Allahabad High Court
Dinesh Prasad Chaurasia vs Managing Director And Others on 30 May, 2016
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 59 Case :- WRIT - A No. - 8679 of 1999 Petitioner :- Dinesh Prasad Chaurasia Respondent :- Managing Director And Others Counsel for Petitioner :- M.C.Kandpal,Komal Mehrotra Counsel for Respondent :- V.K.Singh,M.C. Pandey,S.C. Hon'ble Ashwani Kumar Mishra,J.
1. Petitioner, who was an Assistant Accountant in U.P. Forest Corporation, submitted resignation on 28th October, 1986. Regional Manager, who was the competent authority, has unconditionally accepted resignation on 30th December, 1998, which is under challenge in the present writ petition. Petitioner contends that he had already withdrawn his resignation on 28.2.1996, which was acknowledged by the Corporation vide letter dated 7.9.1998, and therefore, resignation could not be accepted, once it stood withdrawn.
2. Briefly stated facts, giving rise to filing of the present writ petition, are that petitioner was appointed as Junior Assistant on 26.4.1980 and was posted at Khatima, Nainital. It is claimed that he was then transferred to Pilihhit, Haldwani and Kumaun, within a period of four years, pursuant to which he joined. By an order dated 12th March, 1984, petitioner was deputed to perform temporary duty, relating to collection of Tendu Patta at Karvi Logging Division of U.P. Forest Corporation, but such orders were not complied, although advance was received for the purpose by the petitioner of Rs.500/-. Petitioner was then transferred to Karvi Logging Division from Kumaun Region on 1.6.1984. It appears that petitioner did not join at Karvi, and remained absent from 6.4.1984 to 27.12.1984. A supplementary counter affidavit has been filed by the respondents alleging that petitioner applied for medical leave on 28.12.1984, whereafter matter was enquired, and the Corporation was informed that petitioner had opened a shop in the name of Roop Sringar in Nainital, and that he was in fact engaged in commercial activity. However, petitioner's medical leave from 6.4.1984 to 27.12.1984 was sanctioned. When petitioner reported for duty at Kumaun, he was informed on 2.1.1985 to report for duty at Karvi, as he had already been transferred, but the petitioner failed to join, and again remained absent from service for more than six months, and it was only on 12.7.1985 that he reported at Karvi Logging Division. Petitioner is stated to have again absented from duty from 5.8.1985, and a telegram was sent by the petitioner on 11.11.1985 stating that he was unable to continue with his service and that a resignation is being forwarded. Ultimately, a resignation was submitted by the petitioner on 28.10.1986, which came to be accepted by the Corporation after 12 years on 30th December, 1998. It is, however, not in dispute that petitioner remained absent since 5.8.1985 onwards.
3. The statement made in the supplementary counter affidavit of the respondents about opening and running of business venture has been disputed on behalf of petitioner. Since such claims have been made by the respondents, during the course of hearing of the matter, and petitioner had no opportunity to submit a reply on such count, as such, no opinion is expressed by the Court on this aspect.
4. According to the petitioner, his wife was running ill, and he was not being paid his salary regularly, as such it was difficult for the petitioner to work permanently at Karvi, Banda. It is claimed that although he joined pursuant to order of transfer, but he could not continue, owing to non-cooperative behaviour of the officials in the matter of payment of salary, which forced the petitioner to submit unconditional resignation on 4.11.1985. This letter dated 4.11.1985 was returned by the Regional Office at Karvi, and therefore, a subsequent resignation dated 28.10.1986 was sent by the petitioner. However, the resignation was not accepted, and the respondents also stopped paying salary, as such a letter was sent by him on 4.2.1989, which is Annexure-3 to the writ petition, stating that either the petitioner's resignation be accepted, or he be assigned duties. Petitioner further asserts that he was called to make audit by the Kumaun Office, which was duly performed. A letter was sent by the Manager of the Regional Office, Southern Region, Allahabad, dated 8.2.1995, stating that since he was posted in Southern Region, as such, resignation letter sent to Nainital Office is being returned, and that the resignation be modified, and sent to the Regional Office at Allahabad, so that steps for its acceptance could be taken. Reminder was again sent on 21.8.1995 by the Regional Office, Allahabad, and thereafter, by the Personnel Officer of the Head Office for sending the resignation to the Regional Office, Southern Region, so that petitioner's resignation could be accepted. It is in reply to the letter of the Personnel Officer of the Head Office dated 5.9.1995 that petitioner has withdrawn his resignation vide his letter dated 28.2.1996. Petitioner again claims to have sent letters to the Regional Office, Allahabad on 28.7.1996, and subsequent letters are claimed to have been sent stating that no orders for petitioner's posting are being issued. The Regional Officer vide his letter dated 7.9.1998 again informed the petitioner to sent resignation letter directly to Regional Office at Allahabad, so that it could be accepted. Petitioner responded to this letter on 11.9.1998 by stating that once he has withdrawn his resignation, the question of sending any modified resignation letter does not arise. Petitioner, at this stage, approached this Court by filing Writ Petition No.31500 of 1998, which was disposed of on 5.10.1998, vide following order:-
"Heard.
