Madhya Pradesh High Court
Shalini Jain vs The Chairman Cum Chief Managing ... on 16 February, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 16 th OF FEBRUARY, 2024
WRIT PETITION No. 24518 of 2021
BETWEEN:-
SHALINI JAIN W/O SHRI R.C. JAIN, AGED ABOUT 54
YEAR S, W/A EX CMO REGIONAL HOSPITAL JOHILA
AREA NOWROZABAD (MADHYA PRADESH)
.....PETITIONER
(BY SHRI K.C. GHILDIYAL - SENIOR ADVOCATE ASSISTED BY SHRI
KAUSHTUBH SINGH - ADVOCATE)
AND
1. THE CHAIRMAN CUM CHIEF MANAGING
DIRECTOR COAL INDIA LTD. COAL BHAWAN
NEWTOWN RAJARHAT KOLKATA (WEST
BENGAL)
2. GENERAL MANAGER (P/EE) SOUTH EASTERN
COALFIELDS LTD. SEEPAT ROAD BILASPUR
(CHHATTISGARH)
3. CHIEF OF MEDICAL SERVICES CMS SOUTH
EASTERN COALFIELDS LTD. SEEPAT ROAD
BILASPUR (CHHATTISGARH)
4. AREA GENERAL MANAGER SOUTH EASTERN
COALFIELDS LTD. DHANPURI OFFICE GENERAL
MANAGER SOHAGPUR AREA (MADHYA
PRADESH)
5. AREA GENERAL MANAGER SOUTH EASTERN
COAL FIELD LTD. NOWROZBAD OFFICE OF
GENERAL MANAGER JOHILA AREA (MADHYA
PRADESH)
6. CHIEF MEDICAL OFFICER SOUTH EASTERN COAL
FIELD LTD. BURHAR CENTRAL HOPITAL
SOHAGPUR AREA DHANPURI (MADHYA
PRADESH)
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 19-02-2024
10:55:26
2
7. CHIEF MEDICAL OFFICER SOUTH EASTERN COAL
FIELD LTD. REGIONAL HOPITAL NOWROZABAD
JOHILA AREA NOWROZABAD (MADHYA
PRADESH)
8. DR. US SATHE EX CMS SOUTH EASTERN COAL
FIELD LTD. SOHAGPUR AREA PO DHANPURI
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI GREESHM JAIN - ADVOCATE FOR RESPONDENTS NO. 2 TO 8)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
This petition is filed by one Dr. Shalini Jain, being aggrieved of order
dated 31.08.2021, Annx.P/22, accepting her resignation from the date when she
had made i.e. 18.05.2021, as contained in Annx.P/17, asking her to accept her
resignation w.e.f. 18.05.2021.
2. Petitioner's contention is that petitioner was earlier transferred from
Sohagpur Area to Johila Area, vide order dated 20.02.2019 Annx.P/3. Vide
Annx.P/5, petitioner had sent intimation of her illness to the competent authority
and had shown her inability to join at Johila.
3. Thereafter, vide order Annx.P/10, dated 12.04.2019, a detailed
communication was recorded by the General Manager, Personnel and petitioner
was advised to join at Johila Area immediately and get her treatment at Johila
Area Hospital, otherwise she was informed that she may be asked to appear
before the Medical Board at South Eastern Coalfields (hereinafter referred to as
SECL for short) headquarter for further medical examination and her absence
from duty without any proper reason may be construed to be a misconduct
according to CDA Rules, 1978 of Coal India Limited and action as deemed fit
may be initiated against her.
4. There is no dispute to this effect that thereafter, petitioner had joined at
Johila, where vide order dated 27.02.2021, she was allotted a House No.15,
which was earlier in possession of one Dr. Navin Kumar, who had on
superannuation vacated the same.
5. Petitioner's contention is that though petitioner had joined at Johila w.e.f.
22.04.2020 as is evident from Annx.P/13, but with a view to harass her and
house was allotted 5 kms away from the work place and other acts of the
respondents like non-availability of a operation theater or a competent surgeon
showed that petitioner who is basically an anesthetist may aid and assist such
surgery prompted her to resign on 18.05.2021 Annx.P/17 and that letter of
request has been accepted from a retrospective date vide order dated
31.08.2021 Annx.P/22.
6. Learned counsel for the petitioner places reliance on judgment of a
Coordinate Bench of this Court in Mhow Hosiery Pvt. Ltd. Vs. Jitendera
Nirlan Singh [2005(3) MPLJ 179], to suggest and submit that if the
resignation or the application for voluntary retirement was obtained by
exercising undue influence and coercion, then that will not be a voluntary act
and, thus, the application for voluntary retirement should be treated to be an
involuntary act and the decision of the authorities to accept her resignation vide
order dated 31.08.2021, Annx.P/22, be hereby quashed.
