Madhya Pradesh High Court
Sourabh Choubey vs The State Of Madhya Pradesh on 7 August, 2024
1 WP-28962-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 7 th OF AUGUST, 2024
WRIT PETITION No. 28962 of 2023
SOURABH CHOUBEY
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri S.R. Tamrakar - Senior Advocate with Shri Ankit Chopra - Advocate for the
Petitioner.
Shri Yash Soni - Deputy Advocate General for the Respondent/State.
ORDER
The present petition has been filed challenging the order Annexure P- 10 whereby the resignation of the petitioner has been accepted on 09.10.2023.
2. Learned counsel for the petitioner while assailing the said order submits that the petitioner was working on the post of District Manager in Lok Sewa Vibhag and he tendered a notice of resignation vide Annexure P-9 dated 09.10.2023. It is contended that the said letter was only a notice of resignation which was to become effective upon expiry of one month from the date of such submission of letter. However, the Collector vide Annexure P-10 dated 09.10.2023 accepted the resignation of the petitioner on that date itself and ordered the petitioner to deposit one month's notice pay of Rs.53,000/- and upon failure of depositing the said amount, the amount was SignaturetoNot beVerified recoverable as an arrears of land revenue.
Signed by: KRISHNA SINGH Signing time: 18-08-2024 11.02.02 AM 2 WP-28962-2023
3. Learned Senior Counsel for the petitioner submits that the resignation of the petitioner was not resignation from immediate effect but it was only notice of resignation which was to become effective on expiry of one month from the date of submission of such notice. Thus, it was intimation of resignation from a prospective date i.e, 08.11.2023 and not an immediate and unconditional resignation and thus it could have been withdrawn by the petitioner any time prior to the effective date of 08.11.2013. It is further contended by learned senior counsel that the petitioner thereafter did move an application withdrawing the resignation on 12.10.2023 but the said application has not been taken into consideration on the ground that the resignation already stood accepted on 09.10.2023 itself which was the date of submission of notice or intimation of resignation from prospective date. The learned counsel relies on judgment of the Hon'ble Apex Court in the case of Dr. Mrs. Suman V Jain Vs. Marwadi Sammelan through its Secretary and Others reported in 2024 SCC Online SC 161.
4. Per contra, it is vehemently argued by the learned Deputy Advocate General that there were a number of complaints against the petitioner and the petitioner was apprehending some stern disciplinary action against him owing to the said complaints against him and just to avoid the said disciplinary action, the petitioner had tendered a resignation. The learned Deputy Advocate General further submits that the Collector has not erred in accepting the resignation on the same date itself because there is clear provision in clause 5.3 of instructions Annexure P-2 dated 14.07.2011 under Signature Not Verified which the service conditions of the petitioner are regulated that an employee Signed by: KRISHNA SINGH Signing time: 18-08-2024 11.02.02 AM 3 WP-28962-2023 can resign at any time upon giving one month's prior notice or upon depositing one month's remuneration in lieu of notice.
5. Thus, it is contended that the authority did not commit any error in accepting the resignation on the same date and ordering the petitioner to deposit one month's remuneration. It is further argued by the learned counsel for the State that as per clause 5.13 of the same instructions, the decision of the Collector is final in case of any dispute and the Collector has already taken the decision to accept the resignation.
6. Heard.
7. So far as the contention that the decision of the Collector is final as per clause 1.13 of the instructions Annexure P-2 is concerned, no doubt, the decision of the Collector is final. However, that does not stop the aggrieved party who is aggrieved by such decision of the Collector to approach the Court if he is aggrieved by the decision taken by the Collector. Thus, the objection that the order of the Collector is final order is discarded because such a clause of the executive instructions would not limit or restrict the jurisdiction of this Court under Article 226 of the Constitution of India.
8. The policy Annexure P-2 contains the clause 5.3 as under:-
"िन वदा पर िनयु अिधकार /कमचार एक माह का पूव नो टस दे कर अथवा एक माह का पा र िमक नगद जमा कर सं वदा सेवा से याग प दे सकता है "
As per the aforesaid clause, it is evident that an employee can resign on giving one month prior notice or upon depositing one month's remuneration in lieu of notice.
