Central Administrative Tribunal - Chandigarh
Suresh Kumr Panchal vs D/O Post on 20 December, 2017
Author: P.Gopinath
Bench: P.Gopinath
( O.A.No.060/00893/2016) 1
( Suresh Kumar vs. UOI & Ors. )
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A.NO. 060/00893/2016 Date of order:- 20.12.2017.
Coram: Hon'ble Mr. Sanjeev Kaushik, Member (J)
Hon'ble Mrs.P.Gopinath, Member (A).
Suresh Kumar Panchal son of Sh. Ram Gopal, resident of House
No.915, Ward No.12, Azad Nagar, Kurukshetra.
......Applicant.
( By Advocate :- Mr. R.P.Mehra )
Versus
1. Union of India through its Secretary, Ministry of
Communication, Government of India, New Delhi.
2. The Chief Post Master General, Haryana Circle, Ambala.
3. The Superintendent of Post Offices, Kurukshetra Division,
Kuruskehtra.
...Respondents
( By Advocate : Shri Ram Lal Gupta).
ORDER
Sanjeev Kaushik, Member (J):
Applicant Suresh Kumar has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, for quashing the letters dated 22.1.2010, 12.7.2010 (Annexures A-10 & A-13), order dated 27.12.2010 (Annexure A-15) & para 13 of memo dated 15.3.2012 (Annexure A-18), whereby the respondents have ordered that during the absence period of the applicant i.e. with effect from 16.2.2010 till he joins duty will not be ( O.A.NO. 060/00893/2016 ) 2 ( Suresh Kumar vs. UOI & Ors.) entitled to any salary for the intervening period on the principle of "No Work No Pay".
2. Facts of the case are that the applicant joined the service of the respondent department as Postal Assistant in the year 1995 and he continued to perform his duties till 6.9.2009. Due to some domestic circumstances, the applicant tendered his resignation with three months notice vide letter dated 7.9.2009. The applicant has stated that the Superintendent Post Offices, Kurukshetra, vide letter dated 14.9.2009 has intimated the Postmaster, Kurukshetra, HO, that the resignation of the applicant cannot be accepted as the official was awarded punishment of stoppage of one increment for a period of one year vide memo dated 12.12.2008.
3. On receipt of the reply from the department, the applicant again wrote letter dated 16.11.2009 to respondent no.3 for accepting his resignation within fortnight failing which he will be compelled to approach the court of law. The applicant was informed by respondent no.3 vide Annexures A-6 & A-7 that his resignation has been submitted to Circle office for further necessary action. The applicant again made a request dated 22.12.2009 (Annexure A-8) to respondent no.3 for considering his case at the earliest as his circumstances are not allowing him to serve the department more.
4. As the resignation of the applicant has not been accepted by the competent authority, the applicant vide his letter dated 13.2.2010 (Annexure A-9) requested the department that his request for acceptance of resignation may kindly be treated as withdrawn. ( O.A.NO. 060/00893/2016 ) 3
( Suresh Kumar vs. UOI & Ors.) However, respondent no.3 vide its memo dated 22.1.2010 had accepted the resignation with effect from 15.2.2010(AN) and the applicant was relieved from his duties on 15.2.2010. After relieving from duties, the applicant submitted a representation dated 9.4.2010 to Chief Postmaster General, Haryana Circle, Ambala ( Respondent no.2 ) that he tendered his resignation in a haste manner and now he request the department for taking me back on duties as his financial condition is not good. However, respondent no.2 vide its order dated 12.7.2010 had rejected the representation of the applicant for withdrawal of his resignation except with the sanction of the Government of India. Feeling dis-satisfied with the order, the applicant preferred an appeal before respondent no.2 on 20.8.2010 which was dismissed on 27.12.2010.
