Rajasthan High Court - Jodhpur
Nuclear Power Corp.Of India Ltd vs Dr.(Major)Hari Singh Rathore on 25 September, 2008
Author: N P Gupta
Bench: N P Gupta
/1/
D.B.S.A.W.No.392 OF 2007
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
D.B.CIVIL SPECIAL APPEAL (WRIT) No.392 of 2007
NUCLEAR POWER CORP.OF INDIA LTD.
V/S
DR.(MAJOR)HARI SINGH RATHORE
Date of Judgment : 25th September 2008
PRESENT
HON'BLE SHRI N P GUPTA,J.
HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J.
Mr. M.S.Singhvi }, for the appellant.
Mr. Arun Bhansali },
Mr. P.S.Bhati, for the respondent.
BY THE COURT : (PER HON'BLE GUPTA,J.)
REPORTABLE This appeal has been filed by the appellant, to challenge the order of the learned Single Judge dated 07.3.2007, accepting the writ petition of the respondent, and holding, that the present appellant erroneously accepted the resignation of the writ petitioner, from service, and on that basis, allowed the writ petition, quashed the order dated 16.9.1992 (Annexure/15), accepting the resignation of the petitioner from service, and directing, the writ petitioner to be reinstated, in the service, with all consequential benefits.
The necessary facts are, that the petitioner was /2/ D.B.S.A.W.No.392 OF 2007 released from army, as a short service Commission Officer, and was selected on the post of Surgeon, and appointed by the present appellant, vide order dated 01.1.1990, then a corrigendum was issued on 11.7.1991 (Annexures/ 5 and 6).
We may notice here that in exhibit/ 5, the petitioner was offered appointment on the post of Surgeon, and vide exhibit/6, it was confirmed, that the petitioner has been appointed as Surgeon SO/SF. This SO/SF is Scientific Officer, and S.F. is the scale pay. It is then alleged, that the petitioner ought to have been fixed at Rs. 5100/- basic, on the basis of the LPC, issued by the army, then, it is alleged in para 8, that it was a custom and practice, in the RAPS hospital, to treat the senior most Dr. as Medical Superintendent, who besides his normal work, was to look after administrative, and financial aspect of medical wing. According to the petitioner, the petitioner being senior most medical officer on the day, he was appointed, as he was given highest salary, in the higher grade, in medical wing, being SO/SF, while all other doctors were appointed in the lower grade. It is then alleged, that this appointment of the petitioner was not liked by already working medical superintendent Dr. P.K. Sinha, and Dr. Srinivasan, and consequently on the day, the petitioner joined, the conspiracy was hatched to harass, humiliate and torture the petitioner, so that he is compelled to resign, and respondents Nos 3 to 6, wanted to precipitate a situation to throw away the petitioner, for various of reasons, cataloged in para 11, which included to work and report to Dr. P.K. Sinha being /3/ D.B.S.A.W.No.392 OF 2007 a lower grade officer, then Dr. Sri Nivasan's interest in bringing to Dr. Shringi from Madras to Rajasthan and so on. In that para, though the petitioner has purported to catalogue the reasons, on ground of which he was sought to be thrown out, but as a matter of fact, apart from the above, the petitioner has narrated only inconveniences and sufferings, that were being felt by the petitioner, in his job. Be that as it may. It is then alleged that Dr. P.K. Sinha was transferred on 10.6.1991, and the petitioner was made in charge of RAPS hospital, instead of making him medical superintendent, without financial powers, and it was on his representations, and on intervention of Managing Director, that vide order dated 20.9.1991, Ex./8, the petitioner was designated as medical superintendent. And then, in para 16, the petitioner has purportedly produced Ex/9 dated 14.11.1991, to contend that there is no post of Medical Superintendent in the corporation, and senior most amongst the specialist, is designated as Medical Superintendent. It is also alleged, that it was at a late stage, that due to intervention of managing director, that the petitioner was made Medical Superintendent, which was not liked by the respondents Nos 3 to 6, and thus, difficulties were created in his working. Then, the petitioner has cataloged day to day events of the difficulties and inconveniences, being faced by him. Then, it is alleged that since in view of the circumstances cataloged in the writ petition, it became difficult for the petitioner to work efficiently and discharging his additional duties, as Medical Superintendent, the petitioner, requested Shri T. S. V. /4/ D.B.S.A.W.No.392 OF 2007 Ramanan, to issue him a certificate, stating therein, that the petitioner is employed by the respondent, as Surgeon and Medical Superintendent, and his working and conduct is satisfactory, whereupon on 10.9.1992, a certificate Ex/12 was issued, wherein nothing was written about the working and conduct of the petitioner. The petitioner, thereupon, insisted to record remarks about the conduct and work of the petitioner, and also requested, that if the work and conduct is not satisfactory, Shri Ramanan may record, in adverse manner as well, but Shri Ramanan refused to write anything, in this matter, either bad or good. The petitioner then requested, that if the functionaries of the corporation do not like the petitioner to work as Medical Superintendent, he is ready to relinquish duties of Medical Superintendent, and would like to continue as Surgeon, as he has no ambition to work as administrator, and is also not interested in financial powers, and that the functionaries of the corporation are creating hindrances for him, and even refusing a token certificate, he submitted his resignation from the post of Medical Superintendent. A copy of this letter has been produced as Ex/13. The above pleadings with regard to Ex/13, are contained in para 20 of the writ petition, and it is this Ex/13, which is the precise document, on the basis of which, the entire controversy has reached upto to this stage.
Then it is alleged, that immediately after submission of Ex. 13, the petitioner has alleged to have proceeded on tour of thermal power Station, Tarapore. The /5/ D.B.S.A.W.No.392 OF 2007 tour programme has been produced as Ex. 14, according to which, after availing two days' leave i.e. 16 to 17, he was allowed to visit Bombay Head office, where he visited on 16.9.1992 to 18.9.1992, and met Dy. General Manager (P&I.R.) Shri R.P. Haran, and the Director Personnel Shri S.S. Dhillon, and requested to fix his pay, and provide him reimbursement of medical expenses, sanction HRA etc., who assured that problem would be sorted out very soon. Then, when the petitioner arrived on his duty on 19.9.1992, he came to know, that an order has been passed on 16.9.1992, whereby his resignation was accepted, and he was relieved from the corporation on 16.9.1992 in absentia, a copy of this order has been produced as Ex. 15, and vide order dated 16.9.1992, one Dr. Anklesaria was posted as Medical Superintendent. Then the petitioner submitted a communication to the Managing Director on 19.9.1992, conveying that he has only resigned form the duties of Medical Superintendent, and not from his substantive post of Surgeon. His letter dated 12.9.1992 has been wrongly interpreted by Shri Ramanan, and he has deliberately forwarded it to higher authorities, showing it to be the resignation from the corporation. These representations are produced as Ex/16 and Ex/17. Since no action was taken, then on the same day, he addressed another communication to Chief Superintendent RAPS, Ex/18, whereby he sought to withdraw his latter dated 12.9.1992. Then it is alleged, that the petitioner was neither communicated anything, nor he was allowed to work, and that, the stand of the corporation about reliving the petitioner, from 16.9.1992, is not supported by the facts, /6/ D.B.S.A.W.No.392 OF 2007 as he was on approved tour programme, and that at the time, when he submitted withdrawal of resignation, it is clearly established from the document, that he was serving the corporation. The corporation also cleared the bill in respect of his tour programme, up to 16.9.1992.
Then, in para 29, it is narrated, that according to a condition of service, the petitioner can be terminated after serving one month's notice, or on payment of wages for the notice period, in lieu of the same. The same condition applies in the case, where the employee wants to resign form his service, while in the present case, acting in hot haste, ignoring the condition, the resignation has been accepted, and communicated, even without disclosing as to who, in fact, has applied his mind, in accepting the resignation.
Thus, the acceptance of resignation is nothing but to harass the petitioner, and to misuse the administrative power by the corporation. It is also alleged that there was nothing to show, as to whether the competent authority applied its mind in accepting the resignation or not? It is also contended, that the employee serving in the cadre, in which the petitioner is serving, can be terminated only by the chairman. While according to the respondents, it was accepted by Shri Srinivasan, Chief Engineer (Commission), who was not having any jurisdiction. With narration of these facts, the action of the corporation is challenged, by pleading various grounds, which are more or less repetition of the /7/ D.B.S.A.W.No.392 OF 2007 pleadings already taken.
Reply has been filed on behalf of the respondents, to the writ petition, raising certain
preliminary objections, to the effect, that the petitioner has based his case on alleged malafide intention against various officials of the corporation, who have not been impleaded as party respondent, in absence of whom, the averments cannot be examined. Then giving para wise reply, it was contended inter alia, that the order dated 01.1.1990 was merely offer of appointment. It was admitted that the petitioner was fixed in the pay scale of Rs. 4500-5700, which appointment was accepted, and the petitioner joined the service, while he should not have accepted the appointment, if the pay scale was not acceptable to him. It is alleged, that the representation regarding fixation was duly replied, being AnnexureR/1 dated 16.1.1992. The claim of the petitioner, being senior most was denied, contending that on joining of the new post, the petitioner cannot claim to be senior most doctor, on the very first day, and that since Dr. P.K. Sinha was already working as medical superintendent, there was no question of making the petitioner as Medical Superintendent, immediately on his joining, as he was having no experience of administration, or knowledge, about the work in the new hospital.
Then replying averments of malafides, it is contended, that Srinivasan was one of the member of the selection committee, and as such, if there had been any /8/ D.B.S.A.W.No.392 OF 2007 conspiracy against the petitioner, then his appointment would have been opposed, instead of his being selected.
Since doctor P.K. Sinha was already working, there was no reason for them to harass the petitioner rather Dr. Sinha was subsequently transferred to Kakarpara unit of the corporation. It was also contended, that the names of the respondent No 3 to 6, as originally impleaded having got deleted by the petitioner, vide order dated 03.9.2006, as such allegations made against them cannot be examined. Then, allegations about the petitioner having been made as in charge of the hospital, instead of Medical Superintendent, without any power was denied, it was contended, that in charge of RAPS was having the same powers, as Medical Superintendent. Apart from the fact, that on the representation being made, he was designated as Medical Superintendent, with all powers, not only financial control, but also administrative control, over the hospital.
Then, replying para 16 of the writ petition, it is contended that it is not correct to say that senior most specialist has always been re- designated as Medical Superintendent, rather from time to time, medical officers have been made as Medical Superintendent, and Annexure/9 is one of them.
Then replying para 20, the crucial para, it is pleaded, that the petitioner compelled the Chief Superintendent to issue certificate, though as per /9/ D.B.S.A.W.No.392 OF 2007 practice, no certificate is required to be issued, as for the purpose of adjudging the performance and conduct, ACRs are submitted by the competent authority. However, as the petitioner insisted, the certificate was issued, which has neither any legal sanctity nor any value. It is also pleaded, that when the petitioner was appointed, Dr. Sinha was working as Medical Superintendent, and on his being transferred, the petitioner was re-designated as Medical Superintendent, in such circumstances, there was no reason, as to why the certificate was required, by the petitioner, regarding his performance.
