Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 2041 (RAJ)

Union Of India v. Om Prakash S/o Shri Sukh Ram

2022-07-18

KULDEEP MATHUR, SANDEEP MEHTA

body2022
JUDGMENT : 1. The instant writ petition has been preferred by the Union of India (Defence) for assailing the order dated 27.09.2018 passed by Central Administrative Tribunal, Jodhpur Bench whereby, the Original Application No. 290/00455/2015 with MA No. 290/00231/2015 filed by respondent/applicant Shri Om Prakash was accepted and a direction was issued to the petitioners to release gratuity after deducting the period which has been held as ‘Dies Non’ for all purpose from respondent’s total length of service. Further, the respondent/applicant was held entitled to interest at the rate applicable to the GPF deposits prevailing at the relevant point of time. 2. Brief facts relevant and essential for disposal of the writ petition are noted hereinbelow:- 3. The respondent/applicant was appointed as civilian cook at Military Hospital, Jodhpur on 07.10.1996. He joined on the said post on 09.11.1996. The respondent/applicant was issued a Show Cause Notice dated 11.08.2009 to explain reasons for his absence from duty since 1st May 2008 without any information. The respondent/applicant thereafter joined his duties and also submitted a reply to the show cause notice, denying the said allegation. The respondent/applicant again remained absent from duty without leave w.e.f 29.11.2009 to 26.07.2011. On 03.05.2011, another show cause notice was issued to the respondent/applicant, directing him to immediately join the duties and submit an explanation for unauthorized absence. Vide application dated 25.05.2011, the respondent/applicant submitted resignation and at the same time, requested for premature retirement due to domestic problems. The petitioner department accepted the resignation of the applicant w.e.f 26.07.2011 from the post of Civil Cook of Military Hospital, Jodhpur. The period of unauthorised absence from 29.12.2009 to 26.07.2011 was ordered to be treated as ‘Dies Non’ for all purposes. The respondent/applicant thereafter requested for release of retiral benefits and regular pension. However, the retiral benefits were not released in his favour. Thereupon, the respondent/applicant filed the Original Application before the Central Administrative Tribunal seeking a direction for release of retiral benefits which has been accepted and applicant has been held entitled for gratuity after deducting the period which had been held ‘Dies non’ for all purposes from his total length of service. 4. Thereupon, the respondent/applicant filed the Original Application before the Central Administrative Tribunal seeking a direction for release of retiral benefits which has been accepted and applicant has been held entitled for gratuity after deducting the period which had been held ‘Dies non’ for all purposes from his total length of service. 4. Shri Deelip Kawadia, learned counsel representing the employer writ petitioner, vehemently and fervently urged that the Original Application was filed by the respondent/applicant without sufficient explanation for the gross and inordinate delay and therefore, the O.A. ought to have been dismissed on this ground alone. On merits, it was argued that the respondent/applicant has already been paid amount of Leave Encashment and GPF in the year 2012-13 as per the rules in vogue. Rule 26 of Central Civil Services (Pension) Rules, 1972 entails forfeiture of past service if an employee tenders resignation from service or post. The respondent/applicant did not complete minimum service of 20 years for claiming gratuity. On these grounds, Shri Kawadia implored the Court to accept the writ petition and set aside the impugned order passed by the learned Tribunal. 5. Per Contra, Shri S.P. Sharma, learned counsel representing the respondent/applicant, vehemently and fervently urged that respondent/applicant was not subjected to disciplinary inquiry either on account of absence from service or for any other reason in his entire service career. The respondent/applicant, at his own request was prematurely discharged on completion of pensionable service i.e. 10 years of service, as per CCS (Pension) Rules, 1972. The Payment of Gratuity Act, 1972 entitles respondent/applicant to receive gratuity on completion of 5 years of service. He submitted that denial of retiral benefits is a recurring cause of action, therefore the delay in approaching the learned tribunal was rightly condoned. He thus implored the Court to dismiss the writ petition and affirm the direction given by the Tribunal by impugned order dated 27.09.2018 to grant gratuity to the respondent/applicant with interest as per the prevailing rate of GPF deposits. 6. Shri S.P. Sharma, learned counsel for the respondent/applicant has filed a counter claim with a prayer that the respondent/applicant may be declared entitled for grant of regular pension as he has put in more than 10 years of service. In support of this prayer, Shri Sharma relied on Rule 49 (2) of CCS (Pension) Rules, 1972. 7. 6. Shri S.P. Sharma, learned counsel for the respondent/applicant has filed a counter claim with a prayer that the respondent/applicant may be declared entitled for grant of regular pension as he has put in more than 10 years of service. In support of this prayer, Shri Sharma relied on Rule 49 (2) of CCS (Pension) Rules, 1972. 7. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the relevant provisions of CCS (Pension) Rules, 1972 which are reproduced herein below for sake of ready reference. “35. Superannuation pension.-A superannuation pension shall be granted to a Government servant who is retired on his attaining the age of compulsory retirement.” “36. Retiring pension.-A retiring pension shall be granted (a) to a Government servant who retires, or is retired, in advance of the age of compulsory retirement in accordance with the provisions of Rule 48 or 48-A of these rules, or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations; and (b) to a Government servant who, on being declared surplus, opts for voluntary retirement in accordance with the provisions of Rule 29 of these rules.” “48. Retirement on completion of 30 years' qualifying service.