Ashok Kumar Dabas (Dead Through Legal Heirs) vs. Delhi Transport Corporation

REPORTABLE


2025 INSC 1404
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2025
(Arising out of S.L.P.(C)No.4818 of 2023)


ASHOK KUMAR DABAS
(DEAD THROUGH LEGAL HEIRS) … Appellant (s)

VERSUS

DELHI TRANSPORT CORPORATION … Respondent(s)

J U D G M E N T

Rajesh Bindal, J.

1. Leave granted.
2. The appellant has filed the present appeal impugning the
1 2
order passed by the Division Bench of the High Court . The High Court
3 4
has upheld the orders passed by the Tribunal by which the claim of the
predecessors-in-interest of the appellant, for release of the pensionary
benefits of the deceased employee, was declined.
3. Briefly, the facts as available on record are that the deceased
appellant/Ashok Kumar Dabas was selected and appointed as conductor

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5
with the respondent/Corporation in the year 1985. Vide Office Order
No.16 dated 27.11.1992 a new pension scheme was introduced in the
Corporation. The deceased employee opted for the same. He resigned
from the job on 07.08.2014 citing family circumstances. The same was
accepted by the competent authority on 19.09.2014. Later on, vide letter
dated 13.04.2015 a request was made for withdrawal of the resignation.
The same was declined by the competent authority of the Corporation vide
order dated 28.04.2015. On 15.10.2015, the deceased employee
requested the respondent for release of his retiral benefits, namely,
gratuity, provident fund, leave encashment and pension. Vide order dated
23.10.2015 considering the fact that the employee/Ashok Kumar Dabas
had resigned from service, the Corporation informed him that he was
found entitled to only provident fund and no other benefit.
4. Aggrieved against the aforesaid order of the Corporation, an
6
application was filed by the deceased employee before the Tribunal. The
same was dismissed by the Tribunal vide order dated 24.09.2018. The
7
appellant thereafter filed a review application which was also dismissed
by the Tribunal vide order dated 29.10.2018. Still aggrieved, Ashok
Kumar Dabas/deceased employee approached the High Court by filing a

5
Delhi Transport Corporation
6
O.A. No.4645/2015
7
R.A. No.207/2018 in O.A.No.4645/2015
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writ petition which was dismissed vide impugned order, as noticed above.
Aggrieved against the same, the appellant is before this Court.
5. Learned counsel for the appellant submitted that the letter
submitted by the deceased employee to resign from the job may not have
been happily worded as he was not conversant with the legal language.
The same should not be taken to the extent that he should be denied all
his retiral benefits. The pension is not a bounty. It is earned by an
employee after putting in long service. He had put in about 30 years of
service and had resigned on account of family circumstances. Even if he
had not completed 30 years of service, his period of service was more
8
than 20 years and as per Rule 48 of Pension Rules he was entitled to
receive pension. It will be too harsh to forfeit his entire service benefits
merely because of a minor error in the resignation letter submitted by him.
The Corporation as well as courts below should have taken a pragmatic
view of the matter and not deprive the deceased employee of his retiral
dues.
5.1 In support of his arguments, he referred to the judgments of
this Court in
Reserve Bank of India and another v. Cecil Dennis
9
Solomon and another and Shashikala Devi v. Central Bank of India
10
& others . He has also referred to the judgment of the High Court in the

8
Central Civil Services (Pension) Rules, 1972 (for short, ‘1972 Rules’)
9
(2004) 9 SCC 461; 2003 INSC 688
10
(2014) 16 SCC 260; 2014 INSC 1045
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11
case of Shanti Devi v. Delhi Transport Corporation allowing similar
relief to an employee. The Special Leave Petition (C) No.9516/2013,
preferred by the Corporation against the aforesaid, was dismissed by this
Court vide order dated 26.04.2013. Another judgment of the High Court
relied upon by the learned counsel for the appellant is the case of
Delhi
12
.
Transport Corporation v. Ram Kishan
5.2 As far as his claim for gratuity is concerned, he has referred
13
to the provisions of Section 4 of the Payment of Gratuity Act, 1972 which
provided that even in case of resignation, if an employee had served for
not less than five years, gratuity is payable to him. He submitted that even
gratuity has been denied to him. His further grievance is that even
emoluments towards leave encashment were not paid to him for which
there is no bar as such.
6. On the other hand, learned counsel for the respondent
submitted that from a perusal of the 1972 Rules applicable for the post on
which the deceased employee was working, it is clear that on resignation
from the job, entire service will be forfeited and no second opinion on that
can be formed. Rule 26(1) of the 1972 Rules is quite explicit. Other Rules
in the 1972 Rules will have application only if the appellant comes out of
operation of Rule 26 thereof. It is the admitted case of the predecessors-