It is also alleged, that if the respondents were annoyed with the petitioner since his appointment, then petitioner would not have been made, either in charge, or Medical Superintendent, as immediately after transfer of Dr. Sinnha, petitioner was re-designated, as Medical Superintendent. Rather, it was due to typical attitude of the petitioner himself, that he started creating problems for himself, as well as, for the patients, who also had complaints against the attitude of the petitioner. It is pleaded that in such circumstances, the resignation, cannot be said to have been made at the hindrance of the respondent, or as a result of hindrance, created by the respondents, and if, the petitioner has resigned, then after its acceptance, he has no right to remain in duty or in service.
Then replying para 21, it is pleaded, that mere submission of the resignation does not mean the end of / 10 / D.B.S.A.W.No.392 OF 2007 service, unless the same is accepted. On 12.9.1992, the resignation was tendered, and was accepted subsequently, therefore in the intervening period, if the petitioner was allowed to visit Tarapur and Bombay Office, then, the same is of no significance. More so when tour programme was submitted by the petitioner, much prior to submitting resignation, which programme had already been approved. Likewise for the same reason, his visit to Bombay and meeting the higher officers is also of no consequence, however, the facts regarding meeting with the Dy. General Manager and Director ( Personnel )were denied.
Then replying para 23, it was pleaded that the competent authority has accepted the resignation, and information of the acceptance was communicated to the petitioner, and alleged that in this para date alleged is not correct.
Then regarding Dr. Anklesaria's posting, it was pleaded that he has not been impleaded as party, apart from the fact that once the petitioner has resigned, he cannot have concern with the appointment of any other medical officer, as Medical Superintendent. Then it is pleaded that the petitioner on his own volition submitted resignation, from the post he was holding, at the relevant time. It is also contended, that the stand, that the petitioner had only resigned from the post of Medical Superintendent, and not from the post of Surgeon, would only mean, that a feeble attempt is being made on the part of the petitioner to confuse the issue and gain mileage.
/ 11 / D.B.S.A.W.No.392 OF 2007 What is relevant is, that on 12.9.1992, the writ petitioner submitted a letter, clearly indicating intention to resign, which has been accepted, and he was relieved from his duty. Thus, it is totally wrong to contend, that the letter dated 12.9.1992 was misinterpreted. It is contended, that it is the contents of the resignation letter, that need to be looked into, and letter dated 12.9.1992 was a document, expressing clear intention of the petitioner, to determine a contract of the employment, with the corporation, which has been accepted by the competent authority. It was contended, that it was wrong to contend that Ex. 15 and 16 were not communicated to the petitioner, as without communication, petitioner could not possibly annex the copies thereof. It is pleaded that as a matter of fact, the petitioner refused to accept the letters and then the same were sent at his home address. It is pleaded that in fact the whole story behind the curtain is, that the petitioner had never expected that the corporation would accept his resignation. When the petitioner learnt that it has been accepted, then he tried to cook up stories, and tried to read in between the line of the resignation letter. Otherwise, from perusal of the resignation letter, it is clear, that the petitioner tendered resignation, not only from the post of Medical Superintendent, but also, from any post, which the competent authority did not like, or the petitioner is found unfit. Thus, it is clearly revealed, that it was resignation from the corporation, and once it has been accepted, the petitioner cannot be allowed to make up new story.
/ 12 / D.B.S.A.W.No.392 OF 2007 Then, regarding the petitioner's performing duties upto 19.9.1992, it is contended, that he was on tour programme attending the workshop at Tarapur; tour programme has been of 14 and 15, and he availed casual leave on 16 and 17, thus, the contention about his being on tour, for the entire period from 12 to 19 is not correct. Regarding signature in attendance register, it was contended, that the signatures are not admitted, and so called signature does not mean, that the employee is serving, the attendance register was available in office, and he might have signed the register un-authorisedly, or with malafide intention. It was pleaded, that very fact the petitioner got the register photocopied, and produced after the period of 14 years, establishes the above intention. Then, regarding the contention about the petitioner having not been relieved, it is pleaded, that from the communications of the petitioner himself, being application dated 05.1.1993, for final withdrawal of the PF, and application dated 29.4.1993, for withdrawal of CPF and interest etc., it is clear, that the petitioner was relieved on 16.9.1992. These applications have been produced as Annexures R/3 and R/4. Then, regarding clearance of bills of tour programme, it was contended, that he was considered to be on duty on 15.9.1992 only, and accordingly, his salary, bonus and LTC payment was settled up, and Ex. 20 is self prepared document. The calculations sheet, in respect of the payment made, to the petitioner have been produced as Annexure R/5, and register as Annexure R/6. Then, it is pleaded, that it is / 13 / D.B.S.A.W.No.392 OF 2007 settled legal position that once the competent authority has accepted the resignation, it is not open for the petitioner to withdraw it, as the relationship of employee and employer, comes to an end, and it came to an end in the present case on 16.9.1992, as such representation dated 19.9.1992, is of no consequence. Then, replying to para 29, regarding terms of contract, it was pleaded, that terms mentioned in the 'Offer of appointment' relates to termination by the employer, however in case the employee wants to relinquish his job, by way of resignation, or on any other pretext, then there is no such requirement of any notice, as assumed by the petitioner, as there is no such stipulation, contained therein. It was denied that there was any haste on the part of the appellant. The resignation was submitted on 12.9.1992, and it was forwarded to competent authority, for acceptance, who accepted, and acceptance was communicated on 15.9.1992, and relieving order was issued on 16.9.1992. Regarding application of mind, the allegation was denied, and it was contended, that the competent authority, has accepted his resignation. Regarding plea said to have been taken by the corporation, about having admitted that the resignation was accepted by G.R. Srinivasan, it was contended, that as a matter of fact, in the reply to the writ petition, it was pleaded, that the third respondent accepted the resignation, and relieved the petitioner, from the duties, and in the same para, it was clarified, that on acceptance of resignation, the same was forwarded by Chief Superintendent, to the higher officials at Bombay Office, as the Chief Superintendent was not competent to / 14 / D.B.S.A.W.No.392 OF 2007 accept the resignation, All the relevant papers, along with the noting of the dealing officers, were put up before the competent authority, for consideration, and the competent authority was pleased to accept the resignation. Thus it was contended, that the reply was misinterpreted. Thereafter, it is also pleaded that the petitioner himself tendered resignation on his own, which cannot be challenged, on any ground, whatever, and it has already been clarified, that once the petitioner has resigned from the post, it cannot be said, that he should be given other post of Surgeon.
It was also contended, that the petitioner never indicated, nor requested, to be resigning from the post of medical superintendent, nor offered to be allowed to continue to work as Surgeon. It is pleaded, that in the Ex. 13 the petitioner clearly mentioned, that he resigns from the post of Medical Superintendent, or any other post. Resignation is complete in itself, and on its acceptance, the petitioner is not entitled to any relief whatever. It is also submitted, that once the petitioner was designated as Medical Superintendent, and if he resigns, then it cannot mean, that the resignation is not from service, rather it clearly means to be resignation from the service. The subsequent representations are clearly pleaded to be after thought. It was reiterated, that the clear mention of the word "I have no right to remain as Medical Superintendent or any post" does make it clear, that the petitioner resigned from the post of Medical Superintendent or any other post, and it is not / 15 / D.B.S.A.W.No.392 OF 2007 correct to say, that he merely desired to relinquish the job of Medical Superintendent, and wanted to continue as Surgeon.
The petitioner filed rejoinder mainly reiterating the original pleadings. However, regarding deletion of names of respondents No 3 to 6, it was pleaded, that in view of fact, of their non holding of the post, or their superannuation, their names were deleted, and hence, their absence is of no consequence. It is also pleaded, that the petitioner was holding the additional charges of post of Medical Superintendent, apart from the post of Surgeon, and that, the two posts are clearly different posts, and resignation was with respect to relinquishing the duties, as Medical Superintendent, which does not mean, that the petitioner submitted his resignation, from the post of Surgeon also, or also from service. It was reiterated, that offer of appointment clearly incorporated a condition, that one month's notice would be necessary, in case of termination of employee, is a condition for both, the employer and the employee.
Learned Single Judge noticed, that though several grounds are raised by the learned counsel for the petitioner, to challenge the impugned act, but the learned single judge confined himself to first contention only, as he felt convinced, that it is sufficient to redress the grievance of the petitioner.
The first contention has been noticed, being that / 16 / D.B.S.A.W.No.392 OF 2007 letter of resignation, was wrongly interpreted by the corporation, as the petitioner, by the said letter, intended to resign from the work of Medical Superintendent, and not form the post, held by him, being of Surgeon SO/SF. It was emphasized, that the petitioner was appointed as Surgeon So/SF, and was instructed to look after the work of Medical Superintendent, being senior most Surgeon, and that, even from reading of the resignation dated 12.9.1992, it is clear, that the reason for which the petitioner was to get himself disassociated with the work of Medical Superintendent, only and then appreciating this contention, it was found, firstly that from a reading of resignation letter, it is clear, that the petitioner was much aware of the difference between Medical Superintendent and Surgeon SO/SF, and has nowhere stated, that he wants to resign from the post of Surgeon So/SF, which clearly shows, that he was having intention to get himself relieved, from the work of Medical Superintendent, while continuing as Surgeon SO/SF.
The other thing, which has been found is, that the resignation letter was not addressed to the competent authority, but to Chief Superintendent, which clearly establishes, that no resignation from service was submitted by the petitioner, and the corporation mis- communicated. The other thing found is, that the entire action was taken in a hot haste as the resignation was sent by fax, to the competent authority, on the same day, without expressing the real intention and implication of the letter concerned, and the resignation was accepted / 17 / D.B.S.A.W.No.392 OF 2007 from service, and ordered to relieve the petitioner from duties. In the opinion of the learned Single Judge, the competent authority should have waited, at least to get the original document, inter-alia, with this conclusion, the impugned order has been made.
