Central Administrative Tribunal - Delhi
Ram Awatar Meena vs Comm. Of Police on 6 December, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH:
NEW DELHI
O.A. No.1386 of 2017
Orders reserved on : 03.12.2018
Orders pronounced on : 06.12.2018
Hon'ble Ms. Nita Chowdhury, Member (A)
Ram Awatar Meena
S/o Sh. Mool Chand Meena
R/o VPO Booj, The. Jamwaramgarh,
Distt. Jaipur, Rajasthan.
Aged about 26 years
(Ex-Sub-Inspector - Delhi Police)
....Applicant
(By Advocate : Shri Ajesh Luthra)
VERSUS
1. Commissioner of Police,
PHQ, MSO Building,
IP Estate, New Delhi.
2. Joint Commissioner of Police (South Western Range)
PHQ, MSO Building, IP Estate, New Delhi.
3. Additional Deputy Commissioner of Police (West
District)
PHQ, MSO Building,
IP Estate, New Delhi.
.....Respondents
(By Advocate : Mrs. Harvinder Oberoi)
ORDER
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"a) Quash and set aside the impugned order placed at Annexure A/1 and 2
b) Consequently direct the respondents to permit the applicant to join his service with all consequential benefits.
c) Award costs of the proceedings; and
d) Pass any order/relief/direction(s) as this Hon‟ble Tribunal may deem fit and proper in the interests of justice in favour of the applicant."
2. Brief facts of the case are that the applicant was enlisted in Delhi Police as a direct recruit Sub-Inspector (Exe.) on 02.08.2014. Thereafter, he was sent for basic training at Police Training College, Jharoda Kalan, New Delhi. On completion of indoor training, the applicant was posted in West District for completion of practical training at Police Station Ranhola. The said training of a Sub-Inspector is for over one year duration.
2.1 However, during the aforesaid period, the applicant, who was facing tremendous pressure and stress due to critical family circumstances and therefore finding himself unable to do complete justice to the police service, preferred an application to resign from service on 6.1.2016 (Annexure A/4) with the reason that he is unable to continue his service because of his personal problem and family issues. 2.2 The said resignation from service tendered by the applicant vide his application dated 6.1.2016 was accepted by Additional DCP/West District vide order dated 14.1.2016 citing the provisions of Section 15 (2) of the Delhi Police Act, 1978. The applicant was also directed vide said order to 3 deposit capitation charges and two months salary in lieu of not submitting two months resignation notice before leaving the service. The applicant, at that point of time had no choice and thus he deposited the total amount of Rs.1,77,523/- vide receipt dated 15.1.2016 (Annexure A/5).
2.3 The applicant, after his severance of relation with the respondents started facing lot of problems and his parents and younger brother are dependent upon him. There is no source of livelihood to the family and realizing that the resignation of service has been accepted without any competence and against the order dated 14.1.2016 (Annexure A/1), submitted his representations in the month of June, 2016 (Annexure A/6 Colly.) 2.4 The said representation of the applicant was wrongly rejected by the respondents vide order dated 23.8.2016 (Annexure A/2).
2.5 Being aggrieved by the aforesaid order dated 14.1.2016, the applicant has filed this OA seeking the reliefs as quoted above.
3. Pursuant to notice issued to the respondents, they have filed their counter affidavit in which they stated that on 6.1.2016, the applicant had submitted an application/request to DCP/West Distt. For resignation from service with the reasons that he is unable to continue his service because of 4 his personal problems and family issues, which was received in this office on 7.1.2016, which was duly forwarded by SHO/Ranhola and ACP/Nangloi. On 13.1.2016, he has submitted an indemnity bond that he will pay the capitation charges and two months salary in lieu of 2 months notice as per Section 25(2) of Delhi Police Act, along with the difference in the rate of Capitation charges to the authority. Thereafter, after completing all codal formalities, his resignation was accepted vide Office Order dated 14.1.2016 and he was relieved vide DD No.04/Distt. Line/W dated 18.1.2016 (Annexure B).
3.1 Applicant filed a representation dated 8.6.2016 against the order dated 14.1.2016 which was considered by the Joint Commissioner of Police/South-Western Range, and the decision that the representation of the applicant has been taken into consideration in the light of the rules framed on the subject, but could not be acceded to, has been informed to the applicant vide letter dated 23.8.2016.
