Central Administrative Tribunal - Delhi
Dinesh Kumar Sangal vs Municipal Corporation Of Delhi on 13 November, 2009
Central Administrative Tribunal Principal Bench TA No.297/2009 New Delhi, this the 13th day of November, 2009 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Dinesh Kumar Sangal S/o Sri Rathu Lal R/o 156, Arjun Nagar, Safdarjung Enclave, New Delhi 110 029. Applicant. (By Advocate : Shri Azad Alvi) Versus 1. Municipal Corporation of Delhi Through its Commissioner, Town Hall, Chandni Chawk, Delhi 110 006. 2. Dy. Commissioner Municipal Corporation of Delhi Building Department, City Zone, New Delhi. Respondents. (By Advocate : Shri Parveen Swarup) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Dinesh Kumar Sangal, the Applicant herein, has moved the Honble High Court of Delhi in the Writ Petition (C) No.6106/2008 with the following prayers:-
Issue a writ of Mandamus/Certiorari or any other order or direction directing the Respondents to set aside/withdraw the impugned order dated 23.01.2008 and restore the services of the petitioner to its original position.
To quash the departmental enquiry in regard to the fabricated charge sheets. And to make the payment of the full salary from the date of suspension and immediately release salaries wef 14.01.08 onwards.
Award the exemplary cost of the litigation in favour of the Petitioner and against the Respondents.
Pass such order and or further order (s) as this Honble Court may deem fit and proper in the facts and circumstances of the case.
2. By virtue of Notification dated 1.12.2008, under Sub Section (3) of Section 14 of the Administrative Tribunals Act 1985, the service matters pertaining to the MCD were transferred to this Tribunal for adjudication and, therefore, the Honble High Court in its order dated 27.1.12009 transferred the WP (C) No. 6106/2008 to this Tribunal, which was numbered as TA 297/2009.
3. The background of the case is that the Applicant while working as Assistant Engineer (Civil) with MCD was so overburdened in his work that he gave various representations to the Respondents viz. on 7.04.2003, 5.5.2003, 19.05.2003, 2.6.2003, 19.06.2003 and 1.08.2003, ventilating his grievances that he had been looking after additional charges for certain posts which were vacant. He also apprised that in the absence of adequate staff, he had been overburdened and he might commit mistakes due to heavy work load that he was discharging. He also submitted a representation dated 13.08.2003 requesting that he may be transferred to a different post. Though the Deputy Commissioner, MCD, admitted in his communication dated 1.01.2001 to the Additional Commissioner that there was acute shortage of staff in the Building Department of MCD and that the Applicant as Assistant Engineer was also looking after the work of Executive Engineer as well as 7 other Assistant Engineers in the City Zone which happens to be a sensitive zone, the Additional Commissioner, MCD, suggested that at least one post of Executive Engineer and 3 posts of AEs should be filled up immediately which would reduce the burden of the Applicant. On 21.01.2004 though R.P.S. Ahluwalia, Executive Engineer, joined the post but went on medical leave and the Applicant was again saddled with the additional duties of the Executive Engineer. In view of the scarcity of supervisory, technical and clerical staff, the Applicant was compelled to work for all such posts in the Building Department/City Zone of MCD. However, the Respondents being oblivious of the official burden that he was carrying, the Applicant was placed under suspension for his alleged misconduct and the disciplinary proceedings were initiated. He was reinstated later on. He was transferred many times for which he felt harassed and frustrated. As a result, the Applicant submitted his conditional resignation vide his letter dated 26.07.2007. It is the Applicants case that before the competent authority accepted his resignation on 31.01.2008 w.e.f. 23.01.2008, the Applicant had withdrawn his resignation vide his letter dated 31.01.2008.
4. Shri Azad Alvi, learned Counsel for the Applicant, giving a broad historical background of the case contended that (1) the Applicant has withdrawn his resignation much before the Competent Authority accepted his resignation letter; (2) the resignation sent by the Applicant was under protest wherein he has ventilated his various grievances which had not been redressed but the resignation was accepted; (iii) the Applicant was so much over burdened with the additional work given to him that he had no time for his own family life and, as such, he was forced to submit his resignation as a mark of protest to attract the attention of the authorities in MCD; (iv) though the competent authority convened a meeting to redress his grievances but no discussion could take place, as a result of which, the Applicant was further distressed; (v) the Applicant was not properly relieved from his post; and (vi) even before, the resignation was accepted he was not given opportunity to clarify whether he really wanted to resign. Shri Azad Alvi, therefore, argued that the Applicants prayer in this OA is being limited only to the relief sought for withdrawal of resignation to be accepted and he should be taken back to service by the Respondent-MCD.
