Allahabad High Court
Diwan Singh Bisht vs Life Insurance Corporation Of India And ... on 16 December, 2004
Equivalent citations: 2005(3)AWC2318, 2005(1)ESC637, (2005)2UPLBEC1232
Author: Vineet Saran
Bench: Vineet Saran
JUDGMENT Vineet Saran, J.
1. The petitioner was appointed as an Assistant in the Life Insurance Corporation in September, 1991. In the year 2000, the respondent No. 5, was posted as Branch Manager of the Moradabad branch where the petitioner was working. The petitioner claims that he was harassed by the said Branch Manager, regarding which he had made several complaints. According to him, he was not being informed of the work assigned to him; his work table was time and again shifted from one place to another; his general/medical leave was not being sanctioned; certain financial irregularities were also being committed in the Branch Office, besides many other grievances which he had repeatedly complained of. A notice had been given to the petitioner on 2.9.2000 to explain as to why his medical leave should not be refused, to which he filed his reply. By a detailed memorandum of grievances submitted on 21.9.2000 the petitioner had again pointed out the irregularities committed in the office, in the hope that the management would take action in the matter, but the respondent authorities neither replied to his letters, nor did they take any action. Thereafter on 12.10.2000 a show cause notice was again given to the petitioner for coming late after lunch. In such circumstances on the same day, i.e. 12.10.2000, the petitioner submitted a letter, the English translation of which is as under :
"I have been subjected to extreme mental torture by the superior officers as a result of which I am being compelled to tender my resignation. I have already submitted a letter regarding this to your Honour through proper channel. Kindly accept my resignation letter."
Thereafter his resignation had been accepted by the Senior Divisional Manager on 11.1.2001, which was communicated by the Branch Manager vide order dated 13.1.2001. Aggrieved by the aforesaid order, the petitioner filed Writ Petition No. 32 of 2001 on the ground that the resignation was not tendered voluntarily. On an objection raised by the learned Counsel appearing for the respondent-Life Insurance Corporation that an appeal lies against such order under Life Insurance Corporation of India Staff Regulation, 1960, the said writ petition was disposed of on 4.1.2002 with the direction that if the petitioner files an appeal within one month, the same shall be considered by the Corporation without any objection as to delay. Immediately thereafter on 21.1.2002 the petitioner submitted his appeal before the Chairman of the Life Insurance Corporation. Since the said appeal was not decided, the petitioner was constrained to file another Writ Petition No. 7088 of 2002 which was decided on 17.2.2003. Without examining the matter on merits, while disposing of the writ petition, this Court directed that the appeal may be decided in accordance with law within two months. Thereafter the decision on his appeal was communicated to the petitioner by the Manager of the Corporation vide order dated 19.4.2003, which reads as follows :
"This has reference to your letter dated 25.2.2003 alongwith which you had submitted certified copy of Hon'ble Allahabad High Court's order dated 17.2.2003 and a Xerox copy of your appeal dated 21.1.2002.
We may inform you that the matter was examined by the competent authority but it has not been found possible to reappoint you as Assistant in the service of the Corporation."
2. Aggrieved by the same the petitioner has filed this writ petition challenging the order dated 11.1.2001 passed by respondent No. 3 as communicated to the petitioner by letter/order dated 13.1.2001 of the respondent No. 4 and also the order dated 19.4.2003 passed in appeal by the respondent-Corporation. A further prayer has been made for a direction to the respondents to reinstate the petitioner in service with all consequential benefits.
3. I have heard Sri Ajay Bhanot, learned Counsel for the petitioner as well as Sri Prakash Padia, learned Counsel appearing for the respondent-Corporation at great length and have perused the record.
