C. Jacob vs Director of Geology & Mining & Anr.

C. Jacob ...Petitioner(s)

VS.

Director of Geology & Mining & Anr. ... Respondents

O R D E R

R. V. RAVEENDRAN J.,

IA 1 is allowed and the delay of 56 days condoned. We

find no merit in this Special Leave Petition. However, as

the questions raised in this petition arise repeatedly, we

propose to pass a reasoned order after referring to the

relevant facts.

2. The petitioner joined service as a Drill Helper in

June, 1967, in the Regional Mining Cell, Trichy, in the

erstwhile State Geology branch of Department of Industries

and Commerce, State of Tamil Nadu. According to him, his

services were terminated in the year 1982, in pursuance of 2

a show cause notice dated 8.7.1982. Nearly eighteen years

later, the petitioner gave representations dated 5.5.2000

and 21.7.2000 to the first respondent requesting that he

may be taken back into service. As the enclosure (show

cause notice dated 8.7.1982) to the said representation was

incomplete, the first respondent called upon him to send

the complete document. Instead of complying with the said

request, the petitioner approached the Tamil Nadu

Administrative Tribunal seeking a direction to the first

respondent to dispose of his representation. The

Administrative Tribunal disposed of the said application on

19.12.2002, without notice to the respondents, with a

direction to the Director of Geology & Mining (first

respondent), to consider petitioner's representation dated

21.7.2000 and pass an order thereon within four months. In

compliance with the said direction, the first respondent

considered and rejected the petitioner's representations by

order dated 9.4.2002. The relevant portions of the said

order referring to the facts, is extracted below :

"The individual was sanctioned unearned leave on medical certificate for 25 days from 7.10.1980 to 31.10.1980 and he did not rejoin duty after the expiry of this leave. On perusal of the first page of the Memo No.19093/E2/80, dated 8.7.1982, the individual has taken up private employment and has applied for leave on loss of pay for two years from 1.1.1981 onwards vide his letter dated 1.1.1981. In the memo dated 19.2.1981 of the State Geologist, he was informed that his private employment is against the 3

Government Servants' conduct rules and hence, disciplinary action would be taken against him if his explanation on the above was not received within 15 days from the date of receipt of the memo. The above memo was sent by Registered post to the address at Marthandam in Kanyakumari District through the Assistant Geologist, Regional Mines Cell, Tiruchi. The memo was returned to the Assistant Geologist, RMC, Tiruchi, undelivered.

Then another memo dated 6.8.1981 was issued to him calling for his explanation in 15 days time as to why discriplinary action should not be taken against him and his services terminated if explanations were not received in time. The above memo was sent by Registered Post Acknowledgement due to the address "Singaliar Street, Marthandam Post, Kanyakumari District". The receipt of the above memo was acknowledgment by his wife Smt. C. Stella Jacob, on 31.8.1981.

On 10.9.1981, Thiru M. Ramaswamy, Assistant Geologist, RMC, Tirunelveli contacted his wife with his Geological Assistant and had the information that he was working in India and refused to inform the exact concern where he was employed. The above information was reported by the Assistant Geologist, RMC, Tirunelveli in his letter dated 14.9.1981.

In spite of so many efforts taken by the office, he has not even responded to the memo, which was received by his wife. Therefore, show cause notice was issued to him vide memo dated 8.7.1982 by the State Geologist, Guindy by Registered Post (Acknowledgment Due) and the above memo was received by him. He absented himself from duty and kept silence for a long period (01.11.1980 to 4.5.2000). He has submitted representations (dated 5.5.2000 and 19.7.2000) and requested to permit him to rejoin duty. In his letter dated 5.5.2000, he has stated that due to illness he has not attended duty and subsequently, he was also terminated from service.

In this office letter (dated 28.8.2000) he has been requested to produce the copies of the memorandum and other records issued by the State Geologist to him. But, he has not produced the copies of the same.

The erstwhile State Geology Branch of the Department of Industries and Commerce was upgraded as a separate Department of Geology and Mining and is functioning as 4

a separate department with effect from 14.4.1983. The Government issued order dated 15.3.1989 permanently transferring the officers and staff of the State Geology Branch to the new Department of Geology and Mining. The name of Thiru C. Jacob is not finding a place in this GO..............

