Gauhati High Court
Mulin Sarma vs State Of Assam And Ors. on 19 January, 2007
Equivalent citations: 2007(2)GLT634
JUDGMENT B.K. Sharma, J.
1. The petitioner, who was in a provincialized service of a school as Assistant Teacher (Classical/Sanskrit) has assailed the legality and validity of the order communicating the decision towards acceptance of resignation from service tendered by him.
2. The petitioner is an M.A. in Sanskrit. He was appointed as an Assistant Teacher (Classical/Sanskrit) in Rangsina High School, Langmopi in the district of Karbi Anglong on 24.1.1995. The school was provincialized with effect from 1.4.1996 and the services of the petitioner was also provincialized against the allotted post of Assistant Teacher. It appears that while the petitioner was serving in the school, some differences between him and the Headmistress of the school i.e., the Respondent No. 5, who incidentally is the wife of the Respondent No. 6, who is also the Headmaster of M.E. Section of the said school. Apart from the allegation that the petitioner was not paid his salary from 23.5.1998, he also made the allegations that even prior to that, he was deprived of his salary for few months. He had intimated the matter to the jurisdictional Inspector of Schools, who in turn, instructed the Respondent No. 5 to release the salary of the petitioner. Such instruction was furnished by Annexure-II letter dated 3.5.1998.
3. According to the petitioner, he was forced to sign a purported resignation letter resigning from the service on 22.5.1998. As per the statements made in the writ petition, he was forced to do so by some anti-social elements under the leadership of the Respondent No. 6. The categorical statement made by the petitioner is that he had to sign the resignation letter under compulsion, criminal intimidation and force applied by the Respondent No. 6 and his men. Making a grievance against such forcible obtaining of resignation letter and signature therein, the petitioner submitted Annexure-III series representations to various authorities to take action in the matter, the resignation letter of the petitioner was obtained at the residence of the President of the Managing Committee of the school (Respondent No. 4).
4. Further grievance raised in the writ petition is that ever since the resignation letter was obtained from the petitioner, although he had visited the school, but he was not allowed to perform his duties. According to the petitioner, by obtaining of such letter of resignation, the Respondents Nos. 5 and 6 have been trying to appoint an Assistant Teacher of their choice. The petitioner has attributed the illegal activities on the part of the Respondents Nos. 4, 5 aid 6 i.e., the President of the Managing Committee and the Head Mistress and Head Master of the High School Section and M.E. Section of the school respectively.
5. When the petitioner did not receive any response in respect of his grievance relating to forceful obtaining of letter of resignation, he approached this Court by filing the writ petition being W.P.(C) No. 4047/1999. The writ petition was filed on 9.8.1999 and this Court by order dated 16.8.1999 provided as an interim measure that if the petitioner was working in the school, he should be allowed to continue. In the writ petition, as in the present writ petition, the Respondents Nos. 4, 5 and 6 were party respondents against whom the allegations were made about which a mention has been made above. However, they did not respond to the writ petition by filing any counter affidavit and thus, the allegations made against them went unrefuted. However, the Respondents Nos. 3 and 7 i.e., the Inspector of Schools, Karbi Anglong District Circle, Diphu and the Karbi Anglong Autonomous Council, Diphu submitted a joint affidavit-in-opposition. According to the said respondents, the resignation tendered by the petitioner was voluntary. Be it stated here that the parported letter of resignation was addressed to the President of the Managing Committee of the school i.e., the Respondent No. 4 and the same was hand-written one. After submission of resignation letter on 22.5.1998, the Managing Committee of the school adopted a resolution in its meeting held on 23.5.1998 accepting the resignation tendered by the petitioner and forwarded the same to the authority for necessary action. The letter of resignation was placed before the Managing Committee by the President i.e., the Respondent No. 4. It will be pertinent to mention here that the letter of resignation was written in the letter pad of the Managing Committee of the school and the upper portion of the letter pad was torn out, but the reference No. and date printed therein still remain visible.
6. For a ready reference, the purported letter of resignation is reproduced below:
Ref No. Date 22.5.98 To The President, M.C., Rangsina High School, Langmopi, K.A. Sub: Resignation. Sir,
With most humble submission I beg to state that I have resign from the post of C/T today-22.5.98.