5. On the other hand, Shri Praveen Swarup referring to the various representations/letters submitted by the Applicant to the MCD and ultimately the letter which the Applicant had sent thereby threatening that he would commit suicide if his resignation would not be accepted; contended that the resignation request of the Applicant was taken up and the competent authority passed the appropriate order on 23.01.2008 but the formal order was issued on 31.01.2008. His contention is that acceptance of resignation has been ordered on 23.01.2008 whereas the Applicants letter of withdrawal of resignation was received on 31.01.2008. He highlighted that as per the settled legal position, if the resignation is accepted much before the withdrawal, the official relationship that existed between the employer and employee would cease and, therefore, it would not be proper for the MCD to take back the Applicant on duty. He, therefore, submitted that this is a fit case where the Applicants OA should be dismissed.
6. During the hearing on 19.08.2009, the Counsel for the Respondent was directed to produce the file wherein the Applicants representations, resignation letter and the acceptance of resignation was considered by the Respondents and also all the letters which are mentioned in the order dated 31.1.2008 (Page 149 of the Paper Book). It is appropriate for us to mention here that on the final date of hearing i.e. 4.11.2009 we perused the records of the Respondent-MCD and noted that the order was passed by the Commissioner-MCD (the competent authority) on 23.01.2008 but the same was communicated to the Applicant on 31.01.2008. Further, some of the letters referred to in the office order dated 31.01.2008 (Annexure R/1) were not available in the file, for example the original letter dated 17.01.2008 which was the representation of the Applicant addressing to the Commissioner, Additional Commissioner and Engineer-in-Chief through fax indicating that he would commit suicide within 24 hours if no reply was received by him from MCD about his resignation. Few of the representations which were available could be perused by us.
7. It is considered appropriate to take the extract of the Office Order dated 31.01.2008 by which resignation was accepted, which reads thus :-
No.HC-II/Engg/HQ/08/1255 Dated 31.1.08 OFFICE ORDER
With reference to the request dated 26.07.2007, 23.10.2007, 29.10.2007, 31.10.2007, 29.11.2007, 30.11.2007, 17.01.2008 and 20.01.08 addressed to the Commissioner, Addl. Commissioner (Engg.) Director (P), Director of Vigilance, Director of Inquiry, Engineer-in-Chief and Director-in-Chief/DEMS in which you have requested for resignation from Municipal Services and whereas you have also requested in you letter dated 19.10.2007 that you are interested to resign from Municipal Services due to survival of you family life & social life.
Whereas you have again requested in you representation dated 17.01.2008 addressed to the Commissioner, Addl. Commissioner (Engg), and Engineer-in-chief through fax that the department should advised me whether I have to suicide within 24 hours if no reply is received to me from the department about my resignation.
Whereas you have again send a letter dated 20.01.2008 addressed to the Commissioner of Police, Delhi in reference to letter dated 17.01.2008 and help was sought from the police.
Whereas the department registered two regular departmental enquiries Nos. 3137/DEC/DOI & 3145/DEC/DOI and are still to be decided by the department.
In view of the above, the Commissioner, MCD vide his orders dated 23.01.2008 has acceded to you requests for resigning from Municipal Services with immediate effect on the conditions that final payments such as GPF, GIS & others financial benefits will be released after outcome of the departmental enquiries pending against you.
