(PER
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The present appeal
is directed against the order dated 5.10.2012 passed by the learned
Single Judge of this Court in Special Civil Application No.4477 of
2012; whereby, learned Single Judge for the reasons recorded in the
order, has dismissed the petition on the ground of delay.
We have heard
Mr.Vadera, learned counsel appearing for the appellant.
The contention
raised on behalf of the petitioner is that the petitioner was
pursuing the remedy inasmuch, after the proposal was rejected in
October, 1995, the petitioner had addressed several letters by way
of representation in the year 2000.
However thereafter
as in respect of one co-employee of the petitioner, the learned
Single Judge of this Court in Special Civil Application No.9572 of
1999 as well as the Division Bench of this Court in Letters Patent
Appeal No.490 of 2000 did not accept the prayer for availability of
the pension on the premise that the resignation cannot be equated
with the retirement, the petitioner did not take any action. It is
submitted that since the Hon ble Apex Court in case of
Shreekumar Jain V/s. The New India Assurance Co. Ltd. & Ors.
reported in AIR
2011 SC 2990
has taken the view that the resignation and retirement are the same
connotation, the benefit would be available to the petitioner for
pensionary benefit. The petition was preferred before this Court
which came to be dismissed by the learned Single Judge on the ground
of delay. It was submitted that in view of the above referred
decision of the Apex Court in case of Shreekumar
Jain (supra)
there is a good case on merits and the learned Single Judge has
committed an error in dismissing the petition on the ground of delay
and therefore, this Court may consider in the present appeal.
It appears that it
is an admitted position that the petitioner has retired from service
as back as from 20th
January, 1991. After the rules, in question, came into force, he
applied under the scheme by letter dated 8th
August, 1995. It is also admitted position that such proposal came
to be not accepted and rejected by LIC vide decision dated
5.10.1995. The petitioner, thereafter, did nothing nor raise any
grievance at any point of time. Correspondences, as stated by way of
representation, are also of the year 2000. Even after year 2000, the
petitioner has not preferred any petition nor raised the grievance
until 2012 i.e. until the filing of the present petition. If the
date of retirement is considered after 1995 for making of the
representation, after the rules came into force, then it could be
said that the petition was delayed by about 17 years since the
proposal came to be dismissed as back as on October, 1995. The
contention that some letters were addressed in 2000 even if
considered for the sake of examination, no grievance is raised by
the petitioner at the relevant point of time. Merely because, in
respect of his co-employee, the petition was not entertained by this
Court and the decision was further not interfered by the Division
Bench of this Court, could not be termed as valid ground for
ignoring the aspects of such a long delay. Even after 2000, no
action whatsoever was taken by the petitioner till 2012 i.e. till
the filing of the main special civil application.
Under these
circumstances, we find that the ground of delay considered by the
learned Single Judge for declining the petitioner to invoke the
jurisdiction under Article 226 of the Constitution, could not be
said as erroneous.
Apart from the
above, we do find that there is binding decision of co-ordinate
Bench of this Court in Letters Patent Appeal No.490 of 2000 decided
on 28.8.2000 in case of Kantilal
R.Vora V/s. Union of India;
whereby, this Court observed, inter-alia, as under:
In
P.K. Masani Vs. United India Insurance Company (supra), the Court
while considering the provisions of General Insurance (Employees)
Pension Scheme, 1995, rejected a similar contention of the employee
to treat his resignation as voluntary retirement. Examining the
provisions of the Regulations of the Pension Scheme, the Court found
that the elements present in cases of voluntary retirement were not
there where an employee resigns from service. We are in respectful
agreement with the ratio of the said decision. When a person puts his
resignation from the employment, there is a unilateral termination of
contract by him and when the terms and conditions of his employment
entitled an employee to earn pensionary benefits only after putting
requisite number of years of service, a person who puts an end to the
contract unilaterally by resigning his service cannot be equated with
a person who is entitled to pensionary benefits after putting in
continued service of requisite number of years in accordance with the
terms and conditions of the employment. Those who quit service
unilaterally putting resignation cannot stand in the same class in
which others who in compliance with the terms and conditions of the
contract continue in service till the date of their retirement. There
is therefore, absolutely no valid basis for making any comparison
between these two classes of persons. In our opinion, the learned
Single Judge was right in holding that because the petitioner had
resigned from service he was not entitled to the pensionary benefits
which were admissible to those who had voluntarily retired under the
Scheme. The appeal is therefore, dismissed .
The aforesaid
shows that the view taken by this Court is that resignation cannot
be equated with the retirement and therefore, the benefits could not
be available. The said view is taken in case of co-employee of the
petitioner who was, as stated by the petitioner, similarly situated.
Therefore, it
could be said that on merits also, it may not be possible for this
Court to take a different view since there is a binding decision of
co-ordinate bench of this Court.
The attempt made
by the learned counsel for the appellant to rely upon the decision
in case of Shreekumar
Jain (supra),
in our view, cannot be countenanced for 2 reasons, one is that this
Court has considered very scheme and thereafter, has taken the view
in respect of other co-employee and the benefits were not extended.
The second is that, such a long delay of about 17 years cannot be
leniently viewed in a petition under Article 226 of the
Constitution. The learned Single Judge has referred to the decision
of the Apex Court for considering the aspects of delay. We find that
the jurisdiction of this Court under Article 226 of the Constitution
is a discretionary and equitable jurisdiction. When the equity has a
role to play, the question of delay would always be required tobe
considered in a case the delay may defeat the equity.
If this Court in
exercise of the power under Article 226 of the Constitution finds
that on account of long and inordinate delay of 17 years, the
petitioner should not be permitted to invoke the jurisdiction of
this Court under Article 226 of the Constitution, such a view cannot
be said to be erroneous, which may call for interference in exercise
of power of intra-court appeal under Letters Patent.
In view of the
aforesaid, we find that ultimate decision taken by the learned
Single Judge for dismissal of the petition does not call for
interference. The present appeal is dismissed. Notice discharged.
(JAYANT PATEL, J.)
(MOHINDER PAL, J.)
ashish
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