5. The applicant preferred a representation to Director General(Posts), Department of Posts, Dak Bhawan, New Delhi, on 15.3.2011 against the order dated 27.12.2010, for considering his request sympathetically and to allow him to serve the department. On receipt of representation of the applicant, respondent no.1 vide letter dated 2.2.2012 has directed respondent no.2 to consider his request favourably, if there exists a vacant post of PA. In pursuance of memo dated 2.2.2012, respondent no.3 vide order dated 15.3.2012 had accepted the request of the applicant for withdrawal of resignation and the applicant was directed to join his duties at Kurukshetra H.O. In the said order, respondent no.3 has specifically mentioned that during the period of absence from duty i.e. from 16.2.2010 till he join duty will not be entitled to any salary on the principle of " No Work No Pay", however, the applicant is free ( O.A.NO. 060/00893/2016 ) 4 ( Suresh Kumar vs. UOI & Ors.) to convert the intervening period into leave of any kind admissible to him at that time. On receipt of order dated 15.3.2012, the applicant joined his duty on 16.3.2012 and requested the respondent department for treating his intervening period as spent on duty. When no reply was received by him, the applicant through his counsel served a legal notice dated 19.8.2014 for paying him salary for the intervening period i.e. 16.2.2010 to 15.3.2012, but the same was replied by the department vide letter dated 17.10.2014 that the applicant is not entitled to any relief.
6. Pursuant to notice, the respondents have contested the claim of the applicant by filing written statement, wherein they have stated that the present OA is hopelessly barred by the law of limitation. They have stated that the applicant tendered three months notice of resignation on 7.9.2009, but he was informed vide letter dated 14.9.2009 that his resignation cannot be accepted in view of instructions contained in chapter 46 ( resignation ) of Swamy's Compilation Manual on Establishment & Administration. Thereafter, the applicant threatened the department against his non- acceptance of resignation, failing which he will approach the court of law. Finally, his resignation was accepted vide letter dated 13.1.2010 for relieving the applicant with effect from 15.2.2010. However, the applicant vide his letter dated 13.2.2010 had requested the department for withdrawing his resignation. On the date of receipt of application of the applicant for withdrawing his resignation, the competent authority was on tour, as such, his case for withdrawal of resignation could not be considered and the applicant was relieved from duty on 15.2.2010(A/N). On his repeated representations to the ( O.A.NO. 060/00893/2016 ) 5 ( Suresh Kumar vs. UOI & Ors.) higher authorities, the applicant was again directed by the respondents to join duties vide order dated 15.3.2012. They have further stated that the applicant has not furnished the details for converting the intervening period into leave of any kind admissible. They have thus prayed for dismissal of the OA.
7. Learned counsel for the applicant argued that the impugned action of the respondents in not releasing the salary for the intervening period i.e. 16.2.2010 to 15.3.2012 is illegal, arbitrary, thus the same is liable to be struck down because there is no fault on the part of the applicant as he had withdrawn his retirement notice before the intended date.
8. We have heard the learned counsel for the parties and have perused the material placed on record.
9. Per contra, Shri Ram Lal Gupta, learned counsel for the respondents has argued that while issuing reinstatement order dated 15.3.2012, the applicant was informed that he will not be entitled to any salary for the intervening period on the principle of No work No pay, but the official is free to convert the intervening period into leave of any kind admissible. He further argued that only five days leave was to his credit in view of memo dated 1.4.2010 (Annexure A-11), as such no leave was due which can be adjusted/converted during the intervening period of absence i.e. from 16.2.2010 till 16.3.2012. He further argued that the applicant is not entitled to any arrears of pay and allowances for the intervening period on the principle of No Work No Pay.
( O.A.NO. 060/00893/2016 ) 6
( Suresh Kumar vs. UOI & Ors.)
10. We have given our thoughtful consideration to the entire matter and perused the pleadings available on record with the able assistance of the learned counsel for the parties.
11. The short question that arose for our consideration is as to whether the applicant can withdraw the notice for voluntary retirement before the intended date despite the fact that his request for voluntary retirement has been accepted by the competent authority.
12. This issue is no more res-integra. In almost identical fact situation, Hon'ble Supreme Court, in the case of Shambhu Murari Sinha Vs. Project and Development India Ltd. and Another (AIR 2002 S.C. 1341), after considering various judgments including the well-known judgment of Balram Gupta Vs. U.O.I & Ors. , 1997 SCC 228, has held as under:
"8. A Constitution Bench of this Court in Union of India & Others versus Gopal Chandra Misra & Others [(1978) 2 SCC 301] in paragraph 50 held 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 resignor.' (emphasis ours) As stated above in the present case in the VRS, there was no indication regarding effective date of voluntary resignation and there is also no condition that once it was accepted it could not be withdrawn.
