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Judgment
Mansoor Ahmad Mir, J.—This Election Petition is aimed at to challenge the mandate of respondent No. 4, who came to be affirmed as a
successful candidate in the Assembly Elections from Langate Constituency No. 5, hereinafter for short as constituency, the result of which was
declared on 25th of December, 2008, on the ground that he was disqualified for being chosen as a Member of the Legislative Assembly for that,
he was working as a Deputy Manager in the Jammu and Kashmir Project Construction Corporation Limited, hereinafter for short as Corporation,
and the Government of Jammu and Kashmir has more, than 25% shares in it and that his nomination papers were in violation of mandate of
Section 69 (1)(e) of the Constitution of Jammu and Kashmir, hereinafter for short as Constitution, read with the provisions of The Jammu and
Kashmir Representation of People Act, 1957, hereinafter for short as Act.
Respondents 1 to 4 appeared and filed their counter. Respondents 5 to 17 have chosen not to appear and accordingly were set exparte.
3 In their counter respondents 1 and 2 refute the averments of the petition on the ground that resignation of respondent No. 4 was accepted by the
Corporation on 8th of November, 2008, thus he was not on the rolls of the said corporation on the date the scrutiny of the nomination papers took
place viz. 12th of November, 2008. Further it is stated that State also had given its ""No Objection"" for the purpose.
What is stated by respondent No. 3 is also someway in tone with what the stand of respondents 1 and 2 is, that respondent No. 4 has
submitted the resignation by the medium of a formal resignation letter dated 8th of November, 2008 and acceptance whereof has also been
conveyed on the very same date, whereas the formal order to this effect has been issued on 30th of December 2008. It is further contended that
the formal order would illustrate the acceptance is dated 8th of November, 2008.
The answering respondent No. 4 contested the petition in hand on variety of grounds briefly summed up herein below:-
That the Election Petition, is not, in accordance with the provisions of, Section 89 and 125 of the Act. Summon along with the copy of the
Election Petition was sent to him along with the list of documents. The petition is verified on 5th of February, 2008 and the annexures appended
thereon are shown to have been verified by the petitioner on different dates viz. 25th of February, 2009, 28th of February, 2009 and the receipt of
deposit of Rs. 2000/- is shown to have been of 4th of February, 2009. The result of the election for the constituency was declared on December
25th, 2008, and the petition had to be filed within 45 days, reckoning the date of declaration of result, while as the petition in hand is filed on 6th of
February, 2009 beyond the prescribed time limit, thus the election petition on the face of it is barred by time.
It is mandatory that the election petition is to be signed by the petitioner, but perusal of the election petition exhibits that 1st 2nd 3rd and 4th
page relating to ""MEMO OF PARTIES"" 'SYNOPSIS"" and ""SEQUENCE OF EVENTS"" are not signed by the petitioner. The other pages are
shown to have been signed by him but do not contain the required attestation as provided by Sub Section (3) of Section 89 of the Act. The
annexures appended with the election petition are not signed and verified by the petitioner in terms of Section 91 (2) of the Act.
It is specifically pleaded by the answering respondent that he was working as a Deputy Manager in the Corporation, had tendered resignation
which was accepted and thereby was not holding the office of profit either on the date of nomination or on the date of scrutiny. Nobody raised any
objection against his candidature at the relevant point of time.
It is specifically denied that Corporation can execute all the works of State Govt. costing more than Rs. 15.00 lacs. It is further contended that
the answering respondent submitted resignation to the competent authority, which in turn, conveyed him the acceptance through its Administrative
officer vide his communication No. MD/PS/Estt/1 /EC dated 08-11-2008. The order No. 169 of 2008 dated 30th of December, 2008 is a
subsequent order which confirms the acceptance of resignation w.e.f. 8.11.2008. Resignation of the answering respondent was absolute and was
not conditional in any way.
Vide order dated 21.10.2009, following issues were structured, treated as legal, evidence was closed and parties were directed to address
arguments.
Whether the election petition does not comply with the requirement of Sections 89 and 125 of J&K Representations of Peoples Act? If so,
what is its effect? OPR-4
Whether the election petition is barred by limitation? If so, how? OPR-4
Whether respondent No. 4 was not eligible and qualified to contest the J&K Legislative Assembly Election 2008 for the single number Langate
Constituency No. 5 as the resignation of respondent No. 4 was not accepted by the competent authority on the relevant date and his nomination
papers came to be wrongly accepted by respondent No. 2 in violation of the provisions of J&K Constitution? OPP
In case issues 1 to 3 are decided in favour of petitioner, then in that eventuality to what relief he is entitled to?
