Om Parkash Bakshi v. The Haryana State Electricity Board

Present: Mr. Dinesh Ghai, Advocate, for the petitioner. Mr. J.P. Sharma, Advocate, for the respondent. Alok Singh, J. A poor petitioner who has expired during the pendency of this writ petition, which is pending disposal since 1997, had invoked extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, challenging the C.W.P. No. 6871 of 1997 2 order dated 23.12.1996 (Annexure P/6) passed by the respondent, whereby pensionary benefits to the petitioner were denied. The brief facts of the present case are that the petitioner joined the services of the respondent on 1.03.1968 initially as typewriter mechanic, because of certain reasons, petitioner submitted his resignation on 02.05.1980; that resignation was accepted and petitioner was relieved on

02.06.1980; and before getting relieved pursuant to the resignation on 02.06.1980, petitioner had worked continuously for a period of 12 years and 3 months. The impugned order dated 23.12.1996 reads as under:- “Subject:- Request for allowing pensionary benefits. Ref: Your representation dated 8.10.96. Your request for allowing pensionary benefits under Rule 4.19 (b) of C.S.R. Vol.II has been considered and found not feasible of acceptance. This issues with the approval of the Addl. Secretary, H.S.E.B., Panchkula.” Although, specific reasoning is not mentioned in the impugned order, however, respondent in paragraph no.3 and 4 of written reply have contended as under:- “3. That the contents of para 3 as stated are wrong and denied. It is made clear that the petitioner has C.W.P. No. 6871 of 1997 3 suppressed material fact regarding submission of resignation letter on two earlier occasions before the final resignation letter as stated in para 3 in writ petition. The petitioner firstly submitted his resignation letter dated 3.10.78 and later on, the petitioner himself requested for the withdrawal of the said resignation on 13.10.78. The said request for withdrawal was considered and accepted. However, he was advised not to behave in such irresponsible manner in future vide Memo No. Ch-195/ENG-317 dated 27.10.78. The copies of the above said letters are attached herewith as Annexure R-3 to Annexure R-5 respectively for kind perusal of this Hon’ble Court. The petitioner submitted his resignation for second time w.e.f. 1.3.80 by giving one month’s notice on 1.2.80 and again he requested for withdrawal of said resignation on 25.2.80. He was allowed withdrawal of his resignation vide office letter No. 229/ENG-317 dated 5.3.80. The copies of the above said letters are also attached herewith as Annexure R-6 to Annexure R-8 respectively for ready reference. Thereafter the petitioner submitted his resignation from the service of the Board by giving one month’s notice vide his letter dated 3.5.80 and C.W.P. No. 6871 of 1997 4 not on 2.5.80 as alleged by the petitioner. The true translated copy of the said letter dated 3.6.80 is attached herewith as Annexure R-9. It is further made clear that there is no such letter dated 2.5.80 in the record of the answering respondent and further, it is also totally wrong that the petitioner was relieved on 2.5.1980. The resignation of the petitioner was accepted w.e.f. 2.7.80 A.N. vide office order No. 18/ENG-317 dated 5.1.81 and the petitioner was relieved on 2.7.80 A.N. on which date the petitioner had submitted his departure report. The copies of the said departure report and office order are attached herewith as Annexure R-10 and Annexure R-11 respectively. In these circumstances, it is clear that the petitioner has suppressed the material facts and tried to mislead this Hon’ble Court. It is well settled law that a litigant, who withholds vital information from the Court, is not entitled to the relief and the case deserves dismissal at the very outset.

4. That the contents of para 4 are admitted to the extent that that the petitioner had submitted the representation Annexure P-5 and subsequently on

8.10.96 with the answering respondent and the same was rejected vide order dated 23.12.96 Annexure P-

6. Rest of the para is wrong and denied. It is made clear that since the case of the petitioner was not C.W.P. No. 6871 of 1997 5 covered under rule 4.19(b) of the Civil Services Rules, Volume-II and on the other hand, the same was covered under Rule 4.19(a) of the C.S.R. Vol.II, therefore, the case of the petitioner was rightly rejected by the answering respondent. The said Rules 4.19(a) and 4.19(b) of the C.S.R., Vol. II are reproduced hereunder for ready reference of this Hon’ble Court:- “4.19 (a) Resignation from public service, dismissal or removal from it, either under proviso (c) to Article 311(2) of the Constitution for over anti-national activities such as sabotage, espionage etc. or for mis-conduct, insolvency, in-efficiency not due to age or failure to pass a prescribed examination entails forfeiture of past service and no pension shall be granted the aforementioned circumstances.

4.19(b) Resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts in full or in part, is not a resignation of public Service.”” From the contentions raised in paragraph no.3 and 4 of the written reply, now the sole question which requires consideration by this Court is, As to whether tendering a C.W.P. No. 6871 of 1997 6 resignation and withdrawal thereof before its acceptance would amount to misconduct depriving the petitioner from the pensionary benefits? In the opinion of this Court, if an employee tenders his resignation and before its acceptance resignation is withdrawn with the consent of the department and employee thereafter was allowed to work, it will not amount to any misconduct. Moreover, in the present case, neither any show cause notice is issued nor any disciplinary action is taken and all of sudden, after acceptance of his resignation and relieving him, department has stopped the pension saying earlier resignations and their withdrawal would amount to misconduct which cannot be sustained in the eyes of law. Petitioner had expired pending present petition how his family would have survived without any income and pension, is one of the factor compelling this Court to allow this petition with heavy exemplary costs. Present petition stands allowed. Impugned order is quashed. Respondent is directed to release the entire pensionary benefits to the LRs of the petitioner and to grant the family pension if permissible under the law after the death of the petitioner within 30 days from today along with interest thereon at the rate of 12% per annum. Exemplary costs of Rs. One lac is also imposed on the respondent. It is directed that half of the cost shall be payable to the petitioner and half of C.W.P. No. 6871 of 1997 7 the cost shall be deposited with High Court free Legal Aid Committee within 30 days from today. September 24, 2010 ( Alok Singh ) Judge