4. The main ground of challenge to the action of the respondents is that the said letter of the petitioner dated 12.10.2000 could not be treated as resignation in the eye of law for it was not a voluntary act as the same was submitted under duress and was extracted by coercion. It could thus not have been treated as a valid resignation and was wrongly accepted by the respondent-authorities. In support of his submissions Sri Ajay Bhanot has placed reliance on two decisions of the Apex Court rendered in the cases of Dr. Prabha Atri v. State of U.P., 2003 (2) ESC 105 and P.K. Ramachandra Iyer v. Union of India, (1984) 2 SCC 141. It was also urged that the petitioner being a regular employee of the Corporation, his services could not be dispensed with without any enquiry. With regard to the decision in appeal, it was submitted that the same was a non-speaking order and had been passed without application of mind inasmuch as the prayer in the appeal was for treating the resignation of the petitioner as null and void and to reinstate him in service with all consequential benefits, and the order in appeal states that the competent authority did not find it possible to reappoint the petitioner as Assistant, when actually there was no question of reappointment of the petitioner.
5. Sri Prakash Padia, learned Counsel for the respondent has contended that the acceptance of the resignation was fully justified as the same had been submitted by the petitioner without there being any pressure or coercion. It was further urged that although the petitioner had voluntarily resigned and there was no requirement of making any further enquiry or giving opportunity to him in this regard, still the Head Office of the Corporation had written on 17.11.2000 that before taking any decision on the resignation of the petitioner, the Divisional Manager should speak to the petitioner with regard to his complaints and in compliance thereof, the Divisional Manager met the petitioner on 1st December, 2000. It was thus contended that the respondents had acted very fairly and had even complied with the principles of natural justice before passing orders accepting the resignation of the petitioner. With regard to the appellate order, learned Counsel very fairly submitted that reasons ought to have been recorded in the order and only urged that for this he may be permitted to produce the records of the case. However, considering the fact that no reasons for disallowing the appeal had been placed on record even in the counter-affidavit, I do not consider it necessary or proper to call for the records relating to this case only to give further opportunity to the respondents to show whether reasons had been recorded by the competent authority or not. If the same were there on record, they could have been placed by the respondent-Corporation alongwith the counter-affidavit.
6. In the backdrop of the aforesaid facts of the present case and keeping in view the submissions advanced by the learned Counsel for the parties as well as taking note of the language of the resignation letter dated 12.10.2000 and also the circumstances in which the same had been written as well as the ratio of the judgments of the Apex Court in the cases of Dr. Prabha Atri and P.K. Ramachandra Iyer (supra), in my view the order passed by the respondent-Corporation accepting the resignation of the petitioner is not justified and so also is the order passed in appeal, and the same are liable to be quashed. The other submission of Sri Padia that the matter may be remanded to the appellate authority to decide the matter afresh by a reasoned order is also not worthy of acceptance because the petitioner had earlier also been compelled to approach this Court on two occasions. The pleadings have been exchanged between the parties and thus the matter deserves to be decided by this Court on merits.
7. The prime question which requires consideration of this Court is whether the letter dated 12.10.2000 could be construed to mean or amounted to be a letter of resignation, or was merely a threat or an expression of his intention to resign as his grievances were not being looked into by the authorities. Resignation is a voluntary act of surrendering, giving up, or relinquishing a position, or office freely, without any duress, or pressure. In the present case, it is clear that the letter of resignation, dated 12.10.2000, had been submitted by the petitioner in trying circumstances and not in normal course. The complaints and other grievances of the petitioner, which he had raised in writing from time to time have been placed on record, and filing of the same have not been denied by the respondents in the counter-affidavit. The grievances raised by the petitioner clearly reveal that he was not satisfied with the working of the branch office regarding which he had repeatedly written to the respondent-authorities. Admittedly, no action had been taken with regard to the same and the harassment of the petitioner was continuing to the extent that on the very day of his resignation he had been served with a show cause notice for reaching late after lunch. In such circumstances, after his resistance for tolerance had snapped, he had penned down the letter threatening to resign.
