Madras High Court
Canara Bank vs A.Venkataraman on 25 September, 2020
Author: Senthilkumar Ramamoorthy
Bench: A.P.Sahi, Senthilkumar Ramamoorthy
W.A.No.515 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.09.2020
CORAM :
THE HON'BLE MR.A.P.SAHI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.A.No.515 of 2020
1.Canara Bank,
Chairman and Managing Director,
Head Office,
Manipal, Karnataka State – 576 119.
2.The General Manager (P),
Canara Bank,
Head Office,
Manipal, Karnataka State – 576 119.
3.The Deputy General Manager,
Canara Bank,
Zonal Office,
27, Shakspeare Sarani,
Calcutta – 700 017.
4.The Deputy General Manager,
Canara Bank,
Zonal Office,
Armanian Street,
Chennai – 600 001. ... Appellants
(Name of Canara Bank substituted
vide order dt. 7.9.2020 in C.M.P.No.9385/2020)
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http://www.judis.nic.in
W.A.No.515 of 2020
Vs.
A.Venkataraman ... Respondent
Prayer: Appeal filed under Clause 15 of the Letters Patent against the
order dated 13.6.2019 made in W.P.No.11473 of 2004.
For Appellants : Mr.Anand Gopalan
for M/s.T.S.Gopalan and Co.
For Respondent : Mr.Balan Haridas
JUDGMENT
(Delivered by The Hon'ble Chief Justice) This appeal had been initially presented with the cause title of Syndicate Bank, which was permitted to be substituted by the Canara Bank vide our order dated 7.9.2020. The necessary changes in the cause title, therefore, have to be incorporated as per our order dated 7.9.2020.
2. The appellant bank is aggrieved by the impugned judgment dated 13.6.2019, whereby the learned Single Judge taking a lenient ____________ Page 2 of 45 http://www.judis.nic.in W.A.No.515 of 2020 view of the punishment awarded to the respondent/petitioner, modified it, after quashing the communication dated 29.4.1999, by directing the appellant bank to accept the respondent's letter of resignation dated 1.10.1998 and treat his services to be pensionable. Consequently, all terminal benefits, including pension, were directed to be released after adjusting any of the monetary benefits that may have been received by the respondent/petitioner.
3. The background in which the aforesaid dispute arose emanated from a proceeding whereby the respondent/petitioner had been transferred to the post of Assistant Manager in the Zonal Office at Calcutta from Madras. The respondent petitioner did not comply with the same and having failed to report for duty at Calcutta, a charge sheet was issued to him on 22.5.1995 calling upon him to answer the charges of absence, of exercising undue influence, of not maintaining good conduct and discipline, and ultimately acting in a manner prejudicial to the interest of the bank.
4. The said proceedings culminated in an order of removal dated 23.9.1996 passed by the Disciplinary Authority, against which the ____________ Page 3 of 45 http://www.judis.nic.in W.A.No.515 of 2020 respondent petitioner filed an appeal. The Appellate Authority, vide proceedings dated 13.6.1998, found that the charges had been rightly proved and upheld the same, but while considering the proportionality of the punishment, the Appellate Authority passed the following order:
“I observe that the Disciplinary Authority has awarded the penalty which is commensurate with the gravity of the misconduct. However, taking into consideration all the aspects involved in the case, I am inclined to take a lenient view and accordingly, reduce the penalties of 'Removal from service of the Bank with immediate effect; Reduction in basic pay by one stage in time scale of pay with immediate effect; Removal from the service of the bank with immediate effect and Censure' awarded by the Disciplinary Authority vide his proceedings under reference to ' Reduction in basic pay by three stages for a period of two years with further direction that he will not earn increments during the period of reduction and that the reduction will have the effect of postponing his future increments of pay'.
It is further ordered that Shri A.Venkataraman is not entitled for any backwages from the date of his removal from the services of the Bank i.e. 23.9.1996 till he reports for duty at our Zonal Office, Calcutta.
____________ Page 4 of 45 http://www.judis.nic.in W.A.No.515 of 2020 His reinstatement comes into effect from the date of his reporting for duty at the place of posting as above within 15 days of receipt of this order. However, regular posting orders will be issued by Zonal Office, Calcutta on or after his joining at Zonal Office, Calcutta separately.
It is also ordered that Shri A.Venkataraman is not entitled for any backwages/consequential benefits during the period between the date of removal and the date of reporting for duty at Zonal Office, Calcutta. The said period shall not be treated as 'break in service' for the purpose of terminal benefits.”
5. The respondent petitioner in spite of this reduction in penalty did not report for duty at the Zonal Office at Calcutta and instead wrote the following letter on 1.10.1998, which is extracted herein under:
“I would like to know whether I am entitled to opt for VRS. If I am entitled for VRS, I would like to prefer VRS and I would go for commutation of 1/3rd of future pension and take rest as monthly pension. I joined the Bank in Sept. 1976.
____________ Page 5 of 45 http://www.judis.nic.in W.A.No.515 of 2020 In case I am not entitled under VRS, I am tendering my resignation, my resignation shall take effect after office hours on the date of joining the Chennai Zonal Office. I request you to waive 3 months notice required for tendering resignation.
If entitled for VRS now I am tendering my application for VRS.
