REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10251 OF 2014
ASGER IBRAHIM AMIN .. APPELLANT
VERSUS
LIFE INSURANCE CORPORATION OF INDIA .. RESPONDENT
J U D G M E N T
VIKRAMAJIT SEN, J.
1 The question which falls for consideration is whether the
Appellant is entitled to claim pension even though he resigned from service
of his own volition and, if so, whether his claim on this count had become
barred by limitation or laches.
Appellant is entitled to claim pension even though he resigned from service
of his own volition and, if so, whether his claim on this count had become
barred by limitation or laches.
2 The Appellant joined the services of the Respondent Corporation on
30.6.1967 on the post of Assistant Administrative Officer (Chartered
Accountant) at the age of twenty seven. He worked for 23 years and 7
months in the Corporation before tendering his resignation on 28.1.1991,
owing to “family circumstances and indifferent health”, presumably having
crossed fifty years in age. The request of the Appellant for waiver of the
stipulated three months notice was favourably considered by the Corporation
vide letter dated 28.2.1991, and the Appellant was allowed to resign from
the post of Deputy General Manager (Accounts), which he was holding at that
time. We shall again presume that the reasons that he had ascribed for his
retirement, viz. family problems and failing health, were found to be
legitimate by the Respondent, otherwise the waiver ought not to have been
given. Thereafter, the Central Government in exercise of power conferred
under Section 48 of the Life Insurance Corporation Act, 1956 had notified
the LIC of India (Staff) Regulations, 1960 and thereafter the Life
Insurance Corporation of India (Employees) Pension Rules, 1995 (hereinafter
referred to as “Pension Rules”) which, though notified on 28.6.1995, were
given retrospective effect from 1.11.1993. The Pension Rules provide,
inter alia, that resignation from service would lead to forfeiture of the
benefits of the entire service including eligibility for pension.
30.6.1967 on the post of Assistant Administrative Officer (Chartered
Accountant) at the age of twenty seven. He worked for 23 years and 7
months in the Corporation before tendering his resignation on 28.1.1991,
owing to “family circumstances and indifferent health”, presumably having
crossed fifty years in age. The request of the Appellant for waiver of the
stipulated three months notice was favourably considered by the Corporation
vide letter dated 28.2.1991, and the Appellant was allowed to resign from
the post of Deputy General Manager (Accounts), which he was holding at that
time. We shall again presume that the reasons that he had ascribed for his
retirement, viz. family problems and failing health, were found to be
legitimate by the Respondent, otherwise the waiver ought not to have been
given. Thereafter, the Central Government in exercise of power conferred
under Section 48 of the Life Insurance Corporation Act, 1956 had notified
the LIC of India (Staff) Regulations, 1960 and thereafter the Life
Insurance Corporation of India (Employees) Pension Rules, 1995 (hereinafter
referred to as “Pension Rules”) which, though notified on 28.6.1995, were
given retrospective effect from 1.11.1993. The Pension Rules provide,
inter alia, that resignation from service would lead to forfeiture of the
benefits of the entire service including eligibility for pension.
3 On 8.8.1995, that is post the promulgation by the Respondent of the
Pension Rules, the Appellant enquired from the Respondent whether he was
entitled to pension under the Pension Rules, which has been understood by
the Respondent as a representation for pension; the Respondent replied that
the request of the Appellant cannot be acceded to. The Appellant took the
matter no further but has averred that in 2000, prompted by news in a Daily
and Judgments of a High Court and a Tribunal, he requested the Respondent
to reconsider his case for pension. This request has remained unanswered.
It was in 2011 that he sent a legal notice to the Respondent, in response
to which the Respondent reiterated its stand that the Appellant, having
resigned from service, was not eligible to claim pension under the Pension
Rules. Eventually, the Appellant filed a Special Civil Application on
29.3.2012 before the High Court, which was dismissed by the Single Judge
vide Judgment dated 5.10.2012. The LPA of the Appellant also got
dismissed on the grounds of the delay of almost 14 years, as also on merits
vide Judgment dated 1.3.2013, against which the Appellant has approached
this Court.
Pension Rules, the Appellant enquired from the Respondent whether he was
entitled to pension under the Pension Rules, which has been understood by
the Respondent as a representation for pension; the Respondent replied that
the request of the Appellant cannot be acceded to. The Appellant took the
matter no further but has averred that in 2000, prompted by news in a Daily
and Judgments of a High Court and a Tribunal, he requested the Respondent
to reconsider his case for pension. This request has remained unanswered.
It was in 2011 that he sent a legal notice to the Respondent, in response
to which the Respondent reiterated its stand that the Appellant, having
resigned from service, was not eligible to claim pension under the Pension
Rules. Eventually, the Appellant filed a Special Civil Application on
29.3.2012 before the High Court, which was dismissed by the Single Judge
vide Judgment dated 5.10.2012. The LPA of the Appellant also got
dismissed on the grounds of the delay of almost 14 years, as also on merits
vide Judgment dated 1.3.2013, against which the Appellant has approached
this Court.
4 As regards the issue of delay in matters pertaining to claims of
pension, it has already been opined by this Court in Union of India v.
Tarsem Singh, (2008) 8 SCC 648 that in cases of continuing or successive
wrongs, delay and laches or limitation will not thwart the claim so long as
the claim, if allowed, does not have any adverse repercussions on the
settled third-party rights. This Court held:
pension, it has already been opined by this Court in Union of India v.
Tarsem Singh, (2008) 8 SCC 648 that in cases of continuing or successive
wrongs, delay and laches or limitation will not thwart the claim so long as
the claim, if allowed, does not have any adverse repercussions on the
settled third-party rights. This Court held:
7. To summarise, normally, a belated service related claim will be rejected
on the ground of delay and laches (where remedy is sought by filing a writ
petition) or limitation (where remedy is sought by an application to the
Administrative Tribunal). One of the exceptions to the said rule is cases
relating to a continuing wrong. Where a service related claim is based on a
continuing wrong, relief can be granted even if there is a long delay in
seeking remedy, with reference to the date on which the continuing wrong
commenced, if such continuing wrong creates a continuing source of injury.
