Hari Kishore Sah Age- 50 Years vs Principal District & Sessions ...
2023 Latest Caselaw 4146 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   (Letters Patent Appellate Jurisdiction)

                              LPA No. 861 of 2019

Hari Kishore Sah age- 50 years S/o Tegi Lal Sah, R/o Vill- Hathkathi, P.O &
P.S. Hiranpur, Dist- Pakur                                      ......Appellant
                                         Versus
1. Principal District & Sessions Judge, Pakur, P.O & P.S. Sadar, Dist- Pakur.
2. The State of Jharkhand through as Chief Secretary Project Bhawan, P.O. &
P.S. Dhurwa, Dist- Ranchi                                   ... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellant : Mr. Onkar Nath Tiwary, Advocate : Mr. Shahid Yunus, Advocate For the Respondents : Mrs. Amrita Banerjee, AC to GP-I

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Order No. 08/ Dated: 06th November 2023

The present Letters Patent Appeal has been filed with delay of 611 days, but, no application under section 5 of the Limitation Act has been filed.

2. The proceedings in the present Letters Patent Appeal disclose that on 17th February 2020 and 13th August 2021 no one appeared on behalf of the appellant.

3. This Court therefore gathers an impression that the appellant is not serious about prosecuting the present Letters Patent Appeal.

4. Notwithstanding that, we have examined the writ Court's order in the light of the materials available on record.

5. The appellant is aggrieved by the order dated 13th December 2018 by which his challenge laid to the order dated 31 st January 2014 accepting his resignation has been dismissed by the writ Court.

6. The appellant who was working as a Night Guard in the Civil Court at Pakur tendered his resignation through the letter dated 03rd January 2014 which was accepted by the competent authority and office order no.14 of 2014 was issued under the signature of the Principal District and Sessions Judge at Pakur. The appellant has pleaded that at the relevant time he was suffering from some mental illness on account of dispute with his wife and that was the reason he submitted application

dated 03rd January 2014. According to the appellant, he regained his mental balance and later on submitted his representation dated 26th February 2014 for recall of the office order dated 31 st January 2014 which has been rejected by the competent authority.

7. Not only the appellant has failed to establish that he was under some stress due to domestic dispute, this is the law well accepted that the resignation letter once accepted by the competent authority cannot be recalled.

8. The writ Court has considered this aspect of the matter, thus:

"4. Heard, learned counsel for the parties and on appreciation of the rival submissions it is evident from the material available on record that the petitioner while working as Night-guard, Pakur, he has tendered his resignation which has been accepted w.e.f. 03.01.2014 and w.e.f. that date he has been relieved. The petitioner, subsequent thereto, has made representation on 26.02.2014 (Annexure-4) for reconsideration of the decision taken vide Annexure-3 on the basis of his resignation letter but due to its non-consideration this writ petition has been filed.

5. It cannot be disputed that employee if working under the regular establishment and do not wish to continue with the service further he will have an option to resign from the service as per law taking into account this right, the petitioner has made an application for resignation from his service, the Principal District and Sessions Judge, Pakur, acting upon the aforesaid representation, has accepted it and relieved the petitioner from service. Thereafter the petitioner has been separated from his service. The petitioner claims for its reconsideration but the question is that when final decision has been taken by the competent authority there is no reason to reconsider it that too when the action has been taken on the basis of an application submitted by the concerned employee and subsequent thereto he cannot retract and say for its reconsideration.

6. In view thereof and taking into consideration the fact that the letter of resignation has been acted upon, there is no question for reconsideration."

9. Mrs. Amrita Banerjee, the learned State counsel has referred to "The Director General of Police & Anr. Vs. M. Jeyanthi" (2021) 14 SCC 677 to submit that once the resignation tendered by the employee is accepted the cessation of service takes place and it is not open to the employee to withdraw the resignation letter. In "M. Jeyanthi", the Hon'ble Supreme Court held as under:

"5. Opposing this submission, it was urged on behalf of the respondent that the acceptance of the resignation on 12-6-2017 was not valid in law since it was subject to the grant of vigilance and other clearances. Moreover, the learned counsel supported the reasoning of the Division Bench that in view of the requirement of ninety days' notice, it was open to the employee to withdraw the resignation before the period of notice expired and the acceptance of the resignation in the meantime would not affect that entitlement.

6. The provisions of Rule 35-A of the Rules are analogous to Section 50 of the 2016 Act. The respondent, as a police constable, was governed by

Rule 35-A, which is extracted below:

"35-A. Acceptance of resignation.--(a) The member of the service may resign his appointment by giving notice of not less than three months in writing direct to the appointing authority with a copy marked to his immediate superior officer. The period of three months, notice shall be reckoned from the date of receipt of such notice by the appointing authority.

(b) The member of the service may withdraw the notice of his resignation before its acceptance. Withdrawal of resignation will not be permitted after its acceptance by the appointing authority.

(c) The appointing authority shall issue orders on the notice of resignation before the date of expiry of notice either accepting the resignation from a date not later than the date of expiry of the notice or rejecting the same, giving the reasons thereof. If no such order is passed, the resignation shall be deemed to have been accepted on the expiry of the period of notice."

7. Clause (a) of Rule 35-A requires that before resigning, a member of the service must furnish not less than three months' notice in writing to the appointing authority. Under clause (b), the notice may be withdrawn before its acceptance. Withdrawal of the resignation is not permitted after acceptance by the appointing authority. Under clause (c), the appointing authority is required to issue orders on the notice of resignation before the date of expiry of the notice. If the resignation is being accepted, the date of acceptance is not to be later than the date of the expiry of the notice. If no order has been passed, the resignation is deemed to have been accepted on the expiry of the period of notice. The provisions of clauses (b) and (c) of Rule 35-A make it abundantly clear that:

(i) A resignation can be withdrawn before its acceptance; and

(ii) Upon acceptance, the employee loses the entitlement to withdraw the resignation.

Moreover, it is evident from clause (c) of Rule 35-A that the appointing authority, while accepting the resignation, is empowered to indicate a date from which it will take effect which will not be later than the date of expiry of the notice. In other words, the authority can legitimately accept the resignation from a date anterior to the expiry of the notice. Upon the acceptance of the resignation, the cessation of service takes place and it is not open to the employee to withdraw the resignation.

8. In the present case, as the facts which have been narrated indicate, the resignation dated 1-6-2017 was accepted on 12-6-2017. It was only a month thereafter, on 13-7-2017 that the respondent purported to withdraw the resignation. The resignation having taken effect upon its acceptance, the withdrawal was of no consequence. We do not find merit in the submission that the acceptance of the resignation was invalid. The order which was passed clearly indicates the acceptance of the resignation. The order, however, provides that if the Vigilance and Anti-Corruption Department indicated that any adverse remarks or if any adverse noting was made by the Special Branch CID, the resignation would be cancelled. The fact of the matter, however, is that the acceptance of the resignation was complete on 12-6-2017. Once this was the position, the withdrawal was of no consequence in law.

9. The High Court was not justified in coming to the conclusion that within a period of ninety days, which is the period of notice required under the Rules, it was open to the employee to withdraw the resignation even after acceptance. This construction is clearly contrary to the provisions of Rule 35-A.

10. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 27-3-2019, affirming the dismissal of the writ petition by the learned Single Judge. There shall be no order as to costs.

11. We, however, clarify that this order will not come in the way of the

respondent applying for appointment afresh as and when any selection takes place and any such application may be considered in accordance with law."

10. In view of the aforementioned facts, finding no merit in the present Letters Patent Appeal, LPA No.861 of 2019 is dismissed.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) Saurav/Pankaj-