4. Heard learned counsel for the parties and perused the material placed on record.
5. During hearing counsel for the applicant submitted that the impugned order is illegal, arbitrary and unfair inasmuch as the same has not been passed by the competent authority as also the acceptance of the applicant‟s resignation is contrary to Section 25 (2) of the Delhi Police Act, 1978. 5 5.1 Counsel further submitted that there is no estoppel against the law as the acceptance of resignation being unlawful, the applicant is not precluded from seeking joining in department.
5.2 Counsel for the applicant by placing reliance on the judgment of the Hon‟ble High Court of Allahabad in the case of Anand Prakash and anr. vs. Assistant Registrar, AIR 1968 ALL 22, contended that the impugned order is ultra vires of the provisions of the Delhi Police Act. 5.3 Counsel also submitted that as per the provisions of Section 25 (4), a Sub-Inspector is not to be permitted to resign within three years from the date of his successful completion of training. The applicant had not even completed three years of service.
5.4 Counsel further submitted that once the appointing authority cannot accept a tender of resignation before the expiry of two months from the date of such tender, the appointing authority cannot, therefore, direct the credit of two months pay to the Government in lieu of notice. The two months notice period is a statutory period which has to be observed without any exception in the case of a Sub- Inspector.
65.5 Counsel also submitted that since the applicant was still a trainee, the respondents could not have directed deposit of capitation charges also.
5.6 Counsel lastly submitted that the applicant is quite young in age, in a welfare state and as a model employer, the employer must counsel its employees in such situations.
6. Counsel for the respondents submitted that the request of the applicant for acceptance of his resignation was considered by the competent authority under the provisions of Section 25(2) of the Delhi Police Act, 1978 as well as terms and conditions given in the offer of appointment letter dated 1.8.2014 and Rule 5 (f) of Delhi Police (Appointment & Recruitment) Rules, 1980, etc. Counsel further submitted that after completing all codal formalities, i.e., obtaining of DE/PE/Crl. Case report as well as indemnity bond received from the applicant, the resignation was accepted under the provision of Section 25(2) of Delhi Police Act, 1978. Therefore, the orders issued by the respondents are legal and valid. Hence, the argument that acceptance of resignation was ultra vires is incorrect and does not apply to this case. 6.1 Counsel also submitted that as per rules and instructions on the subject, an employee can tender his resignation notice before two months from the intended date of resignation of the Govt. servant. The applicant had willingly deposited two months salary in lieu of two months notice 7 period of resignation in the Rules, as on 13.1.2016 before accepting the resignation order, the applicant submitted an indemnity bond that he will pay the capitation charge and two months salary as per the rules of Delhi Police alongwith difference in the rate of capitation charge are enhancing to the authority. Thereafter, after completing all codal formalities, his resignation was accepted by the competent authority.
6.2 Counsel also submitted that as per the provisions of Rule 5 (f) of Delhi Police (Appointment & Recruitment) Rules, 1980, which provides that all direct recruits (Non-gazetted officers) in Delhi Police shall, before appointment, be required to execute a bond for the refund of capitation charges for the training imparted to them, in full in lump sum. If they leave without completing 05 years service from the date of appointment in the Delhi Police. In this regard counsel referred to the appointment letter issued to the applicant and submitted that „the offer of appointment is to be valid on execution of an agreement bond with regard to refund of salary, cost of uniform, capitation charges etc. in case he leaves the department without completing 05 years of service, it confirmed from the date of his appointment. 6.3 Counsel also specifically submitted that resignation tendered by the applicant was accepted by the competent authority.
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7. After having noted the averments of the parties and hearing the learned counsel for the parties, this Court observes that the applicant has tendered his resignation on 6.1.2016, which reads as under:-
"With due respect, I undersigned would like to state that I am unable to continue my service because of my personal problems and family issues.
So it is requested that for the above reason my resignation from the department may be accepted.
I shall be grateful to you."
From the plain reading of the aforesaid application to resign from service submitted by the applicant, it is quite clear that applicant has not given any notice rather he shown his intention to resign from the post immediately and admittedly the applicant when he tendered his resignation was under
training as also on probation.
8. Pursuant thereto, the competent authority accepted the resignation vide impugned order dated 14.1.2016, which reads as under:
"In accordance with the provision of Rule 25 (2) of Delhi Police Act, 1978, 1978 the resignation tendered by Prob. Sub-Inspector (Exe.) Ram Avatar Meena No.D- 5470 (16140096) is hereby accepted with immediate effect on his request.
