Karnataka High Court
Sri. Anoop Kumar Tripathi vs The Chairman And Managing Director on 23 October, 2020
Author: M.Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.40211/2018 (S - RES)
BETWEEN
SRI ANOOP KUMAR TRIPATHI
AGED ABOUT 33 YEARS,
S/O H.M.TRIPATHI,
RESIDENT OF TILOI AT & POST,
MOHAN GANJ TALUK, AMETHI DISTRICT,
UTTAR PRADESH.
... PETITIONER
(BY SRI MUKKANNAPPA S.B., ADVOCATE (VIDEO
CONFERENCE))
AND
1. THE CHAIRMAN AND MANAGING DIRECTOR
BHARAT ELECTRONICS LTD.,
(GOVT.OF INDIA ENTERPRISE,
MINISTRY OF DEFENCE)
REGISTERED & CORPORATE OFFICE,
NAGAVARA OUTER RING ROAD,
BENGALURU - 560 045.
2. THE MANAGER (HR/MS & MR)
BHARAT ELECTORNICS LTD.,
(GOVT.OF INDIA ENTERPRISE,
MINISTRY OF DEFENCE)
2
REGISTERED PRODUCTION FACTORY,
BENGALURU - 560 013.
... RESPONDENTS
(BY SRI VISHWANATH P.D., ADVOCATE FOR
(PHYSICAL HEARING);
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED LETTER DATED 12.7.2018 AT
ANNEXURE-E AND AS WELL AS THE RELIEVING LETTER
DATED 14.7.2018 AT ANNEXURE-G UNDER THE FACTS
AND CIRCUMSTANCES OF THE CASE ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner in this writ petition has called in question the acceptance of resignation letter dated 12.07.2018 - Annexure 'E' and the consequential relieving letter dated 14.07.2018 - Annexure 'G' whereby, the petitioner was relieved from service on acceptance of his resignation.
2. The facts that are germane for consideration of the subject writ petition are that, the petitioner joined the services of the respondents - Bharat Electronics Limited (hereinafter referred to as 'the 3 BEL' for short) on 10.12.2007, as a Probationary Engineer and was posted at Bengaluru. On completion of his probation, the petitioner was transferred to Ghaziabad, where he was further promoted as Senior Engineer in the year 2012 and as Deputy Manager in the year 2016.
3. At the relevant point of time, when the petitioner was working as Deputy Manager by order dated 23.06.2018, he was transferred from Ghaziabad to Benglauru and on assumption of charge at Bengaluru, he worked for two days i.e., on 25.06.2018 and 26.06.2018. On 27.06.2018, the petitioner submitted his resignation. Two days later, the petitioner withdrew his resignation after which, the petitioner through an email on 01.07.2018, sought leave for one month and again requested to ignore the resignation letter.
44. On 12.07.2018, again certain correspondences took place between the respondents and the petitioner and on interpretation of such correspondences being acceptance of resignation, the respondents accepted the resignation on 12.07.2018 and relieved him on 14.07.2018 by issuing a relieving letter. It is these orders/letters that are called in question by the petitioner in the present writ petition.
5. Heard Sri S.V.Mukkannappa S.B., learned counsel for the petitioner and Sri Vishwanath P.D., learned counsel for the respondents and perused the material on record.
6. The learned counsel for the petitioner contends that the petitioner did submit his resignation on 27.06.2018 and realising his mistake, he withdrew the same two days later i.e., on 29.06.2018. The learned counsel disputes the basis 5 for acceptance of resignation dated 12.07.2018 and would submit that he never intended to resign after having withdrawn the same at an earlier date.
7. Per contra, the learned counsel appearing for the respondents - BEL would contend that the petitioner would always would blow hot and cold as at one breath, he resigns by a letter with a one sentence and by another he withdraws it and again he represent on 12.07.2018, seeking adjustment of his annual leave in lieu of the notice period. It is on this basis, the respondents had to accept the resignation of the petitioner and once the resignation is accepted, no fault could be found in the respondents in relieving the petitioner from services.
8. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the material on record.
69. The petitioner tendered his resignation on 27.06.2018, indicating that he should be relieved with effect from 14.07.2018. Two days later, realising the mistake committed by him, he withdraws his resignation on 29.06.2018, which is received by the respondents. Later, the petitioner seeks leave for one month for joining the office and again requests the respondents to ignore the earlier resignation letter. The letter sent by email to the respondents seeking one month's leave reads as follows:
"Dear Madam I was not feeling well since last 3 days. I am under treatment. I per doctor advice I need 1 month leave for further joining the office. Kindly ignore my earlier resignation letter.
