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2001 DIGILAW 672 (CAL)

BIPLAB KUMAR MITRA v. UNION OF INDIA

2001-10-16

ALOK KUMAR BASU, ALTAMAS KABIR

body2001
A. KABIR, J. ( 1 ) THIS writ application is directed against the order dated 23rd December, 1998, passed by the Central Administrative Tribunal, Calcutta Bench, dismissing the petitioner's application, being M. A. No. 362 of 1997, for recall of the final order passed in O. A. No. 188 of 1994 on 13th June, 1997, whereby the petitioner's claim for pensionary benefits, Death-cum-Retirement gratuity and other retiral benefits, was rejected. ( 2 ) THE writ petitioner was initially appointed as Apprentice Mechanic in the Eastern Railway with effect from 14th March, 1966, and was later absorbed as Chargeman Grade 'b' on an from 9th June, 1971. While working in the Kanchrapara workshop of the Eastern Railway as Chargeman Grade 'b', the petitioner applied through proper channel for the post of Engineer/excavation (Mechanical) in Coal India Ltd. , a Government of India Enterprise. The petitioner was released from Railway service with effect from 20th April, 1981, to enable him to join his new assignment in Coal India Ltd. with lien for a period of two years to be trained by Eastern Railway. ( 3 ) DURING the period of lien, while the petitioner was on probationary service with Coal India Ltd. , he got an offer to join Andrew Yule and Co. Ltd. , which was also Government of India Enterprise. According to the petitioner, he duly informed the Additional Chief Electrical Engineer, Kanchrapara Workshop of the Eastern Railway, of the aforesaid fact by his letter dated 15th November, 1981, and no objection was raised on that behalf. ( 4 ) ON or about 5th January, 1990, the petitioner submitted an application to the Chief Works Manager, Kanchrapara Workshop, Eastern Railway, for grant of terminal benefits as per the Rules, clearly mentioning the fact that he had joined Andrew Yule and Co. Ltd. on 1st January, 1982, with prior intimation and knowledge of the respondents. Thereafter, by a letter dated 22nd February, 1990, the Chief works Manager, Kanchrapara workshop, directed the petitioner to deposit his Foreign Service contribution towards his pensionary benefits and leave salary for assessment by the Deputy Chief Accounts Officer (W) Kanchrapara Workshop, and to submit his technical letter of resignation. Thereafter, by a letter dated 22nd February, 1990, the Chief works Manager, Kanchrapara workshop, directed the petitioner to deposit his Foreign Service contribution towards his pensionary benefits and leave salary for assessment by the Deputy Chief Accounts Officer (W) Kanchrapara Workshop, and to submit his technical letter of resignation. A letter to the above effect was also addressed to the petitioner by the Deputy Accounts Officer (W), Kanchrapara Workshop, and pursuant thereto the petitioner deposited his entire Foreign Service Contribution for the period from 20th April, 1981, to 19th April, 1983, with the chief cashier, Eastern Railway, Calcutta, on 13th August, 1990. The petitioner thereafter submitted his application for grant of terminal benefits on cessation of his service with the Railways. ( 5 ) THE Chief Works Manager, Kanchrapara Workshop, appears to have written to the petitioner on 24th May, 1991, seeking clarification as to whether he had joined Andrew Yule and Co. Ltd. by submitting his resignation to Coal India Ltd. and to submit the letter of acceptance of such resignation. In support thereto, the petitioner forwarded a copy of a letter dated 22nd July, 1992, written by the Chief of Administration, Eastern Coalfields Ltd,. Accepting the petitioner's resignation with effect from 31th December, 1981. Subsequenlly, the Chief Works Manager, Kanchrapara Workshop, informed the petitioner by a letter dated 11th March, 1993, that his resignation from one public Sector Undertaking to another had no relation withholding of lien in the Railways, except that it came within the purview of tendering resignation from his parent department. ( 6 ) AGGRIEVED by the view expressed by the Chief Works Manager, the petitioner filed an appeal before the Chief Personnel Officer, Eastern Railway on 26th August, 1993, for grant of his terminal benefits. Receiving no response to his said appeal, the petitioner moved the Central Administrative Tribunal, Calcutta Bench, by way of original Application No. 188 of 1994, inter alia, for grant of pensionary benefits, Death-cum-Retirement Gratuity, Leave Encashment for 180 days and for the period of actual Railway service and the period of lien and for other consequential benefits for his service under the railway authorities in accordance with the Rules consequent upon his resignation and absorption in a Public Sector Enterprise. ( 7 ) THE said O. A. No. 188 of 1994 was heard on 23 rd April, 1997 and since the hearing could not be concluded the matter was adjourned till 13th June, 1997, when it was dismissed. On the said date the learned advocate for the petitioner was unable to attend and the matter was dismissed in his absence. ( 8 ) THE petitioner thereupon filed an application for review, being M. A. No. 362 of 1997, which was also dismissed on 23rd December, 1998. Aggrieved thereby, the petitioner has filed the instant writ petition complaining of the manner in which both the Original Application as also the Review Application filed by the petitioner were dismissed. ( 9 ) APPEARING for the writ petitioner, Mr. M. A. Vidyadharan learned Advocate, submitted that the learned Tribunal misconstrued the facts in arriving at the finding that there was no information before it to show that the petitioner had applied to the railway authorities for joining the post under Eastern Coalfields Ltd. and that he had, in fact, joined Eastern Coalfields during the period of lien under the railways, and he also joined M/s. Andrew Yule and Co. Ltd. without any intimation to the railway authorities. ( 10 ) MR. Vidyadharan contended that the petitioner had been duly released from railway service with effect from 20th April, 1981, to enable him to join his new assignment in Coal India Ltd. and on receiving an offer from M/s. Andrew Yule and Co. Ltd. he informed the Additional Chief Electrical Engineer, Kancharapara, Eastern Railway, by a letter dated 18th November, 1981, of such offer during his period of probation with Coal India Ltd. and that he was going to join M/s. Andrew Yule and Co. Ltd. after leaving his job at Coal India Ltd. Mr. Vidyadharan submitted that no objection was raised to his said letter and the learned Tribunal was not, therefore, justified in holding that the petitioner had joined M/s. Andrew Yule and Co. Ltd. without any intimation to the railway authorities. Mr. Vidyadharan submitted that such incorrect finding was the basis of the order passed by the learned Tribunal on 13th June, 1997, and the same could not, therefore, be sustained. ( 11 ) MR. Ltd. without any intimation to the railway authorities. Mr. Vidyadharan submitted that such incorrect finding was the basis of the order passed by the learned Tribunal on 13th June, 1997, and the same could not, therefore, be sustained. ( 11 ) MR. Vidyadharan urged that acceptance of the petitioner's resignation was a mere formality and, in any event, such resignation was duly accepted by Coal India Ltd. with effect from 31st December, 1981. ( 12 ) IN this regard, Mr. Vidyadharan refereed to Rule 26 of the Central Civil Service (Pension) Rules which, inter alia, provides that resignation from a service or post, unless it is allowed to be withdrawn in the public interest by the officiating authority entails forfeiture of past service, but such resignation shall not entail forfeiture of past service if it has been submitted to take up with proper permission, another appointment, whether temporary of permanent, under the Government where service qualifies. ( 13 ) MR. Vidyadharan also urged that a Government employee shall be deemed to have retired from service from the date of absorption in or under a Corporation, Company or body wholly or substantially owned or controlled by the Government and shall be entitled to receive retirement benefits. ( 14 ) IN support of his aforesaid submission Mr. Vidyadharan referred to a decision of the Central Administrative Tribunal, Bangalore, in V. Narasimha Holla v. Controller of Defence Accounts (Madras) and Other [1991 (18) Administrative Tribunals Cases, page 511] where an interpretation of Rule 37 of the CCS (Pension) Rules, 1972, it was held that a Government employee shall be deemed to have retired from Government service from the date of his absorption in or under a Corporation, Company or body wholly or substantially owned or controlled by the Central Government or a State Government and shall be eligible to receive retirement benefits. ( 15 ) MR. Vidyadharan submitted that before the learned Tribunal reliance had been placed on an office memorandum dated 31th January, 1986, wherein it had been clearly provided as follows:-"resignation from Government service with a view to secure employment in a Central Public Enterprise with proper permission will not entail forfeiture of the service for the purpose of retirement/terminal benefits. Vidyadharan submitted that before the learned Tribunal reliance had been placed on an office memorandum dated 31th January, 1986, wherein it had been clearly provided as follows:-"resignation from Government service with a view to secure employment in a Central Public Enterprise with proper permission will not entail forfeiture of the service for the purpose of retirement/terminal benefits. In such cases, the Government servant concerned shall be deemed to have retired from service from the date of such resignation and shall be eligible to receive all the retirement/terminal benefits as admissible under the relevant rules applicable to him in his parent organisation. " ( 16 ) IT was urged that despite the letter of intimation sent by the petitioner to the Additional Chief Electrical Engineer, Kanchrapara, Eastern Railway, on 15th November, 1981, the learned Tribunal had wrongly concluded that the petitioner joined M/s. Andrew Yule and Co. Ltd. without applying through proper channel and that he had joined the said Company without permission from the Railway authorities Mr. Vidyadharan urged that the learned Tribunal had wrongly dismissed the petitioner's review application although there had been a miscarriage of justice by virtue of the order passed on the petitioner's Original Application on 13th June, 1997. ( 17 ) APPEARING for the respondents Mr. Tarun Kumar Ghosh, learned advocate, submitted that since the petitioner had not obtained permission from the Railway authorities before joining M/s. Andrew Yule and Co. Ltd. , he could not claim that he had done so with proper permission as contemplated in the Rule, so as to being him within the exemption of forfeiture of his past service and