Madhya Pradesh High Court
Manoj Jain vs The State Of Madhya Pradesh on 16 February, 2012
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
W.P. No.12084/2008 (s)
MANOJ JAIN
VS.
THE STATE OF M.P. & OTHERS.
Present: Hon'ble Shri Justice Rajendra Menon.
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Shri Rajendra Tiwari, learned Senior counsel with
Shri Satyendra Jain, for the petitioner.
Shri Sanjeev Kumar Singh, learned Panel Lawyer
for the respondents No.1 and 2.
None appears for respondents No.3 and 4 even
though served.
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Whether approved for reporting: Yes/ No
ORDER
16/2/2012:
Challenging the order dated 16.9.2008 Annexure P/13 and 23.9.2008 Annexure P/18 passed by respondent No.2 accepting the so-called resignation of the petitioner and terminating the contract appointment of the petitioner, this writ petition has been filed.
22. Facts that have come on record indicates that petitioner was appointed in the M.P. Rural Livelihood Project initially on contract basis vide order dated 18.12.2004. The contract appointment was for a particular period and clause 2.9 of the said contract of appointment contemplates the following condition :-
"2.9 Your service may be terminated at any time, without assigning any reason, by giving one month's notice or one month's pay in lieu thereof. Similarly, you shall be entitled to resign from the contractual service by giving one month's notice or one month's pay in lieu thereof."
3. The appointment was on the pay scale indicated in the letter Annexure P/2 dated 15.12.2004. Even though initially the contract was for a particular period i.e. one year, record indicates that contract was extended initially vide Annexure P/5 upto December 2007 and thereafter, vide order Annexure P/6 on 14.12.2007 his contract was extended upto 30th June, 2012.
4. It seems that while the petitioner was so working and was posted as a District Project Officer in Anooppur, there was certain difficulties faced in the administration of the project mainly due to non- cooperation from some of the employees or on the so called alleged ineffective administration by the Project Officer. Be it as it may be, a communication Annexure P/ 3 was made on 25.10.2005 by the Project Coordinator 3 respondent No.2 to five of the employees detailed in the said communication advising them or rather warning them to carry out the work properly and to ensure that the work of project move smoothly. Certain act of indifference on the part of the employees were pointed out in this communication. A copy of the letter was also endorsed to the petitioner with an advise to ensure that the work in the project continues smoothly. It is a case of the petitioner that one Smt. Shikha Sarwgi respondent No.4 was also working under him, she was creating certain hindrance in the working of the project. She was not cooperating with the petitioner and various other authorities and therefore, petitioner sought for explanation from respondent No.4 vide Annexure P/10 on 4.8.2008. Thereafter, the petitioner is said to have intimated respondent No.2 the manner of working of respondent No.4 and the period during which she remained unauthorized absent. A detailed complaint with regard to working of respondent No.4 was communicated by the petitioner to respondent No.2 vide Annexure P/11 on 14.8.2008. According to the petitioner instead of taking action against respondent No.4 and advising her to improve her work and conduct, the petitioner was informed that complaints have been received against the petitioner from respondent No.4 and petitioner was directed to give his comments on the same. The petitioner is said to have denied the allegations and sought for impartial enquiry into the matter and contended that respondent No.4 is making uncalled for allegations. Be it as it may be, record 4 indicates that respondent No.2 vide Annexure P/13 dated 16.9.2008 communicated to the petitioner that his working in the project has not improved and as a result he was directed either to submit his resignation within or before 15.10.2008 else he was warned that his contract appointment would be terminated in accordance to clause 2.9 of the appointment order dated 8.12.2004. Petitioner responded to the said communication vide Annexure P/14 on 17.9.2008, again explained the circumstances and pointed out that he is being unnecessarily harassed and victimized and therefore sought for impartial enquiry into the matter. Petitioner has thereafter brought on record Annexure P/14, P/15 and P/16 signed by various employees to point out that they had no complaint against the petitioner and allegations made against the petitioner in the communication Annexure P/13 is not correct. However, it is a case of the petitioner that he was called to Bhopal on 18.9.2008. While in Bhopal and when he was in the office of respondent No.2, it is said that respondent No.2 obtained a resignation from the petitioner in his own hand writing which the petitioner submitted. According to the petitioner even though under the influence of respondent No.2 on 18.9.2008 he submitted a resignation but in the resignation it was pointed out by him that the resignation should be accepted after a period of one month, he should be relieved only after one month and thereafter, the petitioner again explained the circumstances existing against him and sought for an impartial enquiry and 5 indicated a hope that justice would be done to him. It is a case of the petitioner that after he came back to Anooppur. He withdrew the resignation vide Annexure P/ 17 on 23.9.2008 which was submitted in the office at Anooppur at 10.30 a.m. and was dispatched to respondent No.2 immediately. Inspite thereof, in the afternoon vide impugned order Annexure P/18 dated 23.9.2008 the resignation of the petitioner was accepted forthwith and after dispensing with the notice period it was indicated that the petitioner shall be entitled to salary for a period of 26 days.
