Mrs. Rajeswari Dayal vs The Central Agricultural ...
2021 Latest Caselaw 8 Tri

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                 HIGH COURT OF TRIPURA
                       AGARTALA

                          WA No.36/2015

1. Mrs. Rajeswari Dayal, Wife of Late Dr. M. C. Nandeesha,
2. Sriman Aditya Mudnakudu (Minor),
  Son of Late Dr. M. C. Nandeesha, residents of :16,
  1st Cross NGEF Layout, Nagarabhavi, Bangalore - 560 072.
   (The appeal is presented by Shri Bablu Kumr Nath the constituted
   Attorney, by deed dated 05-4-2013, copy of which is annexed.)
                                             .............. Appellant(s).

                                Vs.

1. The Central Agricultural University, (Constituted under the Central
   Agricultural University Act, 1992), P.O. Lamphel, Imphal,
   Manipur, represented by its Registrar.
2. The Vice-Chancellor, Central Agricultural University, P.O
   Lamphel, Imphal, Manipur.
                                            ............... Respondent(s).


                         _B_E_ F_O_R_E_
 HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
  HON'BLE JUSTICE MR. S G CHATTOPADHYAY
     For Appellant(s)       : Mr. D K Biswas, Advocate.
     For Respondent(s)      : Mr. Biswanath Majumder, CGC.
     Date of hearing        : 24th November, 2020.
     Date of Judgment       : 4th January, 2021.
     Whether fit for reporting : No.
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                               JUDGMENT

(Akil Kureshi, CJ).

This appeal is filed by the legal heirs of deceased Dr. M. C.

Nandeesha who was the original petitioner. During the pendency of the

petition he expired. His widow and son pursue this litigation.

[2] Brief facts are as under :

Petitioner Dr. Nandeesha, at the relevant time, was working as a

Professor and Head of Aquaculture Department of the Central

Agricultural University. He was placed under suspension in contemplation

of departmental inquiry. According to him, he was being falsely targeted

and harassed and on account of which he tendered his resignation from

service on 18th September, 2008. This resignation was accepted by the

Vice Chancellor of the Agricultural University which was conveyed to the

petitioner by the Registrar on 25th September, 2008. On 27th September,

2008 the petitioner made an attempt to withdraw the resignation. On 29 th

September, 2008 the Registrar of the University conveyed to the petitioner

that the competent authority was of the opinion that after acceptance of

the resignation there is no provision for its withdrawal.

[3] The petitioner thereupon filed the petition and prayed for

direction to the respondents to permit the petitioner to withdraw his Page - 3 of 12

resignation. The petitioner had raised two main legal contentions. It was

agued on behalf of the petitioner that no notice of statutory period was

given while tendering his resignation and that the resignation could have

been accepted only by the Board of Management of the University and

not the Vice Chancellor. The Vice Chancellor not being the competent

authority for accepting the resignation, his acceptance was invalid. A

reply was filed on behalf of the university in which it was contended that

the Vice Chancellor has the power to accept the resignation under Section

11(3) of the Central Agricultural University Act, 1992 (hereinafter to be

referred to as "the said Act") which action was also approved by the

Board of Management in its meeting dated 5 th November, 2008.

Aggrieved by the decision of the Vice Chancellor the petitioner had a

right to the appeal to the Board of Management. The Board of

Management turned down the appeal which decision the petitioner has not

challenged.

[4] The learned Single Judge dismissed the writ petition holding that

it was open for the respondents to waive the requirement of one month's

notice before resignation. As per the statute framed under the said Act, a

non-permanent employee could resign after giving one month's notice or

by paying one month's salary in lieu thereof. It was open for the Page - 4 of 12

university to waive these requirements. The learned Judge also held that

the petitioner was appointed by the Vice Chancellor and as an appointing

authority he was competent to accept the resignation.

[5] Before us these two grounds have been pressed in service by

learned counsel for the appellants. Our attention was drawn to Section

11(3) of the said Act as well as Clause 26(6) of the 1st statute in order to

contend that only the Board of Management and not the Vice Chancellor

was competent to accept the resignation of the petitioner. It was argued

that the subsequent ratification by the Board of the action of the Vice

Chancellor, would not validate an illegal action. Thus when the petitioner

sought to withdraw his resignation, the same was not yet accepted by the

competent authority. Relying on several decisions of Supreme Court

particularly in case of Raj Kumar Vs. Union of India reported in AIR

1969 SC 180, it was contended that till the resignation is accepted by the

appropriate authority in consonance with the service rules the employee

has a right to seek withdrawal thereof.