ANOOP TRIPATHI DY MGR - MS 7 BEL Bangalore PH 0120 - 2813579."
(Emphasis supplied) In terms of the afore-extracted letter, the petitioner reiterated the withdrawal of the letter of resignation.
10. The entire issue revolves round the letter dated 12.07.2018. The respondents claim to have accepted the resignation on the strength of the letter dated 12.07.2018. Therefore, the letter dated 12.07.2018 is extracted hereunder for quick reference and reads thus:
"To The executive has submitted his Manager resignation dtd 27.6.18. Subsequently he had (HR) requested for withdrawal of the same vide e-
M.S. mail dtd 1.7.2018. However on 12.7.18 he has SBU requested to consider his resignation letter dtd 27.6.18. Hence, the same may be processed further.
Sd/-
12/7/18 8 Dear Madam, Kindly adjust my annual leave in the notice period.
Sd/-
12/07/18 Anoop Tripathi Dy. Mgr. M.S."
11. On the very same day i.e., on 12.07.2018, the respondents accept the resignation by the following letter of acceptance of resignation:
"ACCEPTANCE OF RESIGNATION This has reference to your letter dated 27.06.2018 and 12.07.2018 tendering your resignation from the Company to the post of Deputy Manager.
In this connection we wish to inform you that your resignation has been accepted and you will be relieved form the services of the Company w.e.f.14.07.2018 (AN) subject to payment of dues. The amount 9 due from you the Company shall be communicated to you at the earliest. Also, the final settlement of accounts with the Company will be done in due course and intimated to you".
The afore-extracted impugned resignation speaks of two letters. The first one, dated 27.06.2018 - the initial letter of resignation submitted by the petitioner which was withdrawn on 29.06.2018, and the other is 12.07.2018, where the petitioner never stated that his resignation should be accepted. Thus, the acceptance of resignation after the petitioner having withdrawn the same, again on a doubtful document of 12.07.2018, where the petitioner never reiterated his resignation, cannot but be termed as illegal.
12. The subsequent correspondences of the respondents with the petitioner assume significance.
10On 13.07.2018, the very next day after acceptance of the resignation, the respondents communicate that the petitioner would be relieved from services subject to the payment of dues to the respondents - BEL.
The communication reads as follows:
"With reference to the acceptance of your resignation, the dues payable by you to the Company under various heads is as given below.
1. Notice pay (49 days) ...Rs.1,12,757/-
2. PDA (260 days) ...Rs. 39,910/-
TOTAL ...Rs.1,52,668/-
[Rupees One Lakh Fifty two thousand six hundred and sixty eight only] Further, note that you will be relieved from the services of the Company subject to payable of the Company Dues."
(Emphasis supplied) and notwithstanding the afore-extracted conditional relieving communication dated 14.07.2018, he is hurriedly relieved from services stating that the amount in due indicated in the letter dated 13.07.2018 will be set off against the final settlement of dues payable to the petitioner.
1113. If the links in the chain with regard to the afore-extracted contents of the documents are noticed, it becomes unmistakably clear that the petitioner did resign, but withdrew his resignation, and the respondents after withdrawal of the resignation accepted the same and hurriedly relieved him from service and on their own volition deposited the amount towards his terminal benefits, after deducting the aforesaid amount into the account of the petitioner without there being any request by the petitioner for the immediate release of his terminal benefits, which was on 22.10.2019.
14. The line of law laid down by the Apex Court in identical circumstances has been that acceptance of resignation after its withdrawal by an employee and consequently relieving him would be contrary to law.
The Apex Court in the case of SRIKANTHA S.M. vs. 12 BHARATH EARTH MOVERS LIMITED reported in (2005) 8 SCC 314, considering the entire spectrum of law concerning resignation/voluntary retirement and its withdrawal has held as follows:
"12. Now, let us consider the controversy on merits. The term "resignation" has not been defined in the Service Rules. According to the dictionary meaning, however, "resignation" means spontaneous relinquishment of one's own right. It is conveyed by the Latin maxim Resignatio est juris propii spontanea refutatio (Resignation is a spontaneous relinquishment of one's own right.) In relation to an office, resignation connotes the act of giving up or relinquishing the office. "To relinquish an office" means "to cease to hold the office" or "to leave the job" or "to leave the position". "To cease to hold office" or "to lose hold of the office"
implies to "detach", "unfasten", "undo" or "untie" "the binding knot or link" which holds one to the office and the obligations and privileges that go with it.