While ascertaining the amount I am entitled to, I request you to take into account conveyance allowance for May 1993 and Medical Benefit for the years 1994 to 1998 and all other entitlements.”
6. By the said letter, the respondent petitioner opted for voluntary retirement from the services and then categorically stated that in the event he is not found entitled for the benefits of the voluntary retirement scheme, he is tendering his resignation, which is to take effect after joining at the Chennai Zonal Office. According to the Regulations, he also made a request for waiving three months notice.
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7. The appellant bank promptly replied to the said letter on 5.1.1999 by the following communication:
“With reference to your letter seeking voluntary retirement under Pension Regulations, we note that you have not opted for pension and hence cannot seek VRS under Pension Regulations.
However, we advise you to call on us immediately to consider your resignation as directed by our Head Office.”
8. The respondent petitioner was further informed vide letter dated 13.1.1999 that he was not entitled to seek voluntary retirement, as he had not opted under the pension scheme, and he was further requested to tender an authorization letter for adjustment of his dues, so as to consider his resignation and proceed further in the matter.
9. The respondent petitioner instead of responding to the same, wrote back another letter dated 15.1.1999 expressing his surprise about the denial by the bank of having received any option for pension. He further stated that the bank had not mailed him the ____________ Page 7 of 45 http://www.judis.nic.in W.A.No.515 of 2020 option letter, which was an omission on the part of the bank, as it was mandatory, and gave an illustration to that effect. He reiterated that the bank should verify its records and confirm the receipt of its alleged letter of exercise of option. We may point out that the bank throughout has taken a stand that the respondent petitioner has nowhere sent his option, as alleged by him, through any letter dated 27.12.1995.
10. Then comes the intimation dated 29.4.1999 by the bank finally telling the respondent petitioner that since he had not reported for his duties, and had rather been wrongly insisting for joining at Chennai, the respondent petitioner had failed to join and, therefore, the original orders of the disciplinary authority dated 23.9.1996 regarding removal from service of the bank automatically stands. We may mention at this stage that the said letter came to be challenged almost after five years in the writ petition that has given rise to the present appeal. The said communication does not convey anything about resignation.
11. In response to the aforesaid, the respondent petitioner again ____________ Page 8 of 45 http://www.judis.nic.in W.A.No.515 of 2020 made a request vide letter dated 21.5.1999 to place the matter before the Reviewing Authority and again tendered a photo copy of his letter of option dated 27.12.1995.
12. Then comes the filing of the writ petition that has given rise to the present appeal, being W.P.No.11473 of 2004. We are mentioning this fact because one of the grounds raised by learned counsel for the bank is that the plea raised before this Court under Article 226 of the Constitution of India was barred by laches, as the writ petition was filed after almost five years of the said communication by the bank.
13. In the counter-affidavit, the appellant bank has set out the entire chain of events, again denying that no option was exercised by the respondent petitioner, and therefore, there was no question of acceding to his request of voluntary retirement. In paragraph (6) of the counter-affidavit, it has been categorically stated that the respondent petitioner had withdrawn the employer's contribution to the provident fund that was credited to his account and he has accepted all the terminal benefits and encashed the same. Once he ____________ Page 9 of 45 http://www.judis.nic.in W.A.No.515 of 2020 had encashed the provident fund, the contention of learned counsel for the appellant bank is that he himself opted out of the pension scheme and has availed of the benefits of provident fund scheme. This, therefore, disentitles him for any claim of voluntary retirement/pension scheme. This has been further explained in paragraph (7) of the counter-affidavit and then emphatically reiterated that no option had been exercised by the respondent petitioner, nor any such letter dated 27.12.1995 was received by the bank.
14. It has been pointed out by learned counsel for the appellant bank that the alleged letter of option is said to have been addressed to the Chief Manager at Calcutta, when the respondent petitioner was all the time insisting for joining at Chennai and never went to Calcutta.
15. The learned Single Judge thereafter proceeded to conclude that the request of the respondent petitioner was under consideration for pension and even otherwise the bank ought to have called upon him to complete necessary formalities, but in the same breath, the learned Single Judge also holds that the Court does not intend to go into the disputed question of fact as to whether the original letter of ____________ Page 10 of 45 http://www.judis.nic.in W.A.No.515 of 2020 option dated 27.12.1995 as claimed by the respondent petitioner for voluntary retirement was received or not by the appellant. For this, the learned Single Judge says that the subsequent letter dated 1.10.1998 will amount to an exercise of option.
16. The second finding recorded by the learned Single Judge is that the exercise of second option came to be extended in the year 2010 to all the employees against which the respondent petitioner had exercised his fresh option on 16.10.2010, which was again denied by the bank. The learned Single Judge concludes that such reply of denial was not acceptable, as the writ petition giving rise to this appeal was pending.
17. The third conclusion drawn by the learned Single Judge is on the issue of acceptance of resignation and therefore, when this issue was pending before this Court, the bank could not have held that the respondent petitioner is ineligible for consideration of pension through the second option in 2010 on the ground that his service stood dismissed.
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18. The fourth finding was on the issue of resignation, where the learned Single Judge concluded that the same was in the alternative of acceptance of voluntary retirement and such a request could not have been ignored.
