# Deen Dayal v. State of U.P. & Ors - **Citation:** Service Single No. 31482 of 2019 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-02-26 - **Case number:** Service Single No. 31482 of 2019 - **Bench:** Rajesh Singh Chauhan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deen-dayal-v-state-of-u-p-ors-46311 - **Pages:** 4 ## Headnote A.- Service law-Central Civil Services (Pension) Rules, 1972-Rule 26-ensionary benefits- Petitioner tendered his resignation, instead of submitting his defence reply to the charge sheet. The Court held it to be a mode of avoiding disciplinary proceedings, and rejected the claim regarding payment of retiral dues. (Para 10) B. 'Resignation' and 'retirement' are the different expressions, therefore, both may not be treated at par - The concept of "resignation" and retirement" are different, and in same regulations these expressions are used in different connotations. The benefit cannot be extended, especially as resignation is one of the disqualifications for seeking pensionary benefits, under the Regulations. (Para 8) The decision to 'resign' is materially distinct from a decision to seek 'voluntary retirement'. The decision to resign results in the legal consequences that are distinct from the consequences flowing from voluntary retirement and the two may not be substituted for each other based on the length of an employee's tenure, which shall stand forfeited upon resignation. (Para 9) Writ petition dismissed. (E-4) Precedent followed: ## Text 1244 INDIAN LAW REPORTS ALLAHABAD SERIES cannot be allowed to take advantage of their own wrong. 75. In view thereof, writ petition is allowed. Impugned orders dated 31.07.2003 and 31.01.2004 passed by respondents are hereby set aside. Petitioner shall be entitled to all consequential benefits in accordance with law. ---------- (2020)03-05ILR A1244 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 26.02.2020 BEFORE THE HON'BLE RAJESH SINGH CHAUHAN, J. Service Single No. 31482 of 2019 Deen Dayal ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Lalendra Pratap Singh Counsel for the Respondents: C.S.C. A.- Service law-Central Civil Services (Pension) Rules, 1972-Rule 26-ensionary benefits- Petitioner tendered his resignation, instead of submitting his defence reply to the charge sheet. The Court held it to be a mode of avoiding disciplinary proceedings, and rejected the claim regarding payment of retiral dues. (Para 10) B. 'Resignation' and 'retirement' are the different expressions, therefore, both may not be treated at par - The concept of "resignation" and retirement" are different, and in same regulations these expressions are used in different connotations. The benefit cannot be extended, especially as resignation is one of the disqualifications for seeking pensionary benefits, under the Regulations. (Para 8) The decision to 'resign' is materially distinct from a decision to seek 'voluntary retirement'. The decision to resign results in the legal consequences that are distinct from the consequences flowing from voluntary retirement and the two may not be substituted for each other based on the length of an employee's tenure, which shall stand forfeited upon resignation. (Para 9) Writ petition dismissed. (E-4) Precedent followed: 1. Senior Divisional Manager, L.I.C. & ors. Vs. Shree Lal Meena, (2019) 4 SCC 479 (Para 3, 4, 8) 2. BSES Yamuna Power Ltd. Vs. Ghanshyam Chand Sharma & anr., Civil Appeal No. 9076 of 2019 @ SLP (C) No. 6553 of 2018, decided on 05.12.2019 (Para 9) Precedent cited: 1. Asger Ibrahim Amin VsL.I.C., 2015 (6) AWC 5829 (SC) (Para 4, 7, 8) Petition challenges order dated 20.09.2019, passed by Sub Divisional Officer, Hasanganj, Unnao. (Delivered by Hon'ble Rajesh Singh Chauhan, J.) 1. Heard Sri L.P. Singh, learned counsel for the petitioner and Sri Ran Vijay Singh, learned Addl. Chief Standing Counsel for the State-respondents. 2. By means of this petition, the petitioner has assailed the order dated 20.9.2019 passed by the Sub Divisional Officer, Hasanganj, Unnao rejecting the claim of the petitioner regarding payment of retiral dues. 3. As per the impugned order, the petitioner was initially appointed on the post of Lekhpal in the year 1953 and he discharged his duties as Lekhpal till 1975. While discharging the duties of Lekhpal, the petitioner had discharged the services 3-5 All. Deen Dayal Vs. State of U.P. & Ors. 1245 of Assistant Registrar, Kanoongo as an officiating basis w.e.f. 1975 to the year 1980. However, the petitioner was placed under suspension on 29.11.1979 and a charge sheet has been issued on 