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2005 DIGILAW 327 (JK)

Raj Kumar Sharma v. State Of J. &K.

2005-11-29

R.C.GANDHI

body2005
(Oral) 1. Petitioner seeks to quash Order NO: 5.11.1999 and order dated 3.4.2001 whereby the respondents have rejected his claim with respect to pensionary benefits. He seeks further direction to the respondents to release his pension and other service benefits. 2. Petitioner was appointed as Jr. Asstt., in the office of the Chief Project Officer RSB, Jammu from 17.1.1967 to 2.10.1969 and thereafter in the office of Director Sainik Welfare J&K Govt., Jammu w.e.f. 3.10.1969 to 9.3.1978. He proceeded on sanctioned leave w.e.f. 10.3.1978 to 27.3.1978 followed by furllow leave of one year from 28.3.1978 to 27.3.1979 and again on extra ordinary leave (without pay) w.e.f. 28.3.1979 to 27.07.1979 without proper sanction. The petitioner could not assume his duties because of his ailing health and thereafter was discharged from service on 6.6.1981 by the respondents, Additional Secretary Home, J&K Government, Jammu. It was mentioned in the discharged order that petitioner is not entitled to the pensionary benefits in terms of Regulation 200 of the Civil Service Regulations. The petitioner moved a representation to the respondents on 11.1.2001 to the effect that he has not submitted his resignation, therefore, he is entitled to the pensionary benefits. The representation, however, was rejected by the respondents after seeking opinion from the Law Department. The representation of the petitioner regarding grant o the pension was disposed of by the respondents and conveyed to petitioner vide order dated 3.11.2001. The petitioner has challenged this action of the respondents and communication sent by the respondents to the petitioner communicating that his case for resignation cannot be re-opened. 3. The respondents have filed Counter Affidavit, stating therein that the petitioner proceeded on sanctioned w.e.f. 10.3.1978 to 27.3.1978 followed by furllow leave from 28.3.1978 to 27.3.1979. He again applied for extra ordinary leave (without pay) from 28.3.1979 to 27.07.1979. On expiry of the said leave the petitioner did not join. The petitioner was asked to resume his duties. On receiving communication, the petitioner expressed his inability to resume the duty, on account of his ill health. The petitioner was asked to produce medical certificate in support of the plea of his ailment. He produced a certificate issued by Medical Officer, J&K Health Services, which shows that petitioner has been suffering from Anxity Neorosis with Insomnia. On receiving communication, the petitioner expressed his inability to resume the duty, on account of his ill health. The petitioner was asked to produce medical certificate in support of the plea of his ailment. He produced a certificate issued by Medical Officer, J&K Health Services, which shows that petitioner has been suffering from Anxity Neorosis with Insomnia. As stated in the petition, petitioner was living in Sarwal, Jammu but the medical certificate which has been produced by him, has been issued by the Medical Officer (I.M.) Govt. Dispensary Phinder (R.S.Pura), which was not considered as a genuine certificate by the respondents. The respondents asked the petitioner to report to SMGS Hospital, Jammu for his medical examination. The petitioner did not oblige the respondents. The respondents initiated action against the petitioner, under such circumstances. He submitted an application dated 31.1.1981 asking the respondents to relieve him from service on the ground of domestic circumstances and because of ailment. His application has been treated as resignation and accepted as such. The petitioner has been intimated vide letter dated 17.6.1981 that in terms of provisions of Regulation 200 of the J&K CSR, the petitioner is not entitled to pension, cum-death gratuity. 4. Heard learned counsel for the parties and perused the record. 5. The plea of the petitioner that he has not submitted his resignation but only made an application for relieving him from service and the respondents were not right in considering the application as resignation. His relief is two fold. First is that if the resignation be set aside the petitioner be treated in service, and secondly, the petitioner is entitled to pension as rigors of Regulation 200 of the J&K CSR will not be applicable to the case of the petitioner. 6. The petitioner on 31.1.1981 applied to the respondents that he may kindly be relived from service and any pension, if otherwise provided under rules, may be sanctioned in his favour, owing to unfavorable domestic affairs. He has also stated that he has not been able to continue his services any more due to ill health and also due to domestic affairs. He has also stated that he has not been able to continue his services any more due to ill health and also due to domestic affairs. The respondents have addressed to the petitioner letter dated 9.7.1981, which reads as under: - As advised vide our above quoted letter please forward your confirmation in writing whether your request for resignation be considered for acceptance under the provisions of Art. 200 of Jammu and Kashmir Civil Services Regulations as you are not entitled for any pension dues/death -cum-retirement gratuity. The requisite confirmation should reach this office by 16th August, 1981 failing which it will be presumed that your request for resignation should be considered for acceptance, as above.� 7. The petitioner did not reply this letter of the respondents. Respondents issued another letter dated 17.06.1981 to the petitioner, intimating him that under the provisions of Regulation 200 of Jammu and Kashmir Civil Services Regulations, petitioner is not entitled to any pension dues/death-cum-retirement gratuity. The petitioner was advised to confirm whether his request for resignation be considered for acceptance. The petitioner did not reply this letter also to the respondents. His written request was considered as resignation and conveyed vide letter dated 14.4.1981 that petitioner™s resignation has been accepted w.e.f. 31.1.1981. 8. The petitioner after a period of 20 years has made a representation to the respondents for grant of pension. His case was considered by the respondents and on seeking the opinion of the Law Department, has been rejected vide impugned order. 9. The plea of learned counsel for the petitioner is that the respondents were not right in their action in accepting the resignation of the petitioner. The petitioner made request to the respondents to relieve him from service, as he was not in a position to continue in service because of domestic affairs coupled with his ill health and have not submitted his resignation from service. 10. Learned counsel for the petitioner could not make out as to what mode was available to the respondents to consider his application except the adopted mode. There can only be dismissal, discharge or removal from service to severe the relation of servant and his employer. Relieving from service means to severe such relations. The petitioner has voluntarily made an application for relieving him from his services. It could be considered only as resignation of the petitioner. There can only be dismissal, discharge or removal from service to severe the relation of servant and his employer. Relieving from service means to severe such relations. The petitioner has voluntarily made an application for relieving him from his services. It could be considered only as resignation of the petitioner. The respondents have also conveyed to the petitioner that his representation for relieving him from service has been treated as resignation. The petitioner if aggrieved should have protested when respondents posted two letters to the petitioner in this regard. The respondents have considered the case of the petitioner in accordance with Regulation 200 of the J&K Civil Services Regulations. This provision could be applied to the case of the petitioner. Petitioner has not shown that his case could have been under any other specific regulation. 11. The petitioner has made representation to the respondents after a period of 20 years to re-open the case without explaining delay and laches. The respondents were right in conveying to the petitioner that his resignation has been accepted and cannot be re-opened. Otherwise also the petitioner could not make out that the resignation has been wrongly accepted or and not in accordance with law. The respondents have the power to accept the resignation of an employee. The respondents are justified in exercising their power. The petitioner, as per his request, has been relieved from his service by accepting his resignation. In view of the mandate of Regulation 200 of the Civil Services Regulations, the petitioner is not entitled to the pensionary benefits. For the aforesaid reasons, there is no merit in this petition, which is accordingly dismissed.