C.W.P.No.10157 of 1996 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : January 08, 2010 C.W.P.No.10157 of 1996 J.M.Singh ...Petitioner Versus Life Insurance Corporation of India and others ...Respondents Present : M/s Puneet Bali and D.S.Chanan, Advocates, for the petitioner. Mr. B.R.Mahajan, Advocate, for the respondents. C.W.P.No.12809 of 1996 A.K.Malik ...Petitioner Versus Life Insurance Corporation of India and others ...Respondents Present : Mr. Sundeep Singh, Advocate, for the petitioner. Mr. B.R.Mahajan, Advocate, for the respondents. C.W.P.No.2801 of 1997 D.N.Mittal ...Petitioner Versus Life Insurance Corporation of India and others ...Respondents Present : Mr. Anuj Raura, Advocate, for the petitioner. Mr. B.R.Mahajan, Advocate, for the respondents. CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE JORA SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? 1 C.W.P.No.10157 of 1996 HEMANT GUPTA, J. This order shall dispose of aforesaid three writ petitions. All these petitions raise common question of law and facts and, therefore, are taken up for hearing together. All the petitioners were employees of Life Insurance Corporation of India (for short 'the LIC'), a Corporation incorporated under Life Insurance Corporation Act, 1956, and have put in more than 20 years of service. All the petitioners were less than 55 years of age, when they put in their resignation in the year 1991-92 i.e. before the commencement of Life Insurance Corporation of India (Employees) Pension Rules, 1995 (for short 'the Pension Rules') notified on 28.6.1995. The service conditions of the employees of the LIC are governed by Life Insurance Corporation of India (Staff) Regulations, 1960 (for short ‘the Staff Regulations’). The claim of the writ petitioners is that they are entitled to pension in terms of Pension Rules as they have completed twenty years of service which entitles them of pension in terms of Staff Regulations read with Pension Rules. Learned counsels for the petitioners have argued that though the Pension Rules were notified on 28.6.1995, but in terms of Rule 3(1), such Rules are applicable to the petitioners as well, who were in the service of LIC on 1st day of January, 1986 and have retired before 1st day of November, 1993. Regulation 19(2-A) of the Staff Regulations as substituted on 16.2.1996 but with effect from 1.11.1993, the employees of LIC including petitioners can seek voluntary retirement on completion of twenty years of qualifying service. Such Rule also contemplates voluntary retirement after attainting 55 years of age. It is admitted that date on which, the petitioners submitted resignation, there was no provision to seek voluntary retirement and the payment of the consequential 2 C.W.P.No.10157 of 1996 benefits but in view of subsequent amendment, the employees of LIC are entitled to the benefits of the Pension including on seeking voluntary retirement. It was argued by the learned counsel for the petitioners that since the Staff Regulations provide for voluntary retirement on completion of 20 years of qualifying service or on attaining 55 years of age. Therefore, the petitioners could seek voluntary retirement in terms of the Staff Regulations. Thus the resignation submitted by the petitioners should be treated as request for voluntary retirement and the respondents be directed to release the pensionary benefits on the basis of such deemed request for voluntary retirement. Learned counsel for the petitioners have relied upon Dr. Prabha Atri Vs. State of U.P. and others (2003) 1 Supreme Court Cases 701 and Nand Keshwar Prasad Vs. Indian Farmers Fertilizers Cooperative Ltd. and others (1998) 5 Supreme Court Cases 461. Numerous other judgments have been referred to, which primarily relate to the question of estoppel. The issue of estoppel does not arise for consideration in the present writ petitions. Therefore, the said judgments are not being referred to. It was argued by the learned counsel for the petitioners that the resignations of the petitioners were not in terms of the Staff Regulations, therefore, the acceptance of the resignations in the year 1991-92, as the case may be, is in violation of the regulations. Consequently, the petitioners would be deemed to be in service of the Corporation and can be said to have voluntary retired after the commencement of the Regulation 19(2-A) of the Staff Regulations. For example in CWP No.10157 of 1996, it was submitted that the resignation of the petitioner is not in terms of the Staff Regulations as the resignation was submitted on 2.7.1990, but the petitioner was informed that the 3 C.W.P.No.10157 of 1996 resignation does not satisfy the requirement of notice period of three months’ period and that during the resignation period, an employee cannot