19.4.1980. The petitioner opted not to reply the charge sheet and submitted his resignation on 28.4.1980. The reason assigned in the resignation letter is that the petitioner was willing to contest the election of Legislative Assembly, therefore, he requested that his resignation be accepted. Accordingly, resignation of the petitioner has been accepted. Thereafter, the petitioner claimed that since his resignation has been accepted, therefore he be paid pension and other retiral benefits. The competent authority has rejected said claim of the petitioner placing reliance upon the judgment of the Hon'ble Supreme Court in re; Senior Divisional Manager, Life Insurance Corporation of India and others v. Shree Lal Meena, (2019) 4 SCC 479. 4. Learned counsel for the petitioner has contended that instead of deciding the issue in the light of the dictum of the Hon'ble Apex Court in re; Shree Lal Meena (supra), it should have been decided in the light of the decision of the Hon'ble Apex Court in re; Asger Ibrahim Amin v. Life Insurance Corporation of India, 2015 (6) AWC 5829 (SC). 5. At this juncture, resignation application of the petitioner, which has been enclosed as Annexure No.1 to the counter affidavit, would be relevant to refer. The aforesaid resignation application of the petitioner is having as many as eleven paragraphs. Paragraph-4 of the said application categorically provides that the petitioner was aware about the charge sheet, however, he has submitted that the charges of the charge sheet are baseless, therefore, the petitioner shall not submit his defence reply to the charge sheet. 6. This is an admission on the part of the petitioner that instead of filing his defence reply to the charge sheet, he opted to tender his resignation. 7. In the case of Asger Ibrahim Amin (supra), the question before the Hon'ble Apex Court was that "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. The Hon'ble Apex Court has held that the appellant had worked continuously for 23 years, sought to discontinue his service and requested waiver of three months notice in writing and the said notice was accepted by the respondent corporation and the appellant was thereby allowed to discontinue his services. It has further been held that the appellant ought not to be deprived of pensionary benefits merely because he styled his termination of service as resignation or because there is no provision to retire voluntarily at that time. Therefore, the Hon'ble Apex Court has finally held that termination of services of the appellant was voluntary retirement within the ambit of rules. 8. The facts of the present case are not similar to the case in re; Asger Ibrahim Amin (supra). Rather the Hon'ble Apex Court in re; Shree Lal Meena (supra) has dealt the similar issue and has held that the resignation and retirement are the different expressions, therefore, both may not be treated at par. In para-33 of the judgment, the Hon'ble Apex Court has observed that if the employee had not been removed by discharge due to misconduct, the discharge 1246 INDIAN LAW REPORTS ALLAHABAD SERIES by resignation in such circumstances may be different. However, in the present case, since the petitioner did not submit his defence reply to the charge sheet after being placed under suspension, therefore, the factum of misconduct could not be proved. Vide para-42, the Hon'ble Apex Court has held that service jurisprudence, recognising the concept of "resignation" and "retirement" as different, and in the same regulations these expressions being used in different connotations, left no manner of doubt that the benefit could not be extended, especially as resignation was one of the disqualifications for seeking pensionary benefits, under the Regulations. Paras-33 & 42 of the case in re; Shree Lal Meena (supra) are being reproduced herein below:- "33. In order to elucidate the legal principle further, we may note that Sheelkumar Jain [Sheelkumar Jain v. New India Assurance Co. Ltd., (2011) 12 SCC 197] took note of the judgment of the threeJudge Bench in Sudhir Chandra Sarkar v. Tisco Ltd. [Sudhir Chandra Sarkar v. Tisco Ltd., (1984) 3 SCC 369 : 1984 SCC (L&S) 540] An uncovenanted employee of the respondent Company, paid on a monthly basis, sought to recover a sum as gratuity, for continued service rendered over 29 years, under the Retiring Gratuity Rules, 1937, after having resigned from service. The employee was paid the provident fund dues. The High Court of Patna opined [Tisco Ltd. v. Sudhir Chandra Sarkar, 1968 SCC OnLine Pat 96 : AIR 1969 Pat 53] against the employee. When the matter reached this Court, one of the contentions raised by the respondent Company was that the employee had resigned and not retired from service. It was noticed that Rule 1(g) defines "retirement" as "the termination of service by reason of any cause other than removal by discharge due to misconduct". The employee had not been removed by discharge due to misconduct. The termination of service, being on account of resignation, it was held to qualify within the definition of "retirement" under the Rules. The rest of the judgment, dealing with the principles as to how gratuity should be treated, is not relevant. 