Shri A.K. Arora vs National Building Constructions ...
2009 Latest Caselaw 615 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  WRIT PETITION (C) No. 15429/2006


                                  Date of Decision : February 20, 2009

Shri A.K. Arora
                                                    .......Petitioner
                               Through Ms. Anisha Upadhyay, Advocate

                                 Versus

National Building Constructions Corporation Ltd.
                                                       .......Respondent
                                Through Nemo


CORAM :
    HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.    Whether Reporters of local papers may be allowed to see the
      judgment?

2.    To be referred to the Reporter or not? Yes

3.    Whether the judgment should be reported in the Digest? Yes



SUDERSHAN KUMAR MISRA, J.

1. The petitioner is working as an Assistant Engineer with the

National Building Constructions Corporation Limited (NBCC Ltd.), the

respondent herein. He has moved this Court under Article 226 of the

Constitution of India praying that the respondent be directed to accept

his resignation with immediate effect. The facts in a nut shell are as

follows:

The petitioner joined the respondent, which is a Government of

India Enterprise, as Junior Engineer on 28.1.1985. He was promoted to

the post of Assistant Engineer and was designated as Project

Executive. On 4.10.2005, he wrote a letter seeking voluntary

retirement. There he also stated that if his request for voluntary

retirement is not granted, that letter be treated as his resignation from

service with immediate effect. However, on 8.11.2005, the petitioner

was informed that the competent authority had considered his request

and had refused the same due to administrative reasons. The letter

stated as follows:

"In the matter it is to inform you that your aforesaid request has been considered by the competent Authority but the same has not been agreed to due to administrative reason."

2. Another letter sent by the petitioner on 15.12.2005 to the

Chairman cum Managing Director of the respondent repeating his

request for voluntary retirement/ resignation did not elicit any

response. The petitioner also sent a reminder dated 19.7.2006,

requesting the respondent to accept his request for voluntary

retirement or resignation with immediate effect. Thereafter the

petitioner stopped attending office. On 8.8.2006, the petitioner was

again informed by the respondent that his request had been

considered carefully by the competent authority but could not be

granted due to administrative reasons. The relevant portion of that

letter is as follows:-

"Your request has been considered carefully by the Competent Authority but it is regretted that the same has also not been agreed to due to administrative reason."

Consequently, the petitioner again sent a letter dated 28.8.2006 to the

Chairman cum Managing Director of the respondent which also proved

to be of no avail.

3. Before delving into the matter, it is important to point out

that in spite of a number of opportunities having been granted to the

respondent to file its counter-affidavit, the respondent failed to file the

same. Consequently, on 8.1.2008, the right of the respondent to file its

counter affidavit was closed.

4. The controversy in the instant case deals with the concept

of resignation. The term resignation according to Black's Law

Dictionary 6th Edition means;

"Resignation. Formal renouncement or relinquishment of an office. It must be made with intention of relinquishing the office accompanied by the act of relinquishment."

According to the petitioner the tendering of a resignation is a legal

right of the employee which cannot be curtailed or denied by any

authority. It has also been contended by the petitioner that his

resignation was rejected merely for "administrative reasons" and his

efforts to seek clarification with regard to this expression were in vain

therefore he is entitled to the relief prayed for.

5. Whilst, it is correct to say that an employee may resign at

any time, unless there is something contrary in the service rules or the

contract, but for an act of resignation to become complete and

effective, other factors also play a pivotal role. While discussing the

meaning of the term resignation, these factors were pointed to by the

Supreme Court in Moti Ram Vs. Param Dev, (1993) 2 SCC 725 where

the Court held that;

"16. As pointed out by this Court, „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. [See: Union of India v. Gopal Chandra Misra.] 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 authority. 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..... In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it."

The Court further held that;

"18. A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer. Insofar as Government employees are concerned, there are specific provisions in the service rules which require acceptance of the resignation before it becomes effective...."