19. The fifth reasoning given by the learned Single Judge is that since the respondent petitioner had now reached the age of superannuation, it will not be appropriate to direct the appellant bank to consider the request for voluntary retirement. Nevertheless, taking into account his past services, that he had not indulged any grave misconduct, the Court modified the punishment to the effect that the respondent petitioner shall be entitled to pension with effect from 1.10.1998, which is the date on which he has tendered his resignation.
20. In the operative part, the learned Single Judge went on to quash the communication dated 29.4.1999 referred to above and then directed the Deputy General Manager, Zonal Office, Chennai, to accept the respondent petitioner's letter of resignation dated 1.10.1998 and ____________ Page 12 of 45 http://www.judis.nic.in W.A.No.515 of 2020 consequently, disburse all terminal benefits, including the pension, after adjusting any of the monetary benefits that he would have received.
21. Sri Anand Gopalan, learned counsel for the appellant bank advanced his submissions by contending that the impugned judgment proceeds on an erroneous assumption both on fact and in law and, therefore, the impugned judgment cannot be sustained, for which learned counsel has relied on the relevant provisions of the Syndicate Bank (Employees) Pension Regulations and Syndicate Bank (Officers) Service Regulations as well as Syndicate Bank Officer Employees' (Discipline and Appeal) Regulations, 1976.
22. Learned counsel for the appellant bank contends that firstly, the respondent petitioner in fact had not exercised his option for pension in the year 1995 and there was no occasion for him to have sent the alleged letter to Calcutta, where he had never joined. Sending or receipt of such letter is also denied. He submits that the learned Single Judge has also categorically recited in paragraph (10) of the impugned judgment that the Court did not intend to go in to the ____________ Page 13 of 45 http://www.judis.nic.in W.A.No.515 of 2020 disputed question of fact as to whether the said option was received or not, and therefore, in the absence of any established fact that an option had been exercised by the respondent petitioner in 1995, the contention raised on behalf of the respondent to defend his exercise of option before this Court has no legs to stand.
23. He then contends that the question of exercising option in 2010 does not arise, inasmuch as after passing of the appellate order dated 29.4.1999, the respondent petitioner encashed all his provident fund and other benefits that was credited to his account in 2001, which not only impliedly but expressly amounts to availing of the benefit of provident fund scheme, and therefore, the respondent petitioner cannot be said to be entitled to exercise the option of pension scheme thereafter in 2010. He submits that once an employee has accepted the contributory provident fund, then under the scheme, he is not entitled for any pensionary benefits or a consequential voluntary retirement request.
24. Learned counsel then urges that the conclusion drawn by the learned Single Judge on the strength of the letter dated 1.10.1998 and ____________ Page 14 of 45 http://www.judis.nic.in W.A.No.515 of 2020 the letter dated 27.10.2010 to gather the intent of availability of option of the pension scheme is erroneous, inasmuch as firstly, the letter dated 1.10.1998 clearly states that if the petitioner is not found entitled for voluntary retirement scheme, he is tendering his resignation. The second is, in the event it is accepted that he is resigned, and the ultimate direction by the Court in paragraph (14) is to accept the respondent petitioner's letter of resignation dated 1.10.1998, then the resignation will take effect, and according to the rules of resignation, there is a clear forfeiture clause denying pensionary benefits to such an employee. Regulation 20 of the Syndicate Bank (Officers') Service Regulations, 1979 framed by the bank in exercise of the statutory powers has been relied upon together with Clause 22 of the pension notification dated 29.9.1995 which imposes forfeiture clause in the event of resignation. He, therefore, submits that the learned Single Judge completely ignoring these aspects has arrived at a wrong conclusion, and directions given are incongruous, as once the direction for accepting the resignation has been issued, then the award of pension would be against the Regulations of the scheme itself.
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25. Shri Anand Gopalan, learned counsel, has pointed out that no relief in the writ petition has been sought for grant of voluntary retirement and rather the prayer is to relieve the respondent petitioner from services pursuant to his resignation dated 1.10.1998 and then give him all terminal benefits, including pension. The prayer clause in the writ petition is extracted herein under:
“For the reasons stated above it is prayed that this Hon'ble Court may be pleased to issue appropriate Writs, Orders or Directions, more particularly a Writ in the nature of CERTIORARIFIED MANDAMUS after calling for the concerned records from the 4th respondent, quash the order of the 4th respondent bearing Ref.No.ZOCH:PD:OS:G 294:99 dated 29.04.1999 consequently direct the respondents to relieve the services pursuant to his letter of resignation dated 01.10.1998 by giving all terminal benefits including pension and pass such order orders as this Hon'ble Court deem fit in the circumstances of the case, award cost and render justice.”
26. He then contends that the once the respondent petitioner had failed to comply with the terms and conditions of the appellate ____________ Page 16 of 45 http://www.judis.nic.in W.A.No.515 of 2020 order dated 13.7.1998, extracted herein above, and had also failed to join at Calcutta, there was no option left except to revive the removal order of the respondent petitioner. He, therefore, submits that the respondent petitioner cannot simultaneously be extended all benefits of options exercised by him, bereft of the rules and facts that led to the removal from service and the subsequent reduction of the punishment by the appellate authority. He has also emphasised that so far as the punishment on account of his having not abided the the transfer order and disobeyed his superior authorities, the same stood proved in the disciplinary proceedings and the respondent petitioner has not filed any appeal or questioned any of the findings or directions issued by the learned Single Judge in this regard.