Assailing the impugned order it is contended, that the learned Single Judge has proceeded on fundamentally wrong assumption. It is contended, that the resignation inherently means to resign from service, or in other words, to sever the relationship of employer and employee. It cannot be from a post only, with continuance of service. Substantiating this argument, it was contended, that as a matter of fact, the petitioner was not holding two posts, being that of Surgeon SO/SF, and that of Medical Superintendent, rather he was re- designated as Medical Superintendent, with the result, that the assumed two posts were merged into one, and he became Medical Superintendent. It is not a case where, he was getting salary of Surgeon SO/SF, and was also receiving certain additional salary, allowance, or perquisites, of Medical Superintendent, so as to show the survival of two posts together, making it possible for the petitioner to contend that the petitioner was holding two posts, and out of them, he relinquished, or resigned, from one only. Since with re-designation, the petitioner continued to hold only one post, from which he resigned, that resignation could not have the effect of re-emergence of the merged post, or to bring into existence the post, which existed before re-designation. It was contended, / 18 / D.B.S.A.W.No.392 OF 2007 that even according to the petitioner, Medical Superintendent is not independent cadre, or post, but is only re-designation. Thus, the learned Single Judge proceeded on basic conception, about there being two posts. Then it was contended, that the learned Single Judge has further erred in accepting the contention, regarding resignation letter dt. 12.9.1992 having not been addressed to the competent authority. According to the learned counsel, it is nowhere the requirement, that resignation should be addressed to the competent authority. In the present case, the resignation was forwarded by the recipient to the competent authority, and it was the competent authority, who accepted the same without any mis-interpretation of the resignation. It was then contended, that much has been said, and assumed, by the learned Single Judge, on the basis of so called haste in acceptance of the resignation. It was contended, that there was no extra-ordinary haste, employed by the appellant, and in any case, even if any prompt action is taken, that cannot be decried on the assumption of haste. There is no requirement that the competent authority, either should have waited for the receipt of original resignation letter, or to have applied its mind, in the manner, and for the purpose, as intended to be contended. Thus, the impugned order is clearly bad. Then elaborating the argument, it was submitted, that as is clear from the pleading in the writ petition, and various Annexures, annexed with the writ, that the petitioner was feeling the atmosphere prevailing to be bad, and if his attempts to reverse the atmosphere, to suit his temperament did not / 19 / D.B.S.A.W.No.392 OF 2007 yield any result, and on that count, if the petitioner submitted resignation, it cannot be said, that he did not tender the resignation from the service, and submitted the resignation from the particular post only. According to the learned counsel, whatever be the reasons, on account of which the petitioner felt persuaded, or stood advised, to submit resignation, and even if the petitioner happens to recite some of them in the resignation letters, the resignation does not cease to be resignation, and once it is accepted, it is not open to the employee to withdraw it thereafter.
It was submitted, that it clearly appears from the averments of the writ petition, that right from the day one he joined, the petitioner was not feeling comfortable with the job. Though he has alleged the existence of conspiracy, since the day he joined, but then the allegation of conspiracy is writ large false, as some of the persons, who are said to be the conspirators, are the persons, who have selected the petitioner. With this background, from the material on record, it is clear, that immediately after joining, the petitioner started creating problems for himself. He has claimed fixation of pay, then claimed designation, and when all of these were given, still he was not satisfied, and desired to quit, and in that sequence, he submitted the resignation. It is pointed out, that a look at the resignation letter Ex.13, makes it clear, that he has signed it as Surgeon, and not as Medical Superintendent, which was a deliberate act on the part of the petitioner, to confuse the things, seeking to / 20 / D.B.S.A.W.No.392 OF 2007 contend to be resigning as Medical Superintendent, a re- designated post, and signing as a Surgeon. Then he submitted his resignation, and on that very day, he proceeded on tour, and then submitted representation on 19.9.1992, signing as Medical Superintendent. Even if the petitioner's stand, for the sake of arguments, were to be considered, then, when he had resigned from the post of Medical Superintendent on 12.9.1992, which resignation has been accepted, it was in his knowledge, and there was no occasion for him to submit the representation on 19.9.1992, as Medical Superintendent. The petitioner very well claims to be aware of the distinction between Medical Superintendent and Surgeon. Likewise, it was also contended, that the petitioner was frustrated with the job, even to the extent, that he communicated, that the Officers in the establishment, are medically sick, and are required to be examined by psychiatrist. All these actions clearly show, that he did intend to, and as a matter of fact did, resign from the service.
It was also contended by the learned counsel, that the resignation was duly forwarded to the competent authority, and it was the competent authority, who accepted the same, and consequent upon such acceptance, the petitioner was relieved; merely because the petitioner chose to withdraw the resignation, before being communicated the acceptance of the resignation, it does not have any effect. It cannot be said that the resignation did not come into effect, leaving any right available to the petitioner, to withdraw the resignation, / 21 / D.B.S.A.W.No.392 OF 2007 once accepted.
Then, in the alternative it was contended, that even if for any reason, this Court comes to the conclusion, either, that Ex.13 does not constitute resignation from the post of Surgeon, or that, it is not valid resignation, or that it has not been accepted by the competent authority, and thus, for all, or any of the reasons, the action of the appellant, is found to be unsustainable, even then, the petitioner is not entitled to the relief, as granted by the learned Single Judge. In this regard, it was contended, that the petitioner's conduct, right from the date of acceptance of resignation, had been such, which clearly disentitles him to any relief of reinstatement, or even the emoluments for the back period, and in any case, instead of reinstatement, at the most, he may be awarded some lump sum cash compensation. In this regard it was contended, that the resignation was accepted on 15.9.1992, then representation was submitted by the petitioner on 19.9.1992 and then of course, the writ petition was filed on 26.9.1992. But then what is significant to note is, that the writ petition was filed in a court having no jurisdiction to entertain the same, inasmuch as, despite the writ being required to be filed before the Principal Seat, it was filed at Jaipur Bench. Then vide order dt. 21.5.1997, the writ petition was transferred to the Principal Seat, with a clear and positive direction to the parties, to appear before the Principal Seat at Jodhpur on 10.9.1997. Notwithstanding, that the petitioner did not appear on 10.9.1997, and when / 22 / D.B.S.A.W.No.392 OF 2007 the matter came up before the Court on 10.9.1997, nobody appeared on behalf of the petitioner, and the Court, instead of dismissing the writ petition, only showed benevolence, and ordered the matter to be listed, as and when the parties make an application, and then, the application came to be filed by the petitioner, as late as on 28.3.2005 only. Thereafter, the matter was taken up, and the matter was heard. Then the petitioner sought permission to amend the writ petition, which prayer for amendment was allowed on 20.9.2006, and the matter thereafter was heard. Thus, for good long 13 years, the matter was not pursued by the petitioner. Then certain other aspects were pointed out, inasmuch as, the writ petitioner had tried to explain out this delay, which explanation has been controverted, and in that regard, contradictory affidavits have come to be filed on side of the petitioner himself, which contradictions were highlighted. With this, it was submitted, that now the petitioner is on the verge of attaining the age of superannuation, and the employment being not pensionable, at the best, the petitioner could be awarded some lump sum cash compensation. Then it was contended, that during the interregnum period also, the petitioner was gainfully employed, as has been noticed by the Division Bench, in the detailed order dt. 20.7.2007, passed while admitting the appeal, and disposing of the stay petition, wherein the contents of the affidavit filed by the petitioner were recapitulated, and from that, it was sought to be contended, that it is clear that the petitioner was gainfully employed, and at the same time, the extent of / 23 / D.B.S.A.W.No.392 OF 2007 gainful employment is not to be calculated on mathematical basis, so as to require gainful employment, yielding an income equivalent to, or in close proximity of, the income being earned from the employment in question, and since he was gainfully employed, therefore also, is not entitled for back emoluments.
Then one more argument was submitted, that after acceptance of the resignation, the petitioner, by moving applications, has received all amounts, which were payable to him, on account of his resignation having been accepted, and the employment having come to an end thereby, and to have received the amount, rather without any protest, as such the petitioner is estopped from maintaining the writ petition. Learned counsel invited our attention to the various applications filed by the petitioner in this regard.
Learned counsel relied upon various judgments of Hon'ble Supreme Court on different aspects, being as under:-
J.K. Cotton Spinning and Weaving Mills Company Ltd. vs. State of U.P. & Ors., reported in (1990) 4 SCC page 27; North Zone Cultural Centre & Anr. Vs. Vedpathi Dinesh Kumar, reported in (2003)5 SCC 455; Post Graduate Institute & Ors. vs. Dr. J.B. Dilawari, reported in AIR 1988 SC, 1348; Chairman & MD, BPL Ltd. Vs. S.P.Gururaja & Ors., reported in 2003(8) SCC 567; A.K. Bindal & Anr. vs. Union of India, reported in 2003 (98) Factory and Labour / 24 / D.B.S.A.W.No.392 OF 2007 Reports page 1; North East Karnataka Road Transport Corporation vs. M. Nagangouda, reported in AIR 2007 SC page 973; General Manager, Haryana Roadways vs. Rudhan Singh, reported in (2005)5 SCC page 591; Kendryia Vidyalaya Sanghathan & Anr. Vs. SC Sharma, reported in 2005(2) SCC 363; O.P. Bhandari vs. Indian Tourism Development Corpn. Ltd. & Ors., reported in (1986) 4 SCC
337.
Then reliance was placed on the judgment of this Court, being Om Prakash vs. Hindustan Petroleum Corporation Ltd. & Ors., reported in 2008(1) RLR, page 408, and an unreported judgment of Division Bench of this Court dt. 2.11.2007, rendered in D.B. SAW No. 847/2007, whereby aforesaid judgment was affirmed.
On the other hand, learned counsel for the writ petitioner contended, that it is not a case of resignation as such, but it was only a communication, addressed in sequence of Ex.10, Ex.11 and Ex.11-A, conveying the stress and anguish. It was also contended, that the requirement is, that resignation should be unconditional, while the question required to be considered, in the present case is, as to whether the Ex.13 is a resignation at all.
On being asked, as to what are the legal provisions, governing the subject, it was submitted, that as such there was no legal provision, and some guidance can be sought only from Rule 26 of the Central Civil Service (Pension) Rules, 1972. Then relying on Ex.9 dt.
/ 25 / D.B.S.A.W.No.392 OF 2007 14.11.1991, available at page 128 of the paper book, it was contended that Ex.9 dt. 14.11.1991 does give list of posts in RAPS, which list does not include the post of Medical Superintendent, and at item No.1, there is only one post of Surgeon. Then document available at page 129, being part of Ex.9 itself, shows that senior most amongst the specialist is to be designated as Medical Superintendent. The petitioner was the senior most Scientific Officer in Grade SF (SO/SF) and he was re- designated as Medical Superintendent on 20.9.1991. It was contended that, earlier documents, which have been sought to be relied upon by the appellant, to show, that the petitioner was not satisfied with atmosphere, which made him resign, are, according to the learned counsel for the writ petitioner, required to be seen for the purpose of ascertaining the intention of the petitioner, as to whether, it was ever the intention of the employee to sever the relationship, and if so, to what extent, and in that background, Ex.11 (dt.28.5.1992) was relied upon, wherein, it was given out by the petitioner, that he will love to work as Surgeon, else, he would be committing professional suicide by wasting most of his time and energy in administrative work, and it was contended, that this unmistakably makes it clear, that the petitioner was in frame of mind, to get relieved of the administrative work only, and as such, the Chief Superintendent was conveyed to have any other person, as Medical Superintendent. Then it was contended, that of course, the post of Surgeon was itself re-designated as Medical Superintendent, but then, thereby the post of Surgeon was / 26 / D.B.S.A.W.No.392 OF 2007 not abolished, or changed. Learned counsel highlighted the duties of Medical Superintendent, and submitted, that even vide Annexure-11-A, the petitioner had requested to change the Medical Superintendent.
