Madras High Court
Sai Sankar vs Union Of India on 8 August, 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :- 08.08.2012
CORAM
THE HONOURABLE MR. JUSTICE S.NAGAMUTHU
W.P.No.17264 of 2012
and
M.P.Nos.1 and 2 of 2012
1.Sai Sankar,
Asst. Professor in Music,
Kalakshetra Foundation,
Thiruvanmiyur,
Chennai 600 041.
2.K.P.Anil Kumar,
Assistant Professor in Music
3.Vasundhara Thomas,
Assistant Professor in Dance
4.Pakala Ramadas
Assistant Professor in Music
5.T.Sasidhar,
Lecturer in Music
6.Jyolsna Menon,
Lecturer in Dance
7.Nirmala Nagaraj,
Lecturer in Dance
8.K.Hariprasad,
Lecturer in Music
9.V.Srinivasan,
Lecturer in Music
10.Shly Vijayan
Tutor in Dance
11.Nandini Nagaraj,
Tutor in Dance
12.K.Mohanan,
Lecturer in Dance
13.N.Ananthanarayanan,
Lecturer in Music
14.Githa Arun
Librarian
15.Deepu Nair,
Sound Engineer
16.S.Jayakumar,
Audio Archive Engineer
Petitioners are working in Rukmini Devi College of Fine Arts, Kalakshetra Foundation, Thiruvanmiyur, Chennai-41.
... Petitioners
-Versus-
1.Union of India,
Rep. By its Secretary,
Ministry of Culture,
Room No.502,
Shastri Bhavan, "C" Wing,
New Delhi-110115.
2.The Chairman,
Mr.Gopalakrishna Gandhi,
Governing Board,
Kalakshetra Foundation,
A-1, Uttarvedi,
No.7, Second Seaward Road,
Valmiki Nagar,
Thiruvanmiyur, Chennai 600 041.
3.The Kalakshetra Foundation,
Rep. By its Director,
Rukmini Devi College of Fine Arts,
Thiruvanmiyur, Chennai-41.
4.Mrs.Leela Samson
... Respondents
Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Declaration, declaring that the 4th respondent has no authority to hold or right to be reappointed by the 1st respondent by their proceeding in No.11-9/2012/Akademies, dated 29.06.2012 to the post of Director, Kalakshetra Foundation after demitting the office on 30.04.2012 and after attaining superannuation, against the provisions of the Statutes and Rules relating to her post read with Fundamental Rules and connected service rules applicable to the said post, is illegal, ultra vires and against the fundamentals of the Service Jurisprudence.
For Petitioners
:
Mr.K.M.Vijayan, Senior Counsel for Ms.R.T.Shyamala
For Respondents
:
Mr.M.Ravindiran, Additional Solicitor General of India [specially engaged] for Mr.R.Achuthan, Central Government Standing Counsel for R1
:
Mr.Vijayanrayanan,
Senior Counsel for Mr.Suchindran.B.N. for R2 & R3
:
Mr.S.Raghunathan for R4
ORDER
"Kalakshetra" at Adayar, Chennai, was founded with laudable objects by late Tmt.Rukmini Devi Arundale. In order to make the institution as one of national importance, to provide for the establishment and incorporation of a Foundation for its administration, to make provisions for further development of Kalakshetra in accordance with the aims and objects for which Kalakshetra was founded, the Central Government came out with an Act known as The Kalakshetra Foundation Act, 1993 [hereinafter referred to as the Act]. As per Section 4 of the Act, on the commencement of the Act, the right, title and interest in relation to the assets and properties of Kalakshetra specified in the Second Schedule and vested in the Board of Trustees or any other body, in whatever capacity, shall stand transferred to, and vest in, the Central Government. As per Section 8(1) of the Act, the Central Government has been empowered by notification to establish a Foundation to be called the Kalakshetra Foundation. As per Section 8(2) of the Act, the Foundation shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both moveable and immovable, and to contract and shall by the said name sue and be sued.
2. As per Section 10 of the Act, the Foundation shall consist of the following authorities namely:- (a) the Governing Board; (b) the Academic Committee; and (c) the Finance Committee. Section 11 of the Act envisages that the Governing Board shall consist of a Chairperson and not more than twelve members to be nominated by the Central Government, of whom, one shall be the Director/Ex-Officio.
