Calcutta High Court (Appellete Side)
Tuhin Mukherjee vs State Of West Bengal & Ors on 3 January, 2012
Author: Soumen Sen
Bench: Ashim Kumar Banerjee, Soumen Sen
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Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Present:
The Hon'ble Justice Ashim Kumar Banerjee
And
The Hon'ble Justice Soumen Sen
WPST 585 of 2010
Tuhin Mukherjee
-Vs-
State of West Bengal & Ors.
For the Petitioner : Mr. Aninda Lahiri
Mr. Sk. Samsul Arefin
For the Respondents : Mrs. Chaitali Bhattacharyya
ar
Heard on : 03.01.2012
Judgment on : 03.01.2012
Soumen Sen, J.
The Present appeal is directed as against the order dated 23rd September, 2010 passed by the learned Tribunal dismissing the application filed by the petitioner.
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The principal grievance of the petitioner is that although initially he had tendered his resignation but thereafter he had expressed his desire to withdraw the resignation which was rejected by the respondent authority without applying their mind.
It was further contended that even otherwise the resignation could not take effect unless the respondent authorities pay one month's salary in terms of letter of provisional appointment dated March 07, 2005.
The petitioner was appointed initially for a period of six months as Grade III Medical Technologist (Lab.) of Medical Technologist Cadre in the Directorate of Health Service. The petitioner was, however, irregular in attending his job. It appears that he was initially released from Swasthya Bhavan on 18th March, 2005 and was directed to report for duty to Chief Medical Officer of Health, Cooch-Behar immediately which, however, he failed to do until on 31st May, 2005 after an inordinate delay and without any reasonable cause. During the tenure of his service from 17th march, 2005 to 27th March, 2009 he attended his duties only for two and half months. The service record of the petitioner shows that he was unwilling and extremely irregular in attending his job. The petitioner after being unsuccessful in getting a posting according to his choice tendered his resignation on 27th March, 2009 and requested the authority to accept such resignations. The said resignation was accepted on 20th April, 2009 with effect from 27th March, 2009. The said order was thereafter communicated.
After the resignation was accepted, the petitioner on a change of mind decided to withdraw the said letter of resignation and made representation on 24th April, 2009. The petitioner complaints that such representation was not considered and in effect was rejected. With the said grievance, the petitioner approached the Tribunal. The Tribunal had taken into consideration the fact that by the time the request for withdrawal of resignation was made, the letter of resignation was accepted. The Tribunal has also taken a note of conduct of the appellant during his tenure of service. From the record it appears that the petitioner was quite unwilling to perform his duties. 3
The learned Counsel appearing on behalf of the petitioner submits that as the petitioner made a prayer for withdrawal of his resignation before acceptance, the said authority could not have accepted the resignation and should have allowed the petitioner to withdrawn the resignation.
The learned Counsel has relied upon a decision reported in AIR 1987 SC 2354 (Balaram Gupta v. Union of India & Anr.). Although the said case relates to voluntary retirement but our attention was drawn to Paragraph 9 and it was contended that the voluntary retirement stands at par with the letter of resignation.
In our view, the said judgment does not assist the petitioner at all. In the said judgment, under the relevant rule notice of three months' was to be given by an employee and there has been withdrawal of notice well within the time prior to expiry of notice period. In the said case, the relevant rule permits voluntary retirement upon a notice being served of not less than tree months in writing to the appointing authority expressing his desire to retire from service and in a case where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. Under sub-rule (4) of Rule 48A prevents withdrawal of resignation letter except with the approval of the authority. In the said case, the Hon'ble Supreme Court was considering whether there was any valid reason for withholding the permission by the Government to allow such voluntary retirement. The appellant in the said case by a letter dated 24th December, 1980 expressed his desire to seek voluntary retirement on 31st March, 1981 and a request was made that the notice period may be treated with effect from 1st January, 1981. Before the expiry of the said period by a letter dated 31st January, 1981, the said appellant withdrew his notice on voluntary retirement. He gave certain reasons for allowing the petitioner to withdraw the said notice of voluntary retirement. The Union of India, however, did not take note of the said facts and passed an impugned order on 31st March, 1981 on the basis of his original letter dated 24th December, 1980. The Hon'ble Supreme Court after considering such factual aspect held that it could not be submitted that once notice was given, it became operative immediately if it was received by the Government and automatically brought about the dissolution of contract after expiry of the notice period. The dissolution would be brought about only on the date indicated that 31st march, 1981, upto that the appellant was and is a Government employer and there can be no unilateral termination of the same prior thereto.
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In this case, it is a case of resignation. The tenor of the letter is such that the petitioner wanted cessation of Master-Servant relationship with immediate effect, although the word "with immediate effect" was not specifically stated. Moreover, the offer of resignation once accepted by the respondent authorities prior to the letter of revocation of such order, the matter stands concluded and there has been a complete cessation of employer-employee relationship. The Hon'ble Supreme Court in the judgment reported in Bank of India Vs. O.P. Swanakar reported in 2003 (2) SCC 721 considered the aspect of "offer" and "acceptance" in deciding a case of voluntary retirement. The Hon'ble Supreme Court has referred to Anson's Law of Contract in Paragraph 87 of the said report which is reproduced hereinbelow:
"87. (a) Revocation of the offer.- The law relating to the revocation of an offer may be summed up in two rules: (1) an offer may be revoked at any time before acceptance, and (2) an offer is made irrevocable by acceptance.
(i) Revocable before acceptance. - The first of these rules may be illustrated by the case of Offord v. Davies:
D made a written offer to O that, if he would discount bills for another firm, they (D) would guarantee the payment of such bills to the extent of £ 600 during a period of twelve calendar months. Some bills were discounted by O, and duly paid, but before the twelve months had expired D, the guarantors, revoked their offer and notified O that they would guarantee no more bills. O continued to discount bills, some of which were not paid, and then sued D on the guarantee.
It was held that the revocation was a good defence to the action. The alleged guarantee was an offer, for a period of 12 months, of promises for acts, of guarantees for discounts. Each discount turned the offer into a promise, pro tanto, but the entire offer could at any time be revoked except as regards discounts made before notice of revocation." 5 Although it may be in the discretion of the respondent authorities either to accept or reject such letter of resignation but once such decision is taken, it is binding on both the parties. Moreover, as it appears from record that although the State is not required to reconsider the issue of withdrawal of resignation but, in fact, it appears that the said authorities have considered the matter and rejected such prayer. We feel the said authority was justified in doing so having regard to the conduct of the said respondent who was a Government officer. There cannot be any dispute that the appellant was unwilling from the day one of his service career.
We find no infirmity in the order under appeal. The State Government has assigned clear and cogent reason for accepting such revocation and we see no reason to interfere with the same. In view thereof we affirm the order passed by the West Bengal Administrative Tribunal. The appeal fails and the same is dismissed, however, there shall be no order as to costs.
Urgent xerox certified copy of this order, if applied for, would be given to the respective parties on usual undertaking.
(Sumen Sen, J.) I agree:6
(Ashim Kumar Banerjee, J.)