6. In J.K. Cotton Spinning & Weaving Mills Ltd. Vs. State

of U.P., (1990) 4 SCC 27 the Supreme Court held that;

"4....Therefore, one of the ways of terminating the contract of employment is resignation. If an employee makes his intention to resign his job known to the employer and the latter accepts the

resignation, the contract of employment comes to an end and with it stands severed the employer- employee relationship. Under the common law the resignation is not complete until it is accepted by the proper authority and before such acceptance an employee can change his mind and withdraw the resignation but once the resignation is accepted the contract comes to an end and the relationship of master and servant stands snapped.

7. Although, neither the petitioner nor the respondent has

placed on record any service rules or guidelines governing the services

of the employees in the respondent corporation; the petitioner‟s prayer

that this court direct the respondent to accept his resignation, implies

his awareness that the service rules governing his employment require

his resignation to be accepted by the competent authority. It is thus

obvious that in this case also, resignation is a bilateral act in the sense

that tendering of the resignation was not sufficient by itself to bring

the contract of service to an end. For that, it required an order of

acceptance by the competent authority.

8. The Supreme Court in Secretary Technical Education,

U.P. Vs. Lalit Mohan Upadhyay, (2007) 4 SCC 492 held that,

"17. The general principle is that a government servant/or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office normally the tender of resignation becomes effective and his service/or office tenure gets terminated when it is accepted by the competent authority..."

9. In Raj Narain Vs. Indira Nehru Gandhi, (1972) 3 SCC

850:-

"21....The question as to when a Government servant‟s resignation become effective came up for consideration by this Court in Raj Kumar v. Union of India. Therein this Court ruled that when a public servant has invited by his letter

of resignation the determination of his employment, his service normally stands terminated from the date on which the letter of resignation is accepted by the appropriate authority...."

10. The question that is to be decided now is whether the

respondent can reject the resignation of the petitioner or not. The

Supreme Court in Central Inland Water Transport Corporation Vs. Brojo

Nath Ganguly, (1986) 3 SCC 156 whilst pointing out few instances

where the employer can reject the resignation of an employee held

that;

"111.... By entering into a contract of employment a person does not sign a bond of slavery and a permanent employee cannot be deprived of his right to resign. A resignation by an employee would, however, normally require to be accepted by the employer in order to be effective. It can be that in certain circumstances an employer would be justified in refusing to accept the employee‟s resignation as, for instance, when an employee wants to leave in the middle of a work which is urgent or important and for the completion of which his presence and participation are necessary. An employer can also refuse to accept the resignation when there is a disciplinary inquiry pending against the employee. In such a case, to permit an employee to resign would be to allow him to go away from the service and escape the consequences of an adverse finding against him in such an inquiry. There can also be other grounds on which an employer would be justified in not accepting the resignation of an employee..."

11. The above decision of the Supreme Court was reiterated by

the Supreme Court in Moti Ram's case (supra). Recently a Single Bench

of Bombay High Court in Dr. Nayna Vs. Dr. Vimal and Anr.

2008(3)MhLj156 also reiterated this proposition. Similar was the

approach of the Calcutta High Court in the case of Sisir Kumar Dutta

Vs. Union of India & Ors. 2002 (92) FLR 372 where the court held that;

"11. In the instant case, the petitioner is an employee of a Government owned company and, therefore the act of relinquishment has to be construed as of a bilateral character. The resignation letter to take effect would require to be accepted by the employer. Non-acceptance thereof has to be for valid reasons. In Central Inland Water Transport Corporation‟s case (supra), it has been declared that an employer can also refuse to accept the resignation when there is a disciplinary enquiry pending against the employee......."

From the above judgments it becomes clear that when a disciplinary

enquiry is pending against an employee, the employer can refuse to

accept his resignation. In such a case, the employee cannot claim a

right to resign and compel the employer to accept the same.

12. In the case at hand, after being informed of the rejection of

his resignation, the petitioner himself states in his letter dated

15.12.2005 to the respondent that;

"... I may appraise your goodself that the reply to the Inquiry Officer in disciplinary case pending against me has been submitted by me about three months back, result of which is still awaited.

In view of the above, I may request your goodself to kindly get my decision in my disciplinary case expedited and accept my Voluntary Retirement as I am under super cession for the last more than two years."

Thus, the fact that a disciplinary inquiry was pending against the

petitioner may have been the reason for the non-acceptance of the

petitioner‟s resignation, and possibly the petitioner was also aware of

this fact. Significantly, there is not even whisper in the petition of any

disciplinary enquiry pending against the petitioner.