Then coming to the Ex.13, the crucial document, the resignation itself, it was contended, that in the subject of the communication, it is clearly mentioned to be resignation from the post of Medical Superintendent. Then by reading the contents of this communication, it was contended to be conditional, and to be simply ventilating the grievances of the petitioner, so also, to be in continuation of the preceding three letters, being Ex.10, Ex.11 and Ex.11-A, wherein he had conveyed to be to love to work as Surgeon, and by this Ex.13, purported to resign from the post of Medical Superintendent. Learned counsel, in this regard, relied upon the judgments of the Hon'ble Supreme Court, in P.K. Ramachandra Iyer vs. Union of India, reported in (1984) 2 SCC 141, which was followed by Hon'ble Supreme Court in Dr. Prabha Atri vs. State of U.P. & Ors., reported in (2003) 1 SCC, page 701.
Then replying to the arguments about conduct, it was contended, that contention of conduct is required to be bifurcated in two parts: The first being the conduct, while in department, and second being in pursing the litigation. Then it was submitted, that so far as the conduct of the petitioner, while in department is concerned, that cannot be looked into, for the simple reason, that for that, if the Corporation so thought / 27 / D.B.S.A.W.No.392 OF 2007 appropriate, disciplinary action could have been taken against him, but no departmental enquiry whatever ever initiated, and therefore, that cannot be looked into in the present writ petition, for the purpose of adjudicating upon the construction of Ex.13, the resignation letter, and/or upon the validity of action of the Corporation, in accepting the resignation. It was contended that no pleading has been taken in the writ petition, with regard to the conduct of the petitioner, while in service.
Then regarding conduct during litigation, it was contended, that the petitioner immediately approached the Court on 26.9.1992 itself. Then from the material on record, it is clear, that the case was listed in the Court on 10.7.1997, then even in the reply to the amended writ petition, which was submitted on 10.11.2006, no pleading has been taken about any conduct on the part of the petitioner in delaying the litigation. It was also contended that diligent pursuit of litigation is not defined anywhere, nor is possible to define, and simply because the litigation takes some time, it cannot be pressed into service as negative factor, to deny the benefits of the past period, to the petitioner.
It was also submitted that the petitioner was on tour, under the previously approved tour programme, and while so being on tour, the resignation was sent by the Chief Superintendent by FAX, it was immediately accepted, which was clearly an action taken in hot haste, and cannot be described to be merely an act of promptitude.
/ 28 / D.B.S.A.W.No.392 OF 2007 Then it was contended, that the resignation has not been accepted by the competent authority, and the order of acceptance of resignation, by the competent authority has not been placed on record, despite the fact, that the Court desired it to be produced, but it was not produced, and it was given out, that the record is not available. Then reference was made to Annexure-15 at page No.139, to show, that the telex message about acceptance of resignation, does not even correctly contain name of the petitioner, inasmuch, it mentions some R.S. Rathore, whose resignation has been accepted, while the petitioner is H.S. Rathore. Then an action in appointing Dr. Anklesaria, to function as Medical Superintendent, was also assailed by contending, that other senior persons were available. Then it was submitted, that the petitioner, on 19.9.1992, had clearly submitted a representation Annexure-17, pointing out that his letter dt. 12.9.1992 has been misunderstood and misinterpreted; and that, the petitioner had never resigned from the Corporation, nor was the letter addressed to the appointing authority, and then, vide Ex.18, it was clearly withdrawn.
Replying the contention based on the ground of estoppel, it was contended, that the petitioner had only received the salary, allowance, DA, medical, bonus, LTC settlement and CPF, which was his own contribution, and even in Anenxure-R/3, the petitioner was paid terminal benefits, and not the retiral benefits, therefore, it does / 29 / D.B.S.A.W.No.392 OF 2007 not amount to estoppel. In the alternative, it was submitted, that even if under financial crunch, the petitioner felt it necessary to withdraw the amount, that cannot attract the principle of estoppel to non-suit the petitioner, in this writ petition. Reliance was placed on the judgments of the Hon'ble Supreme Court in Ramesh Chandra Sharma vs. Punjab National Bank & Anr., reported in 2007 (9) SCC, page 15 and Mahendra vs. Punjab and Sind Bank, reported in 2005 (12) SCC 747.
Then replying the arguments about the gainful employment, it was contended, that the petitioner has honestly made a clean breast of whatever he had received, and that does not show, that the petitioner was ever gainfully employed. The petitioner originally is from Bikaner, and even since before joining Army, his Chartered Accountant was from Bikaner, and therefore, he collected information from him and submitted, which cannot be said to be manipulated.
Then reliance was placed on the judgment of Hon'ble Supreme Court in Srikant S.M. vs. Bharath Earth Movers Ltd., reported in AIR (2005)8 SCC 314, wherein after considering the three previous judgments, Hon'ble Supreme Court has awarded full back wages.
Then re-enforcing the arguments, that resignation has not been accepted by the competent authority, it was contended that the competent authority, in case of the petitioner, is a Chairman, and the resignation has not / 30 / D.B.S.A.W.No.392 OF 2007 been accepted by the Chairman.
Then making some reference to order of Division Bench dt. 20.7.2007, wherein it was noticed, that admittedly, the petitioner has undergone the operation of cataract, it was submitted, that with the modern technology of cataract operation, the petitioner does not suffer handicap, rather now he has 6/6 vision. Inter alia, with this, the judgment of the learned Single Judge was supported.
In rejoinder, it was submitted by the learned counsel for the appellant, that quitting from the job is unilateral act of the employee. Regarding acceptance of the resignation, it was submitted, that the appellant has clearly pleaded in rejoinder to the reply of the appeal, in para 3, that the unconditional resignation submitted by the writ petitioner on 12.9.1992 was forwarded to the Corporate Office for its acceptance, and the then Managing Director of the Corporation, Shri S.L. Khatti accepted the resignation of the writ petitioner on 15.9.1992, and that the Director Personnel has informed the RAPS Authority, about the acceptance of the resignation by the Managing Director, who was competent authority to appoint and accept resignation etc. of Group-A Officers of the Corporation, and on receiving the communication from the Corporate Office, RAPS issued the relieving letter. Thus, it is clear that the resignation was accepted by the competent authority. Then on the aspect of the resignation, certain submissions were made, by referring / 31 / D.B.S.A.W.No.392 OF 2007 to some provisions, like section 62 of the Rajasthan Municipalities Act, the Panchayati Raj Act, Article 90 of the Constitution etc., to contend, that where it is desired, that the resignation should be in a particular manner, including, as to whether, it should be in own writing, or not, of a person resigning, and as to when, to whom, it is to be addressed, or to be delivered, and the period during which it can be accepted etc., different provisions have been made in the above provisions, but then, no provision has been made in the Corporation Establishment. As such, on the general principle, the resignation letter Ex.13, itself, has to be construed, and on being so construed, it is clear, that the petitioner intended to resign from the service, and to bring the employment to an end, had received every penny that became payable to him, consequent upon his employment coming to an end, and nothing more is claimed to be due. Then it was also contended, that the learned Single Judge had asked the petitioner to file additional affidavit, and that obviously was intended to obtain information from the petitioner, to enable the Court, to consider the question, as to what relief is to be given to the petitioner. From the affidavit so filed, it is clear, that the petitioner was gainfully employed, as such, the petitioner could not be awarded emoluments for the back period.
We have heard learned counsel for the parties, have gone through the various judgments cited at the bar, and have also gone through the entire bulky file of the petition, appeal, reply filed thereto, and the rejoinder / 32 / D.B.S.A.W.No.392 OF 2007 as well. However, we clarify, that without any permission of the Court, written arguments were filed by the parties, and we took a very serious exception thereof, and on 11.9.2008, they were specifically declined to be taken on record, and Registry was directed to return the said written arguments to the respected counsels. Obviously therefore, neither we are supposed to, nor did we, look into the alleged written arguments.
We did not get involved in the bulk and volume of the file, and in the first instance, concentrated on the core question involved in the matter, being as to whether the letter of the writ petitioner dated 12.9.1992, being Ex.13, amounts to resignation? If so, does it amount to resignation from the post of Medical Superintendent, so as to enable the writ petitioner to contend to be continuing as Surgeon? Thirdly, whether the resignation has been accepted by the competent authority, so as to validly bring to an end the relationship of employer and employee? In case the cumulative result of these questions goes against the writ petitioner, other questions need not be gone into.
On the other hand, if the cumulative effect of the answer to these questions goes in favour of the writ petitioner, then the next important question, for our consideration would be, as to what relief the writ petitioner is entitled to?
Taking up the first question, we first proceed to / 33 / D.B.S.A.W.No.392 OF 2007 consider the aspect, as to whether Ex.13, can be said to be amounting to resignation. At the outset we may observe, that so far as the present employer appellant is concerned, of course certain regulations have been framed, but then much later, and it is not in dispute, that at the relevant time, i.e. when the resignation of the petitioner was accepted, the matter was governed by the Rules applicable to Central Government Employees. In this regard we may rely upon and refer to Annex.R/11.
From that point of view, we looked into the provisions governing to Central Govt. employees, and the only provision we find is the one contained in Rule 26 of the Central Civil Services Pension Rules, 1972, which reads as under:-
"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.
(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies.
(3) Interruption in service in a case falling under sub-rule (2), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him.
(4) The Appointing Authority may permit / 34 / D.B.S.A.W.No.392 OF 2007 a person to withdraw his resignation in the public interest on the following conditions, namely:-
(i)that the resignation was tendered by the Government servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation;
(ii)that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper;
(iii)that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days;
(iv)that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available.
(5) Request for withdrawal of a resignation shall not be accepted by the Appointing Authority where a Government servant resigns his service or post with a view to taking up an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government.
(6) When an order is passed by the Appointing Authority allowing a person to withdraw his resignation and to resume duty, the order shall be deemed to include the condonation of interruption in service but the period of interruption shall not count as qualifying service.
(7) A resignation submitted for the
purpose of Rule 37 shall not entail
/ 35 /
D.B.S.A.W.No.392 OF 2007
forfeiture of past service under the
Government."
Thus, a reading of the above provision of Rule 26 makes it clear, that this is of no assistance to either side, either ways, and the matter rests in the realm of the basic and general law of resignation, as is required to be perceived, gathered, collected, and conceived, from other possible relevant material.
If considered from that standpoint, as submitted by learned counsel for the appellant, there are various provisions relating to mode, manner, contents of the resignation and as to how the resignation is to be prepared and signed under different legislations quoted above so also Article 217 of the Constitution, and what we find is that in all the above legislations, different phraseology has been used, different requirements have been prescribed, obviously therefore, it is clear that wherever a particular requirements are to be intended to be provided, they have been provided, and in the absence of any such provision, such requirements cannot be imported where they do not exist. Any otherwise approach would bring about an anomalous situation, obviously therefore, the different legislations make different provisions, which at times, may not be reconcilable, so as to be put in any one uniform straitjacket formula.
