D.Padmini v. The Registrar General,High Court, Madras

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:-29.01.2008Coram:-The Hon'ble Mr. Justice S.J.MUKHOPADHAYAandThe Hon'ble Mr. Justice M.VENUGOPALWrit Petition No.44724 of 2002 D.Padmini... Petitionervs.The Registrar General,High Court, Madras. ... RespondentPetition under Article 226 of the Constitution of India for the issuanceof a writ of certiorari to call for the records in ROC No.5595 of 2002,ESTT II, dated 23.08.2002 on the file of the respondent and quash thesame. For petitioner: Mr.V.BhimanFor Respondent: Mr.B.RajendranO R D E R S.J.Mukhopadhaya, J.The above Writ Petition is preferred against theorder/official memorandum, dated 23.08.2002, in ROCNo.5595/2002/ESTT.II, issued by the Sub Assistant Registrar (ESTT.) in-charge, in and by which, the petitioner has been informed that she isnot eligible for pension as per the Tamil Nadu Pension Rules, 1978(hereinafter referred to as Pension Rules) and that, if she desires, shemay submit her application to the Government for relaxation of Rules andsanction of pension.2. It appears that the petitioner joined the Madras High CourtService on 24.07.1964 as Copyist and on 23.08.1966, she was appointed asTypist and thereafter, as Selection Grade Typist on 01.10.1978. She waspromoted as Assistant on 06.04.1981. https://hcservices.ecourts.gov.in/hcservices/ According to the petitioner, she got married and subsequentthereto, she had to go on short leave at different times due to her ill-health, family affairs and as her husband was working at Hyderabad. Sheopted for long leave on loss of pay and the Registry declined tosanction the leave and directed her to join duty forthwith. As she couldnot join duty because of family circumstances, she was informed that onfailure to join duty, she may be removed from service without furthernotice. On receipt of petitioner's explanation by way of letter dated05.12.1987, the Registry, vide Memorandum dated 14.01.1988, directed herto explain as to why disciplinary action should not be taken against herfor gross disobedience of the orders to joint duty, whereupon, she senta letter dated 06.02.1988, requesting to go on voluntary retirement. TheRegistry informed that she was not eligible for voluntary retirement asshe had not put in the required minimum service and that she may seekfor resignation; hence, she submitted her resignation with a request toaccept it and to pay arrears of salary, Provident Fund, Gratuity andother benefits. Since the Registry, by letter dated 16.05.1988,instructed her to tender a separate letter of resignation without anycondition, she had to submit an unconditional resignation letter on19.07.1988, which was accepted by the High Court vide letter dated02.08.1988. Subsequent thereto, when the petitioner asked for retiralbenefits such as pension, gratuity etc., the respondent issued theimpugned letter/official memorandum dated 23.08.2002, denying suchbenefits on the ground that she is not eligible for pension as perPension Rules and advised her to approach the State Government forrelaxation of Rules and sanction of pension. 3. According to the respondent, the petitioner is not eligiblefor pension as per Pension Rules, particularly in view of Rule-23, whichprescribes forfeiture of past service on resignation. Further, thepetitioner, having not completed 20 years of qualifying service, is notentitled for voluntary retirement, which can be permitted only to thosepersons who had completed 20 years of qualifying service or 50 years ofage. 4. We have heard the learned counsels appearing on behalf ofthe parties and noticed the rival contentions made in the light of therelevant Rules and factual aspects in support of the respective claims. 5. The only question that arises for consideration in thisWrit Petition is as to whether, in view of the resignation tendered bythe petitioner having been accepted by the respondent, she is eligibleand entitled for retiral benefits like pension, gratuity etc. under thePension Rules. 6. For determination of the issue, it has to be noticedwhether the petitioner voluntarily resigned from service ie., on her ownvolition, or on the advice/suggestion/instruction of the https://hcservices.ecourts.gov.in/hcservices/ respondent/employer. In that perspective, it is necessary to look at thenature of circumstances which compelled the petitioner to resign ie., inview of any Departmental Proceeding or due to her family circumstances.From the records, the following facts emerge:-The petitioner entered the High Court Service as Copyist on24.07.1964 and subsequently appointed as Typist on 23.08.1966. She wasappointed as Upper Division Grade Typist on 01.10.1978 and later she waspromoted as Assistant on 06.04.1981. During the period of her service of12 years ie., 23.08.1966 to 30.09.1978, she availed Earned Leave for 91days, U.M.L. (M.L.) for 6 months and 20 days and leave on half pay for 5months and 3 days. Subsequently also, she availed leave from time totime. She went on leave a number of times between 30.11.1982 and01.06.1986 and after joining duty on 02.06.1986, again she availedEarned Leave from 27.01.1987 to 13.02.1987. Again after joining duty,she availed leave for the period from 08.07.1987 to 03.08.1987.Thereafter, she sent a letter dated 04.08.1987 from Hyderabad to theeffect that she was suffering from typhoid and requested to grantMedical Leave for the period between 04.08.1987 and 17.09.1987. Sheforwarded a Medical Certificate along with the letter dated 15.09.1987. Taking note of the aforesaid aspects and by concluding thatthe petitioner was irregular in attending duty, the Registry, byOfficial Memorandum dated 27.11.1987, directed her, 'either to joint duty or to resign from theHigh Court Service.'