CWP No.13160 of 2004.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.13160 of 2004 (O&M) Date of Decision: 11.07.2011 **** Jaswant Singh Kalsi . . . . Petitioner VS. State of Punjab & Anr. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 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? **** Present: Mr. Dinesh Kumar Gupta, Advocate for the petitioner Ms. Charu Tuli, Sr. DAG Punjab **** SURYA KANT J. (ORAL) (1). The petitioner seeks a writ of mandamus to direct the respondents to (a) accept his resignation from the post of SO Department of Public Health, Punjab; (b) pay his accrued GP fund amount; (c) encash the leave earned by him during the period of his service of 15 years w.e.f. 1960 to 1975; (d) refund the amount of Rs.10819.53 along with interest @ 18% p.a. deposited by the petitioner at the time of granting of no objection by the respondents; (e) payment of arrears of efficiency bar and increment awarded thereupon; (f) decide the appeal filed by him pending before the Chief Engineer PWD (Public Health CWP No.13160 of 2004.doc - 2 – Branch), Patiala; and (g) to pay admissible pensionary benefits along with interest @ 18% p.a. till realization. (2). Brief exordium of facts is that the petitioner was a Sectional Officer (JE) in the Department of Public Health, State of Punjab which he had joined in the year 1960. The petitioner in the year 1974 wanted to go and permanently settled in Canada and on an application moved by him, the Superintending Engineer PWD Public Health Circle, Jalandhar vide memo dated 04.12.1974 informed him that the said office had “no objection for your proceeding to Canada” and that the said office has also “no objection for your (petitioner) migrating to Canada and taking permanent employment there”. (3). The petitioner thereafter applied for leave and vide memo dated 13.03.1975 (issued on 02.04.1975) (Annexure P2), earned leave for a period of 240 days was sanctioned. The petitioner is said to have gone abroad (Canada) on 13.09.1975. He sent an application for extension of leave which was admittedly declined by the competent authority vide memo dated 23.07.1976 and a communication to this effect dated 29.07.1976 (Annexure R3) was sent and duly received by the petitioner at his Canada address whereby he was further advised to submit “arrival report” within one month immediately CWP No.13160 of 2004.doc - 3 – failing which the matter was to be informed to the higher authorities at his own risk. (4). The petitioner, on receipt of the above-stated memo dated 29.07.1976, sent a reply (Annexure R7) expressing his inability to return India or join his duties due to unavoidable family circumstances and requested that his resignation may be accepted w.e.f. 01.01.1977. It appears that after sending resignation, the petitioner continued to correspond with the Department (letter Annexure R7) for acceptance of his resignation and pursuant to that the XEN, 2nd Public Health Division, Jalandhar informed him on 03.02.1979 (Annexure R8) that the petitioner was required to deposit three months’ pay in lieu of the notice period for acceptance of the resignation. (5). Meanwhile, some departmental recoveries were detected against the petitioner and the Executive Engineer asked him vide memo dated 27.03.1979 (Annexure R9) to deposit a sum of Rs.3178.70 which the petitioner did not comply with. It may also be mentioned here that even before he went abroad, the XEN, 2nd Public Health Division had directed the petitioner to deposit a sum of Rs.10819.53 paise and Rs.200/-, respectively towards the recovery so that ‘no objection certificate’ could be granted. The details of these recoveries were duly explained by the CWP No.13160 of 2004.doc - 4 – Executive Engineer to the Superintending Engineer vide memo (Annexure R5). (6). These facts are duly acknowledged by the petitioner vide registered letter dated November 5, 1977 (Annexure P6) which reads as follows:- “ Please refer to my letter dated 27.9.76 and 18.7.77 wherein I requested to your goodself to accept my resignation, but it is again regretted to point out that no action has been taken so far. It is again requested that my resignation may be accepted and I may be informed accordingly. It is further added that the payments of my all dues such as earned leave, pay, GP Fund, other dues and the amount of Rs.10,819.53 deposited by me under pending decision of some audit objection be made to me at the earliest.” (7). It further appears that there was some correspondence inter se the departmental authorities for the payment of GPF funds to the petitioner but it was put under the carpet till the petitioner suddenly became alive of his legal dues and started representing and also got the authorities served with a legal notice in the year 1999. (8). The petitioner has thereafter filed this petition in the year 2004. CWP No.13160 of 2004.doc - 5 – (9). The respondents have filed their reply/affidavit broadly admitting the factual position referred to above and taking a plea that the petitioner had resigned from service way back in the year 1976-77 and is left with no cause of action after a lapse of 27 years. The reply/affidavit has been filed by an Executive Engineer