Delhi High Court

Sanjeev Setia vs Bhartiya Mahila Bank Ltd. & Anr on 21 September, 2015

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of decision: September 21, 2015


+                  W.P.(C) 5814/2015 & CM No.10503/2015

SANJEEV SETIA                                             ..... Petitioner
                             Through:      Mr. K.C. Mittal, Adv. with
                                           Ms. Ruchika Mittal, Adv.


                             Versus


BHARTIYA MAHILA BANK LTD. & ANR        .... Respondents
                 Through: Mr. Jagat Arora, Advocate
                          with Mr.Rajat Arora,
                          Advocate

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)

1. The challenge in this writ petition is to the communication dated

March 31, 2015 whereby the resignation of the petitioner has been

accepted by the competent authority with a decision to relieve the

petitioner from the respondent-bank's service on April 11, 2015.

2. It is the submission of Mr.K.C.Mittal, learned counsel for the

petitioner that the petitioner, while working in Nehru Place branch, New

Delhi of the respondents, was transferred to Patna vide order dated

December 20, 2014. On January 6, 2015, he tendered his resignation

through an e-mail and requested that he be placed at a different branch to

serve the notice period. The said request of the petitioner was not

accepted by the respondents and he was called upon to report to Patna

branch immediately, with a further rider that the period of notice of 90

days shall be considered from the date, the petitioner joins the Patna

branch. On January 12, 2015, the petitioner did join the Patna branch.

In between, certain correspondences were exchanged between the

parties. He submits, through an e-mail dated April 6, 2015 at 10.44 a.m.,

the petitioner decided to withdraw the resignation tendered by him and

requested that he may be allowed to continue in service. He submits, the

petitioner at around 10.55 a.m., received an e-mail from the respondents

on the same day wherein, the scanned copy of communication dated

March 31, 2015 accepting his resignation was attached, wherein it was

mentioned that the petitioner would be relieved on April 11, 2015.

According to him, the physical copy of the letter dated March 31, 2015

was not received by the petitioner till April 9/10, 2015. The appeal to

the higher authorities to allow him to consider the withdrawal of the

resignation did not find favour. He would state, in terms of the

appointment letter, in the eventuality, the petitioner desires to leave the

service of the bank, either during the period of probation or after the

confirmation, he was required to give three months notice in writing to

the bank, and the relationship being purely contractual, the request of the

petitioner for withdrawing the resignation need to have been accepted

and the petitioner should have been allowed to continue in the service.

He would rely upon the judgments in the cases of Shambhu Murari

Sinha Vs. Project & Development India and Another, (2000) 5 SCC

621 and Punjab National Bank Vs. P.K.Mittal, AIR 1989 SC 1083 in

support of his contention.

3. Mr.Jagat Arora, learned counsel, by relying on the counter

affidavit filed by the respondents, would submit that the petitioner, who

at the relevant point of time, working at Nehru Place branch of the

respondent bank was counselled many times for improving his

performance as he was not working satisfactorily and his colleagues/

officers were not happy with his style of working. Keeping in view the

administrative exigency, it was decided that the petitioner be transferred

to another place. As there was a vacancy at Guwahati branch, the

management decided to post the petitioner at Guwahati branch. On

coming to know his likely posting, he approached the HR Department of

the respondents to transfer him to a Hindi speaking area since at

Guwahati, he could face language problem. According to the

respondents, keeping in view the verbal request of the petitioner in this

regard, his posting was changed to Patna where the Branch Head was

required. The transfer order dated December 20, 2014 had been made

and he was relieved from the Nehru Place, New Delhi branch on

December 31, 2014 to report for his new posting. The petitioner,

however did not report for duties at Patna branch as directed, and

absented himself from January 1, 2015 and sent an email dated January

1, 2015 for sick leave due to his poor health, without mentioning any

specific ailment. He also informed that he would resume the duty once

he recovers again, without mentioning any time frame. The Bank

informed the petitioner that his absence was being treated as

unauthorized absence on loss of pay and that he should report at Patna

branch to take the charge of the branch. Despite the communication, no

medical certificate in support his illness was produced nor he reported to

Patna branch. It is his submission that on January 06, 2015, an email

resignation letter was received, wherein, the petitioner had expressed his

difficulty to join the Patna branch and submitted that in case change in

posting was not possible, the letter may be treated as his resignation

letter. It was specifically stated by him that the email be considered as a

formal resignation from the service. The email dated January 06, 2015

was placed before the competent authority, who accepted the e-mail as

resignation letter and stated that the petitioner's notice period shall

commence from the day he reports at Patna branch. When the petitioner

did not join till January 9, 2015, an e-mail was sent on the same day

stating that his relocation was not possible and his absence from Patna

branch was treated as unauthorized absence on loss of pay. The

petitioner was informed that the period of notice of 90 days would be

considered from the day, he reports at Patna branch. He submits, it was

made clear, if he did not join the Patna branch immediately, the bank

would be constrained to initiate action against him as deemed fit. The

petitioner ultimately joined the Patna branch on January 12, 2015. It is

the submission, because of irresponsible attitude of the petitioner, the

bank had to run without a branch head for 11 days, which subjected the

branch to operational risk and customer service at risk. Thereafter, the

competent authority had accepted the resignation on March 17, 2015

itself and directed the relieving of the petitioner from the bank's service

on completion of notice period. After completion of internal process, a

letter dated March 31, 2015 was sent to the petitioner informing the

acceptance of his resignation and relieving him on April 11, 2015. He

would state, as a new Branch Manager was to be posted, arrangements

were being made. It is his submission, the new Bank Manager

Mr.Jitender Jaiswal joined the Patna Branch on April 6, 2015, which

justifies the relieving of the petitioner on April 11, 2015. It is his

submission that the facts as highlighted by the respondents in their

counter affidavit would disentitle the petitioner the relief, more

particularly, in proceedings under Article 226 of the Constitution of

India. He would rely upon the following judgments in support of his

contention:

1. Balram Gupta Vs. Union of India and Another, 1987 (Supp) SCC 228.

2. Union of India and Ors. Vs. Hitender Kumar Soni, 2014 (4) LLN 7 (SC)

3. Raj Kumar Vs. Union of India, AIR 1969 SC 180

4. Shangrila Food Products Ltd. and Anr. Vs. Life Insurance Corporation of India and Anr., AIR 1996 SC

5. North Zone Cultural Centre and Another Vs. Vedpathi Dinesh Kumar, C.A.No. 3506/2003 dated April 17, 2003

4. Having heard the learned counsel for the parties, the first issue

which arises for consideration is whether the petitioner having

withdrawn his request for resignation dated January 6, 2015 on April 6,

2015, before he was to be relieved on April 11, 2015, the impugned

action of the respondents relieving the petitioner on April 11, 2015 is

justified. The said question does not require any elaborate reasoning.

Suffice to state, the stipulation in appointment letter contemplates a

notice period of three months. There is no dispute that the three months

were to expire on April 11, 2015. The said stipulation reads as under:

"However, if you desire to leave the service of the Bank, either during the period of probation or after confirmation, you shall be required to give three months' notice in writing to the Bank."

5. The relationship between the parties is contractual. The petitioner

is within his right to withdraw his request for resignation before he is

actually relieved, on April 11, 2015. The plea advanced by Mr. Jagat

Arora that the respondents having accepted the request of resignation of

the petitioner much before he was relieved, on March 17, 2015 and

communication thereof was sent on March 31, 2015, would have no

bearing as long as the request for withdrawing the resignation has been

given by the petitioner before April 11, 2015, and the law in this regard

is well settled by the Supreme Court in Balram Gupta's case (supra),

Shambhu Murari Sinha's case (supra) and J.N.Srivastava Vs. Union

of India and Ors. 1998 (9) SCC 559 wherein, it was held that it is

always permissible for an employee even though request for voluntary

retirement has been accepted by employer, to withdraw the same before

the last date of notice period.

6. But, this Court finds one aspect which may have a bearing on the

relief sought for by the petitioner, which is in view of the arrangements

made by the respondents on the resignation by the petitioner by posting

one Mr. Jitender Jaiswal at Patna in place of the petitioner, can a

direction be given for taking back the petitioner in service. It is a

conceded position that Mr. Jaiswal did join Patna on April 6, 2015.

7. I note, Mr. Jaiswal was issued the appointment letter on April 4,

2015 before the petitioner withdrew the request for resignation on April

6, 2015. Mr. Jaiswal joined his place of posting at Patna on April 6,

2015, presumably, in the morning. It appears, the joining of Mr. Jaiswal

at Patna had made the petitioner withdraw his request for resignation. In

any case, when on the strength of the petitioner's request for resignation

a decision was taken on March 17, 2015 to accept the same and to

relieve him on April 11, 2015, and a communication in that regard was

issued on March 31, 2015 by the respondents which even if received

only on April 6, 2015 and the respondents having made alternative

arrangements to post Mr. Jaiswal at Patna vide order dated April 4, 2015

in place of the petitioner and Mr. Jaiswal having joined his place of

posting at Patna on April 6, 2015, would clearly demonstrate that the

respondents have taken measures to meet the exigency of the petitioner

leaving the job. Under such circumstances, even if a request has been

made by the petitioner at 10.44 a.m., on April 6, 2015, surely, after Mr.

Jaiswal has joined Patna branch and the request of the petitioner for

withdrawing the request having not been allowed, no fault can be found

with that action.

8. I note, the relevant observation of the Supreme Court in the case

of Balram Gupta (supra), wherein, the Supreme Court has held as

under:

"12. In this case the guidelines are that ordinarily permission should not be granted unless the Officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. In the facts of the instant case such indication has been given. The appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo upon people's choice or freedom. If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but (emphasis supplied) the appellant's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administrative set up or management was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this purpose the respondent is to blame and not the appellant".

9. The submission of Mr. K.C.Mittal, that, the posting of Mr.Jaiswal,

would not effect the right of the petitioner to withdraw his request of

resignation, before he is actually relieved and even otherwise, there are

vacancies available in the bank, elsewhere and the petitioner can be

accommodated there, is concerned, the same does not appeal to the Court

for the following reasons:

(i) The petitioner did not join Guwahati and sought his transfer to Hindi

speaking area;

(ii) On his transfer to Patna, the petitioner did not join the place; he took

leave, without furnishing medical certificates;

(iii) The petitioner resigned with a request to change his posting from

Patna during notice period;