(emphasis supplied)The petitioner was also informed that if she fails either to join dutyor send her resignation letter, she will be removed from High CourtService without any further notice. It appears that the petitioner,facing the threat of removal from service, by her letter dated02.02.1988, requested the Registry to allow her to retire voluntarilyand, in reply thereto, the Administrative Officer (Accounts), videOfficial Memorandum, dated 29.03.1988, informed her that she is noteligible for voluntary retirement not having put in the required minimumperiod of service. The reasons given by the petitioner not having been consideredfor grant of long leave on loss of pay coupled with the fact that shewas in a way advised by her employer to resign the job, she tendered herresignation by letter dated 25th April, 1988 . While doing so, thepetitioner, citing that she had put in 15 years of service and she hadto take the ultimate decision in the light of the reasons as referred toabove, made a request for settlement of her salary arrears, providentfund, gratuity and other retiral benefits. https://hcservices.ecourts.gov.in/hcservices/ The Registry did not choose to accept the resignation and theAdministrative Officer (Accounts), by Official Memorandum, dated16.05.1988, informed the petitioner thus:-" ... she should specifically tender aseparate letter of resignation, stating that sheunconditionally resigns from the High Court serviceand that she may be relieved from the High CourtService. "Even thereafter, no letter having been received in reply thereto, theAdministrative Officer (Accounts), by way of Official Memorandum dated05.07.1988, passed the following order:-" .... Tmt. R.Padmini, Assistant, High Court, Madras,is hereby directed to submit her letter of resignationas called for in the O.M. second cited immediately tothis office." Left with no other opinion, the petitioner had to submit her resignationfrom the post of Assistant with effect from the date of acceptance ofresignation vide letter dated 19.07.1988 and requested for settlement ofsalary arrears, G.P.F. Contribution, etc. The resignation letter of thepetitioner was accepted by the Administrative Officer (Accounts) byletter dated 02.08.1988 and she was relieved with effect from01.08.1988. Thereafter, she addressed the respondent for pension andother retiral benefits, for which, she was informed by OfficialMemorandum, dated 23.08.2002, issued by Sub Assistant Registrar (Estt.)in-charge, that she is not eligible for pension as per Pension Rules andthat she may move the State Government for relaxation of Rules andsanction of pension. 7. Learned counsel for the respondent, by referring to theoriginal file and pointing out that because of her prolonged absencefrom duty, charge sheet came to be issued and despatched on 21st April,1988, wherein, it was alleged that the petitioner had unauthorisedlyabsented herself from duty without prior sanction from 04.08.1987onwards and had also dishonoured her undertaking dated 02.06.1986 to theeffect that she will not take leave without prior sanction in future,and that she failed to join duty as directed by the High Court videMemorandum dated 27-11-1987 even after she was informed that herapplication for leave on loss of pay was rejected, citing precedents toshow that she was irregular in attending duty; would submit that theprolonged absence on the part of the petitioner being unusual in nature,her further request for grant of leave on loss of pay was rejected,which ultimately resulted in her resignation and that, in the light ofthe Pension Rules, in particular Rule-23, her claim for pensionary https://hcservices.ecourts.gov.in/hcservices/ benefits was rightly turned down. In support of his contention, learnedcounsel for the respondent relied on Rule-23 of the Pension Rules, whichentails forfeiture of past service in case of resignation from a serviceor post. 8. On the other hand, learned counsel for the petitioner,referring to Rule-5 of the said Rules, which prescribes for regulationof claims to pension or family pension when a Government Servant retiresor discharges or allowed to resign from service or dies, would submitthat the petitioner is entitled for payment of pensionary benefitsunder the said Rule.9. For better appreciation, it is desirable to quote below therelevant portions of Rules-5, 21 and 23 of the Pension Rules:-" 5. Regulation of claims to pension or familypension--(1) Any claim to pension or family pension shallbe regulated by the provisions of these rules in force atthe time when a Government servant retires or is retiredor is discharged or is allowed to resign from service ordies, as the case may be.(2)The day on which a Government servantretires or is retired or is discharged or is allowed toresign from service, as the case may be, shall be treatedas his last working day. The date of death shall also betreated as a working day."" 21. Forfeiture of service on dismissal orremoval.-- Dismissal or removal of a government servantfrom a service or post entails forfeiture of his pastservice."" 23. Forfeiture of service on resignation.