3. Section 19 of the Act prescribes the mode of appointment of the Director which reads as follows:-
19. Appointment and duties of Director.- (1) The Central Government shall, by notification, appoint a Direct who shall be the principal executive officer of the Foundation and who shall be responsible for the proper administration of the affairs of the Foundation and its day-to-day management and shall exercise such other powers and perform such other duties as may be assigned to him by the Governing Board.
(2) The Director shall prepare the annual statement of accounts and budget estimates of the Foundation for scrutiny by the Finance Committee.
(3) The Director shall be a whole time employee of the Foundation and shall be entitled to such salary and allowances out of the Fund and shall be subject to such conditions of service in respect of leave, pension, provident fund and other matters, as may be prescribed.
4. In exercise of the power conferred under Section 19(1) of the Act , the Central Government, by means of notification dated 28.02.2005, appointed the 4th respondent Ms.Leela Samson as Director of Kalakshetra Foundation, Chennai w.e.f. from the date of publication of the said notification. Accordingly, the 4th respondent assumed charge and was functioning as such.
5. In the affidavit filed in support of this writ petition, there are several other facts in respect of the conduct the 4th respondent as the Director of the Foundation which I do not wish to reproduce inasmuch as they are not very relevant for the issue involved in the writ petition.
6. While so, on 12.04.2012, the 4th respondent submitted her recognition thereby resigning from the post of the Director. The Central Government accepted the said resignation and permitted her to demit the office w.e.f. 30.04.2012 by order of the Government of India, Ministry of Culture, New Delhi, vide Ref.No.11-9/2012 dated 20.04.2012. Accordingly, the 4th respondent demitted her office on 30.04.2012 After Noon and thereafter, she ceased to be the Director of the Foundation.
7. It appears from the arguments advanced by the learned counsel on either side that there were requests from various persons to the Central Government to allow the 4th respondent to continue as the Director of the Foundation. It also had a wide press and media coverage. Finally, the 4th respondent decided to withdraw her resignation so as to continue as the Director of the Foundation. Accordingly, she sent in a letter on 21.06.2012 to the Central Government withdrawing her resignation.
8. On considering the said letter dated 21.06.2012, the Government of India, Ministry of Culture in proceeding Ref.No.11-9/2012, dated 29.06.2012 passed by the following order:-
I am directed to refer to your representation dated 21.06.2012 requesting for withdrawal of resignation from the post of Director, KF which was accepted by Ministry of Culture with effect from 30/04/2012 (AN).
2. The matter has been considered by the competent authority in the Ministry of Culture and it has been decided to accede to your request and has permitted you to withdraw your resignation and rejoin Kalakshetra Foundation as Director. The withdrawal of your resignation will be effective from the date you assume the charge as Director, KF.
9. The said proceeding dated 29.06.2012 is under challenge in this writ petition. The petitioners claim that they are staff working at Rukmini Devi College of Fine Arts, Thiruvanmiyur, Chennai, which is one of the institutions founded and run by Kalakshetra Foundation. Though several grounds have been raised in this writ petition elaborately, the crux of the issue is that the Central Government lacks jurisdiction / power to withdraw the earlier order accepting the resignation of the petitioner dated 20.04.2012 by passing the impugned order dated 29.06.2012.
10. The learned senior counsel Mr.K.M.Vijayan appearing for the petitioners would submit that if once the resignation is accepted, there is no scope for withdrawal of the resignation at all. Therefore, according to the learned senior counsel, the impugned order is totally without jurisdiction and the same is illegal which is liable to be quashed.
11. In support of his contention, the learned senior counsel has relied on three judgements of the Hon'ble Supreme Court in Raj Kumar v. Union of India, AIR 1969 SC 180; Union of India v. Gopal Chandra Misra, AIR 1978 SC 694; and Chand Mal Chayal v. State of Rajasthan, (2006) 10 SCC 258, about which I would make reference at the appropriate stages of this order.
12. On behalf of the 1st respondent - Ministry of Culture, Government of India, New Delhi its Under Secretary has filed a counter. In the said counter, he has admitted that the resignation of the 4th respondent was accepted by the Central Government on 20.04.2012 which came into effect from 30.04.2012 (AN). [In para 5 of the counter it is stated that the averments made in paras 6, 7 & 8 of the affidavit of the petitioner are denied.] In paras 6, 7 and 8, the petitioners in their affidavit stated that the resignation letter was submitted and the same was accepted by the Central Government. When this was pointed out, the learned counsel for the 1st respondent has filed a memo stating that it is only a typographical error in the affidavit.