At this stage now we may refer to the
Constitutional Bench Judgment of Hon'ble the Supreme
/ 36 /
D.B.S.A.W.No.392 OF 2007
Court, in Union of India & Ors. Vs. Gopal Chandra Misra & Ors., reported in (1978) 2 SCC 301, where the Constitutional Bench considered the meaning of the term "resignation", and in para 24 and 25 held as under:-
"24. 'Resignation' in the dictionary sense, means the spontaneous relinquishment of one's own right. This is conveyed by the maxim :
Resionatio est juris propii spontanea refutatio (See Earl Jowitt's Dictionary of English Law). In relation to an office, it connotes the act of giving up or relinquishing the office. To "relinquish an office" means to "cease to hold" the office, or to "loose hold of" the office (cf. Shorter Oxford Dictionary); and to "loose hold of office", implies to "detach", "unfasten", "undo or untie the binding knot or link"
which holds one to the office and the obligation and privileges that go with it.
25. In the general juristic sense, also, the meaning of "resigning office" is not different. There also, as a rule, both, the intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see, e.g. American Jurisprudence, Second Edn., Vol.15A, page 80), although the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Thus, resigning office necessarily involves relinquishment of the office, which implies cessation or termination of, or cutting asunder from the office. Indeed, the completion of the resignation and the vacation of the office, are the casual and effectual aspects of one and the same event."
Then in para 112 of the same judgment certain propositions have been propounded, and one of the principle propounded is, that since in that particular case, the resignation did not require any acceptance as such, it was held, that resignation, once submitted, and / 37 / D.B.S.A.W.No.392 OF 2007 communicated to the appropriate authority, becomes complete and irrevocable, and acts ex proprio vigore, in absence of there being anything to indicate, that the resignation was to take effect from any future date. It was also held, that in such cases, resignation is purely unilateral act, and takes effect ipso facto, once the intention to resign is communicated to the competent authority, according to the provisions of the relevant Rules.
That being the position, we have to be guided by the definition of the term 'resignation' as contained in the law dictionaries and as considered by Hon'ble the Supreme Court in Gopal Chandra's case. In Gopal Chandra's case, the resignation letter clearly stipulated on the part of the person resigning, that resignation shall be effective on 1.8.1977, and that was construed by Hon'ble the Supreme Court to be merely an intention, or notice of the writer's intention to resign his office on a future date viz. 1.8.1977. Meaning thereby, that in absence of any provision for acceptance of resignation, or in absence of any provision about particular mode of giving resignation, or about the resignation to be required to be addressed to any particular authority, if the communication falls within the four-corners of resignation, it becomes effective, proprio vigore as soon as it is given.
Then we feel it better to quote the document in question, being Ex.13, as such, which reads as under:-
/ 38 / D.B.S.A.W.No.392 OF 2007 "CONFIDENTIAL To Shri T. S. V. Ramanan Chief Superintendent, RAPS Site.
Sub:- Resignation from the post of Medical Superintendent, RAPS Hospital.
Sir, You being my Superior officer, hesitated to give even a certificate that my work and conduct is satisfactory then I think morally I have no right to remain as Medical Superintendent or any post which you do not like or for which your feel I am unfit, Hence I am submitting my resignation from the post of Medical Superintendent RAPS Hospital.
Thanking You.
Yours sincerely.
Ad/- Dr. (Major) H.S.Rathore Surgeon SO/SF.
Dated. 12-9-92 RAPS Hospital."
Thus, from a reading of this Ex.13, it clearly shows, that it is intended to be a resignation, as the caption subject itself reads to be resignation from the post of Medical Superintendent, R.A.P.S. Hospital. Then the last sentence also reads "Hence I am submitting my resignation...". In our view, this last sentence of the communication does clearly show, and manifests, the complete and effective act of resigning the office. Much stress was laid by learned counsel for the writ petitioner on the basis of the judgment of Hon'ble the Supreme Court in Dr. Prabha Atri's case, to contend it to be not tentamounting to resignation, or in any case to be a / 39 / D.B.S.A.W.No.392 OF 2007 conditional one.
We may at once observe, that we are not inclined to accept the submissions that Ex.13 is in any manner conditional. The contents of the documents, which were read to us, narrating the incident of the Chief Superintendent having hesitated in giving a certificate about work and conduct to be satisfactory, and the incumbent feeling morally to be having no right to remain as Medical Superintendent, or any post, which is not liked by the Chief Superintendent, as the later feels the incumbent to be unfit, cannot be said to be putting up any condition, subject to fulfillment of which only, resignation was intended to be operative. This narration, is narration of only past events, which appears to have, or may have, contributed in the mental frame of the writ petitioner, to arrive at a decision to tender resignation. It is required to be grasped, that no employee would submit resignation only by the way. There must always be some reason working in the mind of the employee, or some reason at some time in the foregone past, or recent past, that should have worked in the mind of the employee to arrive at a conscious decision to submit resignation. Such reasons may be enumerable, to illustrate may be family circumstances, may be own health, may be his surrounding family atmosphere, may be surrounding availability and non-availability of certain relations, may be his disliking of certain other co-workers, or may be disliking his superiors, or the subordinates, or may be his not liking the job, or the job not providing him expected / 40 / D.B.S.A.W.No.392 OF 2007 level of job satisfaction, or the employee may not find the work place atmosphere to be conducive to his working, or the atmosphere might not have come up to his expectation, or the employee may be having in his vision some better alternative, and so on and so forth. It would obviously be a futile exercise on our part to venture to list such grounds, but then, this cannot be denied at all, that the initiation of move in the mind of the employee, and culmination whereof into a decision to tender resignation, is always an out come of certain facts, events, circumstances, or series of them, and in case, the employee chooses to catalogue them in the resignation, it would be too much to concede that such cataloguing of the events, facts or circumstances, which persuaded the employee to take the decision to tender resignation, makes the resignation conditional. So far as the judgment in Dr. Prabha Atri's case is concerned, the communication in that case is entirely different, inasmuch as, that was clearly conditional. The precise portion thereof has been quoted by Hon'ble the Supreme Court, which reads as under:-
"your letter is uncalled for and should be withdrawn. I have been working in this hospital since 10-5-1978 and have always worked in the best interest of the patients. It is tragic, instead of taking a lenient view of my sickness you have opted to punish me.
If the foregoing is not acceptable to you then I have no option left but to tender my resignation with immediate effect."
(Emphasis Supplied) Thus, in our view, the words used by the / 41 / D.B.S.A.W.No.392 OF 2007 expression "If the foregoing is not acceptable to you then ..." obviously did constitute a condition precedent for terming the communication as resignation. With all possible best efforts on our part, and by reading and re- reading this document Ex.13, any number of times, and very closely, we do not find any such condition, or any other condition, putting a condition precedent for rendering this communication to be a resignation. In that view of the matter, we have no hesitation in concluding, that this communication is very much a resignation.
So far as this resignation being addressed to the Chief Superintendent, and not being addressed to appointing authority is concerned, again we may observe, that where such requirement was intended to exist, about resignation being addressed to particular authority, specific provision to that effect has been made in the various legislations referred to above, but in absence of any such provision, in case of the appellant's establishment, we cannot import any such condition, at the pain of invalidating resignation.
So far as withdrawal of resignation is concerned, it has clearly been ruled in J.K. Cotton's case that under common law the resignation is not complete unless it is accepted by the proper authority, and before acceptance an employee can change his mind, and withdraw the resignation. But once it is accepted the contract comes to an end, and relationship of master and servant stands snapped. Then even the appellant while replying para 21 of / 42 / D.B.S.A.W.No.392 OF 2007 the writ petition, has pleaded, that mere submission of the resignation does not mean the end of service, unless the same is accepted. Thus in the case in hand the parties are ad-idem that the resignation was required to be accepted, and in the present case since according to the appellant the resignation has been accepted on 15.9.1992, the right to withdraw the resignation is claimed to have come to an end. Whereas the resignation has not been accepted by the competent authority, the communication withdrawing resignation is of much assistance to the writ petitioner, as his right to withdraw clearly survived.
Then the question arises, as to what is the effect of this resignation also, viz. as to whether by this, the writ petitioner resigned from the post of Medical Superintendent only, or it has the effect of resigning from the service, as such, resulting into severance of relationship of employee and employer?
Of course in the subject, it is mentioned that resignation from the post of Medical Superintendent, and the last sentence of the body of the communication also reads to be the petitioner submitting resignation from the post of Medical Superintendent, RAPS, Hospital, and much stress was laid by learned counsel for the appellant on the words "or any post" appearing in the body of the communication, forming part of the sentence "I have no right to remain as Medical Superintendent or any post, which you do not like or for which you feel I am unfit". But then, at least from the language of this document, it / 43 / D.B.S.A.W.No.392 OF 2007 is clear, that the petitioner purported to resign from the post of Medical Superintendent, while according to the appellant, the writ petitioner intended to sever relationship of employer and employee, and for that purpose, the appellant has highlighted the series of past events, right from the date of his appointment, till 12.9.1992, and has tried to show that right from day one, the petitioner was not satisfied with job and work place atmosphere, he was feeling that a conspiracy is hatched against him to remove him, or humiliate him, and for that purpose certain acts are alleged to have been done by the various employees of the appellant, and according to the submission of learned counsel for the appellant, those acts, events and circumstances, are not alleged to have been done against the petitioner, only as Medical Superintendent, but as an employee, and since feeling aggrieved, disgusted or frustrated from all of them, the petitioner submitted resignation, therefore, it cannot be said that the resignation was tendered only from the post of Medical Superintendent, with intention to continue in the job as Surgeon, rather it was another step of calculated trick, played by the writ petitioner, to keep the employer on tantor's hooks, and take advantage of the situation, as may suit the convenience of the petitioner, at a given point of time, and in given circumstances, but then, he cannot be allowed to take advantage thereof. On the other hand, according to the learned counsel for the writ petitioner, the petitioner was a qualified Surgeon, and was appointed as such, and since he was not feeling comfortable as Medical Superintendent, on account of / 44 / D.B.S.A.W.No.392 OF 2007 certain things, including financial and administrative powers, he had clearly expressed his intention vide Ex.11, that he would love to work as a Surgeon, otherwise he would be committing professional suicide, by wasting most of his time and energy in administrative work, and offered to be ready to handover the charge of Medical Superintendent, that day itself.
We have considered the aspects projected on the two rival sides.
