Bombay High Court
Sachin Ganeshrao Maske vs Member Secretary, Maharashtra ... on 28 September, 2022
Bench: A.S. Chandurkar, Urmila Sachin Phalke
J.wp5521.2021.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5521 OF 2021
Sachin Ganeshrao Maske
Aged about 31 years,
Occupation - Nil
R/at Gitai Niwas,
Dwarka Nagari, Shrirampur,
Taluka Pusad, District Yawatmal
...PETITIONER
VERSUS
1. Member Secretary,
Maharashtra Jeevan Pradhikaran,
4th Floor, Express Towers,
Nariman point, Mumbai - 21
2. Chief Administrative Officer,
Maharashtra Jeevan Pradhikaran,
Sidako Bhavan, 2nd Floor,
(South Section), Belapur,
Navi Mumbai - 400614
3. Chief Engineer,
Maharashtra Jeevan Pradhikaran,
Nagpur Division, Nagpur
4. Superintendent of Engineer,
Maharashtra Jeevan Pradhikaran,
Nagpur, Office at Building 'A',
Ground floor, Near C.P. Club,
Telankhedi, Civil Lines,
Nagpur - 01
5. Executive Engineer,
Maharashtra Jeevan Pradhikaran,
Sub-Division No.2, Talangkhedi,
Civil Line, Nagpur
...RESPONDENTS
J.wp5521.2021.odt 2
______________________________________________________
Shri G.S. Kidambi, Advocate for the petitioner.
Shri D.V. Mahajan, Advocate for respondent Nos.1 to 4
______________________________________________________
CORAM : A.S. CHANDURKAR AND
URMILA JOSHI-PHALKE, JJ.
DATED : SEPTEMBER 28, 2022.
JUDGMENT (Per Urmila Joshi-Phalke, J.)
Heard learned counsel for the parties.
2. RULE. Rule made returnable forthwith.
3. By this writ petition, the petitioner has challenged the order
of respondent No.2-Chief Administrative Officer, Maharashtra Jeevan
Pradhikaran dated 29/01/2021 by which the notice of resignation was
illegally accepted and also directed recovery of Rs.1,31,040/- from the
petitioner towards training expenses.
4. The petitioner was serving as an Assistant Executive Engineer
in the Maharashtra Jeevan Pradhikaran since 28/02/2017. After joining
service he was appointed initially for two years on probation period.
During his probation period the petitioner had completed training. On
01/06/2018 due to his personal reason he had submitted an application
for resignation. It is the contention of the petitioner that the respondent
Nos.2 to 5 had not taken any decision on the resignation application but
demanded Rs.1,31,040/- which were incurred against his training. The
resignation tendered by him was neither accepted nor rejected by the
respondents, on the contrary he was treated to be continued in service
by sanctioning his absence as unauthorised absence. The respondents
time to time shown their inability to accept resignation unless the
petitioner deposits amount of Rs.1,31,040/- which was incurred towards
the training vide various communications. On 21/01/2020, the
petitioner had submitted an application for withdrawal of resignation.
Subsequently, also on 27/08/2020 and 04/09/2020 he had requested to
join him as his resignation was not accepted. On 23/12/2020,
respondent No.3-Chief Engineer, Maharashtra Jeevan Pradhikaran,
Nagpur Division, Nagpur sought guidance from respondent No.2-
Chief Administrative Officer, Maharashtra Jeevan Pradhikaran,
Belapur, Navi Mumbai regarding how the petitioner's request of
joining could be accepted. On 29/01/2021, respondent No.2
without considering the provisions of the Government Resolution
dated 02/12/1997 passed an order accepting the resignation dated
01/06/2018 and directing the recovery of an amount of
Rs.1,31,040/-.
5. The respondents opposed the said writ petition by filing their
reply. As per the contention of the respondents it is an admitted fact
that the petitioner had tendered resignation on 01/06/2018. It is
further admitted that the said application for resignation was neither
decided nor any communication was made to the petitioner regarding
acceptance or refusal of the said resignation. It is the contention of the
respondents that the Government Resolution dated 02/12/1997 on
which the petitioner has relied upon, the resignation application stands
sanctioned after one month from the date of resignation, therefore, the
writ petition deserves to be dismissed.