Sd/ (Raj Pal Singh) Addl. Dy. Commissioner Engg. Department (HQ)
8. The letters written by the Applicant and referred to in the resignation acceptance order are dated 26.07.2007, 23.10.2007, 29.10.2007, 31.10.2007, 29.11.2007, 30.11.2007, 17.01.2008 and 20.01.2008. We could peruse some of these from the file of Respondent-MCD as well as from the current OA which reveals that the Applicant was distressed due to various factors and most important of them being that (i) he was facing some departmental actions, one of which was ultimately dropped, (ii) he was over burdened with additional charges for which some of the charges were taken away from him later on, (iii) he was required to attend office for long hours, and (iv) his grievance to pay him the salary for certain months. These letters are protest letters or grievance letters addressed to the various authorities of MCD. These letters being prelude to the letter dated 26.07.2007 wherein he has narrated his grievances and has mentioned that his resignation may be accepted but this resignation, to our mind, is not a resignation simplicitor but it was a resignation under protest. Even his letter dated 29.12.2007 was a letter claiming his salary for the month of November 2007 wherein he has ventilated his grievance due to the fact that his family is facing crisis in the absence of salary not received by him for some months. The Respondents could not produce before us any reply that was given to the Applicant on each of his letters, nor, they could demonstrate the timely administrative responsiveness to address/redress the Applicants grievances. Thus, we note that the resignation of the Applicant by no fits of imagination can be simple resignation as prescribed under the Rules.
9. It would be appropriate for us to quote relevant part of his letter dated 21.5.2007 wherein the Applicant has cited plethora of representations he has given to the Deputy Commissioner, City Zone and also the Additional Commissioner of MCD but has not received any reply, as a result of which, he has indicated the following in his letter :-
In light of the above, it is submitted that the undersigned isnt in a position to continue to work as Assistant Engineer (Civil) on Look After Charge, sitting ideal in the Division-V and taking salaries regularly in the scale of pay of Rs.10,000-325-15,200 due on 2nd up gradation under ACP Scheme. Your Highness is requested to look into the matter sympathetically and consider the request.,I hereby tender my resignation, under protest of office order No: CED-III/2006/27/12115 dated 21.04.2006 vide which my juniors have been promoted to the post of assistant engineer (Civil), from the Look after charge of the Assistant Engineer (Civil)m and my services may please be utilize as Junior Engineer (Civil) originally and oblige.
Thanking you in anticipation of you kind blessing please.
10. Subsequently, he also wrote a letter to the Additional Commissioner of MCD vide his letter dated 6.06.2007 (Page 73) and ventilated his 4 grievances and indicated as to why he has chosen to tender his resignation to the MCD in his letter dated 21.05.2007 which was received back by him on 28.05.2007 under the signatures of Superintendent Engineer (Project) without any remarks and observations. In his letter dated 6.6.2007 he raised following:-
1. Shortage of staff in Bldg. deptt./City Zone, as Executive Engineer (Bldg) City Zone and as through Deputy Commissioner and Addl. Commissioner/City Zone.
Non hearing the cases by the Director of Inquires-w.r.t. the Charge Sheet nos:3137 and 3145/DEC/DOI even after fixing 42 dates of hearing.
Relieving of DEMS by D-in C/DEMS under misguided approval of Addl. Commissioner/DEMS in violation Commissioners orders dated 11.03.2004 & 19.07.2006.
Working of Division-V (A Project Division of Central Zone) without maintaining proper records at different levels/sections;
11. The Respondent-MCD did not act on the letters of the Applicant which sought the orders of the Respondent-MCD on his letter dated 26.06.2007 (Pages 76 to 78). Letter dated 26.06.2007 is an exhaustive letter which highlights the various stress and strains that the Applicant has been passing through and for which he submitted his resignation from looking after charge of the Assistant Engineer (Civil) referring to his letter dated 6.06.2007 and ultimately communicated that he was tendering his resignation from the Municipal Service gave notice for the required period of one month under the Rules applicable at the time of his appointment in 1979. This letter of resignation is basically grievance projection letter with a veiled threat to resign from service for non redressal of the same by the authority. To appreciate the point, we take the extract of the said letter herein below :-
To The Commissioner Municipal Corporation of Delhi Town Hall, Chandni Chowk, Delhi 110 006.
Subject : Representation and resignation from Mpl Services.