5. Shri Rajendra Tiwari, learned Senior Counsel assisted by Shri Satyendra Jain took me through the documents available on record, the communication made and argued that the petitioner was trying to implement project in its right earnest to respondent No.2 for the reasons which remained unexplained, pressurized the petitioner to submit a resignation instead of conducting impartial enquiry and even though petitioner was compelled to give resignation, but the petitioner withdrew the same before the period stipulated in the resignation was over and therefore, it is argued that in the facts and circumstances of the case, the action of the respondents in accepting the resignation and relieving the petitioner in the manner done is unsustainable. It is argued that the C.Rs. of the petitioner and his service record was 'very good' even during the past period just before the resignation was accepted, the C.R. of the petitioner is graded as 'good' and as there was no material adverse to 6 the petitioner, the entire action is said to be unsustainable.
6. Placing reliance on the following judgments :
Bhairon Singh Vishwakarma Vs. Civil Surgeon, Narsimhapur & Others - MPLJ 1970 Page 756, Union of India Vs. Gopal Chandra Misra - AIR 1978 SC 694, Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta -1999(3) SCC Page 60 and Om Prakash Goel Vs. Himachal Pradesh Tourism Development Corporation Ltd. Shimla and another - AIR 1991 SC 1490, Shri Rajendra Tiwari, learned Senior Counsel argued that petitioner has a right to withdraw the resignation before the period of notice stipulated in the resignation and acceptance of the resignation before that period is illegal. It is also emphasized by him that by accepting the resignation and bring to an end in the contract of service, the allegations made against te petitioner which is not correct was made the foundation and the action taken without proper enquiry in the manner done is nothing but a act to bypass the normal rules and regulations. Accordingly, submitting that the theory of lifting of veil should be applied, Shri Rajendra Tiwari, learned Senior Counsel prays for interference into the matter.
7. Shri S. K. Singh, learned counsel for the respondents submitted that as complaints were received against the petitioner, the Collector had ordered an enquiry into the matter and in the enquiry report Annexure R/1 dated 15.6.2006 certain adverse material were found 7 against the petitioner and to somehow escape from any action being taken, it is stated that petitioner submitted his resignation and as resignation is accepted in accordance to Clause 2.9 of the Contract of appointment, it is stated that the action is proper and the same does not warrant any interference. Learned counsel for the State argued that petitioner was only a contract appointee, his services could be terminated at any time by giving him one month's notice and or pay salary in lieu thereof and instead of notice period one month's salary is paid to him, there is no illegality in the matter. Accordingly, learned counsel for the respondents submits that the action of the respondents is unsustainable and the same be upheld.
8. By filing rejoinder petitioner has again tried to highlight his grievance that the resignation was not given by him unconditionally but it was act on the part of respondent No.2 to pressurize the petitioner.
