Prem Prakash vs Air India Corporation
1993 Latest Caselaw 228 Del

JUDGMENT

Devindergupta, J.

1. Petitioner has in this writ petition filed under Article 226 of the Constitution prayed for quashing of communications Annexure F dated February 10, 1993 and subsequent communications dated February 26, 1993 and March 26, 1993 (Annexure K). In a nutshell the petitioner's grievance is against the action of the respondent in declining to act on the withdrawal of petitioner's resignation which according to the petitioner had been conveyed to the respondent before acceptance of the resignation. Petitioner's case is that resignation was tendered to an incompetent authority and it was not a valid resignation and in any case its acceptance irrespective of its withdrawal on February 10, 1993, was by an incompetent authority and as such the same is non-est.

2. Facts in brief are that the petitioner, a permanent and confirmed employee of Air India and posted as Traffic Assistant at Delhi, on February 3, 1993 submitted his resignation with immediate effect by sending a telegram Annexure B addressed to the Manager-Northern India, Air India, Himalaya House, New Delhi. It was followed by a letter dated February 8, 1993 (Annexure C), which affirmed the tendering of resignation from the service of the Corporation effective from the date of telegram. It was stated that the resignation was being tendered due to personal reasons with a request to accept the same. It is the petitioner's case that the telegram was sent by him in a state of panic when he was in grave mental tension and it was under the same tense condition that letter of February 8, 1993 was sent by him. On the very next day namely, February 9, 1993 the petitioner with drew his resignation by sending telegram Annexure D, which was followed by letter Annexure E dated February 11, 1993. There has been no acceptance of the resignation tendered by the petitioner till the telegram Annexure D, and letter Annexure E were sent and duly communicated to the respondents. As such the resignation stood withdrawn before it could be accepted. It is also stated that the resignation was not addressed to the Competent Authority. The Customer Relations Manager (Smt. Gian Claire) respondent No. 2 had compelled the Petitioner to tender resignation under threat of being transferred outside Delhi. Petitioner had tendered his resignation to the Manager-Northern India. He was not the Competent Authority under the Rules. Competent Authority according to the statutory rules, is the Commercial Director stationed at Bombay. As such the resignation letter itself was a nullity. It is alleged that letters, Annexure F, purporting to be dated February 10, 1993 and February 12, 1993 respectively were despatched by the respondent to the petitioners only on February 26, 1993 signed by the second respondent and thus by pre-dating letters Annexure Fas February 10, 1992 and February 12, 1993 by respondent No. 2 that the petitioner's resignation had been accepted before receipt of the withdrawal there of is a mala fide act on the part of the respondents. This purported acceptance of the resignation which was withdrawn by the petitioner through telegram on February 9, 1993 which was received by the respondents on February 10, 1993 is a nullity and bad in law. It is also stated that after the resignation was withdrawn by the petitioner by sending telegram Annexure D on February 9, 1993 the petitioner had also personally delivered in the respondents' Delhi office letter Annexure E on February 11, 1993. Thereafter on February 12, 1993 and February 15, 1993 the petitioner reported for duty but was advised to wait for formal orders. Finding no response the petitioner taxed copy of the letter Annexure E dated February 11, 1993 to Bombay office on February 15, 1993 and also gave a representation Annexure G dated February 15, 1993 and submitted further representations. Annexure H dated February 18, 1993, Annexure I dated February 23, 1993 and Annexure J, dated March 2, 1993. In response to which through letter dated March 25, 1993 (Annexure K) the petitioner was ins formed that his resignation had been accepted on February 10, 1993 before the receipt of the letter of withdrawal dated February 11, 1993.

3. In the light of the above, the petitioner's contentions are that the entire action of the respondents is bad in law; the resignation was not tendered to the Competent Authority; it was not accepted by the Competent Authority; acceptance was predated as February 10, 1993, it was not despatched to the petitioner but only a copy thereof was despatched to the petitioner along with covering letter dated February 26, 1993 (Annexure F) before the resignation could be accepted by the Competent Authority or even before the alleged acceptance by the respondents, the petitioner had already withdrawn his resignation through telegram dated February 9, 1993. Consequently, the petitioner has prayed that on quashing of the letters the respondents he directed to allow the petitioner to resume his duty as Traffic Assistant.

