Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

  SPECIAL LEAVE PETITION(C)No.25795 of 2008   CC 11425/2008

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

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

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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

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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

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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

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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:  

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(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

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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

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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

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‘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

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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

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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

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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.  

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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,

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which enumerates the classes of pension and conditions for entitlement. The enumerated classes of pension are :  

Classes of  Pension (vide Chapter V of Pension Rules)

CCSP Rules TNP Rules

(i)  Superannuation pension

(ii) Retiring pension  

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

(iv) Invalid pension  

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

(vi) Compulsory retirement pension  

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

(Rule 35)  

(Rule 36)

(Rule 37)

(Rule 37A)

(Rule 38)

(Rule 39)

                    (Rul e 40)

(Rule 41)

Rule 32

Rule 33

Rule 34

Rule 36

Rule 38

                           Rul e 39

Rule 40

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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

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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-

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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

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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.  

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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.  

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