Govt. Of Nct Of Delhi & Ors. vs Manoj Kumar
2014 Latest Caselaw 4118 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                          Date of Decision: 03.09.2014

%                            W.P.(C) 5560/2010

      GOVT OF NCT OF DELHI & ORS
                                                          ..... Petitioners
                             Through:    Ms. Zubeda Begum, Standing
                                         Counsel with Ms. Sana Ansari,
                                         Advocate
                             versus

      MANOJ KUMAR
                                                            ..... Respondent

Through: Mrs. Rekha Palli and Ms. Ankiya Patnaik, Advocates

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

S. RAVINDRA BHAT, J. (OPEN COURT)

1. The petitioner/GNCTD is aggrieved by an order of the Central Administrative Tribunal (CAT/ Tribunal) dated 20.05.2010 passed in O.A. No.1203/2010, by which it has directed reinstatement of the respondent/applicant back into service with full arrears of salary etc. from the date of his ceasing to be in employment, i.e. 20.03.2010.

2. The brief facts of the case are that the petitioner, for the first time, by an order dated 04.10.2001 appointed the respondent/applicant as a CSSD Technician on contractual basis in the regular pay scale of Rs.4500-7500 plus admissible allowances.

The contract was expressedly for 89 days renewable at the option of the petitioner; it also was conditioned upon a letter of request being furnished by the concerned employee. Another condition was that in the event the respondent wished to terminate his services, he had to serve seven days advance notice.

3. The respondent/applicant was given numerous extensions; the last one being on 23.09.2009 for a period of one year effective from 10.06.2009 with compulsory one day break on completion of 89 days. On 12.03.2010, the respondent/applicant submitted his resignation letter, but stated that it would be effective from 20.03.2010. On 18.03.2010 (two days before the date the resignation was to become effective), the respondent/applicant sought to withdraw his resignation and claimed that he met the concerned officer with a representation. He was, however, informed that the resignation had been accepted. He applied to the Principal Health Secretary on 19.03.2010 requesting his intervention.

4. The GNCTD claimed that it had accepted the resignation. However, this was in effect on 20.03.2010 - for which the petitioner relies upon the statement in the letter of the GNCTD that "resignation on personal reasons may be accepted with effect from 20.03.2010".

5. In such circumstances, the respondent/applicant approached the CAT for a suitable direction that he be continued in service on account of the withdrawal of resignation. The impugned order

directed the petitioner to take back the respondent/applicant, after considering the materials on record as well as the various decisions relied upon.

6. It is contended on behalf of the petitioner that the Tribunal overlooked a material aspect, namely, that the respondent was a contractual employee, virtually at sufferance of the Government, inasmuch, as, the tenure of his service was applicable for 89 days and that the renewal was subject to a written request by him. Learned counsel, underlining this aspect, stated that - this meant that the other rules and entitlement which enured in favour of a regular employee of the Government could not be availed of by such a contractual employee. It was also argued that since the notice period itself ended, there was no question of withdrawal of the resignation. Learned counsel sought to distinguish the decisions of the Supreme Court relied upon by the Tribunal, contending that once the notice period expired, the right of the employee to continue, or claim to be reinstated, did not arise.

7. Learned counsel relied upon the decisions of the Supreme Court in State Bank of India & Ors. v. S.N. Goyal, (2008) 8 SCC 92, to say that a distinction has to be kept in mind between those civil servants entitled to the protection under Article 309 to 311 of the Constitution, the workmen who can avail benefits under the Industrial Disputes Act, and; the employees of statutory bodies who can claim reinstatement. In all those classes of employees, the law declared by the Supreme Court with regard to the right of employee -

who withdraws the resignation before the date it becomes effective, would apply. However, in the case of contractual employees, or where the employer-employee relationship is one of master-servant relationship, under a contract of common law, such a right cannot be discerned.

8. It was lastly contended that the respondent/applicants conduct was viewed in the background of his previous two attempts to resign, and subsequently resile from such resignation - just before they became effective. It was contended that such action of the respondent would lead to uncertainty and potential serious disruption of work, given the nature of duties assigned to him as a para-medic. Consequently, it was decided by the petitioner to accept the resignation and thereafter not to permit him to join the duties.