8. The respondents themselves cannot deny that the grievances of the petitioner had remained unattended. The same would be clear from the communication dated 17.11.2000 written by the Head Office to the Branch Manager, a copy of which has been filed as Annexure-CA1 to the counter-affidavit, wherein a direction had been issued to the Divisional Manager to take decision on the resignation of the petitioner only after talking to him about his grievances raised from time to time. The version given in the counter-affidavit is falsified as it has been stated therein that the Branch Manager contacted the petitioner on 1.12.2000 when the petitioner was advised to withdraw his resignation but he did not do so. The said averments are based on the endorsement made by the Branch Manager on the letter dated 17.11.2000 which reads as follows :
"Shri Deevan Singh Bisht met the undersigned today i.e., 1.12.2000. He was given an opportunity to express his grievances." This only shows that the Branch Manager (and not the Divisional Manager who was to take the decision) met the petitioner on 1.12.2000 and then also he was merely given an opportunity to express his grievances and not an opportunity to withdraw his resignation. In reply, the petitioner has categorically stated in the rejoinder affidavit that on 1.12.2000 it was the Manager Personnel (not the Branch Manager) who had met him and informed that no action could be taken on his complaints of financial irregularities and personal harassment. The petitioner was only communicated that his resignation had already been accepted, of which he would be informed in writing in due course. The averments made in the counter-affidavit do not corroborate with the endorsement made in the letter dated 17.11.2000 with regard to opportunity having been given to the petitioner to withdraw his resignation. Even the circumstances do not show that any genuine effort had ever been made by the respondent-authorities to look into the grievances of the petitioner or that any opportunity had been given to him to withdraw his resignation. Having regard to the entire facts and circumstances which led to the submission of the letter dated 12.10.2000, one cannot but arrive at the conclusion that the same could not amount to an actual and simple act of voluntary resignation, but could only be a threatened offer to resign, more as a result of frustration and harassment to which he was subjected to time and again, and when no action was taken on his complaints and grievances, which were repeatedly submitted by him."
9. In the case of P.K. Ramachandra Iyer (supra) where the resignation dated 30.5.1970 of the member of the Post Graduate Faculty had been accepted after about a year on 3.5.1971 by the Academic Council, the Apex Court observed that when he went on writing letter after letter beseeching the authorities to look into the matter and to render justice to him, everything fell on deaf ears, out of exasperation he wrote letter dated May 30, 1970 in which he stated that the only honourable course left open to him was to resign rather than suffer, and the Council seized upon this opportunity to get rid of him. The wordings of the resignation letter before the Apex Court in the aforesaid case were as follows :
"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 victimisation shown to me by the Head of the Division in the allotment of students of 1968 and 1969 batches and departmental candidates."
10. In the case in hand, the petitioner while resigning had written to the respondent-authorities that he had been subjected to extreme mental torture as a result of which he was being compelled to tender his resignation. A mention had also been made that he had already submitted a letter (regarding his grievances) to the authorities through proper channel. In such circumstances, it was only in exasperation that the petitioner was compelled to resign because his complaints had fallen on deaf ears and instead of looking to his grievances, the respondent-Corporation found it more convenient to get rid of the petitioner by accepting his resignation.
11. In the case of Dr. Prabha Atri (supra) also, in similar circumstances when Dr. Atri wrote that she had been working in the Hospital for the past several years in the best interest of the patients and it was tragic that Instead of taking a lenient view of her sickness the authorities opted to punish her, she further stated that "if the foregoing is not acceptable to you then I have no option left but to tender my resignation with immediate effect." The same was not treated by the Apex Court to be a voluntary act of resignation on her part holding that 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. Much emphasis has been laid by Sri Padia on the words 'if the foregoing is not acceptable', as according to him, because of such words having been used, the resignation in the case of Dr. Atri had become conditional, whereas in the present case there was no such condition in the letter of resignation submitted by the petitioner herein. True it may be that there was no such condition in the letter of resignation of the petitioner but such a phrase used cannot be seen in isolation. The entire context of the matter has to be looked into and, as I have already held earlier, the letter of resignation, as has been submitted by the petitioner herein, was clearly out of frustration and exasperation because of the harassment which was meted out to him, and when his complaints and grievances had fallen on deaf ears, then only was he compelled to write such a letter. The effect of the grievances raised by the petitioner to the Head Office of the Corporation came to light only after the submission of the letter dated 12.10.2000, which in the circumstances could only be construed merely to be a threat to resign and not a voluntary resignation. It was only then that the senior officers realised the gravity of the situation and wrote of the subordinate authorities to first speak to the petitioner regarding his grievances before taking any decision on his resignation letter. The acceptance of the resignation letter, in the given circumstances, thus does not appear to be justified, as it cannot be said to be a voluntary act of the petitioner.
