Jaivinder Singh vs Indian Telephone Industries Ltd. and Others

Shobha Dikshit, J.—The question which falls for consideration in this case is as to when the resignation tendered by the Petitioner would become effective? and, whether the same could have been validly withdrawn by him before the expiry of notice period provided in the relevant standing orders.

The facts in brief are as follows:

Petitioner was appointed under opposite party No. 1 on the post of technician Grade B in the year 1987 and he worked to the entire satisfaction of the Indian Telephone Industries Limited, his employers. Consequently, he was given promotion to the post of Technical Assistant in the year 1982. Petitioner belongs to Scheduled Caste community known as "Turaiha" for which a certificate duly signed by the competent authority had been submitted by the Petitioner before his appointment. While he was working as such, some complaint was made against the Petitioner alleging that he has manipulated the said fake certificate in order to get the job in the reserved category whereas he does not belong to "Turaiha" community but to Dhimar community. This led to some confidential enquiry in the matter. The Petitioner got so upset about it that he tendered resignation from service on 3.5.1996. According to the Petitioner, he was threatened by some persons of dire consequences, therefore, he tendered the resignation as he was pressurised by the opposite parties to do so. He was emotionally also very upset because of a wholly false case made against him. A copy of the letter of resignation has been annexed as Annexure-2 to the writ petition which reads as follows:

Due to certain unavoidable circumstances, I shall not be able to continue my service with I.T.I. Ltd., I, therefore, through this letter submit my resignation which may please be accepted at the earliest possible. I may please be relieved on or before 5th June, 1996. This may be treated as one month notice period.

After tendering the said resignation, Petitioner went to his native village and made detailed enquiries about his caste whereupon he was assured that he belongs to "Turaiha" community and not to "Dhimar" as alleged in the complaint. As soon as he was assured that he had been employed on the basis of a correct and true caste certificate, he returned to his office and submitted another letter dated 21.5.1996 to the opposite parties that he is withdrawing his resignation letter dated 3.5.1996, a copy of this letter has also been annexed as Annexure-3 to the writ petition.

The sequence of events which are relevant for the purpose of determining the controversy raised in this writ petition are narrated hereinbelow.

Petitioner''s letter dated 3.5.1996 tendering his resignation clearly stated that the same should be treated as one month''s notice as prescribed in the standing orders and he also requested that he should be relieved on or before 5.6.1996. While the aforesaid letter was pending consideration and acceptance, Petitioner submitted the letter of withdrawal dated 21.5.1996 which was received by the opposite parties on 22.5.1996. The opposite parties issued an office order dated 17.5.1996 communicating to the Petitioner that his resignation has been accepted pursuant to his letter dated 3.5.1996. The contents of the said letter are as follows:

Consequent upon acceptance of his resignation dated 3.5.96, Mr. J.V. Singh, Staff No. M-2167, Technical Asstt. Cat-B posted in Plant (Elect.) Deptt. shall be relieved of his duties/services from I.T.I. Mankapur Plant with effect from 2.6.96 subject to the production of no dues certificate'' from all concerned department in the enclosed proforma (in duplicate).

This issues with the approval of competent authority.

This letter was received by the Petitioner on 22.5.1996. Even after receiving this letter, Petitioner thought that since he has already submitted a letter of withdrawal of his resignation, therefore, this letter would become ineffective. Even then he again addressed a letter dated 23.5.1996 contained in Annexure-5 to the opposite parties stating that he had tendered his resignation because of some personal reasons on 3.5.1996 with one month''s notice on his intention to resign in accordance with standing orders and since he has withdrawn his resignation prior to the expiry of the aforesaid period, therefore, he should be treated to be continuing in service and he further assured that like past, he would remain loyal and dedicated in the performance of his duties. While this correspondence was going on, the opposite parties which had fixed the date of relieving of the Petitioner as 2.6.1996 vide their letter dated 17.5.1996 subject to furnishing of ''no objection certificate'', they unilaterally extended the period of relieving to 2.7.1996 subject to producing of no dues certificate from all concerned. Petitioner obviously did not submit any no dues certificate because he had withdrawn his letter of resignation. A copy of the detailed note dated 31.5.96 regarding acceptance of resignation of the Petitioner and relieving him has been annexed as Annexure-7 to the writ petition, a perusal of which shows that the Petitioner was performing a very specialised nature of work and there was nobody available to replace him. In fact, in the note, it has been categorically stated that at present, there was nobody who could be deputed in place of the Petitioner if he is relieved on 2.6.1996. A further reading of the note also makes it clear that the engineering department also made an endorsement that deputation of an untrained staff in place of the Petitioner would be very risky which may lead to any accident to life as well as to the department and, therefore, it was requested that his relieving may be delayed. It was also mentioned in the note that the Petitioner himself has prayed for withdrawal of the resignation letter, therefore, the same is also forwarded for favourable consideration. Petitioner also in the aforesaid facts and circumstances reiterated his request to treat him in service by addressing another letter dated 1.6.1996. In my view, it would be in the fitness of things to extract the contents of the letter which read as follows:

It is my humble request to your goodself and beg to state that 1 am working in plant electrical department in emergency services. During my ten years of service, I have been recognised on by you and obtained several appreciation on different occasions.

Sir, I and my family was charged by the official of administration authority of Moradabad, who had also given manipulated informations with regard of cast declaration to you, which was not correct. So, under this circumstances, I was not able to understand that, what to do and what not to do and submitted my resignation with fears on 3.5.1996 which was accepted by you too but before acceptance, I also submitted my request to withdraw my resignation on 21.5.96. Again I have submitted my request on 31.5.96 with all the facts and letters issued by Joint Secretary, U.P. Administration Authority, Lucknow to Distt. Magistrate, Moradabad on 30.4.92 as regard the classification of cast. All the concerned document in this regard are enclosed at Annexure-1 for your ready reference please.

Sir, I have a big family and parents also dependent on me, it will be difficult to survive in this hardship without service.

It is my humble request you sir, that my application for withdrawing my resignation may be considered sympathetically and issue necessary orders.

I assure you sir, I shall leave no stone unturned from my entire satisfaction of my superiors in whole service period. I hope you will be considering my request and oblige.

This letter was also forwarded by the concerned engineer to be considered sympathetically in view of dedicated service in the past with strongly recommending the acceptance of the letter of withdrawal. However, inspite of the aforesaid facts, the General Manager struck to his point of view that since the resignation tendered by the Petitioner has already been accepted, his request for withdrawal of the letter of resignation cannot be accepted now.

In the aforesaid facts and circumstances, the Petitioner left with no option approached this Court by filing the instant writ petition on the ground that once the resignation was withdrawn by him before the expiry of the period of one month''s notice, therefore, the refusal to accept the request of withdrawal is arbitrary, illegal and contrary to the standing orders applicable to the service of the Petitioner and, therefore, the letters dated 17.5.1996, 30.5.1996 and 3.6.1996 contained in Annexures-4, 6 and 7 are liable to be quashed and opposite parties be directed to treat the Petitioner in service continuously on the post on which he was working with all consequential benefits in terms of salary to be paid month to month including all other benefits.

Learned Counsel appearing for the Petitioner has submitted that it was not open to the Respondents to accept the resignation of the Petitioner before the expiry of the period of notice of one month as provided in the Standing Order No. 23.1. The said standing order reads as follows:

23.1. Termination of service by the employer.--A permanent workman desirous of leaving the Company in service shall give one month''s notice to the Manager of his intention to do so or forfeit to the Company wages of like period, D.A., if any, in lieu of notice.

23.4. The Company may refuse to accept the resignation of a workman during the pendency of any departmental proceeding if the company desires to continue the proceedings.

Learned Counsel for the Petitioner further submitted that a similar provision is given for termination of service by the Company. The relevant Standing Order No. 22.1 reads as follows:

22.1. The employment of any permanent workman terminated if it is no longer required in the interest of the Company by giving one month''s notice or by payment of wages, if any, for a like period in lieu of notice provided always that no notice would be required where an employee is dismissed for misconduct after enquiry.