Respected Sir, Your kind attention is invited towards the letter from the undersigned dated 06-06-2007 addressed to the Additional Commissioner (Engg.), (Copy as Annexure A for you kind consideration), regarding resignation from the Look After Charge of the Assistant Engineer (Civil) copy of which was endorsed with enclosures to Director (Personnel), the Engineer-in-Chief, the Director of Vigilance, The Director of Inquiries, the AO (Estt.)-III, the Addl. Dy.Commissioner (Engg.) & S.E.(Pr.)-III-South & Central Zone, EE-V/Central Zone under reference to the CED office order no.F.5(27)/CED(II)/Pt.IV/2001/30/6418-89 dated 05-03-2001, vide which the look after charge work of Assistant Engineer (Civil) was assigned to the undersigned wherein you were requested to consider & issue necessary orders on priority so that the undersigned may continue his service as Junior Engineer (Civil) with the department in the public interest & to survive family life and social life w.r.t. the approval of the Superintending Engineer (Project) dated 23-05-2007 on the following but sorry to say nothing has been heard till date.
It is also submitted that the Addl. Commissioner (Engg.) and ACA-GPF arent replying the letters under RTI Act 2005 even after enclosing the cheque for the required fee (Copies as Annexure B).
The undersigned is attending his office, fulfilling the required norms of the service to get his salaries and being paid for regularly without any work, sitting ideal, occupied office space and not satisfied for salaries received from the department in proportionate to the work done in the interest of the Government and the public for which the salaries are being paid to the undersigned. The Executive Engineer-V isnt ready to offer the response regarding the ACR 2006-07, submitted to him vide his receipt/diary no.:132 dated 23-04-2007 (Copy as Annexure C) and the request for issue, no objection for transfer to other division submitted on 08-06-2007 (Copy as Annexure D) and another request dated 29-06-2007 vide his diary no.:626 dated 29-06-2007 regarding No dak) being put up to the undersigned (Copy as Annexure E).
The ACA/Central Zone has refused to deduct the advance income Tax at source for the year 2007-08 and referred back the arrear against revised DA for the period w.e.f. 01-01-2007 to 31-03-2007 for which the modified bill was put up but no payment of the said bill is made through ECS to my Bank A/C till date, 2ndly, he was issued a certificate u/s 203 of the Income Tax Act 1961 for tax deduction at source from income chargeable under head Salaries for the year 2006-07 (the period 01-04-2006 to 31-03-2007) showing the deduction of Rs.8,181/- as tax paid by the employer on behalf of the employee u/s 192(Ia) on pre-requisites u/s 17(2) with outstanding tax payable as Rs.10,573/- even when net income tax payable to Rs.18,754/- which has already been deducted at source from the salaries paid from 01-04-2006 to 31-03-2007 by the employer, MCD (Copy of the said certificate and declaration of Income for 2006-07 submitted to Accounts under EE-V as Annexure F and G).
The above submissions are the sufficient causes to satisfy the harassments and mental torturing to the undersigned by the department (MCD) at ever level and the undersigned is not in a position to serve the department without the healthy environment, to tolerate such type of hardship, harassments and mental torture and to bear the administrative complications/consequences being faced based on undue responsibilities of the Executive Engineer (BIdg.), assigned to him under City Zone/MCD during March 2003 to October 2003 even when he isnt promoted to the post of the Assistant Engineer (Civil), till date.
In light of the above, you Highness is prayed to look into the matter and help the undersigned so that he may serve the department free from all such type of mental torture and the said harassments, survive family life, social life and satisfy himself for salaries received from the department in proportionate to the work done in the interest of the Government and the public for which the salaries are being paid to the undersigned. The undersigned isnt ready to enjoy the public money beyond the rule and regulations in the interest of the Government and the public works.
The undersigned is to tender his resignation from the Municipal services for the required period of one Month under the rules applicable at the time of his appointment-1979. Kindly consider, accept under intimation to the undersigned for further necessary action.
Thanking you in anticipation of the blessings in the request made.