But there is an exception to the exception. If the grievance is in respect
of any order or administrative decision which related to or affected
several others also, and if the reopening of the issue would affect the
settled rights of third parties, then the claim will not be entertained.
For example, if the issue relates to payment or refixation of pay or
pension, relief may be granted in spite of delay as it does not affect the
rights of third parties. But if the claim involved issues relating to
seniority or promotion, etc., affecting others, delay would render the
claim stale and doctrine of laches/limitation will be applied. Insofar as
the consequential relief of recovery of arrears for a past period is
concerned, the principles relating to recurring/successive wrongs will
apply. As a consequence, the High Courts will restrict the consequential
relief relating to arrears normally to a period of three years prior to the
date of filing of the writ petition.
on the ground of delay and laches (where remedy is sought by filing a writ
petition) or limitation (where remedy is sought by an application to the
Administrative Tribunal). One of the exceptions to the said rule is cases
relating to a continuing wrong. Where a service related claim is based on a
continuing wrong, relief can be granted even if there is a long delay in
seeking remedy, with reference to the date on which the continuing wrong
commenced, if such continuing wrong creates a continuing source of injury.
But there is an exception to the exception. If the grievance is in respect
of any order or administrative decision which related to or affected
several others also, and if the reopening of the issue would affect the
settled rights of third parties, then the claim will not be entertained.
For example, if the issue relates to payment or refixation of pay or
pension, relief may be granted in spite of delay as it does not affect the
rights of third parties. But if the claim involved issues relating to
seniority or promotion, etc., affecting others, delay would render the
claim stale and doctrine of laches/limitation will be applied. Insofar as
the consequential relief of recovery of arrears for a past period is
concerned, the principles relating to recurring/successive wrongs will
apply. As a consequence, the High Courts will restrict the consequential
relief relating to arrears normally to a period of three years prior to the
date of filing of the writ petition.
(emphasis is ours)
We respectfully concur with these observations which if extrapolated or
applied to the factual matrix of the present case would have the effect of
restricting the claim for pension, if otherwise sustainable in law, to
three years previous to when it was raised in a judicial forum. Such
claims recur month to month and would not stand extinguished on the
application of the laws of prescription, merely because the legal remedy
pertaining to the time barred part of it has become unavailable. This is
too well entrenched in our jurisprudence, foreclosing any fresh
consideration.
applied to the factual matrix of the present case would have the effect of
restricting the claim for pension, if otherwise sustainable in law, to
three years previous to when it was raised in a judicial forum. Such
claims recur month to month and would not stand extinguished on the
application of the laws of prescription, merely because the legal remedy
pertaining to the time barred part of it has become unavailable. This is
too well entrenched in our jurisprudence, foreclosing any fresh
consideration.
5 The second issue which confronts us is whether the termination of
service of the Appellant remains unalterably in the nature of resignation,
with the consequence of disentitling him from availing of or
migrating/mutating the pension scheme or whether it instead be viewed as a
voluntary retirement or whether it requires to be regarded so in order to
bestow this benefit on the Appellant; who had ‘resigned’ after reaching the
age of fifty and after serving the LIC for over twenty three years. The
Appellant resigned from service under Regulation 18 of LIC of India (Staff)
Regulations, 1960, which along with the other provisions of relevance is
reproduced for facility of reference -
service of the Appellant remains unalterably in the nature of resignation,
with the consequence of disentitling him from availing of or
migrating/mutating the pension scheme or whether it instead be viewed as a
voluntary retirement or whether it requires to be regarded so in order to
bestow this benefit on the Appellant; who had ‘resigned’ after reaching the
age of fifty and after serving the LIC for over twenty three years. The
Appellant resigned from service under Regulation 18 of LIC of India (Staff)
Regulations, 1960, which along with the other provisions of relevance is
reproduced for facility of reference -
SECTION 3 –
TERMINATION
Determination of Service:
18. (1) An employee, other than an employee on probation or an employee
appointed on a temporary basis, shall not leave or discontinue his service
in the Corporation without first giving notice in writing to the competent
authority of his intention to leave or discontinue the service. The period
of notice required shall be-
appointed on a temporary basis, shall not leave or discontinue his service
in the Corporation without first giving notice in writing to the competent
authority of his intention to leave or discontinue the service. The period
of notice required shall be-
(a) three months in the case of an employee belonging to Class I;
(b) one month in the case of other employees.
Provided that such notice may be waived in part or in full by the competent
authority at its discretion. In case of breach by an employee of the
provisions of the sub-regulation, he shall be liable to pay the Corporation
as compensation a sum equal to his salary for the period of notice required
of him, which sum may be deducted from any moneys due to him.
authority at its discretion. In case of breach by an employee of the
provisions of the sub-regulation, he shall be liable to pay the Corporation
as compensation a sum equal to his salary for the period of notice required
of him, which sum may be deducted from any moneys due to him.
Superannuation and Retirement:
19(1) xx
(2) An employee belonging to Class I or Class II appointed to the
service of the Corporation on or after 1st September,1956, shall retire on
completion of 60 years of age, but the competent authority may, if it is of
the opinion that it is in the interest of the Corporation to do so, direct
such employee to retire on completion of 50 years of age or at any time
thereafter on giving him three months’ notice or salary in lieu thereof.
