ASHOK KUMAR DABAS (DEAD THROUGH LEGAL HEIRS) … Appellant (s) vs Delhi Transport Corporation

2025 INSC 1404 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2025 (Arising out of S.L.P.(C)No.4818 of 2023)

ASHOK KUMAR DABAS (DEAD THROUGH LEGAL HEIRS) … Appellant (s)

VERSUS

DELHI TRANSPORT CORPORATION … Respondent(s)

JUDGMENT

Rajesh Bindal, J.

1. Leave granted.

2. The appellant has filed the present appeal impugning the

order 1 passed by the Division Bench of the High Court 2. The High Court

has upheld the orders 3 passed by the Tribunal4 by which the claim of the

predecessors-in-interest of the appellant, for release of the pensionary

benefits of the deceased employee, was declined.

3. Briefly, the facts as available on record are that the deceased

appellant/Ashok Kumar Dabas was selected and appointed as conductor

Signature Not Verified Digitally signed by NISHA KHULBEY Date: 2025.12.09

Reason: 1 Dated 20.12.2022 in W.P.(C) No.13642/2018 16:08:37 IST

2 High Court of Delhi at New Delhi 3 Dated 24.09.2018 in O.A. No.4645/2015 and 29.10.2018 in R.A. No.207/2018 4 Central Administrative Tribunal, Principal Bench, New Delhi

Page 1 of 14 with the respondent/Corporation 5 in the year 1985. Vide Office Order

No.16 dated 27.11.1992 a new pension scheme was introduced in the

Corporation. The deceased employee opted for the same. He resigned

from the job on 07.08.2014 citing family circumstances. The same was

accepted by the competent authority on 19.09.2014. Later on, vide letter

dated 13.04.2015 a request was made for withdrawal of the resignation.

The same was declined by the competent authority of the Corporation vide

order dated 28.04.2015. On 15.10.2015, the deceased employee

requested the respondent for release of his retiral benefits, namely,

gratuity, provident fund, leave encashment and pension. Vide order dated

23.10.2015 considering the fact that the employee/Ashok Kumar Dabas

had resigned from service, the Corporation informed him that he was

found entitled to only provident fund and no other benefit.

4. Aggrieved against the aforesaid order of the Corporation, an

application6 was filed by the deceased employee before the Tribunal. The

same was dismissed by the Tribunal vide order dated 24.09.2018. The

appellant thereafter filed a review application 7 which was also dismissed

by the Tribunal vide order dated 29.10.2018. Still aggrieved, Ashok

Kumar Dabas/deceased employee approached the High Court by filing a

5 Delhi Transport Corporation 6 O.A. No.4645/2015 7 R.A. No.207/2018 in O.A.No.4645/2015

Page 2 of 14 writ petition which was dismissed vide impugned order, as noticed above.

Aggrieved against the same, the appellant is before this Court.

5. Learned counsel for the appellant submitted that the letter

submitted by the deceased employee to resign from the job may not have

been happily worded as he was not conversant with the legal language.

The same should not be taken to the extent that he should be denied all

his retiral benefits. The pension is not a bounty. It is earned by an

employee after putting in long service. He had put in about 30 years of

service and had resigned on account of family circumstances. Even if he

had not completed 30 years of service, his period of service was more

than 20 years and as per Rule 48 of Pension Rules 8 he was entitled to

receive pension. It will be too harsh to forfeit his entire service benefits

merely because of a minor error in the resignation letter submitted by him.

The Corporation as well as courts below should have taken a pragmatic

view of the matter and not deprive the deceased employee of his retiral

dues.