13. In Union of India v. Gopal Chandra Misra [(1978) 2 SCC 301 : 1978 SCC (L&S) 303 : (1978) 3 SCR 12] this Court held that a complete and effective act of resigning an office is one which 13 severs the link of the resignor with his office and terminates its tenure.
14. In Balram Gupta v. Union of India [1987 Supp SCC 228 : 1988 SCC (L&S) 126 : (1987) 5 ATC 246] this Court reiterated the principle in Gopal Chandra Misra [(1978) 2 SCC 301 : 1978 SCC (L&S) 303 : (1978) 3 SCR 12] and ruled that though that case related to resignation by a Judge of the High Court, the general rule equally applied to government servants.
15. The learned counsel for the parties drew our attention to some of the decisions of this Court on the point.
In Punjab National Bank v. P.K. Mittal [1989 Supp (2) SCC 175 : 1990 SCC (L&S) 143 : (1990) 12 ATC 683] an employee resigned from service of the Bank by a communication dated 21-1- 1986. It was to be effective from 30-6- 1986. The Deputy General Manager who was the competent authority under the Service Regulations, accepted the resignation as per the letter of resignation i.e. with effect from 30-6-1986. The employee, however, received a letter from the Bank on 7-2-1986 informing him that his resignation letter had been accepted by the competent authority with immediate effect and consequently he was being relieved from the service of the Bank with effect from that day i.e. from 7-2-1986. The employee, therefore, filed a petition 14 challenging the validity of the purported acceptance of his resignation with effect from 7-2-1986 and for a direction to the Bank to treat him in service up to 30-6- 1986 by granting all consequential benefits. The matter, however, did not end there. On 15-4-1986, the employee addressed a letter to the Bank purporting to withdraw his resignation letter dated 21-1-1986. The question which came up for consideration was as to whether the subsequent development could be taken into account and whether the employee continued in service in view of the withdrawal of resignation dated 15-4-1986. Accepting the contention of the employee that he continued in service, the Court held that his resignation could take effect from 30-6- 1986 or on expiry of three months' period provided in the Service Regulations and before that period he could withdraw the resignation. Since he had withdrawn the resignation before 30-6-1986, he continued to remain in service with the Bank.
16. It was urged on behalf of the Bank that Regulation 20(2) provided for notice to protect the interest only of the employer (Bank) and to enable it to make other arrangements in the place of the resigning employee. The proviso to clause (2) enabled the Bank to reduce the notice period to less than three months and as such it was not obligatory for the Bank to wait till the notice period would expire.
1517. This Court, however, did not agree with the interpretation. Dealing with the object underlying such provision as giving opportunity to both, the employer as well as the employee, the Court stated:
(SCC pp. 179-80, para 7) "We are of the opinion that clause (2) of the regulation and its proviso are intended not only for the protection of the bank but also for the benefit of the employee. It is common knowledge that a person proposing to resign often wavers in his decision and even in a case where he has taken a firm decision to resign, he may not be ready to go out immediately. In most cases he would need a period of adjustment and hence like to defer the actual date of relief from duties for a few months for various personal reasons. Equally an employer may like to have time to make some alternative arrangement before relieving the resigning employee. Clause (2) is carefully worded keeping both these requirements in mind. It gives the employee a period of adjustment and rethinking. It also enables the bank to have some time to arrange its affairs, with the liberty, in an appropriate case, to accept the resignation of an employee even without the requisite notice if he so desires it. The proviso in our opinion should not be 16 interpreted as enabling a bank to thrust a resignation on an employee with effect from a date different from the one on which he can make his resignation effective under the terms of the regulation. We, therefore, agree with the High Court that in the present case the resignation of the employee could have become effective only on or about 21-4-1986 or on 30-6-1986 and that the bank could not have 'accepted' that resignation on any earlier date. The letter dated 7-2-1986 was, therefore, without jurisdiction."
(emphasis supplied)
18. In Balram Gupta [1987 Supp SCC 228 : 1988 SCC (L&S) 126 : (1987) 5 ATC 246] referred to above, the employee withdrew his notice of voluntary retirement on account of persistent and personal requests from the staff members. But the prayer for withdrawal was not allowed by the employer on the ground that it had already been accepted by the Government. Moreover, Rule 48-A(4) of the Central Civil Services (Pension) Rules, 1972 precluded the government servant from withdrawing his notice except with specific approval of the appointing authority.
