Delhi High Court
Umed Singh vs Presiding Officer & Anr. on 19 December, 2013
Author: A.K. Pathak
Bench: A.K. Pathak
$~17
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P/ (C) 6847/2009
Judgment reserved on 3rd October, 2013
Judgment delivered on 19th December, 2013
UMED SINGH ..... Petitioner
Through: Petitioner in person.
versus
PRESIDING OFFICER & ANR. ..... Respondents
Through: Mr.Sharat Kapoor and
Mr.Noor Alam, Advs. For R-2
Mr.K.K.Rai, Sr.Advocate with
Ms.Manika Tripath Pandey
and Mr.Ashotosh Kaushik,
Advs. For R-3.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
1. By this writ petition under Article 226 of the Constitution of
India, petitioner has assailed the Award dated 15th September, 2008
passed by the Labour Court, Delhi whereby reference has been
answered against the petitioner.
2. The Secretary (Labour), Government of National Capital
Territory referred the industrial dispute to the Labour Court for
adjudication in the following terms:-
"Whether the action of the management in
accepting the resignation of Sh.Umed Singh vide
their Order dated 09.01.92 is illegal and/or
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unjustified, and if so, to what relief is he entitled
and what directions are necessary in this
respect?"
3. Factual matrix, relevant for the purpose of disposal of this
writ petition, is that petitioner was appointed as an Assistant Hindi
Officer by the respondent no.2 vide letter of appointment dated 13th
June, 1990. He was put on probation for a period of one year.
Probation was to be confirmed in writing. Relevant it would be to
refer to Clause 1.10 of the appointment letter, which reads as
under:-
1.10. You will be on probation for a period of
one year which may be extended if found
necessary. During the probation period your
services are liable to be terminated at any time
without assigning any reason thereof. On
satisfactory completion of probation period, which
shall not be deemed to have been so completed
unless you are informed of it in writing. Your
services will be liable to termination by either side
on giving one month‟s notice or payment of salary
in lieu thereof, provided further that the corporation
reserves the right to withhold acceptance of your
resignation, if tendered by you in case disciplinary
proceedings are pending against you or a decision
has been taken by the Competent Authority to issue
a Charge-Sheet to you.
4. Petitioner was not confirmed on completion of one year
probation period. Instead his probation was extended for a period
of six months due to his unsatisfactory performance and acts of
insubordination. Immediately after joining, petitioner started
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making complaints directly to various authorities including Prime
Minister of India, without following the procedure of sending such
letters/complaints „through proper channel‟. One of his grievance
was that respondent no.2 ought to have created a post of Hindi
Officer at its project and not the post of Assistant Hindi Officer. It
was also alleged that he was threatened by the Senior Officers‟ of
the corporation. He claimed that he was not given adequate staff.
Furthermore, a letter dated 26th November, 1991 was written by him
to the Prime Minister. Petitioner‟s services were transferred from
respondent no.2 to respondent no.3 with effect from 19th December,
1991, subject to his furnishing unconditional option. Petitioner did
not submit any option. He again wrote a letter dated 31st December,
1991 to the Prime Minster alleging therein, inter alia, that behavior
of his officers was hostile against him. At the end, in the said
letter, he opted to resign from the post. Petitioner also sent a
resignation letter dated 31st December, 1991 to the Manager (P&A)
of respondent no.2.
5. Senior Manager personnel sent a telegram dated 8th January,
1992 to the Chief Engineer to the effect that resignation of
petitioner may be accepted and he be relieved immediately.
Pursuant thereof, Office Order dated 9th January, 1992 was issued
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stating therein that resignation tendered by the petitioner had been
accepted with effect from 9th January, 1992 (AN) and he stands
relieved from duty with effect from 9th January, 1992 (AN). It was
further written therein that the recovery in respect of shortfall of 20
days in the one month‟s notice period, will be effected from him,
inasmuch as his final dues will be cleared by the Finance and
Accounts Wing, on receipt of no demand certificate from all
concerned. This Office Order was served on the petitioner on 9th
January, 1992 itself. On the same day petitioner sent a letter
withdrawing his resignation. In the withdrawal letter he alleged that
since his services were transferred to National Power Transmission
Corporation with effect from 19th December, 1991 in terms of office
order dated 20th December, 1991, therefore, he withdraws his
resignation unconditionally.
