Madhya Pradesh High Court
Vijay Shankar Tripathi vs The Project Officer And Anr. on 24 September, 2004
Equivalent citations: (2005)IILLJ191MP, 2005(1)MPHT24
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. This appeal has been preferred by appellant Vijay Shankar against the impugned order passed by learned Single Judge dismissing his writ petition and affirming the order passed by the Central Government Industrial Tribunal cum Labour Court (in short 'the Tribunal'), dated 26-8-1998.
2. The appellant was appointed on the post of "Auto Helper Category II" in the year 1984. It is admitted by the parties that the petitioner submitted his resignation vide letter dated 10-9-1991 (Annexure A-1). On going through the resignation letter, it is found that a prayer to accept it immediately was made. According to appellant he did submit the application to withdraw the resignation vide Annexure A-2 on the same day, i.e., 10-9-1991. On going through the withdrawal letter, it is gathered that in a heat of passion, he did submit an application of resignation. However, on the same day, he requested not to accept the resignation, by submitting application of withdrawal. There is a note at the bottom of Annexure A-2 that it was received on 11-9-1991. The contention of appellant before the Tribunal as well as before the Writ Court was that since before the acceptance of the resignation letter, he withdrew the resignation on 10-9-1991, therefore the resignation could not have been accepted on 11-9-1991.
3. The other contention which was raised on behalf of appellant before the Tribunal as well as before the Writ Court was that in view of Clause 24.3 of the Standing Order, no workman is permitted to leave the service of the employer unless notice in writing is given of one month in the case of monthly paid workman and two weeks in the case of weekly paid workman. The attention was also invited to the proviso to Clause 24.3 which empowers the employer to relax this condition but subject to the payment of cash in lieu of such notice. It was further proponed before the Writ Court as well as before the Tribunal that the certificate issued by Superintendent of respondent certifying that petitioner did work on 10-9-1991 as well as on 11-9-1991 and therefore if the resignation was accepted on 10-9-1991, how appellant was allowed to work on 11-9-1991 and therefore it can not be said that the resignation was accepted on 10-9-1991.
4. Combating the aforesaid submissions, on behalf of respondents, a return was submitted in the Writ Court in which it was pleaded that appellant was working as a labourer and he had submitted his resignation on account of his personal difficulties with a request for its immediate acceptance. The resignation of the appellant was accepted by respondent on 10-9-1991 and therefore the request of withdrawal of resignation which was made on the next day, i.e., 11-9-1991 was without any sanguinity. It was submitted in the Writ Court on behalf of respondent that Clause 32.2 of the standing order gives right to the employer to accept the resignation with immediate effect. According to case of respondents since resignation was accepted on 10-9-1991, therefore the appellant had no case and therefore he is not entitled for any relief.
5. The Tribunal as well as the Writ Court did find the merit in the contentions raised by respondent. The Writ Court did not accept the contention of appellant and held that Clause 24.3 of the Standing Order is not applicable in his case and on the other hand Clause 32.1 is applicable. The case of Punjab National Bank v. P.K Mittal [1998 Supp (2) SCC 175] and Ravinder Singh v. State of M.P. and Ors. [1995 (2) SLR 424] were not found to be applicable by learned Single Judge. The learned Single Judge by placing reliance on the decision of the Supreme Court in the case of J.K Cotton Spinning and Weaving Mills Company Ltd. v. State of U.P. and Ors. [(1990) 4 SCC 27] held that appellant had no case and dismissed the writ petition. Hence this appeal.
6. In this appeal Shri Kishore Shrivastava, learned Counsel for the appellant has contended that the Tribunal as well as the Writ Court committed error in holding that the resignation was accepted on 10-9-1991 before the application of withdrawal of resignation was submitted. It has been further contended that application of withdrawal of resignation was submitted on 10-9-1991 before the resignation could be accepted. It has been further putforth by Shri Shrivastava that indeed Annexure A-1 can not be said to be a resignation letter in its strieto sensu. To buttress his contention, reliance has been placed on the decision of the Supreme Court in the case of Dr. Prabha Atri v. State of U.P. and Ors., (2003) 1 SCC 701. The contention is that the resignation letter must be unconditional and intending to operate as such. The learned Counsel also placed reliance on Union of India v. Wing Commander T. Parthasarathy, (2001) 1 SCC 158 and Sambhu Murari v. Project and Development India and Anr., (2000) 5 SCC 621. The other two decisions P.K Mittal (supra) and Ravindra Singh (supra) which were also relied by appellant in the Writ Court, are also pressed.
7. Refuting the submission of learned Counsel for the appellant, Shri Anoop Nair, learned Counsel for the respondent argued in support of the impugned order and has contended that the withdrawal of resignation carries no meaning since it was submitted after the acceptance of the resignation letter.
