Central Administrative Tribunal - Delhi
Sh.Surjeet Singh Chawla vs Uoi & Ors. Through on 4 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA -667/2011
New Delhi this the 4th day of July, 2011
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A)
Sh.Surjeet Singh Chawla
S/o Sh.Manohar Singh Chawla
R/o N-19, Dr.Mukherjee Nagar,
Near Batra Cinema,
New Delhi-110009. .. Applicant.
(By Advocate:Shri M.K.Bhardwaj)
Versus
UOI & Ors. Through:
1. The Secretary
Ministry of Communication
Sanchar Bhawan,
New Delhi.
2. The Chairman & Managing Director
Bharat Sanchar Nigam Ltd.,
Janpath, New Delhi.
3. Sh. KR Tiwari
Joint Dy. Director General,
Bharat Sanchar Nigam Ltd.,
Janpath, New Delhi.
4. The PGM (Finance and Pers)
BSNL, Bharat Sanchar Bhawan,
Janpath, New Delhi.
5. The General Manager (Finaance)
Bharat Sanchar Nigam Ltd.,
Office of CGMT, Punjab Circle,
Sanchar Sadan,
Plot No.2, Sector-34-A,
Chandigarh. Respondents.
(By Advocate: Shri Jagdish Kumar)
ORDER
Shri G.George Paracken, Member (J) The grievance of the applicant in this Original Application is against the rejection of his application for withdrawal of the resignation from service submitted by him.
2. Brief Facts: The applicant on his appointment as a Junior Accounts Officer (JAO) in BSNL was posted in the office of GMTD BSNL Ferozpur, Punjab on 26.5.2004. Serving for some time there, he made a request to the Respondents for his transfer to Delhi stating that his mother has been a patient of Schizophrenia since 1971 and, in his absence, no one else was there to look after her. Thereafter, the Applicants father made a representation to the Minister of Communications on 25.01.2005 explaining the position. Again, since there was no response, his father sent a reminder on 15.4.2005 followed by another one on 05.06.2006 requesting the respondents to transfer his son to Delhi so that he could take care of his ailing mother. Thereafter, vide Annexure A-5 letter dated 03.7.2006 the Respondent No. 5 forwarded his representation with recommendation not to consider the same due to following reasons:-
1. As per conditions of para 38 transfers, the officer has to work in the allotted Circle for at least 5 years, but the officer is working in the Circle since 26-05-2004.
2. In Punjab Circle there is acute lshortage of 60% in the cadre of JAOs. The Santioned strength of JAOs in Punjab Circle is 314 and working only 136 JAOs and any depletion is likely to effect the work adversely.
3. In the meanwhile applicant got married on 25.3.2007 and his wife was taking care of his ailing mother. However, his mother did not show any improvement but on the contrary, she increasingly became more violent and aggressive because of the nature of the disease itself. As such, it became difficult for her or his old father to take care of his mother. Finally, the Applicants wife made the Annexure A/4 representation dated 16.7.2007 to the Prime Minister with the request to impress upon the authorities to transfer her husband from Ferozpur (Punjab Circle) to Delhi on extreme compassionate and humanitarian grounds. Since the respondents were not even considering his various request for a transfer to Delhi, he made a fresh request to the respondent No.3 to transfer him at least to Chandigarh which is a nearby place. Thereafter, on 23.5.2008, the respondents issued an order transferring him from Punjab Circle to DC Chandigarh with the direction to the Respondent No. 5 to relieve him even without waiting for a substitute. On the basis of the said order, DE(Admn) has also issued the order dated 2.6.2008 whereby the applicant was transferred from Punjab Circle to DC (ITPC) Chandigarh. However, the Respondent No. 5 has neither served the said order on the Applicant nor its contents have been disclosed to him. According to the applicant, unaware of the aforesaid transfer order and out of sheer frustration, he submitted his resignation from the post of JAO vide Annexure A-9 letter dated 05.06.2008, stating the reason as unavoidable family circumstances.. The respondents, vide the Annexure-A2 order dated 03.7.2008, accepted his resignation w.e.f. 30.6.2008 or from the date of his actual relieving, whichever was later. Thereafter, he was relieved on 03.07.2008. When the applicant came to know that his request for transfer from Ferozpur to Chandigarh was actually accepted much before the submission of his application for resignation, he made the Annexure A-10 detailed representation dated 29.7.2008 withdrawing his resignation. However, since the respondents did not take any action on the same, he made an application dated 26.09.2008 under the Right to Information Act to know the status of his request for withdrawal of his resignation. Lastly, vide Annexure-A letter dated 18.10.2008, the Respondent No.2 informed him that the Competent Authority has declined to accept his request for withdrawal of the resignation.