only, explaining that the GPF amount cannot be released in favour of the petitioner “until resignation is accepted by the competent authority”. It is also claimed that the arrears of efficiency bar have been sent to the State Government vide memo dated 30.12.2000 and that nothing is payable to the petitioner as the recoveries have been adjusted. (10). Having heard learned counsel for the parties at some length and particularly on perusal of the reply/affidavit, I have no hesitation to hold that the above-mentioned reply has been filed to extend an implicit help to the petitioner and also to withhold the material information and correct facts from this Court, may be with or without the connivance of the petitioner. (11). The petitioner had gone abroad after getting sanctioned leave of 240 days. He requested for extension of leave which was declined and the order was duly communicated to the petitioner. As the petitioner had CWP No.13160 of 2004.doc - 6 – settled in Canada, he did not want to come back and resigned from service. The resignation was kept ‘pending’ on the pretext of non-deposit of three months’ pay in lieu of the notice period though in such like situation the amount of three months’ pay for the period could be deducted from the arrears of GPF. The condition of three months’ advance notice could also be dispensed with by the competent authority. However, if the competent authority had consciously decided not to accept the petitioner’s resignation, the next step, namely, disciplinary action for willful absence from duty which is one of a grave misconduct, ought to have been taken and since the absence from duty was running into years, the petitioner could even be dismissed from service. Who is responsible for the deliberate inaction so as to enable the petitioner to thrive on technicalities and claim monetary benefits without working and showing scant respect to the conduct Rules? (12). It is strange that the Superintending Engineer without any authority and in the absence of any such provision under the Rules ‘permitted’ the petitioner to go abroad ‘permanently’ and ‘seek employment’ in Canada as if such a ‘permission’ was sought by the Canadian employer(s). The senior functionaries of the Department, of course, CWP No.13160 of 2004.doc - 7 – have no time to apply their mind or dig out the nexus, no matter the consequential burden on the State exchequer. (13). The petitioner is, however, estopped by his own act and conduct and having rendered his resignation in the year 1976-77, he cannot turn around and seek the payment of retiral dues like pension on the plea that his resignation was not ‘accepted’. Rule 7.5 of the Punjab Civil Services Rules, Vol-I, Part-I relevant in the present context, reads as follows:- 7.5 (1) Resignation from a service or a post, unless it is allowed to be withdrawn in public interested by the appointing authority, entails forfeiture of past service. (2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies for pension. (3) Interruption in service in a case falling under sub- rule (2), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government employee on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him. (14). Wherever the foundation of the relief sought by a litigatnt is laid on collusion and connivance, it becomes the duty of a writ court to thwart such fraud and CWP No.13160 of 2004.doc - 8 – appropriately mould the relief in public interest. In the light of the facts of the case in hand which speak for themselves, it is directed that the petitioner’s resignation shall be deemed to have been accepted w.e.f. 01.01.1977 and the respondents shall be entitled to deduct the three months’ salary in lieu of the notice period from the petitioner’s arrears of GPF to which the petitioner is entitled to be paid. (15). Since the petitioner shall be treated to have resigned from service, it is obvious that he is not entitled to pension or other retiral dues as ruled by the Hon’ble Supreme Court in Union of India & Ors. v. Braj Nandan Singh, (2005) 8 SCC 325 and in the light of the statutory rule, reproduced above. (16). The petitioner, however, is entitled to the payment of GPF for the service period from 1960 to 1975 as it is his own money save as the recoveries which the respondents are lawfully entitled to make and/or adjust against the arrears of GPF. The said payment is directed to be made to the petitioner within a period of three months from the date of receipt of a certified copy of this order failing which the petitioner shall be entitled to interest @ 9% p.a. CWP No.13160 of 2004.doc - 9 – (17). Further, the Principal Secretary to Government of Punjab, Department of PWD (Public Health) is directed to hold an enquiry into the manner in which the petitioner’s case has been dealt with by the offices of Chief / Superintending / Executive Engineers and/or other officer(s)/official(s); to identify and fix the responsibility of the delinquents and take action against them for major penalties and send a compliance report to this Court within a period of one year. (18). With these observations and directions, the writ petition stands disposed of. Dasti. 11.07.2011 vishal shonkar (S u r y a K a n t) Judge