Thank you, Yours faithfully Sri Mulin Sarma, C/T. Rangsina H.E. School.
7. The writ petition was disposed of by order dated 14.7.2003 with the direction that the petitioner and the Respondents No. 4 and 5 shall appear before the Deputy Commissioner, Karbi Anglong, Diphu, who in turn, shall carry out an investigation by giving opportunity to both the sides and determine the facts and circumstances under which the resignation letter came to be issued and signed. It was provided that if the resignation was found by the Deputy Commissioner to be voluntary, it would be sent to the appropriate authority for fresh action as may be required under the law. On the other hand, if the resignation was found to be involuntary and to have been obtained under force and coercion, the appropriate authority would pass necessary orders to the effect and the said resignation would be of no legal consequence and consequently, the petitioner would be entitled to consequential benefits as might be due to him.
8. It will be pertinent to mention here that although there was an interim order protecting the service of the petitioner, the respondents accepted the purported resignation tendered by the petitioner and such acceptance was by order dated 5.4.2000. Noticing this fact, this Court in the aforesaid order observed that such acceptance was in violation of the spirit of the interim order passed by this Court and that no cognizance of such acceptance could be taken by the Court. In other words, the Court proceeded with the matter as if on the date of passing the order dated 14.7.2003 the resignation tendered by the petitioner had not been accepted.
9. After the aforesaid order passed by this Court, the Deputy Commissioner conducted the enquiry as ordered and by the impugned order dated 16.10.2003 (Annexure-V to the writ petition), it has been held that the resignation tendered by the petitioner was voluntary and that in terms of the aforesaid order passed by this Court, the authority will have to accept the resignation afresh. After the order so passed by the Deputy Commissioner, the Deputy Secretary, Education Department (Higher), Karbi Anglong Autonomous Council has passed the order dated 12.1.2004 accepting the resignation with effect from 16.10.2003 i.e., the date of the order passed by the Deputy Commissioner, with the stipulation that the petitioner would not be entitled to any financial benefits with effect from 22.5.1998 since according to the said authority, he did not attend his duties since 22.5.1998. Another consequential order i.e., the order dated 27.1.2004 has also been passed by the Inspector of Schools, Karbi Anglong District Circle, Diphu conveying the acceptance of resignation tendered by the petitioner with effect from 22.5.1998.
10. It is the case of the petitioner that since the purported letter of resignation was obtained from him applying force, the same was involuntary and in view of the numerous representations submitted highlighting the same, the so called resignation tendered by the petitioner could not have been accepted and that too, after about 6 years of submission of such resignation. It is the further case of the petitioner that the Deputy Commissioner conducted the enquiry in a perfunctory manner and took into consideration the matters extraneous to the real issue, surely, the authority of the Karbi Anglong Autonomous council ought not to have mechanically taken the same in accepting the report furnished by the Deputy Commissioner towards acceptance of the purported resignation tendered by the petitioner.
11. As in the first writ petition, in this writ petition also, the petitioner has levelled serious allegations against the Respondents No. 4, 5 and 6. It has been specifically pleaded that it was due to criminal intimidation and force applied by the Respondent No. 6 that the petitioner had to write the letter of resignation in the residence of the Respondent No. 4 i.e., the President of the Managing Committee. None of the respondents has responded to the writ petition and/or countered the allegation by filing affidavit-in-opposition. As in the first writ petition, it is only the Respondents No. 3 and 7 i.e., the Inspector of Schools and the Principal secretary, Karbi Anglong Autonomous Council, who have filed joint affidavit. The allegations having been levelled against the Respondents No. 4, 5 and 6, naturally, they could not have dealt with such allegations. In the affidavit, there is no specific denial of allegations made by the petitioner that the letter of resignation was forcefully obtained. The Inspector of Schools, who has sworn the affidavit, has verified the statements made in the affidavit as the statements true to his knowledge except the statements made in paragraphs 4 and 8 (only part) which are stated to be based on record. Paragraph 4 statement relates to payment of salary to the petitioner and paragraph 8 relates to the statements that after submitting the resignation letter, the petitioner had left the place and did not attend the school since then.
