Andhra HC (Pre-Telangana)
Sudha Nagaraj K. vs Chief Manager, Andhra Bank And Anr. on 23 November, 1995
Equivalent citations: 1996(2)ALT293
ORDER
1. This Writ Petition is filed by the petitioner for quashing the proceedings of the 1st Respondent dated February 13, 1991.
2. The facts in nut shell are that the petitioner was appointed as Clerk under the Respondents on March 29, 1977. During the year 1990, she was working at Gagan Mahal Road Branch. On January 19, 1990, the petitioner submitted resignation on domestic grounds. Her husband was an I.P.S. Officer, stationed at Warangal and on account of education of children, she could not join at Warangal. That apart Warangal being a Naxalite area, it was found to be unsafe for her and her children to stay at Warangal. It is her case that even though she requested the Respondents to permit her to resign, no action was taken and that she had worked up to March 28, 1990, thereafter she applied for leave. However, while the matter stood thus, her husband was again transferred back to Hyderabad from Warangal. As the Respondents had not accepted the resignation and her husband has been posted back to Hyderabad, she made an application on September 19, 1990 withdrawing her resignation dated January 19, 1990 stating inter alia that the request of the petitioner for withdrawal of resignation was not considered and the petitioner was relieved from service with effect from March 28, 1990. It is this letter dated February 13, 1991 which is assailed before this Court.
3. In opposition, a counter-affidavit was filed on behalf of the Respondents stating that the petition is not maintainable under Article 226 of the Constitution of India, that the petitioner can raise the industrial dispute, that the petitioner was in the habit of absenting without leave on number of occasions and she was also punished for unauthorised absence. Even when a request was made by the petitioner for her transfer to Warangal on the ground that her husband was posted as Superintendent of Police, the same was accepted and she was transferred, but however she did not effect the transfer and continued to work at Hyderabad. In her letter dated January 19, 1990, she expressed her intention to tender her resignation and she wanted to be relieved as early as possible. On February 27, 1990, a request was made by the petitioner to adjust all her dues and Gratuity fund etc. She applied for leave from February 12, 1990 to March 3, 1990, March 5, 1990 to March 14, 1990 and from March 21, 1990 to March 24, 1990. She worked from March 26, 1990 and made another representation on April 18, 1990 that dues may be adjusted from terminal benefits and the application for resignation, the particulars relating to the leave were called for and after receipt of the said particulars, the competent authority has accepted the resignation on July 6, 1990. The Gagan Mahal branch was advised on July 6, 1990 to relieve the petitioner immediately after collecting the bank loans etc. As the whereabouts of the petitioner are not known, the Gagan Mahal branch was not in a position to adjust the loan amount and relieve her from service. However, when she visited the branch on September 19, 1990 she was informed orally by the Chief Manager regarding the acceptance of her resignation. On the same day the petitioner submitted a representation withdrawing the resignation. Since the resignation was already accepted on July 6, 1990 the question of withdrawing resignation does not arise. The petitioner was informed by letter dated February 13, 1991 that her request for withdrawal has not been considered and that she was relieved from the Bank service on March 28, 1990 which was her last working day at the Gagan Mahal branch.
4. The crucial question that has to be considered in the Writ Petition is whether as on September 19, 1990 when the application for withdrawal for resignation was submitted by the petitioner, the resignation was accepted and that the petitioner was informed of the acceptance of the resignation.
5. The learned counsel for the petitioner submits that at no point of time the petitioner was informed that her resignation was accepted. It is only by letter dated February 13, 1991 a communication was sent to the petitioner that her request for withdrawal cannot be accepted and she has been relieved from service on March 28, 1990.
6. It is not in dispute that the petitioner submitted an application on January 19, 1990 tendering resignation and requesting the authorities to accept the resignation. She also further requested that she may be relieved as early as possible. The Respondents are required to communicate the acceptance of resignation and to relieve her from service.
7. The learned counsel for the respondent submits that the resignation of the petitioner was accepted by proceedings dated July 6, 1990 and therefore the question of withdrawing on September 19, 1990 does not arise. A perusal of the proceedings dated July 6, 1990 would reveal that it is an inter departmental communication from Head Office to Branch Officer. The said communication is extracted below :
"Subject : Staff - Mrs. Sudha Nagaraj, code No. 6944 - Clerk - Gaganmahal branch - Resignation.
It had been decided to accept the resignation tendered by the above referred employee with immediate effect (i.e. the last day of working at branch). We advise you to arrange for issuance of relieving certificate under advice to us."
It appears that the branch has not taken consequential action of relieving the petitioner duly accepting the resignation.
8. On the other hand on September 19, 1990 the petitioner filed a representation stating that she had submitted a resignation on January 19, 1990 on personal reasons namely that her husband has been transferred back to Hyderabad and she is in a position to continue her job. Under those circumstances, she requested the authorities to permit her to withdraw the resignation letter dated January 19, 1990. To the said letter, the Respondents issued reply on February 13, 1991 rejecting the request. The said letter is extracted below :
"Mrs. Sudha Nagaraj Plot No. 11, Road No. 3, Journalists' colony, Banjara Hills, Hyderabad-34.
