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CHANDRA BHAI MISHRA versus PRINCIPAL SECRETARY INDUSTRIES AND OTHERS

High Court of Judicature at Allahabad

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Chandra Bhai Mishra v. Principal Secretary Industries And Others - WRIT - A No. 43585 of 1999 [2004] RD-AH 575 (18 August 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.6

Civil Misc. Writ Petition No. 43585 of 1999

Chandra Bhal Mishra            vs         Principal Secretary, Industries,

Government of U.P. Lucknow and   others.

Hon'ble R.B.Misra,J.

Heard Sri Bhoopendra Nath Singh, learned Senior Advocate and Dr.R.G.Padia, learned Senior Advocate assisted by Sri B.K.Narayana, learned Counsel for the respondents.    With the consent of the parties counsel the writ petition is decided at this stage in view of Second  provision to Rule 2 of Chapter XXII of Allahabad High Court Rules, 1052.

(1). In this petition prayer has been made for quashing the order dated 7.7.1999 whereby the representation of the petitioner was allowed and the resignation was accepted while declining to stay the transfer order  of the petitioner in question.  Further prayer has been made for writ of mandamus commanding the respondents to allow the petitioner to continue in service w.e.f.7.6.1999.    

(2).  It appears that after being appointed on 2.8.1976 as a stenographer in U.P.State Industrial Development Corporation Ltd.( in short called                 '' Corporation ') the petitioner was promoted as Private Secretary on 6.12.1990 in Group ''B' post and was enjoying good reputation, however, Sri S.K.Agarwal, the then Chief Manager (Administration ) persuading the petitioner in connection with some inquiry being made under the preventive of Corruption Act expecting him to put a pressure over Sri Yogesh Chandra Dwiedi, working in legal section not to do pairvi against Sri S.K.Agarwal and at the instance of Sri S.K.Agarwal the annual character roll entries for the year 1995-96, 1996-97 were taken out from the records and further advise entries were recorded.  However, at the instance of Sri S.K.Agarwal, the petitioner was transferred from Kanpur Headquarter  to Ghaziabad in a malafide manner as contended by the petitioner.  Being aggrieved the petitioner represented by his letter dated 7.6.1999 to the competent authority the Managing Director of Corporation.  The relevant paragraph 7 reads as below:-

" Niskarsh Rup Se Sandarvit  Stananataran Aadesh Avem Karya Mukt Aadesh Bhrasth  Avem Beiman Adhikarioyo Ke Shadyantra Ka Tanashahi Purna Parinam Hai Jo Manniya Sarvochh Nyayalay Dwara Stapit Vidhi Siddhant :-

" Transfer- held on facts that transfer is nothing but malafide and arbitrary action at the behest of persons interested to victimize honest officer- Transfer order is quashed. ".

Shri Arvindra Bhattacharya v. State of Maharastra J.T.(6) SC 229 (DB)1997 Ke Anurup Nirast Kiya Jane Nyay Hit Mein Anivarya Hai .

Uprokth Tathyo Avam Manniya Sarvochh Nyayalay Dwara Pratipadit Vidhi Siddant Ke Adhar Par Prarthna Hai Ki Sthannantaran Adesh Sankya 1440-53/ S.I.D.C- Stapana Dinak 29.5.1999 Avam Karya Mukt Aadesh Sankhya Sunya Hastakscharit Dwara Mahaprabandhak Dinank 31.5.199 Ak Baje Ko Nyay Hit Mein Nirast Karne Ki Kripa Karen Sath Hi Doshi Adhikariyon Key Virudah Uchit Karyvahi Karne Ki Kripa Karen.   Anyatha  Ish Pratyavaden Ko Prarthi Ka Sashart Tyagpatra Mananey Ki Kripa Karen.  Kyuki Prarthi Bhristha Adhikariyon Dwara Utpeedharan Avem Bhavishya Barbad Kar Dena Ki Dhamki Ki Avastha Mein Karya Karne Mein Ashmarth Hain.

    Bhavdiya

Chandra Bhal Mishra

Niji Sachiv 7.6.99

                       Karyamukth"

Sanlagnak Uproktanusar.