12. The petitioner has filed an additional affidavit to bring on record the report furnished by the Sub-Divisional Police Officer, Hamren, Karbi Anglong District, to the Superintendent of Police, Karbi Anglong district, Diphu. The report reveals registration of Kheroni PS. Case No. 74/1998 under Sections 409/384/506/323/34 I.P.C. on the basis of F.I.R. lodged by the petitioner on 17.7.1998. The report also refers to G.R. Case No. 6/2002 under Sections 409/384/323/506 I.P.C. initiated on the basis of the complaint lodged by the petitioner. As per the report so furnished by the Sub-Divisional Police Officer to the Superintendent of Police, the resignation tendered by the petitioner was not voluntary and he did so, due to fear and threat to his life. The report also mentions about the threat given by the Respondent No. 4 and as to how it was on his writing pad, the petitioner was asked to write the letter of resignation.
13. The Respondent No. 3 has filed an affidavit-in-opposition to the additional affidavit filed by the petitioner, inter alia, contending that the report furnished by the Sub-Divisional Police Officer to the Superintendent of Police cannot be accepted and that the action has been taken on the basis of the report furnished by the Deputy Commissioner since the said report is on the basis of the order passed by this Court. It will be pertinent to mention here that in the order passed by the Deputy Commissioner, there is a mention of the report furnished by the Addl. Deputy Commissioner, Diphu, who allegedly conducted a field enquiry into the matter. In the report of the Addl. Deputy Commissioner, there is a mention of the aforesaid P.S. Case No. 74/1998 corresponding to G.R. Case No. 117/1998.
14. I have heard Mr. R.M. Choudhury, learned Counsel for the petitioner as well as Mr. A.K. Goswami, learned Sr. counsel and Standing Counsel, Karbi Anglong Autonomous Council assisted by Mr. S. Banik, learned advocate. I have also heard Mr. H.R.A. Choudhury, learned Sr. counsel assisted by Mr. A. Motin, learned advocate representing the Respondents No. 4, 5 and 6. Mr. M.K. Choudhury, learned Sr. counsel and Standing Counsel, Education Department assisted by learned advocate Mr. T. Islam made submission on behalf of the Respondents No. 1 and 2, while Ms. R. Chakraborty, learned State counsel submitted on behalf of the Respondent No. 8. Learned Counsel for the parties made their elaborate submissions on the basis of the materials available on record including the records pertaining to the enquiry conducted by the Deputy Commissioner pursuant to the aforesaid order passed by this Court. The record of the enquiry has been produced by Ms. R. Chakraborty, learned State counsel representing the Respondent No. 8.
15. The letter of resignation has been noticed above. The fact that the letter of resignation was a handwritten one and that the same was written at the residence of the Respondent No. 4 in his letter pad will have a bearing since it is the definite case of the petitioner that the same was involuntary and that the letter of resignation was obtained by force. Annexure-III series representations addressed to various authorities including the jurisdictional police station, the Inspector of Schools, the Chief Executive Member, Karbi Anglong Autonomous Council and the Director of Secondary Education, Assam will have also a bearing on the issue raised. In all the representations, the petitioner made a categorical statement that apart from withholding of his salary by the Respondent No. 5, he was forced to sign a resignation letter at the behest of the Respondent No. 6 i.e., the husband of the Respondent No. 5. As per his allegation, the resignation letter was obtained at the residence of the Respondent No. 4. It was also alleged that after such forceful obtaining of the resignation letter, he was not allowed to attend the school and he had to leave the place out of fear.
16. I have gone through the letter of resignation, a copy of which was annexed to the counter affidavit filed by the Respondents No. 3 and 7 in the earlier writ proceeding in W.P.(C) No. 4047/1999. In the letter, the reference number and date of a letter pad is clearly visible. The petitioner has contended that the letter of resignation was obtained at the residence of the Respondent No. 4 on the letter pad of the school by tearing off the upper portion of the same. The fact of writing the resignation letter in the letter pad of the school has also not been denied. Rather, it was contended before the enquiry proceeding conducted by the Deputy Commissioner that the petitioner was given the letter head pad him to address the letter of resignation.