13. The learned Additional Solicitor General for the 1st respondent would fairly concede that the resignation of the 4th respondent dated 12.04.2012 was, in fact, accepted by the Central Government on 20.04.2012 and in pursuance of the said order, the 4th respondent demitted her office on 30.04.2012. In the counter, it is further stated that the resignation of the 4th respondent had sparked much media attention besides comments from the cultural fraternity of the country. It is further stated in the counter affidavit that a petition was submitted by Dr.Anitha Ratnam, a Member of Sangeet Natak Academic Council and also a reputed dancer enclosing around 1800 persons online petition signatories urging the reinstatement of the 4th respondent. Later on, the 4th respondent submitted a letter dated 21.06.2012 requesting for withdrawal of her resignation keeping in view the wishes of several persons advising her to return to Kalakshetra and to continue the work there. In the counter affidavit it is further stated by the 1st respondent that keeping in view of the facts mentioned above, to have the 4th respondent back as the Director, the approval of the competent authority was taken and she was permitted to withdraw her resignation and she rejoined as Director of the Foundation w.e.f. 29.06.2012 A.N.
14. The learned Additional Solicitor General of India, by reiterating the contentions in the counter affidavit, would submit that the resignation was duly withdrawn by the 4th respondent and the same was accepted by the Central Government and then the 4th respondent has again assumed office as Director. He would submit that the Central Government has got power to permit withdrawal of resignation.
15. The learned Additional Solicitor General of India would further submit that as per the Act, the foundation is a body corporate [vide Section 8 of the Act] and, therefore, the Central Government has got only a limited control over the said foundation. He would further submit that since the 4th respondent is not an employee of the Central Government, as the foundation is a body corporate, the Central Civil Services Rules are not applicable to the 4th respondent. He would also submit that judgements relied on by the learned senior counsel for the petitioners relate to the Central Government employees who are governed by the Central Civil Services Rules and, therefore, they cannot be made applicable to the facts of the present case. Thus, according to him, the impugned order is not liable to be quashed and the writ petition is liable to be dismissed.
16. The 2nd respondent has filed his counter wherein in para 2 he has stated that with regard to the impugned proceedings in No.11-9/2012 dated 29.06.2012 relating to the 4th respondent, he has neither been consulted nor a copy of the said proceeding marked to him. As such, according to him, he has no comments to offer on the said reappointment or withdrawal of the resignation of the 4th respondent as Director of the Foundation.
17. Mr.S.Raghunathan, the learned counsel appearing for the 4th respondent would simply reiterate the above stand taken in the counter of the 2nd respondent and would submit that the 2nd respondent has got no comments to offer at all in respect of the impugned order. The 4th respondent has not filed any separate counter. But the learned counsel for the 4th respondent has filed a memo adopting the counter filed by the 1st respondent. The learned senior counsel would submit that the 4th respondent simply adopts the arguments advanced by the learned Additional Solicitor General of India appearing for the 1st respondent.
18. I have considered the above submissions and also perused the records carefully.
19. Admittedly, in this case, the resignation of the 4th respondent was accepted on 20.04.2012 and she demitted her office on 30.04.2012. So, from 01.05.2012, she was no more the Director of the Foundation. Now, the question is, after such resignation was accepted and the 4th respondent had demitted her office, whether the resignation could be allowed to be withdrawn by the Central Government.
