Anshuman Rathore vs Bank Of India Thru. Md Head Office ...
2019 Latest Caselaw 993 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 23
 

 
Case :- SERVICE SINGLE No. - 8597 of 2018
 

 
Petitioner :- Anshuman Rathore
 
Respondent :- Bank Of India Thru. Md Head Office Star House & 5 Ors.
 
Counsel for Petitioner :- Manish Kumar,Meera Jain
 
Counsel for Respondent :- Lalit Shukla
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri Manish Kumar, learned counsel for the petitioner and Sri Lalit Shukla, learned counsel for the opposite parties.

By means of this petition, the petitioner has assailed the order dated 2.2.2018 passed by the appellate authority i.e. General Manager, N.B.G., Group-II, Bank of India, Gomti Nagar, Lucknow whereby appeal of the petitioner has been rejected. Learned counsel for the petitioner has also assailed the orders dated 18.11.2015 and 23.11.2015 whereby the resignation of the petitioner has been accepted, but copy thereof has not been provided to the petitioner, therefore, the petitioner has prayed that the aforesaid orders be summoned. It would be pertinent to indicate here that both the aforesaid orders i.e. 18.11.2015 and 23.11.2015 have not been enclosed with the counter affidavit.

The legal question for the consideration of this Court is as to whether the resignation of an officer of the Bank may be accepted prior to the mandatory period of three months and if the same is accepted prior to aforesaid period of three months, what would be the effect thereof.

Learned counsel for the petitioner has referred Regulation 20 (2) of the Bank of India (Officers) Service Regulations, 1979 (for short "Regulations, 1979"), which is being reproduced herein below:-

"20 (2). An officer shall not leave or discontinue his service in the bank without first giving notice in writing of his intention to leave or discontinue a service or resign. The period of notice required shall be 3 months and shall be submitted to the competent authority as prescribed in these regulations.

Provided further that the competent authority may reduce the period of three months or remit the requirement of notice."

So as to appreciate the controversy in hand, some facts are necessary to be indicated.

The petitioner, who was serving on the post of MMG Scale-I, was promoted on the promotional post i.e. MMG Scale-II after the petitioner appeared in the departmental promotion examination on 22.6.2015 and accordingly, the order dated 7.7.2015 was issued promoting the petitioner in the promotional scale i.e. MMG Scale-II and was transferred to Gauhati Zone.

Learned counsel for the petitioner has submitted that the petitioner before he could be relieved for joining on the promotional post, he came to know serious illness of his mother, therefore, he rushed to his home district i.e. Faizabad on 16.7.2015. He preferred a representation dated 17.7.2015 to the Branch Manager concerned through speed post seeking leave for one week. However, without taking any decision on the aforesaid representation of the petitioner dated 17.7.2015, respondent no.4 intimated the petitioner that he has been treated relieved w.e.f. 17.7.2015 with the instruction to report at Gauhati Zonal Office, the promotional post, on the next working day i.e. 20.7.2015. The said communication was received by the petitioner on 23.7.2015.

As per learned counsel for the petitioner, since the petitioner being the only son of his parents and was under obligation to look after his parents, who were residing in Faizabad, preferred a representation dated 24.7.2015 through speed post in the prescribed format as required under Regulations, 1979 for cancellation of relieving order with request to remain his services in Varanasi Zone showing his hardship to join service at Gauhati.

When no suitable response was given to the petitioner, he made representation dated 3.8.2015 through speed post for disposing of his transfer application dated 24.7.2015, which was made in prescribed format under Regulations, 1979. The aforesaid representation was received in the office of opposite party no.2 on 5.8.2015. Since no suitable order was being issued by the competent authorities, therefore, the petitioner made reminder representations on 10.8.2015, 13.8.2015 and 16.8.2015, but to no avail. In the representation dated 16.8.2015, the petitioner has requested that either his request to be retained at any nearby place to Faizabad be considered or he may be treated to have submitted his resignation and the same may be accepted.

As per learned counsel for the petitioner instead of considering his aforesaid bonafide request and passing appropriate order, the Zonal Manager of the Bank issued a letter dated 1.9.2015 (Annexure No.15 to the writ petition) directing him, rather threatening him, either to join in Zonal Office at Gauhati or send his resignation letter and the same will be considered by the Bank in the meantime. It has further been indicated that his leave will be treated illegal subject to disciplinary enquiry. Immediately after receiving the aforesaid letter dated 1.9.2015, the petitioner preferred a representation dated 9.9.2015 requesting to take decision on the formal application dated 24.7.2015 with respect to his transfer. The petitioner has also preferred a representation dated 10.9.2015 making request for suitable order to the Head Office i.e. respondents no.1 and 2 through speed post, but to no avail.

