Jharkhand High Court
Rajashree Padhi vs Central University Of Jharkhand on 4 November, 2020
Equivalent citations: AIRONLINE 2020 JHA 1135, 2021 (1) AJR 385
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 W.P. (S) No. 2230 of 2019
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.2230 of 2019
Rajashree Padhi, aged about 38 years, wife of Sambhu Kumar,
resident of Qtr. No.20, Central University of Jharkhand, Brambe,
Campus, P.O. Brambe, P.S. Mandar, District-Ranchi
... Petitioner
-Versus-
1.Central University of Jharkhand, through its Registrar having its
office at P.O. Brambe, P.S. Mandar, District-Ranchi
2.Prof. Nand Kumar Yadav, 'Indu', Vice Chancellor, Central University
of Jharkhand, having its office at P.O. Brambe, P.S. Mandar,
District-Ranchi ... Respondents
-----
PRESENT:
HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
-----
For the Petitioner : Mr. Indrajit Sinha,Advocate For the Respondent-University : Mr. Rishi Pallav, Advocate
-----
C.A.V On 14.10.2020 Pronounced On : 04/11/2020 Heard Mr. Indrajit Sinha, the learned counsel appearing on behalf of the petitioner and Mr. Rishi Pallav, the learned counsel appearing on behalf of the respondent-Central University.
2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. The petitoner has preferred this writ petition for quashing the Notification dated 22.02.2019 passed by the Registrar, Central University of Jharkhand, Brambe, whereby the petitoner has been transferred to new department. Further prayer is made for quashing the order dated 2 W.P. (S) No. 2230 of 2019 26.02.2019 whereby the resignation letter of the petitioner has been accepted by the Vice Chancellor by exercising power under Section 11(3) of the Central University Act, 2009 [hereinafter referred to as 'the Act'] and quashing of the order dated 06.03.2019 has also been sought. The order dated 15.03.2019 has also been challenged whereby the e-mail dated 25.02.2019 has ben accepted by the Vice Chancellor by exercising power under Section 11(3) of the Act.
4. The petitioner was appointed as Assistant Professor in the Centre for Human Rights and Conflict Management in the Central University of Jharkhand, Brambe, Ranchi on 03.08.2012 by the Executive Council. The petitoner took charge of Assistant Professor in the Centre of Human Rights & Conflict Management in the respondent-University on 17.09.2012. The petitoner was discharging her duties with utmost care. The Notification dated 22.02.2019 was issued by the respondent no.1 whereby it has been resolved that the Department of Human Rights and Conflict Management has been merged with the Department of Contemporary and Tribal Customary Law and further the Department of Humanities and Social Science has been done away with the said notification and the petitoner was relocated in the Department of Politics and International Relation. The petitoner expressed her objection about the shiftage of her services to a new department for which she was never appointed. The petitoner preferred a representation dated 15.02.2019 addressing the same to the Registrar of the University by which the petitoner had made a complaint having deep pain in her heart stating that in the last semester she has not been assigned any classes and she is completely unaware that why admissions in M.A in Human Rights and Conflict Management has not been advertised by the University and has further stated that she has strong belief that the University is 3 W.P. (S) No. 2230 of 2019 systematically discouraging her to continue in her academic work without giving any justification. Feeling depressed, demoralized and helpless, the petitoner by e.mail dated 25.02.2019 resigned from her post to get rid of the situation. The respondent hurriedly came into action and on the very next day issued a letter to the petitioner on 26.02.2019 communicated by the Registrar that her e.mail has been accepted by the Vice Chancellor by exercising power under Section 11(3) of the Act and she was requested to choose her option either giving three months' notice or by paying three months salary as per the statute 25(6)(a) of the Act. The petitoner realized that her protest has been misused, she immediately withdrew the said resignation letter dated 25.02.2019 by serving an e-mail dated 04.03.2009. On 06.03.2019, the Registrar again communicated to the petitoner that her withdrawal of resignation has not been accepted by the Vice Chancellor since the Vice Chancellor has already accepted her regisnation by exercising power under Section 11(3) of the Act which has been communicated to the petitioner on 26.02.2019. The petitoner was further advised to exercise her option either by three months' notice or by paying three months' salary as per the statute 25(6)(a) of the Act within two days, failing which the University will take the decision in the matter as deemed fit. The petitioner thereafter filed representation on 07.03.2019 stating that she has never tendered any resignation from service as per the statute 25(6)(a) of the Act and requested to withdraw the letters dated 26.02.2019 and 06.03.2019. The petitoner received an e.mail on 08.03.2019 communicating that her resignation has been accepted by the Execuive Council. By e.mail order dated 15.03.2019, the petitioner was relieved with immediate effect. The petitioner immediately representated through e-mail dated 18.03.2019. The Registrar thereafter immediately directed the petitioner to vacate the quarter by letter dated 16.04.2019. 4 W.P. (S) No. 2230 of 2019
5. Mr. Indrajit Sinha, the learned counsel appearing on behalf of the petitioner assailed the impugned orders on the ground that the petitoner has not served any three months' notice to the Executive Council which is her appointing authority or has paid three months' salary which is the sine-qua-non for attracting statute 25(6)(a) of the Act. He submitted that three months' notice or paying three months' salary, the protest letter dated 25.03.2019 cannot be said to be a resignation in the eye of law. He submitted that the petitoner has never given any resignation in terms of the staturte 25(6)(a) of the Act and cannot be termed as regisnation letter and in absence of any letter writing to the Executive Council by the petitoner recording her resignation, the power exercised by the Vice Chancellor under Section 11(3) of the Act is totally misconceived, arbitrary and mala fide.