4. The respondents have filed their reply on the affidavit of Shri D. S. Kohli stating that the petitioner had submitted his resignation on February 3, 1993 through telegram, which was followed by letter dated February 8, 1993. Resignation was accepted on February 10, 1993, after the concerned authorities had approved the same. The concerned authorities had consequently confirmed the approval of acceptance of is resignation vide telex dated February 17, 1993 and letter dated February 18, 1993, copies of which have been annexed with the reply as Annexure A. It is stated that the resignation was required to be submitted to the concerned authority to whom the petitioner would be answerable at his office of posting, which in the instant case is Manager, Northern India/ Customer Relations Manager, Northern India. It is Stated in the reply that the resignation was tendered and the same was also accepted by the Competent Authority. The Petitioner sent telegram on February 3, 1993 stating that he wished to resign for personal reasons and that the same be accepted with immediate effect. A copy of telegram was sent to Commercial Manager, Bombay on February 4, 1993. Subsequently the petitioner sent a formal letter of resignation dated February 8, 1993. The affidavit says that on receipt of confirmation from Commercial Manager (Admn.), subsequently confirmed through telex and letters dated February 17, 1993 and February 18, 1993 respectively, it was conveyed to the petitioner vide letter dated February 10, 1993 that his resignation had been accepted with effect from February 3, 1993.

5. After this reply respondent No. 2 filed an additional affidavit sworn on November 29, 1995 stating that as Commercial Manager (Offg.) petitioner's resignation was accepted by her prior to its withdrawal. Telegram dated February 9, 1993 was received after the letter of acceptance of resignation dated February 10, 1993 had been sent by her. The petitioner in rejoinders has controverted the respondents' contention that resignation in fact was accepted on February 10, 1993. According to the petitioner it was predated after the respondents had received the telegram dated February 9, 1993 and the letter dated s February 11, 1993.

6. We have heard Counsel for the parties and been taken through the record. During the course of hearing respondents also produced the relevant correspondence file. The relevant Service Regulations applicable in the instant case are known as the Air India Employees' Service Regulations. Regulation 49 deals with resignation and says that no employee shall resign from service except by giving such notice as he would have received under Regulation 48, if his services were to be terminated, unless at the request of the employee the notice is waived or a shorter notice is accepted in writing by the Competent Authority. Regulations 48 & 49 are quoted as under :

"48. Termination : The services of an employee may be terminated without assigning s any reason, as under :

(a) of a permanent employee by giving him 30 days' notice in writing or pay in lies of notice;

(b) of an employee on probation by giving 7 days' notice in writing or pay in lieu of notice;

(c) of a temporary employee by giving him 24 hours' notice in writing or pay in lieu of notice.

Explanation : For the purpose of this Regulation, the word "pay" shall include all emoluments which would be admissible if he were on privilege leave.

49. Resignation : (i) No employee shall resign from the service of the Corporation except by giving such notice as he would have received under Regulation 48 if his services were to be terminated, or compensation in lieu of such notice, unless, at the request of the employee, the notice is waived or shorter notice accepted in writing by the Competent Authority. Such compensation shall be equivalent to the amount of the pay as defined in the explanation to Regulation 48, which the employee would have drawn during the period by which the notice falls short of the prescribed period, and shall be deemed to be a liability owed to the Corporation for the purpose of Regulation 22(2) of the Air India Employees' Provident Fund Regulations, 1954.

(ii) A resignation given under (i) above may be accepted with immediate effect or at any time before the expiry of the period of notice, in which case the employee shall be paid his salary in respect of the entire period of notice given by him.

(iii) In case a shorter period of notice is accepted at the request of the employee, he shall be entitled to receive his pay and allowances only for the actual number of days worked.

(iv) If an employee leaves the service of the Corporation without giving any notice or by giving inadequate notice, such resignation shall be liable to be construed as a misconduct and may entail any of the punishments prescribed under Regulation 43.

(v) Notwithstanding anything contained in Clauses (i) to (iii) above, an employee shall not be entitled to tender his resignation and any resignation tendered by him shall not be effective or operative against the Corporation, if, at the time when such resignation is tendered disciplinary action is pending against him or is intended or proposed to be taken against him by the appropriate authority."

7. Competent Authority has also been defined under Regulation 3(e) to mean, in relation to exercise of any power, the Corporation, the Chairman, the Managing Director, the Head of Department or any other officer specified in that behalf. In so far as the disciplinary and Appellate Authorities are concerned, for the Commercial Departments, the Station Head is the authority empowered to impose 'any' or all punishments under Regulation 43 with respect to any employee, not above the grade of Traffic Assistant or its equivalent. There has been amendment in the Regulations published in Gazette of India on July 25, 1992. After amendment the Station which named Station Manager or its equivalent is the authority in the Commercial Department empowered to impose any or all punishments on any officer in the grade of Asstt. Station Supdt, or its equivalent. It is stated on behalf of the respondents that in view of the amendment the Customer Relations Manager, Northern India would be the Competent Authority for the purpose of acceptance of resignation as well.