27. Responding to the said submissions, Shri Balan Haridas, learned counsel for the respondent petitioner contends that firstly the respondent petitioner had some ailment problem about which he had requested the bank not to insist his joining at Calcutta. Nonetheless, the respondent petitioner had given his option which was sent by a registered post in 1995, the denial by the bank is therefore a bald denial. He then submits that once the appellate authority had itself ____________ Page 17 of 45 http://www.judis.nic.in W.A.No.515 of 2020 reduced the punishment, the respondent petitioner stood reinstated in service and therefore, he was entitled to all such benefits at par with other employees, including exercise of the second option of pension in the year 2010, as he will be deemed to be in service. The recital contained in the order dated 29.4.1999 that the removal of service would automatically revive is a totally misconceived communication, inasmuch as the punishment order of removal was no longer in existence after passing of the appellate order.
28. He also contends that the bank was finding out ways and means to somehow or other deny the service benefits to which the petitioner was entitled after his reinstatement, and this effort of the bank led to the erroneous communication dated 29.4.1999. The entitlement of the respondent petitioner for voluntary retirement survived as his resignation was never accepted by the appellant bank. In the absence of any acceptance of resignation, the respondent petitioner will be deemed to be continuing his service and therefore, he is entitled to all such benefits.
29. He further submits that the bank by not taking decision on ____________ Page 18 of 45 http://www.judis.nic.in W.A.No.515 of 2020 his resignation, and keeping it pending for no valid reason and then denying him the voluntary retirement as well is a clear defiance of the appellate order itself whereby the respondent petitioner stood reinstated in service. He therefore submits that none of the provisions as cited by the learned counsel for the appellant bank are attracted and therefore, the impugned judgment on an overall perspective does complete justice between the parties, hence, should not be interfered with in this appeal, as neither there is any error on law, nor any error on facts. He has referred to the letters written by the respondent petitioner and the reply given by the bank to substantiate his submissions.
30. We have considered all the submissions raised and the first legal issue that needs to be addressed to is the status of the disciplinary proceedings that were initiated and which culminated in the appellate order on 13.6.1998. The charges which were levelled against the respondent petitioner in the disciplinary proceedings stood proved and he was punished by removal from service. The removal order dated 23.9.1996 came to be challenged in a departmental appeal and the appellate order dated 13.6.1998 modified the ____________ Page 19 of 45 http://www.judis.nic.in W.A.No.515 of 2020 punishment as is evident from the order extracted herein above. Thus, the order of removal stood effaced and in law, the same could not be revived by a communication, which is the impugned communication dated 29.4.1999. For all intents and purposes, the appellate order reducing the punishment of the respondent petitioner therefore became final. However, what is worth recording is that the order dated 13.6.1998, whereby the punishment of the respondent petitioner was reduced having found the charges to be proved, has not been challenged by the respondent petitioner. Thus, a finality is attached to the order dated 13.6.1998.
31. The respondent petitioner, therefore, legally stood reinstated in service and was entitled to continue thereafter.
32. The next question that arises for consideration is the impact of the letter dated 1.10.1998 despatched by the respondent petitioner voluntarily, but almost after four months of the order of the appellate authority. In this, he calls upon the bank to consider his entitlement for voluntary retirement and if found entitled, his preference for retirement should be accepted with pensionary benefits. The same ____________ Page 20 of 45 http://www.judis.nic.in W.A.No.515 of 2020 letter, in the second para, says in case he is not found entitled for voluntary retirement, then the said letter should be treated as a letter of resignation to take effect after office hours on the date of joining at Chennai. A request of waiver of three months notice was also made. It is, thus, clear that this resignation was tendered voluntarily as an alternative, if not found entitled for voluntary retirement.
33. For this, it will be apt to refer to the letter dated 5.1.1999 and the letter dated 13.1.1999 filed by the appellant bank. A perusal of these letters indicate that voluntary retirement was denied and at the same time, the consideration of the resignation of the respondent petitioner was kept pending. The impact of the said communication is that the respondent petitioner had been categorically informed that he had not opted for pension and therefore, his resignation was under
consideration. This was responded to by the respondent petitioner by his letter dated 15.1.1999, where he reiterated his request for exercise of his option of pension that was refused on 29.4.1999, that was the impugned communication in the writ petition. This communication informs the respondent petitioner that he has not complied with any of the directions and failed to report for duties, the benefits extended to ____________ Page 21 of 45 http://www.judis.nic.in W.A.No.515 of 2020 him under the appellate order would be forfeited, and there would be an automatic revival of removal of service from the bank.
34. The said letters and facts led us to conclude that the bank did not communicate its decision on the letter of resignation tendered by the respondent petitioner.
35. The process of resignation is governed by Regulation 20 of Syndicate Bank (Officers') Service Regulations, 1979 that have been relied on by learned counsel for the appellant bank. Regulation 20 (2) and (3) are relevant on this aspect, which are extracted herein under:
“20. Termination of Service:
(1) ....
(2) An Officer shall not leave or discontinue his service in the Bank without first giving a notice in writing of his intention to leave or discontinue his service or resign. The period of notice required shall be three months and shall be submitted to the Competent Authority as prescribed in these regulations.