Yours Faithfully, Sd/-
Dated: 26-07-2007 (DINESH KUMAR SANGAL) Junior Engineer (Civil) Working as AE (Civil) on Look After Charge Division-V/Central Zone, Lajpat Nagar-I (Shiv Mandir Marg) New Delhi-110024 Phone (Mobile) 0-9910388492
12. We now come to rule position on the subject of resignation from service and withdrawal thereof. The Respondent-MCD informed us that MCD does not have separate rules or guidelines on resignation and also on the withdrawal of resignation but on the other hand, MCD follows the Government of India guidelines and Rules on resignation. As per Chapter 47 dealing with Resignation in Swamys Complete Manual on Establishment and Administration for Central Government Officers (11th Edition 2008), the existing Government instructions and guidelines provide that when a government servant tenders his resignation the appointing authority is competent to accept resignation of the government servant. Resignation is an intimation in writing sent to the competent authority by the incumbent of a post of his intention or proposal to resign the office/post either immediately or from a future specified date. It is a clear instruction of the Government of India that a resignation has to be clear and unconditional and with regard to the Rules regulating the cases of withdrawal of resignation, it is intimated that resignation becomes effective when it is accepted and the Government servant is relieved of his duties. If a government servant who had submitted resignation through an intimation in writing to the appointing authority withdrawing his earlier letter of resignation before its acceptance by the appointing authority the resignation will be deemed to have been automatically withdrawn and there will be no question of accepting the resignation. In case, however, if the resignation had been accepted by the appointing authority and the government servant is to be relieved from a future date if any request for withdrawing the resignation is made by the government servant before the date of his actual relieving of his duties, the normal principle should be to allow the request of the government servant to withdraw the resignation. If, however, request for withdrawal is to be refused the grounds for rejection should be in detail recorded by the appointing authority and suitably communicated to the government servant.
13. In the instant case, the Applicants letter dated 26.07.2007 tendering resignation from the Municipal Service within the next one month was indicated in the resignation letter but that as discussed earlier was not a clean and unconditional resignation. The letter of resignation had introductory paragraphs ventilating Applicants grievance which was not redressed by the concerned authorities of MCD and in the penultimate paragraph it is stated to look into the matter and help the undersigned so that he may serve the Department free from all such type of mental torture and the said harassments.. On query from the Bench, it was reported that though there was an attempt to redress the grievances but none of the grievances could be attended to. Therefore, we find that letter of resignation loaded with grievances, requests and representations cannot be considered as clean and unconditional resignation.
14. From the point of view of the time taken by the Respondents to consider the resignation, it is found that Respondents have taken quite considerable period of time and could only pass order on 23.01.2008 and communicated on 31.01.2008 though the Applicants letter is dated 26.07.2007. Within the period of about 5 months, the MCD could have redressed his grievance by giving him appropriate opportunities. MCD did not do so. Therefore, the period taken even to consider his resignation is so long and beyond one month period, it clearly indicates non-application of mind, non redressal of his grievances and thus such acceptance letter cannot be sustained in the eyes of law.
15. From another angle, the Rules of Government of India are very clear i.e. after the orders of acceptance on the resignation is accorded, before such employee is relieved, if the concerned government servant withdraws his resignation in the interregnum period the same will be valid in law. The Respondent-MCD in its order dated 31.1.2008 has indicated that the Commissioner of MCD has passed order dated 23.01.2008 to come into force with immediate effect on the condition that final payments such as GPF, GIS and other financial benefits would be released after outcome of the departmental enquiries pending against the Applicant . There is no order to show when the Applicant was relieved of his duties. If so on what date he was relieved? The order was communicated to the Applicant on 31.1.2008 on which date he had withdrawn his resignation. As per the Government of India guidelines the withdrawal of resignation need to be accepted while waiting for the Applicant to be relieved. The MCD could not produce any document to show the date on which the Applicant was relieved nor it was brought to our notice about the reasons for rejecting the resignation withdrawal letter. It is trite that only acceptance of resignation with immediate effect does not snap the jural relationship between the employee and employer. Relinquishment of charges held by the employee is the culmination of the said act. In the absence of such relinquishment/relief by the Applicant, his jural relationship in MCD did not snap. The validity of the order dated 31.1.2008, since challenged by the Applicant in the TA and pressed his withdrawal of resignation on the same date (31.1.2008) leads us to infer that the relinquishment of charge/post has not become effective on 31.1.2008 or thereafter. Thus, his jural relationship with MCD continues. In this regard, we place our reliance on the judgment of Honble Supreme Court in the case of State Bank of Patiala Versus Phoolpati [2005 STPL (LE) 33939 SC].