The following Regulations, on which learned Senior Counsel for the LIC has
placed reliance, came to be introduced on 16.2.1996, that is after the
Appellant had ‘resigned’ from service. We have called for and perused this
Notification, and as we expected, these provisions apply retrospectively
with effect from 1.11.1993. These Regulations ordain, inter alia, that an
employee may be permitted to retire (a) on completion of the age of 55 and
(b) after completing 25 years in service. In other words, the Corporation
has the power to compulsory retire an employee who has attained the age of
50 years if in its opinion such decision is in the interests of the
Corporation; and the employee may seek permission to retire upon completion
of 55 years of age and after rendering 25 years of service. This very
position finds reiteration in Rule 31 of the Pension Rules under the
epithet ‘voluntary retirement’, which pandect appears to have been
available from the inception i.e. 1.11.1993.
placed reliance, came to be introduced on 16.2.1996, that is after the
Appellant had ‘resigned’ from service. We have called for and perused this
Notification, and as we expected, these provisions apply retrospectively
with effect from 1.11.1993. These Regulations ordain, inter alia, that an
employee may be permitted to retire (a) on completion of the age of 55 and
(b) after completing 25 years in service. In other words, the Corporation
has the power to compulsory retire an employee who has attained the age of
50 years if in its opinion such decision is in the interests of the
Corporation; and the employee may seek permission to retire upon completion
of 55 years of age and after rendering 25 years of service. This very
position finds reiteration in Rule 31 of the Pension Rules under the
epithet ‘voluntary retirement’, which pandect appears to have been
available from the inception i.e. 1.11.1993.
(2A) (a) Notwithstanding what is stated in sub-rules (1) and (2) above,
an employee may be permitted to retire at any time on completion of the age
55 after giving three months notice in writing to the appointing authority
of his intention to retire.
an employee may be permitted to retire at any time on completion of the age
55 after giving three months notice in writing to the appointing authority
of his intention to retire.
(b) (i) Notwithstanding the provisions of Clause (a), an employee governed
by the Life Insurance Corporation of India (Employees) Pension Rules 1995
may be permitted to retire at any time after he has completed twenty years
of qualifying service, by giving notice of not less than ninety days in
writing to the appointing authority.
by the Life Insurance Corporation of India (Employees) Pension Rules 1995
may be permitted to retire at any time after he has completed twenty years
of qualifying service, by giving notice of not less than ninety days in
writing to the appointing authority.
Provided that this sub-clause shall not apply to an employee who is on
deputation unless after having been transferred or having returned to
India, he has resumed charge on the post in India and has served for a
period of not less than one year.
deputation unless after having been transferred or having returned to
India, he has resumed charge on the post in India and has served for a
period of not less than one year.
Provided further that this sub-clause shall not apply to an employee
who seeks retirement from service for being absorbed permanently in an
autonomous body or a public sector undertaking to which he is on deputation
at the time of seeking voluntary retirement.
who seeks retirement from service for being absorbed permanently in an
autonomous body or a public sector undertaking to which he is on deputation
at the time of seeking voluntary retirement.
(ii) The notice of voluntary retirement given under sub-clause (i) of
clause (b) shall require acceptance by the appointing authority.
clause (b) shall require acceptance by the appointing authority.
Provided that where the appointing authority does not refuse to
grant the permission for retirement before the expiry of the period
specified in the said notice, the retirement shall become effective from
the date of expiry of the said period.”
grant the permission for retirement before the expiry of the period
specified in the said notice, the retirement shall become effective from
the date of expiry of the said period.”
6 As we have already recounted, the Appellant received a waiver of the
requirement of giving three months prior notice of his resolve to
“discontinue his service in the Corporation”, bestowing legitimacy to the
reasons that compelled him to do so. It also brings to the fore that the
1960 Staff Regulations did not provide for voluntary retirement or VRS as
has become commonplace today. This Court has clarified and highlighted
that ‘resignation’ and ‘retirement’ have disparate connotations; that an
employee can ‘resign’ at any time but, in contradistinction, can ‘retire’
only on completion of the prescribed period of qualifying service and in
consonance with extant Rules and Regulations.
requirement of giving three months prior notice of his resolve to
“discontinue his service in the Corporation”, bestowing legitimacy to the
reasons that compelled him to do so. It also brings to the fore that the
1960 Staff Regulations did not provide for voluntary retirement or VRS as
has become commonplace today. This Court has clarified and highlighted
that ‘resignation’ and ‘retirement’ have disparate connotations; that an
employee can ‘resign’ at any time but, in contradistinction, can ‘retire’
only on completion of the prescribed period of qualifying service and in
consonance with extant Rules and Regulations.