As per learned counsel for the petitioner the letter dated 10.9.2015 was received to the petitioner wherein it has been directed that either the petitioner join Zonal Office, Gauhati or give resignation from the Bank service for the reason as intimated in this letter that Head Office has turned down the request of the petitioner for his stay at Varanasi.

As per Sri Manish Kumar, the petitioner under the pressing and compelling circumstances and under duress submitted a letter dated 14.9.2015 mentioning his resignation from Scale-II service of the Bank in view of the reasons mentioned in the earlier representation dated 16.8.2015. Learned counsel for the petitioner has submitted that the petitioner had tendered his resignation on 14.9.2015 only for Scale-II service, but in any case by means of this letter, the petitioner has submitted his resignation.

As per learned counsel for the petitioner since the petitioner had tendered his resignation on 14.9.2015, therefore, the same could have not been accepted before 14.12.2015, in view of the statutory period being prescribed under Regulation 20 (2) of the Regulations, 1979.

As per Sri Manish Kumar, the petitioner was under bonafide impression that instead of accepting the aforesaid resignation of the petitioner dated 14.9.2015, the competent authority would pass any favourable order considering the unblemished service record of the petitioner. However, instead of taking any favourable decision, the petitioner received a letter dated 26.11.2015 (Annexure No.21 to the writ petition) issued by the Branch Manager, Robertsganj, Bank of India, dispensing the services of the petitioner and directed him to close all his debt account and deposit the dues and submit the Bank ID as well. In the aforesaid letter dated 26.11.2015, it has been indicated that the resignation of the petitioner has been accepted by the Head Office on 23.11.2015. Learned counsel for the petitioner has submitted that the copy of the order dated 23.11.2015, whereby his resignation has been accepted, has not been provided to the petitioner. As per learned counsel for the petitioner, the petitioner came to know that his resignation has been accepted by the competent authority on 18.11.2015. In any case, be it 23.11.2015 or be it 18.11.2015, the resignation of the petitioner has been accepted prior to three months statutory period being prescribed under Regulation 20 (2) of the Regulations, 1979, therefore, the acceptance of aforesaid resignation was non est in the eyes of law being void ab initio.

Feeling aggrieved out of order dated 18.11.2015/ 23.11.2015, the petitioner preferred an statutory appeal on 28.3.2017 before the appellate authority i.e. General Manager, Bank of India, Vibhuti Khand, Gomti Nagar, Lucknow (Annexure No.27 to the writ petition). In the aforesaid statutory appeal, besides taking various grounds, the petitioner has categorically indicated in para-21 of the said appeal that copy of the impugned order dated 23.11.2015 has not been served upon the petitioner till the date of filing of the appeal and he could know about the said order only by communication order dated 26.11.2015. The petitioner has also submitted in para-27 of the statutory appeal that he submitted his resignation on 14.9.2015 under compulsion after receiving the order dated 1.9.2015 issued by the Zonal Manager wherein it has been indicated that either the petitioner should join at Gauhati or send his resignation.

Learned counsel for the petitioner has drawn attention of this Court towards the impugned order dated 2.2.2018 (Annexure No.1 to the writ petition) wherein vide para-6 (c), it has been mentioned that the resignation of the petitioner was accepted by the competent authority after following all due procedures and he was relieved from Bank's service w.e.f. 18.11.2015. Vide para 6 (e), the appellate authority has further indicated that since the petitioner has himself demanded the copy of discharge certificate/ experience certificate vide email dated 23.2.2016, therefore, the petitioner would be treated being relieved from Bank's service.

Learned counsel for the petitioner has drawn attention of this Court towards representations of the petitioner dated 4.11.2015 and 30.11.2015 (Annexures No.RA-4 and RA-5 to the Rejoinder Affidavit) whereby the petitioner has categorically requested before the competent authority that any suitable decision be taken on the earlier presentations of the petitioner whereby he had requested that he be posted at any place nearby Faizabad except Gauhati for compelling circumstances, but as per learned counsel for the petitioner, no decision has been taken on the said representations of the petitioner dated 4.11.2015 and 30.11.2015. Submission of learned counsel for the petitioner is that a bare perusal of the aforesaid representations dated 4.11.2015 and 30.11.2015 reveals that the petitioner is pressing any suitable order on his earlier representations instead of his resignation. The petitioner has also referred the aforesaid fact in para-36 of the writ petition, which has not been denied in the counter affidavit in para-16.