7. At this stage, Shri K.C. Ghildiyal, learned Sr. Advocate, submits that the
petitioner had deposited three months' salary and that be refunded to her at
least.
8. Shri Greeshm Jain, learned counsel for respondents No. 2 to 8, in his turn,
submits that firstly there was no act of coercion. Order of transfer as is
admitted by the petitioner and as contained in Annx.P/3, is dated 20.02.2019.
Admittedly, petitioner did not join at Johila in pursuance of the said transfer
order and submitted her joining report on 22.04.2020 i.e. after more than a
year. It is submitted that Annx.P/10, is a detailed communication made by the
General Manager of the SECL, pointing out towards the threats given by the
petitioner in the chamber of the Director Personnel and also about her conduct
and the allegation that her husband was forced to resign pointing out that her
husband was running a full fledged clinic at Budhar and, therefore, he had
resigned to manage his clinic and there was no act of coercion.
9. It is further submitted that as per the Service Rules, prevalent in SECL,
three months' notice is mandatory for obtaining voluntary retirement. In lieu of
three month's notice, three months' salary can be deposited and since that was
deposited by the petitioner and petitioner prior to acceptance of the resignation,
vide order dated 31.08.2021 Annx.P/17, never withdrew her resignation, theory
of coercion or undue influence is not made out, because petitioner had
sufficient time of more than three months to ponder over her decision and
withdraw her resignation.
10. In the rejoinder, Shri Ghildiyal, learned Senior Advocate, submits that in
the return, it is mentioned that she had remained unauthorisely absent for a
period of one year from 07.04.2020 to 2021, is contrary to the record,
inasmuch as, petitioner has produced her attendance register, in support of this
claim.
11. However, the issue herein is different. Petitioner has filed this petition
claiming following reliefs, namely, a writ in the nature of certiorari by quashing
the order dated 31.08.2021 Annx.P/22, passed by the respondent No.2 and
issuance of a writ of mandamus, directing the respondents to refund the
amount of Rs.6,63,939/-(Rupees Six Lacs, Sixty Three Thousand, Nine
Hundred and Thirty Nine), so collected illegally by the petitioner for tendering
her resignation.
12. It is evident hat petitioner was transferred in February 2019. Admittedly,
transfer is an incidence of service. Petitioner after unsuccessfully making
several representations finally joined at transferred place vide joining report
dated 22.04.2020 Annx.P/13. Petitioner was given notice on 15.05.2021 in
regard to her irregular attendance as is evident from Annx.P/14. Thereafter,
petitioner had tendered her resignation as contained in Annx.P/17.
13. A careful perusal of Annx.P/17, reveals that while tendering the
representation, she has though mentioned that she was forced to live separately
at Johila Area SECL and her request for transfer was not accepted and then a
notice was given to her mentioning about her absenteeism from work place
since 07.04.2020, which means more than one year and, thereafter, making
certain queries regarding the system, she had tendered her unconditional
resignation w.e.f. 18.05.2021 and has clearly mentioned that she is ready to pay
her dues as per the Rules.
14. Thereafter, it has come on record that she had paid her dues as per the
Rules for acceptance of her resignation and, therefore, these dues were paid
vide Annx.P/20 dated 10.06.2021. Thus, once dues were paid i.e. salary for
notice period, then respondents were entitled to accept her resignation, but
acceptance of that resignation could be from 10.06.2021 and not from
18.05.2021, inasmuch as, the dues were cleared on 10.06.2021 and these dues
were required to be paid in lieu of three months' notice period.
15. Therefore, the impugned order accepting resignation of the petitioner
w.e.f. 18.05.2021 stands modified to 10.06.2021 and beyond this, no further
indulgence can be shown, specially when the judgment of Coordinate Bench is
in regard to contract labourers who were working in the petitioner-Company
and which were infulenced unduly on account of financial crisis in the
petitioner-Company, whereas, in the present case, there is no plea of financial
crisis or that of any undue harassment. Place of posting being a prerogative of
the administrative authorities and that fact has been mentioned in Annx.P/10 as
well, then merely petitioner being posted to a place which was not convenient to
her, cannot said to be exercising undue influence or coercion on the petitioner
to obtain her resignation. If she wanted to be with her family and submitted her
resignation, then acceptance of that resignation without there being any attempt
on the part of the petitioner to withdraw the same and on the contrary,
depositing three months' salary on 10.06.2021, vide Annx.P/20, leaves no iota
of doubt that petitioner was neither under coercion nor under undue influence,
so to render her voluntary retirement application as tainted with malice. The
claim for refund cannot be entertained, because petitioner did not perform her
duties for that period.
16. Thus, petition is disposed of with the aforesaid modification that her date
of voluntary retirement will be 10.06.2021 and not 18.05.2021.
(VIVEK AGARWAL)
JUDGE
A.Praj.