7 We shall now consider the Pension Rules of 1995. Rule 3 of Chapter
II thereof, provides that the Rules are applicable to employees (1) who
were in the service of the Corporation on or after 1.1.1986 and had retired
before 1.11. 1993 i.e. the notified date, or (2) who retired after
1.11.1993; or (3)who were in the service before the notified date and
continued to be in service on or after the notified date; or (4) who were
in the service on or after 1.1.1986 but had retired on or after 1.11.1993
and before the notified date. What is discernible from these dates is that
the Pension Rules of 1995 have included two classes of beneficiaries into
one homogenous class, to wit, the employees who had retired before the
notified date and those who were to retire after the notified date. In our
opinion, the advantage of these beneficent Rules should be extended even to
the Appellant who was similarly placed as the retirees mentioned in Rule 3
but for the fact that he had ‘resigned’ rather than retired. The two
provisions caught in the crossfire are Rule 2(s), which defines
“retirement” and Rule 23, which deals with the “forfeiture of service”:
II thereof, provides that the Rules are applicable to employees (1) who
were in the service of the Corporation on or after 1.1.1986 and had retired
before 1.11. 1993 i.e. the notified date, or (2) who retired after
1.11.1993; or (3)who were in the service before the notified date and
continued to be in service on or after the notified date; or (4) who were
in the service on or after 1.1.1986 but had retired on or after 1.11.1993
and before the notified date. What is discernible from these dates is that
the Pension Rules of 1995 have included two classes of beneficiaries into
one homogenous class, to wit, the employees who had retired before the
notified date and those who were to retire after the notified date. In our
opinion, the advantage of these beneficent Rules should be extended even to
the Appellant who was similarly placed as the retirees mentioned in Rule 3
but for the fact that he had ‘resigned’ rather than retired. The two
provisions caught in the crossfire are Rule 2(s), which defines
“retirement” and Rule 23, which deals with the “forfeiture of service”:
2(s) “retirement” means,- (i) retirement in accordance with the provisions
contained in sub-regulation (1) or sub-regulation (2) or sub-regulation (3)
of regulation 19 of the Life Insurance Corporation of India (Staff)
Regulations, 1960 and rule 14 of the Life Insurance Corporation of India
Class III and Class IV Employees (Revision of Terms and Conditions of
Service) Rules, 1985 made under the Act;
contained in sub-regulation (1) or sub-regulation (2) or sub-regulation (3)
of regulation 19 of the Life Insurance Corporation of India (Staff)
Regulations, 1960 and rule 14 of the Life Insurance Corporation of India
Class III and Class IV Employees (Revision of Terms and Conditions of
Service) Rules, 1985 made under the Act;
(ii) voluntary retirement in accordance with the provisions contained in
rule 31 of these rules. (emphasis added)
23. Forfeiture of service - Resignation or dismissal or removal or
termination or compulsory retirement of an employee from the service of the
Corporation shall entail forfeiture of his entire past service and
consequently shall not qualify for pensionary benefits.
termination or compulsory retirement of an employee from the service of the
Corporation shall entail forfeiture of his entire past service and
consequently shall not qualify for pensionary benefits.
Voluntary retirement, noted in the sub-Rule (ii) of Rule 2(s), has been
defined in Rule 31, and it reads as follows:
defined in Rule 31, and it reads as follows:
31. Pension on voluntary retirement - (1) At any time after an employee has
completed twenty years of qualifying service he may, by giving notice of
not less than ninety days, in writing, to the appointing authority, retire
from service:
completed twenty years of qualifying service he may, by giving notice of
not less than ninety days, in writing, to the appointing authority, retire
from service:
Provided that this sub-rule shall not apply to an employee who is on
deputation unless after having been transferred or having returned to India
he has resumed charge of the post in India and has served for a period of
not less than one year:
deputation unless after having been transferred or having returned to India
he has resumed charge of the post in India and has served for a period of
not less than one year:
Provided further that this sub-rule shall not apply to an employee who
seeks retirement from service for being absorbed permanently in an
autonomous body or a public sector undertaking to which he is on deputation
at the time of seeking voluntary retirement.
seeks retirement from service for being absorbed permanently in an
autonomous body or a public sector undertaking to which he is on deputation
at the time of seeking voluntary retirement.
(2) The notice of voluntary retirement given under sub-rule (1) shall
require acceptance by the appointing authority:
require acceptance by the appointing authority:
Provided that where the appointing authority does not refuse to grant the
permission for retirement before the expiry of the period specified in the
said notice, the retirement shall become effective from the date of expiry
of the said period.
permission for retirement before the expiry of the period specified in the
said notice, the retirement shall become effective from the date of expiry
of the said period.
(3) (a) An employee referred to in sub-rule (1) may make a request in
writing to the appointing authority to accept notice of voluntary
retirement of less than ninety days giving reasons therefor;
writing to the appointing authority to accept notice of voluntary
retirement of less than ninety days giving reasons therefor;
(b) on receipt of a request under clause(a), the appointing authority may,
subject to the provisions of sub-rule (2), consider such request for the
curtailment of the period of notice of ninety days on merits and if it is
satisfied that the curtailment of the period of notice will not cause any
administrative inconvenience, the appointing authority may relax the
requirement of notice of ninety days on the condition that the employee
shall not apply for commutation of a part of his pension before the expiry
of the notice of ninety days.
subject to the provisions of sub-rule (2), consider such request for the
curtailment of the period of notice of ninety days on merits and if it is
satisfied that the curtailment of the period of notice will not cause any
administrative inconvenience, the appointing authority may relax the
requirement of notice of ninety days on the condition that the employee
shall not apply for commutation of a part of his pension before the expiry
of the notice of ninety days.
(4) An employee, who has elected to retire under this rule and has given
necessary notice to that effect to the appointing authority, shall be
precluded from withdrawing his notice except with the specific approval of
such authority:
necessary notice to that effect to the appointing authority, shall be
precluded from withdrawing his notice except with the specific approval of
such authority:
Provided that the request for such withdrawal shall be made before the
intended date of his retirement.
(5) The qualifying service of an employee retiring voluntarily under this
rule shall be increased by a period not exceeding five years, subject to
the condition that the total qualifying service rendered by such employee
shall not in any case exceed thirty-three years and it does not take him
beyond the date of retirement.
rule shall be increased by a period not exceeding five years, subject to
the condition that the total qualifying service rendered by such employee
shall not in any case exceed thirty-three years and it does not take him
beyond the date of retirement.
(6) The pension of an employee retiring under this rule shall be based on
the average emoluments as defined under clause(d) of rule 2 of these rules
and the increase, not exceeding five years in his qualifying service, shall
not entitle him to any notional fixation of pay for the purpose of
calculating his pension.
the average emoluments as defined under clause(d) of rule 2 of these rules
and the increase, not exceeding five years in his qualifying service, shall
not entitle him to any notional fixation of pay for the purpose of
calculating his pension.
It seems obvious to us that the Appellant’s case does not fall within the
postulation of Rule 23 as the last four categories or genres or types of
cessation of services are in character punitive; and the first envisages
those resignations where the right to pension has not been earned by that
time or where it is without the permission of the Corporation.
postulation of Rule 23 as the last four categories or genres or types of
cessation of services are in character punitive; and the first envisages
those resignations where the right to pension has not been earned by that
time or where it is without the permission of the Corporation.
