Resignation - Supreme Court Coments
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R.K. Pathak
Dec 21, 2009, 1:34:31 AM12/21/09
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The difference between the “retirement” and the resignation” has been
noticed by the Supreme Court in the cases of Jaipal Singh Vs. (Smt.) Sumitra
Mahajan (supra); and UCO Bank & others (supra). The Supreme Court in the
aforesaid cases noticed that there was a difference between “retirement” and
“resignation”. It also noticed that such difference was already accepted by the
Apex Court in the case of Reserve Bank of India Vs. Cecil Dennis Solomon &
Another (2004) 9 SCC 461, wherein the Apex Court has held that in service
jurisprudence, the expressions superannuation, ‘voluntary retirement,
compulsory retirement and resignation convey different connotations. The Apex
Court held that in the 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.
71. Now we will advert to the decision of the Supreme Court in the case of UCO Bank & others Vs. Sanwar Mal (supra), herein the Hon’ble Supreme Court has observed as under:
“9. We find merit in these appeals. The words “resignation” and “retirement” carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there are severance of employment but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions “resignation” and “retirement” have been employed for different purpose and carry different meanings. The pension scheme herein is based on actuarial calculation; it is a sell-financing scheme, which does not depend upon budgetary support and consequently it constitutes a complete code by itself. The scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from service. Moreover, resignation brings about complete cessation of master and servant relationship whereas voluntary retirement maintains the relationship for he purposes of grnat of retrial benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/ rules framed by the bank. Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retrial benefits. Further, there are different yardsticks and criteria for submitting resignation vis-à-vis voluntary retirement and acceptance thereof. Sine the pension regulations disqualify an employee, who has resigned, from claiming pension the respondent cannot claim membership of the fund. In our view, Regulation 22 provides for disqualification of employees who have resigned from service and for those who have been dismissed or removed from service. Hence, we do not find any merit in the arguments advanced on behalf of the respondent that Regulation 22 makes an arbitrary and unreasonable classification repugnant to Article 14 of the Constitution by keeping out such class of employees. The view we have taken is supported by the judgment of this Court in the case of Reserve Bank of India and Anr. V. Cecil Dennis Solomon and Anr. Reported in [2003 (10) Scale 49]. Before concluding we may state that Clause 22 is not in the nature of penalty as alleged. It only disentitles an employee who has resigned from service from becoming a member of the Fund. Such employees have received their retrial benefits earlier. The pension scheme, as stated above, only provides for a second retrial benefit. Hence there is no question of penalty being imposed on such employees as alleged. The pension scheme only provides for an avenue for investment to retirees. They are provided avenue to put in their savings and as a term or condition which is more in the nature of an eligibility criteria the scheme disentitles such category of employees out of it.” 72. In the light of the aforesaid decisions it is difficult to say that Dr. Rakesh Gupta and other such like interveners have retired from service. They have resigned and terminated their contract of employment with the Government. In other words, they do not hold any post and no question of any conditions of services that can be made applicable to them after once they resigned from their office. The effect of resignation during the probation period is forfeiture of service. The past service rendered by the employee concerned becomes non est as the same got forfeited the moment they have resigned from office, particularly when the employee was not confirmed in service and was still on probation that too on a temporary post.
71. Now we will advert to the decision of the Supreme Court in the case of UCO Bank & others Vs. Sanwar Mal (supra), herein the Hon’ble Supreme Court has observed as under:
“9. We find merit in these appeals. The words “resignation” and “retirement” carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there are severance of employment but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions “resignation” and “retirement” have been employed for different purpose and carry different meanings. The pension scheme herein is based on actuarial calculation; it is a sell-financing scheme, which does not depend upon budgetary support and consequently it constitutes a complete code by itself. The scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from service. Moreover, resignation brings about complete cessation of master and servant relationship whereas voluntary retirement maintains the relationship for he purposes of grnat of retrial benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/ rules framed by the bank. Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retrial benefits. Further, there are different yardsticks and criteria for submitting resignation vis-à-vis voluntary retirement and acceptance thereof. Sine the pension regulations disqualify an employee, who has resigned, from claiming pension the respondent cannot claim membership of the fund. In our view, Regulation 22 provides for disqualification of employees who have resigned from service and for those who have been dismissed or removed from service. Hence, we do not find any merit in the arguments advanced on behalf of the respondent that Regulation 22 makes an arbitrary and unreasonable classification repugnant to Article 14 of the Constitution by keeping out such class of employees. The view we have taken is supported by the judgment of this Court in the case of Reserve Bank of India and Anr. V. Cecil Dennis Solomon and Anr. Reported in [2003 (10) Scale 49]. Before concluding we may state that Clause 22 is not in the nature of penalty as alleged. It only disentitles an employee who has resigned from service from becoming a member of the Fund. Such employees have received their retrial benefits earlier. The pension scheme, as stated above, only provides for a second retrial benefit. Hence there is no question of penalty being imposed on such employees as alleged. The pension scheme only provides for an avenue for investment to retirees. They are provided avenue to put in their savings and as a term or condition which is more in the nature of an eligibility criteria the scheme disentitles such category of employees out of it.” 72. In the light of the aforesaid decisions it is difficult to say that Dr. Rakesh Gupta and other such like interveners have retired from service. They have resigned and terminated their contract of employment with the Government. In other words, they do not hold any post and no question of any conditions of services that can be made applicable to them after once they resigned from their office. The effect of resignation during the probation period is forfeiture of service. The past service rendered by the employee concerned becomes non est as the same got forfeited the moment they have resigned from office, particularly when the employee was not confirmed in service and was still on probation that too on a temporary post.
venkataraman PNV
Dec 21, 2009, 2:17:33 AM12/21/09
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Sir,
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P N Venkataraman
The present situation is totally different from the earlier ones. The second option of the Pension scheme has been asked from retrospective date ie fourteen years back dated. Also it is a fact that resignation can be done with one day or one year or ten years of service. We are not talking about such cases. Employees who have opted the exit route of Resignation since there is no other route available for PF optees like the Pension optees. A Pension optee can retire after 20 yrs of service and a PF optee with similar years of service has to Resign and this is construed as forefeiture. If the option is given from 1995, definitely such persons would have opted for retirement. Even in the present circumstances we feel that Pension option to be extended to employees who have put in more than 20 yrs of service. Union leaders should have taken this issue but they havenot done so. This is not fair. Resignations are done only as per service conditions and after giving three months notice period. This should not be treated as submitting Resignation and leaving the next day. Any how many may have different views, to justify the stand taken, interpretations can me made in any way, but the intention should be that every one affected should get relief
P N Venkataraman
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P N Venkataraman
R Balaji
Dec 21, 2009, 5:34:48 AM12/21/09
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Dear PNV & Others,
Since the UBFU has not taken the case of resigned employees, and I hope they may not pursue again,It is better to form an Association of those resigned after completing 20 years and above service and approach the Court of law. Then only justice can be obtained.
Since the UBFU has not taken the case of resigned employees, and I hope they may not pursue again,It is better to form an Association of those resigned after completing 20 years and above service and approach the Court of law. Then only justice can be obtained.
muralidharprasad ayaluru
Dec 21, 2009, 8:59:34 AM12/21/09
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Dear balaji,
your observation is right and we should take a quick decision on this
amd
your observation is right and we should take a quick decision on this
amd
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