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Union Of India And Another v. Sanohar And Another - WRIT - A No. 19331 of 2003  RD-AH 132 (5 May 2003)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 19331 Of 2003
Union of India & Anr. ----- Petitioners
Sanohar & Anr. ----- Respondents
Hon'ble Ghanshyam Dass, J.
(By Hon'ble Dr. B.S.Chauhan, J.)
This writ petition has been filed against the judgment and order of the Central Administrative Tribunal, Allahabad, dated 29th January, 2003, by which the claim of the respondent no. 1 has been accepted and the order of acceptance of his application for voluntary retirement has been quashed.
Facts are not in dispute. Respondent No.1 employee, made an application on 8.6.2000 for voluntary retirement w.e.f. 20.6.2000. It was accepted by the authorities on 13th June, 2000. However prior to 20th June, 2000, application for withdrawal was filed and it was received by the petitioner employer, but the said application was rejected vide order dated 24th June, 2000. Feeling aggrieved he filed an application before the Tribunal on 30th September, 2000 which has been accepted. Hence this petition.
Learned counsel for the petitioner has submitted that once the application for voluntary retirement has been filed and an order of its acceptance had been passed there was no occasion for the employee respondent no. 1, to withdraw the same and the application for withdrawal was rightly rejected by the competent authorities and there was no occasion for learned Tribunal to interfere with the said order. Hence the petition deserves to be allowed.
On the contrary, Shri Kamlesh Kumar Tewari, learned counsel appearing for the respondent no. 1 has submitted that if the retirement was to be effective with a prospective date the applicant has a right to withdraw prior to the said order of acceptance becomes effective. Thus, no fault can be found with the impugned judgment and order and petition is liable to be dismissed.
We have considered the rival submissions made by the learned counsel for the parties and perused the record.
The issue involved herein is no more res integra and it has been considered by the Hon'ble Supreme Court time and again. In Jai Ram Vs. Union of India & ors., AIR 1954 SC 584, the Apex Court considered the case of self-seeking retirement of an employee under the Fundamental Rules and held as under:-
"It may be conceded that it is open to a servant, who has expressed a 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; but he can be allowed to do so as long as he continues in service and not after he has been terminated."
In Raj Kumar Vs. Union of India & ors., AIR 1969 SC 180, the Apex Court considered the case of resignation tendered by a member of Indian Administrative Service on 21-8-64. His case for acceptance of resignation was recommended by the State Government and the Government of India accepted his resignation vide order dated 31-12-64 but asked the Chief Secretary to the Government of Rajasthan "to intimate the date on which the (employee) was relieved of his duties so that a formal notification can be issued in that behalf." The officer filed an application on 27-11-64 to withdraw his resignation. However, vide order dated 29-3-65, he was directed to be relieved. When he approached this Court for quashing the order dated 29-3-65 and also the order dated 31-10-64, the Court rejected his case holding that till the resignation was accepted by the Authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter. The resignation became effective on the date of its acceptance by the Government of India and a subsequent withdrawal of the resignation was ineffective even if acceptance of the resignation was not intimated to him. The Court held as under:-
"The letters written by the appellant on 21-8-64 and 30-8-64 did not indicate that the resignation was not to become effective until acceptance thereof was intimated to the appellant. The appellant informed the Authorities of the State of Rajasthan that his resignation may be forwarded for early acceptance. On the plain terms of the letters, the resignation was to become effective as soon as it was accepted by the appointing authority."
The Apex Court further held that there may be some executive instructions dealing with the subject, having no statutory force, but the same cannot come to the rescue of either side in such a case; however, not passing any order on the application for resignation for a long period, may justify an inference that the resignation has not been accepted.
The Constitution Bench of the Hon'ble Supreme Court, in Union of India Vs. Gopal Chandra Misra & ors., AIR 1978 SC 694, dealt with the case of resignation by a Sitting Judge of Allahabad High Court to become effective from a future date. The majority view reads as under:-
"It will be repetition that the 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 resign or...... If he chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can, at any time before arrival of prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal."
In P. Kasilingam Vs. P.S.G. College of Technology, AIR 1981 SC 789, the Apex Court approved the law laid down in the cases of Raj Kumar & Gopal Chandra Misra (supra), but did not decide as to whether resignation tendered and accepted immediately thereafter on 19-3-1976, could be withdrawn on a subsequent date as the employee- a teacher- was directed to be relieved with a future date considering the interest of the students and the dominant issue remained as to whether the resignation, in the facts and circumstances of the case, had been tendered voluntarily an in view thereof, the matter was remanded to the Government to decide afresh on certain points.
In Central Inland Water Transport Corporation Ltd. Vs. Brojonath Ganguli, AIR 1986 SC 1571, the Hon'ble Supreme Court observed that if an employee is not permitted by terms of his contract of employment to determine the relationship of master and servant, such an employment may tantamount to practicing bounded labour. The Court held as under:-
"By entering upon a contract of employment, a person does not sign a bond of salary and a permanent employee cannot the deprived of his right to resign. A resignation by an employee would, however, normally require to be accepted by the employer in order to be effective."