8 The Respondent Corporation has vehemently argued that the
termination of services is under Regulation 18 (supra) of the LIC (Staff)
Regulations, 1960 and is not covered by the Pension Rules of 1995.
Respondent Corporation has controverted the plea of the Appellant that at
the relevant date and time, viz. 28.1.1991 there was no alternative for him
except to tender his resignation, pointing out that he could not have
sought voluntary retirement under Regulation 19(2A) of LIC of India
(Staff) Regulations, 1960. If that be so, the Respondent being a model
employer could and should have extended the advantage of these Regulations
to the Appellant thereby safeguarding his pension entitlement. However,
we find no substance in the argument of the Respondent since Regulation
19(2A) was, in fact, notified in the Gazette of India on 16.2.1996, that is
after the pension scheme came into existence with effect from 1.11.1993.
Otherwise there would have been no conceivable reason for the Appellant
not to have taken advantage of this provision which would have protected
his pensionary rights.
termination of services is under Regulation 18 (supra) of the LIC (Staff)
Regulations, 1960 and is not covered by the Pension Rules of 1995.
Respondent Corporation has controverted the plea of the Appellant that at
the relevant date and time, viz. 28.1.1991 there was no alternative for him
except to tender his resignation, pointing out that he could not have
sought voluntary retirement under Regulation 19(2A) of LIC of India
(Staff) Regulations, 1960. If that be so, the Respondent being a model
employer could and should have extended the advantage of these Regulations
to the Appellant thereby safeguarding his pension entitlement. However,
we find no substance in the argument of the Respondent since Regulation
19(2A) was, in fact, notified in the Gazette of India on 16.2.1996, that is
after the pension scheme came into existence with effect from 1.11.1993.
Otherwise there would have been no conceivable reason for the Appellant
not to have taken advantage of this provision which would have protected
his pensionary rights.
9 We also record that the provisions covered by the definition of
“retirement”, which do not entail forfeiture of service, are sub-regulation
(1), sub-regulation (2), and sub-regulation (3) of Regulation 19 of the
Life Insurance Corporation of India (Staff) Regulations, 1960 and Rule 14
of the Life Insurance Corporation of India Class III and Class IV Employees
(Revision of Terms and Conditions of Service) Rules, 1985. None of these
provisions provides for voluntary retirement like Rule 31 of the Pension
Rules nor does the definition of “retirement” make any mention of
aforementioned Regulation 19(2A).
“retirement”, which do not entail forfeiture of service, are sub-regulation
(1), sub-regulation (2), and sub-regulation (3) of Regulation 19 of the
Life Insurance Corporation of India (Staff) Regulations, 1960 and Rule 14
of the Life Insurance Corporation of India Class III and Class IV Employees
(Revision of Terms and Conditions of Service) Rules, 1985. None of these
provisions provides for voluntary retirement like Rule 31 of the Pension
Rules nor does the definition of “retirement” make any mention of
aforementioned Regulation 19(2A).
10 The facts of the case disclose that the Appellant has worked for
over twenty years and had tendered his resignation in accordance with the
provision of Regulation 18 of LIC of India (Staff) Regulations, 1960,
which, as is apparent from its reading, does not dissimulate between the
termination of service by way of resignation on the one hand and voluntary
retirement on the other, or distinguish one from the other.
Significantly, there was no provision for voluntary retirement at the
relevant time, and it was for this reason that the Pension Rules of 1995
specifically provided for it under Rule 31. In this backdrop of facts, we
need not dwell much on the issue because the case of Sheelkumar Jain v. New
India Assurance Co. Ltd., (2011) 12 SCC 197 is on all fours of this case.
over twenty years and had tendered his resignation in accordance with the
provision of Regulation 18 of LIC of India (Staff) Regulations, 1960,
which, as is apparent from its reading, does not dissimulate between the
termination of service by way of resignation on the one hand and voluntary
retirement on the other, or distinguish one from the other.
Significantly, there was no provision for voluntary retirement at the
relevant time, and it was for this reason that the Pension Rules of 1995
specifically provided for it under Rule 31. In this backdrop of facts, we
need not dwell much on the issue because the case of Sheelkumar Jain v. New
India Assurance Co. Ltd., (2011) 12 SCC 197 is on all fours of this case.
11 In Sheelkumar, the Appellant resigned from the services of the
Respondent Company after serving for over 20 years on 16.12.1991. His
resignation was offered and granted under Clause 5 of General Insurance
(Termination, Superannuation and Retirement of Officers and Development
Staff) Scheme, 1976. Thereafter, the Central Government formulated General
Insurance (Employees') Pension Scheme, 1995 with retrospective effect from
1.11.1993. Sheelkumar applied for pension under this Scheme, which was
declined on the ground that resignation from service would entail
forfeiture of service under Clause 22 of the General Insurance (Employees')
Pension Scheme, 1995. The Appellant moved the High Court challenging the
rejection of his claim. His writ petition as well as the writ appeal was
dismissed by the High Court. The Appellant then moved this Court, whereby
we noted that Clause 5 of the Scheme of 1976 did not mention resignation
nor was the Appellant made aware of the distinction between resignation and
voluntary retirement; that this distinction was a product of the General
Insurance (Employees’) Pension Scheme of 1995. This Court observed:
Respondent Company after serving for over 20 years on 16.12.1991. His
resignation was offered and granted under Clause 5 of General Insurance
(Termination, Superannuation and Retirement of Officers and Development
Staff) Scheme, 1976. Thereafter, the Central Government formulated General
Insurance (Employees') Pension Scheme, 1995 with retrospective effect from
1.11.1993. Sheelkumar applied for pension under this Scheme, which was
declined on the ground that resignation from service would entail
forfeiture of service under Clause 22 of the General Insurance (Employees')
Pension Scheme, 1995. The Appellant moved the High Court challenging the
rejection of his claim. His writ petition as well as the writ appeal was
dismissed by the High Court. The Appellant then moved this Court, whereby
we noted that Clause 5 of the Scheme of 1976 did not mention resignation
nor was the Appellant made aware of the distinction between resignation and
voluntary retirement; that this distinction was a product of the General
Insurance (Employees’) Pension Scheme of 1995. This Court observed:
20. Sub-para (1) of Para 5 does not state that the termination of service
pursuant to the notice given by an officer or a person of the Development
Staff to leave or discontinue his service amounts to “resignation” nor does
it state that such termination of service of an officer or a person of the
Development Staff on his serving notice in writing to leave or discontinue
in service amounts to “voluntary retirement”. Sub-para (1) of Para 5 does
not also make a distinction between “resignation” and “voluntary
retirement” and it only provides that an employee who wants to leave or
discontinue his service has to serve a notice of three months to the
appointing authority.