proceed on ‘leave’. Thereafter, the petitioner has submitted letter (Annexure R-4) dated 17.9.1990 to the effect that he has performed duties till 2.3.1990 and the period of three months has already elapsed, therefore, his resignation should be accepted from 2.10.1990. But such letter notwithstanding, the argument is that the resignation of the petitioner could not have been accepted vide communication dated 26.10.1990 (Annexure P-4). It is also contended that the recovery of three months wages in lieu of notice period is not in terms of the Regulations and, thus, resignation is not in terms of the Regulations and could not have been accepted. On the other hand, learned counsel for the respondents has pointed out that the petitioners have severed the relationship of employer and employee with the submission of resignation prior to the publication of Rules on 28.6.1995. Such resignation amounts to forfeiture of past service as provided in Rule 23 of the Pension Rules. It is also argued that the Pension Rules are applicable to only those employees, who satisfy the twin conditions i.e. (i) such employee who was in service of the Corporation on or after 1st day of January, 1986; and (ii) that he has 'retired' before 1st day of November, 1993. It is contended that though the petitioners were in service of the Corporation on or after 1st day of January, 1986, but the petitioners do not satisfy the second condition as they have not retired before 1st day of November, 1993. It is contended that retirement as defined in clause 2(s) of the Pension Rules, means retirement in accordance with the provisions contained in sub-regulations (1), (2) and (3) of Regulation 19 of the Staff Regulations and Rule 14 of Life Insurance Corporation of India Class III and Class IV Employees (Revision of Terms and Conditions of Service) Rules, 1985 (for short '1985 Rules'). It is 4 C.W.P.No.10157 of 1996 contended that Regulation 19 of the Staff Regulations is not applicable in respect of the petitioners, as the petitioners have not completed 55 years of age on the date of submission of their respective resignations. The provision of allowing voluntary retirement on completion of 20 years of service came into existence after resignation of the petitioners. Since the petitioners have not retired in terms of Regulation 19 of the Staff Regulation, but have submitted resignations, severing the relationship of employer and employee between the parties, therefore, the petitioners are not entitled to Pension. Learned counsel for the respondents has relied upon Reserve Bank of India and another Vs. Cecil Dennis Solomon and another AIR 2004 SC 196, Jaipal Singh Vs. Smt. Sumitra Mahajan and another AIR 2004 SC 2066, Union of India and others Vs. Braj nandan Singh AIR 2005 Supreme Court 440, UCO Bank and others Vs. Sanwar Mal 2004 (4) SCC 412 and A.S.Khan Vs. Senior Divisional Manager, LIC of India and others 2009(3) SLR 273. The relevant extract of the Staff Regulations reads as under: 19. (1) An employee belonging to Class III or Class IV and a transferred employee belonging to Class I or Class II shall retire on completion of age 60; but the competent authority may, if it is of the opinion that it is in the interest of the Corporation to do so, direct such employee to retire on completion of 55 years of age or at any time thereafter, on giving him three months' notice or salary in lieu thereof. xxx xxx xxx (2) An employee belonging to Class I or Class II appointed to the service of the Corporation on or after 1st September, 1956, shall retire on completion of 58 years of age, but the competent authority may, if it is of the opinion that it is in the interest of the Corporation to do so, direct such employee to retire on completion of 50 years of age or at 5 C.W.P.No.10157 of 1996 any time thereafter on giving him three months notice or salary in lieu thereof. (2A) (a) Notwithstanding what is stated in sub-rules (1) and (2) above, an employee may be permitted to retire at any time on completion of the age 55 after giving three months’ notice in writing to the appointing authority of his intention to retire. (b) (i) Notwithstanding the provisions of clause (a), an employee governed by the Life Insurance Corporation of India (Employees) Pension Rules, 1995 may be permitted to retire at any time after he has completed twenty years of qualifying service, by giving notice of not less than ninety days, in writing, to the appointing authority. [Regulation 2A substituted w.e.f. 1.11.1993 vide notification dated 16.2.1996] (3) Nothing contained in the foregoing sub-regulations shall effect the right of the appointing authority to retire an employee without notice or pay in lieu thereof on his being certified by a medical examiner, to be nominated for the purpose by the appointing authority as being incapacitated for further continuous service either due to continued illness or accident. The relevant extract from Pension Rules as notified on 28.6.1995 reads as under: 1. Short title and commencement :- (1) These rules may be called for Life Insurance corporation of India (employees) Pension Rules, 1995. (2) Save as otherwise expressly provided in these rules, these rules shall be deemed to have come into force on the 1st day of November, 1993. 