6. He further submitted that the exercise of power by the Vice Chancellor under Section 11(3) of the Act requires disclosure of precipitating factors which prompted the Vice Chancellor to take recourse of such emergency power as no any recordal of fact is there. He submitted that there was no emergency and Section 11(3) of the Act is meant for exercising power in case of any emergency. He further submitted that even for the sake of argument, if it is said that the petitoner has resigned, statute 25(6)(a) itself prescribes that even if any employee tenders her resignation, then the statute gives power to re-think about her decision on the resignation within three months and in such situation Section 11(3) of the Act cannot be exercised. To buttress his argument, he relied in the case of "Srikantha S.M. v. Bharat Earth Movers Ltd." reported in (2005) 8 SCC 314. Paragraph nos.21, 22, 23, 24 and 26 of the said judgement are quoted hereinbelow:
"21. In Power Finance Corpn. Ltd. v. Pramod Kumar Bhatia a workman applied for voluntary retirement 5 W.P. (S) No. 2230 of 2019 pursuant to the scheme framed by the Corporation to relieve surplus staff. The Corporation vide an order dated 20-12-1994 accepted voluntary retirement of the workman with effect from 31-12-1994 subject to certain conditions. Subsequently, however, the Corporation withdrew the scheme. It was held that the order dated 20-12-1994 was conditional and unless the employee was relieved from the duty on the fulfilment of those conditions, the order of voluntary retirement did not become effective. The employee, therefore, could not assert that the voluntary retirement was effective and claim benefits on that basis.
22. The Court said: (SCC p. 282, para 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."
(emphasis supplied)
23. In J.N. Srivastava v. Union of India a notice of voluntary retirement was given by an employee on 3-10- 1989 which was to come into effect from 31-1-1990. The notice was accepted by the Government on 2-11-1989 but the employee withdrew the notice vide his letter dated 11- 12-1989. It was held that withdrawal was permissible though it was accepted by the Government, since it was to be made effective from 31-1-1990 and before that date it was withdrawn.
6 W.P. (S) No. 2230 of 2019
24. In Shambhu Murari Sinha v. Project and Development India (Shambhu Murari Sinha I) an application for voluntary retirement of an employee dated 18-10-1995 was accepted by the employer vide letter dated 30-7-1997 with further intimation that "release memo along with detailed particulars will follow". The workman was actually relieved on 26-9-1997. In the meanwhile, however, by a letter dated 7-8-1997, he withdrew the application dated 18-10-1995, by which he sought voluntary retirement. It was held that the effective date of voluntary retirement was 26-9-1997 and before that date it was permissible for the workman to withdraw his retirement. The appellant was, therefore, held entitled to remain in service.
26. On the basis of the above decisions, in our opinion, the learned counsel for the appellant is right in contending that though the respondent Company had accepted the resignation of the appellant on 4-1-1993 and was ordered to be relieved on that day, by a subsequent letter, he was granted casual leave from 5-1-1993 to 13-1- 1993. Moreover, he was informed that he would be relieved after office hours on 15-1-1993. The vinculum juris, therefore, in our considered opinion, continued and the relationship of employer and employee did not come to an end on 4-1-1993. The relieving order and payment of salary also make it abundantly clear that he was continued in service of the Company up to 15-1-1993."