--(1) Registration from a service of post entails forfeitureof past service:Provided that a resignation shall not entailforfeiture of past service if it has been submitted totake up with proper permission, another appointment,whether temporary or permanent, under the government whereservice qualifies.. . . . . "10. Even at the outset, the argument of the counsel for therespondent is liable to be rejected, for, a reading of Rule-23 inisolation would lead to conflict amongst the provisions contained in theRules. https://hcservices.ecourts.gov.in/hcservices/ If Rule-21 is read with Rule-5, it will be quite evident thatdismissal or removal of a government servant from service or postentails forfeiture of his/her past service; therefore, such employee isnot entitled for pension under Rule-5 and other Rules. The past service,for all purposes, having been forfeited, is accounted as 'zero' year ofservice and the calculation of pension/gratuity/leave encashment etc.would be 'nil'.So far as forfeiture of service on resignation is concerned,though a provision has been made under Rule-23, from a close andconjoint reading of Rule-5, it is evident that a person, who is allowedto resign from service, is entitled for pension. It is settled law that a statute must be read as a whole inits context and should be construed in such a manner so as to make iteffective, workable and viable. If the meaning is plain and obvious,effect must be given in that sense irrespective of the consequences. Thelanguage of the statute should be read as it is and normally, additionor substitution of words is not permitted. Only in case of ambiguity ordifficulty to interpret the statute, courts would look into theintention behind legislation of the statute and the object thereof,having regard to the rules of interpretation. 11. If the relevant Rules are read in the above context, it isapparent that not only a Government Servant, who retires or dies, isentitled to get pension, if otherwise eligible, but also an employee,who is allowed to resign from service, is entitled to such benefits byvirtue of Rule-5. Though a plain reading of Rule-23 would give themeaning that resignation from a service or post entails forfeiture ofpast service as stipulated in case of dismissal or removal from serviceunder Rule-21, the proviso to Rule-23 makes it clear that suchresignation shall not entail forfeiture of past service if it has beensubmitted to take up with proper permission, another appointment,whether temporary or permanent, under the Government where servicequalifies. In other words, if a person, without permission, resigns onhis own volition to join some other service, forfeiture of service isattracted under Rule-23 and similar will be the position where anemployee against whom departmental/judicial proceedings are set inmotion and he, in order to avoid such proceedings, resigns from servicewithout permission.On the other hand, an employee, who is, for any reason,allowed to resign from service, entitled for pensionary benefits byvirtue of Rule-5. For illustration, if an employee, due to ill-health orfamily problems, wants to leave the service and for that, in the absenceof any other rules to retire/voluntarily retire, submits resignationwhich has nothing to do with any other appointment or such resignationis not the result of any departmental proceeding having been launched https://hcservices.ecourts.gov.in/hcservices/ against him, in that case, the employee is entitled for pensionarybenefits under Rule-5. 12. In the present case, from the facts as detailed above, itis evident that the petitioner was irregular in attending duty; earlier,she not only availed leave for few months but in 1987, she applied forlong leave of two years on loss of pay on the ground that she gotmarried and her husband was posted at Hyderabad. The fact that she gavebirth to a spastic child was also one of the reasons for her frequentabsence from duty. By official memorandum dated 27.11.1987, she wasasked either to join duty or resign from the High Court Service. 13. From the letter of the petitioner dated 02.02.1988 andOfficial Memorandum of the High Court 29.03.1988, issued byAdministrative Officer (Accounts), it could be seen that the petitionersought for voluntary retirement, which was not accepted she not havingput in the required minimum service. Even thereafter, she did not chooseto resign the job unconditionally and, by her letter dated 25.04.1988,while tendering resignation, she put forth a condition for settlement ofarrears of salary, P.F., Gratuity etc. Interestingly, it is only theAdministrative Officer (Accounts), by letter dated 16.05.1988, asked herto submit an unconditional resignation letter and that she may berelieved from the High Court Services, pursuant to which, by OfficialMemorandum dated 05.07.1988, she was directed to submit resignation asevident from the relevant portion of the said letter, which we havequoted above, whereupon, she had to submit unconditional resignationletter on 19.07.1988, which was ultimately accepted by theAdministrative Officer (Accounts), relieving her with effect from01.08.1988 by Official Memorandum dated 02.08.1988.14. We have narrated the aforesaid facts in order to highlightthe circumstances which led to her resignation. At the risk ofrepetition, we add that, followed by her request for leave on loss ofpay for two years, which was not accepted and when she wasdirected/instructed by her employer to resign, she tendered resignationand it was accepted. Thus, the petitioner having been allowed to retirefrom service, it follows that her case is not covered by Rule-23 ofPension Rules but by Rule-5 thereof and thereby she is entitled forpension if she had completed the requisite period of service. 