3. Thereafter, he approached this Tribunal by filing OA No.1471/2009 and the same was disposed of vide Annexure A-14 Order dated 16.8.2010 with a specific direction to the respondents to re-consider his case taking into account the relevant rules/instructions adopted by BSNL on the subject within three months. The relevant part of the said order is as under:
6.2 The attempt on the part of the learned counsel for the respondents to disown their stand as revealed under the RTI is not found to be tenable. Since BSNL is a Public Sector Undertaking, it is free to formulate its own rules or adopt with regard to any aspect of service conditions of its employees from the Central Government or any other source. Further, the impugned order or the Counter Affidavit do not reveal that while rejecting the applicants withdrawal request the respondents have taken into consideration the aspect regarding applicability or otherwise of the enabling provision under the CCS (Pension) Rule 26 (4) in this case. In this context the averment of the learned counsel regarding suo-motu non-applicability of the CCS (Pension) Rules in view of the Rule (2) may not be acceptable.
7. In view of the foregoing, in the interest of equity, this OA is disposed by remitting the matter to respondent no.2 for a fresh consideration particularly taking into account the relevant rules/executive instructions being adopted by the BSNL on the subject and dispose it by a speaking and reasoned order. This is to be done within a period of three months from the date of passing of this order. No order as to costs.
4. Thereafter, the 5th respondent passed the impugned Annexure A-1 order dated 1.12.2010 rejecting his request to withdraw his resignation letter for the following reasons:-
E. Since BSNL does not have its own rules/regulations/executive instructions concerning acceptance/rejection of the request for withdrawal of a resignation by directly recruited employees of BSNL, the Law declared by the Honble Supreme Court of India holds the field.
F. The Honble Supreme Court of India in several cases including Balram Gupta Vs Union of India ^ Anr 1987 AIR 2354, 1987 SCC Supl. 228, Union of India Vs. Shri Gopal Chandra Misra and Others [1978] 3 S.C.R. 12, and Raj Kumar Vs. Union of India 1969 AIR 180, 1968 (3) SCR 875 has held that, a 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. And that 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.
G. In the light of the afore said Law declared by the Honble Supreme Court of India Shir Surjeet Singh Chawla has had no legality enforceable right to withdraw his resignation on 29.07.2008 after his resignation had already become effective on 03.07.2008.
(i) Rule 2 concerning applicability of the CCS (Pension) Rules, 1972, provide that these rules shall apply to Government servants appointed on or before 31st day of December,2003 but shall not apply to persons entitled to the benefit of a Contributory Provident Fund.
(ii) Shri Surjeet Singh Chawla, was not a Government Servant because he was appointed as Junior Accounts Officer, BSNL through direct recruitment and was thus, an employer of BSNL appointed w.e.f. 26.05.2004.
(iii) Shri Surjeet Singh Chawla was entitled to and had actually availed of the benefit of EPF.
5. The applicant has filed the present OA again and sought a direction from the respondents to quash and set aside the impugned orders dated 3.7.2008, 18.10.2008 and 1.12.2010 and to allow him to withdraw his resignation with all consequential benefits, on the following grounds :-
1. While passing the impugned order, the Respondents have ignored the findings of the Tribunal in its earlier order.
2. The Respondents have been taking contradictory stand. On the one hand, it has stated in the impugned order that the BSNL does not have its own rules/regulations/executive instructions concerning the acceptance/rejection of the request of withdrawal, on the other hand it has stated that CCS(Pension) Rules, 1972 are applicable to BSNL staff but not the appointees of the year 2004. They tried to misinterpret the applicability of Rule 2 of the said Rules to the Govt. Servants appointed after 21.12.2003. They have also violated Sub Rules (2) to (6) of Rule 26 of the said Rules.
3. The Sr. Accounts Officer cheated the Applicant in not disclosing his posting near his home town issued in July, 2008.
4. The resignation was accepted by a non-competent authority. The application for withdrawal was also rejected by a non-competent authority, namely, the CAO, Chandigarh Circle.
5. Applicant has not resigned from service not because of his sweet will but because of compelling circumstances.
6. Applicants request for transfer was clearly covered under para 38 of P&T Manual.
6. Learned counsel for the applicant has relied upon the judgment of High Court of Delhi WP(C ) No.3303 - Nirmal Verma Vs. MCD & Anr., the relevant part of which is as under:-
It would, thus, be seen that in the cases cited above and as also in Durgesh Mohanpurias case which is the latest case processed after the petitioners case, the respondents have taken a consistent position that legally it is permissible for them to allow withdrawal of resignation after its acceptance and have followed the practice of restoration of service. In the petitioners case also accordingly there is no ground made out for adopting a different yardstick or contrary legal submission to defeat the petitioners case. Petitioner had also within a month of the acceptance of her resignation and within a week of her losing the election requested for being permitted to withdraw the resignation in accordance with Rule 26(4) of CCS Pension Rules. It is not the case of respondents that petitioners was not having a good record or had been guilty of any misconduct or impropriety or it being a case of any doubt on the integrity etc. Denial of reinstatement in service to the petitioner and not treating the petitioner at par with others in the absence of any distinguishing feature, renders the respondents action arbitrary and tantamount to denial of equality as guaranteed under Article 14 of the Constitution of India. Reference in this regard may be made to Sengara Singh and Ors. Vs. State of Punjab & Ors. Reported at (1983) 4 SCC 225.