Provided further that the Competent Authority may reduce the period of three months, or remit the ____________ Page 22 of 45 http://www.judis.nic.in W.A.No.515 of 2020 requirement of notice.
(3) (i) An Officer against whom disciplinary proceedings are pending shall not leave/discontinue or resign from his service in the Bank without the prior approval in writing of competent authority and any notice or resignation given by such an Officer before or during the disciplinary proceedings shall not take effect unless it is accepted by the Competent Authority.”
36. A perusal of the said Regulation would leave no room for doubt that an employee can resign and the statutory period of three months can be waived by the Competent Authority. The said Regulations do not indicate that the resignation in the ordinary course may require an acceptance, but the period of reducing the statutory three months notice leaves an option with the bank to pass an order even before three months or otherwise. The Regulation nowhere indicates that in the normal course, any order of acceptance has to be passed by the bank. The only embargo is that when disciplinary proceedings are pending, then as per sub-regulation 3(i), the same cannot be without the prior approval in writing of the Competent Authority and shall not take effect unless it is accepted by the ____________ Page 23 of 45 http://www.judis.nic.in W.A.No.515 of 2020 Competent Authority. Therefore, there is a bifurcation of the manner in which the bilateral function of the bank to accept the resignation has been specifically provided for in those cases where disciplinary proceedings are pending. Resignation in such cases cannot be given effect to without prior approval from the Competent Authority, but in so far as the normal resignations are concerned, there is nothing to specify the acceptance of the resignation by the authority.
37. However, in such cases, it is contract of the employment and the nature of service that would govern the intent of the regulations. The decisions relating to a variety of rules as to where an unilateral act results in acceptance and where bilateral acts are required to be performed, have been rendered by the Apex Court and various other High Courts. One of the leading judgments of the Apex Court by a Constitution Bench is in the case of Union of India and others v. Gopal Chandra Misra and others, (1978) 2 SCC 301, where the question of a letter of resignation tendered by an Hon'ble Judge of the High Court under Article 217 of the Constitution of India was taken up for consideration, also involving an issue of the stage of withdrawal of resignation before it was given effect to. While dealing with the law ____________ Page 24 of 45 http://www.judis.nic.in W.A.No.515 of 2020 relating to resignation, the learned Judges, in paragraphs (24) and (25) analyzed the meaning of the word “resignation”, which is extracted herein under:
“24.“Resignation” in the dictionary sense, means the spontaneous relinquishment of one's own right. This is conveyed by the maxim :Resionatio est juris propii spontanea refutatio (See Earl Jowitt's Dictionary of English Law). In relation to an office, it connotes the act of giving up or relinquishing the office. To “relinquish an office” means to “cease to hold” the office, or to “loose hold of the office (cf. Shorter Oxford Dictionary); and to “loose hold of 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.
25. In the general juristic sense, also, the meaning of “resigning office” is not different. There also, as a rule, both, the intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see, e.g. American Jurisprudence, Second Edn., Vol. 15-A, p. 80), although the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the ____________ Page 25 of 45 http://www.judis.nic.in W.A.No.515 of 2020 nature of the office and the conditions governing it.
Thus, resigning office necessarily involves relinquishment of the office, which implies cessation or termination of, or cutting as under from the office. Indeed, the completion of the resignation and the vacation of the office, are the causal and effectual aspects of one and the same event.”
38. As noted above, the said case was in the light of the provisions of Article 217 of the Constitution of India, where it is the privilege of a Judge to resign from office and then it was further held that it is also open to the Judge to resign from a future date, whereafter it was also concluded that the resignation could be withdrawn before it is accepted. We may further point out that the minority judgment in the said Constitution Bench delivered by Hon'ble Mr. Justice Fazal Ali is also worth noticing, who held that once a resignation, even though from a prospective date, is tendered, the same cannot be recalled. Keeping in view the nature and character of the privilege and the right conferred by the Constitution on a Judge, the learned Judge relied on Salmond and Paton on Jurisprudence in paragraph (113) as follows:
____________ Page 26 of 45 http://www.judis.nic.in W.A.No.515 of 2020 “113. The principles enunciated above flow as a logical corollary from the nature and character of the privilege, right or power (whatever name we may choose to give to the same) conferred by the Constitution on a Judge of the High Court or other constitutional functionaries mentioned hereinbefore. Salmond on Jurisprudence [ 12th Edn. By Fitzgerald] describes a species of legal rights thus (p. 229):
“All these are legal rights — they are legally recognised interests — they are advantages conferred by law.... They resemble liberties, and differ from rights stricto sensu, inasmuch as they have no duties corresponding to them.... A power may be defined as ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons.... Power is either ability to determine the legal relations of other persons, or ability to determine one's own. The first of these — power over other persons — is sometimes called authority; the second — power over oneself — is usually termed capacity.” Similarly, Paton on Jurisprudence [3rd Edn. By Dehram] while illustrating the right of liberty observed as follows:
____________ Page 27 of 45 http://www.judis.nic.in W.A.No.515 of 2020 “I have liberty to breathe, to walk in my own fields, to play golf on my private links. Here no precise relationship to others is in question, save that the law will protect my liberty if others interfere with its exercise. But it is more accurate to say that I have a liberty to play than that I have a claim, for I may exercise my liberty without affecting others, whereas my claim can be enforced only by coercing another to act or forbear.”
