Dr.Sabita Shome vs The Union Of India
2013 Latest Caselaw 1123 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Date of decision: March 06, 2013
+                         W.P.(C) 1494/2013
       DR.SABITA SHOME                                      ..... Petitioner
                          Represented by: Mr.Shankar Raju, Advocate.
                          versus

       THE UNION OF INDIA                           ..... Respondent
                     Represented by: Ms.Meera Bhatia, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J. (ORAL)

1. On February 21, 1994, the petitioner joined service as a probationer against the post of Specialist Grade-II. The probation was for a period of one year. Neither conformation nor extension of the probation was conveyed to her on completing one year service. She continued to serve and perform duties till April 12, 1998 and thereafter remained unauthorisedly absent from April 13, 1998 to February 17, 2000. In other words she remained unauthorisedly absent for 1 year and 10 months. We highlight that prior thereto she had worked only for 1 year and 2 months

2. Joining back on February 18, 2000, the petitioner was charge-sheeted for the offence of unauthorised absence. During pendency of the inquiry, she submitted a resignation on June 5, 2004 which was accepted by the competent authority on March 29, 2005. The reason for the delay being the

petitioner facing a departmental inquiry for a major penalty requiring the department to take a decision whether under the circumstances the petitioner could be permitted to resign or not.

3. Settling all dues, on June 21, 2006 the petitioner sent a representation praying that she be permitted to withdraw the resignation. She pointed out that due to her husband's suffering from Hepato Pulmonary Syndrome, a liver ailment, she had to take care of her bedridden husband and this was the reason why she could not attend her duties. She stated that the condition of her husband improved in the year 2006. The petitioner cited instance of Dr.V.K.Dogra who had resigned in the year 1992 but was permitted to withdraw the resignation after 8 years.

4. The department did not accept request made by the petitioner on June 21, 2006 to withdraw her resignation and this has led to the instant litigation commencing its journey before the Central Administrative Tribunal.

5. Needless to state, the Tribunal has not agreed with the petitioner.

6. The issue whether the petitioner stood confirmed or she was still on probation when she submitted her resignation is a non-issue inasmuch as : Whether a probationer submits a resignation or a confirmed employee submit resignation makes no difference to the question of the employee exercising the right to withdraw the resignation.

7. Thus, this aspect of the matter which has been extensively dealt with by the Tribunal is ignored by us. We treat that the petitioner stood confirmed.

8. Rule 26 of the CCS (Pension) Rules, 1972 requires a resignation to be accepted by the competent authority and upon acceptance entails forfeiture of past service. Sub-Rule 4 of Rule 26 of the CCS (Pension) Rules, 1972

empowers the appointing authority to permit a person to withdraw the resignation in public interest provided not more than 90 days have lapsed between the date when the resignation became effective and the date on which a person is allowed to resume duty. Rule 88 of the CCS (Pension) Rules, 1972 empowers the Ministry of Department of the Government concerned to dispense with or relax the requirement of the Pension Rules if operation of the Rules causes undue hardship or justice and equity so demands.

9. Thus, the question to be considered by us is : Whether the action of the department in not permitting petitioner to withdraw the resignation after 1 year and 3 months of the same having been accepted is legal or valid?

10. Now, with respect to matters of discretion, the jurisdiction of the Court is limited. It is the decision making process which has to be scrutinised by the Court and not the decision. An inquiry into the decision making process would include an inquiry whether the authority has properly drawn its attention to all relevant facts and has ignored the irrelevant facts.

11. From the order passed by the competent authority we find that the competent authority has taken note of the fact that the petitioner had rendered actual service of less than 5 years when she had submitted the letter to resign from service. The authority has taken note of the fact that the petitioner had been unauthorisedly absent for 1 year and 10 months. The authority has taken note of the fact that the petitioner was facing the charge- sheet. As regards Dr.V.K.Dogra, the authority concerned has taken note of the fact that Dr.V.K.Dogra had a long past service rendered when he submitted a resignation and that the reason why he had resigned was to be that his community was in the troubled State of Jammu & Kashmir where

militancy was at its peak.

12. Thus, all relevant facts have been considered by the competent authority and neither was the Tribunal to re-appreciate the same nor are we. The Tribunal has rightly refused to re-appreciate the facts.

13. An employee who renders less service and resigns would obviously be entitled to lesser indulgence when the employee seeks to withdraw the resignation as against an employee who has rendered longer service.

14. Besides, on matters of discretion no two cases can be identical.

15. The writ petition is accordingly dismissed in limine but without any order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE MARCH 06, 2013 skb