16. The Applicants conditional resignation highlighting his grievances, was not verified by the MCD to know about the same. That would have given the Applicant an opportunity to explain the facts and would have conveyed his views on the resignation. By not according such an opportunity, the principle of audi alterm partem has been violated. Thus, in our views, the process of acceptance of the conditional resignation of the Applicant by Respondent was vitiated. Thus, MCD committed a legal error in this regard.
17. Another issue that crops up for our consideration is whether resignation in the present case was voluntary. We will first look into the definition and go into the nature. In the case of J. K. Cotton Spg. And Wvg. Mills Company Ltd. Vs. State of Uttar Pradesh [1990 STPL (LE) 15962 SC], Honble Supreme Court has observed that there can be no doubt that a resignation must be voluntarily rendered for if it is tendered on account of duress or coercion, it ceases to be a voluntary act of the employee expressing a desire to quit service. The meaning of the terms resign in different dictionaries is as under:-
Name of the Dictionary Meaning of Resign Blacks Law Dictionary (5th Edn.) Formal renouncement or relinquishment of an office.
Shorter Oxford English Dictionary (Revised Edn. Of 1973) To relinquish, surrender, give up or hand over (something); esp., an office, position right, claim, etc. To give up an office or position; to retire.
The Random House Dictionary (College Edn.) To give up an office, position etc.; to relinquish (right, claim, agreement etc.) Since the Applicant did not resign in a tension free condition and since the resignation was not a simple and unconditional letter, we cannot consider the same as voluntary. The official/working environment coupled with the tension, he was forced to tender his resignation.
18. Between the employee and the employer there exists jural relationship and the employee can withdraw his resignation before the employer accepts the same and employee gets relieved. This is trite that resignation can be withdrawn before the same becomes effective as held by Honble Apex Court in the case Union of India versus Gopal Chanda Mishra [1987 (2) SCC 301]; Punjab National Bank Versus P. K. Mittal [AIR 1989 SC 1083]; Balram Gupta Versus Union of India [AIR 1987 SC 2354]; Shambhu Murari Sinha Versus Project and Development India Ltd. & Another [JT 2002 (3) SC 37]; and North Zone Cultural Centre & Another Versus Ved Pathi Dinesh Kumar [JT 2003 (4) SC 155].
19. Taking into account the total facts and circumstances of the case, it is crystal clear that the Applicant has not tendered a clean and unconditional resignation. It is also admitted that there were grievances of the Applicant which remained to be redressed by the MCD. Even the acceptance of resignation is also a conditional acceptance which is not legally tenable. We are of the considered opinion that the Applicant has made out a case in his support that withdrawal of resignation tendered by him on 31.01.2008 needs to be accepted and he should be taken back in the service of MCD. We order, accordingly. In the result, the Respondents are directed to take following action :-
to issue an order accepting the withdrawal of resignation by the Applicant with effect from 31.1.2008,
(ii) to post him to the position as per his rank and entitlement, From 31.01.2008 till the date Applicant rejoins his service in MCD, Respondents are directed to treat that period as spent on duty for all intents and purposes,
(iv) since the Applicant has not worked in this period the period may be regularized as leave admissible to the Applicant and the period should be treated as continuous service for him, Respondent-1 is directed to grant opportunity to the Applicant to present his grievances which shall be examined and orders passed as per law within a period of 3 months under intimation to the Applicant and
(vi) We are not passing any order with regard to the disciplinary case that was pending against the Applicant. In case the same is still pending, the Respondents are directed to finalise the same within 3 months period.
20. Before we part with this order, we find that the Applicant has submitted various representations to the Respondents in a manner not befitting to the status of an officer of Applicants stature. He has right to present his grievances before the competent authorities to be as officious as necessary, as polite as required and must avoid pressure tactics by threatening to commit suicide if his grievances are not fulfilled. This type of threatening representations cannot by any means be justified. We, therefore, would like to record our specific warning on the Applicant to be extremely careful in his official dealings and representations to the authorities concerned to get his grievances redressed.
21. In terms of the above decisions and directions, the OA is allowed. No costs.
(Dr. Ramesh Chandra Panda) (Mrs. Meera Chhibber)
Member (A) Member (J)
/pj/