Prob. Sub-Inspr. Ram Avatar Meena No.D-5470 (16140096) was enlisted in Delhi police PSI (Exe.) on 02.08.2014 and as per record he has not completed 05 years service in Delhi Police, therefore, he will deposit capitation charges and submit Indemnity Bond to deposit revised capitation charges, if revised. Beside he will also deposit Two months salary in lieu of not submitting Two months resignation notice in Account Branch/West Distt. before leaving the service.9
He will clear all his dues in Delhi Police and deposit all the government articles/belonging in his possession including clothing/uniform articles, Appointment Card, Identity Card & CGHS Card etc. before leaving the department and other dues. He will record his final departure report in Daily Diary of Duty Officer/Distt. Line/West Distt after getting No Dues Certificate from all concerned.
He is not in occupation of Government
Accommodation."
The said order clearly reveals that in case two months notice is not given, the concerned employee has to deposit two months‟ salary for not giving two months notice before leaving the service. If an employee has tendered his resignation before completion of 05 years service in Delhi Police, the concerned employee has to deposit capitation charges and submit Indemnity Bond to deposit revised capitation charges, if revised, which is the requirement of the Rule 5 (f) of Delhi Police (Appointment & Recruitment) Rules, 1980, which reads as under:-
"(f) „All direct recruits (Non-gazetted officers) in Delhi Police shall, before appointment, be required to execute a bond for the refund of capitation charges for the training imparted to them, in full in lump sum. If they leave without completing 5 years‟ service from the date of appointment in the Delhi Police."
As such the respondents have rightly directed the applicant to deposit capitation charges as well as two months‟ salary, which the applicant has done on 15.1.2016 and receipt in this regard has also been annexed by the applicant in the OA which is annexed as Annexure A/5.
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9. So far as contention of the applicant that the impugned order has not been passed by the competent authority is concerned, this Court finds that the applicant - probationer - Sub-Inspector is holding the post of subordinate rank as defined under Section 2 (s) of the Delhi Police Act, 1978, which reads as "Subordinate Rank" means members of the police force of and below the rank of the Inspector" and the competent authority in respect of Sub-Inspectors of Police and other officers of subordinate rank are the Deputy Commissioners of Police, Additional Deputy Commissioner of Police, Principal of the Police Training college or of the Police Training School or any other officer of equivalent rank as defined under Section 12 of the Act ibid. This Court finds that the impugned order has been passed by Additional Deputy Commissioner of Police, which is the competent authority to pass the said order. As such this Court is unable to accept the contention of the applicant that the impugned order is passed by the incompetent authority.
10. Further contention of the applicant is that the applicant could not be allowed to resign from service by the respondents by invoking the provisions of Section 25 (2) of the Act., ibid, which reads as under:-
"(2) A police officer of subordinate rank who indents to resign from police shall give to the appointing authority notice in writing to that effect and shall not be permitted to with himself from duty unless he has granted permission to resign by such authority and two 11 months have collapsed from the date on which he tendered his resignation."
The aforesaid Section permits an employee of the Delhi Police to give resignation, if such employee intends to do so and the requirement of two months‟ notice is the condition for the competent authority to give permission to resign but it does not mean that notice is mandatory for the employee of the Delhi Police to give for seeking resignation. As if such notice is not given, the provisions of other rules and regulations come into play, as quoted above.
11. So far as contention of the applicant which is based on the provisions of Section 25 (4) of the Act ibid is concerned, the same is also not tenable in law as the said Section provides as under:-
"(4) Inspector, Sub-Inspectors or Assistant Sub-
Inspectors of Police, whose appointments involve training at any Police Training College or Police Training School May not be permitted to resign within three years from the date of successful completion of training."
From the reading of the said Section, it is quite clear that this Section comes into play only when an employee of the Delhi Police whose appointment involves training at any Police Training college or Police Training School and the concerned employee completed the training. However, in the case in hand, the applicant himself stated that he was under training and had tendered his resignation during the said period of 12 training and was also on probation. As such the said Section is not relevant to the facts of this case. In view of the above observations, reliance placed by the learned counsel for the applicant on the case of Anand Prakash (supra) does not give any benefit to the applicant.
12. Further contention of the applicant that in a welfare state and as a model employer, the employer must counsel its employee in such situations in which the applicant tendered his resignation is concerned, this Court has already quoted the contents of the application of resignation tendered by the applicant in which the applicant has merely stated that due to his personal problem and family issues and has not specifically stated what would be his personal problems and family issues, the respondents are not under obligation to compel his employees to state his personal problems and family issues as the same are personal in nature. It is further relevant to note here that it is the prerogative and exclusive right of the employee, if he thinks so, to tender his resignation by citing his intention in this regard.
