Delhi High Court - Orders
Umang Kumar vs Union Of India on 13 April, 2023
Author: V. Kameswar Rao
Bench: V. Kameswar Rao, Anoop Kumar Mendiratta
$~47
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4709/2023, CM APPL. 18146/2023 & 18147/2023
UMANG KUMAR ..... Petitioner
Through: Mr. Alakh Alok Srivastava and
Mr. Chandan Kumar Singh, Advs.
versus
UNION OF INDIA ..... Respondent
Through: Mr. Harish Vaidyanathan Shankar,
CGSC with Mr. Srish Kumar Mishra,
Mr. Sagar Mehlawat and
Mr. Alexander Mathai Paikaday,
Advs.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
ORDER
% 13.04.2023
1. The challenge in this writ petition is to an order dated January 02, 2023 of the Central Administrative Tribunal in O.A. 3850/2022 ('Tribunal', in short), whereby, the Tribunal has rejected the Original Application filed by the petitioner herein.
2. The Original Application was filed by the petitioner challenging the order dated December 01, 2022, which is an order issued by the respondent pursuant to the directions given by the Tribunal in the first O.A. filed by the petitioner being O.A. 2533/2022.
3. The grievance of the petitioner primarily was with regard to the fact that his resignation letter dated July 20, 2021 though accepted by the respondent on August 19, 2021 w.e.f. August 20, 2021, has not been Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:15.04.2023 16:19:47 allowed to be withdrawn.
4. The facts which are relevant to be noted in the case are, the petitioner was appointed as Deputy Director of Mines Safety (Electrical) in the DGMS Dhanbad under the Ministry of Labour and Employment, which position he joined on June 23, 2021. While working, as such, the petitioner submitted notice of resignation vide letter dated July 20, 2021 in the following manner:-
"From Umang Kumar, Dy Director of Mines Safety(Elect.).
DGMS.Dhanbad.
To:
The Secretary. Ministry of Labour & Employment, Shram Shakti Bhawan New Delhi Through: Proper channel Subject Tendering resignation from the post of Dy Director Mines safety (Electrical) Sir.
Please accept this letter as my formal resignation from the post of Dy. Director Mines safety (Electrical), effective 30 days from today. i.e. 20 July 2021. I wish to get myself relieved from my service on 09.08 2021 During my stint at the organization, I have been fortunate for the opportunities & learnt more about the work and important role this organization plays in the country's mining industry. Your guidance & support has prepared me well for the future.
I hope that we will have opportunities to collaborate & work together in future.
Please let me know how I can be of help during the transition period.Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:15.04.2023 16:19:47
I wish you and the organization the very best going forward."
5. Though, the petitioner has made a request that he be relieved from service on August 09, 2021, the DGMS issued a memorandum dated August 19, 2021 whereby they have decided to accept the resignation tendered by the petitioner and to relieve him from his duties on August 20, 2021.
6. It is a conceded case that vide his letter dated September 09, 2021 the petitioner expressed himself to withdraw the resignation letter dated March 20, 2021. It appears that this letter was not acted upon by the respondent which resulted in the petitioner filing an O.A. 2253/2022 which was disposed of on September 15, 2022 in terms of the directions in paragraphs 3 and 4 of the said order which are reproduced hereunder:-
"3. Needless to mention that the respondent No.1 shall decide/dispose of the said representation independently on its own merits, in accordance with law, by passing a speaking order. This order should not be construed as an opinion on merits.
4. The applicant is at liberty to adopt appropriate proceedings, in case the order passed by the respondent No.1 on his representation is adverse to his interest."