-(1) At any time after a Government servant has completed thirty years' qualifying service- (a) he may retire from service, or (b) he may be required by the appointing authority to retire in the public interest, and in the case of such retirement the Government servant shall be entitled to a retiring pension: Provided that - (a) a Government servant shall give a notice in writing to the appointing authority at least three months before the date on which he wishes to retire; and (b) the appointing authority may also give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three months' pay and allowances in lieu of such notice: Provided further that where the Government servant giving notice under clause (a) of the preceding proviso is under suspension, it shall be open to the appointing authority to withhold permission to such Government servant to retire under this rule: Provided further that the provisions of clause (a) of this sub-rule shall not apply to a Government servant, including scientist or technical expert who is- (i) on assignments under the Indian Technical and Economic Cooperation (ITEC) Programme of the Ministry of External Affairs and other aid programmes, (ii) posted abroad in foreign based offices of the Ministries/Departments, (iii) on a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year. (1-A) (a) A Government servant referred to in clause (a) of the first proviso to sub-rule (1) may make a request in writing to the appointing authority to accept notice of less than three months giving reasons therefor. (b) On receipt of a request under clause (a) the appointing authority may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, appointing authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months. (2) A Government servant, who has elected to retire under this rule and has given the necessary intimation to that effect to the appointing authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority : Provided that the request for withdrawal shall be within the intended date of his retirement. (3) For the purpose of this rule the expression 'appointing authority' shall mean the authority which is competent to make appointments to the service or post from which the Government servant retires. ” “48-A. Retirement on completion of 20 years' qualifying service.-(1) At any time after a Government servant has completed twenty years' qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is,- (i) on assignments under the Indian Technical and Economic Cooperation (ITEC) Programme of the Ministry of External Affairs and other aid programmes, (ii) posted abroad in foreign based offices of the Ministries/Departments, (iii) on a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year. (2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. (3) – Omitted (3-A) (a) Government servant referred to in sub-rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons therefor. (3) – Omitted (3-A) (a) Government servant referred to in sub-rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons therefor. (b) on receipt of a request under clause (a), the appointing authority subject to the provisions of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months. (4) Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority: Provided that the request for withdrawal shall be made before the intended date of his retirement. (5) Omitted (6) This rule shall not apply to a Government servant who - (a) retires under Rule 29, or (b) retires from Government service for being absorbed permanently in an autonomous body of a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. EXPLANATION. -For the purpose of this rule the expression "appointing authority" shall mean the authority which is competent to make appointments to the service or post from which the Government servant seeks voluntary retirement.” “49. Amount of pension-(1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing service of ten years, the amount of service gratuity shall be calculated at the rate of half month’s emoluments for every completed six monthly period of gratuity qualifying service. (2) (a) In the case of Government servant retiring in accordance with the provision of these rules before completing qualifying service of ten years, the amount of service qualifying shall be calculated at the rate of half month’s emoluments for every completed six monthly period of qualifying service. (2) (a) In the case of Government servant retiring in accordance with the provision of these rules before completing qualifying service of ten years, the amount of service qualifying shall be calculated at the rate of half month’s emoluments for every completed six monthly period of qualifying service. (b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) and in no case the amount of pension shall be less than (rupees three hundred and seventy five per mensem). (c) Notwithstanding anything contained in Clause (a) and Clause (b) the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of Rule 54. [(3) In calculating the length of qualifying service, fraction of a year equal to [three months] and above shall be treated as a completed one-half year and reckoned as qualifying service.] [(4) The amount of pension finally determined under Clause (a) or Clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of a rupee it shall be rounded off to the next higher rupee.]” 8. After going through the relevant provisions of the CCS (Pension) Rules, 1972, reproduced (supra), in our view an employee does not become eligible for grant of pension before completing 20 years of service as provided in Rule 48-A of CCS (Pension) Rules, 1972. There is no substance in the contention of the learned counsel for the respondent-applicant that on the basis of Rule 49(2) of CCS (Pension) Rules, 1972, the respondent/applicant became entitled to get pecuniary benefits after completing 10 years of service but before completing qualifying service of 20 years. The Rule 49 only prescribes the procedure for calculation and quantification of the pension amount. 9. The prayer for grant of pecuniary/terminal benefits made in counter claim is therefore rejected. 10. The payment of gratuity to the employees is governed by the Payment of Gratuity Act, 1972. Section 4 (1)(b) of the Payment of Gratuity Act, 1972 provides that the gratuity shall be payable if the termination of employment is after five years of continuous service and such termination would include resignation as well. 11. 10. The payment of gratuity to the employees is governed by the Payment of Gratuity Act, 1972. Section 4 (1)(b) of the Payment of Gratuity Act, 1972 provides that the gratuity shall be payable if the termination of employment is after five years of continuous service and such termination would include resignation as well. 11. In that view, the order of learned Tribunal dated 27.09.2018 passed in O.A. No.290/00455/2015 directing the petitioners to pay gratuity to the respondent/applicant with interest at the rate applicable to the GPF deposits prevailing at the relevant period of time, after deducting the period which has been held as ‘Dies Non’ for all purposes from his total length of service, does not suffer from any infirmity. The denial of retiral benefits is a continuous cause of action as the same affects an employee every month. As a consequence, the M.A. No.290/00231/2015 filed with the OA seeking condonation of delay was rightly accepted by the learned tribunal. Resultantly, the order dated 27.09.2018 passed by learned tribunal in Original Application No.290/00455/2015 with MA No.290/00231/2015 deserves to be upheld. 12. Hence, the writ petition is dismissed. The gratuity amount as directed by the learned Tribunal shall be paid to the respondent/applicant within eight weeks from the date of this order. 13. No order as to cost.