In the light of the aforesaid provisions, learned Counsel for the Petitioner submitted that the employee is obliged to communicate his intention to leave the employment after giving one month''s notice or to forfeit to the company wages for the like period in lieu of notice. Similarly, the company can terminate the employment of the workman in the interest of company by giving one month''s notice or by payment of wages at the basic of pay plus D.A., if any, for a like period in lieu of notice. In either of the situations, a notice of one month''s period is essential and the same can be waived by the concerned parties. In the present case, according to the Petitioner, neither of the parties exercised the option of waiving the notice period. In these circumstances, the resignation tendered by the Petitioner would only become operative or effective after the expiry of the period of one month from the date of giving the notice. A reading of Annexure-1 makes it abundantly clear that the Petitioner had given a one month''s notice as required under the standing orders vide his letter dated 3.5.1996 and had also requested that he may be relieved on or before 5.6.1996 meaning thereby that his resignation could not be accepted before the expiry of 30 day''s period. Since the Petitioner withdrew his resignation vide his letter dated 21.5.1996, which is before the expiry of the notice period of one month, therefore, there was no question of opposite parties'' accepting the resignation before 30 days and since he was communicated vide letter dated 17.5.1996 received by the Petitioner on 22.5.1996 that his resignation had been accepted is of no consequence and the same is non-est in the eyes of law. In sum and substance, the learned Counsel for the Petitioner contended that the intention to resign is prospective, the letter of resignation remained a mute letter and in absence of notice period being waived either by the Petitioner or the Respondents, the alleged acceptance of the same before the expiry of 30 days is of no consequence and the letter of resignation, therefore, becomes a dead letter.

A counter-affidavit has been filed by the opposite parties and the stand taken therein is that it was open to the opposite parties to accept the resignation at any time on receipt of the letter of resignation and merely because relieving date was fixed on 2.6.1996, and thereafter extended to 2.7.1996, the same would not change the position in law. According to the employers, once the resignation was accepted on 15.5.1996 as recorded on the file and communicated to the Petitioner vide letter dated 17.5.1996, the withdrawal of resignation has no meaning and the same cannot be revoked.

1 have heard learned Counsel for the parties and reference to various decisions by both the parties have been made including the well-known decision in the case of Union of India (UOI) and Others Vs. Gopal Chandra Misra and Others, . This judgment deals with the resignation tendered by an Hon''ble Judge of the High Court, No doubt, all previous law on the question of resignation has been discussed but the fact remains that the case deals with the Constitutional functionary, i.e., Judge of the High Court and the same cannot be equated or applied fully to the facts and circumstances of the present case but the perusal of this judgment does reflect the settled principles of law with regard to cases of other employees governed by the conditions of their service and the rules and regulations applicable on the service in question. In this case, it has been held that the general principle is that in the absence of a provision prohibiting withdrawal, an intention to resign from a future date can be withdrawn at any time before it operates to terminate the employment or the connection of the resignor with his office. In the absence of any legal contractual bar, a prospective resignation can always be withdrawn at any time before it becomes effective and till the expiry of the period of notice, the letter of resignation remains a mute letter. It has been reiterated in this judgment that a prospective resignation remains mute resignation till the date on which it was intended to take effect is reached, and can, therefore, be withdrawn and rendered non-est at any time before such date. The resignation which is to be effective from a future date exclusively imply that if date has not reached, it would be open to the resignor to withdraw it.

Learned Counsel for the Petitioner next placed reliance on the case of Punjab National Bank Vs. P.K. Mittal, . In this case, the scope of relevant Regulation 20 (2) proviso came for consideration. The relevant Regulation 20 (2) like the present case also provides that no officer shall resign from the service of the bank otherwise than on the expiry of three months from the service on the bank of a notice in writing of such resignation. There is a proviso attached to this sub-rule where the competent authority has been empowered to reduce the period of three months or remit the requirement of notice. In this case, the employee had tendered his resignation by his letter dated 21.1.1986 requesting that the receipt of this letter can be treated as date for commencement of the notice period and his resignation should be treated to be effective on 30.6.1986. Since there was a proviso, therefore, the bank vide its letter dated 7.2.1986 informed the bank employee that his resignation letter dated 26.1.1986 has been accepted by the competent authority with immediate effect by waiving the period of notice and he is being relieved with effect from 7.2.1986. However, the employee had vide his letter dated 15.4.1986 written to the bank that he is withdrawing his resignation letter dated 26.1.1986. The High Court came to the conclusion that the letter of resignation would become effective only on 30.6.1986 and the competent authority had no jurisdiction to determine his service earlier than 30.6.1986 and the employee had a right to withdraw his resignation on any day before 30.6.1986. Aggrieved by this order, the bank had approached the Apex Court where it was contended that since proviso gave the power to the bank to waive or reduce the period of three months, therefore, the competent authority was within its right to exercise its power and accept the resignation on 7.2.1986. This argument was however rejected by the Apex Court by holding as follows:

... What the proviso contemplates is that in a case where the employee desires that his resignation should be effective even before the expiry of the period of three months or without notice being given by him, the bank may consider such a request and waive the period or requirement of notice if it considers it fit to do so. That question does not arise in the present case because the employee had not requested the bank to reduce the period of notice to waive the requirement of notice.