pursuant to the notice given by an officer or a person of the Development
Staff to leave or discontinue his service amounts to “resignation” nor does
it state that such termination of service of an officer or a person of the
Development Staff on his serving notice in writing to leave or discontinue
in service amounts to “voluntary retirement”. Sub-para (1) of Para 5 does
not also make a distinction between “resignation” and “voluntary
retirement” and it only provides that an employee who wants to leave or
discontinue his service has to serve a notice of three months to the
appointing authority.
21. We also notice that sub-para (1) of Para 5 does not require that the
appointing authority must accept the request of an officer or a person of
the Development Staff to leave or discontinue his service but in the facts
of the present case, the request of the appellant to relieve him from his
service after three months’ notice was accepted by the competent authority
and such acceptance was conveyed by the letter dated 28-10-1991 of the
Assistant Administrative Officer, Indore.
appointing authority must accept the request of an officer or a person of
the Development Staff to leave or discontinue his service but in the facts
of the present case, the request of the appellant to relieve him from his
service after three months’ notice was accepted by the competent authority
and such acceptance was conveyed by the letter dated 28-10-1991 of the
Assistant Administrative Officer, Indore.
23. The 1995 Pension Scheme was framed and notified only in 1995 and yet
the 1995 Pension Scheme was made applicable also to employees who had left
the services of Respondent 1 Company before 1995. Paras 22 and 30 of the
1995 Pension Scheme quoted above were not in existence when the appellant
submitted his letter dated 16-9-1991 to the General Manager of Respondent 1
Company. Hence, when the appellant served his letter dated 16-9-1991 to the
General Manager of Respondent 1 Company, he had no knowledge of the
difference between “resignation” under Para 22 and “voluntary retirement”
under Para 30 of the 1995 Pension Scheme. Similarly, Respondent 1 Company
employer had no knowledge of the difference between “resignation” and
“voluntary retirement” under Paras 22 and 30 of the 1995 Pension Scheme,
respectively.
the 1995 Pension Scheme was made applicable also to employees who had left
the services of Respondent 1 Company before 1995. Paras 22 and 30 of the
1995 Pension Scheme quoted above were not in existence when the appellant
submitted his letter dated 16-9-1991 to the General Manager of Respondent 1
Company. Hence, when the appellant served his letter dated 16-9-1991 to the
General Manager of Respondent 1 Company, he had no knowledge of the
difference between “resignation” under Para 22 and “voluntary retirement”
under Para 30 of the 1995 Pension Scheme. Similarly, Respondent 1 Company
employer had no knowledge of the difference between “resignation” and
“voluntary retirement” under Paras 22 and 30 of the 1995 Pension Scheme,
respectively.
24. Both the appellant and Respondent 1 have acted in accordance with the
provisions of sub-para (1) of Para 5 of the 1976 Scheme at the time of
termination of service of the appellant in the year 1991. It is in this
background that we have now to decide whether the termination of service of
the appellant under sub-para (1) of Para 5 of the 1976 Scheme amounts to
resignation in terms of Para 22 of the 1995 Pension Scheme or amounts to
voluntary retirement in terms of Para 30 of the 1995 Pension Scheme.
provisions of sub-para (1) of Para 5 of the 1976 Scheme at the time of
termination of service of the appellant in the year 1991. It is in this
background that we have now to decide whether the termination of service of
the appellant under sub-para (1) of Para 5 of the 1976 Scheme amounts to
resignation in terms of Para 22 of the 1995 Pension Scheme or amounts to
voluntary retirement in terms of Para 30 of the 1995 Pension Scheme.
25. Para 22 of the 1995 Pension Scheme states that the resignation of an
employee from the service of the corporation or a company shall entail
forfeiture of his entire past service and consequently he shall not qualify
for pensionary benefits, but does not define the term “resignation”. Under
sub-para (1) of Para 30 of the 1995 Pension Scheme, an employee, who has
completed 20 years of qualifying service, may by giving notice of not less
than 90 days in writing to the appointing authority retire from service and
under sub-para (2) of Para 30 of the 1995 Pension Scheme, the notice of
voluntary retirement shall require acceptance by the appointing authority.
Since “voluntary retirement” unlike “resignation” does not entail
forfeiture of past services and instead qualifies for pension, an employee
to whom Para 30 of the 1995 Pension Scheme applies cannot be said to have
“resigned” from service.
employee from the service of the corporation or a company shall entail
forfeiture of his entire past service and consequently he shall not qualify
for pensionary benefits, but does not define the term “resignation”. Under
sub-para (1) of Para 30 of the 1995 Pension Scheme, an employee, who has
completed 20 years of qualifying service, may by giving notice of not less
than 90 days in writing to the appointing authority retire from service and
under sub-para (2) of Para 30 of the 1995 Pension Scheme, the notice of
voluntary retirement shall require acceptance by the appointing authority.
