In the High Court of Punjab and Haryana at Chandigarh R.S.A. No. 1731 of 1999 (O&M) Date of decision: May 15, 2009 Madan Lal ... Appellant vs. State of Punjab and others ... Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mrs. Jai Shree Thakur, Advocate for the appellant. Mr. Surender Kapoor, Addl. A.G. Punjab. A.N. Jindal, J CM No. 4049-C of 2009 CM is allowed and the appeal is restored at its original number. R.S.A. No. 1731 of 1999 This is plaintiff's second appeal against the judgment dated 8.12.1998 passed by the learned Additional District Judge, Patiala, dismissing the appeal of the plaintiff-appellant (herein referred as 'the plaintiff') against the judgment dated 28.2.1998 passed by the Additional Civil Judge (Sr. Division), Patiala, dismissing his suit. The brief resume of facts is that the plaintiff was appointed as Lab Technician Grade-I in T.B. Centre, Patiala and he had joined there in the year 1958. Once he was transferred from Patiala to Gurdaspur and thereafter he again on his transfer had joined at Patiala in the month of May , 1970. Since Inderjit Lal Ahluwalia, Deputy Legal Remembrancer was inimical to him, therefore, he was again transferred at his instance from Rajindra Hospital, Patiala to T.B. Hospital Gurdaspur, vide order dated 6.6.1970/9.6.1970. In this regard he made representation to the Director Health Services on 29.6.1970 and 30.7.1970, but to no effect. Thereafter he proceeded on long leave i.e. From 4.9.1970 to 30.4.1971 by making representation on 30.9.1970 and he was allowed to proceed on leave. Then on 3.9.1971, when he went to join his duty, he was directed to submit his R.S.A. No. 1731 of 1999 (O&M) -2- *** joining report at T.B. Hospital, Gurdaspur, but, there he was asked to bring fresh posting orders as there was a gap of one year. Then despite the request made by him, Director Health Services also refused to give him posting orders till 1975. His representations in this regard made in the year 1976, 1977, 1978 and 1980 also remained unattended and un-responded, rather he was sounded that he would be deemed to have retired w.e.f. 31.10.1994. Since he was neither allowed to join duty nor he was given posting orders, therefore, it was not for his fault that he could not join service, as such he was entitled to get all the emoluments along with interest @ 18% per annum on retrial benefits. The suit was contested by the defendants-respondents (herein referred as 'the defendants'), while admitting that the plaintiff was appointed as Lab Technician Grade-I at T.B. Centre, Patiala and he joined as such in the year 1958 and that he was transferred outside Patiala and again transferred to Rajindra Hospital, Patiala, vide order dated 13.4.1970. He was again transferred to Gurdaspur vide order dated 6.6.1970 and that he had made a representation dated 3.7.1970 and applied for earned leave from 4.9.1970 to 30.4.1971. They denied that the plaintiff was relieved by the Medical Superintendent on 4.9.1970 and he applied for earned leave only after he was relieved. It was further submitted that actually the plaintiff proceeded on leave without getting the same sanctioned from the competent authority, consequently, the said earned leave was rejected vide order dated 20.4.1971 and was directed to report at T.B. Clinic, Gurdaspur. He was further sounded that failing to join the duty, a disciplinary action would be taken against him. However, he did not join his duty. Since his absence from duty exceeded six months, therefore, he was treated to have resigned from his appointment under Rule 8.137 C.S.R. Volume-I, Part-I (herein referred as 'the Rules'). The letter dated 29.6.1972 was issued to that effect. No such representation as averred by the plaintiff has been made by him, therefore, no question of his retiring w.e.f.. 31.10.1994 arises. As such, plaintiff had no cause of action to file the suit. He has been absent from duty since 4.9.1970 and he is deemed to have resigned from service as he did not join duty after obtaining orders from the appropriate authorities, he was not entitled to any relief. R.S.A. No. 1731 of 1999 (O&M) -3- *** Replication was filed. From the pleadings of the parties, the trial court framed the following issues :- 1. Whether the plaintiff is entitled to the declaration as prayed for?OPP 2. Whether the suit is time barred?OPD 3. Whether the suit is bad for & due to the principle of laches?OPD 4. Whether the period of absence