6 C.W.P.No.10157 of 1996 2(s) “retirement” means : (i) retirement in accordance with the provisions contained in sub-regulation (1) or sub-regulation (2) or sub-regulation (3) of Regulation 19 of the Life Insurance Corporation of India (Staff) Regulations, 1960 and Rule 14 of the Life Insurance Corporation of India Class III and Class IV Employees (Revision of Terms and Conditions of Service) Rules, 1985 made under the Act. CHAPTER-II APPLICATION AND ELIGIBILITY Application :- These rules shall apply to employee who :- (1) (a) were in the service of the Corporation on or after the 1st day of January, 1986 but had retired before the 1st day of November, 1993. xxx xxx xxx 23. Forfeiture of service:- Resignation or dismissal or removal or termination or compulsory retirement of an employee from the service of the Corporation shall entail forfeiture of his entire past service and consequent shall not qualify for pensionary benefits. xxx xxx xxx 31. Pension on voluntary retirement :- (1) At any time after an employee has completed twenty years of qualifying service he may be giving notice of not less than ninety days, in writing, to the appointing authority, retire from service. Provided……. We are unable to agree with the contentions raised by the learned counsels for petitioners. The petitioners cannot be said to have retired from the 7 C.W.P.No.10157 of 1996 services of the respondents in terms of the un-amended Regulation 19 of the Staff Regulations as applicable on the date of resignation submitted by the petitioners. The voluntary retirement can be sought only after attaining age of 55 years or on completion of 20 years in terms of the staff regulations. Neither of these two situations is satisfied by the petitioners on the date of submission of their resignations. It may be noticed at this stage that the petitioners have not sought to withdraw their resignations at any point of time nor have sought to wriggle out of the resignations in any other manner either in pleadings or even at the time of arguments before this court. The question whether the resignation can be treated as request for voluntary retirement is not res integra. The Hon’ble Supreme Court in UCO Bank’s case (supra) has held that the resignation and voluntary retirement are two different connotations. The resignation can be submitted at any point of time, but voluntary retirement can be sought only in terms of Service Rules applicable to an employee. In fact, there was no provision of voluntary retirement on completion of 20 years of service on the date, when the petitioners submitted their resignations. The provisions of voluntary retirement were introduced vide notification dated 16.2.1996 amending the Staff Regulations w.e.f. 1.11.1993. The petitioners have submitted their resignations much before 1.11.1993 and were relieved from services much before the said date. Therefore, it cannot be said that the petitioners are entitled to seek voluntary retirement on the basis of provisions introduced after the cessation of relationship between the parties. There was no Rule which provided for voluntary retirement on the date, when the petitioners submitted their resignations. There was no pension scheme in operation on the date of submission of the resignations. The petitioners might have submitted resignation on account of failing health. But 8 C.W.P.No.10157 of 1996 the Pension Rules are applicable to the employees, who were in service on 1st day of 1986 and that such employees should have retired before 1st November, 1993. Second condition is not satisfied by the petitioners as on submission of resignations, the relationship of an employer and employee between the parties came to an end. The retirement has been defined under Clause 2(s) of the Regulations. The petitioners do not satisfy any of the conditions of retirement stipulated therein. Therefore, the petitioners cannot be said have not retired between 1st January, 1986 to 1st November, 1993 in view the principles enunciated by the judgments referred to by the learned counsel for the respondents as the resignation and retirement are two different connotations. In V. Kasturi Vs. Managing Director, State Bank of India, Bombay and another AIR 1999 Supreme Court 81, it has been held that if a person retiring is eligible for