R.S.A. No.671 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.671 of 2004 Date of Decision: 3.9.2008 Union of India and others .....Appellants Vs. Net Ram ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Sanjeev Kaushik, Advocate for the appellants. Mr.Sanjay Mittal, Advocate for the respondent. RAJIVE BHALLA, J This regular second appeal has been filed by the Union of India, challenging the legality of the judgement dated 11.10.2003 passed by the District Judge, Narnaul, accepting the appeal and reversing the judgement passed by the trial Court and decreeing the suit filed by the plaintiff-respondent. The plaintiff-respondent was enrolled in the Central Reserve Police Force (hereinafter referred to as `the C.R.P.F.') on 15.7.1966 and discharged on 16.3.1978 after completion of 11 years and 6 months of service. He filed a suit praying for a declaration that he was entitled to pension with effect from 16.3.1978, as he had completed more than 10 years service. The appellants-defendants opposed the suit by asserting that as the respondent voluntarily tendered his resignation with effect from 16.3.1978, he was not entitled to receive pension in view of Rule 43(d)(i) (ii) and (v) of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as R.S.A. No.671 of 2004 2 `C.R.P.F. Rules'). Upon an appraisal of the pleadings, the learned trial Court framed the following issues :- “1. Whether the plaintiff is entitled to the decree of declaration as prayed for ? OPP. 2. Whether the suit is barred by limitation ? OPD 3. Whether the plaintiff has got no cause of action to file the suit ? OPD 4. Whether the plaintiff is estopped from filing the suit by his own act and conduct ? OPD 5. Whether the plaintiff has no locus standi to file the suit ? OPD 6. Whether the defendants are entitled to recover special cost from the plaintiff ? OPD 7.Relief.” After considering the evidence adduced and the arguments addressed, the learned trial Court held that in view of Rule 43(d)(i)(ii) and (v) of the C.R.P.F. Rules, the plaintiff-respondent was not entitled to pension, as he had not completed 20 years of qualifying service. To a specific assertion by the plaintiff-respondent, that he was compulsorily retired and did not retire voluntarily, the trial Court returned a finding that the order of discharge Ex.D-1,D-2 and D-3 clearly recorded that the plaintiff-respondent had retired voluntarily. Aggrieved by the dismissal of the suit, the respondent filed an appeal. The District Judge, Narnaul, vide judgement and decree dated R.S.A. No.671 of 2004 3 11.10.2003, held that even if the plaintiff-respondent was discharged voluntarily, it would be deemed to be a discharge covered by Rule 49 (2)(b) of the Central Civil Services Pension Rules, 1972 (hereinafter referred to as `Pension Rules') and as he had completed 10 years service, he would be entitled to receive pension proportionate to the service rendered. Counsel for the appellants submits that the first appellate Court committed a fundamental error of law, as it failed to apply the correct statutory provisions to the case in hand. The respondent was discharged under Rule 17 of the C.R.P.F. Rules. Rules 43 (d)(i)(ii)(iv) and (v) of the C.R.P.F. Rules, when read alongwith Rule 17, clearly lays down that only such member of the force, as “has put in not less than 20 years” of qualifying service, would be entitled to pension upon voluntary retirement. The first appellate Court, therefore, committed an error, in holding that the respondent would be entitled to pension proportionate to the service rendered. It is further submitted that as the first appellate Court accepted the fact that the respondent had retired voluntarily, it had no jurisdiction, whether in law or in fact, to return a finding that Rule 43 of the C.R.P.F. Rules did not apply and instead Rule 49(2)(b) of the Pension Rules would apply. It is submitted that this serious error of law, raises a substantial question of law namely; “whether the first appellate Court committed an error of law, by holding that the respondent, who retired voluntarily, would be entitled to pension under Rule 49 (2)(b) of the Pension Rules”? Counsel for the appellants places reliance upon Union of India V. Rakesh Kumar, 2001(2) SCT 1085, Kedar Nath Sharma V. Union of India and others, 2005(3) RSJ 573 and Union of India and others V. Braj Nandan Singh, 2006(1) RSJ 769. R.S.A. No.671 of 2004 4 Counsel for the respondent vehemently contests the correctness of the arguments advanced by counsel for the appellants and submits that as the respondent did not retire voluntarily, Rule 43(d)(i)(ii) and (v) did not apply and, therefore, Rule 49 (2)(b) of the Pension Rules would apply. As the respondent had completed 10 years of service, he was entitled to a pension proportionate to the service rendered. It is further submitted that the appellants have failed to place any evidence before the appellate Court that would conclusively establish that the respondent filed an application for voluntary retirement. The orders Ex.D-1,D-2 and D-3 refer to the respondent's prayer for voluntary retirement but as the appellants withheld the original application for discharge, an adverse inference should have been drawn against the appellants that in case they had produced the letter allegedly written by the respondent, it would have established that the respondent did not seek voluntary retirement. It is further submitted that no such letter praying for voluntary retirement was ever addressed by the respondent and, therefore, the appellants resorted to a falsehood by stating that the old record had been weeded out, though they produced orders Ex.D-1,D-2 and D-3, which favour them. It is submitted that as the judgement and decree passed by the first appellate Court does not suffer from any error of law, the appeal should be dismissed. Counsel for the appellants has framed the following questions of law :- “(i). Whether the respondent, who retired voluntarily before completing the qualifying service of 20 years, is entitled to