Central Administrative Tribunal - Bangalore
Santoshkumar Gogi vs D/O Posts on 26 February, 2024
1 OA No.168/2022/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00168/2022
ORDER RESERVED : 07.02.2024
DATE OF ORDER : 26.02.2024
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Shri Santoshkumar Gogi,
S/o Sri Basavaraj Gogi,
Aged 35 years,
Working as Sorting Assistant,
RMS 'HB' Division,
Hubballi -580029.
Residing at House No.124,
Above Vijayanagar P.O.,
Vijayanagar, Hubballi-580032. ... Applicant
(By Advocate, Shri A.R.Holla)
Vs.
1. The Union of India,
By the Secretary,
Department of Posts,
Dak Bhavan,
New Delhi-110001.
2. The Postmaster General,
N.K.Region,
Dharwad-580001.
2 OA No.168/2022/CAT/BANGALORE BENCH
3. The Superintendent,
RMS 'HB' Division,
Hubballi-580029.
4. The Addl. Dte Army Postal Service,
IHQ Ministry of Defence,
Rao Tula Ram Marg,
New Delhi -908 708 C/o 56 APO.
5. OIC Records,
P&T Adm Cell,
Army Postal Service Centre,
Brigade of the Guards,
Regimental Centre,
PIN-900746 C/o 56 APO. ....Respondents
(By Advocate Shri N.Amaresh for Respondents)
O R D E R (ORAL)
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(a). To quash the Memo Order No.B-1/60/VR/SA/2018 dated @ Hubballi 580029 dated 09.03.2022, issued by the respondent No.3, Annexure-A16, rejecting the request of the applicant for withdrawal of his letter of resignation from service dated 13.07.2021, Annexure-A5.3 OA No.168/2022/CAT/BANGALORE BENCH
(b) Direct the respondents No.3 to continue the applicant in his original post of Sorting Assistant in RMS 'HB' Division, Hubballi treating the period since 03.02.2022 as on duty and extend consequential benefits accordingly and
(c). Grant such other relief deemed fit, having regard to the facts and circumstances of the case."
2. Briefly stated the facts as narrated by the applicant are that the applicant was appointed as Sorting Assistant in RMS 'HB' Division, Hubballi on 11.11.2008. He was deputed to Army Postal Service with effect from 23.12.2015. He made a request vide his representation dated 22.02.2020 to the Respondent No.5 to discharge him from Army Postal Service (APS) so that he could be posted to the parent department owing to health problem coupled with other personal problems. As the same has not been responded to, a representation dated 25.01.2021 was submitted before Respondent No.3. Further the applicant submitted a representation to OIC Records, APS on 30.06.2021 to consider his request for repatriation. The said representation not having been responded to, the applicant submitted his resignation to Respondents No.3 and 5 on 13.07.2021. Again a follow-up letter was submitted 4 OA No.168/2022/CAT/BANGALORE BENCH before the 3rd Respondent on 30.10.2021. The applicant requested the Respondent No.4 to relieve him of duties consequent upon his acceptance of resignation on 11.11.2021 as per letter dated 07.12.2021, In response to the said request, Respondent No.5 issued repatriation order dated 07.01.2022, the resignation to be effective from 31.01.2022. In the meantime, the applicant changed his mind and decided to continue in service and submitted a letter dated 21.01.2022 to the Respondent No.3 withdrawing his resignation. However, Respondent No.4 issued a memo dated 28.01.2022 repatriating the applicant to his parent department, accordingly the applicant reported for duty in the office of the Respondent No.3 as per the instructions of APS. In the meantime, the applicant has been infected with Covid-19 and was under treatment and home isolation. After reporting to duty, the applicant made a request to Respondent No.3 to permit him to rejoin his normal duty by submitting a representation. Respondent No.3 issued an order dated 10.02.2022 observing that the applicant has sent withdrawal of resignation letter dated 21.01.2022 directly to Respondent No.3 without informing the APS and as per the orders of competent authority, the applicant was directed to approach Respondent No.5 to further process his request. Pursuant to which the applicant submitted another representation dated 17.02.2022 before the 3rd Respondent explaining the 5 OA No.168/2022/CAT/BANGALORE BENCH factual aspects and the same having not yielded any response, another representation dated 28.02.2022 was submitted. The Respondent No.3 issued an order dated 09.03.2022 declining to permit the applicant to withdraw his resignation. Being aggrieved, the applicant is before this Tribunal.