9. In Balram Gupta (supra) the principle laid down in Union of India & Others v. Gopal Chandra Misra, (1978) 2 SCC 301, was summarised as follows:-
"A complete and effective act of resigning office is one which severs the link of the resignor with his office and terminates his tenure."
10. In Balram Gupta's case (supra), the appellant-employee offered to voluntary retirement from service w.e.f.31st March, 1981 and accordingly sent a letter within the notice period. However, he changed his mind and sent a letter on 31.01.1981 ( O.A.NO. 060/00893/2016 ) 7 ( Suresh Kumar vs. UOI & Ors.) seeking to withdraw his notice of voluntary retirement but the request was disallowed by the concerned authority on the ground that the withdrawal of notice could only be with the specific approval of the authority. This Court held that the dissolution of the contract of employment would be brought about only on the date indicated i.e.31.03.1981 and upto that date the appellant continued as Government employee. He is at liberty to withdraw his notice of voluntary retirement and for this purpose, prior approval is not required.
11. The decision in J.N. Srivastava versus Union of India [(1998) 9 SCC 559] is also to the same effect. This Court held as follows:-
"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 versus Union of India."
12. In Nand Keshwar Prasad versus Indian Farmers Fertilizers Cooperative Ltd. & Ors. [(1998) 5 SCC 461], in paragraph 11, this Court reiterated that it is open to the employee concerned to withdraw letter of resignation before the date indicated in the notice of voluntary retirement. It was also observed therein:
"It appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date."
13. In Raj Kumar versus Union of India [(1968) 3 SCR 857] the normal rule has been stated as follows:-
"When a public servant invited by a letter of his resignation determination of his employment, his service normally 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 conditions of his 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 in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter."
The above cases may not have direct application to the facts of the present case, however, the principles laid down therein deserve notice.
( O.A.NO. 060/00893/2016 ) 8
( Suresh Kumar vs. UOI & Ors.)
14. In Power Finance Corporation Ltd. versus Pramod Kumar Bhatia [(1997) 4 SCC 280] this Court went a step further and observed thus:-
"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.
Xxx We, therefore, hold that the respondent could not have refused to accept the resignation of the appellant as it was sent before the jural relationship of employee and employer came to an end. Consequently, the impugned judgment is liable to be set aside, which we hereby do. The appellant shall be entitled to rejoin his duty and he shall be paid all his salaries and other benefits during the period he was out from the service. The learned counsel for the respondent has stated that by this time the appellant might have retired from service on attaining the age of superannuation, if that be so, he shall be paid full salary and allowances for the entire period he was out of service till the date of his retirement and thereafter, he shall be entitled to get all retiral benefits counting the above period as if he was in service."
13. Cut in short, it is held by the Lordship that if an employee who submits a notice for voluntary retirement seeks to withdraw his request before intended date then the competent authority cannot be allowed to retire him without there being valid and justified reason. In the present case, we find that the applicant submitted his resignation well before the expiry of three months, but the applicant was relieved from duties only on the ground that the competent authority who had to accept the request of the applicant for withdrawal of notice was on tour. Even the letter dated 2.2.2012 written by respondent no.1 clearly stipulates that "it is not the fault of the applicant that the SSPO was away on tour when he requested for withdrawal of the resignation". ( O.A.NO. 060/00893/2016 ) 9
( Suresh Kumar vs. UOI & Ors.)
14. In view of above discussion, we are of the view that the impugned orders cannot sustain in the eyes of law and accordingly, the same are hereby quashed and set aside. The O.A. is allowed and the respondents are directed to release all consequential benefits to the applicant within a period of three months from the date of receipt of certified copy of this order. No costs.
(SANJEEV KAUSHIK) MEMBER (J) (P.GOPINATH) MEMBER (A).
Dated:- December 20, 2017.
Kks