Since “voluntary retirement” unlike “resignation” does not entail
forfeiture of past services and instead qualifies for pension, an employee
to whom Para 30 of the 1995 Pension Scheme applies cannot be said to have
“resigned” from service.
26. In the facts of the present case, we find that the appellant had
completed 20 years of qualifying service and had given notice of not less
than 90 days in writing to the appointing authority of his intention to
leave the service and the appointing authority had accepted notice of the
appellant and relieved him from service. Hence, Para 30 of the 1995 Pension
Scheme applied to the appellant even though in his letter dated 16-9-1991
to the General Manager of Respondent 1 Company he had used the word
“resign”.
completed 20 years of qualifying service and had given notice of not less
than 90 days in writing to the appointing authority of his intention to
leave the service and the appointing authority had accepted notice of the
appellant and relieved him from service. Hence, Para 30 of the 1995 Pension
Scheme applied to the appellant even though in his letter dated 16-9-1991
to the General Manager of Respondent 1 Company he had used the word
“resign”.
12 What is unmistakably evident in the case at hand is that the
Appellant had worked continuously for over 20 years, that he sought to
discontinue his services and requested waiver of three months notice in
writing, and that the said notice was accepted by the Respondent
Corporation and the Appellant was thereby allowed to discontinue his
services. If one would examine Rule 31 of the Pension Rules juxtaposed with
the aforementioned facts, it would at once be obvious and perceptible that
the essential components of that Rule stand substantially fulfilled in the
present case. In Sheelkumar, this Court was alive to the factum that each
case calls for scrutiny on its own merits, but that such scrutiny should
not be detached from the purpose and objective of the concerned statute.
It thus observed:
Appellant had worked continuously for over 20 years, that he sought to
discontinue his services and requested waiver of three months notice in
writing, and that the said notice was accepted by the Respondent
Corporation and the Appellant was thereby allowed to discontinue his
services. If one would examine Rule 31 of the Pension Rules juxtaposed with
the aforementioned facts, it would at once be obvious and perceptible that
the essential components of that Rule stand substantially fulfilled in the
present case. In Sheelkumar, this Court was alive to the factum that each
case calls for scrutiny on its own merits, but that such scrutiny should
not be detached from the purpose and objective of the concerned statute.
It thus observed:
30. The aforesaid authorities would show that the court will have to
construe the statutory provisions in each case to find out whether the
termination of service of an employee was a termination by way of
resignation or a termination by way of voluntary retirement and while
construing the statutory provisions, the court will have to keep in mind
the purposes of the statutory provisions.
construe the statutory provisions in each case to find out whether the
termination of service of an employee was a termination by way of
resignation or a termination by way of voluntary retirement and while
construing the statutory provisions, the court will have to keep in mind
the purposes of the statutory provisions.
31. The general purpose of the 1995 Pension Scheme, read as a whole, is to
grant pensionary benefits to employees, who had rendered service in the
insurance companies and had retired after putting in the qualifying service
in the insurance companies. Paras 22 and 30 of the 1995 Pension Scheme
cannot be so construed so as to deprive of an employee of an insurance
company, such as the appellant, who had put in the qualifying service for
pension and who had voluntarily given up his service after serving 90 days’
notice in accordance with sub-para (1) of Para 5 of the 1976 Scheme and
after his notice was accepted by the appointing authority.
grant pensionary benefits to employees, who had rendered service in the
insurance companies and had retired after putting in the qualifying service
in the insurance companies. Paras 22 and 30 of the 1995 Pension Scheme
cannot be so construed so as to deprive of an employee of an insurance
company, such as the appellant, who had put in the qualifying service for
pension and who had voluntarily given up his service after serving 90 days’
notice in accordance with sub-para (1) of Para 5 of the 1976 Scheme and
after his notice was accepted by the appointing authority.
13 The Appellant ought not to be deprived of pension benefits merely
because he styled his termination of services as “resignation” or because
there was no provision to retire voluntarily at that time. The commendable
objective of the Pension Rule is to extend benefits to a class of people to
tide over the crisis and vicissitudes of old age, and if there are some
inconsistencies between the statutory provisions and the avowed objective
of the statute so as to discriminate between the beneficiaries within the
class, the end of justice obligates us to palliate the differences between
the two and reconcile them as far as possible. We would be failing in our
duty, if we go by the letter and not by the laudatory spirit of statutory
provisions and the fundamental rights guaranteed under Article 14 of the
Constitution of India.
because he styled his termination of services as “resignation” or because
there was no provision to retire voluntarily at that time. The commendable
objective of the Pension Rule is to extend benefits to a class of people to
tide over the crisis and vicissitudes of old age, and if there are some
inconsistencies between the statutory provisions and the avowed objective
of the statute so as to discriminate between the beneficiaries within the
class, the end of justice obligates us to palliate the differences between
the two and reconcile them as far as possible. We would be failing in our
duty, if we go by the letter and not by the laudatory spirit of statutory
provisions and the fundamental rights guaranteed under Article 14 of the
Constitution of India.