This petition is disposed of with the direction to the authority concerned to decide the petitioner's representation, dated 10.8.98 and 11.9.98 within three months of production of a certified copy of this order in accordance with law.
Sri V.K. Singh learned counsel appeared for the respondents."
5. The order is stated to have been served alongwith a letter dated 6.1.1999, and at such stage, petitioner received the order dated 30th December, 1998, accepting his resignation. The order accepts petitioner's resignation w.e.f. 28.10.1986. Learned counsel for the petitioner submits that once petitioner had withdrawn his resignation, there remained no offer on part of the petitioner to resign from services of the Corporation, which could be accepted. Learned counsel for the petitioner has relied upon judgment of the Apex Court in Raj Narain Vs. Smt. Indira Nehru Gandhi, reported in AIR 1972 SC 1302 to contend that service of a Government servant normally stands terminated from the date on which letter of resignation is accepted by the appropriate authority, unless there is any law or statutory regulation governing the service conditions, provide for a contrary. Reliance has also been placed upon a Constitution Bench judgment in Union of India Vs. Gopal Chandra Misra and others, reported in AIR 1978 SC 694, as well as upon the observations made in Central Inland Water Transport Corporation Ltd. Vs. Brojonath Ganguli, reported in AIR 1986 SC 1571. According to learned counsel, as per Clause 23 of the service regulations framed for the employees of the Corporation, a resignation would not be effective, unless it is accepted by the competent authority. According to the petitioner, the acceptance of resignation on 30th December, 1998 was contrary to law, and the order impugned had been passed with the object of frustrating the orders passed by the Writ Court for considering petitioner's grievance. Clause 23 of the U.P. Forest Corporation General Service Regulation, 1985 is reproduced:-
"23&fdlh deZpkjh dk inR;kx rc rd izHkkoh ugha gksxk tc rd mls l{ke izkf/kdkjh }kjk Lohdkj u fd;k tk;A l{ke izkf/kdkjh inR;kx dks Lohdkj djus ls bUdkj dj ldrk gS] ;fn& 1&deZpkjh fdlh fofufnZ"V vof/k ds fy, fuxe dh lsok djus ds fy, vkHkkj ds v/khu gksxk] ;k 2& deZpkjh ,sls le; rd fdlh /kujkf/k vkSj @;k vU; nkf;Roksa dk _.kh gks] tc rd mDr /kujkf'k dk Hkqxrku u dj fn;k tk; ;k nkf;Ro dk mUekspu u dj fn;k tk;] ;k 3& ,sls fdlh vU; iz;kZIr dkj.kksa ls tSlk vfHkfyf[kr fd;s tk;saxsA^^
6. Learned counsel for the respondents, on the other hand, contends that petitioner had virtually abandoned the services from 1985 onwards, and although the resignation was not formally accepted, but the contract of employment had been unilaterally surrendered by the petitioner in the year 1985 itself, and it was not open for the petitioner to have withdrawn the resignation after 10 years, inasmuch as the mere acceptance of resignation was an empty formality in the facts and circumstances of the present case. It is contended that the principles governing acceptance of resignation has no applicability in the facts of the present case, as the case in hand is of abandonment, and not of acceptance of resignation, and the order of resignation does not give any fresh cause to the petitioner.
7. I have heard Sri Manoj Kumar Sharma, learned counsel for the petitioner and Sri V.K. Singh, learned Senior Counsel assisted by Sri S. Shekhar, learned counsel for the respondents, and have perused the records.