6. Industrial Adjudicator upon appreciation of ocular as well as
documentary evidence has held that petitioner had withdrawn the
resignation after the same was already accepted. It was observed
that petitioner had himself admitted, in his cross-examination dated
27th May, 2002, that his main grievance was against respondent
no.2 only since respondent no.3 had terminated his services vide
order dated 9th January, 1992 and further that he did not join
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respondent no.3, thus, Tribunal had no jurisdiction to deal with any
claim of petitioner qua the respondent no.3; since reference was
only with regard to the acceptance of resignation letter by the
respondent no.2 being illegal and unjustified, inasmuch as claims
qua the respondent no.3 were beyond the reference. It was further
held that burden to prove the facts alleged by the petitioner was on
him. Petitioner had submitted his resignation letter dated 31st
December, 1991 (Ex.WW1/M1) to Manager (P&A) of the
respondent no.2. which indicated his unconditional and voluntary
intention to resign, as petitioner had categorically stated therein
„that he tenders his resignation from services of the corporation‟.
Resignation was not coercive or conditional. Petitioner admitted in
his cross-examination that on 9th January, 1992 he had received the
order from the respondent no.2 that his resignation had been
accepted by the Competent Authority. Petitioner had written the
letter dated 9th January, 1992 to the Chief Engineer stating therein
that he withdraws his resignation unconditionally, however, prior
thereto resignation had already been accepted by the concerned
Authority, thus, withdrawal of resignation was not permissible.
7. There is no gainsaying that the scope of interference in an
award by the High Court in exercise of its power of judicial review
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under Article 226 of the Constitution of India is limited. High
Court cannot sift and weigh the evidence adduced before the
Labour Court or Industrial Tribunal to take an independent view
than what has already been taken by the Industrial Adjudicator upon
appreciation of evidence. High Court will step in only if it is shown
that Award is based on no evidence or is perverse. In case award
suffers from any manifest error of law or jurisdiction then also High
Court will interfere with the award. However, if award is based on
some evidence then High Court will not interfere with the same.
Question of adequacy or sufficiency of evidence has not to be gone
into. A Division Bench of Calcutta High Court in New India Flour
Mills and another vs. Sixth Industrial Tribunal, West Bengal, and
others 1963 (1) LLJ 745 has observed, thus, "it is difficult for me,
sitting in constitutional writ jurisdiction, to interfere with a finding
of fact, even though the finding may have been arrived at on a
wrong evaluation of evidence".
8. A Single Judge of this Court in NDMC vs. Secy.(Labour)
NCT of Delhi & Ors. 2008 (9) AD (Delhi) 382 has held thus "High
Court in exercise of jurisdiction under Article 226 of the
Constitution of India interferes with the order of the inferior
Tribunal in a writ of certiorari, only if the order assailed suffers
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from an error of jurisdiction or from breach of principles of natural
justice or is vitiated by a manifest or apparent error of law. There is
no sanction enabling this Court to reappraise evidence as in an
appeal and draw conclusions on questions of fact while exercising
writ jurisdiction. The findings of fact recorded by the Authority
duly constituted for the purpose and which ordinarily should be
considered to have become final, cannot be disturbed, so long as
they are based upon some material relevant for the purpose. The
High Court ought not to re-adjudicate upon questions of fact
decided by the Industrial Adjudicator unless the circumstances
indicate that the Tribunal has snatched jurisdiction. It has been
further held that the exercise of powers of judicial review should as
far as possible sustain the award made by the Industrial Adjudicator
instead of picking holes here and there on trivial points and
ultimately frustrating the entire adjudication process by striking
down the award on hyper technical grounds". In S.Chandraiah vs.
Presiding Officer, Additional Industrial Tribunal, Hyderabad and
another 2005 LLR 1172 it has been held that "while exercising its
certiorari jurisdiction under Article 226 of the Constitution of India
and exercising its powers of judicial review against orders/awards
of statutory Tribunals, the High Court neither acts as a court of
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appeal nor does it re-appreciates the evidence on record. It is only
in cases where there is no evidence, the findings of statutory
Tribunals are perverse or there is manifest error on the face of the
record that the High Court exercises its certiorari jurisdiction".