9. Having heard learned counsel for the parties and on consideration of totality of facts and circumstances I am of the considered view that various questions canvassed by Shri Rajendra Tiwari, learned Senior Counsel during the course of hearing and refuted by Shri S. K. Singh, learned Panel Lawyer, particularly with regard to working in the project, the allegations or the complaints made by respondent No.4 need not be gone into. The only legal question involved in this petition, is as to whether that petitioner has tender a resignation, whether there was any notice period stipulated in the offer 8 of resignation and whether acceptance of resignation contrary to said condition/ notice period is not permissible.
10. It is well settled principle of law that employee has a right to resign from service but the same has to be without any misrepresentation, fraud. It is also clearly well settled that if the resignation is submitted and a period of acceptance of the resignation or being relieved is indicated in the said resignation letter or if the statute contemplates a notice period for resigning from service, then within such period an employee who has submitted his resignation has a right to withdraw the offer of resignation and authorities are procluded from accepting the resignation before the said period until and unless so provided under the statutory provisions. In this regard the principles laid down by the Supreme Court in the case of Secretary, Technical Education, UP and others Vs. Lalit Mohan Upadhyay and another - (2007)4 SCC 492 may be taken note of. It has been held in these case after following the principles laid down in the case of Union of India VS. Gopal Chandra Misra - (1978)2 SCC 301 that a resignation tendered by an employee becomes effective and his office or tenure gets terminated when it is accepted by the competent authority and it is further held that an employee is entitled to withdraw the resignation before its acceptance. Further it is laid down by the Supreme Court in the aforesaid cases that the employee has a right to withdraw his resignation within the period stipulated for making the resignation effect. The same principle is followed by a Division Bench of this 9 Court in the case of Sanjay Victor Vs. State of M.P. and another - 2011(1) MPHT 203. In para 9 of the aforesaid judgment it has been held that even after a application for voluntary retirement of an employee is accepted by a Management, he can withdraw his option for voluntary retirement/ resignation before he is actually relieved and the employee has a right to seek withdrawal of his resignation before his actual date of release and the resignation will only become effective from the date as may be indicated by the employee in the notice of resignation. It is held in the aforesaid case as under :-
".... Similarly in the case of J. N. Shrivastava Vs. Union of India and another - AIR 1999 SC 1579, the Supreme Court has held that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement."
11. In the said case it is found by the Division Bench of this Court that in the notice given by the employee for seeking voluntary retirement, the employee had given an effective date on which the retirement was to come into effect and he withdrew it a day before that. Even though the resignation was accepted, it was held by the Division Bench that the employee concerned was entitled to seek withdrawal of his offer for voluntary retirement before the date stipulated in the offer 10 submitted and the employer has committed an error in not allowing the employee concerned to withdraw his resignation.
12. That apart, the Supreme Court in the case of Union of India and another Vs. Wing Commander T. Parthasarathy - (2001)1 SCC 158 in para 6 has laid down the following principles :-
"6. ....In that case this Court merely emphasised the position that when a public servant has invited by his letter of resignation determination of his employment his service clearly stands terminated from the date on which the letter of resignation is accepted by the appropriate Authority and in the absence of any law or rule governing the condition of the service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate Authority and that till the resignation is accepted by the appropriate Authority in consonance with the rules governing the acceptance, the public servant concerned had Locus Penitentiae but not thereafter. This judgment was the subject matter of consideration alongside the other relevant case law on the subject by a Constitution Bench of this Court in the 11 decision reported in Union of India Etc. vs Gopal Chandra Misra and Others (AIR 1978 SC 694). A request for pre-mature retirement which required the acceptance of the competent or appropriate Authority will not be complete till accepted by such competent Authority and the request could definitely be withdrawn before it became so complete. It is all the more so in a case where the request for pre- mature retirement was made to take effect from a future date as in this case. The majority of the Constitution Bench analysed and declared the position of law to be as hereunder:
"50. It will bear repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office-tenure of the resigner. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a Government servant or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, 12 who is a constitutional functionary and under Proviso (a) to Article 217 (1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti the resignation terminates his office-tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But, if he by such writing, chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective withdraw it, because the Constitution does not bar such withdrawal.