8. From the facts appearing on record, it is apparent that ever since 1984, when petitioner was asked to report for duty at Karvi, Banda, petitioner was not comfortable with the idea of working there, and initially he applied for medical leave from 6.4.1984 to 27.12.1984, but he appears to have again absented from duty. It appears that petitioner had worked at Karvi Logging Division from 12.7.1985 to 5.8.1985 only, whereafter petitioner again absented, and ultimately sent a telegram on 11.11.1985, which reads as under:-
"unable continue service Karwi may accept resignation follows"
9. This telegram has been sent from Nainital. It is not in dispute that ever since then, petitioner continued to remain absent, and it was only in 1989 that a letter is claimed to have been sent by the petitioner stating that either his resignation be accepted, or he be assigned duties. From the materials, which have been brought on record, it seems that petitioner wanted to work only at Nainital, and was not willing to work at Banda. Being holder of a transferable post, petitioner was under an obligation to have complied with the orders issued by the employer, and either petitioner ought to have challenged it, or was required to have complied with it. It appears that thereafter also, petitioner remained absent, and the only communication, which took place in 1995, was about the authority, who was to accept the resignation, inasmuch as petitioner had sent a resignation to the Corporation through Regional Office at Kumaun, whereas respondents insisted to sent resignation to Regional Office at Allahabad, where he was posted last. It further appears that this correspondence continued between the parties till petitioner withdrew his resignation on 28.2.1996. The withdrawal of resignation by the petitioner is not disputed. It seems that after the petitioner filed a writ petition before this Court, orders were passed on 5.10.1998 for considering the petitioner's representation, and that is when the order dated 30th December, 1998 has been passed unconditionally accepting petitioner's resignation.
10. So far as legal proposition with regard to resignation and its acceptance are concerned, the same is settled. Clause 23 of the U.P. Forest Corporation General Service Regulation, 1985, which has been extracted above, provides that resignation will not become effective till it is accepted by the competent authority. The resignation submitted by petitioner on 28.10.1986 remained on paper, and was not accepted till it was withdrawn on 28.2.1996. It is not in dispute that letter dated 28.2.1996 was duly served. Once the resignation was withdrawn by petitioner prior to its acceptance by the competent authority, it was not open for the respondents to have accepted the same, vide order impugned dated 30th December, 1998. This is particularly so, as the offer on part of petitioner to sever the contract of employment was not subsisting on the date when it was accepted. The acceptance of resignation, therefore, was incompetent. Even otherwise, law is settled that resignation can be accepted, so long as it is not withdrawn. The observation made by the Apex Court in para-22 of Raj Narain (supra) reads as under:-
"22. For the reasons mentioned above, we think that the learned judge was not justified in striking out Issue No. 1. On the other hand. he should have reframed that issue, as mentioned earlier. Before leaving- this question, it is necessary to mention one other fact. Yashpal Kapur appears to have tendered his resignation to the office he was holding on January 13, 1971. The certified copy of the notification produced shows that the President accepted his resignation on the 25th of January '71 and the same was gazetted on February 6, 1971. The order of the President shows that he accepted Yashpal Kapur's resignation with effect from January 14, 1971. The learned trial judge without examining the true effect of the President's order has abruptly come to the conclusion that Yashpal Kapur's resignation became effective as from January 14, 1971. This conclusion, in our opinion, requires re examination. It is necessary to examine whether a government servant's resignation can be accepted with effect from an earlier date. At any rate whether such an acceptance has any validity in considering a corrupt practice under S. 123(7). If such a course is permissible, it might enable the government to defeat the mandate of S. 123(7). The question as to when a government servant's resignation becomes effective came up for consideration by this Court in Raj Kumar v. Union of India(1). Therein this Court ruled that when a public servant has invited by his letter of resignation the determination of his employment, his service normally stands terminated from the date on which the letter of resignation is accepted by the appropriate authority and, in the absence of any law or statutory 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. Hence the question as to when Yashpal Kapur's resignation became effective will have to be examined with reference to his conditions of service. This examination having nor been done, the conclusion of the learned trial judge that it became effective on January 14, 1971, has to be ignored."
