Sandip Prakash Thorat vs The Union Of India And Others
2021 Latest Caselaw 13043 Bom

                                    -1-

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                        WRIT PETITION NO.1964 OF 2020

Sandip s/o Prakash Thorat,
Age-34 years, Occu-Nil,
R/o Khandala, Tq.Vaijapur,
Dist.Aurangabad                                    - PETITIONER

VERSUS

1. The Union of India,
   Through its Secretary,
   Ministry of Home Affairs,
   New Delhi

2. The Commandant (Pers-II),
   Force Hqrs SSB, New Delhi,

3. The Inspector General
   Sashastra Seema Bal,
   Force Headquarters,
   R.K.Puram, New Delhi,

4. The Commandant,
   52nd Bn SSB, Araria,
   Dist.Araria (Bihar)

5. The Staff Officer,
   (Administration), Frontier
   Hqrs SSB, Patna

6. The Staff Officer,
  (Administration), Sector Hqrs,
  SSB, Purnea.                                          - RESPONDENTS

Mr.N.R.Thorat, Advocate for the petitioner.

Mr.S.N.Patale, Standing Counsel for respondent Nos. 1 to 6.

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( CORAM : RAVINDRA V. GHUGE & S.G. MEHARE, JJ)

DATE : SEPTEMBER 14, 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 clauses 15-B and 15-C as

under :-

15-B] Kindly issue writ of certiorari or any other writ or direction in the

like nature, kindly quash and set aside order dated 13-01-2020 passed

by the Commandant 52nd Bn SSB, Araria in proceeding No.1/Estt-III/

52nd Bn./CRC/PF/S.P.T./2017-18/808-10 and consequently reinstate in

service to the petitioner as a CT (GD).

15-C] Kindly be declared and hold that, the petitioner is entitled for the

reinstatement in service as per the guidelines DoP & TOM

No.28035/2/2014-Estt (A) dated 10.06.2019."

3. The petitioner was appointed as a "Constable Guard" in the

Indian Army on 01/03/2007. He was inducted in the 52 nd battalion

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SSB, Araria. The petitioner has 3 sisters and is the only son to his

parents. His parents are old and suffering from age related issues. He

tendered his resignation in his own handwriting on 16/07/2019, which

was accepted on 25/07/2019. He was relieved on the same date. He

submitted an application on 06/09/2019 withdrawing his resignation

as per the guidelines dated 10/06/2019 and prayed for reinstatement

in service. By communication dated 13/01/2020, the Commandant,

Sashastra Seema Bal, 52nd Battalion, Araria, refused to allow the

application dated 09/10/2019 (which was received by his office) and

declined to accept his request for reinstatement.

4. The petitioner contends that he had first submitted an application

on 29/08/2019 for reinstatement. We do not find any evidence that

the said application has reached the Commandant. The petitioner

submits that he posted another application dated 09/10/2019 in which

the reference to an earlier request dated 06/09/2019 has been made in

paragraph No.2. It is this application, that was considered vide the

impugned order and was not accepted.

5. The petitioner has relied upon the office memorandum dated

khs/Sept. 2021/1964-d

10/06/2019 issued by the Govt. of India, Ministry of Personnel, Public

Grievances and Pensions, Department of Personnel and Training.

According to him, his case is covered by Clause 2 of the said

memorandum, which would facilitate his reinstatement in service

within 90 days.

6. Clause 2 of the office memorandum reads as under :-

"2. The appointing authority may permit a person to withdraw his

resignation in the public interest on the following conditions, namely ;

[a] that the resignation was tendered by the Government Servant for

some compelling reasons which did not involve any reflection on his

integrity, efficiency or conduct and the request for withdrawal of the

resignation has been made as a result of a material change in the

circumstances which originally compelled him to tender the

resignation.

[b] that during the period intervening between the date on which the

resignation became effective and the date from which the request for

withdrawal was made, the conduct of the person concerned was in no

way improper;

[c] that the period of absence from duty between the date on which the

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resignation became effective and the date on which the person is

allowed to resume duty as a result of permission to withdraw the

resignation is not more than ninety days;

[d] that the post, which was vacated by the Government Servant on the

acceptance of his resignation or any other comparable post, is

available."

