Karnataka High Court
Shantha Kumar B vs The Manager (Hr)-Erm on 12 January, 2021
Equivalent citations: AIRONLINE 2021 KAR 1989
Author: M.Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.45133/2014 (S - RES)
BETWEEN
SHANTHA KUMAR B.,
S/O (LATE) C.D.BHOOPAL,
AGED ABOUT 56 YEARS,
EX. SENIOR MANAGER (STORES) GRADE-V,
STORES DEPARTMENT,
AIRCRAFT RESEARCH & DESIGN CENTRE,
DESIGN COMPLEX, HAL,
BENGALURU - 560 037
RESIDENT OF NO.20,
MAIGUNDA DEVA MUDALIAR ROAD,
FRAZER TOWN,
BENGALURU - 560 005.
... PETITIONER
(BY SRI V.S.NAIK, ADVOCATE (VIDEO CONFERENCING))
AND
THE MANAGER (HR)-ERM
HINDUSTAN AERONAUTICS LIMITED,
AIRCRAFT RESEARCH & DESIGN CENTRE,
MARATHAHALLI POST,
BENGALURU - 560 037.
... RESPONDENT
(BY SRI N.S.NARASIMHA SWAMY, ADVOCATE (VIDEO
CONFERENCING))
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RELEVANT RECORDS FROM THE RESPONDENT AND ON PERUSAL;
QUASH THE IMPUGNED LETTER DATED 11.7.2014 VIDE ANN-D,
AND LETTER DATED 23.8.2014 VIDE ANN-K ISSUED BY THE
RESPONDENT, AS ARBITRARY, DISCRIMINATORY AND VOID FOR
THE REASONS STATED IN THE APPLICATION, WHILE DIRECTING
THE RESPONDENT TO REINSTATE THE PETITIONER WITH ALL
CONSEQUENTIAL BENEFITS SUCH AS SERVICE, SENIORITY AND
PAY AND ALLOWANCES ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner in this writ petition has called in question the orders dated 11.7.2014 and 23.08.2014 by which the petitioner was relieved from his services on acceptance of resignation given by him.
2. Brief facts leading to filing of the present writ petition are that:
Petitioner was appointed as an Assistant Engineer Grade-
I with effect from 31.5.1988 and was confirmed in services of 3 the respondent - Hindustan Aeronautics Ltd., (hereinafter referred to as 'the HAL' for short) on 27.6.1989 and was further promoted as Deputy Manager Grade-III and at the relevant point of time, was working as Senior Manager in the HAL. It transpires that due to personal and medical problems, the petitioner submitted his resignation on 23.05.2014 and before the acceptance of resignation submitted a representation on 10.7.2014 withdrawing the resignation that was submitted by him on 23.05.2014 after which, the respondent claims that they have considered the application for resignation and have accepted the same. On such acceptance, relieved the petitioner from services with effect from 23.08.2014. It is these orders of acceptance of resignation on 11.7.2014 and relieving the petitioner from service on 23.08.2014 that are called in question in the writ petition.4
3. Heard Sri.V.S.Naik, learned counsel appearing for petitioner and Sri.N.S.Narasimha Swamy, learned counsel appearing for respondent.
4. Sri.V.S.Naik, learned counsel appearing for petitioner would submit that the petitioner, though submitted his resignation on 23.5.2014, before it was accepted had withdrawn the said resignation on 10.07.2014, but the respondent has accepted the resignation on 11.7.2014.
Therefore, the learned counsel for petitioner submits that the act of the respondent in relieving the petitioner on acceptance of resignation notwithstanding the fact that the resignation submitted was withdrawn is illegal and highhanded.
