Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through Ministry Of Human ... on 18 December, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(Reserved on 06.11.2015)
OA No. 061/00065/2014 Date of decision-18.12.2015
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MR. UDAY KUMAR VARMA, MEMBER (A)
Sh. Daya Krishan Kotwal, aged 60 years S/o Late Sh. Raghu Nath Kotwal R/o Village Maralia Road, Miran Sahib, Jammu.
APPLICANT
BY ADVOCATE : Sh. O.P. Thakur, Advocate along with Sh. R.K.S
Thakur, Advocate
VERSUS
1. Union of India through Ministry of Human Resource Development, Department of School Education and Literacy, New Delhi.
2. Commissioner, Navodaya Vidyalaya Samithi, B-15 Institutional Area, Sector 62, Noida-201307(UP).
3. Joint Commissioner, Navodaya Vidyalaya samithi, B-15, Institutional Area, Sector 62 Noida-201307 (UP)
4. Dy. Commissioner, Regional Office, Bay No. 26-27, Sector 31-A, Chandigarh.
5. Sh. B.Singh, Retd. Dy. Commissioner (NVS) H.No. 1 Sant Shiv Nath Nagar, Anadlok Calony Chinhat, Lucknow (UP).
RESPONDENTS
BY ADVOCATE: Sh. D.R. Sharma.
ORDER
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J):-
The applicant has invoked the jurisdiction of this Tribunal under Section 19 of the Central Administrative Tribunal, Act 1985 to invalidate the memorandum dated 17.07.2014 issued under rule 14 of Central Civil Service (Classification, Control and Appeal) Rules 1965 and subsequent action thereupon by appointing the inquiry officer and presenting officer vide communication dated 05.09.2014 for looking into the charges leveled against him. He has further sought issuance of direction to release all the retiral benefits along with 18% interest.
2. The facts which led to filing of the present O.A are that the applicant entered into service as Teacher in Education Department of State of Jammu and Kashmir on 01.03.1977. Thereafter, he joined Navodaya Vidyalaya School (in short NVS) as Trained Graduate Teacher (TGT for short) on deputation basis and was posted in Jawahar Navodaya Vidyalaya (for short JNV), Doda. He joined the JNV on 28.11.1986 where he was permanently absorbed as TGT w.e.f. 01.05.1989. He was given promotion as Post Graduate Teacher (Lecturer) by respondent. He was promoted as Vice Principal vide officer order dated 02.07.2013 and posted at JNV Chamba. Subsequently, above order was modified and he was posted at JNV Samba (J&K). He was given additional charge of Principal as the post was lying vacant in JNV Doda. The applicant was due to retire on superannuation on 31.07.2014 but before that he submitted one months notice on 27.01.2014 to respondent no. 4 for resigning from the post which was subsequently followed by a formal resignation on 14/25-02-2014. It is the case of the applicant that as per the direction by respondent no. 4, the applicant handed over the charge to one Sh. S.K. Sharma, senior most teacher on 28.02.2014. When the applicant requested the respondents department to release the retiral benefits, he was informed vide communication dated 13.03.2014 that the higher officer has directed the concerned quarter not to release the retiral benefits to the applicant till further orders. On 17.07.2014, a memorandum was served under Rule 14 of the CCS (CCA) Rules 1965 on the premise that the applicant took the employment as Principal in a school under DPS society at Kathua without proper authorization of Competent Authority and had relinquished the charge of post to Sh. S.K. Sharma without having an approval from the competent authority to which the applicant submitted a reply dated 01.08.2014 to respondent no. 3. Thereafter, the respondents vide impugned order have appointed the Inquiry Officer and Presenting Officer to look into the charges levelled against the applicant. Hence the present O.A.
3. In support of the above, Sh. O.P. Thakur, learned counsel for the applicant vehemently argued that once the applicant had already served one months notice showing his intention to relinquish the charge on 28.02.2014, then the respondent at this stage could not initiate department proceedings against him on the ground that he had already relinquished the charge without approval of the competent authority. He further submitted that since respondent no. 4 telephonically allowed him to hand over the charge to senior most teacher of NVS, therefore, he handed over the same to the senior most person and only then left the job. Therefore, no fault can be found in the action of the applicant. Thus, he prayed that impugned order may be quashed and set aside and the respondents may be directed to release all the retiral benefits.
4. The respondents have contested the claim of the applicant by filing a detailed written statement wherein they have submitted that without waiting for approval of the competent authority for acceptance of his resignation, he himself relinquished the charge by handing over the same to the senior most person. They have also submitted that though the applicant submitted the resignation by giving one months notice but the same was not accepted by the authority. Thus, it cannot be said from any angle that resignation was accepted by the competent authority. It is only in this regard the respondents have decided to initiate the departmental proceeding vide memorandum dated 17.07.2014. To buttress their submission, reliance has been placed upon various judicial pronouncements to the effect that resignation takes effect from the date when it is accepted by the competent authority. Since in the case in hand, resignation had not been accepted by competent authority, therefore, it cannot be said that it was accepted and the applicant was allowed to relinquish the charge.
