Bombay High Court
Mahesh Madhukar Thombre vs The Chairman, Life Insurance ... on 9 September, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
wp1326.20
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1326 OF 2020
Shri Mahesh S/o Madhukar Thombre,
Age : 33 years, Occu. Service,
R/o Row House No.A/23, Atharva Classic,
Opp. MIT College, Behind Randazvous Hotel,
Beed Bypass Road, Aurangabad,
Tq. & Dist. Aurangabad ..PETITIONER
VERSUS
1. The Chairman,
Life Insurance Corporation of India,
"Yogkshema:, Nariman Point,
Bhima Marg, Mumbai
2. The Zonal Manager,
Life Insurance Corporation of India,
Western Zone, "Yogkshema", West Wing,
Nariman Point, Bima Marg, Mumbai
3. The Senior Divisional Manager,
Life Insurance Corporation of India,
Divisional Office, "Jeevan-Prakash" Building,
Adalat Road, Aurangabad Division,
Aurangabad
4. The Marketing Manager,
Life Insurance Corporation of India,
Divisional Office, "Jeevan-Prakash" Building,
Adalat Road,
Aurangabad
5. The Manager (Sales),
Life Insurance Corporation of India,
Divisional Office, "Jeevan-Prakash" Building,
Adalat Road, Aurangabad Division,
Aurangabad
6. The Chief Manager,
Life Insurance Corporation of India,
982 Branch, "Jeevan-Prakash" Building,
Adalat Road, Aurangabad ..RESPONDENTS
Mr B.V. Thombre, Advocate for petitioner;
Mr A.D. Kasliwal, Advocate for respondents
::: Uploaded on - 20/09/2021 ::: Downloaded on - 11/10/2021 20:31:01 :::
wp1326.20
(2)
CORAM : RAVINDRA V. GHUGE
AND
S. G. MEHARE, JJ.
DATE : 9th September, 2021
ORAL JUDGMENT (Per : Ravindra V. Ghuge, J.)
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The petitioner has put-forth prayer clause (B) as under:-
"(B) By issuing Writ in the nature of Certiorari or any other
appropriate Writ, like nature or any of the direction or order
the impugned letter dated 30.09.2019 issued by the
respondent No. may kindly be quashed and set aside."
3. The petitioner joined duties with the respondent Life Insurance
Corporation at it's office at Aurangabad as a Development Officer on
22.11.2020. On 31.08.2019, the petitioner tendered a resignation clearly
stating therein that the same would be effective from 30.09.2019.
Pursuant to the same, he attended the exit interview session conducted by
the Corporation. He inter-acted with the Marketing Manager in the said
interview. Being convinced, the petitioner immediately submitted an
application dated 20.09.2019 with the subject "withdrawal of my
resignation letter dated 31.08.2019". In the said application, the petitioner
has specifically mentioned as under:-
"Dear Sir,
wp1326.20
As per the instruction, I attended Exit interview. After
the discussion with Shree Kulkarni Sir, Marketing Manager, I
decided to surrender my application of resignation.
Kindly do the needful & allow me to work in field. I will
do my best.
Thanking you."
4. The grievance of the petitioner is that, though the petitioner was on
duty with the Corporation, a letter was issued on 30.09.2019 by the
Corporation which is an acceptance of his resignation. There is no mention
about the application filed by the petitioner declaring that the resignation is
withdrawn and he wanted to work with the establishment. The remark
below the said communication indicates that the petitioner refused to
accept the said letter dated 30.09.2019 in view of he being relieved on the
basis of his resignation letter which he had already withdrawn.
5. The petitioner then tendered a grievance letter dated 04.10.2019 to
the Chief Manager of the L.I.C. at Aurangabad stating clearly that he had
tendered the resignation after he was denied the L.T.C. facility. In the exit
interview session, on 19.09.2019, he interacted with the Marketing
Manager and realized that he had taken an emotional decision. He,
therefore, immediately tendered the application declaring withdrawal of
resignation, on 20.09.2019. He requested the Chief Manager that he
should initiate corrective steps.
wp1326.20
6. The petitioner submits that he received a letter under the signature
of the Marketing Manager, dated 25.10.2019 in which the opening
paragraph reads as under:-
"In your letter you have mentioned that you attended the exit
interview. In the interview you told about the denial of LTC
to you, to which the undersigned told you, that should not be
the reason for resignation and asked you to convey your
decision on next day."
The Marketing Manager then mentions that his communication
about withdrawal of resignation is a false statement. The L.I.C. has not
received any such communication. Once the higher office takes the
decision, it can never be retracted and hence, the issue is closed.
