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Judgment
Rajesh Balia, J.—Sanjay Sharma whose cause respondent No. 1 is supporting, while serving as LJ.D.C. with Marwar Gramin Bank, Sendra, tendered unconditional resignation offering that he will pay all the dues, outstanding against him and that his resignation may be accepted with effect from 15.6.1987. Vide letter dated 5.6.1987, the said Sanjay Sharma was informed by the Manager that amount outstanding against him on account of vehicle loan cannot be adjusted against provident fund and he can be relieved only after he deposits the amount outstanding against him. It further appears from Annex. 5 filed alongwith the petition that in order to secure the appointment at some other place, said Sanjay Sharma also obtained a Certificate of good conduct and experience, gained while working at the Bank. It has also come on record that Sanjay Sharma vide Annex. B wrote to the Bank that his amount of loan outstanding against him, may be recovered from his account and he may be relieved from the service. From the record, it transpires that the said Sanjay Sharma kept vacillating between the desire to serve the Bank and to secure employment outside the Bank even after alleged withdrawal of resignation letter on 5.9.87 and the Bank did not categorically inform the said Sanjay Sharma to relieve him from its services and continued to press for repayment of loan amount outstanding against Sanjay Sharma, ultimately an industrial dispute was raised and the following, question was referred-to the Industrial Tribunal, Jaipur by the appropriate Govt. for adjudication:
Whether the action of the management of Marwar Gramin Bank in accepting the resignation of Shri Sanjay Sharma, Clerk in their Sendra branch with effect from 15.6.87 after it is said to have been withdrawn is just and legal ? If not to what relief is the concerned workman entitled?
The Tribunal after considering the entire material which was placed before it held that the resignation dated 26.5.87 was never accepted unconditionally by the Bank and, therefore, the workman Sanjay Sharma could withdraw the same before it was accepted. The Tribunal further held that since said Sanjay Sharma submitted his resignation on 26.5.87 to be accepted with effect from 1 5.6.87 and the same was never accepted, when he applied for recalling his resignation vide letter dated 5.9.87, the offer to resign must be deemed to have come to an end and the incumbent should be deemed to be continuing in service and period from 1 5.6.87 to 4.9.87 be treated as on leave. It was further directed that since 5.9.87, the workman may be paid his wages and salaries. It was also ordered that if the Employer does not pay the arrears of salary within a period of three months, he will also be entitled to 12% interest thereon.
Aggrieved with the said Award dated 21.5.91 ,the Bank has preferred this petition under Article 226 of the Constitution.
It has been contended on behalf of the Bank that in view of Annex.5,the Certificate, obtained by the workman for being in service upto 1 5.6.87 with the Bank and his continued desire to be treated as free from service of the Bank and not to serve the Bank as is apparent from his letter given as late as on 8th April, 1988, said Sanjay Sharma ought not to be treated in continuous service and it should be held on the basis of material on record that resignation of the petitioner was accepted unconditionally and so far as the question of recovery was concerned, it was only a question of following the remedy for recovering the amount outstanding in the ordinary course. He places reliance on Rule 10 of the Marwar Gramin Bank Staff Service Regulations which is as under:
Termination of service notice .
10.(1)(a) An Officer or employee shall not leave or discontinous his service in the Bank without first giving notice in writing to the Chairman of the Bank of his intention to leave or discontinue the service.
(b) The period of notice required shall be--(i) Three months in the case of officers, and (ii) One month in the case of other employees.
(c) In case of breach by an employee of the provisions of this sub-regulation, he shall be liable to pay to the bank as compensation a sum equal to his pay for the period of notice required of him.
(d) He shall also be liable to refund the pay or allowanes or both, if any, drawn by him while on training and make good the training expenses, incurred by the Bank or sponsor bank for deputing him for training. -
(e) In exceptional circumstances the payment of such compensation and refund may be waived by the Chairman, at his discretion.
On the basis of the aforesaid provisions, learned Counsel for the petitioner contends that there is no provision for passing a formal order of acceptance of resignation and it becomes effective automatically with effect from the date it is tendered. Clause [c) of Rule 10[1) of the aforesaid Regulations merely provides a right of recovery of the amount of compensation from the incumbent who leaves services in breach of the condition and the letter Annex.4 was issued in the terms thereof.