19. Deprecating the stand taken by the Government, this Court held that it was not proper for the Government not to accede to the request of the employee. "In 17 the modern age we should not put embargo upon people's choice or freedom",-- stated the Court (SCC pp. 235- 36, para 12).
20. The Court added: (SCC p. 236, para 13):
"In the modern and uncertain age it is very difficult to arrange one's future with any amount of certainty; a certain amount of flexibility is required, and if such flexibility does not jeopardise Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful attitude. The court cannot but condemn circuitous ways 'to ease out' uncomfortable employees. As a model employer the Government must conduct itself with high probity and candour with its employees."
21. In Power Finance Corpn.
Ltd. v. Pramod Kumar Bhatia [(1997) 4 SCC 280 : 1997 SCC (L&S) 941] a workman applied for voluntary retirement pursuant to the scheme framed by the Corporation to relieve surplus staff. The 18 Corporation vide an order dated 20-12- 1994 accepted voluntary retirement of the workman with effect from 31-12-1994 subject to certain conditions. Subsequently, however, the Corporation withdrew the scheme. It was held that the order dated 20-12-1994 was conditional and unless the employee was relieved from the duty on the fulfilment of those conditions, the order of voluntary retirement did not become effective. The employee, therefore, could not assert that the voluntary retirement was effective and claim benefits on that basis.
22. The Court said: (SCC p. 282, para
7):
"7. It is now settled legal position that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end. Since the order accepting the voluntary retirement was a conditional one, the conditions ought to have been complied with. Before the conditions could be complied with, the appellant withdrew the scheme. Consequently, the order accepting voluntary retirement did not become effective. Thereby no vested right has been created in favour of the respondent. The High Court, therefore, was not right in holding that the respondent has 19 acquired a vested right and, therefore, the appellant has no right to withdraw the scheme subsequently."
(emphasis supplied)
23. In J.N. Srivastava v. Union of India [(1998) 9 SCC 559 : 1998 SCC (L&S) 1251] a notice of voluntary retirement was given by an employee on 3-10-1989 which was to come into effect from 31-1-1990.
The notice was accepted by the Government on 2-11-1989 but the
employee withdrew the notice vide his letter dated 11-12-1989. It was held that withdrawal was permissible though it was accepted by the Government, since it was to be made effective from 31-1-1990 and before that date it was withdrawn.
24. In Shambhu Murari Sinha v. Project and Development India [(2000) 5 SCC 621 : 2000 SCC (L&S) 741] (Shambhu Murari Sinha I) an application for voluntary retirement of an employee dated 18-10-1995 was accepted by the employer vide letter dated 30-7- 1997 with further intimation that "release memo along with detailed particulars will follow". The workman was actually relieved on 26-9-1997. In the meanwhile, however, by a letter dated 7-8-1997, he withdrew the application dated 18-10-1995, by which he sought voluntary retirement. It was held that the effective date of voluntary 20 retirement was 26-9-1997 and before that date it was permissible for the workman to withdraw his retirement. The appellant was, therefore, held entitled to remain in service.
25. In Shambhu Murari Sinha v. Project and Development India Ltd. [(2002) 3 SCC 437 : 2002 SCC (L&S) 444] (Shambhu Murari Sinha II), the view taken in Shambhu Murari Sinha I [(2000) 5 SCC 621 : 2000 SCC (L&S) 741] was reiterated. It was held that when voluntary retirement was withdrawn by an employee, he continued to remain in service. The relationship of employer and employee did not come to an end and the employee had locus penitentiae to withdraw his proposal for voluntary retirement. He was, therefore, entitled to rejoin duty and the Corporation was bound to allow him to work."
If the facts obtaining in the case on hand is considered on the bedrock of the law laid down by the Apex Court in the afore-extracted judgment are noticed, it would be clear that the petitioner was entitled to withdraw his resignation before its acceptance and relieving the petitioner on its acceptance becomes contrary to law 21 and would stand vitiated and the petitioner would be entitled to reinstated into service.
15. Having held that the acceptance of resignation and its consequential relieving to be vitiated, the issue remains as to whether the petitioner would be entitled to arrears of salary on his reinstatement, notwithstanding the fact that he was out of employment and has not performed any duty.
