Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 1075 (GAU)

R. K. Bimol Singh v. State of Manipur

2006-12-05

I.A.ANSARI, UTPALENDU BIKAS SAHA

body2006
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 7.12.2004, passed in WP(C) No. 69/2002, a learned Single Judge of this court has dismissed the writ petition, whereby the petitioner sought for, inter alia, a direction to the State respondents to pay him his retiral benefits under the scheme of voluntary retirement of the Government of Manipur. 2. We have heard Mr. N.K. Singh, learned senior counsel for the appellant, and Mr. N. Ibotombi, learned Government Advocate, appearing on behalf of the respondent No. 3. 3. Before we turn to the facts, which are in dispute in the present appeal, we may set out some of the material facts, which are not in dispute. The Government of Manipur, under its office memorandum, dated 15.3.1978, has a scheme of voluntary retirement for its employees. This scheme comes into operation in respect of persons, who have completed 20 years of qualifying service for the purpose of pension and gratuity with a weightage of upto five years towards qualifying service, wherever applicable. The appellant came to be appointed, on 4.9.1962, as a lecturer in Mathematics in Adimjati Technical Institute, imphal. While the appellant was still serving as a lecturer, the said Polytechnic was taken over by the State Government, with effect from the afternoon of 14th August, 1972, by an order, dated 13.9.1972, passed by the Government and the said Institute became a Government Polytechnic. By another order, dated 19.10.1972, the Government absorbed 44 posts of Government Polytechnic, the said posts having been created under the order, dated 3.10.1972. By yet another order, dated 29.9.1978, the Government protected the past service of the staffs of the said Government Polytechnic by according ex post facto approval thereto, the past services of the staff of the said Government Polytechnic having been protected for the purpose of pay, pension, gratuity, inter-se seniority and promotion. While serving as a lecturer in the said Government Polytechnic, the petitioner submitted a representation, dated 12.9.1983, to the Government. This representation was treated by the Government as a letter of appellant's resignation. Having considered the said representation as a letter of resignation, the Government communicated its acceptance of the said resignation by its letter, dated 1.10.1983, describing therein the appellant as a senior lecturer of the Government Polytechnic Institute, Imphal. The appellant, then, wrote a letter, on 18.6.1984, praying for pension and gratuity as per the relevant Rules. Having considered the said representation as a letter of resignation, the Government communicated its acceptance of the said resignation by its letter, dated 1.10.1983, describing therein the appellant as a senior lecturer of the Government Polytechnic Institute, Imphal. The appellant, then, wrote a letter, on 18.6.1984, praying for pension and gratuity as per the relevant Rules. Similar representations were made by the appellant on 14.4.1988 and 21.9.1995 too. To the representations so made, as the appellant did not receive any response from the Government, he came to this court with the help of an application made under Article 226 of the Constitution of India, which gave rise to WP(C) No. 69/2002 aforementioned. In this writ petition, while the appellant contended that his representation, dated 12.9.1993, aforementioned was a letter voluntary retiring from service in terms of the said scheme, dated 15.3.1978, the respondents contended that the petitioner had not retired under the said scheme; rather, the appellant had resigned and his resignation having been accepted, he cannot be granted pension. The learned Single Judge took note of the representations made by the appellant herein and came to the conclusion that the appellant had resigned from service by his representation, dated 12.9.1993, aforementioned and, hence, the appellant is, under the Manipur Civil Service (Pension) Rules 1977, not entitled to any pension or pensionary benefit. For the conclusions so reached, the learned single Judge has dismissed the appellant's said writ petition. The appellant is, therefore, before this court with the present appeal. 4. There is no dispute before us that if the petitioner had resigned from service, his past service stood forfeited and he would not be entitled to pension. On the contrary, if his representation, dated 12.9.1983, aforementioned can be, or ought to have been, treated as a request for voluntary retirement, his case ought to have been considered by the respondents under the said scheme of voluntary retirement. On the contrary, if his representation, dated 12.9.1983, aforementioned can be, or ought to have been, treated as a request for voluntary retirement, his case ought to have been considered by the respondents under the said scheme of voluntary retirement. In order to ascertain as to how the learned Single Judge came to the conclusion that the petitioner had resigned and was, therefore, not entitled to any retiral benefits including pension, we reproduce hereinbelow the observations made and the