7. He further relied in the case of "Prabha Arti v. The State of U.P and Ors." reported in MANU/SC/1124/2002. Paragraph nos.8 and 10 of the said judgment are quoted hereinbelow:
"8. In P.K. Ramachandra Iyer & Ors. etc. v. Union of India & Ors. etc. MANU/SC/0395/1983: (1984) ILLJ 314 SC this Court had an occasion to consider the nature and character of a letter written by one of the petitioners in that case who after stating in the letter that he has 7 W.P. (S) No. 2230 of 2019 been all along patiently waiting for the redressal of his grievance, yet justice has not been done to him and "as such, after showing so much patience in the matter, I am sorry to decide that I should resign from the membership of the Faculty in protest against such a treatment and against the discrimination and victimization shown to me by the Head of the Division in the allotment of students of 1968 and 1969 batches and departmental candidates". In that context, this Court observed that the callous and heartless attitude of the Academic Council in seizing an opportunity to get rid of him by treating the said letter to be a letter of resignation when really he was all along making representations seeking justice to him and out of exasperation the said person wrote that letter stating that the only honourable course left open to him was to resign rather than suffer . In Moti Ram v. Param Devi & Another this Court observed as hereunder:
"As pointed out by this Court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, 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 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 indicating 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 8 W.P. (S) No. 2230 of 2019 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 cases 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."
10. We have carefully considered the submissions of the learned counsel appearing on either side, in the light of the materials and principles, noticed supra. This is not a case where it is required to consider as to whether the relinquishment envisaged under the rules and conditions of service is unilateral or bilateral in character but whether the letter dated 9-1-1999 could be treated or held to be a letter of resignation or relinquishment of the office, so as to sever her services once and for all. The letter cannot be construed, in our view, to convey any spontaneous intention to give up or relinquish her office accompanied by any act of relinquishment. To constitute a "resignation", it must be unconditional and with an intention to operate as such. At best, as observed by this Court in the decision in P.K. Ramachandra Iyer it may amount to a threatened offer more on account of exasperation, to resign on account of a feeling of frustration born out of an idea that she was being harassed unnecessarily but not, at any rate, amounting to a resignation, actual and simple. The appellant had put in about two decades of service in the hospital, that she was placed under suspension and exposed to disciplinary proceedings and proposed 9 W.P. (S) No. 2230 of 2019 domestic enquiry and she had certain benefits flowing to her benefit, if she resigns but yet the letter dated 9-1- 1999 does not seek for any of those things to be settled or the disciplinary proceedings being scrapped as a sequel to her so-called resignation. The words "with immediate effect" in the said letter could not be given undue importance dehors the context, tenor of language used and the purport as well as the remaining portion of the letter indicating the circumstances in which it was written. That the management of the hospital took up such action forthwith, as a result of acceptance of the resignation is not of much significance in ascertaining the true or real intention of the letter written by the appellant on 9-1-1999. Consequently, it appears to be reasonable to view that as in the case reported in P.K. Ramachandra Iyer the respondents have seized an opportunity to get rid of the appellant the moment they got the letter dated 9-1-1999, without due or proper consideration of the matter in a right perspective or understanding of the contents thereof. The High Court also seems to have completely lost sight of these vital aspects in rejecting the writ petition."
8. Relying on these judgments, he further submitted that the case of the petitioner is fully covered and in view of the mandatory provision under the statute 25(6)(a), the resignation letter cannot be allowed to be accepted. He further submitted that the Vice Chancellor has accepted the resignation letter under Section 11(3) of the Act in view of haste.