5.1 In support of his arguments, he referred to the judgments of

this Court in Reserve Bank of India and another v. Cecil Dennis

Solomon and another 9 and Shashikala Devi v. Central Bank of India

& others10. He has also referred to the judgment of the High Court in the

8 Central Civil Services (Pension) Rules, 1972 (for short, ‘1972 Rules’) 9 (2004) 9 SCC 461; 2003 INSC 688 10 (2014) 16 SCC 260; 2014 INSC 1045

Page 3 of 14 case of Shanti Devi v. Delhi Transport Corporation 11 allowing similar

relief to an employee. The Special Leave Petition (C) No.9516/2013,

preferred by the Corporation against the aforesaid, was dismissed by this

Court vide order dated 26.04.2013. Another judgment of the High Court

relied upon by the learned counsel for the appellant is the case of Delhi

Transport Corporation v. Ram Kishan12.

5.2 As far as his claim for gratuity is concerned, he has referred

to the provisions of Section 4 of the Payment of Gratuity Act, 197213 which

provided that even in case of resignation, if an employee had served for

not less than five years, gratuity is payable to him. He submitted that even

gratuity has been denied to him. His further grievance is that even

emoluments towards leave encashment were not paid to him for which

there is no bar as such.

6. On the other hand, learned counsel for the respondent

submitted that from a perusal of the 1972 Rules applicable for the post on

which the deceased employee was working, it is clear that on resignation

from the job, entire service will be forfeited and no second opinion on that

can be formed. Rule 26(1) of the 1972 Rules is quite explicit. Other Rules

in the 1972 Rules will have application only if the appellant comes out of

operation of Rule 26 thereof. It is the admitted case of the predecessors-

11 W.P.(C)No.4871/2010 decided on 15.10.2012 12 W.P.(C)No.2627/2015 decided on 17.03.2015 13 For short, ‘1972 Act’

Page 4 of 14 in-interest of the appellant that the deceased employee had resigned from

the job. After resignation, he cannot be permitted to claim that his

resignation should be treated as voluntary retirement and he should be

given pensionary benefits. The judgments relied upon by the appellant

are not applicable due to the latest judgment of this Court in the case of

BSES Yamuna Power Limited v. Ghanshyam Chand Sharma and

another14 and the Judgment of the High Court in the case of Raj Kumar

v. Union of India and others15.

6.1 He further submitted that during his service career the

deceased employee had been suspended on five occasions, nine times

warnings were issued on certain acts of mis-conduct whereas on seven

occasions major and minor punishment were imposed upon him. This was

his service career. In fact, he had resigned because of this.

6.2 As far as payment of gratuity is concerned, learned counsel

for the respondent has submitted that even that may not be payable, as

he was covered under the 1972 Rules.

6.3 Regarding payment of leave encashment, the learned counsel

for the respondent has fairly submitted that the same shall be released to

the family members of the deceased employee.

14

(2020) 3 SCC 346; 2019 INSC 1324 15 (2017) SCC OnLine Del 10877; 2017:DHC:5783-DB

Page 5 of 14

7. Heard learned counsel for the parties and perused the

relevant referred record.

8. The basic facts which are not in dispute are that the deceased

employee/Ashok Kumar Dabas was selected and joined the Corporation

in the year 1985. He resigned from the job on 07.08.2014. His resignation

was accepted on 19.09.2014. This was the end of his employment with

the Corporation. The issue raised before this Court is regarding his

entitlement to pension, gratuity and leave encashment, as was sought to

be argued by the learned counsel for the appellant.

REGARDING PENSION

9. The relevant Rules of the 1972 Rules which admittedly

governed the service of the deceased employee and in terms of which his

entitlement to pension is to be considered, are reproduced hereunder:

“Rule 26 – Forfeiture of service on resignation

(1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails forfeiture of past service.

x x x Rule 36 – Retiring pension – A retiring pension shall be granted -

(a) To a Government servant who retires, or is retired, in advance of the age of compulsory retirement in accordance with the provisions of Rule 48 or 48-A of these rules, or Rule 56 of the

Page 6 of 14 Fundamental Rules or Article 459 of the Civil Service Reulations; and

(b) to a Government servant who, being declared surplus, opts for voluntary retirement in accordance with the provisions of Rule 29 of these rules.

x x x Rule 48 – Retirement on completion of 30 years’ qualifying service – (1) At any time after a Government servant has completed thirty years’ qualifying service -

(a) he may retire from service, or

(b) he may be required by the appointed Authority to retire in the public interest And in the case of such retirement the Government servant shall be entitled to a retiring pension:

Provided that –

(a) a Government servant shall give a notice in writing to the Appointing Authority at least three months before the date on which he wishes to retire; and

(b) the Appointing Authority may also give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three months’ pay and allowances in lieu of such notice.

