Madras High Court
N.Mariappan vs The Director on 29 March, 2022
W.P.(MD)No.6724 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.03.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.6724 of 2016
and
W.M.P.(MD)No.5804 of 2016
N.Mariappan ... Petitioner
vs.
1.The Director,
Directorate of Handloom and Textiles,
Kuralagam, Chennai.
2.The Assistant Director,
Directorate of Handloom and Textiles,
Collectorate Campus,
Virudhunagr District.
3.The Special Officer,
SPSPL, 29, Punalveli Weavers Cooperative Society,
Punalveli, Rajapalayam Taluk,
Virudhunagar District.
4.The President,
SPSPL 29, Punalveli Weavers Cooperative Society,
Punalveli, Rajapalayam Taluk,
Virudhunagar District. ... Respondents
1/11
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.6724 of 2016
(R3 and R4 cause title amended, vide Court
order, dated 29.03.2022, in W.M.P.(MD)No.
11996 of 2016 in W.P.(MD)No.6724 of 2016)
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, to call for the entire records relating
to the impugned order of 1st respondent in Na.Ka.No.33081/2014/L-1-1, dated
28.01.2015, passed by the 1st respondent whereby confirmed the orders passed by
2nd respondent in Na.Ka.No.9660/2013/E(1), dated 06.01.2014, by confirming
the order passed by the 3rd respondent, dated 04.10.2013 and to quash the same
as illegal, arbitrary and consequently, to direct the respondents to reinstate the
petitioner forthwith as Manager in 4th respondent society with continuity of
service with all monetary benefits.
For Petitioner : Mr.M.T.Thirunavukkarasu
For Respondents : Mr.P.Thambidurai
Government Advocate (Civil side)
*****
ORDER
This Writ Petition is filed for Writ of Certiorarified Mandamus, to quash
the impugned order passed in Na.Ka.No.33081/2014/L-1-1, dated 28.01.2015 and
confirmed in Na.Ka.No.9660/2013/E(1), dated 06.01.2014 and confirming the
order dated 04.10.2013 and consequently, to direct the respondents to reinstate
the petitioner forthwith as Manager in 4th respondent society with continuity of
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W.P.(MD)No.6724 of 2016
service with all monetary benefits.
2.The brief facts of the case are that the petitioner was appointed as an
Appraiser on 08.06.2001, in the fourth respondent Society and the appointment is
made through employment exchange. Thereafter, he was posted as Manager in
charge with effect from 01.04.2008 to 01.07.2010 and from 01.10.2010, she was
given independent charge of Manager. Since the fourth respondent Society was
functioning with under-staffing against the sanctioned strength, the petitioner was
forced to look after additional work, which was no way connected to the work
allotted to Manager. Therefore, the petitioner requested repeatedly to lessen the
work burden. Since the respondents have not considered the claim of petitioner,
he submitted a resignation letter on 01.08.2013 to relieve from the work. In the
meanwhile, the third respondent has decided to realign the work load of all the
employees in the society and from 14.09.2013 the work load have been realigned
and the work has been shrunk and his additional charges have been taken away.
On knowing this the petitioner submitted a letter whereby he revoked the
resignation letter on 25.09.2013. In the meanwhile, one of the petitioner’s relative
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W.P.(MD)No.6724 of 2016
namely Marimuthu was elected as one of the Director of Board, but one Gopalan
had objected on 23.09.2013 as against byelaws since close relative of an
employee cannot hold office in Board of Directors. Even though, the petitioner
submitted the revocation letter dated 25.09.2013, in order to take revenge the
respondents have placed the resignation to Board of Directors on 30.09.2014 and
passed a resolution on 04.10.2013 thereby accepted the resignation and relieved
the petitioner. Aggrieved over the same, the petitioner preferred an appeal before
the second respondent on 06.01.2014. The petitioner's request to reinstate was
rejected confirming the order passed by the fourth respondent, dated 04.10.2013.