13. It is relevant to refer to the decision of the Hon‟ble Delhi High Court in the case of Sachin Balhara vs. GNCT of Delhi and another in Writ Petition (Civil) No.6995/2016 decided on 24.11.2016. The relevant portions of the said Order reads as under:-
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4. Having heard learned counsel for the petitioner, we do not find any ground to interfere with the impugned order passed by the Central Administrative Tribunal in view of the discussions made hereinafter.
5. Sub Section 5 and 7 of Section 25 of Delhi Police Act, 1978 on which reliance has been placed by the petitioner is of no avail to him. For the sake of convenience, these Sub Sections are reproduced as under:-
"(5) No police officer of subordinate rank whose resignation has been accepted by the appointing authority shall be permitted to withdraw from duty until he has fully discharged all debts, due from him, as such police officer to Government or to any police fund and has surrendered his certificate of appointment, arms, accoutrements, uniform and all other Government property in his possession and has also rendered a complete account of all Government money and property for which he is responsible.
(7) If any such police officer of subordinate rank resigns or withdraws himself from the duties of his office in contravention of this section, he shall be liable on the orders of the appointing authority to forfeit all arrears of pay then due to him in addition to the penalty to which he may be liable under section 22 or any other law for the time being in force."
6. Sub-section (5) mandates that no police officer of subordinate rank whose resignation has been accepted by the appointing authority shall be permitted to withdraw from duty until he has fully discharged all debts, due from him, as such police officer to the Government or to any police fund. This provision would not come to the aid of the petitioner for the reason that as per the „no dues certificate‟, there was no debt due from the petitioner which had been availed by him from the Government or Police fund. The loan amount of Rs.1,80,000/- availed by the petitioner was a personal loan taken by him while in service. The mere fact that the instalments were deducted from his salary account does not mean that this was a debt due from the petitioner to the government or in police fund.
That being so, Sub-Section 5 of Section 25 has no applicability. Moreover, the provision is for the benefit of the respondents as an employer and secures them. It ensures that the debt dues etc. are paid. This would not nullify the resignation or its acceptance.
7. Sub-section (7) of Section 25 states that if any such police officer of subordinate rank resigns or withdraws himself from the duties of his office the appointing authority can forfeit all 14 arrears of pay due to him in addition to the penalty which may be imposed under section 22 or any other law for the time being in force. A plain reading of Section 25 (5) and (7) would reveal that no police officer of subordinate rank is permitted to withdraw from his duty until he has fully discharged all debts, due from him to them or to any police fund. He has surrendered his certificate of appointment, arms, uniform etc. Consequences for such failure are stipulated. Although Rule 31 of Delhi Police Rules requires issuance of discharge certificate in Form A Part - I which prescribes general information such as rank / Constable number, name and parentage, full permanent and present residential address, the date of birth, age on the date of dismissal / removal / resignation, educational qualifications, etc., almost all the information are contained in „no due certificate‟ dated 15.07.2013 issued by the competent authority which is substantial compliance of Rule 31 of Delhi Police Rules. Moreover, these are merely procedural practice which does not create any substantial right in the employee to undo acceptance of resignation. Resignation once accepted, has the effect of cessation and ends the employer and employee relationship. The petitioner had submitted his resignation and had option to withdraw his request till acceptance, but not afterwards. The petitioner cannot seek restoration of employment merely because he wants to rejoin. The employment of the petitioner was governed by Rules, and requires consent and approval of the Delhi Police. There are sequel of judgments wherein the Supreme Court has time and again held that once the resignation is accepted by the competent authority and becomes effective then it cannot be withdrawn by the employee concerned. In Union of India and Ors. vs. Gopal Chandra Misra and Ors., AIR 1978 SC 694 the matter came up for consideration before the Constitutional Bench and it was held that-
45. It will bear repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a 'prospective' resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office-tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a Government servant/or functionary who cannot under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under Proviso (a) to Article 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective and 15 tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesanti, the resignation terminates his office-tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But, if he by such writing chooses to resign from a future date, the act resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal.
