Bombay High Court
Bank Of India vs Kalidas Haribhau More on 5 April, 1999
Equivalent citations: [2000(84)FLR426], (2000)ILLJ216BOM
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. Heard Sri Pai, the learned counsel for the appellant and Sri Satpute, the learned counsel for the respondent,
2. Sri Pai, the learned counsel for the appellant, submits that the appellate Court erred in setting aside the judgment and order passed by the trial Court by relying upon the telegram, dated October 10, 1990 as a communication for withdrawal of resignation letter. Sri. Pai submits that the expression "lien" in the telegram, dated October 10, 1990, is not withdrawal of resignation letter. According to him the employee-respondent sent a notice of resignation of three months on July 10, 1990 and on the expiry of three months, the resignation letter came into effect automatically and, therefore, the appeal Court erred in decreeing the plaintiffs suit.
3. The employee who is respondent herein and original plaintiff in the suit sent the communication to the appellant-employer on July 10, 1990. The said communication was in the nature of three months notice of resignation. The communication of July 10, 1990 (Exhibit 45) read thus:
"Sub: Notice of resignation/retirement from bank service.
I, the undersigned is working as an Assistant Manager at Pimplagaon Baswant Branch, Nasik Region, since last one year. I have been transferred there from Khadki Branch, Pune Region. After my joining at Pimplagaon Baswant Branch, I find very much difficult to work continuously due to my ill-health and domestic problems, I have brought those problems to the notice of higher authorities from time to time and requested them to post me at any branch in Pune. In this connection please refer enclosed copy of my recent letter, dated May 5, 1990, addressed to the Branch Manager and copy endorsed to Regional Officer, Nasik and Zonal Office, Pune, along with my doctor's certificate, employment certificate of my wife and xerox copy of Government rules and regulations stating the posting of husband and wife at the same station. However, may be due to some or other reason, the management has not considered favourably my above request as on date and application is still pending with the Zonal Office, Pune. I am still facing the ill-health and domestic problems of which require my presence in Pune. Since my representation for transfer to Pune is not considered and pending, I have no alternative but to render my resignation from the bank service.
I accordingly, request you to treat this letter as a notice of resignation/retirement and give me an opportunity to complete next three months of service at any branch in Pune. Since I have put up long service of 17 years in this bank and further I have tried my best to discharge my duties most sincerely, honestly and hard-working, you will consider my above request favourably."
4. The employer appellant vide communication dated September 3, 1990 (Exhibit 46) communicated to the employee that his resignation letter, dated July 10, 1990, is accepted on completion of three months period from letter of resignation, dated July 10, 1990. It was however made clear that before he could be relieved from the service of the bank he would be required to repay the entire dues of the bank or to give suitable authority letter to recover dues from the terminal dues payable by him. The said communication, dated September 3, 1990 (Exhibit 46), reads thus:
"Your letter of resignation, dated July 10, 1990 was forwarded to our head office for their acceptance and they have advised that your resignation is accepted with effect from October 10, 1990 i.e. on completion of three months period from your letter of resignation, dated July 10, 1990. It has also been advised by the head office that before you are relieved from the service of the bank you will require to comply with following conditions:
(i) You should repay entire dues of the bank or give suitable authority letter to recover dues payable to you. Please importantly note that the discharge certificate will be issued to you only after complying with the above mentioned requirement."
5. On October 6, 1990 (Exhibit 40), the employee sent a telegraphic communication which reads thus:
"Reference. Your letter PGB/RRG 648, dated September 3, 1990, despite my long bank service bank has ignored the principle of natural justice in my case. I hence reserve my right to LIEN on job and right to go to the Court of A Court of Law for getting proper justice."
6. From the aforesaid documents it would be seen that by the communication, dated July 10, 1990 the employee gave three months' notice of resignation to the employer. However, the employer while accepting the notice of resignation made it clear that before he could be relieved from the service of the bank he would be required to repay the entire dues of the bank or give suitable authority letter to recover dues from the terminal dues payable to him. Thus acceptance of resignation by the employer was subject to clearance of all dues by the employee. There seems to be no doubt on the face of the letter dated November 23, 1990 (Exhibit 47) sent by the employer that even till that date there was huge outstanding payable by the employee to the employer towards various loans taken by the employee. The contents of the letter, dated November 23, 1990 (Exhibit 47) are thus:
"To Sri Kalidas Haribhau More, B-l, Anjali Apartment, 27/10, Dahanukar Colony, Kothrud, Pune-411 029.
Dear Sir, Sub: - Your resignation from Bank's Service with effect from October 10, 1990 Submission of claims of terminal dues payable and repayment of banks' dues.