12. Accordingly, testing the facts of the case in hand in the light of the observations of the Apex Court, I am satisfied that this writ petition deserves to be allowed and the orders, dated 11.1.2001, passed by respondent No. 3 as communicated to the petitioner by letter, dated 13.1.2001 of respondent No. 4 as well as the order passed in appeal as communicated to the petitioner on 19.4.2003, all deserve to be quashed. The petitioner would be entitled to reinstatement in service.
13. As regards the question of payment of back wages, it has been submitted by the learned Counsel for the petitioner that payment of full back wages would be the normal rule, while passing an order of reinstatement and the party objecting to it, must establish the circumstances necessitating departure from the said rule. In this regard reliance has been placed by Sri Ajay Bhanot on the decisions of the Supreme Court in the cases of Hindustan Tin Works v. Employees of Hindustan Tin Works, (1979) 2 SCC 80 and Vikramaditya Pandey v. Industrial Tribunal, Lucknow, 2001 (88) FLR 741 and also a decision of this Court in the case of Shyam Sunder Misra v. Labour Court, Lucknow, 2000 (84) FLR 196.
14. It is the specific case of the petitioner that he has not been gainfully employed from the period of his alleged resignation till date, which has not been contradicted or denied in the counter affidavit. As such it was urged that the petitioner should be reinstated in service with full back wages.
15. Sri Padia has however submitted that in every case of reinstatement full back wages need not be awarded. He urged that since the petitioner had actually not worked from the date of his resignation he would not be entitled to any wages for the said period and certainly not the full back wages. In support of his contention he relied upon the decision of the Apex Court in the cases of Raj Bahadur Sharma v. Union of India, (1998) 9 SCC 458; Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya, (2002) 6 SCC 41 and P.G.I of Medical Education and Research, Chandigarh v. Raj Kumar, 2001 SCC (L & S) 365.
16. The discretion for granting full or partial back wages lies with the Court deciding the matter, but the same has to be exercised judiciously according to the rules of reason and justice, after taking into consideration the totality of the facts and circumstances of the particular case. The main consideration for deciding this issue would be the reason for which such employee remained out of service during the period for which the back wages are to be paid; the efforts made by such employee in pursuing his case for setting aside the order of dismissal (or acceptance of resignation as in the present case) ; the status of the employee and also the fact that whether such employee was gainfully engaged during such period or not.
17. In the present case, it has already been held that the petitioner had submitted the resignation or his letter threatening to resign, not in normal course, but in trying circumstances, and as such, it was not worthy of acceptance by the respondent-Corporation. The petitioner thereafter immediately approached this Court and was relegated to the appellate jurisdiction under the Regulations of the Corporation. When his appeal was not decided, he was again compelled to file a writ petition. It was only then that his appeal was decided. Immediately thereafter he approached this Court again for the third time and filed this writ petition. The petitioner was thus subjected to repeated bouts of litigation, which he pursued in full earnest and with all sincerity. The delay in deciding the appeal or the writ petitions cannot be attributed to the petitioner. The specific assertion of the petitioner that he was not gainfully employed ever since the acceptance of his resignation has not been controverted by the respondent-Corporation.
18. Keeping in view the aforementioned circumstances as well as the ratio of the decisions in the cases relied upon by both sides, since payment of full back wages would be the normal rule and in the absence of the respondents having been able to establish any circumstance necessitating the departure from such rule, I find it to be a fit case in which full back wages should be allowed and paid to the petitioner.
19. In the result, this writ petition stands allowed. The orders, dated 11.1.2001, passed by respondent No. 3 as communicated to the petitioner by letter, dated 13.1.2001, of respondent No. 4 as well as the order passed in appeal as communicated to the petitioner on 19.4.2003 are all quashed. The petitioner would be entitled to reinstatement in service with full back wages. No order as to costs.