3. Learned Counsel Shri A.R.Holla representing the applicant submits that the request of the applicant to discharge him from the services of APS was kept pending without taking any action compelling the applicant to submit his resignation. The resignation was to be effective from 31.01.2022 in terms of the order dated 07.01.2022 issued by the APS though the Respondent No.3- Appointing authority has accepted the resignation on 11.11.2021. In the meantime, the applicant has withdrawn his resignation in terms of his letter dated 21.01.2022. The resignation has been withdrawn before its acceptance became effective, as such the withdrawal of the resignation is valid. On repatriation of the applicant from the APS with effect from 31.01.2022, the master and servant relationship between the applicant and APS continued and during the continuation of jural relationship of master and servant, withdrawal of the resignation was made. As such the applicant 6 OA No.168/2022/CAT/BANGALORE BENCH again approached the authorities to validate the withdrawal of his resignation. The appointing authority being Respondent No.3, ought to have considered the withdrawal of resignation in a proper perspective. On these grounds, learned Counsel argued that the impugned order dated 09.03.2022 (Annexure A16) deserves to be set aside. Accordingly, seeks for the reliefs claimed.
4. Learned Counsel Shri N.Amaresh representing the respondents submitted that the applicant was deputed to APS on voluntary basis on his request with effect from 22.12.2015 as per the terms and conditions of deputation. The official applied for discharge from APS on Completion of Initial Terms of Engagement (CITE) vide his application dated 22.02.2020 which was accepted by APS Records and the applicant was in the waiting list in the CITE register as Sl.No.02./2020 under 3.5.% PMR quota as per his seniority. P&T Adm Cell, a unit of Army Postal Service vide letter dated 02.07.2020 has processed the case of the applicant with Respondent No.3. Meanwhile, the applicant directly submitted a representation to parent department with a prayer to terminate his deputation and to recall him to parent department. Consequent to which a request was made by the 3rd Respondent to consider the request of the applicant, to which Respondent No.4 has 7 OA No.168/2022/CAT/BANGALORE BENCH replied that the applicant has already applied for discharge from duty and he will be repatriated as per his turn and the same was apprised to respondent No.3 vide letter dated 06.03.2021. As the Respondent No.2 has clarified that the applicant need not be repatriated on civil side for accepting the resignation, Respondent No.3 accepted/approved his unconditional resignation dated 13.07.2021 submitted by the applicant vide memo dated 11.11.2021(Annexure R2). APS Records issued necessary orders on 07.01.2022 pursuant to which the official was discharged locally from APS on 31.01.2022 vide movement order dated 28.01.2022. Due to some corrections, the said movement order was cancelled and fresh movement order dated 06.04.2022 was issued. The applicant deliberately submitted two separate request letters for withdrawal of resignation, one to Respondent No.5 and another one to Respondent No.3 without following the channel of communication, after issue of orders of discharge from APS by APS Record. Indeed the copy of the withdrawal resignation letter submitted to Respondent No.5 was received by the office of Respondent No.5 on 04.02.2022. As the applicant was discharged from APS on his resignation from 31.01.2022, the applicant attended office of the Respondent No.3 on 03.02.2022 and requested to allow him join duty. On clarification sought from the Respondent No.3, it was clarified by Respondent No.5 that he has been 8 OA No.168/2022/CAT/BANGALORE BENCH discharged from APS only on the basis of unconditional resignation from service and no application for withdrawal of resignation was received and the same cannot be considered at this stage, as he has already been relieved from APS with effect from 31.01.2022 on tendering of resignation from civil appointment. It was also further clarified that after repatriation on resignation, the applicant will not join the civil parent department. This decision of APS authorities was communicated to the applicant vide letter dated 09.03.2022 (Annexure A16) impugned herein. Justifying the action of the Respondent No.3 in rejecting the request of the withdrawal of resignation, learned Counsel sought for dismissal of the OA.