conclusions reached, in this regard, by the learned Single Judge, which read as under: (a) The petitioner in application, dated 12.9.1983 (Annexure A/7), has specifically mentioned that "it is, therefore, prayed that my resignation from the present post may also be granted in time" (b) Again in his application dated 18.6.1984 (Annexure-A/9 to the writ petition) it is also mentioned that "that I have submitted my resignation tender on 12.9.1983 (c) In the application dated 14.4.1988 (Annexure-A/9) he again mentioned that "my resignation tender was accepted, vide Govt. order No. 2/3/78-S/SE (Tech) Pt-A dated 1.8.1983". (d) In the application dated 21.9.1995, it has been mentioned that "then I have submitted my resignation tender under the voluntary retirement scheme" and (e) In the application dated 17.10.2000 (Annexure-A/12) the writ petitioner reiterated that I was serving as senior lecturer (non-technical) in the Government Polytechnic since 1962 till I tender my resignation under voluntary retirement scheme on 12.9.1983 which has been accepted by the Govt. of Manipur Secretariat, Education Department, under order No. 2/7/3/87-5/SETech) Pt-A dated 1.10.1983. From the contents of the applications of the petitioner mentioned above it is clearly seen that the petitioner had filed application for resignation from his service and not for voluntary retirement. This being the factual position, submission of learned counsel for the petitioner that the word 'resignation' had been mentioned in the application for voluntary retirement through typographical mistake, cannot be accepted. Sub-rule (1) of rule 26 of the Central Civil Services (Pension) Rules, 1972 clearly mentioned that resignation from service of post, unless it is allowed to be withdrawn in public interest by the appointing authority entail forfeiture of past service. Resignation from the service under his resignation application dated 12.9.1983 (Annexure-A/7 to the writ petition) which has been accepted by the Government of Manipur, vide order dated 11.10.1983, shall entail forfeiture of his past service. Resignation from the service under his resignation application dated 12.9.1983 (Annexure-A/7 to the writ petition) which has been accepted by the Government of Manipur, vide order dated 11.10.1983, shall entail forfeiture of his past service. As a result thereof the petitioner has not completed qualifying service for pension. 5. Bearing in mind what the learned single Judge has observed, when we turn to petitioner's representation, dated 12.9.1983, we find that the subject of the representation read as follows: Subject:- Voluntary retirement. - a representation by Shri R.K. Bimol Singh, Senior lecturer (Non-technical) Government Polytechnic Imphal praying for regularisaton of his appointment prior to the acceptance of his voluntary resignation. 6. If the subject of the representation, dated 12.9.1983, is carefully read, in the light of the contents of the said representation, it becomes clear that the appellant, in the subject itself, made it clear that he was submitting the representation seeking voluntary retirement and requested accordingly the authorities concerned to regularise his appointment as a senior lecturer before accepting his voluntary resignation. The contents of the representation make it abundantly clear that the appellant treated the voluntary retirement and voluntary resignation as one and the same act of termination of service by voluntary measure. It would be unjust and unlawful to read merely the prayer portion of the said representation, wherein the appellant requested for "acceptance of his voluntary resignation" and exclude entirely from consideration the remaining contents of the said representation. This representation, dated 12.9.1983, ought to have been, therefore, read in its entirety and when so read, it becomes clear that the appellant had offered to resign for the purpose of enabling him to gain the benefits underlying the said scheme of voluntary retirement. This inference gets reinforced from the fact that the penultimate portion of his representation, the appellant made it clear that his request for regularization of his service in the post of senior lecturer is for the purpose of gaining better terminal benefits, such as, pension and gratuity. 7. To a pointed query made by us as to how the above prominent features of the representation, which indicated that the purpose of tendering resignation was to obtain terminal benefits of pension and gratuity, can be ignored, the learned State Government counsel could offer no plausible or convincing reason. 