Andhra HC (Pre-Telangana)
Kalyanam Raja Gopal vs Andhra Bank, Government Of India ... on 4 April, 2012
Author: Vilas V. Afzulpurkar
Bench: Vilas V. Afzulpurkar
THE HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.24173 of 2010 04.04.2012 Kalyanam Raja Gopal Andhra Bank, Government of India undertaking, Rep. by its General Manager (Personnel Department), Saifabad, Hyderabad and two others. Counsel for the Petitioner: MR. V. RAJAGOPAL REDDY Counsel for the Respondents: DR. LAKSHMI NARASIMHA <GIST: >HEAD NOTE: ? Cases referred 1. 2006 (1) JCR 426 JHR 2. 2003 DCR 1 344 3. (1990) 98 PLR 230 4. (2003) 5 SCC 455 5. (2005) 3 SCC 88 ORDER:
Petitioner seeks a Writ of Certiorari to declare the impugned letter dated 24.08.2009 under which petitioner's resignation is accepted, as bad in law and to quash the same and for consequential direction to reinstate the petitioner.
2. Bare facts necessary to appreciate the controversy are as follows:
(a) Petitioner had joined the services of the first respondent bank on 08.07.1981 and at the relevant time he was serving as Senior Manager, Raichur Branch of the first respondent - bank in pursuance of orders dated 19.05.2009 posting him at Raichur branch.
By a further order dated 14.07.2009, petitioner was transferred to Belgaum Branch as Senior Branch Manager. The affidavit filed in support of the writ petition states that upset with the transfer within 40 days of joining at Raichur and unable to get retention at Raichur, petitioner tendered his resignation on 18.07.2009 in the structured format requesting waiver of three months notice period and to be relieved by 31.07.2009. Petitioner states that he, however, fell ill and sought for leave on that ground and while he was on leave, he received communication of the respondents dated 24.08.2009 accepting his resignation. After availing leave, petitioner reported to duty on 15.10.2009 on which date he was relieved from the service.
(b) Petitioner states that after he was relieved on 15.10.2009, he went to USA on 24.10.2009 to spend time with his children and returned to India on 26.04.2010. It is, thereafter, that he had sent a letter dated 12.05.2010 to the Chairman and Managing Director stating that he now realized the folly of leaving the bank and sought reinstatement into service. A further letter dated 10.06.2010 also addressed to the Chairman and Managing Director reiterates that he got relieved on 15.10.2009 and then went to USA and came back and had already requested for sympathetic consideration of reinstatement/withdrawal of resignation on certain grounds including that he had not withdrawn any of his terminal benefits. Alternatively, he also sought that his resignation be treated as voluntary retirement. This was followed by the petitioner approaching this Court in WP.No.23544 of 2010 for a Mandamus to declare that acceptance of his resignation, being by an incompetent authority, the petitioner be declared as in service from 16.10.2009 or in the alternative to treat petitioner's resignation as voluntary retirement and for consequential benefits. Petitioner alleges that, as he is an officer in the Middle Management Grade III, the General Manager is the competent authority to accept his resignation as per Board Resolution dated 23.09.2008. The said writ petition was, however, withdrawn by the petitioner on 23.10.2009 with liberty to file fresh writ petition. Thereafter, the present writ petition is filed on 23.09.2010 seeking relief, as mentioned in the opening paragraph.
3. The respondent - bank filed a counter affidavit and additional counter affidavit denying that there is any violation of rule or law in accepting petitioner's resignation. It is also pointed out that the allegations in the affidavit relating to instructions of Zonal Manager and consequential transfer to Belgaum branch at his instance are not true and are invented for the first time. It is also stated that the petitioner was a member of contributory provident fund and had not opted for pension and as such, not entitled to benefit of pension scheme or the voluntary resignation scheme. It is also pointed out that till he was relieved on 15.10.2009 and for almost for a period of one year, the petitioner had not made any grievance whatsoever and it is only through the writ petition that the petitioner for the first time contends that he was forced to resign. The respondents, therefore, reiterated that the resignation of the petitioner is voluntary and when the said resignation is accepted by the competent authority, the petitioner has no right to seek reemployment in the bank's service.
4. The additional counter affidavit states in para 8 that one Mr. S.R.K. Prasad was the Deputy General Manager and as the post of General Manager was vacant, he was officiating as General Manager (HR) and in that capacity, he had accepted the resignation of the petitioner and as such, it cannot be said that the resignation was accepted by an incompetent authority.
5. Mr. V. Rajagopal Reddy, learned counsel for the petitioner and Mr. K. Lakshmi Narasimha, learned standing counsel for the respondent - bank, have supported their respective contentions by placing reliance on various decisions, reference to which will be made hereinafter.
6. Learned counsel for the petitioner contended that the letter of resignation in the format mentions the 'date on which the resignation is required to be accepted' as 31.07.2009 and therefore, the learned counsel states that any acceptance after that date is no acceptance in the eye of law and reliance therefor is placed upon Section 6 of the Contract Act by contending that the proposal of the petitioner stood revoked by lapse of time prescribed in such proposal. Strong reliance is placed upon the following:
1) In Anson's Law of Contract 26th Edn. Page 52 it is stated:
An offer may be considered to have lapsed owing to passing of time. Where the offeror prescribes a specific time limit for acceptance, the offer is conditional upon acceptance with that time.