5. On the other hand, Sri.N.S.Narasimha Swamy, learned counsel appearing for respondent would vehemently argue and contend that it was the act of the petitioner himself that he submitted his resignation and gave an intended date 5 of getting relieved from the respondent i.e., on 23.8.2014 which would be three months from the date of submission of resignation. He would further contend that pursuant to the submission of resignation petitioner was formally called and also counselled as to why he would want to leave the organization on such resignation and the petitioner did accept stating that he had to resign owning to his health problems. It is only after such counseling, the petitioner was relieved from services.
6. Learned counsel for the respondent would submit that the letter dated 10.07.2014 by which the petitioner claims to have withdrawn the resignation was never served upon them and they would disown that letter and prays that the writ petition be dismissed.
7. I have given my anxious consideration to the submission made by the learned counsel for the parties and perused the material on record.
68. The chain of events are as follows:
Petitioner submitted his resignation on 23.05.2014. The letter of resignation reads as follows:
"I request you to kindly consider this as my formal resignation from my current post from 23-05-14 to 23-8-14 as per rules.
I am resigning due to personal and medical reasons.
Kindly relieve me of my responsibilities at the earliest and oblige."
Subsequently, by a letter dated 10.07.2014 he withdrew his resignation. The contents of the withdrawal letter reads as follows:
"I had considerable serious personal and domestic problems in my family. I was in a state of shock due to which I was suffering from depression, I was unable to think properly.
Due to the above reasons I had submitted my resignation on 23/05/2014. Slowly my 7 problems are getting solved and I am able to think properly. Hence I would like to withdraw my resignation letter written to AGM(HR) ARDC HAL, on 23/05/2014.
Kindly consider my resignation as
withdrawn since this was written under
depression with immediate effect."
The letter of withdrawal of resignation contains a shara at the bottom which reads as follows:
"R.I.O To: Sh.SHANTHKUMAR 5462/66851-43 REGRETTED AS YOUR RESIGNATION HAS BEEN ACCEPTED BY THE COMPETENT AUTHORITY VIDE D/A/HR-ARDC-37/284/2014 Dtd. JULY 11, 2014."
It is after receipt of the letter dated 10.07.2014, the respondent accepted the resignation of the petitioner on 11.07.2014 and directed that he would be relieved from 8 services as was sought by him in the letter of resignation dated 23.05.2014 with effect from 23.08.2014. After receipt of the said letter, the petitioner again gave a representation on 15.07.2014 reporting that he had given a letter on 10.7.2014 and since the respondent claimed that they have not received the said letter, another letter of withdrawal of resignation was given. The said letter of withdrawal of resignation reads as follows:
"Reference is made to your letter D/A/HR- ARDC-37/2284/2014 Dt:11/07/2014 regarding acceptance of my resignation.
I had written a letter dated 10/07/2014, but it had not reached you in time regarding withdrawal of my resignation.
As I was in a deep depression due to financial problems and my health problems for which I am under treatment at HAL Hospital under Dr. Suhas Chakravarthy since from past several years, I was forced personally to resign from my service.9
Further, as I am the sole earning member in my family, and after some thought I was well prepared to withdraw my resignation for the goodwill of myself as well as my family in the future.
Hence, I request you to kindly take back the acceptance of my resignation and give me another chance to serve this company.
Awaiting for your favorable reply.
Thanking you,"
9. Despite these letters an order was passed on 17.7.2014 again reporting acceptance of resignation and directed that the petitioner would be relieved from 23.08.2014 and on 23.08.2014 when the petitioner was sought to be relieved, the petitioner accepted the order of relief dated 23.08.2014 under protest. The letter of the petitioner on the date of relief i.e., 23.08.2014 reads as follows:
"Sir, Though I have withdrawn my resignation letter before acceptance of my resignation and the 10 relieving order which I am receiving under protest and will seek legal remedy.
Thanking you, Sd/-
SHANTHA KUMAR B., SR. MANAGRE STORES, 5462/66851-43."