11. Reliance has also been placed upon a judgment of the Apex Court in Balram Gupta Vs. Union of India and another, reported in AIR 1987 SC 2354. Paras-10 to 13 of the judgment, which are relevant for the purpose, are reproduced:-
"10. This question arose in the case of one Shri Satish Chandra, then a Judge in the High Court of Allahabad in Union of India v. Shri Gopal Chandra Misra and others, [1978] 3 S.C.R. 12. There the second respondent Shri Satish Chandra wrote to the President of India, on May 7, 1977, intimating his resignation from the office of Judge of the Allahabad High Court, with effect from 1st of August, 1977. On July 15, 1977, he again wrote to the President, revoking his earlier communication, and commenced deciding matters in Court from July 16, 1977. On 1st of August, 1977 the first respondent Shri Misra, an advocate of the said High Court filed a writ petition under Article 226 of the Constitution contending that the resignation of Shri Satish Chandra having been duly communicated to the President of India in accordance with Article 217(1) Proviso (a) of the Constitution was final and irrevocable, and that the continuance of said Shri Satish Chandra as a Judge of the High Court there- after, was an usurpation of public office. The High Court allowed the petition holding that Shri Satish Chandra was not competent to revoke his resignation letter. On appeal this Court held that the resigning office necessarily involved relinquishment of the office which implied cessation or termination of, or cutting as under from the office. A complete and effective act of resigning office is one which severs the link of the resigner with his office and terminates its tenure. In the context of Article 217(1) this assumes the character of a decisive test, because the expression "resign his office" occurs in a proviso which excepts or qualifies the substantive clause fixing the office tenure of a judge upto the age of 62 years. It was further reiterated that in the absence of a legal, contractual or constitutional bar, an intimation in writing sent to the appropriate authority by an incumbent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it becomes effective i.e., before it effects termination of the tenure of the office/post, or employment. This general rule equally applies to Government servants and constitutional functionaries, this Court reiterated. The other peculiar essence of Article 2 17 which was discussed need not detain us in the facts of this case. On the principle of general law the offer to relinquishment could have been withdrawn by the appellant before the date it became effective if sub-rule (4) of Rule 48-A was not there.
11. In Air India etc. etc. v. Nergesh Meerza & Ors. etc. etc., [1982] 1 S.C.R. 438, there the Court struck down certain provisions of Air India Employees Service Regulations. We are not concerned with the actual controversy. But the Court reiterated that there should not be arbitrariness and hostile discrimination in Government's approach to its employees. On behalf of the respondent it was submitted that a Government servant was not entitled to demand as of right, permission to withdraw the letter of voluntary retirement, it could only be given as a matter of grace. Our attention was also drawn to the observations of this Court in Raj Kumar v. Union of India, [1968] 3 S.C.R. 857. There the Court reiterated that till the resignation was accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter. Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation had not been accepted. But in the facts of the instant case the resignation from the Government servant was to take effect at a subsequent date prospectively and the withdrawal was long before that date. Therefore, the appellant, in our opinion, had locus. As mentioned hereinbefore the main question was whether the sub-rule (4) of Rule 48-A was valid and if so whether the power exercised under the sub-rule (4) of Rule 48-A was proper. In the view we have taken it is not necessary, in our opinion, to decide whether subrule (4) of Rule 48-A was valid or not. It may be a salutary requirement that a Government servant cannot with- draw a letter of resignation or of voluntary retirement at his sweet will and put the Government into difficulties by writing letters of resignation or retirement and withdrawing the same immediately without rhyme or reasons. Therefore, for the purpose of appeal we do not propose to consider the question whether sub-rule (4) of Rule 48-A of the Pension Rules is valid or not. If properly exercised the power of the government may be a salutary rule. Approval, however, is not ipse dixit of the approving authority. The approving authority who has the statutory authority must act reasonably and rationally. The only reason put forward here is that the appellant had not indicated his reasons for withdrawal. This, in our opinion, was sufficiently indicated that he was prevailed upon by his friends and the appellant had a second look at the matter. This is not an unreasonable reason. The guidelines indicated are as follows:
"(2) A question has been raised whether a Government servant who has given to the appropriate authority notice of retirement under the para 2(2) above has any right subsequently (but during the currency of the notice) to withdraw the same and return to duty. The question has been considered carefully and the conclusion reached is that the Government servant has no such right. There would, however, be no objection to permission being given to such a Government servant, on consideration of the circumstances of his case to withdraw the notice given by him, but ordinarily such permission should not be granted unless he is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given.
Where the notice of retirement has been served by Government on the Government servant, it may be withdrawn if so desired for adequate reasons, provided the Government servant concerned is agreeable."
12. In this case the guidelines are that ordinarily permission should not be granted unless the Officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. In the facts of the instant case such indication has been given. The appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo upon people's choice or freedom. If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administrative set up or management was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this purpose the respondent is to blame and not the appellant.
13. We hold, therefore, that there was no valid reason for withholding the permission, by the respondent. We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in Government service and induced the appellant to withdraw the notice. In the modern and uncertain age it is very difficult to arrange one's future with any amount of certainty, a certain amount of flexibility is required, and if such flexibility does not jeopardize Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful attitude. The court cannot but condemn circuitous ways "to ease out" uncomfortable employees. As a model employer the government must conduct itself with high probity and candour with its employees."