9. Per contra, Mr. Rishi Pallav, the learned counsel appearing on behalf of the respondent-Central University of Jharkhand submitted that there is no illegality in accepting the resignation letter of the petitioner. He submitted that the Executive Council vide Agenda No.EC/2018/24/004 considered and approved the minutes of 14th meeting of the Academic 10 W.P. (S) No. 2230 of 2019 Council and in that view of the matter, merger of the department has taken place. The petitioner along with other four Assistant Professors were located in different departments. The petitoner tendered her resignation letter to the Registrar with subject 'resignation from job' on 25.02.2019 through e-mail and at the bottom she prayed for acceptance of the same with words 'kindly accept my resignation and help me leaving the institution at the earliest'. The said resignation letter was placed before the Vice Chancellor. The Vice Chancellor accepted the resignation in exercise of power vested in him under Section 11(3) of the Act. By letter dated 26.02.2019, the resignation letter of the petitioner has been accepted. The petitioner acknowledged the same through e.mail dated 26.02.2019. He further submitted that the action taken by the Vice Chancellor under statue 11(3) of the Act was required to be ratified by the Executive Council and thus the said resignation was circulated to the members of the Executive Council through e.mail on 06.03.2019 for ratification of the decision taken by the Vice Chancellor. The Executive Council approved the acceptance of resignation by the Vice Chancellor. He further submitted that the meeting of the Executive Council takes place only twice or thrice in a year and in that view of the matter the Vice Chancellor was required to act under Section 11(3) of the Act. The petitioner intimated through e.mail dated 04.03.2019 about the withdrawal of her resignation which was rejected by letter dated 06.03.2019, not accepted. The petitioner was given option either to serve three months' notice or paying three months' salary in lieu thereof as per the statute 25(6)(a) of the Act within two days, but the petitioner did not adhere to. The petitioner by letter dated 07.03.2019 communicated that she has never tendered her resignation in the light of statute 25(6)(a). The petitioer did not exercise her option either by serving three months' notice or by paying three months' salary in lieu 11 W.P. (S) No. 2230 of 2019 thereof as per statute 25(6)(a). He submitted that the procedure for acceptance of the resignation of the petitioner was conventional and it was considered in the right direction. To buttress his argument, Mr. Pallav, the learned counsel had relied in the case of "North Zone Cultural Center and Ors. v. Vedpathi Dinesh Kumar" reported in MANU/SC/0340/2003. Paragraph nos. 22 and 23 of the said judgment are quoted hereinbelow:
"22. Be that as it may, in that case, the resignation in question was dated 30-8-1964 and the same was accepted on 31-10-1964 after a gap of nearly two months even then this Court thought on the facts of that case there was no undue delay in accepting the resignation so as to vitiate the same. On the contrary, this is what the Court observed in the said case of Raj Kumar that:
"In the present case the resignation was accepted within a short time after it was received by the Government of India. Apparently the State of Rajasthan did not immediately implement the order, and relieve the appellant of his duties, but the appellant cannot profit by the delay in intimating acceptance or in relieving him of his duties."
23. As noticed above, in the present case the resignation is dated 18-11-1988 and the same as found by us is accepted on 18-11-1988 itself. The communication was on 1-12-1988 about 13 days thereafter which delay, in our opinion, is not an undue delay so as to make us draw an inference that there has been no acceptance of the resignation. Even the fact that in the meantime the respondent either attended duty or signed the attendance register will be of no assistance to claim his resignation had not taken effect. Even otherwise the appellants have urged that because there was no responsible officer in the headquarters from 18- 11-1988 after the respondent's resignation was accepted till 1-12-1988 and the respondent took advantage of the same and marked his attendance and such attendance 12 W.P. (S) No. 2230 of 2019 cannot be treated as lawful attendance in view of the acceptance of his resignation on 18-11-1988. We agree with this contention of the appellant."
10. He further relied in the case of "The Director General of Police and Ors. v. M. Jeyanthi" reported in MANU/SC/1780/2019. Relying on these two judgments, Mr. Pallava, the learned counsel appearing on behalf of the respondent-Central University submitted that the Vice Chancellor has rightly acted upon.
11. In view of the rival submission of the learned counsel appearing on behalf of the parties, the Court proceeded to examine the submissions of the learned counsels appearing on behalf of the petitioner as well as the respondent-Central University. For appreciating the statute, for the sake of convenience, statute 11(3) of the Act is quoted hereinbelow:
"11. 3. The Vice-Chancellor may, if he is of the opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and shall report to such authority at its next meeting the action taken by him on such matter."
Provided that if the authority concerned is of the opinion that such action ought not to have been taken, it may refer the matter to the Visitor whose decision thereon shall be final.
Provided further that any person in the service of the University who is aggrieved by the action taken by the Vice Chancellor under this sub-section shall have the right to represent against such action to the Executive Council within three months from the date on which decision on such action is communicated to him and thereupon the Executive Council may confirm, modify or reverse the action taken by the Vice Chancellor.
13 W.P. (S) No. 2230 of 2019Statute 25(6)(a) of the Act is reproduced hereinbelow:
".....(6) Notwithstanding anything contained in the foregoing provisions of this Statute, a teacher, member of the academic staff or other employee may resign-
(a)If he is permanent employee, only after giving three months notice in writing to the Executive Council or the appointing authority, as the case may be, or by paying three months salary in lieu thereof;
xxxxxxxxxxx Provided that such resignation shall take effect only in the date on which the resignation is accepted by the Executive Council or the appointing authority, as the case may be."