6. Heard Shri G.S. Kidambi, learned Counsel for the petitioner.
He submitted that the petitioner was serving as an Assistant Executive
Engineer in Maharashtra Jeevan Pradhikaran as he was appointed
vide appointment order dated 28/02/2017. After his appointment
initially for a period of two years on probation he undergone
training successfully. The petitioner had tendered an application
for resignation due to his personal reason on 01/06/2018. The
respondents ought to have decided the said application seeking
permission to resign within one month. The petitioner as per the
terms and conditions had deposited one month's salary along with
his resignation application. But the respondents neither accepted
nor rejected his resignation. On the other hand they issued various
communications to him showing inability to accept the resignation
unless the petitioner deposited Rs.1,31,040/-. As the respondents
had not accepted his resignation, he again approached to the
respondents on 21/01/2020 and 04/09/2020 requested to join him
and withdrawal of his resignation. The respondents on
29/01/2021 communicated to the petitioner that his notice of
resignation was accepted and also directed to recover an amount of
Rs.1,31,040/-. In support of his contention he relied upon the
Government Resolution dated 02/12/1997 which states that the
Competent authority shall consider if any employee submits an
application for withdrawing the resignation. He further submitted
that his resignation was neither accepted nor rejected prior to his
application dated 21/01/2020 which was filed for withdrawal of
resignation. On the contrary, his absence from the service was
considered as unauthorised absence and he was continued in
service. The petitioner submitted that before withdrawal of the
resignation, his resignation was not accepted and, therefore, the
impugned communication is illegal and liable to be set aside.
7. In support of his contention learned Counsel for the
petitioner relied upon Madhusudan Govindrao Trivedi Vs. UCO Bank
Calcutta & ors. 2010 (3) AIR Bom. R 41 wherein it is held that actual
voluntary retirement takes effect only upon acceptance of application by
Competent Authority and not mere exercise of such option. Therefore,
option which is exercised for voluntary retirement can be withdrawn
before its acceptance. He further placed reliance on Smt. Ligia G.
Godinho Vs. The Speaker, Legislative Assembly (Goa) and ors. 1997
LAB.I.C. 753 wherein it is held that the resignation is only an offer to
put an end to relationship between the employer and the employee and
before such an offer is accepted by the employer, the employee is
entitled to withdraw it, unless, otherwise, prescribed by rules relating to
concerned service. He further placed his reliance on Punjab National
Bank Vs. P.K. Mittal AIR 1989 SC 1083 wherein it is held that the
resignation would become effective on expiry of three months from date
of resignation or from future date as desired by employee. Acceptance
of resignation by bank from earlier date illegal.
8. On the other hand, Shri D.V. Mahajan, learned Counsel for
respondent Nos.1 to 4 submitted that as per Clause 2(4) of the
Government Resolution dated 02/12/1997 if the concerned authority
has not communicated anything about the acceptance or rejection of
resignation then it is deemed to be accepted. As nothing was
communicated, resignation was deemed to be accepted. It stands
sanctioned after one month after the date of resignation, therefore, the
present writ petition deserves to be dismissed. He further submitted
that as the petitioner had submitted his application for withdrawal of
resignation after more than two years the resignation is as deemed
accepted. The petitioner is not entitled for any relief hence the writ
petition deserves to be dismissed.
9. Heard both the sides and perused the record.
10. It is not disputed that the petitioner was appointed as an
Assistant Executive Engineer on the establishment of respondent Nos.3
to 5. It is also not disputed that initially he was appointed on probation
and the petitioner had undergone training during the probation period.
The appointment of the petitioner was on various terms and conditions.
As per the terms and conditions of the appointment order Clause (8)
states that if any employee is willing to resign from the post he should
give one month's notice in advance and pay of one month and as per
Clause (9) an employee who is appointed on a probation and if he
resigns from the post during his probation period then he is liable to pay
the expenses which are incurred against his training. It is evident from
the record that after the petitioner had submitted an application for
resignation on 01/06/2018, respondent Nos.3 to 5 issued several
communications demanding the amount of Rs.1,31,040/- which was
incurred against his training. It is further evident from the said
communication that respondent Nos.3 to 5 had shown their inability to
accept his resignation unless and until he deposits said amount. As the
resignation was neither accepted nor rejected, the petitioner again
approached the respondents on 21/01/2020, 27/08/2020 and
04/09/2020 requesting to join him on the same post. After his
application for withdrawal of the resignation nothing was communicated
to him. On the other hand he was directed to deposit Rs.1,31,040/-.