7. To a pointed query made by us as to how the above prominent features of the representation, which indicated that the purpose of tendering resignation was to obtain terminal benefits of pension and gratuity, can be ignored, the learned State Government counsel could offer no plausible or convincing reason. The conclusion, which is, therefore, inescapable is that the appellant's representation, dated 12.9.1983, ought to have been treated as a request for voluntary retirement under the said scheme of voluntary retirement. That the appellant intended to seek his retirement under the scheme of voluntary retirement is also clear from his subsequent representations, dated 18.6.1984, 14.4.1988 and 12.9.1995. In all these representations, he used the word resignation as well as voluntary retirement in a fashion as if voluntary resignation and voluntary retirement meant one and the same thing. In order to gather the true meaning and purport of the said representation, one has to place himself in the position of the appellant, for, the appellant is not a man of law and it would be unreasonable and too pedantic an approach if it is assumed that the appellant knew the firm, but subtle distinction between the act of resignation and the act of voluntary retirement. 8. It is, no doubt, true, as observed in Reserve Bank of India and Anr. v. Cecil Dennis Solomon and Anr. reported in 2004 (1) LLJ 782 SC, that in service jurisprudence, the expressions, "voluntary retirement" and "resignation" have different connotations. Though 'voluntary retirement' and 'resignation' involve voluntary acts on the part of the employee to leave service, these two voluntary acts operate differently. One of the basic distinctions between the two is that in a 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. The other prominent distinction between the two is that in the case of 'resignation', retiral benefits are, normally, denied; but in the case of the Voluntary retirement', retiral benefits are protected. Though resignation is a bilateral concept and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary. (See also Jaipal Singh v. Smt. Sumitra Mahajan and Anr. reported in AIR 2004 SC 2066 .) 9. Though resignation is a bilateral concept and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary. (See also Jaipal Singh v. Smt. Sumitra Mahajan and Anr. reported in AIR 2004 SC 2066 .) 9. Since the respondents treated the appellant's representation, dated 12.9.1983, as his letter of resignation, onus lies on the respondents to explain as to how the appellant had assumed that by resigning from service, he would obtain more terminal benefits of pension and gratuity. Since no explanation is either offered by the respondents or is discernible from the materials on record, we are firmly of the view that the appellant's representation, dated 12.9.1983, ought to have been treated, as already indicated hereinabove, as a representation seeking voluntary retirement under the said scheme. 10. We may, at this stage, point out that it was agitated before the learned Single Judge by the respondents that the writ petition suffers from inordinate delay and latches. Notwithstanding the plea so taken in the writ petition, the learned Single Judge decided to hear and dispose of the writ petition on merit. Having decided to consider the writ petition on merit, the learned Single Judge heard the same and dismissed the writ petition. In this appeal, there is no cross-objection filed by the State respondents to the effect that the learned Single Judge ought not to have entertained the writ petition. In this appeal, therefore, it is not open to the respondents to agitate, once again, that the writ petition ought not to have been entertained. This apart, pension or gratuity is not a bounty but a right, which a Government employee earns by dint of his hard work and continuous service rendered to the Government. Pension and pensionary benefits are, thus, dues, legally payable to a person, who has served the State without any blemish. Though the appellant has approached this court after a long lapse of time, the fact remains that the appellant has been intermittently requesting the Government to make payment of pension and gratuity. In these circumstances and taking into account the peculiarities of the facts of this case, we are of the view that in a case of present nature, it would have been unjust and improper to refuse to entertain the writ petition. In these circumstances and taking into account the peculiarities of the facts of this case, we are of the view that in a case of present nature, it would have been unjust and improper to refuse to entertain the writ petition. Since the learned Single Judge chose to exercise writ jurisdiction and entertained the writ petition and when the State has made no objection thereto by filing any cross-objection in the present appeal, we are not inclined to refuse to entertain this appeal on the ground of delay or latches. 11. Because of what have been discussed and pointed out above, this appeal succeeds. The impugned judgment and order, dated 7.12.2004, are hereby set aside. The respondents are hereby directed to make payment of the pension and pensionary benefits of the appellant under the said scheme of voluntary retirement. The whole exercise, so directed, shall be completed expeditiously. The appellant shall submit all necessary documents/papers for the purpose of obtaining pension and his other retiral benefits. The respondents shall make available to the appellant the lawfully due pension and pensionary benefits within a period of three months from the date, when the appellant furnishes all requisite documents/papers for the purpose of calculating the amount(s) payable to the appellant. 12. With the above observations and directions, this appeal shall stand disposed of. 13. No order as to costs.