12. On perusal of Statute 25(6)(a), it transpires that a permanent employee may resign in writing to the Executive Council which is the appointing authority of the petitioner only after giving three months notice or by paying three months' salary in lieu thereof. Thus, statute 25(6)(a) is a mandatory provision for resignation by a pernament employee. Admittedly, that provision is not taken care of. The petitioner stated to be resigned on 25.02.2019 addressing to the Registrar. This letter was not addressed to the Executive Council which is the appointing authority. The resignation letter is also not in terms of the statute 25(6)(a). After the protest of the petitioner with regard to her transfer to another department, the petitioner made representation on account of discouraging fact regarding her academic. On 25.02.2019 the petitioner is stated to be resigned addressing the same to the Registrar but, on the same day, the Vice Chancellor accepted the resignation and the petitioner was asked to provide her option in the light of statute 25(6)(a) of the Act. The petitioner realizing this, immediately withdrew the same by e-mail on 04.03.2019 which was immediately rejected by letter dated 06.03.2019. This transpires 14 W.P. (S) No. 2230 of 2019 that the entire aspect of the matter has taken place in a very quick manner which suggests that the resignation of the petitioner has been accepted by the Vice Chancellor in haste not complying with statute 11(3) and 25(6)(a) of the Act. The statute 11(3) provides the power to the Vice Chancellor that if he is opined that immediate action is necessary on any matter exercising any power of any authority of the University by or under the Act. The Vice Chancellor was authorized to act upon this. The case in hand was not of such emergent that the Vice Chancellor was required to comply statute 11(3) in view of statute 25(6)(a) which was required to be placed before the Executive Council, however, the Vice Chancellor chosen to invoke statute 11(3) which is contrary to statute 25(6)(a). Admittedly, statute 25(6)(a) has not been followed. The petitioner has not applied for resignation in light of statute 25(6)(a) of the Act. The post-facto approval by the Executive Council is also against the mandate of statute 25(6)(a). In the case of "The Director General of Police and Ors. v. M. Jeyanthi"
(supra) relied by the learned counsel for the respondent-University the employee withdrew the resignation after a month of acceptance which has already been taken effect upon its acceptance. In that case, in view of Rule 35A of Special Rules of Tamil Nadu Police Subordinate Services, under Rule 35A(b) the member of the service may withdraw the notice of his resignation before its acceptance. In that view of the matter, the Hon'ble Supreme Court has not entertained the claim of the employee.
Thus, this judgment is distinguishable in the facts and circumstances of the present case. "North Zone Cultural Center and Ors. v. Vedpathi Dinesh Kumar" (supra) the departmental guideline was there indicating that the resignation takes effect the moment it is accepted and in that view of the matter, the Hon'ble Supreme Court has not accepted the contention of the employee. To some extent, the case of the petitioner comes in view of 15 W.P. (S) No. 2230 of 2019 "P.K. Ramachandra Iyer and Ors, etc. v. Union of India and Ors, etc." [MANU/SC/0395/1983] as considered by the Hon'ble Supreme Court in "Prabha Arti v. The State of U.P and Ors." (supra). In view of this judgment, and in view of the facts and circumstances of the present case, the cases of "P.K. Ramachandra Iyer and Ors, etc. v. Union of India and Ors, etc." and "Prabha Arti v. The State of U.P and Ors." (supra) are applicable in the facts and circumstances of the present case. The respondent-University has acted in haste and after providing the option to the petitioner, the 3 months notice or 3 months salary in lieu thereof in terms of statute 25(6)(a) of the Act without waiting for such, immediately accepted the resignation of the petitioner suggests that the University had acted with pre-occupied mind.
13. As a cumulative effect of the above discussion, the impugned orders cannot sustain in the eye of law which is in violation of statute 25(6)(a) and statute 11(3) of the Act. The impugned orders dated 26.02.2019 and dated 15.03.2019 are quashed. The petitioner will deemed to be in continuous service but in peculiar facts of this case she will not be entitled for the monetary benefits for the period she has not worked. The writ petition [W.P.(S) No.2230 of 2019] stands allowed and disposed of.
14. In view of quashing of the impugned orders, the petitioner will be entitled to continue in respondent-Central University.
(Sanjay Kumar Dwivedi, J.) Jharkhand High Court, at Ranchi, Dated : 04/11/2020 SI/ N.A.F.R.,