9. Upon perusal of the aforesaid clause, it is clear that this clause does Signature Not Verified Signed by: KRISHNA SINGH Signing time: 18-08-2024 11.02.02 AM 4 WP-28962-2023 not give any discretion on the authority to waive of the period of one month. There is no discretion cast on the authority to accept the resignation even prior to expiry of period of one month. Rather it is the choice of the employee to give intimation of resignation prior to one month or to resign with immediate effect upon depositing one month's remuneration in lieu of notice.
10. In the present case, the petitioner chose to follow the first route available to him i.e, to tender one month's notice expressing intention to resign from the date upon expiry of one month from the date of notice. The resignation letter Annexure P-9 has operative portion as under:-
" ीमान ्, उपरो कायालयीन िनयु आदे श क कं डका अनुसार इस आवेदन को 01 माह पूव सूचना प मानते हुये मुझे उ पदभार से मु करने हे तु आदे िशत करने क कृ पा करगी साथ ह कसी स म अिधकार को उ पदभार हे तु नािमत करने हे तु आदे िशत करने क कृ पा करगी जससे सभी आव यक id/password तथा कायालयीन साम ी/फाइ स आ द ह तांत रत क जा सक। "
11. The aforesaid contents of the resignation letter Annexure P-9 dated 09.10.2023 clearly evidence the position that the petitioner has submitted that this letter is a notice submitted prior to one month. The letter nowhere indicates by its language that the resignation was with immediate effect. The petitioner categorically wrote that it is a one month prior notice to Signatureresignation.
Not Verified The clear intention of the petitioner was to make the resignation Signed by: KRISHNA SINGH effective upon expiry of one month from the date of submission of the letter Signing time: 18-08-2024 11.02.02 AM 5 WP-28962-2023 dated 09.10.2023.
12. It was argued by learned counsel for the State that the authority could accept the resignation at any time during the aforesaid period of one month. However, the said argument does not have any force because the clause 5.3 as quoted above does not give any discretion on the authority to accept the resignation prior to one month or to waive the notice period of one month. Once the instructions under which the petitioner was appointed and his service conditions were regulated does not have any discretion on the authority to waive the period of one month, the action of the Collector in accepting the resignation with immediate effect seems to be contrary to clause 5.3 of instructions Annexure P-2 and seems to be something which is not authorized by the said instructions.
13. The Supreme Court in the case of Air India Express Limited and Others Vs. Captain Gurdarshan Kaur Sandhu reported in 2019 17 SCC 129 had dealt with the case of resignation of a pilot employed in Air India who had submitted six months notice of resignation and her resignation was accepted even prior to six months. However, in the aforesaid case, the Hon'ble Supreme Court had considered the Civil Aviation Requirements (CAR for short) and as per clause 3.7 whereof, there was a clear power vested in the competent authority to reduce the notice period of six months and accept the resignation of pilot earlier than six months.
14. The Hon'ble Supreme Court upheld the law that until the resignation becomes effective it is open to an employee to withdraw the Signature Not Verified resignation in the absence of anything to the contrary in the provisions Signed by: KRISHNA SINGH Signing time: 18-08-2024 11.02.02 AM 6 WP-28962-2023 governing the terms and conditions of Office or in the absence of a legal, contractual or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective.
15. The Hon'ble Supreme Court in the aforesaid case carved out an exception in that particular case on the basis of clause 3.7 of CAR that without appointment of pilots for operating the flights, the public interest would be adversely effected. Thus, it was held that interest of an employee cannot be given prominence over public interest.
16. The aforesaid judgment has been discussed in detail and the law on the subject has been considered in detail in subsequent judgment of the Hon'ble Apex Court in the case of Suman V Jain (supra) wherein the Hon'ble Supreme Court has held as under:-
"27. The judgment of Captain Gurdarshan Kaur Sandhu (supra) has been relied upon by the counsels for both sides, wherein this Court in paragraph 12 reaffirmed the law laid down in Gopal Chandra Misra (supra) and Balram Gupta (supra). The relevant para of the said judgment is reproduced as thus-
"12. It is thus well settled that normally, until the resignation becomes effective, it is open to an employee to withdraw his resignation. When would be resignation become effective may depend upon the governing service regulations and/or the terms and conditions of Signature Not Verified the office/post. As stated in paras 41 and 50 in Gopal Signed by: KRISHNA SINGH Signing time: 18-08-2024 11.02.02 AM 7 WP-28962-2023 Chandra Misra (Union of India v. Gopal Chandra Misra, (1978) 2 SCC 301 : 1978 SCC (L&S)303], "in the absence of anything to the contrary in the provisions governing the terms and conditions of the office/post"
or "in the absence of a legal contractual or constitutional bar, a 'prospective resignation' can be withdrawn at any time before it becomes effective". Further, as laid down in Balram Gupta [Balram Gupta v. Union of India, 1987 Supp SCC 228 : 1988 SCC (L&S) 126], "If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter."