The petitioner preferred a Writ Petition in W.P. (MD) No. 106 of 2014,
challenging the order of the fourth respondent, dated 04.10.2013. This Court, vide
order, dated 06.01.2014, directed the second respondent to consider the
petitioner's representation, dated 29.10.2013 and pass orders. The second
respondent passed a cryptic order rejecting the petitioner's claim for
reinstatement. In spite of several requests, the petitioner's reinstatement request
was not considered at all. Aggrieved over the same, the present Writ Petition is
filed.
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W.P.(MD)No.6724 of 2016
4.The respondents have not filed any counter affidavit and relied on the
impugned order and has stated that already the petitioner's resignation has been
accepted and once the resignation is accepted, the petitioner cannot claim any
reinstatement and pleaded to dismiss the writ petition.
5.Heard Mr.M.T.Thirunavukkarasu, learned Counsel appearing for the
petitioner and Mr.P.Thambidurai, learned Government Advocate appearing for the
respondents.
6.The Co-operative Society has a special by law, where it has been stated
that if there is any revocation letter, then, the employee should be granted an
opportunity. In the present case, the resignation was on 01.08.2013, the
revocation was on 25.09.2013, the resignation letter was placed on Board of
Directors on 30.09.2014 and the resolution was passed on 04.10.2013.
7. The issue of resignation, revocation and acceptance is considered in the
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W.P.(MD)No.6724 of 2016
case of Rajkumar Vs Union of India reported in AIR 1969 SC 180, the Hon’ble
Supreme Court held as under:
“Our attention was invited to a judgment of this Court in State of Punjab V.
Amar Singh Harika reported in 1966 AIR (SC) 1313 in which it was held
that an order of dismissal passed by an authority and kept on its file
without communicating it to the officer concerned or otherwise publishing
it did not take effect as from the date on which the order was actually
written out by the said authority; such an order could only be effective
after it was communicated to the Officer concerned or was otherwise
published. The principle of that case has no application here. Termination
of employment by order passed by the Government does not become
effective until the order is intimated to the employee. But when a public
servant has invited by his letter of resignation determination of his
employment, his services normally stand terminated from the date on
which the letter of resignation is accepted by the appropriate authority,
and in the absence of any law or rule governing the conditions of his
service to the contrary, it will not be open to the public servant to withdraw
his resignation after it is accepted by the appropriate authority. Till the
resignation, is accepted by the appropriate authority in consonance with
the rules governing the acceptance, the public servant concerned has
locus poenitentiae but not thereafter. Undue delay in intimating to the
public servant concerned the action taken on the letter of resignation may
justify an inference that resignation has not been accepted. In the present
case the resignation was accepted within a short time after it was received
by (1) A. T. R, 1966 S, C. R. 1313, the Government of India. Apparently the
State of Rajasthan did not immediately implement the order and relieve,
the appellant of his duties, but the appellant cannot profit by the delay in
intimating acceptance or in relieving him of his duties.”
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W.P.(MD)No.6724 of 2016
8. In the Union of India Vs. Sri Gopal Chandra Misra & others reported in
1978 (3) SCR 12, wherein the majority of the Constitution Bench analysed and
declared the position of law to be as hereunder:
51. It will bear repetition that the general principle is that in the absence
of a legal, contractual or constitutional bar, a prospective resignation can
be withdrawn at any time before it becomes effective, and it becomes
effective when it operates to terminate the employment or the office-tenure
of the resignor. This general rule is equally applicable to Government
servants and constitutional functionaries. In the case of a Government
servant or functionary who cannot, under the conditions of his service/or
office, by his own unilateral act of tendering resignation, give up his
service/or office, normally, the tender of resignation becomes effective and
his service/or office-tenure terminated, when it is accepted by the
competent authority. In the case of a Judge of a High Court, who is a
constitutional functionary and under Proviso (a) to Article 217 (1) has a
unilateral right or privilege to resign his office, his resignation becomes
effective and tenure terminated on the date from which he, of his own
volition, chooses to quit office. If in terms of the writing under his hand
addressed to the President, he resigns in praesenti the resignation
terminates his office-tenure forthwith, and cannot therefore, be withdrawn
or revoked thereafter. But, if he by such writing, chooses to resign from a
future date, the act of resigning office is not complete because it does not
terminate his tenure before such date and the Judge can at any time before
the arrival of that prospective date on which it was intended to be effective
withdraw it, because the Constitution does not bar such withdrawal.