The Court further held that in certain circumstances, the employer may be justified in not accepting the resignation if the employee wants to leave in middle of the work which is of an urgent nature or very important and for the completion of which his participation is necessary. Resignation may also not be accepted if an employee wants to escape the consequences of an adverse finding against him in a domestic enquiry.
In Balram Gupta Vs. Union of India & Anr., AIR 1987 SC 2354, the Hon'ble Apex Court considered the case where rules required that withdrawal of resignation may be subject to the approval of the Authority. The Court also considered the guidelines, on the basis of which the Competent Authority could consider the application for withdrawal which, inter alia, contained condition that there must be a material change in the circumstances, in consideration of which a notice was originally given. The Court held that in ordinary circumstances, there should be no embargo on employee's choice or freedom not to continue in employment. "If, however, the administration had made arrangement acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter, but the employee's offer to retire or withdraw" should not be in quick succession. The withdrawal should not adversely affect the administrative set-up or its arrangement. The Court further observed as under:-
"In the modern and uncertain age it is very difficult to arrange one's future with any amount of certainty, a certain amount of flexibility is required, and if such flexibility does not jeopardise the Government or Administration, administration should be graceful enough to respond and acknowledge flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement."
However, that was a case wherein the resignation was tendered to be effective with a future date as the letter under Section 48-A of the Central Civil Services (Pension) Rules, 1972 was given with a three months' notice on 1-1-81 to be effective on 31-3-81.
In Punjab National Bank Vs. P.K. Mittal, AIR 1989 SC 1083, the Surpeme Court again examined the case wherein the employee tendered his resignation on 21-1-86 to be effective on 30-6-86. The resignation was accepted on 7-2-86 pointing out that it had been accepted by the Authority with immediate effect. The Apex Court held that the Authority had no competence to advance the date of its effectiveness and resignation, if accepted, could have become effective only on 30-6-86 and as the resignation was to be effective with future date, the employee had a right to withdraw the same prior to 30-6-86. The Court further observed that there has to be specific provisions to regulate the process of acceptance of resignation and its withdrawal. However, if there are certain Statutory Rules then the same have to be observed, but once an employee has chosen a future date on which resignation would be effective, he cannot be forced to resign before such a date.
In M/s. J.K Cotton Spg. & Wvg. Mills Company Ltd., Kanpur Vs. State of U.P. & ors., AIR 1990 SC 1808, the Hon'ble Supreme Court considered the meaning of "resign" and "retire" as under:-
Name of the Meaning of 'Resign' Meaning of 'Retire'
Black's Law Formal renouncement or To terminate employ-
Dictionary relinquishment of an ment or service upon
(5th Edn.) office. reaching retirement
Shorter Oxford To relinquish, surrender The act of retiring
English give up or hand over or withdrawing to
Dictionary (something); esp., an or from a place or
(Revised Edn. office, position, right, position.
of 1973) claim, etc. To give
up an office or
The Random To give up an office, To withdraw from
House position etc.; to office, business or
Dictionary relinquish (right, active life.
(College Edn.) claim, agreement
In Moti Ram Vs. Param Dev & Anr., AIR 1993 SC 1162, the Hon'ble Supreme Court examined the case of resignation in relation to the election petition as to whether on a particular date, the candidate was holding the office or not as he happened to be the Chairman of Himachal Pradesh Khadi & Village Industries Board. Karam Singh had resigned w.e.f. 31-1-90 with immediate effect and filed his nomination thereafter. The last date of scrutiny was 5-2-90 and on that date his nomination was accepted. The Court pointed out that resignation may be with immediate effect or may be prospective, i.e. to be operative from a future date and as 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. In a general juristic sense, in order to constitute a complete and operative resignation, there must be intention to give up or relinquishing the office or the concoctive act of its relinquishment. The Court further observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character depending upon the nature of office and the conditions governing it. In cases where the act of relinquishment is of 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. In that case, the relinquishment was of a unilateral character requiring no acceptance, i.e. stood accepted as soon as it was tendered. On this basis, his nomination was held to be valid.
In Power Finance Corporation Ltd. Vs. Parmod Kumar Bhatia, (1997) 4 SCC 280, the Supreme Court examined the case of a conditional resignation. The employee tendered the resignation under a Scheme on 20-12-94 to come into effect on 31-12-94 with demand of outstanding dues and to hand over the relieving certificate. The submission made before the Court was that as the voluntary retirement of the employee was a conditional one and he himself understood that unless he was relieved of the duties after payment of outstanding dues, the voluntary retirement would not be effective. The Court held that as the employee rightly understood that unless he was relieved of the duty of the post after payment of outstanding dues, the order accepting his voluntary retirement did not become effective. However, the Court observed as under:-
"It is now settled legal position that unless employee is relieved of the duty, jural relationship of the employee and employer does not come to an end. Since the order accepting the voluntary retirement was a conditional one, the condition ought to have been complied with. Before the condition could be complied with, the appellant withdrew the scheme. Consequently, the order accepting voluntary retirement did not become effective, therefore, no vested right has been created in favour of respondent."