Thiru C. Jacob absented from attending duties without proper leave application. He has taken up private employment without prior permission which is against Government Servants' Conduct Rules and he has not turned up for duty in time. He has absconded from duty from 1.11.1980 to 4.5.2000 without intimating the reasons for absenting himself. As he has completely absconded from duty his name did not find a place in the list of officers and staff transferred to the new Department of Geology and Mining vide GO Ms. No.1/Industries (SIA 2) Department dated 15.3.1989 from the erstwhile State Geology Branch of the Department of Industries and Commerce. This clearly bring to light that the applicant was not considered as a regular employee of the Department of Industries and Commerce as he has not followed the relevant rules and absented from attending duties without proper leave application.

Thiru C. Jacob has not produced the second and subsequent pages of the memo issued to him by the State Geologist, Madras in RC NO.19093/E2/80 dated 8.7.1982 for perusal. It is evident from the available records that the individual stayed away from duty without any information to the office and taken up private employment without prior permission. Therefore, his request for permitting him to rejoin duty after a lapse of twenty years cannot be complied with.

3. On 10.3.2003, the petitioner filed an original

application before the Tamil Nadu Administrative Tribunal

for the following relief :

"........the applicant prays that this Hon. Tribunal be please to call for the records of the first respondent dated 9.4.2002 and direct the respondents to grant service benefits to the applicant within a time framed 5

to be fixed by this Hon. Tribunal......."

In its counter to the said application, the respondents

reiterated the reasons for rejection of the request, given

in the order dated 9.4.2002. They also specifically

pleaded:

"It is submitted that the erstwhile State Geology Branch was under the control of the Director of Industries and Commerce and during the year 1983 this Department of Geology and Mining was formed as a separate Department and functioning with effect from 14.4.1983 under the control of the respondent. Orders were issued by the government on GOMsNo.1, Industries (SIA 2) Department, dated 15.3.1989 permanently, transferring the officers and staff of the erstwhile State Geology Branch of the Industries and Commerce Department to the new Department of Geology and Mining and the name of the applicant is not finding a place in the GO which clearly bring to light that the applicant was not considered as a regular employee of the Department of Industries and Commerce and it is evident that the applicant's services were already terminated.

It is submitted that every efforts were taken to process the representations submitted by the applicant and the available records with the respondent were carefully examined. Since some of the records are destroyed due to efflux of time, the applicant was requested to furnish the second page of the memo issued to him by the State Geologist, Madras, dated 8.7.1982 for perusal and the applicant has not furnished the same but only furnished the first page of the above memo with his representation dated 5.5.2000. It is submitted that in the second page there may be specific orders of the State Geologist with reasons for termination of the services of the applicant."

4. The said original application was transferred from the 6

Tribunal to the Madras High Court. A learned Single Judge

of the High Court by order dated 13.4.2006 held that the

department failed to establish that it had followed the

mandatory requirements of section 17(b) of Tamil Nadu Civil

Services (Discipline & Appeal) Rules by issuing a charge-

memo, holding an enquiry and passing an order of

punishment. He therefore, declared the termination of

petitioner's service in 1982 was illegal. As the petitioner

was already 59 years old and it was impractical to hold an

enquiry on account of the employee's health condition, the

learned Single Judge disposed of the writ petition by

declaring that the petitioner was deemed to have retired

from service from 18.7.1982 and directing that pension be

sanctioned from that date and that the entire arrears

should be calculated and paid in eight weeks.

5. The order of the learned Single Judge was challenged

by the respondents in an intra-court appeal. The Division

Bench allowed the writ appeal by order dated 28.1.2008. The

Division Bench held that the petitioner had not completed

20 years of qualifying service as on 18.7.1982, and

therefore, he was not entitled to pension. The said order

is under challenge in this petition. We propose to examine

the following two issues arising in this case: 7

(i) The modus of representation adopted by several

claimants/petitioners to get over the bar of

limitation/ delay and laches.

(ii) Common error in assuming that 10 years service

entitles a government servant of pension under

the pension Rules.

The modus of `representation'

6. Let us take the hypothetical case of an employee who

is terminated from service in 1980. He does not challenge

the termination. But nearly two decades later, say in the

year 2000, he decides to challenge the termination. He is

aware that any such challenge would be rejected at the

threshold on the ground of delay (if the application is

made before Tribunal) or on the ground of delay and laches

(if a writ petition is filed before a High Court).