Of course the attending circumstances culminating into tendering of resignation may be required to be looked into, and may be relevant for spelling out the intention of the person tendering resignation, but then, here there is one significant thing, which cannot be ignored, viz. that the writ petitioner was appointed as Surgeon, and on his representation, and according to the writ petitioner at the intervention of the Managing Director, he was re- designated as Medical Superintendent. The word re- designation is very significant, inasmuch as, with re- designation the original post gets merged, or converted, into the re-designated post. The two posts cease to continue to retain their independent identity, and existence. It is not the case of the petitioner either, that he continued to work as Surgeon, and was given additional charge of Medical Superintendent, much less that he was given any benefit for the additional charge, whether by way of additional pay, or additional allowances, or additional perquisites, or the like. It is / 45 / D.B.S.A.W.No.392 OF 2007 categoric case of the petitioner, as pleaded in para 13, that the petitioner submitted representation to the Managing Director, and other higher authorities, for all his troubles, for his proper fixation, timely grant of increment from appropriate date, and thereafter, because of intervention by Managing Director, an order was issued on 20.9.1991 (Ex. 8), by which the petitioner was designated as Medical Superintendent, and after the petitioner was made Medical Superintendent, no administrative and financial power was given, which was alleged to have been subsequently given. Then a look at Ex.8 shows, that thereby the competent authority had 're- designated' the writ petitioner as Medical Superintendent with immediate effect. Obviously distinction between the designation and re-designation is no less significant, perhaps for this reason, the petitioner has pleaded in para 13 of the writ, that he was designated, while as a matter of fact vide Ex.8 he had been re-designated. It is nowhere the plea, nor any order has been placed by the petitioner, to show, that he was given any additional charge of the post of Medical Superintendent. In that view of the matter, it cannot be said, that there were two posts subsisting together, being held by the petitioner, being that of the Surgeon as well as Medical Superintendent, nor is it the situation brought about, that by virtue of his re-designation as Medical Superintendent, his appointment as Surgeon got eclipsed, capable of being revived or reappearing, on the shadow of the post of Medical Superintendent being away. That being the position, even if it were to be assumed, that the / 46 / D.B.S.A.W.No.392 OF 2007 petitioner tendered resignation from the post of Medical Superintendent, that was the only post he was holding consequent upon Ex.8, the re-designation, from that date, and thus the resignation does have the effect of bringing to an end the employment, and severance of relationship of employer and employee. So far as Ex.11 is concerned, that is a matter of 28.5.92, to be precise, but then, pursuant thereto he did not hand over the charge of Medical Superintendent. In such circumstances, if after around 4 months, he submitted his resignation, and even without mentioning, that he continues to work as Surgeon, it cannot ipso facto have the effect of tentamounting to resignation from the post of Medical Superintendent only, and not from the service. It is a different story, as to whether, even if such clarification were to be made in Ex.13, it would have any consequence or not, but in any case, in absence of any such clarification, it cannot be said, in view of the above observations and conclusions, that his appointment as Surgeon revived, or reappeared, or continued.
Then the question comes up about acceptance of resignation by the competent authority. Since in the present case, the appellant has purportedly accepted resignation, and likewise the writ petitioner had also purportedly withdrawn resignation, it is of significance, as to whether the acceptance was by the competent authority or not?. In this regard, the case of the petitioner, as pleaded in the writ petition is in para 29 and 30 of the writ petition, and according to which, the / 47 / D.B.S.A.W.No.392 OF 2007 resignation could be accepted by the Chairman of the Corporation, the petitioner has referred to the earlier reply filed by the appellant, to the un-amended writ, wherein it is alleged, that it was admitted by the appellant corporation, that the resignation was accepted by Chief Superintendent. This plea of the petitioner has been replied by pleading that in the reply to un-amended writ, it has been pleaded, that on acceptance of letter of resignation, the same was forwarded by the Chief Superintendent to Corporate Office Bombay, as Chief Superintendent was not competent to accept the resignation, and that all the relevant papers along with the notings of the dealing officer, were put up before the competent authority for consideration, and the competent authority was pleased to accept the resignation, and thus, it was contended, that the resignation has been accepted by the competent authority. Then in para 22 of the rejoinder, it was pleaded, that in whole of the reply, the respondent has nowhere disclosed, as to who was the competent authority, while according to the petitioner, it was the Chairman, who was the competent authority, for according appointment, and accepting resignation, and any person below that rank could not accept the resignation. The learned Single Judge on this aspect did not dilate much, and proceeded on the basis, that the competent authority on 15.9.1992 itself, without examining the real contents, intent and implication of the letter, accepted the resignation of the petitioner. Thus, it is clear that the resignation was required to be accepted by the Chairman, or the Managing Director, in any case. Then we / 48 / D.B.S.A.W.No.392 OF 2007 find at page 86, being rejoinder of the reply to the appeal, in para 3, it is pleaded by the appellant, that the resignation submitted by the writ petitioner on 12.9.92 was forwarded to the corporate office for its acceptance, the then Managing Director of the Corporation Shri S.L. Khatti accepted the resignation on 15.9.92. The Director (Personnel) has informed the RAPS authorities about acceptance of the resignation by the Managing Director, who was competent authority to appoint, and accept the resignation of Group A officers of the Corporation, and upon receiving the communication from the corporate office, the RAPS authorities issued relieving letter.
During course of hearing, we desired from the learned counsel for the appellant, to make available for our perusal the original record about acceptance of resignation by the Managing Director, and thereupon it was given out, that the record is not traceable, and we were shown only a noting of the Director (Personnel), about his remembering, that the resignation was accepted by the then Managing Director Shri S.L. Khatti. This noting is of a date, much later than the controversy had not only arisen, but had reached much advanced stage, and looking to the time leg between the alleged acceptance of resignation by the Managing Director, and the date of the noting, it would be too much for us to believe the noting on the face value.
It is well-nigh possible that the person / 49 / D.B.S.A.W.No.392 OF 2007 concerned may not be remembering, and at the same time, it is equally possible, that the resignation may not have been accepted by the competent authority, and therefore, the record is not being produced before the Court, and this noting is only sought to be relied upon. Director (Personnel) is not shown to be the person, who was in any manner concerned with the matter. It is also not shown that there is any procedure for weeding out the record after a particular period of time, nor is it shown, that the record has been weeded out, and then, rather the writ petition had been filed, though at Jaipur Bench, immediately after the petitioner being relieved, taking the ground about acceptance of resignation, being not by competent authority, it was all the more reason for the appellant to have preserved the record, for being made available for perusal of the Court, if so ordered. In this background we recapitulate the plea taken by the present appellant in the reply to the un-amended writ petition, where it has been pleaded that the resignation was accepted by the Chief Superintendent. Though it has then been pleaded therein, that on acceptance of letter of resignation, the same was forwarded by the Chief Superintendent to Corporate Office Bombay, as Chief Superintendent was not competent to accept the resignation, and that all the relevant papers along with the notings of the dealing officer, were put up before the competent authority for consideration, and the competent authority was pleased to accept the resignation. We are confident, that we will not be erring, if we read the above plea in between the lines, and draw an inference, / 50 / D.B.S.A.W.No.392 OF 2007 that the resignation was accepted by the Chief Superintendent, and it is simply being put as a ruse, that after acceptance of the letter of resignation it was forwarded by the Chief Superintendent to the Corporate Office, where the competent authority accepted the same. Thus, all these circumstances, taken cumulatively make us infer, that it is well nigh possible, that the resignation has not been accepted by the competent authority.
That being the position, when the appellant purported to accept the resignation, and the writ petitioner seeks to withdraw the resignation, then the right of withdrawal can be forfeited, only if the resignation is accepted, or given effect to by the competent authority, before withdrawal, and since it is not shown to have been so accepted, or given effect to by the competent authority, the petitioner could not be said to be not entitled to withdraw the resignation, as done vide Ex.18.
Thus, the last question of the first group of questions framed, is required to be, and is, answered in favour of the writ petitioner, and against the appellant. At this stage, we may also examine the cases cited on behalf of either side, one by one.
In J.K. Cotton's case, learned counsel for the appellant has relied upon para-4 & 7. Para-4 deals with the aspect as to whether acceptance of resignation amounts to retrenchment within the meaning of Section 2(s) of the / 51 / D.B.S.A.W.No.392 OF 2007 Industrial Disputes Act, requiring the employer to comply with the other provisions of the Industrial Disputes Act, and it was held, that just as an employer has a right to terminate the services of an employee, an employee too has a right to put an end to the contract of employment, by informing his employer of his intention to give up the job. It has further been held, that where the employee makes his intention to resign his job to the employer, and the later accepts the resignation, the contract of employment comes to an end, and with it stands severed the employer-employee relationship. It has further been held, that under the common law the resignation is not complete until it is accepted by the proper authority, and before such acceptance an employee can change his mind, and withdraw the resignation, but once resignation is accepted, the contract comes to an end, and relationship of master and servant stands snapped. Then, in para-6 the meaning of resignation has been considered, and then in para-7 it has been held, that when an employee resigns his office, he formally relinquishes or withdraws from his office. It implies that he has taken the mental decision to sever the relationship with his employer and thereby put an end to the contract of service.
In our view the principles propounded in this judgment are not in dispute on either side. It is not a case where it might be claimed, that the acceptance of resignation amounts to retrenchment, entailing other consequences, and so far as the effect of resignation is concerned, we have already discussed in the foregoing part / 52 / D.B.S.A.W.No.392 OF 2007 of the judgment. However, this judgment supports our view, that under common law the resignation is not complete unless it is accepted by the proper authority, and before such acceptance an employee can change his mind and withdraw the resignation. In the present case, as we have found that it is not established that the resignation was accepted by the competent authority, and admittedly it was withdrawn. Thus, in a way this judgment supports the case of the writ petitioner, in view of what we have found above.
Then, in North Zone Cultural Centre's case attention was invited to para-14 onwards. In para-14 the Hon'ble Supreme Court has noticed, that from perusal of the judgment of learned Single Judge, it is seen, that he also accepted the statement in the affidavit of the Director of the Organisation that the resignation was accepted on 18.11.1988 but he held that it was communicated on 1.12.1988 only, and in the meanwhile the resignation was withdrawn, and this subsequent communication of withdrawal had become redundant. It is on this aspect, that earlier judgment of the Hon'ble Supreme Court in Raj Kumar's case (Raj Kumar Vs. Union of India reported in AIR 1969 SC-180) was considered. We are also of the same view, that communication of acceptance of resignation to the employee has no relevance, as the resignation becomes complete and effective, the moment it is accepted by the competent authority, and after it is so accepted it cannot be withdrawn. But then we reiterate, that before disentitling the employee from withdrawing the / 53 / D.B.S.A.W.No.392 OF 2007 resignation, it must be shown to have been accepted by the competent authority. While in the present case, we have already found above, that the appellant has failed to establish that the resignation was accepted by the competent authority.
Then, so far the judgment in Post Graduate Institute's case is concerned, that in our view has no bearing on the controversy involved in the present case, as there the aspect considered was, that quickness of action is not of adverse effect unless it is malafide. In the present case, we are not deciding in favour of the employee the writ petitioner on the ground of haste, therefore, this judgment need not detain us.
Likewise is the effect of the judgment in Chairman & MD, BPL Ltd.'s case. Therefore, that judgment also need not detain us.
We at this stage also refer to the judgment of the Hon'ble Supreme Court in Srikantha S.M's case cited by the learned counsel for the writ petitioner. In that case on acceptance of resignation, the employee was informed, that he would be relieved by the close of working hours of the day immediately next to the expiry of the casual leave period, but before that date employee withdrew his resignation. The legal proposition flowing therefrom is not in dispute, and we also found that since the appellant has failed to establish that the resignation has been accepted by the competent authority, and the employee / 54 / D.B.S.A.W.No.392 OF 2007 having withdrawn the same, the action of removal has been found bad. Thus, this judgment also need not detain us.