7. We find from the withdrawal application dated 20.09.2019 that the
same was delivered to the Chief Manager, L.I.C. at Aurangabad and there
is a clear acknowledgment stamp on the office copy (o.c.) of the petitioner,
which reads as under:-
"प्राप्त किया
दि. 12 SEP 2019
मुख्य प्रबंधक
भा. जी. बी. निगम ९८२, शाखा,
औरंगाबाद"
8. The petitioner then preferred an appeal on 12.11.2019 before the
Marketing Manager and tendered a further appeal dated 21.11.2019 to the
wp1326.20
Senior Divisional Manager, L.I.C. This was followed by an appeal dated
18.12.2019 to the Chairman, L.I.C. of India, Mumbai and a copy to the
Zonal Manager, L.I.C. of India, Western Zone, Mumbai. No decision has
been taken on these appeals.
9. The learned Advocate for the Corporation has vehemently opposed
the petition contending that the Staff Regulations do not provide for
withdrawal of an application which is in the form of a resignation. It is then
stated that the petitioner was continuously indulging in poor performance,
was unable to recruit new agents, was unable to retain the number of
agents and all his agents were terminated for non performance in terms of
L.I.C. of India (Agents) Regulations, for non ful-filling the minimum
business norms. It is further contended that once the resignation is
accepted, the decision cannot be retracted. The petitioner may have
withdrawn the resignation. However, as he had earlier submitted a
resignation voluntarily, the subsequent withdrawal is meaningless.
10. On the point of acceptance of resignation after withdrawal of the
same, the Honourable Apex Court has delivered the following judgments:-
1) 2000 AIR SCW 2577, Food Inspector, Ernakulam and another
vs. P.S. Shenoy,
2) 2003 II CLR 376 S.C., North Zone Cultural Centre and another
vs. Vedpathi Dinesh Kumar,
3) 2008 I CLR 353 S.C. Manubhai Chhaganbhai Thakore vs. Union
of India & ors.
11. It is, therefore, obvious that if a candidate does not resign with
immediate effect thereby sacrificing one month's salary in lieu of notice
period, the resignation cannot be made effective until the expiry of the
wp1326.20
notice period. It is beyond any debate in the light of the facts of this case
that the petitioner had been given 30 days notice as prescribed. He
participated in the exit interview session and after his interaction with the
Marketing Manger, he was convinced that he had tendered his resignation
under emotions as his prayer for L.T.C. was rejected. In less than 24
hours, he tendered a letter with the subject "withdrawal of resignation" and
clearly intimated to the Corporation that he was withdrawing the
resignation. In this backdrop, the resignation could not have been
accepted by the Corporation after 10 days of it's withdrawal, on
30.09.2019.
12. Insofar as the scope of judicial review is concerned, in the light of
the contention of the Corporation that once a decision is taken by the
competent authority of the Corporation, the said decision cannot be
retracted, the answer lies in the classic case delivered by the Kings Bench
Division in 1948, which is famously known as Wednesbury's Principles of
Judicial Review, Associated Provincial Picture Houses Limited vs.
Wednesbury Corporation, 1948 (1) K.B. 223.
13. In view of the above, it would be far-fetched to say that neither the
higher authorities of the Corporation upon realizing their mistake, could not
have withdrawn the decision of acceptance of resignation, nor can the
powers of judicial review of this Court be fettered, especially when the fact
that the Corporation is covered by Article 12 of the Constitution of India.
14. Since we are allowing this petition by quashing and setting aside the
communication dated 30.09.2019 accepting the resignation of the
wp1326.20
petitioner, we called upon the parties to canvass on the quantum of back
wages. The learned Advocate for the petitioner prays for 100% back
wages. The learned Advocate for the L.I.C. submits that as the petitioner
has been relieved, it was a matter of circumspection as to whether there
are any posts available or whether he could be reinstated and as he is not
in employment, no back wages should be paid. Burdening the Corporation
with back wages would amount to burdening the tax payers and the State
Exchequer.
15. It is obvious from the above that the petitioner has suffered
involuntary unemployment. The Honourable Apex Court has held in
Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya
(D.Ed.) and others, (2013) 10 SCC 324 that 100% back wages should be
normally paid if it is established that the terminated employee is
unemployed ever since the termination. Though there is no statement in
the memo of the petition, the learned Advocate for the petitioner sought a
pass-over and made a statement after lunch recess that the petitioner has
been unemployed ever since his dis-engagement.
16. To balance the equities, we grant 75% back wages to the petitioner
which shall be paid by the Corporation on or before 30.10.2021, failing
which the said amount would carry interest at the rate of 4% per annum.
17. Rule is made absolute in the above terms. There shall be no order
as to costs.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
amj