17. The resignation was tendered at the morning hours of 22.5.1998. The question necessarily arises as to what prompted the petitioner to resign from his job and that too, coming to the residence of the Respondent No. 4 and obtaining a page of the letter pad of the school and then writing the resignation letter on it. If the resignation of the petitioner was voluntary and pre-planned, in the normal circumstances the same would have been a typed written one. Even if a hand written one, same would not have been on the letter pad of the school and that too, obtaining the same coming to the residence of the Respondent No. 4.
18. The handwritten resignation letter, prima facie, discloses a circumstance other than a normal circumstance. Immediately after submission of the purported resignation letter, things moved in quick succession. On the following day, the Managing Committee headed by the Respondent No. 4 accepted the same and forwarded to the authority for necessary action. Likewise, the respondent No. 6 i.e., the Head Mistress of the school with her endorsement dated 22.5.1998 on the body of the letter of resignation frowarded the same to the K.A.A.C. authority for necessary action.
19. The resignation from service is an act of voluntary relinquishment of employment and office. It is an act of cessation of holding office voluntarily by an employee with written intimation to that effect. The intimation may be forgiving effect immediately or on a prospective date. Consequently, if the act tendering the resignation is not voluntary and out of threat and fear, the resignation letter would be nonest in the eye of law. The petitioner by his various representations intimated about the purported threat meted out to him towards writing the resignation letter and such representations made by the petitioner to various authorities including the inspector of Schools and the Director of Secondary Education was indicative enough of the same. The moment the petitioner addresses the representations indicating that the resignation tendered by him was not voluntary, the same stood withdrawn and could not have been acted upon by the respondents and that too, after 5 years of submission of such resignation. Needless to say that, any amount of coercion will make the act of tendering the resignation as not made voluntary and thus, practically, such action being due to duress or coercion can rightfully be considered to be forced upon by the authority and not the employee, which amounts to termination.
20. It is settled law that resignation is bilateral concept and generally an offer of resignation becomes effective only when it is accepted by the competent authority. The resignation must be offered voluntarily and any element of coercion could amount to termination. By now, it is the settled law that an employee tendering resignation is entitled to withdraw the same before it is accepted. In the instant case, after the purported resignation letter written by the petitioner on 22.5.1998, he made it known to the authority that the same was not his voluntary act, but was obtained by applying force and under coercion. Once such intimation was given, the element of voluntary act so essential for tendering resignation was admittedly missing in the act of writing the resignation letter and accordingly, the said resignation letter authentically stood withdrawn and nonest in the eye of law and could not have been acted upon, even if the same is held to be not under duress and compulsion.
21. This Court while remanding back the matter to the Deputy Commissioner for a proper enquiry as to the voluntariness or otherwise of the resignation tendered by the petitioner, in respect of the consequential action, directed the authorities to take action as -may be required under the law. This expression as may be required under the law' has significant meaning. Even if the order of the Deputy Commissioner holding that the resignation tendered by the petitioner was voluntary is accepted then also a duty was cast on the authority to act in the matter in accordance with law and not by adopting a mechanical process. The said authority ought to have considered as to whether the resignation tendered by the petitioner had spent its force and also a s to whether in view of the representations submitted by the petitioner making it known that the letter of resignation was not a voluntary act, the resignation letter stood withdrawn. Once the petitioner made known to the respondents that he never tendered resignation from his service voluntarily with free will and mind and that the act was the product of force and coercion applied on him, the respondents could not have acted upon such a resignation letter and that too, with retrospective effect.
22. It will have to be borne in mind that the petitioner was a teacher of a provincialized school. As per Section 2(b) of the Assam Secondary (Provincialized) Service Rules, 1982, 'the appointing authority' in respect of the post in Grade-IV cadre is the Inspector of Schools. The petitioner being an Assistant Teacher was in Grade-IV service and thus, the appointing authority was the Inspector of Schools. If the appointing authority of the petitioner was the Inspector zarion of Schools after provincial of his service, the question necessarily arises as to whether he could have resigned from his service by addressing a letter to the President of the Managing Committee of the school.