9. In the backdrop of above settled position of law, if facts of
this case are examined, Industrial Adjudicator has concluded that
petitioner was appointed as an Assistant Hindi Officer by the
respondent no.2 and was on probation since his probation was not
confirmed in writing. On 31st December, 1991, petitioner tendered
his resignation which was unconditional and voluntary.
Resignation of the petitioner was accepted and communicated to
him on 9th January, 1992. Petitioner withdrew his resignation on
the same day but only after his resignation was duly accepted. The
findings of fact have been returned by the Industrial Adjudicator
upon appreciation of evidence and cannot be interfered with by this
court in exercise of its jurisdiction of judicial review under Article
226 of the Constitution of India on re-appreciation of evidence.
The moot question which arises for consideration is, as to whether
petitioner could have withdrawn his resignation after the same had
been duly accepted. In North Zone Cultural Centre and another vs.
Vedpathi Dinesh Kumar AIR 2003 Supreme Court 2719, Apex
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Court has held thus: "non-communication of the acceptance does
not make the resignation inoperative provided there is in fact an
acceptance before the withdrawal". Meaning thereby that
resignation can be withdrawn before it is accepted. However,
resignation cannot be withdrawn by an employee after it has been
accepted, even though not communicated to the employee. In
S.Chandraiah (supra) it has been held thus:-
"Once the letter of resignation is accepted,
subsequent revocation thereof is of no
consequence and refusal by the 2nd respondent to
accept the said revocation cannot be said to be
illegal or unjust. An employee is entitled to
withdraw his resignation prior to its acceptance or
prior to the date on which the resignation comes
into force. He is however not entitled to contend,
as a matter of right, that his revocation of
resignation is required to be accepted or that he
should be taken back into service despite his
resignation having been accepted by the
employer".
10. In Mani vs. State Bank of Travancore 200 LLR 429 Kerala
High Court has held thus:-
There can be no dispute as a proposition in
law that a request for acceptance of resignation
can be withdrawn before it is actually accepted.
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 (see Union of India v.
Gopal Chandra Misra and Ors. AIR 1978 SC 694.
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It is open to a servant who has expressed his
desire to retire from service and applied to his
superior officer to give him the requisite
permission, to change his mind subsequently and
ask for cancellation of the permission thus
obtained. He can be allowed to do so as long as he
continues in service and not after it is terminated
by acceptance of the request for requisite
permission..............."
11. In this case petitioner‟s resignation was accepted by the
respondent no.2 and as per the Office Order he stood relieved from
his duties with effect from afternoon of 9th January, 1992. Upon
appreciation of evidence, Industrial Adjudicator has held that
withdrawal letter was sent thereafter. Withdrawal of resignation
after its acceptance is not permissible.
12. As regards plea of the petitioner, that resignation could not
have been accepted in view of his transfer to respondent no.3, same
has no force. Petitioner did not exercise the option given to him.
He did not submit any consent letter to the respondent no.3,
inasmuch as has himself admitted, in his cross-examination, that he
did not join the respondent no.3 nor he had any grievance against
the respondent no.3. It is thus evident that petitioner remained in
the employment of respondent no.2, accordingly, respondent no.2
was competent to accept the resignation of petitioner. Next
contention of the petitioner is that his resignation was not accepted
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by the „Competent Authority‟. However, his this plea had remained
unproved before the Industrial Adjudicator. No evidence was led
by him on this point. In his deposition, he has not stated as to who
was the Competent Authority. No evidence was led by him in this
regard. His whole deposition is silent on this point. Since
petitioner had pleaded this fact, onus was on him to prove this fact,
which he had miserably failed to discharge. It is a cardinal
principle of law that onus to prove a fact is on the person who
asserts the same. Since no evidence has been led by the petitioner
on this point before the Industrial Adjudicator, he cannot be
permitted to rake up this plea in this writ petition.
13. For the foregoing reasons, writ petition is dismissed. No
order as to costs.
A.K. PATHAK, J.
DECEMBER 19, 2013 ps WP© 6847-2009 Page 11 of 11