[Emphasis supplied] This Court had again an occasion to consider the
question as to the principle of law to be applied to a case of resignation
made to become effective on the expiry of a particular period or from a
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W.P.(MD)No.6724 of 2016
future date as desired by the employee in Punjab National Ban Vs. P.K.
Mittal (AIR 1989 SC 1083). It was held therein that resignation being a
voluntary act of employee, he may choose to resign with immediate effect
or with a notice of less than 3 months if the employer agrees to the same or
he may also resign at a future date on the expiry or beyond the period of 3
months as envisaged under the governing regulation in that case, even
though there is no such consent from the employer, and that, it was always
open to the employee to withdraw the same before the date on which the
resignation could have become effective.
9. In Balram Gupta Vs Union of India reported in AIR 1987 SC 2354
and Union of India and another Vs Wing Commander Parthasarathy reported in
(2001) 1 SCC 158 has held as under:
“So far as the case in hand is concerned, nothing in the form of any statu-
tory rules or any provision of any Act has been brought to our notice which
could be said to impede or deny this right of the appellants. On the other
hand, not only the acceptance of the request by the Headquarters, the ap-
propriate Authority was said to have been made only on 20.2.86, a day af-
ter the respondent withdrew his request for pre-mature retirement but even
such acceptance in this case was to be effective from a future date namely
31.8.86. Consequently, it could not be legitimately contended by the appel-
lants that there was any cessation of the relationship of master and servant
between the Department and the respondent at any rate before 31.8.86.
While that be the position inevitably the respondent had a right and was
entitled to withdraw or revoke his request earlier made before it ever really
and effectively became effective.”
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W.P.(MD)No.6724 of 2016
10. Therefore, this Court is of the considered opinion that it is a general
principle that the employee has right to revoke prior to acceptance of resignation.
The consequence would be then the employer ought to consider the revocation
letter and not the resignation letter. In the present case the revocation
(25.09.2013) is prior to acceptance (04.10.2013) and therefore the respondents
are bound to consider the revocation and not the resignation. There was clear 8
days, between revocation and acceptance. The respondents ought to have
considered the revocation since it preceded acceptance. Since the respondents
failed to do so, the petitioner is entitled to relief.
11. Since the petitioner is not working from the date of resignation, i.e.,
04.10.2013 until today, i.e., 29.03.2022, the petitioner is not entitled to any
continuity of service and back wages. The respondents are directed to reinstate
the petitioner as fresh entrant and the said order shall be passed within a period of
four weeks from the date of receipt of a copy of this order.
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W.P.(MD)No.6724 of 2016
12. With the above observation, the Writ Petition is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
Index : Yes / No 29.03.2022
Internet : Yes
Tmg
To
1.The Director,
Directorate of Handloom and Textiles,
Kuralagam, Chennai.
2.The Assistant Director,
Directorate of Handloom and Textiles,
Collectorate Campus,
Virudhunagr District.
3.The Special Officer,
SPSPL, 29, Punalveli Weavers Cooperative Society,
Punalveli, Rajapalayam Taluk,
Virudhunagar District.
4.The President,
SPSPL 29, Punalveli Weavers Cooperative Society,
Punalveli, Rajapalayam Taluk,
Virudhunagar District.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.6724 of 2016
S.SRIMATHY, J
Tmg
Note:
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the Advocate/litigant
concerned.
W.P.(MD)No.6724 of 2016
29.03.2022
https://www.mhc.tn.gov.in/judis