Rule 48-A – Retirement on completion of 20 years’ qualifying service

Page 7 of 14 (1) At any time after a Government servant has completed Twenty years’ qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service….”

9.1 A perusal of Rule 26 of the 1972 Rules clearly shows

resignation from service entails forfeiture of past service. In the case in

hand, admittedly the deceased employee resigned from service on

07.08.2014, which was accepted by the competent authority on

19.09.2014. The withdrawal of the resignation after acceptance was

declined by the competent authority on 28.04.2015. Meaning thereby, it

is clear that the deceased employee had resigned from service and his

withdrawal from resignation was not accepted.

9.2 Rule 36 of the 1972 Rules provides that the government

servant who retired or compulsorily retired shall be granted retiring

pension in accordance with Rules 48 and 48-A of the 1972 Rules.

9.3 Rule 48 of the 1972 Rules talks about eligibility or grant of

pension on completion of 30 years of qualifying service. Whereas Rule

48-A thereof provides for such entitlement on completion of 20 years or

more of qualifying service. In the case in hand, the deceased employee

had not completed 30 years of service but certainly had more than 20

years service to his credit.

Page 8 of 14 9.4 Learned counsel for the respondent had referred to service

records of the deceased employee during the course of his service with

the Corporation, immediately starting from the period he joined service.

The same is extracted below:

“SUSPENSION

S.No. Date of Order Relevant Date of No. of Days Entry Suspension

1. Order dated Entry 1 23/09/1986- 1 Month 1 27/09/1986 24/10/1986 day

2. Order dated Entry 5 02/06/1989- 2 Months 01/06/1989 18/08/1989 16 days

3. Order dated Entry 13 22/05/1993- 4 Months 2 28/06/1993 24/091993 days

4. Order dated Entry 17 25/09/1994- 16 days 28/09/1994 11/10/1994

5. Order dated Entry 20 08/12/1995- 1 Year 13/12/1995 10/01/1997 1 Month 2 Days

INCREMENT STOPPED

S.No. Date of Order Relevant Entry 1 Entry 3 Stoppage of 2 increments 2 18/08/1989 Entry 6 Stoppage of 1 increment 3 30/03/1992 Entry 10 Brought back to initial basic pay 4 24/09/1993 Entry 14 Stoppage of Increment for next 2 years 5 04/10/1993 Entry 16 Stoppage of increment for next 2 years 6 13/12/1995 Entry 19 Stoppage of increment for next 2 years 7 28/02/1997 Entry 22 Stoppage of Increment for 5 years and brought back to initial basic pay

Page 9 of 14 WARNING

S.No. Date of Order Relevant Entry 1 08/10/1996 Entry 4 Warning 2 26/10/1989 Entry 7 Warning 3 28/08/1991 Entry 8 Warning 4 23/03/1992 Entry 9 Warning 5 03/12/1992 Entry 11 Warning 6 07/05/1993 Entry 12 Warning 7 18/08/1993 Entry 15 Warning 8 23/04/1999 Entry 23 Warning 9 29/09/2012 Entry 24 Warning

9.5 The argument raised by the learned counsel for the appellant

is that the words used in his letter “notice for resignation” should not be

literally construed but should be taken as voluntary retirement so as to not

deprive him of his pension, which was earned on account of more than 20

years of service rendered by him. In support of his arguments, he has

relied upon Cecil Dennis Solomon and another and Shashikala Devi’s

cases (supra) of this Court and Shanti Devi (supra) of the High Court,

which was confirmed by this Court.