The arguments put forth by the learned counsel for the petitioner had main thrust on the factum of answering respondent having tendered the
conditional resignation, the date of its acceptance and consequent whereof holding the office of profit at the relevant point of time. The counsel
argued that the relationship of the employer and employee had not come to an end, thus the answering respondent was disqualified to contest the
election. The communication made on 8th of November, 2008, and the formal order No. 169 of 2008 is not absolute but conditional. He was
holding the office of profit in terms of mandate of Section 24 (d) of the Act.
To meet the contention of learned senior counsel for respondent No. 4 that certain requirements for verification of the petition have not been
complied with, it is argued that defective verification is not enough to dismiss the petition. Finally counsel made reference and placed reliance on
Vashit Narain Sharma Vs. Dev Chandra and Others, , Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Others, , AIR 1964
SC 2554, AIR 1965 SC 185, Raj Kumar Vs. Union of India (UOI), , Konappa Rudrappa Nadgouda Vs. Vishwanath Reddy and Another, ,
D.R. Gurushantappa Vs. Abdul Khuddus Anwar and Others, , Jagat Kishore Prasad Narain Singh Vs. Rajendra Kumar Poddar and Others, ,
Shivamurthy Swami v. Agadi Sanganna Andnappa, (1971) 3 SCC 870 , Raj Narain Vs. Indira Nehru Gandhi and Another, , 1975 AIR 1978 SC
140, 1027 SCC (Supp) 1, 1980 SLJ 88, Jameel Vs. Gul Mohammad and Others, , AIR 1989 SC 303, AIR 1991 SC 375, AIR 1991 SC 169,
F.A. Sapa Etc., Etc., Vs. Singora and others, , Moti Ram Vs. Param Dev and another, , M/s. Jagdish Rai and Brothers Vs. Union of India, ,
Shibu Soren Vs. Dayanand Sahay and Others, , Jaipal Singh Vs. Smt. Sumitra Mahajan and Another, , AND JKPCC Rules, Rule 14, & 17,
Sections 90, 91, 109 of the Act, Section 69 of the Constitution.
Mr. Bhan, counsel for respondent No. 1 and 2 argued that the resignation of respondent No. 4 was accepted by the Corporation on 8th of
November, 2008 and no objection to this effect was raised by any of the candidates at the time of scrutiny. Thus the petitioner is precluded from
raising such objection by the medium of this election petition.
Mr. Jan, Counsel for respondent No. 3 argued that resignation of respondent No. 4 was accepted on 8th of November, 2008 w.e.f. 6th of
November, 2008 and he ceased to be an employee of the Corporation there and then. The employer-employee relationship had come to an end
on 6th of November, 2008 itself, which was subsequently confirmed by the formal order No. 169 of 2008 dated 30th of December, 2008. The
counsel made reliance in support of his arguments to the Apex Court judgment reported as 1975 1 (Supp) SCC 157.
Mr. Z.A. Shah, Sr. Advocate, counsel for respondent No. 4 argued that the documents produced by both the sides have been accepted by
the parties by design as a result whereof the letter dated 8th of November, 2008 and formal order No. 169 of 2008 stand accepted by the
petitioner, thus there was no need to prove the said documents. Because of the admission of petitioner there remains no dispute vis-a'-vis the date
of resignation and its acceptance, the answering respondent ceased to be an employee of the Corporation with effect from the date of acceptance
viz. 8th of November, 2008 which was later on confirmed by the formal order and no objection has ever been raised or entertained anywhere at
the time of scrutiny, thus the petition merits to be dismissed only on this count.
Further he argued that petition is not maintainable because it is not in accordance with the provisions of the Act read with the Constitution. The
annexures annexed with the election petition are its integral part, have not been verified in accordance with the provisions of Section 81 (3) of the
Act. Summons, copies of election petition and the annexures, as sent by the petitioner, were received by respondent No. 4 and the petitioner has
admitted, in the court, those documents to be the same which were made available by the writ petitioner. Their verification is not in accordance
with Section 81, 91 hence merits to be dismissed. That petitioner has not presented the petition himself which was required as per the mandate of
Apex Court judgment reported as AIR 2006 SCW 5699. The petition is barred by time, the details of which are given in the reply. Mr. Shah
placed reliance on: Maulana Abdul Shakur Vs. Rikhab Chand and Another, , Gurugobinda Basu Vs. Sankari Prasad Ghosal and Others, , Raj
Kumar Vs. Union of India (UOI), , Jagat Kishore Prasad Narain Singh Vs. Rajendra Kumar Poddar and Others, , Raj Narain Vs. Indira Nehru
Gandhi and Another, , Sharif-ud-din Vs. Abdul Gani Lone, , AIR 1984 SC 524, 1985 11 SCC 691, F.A. Sapa Etc., Etc., Vs. Singora and
others, , Satrucharla Chandrasekhar Raju Vs. Vyricherla Pradeep Kumar Dev and another, , Moti Ram Vs. Param Dev and another, , T.M.