5. We have carefully considered the submissions of the learned Counsel for the parties and perused the material on record.
6. It is not in dispute that the applicant tendered his resignation on 13.07.2021 addressed to Respondent No.3 through APS, controlling authority. Respondent No.3 referred to Respondent No.2 seeking to clarify whether the applicant is to be repatriated to the civil side for acceptance of his resignation, to which Respondent No.2 vide letter dated 27.09.2021 clarified that the applicant need not be repatriated to the civil side for accepting the resignation. Hence, Respondent No.3 9 OA No.168/2022/CAT/BANGALORE BENCH accepted/approved his resignation dated 13.07.2021 to the post of Sorting Assistant vide memo dated 11.11.2021. As the applicant was not relieved, he made a request to Respondent No.4 to relieve him as per his letter dated 07.12.2021. Respondent No.5 issued repatriation order dated 07.01.2022 stating that the applicant would be repatriated with effect from 31.01.2022. As aforesaid, this Repatriation order has been issued pursuant to the letter dated 07.12.2021 (Annexure A7) submitted by the applicant before the Respondent No.5.
7. Pursuant to which, the applicant has submitted withdrawal of the resignation vide letter dated 21.01.2022 (Annexure A10) directly to the Respondent No.3, the appointing authority.
8. It is well settled that unless an employee is relieved of the duty, after acceptance of the resignation, jural relationship of the employee and the employer does not come to an end. The appointing authority is competent to accept the resignation and the memo dated 11.11.2021 issued by Respondent No.3 would indicate that the resignation submitted by the applicant was accepted. But the applicant was not relieved immediately though the acceptance letter was marked to the controlling authority. Jural relationship of the employer and the employee continued even after issuing memo of acceptance. In view of 10 OA No.168/2022/CAT/BANGALORE BENCH the repatriation order issued by the APS on 07.01.2022, wherein, Respondent No.5 has given the date effective from 31.01.2022, the applicant got an opportunity to change his mind to withdraw the resignation.
9. In the circumstances, the crucial question is, the subsequent communication dated 07.01.2022 issued by APS giving effective date as 31.01.2022 and since the letter of resignation was withdrawn on 21.01.2022 before that date, whether the resignation is validly withdrawn notwithstanding the acceptance of the resignation by the appointing authority-Respondent No.3 on 11.11.2021?
10. It is beneficial to refer to the judgment of Hon'ble Apex Court in the case of Raj Kumar Vs. Union of India reported in (1968) 3 SCR 857 which has been considered in Air India Express Ltd vs. Capt Gurudarshan Kaur Sandhu reported in (2019) 17 SCC 129, rendered in the context of the State Government recommending that the resignation of the IAS officer be accepted and the Government of India had requested the Chief Secretary of the State to intimate the date on which the appellant, therein, was relieved of his duties so that a formal notification could be issued. However, before the date could be intimated and formal notification could be issued, the officer withdrew 11 OA No.168/2022/CAT/BANGALORE BENCH his resignation by a letter. On an order of accepting his resignation issued, subsequently a challenge was raised and it was held by the Hon'ble Apex Court that there was indication in the correspondence between the parties that the resignation was not to become effective until the acceptance was intimated to the appellant, therein.
11. In Shambu Murari Sinha vs. Project & Development India Ltd & Anr reported in 2002 (3) SCC 437, the Hon'ble Apex Court has observed thus:
"It was pointed out in that case that the acceptance of voluntary retirement was not unconditional and before the conditions could be complied with, the employee could withdraw from the scheme. On those facts, the above observations were made. It is not necessary to consider whether in all cases, actual relief becomes the crucial date. However, the ratio of decision in Balram Gupta's case coupled with the observations of the Constitution Bench in Gopal Chandra Misra's case (underlined above) could usefully applied to the present case.