8. Proceeding on the assumption that the Customer Relations Manager would be Competent Authority to accept resignation, the short question which would remain to be decided would be that whether the petitioner's resignation was accepted by the respondents before the same was withdrawn by the petitioner. It is not disputed that the petitioner's telegram dated February 9, 1993 withdrawing resignation which he had tendered through telegram dated February 3, 1993 was received by the respondents on February 10, 1993. Respondents' version is that before the telegram was received the resignation was accepted by respondent No. 2 on February 10, 1993. Petitioner's version is that neither the resignation was accepted on February 10, 1993 nor it was communicated to him. It was communicated only when letter dated February 26, 1993 Annexure F was sent to him along with the copies of two letters purported to be dated February 10, 1993 and February 12, 1993. In view of the specific stands which have been taken by the parties, particularly the petitioner, it was but necessary for the respondents to have produced on record some corroborative evidence of despatch of letters dated February 10, 1993 and February 12, 1993 to the petitioner, which the respondents have not done. Petitioner had specifically denied in the petition that letter dated February 10, 1993 and February 12, 1993 were ever despatched to him. He had also specifically alleged that the same were sent to him for the first time along with letter dated February 26, 1993 and on that basis it was stated by him that the respondents had pre-dated these two letters and it was done after the receipt of his letter Annexure E dated February 11, 1993.

9. Under Regulation 49 it would be necessary for an employee, who intends to tender resignation to serve a notice, duration of which would be as per the provisions of Regulation 48. In the instant case, the petitioner was a confirmed employee and admittedly in case it would be necessary to serve 30 days' notice in writing. Consequently the petitioner could have tendered his resignation by giving one month's notice or paid compensation in lieu of such notice. This condition is subjected to a proviso that at the request of the employee tendering resignation, the notice period could be waived or a shorter notice could be accepted but by an order in writing by the Competent Authority. Admittedly in the letter alleged to be dated February 10, 1993 there is no mention as regards the compliance of the requirements of Regulation 49. It nowhere says that there was a request by the petitioner for waiving of the notice or that the Competent Authority had accepted the shooter notice in lieu of 30 days' notice. Non-mentioning of these requirements of Regulating 49 would be one of the circumstances leading to drawing of an inference that letter dated February 10, 1993 in fact had neither been prepared, signed or despatched to the petitioner till receipt of his telegram dated February 9, 1993 nor there was any acceptance till February 26, 1993. This drawing of inference finds support from the contents of two documents Annexure A (collectively), which are appended by the respondents with their reply. First document is the telex message dated February 17, 1993 received from Bombay office which reads :

"QU DELRZAI

BOMCDAI

EST/D-6/17FEB. CLAIRE RE RESG FVR PREM PRAKASH TA ST NO. 46791 STP

AS RECOMMENDED WE CFMIT IS IN ORDER TO ACCEPT HIS RESG EFF 03 FEB

ONE MONTH PAY IN LIEU OF NOTICE MAY BE DEDUCTED AT THE TIME OF FINAL SETTLEMENT STP."

10. The purport of the letter which admittedly is addressed to respondent No. 2 is that the recommendation made by Delhi office to the Bombay Head Office for acceptance of the resignation was approved subject to the condition that at the time of settlement of accounts one month's salary in lieu of notice be deducted. It was recommended to accept resignation with effect from February 3, 1993. The other document attached with the reply is letter dated February 18, 1993 from the Commercial Department Bombay addressed to the Deputy Manager (Admn.) which reads :

  
 

 "From : Commercial Department  
 Bombay.                          Date : Feb 18, 1993
 

 To : Dy, Manager-Admin., Ref No. EST/D-New Delhi. 
 

 Sub : Mr. Prem Prakash, Ta  
 

 St. No. 46791 - Resignation. 
 

 Please refer to our telex No. EST/D-6 of February 17, 1993, confirming acceptance of Mr. P. Prakash's resignation effective February 3, 1993.  
 

 2. As recommended by you we confirm that the resignation of Mr. Prem Prakash, St. No. 46791 may be accepted with immediate effect i.e. February 3, 1993.  
 

 3. One month's salary in lieu of notice may be deducted at the time of final settlement.  
 

Sd/- 

(Mrs. B. Rastogi) 

Asstt. Manager - Traffic Admin.
 

cc : Personnel Manager (E), Santa Cruz. 