7. The learned Advocate for the respondents has relied upon the

affidavit in reply dated 20/06/2021 filed by Virendra Kumar Verma,

Commandant 52nd Battalion. While supporting the impugned order, he

submits that firstly, a reinstatement could be possible only in public

interest. No such public interest is involved in this case. Secondly, the

petitioner had submitted his resignation letters even earlier on

23/06/2016, 16/12/2017, 26/03/2018 and finally on 06/07/2019. He

also tendered a reminder on 18/07/2019.

8. He then draws our attention to an incident that had occurred on

14/07/2015 when the petitioner was performing Sentry Duty at RP

Gate of SHQ SSB Tezpur when he fired one round from his personal

weapon 5.56 mm INSAS Rifle Butt No.26, Body No.18002353. The

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bullet hit him in his right thigh. Disciplinary proceedings were initiated

against him and he was punished with 14 days pay fine from the pay of

January 2017 u/s 56(1)(g) of S.S.B.Act 2007 vide order dated

03/01/2017. So also, during the trial in the said case, he had left the

campus of SHQ SSB Tezpur on17/03/2018, unauthorizedly. After

conducting disciplinary proceedings and taking into account his

statement that as leave was not granted to him to attend to his ailing

mother, he had absconded, was awarded 28 days RI in Force custody

u/s 56(1)(a) of S.S.B. Act, 2007 by order dated 03/12/2016. In yet 2

other instances when he made false allegations against the DC of 65th

Battalion, SSB Camp at Bagaha and as the charges were proved, he was

awarded the punishment of 21 days confinement to line u/s 56(c) of

SSB Act, 2007 vide order dated 13/03/2019.

9. He, therefore, submits that the case of the petitioner was not one

such case which could have been considered under clause 2 of the

Office Memorandum dated 10/06/2019.

10. Having considered the strenuous submissions of the learned

Advocates for the respective parties, we have gone through the record

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placed before us. Time and again, the petitioner had submitted

resignation letters which were not considered by the respondents. In

one such resignation letter dated 26/03/2016, he has also mentioned

that he had thought of committing suicide, but refrained from doing so,

since he has a wife and children. He, therefore, prayed for acceptance

of his resignation.

11. We find from the impugned order that the Commandant had

advised the petitioner, after counselling on 19/07/2019, to withdraw

his resignation. Again on 20/07/2019, he was produced before the

Commandant for the interview regarding his request for resignation.

Despite such counselling, he was reluctant to continue in service since

he wanted to attend to his ailing mother. It is in the above backdrop

that the Commandant considered the effect of the above factors and

also noted that after tendering the resignation on 16/07/2019, the

petitioner had not performed his duties till the acceptance of the

resignation on 25/07/2019.

12. Having perused clause 2 of the office memorandum, we are of

the view that a withdrawal of resignation after it's acceptance, is not an

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enforceable right. There are catena of judgments which dis-entitle an

employee to withdraw his resignation after it's acceptance. The

petitioner has relied upon clause 2 of the office memorandum. In our

view, the said clause does not create a right in an employee to withdraw

his resignation within 90 days of its acceptance and seek reinstatement.

13. The language used in Clause 2 is that, "the appointing authority

may permit a person to withdraw his resignation in the public interest

......." As such, the said provision vests discretionary powers in the

competent authority to permit an employee to withdraw the

resignation. Hence, it cannot be held that clause 2 creates an

indefeasible right in an employee to withdraw his resignation and seek

reinstatement in service. Such withdrawal can be permitted only in

public interest.

14. In our view, the reinstatement of the petitioner would not involve

any public interest, in as much as, he had suffered 28 days rigorous

imprisonment in Force custody for having unauthorizedly left the

campus of SHQ SSB Tezpur (Aasam) after the trial with regard to the

firing of the bullet had commenced. He was also penalized with 14

khs/Sept. 2021/1964-d

days pay fine for having fired a bullet which injured his right thigh. He

has undergone several other punishments, including for an offence of

making false allegations against a Senior Officer and violation of good

order and discipline. In these circumstances, we do not find that any

public interest would be sub-served if the petitioner is reinstated in

service and that there would be a loss to the public at large if he is

denied reinstatement.

15. In view of the above, this petition is dismissed. Rule is

discharged.

      ( S.G. MEHARE, J. )                          ( RAVINDRA V. GHUGE, J. )




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