13. The power of this Court under Article 226 of the

Constitution of India is a discretionary power which has to be exercised

looking to the facts and circumstances of the case. In K.D.Sharma

vs. Steel Authority of India Ltd. and Ors. JT 2008 (8) SC 57, the

Supreme Court emphasized the necessity of placing all the relevant

facts before the Court, "clearly, candidly and frankly." It held, inter

alia, as follows:

"24. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim.

25. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commissioners (1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136 in the following words:

It has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- it says facts, not law. He must not misstate the law if he can help it; the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the Court will set aside any action which it has taken on the faith of the imperfect statement."

(emphasis supplied)

..........................................................................

28. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play `hide and seek' or to `pick and choose' the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts".

In the instant case, the petitioner has not stated all the relevant facts

fully and fairly. Instead of being truthful, frank and open in disclosing

all the material facts without any reservation, even if they are against

him, he has chosen not to disclose the fact that an enquiry was

pending against him at the time he sought resignation. This was a

material fact which could have a direct bearing on the outcome of this

case. At the same time, I notice that on 11.10.2006, this Court noted

the statement of the respondent‟s counsel that the matter is being

investigated by the Central Vigilance Commission and that the

respondents have sought the advise of that Commission. Furthermore,

the petitioner has not bothered to place the relevant service rules

governing his employment on the record and, as recorded in this

court‟s order reserving judgment, petitioner‟s counsel has addressed

the court for only two minutes. No precedents were cited. I feel that

all the necessary and material facts and circumstances are not before

the Court. Clearly, the petitioner has not placed all the facts before

this Court, "clearly, candidly and frankly," as he should have done.

[See K.D.Sharma Vs. Steel Authority of India Ltd. and Ors.

(supra)]. The petitioner‟s conduct does not inspire confidence. The

petition deserves to be rejected on this ground alone.

14. If there is an inquiry pending or even contemplated against

a delinquent officer on charges that are serious enough to entail a

reference to the Central Vigilance Commission, it would certainly be

within the scope of sound administrative decision making to prevent

such an officer from conveniently stymieing the process and avoiding

punishment by using the device of resignation. Most service rules are

designed to avoid just such a situation and empower the employer to

refuse to accept the resignation tendered. Here, the petitioner‟s own

letter shows that he is facing an inquiry. There is also a statement by

respondent‟s counsel that a reference has been made to the Central

Vigilance Commission against the petitioner. To my mind, in view of

these facts, merely because the petitioner is informed that the

competent authority has rejected his resignation, "due to

administrative reasons," without communicating those reasons, would

not by itself entitle him to relief. Furthermore, no arguments have

been addressed and no precedent cited to show that the competent

authority was obliged to record specific reasons for rejecting the

petitioner‟s request for resignation or that the authority or its officers

were obliged to communicate all those reasons to the petitioner failing

which any decision refusing to accept the resignation is bad and

deserves to be quashed. I might add that it is not as if the request

has been refused without any reason whatsoever. What is

communicated to the petitioner is that his request was turned down by

the competent authority for "administrative reasons". To my mind,

therefore, the reasons are certainly there. The only thing is that they

have not been spelt out in the communication to the petitioner. The

only question can be whether the employer was required to

communicate all such reasons that exist on the record. Then again,

the question arises whether in such situation, the employer can be

compelled by way of certiorari to disclose the reasons for its decision

or whether the non-disclosure of the reasons on which the impugned

decision is based, to the employee, ipso facto renders that decision

bad and further whether under such circumstances, instead of any

further directions, such as directing the authority to reconsider the

matter and to decide the same after recording its reasons, this Court

would have no option but to grant a mandamus directing the authority

to accept the resignation tendered by the employee i.e. the petitioner

in this case. No arguments were addressed on any of these aspects

nor were any precedents cited in this behalf.

15. Under the circumstances and for all the above reasons, the

petition does not warrant the exercise of power under Article 226 of

the Constitution of India and the same is dismissed.

Sudershan Kumar Misra, J.

February 20, 2009 sl