Please refer to our letter No. PGB/RRG 648, dated September 3, 1990, informing you regarding acceptance of your resignation from bank's service with effect from October 10, 1990. You are also advised to repay entire dues of the bank or give suitable letter of authority to recover dues from terminal benefits payable to you. You were also required to submit application for claiming termination dues, i.e. provident fund and gratuity. However, till date you have not complied with the requirements as stated above.
2. We once again request you to comply with the above at your earliest. We enclose herewith an application for claiming gratuity and provident fund. Please complete the same and also submit separately application for claiming provident fund and suitable authority letter to recover dues from terminal benefits.
3. We furnish below details of loans availed by you as per available record.
Type of loan Purpose Present o/s balance
(i) Vehicle loan Purchase of car Rs. 56,730.00 + interest up to 24.9.1990
(ii) Salary advance Diwali Rs. 300.00
(iii) Staff co-op, society Personal Rs. 15,000 of which monthly instalment of Rs. 630/along with interest remitted to society from January 89 to July 90.
(iv) Loan against NSC availed from Khadki Br.
Rs. 15,484,14 + interest from 30.6.1990
(v) Housing loan availed from Pune Branch & Theur Branch The details of same shall be sent in due course of time.
4. Your are requested to comply with the requirements as stated in para 2 above at your earliest."
7. It would be thus seen that the acceptance of the resignation never became effective since the outstanding amount as was required to be paid by the employee to the employer vide communication, dated September 3, 1990, remained to be paid by October 10, 1990. The acceptance letter, dated September 3, 1990, was conditional and since the dues remained to be paid, it did not become effective and, therefore, the jural relationship of the employee and employer did not cease and before that by the telegraphic communication, dated October 6, 1990, received by the employer on October 17, 1990 the employee expressed his intention to withdraw the resignation letter by communicating that he reserves his right to have lien on the job.
8. In Power Finance Corporation Ltd. v. Pramod Kumar Bhatia, 1997 (2) LLN 5, the Apex Court held thus, in Paras, 6 and 7, page 7:
"6. Having regard to the respective contentions, the question that arises for consideration is: Whether the respondent acquired a vested right after acceptance of the voluntary retirement by proceedings, dated December 20, 1974? It is seen that the order is a conditional order in that until the dues are paid, the order does not become effective. The respondent himself admitted that the outstanding dues could be adjusted from the amount payable to him. Admittedly, no such adjustment has been made. He, therefore, rightly, understood that unless he is relieved of the duties of the post, after the payment of the outstanding dues, the order accepting his voluntary retirement does not become effective.
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 relation 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 night to withdraw the scheme subsequently."
9. Sri Pai, learned counsel for the appellant relies upon the judgment of the Apex Court in Punjab National Bank v. P.K. Mittal; (1989-I-LLJ-368) and particularly Para 5, of the said report reads thus:
"We have given careful thought to this contention of the learned counsel and we are of the opinion that the High Court was right in the conclusion it reached. Clause (2) of regulation 20 makes it incumbent on an officer of the bank, before resigning, to serve a notice in writing of such proposed resignation and the clause also makes it clear that the resignation will not be effective otherwise than on the expiry of three months' from the service of such notice. There are two ways of interpreting this clause. One is that the resignation of an employee from service being a voluntary act on the part of an employee, he is entitled to chose the date with effect from which his resignation would be effective and give a notice to the employer accordingly. The only restriction is that the proposed date should not be less than three months from the date on which the notice is given of the proposed resignation. On this interpretation, the letter, dated January 21, 1986, sent by the employee fully complied with the terms of this clause. Though the letter was written in January 1986, the employee gave more than three clear month's notice and stated that he wished to resign with effect from June 30, 1986 and so the resignation would have become effective only on that date. The other interpretation is that, when an employee gives a notice of resignation, it becomes effective on the expiry of three months from the date thereof. On this interpretation, the respondent's resignation would have taken effect on or about April 21, 1986, even though he had mentioned a later date. In either view of the matter, the respondents' resignation did not become effective till April 21, 1986 or May 30, 1986. It would have normally automatically taken effect on either of those dates as there is no provision for any acceptance or rejection of the resignation by the employer, as is to be found in other rules such as the Government Service Conduct Rules."
10. The contention of Sri Pai that no acceptance was required of the said resignation letter and, therefore, on expiry of three months the resignation letter became effective automatically cannot be accepted in the facts and circumstances of the present case.
11. The judgment of the Apex Court in Punjab National Bank (supra), is not helpful to the employer appellant herein since in the present case admittedly by the specific letter dated September 3, 1990, the employer accepted the resignation letter of the employee though on conditions mentioned therein. Since those conditions were not fulfilled by the employee within expiry of three months, obviously the acceptance of resignation letter did not come into effect since it was conditional order.
12. In view of the aforesaid discussion, the findings recorded by the Appellate Court cannot be faulted. The second appeal is accordingly dismissed in limine.