Satya Pratilipi

(2). After considering the representation of the petitioner  the Managing Director by its order dated 7.7.1999 did not interfere in transfer/relieving order dated 29.5.1999 had accepted the petitioner's conditional resignation w.e.f. 7.6.1999.  Aggrieved against the above order the petitioner preferred this writ petition contending that the said letter dated 7.6.1999 is not a voluntary resignation, made on free will.  According to the petitioner it was a conditional resignation and without following any procedure termination of the service of the petitioner in a hasty manner is malafide, arbitrary, illegal and against the provisions of Article 14 and 21 of the Constitution.  In support of his contention learned counsel for the petitioner has contended that in view of Uttar Pradesh State Industrial Development Corporation Rules 1978 which was approved by Board of Directors in its 120th Meeting held on 4th November 1978 and brought into force w.e.f. 1.1.1979, in its        '' Rule 24 ' it has been provided as below:-

"Discharge from service:

A confirmed employee may be discharged from the service of the Corporation under the orders of the Competent Authority on three months' notice or by giving three months' pay and dearness allowance in lieu thereof.

A confirmed employee may leave or discontinue from the service of the Corporation after giving three months, notice in writing or depositing an amount equivalent to three month's pay and dearness allowance in lieu thereof to the corporation.  Provided that the resignation shall not be effective unless it is accepted by the Competent Authority.   The Competent Authority may refuse to accept a resignation if;

(a) the employee is under an obligation or serve the Corporation for a specified period which has not yet expired: or

(b) the employee owes the Corporation any sums of money; or

(c) for any other sufficient grounds to be recorded in writing."

(3). According to the learned counsel for the petitioner, he could have obtained the discharge or discontinued from the Corporation only after giving three month's notice in writing or on payment of  three month's pay and dearness allowance in lieu thereof to the Corporation for leaving and discontinuing from service.  Accordingly he has given resignation for which special provision is provided in '' Rule 24 ' above that the resignation  shall not be effective unless it is accepted by the competent authority,therefore, the respondents authority were under obligation to provide three months notice or were under obligation to ask to deposit three months' pay and dearness allowance in lieu thereof and only thereafter they were empowered to accept the conditional resignation.  

(4).    Learned counsel for the petitioner has also submitted in view of manual orders of personnel department issued in the form of G.O. paragraph 1164 reads as below:-

"Condition resignation combined with application for leave or redress:-  Conditional resignations should ordinarily not be accepted such as when an official couples a request for leave, or for redress of some sort, with an offer to resign his appointment if the leave or redress asked for is not granted.  Orders should be passed only in regard to the application for leave or redress.  If the Government servant is dissatisfied with the orders passed, it is open to him to appeal to a higher authority or to tender an unconditional resignation."

(5). In respect of the above, petitioner has submitted that letter of 7.6.199 was a conditional resignation, it was in the form of offer to resign, his superior authorities were under obligation to decide the grievance in reference to the transfer, thereafter only they were to provide opportunity to tender unconditional resignation.   In support of his contention learned counsel for the petitioner has placed reliance  upon the decision of Supreme Court in AIR 2003 SC-534 ( Dr. Prabha Atri v. State of U.P. and others )  where the writ petitioner who was working as Anaesthetist  in Kamla Nehru Memorial Hospital, Allahabad was issued with a Memo dated 5.1.1999, bringing to her notice a lapse in that she left without informing even Dr. Banerjee, when he requested her around 1300 hrs. to give anaesthesis to one patient admitted in emergency for shock due to reptured uterus, which needed urgent operation, and such conduct not only amounted to negligence as per Hospital Service Rule 10(i) but also was against medical ethics, she was also asked to submit her explanation by 5.00 p.m. on 6.1.1999, failing which it was taken that she accepted the lapse and the Hospital was at liberty to proceed against her as per Service Rules.  Since the writ petitionerdid not respond, on 8.1.1999 as such she was placed under suspension with immediate effect, pending institution of a domestic enquiry pertaining to the above incident.   On receipt of the said Memo on 9.1.1999, the writ petitioner replied to the Secretary of the Hospital that she had already clarified her position verbally in his presence that on that day she was sick and very tired, that Dr. Navneeta Banerjee also denied having made any complaint as such except writing for purposes of record about the incident and that formal reply in writing was not sent since she had already explained the position and nothing more was required.  She further added in her letter as hereunder:-

" Your letter is uncalled for and should be withdrawn.   I have been working in this Hospital since May 10,1978 and have always worked in the best interest of the patients.  It is tragic instead of taking a lenient view of my sickness you have opted to punish me.

If the foregoing is not acceptable to you then I have no option left but to render my resignation with immediate effect."

