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2006 DIGILAW 2577 (PNJ)

Om Parkash Chauhan v. State of Punjab

2006-07-06

S.S.NIJJAR, S.S.SARON

body2006
JUDGMENT S.S. NIJJAR, J. 1. With the consent of counsel for the parties, the writ petition is taken up for final disposal at motion stage. 2. After putting in 37 years 2 months and 19 days of satisfactory service, the petitioner left the urge to serve the community by becoming an MLA. He, therefore, applied for two months leave on 9.1.2002 to participate in the election process. Three days later, on 22.1.2002 he submitted his resignation as he had been given ticket by Bahujan Samaj Party for contesting the election of the Legislative Assembly. The petitioner lost the election and thereafter, made an application to rejoin the duty. He was, however, not permitted to rejoin. He, therefore, made a representation to the respondents for the grant of retiral benefits. This was also not accepted by the respondents. The petitioner has, therefore, filed this writ petition under Articles 226/227 of the Constitution of India, seeking the issuance of a writ in the nature of Mandamus directing the respondents to release the retiral benefits to the petitioner, on the basis of the service rendered by him up to the date his resignation was accepted. 3. The respondents have filed a written statement. It is stated that resignation of the petitioner was accepted on 23.1.2002. Retiral benefits cannot be released to the petitioners, in view of Rule 7.5 of the Punjab Civil Services Rules, Chapter VII of Vol. I Part-1. 4. We have heard the learned counsel for the parties and perused the paper-book. 5. Learned counsel for the petitioner submits that a perusal of the legal notice (Annexure P-7) dated 12.8.2004 which was sent by the petitioner to the respondent, would clearly show that the petitioner had merely used the term “resignation”. When in fact, he ought to have sought voluntary retirement in his application dated 22.1.2002 (Annexure P-2). The petitioner was also under the impression that in case he does not win the election, he will be permitted to rejoin the duty. The petitioner had, in fact, made an application for leave. Subsequently, he submitted the application for resignation dated 23.1.2002 (Annexure P-2) on the advice given by the concerned official. Learned counsel further submits that the petitioner is only a Class IV employee. He does not understand the difference between “resignation” and “retirement”. The petitioner had, in fact, made an application for leave. Subsequently, he submitted the application for resignation dated 23.1.2002 (Annexure P-2) on the advice given by the concerned official. Learned counsel further submits that the petitioner is only a Class IV employee. He does not understand the difference between “resignation” and “retirement”. Learned counsel further submits that mere use of the term “resignation” by the petitioner in his application dated 22.1.2002 (Annexure P-2) would not entail forfeiture of his past service as the petitioner had already completed 37 years of meritorious service. The petitioner did not seek resignation in order to avoid any disciplinary proceedings or punishment. He had merely submitted that resignation in order to contest the election. In support of the submission, learned counsel relies on a Division Bench judgment of this Court rendered in the case of Shagara Singh v. State of Punjab, 1997(4) S.C.T. 532. 6. Mr. Vikram Aggarwal, learned counsel appearing for the respondents-Corporation, however, submits that the petitioner having voluntarily resigned from service cannot now be permitted to argue that his past service has not been forfeited. The service conditions of the petitioner are governed by the Punjab Civil Service Rules, and therefore, under Rule 7.5, the service rendered by the petitioner is deemed to have been forfeited. The resignation submitted by the petitioner was lawfully accepted on 23.1.2002. Learned counsel further submits that the claim of the petitioner would also not fall under Rule 7.5 (2). The aforesaid sub-rule (2) of Rule 7.5 only protects the service in case resignation has been submitted to take up another appointment under the Government with the permission of the appointing authority. The petitioner had submitted his resignation for contesting the election to the Legislative Assembly. Therefore, according to the learned counsel, the petitioner would not be entitled to any retiral benefits. 7. We have considered the submissions made by the learned counsel for the parties. We are of the opinion that the judgment of the Division Bench relied upon by the petitioner in the case of Shagara Singh (supra) would not be applicable in the facts and circumstances of the present case. In the aforesaid case, the Division Bench was considering the entitlement of retirement under a Scheme notified on 12.2.1992 which was applicable to the employees of the Privacy Managed School in Punjab. In the aforesaid case, the Division Bench was considering the entitlement of retirement under a Scheme notified on 12.2.1992 which was applicable to the employees of the Privacy Managed School in Punjab. It has been clearly held by the Division Bench that Rule 7.5 would not be applicable in the facts and circumstances of that case. In paragraph 10 of the aforesaid judgment, the Division Bench held as under :- “10. The respondents have invoked the provisions of Rule 7.5 of the Punjab Civil Services Rules, Volume I part I to deny the benefits of the pension scheme to the petitioner. This rule provides that “resignation from a service or a part, unless it is allowed to be withdrawn in public interest by the appointing authority, entails forfeiture of past service.” There is no rule for reading this provision into the Pension Scheme which is a complete Code. The Scheme provides under Clause 8 that “an employee shall be entitled for pension under the Scheme only after he completes ten years (twenty half years) qualifying service.” Under Clause 6, the provision for qualifying service has been made. The service which is on an aided post on regular basis counts as qualifying service. It is to be taken into account with effect from the date “an employee started contributing towards the Contributory Provident Fund”. The petitioner had admittedly started contributing towards the Contributory Provident Fund on April 1, 1969. He had continued to do so till March 30, 1991. He had, thus, completed more than 10 years of qualifying service. The Scheme is comprehensive. It does not specifically provide that the pension is not admissible to a person who had resigned from the service. Admittedly, the petitioner had exercised his option in accordance with the provisions of Clause 4. His case had been duly forwarded by the authorities to respondent no.2. The respondents had not at any stage refunded the amount of Contributory Provident Fund deposited by the petitioner as far back as in 1992-93. In view of these facts, there appears to be no justification for declining the relief of retiral benefits to the petitioner.” 8. We are of the considered opinion that in the facts and circumstances of the present case, Rule 7.5 would not be applicable. We are also satisfied that the petitioner had merely used the term “resignation” instead of the term “retirement”, out of confusion. We are of the considered opinion that in the facts and circumstances of the present case, Rule 7.5 would not be applicable. We are also satisfied that the petitioner had merely used the term “resignation” instead of the term “retirement”, out of confusion. We are satisfied that the petitioner did not know the consequences of using the term “resignation” instead of the term “retirement”. Having served the department for 37 years, the petitioner was, in any event, on the verge of retirement. Therefore, in case the full consequences had been explained to him, he would probably not have submitted the application dated 22.1.2002 (Annexure P-2). In our opinion, the respondents ought to have adopted a more humane approach in considering the request made by the petitioner in the legal notice (Annexure P-7) dated 12.8.2004. The so-called “resignation” of the petitioner ought to have been treated as a request for retirement and accepted as such. It would be wholly unjust to deprive the petitioner of the retiral benefits after he has rendered 37 years, 2 months and 19 days service (sic) Corporation. 9. In view of the above, we allow the writ petition. We quash the order dated 23.1.2002 (Annexure P-3). We direct respondent no. 2 to release the retiral benefits to the petitioner on the basis that he is deemed to have retired from service w.e.f. 23.1.2002. No costs.