9.6 Similar issue was considered by this Court in BSES Yamuna

Power Limited’s (supra). Earlier judgments of this Court in Shashikala

Devi and Cecil Dennis Solomon and another’s cases (supra) were also

considered. It was opined therein that on resignation, past service of an

employee stands forfeited. Distinction between resignation and voluntary

Page 10 of 14 retirement was also considered. Relevant paras therefrom are extracted

below:

“14. In the present case, the first respondent resigned on 7-7-1990 with effect from 10-7-1990. By resigning, the first respondent submitted himself to the legal consequences that flow from a resignation under the provisions applicable to his service. Rule 26 of the Central Civil Service Pension Rules, 1972 (the CCS Pension Rules) states that:

“26. Forfeiture of service on resignation.—(1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails a forfeiture of past service.”

Rule 26 states that upon resignation, an employee forfeits past service. We have noted above that the approach adopted by the Court in Asger Ibrahim Amin [Asger Ibrahim Amin v. LIC, (2016) 13 SCC 797 : (2015) 3 SCC (L&S) 12] has been held to be erroneous since it removes the important distinction between resignation and voluntary retirement. Irrespective of whether the first respondent had completed the requisite years of service to apply for voluntary retirement, his was a decision to resign and not a decision to seek voluntary retirement. If this Court were to re-classify his resignation as a case of

Page 11 of 14 voluntary retirement, this would obfuscate the distinction between the concepts of resignation and voluntary retirement and render the operation of Rule 26 nugatory. Such an approach cannot be adopted.

Accordingly, the finding of the Single Judge that the first respondent “voluntarily retired” is set aside.

x x x

17. On the issue of whether the first respondent has served twenty years, we are of the opinion that the question is of no legal consequence to the present dispute. Even if the first respondent had served twenty years, under Rule 26 of the CCS Pension Rules his past service stands forfeited upon resignation. The first respondent is therefore not entitled to pensionary benefits.”

From our aforesaid discussion, the only inescapable conclusion is that on

resignation by the employee, his past service stood forfeited. Hence, he

will not be entitled to any pension.

GRATUITY

10. As far as payment of gratuity to the legal heirs of deceased

employee are concerned, their claim is based on the argument that they

are entitled to payment of gratuity in terms of Section 4 of the Payment of

Gratuity Act, 197216. The same is extracted below:

16

Hereinafter, “1972 Act”

Page 12 of 14 “4. Payment of gratuity – (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years.-

(a) On his superannuation, or

(b) On his retirement or resignation, or

(c) On his death or disablement due to accident or disease:

Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement.”

10.1 A perusal of the aforesaid section clearly shows that an

employee who had rendered not less than five years of service will be

entitled to payment of gratuity, regardless of the fact that he had retired or

resigned from service.

10.2 There is no dispute on the fact that in terms of Section 5 of the

1972 Act there is no notification issued by the appropriate government

exempting the Corporation from the application of the 1972 Act. Once it

could not be established by the respondent that the 1972 Act is not

applicable to the Corporation, the claim of the appellant for release of

gratuity cannot be denied even if he had resigned from service. Hence,

they are held entitled to receive gratuity in terms of the provisions of the

1972 Act for the service rendered by him.

Page 13 of 14 LEAVE ENCASHMENT

11. Insofar as payment of emoluments towards leave encashment

is concerned, learned counsel for the respondent had fairly submitted that

amount due to the deceased employee shall be paid to his family

members.

12 For the reasons mentioned above, the present appeal is partly

allowed to the extent that the legal heirs of deceased employee are held

entitled to receive gratuity in terms of provisions of the 1972 Act. They are

also held entitled to receive amount towards his leave encashment. As far

as grant of family pension is concerned, the claim being not admissible as

per 1972 Rules, no relief on that account can be granted to the legal heirs

of deceased employee. The amount due to the deceased employee be

paid within a period of six weeks along with interest @6 % p.a. from the

date of his resignation till payment.

.........................................J. (RAJESH BINDAL)

..........................................J. (MANMOHAN) NEW DELHI;

December 9th, 2025.

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