[6] On the other hand, counsel for the university has opposed the

appeal supporting the decision of the learned Single Judge.

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[7] We may peruse the relevant documents more minutely. In his

resignation letter dated 18th September, 2008 the petitioner did not cite

any reason of mala fide or targeted harassment by the Vice Chancellor.

His resignation was unconditional as can be seen from the following

portion of the said letter.

"............With reference to the above cited subject, I wish to bring your kind notice that I have decided to resign from this University for the post of Professor of Aquaculture, which I have been holding since 14.12.2001, by the advice of my family elders and well wishers. I therefore tender my resignation which may kindly be accepted by your kind self with effect from today 18.9.08."

[8] The acceptance of the resignation by the Vice Chancellor was

conveyed to the petitioner by the Registrar in his letter dated 25th

September, 2008 in following terms :

"Dr. M. C. Nandeesha, Professor of Aquaculture, College of Fisheries, Lembucherra, Tripura was placed on suspension vide office order No.CAU/Reg./248/PF/02/Vo-II/1130 dated 12th September, 2008 pending disciplinary enquiry against him. In the meantime, Dr. M. C. Nandeesha has tendered his resignation from the University services from 18th September, 2008.

After considering all the facts, the competent authority is pleased to accept the resignation of Dr. M. C. Nandeesha from the post of Professor of Aquaculture. His lien in the University has come to an end with the issuance of resignation acceptance order dated 25th September, 2008."

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Since this communication referred to the petitioner being under

suspension at the time of the resignation, the petitioner wrote to the

Registrar on 27th September, 2008 and stated that though he had not

mentioned the circumstances which compelled him to tender resignation,

the letter of acceptance has mentioned about his suspension. He, therefore,

sought clarification on several issues such as whether the contemplated

charges and the suspension were withdrawn and whether he would be

given a clean service certificate to enable him to avail of the opportunities

in his service carrier. He further stated that "in the event, the above

requests are not complied with, kindly treat my resignation as withdrawn.

I would be ready to face any proceedings and face the consequences as

per law......" "..........My only appeal is for an investigation to the issues

raised in my appeal to the Visitor of the University and take apt action. In

view of this, if the University is not willing to relieve me by agreeing to

the points stated above and give me a clean service certificate, allow me

to continue as Professor of Aquaculture and prove the truth. I hope that

the University would consider this humble request and help me.

I would assume that the order as well as the intimation of

acceptance of resignation is quashed or set aside or cancelled, if I do not

hear from you by 4.30 P.M on 29th September, Monday, 2008."

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[9] On 29th September, 2008 the Registrar conveyed to the petitioner

that "after acceptance of the resignation letter, there is no provision for

its withdrawal. Your lien with the University has come to an end on

acceptance of your resignation letter with effect from 25.09.2008."

[10] On 29th September, 2008 the petitioner once again wrote to the

Board of Management and reiterated the following points :

"4. As I have stated at the very outset that no reply has been given to the substantial part of my letter along with the acceptance of resignation, all the allegations are withdrawn including expunging any adverse remarks in my ACRs if any, so that I can start my career elsewhere and serve the cause of learning.

* * *

7. Without lengthening my note any further I would once again pray to the competent authority that the circumstances in which I tendered my resignation, the letter of resignation and thereafter my letter dated, 27-09-2008 may kindly be considered and thereafter a final reply may kindly be given clearly stating whether (i) the University would accept the resignation giving me clean records expunging all adverse entries and withdrawing all allegations or otherwise (ii) would revert to its allegations, complaints against me allowing me to fight out the causes withdrawing the acceptance letter dated, 25-09-2008."

[11] From this correspondence it can be seen that the resignation

letter of the petitioner dated 18th September, 2008 was unconditional Page - 8 of 12

which was accepted by the Vice Chancellor without much ado on 25th

September, 2008. In fact the request for withdrawal of the resignation

made by the petitioner in his letter dated 27th June, 2008 and thereafter

repeated before the Board of Management was conditional. We have

taken note of relevant portion of these letters written by the petitioner in

both of which, he insisted on being given a clean chit in connection with

the pending departmental inquiries and his service record, failing which,

he requested that his resignation should be treated as withdrawn. Thus, in

our opinion, the resignation tendered by the petitioner was unconditional

whereas his requests for withdrawal of the resignation were conditional.

He did not convey to the Management that for whatever reasons, he

wishes to withdraw the resignation. His first condition was that he may be

given a clean chit in the service upon which he would not be interested in

withdrawing the resignation. However, if this is not done, he should be

allowed to withdraw the resignation. The petitioner thus never clearly

exercised the option of unconditionally withdrawing the resignation after

his resignation was accepted by the Vice Chancellor.