20. Admittedly, there is no provision in The Kalakshetra Foundation Act enabling the Director to resign or providing for acceptance of resignation or withdrawal of resignation. Therefore, one has to seek recourse to the common law principles. In this regard, we may usefully refer to the judgement of this Court reported in S.S.Lakshmana Pillai v. Registrar of Companies, (1977) 47 Comp. Cases 652 (Mad). That was a case relating to the resignation of a Director of a Company governed by The Companies Act. The question before this Court was as to whether there is any need under the provisions of The Companies Act for the acceptance of the resignation so as to give effect to such resignation. Hon'ble Mr.Justice S.Ratnavel Pandian [as he then was and latter on the Judge of Hon'ble Supreme Court] has made a complete analysis and scientific study of the subject. He has referred to an earlier judgement of this Court as well as a number of Judgements of the Hon'ble Supreme Court. Ultimately His Lordship has found that in The Companies Act, there is no provision for resignation of a Director at all. Therefore, His Lordship has held that as per the common law principles, if the resignation is tendered by a Director, it takes effect the moment it is tendered and the same is received by the competent authority. His Lordship has further gone to the extent of saying that there is no need for the acceptance of resignation. In para 28 of the judgement His Lordship has held as follows:-
"28. This letter was acknowledged by the first respondent on June 28, 1973, whereby the first respondent wanted further information as to whether the resignation has been accepted by the company. Admittedly, there is no provision in the memorandum of articles prescribing any condition that the resignation tendered by a director of a company will take effect after its acceptance by the company or the board of directors. For the above stated reasons and in the absence of any provision either in the Act or in the memorandum or articles, I am of the view that the director who had submitted his resignation would be deemed to have resigned from his office from the date of the submission of his resignation, when his intention is unequivocally expressed either orally or by a letter. A fortiori, in the instant case, the petitioner by his letter dated December 4, 1972, has tendered his letter of resignation, resigning his directorship from the evening of December 4, 1972, and the said letter has been acknowledged by the first respondent, the Registrar of Companies and, therefore, I hold that the resignation had taken effect from December, 4, 1972, and consequently the petitioner has ceased to hold the office form the evening of December 4, 1972."
21. In this regard, I may refer to yet another judgement of the Karnataka High Court in Mother Care (India) Limited v. Prof. Ramaswamy P.Aiyar, (Manu/KA/0760/2003). In that case also, the question before the Karnataka High Court was as to whether the resignation of a Director of the Company needs acceptance so as to take effect. Ultimately, the Karnataka High Court has held in para 12 as follows:-
"12. As the appointment of a Director is not a bilateral character, the question of acceptance of the request to relinquish the office would not arise. Filing of Form No.32 in terms of Section 303(2) of the Act is only a consequential act to be performed by the company in obedience to the statutory provision. If such a form is filed with the Registrar of Companies, it is a proof of a Director ceasing to be a director. But, it is not an act to be complied with in order to make a resignation valid. Therefore, as the resignation by a direction, relinquishing his office as such director is of an unilateral character, it comes into effect when the act of such resignation to relinquish the office is communicated to the Board. In law, the Board to whom the act of relinquishment is communicated is not required to take any action by way of accepting resignation and therefore, the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. In order to make the said resignation effective, it is not necessary that the Board should accept it. Whether the Board accepts the resignation or not if the resignation is intended to operate in paraesenti the resignation comes into effect when such intention to relinquish the office is communicated to the Board. In that view of the matter, once a resignation letter is submitted to the Board, the date of which the intention to relinquish is communicated to the Board, that is the date from which the Director ceases to be a Director of the Company."
22. Similar question arose before me in Renuka Ramanath v. Yes Bank Limited [Crl.O.P.No.19393 of 2010 dated 18.07.2012) wherein while dealing with a case under Section 138 of The Negotiable Instruments Act, the question arose before me was whether a Director of a Company will continue to be the Director even after submission of his resignation letter. After referring to the above two judgements and other judgements, this court in para 19 had an occasion to hold thus:-
19. From these two judgements, it is very clear that for want of a provision in the Companies Act governing the resignation of a Director, it should be held that the resignation takes effect the moment, the letter of resignation is submitted.
23. Now coming to the judgements relied on by the learned counsel appearing for the petitioner, let me first refer to the judgement in Rajkumar v. Union of India, AIR 1969 SC 180. In that case, the petitioner was a Member of Indian Administrative Service governed by the Central Civil Services Rules. He submitted his resignation and it was also accepted. After the same was accepted, he sent in a letter withdrawing his resignation. On considering the question as to whether such withdrawal is permissible in law after the resignation had been accepted, the Hon'ble Supreme Court has held that the resignation takes effect the moment it is accepted and thereafter, there is no question of withdrawal of resignation.
24. The next judgement relied on by the learned senior counsel for the petitioners is Union of India v. V.Gopal Chandra Misra, AIR 1978 SC 694. The question before the Constitution Bench of the Hon'ble Supreme Court was as to when the resignation of a Judge of a High Court, who is a constitutional functionary, takes effect. While considering the said question, the Hon'ble Supreme Court in para 51 of the judgement has held as follows:-
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 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.