pension at the time of his retirement and by subsequent amendment of the relevant pension scheme, he would become eligible to get enhanced pension. It was held that the persons, who have retired prior to eligibility conditions introduced in the pension scheme, are not entitled to pension in terms of the pension scheme introduced after their retirement. It was held to the following effect : “9. Now a mere look at the aforesaid relevant provisions of the Rules shows that even though the appellant was a member of the pension Fund, when he ceased to be a Bank employee after 31st July, 1984 on his resignation from the Bank service, he was not entitled to pension as none of the conditions of Rule 22(1) sub- rule (a) to (c) then existing applied in his case. Even though he had completed 20 years of pensionable service at that time he had not attained the age of 50 years. He was only 44 years of age. Hence Rule 22(1)(a) did not apply in his case. Rule 22(1)(b) also was out of picture for him as he had not retired because of any incapacity. He was in good health but for his own personal reasons he walked out of the Bank service at the age of 44 years. 9 C.W.P.No.10157 of 1996 Then remains only clause (c) of Rule 22(1) as then existing which laid down that if a member of the fund who retired from Bank service after 25 years of pensionable service could get entitlement for full pension to be charged on the said fund. Thus as Rule 22 (1) stood in those days when the appellant resigned from Bank service, he was not eligible to earn any pension at all. xxx xxx xxx The short question is whether the appellant could stake his claim for pension on the ground that he had completed 20 years of pensionable service by the time he ceased to be a Bank employee in 1984, when he had survived till the amended clause (c) Rule 22 (1) came into force.” As per Rule 22, subject matter of consideration in the aforesaid case, an employee should be member of the pension Fund on 22.9.1986 and he should have completed 20 years of pensionable service. It was found that since the employee has ceased to be member of the Fund in the year 1984 on submission of resignation, he was not in service of the Bank on 20.9.1986 and, therefore, the question of compliance of second condition that he should have completed 20 years of service pales into insignificance. The Hon’ble Supreme Court has culled down the legal positions in respect of employees falling in two categories. The first category is of the employee, who is eligible for pension at the time of retirement and by virtue of the amendment, he becomes entitled to enhanced amount of pension. The second category of employees, as in the present case, is in respect of an employee, who is not eligible for pension at the time of his retirement, but by subsequent amendment, beneficial umbrella of pension scheme is extended. It was held that such persons will remain outside the scheme. It has been held to the following effect : “22. However, if an employee at the time of his retirement is not eligible for earning pension and stands outside the class of pensioners, if subsequently by amendment of relevant pension Rules any beneficial umbrella of pension scheme is extended to 10 C.W.P.No.10157 of 1996 cover a new class of pensioners and when such a subsequent scheme comes into force the erstwhile non-pensioner might have survived, then only if such extension of pension scheme to erstwhile non-pensioners is expressly made retrospective by the authorities promulgating such scheme; the erstwhile non- pensioner who has retired prior to the advent of such extended pension scheme. If such new scheme is prospective only, old retirees non-pensioners cannot get the benefit of such a scheme even if they survive such new scheme. They will remain outside its sweep.” Dr. Prabha Atri’s case (supra), relied upon by the learned counsel for the petitioners, is a case of a conditional resignation and it was found that the communication under consideration was not a letter of resignation, but only conveying the intention of resignation. In Nand Keshwar Prasad’s case (supra), the resignation submitted was disputed on the ground that the same was submitted under coercion. The said plea was negated. In the judgments referred to by the learned counsel for the respondents, it has been categorically held that the resignation from the service leads to forfeiture of service for the purposes of pensionary benefits. The issue was examined by the Full Bench of this Court in RSA No.13 of 2009 decided on 18.9.2009 ‘State of Haryana and others Vs. Dr.