowed to be withdrawn in public interest by appointing authority, entails forfeiture of past service.
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.”
It is thus contended that, as per Rules, the applicant is not eligible for any pensionary benefits. The respondents' point is that that the applicant, being unauthorizedly absent for long has effectively deserted his post and, therefore, his services are to be considered as deemed to be resigned. It is seen that he was absent for more than five years after 1981 and had deserted the job. He also has accepted that he was working elsewhere. Thus, there was no need to pass separate orders in this regard. In addition no records are available to ascertain the submission of representations regularly after 2010 as submitted by the applicant until 2016. Further, though the minimum eligibility service for receipt of pension is ten years under the CCS (Pension) Rules, 1972, in case of resignation/termination etc., the Government servant forfeits his right to the pensionary benefits. The only exception is technical resignation ie., resignation tendered with a view to taking up another appointment. Thus, given the facts & circumstances, the applicant has forfeited his service on his resignation and, therefore, cannot be counted even for grant of the minimum pension. It is reiterated that no records are available within the office, as there had been sea change since 1981 with various new offices being created and office work being fully computerized. While every effort was made to trace the records, it did not succeed. Thus, overall as the applicant did not pursue the matter and took it up after a long period of 37 years, it is not possible to consider his case due to delay and laches.
In a rejoinder filed by the applicant he submits that from the letter written by him, produced by the respondents at Annexure R-3, it is clear that even prior to submission of his official letter/application for withdrawal of resignation, he had made a request for rejoining. (however, such a specific interpretation cannot be made from the contents of the letter as quoted earlier in paragraph 6). He had been submitting various applications for service benefits and had also withdrawn his resignation. Further, he claims that his leave period is actually less than five years and that Rule 12 of the CCS (Leave) Rules is not applicable. At the same time it is submitted that, even if it is applicable, he had to be given an opportunity to explain the reasons for such absence and without giving such an opportunity the respondent cannot invoke the provision for deemed resignation. Further, Rule 26 of CCS (Pension) Rules, 1972 is also not applicable in his case. He had submitted the application to withdraw resignation, but it was not considered and, thus, since neither was his resignation accepted nor the letter of withdrawal also decided upon, he cannot be deemed to have resigned from the department. He submits that till his resignation is accepted by the employer, an employer-employee relationship subsists. It has to be interpreted in his favour that his service never ceased. Since the leave, resignation and withdrawal of resignation were all based on medical grounds, the case laws quoted by the respondents are irrelevant and not applicable in reference to the particular circumstances of his case. They have also lost the records which they should have been kept safely.
The respondents have countered the above by stating that they had clearly informed the applicant at the relevant time that no further leave could be granted by his controlling officer. The actual withdrawal application was submitted only in 1986, which is clear from the records. The applicant in his reply to the letter of 18.02.1982 produced at Annexure R-3 had only submitted that it was about settling the dues or to permit him to join the duties disregarding the resignation. Further the applicant was categorically informed that his resignation will be considered only if the outstanding amount as per records is submitted. He never entered into correspondence after that till 1986. The respondents submit that the applicant had deserted the public service over and above the period of 5 years provided in Rule 12 of CCS (Leave) Rules, 1972. Though the proviso to Rule 12 of CCS (Leave) Rules provides for affording an opportunity to explain the reason, a challenge to the respondents on the same ought to have been made immediately after expiry of the period of five years and not after 37 years. Further, Rule 26 of CCS (Pension) Rules, 1972 is totally applicable in this matter.
I have considered these diverse contentions and interpretations, some of which are contradictory, from the submissions made by the applicant and the respondents. In this connection, I find that the relevant provisions regarding resignation from Government service are under the provisions of Rule 26 of the CCS (Pension) Rules, 1972 in operation at the time when the applicant sent his resignation. The provisions of Rule 26 (1) and (2) regarding the forfeiture of service on resignation have been quoted earlier in paragraph 8 in the beginning. Further under Rule 26 (4) relating to situation in which the appointing authority may permit a person to withdraw his resignation in the public interest, it has been indicated therein as follow :
“(4) The Appointing Authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely :
(i) that the resignation was tendered by the Government servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation;
(ii) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper;
(iii) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days;
(iv) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available.”
The provisions made at Rule 26 (4) (iii) above allow an appointing authority to permit a person to withdraw resignation in the public interest if the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty, as a result of permission to withdraw the resignation is not more than 90 days. In this case, I find from the records provided that the letter of resignation at Annexure A-2 dated 01.08.1981, the applicant has recorded: “I hereby tender resignation from my assignment as Stenographer, which may kindly be accepted as early as possible.” If the period of 90 days is taken with effect from 1st August 1981 in the light of the provisions of Rule 26 (4) (iii) above, there are no records to show that the applicant made a request for withdrawal of his resignation letter within period or the authorities in public interest allowed him to do so. Even if the letter produced at Annexure R-3, where he gives a general statement that his dues should be settled or else permit him to join duties disregarding his resignation, is to be taken into account it is to be noted that this was given only after February 1982. The clear letter of withdrawal of resignation at Annexure A-3 is dated 29.10.1986 and is fully beyond the allowable period of withdrawal.
Thus, notwithstanding the fact that the CCS (Leave) Rules, 1972 have a provision under Rule 12 (2) that a Government servant who remains absent from duty for a continuous period exceeding five years other than on foreign service, with or without leave, shall be deemed to have resigned from the Government service, provided that a reasonable opportunity to explain the reasons for such absence shall be given to such Government servant before provisions of sub-rule (2) are invoked, the applicant is also bound by the Rule 26 (4) (iii), which allows withdrawal of resignation provided it is within a certain specified period. Further, it has to be permitted by the appointing authority. Since no such permission or any letter of withdrawal asking for permission to withdraw within that period is available, hence it has to be taken that the resignation of the applicant was final and cannot be disputed. Further, Rule 26 (1) clearly says that the 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. Therefore, since it is a clear case of resignation by the employee, he has also forfeited his service from the period 1969 when he joined, till 1981 when he proceeded on leave. Nothing more can be done after this long passage of time in this regard.
It appears to me that there was only intermittent interest shown by the applicant to settle the matter every 5 to 10 years in a half hearted way. Any real active involvement appears to have come only after 2016/2017, though the matter was settled long before that. All that appears from the convoluted arguments and counter points that have been presented is that there is no case for accepting his contentions or the relief sought such as minimum pension, service gratuity, GPF etc. It appears that the O.A has been filed largely on an experimental basis.
In light of the above, the O.A is dismissed. There shall be no order as to costs.
(Dated this the 17th day of June 2022)