Learned counsel for the petitioner has also submitted that vide paras 10, 11, 12 and 13 of the writ petition, the petitioner has categorically submitted that the resignation of any employee could have not been accepted before the statutory period being prescribed under the Rules/ Regulations and in the case in hand, such resignation could have not been accepted prior to the three months period as indicated under Regulation 20 (2) of the Regulations, 1979. Reply of the aforesaid paragraphs has been given in para-9 of the counter affidavit and no denial of the aforesaid averment has been made by the answering opposite parties, therefore, learned counsel for the petitioner has submitted that in the light of aforesaid admitted position, resignation of the petitioner, which has been accepted either on 18.11.2015 or on 23.11.2015, could have not been accepted prior to 14.12.2015 and therefore, said acceptance of the resignation is nullity in the eyes of law.

Learned counsel for the petitioner has referred the judgment of the Hon'ble Apex Court in re; Punjab National Bank v. P.K. Mittal, 1989 Supp. (2) SCC 175, submitting that in the identical facts and circumstances, the Hon'ble Apex Court has held that resignation of the employee could take effect either on the date chosen by the employee and mentioned in the notice/ resignation or on expiry of three months period, but the Bank could not have accepted it on any earlier date. In the said case of the Hon'ble Apex Court, Regulation 20 (2) of Punjab National Bank (Officers) Service Regulations, 1979, which are pari materia to the Bank of India (Officers) Service Regulations, 1979, has been considered. In the aforesaid judgment, the Hon'ble Apex Court has further held that proviso of Regulation 20 (2) empowers the Bank to reduce the period or requirement of notice on the request of the employee, but not otherwise. The Hon'ble Apex Court has further held that even in absence of an enabling provision, the employee could withdraw his resignation before the same became effective as resignation is a voluntary act of an employee and premature acceptance would amount to termination by the employer. As per the Hon'ble Apex Court, statutory period for accepting the resignation has purposely been prescribed as it gives the employee a period of adjustment and rethinking.

Sri Manish Kumar has further cited the judgment of the Hon'ble Apex Court in re; Dr. Prabha Atri v. State of U.P. and others, (2003) 1 SCC 701, submitting that as per the Hon'ble Apex Court a resignation must be unconditional and having intention to operate as such. As per the Hon'ble Apex Court, if the resignation letter is conditional, the same may not be treated as resignation.

Therefore, Sri Manish Kumar has submitted that if the authorities are saying that the petitioner had tendered his resignation on 16.8.2015 (Annexure No.13 to the writ petition) wherein he had requested that either he be posted at any nearby place to Faizabad considering his compelling circumstances or he be treated to have resign from service, may not be treated as resignation as the said letter was conditional. To be more precise, the petitioner tendered his resignation on 14.9.2015 after receiving the threatening letter dated 1.9.2015, therefore, in any case, resignation of the petitioner would be dated 14.9.2015 not dated 16.8.2015.

Per contra, Sri Lalit Shukla has submitted that since the petitioner had already tendered his resignation on 16.8.2015 (Annexure No.13 to the writ petition), therefore, the competent authority concerned has rightly accepted the resignation of the petitioner on 18.11.2015 after the period of three months. He has further submitted that since the petitioner was pressing for resignation by his email on 23.2.2016 as considered in para-6 (e) of the appellate order, therefore, the petitioner should be treated being relieved. Sri Lalit Shukla has cited the judgment of the Hon'ble Apex Court in re; Raj Kumar Singh v. Union of India and others, (2009) 4 SCC 269, referring para-6 thereof, wherein the Hon'ble Apex Court has turned down the contention of the employee that he had not given his voluntary resignation and signatures on blank papers were taken from him. As per the Hon'ble Apex Court, the aforesaid plea of the said employee is clearly unsustainable for the reason that there is no material on record and in fact, it is not the stand of the employee that he made any grievance about the aforesaid act before any authority. The Hon'ble Apex Court further held that whether the employee had signed the letter voluntarily or signatures were taken on blank papers involves disputed questions of fact, which cannot be decided in the writ petition.