12. In Power Finance Corporation Ltd. Vs. Parmod Kumar Bhatia, reported in 1997 (4) SCC 280, following observations have been made in paragraph-7:-
"7. It is now settled legal position that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end. since the order accepting the voluntary retirement was a conditional one, the conditions ought to have been complied with. Before the conditions could be complied with, the appellant withdrew the scheme. consequently, the order accepting voluntary retirement did not become effective. Thereby no vested right has been created in favour of the respondent. The High court, therefore, was not right in holding that the respondent has acquired a vested right and, therefore, the appellant has no right to withdraw the scheme subsequently."
13. A Constitution Bench in Union of India Vs. Gopal Chandra Misra and others, reported in AIR 1978 SC 694, has been pleased to make following observations:-
"It will be repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a 'prospective' resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office- tenure of the resignor......... If he chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can, at any time before arrival of prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal."
14. In view of the settled legal position, as well as considering the fact that in terms of applicable service rules, resignation was to become effective only from the date of its acceptance by the competent authority, the decision taken by the respondents to accept resignation from the date of its tendering, after it had been withdrawn, is illegal and arbitrary. The order impugned, consequently, cannot be sustained.
15. Having reached the conclusion aforesaid, the next question, which arises for consideration, is as to what relief is liable to be granted to the petitioner. Law by now is well settled that back wages cannot be granted, as a matter of routine. Learned counsel for the petitioner has placed various decisions on this aspect of the matter. In Shambhu Murari Sinha Vs. Project and Development India and another, reported in 2000 (86) FLR 206, it has been observed that in such circumstances, the employee concerned would be entitled to continue with all consequential benefits. Para-4 of the judgment is reproduced:-
"4. From the facts stated above, it would be seen that though the option of voluntary retirement exercised by the appellant by his letter dated 18.10.1995 was accepted by the respondent-management by their letter dated 30.7.1997, the appellant was not relieved from service and he was allowed to continue in service till 26.9.1997, which, for all practical purposes, would be the "effective date" as it was on this date that he was relieved from service. In the meantime, as pointed out above, the appellant had already withdrawn the offer of voluntary retirement vide his letter dated 7.8.1997. The question which, therefore, arises in this appeal is whether it is open to a person having exercised option of voluntary retirement to withdraw the said offer after its acceptance but before it is made effective. The question is squarely answered by the three decisions, namely, Balram Gupta vs. Union of India & Anr. 1987 (Supp.) SCC 228; J.N. Srivastava vs. Union of India & Anr. (1998) 9 SCC 559 and Power Finance Corporation Ltd. vs. Pramod Kumar Bhatia (1997) 4 SCC 280, in which it was held that the resignation, in spite of its acceptance, can be withdrawn before the "effective date". That being so, the appeal is allowed. The impugned judgment of the High Court is set aside with the direction that the appellant shall be allowed to continue in service with all consequential benefits. There will, however, be no order as to costs."
16. In Managing Director, Orissa State Handloom Weavers' Cooperative Society Ltd. Vs. Satyanarayan Pattnaik and another, reported in 2014 (3) SCC 218, following observations have been made in para-4 of the judgment, awarding 20@ of back wages:-
"4. Keeping the question of law open, looking at the peculiar facts of the case, we feel that the appeal deserves to be allowed to a limited extent by directing the appellant employer to pay only 20% of the back wages from the date when the respondent ceased to discharge his duties till the date he is reinstated in service. The respondent shall be reinstated in service within two weeks from today."
17. Per contra, learned counsel for the respondent Corporation submits that in the facts of the present case, the petitioner has virtually abandoned the services, and acceptance of resignation was a mere formality, and even if, the order of acceptance is held to be illegal, petitioner would not be entitled to any back wages.
18. From the materials, which have been brought on record, this Court finds that there was an intentional act on part of the petitioner not to perform his duties from 1985 onwards. Except for sending of certain letters, there was no serious intent on part of petitioner to actually work. It is only after 11 years that the resignation was withdrawn. Even thereafter, petitioner did nothing, and only in October, 1998, petitioner approached this Court by filing a writ petition.
19. From the facts aforesaid, this Court finds that it was not a case, in which respondents have prevented the petitioner from working, but petitioner was himself responsible for failing to perform his duties. Since the resignation was not accepted by the competent authority, and it had been withdrawn before its acceptance, as such, the order impugned cannot be sustained, but the petitioner would not be entitled to full back wages.
20. In the opinion of the Court, as the respondents could not have accepted the resignation after it stood withdrawn, the order impugned dated 30.12.1998 is set aside. Petitioner would be entitled to reinstatement alongwith continuity of service. In the peculiar facts and circumstances of the present case, petitioner would be entitled to a consolidated sum of Rs.1,00,000/- towards back wages.
21. The writ petition is, accordingly, disposed of. No order as to costs.
Order Date :- 30.5.2016 Anil