Subsequently, on 29/01/2021 by passing the order, his absence was
treated as an 'unauthorised absence' and he was treated as continued in
service. The learned Counsel for the petitioner as well as the learned
Counsel for the respondents relied upon the Government Resolution
dated 02/12/1997. Clause 2(A)(4) of the said Resolution shows that the
competent authority should take action if any employee tenders his
resignation, on priority and to communicate the decision within one
month from the date of the said application. Said timeline is to be
followed by the competent authority. Clause 2(A)(4) further states that
if nothing was communicated to the employee regarding the acceptance
or refusal of his resignation then after one month it is to be treated as
deemed acceptance. Clause 2(A)(8) of the said Resolution further states
that if any employee was absent from duty and submits a resignation
then his absence from the duty be treated as unauthorised absence till
the date of acceptance of his resignation. Clause 2(D)(1) of the said
Resolution deals with the resignation and effective date of the said
resignation. Clause 2(D)(2) states that before acceptance of the said
resignation if any employee makes request regarding withdrawal of the
said resignation, the Competent authority should consider the same by
assigning reason.
11. In the present case, admittedly nothing was communicated to
the petitioner regarding the acceptance or rejection of his resignation.
The communication dated 26/07/2018 shows that one show cause
notice was issued to him calling explanation regarding his absence. He
was continued in service by treating his absence as unauthorised
absence. As per the said Government Resolution it is the duty of the
Competent authority to decide the application for resignation within one
month from the date of the said application. The responsibility is of the
Competent authority to follow the said timeline. It is apparent in the
present case that the said timeline was not followed by the respondents.
Admittedly, Clause 2(A)(4) further states that if nothing is
communicated then it is deemed to be accepted. It is submitted by the
learned Counsel for the respondents that in view of Clause 2(A)(4) as
there is no communication regarding acceptance or rejection then after
one month it is deemed to be sanctioned. This submission could have
been accepted if the service of the petitioner was not treated to be
continued by treating his absence as unauthorised absence. As absence
of the petitioner was considered as unauthorised absence by treating him
as continued in service, therefore, the said submission of the learned
Counsel for the respondent Nos.1 to 4 cannot sustain. On the contrary,
in view of Clause 2(D)(2) if before any decision is taken regarding the
acceptance or rejection of the resignation, concerned employee makes
any request for withdrawing of the said resignation it is to be considered
by assigning the reason. Admittedly, in the present case before
acceptance of the said resignation, the petitioner had submitted his
application for withdrawal of the resignation, hence it was a duty of
respondent Nos.3 to 5 to consider the same and by assigning reasons
pass an order on the said application. As the respondents have not taken
any decision either on his application for resignation or the application
for withdrawal of the said resignation within the timeline. Subsequently ,
the notice of resignation was accepted after the petitioner had filed an
application for withdrawal of the said resignation which is arbitrary and
illegal.
12. The catena of decisions on which the petitioner had relied
upon shows that if voluntary retirement application was withdrawn
before actual voluntary retirement takes effect then it is to be accepted.
The Hon'ble Apex Court in the above said judgments held that the
application for withdrawal of resignation can be filed before acceptance
of the said application for resignation. Even this Court has also held that
the resignation is only an offer to put an end to relationship between the
employer and the employee and before such an offer is accepted by the
employer, the employee is entitled to withdraw it, unless, otherwise,
prescribed by rules relating to concerned service.
13. In view of the above that the Resolution dated 02/12/1997
and the catena of decisions of Hon'ble Apex Court and this Court, the
petition deserves to be allowed. Therefore, we proceed to pass the
following order :
ORDER
(i) The writ petition is partly allowed.
(ii) The Communication dated 29/01/2021 issued by
respondent No.2-Chief Administrative Officer, Maharashtra
Jeevan Pradhikaran by which the notice of resignation was
illegally accepted, is quashed and set aside.
(iii) The respondent Nos.2 to 5 are directed to
reinstate the petitioner on the post of Assistant Engineer with
continuity in service without backwages from 01/06/2018
till reinstatement.
14. Rule is made absolute in the aforesaid terms. There will be
no order as to costs.
(URMILA JOSHI-PHALKE, J.) (A.S. CHANDURKAR, J.)
*Divya
Signed By:DIVYA SONU BALDWA
Personal Assistant
Signing Date:28.09.2022 17:05