On the other hand, the judgment relied upon in this regard on the side of the writ petitioner, is that in Dr. Prabha Atri's case, which we have already discussed in the earlier part of the judgment, and therefore, need not discuss it over again here.
Thus, even after considering the judgments cited at the Bar on the either side, we maintain our conclusions, that first part of the question framed by us, for decision of the appeal, which arises in this litigation, is answered in the manner, that Ex.13 is resignation, and had the effect of putting to an end the employer-employee relationship, but then, it is not established to our satisfaction, that the resignation was accepted by the competent authority, before the petitioner addressed the communication Ex.18, whereby he had withdrawn the resignation. Thus cumulative answer to the set of questions is, that the action of the appellant in relieving the petitioner is bad, and he continues to be the employee.
Then, before proceeding to consider the second question framed, it is necessary for us to deal with the submissions made on behalf of the appellant, on the aspect, about the writ petitioner being estopped from challenging the action in the present writ petition, on account of his having withdrawn the terminal benefits.
/ 55 / D.B.S.A.W.No.392 OF 2007 Learned counsel for the appellant in this regard has relied upon the judgment in Om Prakash's case, being a Single Bench judgment of this Court, which has been affirmed by the Division Bench in appeal on 2.11.2007, in S.A.W. No. 847/2007. In that case the matter related to the employee taking voluntary retirement under the V.R.S. (Voluntary Retirement Scheme) floated by the employer. The employee in that case submitted application to the employer, seeking voluntarily retirement on 17.7.2004, with effect from 31.12.2004. This application was accepted on 18.11.2004, and it was conveyed to the employee that consequent upon his V.R.S. application, the employee would be voluntary retiring w.e.f. close of business on 31.12.2004, and in order to facilitate settlement of final dues expeditiously, the blank forms to be filled, and completed by him, were also attached and sent to the employee. The employee sent a communication on 23.12.2004, stating that even though his application is accepted, but then he has changed his mind, and wants to continue in the service, and therefore, sought permission to allow him to remain in service. This was responded vide communication dt. 8.12.2004, informing that he is a member of Superannuation Benefit Fund Scheme (the SBF Scheme) and has opted for VRS Scheme. Consequently, he is ceased to be a member of SBF Scheme, and he was apprised of the options available to him as per the Rules of SBF scheme; (1) to receive refund of his contributions along with interest as per the rules, which option was exercised by the employee to receive the refund of his contribution, and the amount was sent to him by cheque, in view of the option exercised / 56 / D.B.S.A.W.No.392 OF 2007 by him, and one gold coin weighing about 25 grams was also given to him, which was available to the retiring person on superannuation, and this was also received by the employee, and then the employee was informed that on account of various loans and advances, the balance amount standing to his credit was also informed. In these circumstances, the controversy arose as to whether the employee was entitled to continue in service. In our view, the matter turns on the premises of the scheme, and interpreting those aspects, i.e. the aspect of terms of scheme, and consequences flowing therefrom, various earlier judgments of the Hon'ble Supreme Court were considered, and it was found, that the employee never objected, rather received the amounts. It was held, that under the Scheme the employer was under no obligation to accept the request of the employee of his seeking voluntary retirement, but once it was accepted, in view of clear terms of the scheme, the question of withdrawal did not arise, and the employee was found to be not entitled to be permitted to withdraw it. It was in this background found, that the employee in that case after receiving communication dt. 18.11.2004, filled relevant forms to facilitate final settlement of dues expeditiously, exercised option for the SBF Scheme to receive all his contribution. Not only this he also received one gold coin, entitling the person retiring under VRS Scheme, so also; received a credit balance of Rs. 5,97,760/- towards gratuity and ex-gratia payment, and thus it was found, that he is not entitled to continue.
/ 57 / D.B.S.A.W.No.392 OF 2007 On the other hand, learned counsel for the writ petitioner has relied upon the judgment of the Hon'ble Supreme Court in Ramesh Chandra Sharma's case, which in our view is of no relevance, as that was a case of employee having proceeded against departmentally, and the question was about withholding/withdrawing pension. Learned counsel for the writ petitioner has cited this judgment only for drawing distinction between retiral benefits and terminal benefits. In our view that distinction is not of any relevance for the present purposes, inasmuch as the question sought to be canvassed by the appellant is, about entitlement of the writ petitioner to assail the action, after having received all such amounts, as he became entitled to receive, consequent upon severance of his relationship of employer and employee.
Then, the next case relied upon is Mohinder Pal Singh's case, wherein it was held, that waiver of a right implies his knowledge of the existing right i.e. waiver of the right with the knowledge of existence of right. In that case the employee had withdrawn his offer to avail voluntary retirement before its being accepted, and had filed a writ petition, when he came to know that the Bank had unilaterally accepted offers of certain employees, despite the same having been withdrawn. In that case the Bank had deposited the amounts becoming payable to the employee consequent upon acceptance of voluntary retirement application in the bank account of the employee, which account was maintained by the employer / 58 / D.B.S.A.W.No.392 OF 2007 bank itself, and it was found, that it is not in dispute that the Bank had not accepted the offer of the applicant before he withdrew therefrom, and it is also not in dispute that no such communication was ever made to the applicant, and the amount of Rs. 10,50,000/- to which the employee was entitled by way of benefits in terms of the scheme, had not been offered to the applicant till the date, and out of leave encashment amount, a sum of Rs. 1422.21 only was credited in the account of the applicant, and the applicant was never communicated that the said amount was being deposited in terms of the scheme. It was considered that the amount of Rs. 10,50,000/- which the appellant became entitled by way of scheme had not been deposited in the account of the employee because the employee had closed his account. In these circumstances, it was held that no waiver and no estoppel can be claimed.
On the principles emerging from the above judgments, we now proceed to consider the factual aspects of the case in hand. A look at the record shows, that in this regard the only pleading that has been taken by the appellant is containing in para-25 and 26 of the reply to the writ petition, and the documents Annexure R/3 to R/6. In para-25 of the reply it is pleaded as under:-
"25.................It is not disputed that the petitioner with prior permission of the department has attended the seminar and visited Head Office of the respondent. The contention of the petitioner that he was not relieved on 16.09.1992 is not correct. Upon perusal of various communications by the petitioner himself i.e. application-dated 05.01.1993 for final withdrawal of Provident Fund and application-
/ 59 / D.B.S.A.W.No.392 OF 2007 dated 29.04.1993 for CPF & Interest etc., reveals that the petitioner was relieved w.e.f. 16.09.1992. Copies of these communications are enclosed herewith and marked as Annexure R-3 & R- 4 respectively. It is not correct to say that department has cleared the bills in respect of tour programme of the petitioner up to 19.09.1992. That the petitioner was considered to be on duty upto 15.09.1992 only and accordingly his salary, bonus and payment of LTC were settled up-to 15.09.1992 only. The annexure submitted by the petitioner along with letter dated 24.03.1993 (exhibit 20) is apparently a self-prepared document. Calculation sheet in respect of dues paid to the petitioner is annexed herewith and marked as Annexure R-5. These facts can be further confirmed from the Staff Pay Bill Register, the relevant extract of staff pay bill register is enclosed herewith and marked as Annexure R-6.
Then, in para-26 it is pleaded as under:-
"26. That in reply to averments made in para 28 of the petition, it is not correct to say that the petitioner was on official tour for entire period of 12.09.1992 to 19.09.1992 as in continuation of his official tour he had applied for availing Casual Leave/ Compensatory Off on 16.09.1992 & 17.09.1992. The petitioner was very much aware about the fact of acceptance of his resignation and his relieving order. As per the settled principle of law that once the competent authority has accepted the resignation it is not open for the employee to withdraw his resignation. As the relationship of employer and employee came to an end w.e.f. 16.09.1992 hence representation of the petitioner dated 19.09.1992 have no legal substance hence same was not accepted by the authorities."
Thus, from these pleadings it is clear, that the appellant has pleaded the fact about the writ petitioner having relieved, and his having received the amounts under self prepared document sheet. But then, no plea of estoppel has been taken, even in a round about way, either to plead, that by this conduct the petitioner has waived / 60 / D.B.S.A.W.No.392 OF 2007 his right to challenge the action of the employer, or that the employee is estopped from challenging the action of the appellant. Estoppel obviously is a question of fact, and is required to be pleaded. It cannot be permitted now to be argued as an inference of law at appellate stage. It is also significant to note, that writ petitioner had filed a rejoinder, and the pleadings have been taken from the stand point of the factum of acceptance of resignation. Thus, the parties were ad-idem on the question, that the pleadings related to the only question as to whether the resignation was accepted, and the contention on the basis of estoppel was neither raised, nor was even intended to be raised. In this sequence, even a look at the judgment of the learned Single Judge also shows, that even there, the aspect of estoppel was not raised. In such circumstances, in our view, on facts, it cannot be said, that the appellant has been able to establish, that the writ petitioner is estopped, by receiving certain amounts, from assailing the action of the appellant, in relieving him, consequent upon purported acceptance of resignation.
Then, the million dollar question, that survives is, as to what relief, the writ petitioner is entitled to. In this regard again there are two aspects, as to whether in all cases where the resignation has been found to have not been accepted, or to have been wrongly accepted, as a natural consequence, or as a rule of thumb, the employee is entitled to reinstatement, and with all emoluments for the back period, or some other considerations can work for / 61 / D.B.S.A.W.No.392 OF 2007 modulating the relief, and the other aspect is that even if admittedly the employee was in gainful employment, still he is to be awarded emoluments, for the entire back period.
In this regard, learned counsel for the writ petitioner again relied upon the judgment of the Hon'ble Supreme Court, in Srikantha's case, wherein in para-28 onwards the Hon'ble Supreme Court considered, as to what benefit the employee in that case was entitled to, as he had withdrawn the resignation, and yet he was not allowed to work, and with, this it was held, that he is entitled to all consequential benefits. To negative the contention of the employer, about the employee having not actually worked, the Hon'ble Supreme Court has referred to few earlier judgments, in J.N. Srivastava Vs. Union of India reported in (1998) 9 SCC-559, Shambhu Murari Sinha Vs. Project and Development India Ltd. reported in (2002) 3 SCC-437, and Balram Gupta Vs. Union of India reported in 1987 Supp. SCC-229, and held the employee to be entitled to full salary and allowance. To distinguish this judgment, it was contended by the learned counsel for the appellant, that this judgment and the earlier three judgments referred therein, have simply proceeded on the assumption about the employee being entitled to full salary and allowances, without discussing any aspect of the matter. On the other hang the learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court in O.P. Bhandari's case, Kendriya Vidyalaya Sangathan's case, and General Manager, Haryana Roadways' / 62 / D.B.S.A.W.No.392 OF 2007 case. In O.P. Bhandari's case the employee was terminated. For deciding the validity of termination, the provisions of Article 14 and 16 of the Constitution were considered, and it was held, that the tenure of service of a citizen who takes up employment with the State cannot be made to depend on the pleasure or whim of the competent authority, unguided by any principle or policy. In that case the employee was terminated in accordance with the provisions of the Indian Tourism Development Corporation (Conduct, Discipline and Appeal) Rules, 1978, and Rule 31(v) of the Rules, which provided for termination of the services of the employees of the respondent-Corporation simply by giving 90 days' notice, or by payment of salary for the notice period in lieu of such notice, was quashed. In that background considering the question of relief, it was held, that although in cases of workmen and 'white collar' employees reinstatement would be a rule, and compensation in lieu thereof an exception, but as regards the high level managerial cadre, the matter deserves to be viewed from an altogether different perspective, a larger perspective, which must take into account, the demands of national interest, and the resultant compulsion to ensure the success of the public sector, in its competitive co- existence with the private sector. It was held, that the public sector can never fulfill its life aim or successfully vie with the private sector, if it is compelled and obliged to entrust its management on incapable or inefficient personnel, in whom it has no trust or faith, and with whom it cannot function harmoniously. These factors have to be taken into account / 63 / D.B.S.A.W.No.392 OF 2007 by the court at the time of passing the consequential order, for, the court has full discretion in the matter of granting relief, and the court can sculpture the relief to suit the needs of the matter at hand. The court, if satisfied that ends of justice so demand, can certainly direct, that the employer shall have the option not to reinstate, provided the employer pays reasonable compensation, as indicated by the Court.