Ref. Your request for withdrawal of resignation and relieving.
With reference to your letter dated September 19, 1990 addressed to our General Manager (Personnel), requesting to permit to withdraw your resignation letter dated January 19, 1990, we inform you that your request has not been considered favourably, and hence we hereby relieve you from the Bank services from March 28, 1990 which was the last working day (sic.) at out branch".
Based on this communication, the learned counsel for the petitioner submits that at no point of time, the petitioner was communicated the acceptance of the resignation and she was relieved. It is only in the counter, it was sought to be contended that the petitioner was informed orally by the Chief Manager on September 19, 1990 when she reported to the branch. The communication dated July 6, 1990 addressed to the Head Office from the Branch Office, appears to be only inter departmental correspondence and no such letter for acceptance was sent to the petitioner at any point of time till February 13, 1991.
9. It is now well settled by the decision of the Supreme Court and various High Courts that it is open for the employee to withdraw the resignation before it comes into effect. Admittedly in the instant case the resignation of the petitioner dated January 19, 1990 was never accepted nor acceptance communicated to her till September 19, 1990. In fact it was clearly admitted in the counter in the following sentences :
"Certain particulars were sought for from the Gagan Mahal branch was advised by letter No. 666/3/H1/421, dated September 6, 1990 to relieve the petitioner immediately after collecting the co-operative bank loan and the charge card liability in S.B. Account. In the meanwhile the petitioner's husband was transferred to Hyderabad and her family was shifted from Warangal to Hyderabad. Since, there was no communication from the petitioner and in as much as her address at Hyderabad was not known, the Gagan Mahal branch was not in a position to adjust the said loan and relieve her from the service. However, when she visited the branch on September 19, 1990 she was informed by the Chief Manager of the Branch regarding the acceptance of her resignation and advised her to clear of bank loan and charge card liability."
Thus, it is clear from the above averment that the petitioner was not relieved even as on September 19, 1990. The contention of the Respondents is that the resignation was accepted on July 6, 1990 and therefore she cannot withdraw the resignation. Further in the letter dated February 13, 1991 it was communicated to the petitioner that she was relieved from the bank's service from March 28, 1990. It is not understood whether the petitioner was relieved on March 28, 1990 or July 6, 1990 but the fact remains that she was never informed of the acceptance of the resignation as on September 19, 1990. The contention that the petitioner was orally informed by the Chief Manager of the Branch regarding the acceptance of her resignation cannot he relied on in as much as no communication has been issued to her accepting the resignation.
10. The learned counsel for the petitioner relies on the decision of Jairam v. Union of India, . In the said case the Supreme Court was considering the withdrawal of voluntary retirement of an employee before the expiry of retirement date. The Court held that :
"It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission to change his mind subsequently and ask for cancellation of permission thus obtained; but he can be allowed to do as long as he continues in service and not after it has terminated"
He also relied on Raj Kumar v. Union of India, (1970-I-LLJ-13). It was a case of withdrawal of resignation of an I.A.S. Officer in Government of India, while dealing with the case, the Supreme Court held, that (Para 5) at p. 15 "Where a public servant has invited by his letter of 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. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant has locus ponitentiae but not thereafter. Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation has not been accepted".
The Division Bench of this Court in N. Ranga Rao v. Govt. of India, (1986-II-LLJ-1) after considering the case law on the point copiously, K. Ramaswami J., as he then was speaking for the Bench held, that :
"Where request has been made by a Government servant to voluntarily resign or retire from service, acceptance thereof is a condition precedent. It becomes effective in terms of the statutory rules or instruction having the force of law. In its absence normally it becomes effective from the date of its acceptance by the competent authority. The communication thereof is mandatory. The acceptance becomes effective in the eye of law only on its service on the officer and thereafter becomes liable to be relieved from duty. No rights of the third parties are involved or affected by the acts of the officer in the interregnum. Relieving an officer from duty brings about cessation of his right to hold the office. Before he is relieved, the Government servant has locus ponitentiae to withdraw his application requesting voluntary retirement. Permission for cancellation can be allowed so long as he continues to be in service and not after it was terminated or relieved or ceased to discharge his duties and drawing his salary. From this perspective, we hold that mere acceptance of the request of the appellant for voluntary retirement is not conclusive. Its communication is mandatory and it becomes effective from the date of its service, viz.., July 2, 1983 by which date the appellant has already withdrawn his letter i.e., on May 27, 1983."
While angulating the issue from the perspective of Indian Contract Act, 1873, the learned Judge said that even under the contractual relationship of master and servants it is open for the employee to withdraw the offer (resignation) before its acceptance is communicated to him. In the instant case admittedly there are no Statutory Rules nor administrative instructions as to the mode and method of accepting the resignation. Therefore it only follows that the acceptance of resignation should be communicated. It would be apt to reproduce the minority view of Fazal Ali J. in Union of India v. Gopalchand Misra, (1978-I-LLJ-492) (SC).