Therefore, instead of challenging the termination, he gives

a representation requesting that he may be taken back to

service. Normally, there will be considerable delay in

replying such representations relating to old matters.

Taking advantage of this position, the ex-employee files an

application/writ petition before the Tribunal/High Court 8

seeking a direction to the employer to consider and dispose

of his representation. The Tribunals/High Courts routinely

allow or dispose of such applications/petitions (many a

time even without notice to the other side), without

examining the matter on merits, with a direction to

consider and dispose of the representation. The

courts/tribunals proceed on the assumption, that every

citizen deserves a reply to his representation. Secondly

they assume that a mere direction to consider and dispose

of the representation does not involve any `decision' on

rights and obligations of parties. Little do they realize

the consequences of such a direction to `consider'. If the

representation is considered and accepted, the ex-employee

gets a relief, which he would not have got on account of

the long delay, all by reason of the direction to

`consider'. If the representation is considered and

rejected, the ex-employee files an application/writ

petition, not with reference to the original cause of

action of 1982, but by treating the rejection of the

representation given in 2000, as the cause of action. A

prayer is made for quashing the rejection of representation

and for grant of the relief claimed in the representation.

The Tribunals/High Courts routinely entertain such

applications/petitions ignoring the huge delay preceding 9

the representation, and proceed to examine the claim on

merits and grant relief. In this manner, the bar of

limitation or the laches gets obliterated or ignored.

7. Every representation to the government for relief, may

not be replied on merits. Representations relating to

matters which have become stale or barred by limitation,

can be rejected on that ground alone, without examining the

merits of the claim. In regard to representations unrelated

to the department, the reply may be only to inform that the

matter did not concern the department or to inform the

appropriate department. Representations with incomplete

particulars may be replied by seeking relevant particulars.

The replies to such representations, cannot furnish a fresh

cause of action or revive a stale or dead claim.

8. When a direction is issued by a court/tribunal to

consider or deal with the representation, usually the

directee (person directed) examines the matter on merits,

being under the impression that failure to do may amount to

disobedience. When an order is passed considering and

rejecting the claim or representation, in compliance with

direction of the court or tribunal, such an order does not

revive the stale claim, nor amount to some kind of 10

`acknowledgment of a jural relationship' to give rise to a

fresh cause of action.

9. When a government servant abandons service to take up

alternative employment or to attend to personal affairs,

and does not bother to send any letter seeking leave or

letter of resignation or letter of voluntary retirement,

and the records do not show that he is treated as being in

service, he cannot after two decades, represent that he

should be taken back to duty. Nor can such employee be

treated as having continued in service, thereby deeming the

entire period as qualifying service for purpose of pension.

That will be a travesty of justice. Where an employee

unauthorizedly absents himself and suddenly appears after

20 years and demands that he should be taken back and

approaches court, the department naturally will not or may

not have any record relating to the employee at that

distance of time. In such cases, when the employer fails to

produce the records of the enquiry and the order of

dismissal/ removal, court cannot draw an adverse inference

against the employer for not producing records, nor direct

reinstatement with back-wages for 20 years, ignoring the

cessation of service or the lucrative alternative

employment of the employee. Misplaced sympathy in such 11

matters will encourage indiscipline, lead to unjust

enrichment of the employee at fault and result in drain of

public exchequer. Many a time there is also no application

of mind as to the extent of financial burden, as a result

of a routine order for back-wages.

10. We are constrained to refer to the several facets of

the issue only to emphasize the need for circumspection and

care in issuing directions for `consideration'. If the

representation is on the face of it is stale, or does not

contain particulars to show that it is regarding a live

claim, courts should desist from directing `consideration'

of such claims.