5. Sh. D.R. Sharma, learned counsel for the respondents submitted that merely on asking of respondent no. 4, who is not competent to do so does not give him right to relinquish the charge without acceptance of his resignation which has given them right to initiate action against the applicant as respondent no. 4 is not competent authority to grant any approval qua resignation.
6. We have given our thoughtful consideration to the entire matter and have perused the pleadings available on record with the able assistance of the learned counsel for the parties.
7. The short question that arises for our consideration is as to when the resignation is said to have taken effect from. In this regard Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training issued various instructions on the subject. The latest instruction dated 11.02.1988 on subject deals with the issue and it is clarified that resignation is said to be accepted when same is accepted by the Competent Authority and a person cannot relinquish the charge unless his/her resignation is accepted by the competent authority and incumbent is relieved of from duty. The relevant part of the instruction reads as under:-
3. A resignation becomes effective when it is accepted and the Government servant is relieved of his duties. If a Government servant who had submitted a resignation, sends an intimation in writing to the appointing authority withdrawing his earlier letter of resignation before its acceptance by the appointing authority, the resignation will be deemed to have been automatically withdrawn and there is no question of accepting the resignation. In case, however, the resignation had been accepted by the appointing authority and the Government servant is to be relieved from a future date, if any request for withdrawing the resignation is made by the Government servant before he is actually relieved of his duties, the normal principle should be to allowed the request of the Government servant to withdraw the resignation. If however, the request for withdrawal is to be refused, the grounds for the rejection of the request should be duly recorded by the appointing authority and suitably intimated to the Government Servant concerned. Perusal of clause 3 of the above instructions makes it clear that resignation is said to be accepted only by the competent authority and it is thereafter, that a person can be said to be relieved from the charge.
8. Similar point came up for consideration before the Honble Supreme Court in case of Motiram Vs. Param Dev & Anr. ; 1993 AIR 1662 wherein in para 15 their Lordships have recorded their findings which read as under:-
15. As pointed out by this court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. (See : Union of India v. Shri Gopal Chandra Misra & Ors., [1978] 3 SCR 12 at p. 21). If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in prasenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or' bilateral in character would depend upon the nature of the office and conditions governing it.
9. In the above referred case, the Honble Apex Court has held that under the Constitution of India there are various offices which can be relinquished by unilateral act of the holder of the office and acceptance of resignation is not required, e.g., President [Article 56(a)].Vice-President [Article 67(a)], Deputy Chairman of Rajya Sabha [Article 90(b)], Speaker and Deputy Speaker of Lok Sabha [Article 94(b)], Judge of the Supreme Court [Article 124(2)(a)], Judge of a High Court [Article 217 (1)(a)]. However, in the opinion of the Apex Court, the Contract of employment stands at a different footing. The Honble Apex Court held at para 17 as under:-
17. A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer. Insofar as Government employees are concerned, there are specific provisions in the Service rules which require acceptance of the resignation before it becomes effective. In Raj Kumar v. Union of India, [1968] 3 SCR 857, it has been held "But when a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be (,pen to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus paenitentiae but not thereafter".
10. Similarly, in Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. 1986 AIR 1571 which related to an employee of a Government company jointly and wholly owned by the Central Government and two State Governments, it was observed:-
"A resignation by an employee would, however, normally require to be accepted by the employer in order to be effective. It can be that in certain circumstances an employer would be justified in refusing to accept the employee's resignation as, for instance, when an employee wants to leave in the middle of a work which is urgent or .important and for the completion of which his presence and participation a necessary. An employer can also refuse to accept the resignation when there is a disciplinary inquiry pending against the employee. In such a case, to permit an employee to resign would be to allow him to go away from the service and escape the consequences of an adverse finding against him in such an inquiry. There can also be other grounds on which an employer would be justified in not accepting the resignation of an employee".
11. In Power Finance Corporation Ltd. Vs. Promod Kumar Bhatia, 1997 (4) SCC 280 the Honble Apex Court observed as under:-
7. It is now settled legal position that unless the employee is relieved of the duty after acceptance of the officer of resignation/voluntary retirement, jural relationship of the employee and the employer does not come to an end.
12. The underline theme of instruction and judicial pronouncement, as interpreted by the Honble Supreme court, leaves us with only conclusion that resignation will take effect from the date when it is accepted by the competent authority and only then an employee can relinquish the charge of a post. We are in agreement with the submissions made by the respondents that the applicant, without waiting for the order to be passed by the competent authority, has relinquished the charge on his own merely on the instruction of respondent no. 4, who though has denied the fact. He cannot permit relinquishing of the charge as he was not competent to do so. Be that as it may, it is clear from the record that his resignation was never accepted by the authority who is competent to do so under the Rule formulation. Despite opportunity, the applicant has not shown any documentation to the effect that his resignation was ever accepted by the Competence Authority. In absence of any order by the competent authority, resignation cannot be said to have been accepted in case of the applicant. Thus, we do not find any fault in initiating departmental proceedings against the applicant. Accordingly, O.A is dismissed being devoid of merit.
13. No costs.
(UDAY KUMAR VARMA) (SANJEEV KAUSHIK)
MEMBER (A) MEMBER (J)
Dated: 18.12.2015
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OA No. 061/00065/2014
(Daya Krishan Kotwal Vs. UOI & Ors.)