Coming to the case in hand the letter of acceptance was a conditional one inasmuch as though option of the appellant for the voluntary retirement under the scheme was accepted but it was stated that the 'release memo along with detailed particulars would follow'. Before the appellant was actually released from the service, he withdrew his option for voluntary retirement by 12 OA No.168/2022/CAT/BANGALORE BENCH sending two letters dated August 07, 1997 and September 24, 1997, but there was no response from the respondent. By office memorandum dated 25th September, 1997, the appellant was released from the service and that too from the next day. It is not disputed that the appellant was paid his salaries etc. till his date of actual release i.e. 26 September, 1997, and, therefore, the jural relationship of employee and employer between the appellant and the respondents did not come to an end on the date of acceptance of the voluntary retirement and said relationship continued till 26th of September, 1997. The appellant admittedly sent two letters withdrawing his voluntary retirement before his actual date of release from service. Therefore, in view of the settled position of the law and the terms of the letter of acceptance, the appellant had locus poenitentiae to withdraw his proposal for voluntary retirement before the relationship of employer and employee came to an end."
Before coming to this conclusion, the Hon'ble Apex Court has referred to the judgment of Balram Gupta vs. Union of India and Anr. reported in (1987) Supp. SCC 228. In Balram Gupta supra, the principle laid down in Union of India vs. Gopal Chandra Misra reported in 1978 (2) SCC 301 has been summarised as under:
""A complete and effective act of resigning office is one which severs the link of the resignor with his office and terminates his tenure."13 OA No.168/2022/CAT/BANGALORE BENCH
12. The Hon'ble Apex Court in J.N.Srivastava vs. Union of India reported in (1998) 9 SCC 559, has held as under:
"It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement."
13. In the light of the aforesaid judgments, withdrawal of resignation by the applicant on 21.01.2022 before giving effect to the resignation i.e., on 31.01.2022 as stipulated in the communication dated 07.01.2022 issued by APS cannot be held to be unjustifiable. Merely, for the reason that the withdrawal of the resignation dated 21.01.2022 was marked separately to the appointing authority, Respondent No.3 and the APS, Controlling Authority separately, it cannot be held that the applicant is estopped from seeking withdrawal of resignation, specifically when the copy of the acceptance order of Respondent No.3 i.e., dated 11.11.2021 was marked to APS as well. Despite the same, the letter dated 07.01.2022 was issued by APS giving effective date for relieving as 31.01.2022. Thus in the circumstances, the applicant had locus poenitentiae to withdraw his proposal for resignation before the relationship of employer and employee came to an end. 14 OA No.168/2022/CAT/BANGALORE BENCH
14. OM dated 10.06.2019 issued by the DOPT specified the conditions whereby the appointing authority may permit a person to withdraw his resignation in public interest and the same reads thus:
"2. The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely;
(a) that the resignation was tendered by the Government Servant for some compelling reasons which did not involve any reflection on his integrity , efficiency, or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation;
(b) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper;
(c) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days;
(d) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available."15 OA No.168/2022/CAT/BANGALORE BENCH
In our considered view, this OM would not come to the assistance of the respondents to reject the withdrawal of resignation by the applicant. The applicant's conduct cannot be considered as a tactic adopted to get the repatriation order to the parent department since on withdrawal of his resignation, status as on the date of his resignation has to be maintained.
15. We therefore, hold that the impugned order dated 09.03.2022 (Annexure A16) issued by the Respondent No.3 rejecting the withdrawal of resignation is unsustainable and is liable to be set aside. Ordered accordingly. The applicant shall be entitled to rejoin his duty at the place where he was working while tendering resignation and all the consequential benefits shall follow except arrears of salary for the period he did not work.
16. Resultantly, OA stands allowed to the extent indicated above. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.
16 OA No.168/2022/CAT/BANGALORE BENCH