Along with resignation letter dated Feb. 

03, 1993 from Mr. Prem Prakash, TA St. 

No. 46791 and a copy of vigilance clearance 

cc : Sr. Accounts Officer, Pay & Accounts, Santa Cruz. 

cc : Sr. Medical Officer, Medical Clinic, New Delhi."  
 

11. Obviously the second letter dated February 18, 1993 confirms the telex message dated February 17, 1993. The telex message was received in the Delhi Office on February 17, 1993 whereas the confirmatory letter was received on February 26, 1993. It was on February 26, 1993 that petitioner through letter Annexure F was informed by respondent No. 2 that his resignation had been accepted. This letter of February 26, 1993 was accompanied by copies of two letters bearing dates February 10, 1993 and February 12, 1993. From the original file, which was produced for our perusal, we noticed that on February 9, 1993, on the strength of the petitioner's telegram dated February 3, 1993 recommendation was made to the Commercial Department, Bombay for accepting petitioner's resignation to be effective from February 3, 1993. In other words till February 9, 1993 there was nothing on the file to show that in the office of the Deputy Manager (Admn.), New Delhi or by the Customer Relations Manager or there was any proposal to accept resignation except the recommendation. The Delhi office was awaiting for the confirmation of acceptance of petitioner's resignation from Bombay Head Office. Telex message dated February 17, 1993 suggests that recommendation, which was made by the Delhi office recommended acceptance of the resignation was approved and the same was stated to be in order. Delhi Office was asked to accept petitioner's resignation effective from February 3, 1993 and directing that one month's pay in lieu of notice may be deducted at the time of final settlement. This telex message was followed by letter dated February 18, 1993 clearly stating that petitioner's resignation may be accepted with immediate effect i.e., February 3, 1993 and one month's salary in lieu of notice may be deducted at the time of final settlement. This acceptance would be in consonance with the provisions of Regulation 49 whereas the impugned letter dated February 10, 1993 states nothing about the compliance of the requirements of Regulation 49. The impugned letter dated February 10, 1993 reads :

"We refer to your telegram dated February 3, 1993 and letter dated February 8, 1993 tendering your resignation from the services of the Corporation.

2. We wish to advice you that your resignation from the services of the Corporation has been accepted effective from February 3, 1993 as indicated in your letter of resignation dated February 8, 1993.

3. By means of a copy of this letter we are advising our Personnel Manager-NI to initiate action regarding settlement of your dues."

12. Even what is stated by respondents in reply filed on the affidavit of D. S. Kohli would fortify the view being taken by us that there has been no acceptance of petitioner's resignation till February 17/18, 1993, when in para 5 it is stated;

"The answering respondents accepted the resignation on February 10, 1993 after the concerned authorities had approved the same and subsequently confirmed the approval vide telex dated February 17, 1993 and letter dated February 18, 1993 Copies of which are annexed hereto as Annexure 'A'".

13. What is stated in the counter affidavit is that petitioner's resignation was accepted after the concerned authorities had approved the same. There was no approval on the file from the concerned authorities except through telex and the letter dated February 17/18, 1993. No document was shown to us nor any was available that approval, if any, had been accorded by the Head Office or received prior to February 17, 1993. Had the petitioner's resignation been accepted on February 10, 1993, in normal course, the impugned letter would have been despatched to the petitioner on the same day. Had this been the position, nothing prevented the respondents from producing on record any corroborative evidence about the despatch of the impugned letter dated February 10, 1993 on February 10, 1993. In the absence of the same an adverse inference deserves to be drawn that had such record been produced the same would have definitely shown that on such letter was ever despatched on February 10, 1993.

14. In view of the above, we have no hesitation in concluding that there has been no acceptance of petitioner's resignation dated February 3, 1993 till the telegram dated February 9, 1993 was received by the respondents and the act of acceptance of the resignation was subsequent to the receipt of the telegram. The resignation which stood withdrawn validly by the petitioner before its acceptance became non-est. Other wise also, assuming that the acceptance was through letter dated February 10, 1993, the same was not strictly in consonance with Regulation 49 and the same will also make the acceptance to be bad, being violative of Regulation 49.

15. Resultantly, petition deserves to be allowed by quashing the impugned order/communications. Ordered accordingly. It is held that the petitioner continues to be on the service of the respondents without any break in service and consequently he will be duly assigned his job which he had been performing, namely, Traffic Assistant and paid his dues within a period of two months from today.