Contesting the grounds, raised by the learned Counsel for the petitioner, Mr. K.C. Samdariya submits that a resignation, until accepted, cannot result in cessation of employer-employee relationship on account of unilateral action of the employee. Since the unequivocal acceptance has not been communicated to the employee at any time and the said employee has not complied-with the condition with which resignation was accepted, the conclusions drawn by the Tribunal ought not to be interfered with under Article 226. He places reliance in a support of his contention on the following authorities:
Manju Gupta v. Haryana Agricultural University and Ors. 1990(3) SLR 68:
Vedpathi Dinesh Kumar v. North Zone Cultural Centre etc. 1991 (2) SLR . 143;
Calcutta Port Shramik Union Vs. Calcutta River Transport Association and Others,
Having bestowed my careful consideration to the rival submissions raised before me, I am of the opinion that the Tribunal was justified in reaching the conclusion that resignation of the employee Sanjay Sharma was never accepted by the Bank. Rule 10(1) (c) envisages compensations to be paid in case the period of notice of termination is for a lesser period than required. However, Rule 10 does not deal with the present situation. It is not the case of the either side of the parties that by Ex. 4, the employee was required to deposit the dues as a compensation for serving termination notice for a lesser period than required. What was required by Annex.4 was that unless the incumbent deposits the loan, advanced to him for purchasing a vehicle, he will not be relieved from the duties. This clearly indicated the intention on the part of the employee not to shed off the relationship of the employer and employee until his dues are made good. Order Annex. 4 clearly speaks that an adjustment of the said amount through the amount which was to become payable to the employee as a result of cessation of service was not possible for them to accept. In this view of the matter, the contention of learned Counsel for the petitioner that the Bank accepted the resignation unconditionally on 1 5.6.1987 and that acceptance of resignation further be inferred from the subsequent conduct of the employee cannot be accepted. Once it is held that the resignation was not accepted, I do not find any force in the contention that the Tribunal erred in treating the petitioner to be continuing in service for want of a valid acceptance of resignation.
It was next contended by the learned Counsel for the petitioner that at any rate, respondent is not entitled to back wages inasmuch as he has not discharged his duties from 15.6.87 voluntarily. His intention to abstain from duty and not to serve the Bank is apparent from the latter of resignation Annex.1, letter offering the adjustment of dues against his retiral outstandings Annex.6 and letter dated 8th April, 1988. Notwithstanding the fact that the respondent employee alleges that he withdrew his application for resignation on 5.9.87. Even in his letter dated 8th April, 1988, the employee has written that amount outstanding against him may be recovered from the amount which is payable to him as a result of acceptance of his resignation and he should be relieved completely from the duties of the employment of the Bank. In this view of the unequivocal offerings made by the employee as late as on 8th April, 1988, the Tribunal committed a mistake apparent on the face-of the record accepting the contention of the work man that he reported for duty on 5.9.87 alongwith letter of withdrawing his resignation. It has to be accepted on the basis of the material placed on record that the petitioner was not very keen on joining duties but unless a formal acceptance of resignation is conveyed to him, he wanted to keep his options open to make use of it in case, he is not able to find better employment or better opportunities elsewhere. In these circumstances, the Tribunal was not justified in awarding back wages to the employee. While it is true that in case of illegal termination of his services, award of back wages is normal rule and refusal is exception but it is equally well settled that where an employee abstains from working voluntarily and it does not result in termination of his services. He is not entitled to any wages on the principle of no work no pay. In this view of the matter, award of back wages to the respondent employee Sanjay Sharma is not sustainable.
Accordingly, I allow the petition in part and the award is affirmed in respect of the holding respondent employee Sanjay Sharma to be in continuous service. However, he will not be entitled to any back wages prior to the date when the award became operative. Respondent employee Sanjay Sharma will be paid all arrears of his emoluments with effect from the date when the award became operative within three months from today, if not already paid, failing which on the arrears, the employee shall get 12% interest. There will be no order as to costs.