(Mrs.) Sudha Seth’ as well, wherein resignation from service was found to forfeiture of the past services for the purposes of pension. In Shanker Pushkama Vs. Union of India 2009(3) SCT 257 (Rajasthan), the case of the petitioner is that he has submitted an application for resignation /voluntary retirement w.e.f. 17.11.1993 and that pension scheme was introduced with Bank w.e.f. 1.11.1993 by way of circular dated 10.6.1994. Though we have reservations about the view taken by the learned Single Judge of Rajasthan High Court that the resignation can be equated with voluntary retirement, but the fact remains that the request of the petitioner for pension was in view of his retirement after the commencement of the pension 11 C.W.P.No.10157 of 1996 scheme w.e.f. 1.11.1993. In the present case, on the date the petitioners submitted their resignations, there was no provision for payment of pensionary benefits as pension scheme was not applicable. On the said date, the resignation was the only option available with an employee, who wishes to terminate the relationship of employer and employee between the parties. In fact, Regulations in question have come up for consideration before the Karnataka High Court in A.S.Khan’s case, wherein identical argument has been raised as in the present case that the resignation could be treated as voluntary retirement. In that case also, earlier an employee has sought voluntary retirement, but he was informed that there is no provision for voluntary retirement and if the petitioner chooses or desires to resign, he can do so by sending a letter of resignation by giving three months’ notice. Thereafter, the employee submitted resignation. It was held to the following effect : “5. ….. Thus, I am of the view that the petitioner was not persuaded to give the said resignation letter and the said resignation letter is not given under any coercion, fraud or misrepresentation. Indeed, it is to be noticed that retirement, voluntary retirement and resignation operate in different fields and in different contexts. The decision of the Apex Court in the case of UCO Bank and Others Vs. Sanwar Mal, reported in (2004) 4 SCC 412 ; [2004(3) SLR 629 (SC)] and also in the case of Reserve Bank of India and Another Vs. Cecil Dennis Solomon and Another, reported in (2004) 9 SCC 461 : [2004(1) SLR 431 (SC)], can be referred to. Therefore, I am of the view that the letter sent by the petitioner expressing his desire to resign from the Corporation cannot be termed as a voluntary retirement letter or application. It is a letter resigning from the Corporation simplicitor without any strings attached.” 12 C.W.P.No.10157 of 1996 While considering the applicability of the Regulations, it was held to the following effect : “6. This takes us to the next question whether the amendment which was brought about to the Regulations 1960 of the Corporation. A perusal of sub-section 2(a) of Section 3 does not in any way indicate that the resignation is required to be treated on par with retirement. The said provision which was added subsequently, in no uncertain terms reads “an employee is permitted to retire at any time on completion of the age of 55 years after giving 3 months’ notice in writing to the appointing authority of his intention to retire.” The other option is that an employee is permitted to retire at any time after he has completed 20 years of qualifying service. The stress is laid on the word “retire”. No where does it read or anything more could be read into this provision to treat the word ‘retire’ on par with ‘resignation’. The whole gamut of this provision is that the pensionary benefits are extended only to those persons who have completed 55 years and choose to retire or who have completed 20 years of service who want to exercise the option of voluntary retirement. Hence, I am of the view that the fact that the petitioner has put in 20 and more years of service in the Corporation cannot take the benefit of the said amendment and claim that since he has put in 20 years and more of service he is entitled for pension.” There was no pension scheme on the date when the petitioners submitted their resignations. The new pension scheme was introduced thereafter, but before the introduction of the new scheme, the petitioners have severed their relationship of employer and employee. The petitioners are not claiming benefit of liberalised existing scheme. Therefore, the benefit of subsequently introduced pension scheme will not enure to the petitioners. The petitioners do not satisfy the requirement of voluntary retirement as well. Though in terms of the amended Regulations w.e.f. 13 C.W.P.No.10157 of 1996 1.11.1993, an employee of LIC became entitle to seek voluntary retirement on completion of 20 years of service, but the petitioners have put in their resignations before 1st November, 1993. Therefore, even though the petitioners have completed 20 years of service on the date of submission of their resignations, but the