25. The last judgement relied on by the learned senior counsel for the petitioner is Chan Mal Chayal v. State of Rajasthan, (2006) 10 SCC 258. That was a case where the petitioner therein was an employee governed by the Rajasthan Subordinate Courts Ministerial Establishment Rules, 1986. The resignation of the employee was accepted by the employer. Thereafter, he sent in a letter seeking to withdraw the resignation. Whether such power is available for the employer to accept the withdrawal, the Hon'ble Supreme Court in para 8 of the judgement has held as follows:-
We have already noted that resignation of the appellant has been accepted and, therefore, the appellant now cannot claim as a matter of right to be re-employed. No writ of mandamus can be issued directing the re-employment of the appellant
26. Of course, the judgements of the Hon'ble Supreme Court in Rajkumar and Chan Mal Chayal cases cited supra , the persons were governed by the relevant service rules. In those service rules, there were no provisions for submission of resignation and its acceptance. But, the Hon'ble Supreme Court in those two cases has held that if once the resignation is accepted, there is no question of withdrawal of such resignation.
27. Referring to the above two judgements, the learned Additional Solicitor General of India would submit that the employees therein were governed by the relevant service rules, whereas in respect of the Director of Kalakshetra Foundation, there is no service rule prescribing for the resignation or its acceptance. But, he would bring to my notice that the Central Government has issued The Ministry of Tourism and Culture, Department of Culture, Kalakshetra Foundation, Chennai (Director) Recruitment Rules, 2002". The said rules have been issued by the Central Government in exercise of the power conferred under Section 31(2) of The Kalakshetra Foundation Act. The Rules deal with the method of recruitment, age limit, qualification, disqualification and other matters relating to a Director. But, unfortunately, in the said rules, there is no provision dealing with the resignation and its acceptance.
28. As I have already stated, as per section 8 of the Act, Kalakshetra Foundation is a "body corporate" which means it is a juristic person having legal status like a company governed by The Companies Act. As I have already pointed out , consistently, this Court has taken the view, following the judgements of the Hon'ble Supreme Court, that in respect of a company, since there is no provision for resignation of a Director of a company provided for in The Companies Act, common law principle relating to resignation is to be applied. Similarly, in the case on hand also, the same principle is to be applied.
29. At this juncture, I may refer to the judgement of the Constitution Bench of the Hon'ble Supreme Court in Gopal Chandra Misra cited supra. It was a case relating to the resignation of a Judge of a High Court. The Judge of a High Court is admittedly a constitutional functionary and regarding his resignation, there is no provision made anywhere by any Parliamentary Act. Therefore, in that case, the Hon'ble Supreme Court held that the moment the resignation is tendered, it takes effect and there is no question of acceptance by the President of India. This view is similar to the view taken by the Madras High Court in the judgement, which I have cited earlier, that in the matter of resignation of a Director of a company, since there is no specific provision regarding resignation and its acceptance, by applying the common law principle, the resignation shall take effect the moment it is tendered. In the case on hand, the resignation was not only tendered, but it was also accepted. Admittedly, it has been given effect to. If once it is accepted as per the law laid down by the Hon'ble Supreme Court in the judgements cited supra, there is no scope for the employee to withdraw the resignation. Thus, the law has been well settled.
30. In the case on hand, the impugned order cannot be termed as reemployment. Though in the counter affidavit filed by the 1st respondent it is stated that the 4th respondent was permitted to withdraw her resignation and she rejoined as the Director of the Foundation w.e.f. 29.06.2012, it cannot be taken as reemployment. There may not be any difficulty in reemploying any individual as the Director, provided she or he satisfies the qualifications prescribed in the rules. But, any such reemployment can be made only by means of a notification as provided in Section 19 of the Act. Here, the order dated 29.06.2012 impugned in this writ petition has not been notified and as such the same cannot be treated as an order of appointment at all. A person, who has resigned from the post of Director can only be reappointed, but the resignation cannot be withdrawn as it is not permissible in law. In such view of the matter, I have no doubt to hold that the impugned order dated 29.06.2012 is not at all sustainable and the same is liable to be set aside.
31. In the result, the writ petition is allowed and the impugned order of the 1st respondent dated 29.06.2012 is set aside. Consequently, connected MPs are closed.
Index : yes 08.08.2012
Internet : yes
kmk
To
1.The Secretary, Ministry of Culture, Government of India,
Room No.502, Shastri Bhavan, "C" Wing, New Delhi-110115.
.....
S.NAGAMUTHU. J.,
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W.P.No. 17264 of 2012
08.08.2012