(6). According to learned counsel for the petitioner the letter dated 7.6.1999 of petitioner was a  conditional resignation and not an actual resignation, therefore, it should not be treated as a final resignation.   According to learned counsel for the petitioner the letter of resignation must be unconditional expressing clear mind of the person.   Learned counsel for the petitioner has referred and relied upon the decision of Supreme Court  A.I.R.1989 ( S.C.) - 1248 ( Punjab National Bank v. P.K.Mittal )  where the resignation was said to take effect either on the date chosen by the employee and mentioned in the notice or on the expiry of three months period as per rules and  accepting resignation by Bank was prior to it was held to be illegal. In my respectful consideration the facts of above case are different and distinguishable where only the date of resignation was in dispute and the petitioner can not derive any help from above referred case.

(7). The resignation becomes absolute when it is accepted by the Appointing authority, date of communication of acceptance to him is not material. In Raj Kumar v. Union of India [ ( 1968 ) 3 SCR 857; AIR 1969 SC 180 ] where it was observed that once the Appointing authority accepts the resignation submitted by the Government servant, it becomes absolute and cannot be withdrawn thereafter.   The date on which he was informed of the such acceptance is not material for the purpose. " Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant has locus poenitentiae but not thereafter."

(8). The resignation is effective from a prospective date [ Union of India v. Gopal Chandra Misra, AIR 1978 SC- 694 ] Ii) where a resignation is submitted effective from a prospective date, it is a mute letter till that date when alone it can speak with effect.  A withdrawal before that date has the effect of neutralizing the latent vitality in the earlier letter, which becomes non est in the eye of law.   The withdrawal of a prospective resignation is in accordance with the basic principles of law and no specific provision is needed in any rule, law or the Constitution.   However, in P.Kasilingam v. P.S.G. College of Technology, AIR 1981 SC 789; ( 1981) 1 SCC 405, the Supreme Court observed that the decision in the above said case has to be seen in context of the words '' resigned his office ' in proviso (a) to Article 217 (1) of the Constitution.  In so far as the prospective resignation of a public servant was concerned, the Court observed:

" It may be conceded that it is open to a servant to make his resignation operative from a future date and to withdraw such resignation before its acceptance.  The question as to when a Government servant's resignation becomes effective came up for consideration by this Court in Raj Kumar v. Union of India , ( 1968) 3 SCR 857; ( AIR 1969 SC 180).  It was held that the services of a Government servant normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, unless there is any law or statutory rule governing the conditions of services to the contrary.    There is no reason why the same principle should not apply to the case."

(ii) The respondent, a permanent officer in the Punjab National Bank submitted his resignation on 21.1.1981 stating that this date may be treated as the date of commencement of notice period of three months and that his resignation would become effective on 30.6.1986.   He was informed by the Bank, vide letter dated 7.2.1986 that his resignation had been accepted by the competent authority with the immediate effect by waving the condition of notice and that he was being relieved from afternoon of that date.   He filed a writ petition in the High Court against it.  But before it came for hearing, on 15.4.1986, he wrote a letter to the Bank withdrawing his resignation letter dated 21.1.1986.   The High Court quashed the Bank acceptance letter dated 7.2.1986.   On appeal, the Supreme Court affirmed the decision of the High Court and held that resignation could have been withdrawn before 30.6.1986, the date on which it became effective.

The court held that even in the  absence of any specific rule, it is open to the employee, on general principles, to withdraw his letter of resignation.  That is, in some cases of public service, this right of withdrawal is also made subject to the permission of the employer.  But where there is no such condition, the resignation can be withdrawn before it becomes effective.   The Court relied on its earlier judgments in Raj Kumar case (supra) Gopal Chandra Misra (supra) and Balram Gupta v. Union of India, AIR 1987 SC 2354 =1988 (Suppl) SCC 228.  The judgment in P. Kasilingam case was not referred to ( Punjab National Bank v. P.K.Mittal, AIR 1989 SC 1083 )

(9). In terms of employment the employer could terminate his service by giving one month notice and on expiry of one month, of such notice the employee ceased to be in employment and not letter of acceptance is necessary to terminate his service.  In view of the decision of Supreme Court in State of Uttar Pradesh v. Ved Prakash Sharma  1995 ( Supp.) 2 SCC-528.