14 Reserve Bank of India v. Cecil Dennis Solomon, (2004) 9 SCC 461
relied upon by the Respondent, although distinguishable on facts, has
ventured to distinguish “voluntary retirement” from “resignation” in the
following terms:
relied upon by the Respondent, although distinguishable on facts, has
ventured to distinguish “voluntary retirement” from “resignation” in the
following terms:
10. In service jurisprudence, the expressions “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 basic 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 retiral benefits are denied but in case of the
latter, the same is not denied. In case of the former, permission or notice
is not mandated, while in case of the latter, permission of the employer
concerned 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. In Punjab National Bank v. P.K. Mittal (1989 Supp (2) SCC 175) on
interpretation of Regulation 20(2) of the Punjab National Bank Regulations,
it was held that resignation would automatically take effect from the date
specified in the notice as there was no provision for any acceptance or
rejection of the resignation by the employer. In Union of India v. Gopal
Chandra Misra ((1978) 2 SCC 301) it was held in the case of a judge of the
High Court having regard to Article 217 of the Constitution that he has a
unilateral right or privilege to resign his office and his resignation
becomes effective from the date which he, of his own volition, chooses. But
where there is a provision empowering the employer not to accept the
resignation, on certain circumstances e.g. pendency of disciplinary
proceedings, the employer can exercise the power.
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 basic 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 retiral benefits are denied but in case of the
latter, the same is not denied. In case of the former, permission or notice
is not mandated, while in case of the latter, permission of the employer
concerned 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. In Punjab National Bank v. P.K. Mittal (1989 Supp (2) SCC 175) on
interpretation of Regulation 20(2) of the Punjab National Bank Regulations,
it was held that resignation would automatically take effect from the date
specified in the notice as there was no provision for any acceptance or
rejection of the resignation by the employer. In Union of India v. Gopal
Chandra Misra ((1978) 2 SCC 301) it was held in the case of a judge of the
High Court having regard to Article 217 of the Constitution that he has a
unilateral right or privilege to resign his office and his resignation
becomes effective from the date which he, of his own volition, chooses. But
where there is a provision empowering the employer not to accept the
resignation, on certain circumstances e.g. pendency of disciplinary
proceedings, the employer can exercise the power.
(emphasis is ours)
The legal position deducible from the above observations further amplifies
that the so-called resignation tendered by the Appellant was after
satisfactorily serving the period of 20 years ordinarily qualifying or
enabling voluntary retirement. Furthermore, while there was no compulsion
to do so, a waiver of the three months notice period was granted by the
Respondent Corporation. The State being a model employer should construe
the provisions of a beneficial legislation in a way that extends the
benefit to its employees, instead of curtailing it.
that the so-called resignation tendered by the Appellant was after
satisfactorily serving the period of 20 years ordinarily qualifying or
enabling voluntary retirement. Furthermore, while there was no compulsion
to do so, a waiver of the three months notice period was granted by the
Respondent Corporation. The State being a model employer should construe
the provisions of a beneficial legislation in a way that extends the
benefit to its employees, instead of curtailing it.
15 The cases of Shyam Babu Verma v. Union of India, (1994) 2 SCC 521;
State of M.P. v. Yogendra Shrivastava, (2010) 12 SCC 538; M.R. Prabhakar v.
Canara Bank, (2012) 9 SCC 671; National Insurance Co. Ltd. v. Kirpal Singh,
(2014) 5 SCC 189; UCO Bank v. Sanwar Mal, (2004) 4 SCC 412 relied upon by
the parties are distinguishable on facts from the present case.
State of M.P. v. Yogendra Shrivastava, (2010) 12 SCC 538; M.R. Prabhakar v.
Canara Bank, (2012) 9 SCC 671; National Insurance Co. Ltd. v. Kirpal Singh,
(2014) 5 SCC 189; UCO Bank v. Sanwar Mal, (2004) 4 SCC 412 relied upon by
the parties are distinguishable on facts from the present case.
16 We thus hold that the termination of services of the Appellant, in
essence, was voluntary retirement within the ambit of Rule 31 of the
Pension Rules of 1995. The Appellant is entitled for pension, provided he
fulfils the condition of refunding of the entire amount of the
Corporation’s contribution to the Provident Fund along with interest
accrued thereon as provided in the Pension Rules of 1995. Considering the
huge delay, not explained by proper reasons, on part of the Appellant in
approaching the Court, we limit the benefits of arrears of pension payable
to the Appellant to three years preceding the date of the petition filed
before the High Court. These arrears of pension should be paid to the
Appellant in one instalment within four weeks from the date of refund of
the entire amount payable by the Appellant in accordance of the Pension
Rules of 1995. In the alternative, the Appellant may opt to get the amount
of refund adjusted against the arrears of pension. In the latter case, if
the amount of arrear is more than the amount of refund required, then the
remaining amount shall be paid within two weeks from the date of such
request made by the Appellant. However, if the amount of arrears is less
than the amount of refund required, then the pension shall be payable on
monthly basis after the date on which the amount of refund is entirely
adjusted.
essence, was voluntary retirement within the ambit of Rule 31 of the
Pension Rules of 1995. The Appellant is entitled for pension, provided he
fulfils the condition of refunding of the entire amount of the
Corporation’s contribution to the Provident Fund along with interest
accrued thereon as provided in the Pension Rules of 1995. Considering the
huge delay, not explained by proper reasons, on part of the Appellant in
approaching the Court, we limit the benefits of arrears of pension payable
to the Appellant to three years preceding the date of the petition filed
before the High Court. These arrears of pension should be paid to the
Appellant in one instalment within four weeks from the date of refund of
the entire amount payable by the Appellant in accordance of the Pension
Rules of 1995. In the alternative, the Appellant may opt to get the amount
of refund adjusted against the arrears of pension. In the latter case, if
the amount of arrear is more than the amount of refund required, then the
remaining amount shall be paid within two weeks from the date of such
request made by the Appellant. However, if the amount of arrears is less
than the amount of refund required, then the pension shall be payable on
monthly basis after the date on which the amount of refund is entirely
adjusted.
17 The impugned Judgments of the High Court are set aside and the Appeal
stands allowed in the terms above. However, parties shall bear their
respective costs.
stands allowed in the terms above. However, parties shall bear their
respective costs.
J VIKRAMAJIT SEN
J ABHAY MANOHAR SAPRE
New Delhi,
October 12, 2015.