On the aforesaid strength, Sri Lalit Shukla has submitted that this Court may not test/ examine the disputed question of fact in this issue as to whether the petitioner has resigned on 16.8.2015 or 14.9.2015, therefore, he has submitted that the petitioner is not entitled for any relief prayed in the instant writ petition and the writ petition may be dismissed.

I have heard learned counsel for the parties and perused the material on record.

In the instant case, I am considering some admitted facts. Admittedly, the petitioner has preferred couple of representations including representation dated 16.8.2015 wherein he has stated that since his bonafide request of posting him at any nearby place to Faizabad under compelling circumstances, therefore, either his request may be accepted or he may be treated to have resigned from service. Therefore, in view of the aforesaid fact, the aforesaid representation dated 16.8.2015 may not be treated as resignation much less an unconditional resignation. Secondly, before acceptance of resignation of the petitioner, the petitioner preferred representations dated 4.11.2015 and 30.11.2015 making request that his earlier representations, which have been preferred regarding his posting at any nearby place to Faizabad be considered, meaning thereby he was not pressing his resignation. Thirdly, Regulation 20 (2) of the Regulations, 1979 categorically mandates that the resignation of an employee may be accepted after three months and in the instant case, the petitioner has tendered his resignation on 14.9.2015 after receiving letter dated 1.9.2015 by the competent authority whereby he was directed either to submit his joining at Zonal Office, Gauhati or to tender his resignation, therefore, the aforesaid resignation shall be treated to have been tendered on 14.9.2015 and the same would have not been accepted before 14.12.2015. In the identical matter in re; Punjab National Bank v. P.K. Mittal (supra), the Hon'ble Apex Court has held that the resignation of the employee could have not been accepted before the statutory period of three months. Further in the case of Dr. Prabha Atri (supra), the Hon'ble Apex Court has categorically held that the resignation of an employee must be unconditional. Therefore, in the light of the aforesaid dictum of the Hon'ble Apex Court, the resignation of the petitioner, which has been accepted on 18.11.2015/ 23.11.2015 is non est in the eyes of law, rather not sustainable in the eyes of law being nullity and void ab initio. The case law cited by Sri Lalit Shukla in re; Raj Kumar Singh (supra) is not applicable in the case in hand for the reason that in that case there was a disputed question of fact as to whether said employee had made signatures on the blank papers or on the written letter and the said employee had also not raised any grievance against the resignation before the competent authority whereas in the case in hand, the petitioner has not only raised his grievance against his resignation, but also it is undisputed fact that the petitioner had tendered his resignation under the compelling circumstances, therefore, the facts and circumstances of the case in re; Raj Kumar Singh (supra) are not applicable in the present case.

In view of the above, I am of the considered view that the appellate order dated 2.2.2018 passed by the appellate authority is not sustainable in the eyes of law being illegal, arbitrary and unwarranted. Likewise, the orders dated 18.11.2015 and 23.11.2015 passed by the disciplinary authority whereby resignation of the petitioner has been accepted, however, copy thereof has not been produced before the Court, are also not sustainable in the eyes of law and are liable to be quashed.

Accordingly, the order dated 2.2.2018 passed by the appellate authority and the orders dated 18.11.2015 and 23.11.2015 passed by the disciplinary authority are hereby quashed. The opposite parties are directed to permit the petitioner to continue on the post of MMG Scale-II and to pay him regular salary each and every month as and when the same falls due.

Since the petitioner has resigned from service when he was duly promoted on the post of MMG Scale-II, therefore, prayer no.2 of the petitioner, whereby he is praying that he may be permitted to continue on the post of JMG-1/ Scale-I, is not accepted.

It would be open for the opposite parties to post the petitioner at any place considering the exigency of service.

In the given circumstances, it is directed that the petitioner is not liable for back wages/ arrears of salary w.e.f. the acceptance of resignation till the date of his joining. However, the petitioner shall be treated continuous in service and he shall be paid his all consequential service benefits treating him in continuous service.

It is also directed that the opposite parties shall make compliance of the aforesaid order within a period of three weeks from the date of production of certified copy of the order of this Court.

In view of the above, the writ petition is allowed.

Order Date :- 12.3.2019

RBS/-

[Rajesh Singh Chauhan,J.]