from duty of the plaintiff exceeded six months due to which it seemed that he had resigned? If so, its effect?OPD 5. Relief. The parties led evidence and ultimately the suit was dismissed and the appeal also failed. The substantial question of law arises for determination is “whether the person who has abandoned the service for 24 years without any information to the department was entitled to any service benefits of that period as well as pensionary benefits?” Having heard the parties and scrutinizing the records, it transpires that the parties are not at variance with regard to material facts i.e. date of joining the service; date he was transferred from Patiala to Gurdaspur and the fact that instead of joining new place of posting i.e. Gurdaspur sent leave w.e.f. 4.9.1970 till 30.4.1971. The evidence indicates that the department had cancelled his leave application and had directed him to join duty. In is further established that he was supposed to join his duty at the place of his transfer i.e. Gurdaspur but did not do so, rather, he went absent from duty. No evidence has been led that he ever joined at the new place of his posting, later on made representation intending to join his said place of posting. Thus, his abandonment of service for such a long time certainly amount resignation or voluntary retirement, consequently, could not claim any right over the post. Having failed to file the suit for 24 years till he retired in the year 1994 also dis-entitled him the relief of salary and also of pension. Such benefits could only flow if he would have been kept R.S.A. No. 1731 of 1999 (O&M) -4- *** out of service for no fault of him. Pension is earned by putting in certain length of service as per rule 6.16 of the Rules. The amount of pension is to be determined by the length of service. The effective service means and includes the duty performed. Since the plaintiff remained on duty since 1958 to 1970 and did not complete the eligibility period of service which may allow him to seek pensionary benefits, therefore, he cannot claim pension for that period. The plaintiff has referred to Rule 6.16 of the Punjab Civil Services Rules, Volume II, wherein, it is mentioned that pension and gratuity is permissible after 10 years of service, but the said rule intends for providing pension to those employees who resigns with the permission of the employer while reserving their right of pension. But in the instant case, the petitioner had absented himself and did not join the duty even after his leave application was rejected. No doubt while discussing the status of an employee who had resigned and had not qualified the minimum period of service entitling him for pension the Supreme Court in Mehar Singh vs. State of Punjab and others, 2003 (1) SCT 453, observed that resignation has the same effect as that of retirement. However, Division Bench of this Court in C.W.P. No. 8592 of 2003 (Shashi Kanta vs. State of Haryana and others) decided on 16.8.2004, took a different view while observing as under :- “We are unable to accept this contention. There is express exclusion of an employee who resigns or is removed or dismissed from service. From payment of gratuity. In Reserve Bank of India and another vs. Cecil Dennis Solomon and another, JT 2003 (10) SC 156 it was observed : “9. In service jurisprudence, the expression superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary act on the part of the employee to leave service. Though both involve voluntary acts, they operate differently.” R.S.A. No. 1731 of 1999 (O&M) -5- *** The judgment in Mehar Singh's case (supra) is, thus, not applicable. It may also be made clear that Rule 6.16 of the Punjab Civil Services Rules, Volume II, does not deal with the eligibility for voluntary retirement but only with pension and Sub Rule 3 provides for payment of proportionate pension to an employee, who at the time of retirement, has rendered qualifying service of 10 years or more. The said rule merely lays down the scale of pension and is applicable to a situation where an employee has retired. It does not provide for eligibility for voluntary retirement. Since the appellant neither sought voluntary retirement reserving his rights to pension, therefore, he is not entitled to any pension on account of rule 6.16 of the Punjab Civil Services Rules. Resultantly, finding no merit in the appeal, the same is dismissed. May 15, 2009 (A.N. Jindal) deepak Judge