As we have already mentioned, resignation is a voluntary act of an employee. He may choose to resign with immediate effect or with a notice of less than three months if the bank agrees to the same. He may also resign at a future date on the expiry, or beyond the period, of three months but for this no further consent of the bank is necessary. The acceptance of the argument of Dr. Anand Prakash would mean that even though an employee might express a desire to resign from a future date, the resignation can be accepted, even without his wishes, from an earlier date.

The proviso in our opinion should not be interpreted as enabling a bank to thrust a resignation on an employee with effect from a date different from the one on which he can make his resignation effective under the terms of the regulation.

The next case which was referred to was of Pukhraj Mantri v. U.P. Co-operative Spinning Mills Federation Ltd., decided by a learned single Judge of this Court and in 1992 UPLBEC 664. where various decisions of Hon''ble Supreme Court including the abovenoted case of Punjab National Bank were considered and it was held that the resignation tendered by an employee cannot become legally effective before the expiry of the notice period provided in the service rules/regulations/standing orders.

Learned Counsel for the Respondents, however, placed reliance on a decision in the case of Moti Ram Vs. Param Dev and another, . This case relates to the elected Chairman of Himachal Pradesh Khadi and Village Industries Board. On the basis of this decision, learned Counsel for the Respondents made a very serious attempt to distinguish the acceptance of resignation and relieving the employee. According to him, the date of relieving has no concern with the acceptance of resignation. He placed reliance on the contents of Para 18 of this judgment which reads as follows:

A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer. Insofar as Government employees are concerned, there are specific provisions in the service rules which require acceptance of the resignation before it becomes effective. In Raj Kumar v. Union of India, it has been held:

...But when a public servant has invited by his letter of resignation determination of his employment, his sendees 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 penitentiae but not thereafter.

I have perused the aforesaid decision and am of the view that this decision in fact helps the Petitioner and not the concerned department. It is not disputed that there is specific standing order with regard to resignation or termination of service either by the employee himself or the employer which provides notice period and no waiving of the same has been provided, nor it is the case of the employers that they have exercised the power of waiver. Learned Counsel for the Respondent at this stage filed a supplementary-affidavit dated 30.7.1997 annexing a copy of an order dated 2.4.1992 on the subject of delegation of powers to Unit Heads enclosing a new clause regarding waiver of notice period, and on the basis of this letter, the learned Counsel for the Respondent contends that the power of waiver has been delegated to the concerned officers. I have perused the said letter and find that it has nothing to do with the resignation. It deals with establishment and does not refer to the standing orders. Therefore, assuming that some power of waiver was delegated to the Unit Heads but through this letter of delegation, the Standing Order No. 23 could not have been amended and, therefore, I do not find any merit in this contention and reject the same.

In the light of the aforesaid facts and circumstances, I am of the view that no doubt that the Petitioner had tendered the resignation vide his letter dated 3.5.1996 but withdrew the same vide his letter dated 21.5.1996, much before the expiry of period of one month, therefore, its acceptance before the expiry of the said period on 17.5.1996, is of no consequence. The resignation never took effect and it remained a mute letter. Even in public interest, as is indicated in the detailed note of the concerned branch of the excellent performance of the Petitioner possessing expertise which no other employee at that time was capable of replacing him, made it imperative on the concerned competent authority not to accept the resignation letter during the period of notice as employee himself had submitted the letter of withdrawal. In these circumstances, the writ petition is liable to be allowed.

The writ petition is accordingly allowed. The letters dated 17.5.1996, 30.5.1996 and 3.6.1996 contained in Annexures-4, 6 and 7 are hereby quashed and the Petitioner shall be treated to be in continuous service with the opposite parties, with all consequential benefits like salary and dearness allowance etc. If Petitioner has received any amount from the opposite parties during the said period, the same be adjusted in the arrears to be paid to the Petitioner. No order as to costs.