invoke the provisions of Rule 49(2)(b) of the R.S.A. No.671 of 2004 5 Pension Rules and, therefore, entitled to receive pension proportionate to the service rendered by him? (ii). Whether the first appellate Court committed an error in holding that Rule 49(2)(b) of the Pension Rules applies to the respondent and he would therefore, be entitled to receive pension proportionate to the service rendered by him? I have heard learned counsel for the parties and perused the impugned judgement. As noticed herein above, the respondent was discharged from service on 16.3.1978, without pension. His suit for a declaration claiming pension on the ground that he had completed 10 years service was dismissed by the trial Court by placing reliance upon Rule 43(d)(i)(ii) and (v) of the C.R.P.F. Rules. The appellate Court reversed the judgement and held that as the respondent had completed 10 years service, he was entitled to the benefit of Rule 49 (2)(b) of the Pension Rules and, therefore, entitled to pension proportionate to the service rendered by him. The respondent was voluntarily discharged under Rule 17 read with Rule 16 of the C.R.P.F. Rules. Rule 17 of the C.R.P.F. Rules reads as follows :- “Discharge :- Subject to the provisions of the Schedule appended to the Act, any member of the Force shall at any time before he has completed three months service or after the completion of the full period of service for which he is engaged be entitled to claim his discharge from the Force by applying to his appointing authority R.S.A. No.671 of 2004 6 through the proper channel.” As his discharge was voluntary, the respondent's case for pension was considered and rejected by the appellants under Rule 43(d)(i) (ii) and (v) of the Rules, which read as follows :- “43. Superannuation - XXX XXX (d)(i) any member of the Force who has put in not less than 20 years of qualifying service may, by giving notice of not less than three months in writing to the appointing authority, retire from service voluntarily and unless the exigencies of service require otherwise, he shall be permitted to retire. (ii) the benefit of retiring person shall be admissible to members of the Force retiring under clause (i); (iii) to (iv) XXX XXX XXX (v) before a member of the Force gives notice of voluntary retirement with reference to this sub-rule, he should satisfy himself by means of a reference to the appropriate administrative authority that he has, in fact completed 20 years of service qualifying for pension;” The trial Court held that in view of Rule 43, the respondent was not entitled to pension proportionate to the service rendered. The first appellate Court, however, held that despite Rule 43, the respondent would be entitled to the benefit of Rule 49(2)(b) of the Pension Rules and would, therefore, be entitled to receive pension proportionate to his service of 11 R.S.A. No.671 of 2004 7 years and 6 months. Rules 16, read with Rule 17 provides for voluntary discharge, whereas Rule 43(d) (i) (ii) and (v) of the C.R.P.F. Rules provide for voluntary retirement from service, though, in different situations. Rules 16 (d) empowers the appointing authority to permit a member of the force to resign from the force during the period of his initial appointment. The explanation appended to Rule to sub-rule (d) defines the expression “during the period of initial appointment” to mean the period before a member of the force is declared quasi-permanent. Rule 17 contemplates a discharge at any time before the completion of three months' service or after completion of the full period of service for which the member of the force is engaged. Rule 43 (d)(i) on the other hand, entitles a member of the force, who has put in not less than 20 years of qualifying service, to retire from service voluntarily by giving not less than three months' notice in writing. Clause (ii) of sub-rule (d) of Rule 43 confers the benefit of a “retiree” upon a member of the force retiring under clause (i) of sub-rule(d) of Rule 43. Rules 16 and 17 do not confer any right upon any member of the force, who resigns or is discharged under the said rules. The respondent was admittedly discharged under Rule 17 read with Rule 16. The right, therefore, to receive pension, upon voluntary retirement is conferred upon a person, who has completed 20 years of qualifying service. Rule 17 and Rule 43 (d) do not confer any right to receive pension upon a person, who retires voluntarily before completing the qualifying period of 20 years of service. The respondent was discharged, at his request under Rule 17 read with Rule 16 of the C.R.P.F. Rules and was, therefore, not entitled to pension in proportion to the service R.S.A. No.671 of 2004 8 rendered. The first appellate Court relied upon the provisions of Rule 49 (2)(b) of the Pension Rules to hold that the respondent was entitled to pension in proportion to the service rendered. Though, Rule 42 of the C.R.P.F. Rules states that the Pension Rules would be applicable to members of the force but in view of the absence of any provision in Rule 16 or Rule 17 of the C.R.P.F. Rules conferring a right to receive pension for service less than the qualifying service of 20 years, the respondent is not entitled to invoke the provisions of Rule 49(2)(b) of the Pension Rules. The only situation, in which a member of the force, retiring voluntarily, is entitled to receive pension, is if he has completed 20 years of qualifying service in accordance with the provisions of Rule 43(d)(i)(ii) and (v) of the C.R.P.F. Rules. If the principle enacted by Rule 49(2)(b) of the Pension Rules were to be extended to members of the force, any member of the force would be free to resign his commission at any time after completion of 10 years service and receive a comfortable pension, thus, setting at naught the very purpose of Rule 43(d)(i)(ii) and (v) i.e. to retain members of the force upto 20 years. The first appellate Court,therefore, committed an error by invoking the provisions of Rule 49(2)(b) of the Pension Rules and applying them