the learned Tribunal had rightly rejected the petitioner's claim. It was urged that even if the theory of deemed retirement was to be accepted, the same could not be made applicable to the petitioner's case since he did not obtain permission from the Railway authorities to join M/s. Andrew Yule and Co. Ltd. where he was subsequently absorbed. Mr. Ghosh submitted that since the petitioner's entry into service with M/s. Andrew Yule and Co Ltd. was without the approval of his parent department, the petitioner could not be given the benefit of such absorption in support of his claim for terminal benefits. Ltd. where he was subsequently absorbed. Mr. Ghosh submitted that since the petitioner's entry into service with M/s. Andrew Yule and Co Ltd. was without the approval of his parent department, the petitioner could not be given the benefit of such absorption in support of his claim for terminal benefits. ( 18 ) THE impact of the objection taken on behalf of the respondents and upheld by the learned Tribunal is reduced considerably by the fact that the petitioner had obtained proper permission to leave Railway service to join Coal India Ltd. The petitioner was released by an office order issued by the Additional Chief Electrical Engineer, Kanchrapara Workshop, with effect from 20th April, 1981, and he joined Coal India Ltd. on probation thereafter. During the period of probation, on getting an offer from M/s. Andrew Yule and Co. Ltd. , the petitioner left the service of Coal India Ltd. and joined the said Company upon informing the Additional Chief Electrical Engineer by a letter dated 15th November, 1981. Of course, no formal permission appears to have been accorded to the petitioner to join M/s. Andrew Yule and Co. Ltd. , but it cannot be said that there were no materials on record to show that the petitioner had even applied to the Railway authorities seeking permission to join Eastern Coalfields Ltd. ( 19 ) THE petitioner had been allowed to leave railway service and to join Coal India Ltd. Had his service been absorbed in the said Company the decreeing provision in Rule 37 of the CCS (Pension) Rules, 1972, would have become operative. The problem has been created by the petitioner having left the service of Coal India Ltd. and joining M/s. Andrew Yule and Co. Ltd. , however, before doing so, the petitioner did inform the Railway authorities of his intention to do so. There is also no controversy that the petitioner's services were confirmed by M/s. Andrew Yule and Co. Ltd. , a Central Government Enterprise. ( 20 ) THE Office Memorandum dated 31st January, 1986, relied upon by the petitioner, appears to have been bypassed by the learned Tribunal on the ground that proper permission had not been obtained by the petitioner before joining M/s. Andrew Yule and Co. Ltd. , a Central Government Enterprise. ( 20 ) THE Office Memorandum dated 31st January, 1986, relied upon by the petitioner, appears to have been bypassed by the learned Tribunal on the ground that proper permission had not been obtained by the petitioner before joining M/s. Andrew Yule and Co. Ltd. Such a view appears to be too rigid since the petitioner had initially obtained proper permission to leave Railway service and to join Coal India Ltd. , a Government of India enterprise, and, thereafter, he joined M/s. Andrew Yule and Co. Ltd. also a Central Government Enterprise, upon intimation to the Additional Chief Electrical Engineer, Kanchrapara Workshop, Eastern Railway. ( 21 ) WE are quite alive to the fact that the petitioner has come up against an order dismissing his review application where the scope of interference is limited, but the order of the learned Tribunal disposing of the petitioner's Original Application suffers from error apparent on the face of the record regarding the facts relating to the petitioner's release from Railway service and his joining the service of Coal India Ltd. and his subsequent resignation from Coal India Ltd. and joining the service of M/s. Andrew Yule and Co. Ltd. ( 22 ) WE are inclined to hold that there was substantial compliance of Rule 26 (2) of the C. C. S. (pension) Rules, 1972, in the petitioner's case and that he is entitled to the benefit of his past service for the purpose of receiving retirement benefits. ( 23 ) WE, therefore, set aside the orders passed by the learned Tribunal on 13th June, 1977, dismissing O. A. No. 188 of 1994 and the subsequent order dated 23rd December, 1998, in M. A. No. 362 of 1997, and direct the respondents to pay to the petitioner his entire retiral benefits, as admissible to him, pursuant to the application made by him on 5th January, 1990, within three months from the date of communication of this order. There will be no order as to costs. Leave is given to the learned advocates of the respective parties to communicate this order to the concerned respondents who are directed to act on the basis thereof. If an urgent xerox certified copy of this order is applied for, the same is to be supplied to the applicant expeditiously, subject to compliance with all the required formalities. Leave is given to the learned advocates of the respective parties to communicate this order to the concerned respondents who are directed to act on the basis thereof. If an urgent xerox certified copy of this order is applied for, the same is to be supplied to the applicant expeditiously, subject to compliance with all the required formalities. A. K. Basu, J.- I agree. Petition allowed.