11. The present case is a typical example of

`representation and relief'. The petitioner keeps quiet for

18 years after the termination. A stage is reached when no

record is available regarding his previous service. In the

representations which he makes in 2000, he claims that he

should be taken back to service. But on rejection of the

said representation by order dated 9.4.2002, he filed a

writ petition claiming service benefits, by referring the

said order of rejection as the cause of action. As noticed

above, the learned Single Judge examined the claim, as if 12

it was a live claim made in time, finds fault with the

respondents for not producing material to show that

termination was preceded by due enquiry and declares the

termination as illegal. But as the appellant has already

reached the age of superannuation, the learned Single Judge

grants the relief of pension with effect from 18.7.1982, by

deeming that he was retired from service on that day. We

fail to understand how the learned Single Judge could

declare a termination in 1982 as illegal in a writ petition

filed in 2005. We fail to understand how the learned Single

Judge could find fault with the department of Mines and

Geology, for failing to prove that a termination made in

1982, was preceded by an enquiry in a proceedings initiated

after 22 years, when the department in which appellant had

worked had been wound up as long back as 1983 itself and

the new department had no records of his service. The

appellant neither produced the order of termination, nor

disclosed whether the termination was by way of dismissal,

removal, compulsory retirement or whether it was a case of

voluntary retirement or resignation or abandonment. He

significantly and conveniently, produced only the first

sheet of a show cause notice dated 8.7.1982 and failed to

produce the second or subsequent sheets of the said show

cause notice in spite being called upon to produce the 13

same. There was absolutely no material to show that the

termination was not preceded by an enquiry. When a person

approaches a court after two decades after termination, the

burden would be on him to prove what he alleges. The

learned Single Judge dealt with the matter as if he the

appellant had approached the court immediately after the

termination. All this happened, because of grant of an

innocuous prayer to `consider' a representation relating to

a stale issue.

Pension for service of less than 20 years

12. In this case, taking advantage of the fact the

department did not have any records and by not producing

the order terminating his service, the petitioner vaguely

alleged that he was `terminated' from service in the year

1982, without specifying whether it was by way of

dismissal, removal or compulsory retirement or otherwise.

If his termination was by way of dismissal or removal, he

would have forfeited his past service as also his pension

and gratuity under the pension Rules. Even if it assumed

that he was not dismissed or removed, but was retired from

service, the question is whether he is entitled to pension

on the basis of 14 years of service.

14

13. The appellant relied on Rule 43(2) of the Tamil Nadu

Pension Rules, 1978 (`TNP Rules' for short) to contend that

on completion of 10 years of service, a government servant

is entitled to pension. Relevant portion of the said rule

is extracted below:

"(2) In the case of a government servant, retiring in accordance with the provisions of these rules after completing qualifying service of not less than 10 years, the amount of pension shall be appropriate amount as set out below namely : ......."

(emphasis supplied)

As similar contention is frequently raised under the

corresponding Rule 49(2)(b) of CCS Pension Rules (`CCSP

Rules' for short), we will for convenience refer to the

corresponding provisions of CSSP Rules also.

14. Rule 43(2) relied on by the petitioner falls under

Chapter VI of TNP Rules (corresponding to Rule 49(2)(b) in

chapter VII of CCSP Rules) dealing with `Regulation of

amount of pension'. The said rule relates to quantum and

lays down how the pension of a retired government servant

should be calculated if he is entitled to pension. Entitle-

ment to pension is governed by Chapter V of the said Rules, 15

which enumerates the classes of pension and conditions for

entitlement. The enumerated classes of pension are :

Classes of Pension (vide Chapter V of Pension CCSP Rules TNP Rules Rules)

(i) Superannuation pension (Rule 35) Rule 32

(ii) Retiring pension (Rule 36) Rule 33

(iii) Pension on absorption in or under a corpo- (Rule 37) Rule 34 ration, company or body owned/controlled by State/Central Government (Rule 37A)

(iv) Invalid pension (Rule 38) Rule 36

(v) Compensation pension payable on discharge owing to abolition of the post (Rule 39) Rule 38

(vi) Compulsory retirement pension (Rul Rul e 40) e 39

(vii) Compassionate allowance to Government servants who forfeit their pension on being dis- (Rule 41) Rule 40 missed or removed 16

A government servant, whose case does not fall under any of

the classes of pensions enumerated in Chapter V, is not en-

titled to pension. If a government servant is not able to

make out entitlement to any class of pension specified in

chapter V of the pension Rules, there is no question of

having recourse to the rules in the chapter dealing with

regulation of amount of pension (chapter VI of TNP Rules or

chapter VII of CCSP Rules) for determining the quantum of

pension.