2) In the Book of Chesire Fifoot and Furmston's Law of contract, it is sated that : Lapse of time If an offer states that it is open for acceptance until a certain day, a later acceptance will clearly, be in effective.
3) Chitty on contract states the law thus:
Specified Time: An offer which expressly states that it will last for a specified time only cannot be accepted after that date.
4) Hulbury's Laws of England, the revocation has been stated as:
Lapse of time: A proposal stands revoked by the specified lapse of time specified in the proposal.
In other words, learned counsel contends that when the resignation is not accepted by 31.07.2009, it was not meant to be accepted after 31.07.2009 and it automatically stood revoked by implication.
7. Learned counsel contended that three months notice period would automatically expire by 17.10.2009 whereas petitioner was relieved on 15.10.2009. Learned counsel specifically reiterated that there is no letter of withdrawal by the petitioner, as in law, the resignation automatically stood revoked after due date on 31.07.2009 coupled with the fact that acceptance of resignation being not by the General Manager, which is non-est in law, the petitioner continues to be in the service of the bank. Learned counsel also contended that the petitioner applied for certain documents under the Right to Information Act on 07.06.2010 and he received requisite information on 10.08.2010 and it is evident from the said documents produced along with the writ petition that petitioner's resignation was accepted by the Deputy General Manager on 22.08.2009, who was not the competent authority and it is also on that ground that the letter of acceptance dated 24.08.2009 is sought to be declared as invalid.
8. Reliance is placed by the learned counsel for the petitioner on a decision of the Jharkhand High Court in BINOD KUMAR KHETAN v. HINDUSTAN COPPER LIMITED1 wherein Section 6 of the Contract Act is discussed while dealing with the case of the petitioner therein, who had sought voluntary retirement seeking to be relieved by the end of March 2003. Petitioner, however, withdrew his option by letter dated 22.03.2003 and no action was taken by the employer till 25.08.2005 when petitioner was relieved by accepting his offer for voluntary retirement. It is in that circumstance, it was held that the offer made by the petitioner for VRS with specific condition to relieve him by the end of March 2003 having not been accepted by that time or within reasonable time, the offer ceases to be capable of acceptance by issuing the impugned letter of acceptance on 25.08.2005.
Hence, the said acceptance was held not a valid acceptance. He also placed reliance upon a decision of the Supreme Court in BANK OF INDIA v. O.P. SAWARANKAR2, which considered the scheme of voluntary retirement floated by various banks. In that decision also the Supreme Court dealt extensively with the law relating to revocation of contract as well as various earlier decisions of the Supreme Court.
In that decision, number of employees opted for VRS and some of them withdrew their offer and despite withdrawal, the option for VRS was accepted and questioning such acceptance, in spite of withdrawal, various writ petitions were filed including the writ petition questioning the legality and validity of the scheme itself. The said decision is not relevant to the facts of the present case.
9. Learned counsel for the petitioner placed strong reliance upon a judgment of the Punjab and Harayana High Court in HARDWARI LAL v. UNION OF INDIA3 wherein also the employee had submitted resignation dated 11.05.1982 requesting waiver of three months notice but on second thought had withdrawn the resignation on 17.05.1982 but was later communicated acceptance of resignation by communication dated 18.05.1982 informing acceptance of resignation on 14.05.1982. The resignation of the petitioner therein was accepted by the General Manager (Operations), while the competent authority was the Managing Director. The Division Bench of the High Court dealt with competency of the General Manager and held that he was not competent to act as Managing Director, as there was no valid delegation. While arguing the matter, the learned counsel for the petitioner herein laid great stress on the judgments of the Jharkhand High Court and Punjab and Haryana High Court, referred to above.
10. Learned standing counsel, however, pointed out that the petitioner's letter of resignation filed at page 24 of the material papers shows that it is a voluntary act of the petitioner and the same was accepted by the competent authority, as per the communication dated 24.08.2009. Learned counsel pointed out that as per the Andhra Bank Officers (Service) Regulations, 1982 clause (20) sub-clause (2) provides as follows:
20. Termination of Service:
1...
2. An officer shall not leave or discontinue his service in 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 3 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 3 months, or remit the requirement of notice.
11. Learned counsel further pointed out that this case is not governed by the VRS scheme, as the petitioner is not a pension optee. Learned standing counsel placed reliance on a decision of the Supreme Court in NORTH ZONE CULTURAL CENTRE v. VEDAPATHI DINESH KUMAR4 for the proposition that non-communication of acceptance does not make the resignation inoperative provided there is, in fact, an acceptance before the withdrawal. He also placed reliance on another decision of the Supreme Court in STATE BANK OF PATIALA v. PHOOLPATI5, which was a case where a letter of resignation from a future date was given by the employee but was withdrawn before the effective date. The employer thereupon had asked the employee to justify his request for withdrawal and in response, the employee sent another letter reiterating acceptance of resignation. Consequently, the resignation was accepted and employee was relieved. Later the employee had died after four months. Another four months thereafter, a writ petition was filed seeking to declare the acceptance of resignation as illegal on which the Supreme Court allowed the appeal of the bank upholding the acceptance of the resignation as valid.