(10). In 2000 (5) SCC 621 ( Shambhu Murari Sinha v. Project & Development India and another ) the Supreme Court in reference to its decision in 1987 ( Supp ) SCC-228 Balram Gupta (supra) J.N.Srivastava v. Union of India ( 1998 ) SCC- 559 and Power Finance Corpn. Ltd. v. Pramod Kumar Bhatia (1997)4 SCC-280 has held that resignation in spite of his acceptance could be withdrawn before the effective date.   In sequence thereto the above decision was affirmed by the Suprement in 2002 (3) SCC-437 ( Shambhu Murari Sinha v. Project Development and Development India and another ).

(11). In ( 2003 ) 1 SCC-701 ( Dr. Prabha Atri v. State of U.P. and others ) where the Supreme Court has observed that letter when constitutes resignation, such a letter, held must be unconditional and intending to operate as such.    Where an employee, required to submit his explanation for a certain lapse on his part, while submitting his explanation added that if the explanation was found to be not acceptable he would have no option left but to tender his resignation with immediate effect, held, such a letter did not amount to resignation.  At best it could amount to a threatened offer to resign.  The words          " with immediate effect " in the said letter, held, could not be given undue importance dehors the context tenor of the language used, the purport of the letter and the portion of the letter indicating the circumstances in which the letter was written.  Moreover, stopping of the domestic enquiry by the management consequent to acceptance of the alleged resignation, held, had no significance in ascertaining the true or real intention of the said letter.

"8. In Words and Pharases ( permanent  Edn.) Vol.37 at page 476, it is found stated that:

"To constitute a ''resignation', it must be unconditional and with an intent to operate as such.  There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment.  It is to give back, to give up in a formal manner, an office."

At page 474 of the very same book, it is found stated: " Statements by club's President and corresponding Secretary that they would resign, if constant bickering among members did not cease, constituted merely threatened offers, not tenders, of their resignation."   It is also stated therein that " A ''resignation' of a public office to be effective must be made with an intention of relinguishing the office accompanied by an act of relinquishment."  In the ordinary dictionary sense, the word " resignation" was considered to mean the spontaneous relinquishment of one's own right, as conveyed by the maxim: Resignatio est juris proprii spontanea refutatio       ( Black's Law Dictionary, 6th Edn.).  In Corpus Juris Secundum, Vol.77, p. 311, it is found stated:

"It has been said that ''resignation' is a term of legal art, having legal connotations which describe certain legal results.   It is characteristically, the voluntary surrender of a position by the one resigning, made freely and not under duress and the word is defined generally as meaning the act of resigning or giving up, as a claim, possession or position."

(12). As observed in para 8  of Dr.Prabha Atri (supra ) in P.K.Ramachandra Iyer v. Union of India (1984 ) 2 SCC141,  this court had an occasion to consider the nature and character of a letter written by one of the petitioners in that case who are stating in the letter that he has been all along patiently waiting for the redressal of his grievance, yet justice has not been done to him and

" as such after showing so much patience in the matter, I am sorry to decide that I should resign from the membership of the Faculty in protest against such a treatment and assigned the discrimination and victimization shown to me by the Head of the Division in the allotment of students of 1968 and 1969 batches and departmental candidates."

In that context, this Court observed that the callous and heartless attitude of the Academic Council in seizing an opportunity to get rid of him by treating the said letter to be a letter of resignation when really he was all along making representation seeking justice to him and  

out of exasperation the said person wrote that letter stating that the only honourable course left open to him was to resign rather than suffer (SCC p.173, para 34 ).

(13). In Moti Ram v. Param Dev ( 1993 ) 2 SCC 725 this Court observed as hereunder: ( SCC pp 735-36, para 16)

"16. 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, Union of India v. Gopal Chandra Misra  (1978 ) 2 SCC 301.  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 praesenti.  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 the conditions governing it."

(14). The Supreme Court in (2003 )5 SCC455 ( North Zone Cultural Centre and Another v. Vedpathi Dinesh Kumar ) while following its earlier decision in Raj Kumar (supra) and in reference to the other judgment of Supreme Court in Raj Narain v Indira Nehru Gandhi (1972) 3 SCC 850; Union of India v. Wing Commander T.Parthasarathy ( 2001) 1 SCC 158 has observed that the resignation becomes effective on acceptance even if not communicated.  Non communication of the acceptance does not make the resignation inoperative provided there is in fact on acceptance before the withdrawl when the relevant rules not postulating communication of acceptance as a condition precedent for coming into effect of resignation.  Employee tendering resignation with immediate effect and employer accepting the same on the same day but communicating the acceptance to the employee after 13 days.   During the intervening period, the employee withdrawing his resignation.  Such delay of mere 13 days,  held, not  an undue delay so as to infer that resignation had not already been accepted.   Even the continued attendance to duty and signing of attendance register by the said employee during the intervening period held, of no assistance to claim that the resignation had not taken effect.  More so, when there was no responsible officer in the office during that time and taking the advantage of that situation the employee had marked his attendance, hence the High Court's decision holding that communication of the acceptance of resignation subsequent to withdrawal of the resignation by the employee had become redundant was  held improper.