The impugned orders are accordinglynot sustainable. Writ of certiorari is issued quashing orders dated 31.5.2002, Annexure P-1 and order dated 10.3.2003 Annexure P-2. As noted earlier petitioners resignation had been accepted on 4.3.2001 and she had sought withdrawal of the same on 1.4.2002. Upon failing to get any administrative relief in representation, petitioner filed writ petition in May, 2003.
In view of the foregoing discussion, the petitioners request for withdrawal of resignation is liable to be processed and allowed on the same basis and the legal position as adopted by respondents in the cases noted earlier. The intervening period is also liable to be treated as dies non as per their precedent. Respondents to process the petitioners case and pass necessary orders within one month from today.
7. The respondents have reiterated their earlier position in their reply also. They have further submitted that applicant had no legally enforceable right to withdraw his resignation on 29.7.2008 after it has already become effective on 03.7.2008. According to them, they also do not have their own rules/regulations/executive instructions concerning withdrawal of resignation but at the same time the provisions of the CCS(Pension) Rules, 1972 are not applicable in the case of the applicant as in the case of other government servants who have been appointed after 31.12.2003. Further, the applicant is not a Government servant but a directly recruited employee of BSNL covered by EPF. Therefore, the Applicants contention that the rejection of his applications for withdrawal of resignation was contrary to Rule 26 sub-rule (4) of the CCS Pension Rules is wrong. In this regard, they have referred to the earlier Order of this Tribunal dated 18.10.2008 in OA-1471/2009 wherein it has been stated as under:-
without entering into the contentious facts regarding the background o f the applicants request for transfer, we only would like to go by the basic facts relevant for adjudication of the claims raised in this OA. These are(a)whether the BSNL had any rules/instructions of its own on the subject of resignation, its withdrawal and acceptance and (b) whether the provisions of the CCS (Pension) /Rule 26, sub-rule (4) can be deemed to be attracted in this case.
8. They have also relied upon the judgment of the Apex court in UOI Vs. G.C.Misra and Ors. 1978 AIR (SC) 694, the operative parts of which is as under:-
48. It will bear repetition that the general principle is that in the absence of a legal, 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 a Government servant/or functionary who cannot under the conditions of his service/or office, by his own unilateral act of tendering resignation, given 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.
9. We have heard learned counsel for the parties and perused the entire documents available on record. As observed earlier in this order, this Tribunal has already considered the validity of order dated 3.7.2008 accepting the resignation of the Applicant and the subsequent order dated 18.10.2008 rejecting his request for withdrawal of resignation. In the said order, the Tribunal raised the following two questions for the adjudication of the contention raised by the Applicant :-
(a) whether the BSNL had any rules/instructions of its own on the subject of resignation, its withdrawal and acceptance? And
(b) whether the provisions of the CCS (Pension) Rule 26, sub-rule (4) can be deemed to be attracted in this case?
10. Since there was no clarity in the response of the Respondents with regard to the first question and their inability to produce the relevant rules, this Tribunal has remitted the case back to Respondent No.2, namely, The CMD, BSNL for a fresh consideration particularly taking into account the relevant rules/executive instructions being adopted by the BSNL on the subject and dispose of it by a speaking and reasoned order. While doing so, this Tribunal has not gone into the contentions and facts regarding the background of the Applicants transfer.
11. First of all, we see that the aforesaid impugned letter has not been issued by the Respondent No.2, namely, the CMD, BSNL after due consideration as directed by this Tribunal in its earlier Order dated 16.08.2010 in OA 1471/2009. It was issued by the Respondent No.5, namely, the General Manager (Finance) CGMT, Punjab Circle with the approval CMD, BSNL. There is difference between an order passed by the competent authority after having applied its mind and an order passed by another authority after obtaining the approval of the competent authority. In the latter type of order, there is no application of mind by the competent authority. Secondly, it appears that the General Manager (Finance) himself has not applied his mind before issuing the impugned order. The judgments of the Apex Court quoted by him in his order, namely, Balram Gupta Vs Union of India and Anr. 1987 AIR 23 54: 1987 SCC Supp.228, Union of India Vs. Sh. Gopal Chandra Mishra & Ors (1978) 3 SCR 12, Raj Kumar Vs. Union of India 1969 AIR 180 : 1968 (3) SCR 875, are not relevant in the background of this case. No doubt in normal circumstances, a public servant can withdraw his resignation only before it is accepted by the appropriate authority, as held by the Apex Court in the aforementioned cases. That was the reason why this Tribunal has stated clearly in its earlier order dated 18.10.2008 in OA 1471/2009 that the same was issued without entering into the contentious facts regarding the background of the applicants request for transfer. Further, the Respondent No.5 already had a closed mind in the matter as I did not forward the series of representations for transfer made by the Applicant for nearly one and a half year. Finally, when I forwarded his representation vide Annexure A5 letter dated 03.07.2006, I was with the negative recommendation not to accept his request for transfer.