Jacob Vs. C. Poulose and Others, , Shibu Soren Vs. Dayanand Sahay and Others, , Dr. Prabha Atri Vs. The State of U.P. and Others, , Jaipal
Singh Vs. Smt. Sumitra Mahajan and Another, , and AIR 2006 SCW 5068.
At the very outset I feel it appropriate to decide the issue No. 3 which probably would decide the fate of the petition.
Admittedly respondent No. 4 has tendered resignation by a formal application through his immediate officer in the Corporation and acceptance
whereof was conveyed vide letter No. MD/PS/Estt/1-EC dated 8th of November, 2008. It is apt to reproduce the said communication herein:-
On the basis of your recommendations, I am directed to convey that the resignation tendered by Mr. Ab. Rashid Sheikh Asstt. Manager of your
unit has been accepted with immediate effect. However, formal orders shall be issued separately
While going through this acceptance letter, it is crystal clear that the Corporation has accepted the resignation and it was conveyed to
respondent No. 4 unconditionally, and thereafter a formal order came to be passed on 30th of December 2008. The bare perusal of the
communication and order supra leads one to inescapable conclusion that the resignation was accepted w.e.f. 8th of November, 2008. Thus the
respondent No. 4 was not an employee of the corporation on 12th of November, 2008-the date of scrutiny of the nomination papers.
The corporation has produced relevant record i.e. office notings which also disclose that the resignation of respondent No. 4 was accepted on
the day when the application for the same was moved viz. 6th of November, 2008 and conveyed vide communication dated 8th of November,
2008. It is also recorded in one of the notings that outstanding if any is recoverable from the gratuity/accumulation of CP Fund and the Deputy
General Manager was asked to process his case in accordance with the rules for grant of gratuity, cash in lieu of leave salary, accumulation of CP.
Fund under rules.
Apex Court in case titled Moti Ram Vs. Param Dev and another, held that in order to constitute a complete and operative resignation, there
must be an intention to give up or relinquish office. It is apt to reproduce Para 15 of the said judgment herein:-
As pointed out by this court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, it cannotes the act
of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation
there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of
relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions
governing it. (See: Union of India (UOI) and Others Vs. Gopal Chandra Misra and Others, . If the act of relinquishment is of unilateral character, it
comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom
the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such
communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date
and in that event it would take effect from the date indicated therein and not from the date of communication. In cases where the act of
relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment
of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to
relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of
relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it.
Applying the test to the instant case, it can safely be held that respondent No. 4 has tendered the resignation intentionally and to give up the
office in order to contest the election. It was absolute and it stands accepted by the employer-respondent No. 3 vide communication dated 8th of
November, 2008 followed by the formal order supra.
In a case titled Jaipal Singh Vs. Smt. Sumitra Mahajan and Another, the Apex Court has held that the relationship of employer and employee
terminates on acceptance of resignation whereas in the case of retirement voluntary or of superannuation the relationship continues for purposes of
payment of retiral benefits.
Apex court has held in a case titled Chand Mal Chayal v. State of Rajasthan reported as AIR 2006 SCW 5068 that once the resignation is
accepted jural relationship between employer and the employee comes to an end. Apex court has also held in a case titled Smt. Indira Nehru
Gandhi v. Shri Raj Narain reported as 1975 SCC (Supp) 1 has also laid down the same Principle.
Keeping in view the contents contained in admitted documents supra, the resignation was unconditional, was accepted on 8th of November,
2008 w.e.f. 6th of November, 2008. Thus there was no jural relationship existing on the relevant date muchless the one provided by the
Constitution or by the Jammu and Kashmir Employees Service Rules and Regulations. Thus the argument of Mr. Jahangir that relationship between
employer and employee continued and respondent No. 4 was in service at the relevant point of time is devoid of any force.
In the given circumstances, the issue is decided in favour of respondent No. 4 and against the petitioner. Having said so, there is no need to
discuss the other issues, accordingly the election of respondent No. 4 is upheld and the election petition is dismissed.