[12] This apart, we are not impressed by either of the two legal

contentions raised on behalf of the petitioner. It is true that as per the

service rules, an employee could resign after giving a notice of one month Page - 9 of 12

(in case of a temporary employee) or upon payment of one month's salary

in lieu of the notice period. Clause 26(6) of the 1st Statute in this respect

provides as under :

         "                  *              *               *
         (6)    Notwithstanding anything contained in the foregoing

provisions of this Statutes, a teacher/member of the academic staff or other employee may resign:-

(a) If he is a permanent employee, only after giving three months' notice in writing to the Board or the appointing authority, as the case may be, or by paying three months' salary in lieu thereof;

(b) If he is not a permanent employee, only after giving one month's notice in writing to the Board or the appointing authority as the case may be, or by paying one month's salary in lieu thereof:

Provided that such resignation shall take effect only on the date from which the resignation is accepted by the Board or the appointing authority, as the case may be."

However, an employee who tenders resignation without fulfilling

these requirements, cannot complain where resignation was accepted by

the employer without insisting on the compliance of these conditions.

Clearly, these conditions are for the benefit of the employer. By insisting

on issuance of a month's notice the employer would have sufficient time

to provide for the substitute of an outgoing employee. Requirement of

payment of one month's salary in lieu of the notice period would put a Page - 10 of 12

degree of stress on the employee from walking out of service contract at a

short notice. It is always open for the party for whose benefit these

conditions are included in a contract, to waive the same. A party who

breaches this condition cannot complain of the waiver by the other side.

[13] Coming to the question of acceptance of the resignation of the

petitioner, it is true that the Board of Governors is the appointing

authority. Clause 18 of the 1st Statute pertains to Selection Committees.

Sub-clause (1) thereof provides that there shall be a Selection Committee

for making recommendations to the Board for appointment to the posts of

teachers, Comptroller, Registrar, Librarians, Deans of Colleges, Directors

and heads of other institutions maintained by the University. Thus

appointments to these positions would be made by the Board under the

recommendations of the Selection Committee whose composition is

provided in Sub-clause (2). In terms of sub-clause (6) of Clause 26 of the

1st Statute, thus the resignation had to be accepted by the Board. However,

Section 11(3) of the said Act authorises the Vice Chancellor if he is of the

opinion that immediate action is necessary on any matter to exercise any

power conferred on any authority of the university by or under the Act

and then communicate the same to such an authority about the action

taken by him. The further proviso to sub-section (3) of Section 11 Page - 11 of 12

provides that a person who is aggrieved by such action taken by the Vice

Chancellor shall have a right to appeal to the Board upon which the Board

may confirm, modify or reverse the action taken by the Vice Chancellor.

Thus, the Vice Chancellor if he was of the opinion that immediate action

was necessary in any matter, could have exercised the powers of the

Board. The respondents have pointed out that the Vice Chancellor had

exercised such powers and the Board in its meeting dated 5 th November,

2008 had unanimously approved the action of the Vice Chancellor. The

resolution of the Board of Management in this respect reads as under :

"The Board of Management of the Central Agricultural University, Imphal in its 26th meeting held on 5th November, 2008 perused the application of Dr. M. C. Nandeesha, Ex-Professor of Aquaculture in the College of Fisheries of the University, regarding the withdrawal of his resignation dated 18.9.2008 which was accepted by the Vice Chancellor, the competent authority on 25.9.2008 and his lien was terminated on the said date.

The Board after considering all the facts and circumstances did not find any ground to revoke the decision of the Vice Chancellor dated 25.9.2008 for accepting the resignation tendered by Dr. M. C. Nandeesha and terminating his lien with the University. Even under CCS Rules, as applicable to the employees of the University, do not contemplate the revocation of the decision of acceptance of the resignation when the lien has been terminated. The Board unanimously endorsed and approved the decision of the Vice Chancellor taken on 25.9.2008 in accepting the resignation of Dr. M.C. Nandeesha from the post of Professor of Aquaculture in the College of Fisheries of the University and terminating his lien Page - 12 of 12

forthwith. The Board did not find any merit in the application of Dr. Nandeesha and an unanimous decision is taken to reject his application."

[14] In our opinion, thus the respondents committed no error in first

accepting the resignation of the petitioner and thereafter in refusing to

allow him to withdraw the same since it had already been effective. In the

result, for the reasons some what different from those recorded by the

learned Single Judge, this appeal is dismissed. Pending application(s), if

any, also stands disposed of.

      ( S G CHATTOPADHYAY, J )                         ( AKIL KURESHI, CJ )




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