39. The minority view held that the decision taken by a Judge to resign is irrevocable and immutable, like a bullet, having fired and having reached its destination, cannot come back to the barrel from which it was shot. However, the minority view was not accepted by the Apex Court and the majority view still holds the field.
40. The next decision, which throws light on the law on the subject is in the case of Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly, (1986) 3 SCC 156 and the subsequent judgment is in the case of J.K. Cotton, Spinning and Weaving Mills Company Limited v. State of U.P., (1990) 4 ____________ Page 28 of 45 http://www.judis.nic.in W.A.No.515 of 2020 SCC 27 as well as other judgments.
41. The views of the Apex Court have been captured by a learned Single Judge of the Allahabad High Court in the decision in Sukhdeo Dwivedi v. Deputy Director of Education (Sanskrit), Directorate of Education and others, 2005 5 All WC 5131 :
MANU/UP/0643/2005. Paragraphs (13) to (15) of the said decision are extracted herein under:
“13. The Apex Court in the case of Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly reported in MANU/SC/0439/1986 : (1986) 3 SCC 156 at page 228 paragraph 111 has held as under:-
"A resignation by an employee would, however, normally requires to be accepted by the employer in order to be effective. It can be that in certain circumstances an employer would be justified in refusing to accept the employee's resignation as, for instance, when an employee wants to leave in the middle of a work which is urgent or important and for the completion of which his presence and participation are necessary. An employer can also refuse to accept the resignation when there is a ____________ Page 29 of 45 http://www.judis.nic.in W.A.No.515 of 2020 disciplinary inquiry pending against the employee. In such a case, to permit an employee to resign would be to allow him to go away from the service and escape the consequences of an adverse finding against him in such an inquiry. There can also be other grounds on which an employer would be justified in not accepting the resignation of an employee."
14. The same view was reiterated in J.K. Cotton, Spinning and Weaving Mills Company Ltd. v. State of U.P. reported in MANU/SC/0484/1990 : (1990) 4 SCC
27. These aspects were further considered in the case of Moti Ram v. Param Deo and Anr.
MANU/SC/0270/1993 paragraphs 16 and 18, which are quoted herein below:
"16. As pointed out by this Court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an officer, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on ____________ Page 30 of 45 http://www.judis.nic.in W.A.No.515 of 2020 the nature of the office and the conditions governing it. (See Union of India v. Gopal Chandra Misra). If the act of relinquishment is of unilateral character, it comes into effect when such act indication the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In case where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish. E.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it."
"18. A contract of employment, however, stand on a different footing wherein the act of relinquishment is of ____________ Page 31 of 45 http://www.judis.nic.in W.A.No.515 of 2020 bilateral character and resignation of an employee is effective only on acceptance of the same by the employer, Insofar as Government employees are concerned, there are specific provisions in the service rules which require acceptance of the resignation before it becomes effective in Raj Kumar v. Union of India, it has been held;
"...But when a public servant has invited by his letter of resignation determination of his employment, his services normally stand 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 concerned has locus poenitentiae but not thereafter." (page 860)
15. Applying the aforesaid principles, the first thing that has to be seen is as to whether the petitioner has tendered his resignation "voluntarily". A perusal of the text of the resignation letter clearly indicates that it was under duress and as such it cannot be said that the petitioner intended to give up his services "voluntarily".
____________ Page 32 of 45 http://www.judis.nic.in W.A.No.515 of 2020 Secondly the act of resignation is subject to an bilateral procedure as held by the Apex Court herein above. In the matter of an employee a resignation takes effect normally upon its acceptance and the reasons for the same are clearly spelled out in the judgment of the Apex Court in the case of B.N. Ganguly (supra). Even from the conduct of the parties it is evident that petitioner's letter of resignation was subject to acceptance or disapproval by the committee of management. As found herein above, the resignation tendered by the petitioner was disapproved on 12.3.1996 Consequently, any action taken by the committee of management purportedly to accept the resignation on 6.8.1996 is nothing else but an after- thought and an exercise in futility as held herein above. Apart from this, the authorities have also accepted the stand of the petitioner vide order dated 11.7.2001 and hence the petitioner deserves to be granted the relief as claimed by him.”
42. The law in this regard has been further considered by a learned Single Judge of the Allahabad High Court in the case of Rabia Sultana v. Vice Chancellor, Aligarh Muslim University and others, 2006 2 All WC 1376 : MANU/UP/1830/2005, where in ____________ Page 33 of 45 http://www.judis.nic.in W.A.No.515 of 2020 paragraphs (6) and (7), the law has been discussed as under:
“6. ......... The petitioners' case stand supported by a series of decisions of the Apex Court in this regard. In the case of Union of India etc. v. Gopal Chandra Misra and Ors. etc. MANU/SC/0370/1978 : (1978)ILLJ492SC, it was held that a resignation can be withdrawn before the date from which it is intended to be given effect to. The Apex Court in the case of Balram Gupta v. Union of India and Anr. reported in , has held that a resignation can be withdrawn before acceptance and the same view has been followed in the case of Nand Keshwar Prasad v. Indian Farmers Fertilizers Cooperative Ltd.
