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2013 DIGILAW 117 (GUJ)

Jasabhai Alabhai Rathod v. Union of India

2013-02-26

S.G.Shah, Vijay Manohar Sahai

body2013
Judgment Vijay Manohar Sahai, J.—We have heard learned Counsel Mr. Anand B. Gogia, appearing for the petitioner and Mrs. Vasavdatta Bhatt appearing for the respondents. 2. The brief facts of the case are that the petitioner was joined his services as WSPA in Railways on 24.07.1948. After completing 26 years of service in Railways, he wanted to retire from service. Stating these facts he tendered his resignation on 18th February 1974. The resignation was accepted by the respondents vide order dated 5th November 1974. 3. On 27th January 1998, the Government of India, Ministry of Railways issued a circular for grant of Exgratia payment to surviving family members of the retired SRPF (C) employees, who had retired between the period of 01.04.1957 to 31.12.1985. This Exgratia amount was to be paid to those employees who had completed 20 years of continuous services, prior to the date of their superannuation. Paragraph No. 2 of the circular clearly mention that this Exgratia payment will not be admissible to dismissed/removed employees, or to the employees who had resigned from service before completing 20 years services. 4. Learned Counsel for the petitioner placed reliance on a decision by the Apex Court in case of Sheelkumar Jain vs. The New India Assurance Co. Ltd. & Ors., reported in 2011 AIR SCW 4517, wherein the view taken is that the employee wants to voluntarily retire from service, he tenders resignation, he is entitled for pension as he does not understand the difference between the word “resignation” and “voluntary retirement.” 5. The Apex Court has taken a view that even though in the letter given to the employer, if the employee had used the word resigned, then also he is entitled for pension as he has completed 20 years of qualifying service. 6. So far as the instant scheme is concerned, which is floated by the Railways for grant of ex-gratia amount, the Division Bench of this Court in Special Civil Application 15371 of 2004 (Union of India vs. Hansraj Karsan Jadhvani), decided on 30.11.2004. held In last paragraph of the judgment as under : “Adverting to the facts of the case, respondent is a Carpenter. He has served the petitioner for 20 years, therefore, qualified for pension. Perusal of communication dated 15.7.1976 demonstrates that it is not a case of resignation. Respondent has no where said that he tenders resignation from service, therefore, be relieved. He has served the petitioner for 20 years, therefore, qualified for pension. Perusal of communication dated 15.7.1976 demonstrates that it is not a case of resignation. Respondent has no where said that he tenders resignation from service, therefore, be relieved. He simply says that he be relieved from service since he wished to do private business. Person having put in 20 years of qualifying service for pension is not expected to leave service without availing service benefits which accrued/earned by that time. Giving meaningful and liberal interpretation to the communication, we are of the opinion that it is a case of superannuation and not a case of resignation. In the case before the Apex Court Reserve Bank of India & Anr. vs. Cecil Dennis Solomon & Anr., (JT 2003 (10) SC 156 regulation provided for forfeiture of the entire past service in case of resignation. But no such regulation has been brought to our notice, nor the order how the communication of the respondent has been treated as resignation” 7. The Division Bench has held that the communication made by the employee with regard to superannuation and not resignation is entitled for pensionary benefits. The Railways can not deprive any employee from receiving pension after putting in the qualifying services even if he has resigned voluntarily or otherwise. This decision of the Division Bench has been affirmed by the Apex Court as SLP CC No. 5843 of 2005 against such judgment has been dismissed on 12.7.2005. Therefore, even if it is to be treated a case of resignation, since the employee has completed 20 years of qualifying service, he is entitled for pensionary benefits and ex-gratia payment as per the scheme. Therefore, the order passed by the Central Administrative Tribunal can not be maintained and deserves to be quashed. 8. In the result, this Special Civil Application succeeds and is allowed. The order dated 22nd September, 2006 passed by the Central Administrative Tribunal in Original Application No. 17 of 2006 with Misc. Application No. 14 of 2006 and Misc. Application No. 15 of 2006 is quashed. The respondents are directed to calculate the ex-gratia payment for which the petitioner is entitled and pay the same to him within a period of 4 months from the date of copy of this order produced before the respondent No. 1 and 2. Application No. 14 of 2006 and Misc. Application No. 15 of 2006 is quashed. The respondents are directed to calculate the ex-gratia payment for which the petitioner is entitled and pay the same to him within a period of 4 months from the date of copy of this order produced before the respondent No. 1 and 2. Petitioner is directed to send copy of the order to both the respondents. 9. Rule is made absolute. Parties shall bear their own cost.