2 8 . In the said case, this Court carved out an exception on the basis of a legal, contractual or a constitutional bar for withdrawal of prospective resignation as referred in paragraph 50 of Gopal Chandra Misra (supra). This Court referring to the "Civil Aviation Requirements, 2009" (hereinafter referred to as "CAR") made a distinction that the public interest would prevail over the interest of an employee's own interest. Interpreting clause 3.7 of the CAR, the Court observed that without appointment of pilots for Signature Not Verified operating the flights, the public interest would be Signed by: KRISHNA SINGH Signing time: 18-08-2024 11.02.02 AM 8 WP-28962-2023 adversely affected. Thus, it was said that the guiding idea of the eventuality specified therein were the parameters required to be taken by employer in public interest and, the interest of an employee cannot be given prominence over the public interest. In our view, the said judgment has no application in the facts of instant case wherein the charge of Principal was given on the date of intimation of resignation itself, to one Mrs. Purvi Shah who was appointed as "officiating Principal" with immediate effect, directing the appellant to proceed on leave.
2 9 . In view of the foregoing discussion, we answer question (A) and (B) in favour of appellant and hold that letter dated 25.03.2003 is an intimation of resignation from a prospective date i.e, 24.09.2003, which could have been withdrawn by the appellant prior to the effective date. There is no Rule or Regulation brought to our notice which restrains such withdrawal. There was no prior consent to the letter dated 08.04.2003 for accepting resignation w.e.f.24.09.2003 as 'final, binding and irrevocable' which is on record and therefore, by using such words, the acceptance of resignation was unilateral. As discussed, there was no Signature Not Verified implied contract and understanding with prior consent. Signed by: KRISHNA SINGH Signing time: 18-08-2024 11.02.02 AM 9 WP-28962-2023 Therefore, the withdrawal of such resignation by appellant prior to the effective date is permissible as per the law laid down in the case of Gopal Chandra Misra (supra) and Srikantha S.M. (supra). Learned counsel for the parties have also relied on some more case law, but there is no need to burden our judgment as the question of law as decided in those cases is one and the same. It is further required to be observed that in view of the findings recorded hereinabove, we are not examining the question about how far the Tribunal was justified in dealing with the issue on merits. In view of the above discussion, both the questions are answered in favour of appellant.
ANALYSIS OF QUESTION (C) 3 0 . In the absence of anything contrary in the provisions governing the terms and conditions of the office or post and in the absence of any legal contractual or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective as discussed above. The trust had made arrangements giving officiating charge to the Principal in the place of appellant and as such there was no prejudice to public interest."
Signature Not Verified Signed by: KRISHNA SINGH Signing time: 18-08-2024 11.02.02 AM10 WP-28962-2023
17. Thus, the law is clear that the prospective resignation can be withdrawn at any point of time before it becomes effective. The Collector passed the impugned order on the same date accepting the resignation which was beyond authority of the Collector because clause 5.3 of the service conditions does not give any such jurisdiction to the Collector to waive of the notice period of 30 days.
18. Thus, it is held that the resignation of the petitioner was not resignation with immediate effect but was only a intimation of resignation from a prospective date 30 days later to the date of submission of the letter to resignation Annexure P-9 and it could be withdrawn during this period of 30 days.
19. Consequently, the petition deserves to be and is hereby allowed. The order Annexure P-10 accepting the resignation is quashed. The petitioner is allowed to withdraw his resignation vide letter Annexure P-11.
20. The petitioner is directed to be reinstated in service forth with. As the situation has been created by the petitioner himself, the petitioner would be entitled to 50% of back wages.
(VIVEK JAIN) JUDGE veni Signature Not Verified Signed by: KRISHNA SINGH Signing time: 18-08-2024 11.02.02 AM