to the case of the respondent. For the aforementioned conclusion, a reference may also be made to Rule 26 of the Pension Rules, which specifically provides that resignation from service or post entails forfeiture of past service unless resignation is submitted to take up, with proper permission, another appointment under the government. A reference would necessarily have to be made to a judgement of the Hon'ble Supreme Court reported as Union of India V. Rakesh Kumar, (supra), wherein while R.S.A. No.671 of 2004 9 considering a similar controversy, though in the context of Border Security Force Rules, 1969, it was held as under :- “15. On the basis of Rule 49, it has been contended that qualifying service for getting pension would be ten years. In our view, this submission is without any basis. Qualifying service is defined under Rule 3(q) to mean service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules. Rule 13 provides that qualifying service by a government servant commences from the date from which he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. This rule nowhere provides that qualifying service for getting pension is 10 years. On the contrary, there is specific provision that if a Government servant retires before completing qualifying service of 10 years because of his attaining the age of compulsory retirement,he would not get pension but would get the amount of service gratuity calculated at the rate of half months emoluments for every completed six monthly period of qualifying service. In this appeals, we are not required to consider other conditions prescribed for qualifying service as it is admitted that respondent-members of the BSF have completed more than 10 years of qualifying service. Further clause 2(a) of Rule 49 specifically R.S.A. No.671 of 2004 10 provides for grant of pension if a government servant retires after completing qualifying service of not less than 33 years. The amount of pension is to be calculated fifty per cent of average emoluments subject to maximum provided therein. Clause 2(b) upon which much reliance is placed indicates that in case of a government servant retiring in accordance with the provisions of the Rules before completing qualifying service of 33 years, but after completing qualifying service of ten years, the 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 Rs.375 per month. This would only mean that in case where government servant retires on superannuation i.e. the age of compulsory retirement as per service conditions or in accordance with the CSS (Pension) Rules, after completing 10 years of qualifying service, he would get pension which is to be calculated and quantified as provided under clause(2) of Rule 49. This clause would cover cases of retirement under Rules 35 and 36, that is, voluntary retirement after 20 years of qualifying service, compulsory retirement after prescribed age and such other cases as provided under the Rules. However, this has nothing to do with the quitting of service after tendering resignation. It is also to be stated that Rule 26 of CCS (Pension) Rules specifically provides that resignation from a service or R.S.A. No.671 of 2004 11 post entails forfeiture of past service unless resignation is submitted to take up, with proper permission, another appointment under the government where service qualifies. Hence, on the basis of Rule 49 member of BSF who has resigned from his post after completing more than 10 years of qualifying service but less than 20 years would not be eligible to get pensionary benefit. There is no other provision in the CSS (Pension) Rule giving such benefit to such government servants.” A Division Bench of this Court, while considering an identical controversy in Kedar Nath Sharma's case (supra) though, under the BSF Rules and after placing reliance upon the aforementioned judgement, declined to grant relief to the petitioner therein, who had claimed that as he had completed 11 years, 1 month and 17 days of service, he was entitled to proportionate pension. In view of clear and categoric provisions of Rules 16, 17 and 43(d)(i)(ii) and (v) of the C.R.P.F. Rules and the precedents referred to herein before, I have no hesitation in holding that the first appellate Court committed an error of law in holding that the respondent would be entitled to pension under Rule 49 (2)(b)of the Pension Rules. At this stage, it would be necessary to deal with an argument addressed by counsel for the respondent, to the effect that he did not retire voluntarily but was compulsorily retired. Counsel for the respondent submitted that the appellants intentionally withheld the alleged letter, praying for his voluntary discharge. The learned Courts below, should not have relied upon the orders Ex.D-1,D-2 and D-3, which are documents R.S.A. No.671 of 2004 12 created by the appellants. The above argument has been dealt with by the trial Court, as also by the appellate Court. Both the Courts below have returned emphatic and concurrent findings of fact that the respondent resigned voluntarily. The absence of the respondent's application was explained by the appellants, by asserting that the letter had been weeded out from the record. These concurrent findings of fact do not require any interference. As a result, the questions of law as framed by counsel for the appellant are answered by holding that as the respondent has resigned voluntarily from the force, he is not entitled to receive pension proportionate to the service rendered in view of the provisions of Rules 16,17 and 43(d)(i)(ii) and (v) of the C.R.P.F. Rules. The first appellate Court, therefore, committed an error in invoking the provisions of Rule 49 (2)(b) to grant pension to the respondent. Consequently, in view of what has been stated herein above, the appeal is allowed and the judgement and decree dated 11.10.2003 passed by the first appellate Court is set aside and the judgement and decree dated 7.9.2001 passed by the trial Court is restored. No order as to costs. 3.9.2008 (RAJIVE BHALLA) GS JUDGE