If the afore-extracted contents of the documents are noted, it become unmistakably clear that the petitioner had given his resignation on 23.05.2014 and withdrew the same on 10.07.2014. Even if the Management contends that the letter was not received by them, the Management had all along kept quiet on the resignation and immediately accepted the resignation on 11.07.2014 the very next day that the petitioner gives the representation withdrawing his resignation.
10. The petitioner reiterates his withdrawal on 15.07.2014 and acceptance of relieving order under protest.
All these would clearly indicate that the petitioner intended 11 and did withdraw the letter of resignation dated 23.05.2014.
The version of the respondent with regard to the petitioner being counselled by the respondent on the reason for resignation as clearly indicated in the letter at Annexure R2 is of no avail as the intended date of relieving the petitioner was 23.08.2014.
11. It is settled principle of law that an employee who submits his resignation has locus poenitentiae to withdraw the resignation on a rethought before the intended date of his relief from the services. The law in this regard is notwithstanding the acceptance, the employee who resigns has a right to withdraw the resignation before he is relieved or the intended date of being relieved in terms of the order of acceptance of resignation.
12. The line of law laid down by the Apex Court in identical circumstances has been that acceptance of resignation after its withdrawal by an employee and 12 consequently relieving him would be contrary to law. The Apex Court in the case of SRIKANTHA S.M. vs. BHARATH EARTH MOVERS LIMITED reported in (2005) 8 SCC 314, considering the entire spectrum of law concerning resignation/voluntary retirement and its withdrawal has held as follows:
"12. Now, let us consider the controversy on merits. The term "resignation" has not been defined in the Service Rules. According to the dictionary meaning, however, "resignation"
means spontaneous relinquishment of one's own right. It is conveyed by the Latin maxim Resignatio est juris propii spontanea refutatio (Resignation is a spontaneous relinquishment of one's own right.) In relation to an office, resignation connotes the act of giving up or relinquishing the office. "To relinquish an office" means "to cease to hold the office" or "to leave the job" or "to leave the position". "To cease to hold office" or "to lose hold of the office" implies to "detach", 13 "unfasten", "undo" or "untie" "the binding knot or link" which holds one to the office and the obligations and privileges that go with it.
13. In Union of India v. Gopal Chandra Misra [(1978) 2 SCC 301 : 1978 SCC (L&S) 303 : (1978) 3 SCR 12] this Court held that a complete and effective act of resigning an office is one which severs the link of the resignor with his office and terminates its tenure.
14. In Balram Gupta v. Union of India [1987 Supp SCC 228 : 1988 SCC (L&S) 126 : (1987) 5 ATC 246] this Court reiterated the principle in Gopal Chandra Misra [(1978) 2 SCC 301 : 1978 SCC (L&S) 303 : (1978) 3 SCR 12] and ruled that though that case related to resignation by a Judge of the High Court, the general rule equally applied to government servants.
15. The learned counsel for the parties drew our attention to some of the decisions of this Court on the point. In Punjab National 14 Bank v. P.K. Mittal [1989 Supp (2) SCC 175 :
1990 SCC (L&S) 143 : (1990) 12 ATC 683] an employee resigned from service of the Bank by a communication dated 21-1-1986. It was to be effective from 30-6-1986. The Deputy General Manager who was the competent authority under the Service Regulations, accepted the resignation as per the letter of resignation i.e. with effect from 30-6-1986. The employee, however, received a letter from the Bank on 7-2-1986 informing him that his resignation letter had been accepted by the competent authority with immediate effect and consequently he was being relieved from the service of the Bank with effect from that day i.e. from 7-2-1986. The employee, therefore, filed a petition challenging the validity of the purported acceptance of his resignation with effect from 7-2-1986 and for a direction to the Bank to treat him in service up to 30-6-1986 by granting all consequential benefits. The matter, however, did not end there. On 15-4- 1986, the employee addressed a letter to the Bank purporting to withdraw his resignation 15 letter dated 21-1-1986. The question which came up for consideration was as to whether the subsequent development could be taken into account and whether the employee continued in service in view of the withdrawal of resignation dated 15-4-1986. Accepting the contention of the employee that he continued in service, the Court held that his resignation could take effect from 30-6-1986 or on expiry of three months' period provided in the Service Regulations and before that period he could withdraw the resignation. Since he had withdrawn the resignation before 30-6-1986, he continued to remain in service with the Bank.