9. Learned counsel for the respondent/applicant submits that the law declared by the Supreme Court consistently in its judgments reported as Balram Gupta v. Union of India & Anr., (1987) 3 SCR 1173 upto Srikhanta SM v. Bharat Earth Movers Ltd., (2005) 8 SCC 314 has been that : wherever the conditions of service do not expressly stipulate the acceptance of a resignation, the employee is within his rights to withdraw it, before it becomes effective. Learned counsel also submits that whilst there can be no dispute about the applicability, or otherwise, of Article 309 of the Constitution, yet, under the circumstances, the same is not a relevant factor in determining the issue, as the law relied upon by the respondent is generally applicable to public employees.

10. It is evident from the above discussion that what is in issue here is whether the respondent/applicant could legally claim to be entitled to withdraw his resignation, given that he had submitted it on 12.03.2010 and sought to resile from it 18.03.2010, before it became effective from the date mentioned in the resignation letter, i.e. 20.03.2010.

11. As to the first argument advanced by the petitioner, i.e. whether the notice period ended - this argument, in our opinion, can be easily disposed off on the facts and circumstances itself. Even if the notice period is to be calculated in the ordinary manner, it would expire only on 19.03.2010 and not on 18.03.2010, when, in fact, the resignation was sought to be withdrawn. As far as the second argument is concerned, i.e. whether the respondent had any entitlement to withdraw the resignation letter, this Court is of the opinion that the distinction sought to be made between two classes of public employers, at least in respect of the petitioner/GNCTD, is immaterial. There is no dispute that the post of CSSD Technician is one borne in the regular cadre - even though the appointment is contractual. (Furthermore, the procedure adopted for filling up the vacancy in the present case on contractual basis where the Government needed permanent employee - so that it would enable to secure them in the manner known to law or prescribed by rules. Therefore, it resorted to the perhaps expedient method - to employ people on short term basis). In this case, the short term contract was for a period of nine years.

12. Given these conspectus of circumstances, it could hardly be said that the relationship was a master-servant one, or that the GNCTD was not a public employer in relation to - what is conceded, a public post. If there was any lingering doubt as to what is meant by a public employer, various decisions of the Supreme Court involving employers, the terms and conditions of whose employment were not embodied in any manner of statutory rules, is decisive. In this regard, this Court recollects decisions of the Supreme Court, reported as Power Financial Corporation Ltd. v. Pramod Kumar Bhatia, (1997) 4 SCC 280; Punjab National Bank v. P.K. Mittal, (1989) Supp. 2 SCC 175; Shambhu Murari Sinha vs. Project and Development India and Anr., (2000) 5 SCC 621, and Srikhanta v. Bharat Earth Movers Ltd., (supra).

13. Each decision reiterates the principle that an employee working with a public employer has the option of withdrawing his resignation before it becomes effective, provided there is no rule which postulates its acceptance upon submission of the resignation. The present case falls within that declaration of law.

14. Consequently, the findings of the Tribunal, on the basis of which it directed reinstatement of the respondent, cannot be interfered with. The above observations are, however, not entirely dispositive facts of this case. The respondents previous conduct on two previous occasions - before the present instance - seeking to resign, and at the eleventh hour resiling from that proposal were serious enough to merit due consideration by the Tribunal in regard

to back wages. The petitioner, in our opinion, is justified in contending that such conduct would lead to uncertainty and potential disruption of work, since the respondent was a para-medic. If a similar approach were to be allowed for the general class of para- medic, the entire workload of existing employees would swell and cause inconvenience to the service provided to the general public. Furthermore, the respondents counsel also submitted that the claim of back wages would not be insisted upon, and consequently, gives it up. Accordingly, the direction to pay back wages and arrears of allowances is hereby set aside.

15. The writ petition is partly allowed to the extent that the direction of back wages is quashed. The direction to reinstate the respondent/applicant is, however, maintained. We, however, clarify that these period when the respondent was kept out of employment as a result of the pendency of the present proceedings and the stay granted by this Court would be counted as spent in service for other purposes, and in the future likelihood of regularisation, for the purpose of reckoning of such service.

16. The writ petition is disposed of in the above terms.

S. RAVINDRA BHAT, J

VIPIN SANGHI, J SEPTEMBER 03, 2014 sr