15. While dealing with this matter, we have come acrosscertain aspects which we desire to mention here so that therespondent/Registry will take note of the same and strictly adhere tothe tenets that are required to be followed. A. When procedure is prescribed in the Rules to proceedagainst an errant employee by initiating Departmental Proceedings,conducting enquiry and inflicting punishment on the charges having beenproved, it is not fair on the part of the employer/Registry to https://hcservices.ecourts.gov.in/hcservices/ implicitly advise/instruct its employee to resign the job when it findsthat such employee has indulged in acts of irregularity. If the Registrywas so serious on the conduct of the petitioner that she intentionallyremained absent to avoid attending duty, it should have departmentallyproceeded against the employee and ultimately decided the issue eitherway, based on the outcome of such proceedings. But, the way in whichthe matter has been handled in the case of the petitioner is rather adeviation from the established principles and procedure. B. Under Article 229 of the Constitution of India,appointments of officers and servants of a High Court shall be made bythe Chief Justice of the Court or such other Judge or officer of theCourt as he may direct subject to the Rule, if any, framed by the State.In exercise of the powers conferred by Articles 229(1) and (2) of theConstitution of India, the Madras High Court Service Rules have beenframed, which govern and regulate the method of recruitment, theconditions of service, the salaries and allowances, leave and pensionsof the Madras High Court service. It appears from the said Rules thatthe power for appointment of 'Assistants'/'Typists'/'Copyists', comingunder Division-II vests with the Registrar General, of course, with theproviso that the Registrar General and the Deputy Registrar shallexercise their powers of appointment subject to the control and approvalof the Chief Justice. In the matter of termination, removal etc. of anemployee, power is also vested with the officer in higher rank than theone who was authorised to make appointment. In the present case, thoughquestion in that regard has not been raised, we find, almost all theofficial memorandums were issued by the Administrative Officer(Accounts) including the one dated 02.08.1988, whereby, the petitioner'sresignation from services of the High Court was accepted and she wasrelieved. It is not clear to us as to how the Administrative Officer(Accounts) had passed such orders when he had not been shown as theappointing authority or empowered to do so under the Madras High CourtService Rules. However, as the same is not under challenge, we do notwant to deliberate on that issue except to highlight here so that theRegistry may take notice of the same and see that such aspect will notrecur in future. If any communication is issued on the orders of theHon'ble the Chief Justice or by the order of the Court or the RegistrarGeneral of the High Court or by the order of an authorised officer ofthe Court under the Rules, at least, the same should be reflected in theorder. C. For the purpose of pension, of course, the StateGovernment's Rule is applicable, but it is the Chief Justice of the HighCourt or any other Judge or authorised Officer has the power to sanctionpension if an employee of the High Court is eligible and entitled forsuch pensionary benefits. https://hcservices.ecourts.gov.in/hcservices/ Further, as the power to sanction pension etc., includingrelaxation of Rule, is vested with the appointing authority/sanctioningauthority ie., the Hon'ble the Chief Justice, the High Court should nothave abdicated its power by stating in the Official Memorandum dated18.04.2000 that the employee of the High Court/petitioner may fileapplication before Government for such relaxation as the StateGovernment is not the appointing authority of High Court employees. Infuture, the Registry should keep this aspect in mind before issuing anysuch letter/official memorandum as it would amount to abdicating thepowers of the Hon'ble the Chief Justice in favour of some otherauthority/State Government/Central Government. 16. In view of our foregoing discussion, we set aside theimpugned order, in R.O.C. No.5595/2002/Estt.11, dated 23.08.2002, of SubAssistant Registrar (Estt.) in-charge, and remit the case to theRegistry to take steps for grant of pension and other retiral benefitsfor which the petitioner is entitled to in accordance with Pension Rulesand the Madras High Court Service Rules. The past service of thepetitioner should not be treated to have been forfeited though it willbe open for the competent authority of the Registry to treat the periodof absence from 04.08.1987 onwards as leave without salary. The benefitto which the petitioner is entitled to shall be paid within a period oftwo months from the date of receipt/production of copy of this order,failing which, the petitioner is entitled for interest at the rate of 5%on such dues with effect from 03.12.2002 ie., from the date of filing ofthe Writ Petition. Let a copy of this order be communicated to the Registrar General,Madras High Court, to follow the rules and guidelines as adverted to byus and for compliance of our order. 17. Writ Petition is allowed with the aforesaid observationsand direction. There shall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarJI. https://hcservices.ecourts.gov.in/hcservices/ To1. The Registrar General, High Court, Madras.2. The Section Officer, Legal Cell, High Court, Madras.1 cc To Mr.V.Bhiman, Advocate, SR.3719.1 cc To Mr.B.Rajendran, Advocate, SR.4109.Petition No.44724 of 2002.RSN(CO)RVL 11.02.2008