16. It was urged on behalf of the Bank that Regulation 20(2) provided for notice to protect the interest only of the employer (Bank) and to enable it to make other arrangements in the place of the resigning employee. The proviso to clause (2) enabled the Bank to reduce the notice period to less than three months and as 16 such it was not obligatory for the Bank to wait till the notice period would expire.
17. This Court, however, did not agree with the interpretation. Dealing with the object underlying such provision as giving opportunity to both, the employer as well as the employee, the Court stated: (SCC pp. 179-80, para 7) "We are of the opinion that clause (2) of the regulation and its proviso are intended not only for the protection of the bank but also for the benefit of the employee. It is common knowledge that a person proposing to resign often wavers in his decision and even in a case where he has taken a firm decision to resign, he may not be ready to go out immediately. In most cases he would need a period of adjustment and hence like to defer the actual date of relief from duties for a few months for various personal reasons. Equally an employer may like to have time to make some alternative arrangement before relieving the resigning employee. Clause (2) is carefully 17 worded keeping both these requirements in mind. It gives the employee a period of adjustment and rethinking. It also enables the bank to have some time to arrange its affairs, with the liberty, in an appropriate case, to accept the resignation of an employee even without the requisite notice if he so desires it. The proviso in our opinion should not be interpreted as enabling a bank to thrust a resignation on an employee with effect from a date different from the one on which he can make his resignation effective under the terms of the regulation. We, therefore, agree with the High Court that in the present case the resignation of the employee could have become effective only on or about 21-4-1986 or on 30-6-1986 and that the bank could not have 'accepted' that resignation on any earlier date. The letter dated 7-2-1986 was, therefore, without jurisdiction."
(emphasis supplied)
18. In Balram Gupta [1987 Supp SCC 228 : 1988 SCC (L&S) 126 : (1987) 5 ATC 246] referred to above, the employee withdrew his 18 notice of voluntary retirement on account of persistent and personal requests from the staff members. But the prayer for withdrawal was not allowed by the employer on the ground that it had already been accepted by the Government. Moreover, Rule 48-A(4) of the Central Civil Services (Pension) Rules, 1972 precluded the government servant from withdrawing his notice except with specific approval of the appointing authority.
19. Deprecating the stand taken by the Government, this Court held that it was not proper for the Government not to accede to the request of the employee. "In the modern age we should not put embargo upon people's choice or freedom",-- stated the Court (SCC pp. 235-36, para 12).
20. The Court added: (SCC p. 236, para
13):
"In the modern and uncertain age it is very difficult to arrange one's future with any amount of certainty; a certain amount of 19 flexibility is required, and if such flexibility does not jeopardise Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful attitude. The court cannot but condemn circuitous ways 'to ease out' uncomfortable employees. As a model employer the Government must conduct itself with high probity and candour with its employees."
21. In Power Finance Corpn. Ltd. v. Pramod Kumar Bhatia [(1997) 4 SCC 280 : 1997 SCC (L&S) 941] a workman applied for voluntary retirement pursuant to the scheme framed by the Corporation to relieve surplus staff. The Corporation vide an order dated 20-12-1994 accepted voluntary retirement of the workman with effect from 31-12-1994 subject to certain conditions. Subsequently, however, the 20 Corporation withdrew the scheme. It was held that the order dated 20-12-1994 was conditional and unless the employee was relieved from the duty on the fulfilment of those conditions, the order of voluntary retirement did not become effective. The employee, therefore, could not assert that the voluntary retirement was effective and claim benefits on that basis.