7. It is in view of the order of the Tribunal, the respondent passed order dated December 1, 2022, rejecting the request of the petitioner, which became the subject matter of the OA, in which the impugned order has been passed. The Tribunal rejected the O.A. in terms of paragraphs 7, 8 and 9, wherein it stated as under:-
"7. It is not in dispute that the applicant has requested for acceptance of his resignation w.e.f. 19.08.2021, vide his communication dated 20.07.2021 submitted through proper channel. It is also not in dispute that the applicant, during such Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:15.04.2023 16:19:47 notice period, has requested for grant of leave and permission to leave the station Headquarters vide his communication dated 09.08.2011. Further, it is not in dispute that before the request of the applicant for acceptance of his resignation was accepted by the competent authority and applicant was relieved from service w.e.f. 20.08.2021, vide Memorandum dated 19.08.2021, the applicant has not preferred any representation/request for allowing him to withdraw the resignation. For the first time, the applicant has made the request for withdrawal of resignation vide his letter dated 09.09.2021. However, in the impugned order dated 01.12.2022, it is specifically quoted by the respondent that the said representation dated 09.09.2021 was never received by the respondent Ministry. However, keeping in view the direction of this Tribunal in the aforesaid OA No.2533/2022, the representations of the applicant have been considered, however, the request of the applicant to allow him to withdraw the resignation has not been acceded to.
8. Once, there is no dispute that the applicant's resignation was accepted by the competent authority before any request from the applicant for allowing him to withdraw the resignation, we do not find any illegality in the impugned order dated 01.12.2022. Moreover, the judgment of the Hon'ble Apex Court in the case of Punjab National Bank Vs. P.K. Mittal (supra) is of no help to the applicant, particularly, keeping in view the fact that the facts of the case in hand are entirely different. Before the Hon'ble Apex Court, the facts were that the official concerned has sent a communication to the Bank on 21.01.1986, seeking acceptance of his resignation to be effective w.e.f. 30.06.1986. However, the concerned employee got a letter from the Bank dated 07.02.1986 informing him that his resignation letter dated 21.01.1986 has been accepted by the competent authority by waiving the condition of notice and such is not the fact in the present case and thus, there is no similarity between the facts of the present case and the case of Punjab National Bank Vs. P.K. Mittal (supra).
9. In view of the aforesaid facts and circumstances, we do not find any merit in the OA and the same is accordingly dismissed. However, in the facts and circumstances, there shall be no Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:15.04.2023 16:19:47 order as to costs."
8. The submission of learned counsel for the petitioner is primarily two fold that the Tribunal has not considered the stand of the petitioner on the aspect when exactly the resignation in terms of the appointment letter/the Rule 5(1) of the CCS (Temporary Services) Rules, 1965 shall come into effect. According to him, the respondent has not allowed the petitioner to work for complete 30 days before effecting the resignation tendered by him. The second submission is by relying upon the judgment of the Supreme Court in Air India Express Limited & Ors. v. Captain Gurdarshan Kaur Sandhu, (2019) 17 SCC 129, wherein according to the learned counsel for the petitioner, the Supreme Court culled out the principles governing the resignation.
9. Insofar as first submission is concerned, the learned counsel has drawn our attention to the appointment letter at page 73 of the petition, more specifically, Clause (ii) which we reproduce as under, which stipulate, the petitioner is required to give notice of one month for terminating the services;
"ii. The services will be liable to termination by a months' notice given by either side, viz. the appointee or the appointing authority, without any reasons being assigned. The appointing authority, however, reserves the right of terminating the services of the appointee forthwith or before the expiry of the period of notice by making payment to him of a sum equivalent to the pay and allowances for the period of notice or the un- expired portion thereof."
10. That apart, he also drawn our attention to pages 53 and 54 which depict the relevant provisions of CCS (Temporary Services) Rules, 1965, Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:15.04.2023 16:19:47 which according to petitioner contemplate that the respondent is required to give a notice for a period of one month or salary thereof. That apart, he has also relied upon the following extract of the memorandum dated May 25, 1966:-
"Decision No. (6) A question has been raised regarding the treatment to be accorded to a letter of resignation submitted by a temporary Government servant, in the light of the provisions of the Central Civil Services (Temporary Service) Rules, 1965. The question has been considered in consultation with the Ministry of Law and it is clarified that when a temporary Government servant submits a letter of resignation, a distinction should be drawn between a letter of resignation purporting to be a notice of termination of service and one which is not. This is because a notice of termination of service, given by a temporary Government servant under rule 5 (1) of the Central Civil Services (Temporary Service) Rules, 1965, is something different from a mere letter of resignation submitted by him without any reference direct or indirect, to the said rule. While the former is an exercise of the right conferred by statutory rules enabling a temporary Government servant to cease performance of his duties automatically on the expiry of the prescribed period of notice, the latter required acceptance by the competent authority in order to become effective.
