Hari Om Goel vs Union Of India & Others
1999 Latest Caselaw 793 Del

ORDER

N.G. Nandi, J.

1. This writ petition under Article 226 of the Constitution of India involves a question whether a communication sent by the employee, by which he nilaterally purported to resign from his service from a future date and the acceptance of it by the employer can estops the petitioner from with-drawing the voluntary resignation before the expiry of notice period from which the resignation was intended to be effective?.

2. The petitioner was appointed as Building Supervisor in the institute of respondent, No. 2 on 19.9.1983. He was thereafter promoted in the pay scale of Rs. 00-60-2300-EB-75-3200-100-3500 w.e.f. 5.8.1993; that the petitioner because of the constant harassment volunteered to give notice of one month relinquishing his office from a future date; that the petitioner vide notice dated 15.9.1997 expressed his desire of relinquishing the office resigning from the service of respondent No. 2 w.e.f. 15.10.1997; that thereafter the respondent accepted the notice dated 15.9.1997 seeking voluntary retirement by the petitioner and communicated the acceptance of resignation by communication dated 24.9.1997, which was received by the petitioner on 3.10.1997; that thereafter on 10.10.1997 the petitioner sent a communication withdrawing his resignation and the same was received by the respondent on 13.10.1997. The petitioner was relieved from his duties w.e.f. 15.10.1997 for which a relieving order was issued by respondent No. 3 on 15.10.1997, which is challenged in the present petition.

3. It has been submitted by Mr. Sreekumar, learned counsel for the petitioner that by notice dated 15.9.1997, the petitioner sought voluntary retirement/resignation w.e.f. 15.10.1997; that thereafter the petitioner sent another communication dated 10.10.1997 withdrawing his resignation, which was sent vide communication dated 15.9.1999 before the resignation would come into effect i.e. before the effective date of 15.10.1999; that the respondent received the said communication on 13.10.1997 but ignoring the petitioner's withdrawal of resignation vide letter dated 10.10.1997, issued relieving order w.e.f. 15.10.1997, which is illegal; that the respondent could not have issued relieving order dated 5.10.1997 ignoring the withdrawal of resignation vide letter dated 10.10.1997 much before the effective date i.e. 15.10.1997 since it was open to the petitioner to withdraw the resignation.

4. It is submitted by Ms. Mahajan, learned counsel for respondents No. 2 and 3 that the Rules relating to resignation of respondent No. 3-Institute do not provide for the withdrawal of resignation and after the acceptance of the resignation of communication of the same to the petitioner, it is not open to the petitioner to withdraw the resignation.

5. It is the accepted position that the petitioner was in the service of respondent No. 3- Institute at the relevant time. It is also not in dispute that the petitioner vide letter dated 15.9.1997 tendered voluntary resignation notice of one month for being relieved w.e.f. 15.10.1997, it is equally not in dispute that vide office order dated 24.9.1997 the petitioner's letter dated 15.9.1997 resigning from the service of respondent No. 3 institute w.e.f. the afternoon of 15.10.1997 came to be accepted and the same communicated to the petitioner. It is also an accepted position that the petitioner continued to serve respondent No. 3-Institute till 15.10.1997 and vide Office Order dated 15.10.1997 he was relieved from the service of respondent No.3-Institute w.e.f. 15.10.1997 afternoon. Rule 18, which deals with the resignation by an employee of respondent No. 3, has been reproduced in the petition. It reads:-

"18. Resignation

(i) All employees may by notice of one month in writing addressed to the Appointing Authority resign from the service of the Institute.

(ii) The Appointing Authority may if it deems proper in any Special circumstances, permit an employee to resign from the service of the Institute by notice of less than a month."

It will be seen from the above that sub-Rule (I) of Rule 18, abovereproduced, provides that all employees may by notice of one month in writing, addressed to the appointing authority, resign from the service of the Institute.

6. The petitioner, in consonance with sub-Rule (I) of Rule 18 served the respondent with resignation notice of one month and requested for being relieved w.e.f. 15.10.1997. The respondent vide Office Order dated 24.9.1997 accepted the resignation tendered by the petitioner vide his letter dated 15.9.1997 effective from 15.10.1997 afternoon. According to the petitioner, the Office Order dated 24.9.1997 was served on him on 3.10.1997.

The Petitioner, on 10.10.1997, addressed a communication to respondent No. 2, stating that he withdraws his letter of resignation dated 15.9.97 with immediate effect and that the Office Order dated 24.9.1997 be treated as of no effect in view of the withdrawal of resignation by the petitioner. The said letter is stated to have been received by the respondent on 13.10.1997.

The petitioner worked with the respondent will the afternoon of 15.10.1997 and was served with Officer Order dated 15.10.97 relieving him from his service with respondent No. 3 on the basis of Office Order dated 29.9.1997 referred to above w.e.f. 15.10.1997 afternoon.

Thus, it emerges from the above that vide notice dated 15.9.1997 the petitioner relinquished his services w.e.f. 15.10.1997. The said resigna-

tion was accepted by the respondent on 24.9.97, the communication whereof was received by the petitioner on 3.10.97. On 10.10.97 the petitioner addressed communication to respondent No. 2 withdrawing his resignation notice/letter dated 15.9.1999. The same was received by the respondent on 13.10.1997. Thus it is clear that notice of one month given by the peti-

tioner under sub-Clause (I) of Rule 18 was withdrawn by the petitioner well within the time prior to the expiry of the notice period.