11
W.P.(C)No.4871/2010 decided on 15.10.2012
12
W.P.(C)No.2627/2015 decided on 17.03.2015
13
For short, ‘1972 Act’
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in-interest of the appellant that the deceased employee had resigned from
the job. After resignation, he cannot be permitted to claim that his
resignation should be treated as voluntary retirement and he should be
given pensionary benefits. The judgments relied upon by the appellant
are not applicable due to the latest judgment of this Court in the case of
BSES Yamuna Power Limited v. Ghanshyam Chand Sharma and
14
and the Judgment of the High Court in the case of
another Raj Kumar
15
v. Union of India and others .
6.1 He further submitted that during his service career the
deceased employee had been suspended on five occasions, nine times
warnings were issued on certain acts of mis-conduct whereas on seven
occasions major and minor punishment were imposed upon him. This was
his service career. In fact, he had resigned because of this.
6.2 As far as payment of gratuity is concerned, learned counsel
for the respondent has submitted that even that may not be payable, as
he was covered under the 1972 Rules.
6.3 Regarding payment of leave encashment, the learned counsel
for the respondent has fairly submitted that the same shall be released to
the family members of the deceased employee.

14
(2020) 3 SCC 346; 2019 INSC 1324
15
(2017) SCC OnLine Del 10877; 2017:DHC:5783-DB
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7. Heard learned counsel for the parties and perused the
relevant referred record.
8. The basic facts which are not in dispute are that the deceased
employee/Ashok Kumar Dabas was selected and joined the Corporation
in the year 1985. He resigned from the job on 07.08.2014. His resignation
was accepted on 19.09.2014. This was the end of his employment with
the Corporation. The issue raised before this Court is regarding his
entitlement to pension, gratuity and leave encashment, as was sought to
be argued by the learned counsel for the appellant.
REGARDING PENSION
9. The relevant Rules of the 1972 Rules which admittedly
governed the service of the deceased employee and in terms of which his
entitlement to pension is to be considered, are reproduced hereunder:
“ Rule 26 – Forfeiture of service on resignation
(1) Resignation from a service or a post, unless it
is allowed to be withdrawn in the public interest by the
Appointing Authority, entails forfeiture of past service.
x x x
Rule 36 – Retiring pension – A retiring pension
shall be granted -
(a) To a Government servant who retires, or is
retired, in advance of the age of compulsory
retirement in accordance with the provisions of Rule
48 or 48-A of these rules, or Rule 56 of the
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Fundamental Rules or Article 459 of the Civil Service
Reulations; and
(b) to a Government servant who, being declared
surplus, opts for voluntary retirement in accordance
with the provisions of Rule 29 of these rules.
x x x
Rule 48 – Retirement on completion of 30 years’
qualifying service –
(1) At any time after a Government servant has
completed thirty years’ qualifying service -
(a) he may retire from service, or
(b) he may be required by the appointed Authority
to retire in the public interest
And in the case of such retirement the Government
servant shall be entitled to a retiring pension:
Provided that –
(a) a Government servant shall give a notice in
writing to the Appointing Authority at least three
months before the date on which he wishes to retire;
and
(b) the Appointing Authority may also give a notice
in writing to a Government servant at least three
months before the date on which he is required to
retire in the public interest or three months’ pay and
allowances in lieu of such notice.

Rule 48-A – Retirement on completion of 20 years’
qualifying service
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(1) At any time after a Government servant has
completed Twenty years’ qualifying service, he may,
by giving notice of not less than three months in
writing to the Appointing Authority, retire from
service….”

9.1 A perusal of Rule 26 of the 1972 Rules clearly shows
resignation from service entails forfeiture of past service. In the case in
hand, admittedly the deceased employee resigned from service on
07.08.2014, which was accepted by the competent authority on
19.09.2014. The withdrawal of the resignation after acceptance was
declined by the competent authority on 28.04.2015. Meaning thereby, it
is clear that the deceased employee had resigned from service and his
withdrawal from resignation was not accepted.
9.2 Rule 36 of the 1972 Rules provides that the government
servant who retired or compulsorily retired shall be granted retiring
pension in accordance with Rules 48 and 48-A of the 1972 Rules.
9.3 Rule 48 of the 1972 Rules talks about eligibility or grant of
pension on completion of 30 years of qualifying service. Whereas Rule
48-A thereof provides for such entitlement on completion of 20 years or
more of qualifying service. In the case in hand, the deceased employee
had not completed 30 years of service but certainly had more than 20
years service to his credit.
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9.4 Learned counsel for the respondent had referred to service
records of the deceased employee during the course of his service with
the Corporation, immediately starting from the period he joined service.
The same is extracted below:
“SUSPENSION

