In the High Court of Punjab and Haryana at Chandigarh LPA No. 52 of 2007 Date of decision: March 10, 2009 Dr. Mohinder Dutt ... Appellant Vs. State of Punjab and others ... Respondents Coram: Hon'ble Mr. Justice Uma Nath Singh Hon'ble Mr. Justice A.N. Jindal Present: Mr. Puneet Jindal, Advocate for the appellant. Ms. Simsi Dhir, AAG, Punjab. A.N. Jindal, J This appeal is directed against the judgment dated 17.7.2006, passed by the learned Single Judge, declining the writ petition whereby he had raised the claim for pensionary benefits on relinquishment from service by resignation. The petitioner being a B.D.S. doctor joined the medical services on 6.9.1974 and worked up to 17.10.1988 and then he proceeded on earned leave up to 30.10.1988 on account of some illness. He again remained on half pay leave from 2.4.1989 till 31.5.1989. On 1.6.1989, he joined at Primary Health Centre, Ajnauda but worked for 20 days. However, he was relieved as he could not be posted except under the orders of Director Health Services because of the action taken against him on account of his willful absence from duty. Ultimately, he was directed to join at village Gherota, Tehsil Pathankot, District Gurdaspur. Now the petitioner has sought the direction to be issued to the respondents to pay him retrial benefits such as G.P.F., gratuity, arrears of salary along with interest @ 18% per annum on delayed payment by counting the period as LPA No. 52 of 2007 -2- *** his continuous service. Written statement had been filed, wherein, the respondents submitted that since the petitioner had resigned from service, therefore, it entails forfeiture of his past service, as such he is not entitled to any pensionary benefits. As regards G.P.F. Amount, the petitioner had been paid the same on 28.5.1993. As regards the arrears of salary from 17.10.1988 to 14.11.1990, he remained absent from duty, therefore, this period was treated as dies-non. Consequently, he is not entitled to any benefit of this period. Even otherwise, the leave applied for by him was rejected in the public interest. It was further averred that the qualifying service for awarding the pensionary benefits was 20 years under rules, but the petitioner has served the department for 17 years, therefore, he is not entitled to benefit of pension. The learned Single Judge while relying upon the judgment delivered by the Division Bench of this Court in the case of Gurnam Singh vs. State of Punjab, in CWP No.6616 of 2004, wherein it was observed that the employee who resigned from service is not entitled to pensionary benefits and he also declined him the arrears of salary w.e.f. 17.10.1988 up to 4.11.1990 due to his absence from duty. Arguments heard. Record perused. After entering into service, there are variety of gates for exit from the service to an employee which could be termed as “dismissal”, “removal”, “termination”, “retrenchment”, “retirement”, “superannuation”, “compulsory retirement”, “voluntary retirement” and “resignation”. Some of them are available to the employer and the others are to the employee. LPA No. 52 of 2007 -3- *** They all have different reasons for their invocation and application. In order to seek entitlement to the pensionary benefits, the petitioner has merely relied upon Rule 6.16 (2) which defines rate of pension for the employee who renders qualifying service of 10 years or more but less than 30 years. Rule 6.16 (2) of the Punjab Civil Services Rules, Vol.II reads as under :- “6.16 (2): In the case of a Govt. employee retiring on or after the 1st April 1979, in accordance with the provisions of these rules after completing qualifying service of not less then thirty years or more, the amount of superannuation, retiring invalid and compassionate pensions shall be 50% of average emoluments as defined in rule 6.19 C of these rules subject to a maximum of (Rs.3,000/- (substituted vide No.1/2/1 CSR Vol II/91 Sr. AO (FD) dated 31.1.1992) per menses. However, in the case of a Govt. employee who at the time of retirement has rendered qualifying service of ten years or more but less than thirty three years, the amount of pension shall be such proportion of the maximum admissible pension as such the qualifying service of thirty-three years, subject to minimum of Rs.375/-) (Substituted vide No.1/2/1/CSR Vol II/91-Sr. AO (FD) dated 31.1.1992) per menses....” A perusal of the aforesaid rule reveals that entitlement to pension under Rule 6.16 (2) extracted above is only to the employees, who had rendered qualifying service of 10 years, but the rules no where indicate about its application to the persons who had resigned from service. The LPA No. 52 of 2007 -4- *** Apex Court while distinguishing the consequences of voluntary retirement and resignation, in case Reserve Bank of India and another vs. Cecil Dennis Solomon and another, 2004 (1) SLR 431 observed as under :- “9. In service jurisprudence, the expression superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basis distinctions is that in case of resignation it can be tendered at any time: but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retrial benefits are denied but in case of former, normally retrial benefits are denied but in case of the later, same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the concerned employer is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary......” Though a different view was taken in case Mehar Singh vs. State of Punjab and others, 2003 (1) SCT 453, to the effect that the petitioner was entitled to pension and gratuity under Rule 6.16 of the Punjab Civil Services Rules, Volume II after putting more than 10 years of service LPA No. 52 of 2007 -5- *** and the voluntary retirement was at par with the resignation. But this view was disapproved in the latest Division Bench judgment of this Court delivered in C.W.P. No. 8592 of 2003 (Shashi Kanta vs. State of Haryana and others) decided on 16.8.2004. Again this Court in R.S.A. No. 1756 of 1997 (State of Punjab and others vs. Dr. Ram Kumar) decided on 3.4.2007, followed the view delivered in Shashi Kanta vs. State of Haryana and others (CWP No.8592 of 2003, decided on 16.8.2004) as well as Reserve Bank of India and another vs. Cecil Dennis Solomon and another, 2004 (1) SLR 431. As such, we are convinced that the employee who submits resignation and has not completed qualifying service of 20 years is not entitled to pensionary benefits. As regards the arrears of salary w.e.f. 17.10.1988 to 14.11.1990, the learned Single Judge has rightly observed that the petitioner had left the job on 17.10.1988 without getting any leave sanctioned. Though, he had submitted his joining report on 1.6.1989 at the Primary Health Center, Ajnauda, the same was also declined by the Civil Surgeon since he was unauthorisedly absenting himself and he could be permitted to join only after orders of the Director Health & Family Welfare, Punjab. After June, 1989, the petitioner had sent a legal notice only in March, 1990 after nine months. Ultimately, posting order was issued to him on 25.9.1990, but he joined after two months i.e. on 15.11.1990. However, within two weeks thereafter, he resigned from service, therefore, it appears that the petitioner had not discharged his duties during this period. As such, he being not serious about service was not entitled to any arrears of salary. The learned Single Judge further observed that the petitioner was actually LPA No. 52 of 2007 -6- *** served a charge sheet for remaining absent for this period and after his resignation the period was treated as “dies non”. Service book placed before us also proves these facts. Consequently, on scrutiny of the records as well as the impugned judgment, we confirm the view that the appellant-petitioner has no case for claiming salary for the aforesaid period. Resultantly, finding no merit in the appeal the same is dismissed. (Uma Nath Singh) (A.N. Jindal) Judge Judge March 10, 2009 deepak