15. Admittedly the petitioner was not `superannuated'; nor

was he absorbed in any corporation/company/body owned by

state/central government; nor did he retire on account of

any infirmity which incapacitated him for service; nor was

he discharged on abolition of his post. Nor is he claiming

compassionate allowance (on being dismissed/removed after

putting in service of an extent which would entitle him to

pension but for the dismissal/removal). The only other cat-

egories of pension are compulsory retirement pension and

the retiring pension. A government servant compulsorily re-

tired from service as a penalty, may be granted by the au-

thority competent to impose such penalty, pension at a rate

not less than two-third admissible to him on the date of

his compulsory retirement. If a government servant is not 17

otherwise admissible to pension, he cannot obviously be

granted pension on compulsory retirement. There is no such

grant in this case. That leaves us with retiring pension.

16. Rule 33 of TNP Rules provides that a retiring pension

shall be granted to a government servant who retires, or is

retired, in accordance with the provisions of Rule 42 of

the said Rules. Rule 42 of TNP Rules provides that a gov-

ernment servant, who under fundamental Rule 56(d), retires

voluntarily or is required by the appointing authority to

retire in public interest shall be entitled to a retiring

pension. (corresponding Rule 36 of CCSP Rules which pro-

vides that a retiring pension shall be granted to a Govern-

ment servant who retires, or is retired, in advance of the

age of compulsory retirement in accordance with the provi-

sions of Rules 48 or 48-A of those Rules or Rule 56 of the

Fundamental Rules or Article 459 of the Civil Service Regu-

lations and to a Government servant who on being declared

surplus, opts for voluntary retirement in accordance with

Rule 29 of those Rules). The provision relating to retiring

pension makes it clear that a minimum of 20 years qualify-

ing service is required for retiring pension. It does not

entitle a government servant to retiring pension on comple- 18

tion of ten years service. Therefore, the petitioner is not

entitled to retiring pension

17. The petitioner contends that if the minimum service

for entitlement to retiring pension was 20 years and not 10

years, Rule 43(2) would not have stated "qualifying service

of not less than 10 years". He contended that as Rule 43(2)

of the TNP Rules (Rule 49(2)(b) of CCSP Rules) refers to

"not less than 10 years service", any government servant

who has put in service of 10 years or more is entitled to

retiring pension. The said contention is misconceived. As

stated earlier, the said rule does not relate to `entitle-

ment' of pension nor does it prescribe the conditions for

eligibility, but only provides how the amount of pension

should be calculated in cases where the retiring Government

servant is entitled to pension under the chapter V of the

pension rules. The said Rule regulates the `amount' of pen-

sion not only in case of retiring pension, but in case of

all classes of pension. Under Chapter V, in certain situa-

tions, a Government servant may be eligible for pension

even where the service is less than ten years. Rules 32,

36, and 38 of TNP Rules (Rules 35, 38 and 39 of CCSP Rules)

do not prescribe any minimum service for being entitled to

pension, where the cessation of service is on account of 19

superannuation, or on account of bodily or mental infirmity

or on account of abolition of his post. When Rule 43(2) of

TNP Rules (Rule 49(2)(2) of CCSP Rules) refers to payment

of pension to a person who has a qualifying service of not

less than 10 years, it does not mean that the minimum peri-

od of service prescribed for retirement pension is reduced

to 10 years or that government servants who are

dismissed/removed/compulsorily retired by way of punish-

ment, or those who voluntarily retire before reaching the

age of superannuation with less than 20 years of qualifying

service, become entitled to pension. Rule 43(2) of TNP

Rules (Rule 49(2)(b) of CCSP Rules), as noticed earlier,

comes into play only when the Government servant is enti-

tled to any of the classes of pension enumerated under

Chapter V of the Pension Rules. Therefore, when Rule 43(2)

of TNP Rules (or Rule 49(2)(b) of CCSP Rule) dealing with

the quantum of pension refers to a government servant re-

tiring in accordance with the said rules after completing

qualifying service of not less than 10 years, it does not

mean that pension is payable to persons who have not com-

pleted the required minimum number of years (20 years) of

service or to persons who have forfeited their service on

dismissal/removal from service. Therefore, the appellant

is not entitled to pension.

20

18. Special leave petition is therefore dismissed as hav-

ing no merit.

....................................................................J [R. V. Raveendran]

...........................................................................J [Lokeshwar Singh Panta]

New Delhi;

October 3, 2008.