"Where a resignation given by a Government servant is dependent for its effectiveness on the acceptance by the appropriate authority, the Government servant concerned has an unqualified right to withdraw the resignation until the same is accepted by the authority. In other words, the position is that where the resignor has a right to resign but the resignation can be effective only after acceptance, it is a bilateral act. This is to say, resignation by one authority and acceptance of the resignation by the other authority. Unless the two acts are completed, the transaction remains in an inchoate form. That is to say a resignation sent by a servant is no resignation in the eye of law until accepted by the employer and so long as it is not an effective resignation there can be no bar to withdrawing the same".
In Punjab National Bank v. P. K. Muttal, (1989-I-LLJ-368) (SC) it is held in para 8 that before the resignation becomes effective, the employee can withdraw his resignation. In that case the resignation stands withdrawn and the employee continues to be in service of the bank. No specific provision is necessary for permitting the employee to withdraw the resignation. On general principles the employee can withdraw resignation.
In W.P. No. 16747/86, the learned Single Judge Syed Shah Mohammed Quadri, J., while dealing with the resignation of an employee in B.H.E.L. held that withdrawal of resignation, before the effective date ought to be accepted.
11. The learned counsel for the Respondent Bank relied on Raj Kumar v. Union of India, (supra) and Union of India v. Gopal Chandra Misra, (Supra). I have already extracted relevant para from Raj Kumar's case. He relies on para 48 in Misra Case, which is extracted below :
"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 resignor. 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 case of a Judge of a High Court, 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 he effective withdraws it, because the Constitution does not bar such withdrawal".
The above two cases were considered by the Division Bench of this Court in Ranga Rao's case (supra) and the conclusions have been extracted supra.
12. Applying the principles laid down by the Supreme Court it has to be held that it is always open for the employee to withdraw his resignation, before the expiry of the effective date. Even in case where no effective date is stipulated, the resignation can be withdrawn before the acceptance of the resignation is communicated. In the instant case no effective date has been notified by the employee and what all she stated in her letter dated January 19, 1990 was that she intended to tender resignation due to domestic reasons and that the same may be accepted and she may be relieved. As per the counter of Respondents, the petitioner was not relieved as on September 19, 1990 nor the acceptance of resignation was communicated. Therefore, it has to be held that there was no acceptance of resignation in the eye of law.
13. The Respondents have come forward with strange plea that the acceptance of resignation was informed to the petitioner orally by the Chief Manager on September 19, 1990 when she attended the Bank and therefore, it shall be deemed that there is a valid communication of acceptance of resignation. I am afraid, I cannot accept this plea for the simple reason, when a resignation was tendered in writing, it has to be accepted only in writing and the acceptance of resignation cannot be communicated orally. The resignation puts an end to the service of the employee. Therefore, the resignation can neither be tendered orally, nor it can be accepted orally. The theory of oral acceptance of resignation is unknown to the administration, more especially in the Banking-sector where the terms and conditions of service are crystalised in the form of Awards and Settlement.
14. Considering the above facts and circumstances of the case, I hold that as on September 19, 1990 the resignation submitted by the petitioner dated January 19, 1990 was not accepted nor the petitioner was relieved from the service. Thus, she continued to be the employee of the bank as on September 19, 1990, when the application for withdrawal was filed by the petitioner. Therefore, the petitioner is entitled to withdraw the resignation and consequently the communication of the Respondents dated February 13, 1991 rejecting the request for withdrawal of resignation is liable to be declared as illegal and invalid.
15. The learned counsel for the Respondents again sought to contend that under Regulation 20(2) of Andhra Bank Services Regulation, three months notice is necessary prior to resignation and therefore the petitioner is deemed to have resigned after expiry of three months time from January 19, 1990. Hence it comes into effect from April 18, 1990. The learned counsel also alternatively submits that under Bipartite settlement, one month notice is necessary for relinquishing the employment. Therefore, even under the said provision, she is deemed to have resigned from service with effect from February 18, 1990. I cannot accept both the contentions. It is not the case of the Respondents that as per communication dated February 13, 1991 that the resignation is deemed to have come into effect either by virtue of the Regulation or by virtue of the Bipartite settlement. Under the said letter dated February 13, 1991 it was only mentioned that the request for withdrawal was not accepted as she was relieved from service from March 28, 1990, the day on which the petitioner last worked in Gagan Mahal branch. Therefore, the said contention is liable to be rejected.
16. The learned counsel for the Respondents also submitted that the intention of the petitioner was to leave the service of the bank on account of the domestic problems, hence she need not wait till the acceptance is formally communicated and that the resignation is deemed to have been communicated from the date she voluntarily abstains from duty. I cannot accept this contention also in view of the decision of the Supreme Court and this Court cited supra.
17. In view of the foregoing discussions, the impugned communication of 1st Respondent on February 13, 1991 is quashed. Consequently, the petitioner shall be deemed to be in continuous service and she is entitled for the arrears of salary and other benefits. There shall be no order as to costs.