In Nandkeshwar Prasad Vs. Indian Farmers Fertilizers Co-operative Ltd. & ors., (1998) 5 SCC 461, the Apex Court held that unless the issue of resignation is controlled by Conditions of Service or the Statutory Provisions, the retirement or resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date and the employee concerned has a right to withdraw the letter of resignation before the same becomes effective.
In J.N. Srivastava Vs. Union of India & Anr., AIR 1999 SC 1571, the Apex Court again considered the case of prospective resignation tendered on 31-10-89 to come into effect on 31-1-90 and withdrawn on 2-11-89. The Court held that as it was a prospective resignation, it could be withdrawn prior to the date of its being effective. Similar view was reiterated by the Supreme Court in Shambhu Murari Sinha Vs. Project & Development India Ltd. & Anr., AIR 2002 SC 1341; and Bank of India & ors. Vs. O.P.Swanakar, 2003 AIR SCW 313.
In Union of India Vs. Wg. Comm. T. Parthasarathy, (2001) 1 SCC 158, the Apex Court considered the case of a prospective resignation submitted on 31-7-85 to become effective on 31-8-86 and withdrawn on 19-2-86 but the withdrawal application was rejected on the ground that under the existing policy, there was no scope of withdrawal. The Court reiterated the law that a prospective resignation becomes effective from the date given by the employee and it can be withdrawn prior to the date of its commencement into effect. The Court further held that the right to withdraw cannot be curtailed by Executive Instructions or Policy Decision and unless there are statutory rules prohibiting such withdrawal, the right of an employee to withdraw is not acceptable. However, the Court distinguished the case from Raj Kumar (supra) and held that the facts in that case were quite distinguishable and observed as under:-
"The reliance placed for the appellant on the decision reported in Raj Kumar is inappropriate to the facts of this case. In that case this Court merely emphasized the position that when a public servant has invited, by his letter of resignation the termination of his employment, his services clearly stand terminated from the date on which the letter of resignation is accepted by the Appropriate Authority and in absence of any law or Rules governing the conditions of service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the Appropriate Authority."
The Court further held that right of an employee to continue in service till he reaches the age of superannuation, i.e. even withdrawal of resignation of a prospective nature, cannot be curtailed by circulars/ policy decision etc. having no Statutory force.
In K.L.E.Society Vs. Dr. R.R.Patil & Anr. (2002) 5 SCC 278, the Hon'ble Supreme Court examined a case where the notice for voluntary retirement submitted by the employee to retire him at the earliest, but employer instead of passing any order on his application vested him with additional duties and employee accepted the same without protest. The Court held that retirement could have become effective immediately after expiry of the notice period provided under the Statute, but as the employer continued working with additional duties even after expiry of the said period, conduct of the employee and employer made the application for voluntary retirement infructuous and inoperative.
In P. Lal Vs. Union of India & ors., 2003 AIR SCW 849, the Apex Court held that retirement becomes effective, when notice for it by the employee stands accepted by the employer, if it is not to become effective with a future date, even if it has not been communicated to the employee. Thus Court rejected the contention that even in such a case order of acceptance shall not become effective unless it is communicated to the employee as happens in other cases where termination order is passed after initiating disciplinary proceedings or employee being convicted by the competent criminal court.
The law on the issue can be summarized that resignation means formal renouncement or relinquishment of office having an effect of termination of employment/service. An employee has a right to resign or seek premature retirement, however, subject to the statutory provisions, if any, governing the same. The retirement may be sought with immediate effect/ earliest possible time or prospectively, i.e. to be effective from a future date. Intention of the employee seeking retirement is of paramount importance. Acceptance of the application for retirement is to be considered as per the law applicable, if any, otherwise also it would depend whether it requires acceptance at all. In case relinquishment of office is of unilateral character, as was found to be in case of Moti Ram (supra), the resignation stands accepted as soon as it is tendered. But in case resignation requires acceptance, the Authority has to consider it and pass appropriate order. The Authority may refuse to accept the resignation if an employee is seeking retirement just to avoid the adverse findings in a disciplinary proceeding pending/ contemplated against him or his services cannot be dispensed with because of the nature of work/project. In case resignation is not of prospective nature, it becomes effective as soon as it is accepted by the Competent Authority and even non-communication of the said order to the resign or would be immaterial and employee cannot seek withdrawal of application thereafter. In fact, effectiveness of the resignation would depend upon the facts of an individual case. However, resignation must have been tendered voluntarily and by no means it should have been obtained by coercion or fraud. Employer does not have a right to prepone the date of effectiveness of resignation as it is the sole discretion of the employee as from which date he wants to retire. In case of a prospective resignation, the employee has a right to withdraw the resignation prior to the date it becomes effective and not subsequent to it.
As in the instant case the respondent no. 1 had withdrawn his application for voluntary retirement prior to it came into effect, no fault can be found with the impugned judgment and order of the learned Tribunal.
Petition is devoid of any merit and accordingly dismissed.
There shall be no order as to costs.
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