8. After having heard learned Counsel for the parties, we are of the view that this appeal deserves to be allowed.
9. The contention of appellant in Annexure A-1 which is his resignation letter is that illegal acts of the antisocial elements (Gundas) of the colony who had taken shelter of Ismile driver and through them Ismile happens to sell illegal liquor for which several times the inhabitants of the colony made oral complaint but no action was taken on it. In the resignation letter he has also submitted that Project Officer happens to interfere in his duties and he is being harassed by him. It has been further contended in the resignation letter that he has been told by these persons that whoever would try to create hindrance in the sale of illegal liquor, he would face dire consequence. The appellant was also threatened by the Gunda elements and the Project Officer who is also carrying on the business of illegal liquor in the colony. On these grounds, he is abandoning his services because he does not want to die and therefore his account be cleared earliest.
10. We have given our bestowed consideration to the said letter and according to us the same is not unconditional and some riders have been put in it. Since the resignation letter is not unconditional, therefore it can not be equated with the resignation. To constitute a resignation, it must be unconditional and with an intention to operate as such. In the case of Prabha Atri (supra), the Supreme Court has shown sufficient light in this regard in Para 10 which we would like to quote as under:-
" 10. We have carefully considered t he submissions of the learned Counsel appearing on either side, in the light of the materials and principles, noticed supra. This is not a case where it is required to consider as to whether the relinquishment envisaged under the rules and conditions of service is unilateral or bilateral in character but whether the letter dated 9-1-1999 could be treated or held to be a letter of resignation or relinquishment of the office, so as to sever her services once and for all. The letter can not be construed, in our view, to convey any spontaneous intention to give up or relinquish her office accompanied by any act of relinquishment. To constitute a "resignation", it must be unconditional and with an intention to operate as such. At best, as observed by this Court in the decision in P.K. Ramachandra Iyer it may amount to a threatened offer more on account of exasperation, to resign on account of a feeling of frustration born out of an idea that she was being harassed unnecessarily but not, at any rate, amounting to a resignation, actual and simple. The appellant had put in about two decades of service in the hospital, that she was placed under suspension and exposed to disciplinary proceedings and proposed domestic enquiry and she had certain benefits flowing to her benefit, if she resigns but yet the letter dated 9-1-1999 does not seek for any of those things to be settled or the disciplinary proceedings being scrapped as a sequel to her the context, tenor of language used and the purport as well as the remaining portion of the letter indicating the circumstances in which it was written. That the management of the hospital took up such action forthwith, as a result of acceptance of the resignation is not of much significance in ascertaining the true or real intention of the letter written by the appellant on 9-1-1999. Consequently, it appears to be reasonable to view that as in the case reported in P.K. Ramachandra Iyer the respondents have seized an opportunity to get rid of the appellant the moment they got the letter dated 9-1-1999, without due or proper consideration of the matter in a right perspective or understanding of the contents thereof. The High Court also seems to have completely lost sight of these vital aspects in rejecting the writ petition."
11. If the ratio decidendi of the case of Prabha Atri (supra) is tested on the touchstone of the present factual scenario, it is revealed that the resignation letter is conditional one and is not unconditional. Further there is no intention to operate it as such and therefore it can not be construed as a resignation as held by the Apex Court in the case of Prabha Atri (supra). On going through Annexure A-4 which is a letter of acceptance, it is revealed that at the specified place date 11-9-1991 has been typed, however, below the signature of Project Officer, date which is hand written can be read 10 as well as 11 -9-1991. It be seen that on the specific place where the date is to be written, date 11-9-1991 is typed which would mean that it was typed on 11-9-1991. Project Officer who had signed has not corrected the date. Even otherwise on going through Annexure A-3 which is a certificate issued by respondent, it is gathered that appellant did work upto 10-9-1991 as well as on 11-9-1991. This further corroborates the contention of learned Counsel for the appellant that before the resignation could be accepted, it was withdrawn and with a malafide attitude the Project Officer deliberately wrote the date below his signature which could be read as 10 as well as 11. Another important feature is that if the resignation was accepted on 10-9-1991 then how appellant was allowed to work on 10 as well as on 11-9-1991. On going through the certificate issued by Superintendent of respondent, it is clear that the appellant had worked on 10th as well as on 11-9-1991, which would clearly mean that the resignation was never accepted on 10-9-91.
12. Since there is no overwhelming material in order to hold that the resignation was withdrawn earlier to its acceptance, according to us, the acceptance of resignation letter by respondent after its withdrawal, carries no meaning in the eye of law.
13. In the result, the appeal succeeds and is hereby allowed the order passed by learned Single Judge in Writ Petition No. 5113/1999, dated 1-11-2002 and the order passed by the Tribunal dated 26-8-1998 are hereby set aside. The respondents are directed to reinstate the petitioner in service with 30% back wages. Looking to facts and circumstances of the case, the parties are directed to bear their own costs.