12. Now let us look at the peculiar background of this case. Applicant is a resident of Delhi and on his selection as JAO, he was posted to Ferozpur, Punjab. On 25.1.2005, he made a representation for his posting in Delhi on the ground that his mother was suffering from Schizophrenia and except for his aged father, nobody was there to look after her. Thereafter, he made representations after representations but there was no response from the respondents. Then his father made a detailed representation to the Minister of Communications explaining the position that his wife was a chronic case of Schizophrenia (Mental disorder) and in the absence of his son there is no one to look after her. He has also produced the Medical Certificate issued by the Ram Manohar Lohia Hospital, New Delhi. Thereafter, the applicants wife made a representation to the Prime Minister. At last, the CAO (F) in the office of Chief GMT, Punjab Circle forwarded his representation to the Assistant Director General (SEA) BSNL Corporate office, with the specific recommendation not to consider his request for transfer stating that under para 38 of the P&T Manual (Vol. IV), the applicant cannot be given transfer before the expiry of a terms of 5 years service whereas the BSNLs own instructions issued vide Annexure A-7 letter dated 14.10.2004 says that such transfers are admissible on genuine compassionate/humanitarian grounds. The 5th Respondent has thus denied even his fundamental right of consideration of his request for transfer by the competent authority. Further, it is strange that the respondents did not appreciate the agony of a son whose aged mother is suffering from Schizophrenia which is an acute mental disorder and no one else was there to look after her. It is also an admitted fact that the applicant was in the meanwhile transferred to Chandigarh on 2.6.2008 for a different reason but the CAO (IF) did not inform him about the said transfer. It is in the aforesaid background that the applicant had to state in his letter dated 5.6.2008 the he was resigning from service due to unavoidable family circumstances. Thereafter, he was relieved on 3.7.2008. However, when he came to know that he was already transferred to Chandigarh which is a nearby place from Delhi vide order dated 2.6.2008, he withdrew his resignation vide his letter dated 29.7.2008 and requested the respondent to rejoin his duty. Rule 26 of the CCS (Pension) Rules, 1972 may not be applicable in the case of the applicant for the technical reason that he was appointed after 31.12.2003. However, the said Rule lays down the general principle to be followed in cases of withdrawal of resignation by a Government servant. Just because the said rule is not applicable to some employees, the principle behind it cannot be ignored. Sub-rule (4) of the said Rule states that the appointing authority may permit a person to withdraw his resignation in the public interest if the resignation was tendered for some compelling reasons and it reads as under:
Forfeiture of service on resignation (4) The Appointing Authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely:-
(i) that the resignation was tendered by the Government servant for some compelling reasons which did not invoke any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to transfer the resignation;
(ii) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper;
(iii) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days;
(iv) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available.
13. Thus the background of the applicant and the compelling circumstances under which he was forced to submit his letter of resignation dated 05.06.2008 on unavoidable family circumstances is quite evident from the aforesaid undisputed facts of this case. We are, therefore, of the considered view that the applicant has not submitted his resignation for his better prospects or for his own advantages. On the other hand, it was under pressure and for the reasons beyond his control. No responsible son can ignore his aged mother who is suffering from the acute mental disorder of Schizophrenia.
14. In view of the above facts and circumstances of the case, we allow this OA and quash and set aside the order/letter of the Respondents dated 18.10.2008 and 1.12.2010. The respondents shall treat his resignation letter dated 5.6.2008 as withdrawn and reinstate him in service. The period from the date for which his resignation was accepted till the date of his reinstatement shall be treated as leave of the kind due with continuity in service. As regards the arrears of pay is concerned, in the facts and circumstances of the case, it shall be admissible to him w.e.f. 16.08.2010 i.e. the date from which the Tribunal has disposed of his earlier OA No. 1471/2009 till the date of his reinstatement in service. The respondents shall pass appropriate orders in this regard within a period of two months from the date of receipt of a copy of this order. No order as to costs.
(Dr.Ramesh Chandra Panda) (G.George Paracken)
Member (A) Member(J)
rb.