[Emphasis supplied]"
13. Keeping in view the principles laid down in the aforesaid cases and applying it to the present case it is clear that in his offer of resignation dated 18.9.2008 petitioner had submitted that with reference to the letter received from respondent No.2 on 16.9.2002 the petitioner has submitted his resignation which may be effective after one month and he submitted that he should be relieved only after one month. This letter was submitted on 18.9.2008 and therefore, it would be effective only from 18.10.2008. Till 18.10.2008 petitioner had a right to get the resignation withdrawn and the respondents were precluded from accepting the 13 resignation before the said date, accordingly in accepting the resignation before the due date as indicated by the petitioner respondents have acted in the manner which has the effect of taking away the legal right available to the petitioner to withdraw his resignation. Respondents under law could not accept the resignation before the period stipulated by the petitioner. In that view of the matter, on this count alone, entire action of the respondents is found to be unsustainable. That apart, if the entire resignation of the petitioner dated 18.9.2008 produced by the respondents is taken note of, it would be seen that even though in para 1 of the said letter after referring to the communication made by respondent No.2 in Annexure P/13 dated 16.9.2008 petitioner has offered to resign but from para 2 onwards petitioner again goes to contend that he has not committed any error, his working is good and he has worked with full devotion and therefore, he prays for justice being done to him and again prays for impartial enquiry in case it is found necessary. A complete reading goes to show that it was not a unconditional resignation but it was offer to resign under clause 2.9 by giving one month's notice.
14. From the perusal of documents and the facts that have come on record vide I.A. No.1779/2012 it transpires that the project is coming to an end on 31st March 2012 and accordingly a process is on for considering the case of those employees who are on contract basis and are working in the National Rural Livelihood Commission for their absorption in the State 14 service or otherwise subject to certain conditions stipulated therein.
15. For the grounds and reasons as discussed herein above, it is clear that respondents have committed an error and an illegality in accepting the resignation forthwith when the petitioner has stipulated a period i.e. a notice period from which date the resignation was to be effective. Acceptance of the resignation before the said date was illegal as it had the effect of taking away the available right available to the petitioner for withdrawing the resignation before the due date.
16. Accordingly, finding the act of the respondents to be illegal for the reasons as stated herein above, this petition is allowed. Orders impugned dated 16.9.2008 Annexure P/13 and 23.9.2008 Annexure P/18 are quashed. Once the aforesaid order is passed, the consequential question with regard to reinstating the petitioner has to be taken note of. Admittedly, petitioner was a contract employee and therefore, he cannot be permitted to be reinstated contrary to the terms and conditions of the contract. At the same time, contract of service of the petitioner was extended upto 30th June, 2012 as is evident from Annexure P/6 dated 14.2.2007 but because of premature termination of contract done w.e.f. 23.9.2008 vide Annexure P/18 the petitioner was deprived from working from 23.9.2008 till date. In this period the contract of service should be extended and petitioner permitted to work for the full period for which contract was entered into.
1517. In view of the above respondents are directed to reinstate the petitioner and after treating the period from 23.9.2008 till his reinstatement to be a period during which petitioner was prevented from working due to the illegal act of the respondents, the same be added to the period after 30th June 2012 and petitioner permitted to work accordingly till conclusion of contract in accordance to law. As is evident from the documents filed by the petitioner as contained in Annexure P/39, in case the petitioner is found suitable to be absorbed in accordance to the said policy, his case be also considered and action taken.
18. Accordingly, directing the respondents to permit the petitioner to join duties as per terms and conditions of the contract, this petition stands allowed and disposed of.
(Rajendra Menon) Judge Mrs.m i shra