42. It is relevant to note that M.R. Prabhakar [M.R. Prabhakar v. Canara Bank, (2012) 9 SCC 671 : (2012) 2 SCC (L&S) 802] dealt with a similar scheme for employees of Canara Bank, and the plea was that such of the employees who had resigned must be construed as voluntarily retired, thus, entitling them to pensionary benefits. Suffice to say that, once again, the principle was of differentiation between the concept of "voluntary retirement" and "resignation". Regulation 2(y) as applicable to the employees of Canara Bank, being pari materia to Rule 2(y) under the Pension Regulations of 1995, had brought in "voluntary retirement" in the definition of "retirement", but had not considered it appropriate to bring in the concept of "resignation". Service jurisprudence, recognising the concept of "resignation" and "retirement" as different, and in the same regulations these expressions being used in different connotations, left no manner of doubt that the benefit could not be extended, especially as resignation was one of the disqualifications for seeking pensionary benefits, under the Regulations." 9. The Hon'ble Apex Court in re; BSES Yamuna Power Ltd. v. Ghanshyam Chand Sharma and Another, Civil Appeal No.9076 of 2019 @ SLP (C) No.6553 of 2018, decided on 5.12.2019 has considered the decision of the Hon'ble Apex Court in re; Asger 3-5 All. Arun Kumar Kedia Vs. Harvansh Lal Matanheliya 1247 Ibrahim Amin (supra) and distinguished the same. Paras 14 & 19 of the aforesaid judgment are being reproduced herein below:- "14. The view in Asger Ibrahim Amin was disapproved and the court held that the provisions providing for voluntary retirement would not apply retrospectively by implication. In this view, where an employee has resigned from service, there arises no question of whether he has in fact ?voluntarily retired? or ?resigned?. The decision to resign is materially distinct from a decision to seek voluntary retirement. The decision to resign results in the legal consequences that flow from a resignation under the applicable provisions. These consequences are distinct from the consequences flowing from voluntary retirement and the two may not be substituted for each other based on the length of an employee's tenure. 19. 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." 10. Having heard learned counsel for the parties and perused the relevant material available on record as well as the aforesaid dictums of the Hon'ble Apex Court, I am of the considered opinion that since the resignation may not be treated at par with the other mode of dispensing with the service including the voluntary retirement, therefore the petitioner shall not be entitled to the pensionary benefits. Further, the petitioner has tendered his resignation to avoid the disciplinary proceedings as instead of submitting his defence reply to the charge sheet, he tendered his resignation, therefore the intent of the resignation is not appreciated. The reasons so given in the impugned order are appropriate and correct law of the Hon'ble Apex Court has been cited while rejecting the claim of the petitioner vide impugned order dated 20.9.2019. 11. Accordingly, the writ petition is devoid of merit, the same is dismissed being misconceived. 12. No order as to costs. ---------- (2020)03-05ILR A1247 REVISIONAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 23.04.2020 BEFORE THE HON'BLE RAJAN ROY, J. Civil Revision No. 35 of 2012 Arun Kumar Kedia ...Revisionist Versus Harvansh Lal Matanheliya...Opposite Party Counsel for the Revisionist: Shafiq Mirza Counsel for the Opposite Party: G. Haider, M.A. Siddiqui, Rajeiu Kumar Tripathi Civil Law- U.P. Provincial Small Causes Courts Act, 1887-Limitation Act, 1963-SCC Revision u/s 25-application for substitution-beyond limitation-Article 121 of Act, 1963-not applicable-as it applies to Appeal or suit-not revision-Article 137 of Act, 1963 applicable-limitation -3 yearsApplication within time-Revision allowed.