23. It is the Managing Committee of the school, who at the first instance took a resolution for acceptance of the purported resignation tendered by the petitioner and thereafter, forwarded the same to the Inspector of Schools for his necessary action. Thus, the Managing Committee was aware of that it was incompetent to accept the resignation tendered by the petitioner and accordingly, forwarded the same to the Inspector of Schools. This position will go to show that the petitioner never addressed his letter of resignation to the competent authority. This is also a circumstance in which the plea of the petitioner that he had to write the resignation letter at the residence of the President of the Managing Committee i.e., the Respondent No. 4, as per the pressure mounted by the Respondent No. 6 will have to be judged. In the normal circumstance, the petitioner would have addressed the regination letter to the competent authority through the head of the institution instead of addressing the same to the President in the morning hours of the day and that too, at his residence. There is no dispute that the resignation letter was written at the residence of the Respondent No. 4 and that too, in the letter pad of the school supplied by him.
24. By the aforesaid order dated 14.7.2003 passed by this Court in W.P.(C) No. 4047/1999, direction was issued to the Deputy Commissioner to ascertain the voluntariness or otherwise of the act of tendering resignation by the petitioner. It was also noticed that in spite of the interim order operating in favour of the petitioner, the respondents had accepted the resignation on 5.4.2000 and accordingly, in the said order, this Court held that the same is nonest in the eye of law. The order passed by the Deputy Commissioner will go to show that he himself did not conduct the enquiry, but entrusted the same to the Addl. Deputy Commissioner. It is in this context, the petitioner in his writ petition has contended that the enquiry was not as per the direction of this Court and that the enquiry was not conducted fairly. As per the direction of this Court, the Deputy Commissioner was to provide reasonable opportunity of being heard to both the parties i.e., the petitioner and the Respondents No. 4 and 5. Admittedly, the Deputy Commissioner himself did not conduct the inquiry and entrusted the same to the Addl. Deputy Commissioner who was not the party to the writ proceeding. Be it stated here that the Deputy Commissioner is a party to this proceeding. He was also party to the earlier writ proceeding. Perhaps, this is the reason as to why the direction for conducting the enquiry was issued to him.
25. I have perused the records pertaining to the enquiry conducted by the Addl. Deputy Commissioner on the basis of which the Deputy Commissioner has passed the order dated 16.10.2003. The Addl. Deputy Commissioner in his report, which is undated, has referred to the statements made by the petitioner, the Respondents No. 4, 5 and 6. In addition, he has also referred to the Statements of one Sri Ram Singh Timung, Gaonburah and the version of the school teachers. In the statement made by the petitioner as well as in his written argument he stuck to his stand that the resignation tendered by him was not voluntary and the same was under threat, duress and coercion. On the other hand, the Respondent No. 4, against whom the petitioner has made allegation, stated in his statement that the petitioner tendered his resignation without any force or any coercion. However, in his statement, he admitted that the resignation letter was written by the petitioner on the piece of paper supplied by him at his residence. The Respondent No. 5 in her statements simply stated that she was not aware of obtaining resignation letter from the petitioner by force. The Respondent No. 6 in his statements denied taking the petitioner to the residence of the Respondent No. 4. He also stated that he was not aware of forcible obtaining of the resignation letter from the petitioner.
26. From the above statements of the petitioner and the Respondents No. 4, 5 and 6, it appears that while it is the case of the petitioner that the resignation letter was obtained by force, it is the case of the Respondent No. 4 that the same was a voluntary act on the part of the petitioner. The other two respondents have not thrown any light on the incident relating to forcible obtaining of the resignation letter.
27. The Addl. Deputy Commissioner also obtained the statement of said Sri Ram Singh Timung, the Gaonurah, who stated that the petitioner never lodged any complaint to him regarding obtaining of the resignation letter by force. Same is the case in the joint statement of other teachers who stated that they were not aware of any incident of forcible obtaining of the resignation letter from the petitioner. The Addl. Deputy Commissioner has given much credence to such statement made by the Gaonburah and the teachers.
28. The Gaonburah in his statement stated that the petitioner never complained before him in respect of the incident relating to resignation from service. Even if that be so, can it be said that, merely because, the petitioner did not lodge any complaint with the Gaonburah, the same by itself will mean that the resignation tendered by him was voluntary? The same is the case with the version of the teachers. They simply stated that they were not aware of the incident and forcible obtaining of the resignation letter. If they were not aware of the incident the same by itself would not mean that their was no such incident more particularly, when there is no dispute that neither the said teachers nor the Gaonburah were present at the residence of the Respondent No. 4 when the petitioner wrote the resignation letter and signed on the letter pad of the school supplied by the Respondent No. 4.