Then, in Kendriya Vidyalaya Sangathan's case again, that was a case of dismissal of the employee without holding regular enquiry, which was found to be not sustainable, and then, examining the question of relief to be granted, the Hon'ble Supreme Court considered its earlier judgment in P.G.I. of Medical Education and Research Vs. Raj Kumar reported in (2001) 2 SCC-54, Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya reported in (2002) 6 SCC-41, Indian Rly. Construction Co. Ltd. Vs. Ajay Kumar reported in (2003) 4 SCC-579, and M.P.S.E.B. Vs. Jarina Bee reported in (2003) 6 SCC-141, wherein it was held, that payment of back wages having a discretionary element involved in it, has to be dealt with, in the facts and circumstances of each case, and no straitjacket formula can be evolved, and considering that principle, it was held, that when the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. As such the initial burden is on him, but after, and if he places materials in that regard, the employer can bring on record materials to rebut the claim.
/ 64 / D.B.S.A.W.No.392 OF 2007 While in the case in hand before Hon'ble the Supreme Court it was found, that the employee has not placed any material in this regard. Since in that case the matter was sent back for enquiry afresh, extent of back wages to which the employee was entitled was not decided.
Then, in General Manager, Haryana Roadways' case it was held by the Bench presided by three Hon'ble Judges of the Hon'ble Supreme Court, that there is no rule of thumb, that in every case, where termination is found bad, entire back wages should be awarded, rather a host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting application from the employment exchange, nature of appointment etc. has to be weighed. Likewise the length of service, which the workman had rendered with the employer, is also relevant factor, and that, where the total length of service rendered by a workman is very small, the award of back wages for the complete period would be wholly inappropriate.
As we find from the order of the Division Bench of this Court dated 20.7.2007, whereby the appeal was admitted, and interim stay was granted, that though the material has come on record even in the form of affidavit of the writ petitioner himself, that during the interregnum period he was gainfully employed, it was sought to be contended by the learned counsel for the writ petitioner, that the writ petitioner was earning a wholly meager amount, and at best that amount can be adjusted / 65 / D.B.S.A.W.No.392 OF 2007 against the emoluments for the entire back period, to which the writ petitioner is entitled, and balance is required to be awarded. As against this, learned counsel for the appellant contended, that the extent of gainful employment was not required to be examined in mathematical terms to ascertain the extent of income earned by gainful employment. All that is to be seen is, as to whether the employee was gainfully employed, or not. Since in the present case admittedly he was gainfully employed, he is not entitled to be awarded emoluments for the back period.
Then, in this regard it was also submitted that the conduct of the writ petitioner is also such, which clearly disentitles him to any emoluments for the back period. In this regard the conduct of the writ petitioner during service was also highlighted, and conduct after being relieved was also highlighted. As noticed above, it is contended by the learned counsel for the writ petitioner that no pleadings have been taken in the reply, even to the amended writ petition, about disentitlement of the writ petitioner to emoluments for the back period on the ground of his conduct while in service, apart from the fact, that even if any pleading would have been taken, that conduct cannot come in his way, as that might furnish a ground to the employer to proceed against the employee departmentally, while admittedly no such action was taken against the employee by the employer.
Then, regarding subsequent conduct i.e. conduct after being relieved, it was submitted by the learned / 66 / D.B.S.A.W.No.392 OF 2007 counsel for the appellant, that though the writ petitioner had filed the writ petition immediately after action, shortly after being relieved, but then that was filed at Jaipur Bench. Then, notwithstanding the fact, that while transferring that petition to the Principal Seat, vide order dt. 21.5.1997, passed in presence of the learned counsel for the parties, it was specifically directed, that the parties shall appear before the Dy. Registrar (Judicial) at Jodhpur on 10.7.1997, so that the matter may be listed before the concerned Bench. On 10.7.1997 the matter was listed in the Court, but nobody appeared on behalf of the present writ petitioner. Of course, on that date on that count the writ petition could have been dismissed, but the Court showed benevolence, and directed the matter to be listed before the Court as and when parties make an application, and thereafter the application was filed on 28.3.2005 only. Thus, the writ petitioner is clearly guilty of delaying the matter for all this time, in any case upto 28.3.2005, and therefore, was not entitled to emoluments for the entire back wages.
On the other hand, learned counsel for the writ petitioner contested this contention, and invited our attention to the reply to the appeal, specially at page-25 thereof, wherein it is contended, that the parties were directed to appear before Dy. Registrar (Judicial) on 10.7.1997, while the case was not listed before the Dy. Registrar (Judicial), and on subsequent enquiry it revealed that instead of 10.7.1997 the matter was listed in the Court on 10.7.1997, and enquiry was undertaken in / 67 / D.B.S.A.W.No.392 OF 2007 respect of the writ petition from the office of Dy. Registrar (Judicial) through his colleagues, and it was confirmed that the case was not listed in the cause list. Then, the case never came to be listed before the Court, and it is also pleaded that there was no delay on the part of the writ petitioner, rather the writ petitioner was in contact with the lawyer till 1996, was attending court proceedings regularly, the lawyer only told not to come on every date, as it is High Court, and it takes long time to finalise the case, and he will inform accordingly. Later on because of personal, family and social circumstances, the writ petitioner was compelled and could not keep track of his case. The frequent change of rented accommodation, and telephone numbers, the counsel at Jaipur lost the contract with his client at Jodhpur. The writ petitioner came to know about transfer of the case when he personally met his lawyer at Jaipur in the year 2003, and he advised to hire an additional lawyer from Jodhpur, and thereupon he moved an application. It was also contended that after the writ petition was admitted, it was put in due course, but the petitioner moved an application for getting the matter listed along with the cases of 1992, and assigning priority of 1992 accordingly, whereupon the matter came up.
Learned counsel for the appellant controverted this stand, by inviting our attention to the affidavit of the writ petitioner filed in Feb. 2007, available at page- 244, wherein it has been deposed, that after being relieved from the appellant Corporation the writ / 68 / D.B.S.A.W.No.392 OF 2007 petitioner started practice as Surgeon, and not being satisfied, he had taken a loan from the Rajasthan Financial Corporation, and established a super speciality hospital, in the name of Rajat Roop Urological Hospital, Jodhpur, but for professional reasons he had to close down the hospital in the month of November, 1999, and suffered a great financial loss and paid the R.F.C. loan by selling his only house in Jodhpur in the year 2003. According to the learned counsel, meaning thereby, that till 2003 the writ petitioner was having his own house, and obviously was living therein. Thus, the story given in the reply to the appeal, is per-se false. Our attention was further invited to para-6 of the affidavit also, wherein it is deposed, that writ petitioner had shifted from Jaipur to Jodhpur in the year 1993, therefore, the communication relating to transfer of the case could not reach him, as his new address was not available with his lawyer. With reading this it was submitted that this averment is wrong, inasmuch as in reply to the appeal, the writ petitioner had clearly pleaded that the writ petitioner was in contact with his lawyer till 1996, and was attending the Court proceedings regularly. Thus, it was contended that self contradictory stands have been taken by the writ petitioner, in an attempt to explain his conduct of delaying the matter, and therefore, he is not entitled to be awarded any emoluments for the back period.
We have considered the submissions. In our view, obviously the conduct of the writ petitioner, during service, can obviously be not taken into account for the / 69 / D.B.S.A.W.No.392 OF 2007 purpose of deciding the question about entitlement of the employee to receive emoluments for the back period. Therefore, we simply ignore that.
Then, coming to the conduct subsequent to his being relieved, that conduct in our view, is ofcourse relevant. Ofcourse, the writ petitioner had filed the writ petition immediately after his being relieved, but then, it also appears from his affidavit, that he was gainfully employed thereafter, and it is well nigh possible, that in view of his gainful employment during this interregnum period, he simply lied low. In any case when the matter was ordered to be transferred to Jodhpur vide order dt. 21.5.1997, in the presence of the counsels for the parties, directing to appear at the Principal Seat on 10.7.1997, there was no occasion for the writ petitioner to lie low for all this period of time till as late as on 28.3.2005. We cannot resist ourselves from considering, that on 10.7.1997 the Court could very well dismiss the writ petition for non-appearance, in which event the matter would have died once for all, but the Court rather showed benevolence, and simply mummified the litigation, by directing, that it be listed as and when parties make an application, and obviously the writ petitioner stood by this mummification for all this period of time. The explanations given for all this period are self contradictory. It is only on 28.3.2005 that the writ petitioner moved the application, and the litigation was got de-mummified, and revived.
/ 70 / D.B.S.A.W.No.392 OF 2007 In these circumstances, keeping in view the subsequent conduct of the writ petitioner in regard to pursuing the matter, coupled with the fact, that admittedly the writ petitioner was gainfully employed, in our view, keeping in view the judgments of the Hon'ble Supreme Court, as cited by the learned counsel for the appellant, interest of justice would be met, if the writ petitioner is awarded back emoluments from 28.3.2005. Obviously, the writ petitioner is entitled to be reinstated.
Accordingly, the appeal is partly allowed. Differing with the reasonings given by the learned Single Judge, we find, for the reasons mentioned above, that the writ petitioner is entitled to be reinstated, and is also entitled to emoluments for the back period from 28.3.2005. Since the writ petitioner is shortly to complete his age of superannuation, and since there is only one post available with the appellant Corporation, and we are informed, that post is already filled, we give an option to the Corporation, to continue to pay the admissible emoluments to the writ petitioner, treating him to have been reinstated, month by month, as and when they fell due, till he attains the age of superannuation. The parties shall bear their own costs throughout. (KISHAN SWAROOP CHAUDHARI),J. (N.P.GUPTA), J. /n.s./ /m.asif/ /tarun/ /sushil/