8. Again in Modern School vs. Shashi Pal Sharma and ors. [2007] 10 SCR 76, the Supreme Court has held:-
17. Once the resignation of the First Respondent had validly been accepted, the question which would arise for consideration is as to whether the same could be done before 17.06.1997. It is not a case where acceptance of the resignation was made effective from a future date. Resignation of the First Respondent having been accepted, only he was to be relieved from 17.06.1997. We have noticed hereinbefore the purport of Section 114A of the Act, in terms whereof resignation was to be accepted within a period of 30 days. In view of the aforementioned statutory provision, in our opinion, only because the First Respondent was to be relieved with effect from 17.06.1997 the same would not mean that even thereafter it was open to the First Respondent to withdraw his resignation. In fact, if the aforementioned letter dated 18.03.1997 is excluded from consideration, he had not withdrawn his resignation at all.
9. The petitioner, in the instant case, submitted his resignation on 14.05.2013 which was duly accepted by the competent authority on 09.07.2013 with effect from 16.07.2013. He was relieved from his duty from 16.07.2013 onwards. The request for rejoining service made by the petitioner on 10.12.2013, i.e., after the expiry of 90 days from the date of resignation as such was rightly rejected by the competent authority in view of rule 26(ii) & (iii) of CCS (Pension) Rules, 1972.
10. As regards the submission that there was no communication or acceptance order which was condition precedent for a valid resignation, this plea is again devoid of 16 any merits. In Raj Kumar v. Union of India, AIR 1969 SC 180, the Supreme Court held that resignation becomes effective as soon as it was accepted by authority and no communication is required. Therefore, communication of the acceptance may not be a prerequisite for valid resignation. In the present case, the petitioner had not reported for duty with effect from 16.07.2013 onwards. Obviously he was aware that his resignation had been accepted. In fact, the acceptance communication was sent, and the stand of the petitioner is that his signatures on this communication are forged. The petitioner's conduct belies and negates the plea.
11. As regards the family circumstances set up by the petitioner which compelled him to submit the resignation letter, a perusal of resignation letter submitted by the petitioner reveals that no such case was set up by him while submitting the resignation. For the sake of convenience, the contents of the resignation letter are reproduced as under:
"Respected sir, It is submitted that I was appointed in the department on 04.04.2002 as a constable (exe). Presently I am posted in south east district, Special Staff.
I am resigning from the department for my personal good reasons therefore my application may be considered at earliest. It is requested that my 2 months notice period may be counted from the day of application.
I‟ll be very grateful to you for this kind of act. Thanking you."
12. Pursuant thereto, the competent authority accepted the resignation vide impugned order dated 09.07.2013 which reads as under:
"In accordance with provision of Rule 25(2) of Delhi Police Act, 1978, the resignation tendered by Constable (Exe.) Sachin Balhara, No.3435/SE (PIS No.28020004) is hereby accepted at his own request w.e.f. 16.07.2013. He was enlisted in Delhi Police on 04.04.2002 (A/N).
He should deposit all the Govt. belongings in his possession including uniform articles, Appointment Card, Identity card (Delhi Police), CGHS Card etc before leaving the department and clear all other dues. He will make his final departure entry in the Daily Diary of Duty Officer / South East District. He will also furnish "No Dues Certificate" before his departure from Delhi Police.17
He is not in possession of Govt. accommodation."
13. A perusal of the aforesaid letter reflects that neither strained relation with his uncle nor illness of his mother were made the ground for submitting resignation nor any conditional request was made in his letter of resignation. He had simply resigned for his 'personal good reasons'. The purported reasons now set up would not invalidate his resignation letter. Under the circumstances, the resignation letter submitted by the petitioner and duly accepted by the competent authority with effect from 16.07.2013 on 09.07.2013 cannot be permitted to be unilaterally withdrawn thereby allowing the petitioner to rejoin the duty.
14. In case, the petitioner is entitled for any revised arrears of pay along with increments or GPF, the petitioner is at liberty to take recourse in accordance with law, but for that reason he cannot be heard to say that once the resignation submitted by him was duly accepted by the competent authority now it should be allowed to be withdrawn. These amounts are payable post cessation of the employer and employee relationship, these would not per se negate or nullify the acceptance of resignation.
15. In view of the foregoing discussion, we do not find any reason to interfere with the impugned order dated 29.04.2016 passed by the Central Administrative Tribunal, Principal Bench, New Delhi. The writ petition is accordingly dismissed.
14. In the result and for the foregoing reasons, this Court does not find any merit in this case and the same is accordingly dismissed. There shall be no order as to costs.
(Nita Chowdhury) Member (A) /ravi/