12. The facts of the present case, admittedly, show that there is no withdrawal of resignation at any point of time before its acceptance. On the contrary, after the petitioner received the communication of acceptance dated 24.08.2009, the petitioner reported after expiry of leave on 15.10.2009 and was relieved on the same date. Thereafter, the petitioner went abroad on 24.10.2009 and returned to India on 26.04.2010. The first act, on the part of the petitioner, thereafter, was his letter dated 12.05.2010 addressed to the Chairman and Managing Director requesting reinstatement. The said letter followed by his further request dated 10.06.2010 clearly shows that the resignation of the petitioner was voluntary and as such, contra allegations made in the affidavit filed in support of the writ petition are liable to be ignored. Even the letters of 12.05.2010 and 10.06.2010 are not letters seeking withdrawal of resignation but they are letters seeking reinstatement or alternatively to treat the resignation as voluntary retirement. Even according to the petitioner, he is not entitled to retired voluntarily, as he is not a pension optee and that explains why the petitioner has withdrawn the earlier writ petition seeking the said relief.
14. The contention of the learned counsel for the petitioner that the effective date of resigning being 31.07.2009, the respondent - bank had to communicate acceptance of resignation before that date is clearly without any substance. The letter of resignation dated 18.07.2009 was an offer made by the petitioner to be effective on 31.07.2009, it only means that the respondent - bank could not have accepted the resignation with effect from the date prior to 31.07.2009.
As noted above, from the effective date till the date of actual acceptance there was no withdrawal of offer of resignation by the petitioner. It, therefore, cannot be said that the offer of the petitioner offering to resign lapsed after 31.07.2009, as the said offer was neither conditional nor the offer itself was ever withdrawn.
In the decision cited by the learned counsel for the petitioner in SAWARANKAR's case (2 supra) the Supreme Court noted several of its earlier decisions in RAJ KUMAR v. UNION OF INDIA [1968 3 SCR 857] wherein it was noted that it will not be open to the public servant to withdraw his resignation after it is accepted by an appropriate authority. The decisions in BALRAM GUPTA v. UNION OF INDIA [(1987) SUPPL. SCC 228] and PUNJAB NATIONAL BANK v. P.K. MITTAL [(1989) SUPPL. 2 SCC 175] were also noted and it was held that an employee could withdraw his resignation before it became effective. The decision in POWER FINANCE CORPORATION v. PRAMOD KUMAR BHATIA [(1997) 4 SCC 280] was also noticed and it was held that unless the employee is relieved of duty after acceptance of offer on VRS, the jural relationship of employer and employee does not come to an end.
15. Applying the aforesaid legal position to the facts of the present case, it is evident that not only there is any letter of withdrawal before the effective date but the petitioner stood relieved also with effect from 15.10.2009 unconditionally. Relationship between the petitioner and the respondent - bank, as employee and employer, therefore, came to an end then itself. The relief of reinstatement sought for by the petitioner eight months thereafter including the relief in this writ petition, therefore, is clearly unsustainable and the contentions of the learned counsel for the petitioner that the offer stood lapsed after 31.07.2009 is clearly without substance. Section 6 of the Contract Act, therefore, is not attracted on the facts and circumstances of the present case. Reliance on the decision of HARIDWARI LAL's case (3 supra) is also misconceived, as that case got decided on the basis of the General Manager, who accepted the resignation, was held to be not competent to act as Managing Director. Similarly, the other decision in BINOD KUMAR KHETAN's case (1 supra) was a case where the offer of retirement of VRS dated 18.01.2003 was withdrawn by the petitioner on 23.02.2003 but in spite of that the petitioner's offer to resign was accepted on 19.08.2005. It is in those circumstances, the acceptance after withdrawal was held to be inoperative in law.
16. The additional counter affidavit filed by the respondents, referred to above, specifically states that the Deputy General Manager was officiating as General Manager (HR) and as such, was competent to accept petitioner's resignation. In the present case, acceptance is dated 22.08.2009 and the contention of the petitioner that the acceptance is by an officer other than the General Manager is also belied by the document dated 10.09.2009 filed by the petitioner himself along with the written submissions showing the promotion of officers, which is signed by the same Mr. S.R.K. Prasad, as General Manager (HR). Even otherwise, this Court has no reason to doubt the counter affidavit and additional counter affidavit sworn to by the Deputy General Manager (HR) reiterating that the officer, who accepted the resignation of the petitioner, was officiating as General Manager (HR), as the post of General Manager (HR) was vacant.
In the light of the discussion, as aforesaid, I do not find any merits in the contentions of the petitioner.
The writ petition is accordingly dismissed. As a sequel, the miscellaneous applications, if any, shall stand dismissed. However, in the circumstances, there shall be no order as to costs.
_____________________ VILAS V. AFZULPURKAR, J April 4, 2012