and Ors. reported in MANU/SC/1053/1998 :
(1998)IILLJ1008SC and J.N. Srivastava v. Union of India and Anr. MANU/SC/1577/1998 :
(1999)ILLJ546SC . The Apex Court in a later decision in the case of Power Finance Corporation Ltd. v. Pramod Kumar Bhatia, reported in MANU/SC/1136/1997 : (1997)IILLJ819SC , has ruled that the jural relationship of an employee comes to an end only after the employee is relieved upon the resignation having been accepted by the employer. This view has been further followed by the Apex Court in the case of Shambhu Murari Sinha v. Project & Development India Ltd. and Anr. MANU/SC/0183/2002 : (2002)IILLJ430SC , and Shambhu Murari Sinha v. Project & Development India ____________ Page 34 of 45 http://www.judis.nic.in W.A.No.515 of 2020 Ltd. and Anr. MANU/SC/0335/2000 :
(2000)IILLJ935SC .
7. Another aspect of the matter which deserves to be noted is that the aforesaid regulation clearly stipulates a bilateral act for the resignation to be given effect to. This clearly indicates that the resignation is not a unilateral action and, as such, the Apex Court in the case of Moti Ram v. Param Dev and Anr.
MANU/SC/0270/1993 : (1993)IILLJ629SC , has held that where the Act of resignation requires acceptance, it is a bilateral act and it will become complete only after the office is relinquished upon the acceptance having been made by the competent authority.”
43. The respondent petitioner took the step of tendering resignation, which in the present facts as indicate above, was not accepted by the bank and was rather kept pending for consideration. The bank, therefore, in our clear opinion, did not acknowledge the cessation of the service of the respondent petitioner on account of his resignation but relied on an erroneous impression of automatic revival of removal from service. This peculiar combination of facts, therefore, leads us to believe that the bank wrongly treated the respondent ____________ Page 35 of 45 http://www.judis.nic.in W.A.No.515 of 2020 petitioner to have been removed from service in April 2019 and no action was taken on the resignation letter, which was kept pending consideration, as is evident from the communication referred to above. There is, therefore, no cessation on the letter of resignation tendered by the respondent petitioner and rather the bank took an erroneous stand of his removal having revived.
44. In our opinion, in view of these facts, the benefit of interpretation of the terms and conditions of the resignation should lean in favour of the respondent petitioner on account of the conduct of the appellant bank itself, which expressly kept the resignation matter pending and then abruptly informed the respondent petitioner of the revival of his removal. The appellant bank therefore never treated the respondent petitioner to have resigned from service.
45. We, therefore, construe the provision for resignation on the peculiar facts of this case accordingly, even though the recital in the provisions of resignation in the ordinary course do not require bilateral acceptance by the bank, except in case where the disciplinary proceedings are pending, as indicated above. We would have in the ____________ Page 36 of 45 http://www.judis.nic.in W.A.No.515 of 2020 ordinary course of things accepted the resignation to have come into effect after three months, but on the peculiar facts of this case and on account of the express conduct of the bank in keeping the resignation letter pending consideration, the aforesaid rigours of the terms of resignation cannot be applied against the respondent petitioner.
46. But then, there is yet another peculiar fact on this resignation issued, viz., that the writ petition itself prayed for a mandamus to accept the resignation letter. The bank was disputing this position, but the ultimate relief granted by the learned Single Judge in paragraph (14) of the impugned judgment is a direction to the bank to accept the letter of resignation. The Court did not specify the date from which the resignation should be accepted. The peculiar fact is that the respondent petitioner joined in service in the year 1976 and attained his age of superannuation on 31.10.2012. The question is that could the learned Single Judge have issued a direction to accept the resignation once the respondent petitioner had admittedly retired on 31.10.2012. This aspect has been completely remained unnoticed by the learned Single Judge. The question of acceptance of resignation therefore has not been dealt with by the learned Single Judge either ____________ Page 37 of 45 http://www.judis.nic.in W.A.No.515 of 2020 with the aid of the provisions applicable or on the basis of the facts aforesaid and hence, the direction for acceptance of resignation does not proceed on a sound principle. However, the fact remains that the relief claimed by the respondent petitioner in accepting his resignation has been granted, and which relief has not been challenged by the respondent petitioner by way of any appeal. Thus, for all intents and purposes, on the peculiar facts aforesaid, the respondent petitioner had expressed his clear desire to resign, and which desire has been erroneously converted into a positive mandamus by this Court admittedly after he had attained retirement.
47. However, we have a different view of the matter viz., the learned Single Judge could have simply issued a direction to the bank after having quashed the order dated 29.4.1999 to consider the issue of resignation vis-a-vis the employee having attained the age of superannuation long back in 2012. The relief granted by the learned Single Judge otherwise also does not appear to be either equitable, just, or even legal, as there would be no question of acceptance of resignation retrospectively with effect from the date prior to his date of retirement, as that is neither permissible under the rules, nor it can be ____________ Page 38 of 45 http://www.judis.nic.in W.A.No.515 of 2020 now considered after the employee has admittedly retired, in view of our finding given herein above that he will be presumed to be continued in service, as there was no removal in existence.