29. It is the definite case of the petitioner that it was at the residence of the Respondent No. 4, force was applied to him to write the resignation letter of the writing pad supplied by the Respondent No. 4. The writing of the resignation letter on the letter pad supplied by the Respondent No. 4 is not disputed.
30. The Addl. Deputy Commissioner on the basis of the aforesaid statements has drawn an inference as will be evident in his report under the head 'inference' that the petitioner resigned from his service voluntarily. Such inference drawn by the Addl. Deputy Commissioner is contrary to the report furnished by the Sub-Divisional Police Officer to the Superintendent of Police in which a categorical finding has been recorded that the resignation tendered by the petitioner was not voluntary and that he did so out of fear of life. It will be pertinent to mention here that the report was furnished as per the request placed by the Superintendent of Police. The report was prepared on the basis of the evidence collected as per which the resignation tendered by the petitioner was not voluntary and that in the entire episode, the Respondents No. 4 and 6 with some other people were involved who compelled the petitioner to resign from his job.
31. From the aforesaid materials on record, it cannot be said that the petitioner tendered his resignation voluntarily. What would be the effect of involuntary act of tendering resignation upon applying of force coupled with intimation sent by the petitioner to the authorities that the resignation letter was not out of his own volition and free will, has been discussed above. Coupled with this, the resignation letter was also not addressed to the appointing authority, but the same was addressed to the President of the Managing Committee. This Court while directing the Deputy Commissioner to conduct an enquiry also directed the authority to take consequential action on the basis of the report to be furnished in accordance with law. With such a direction, the authorities of the Karbi Anglong Autonomous Council could not have acted mechanically and ought to have considered the materials on record and as to what would be the consequence of the protest letters submitted by the petitioner in respect of his purported resignation from service. They should have also considered as to what would be the effect of the resignation letter dated 22.5.1998 in 2004 and as to whether after expiry of about 6 years the same had spent its force. It was also the matter for consideration as to whether the resignation tendered by the petitioner by addressing the same to the President of the Managing Committee could be acted upon by the appointing authority. They also did not consider that in the letter of resignation, the petitioner never requested for acceptance of the same.
32. For all the aforesaid reasons, findings and conclusions, I am of the considered opinion that the purported resignation tendered by the petitioner on 22.5.1998 could not have been held to be voluntary as has been so held by the Deputy Commissioner in his order dated 16.10.2003. Consequently, the consequential orders passed by the Deputy Secretary, Education Department (Higher), Karbi Anglong Autonomous Council and the Inspector of Schools, Karbi Anglong District Circle dated 12.1.2004 and 27.1.2004 respectively are also not sustainable. Accordingly, all these orders stand set aside and quashed.
33. There is another aspect of the order. The petitioner was deemed to be in service by this Court by the aforesaid order dated 14.7.2003 passed in W.P.(C) No. 4047/1999. However, by the impugned order dated 12.1.2004, the resignation tendered by the petitioner by his letter dated 22.5.1998 has been accepted with retrospective effect (16.10.2003) further providing that the petitioner would not be entitled to any financial benefits with effect from 22.5.1998. Similarly, the Inspector of Schools by his order dated 27.1.2004 has also conveyed the decision of acceptance of resignation tendered by the petitioner without any financial benefits with effect from 22.5.1998. The jural relationship between the petitioner and the employer continued to subsist till the impugned orders dated 12.1.2004 and 27.1.2004 were passed. Such relationship could not have been extinguished with retrospective effect.
34. The next question which necessarily arises for consideration is that whether the petitioner would be entitled to any back-wages. In the given facts and circumstances, I am of the considered opinion that no direction is called for, payment of arrear pay and allowances to the petitioner. However, he shall be deemed to be in service all throughout, for other service benefits including the notional fixation of pay etc. He shall be reinstated in service forthwith.
Writ petition is allowed to the extent indicated above. There shall be no order as