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UNION OF INDIA AND ANOTHER versus SANOHAR AND ANOTHER

High Court of Judicature at Allahabad

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Union Of India And Another v. Sanohar And Another - WRIT - A No. 19331 of 2003 [2003] RD-AH 132 (5 May 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 19331 Of 2003

Union of India & Anr. -----           Petitioners

Versus

Sanohar & Anr. -----        Respondents    

    --------------

Hon'ble Dr.B.S.Chauhan,J.

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

                                                                       age.

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

                            position.

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

                         etc.)

               ------------------------------------------------------------

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.

5.5.2003

AKSI


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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