Therefore, if a temporary Government servant submits a letter of resignation in which he does not refer to rule 5 (1) of the Central Civil Services (Temporary Service) Rules, 1965 or does not even say that it be treated as a notice of termination of service, the provisions of rule 5 lbid will not be attracted. In such a case, the resignation of the temporary Government servant will be dealt with under the provision of Home Ministry's OM No. 39/6/57-Ests. (A) dated the 6th May, 1958 and he can relinquish his post only when the resignation is accepted and he can be relieved of his duties. It will, therefore, be possible in such circumstances to retain the temporary officer even beyond one month if it takes time to make Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:15.04.2023 16:19:47 alternative arrangements. This will not be repugnant to the provisions of the Central Civil Services (Temporary Service) Rules, 1965 in any way. because when a temporary Government servant submits a letter of resignation without invoking the provisions of the said Rules, they will not come into picture. (MHA OM No. 4/1/65-Ests. (C) dt 25.5.66.)"
11. We are unable to agree with the submissions made by learned counsel for the petitioner at both the grounds. This we say so because in terms of his own request made by petitioner on June 23, 2021, he has asked the respondent to relieve him on August 09, 2021. So, in that sense, it is the case of the petitioner, that he be relieved before the expiry of one month's time. In fact the respondent, keeping in view the above stipulation, had issued the order dated August 19, 2021 relieving the petitioner on August 20, 2021 which is exactly after one month from date of notice i.e., July 20, 2021. It follows, despite request to relieve him on August 09, 2021, the respondent has duly complied with the term of appointment to terminate the services (by either parties) after a notice period of thirty days. It is also a conceded case that the petitioner has sought withdrawal of notice dated July 20, 2021 only on September 09, 2021 by which time the order dated August 19, 2021 issued by the respondent relieving the petitioner had already come into effect.
12. Insofar as the reliance placed by the learned counsel for the petitioner on paragraphs 11.5 and 12 of the judgment in the case of Air India Express Limited & Ors. (supra) is concerned, the same shall not help the case of the petitioner inasmuch as the paragraphs 41 and 50 of the judgment in the case Union of India v. Gopal Chandra Misra, (1978) 2 SCC 301 of which a reference is made in the Judgment, the Supreme Court has stated as under:-
Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:15.04.2023 16:19:47"41. The general principle that emerges from the foregoing conspectus, is that in the absence of anything to the contrary in the provisions governing the terms and conditions of the office/post, an intimation in writing sent to the competent authority by the 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 the employment.
xxxx xxxx xxxx
50. It will bear 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. This general rule is equally applicable to government servants and constitutional functionaries. In the case of a government servant/or functionary/who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under proviso (a) to Article 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti, the resignation terminates his office- tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But, if he by such writing, 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 the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal."
13. The reading of the above paragraphs clearly state that in the absence Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:15.04.2023 16:19:47 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.
14. In the case in hand, it is clear that the resignation letter had in terms of the stipulation in the appointment letter came into effect on expiry of one month from the date of request to resign, i.e., August 20, 2021. Any request made for withdrawal thereafter shall be of no consequence.
15. The plea of the learned counsel for the petitioner that the Tribunal has not considered the issue when exactly the resignation shall come into effect, shall also not survive in view of our finding above.
16. In view of our above conclusion that the resignation has come into effect on August 20, 2021, which is as per the terms of appointment, we conclude that the Tribunal has rightly rejected the original application.
17. The petition is dismissed.
V. KAMESWAR RAO, J ANOOP KUMAR MENDIRATTA, J APRIL 13, 2023/ds Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:15.04.2023 16:19:47