48. The respondent petitioner was communicated about the status of his service, which communication, as indicated above dated 29.4.1999, is erroneous in law, as there could have been no automatic revival of the removal from service. This is also evident from the communications of the bank dated 5.1.1999 and 13.1.1999 that the respondent petitioner was being considered to be continuing in service and his resignation was also under consideration.
49. The respondent petitioner did not take any steps for almost five years and came to this Court in the year 2004 with a very peculiar prayer that can be gathered from the affidavit filed in support of the writ petition. It is evident from the facts that no explanation has been given by the respondent petitioner worth acceptance in his writ petition as to why he did not choose to challenge the order dated 29.04.1999 for another five years. Not only this, he had encashed the provident fund and utilized it, as is evident from his own admission in paragraph ____________ Page 39 of 45 http://www.judis.nic.in W.A.No.515 of 2020 (11) of the writ petition. It appears that it was only after some advise taken by him that he thought of trying his luck before this Court and filed the writ petition, which suffered from laches. However, the learned Single Judge has decided the matter finally, therefore, we are not delving into the issue of laches any further.
50. In his affidavit, the petitioner admits that he has received the employer's provident fund that was credited during April 2001. This fact is clearly admitted in paragraph (11) of the affidavit in support of the writ petition. The prayer made is to issue a certiorarified mandamus for quashing the communication dated 29.4.1999, and then to relieve the respondent petitioner from service pursuant to his letter of resignation dated 1.10.1998 by giving all terminal benefits, including pension, etc. The respondent petitioner, therefore, admitted that he had received the provident fund, and that stood credited to his Savings Bank Account, and he did not raise any contention of having received the said benefits. Once the respondent petitioner had accepted his provident fund amount, then this amounts to express acceptance of a pre-condition that is prescribed in Syndicate Bank (Employees') Pension Regulations, 1995, which clearly ____________ Page 40 of 45 http://www.judis.nic.in W.A.No.515 of 2020 stipulates that the pension benefits would not be available if the provident fund has been opted for. The respondent petitioner, therefore, cannot have the cake and eat it too. The availing of the provident fund and its encashment and utilisation by the respondent petitioner, as indicated above, therefore, disentitles him for grant of any pensionary benefits.
51. In the light of the facts that have emerged, we find that the respondent petitioner having availed of the provident fund benefits may have thought rightly not to claim any relief of voluntary retirement or any pensionary benefits arising therefrom in his writ petition, and rather opted for a relief of cessation of service on the ground of resignation and then give him all terminal benefits, including pension. The respondent petitioner having not prayed for the relief of pension scheme or voluntary retirement cannot be extended the said benefits, nor it has been extended by the learned Single Judge. On the other hand if the theory of resignation is accepted, then it is more than evident that once an employee resigns, then under the rules, there is a clear forfeiture of pension. Thus, it appears that during the pendency of the writ petition, which was filed in the year 2004, the ____________ Page 41 of 45 http://www.judis.nic.in W.A.No.515 of 2020 respondent petitioner developed another argument, which has been noted by the learned Single Judge of exercising an option on the second occasion in the year 2010. Such an option was otherwise not available to the respondent petitioner, because if he had resigned from service, he ceased to be an employee and therefore not entitled to exercise any such option after resignation, but on the other hand, if he continued in service and availed of the benefits of the provident fund in the year 2001, then he had no right to exercise his option a second time in the year 2010. Thus, on both counts the claim of the respondent petitioner stood foreclosed in so far as the award of pension in any form is concerned.
52. Thus, the only way out and the just way to give the legal and equitable option to both contesting parties is to hold that the respondent petitioner was entitled to continue till 31.10.2012, which is the date of superannuation. However, he had availed of the benefits of provident fund, which was neither returned nor challenged. Therefore, we cannot accept that he had opted for pension scheme or he could have opted at the second chance in 2010. The respondent petitioner had the option to resign and his relief to that effect has been ____________ Page 42 of 45 http://www.judis.nic.in W.A.No.515 of 2020 granted by the learned Single Judge, which has not been challenged by him. If the resignation is accepted, even then pension would stand forfeited under the applicable rules. The only way now to give relief is to treat the offer of resignation as infructuous after 31.10.2012, which is the date of superannuation of the respondent petitioner, and we hold that the respondent petitioner retired from service on 31.10.2012. We have found the petitioner not to be entitled to the benefits of pension/voluntary retirement scheme, as he had availed of the contributory fund scheme.
53. However, since the respondent petitioner will be deemed to be continuing to be in service as per our findings recorded herein above till 31.10.2012, he will be entitled to 50% of his salary and other emoluments as if he was in service till 31.10.2012 on the balanced principle of no work no pay. The respondent petitioner has admittedly not worked with the bank after the appellate order dated 13.6.1998 and correspondingly, the bank has not indicated any evidence of gainful employment of the respondent petitioner. The respondent petitioner also has not disclosed any employment having been undertaken by him during this period.
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54. We, accordingly, partly allow this appeal in the terms indicated herein above and modify the impugned judgment dated 13.6.2019 and direct the appellants to extend the benefits as referred to above within three months. No costs. Consequently, C.M.P.No.7519 of 2020 is closed.
(A.P.S., CJ.) (S.K.R., J.)
25.09.2020
Index : Yes
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W.A.No.515 of 2020
THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY, J.
(bbr)
W.A.No.515 of 2020
25.09.2020
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