(15). On behalf of learned counsel for the respondent it has been submitted that the letter dated 7.6.1999 itself indicates that petitioner has come forward and tender resignation as he was unable to carry forward under suppression and under corrupt officials and under threat ruining his future career.  According to learned counsel for the petitioner the facts and circumstance in the case of Dr. Prabha Atri (supra) was different and in addition of writ petitioner Dr.Prabha Atri was to indicate her opinion to resign where she gives resignation with indication that I have no option to leave by submitting resignation.  

(16). According to learned counsel for the respondent, the intention of Dr. Prabha Atri's offer on tendering resignation was not a resignation voluntarily therefore, it was rightly held treated not to be resignation.  According to Dr. Padia, learned counsel for the respondent that discharge from service as provide under Rules 24 deals three situations, leaving, discontinuing and resignation.  According to him leaving or discontinuing the condition provided for payment of three months notice in writing or deposit equivalent to three months pay and dearness allowance in lieu thereof.   Resignation is a different aspect which has not linked leaving or discontinuing.  I find force in the contention of Dr. Padia, learned counsel for the respondent that Rule 24 indicates that for resignation no condition has been prescribed only the condition is that it could only be effective, it shall not be effective unless it is accepted by the competent authority.   As contended by Dr.Padia, learned counsel for the respondent that  Clause 1164 of Manual  orders of Personal Department contemplate offer to resign.   Here the petitioner was left with no alternative unlike this facts and circumstances Dr.Prabha Atri (supra ) as the petitioner herein by letter dated 7.6.1999 has prayed for accepting the resignation as he was unable to carry forward any more.   Here I find force in the assertions of Dr.Padia, that the inscription  of the petitioner as disclosed is not an offer to resign but is offer which becomes express in itself and it shall tantamount to voluntarily resignation.  In Dr.Prabha Atri case ( supra ) the Supreme Court has referred and relied on paragraph 8 of the decision of P.K.Ramachandra Iyer (supra) where the intention of the writ petitioner was that should resign from the membership of the Faculty.  It was a conditional offer there and not actually resignation.  

(17). According to Dr.Padia the letter dated 7.6.1999 is a letter of unilateral of character indicating the wishes of the petitioner giving resignation and not simply on a officer.  According to learned counsel for the respondent three judges bench decision of the Supreme Court in  Raj Kumar (supra) when the resignation of the writ petitioner and subsequently it was intended to be withdrawn, however, it was accepted by the Government  the withdrawal of resignation was not permissible even before communication of the order of acceptance.  Such situation is not analogous amounting to in the present case.  The Supreme Court after analyzing the facts of Raj Kumar has found that the inclination on writ petitioner was amounting to not only offer.  The decision of Raj Kumar (supra) supports the stand taken by learned counsel for the respondent.

(18). As held by the Supreme Court in Raj Narain (Supra ) that when a public servant has tendered resignation his service normally stands terminated from the date on which the letter of his request is accepted by the appropriate authority and in absence of any law or statutory rule governing the condition of his service contrary to the delay not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority.

(19). I have heard learned counsel for the parties, I find the only issue which was to be adjudicated upon whether order  dated 7.7.1999 is legal or not.   I find that by letter dated 7.6.1999 the petitioner has shown his inclination to resign to accept the resignation, therefore, no condition was henceforth applicable over him.  It was unilateral resignation accepted by the respondents.   More so, when in the subsequent stage i.e. on 9.8.1999 through (Annexure-14 enclosed ) with the counter affidavit the petitioner had requested the Managing Director to make payment of his dues consequent upon the decision of order dated 7.7.1997, this also fortified spirit of the steps taken by the petitioner while tendering resignation.  In these circumstances once the resignation has been accepted, the petitioner cannot come forward and pray for setting aside the impugned order.   The writ petition has no merit.  The writ petition is dismissed.

Dated 18.8.2004

PKB      


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