The principle of 'no work no pay' will not be applicable to the facts obtaining in the case on hand, in view of the law laid down by the Apex Court in the case of J.N.SRIVASTAVA VS. UNION OF INDIA reported in (1998) 9 SCC 559, which reads as follows:
"3. The short question is whether the appellant was entitled to withdraw his voluntary retirement notice of three months submitted by him on 3-10-1989 which was to come into effect from 31-1- 1990. It is true that this proposal was accepted by the authorities on 2-11-1989. But thereafter before 31-1-1990 was 22 reached, the appellant wrote a letter to withdraw his voluntary retirement proposal. This letter is dated 11-12-1989. The said request permitting him to withdraw the voluntary retirement proposal was not accepted by the respondents by communication dated 26-12-1989. The appellant, therefore, went to the Tribunal but the Tribunal gave him no relief and took the view that the voluntary retirement had come into force on 31-1-1990 and the appellant had given up the charge of the post as per his memo relinquishing the charge and consequently, he was estopped from withdrawing his voluntary retirement notice. In our view the said reasoning of the Tribunal cannot be sustained on the facts of the case. It is now well settled 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. The said view has been taken by a Bench of this Court in the case of Balram Gupta v. Union of India [1987 Supp SCC 228 : 1988 SCC (L&S) 126 :
(1987) 5 ATC 246] . In view of the aforesaid decision of this Court it cannot be said that the appellant had no locus standi to withdraw his proposal for voluntary retirement before 31-1-1990. It is to be noted that once the request for cancellation of voluntary retirement was rejected by the authority concerned on 26-12-1989 and 23 when the retirement came into effect on 31-1-1990 the appellant had no choice but to give up the charge of the post to avoid unnecessary complications. He, however, approached the Tribunal with the main grievance centering round the rejection of his request for withdrawal of the voluntary retirement proposal. The Tribunal, therefore, following the decision of this Court ought to have granted him the relief.
We accordingly, allow these appeals and set aside the orders of the Tribunal as well as the order of the authorities dated 26-12- 1989 and directed the respondents to treat the appellant to have validly withdrawn his proposal for voluntary retirement with effect from 31-1-1990. The net result of this order is that the appellant will have to be treated to be in service till the date of his superannuation which is said to be somewhere in 1994 when he completed 58 years of age. The respondent-authorities will have to make good to the appellant all monetary benefits by treating him to have continuously worked till the date of his actual superannuation in 1994. This entitles him to get all arrears of salary and other emoluments including increments and to get his pensionary benefits refixed accordingly. However, this will have to be subject to adjustment of any pension amount and other retirement benefits already paid to the appellant in the meantime up to the date of his actual superannuation. It was submitted by learned Senior Counsel for the respondent-
24authorities that no back salary should be allowed to the appellant as the appellant did not work and therefore, on the principle of "no work, no pay", this amount should not be given to the appellant. This submission of learned Senior Counsel does not bear scrutiny as the appellant was always ready and willing to work but the respondents did not allow him to work after 31-1-1990. The respondents are directed to make available all the requisite monetary benefits to the appellant as per the present order within a period of 8 weeks on the receipt of copy of this order at their end. Office shall send the same to the respondents at the earliest.
In terms of the law laid down in the afore-
extracted judgment, it is to be noticed that the petitioner was always ready and willing to work and it is the illegal act of the respondents of having accepted his resignation and relieving him from duties, stopped the petitioner from working. Hence, the principle of 'no work and no pay' will not be applicable to the facts of the case and the petitioner will be entitled to all service benefits that would be available to a serving 25 employee. Since the respondents have already credited the terminal benefits to the account of the petitioner in terms of the communication dated 22.10.2019, the respondents shall set off the same against the arrears of salary that becomes payable to the petitioner on account of his reinstatement.
16. In view of the preceding analysis, the following:
ORDER a. The writ petition is allowed.
b. The letter of acceptance dated 12.07.2018 -
Annexure 'E' and the relieving letter dated 14.07.2018 - Annexure 'G' are set aside.
c. The petitioner shall be reinstated into service with all consequential benefits, i.e., arrears of salary and increments that fell due during the period he was out of employment.
26d. The respondent - employer shall set off the refund of terminal benefits against the arrears of salary that is payable to the petitioner to the extent of the terminal benefits paid.
e. The aforesaid exercise shall be completed by the respondents within eight weeks from the date of the receipt of a copy of the order.
Sd/-
JUDGE nvj CT:MJ