INCREMENT STOPPED

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WARNING

9.5 The argument raised by the learned counsel for the appellant
is that the words used in his letter “notice for resignation” should not be
literally construed but should be taken as voluntary retirement so as to not
deprive him of his pension, which was earned on account of more than 20
years of service rendered by him. In support of his arguments, he has
relied upon and
Cecil Dennis Solomon and another Shashikala Devi’s
cases (supra) of this Court and Shanti Devi (supra) of the High Court,
which was confirmed by this Court.
9.6 Similar issue was considered by this Court in BSES Yamuna
Power Limited’s (supra) . Earlier judgments of this Court in Shashikala
Devi and Cecil Dennis Solomon and another’s cases (supra) were also
considered. It was opined therein that on resignation, past service of an
employee stands forfeited. Distinction between resignation and voluntary
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retirement was also considered. Relevant paras therefrom are extracted
below:
“14. In the present case, the first respondent
resigned on 7-7-1990 with effect from 10-7-1990. By
resigning, the first respondent submitted himself to the
legal consequences that flow from a resignation under the
provisions applicable to his service. Rule 26 of the Central
Civil Service Pension Rules, 1972 (the CCS Pension
Rules) states that:
“ 26. Forfeiture of service on resignation .—(1)
Resignation from a service or a post, unless it is
allowed to be withdrawn in the public interest by the
Appointing Authority, entails a forfeiture of past
service.”
Rule 26 states that upon resignation, an employee
forfeits past service. We have noted above that the
approach adopted by the Court in Asger Ibrahim
Amin [ Asger Ibrahim Amin v. LIC , (2016) 13 SCC 797
: (2015) 3 SCC (L&S) 12] has been held to be
erroneous since it removes the important distinction
between resignation and voluntary retirement.
Irrespective of whether the first respondent had
completed the requisite years of service to apply for
voluntary retirement, his was a decision to resign and
not a decision to seek voluntary retirement. If this
Court were to re-classify his resignation as a case of
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10. As far as payment of gratuity to the legal heirs of deceased
employee are concerned, their claim is based on the argument that they
are entitled to payment of gratuity in terms of Section 4 of the Payment of
16
Gratuity Act, 1972 . The same is extracted below:

16
Hereinafter, “1972 Act”
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“4. Payment of gratuity – (1) Gratuity shall be payable to an
employee on the termination of his employment after he has
rendered continuous service for not less than five years.-
(a) On his superannuation, or
(b) On his retirement or resignation, or
(c) On his death or disablement due to accident or disease:
Provided that the completion of continuous service of five
years shall not be necessary where the termination of the
employment of any employee is due to death or disablement.”

10.1 A perusal of the aforesaid section clearly shows that an
employee who had rendered not less than five years of service will be
entitled to payment of gratuity, regardless of the fact that he had retired or
resigned from service.
10.2 There is no dispute on the fact that in terms of Section 5 of the
1972 Act there is no notification issued by the appropriate government
exempting the Corporation from the application of the 1972 Act. Once it
could not be established by the respondent that the 1972 Act is not
applicable to the Corporation, the claim of the appellant for release of
gratuity cannot be denied even if he had resigned from service. Hence,
they are held entitled to receive gratuity in terms of the provisions of the
1972 Act for the service rendered by him.


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LEAVE ENCASHMENT
11. Insofar as payment of emoluments towards leave encashment
is concerned, learned counsel for the respondent had fairly submitted that
amount due to the deceased employee shall be paid to his family
members.
12 For the reasons mentioned above, the present appeal is partly
allowed to the extent that the legal heirs of deceased employee are held
entitled to receive gratuity in terms of provisions of the 1972 Act. They are
also held entitled to receive amount towards his leave encashment. As far
as grant of family pension is concerned, the claim being not admissible as
per 1972 Rules, no relief on that account can be granted to the legal heirs
of deceased employee. The amount due to the deceased employee be
paid within a period of six weeks along with interest @6 % p.a. from the
date of his resignation till payment.


.........................................J.
(RAJESH BINDAL)


..........................................J.
(MANMOHAN)
NEW DELHI;
th
December 9 , 2025.
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