22. The Court said: (SCC p. 282, para 7):
"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 relationship 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 21 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 right to withdraw the scheme subsequently."
(emphasis supplied)
23. In J.N. Srivastava v. Union of India [(1998) 9 SCC 559 : 1998 SCC (L&S) 1251] a notice of voluntary retirement was given by an employee on 3-10-1989 which was to come into effect from 31-1-1990. The notice was accepted by the Government on 2-11-1989 but the employee withdrew the notice vide his letter dated 11-12-1989. It was held that withdrawal was permissible though it was accepted by the Government, since it was to be made effective from 31-1-1990 and before that date it was withdrawn.
24. In Shambhu Murari Sinha v. Project and Development India [(2000) 5 SCC 621 :
2000 SCC (L&S) 741] (Shambhu Murari Sinha 22 I) an application for voluntary retirement of an employee dated 18-10-1995 was accepted by the employer vide letter dated 30-7-1997 with further intimation that "release memo along with detailed particulars will follow". The workman was actually relieved on 26-9-1997.
In the meanwhile, however, by a letter dated 7-8-1997, he withdrew the application dated 18-10-1995, by which he sought voluntary retirement. It was held that the effective date of voluntary retirement was 26-9-1997 and before that date it was permissible for the workman to withdraw his retirement. The appellant was, therefore, held entitled to remain in service.
25. In Shambhu Murari Sinha v. Project and Development India Ltd. [(2002) 3 SCC 437 : 2002 SCC (L&S) 444] (Shambhu Murari Sinha II), the view taken in Shambhu Murari Sinha I [(2000) 5 SCC 621 : 2000 SCC (L&S) 741] was reiterated. It was held that when voluntary retirement was withdrawn by an employee, he continued to remain in service. The relationship 23 of employer and employee did not come to an end and the employee had locus penitentiae to withdraw his proposal for voluntary retirement. He was, therefore, entitled to rejoin duty and the Corporation was bound to allow him to work."
If the facts obtaining in the case on hand is considered on the bedrock of the law laid down by the Apex Court in the afore-extracted judgment, it would be clear that the petitioner was entitled to withdraw his resignation before its acceptance and relieving the petitioner on its acceptance becomes contrary to law and would stand vitiated and the petitioner would be entitled to reinstated into service.
13. This Court in W.P.No.40211/2018 disposed on 23.10.2020 following the law laid down by the Apex Court as extracted herein, has allowed the writ petition on similar set of facts and the same is affirmed by the order of the Division Bench in W.A.No.612/2020 disposed on 21.12.2020. For the 24 foregoing reasons, the writ petition deserves to be allowed and the impugned orders are to be quashed.
14. The issue now remains is with regard to the benefits that the petitioner would be entitled to, in the light of quashing of the impugned orders. The petitioner was out of service and has also accepted his gratuity pursuant to his cessation of service on account of resignation without any demur. Therefore, in the peculiar facts and circumstances of the case, I deem it appropriate to restrict the arrears of salary that the petitioner would be entitled to, to 50% and count the service between the date 23.08.2014 till he attained the age of superannuation i.e., 2018 as service for all other terminal benefits. Therefore, the following:
ORDER
(i) Writ petition is allowed.
(ii) Impugned orders bearing No.D/A/HR-ARDC 37/2284/2014 dated 11.07.2014 and bearing No. 25 D/A/ARDC/RESIGN/2789/2014 dated 23.08.2014 are quashed.
(iii) Petitioner is held entitled for reinstatement into service, notionally, as the petitioner has retired on attaining the age of superannuation in 2018.
(iv) The petitioner shall be entitled to 50% backwages.
The period between 23.08.2014 and the date of retirement shall be counted as service for the purpose of all other terminal benefits and other consequential reliefs which shall be determined and paid within four months from the date of receipt of a copy of the order.
Sd/-
JUDGE bkp CT:MJ