7. In the case, of Moti Ram Vs. Param Dev & Another the Supreme Court in paragraph 16 observed that "resignation" means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent author-

ity. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. ....".

It emerges from the facts that in the instant case, the resignation is a spontaneous relinquishment and perspective to be operative from a future date i.e. 15.10.1997.

8. It has been argued on behalf of the respondents that there is no provision in the rules of respondent No. 3, enabling the employee to withdraw his resignation once it is tendered and acceptance of the same communicated. The answer to this argument is provided in the case f Punjab National Bank Vs. P.K. Mittal , wherein, while dealing with the case of permanent officer in the said bank, who had sent a communication to the bank purporting to resign from a future date adding that the date of receipt of his letter should be treated as date of commencement of notice period, however, the bank informed the employee (petitioner) by a letter that his resignation was accepted with immediate effect by waiving the condition of notice. It was held by the Supreme Court that "such letter would be without jurisdiction and the resignation of the employee could have become effective only on the expiry of three months from the date thereof or from the date on which he wished to resign. In paragraph 8 of the judgment, it has been observed that "since the withdrawal letter was written before the resignation became effective, the resignation stands withdrawn, with the result that the respondent continues to be in the service of the bank. It is true that there is no specific provision, in the regulations permitting the employee to withdraw the resignation. It is, however, not necessary that there should be any such specific rule. Until the resignation becomes effective on the terms of the letter reads with Regulation 20, it is open to the employee on general principles , to withdraw his letter of resignation. That is, why in some cases of public services, this right of withdrawal is also made subject to the mission of the employer. There is no such clause here. It is not necessary to labour this point further as it is well settled by the earlier decisions of this Court in Raj Kumar Vs. Union of India, ."

9. On behalf of the respondent reliance is placed on the decision in the case of Raj Kumar Vs. Union of India wherein while dealing with the case of resignation by a Government servant and the acceptance of the same by the government wherein the government servant had requested for early acceptance of the resignation with a further request that the same be forwarded to the Government of India, the Government servant after the communication of the acceptance of the same by the Government withdraw the resignation, the Supreme Court held that "the government servant had no locus paenitentiae to so withdraw his offer of resignation after it was accepted; that the principle that an order terminating employment is not effective until it is initiated to the employee could not apply to the facts of the case and that there is no rule framed under Article 309 of the Constitution about when the resignation becomes effective."

10. Thus, it will be seen that in the case of Raj Kumar Vs. Union of India (supra) there was no rule framed under Article 309 of the Constitution of India as to when the resignation becomes effective. In the instant case, Rule 18(1) provides for one month's notice and in consonance therewith the effective date of resignation, as pointed out is 15.10.1997. The principle laid down in the case of Raj Kumar Vs. Union of India (supra) would be of no assistance to the respondent.

11. I am of the opinion that sub-Rule (I) of Rule 18 is intended not only for the protection of the employer but also for the benefit of the employee. It is common knowledge that a person proposing to resign often wavers in his decision and even in a case where he has taken a firm decision to resign, he may not be ready to go out immediately. In most cases he would need a period of adjustment and hence like to defer the actual date of relief from duties for a few months for various personal reasons. Equally an employer may like to have time to make some alternative arrangement before relieving the resigning employee. Rule 18(I) gives the employee a period of adjustment and rethinking. It also enables the employer to have some time to arrange its affairs with the liberty, in an appropriate case, to accept the resignation of an employee even without the requisite notice if he so desires it.

12. In view of the judgment in the case of Punjab National Bank Vs. P.K. Mittal (supra) and in the case of Balram Gupta Vs. Union of India & Another the withdrawal of notice being well within the time prior to the expiry of notice period, the petitioner would be entitled to withdraw the letter of resignation, before the effective date i.e. 15.10.1997. Looking to the object and spirit of sub-Rule (I) of Rule 18 whereby one month's notice is required to be given and the resignation not intended to be operative to be with immediate effect would be suggestive of a right of withdrawal of the resignation before the same become effective, no matter whether the resignation is accepted by the employer and communicated to the employee and whether the rule provides for the withdrawal of the resignation of future date, before the same becomes effective at a date intended by the employee. The right of withdrawal before the expiry of notice period is independent of the acceptance, if any, of the resignation by the employer. But in any case, the exercise of right of withdrawal of resignation has to be before the expiry of the notice period i.e. before the resignation comes into effect; in the instant case 15.10.1997.

13. It is not disputed that vide communication dated 10.10.1997 the petitioner withdrew his notice of resignation dated 15.10.1997 and the same has been received by the respondent on 13.10.1997 i.e. well within the time prior to the expiry of the notice period and the respondent could not have issued relieving order dated 15.10.1997 (afternoon) ignoring letter dated 10.10.1997, received on 13.10.1997, by which the resignation was withdrawn by the petitioner.

14. In the above view of the matter, the writ petition is granted. The relieving order dated 15.10.1997 relieving the petitioner from the service of respondent No. 3 w.e.f. 15.10.1997 (afternoon) is hereby quashed and the petitioner is put back to his job with immediate effect with all consequential benefits. The respondents shall ay the arrears of salary to the petitioner within eight weeks from today.

15. Petition disposed of.