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Judgment
Kuldeep Tiwari, J
The petitioner’s request for withdrawal of his resignation tendered on dated 10.12.2024 (Annexure P-4), was declined by the learned District and Sessions Judge, Sirsa, vide an administrative order dated 23.12.2024 (Annexure P-7). Thereafter, his representation dated 17.12.2024 (Annexure P-6), seeking reconsideration of the order accepting his resignation vide order dated 11.12.2024 (Annexure P-5), was also rejected vide order dated 08.01.2025 (Annexure P-9). The legality of both the orders (supra), has been questioned by filing instant writ petition cast under Article 226/227 of the Constitution of India.
In nutshell, the facts which are essential for adjudication of the instant case, are that the petitioner was appointed to the post of Peon vide memo 31.03.2017 (Annexure P-1), and joined the Sessions Division on 03.04.2017. He continued to discharge his duties till November, 2024. However, on 10.12.2024, he tendered his resignation to learned Civil Judge (Jr.Divn.), Sirsa. On the very next day, i.e. 11.12.2024, the learned District and Sessions Judge, Sirsa, accepted the said resignation, subject to deposit of one month's salary and other dues. Thereafter, after a lapse of 06 days, i.e. on 17.12.2024 (Annexure P-6), the petitioner submitted an application for withdrawal of his resignation on the ground that he was suffering from anxiety. He also submitted that since now, he overcome his domestic problems, and had no other source of any income, and had liability to raise his three daughters and a son, therefore, his request for resignation dated 10.12.2024, be ignored. The said request for withdrawal of his resignation was declined vide order 23.12.2024. Subsequently, the petitioner made a detailed representation seeking reconsideration of the decision of acceptance of resignation (supra). However, the same did not yield any fruit, and finally, vide order dated 08.01.2025 (Annexure P-9), the said representation was also rejected, citing Rule 19 (2) of the Haryana Group 'D' Employees (Recruitment and Condition of Service) Rule, 2018 (hereinafter referred to as the 'Rules of 2018'), which bars withdrawal of any resignation after its acceptance by the appointing authority.
Learned counsel for the petitioner, in his endeavour to throw challenge to the impugned orders, submitted that the petitioner's resignation was never finally accepted vide order dated 11.12.2024, rather it was only a conditional acceptance, subject to fulfillment of certain conditions. However, the said conditions were never fulfilled, and prior to their fulfillment, the petitioner within a period of six days, submitted a request for withdrawal of his resignation. However, the said request was erroneously declined on the incorrect presumption that petitioner's resignation had already been accepted vide order dated 11.12.2024 (Annexure P-5).
While referring to Rule 19 of the Rules of 2018, he further submitted that a member of service may resign by giving a notice of not less than three months in writing directly to the appointing authority, and such notice period shall be reckoned from the date of receipt of such notice by the appointing authority. He further submitted that the mandatory notice period of three months had not expired in the present case, and, in fact, the petitioner sought withdrawal of his resignation within a week of its submission. Therefore, in terms of Rule 19 of the Rules of 2018, the petitioner was well within his right to withdraw the resignation.
On the hand, learned counsel for the respondents, at the outset, draws attention of this Court towards the Condition no.8, attached with petitioner's appointment letter dated 31.02.2017 (Annexure P-1), and submitted, that as per the said condition, the petitioner is required to give one month's prior notice or, forfeit the salary in lieu thereof, including allowance for one month. In the instant case, the request for resignation was accepted by the appointing authority on 11.12.2024, therefore, the employer-employee relationship ceased to exist from that date, and same could not be revived by making application on 17.12.2024. Hence, the said application has rightly been rejected by passing the impugned order dated 23.12.2024, and, thereafter, the representation (supra), was also rightly declined in view of Rule 19(2) of the Rules of 2018, which governs the service conditions of the petitioner.
She, finally, placed reliance upon a judgement of Hon'ble Supreme Court in 'Air India Express Limited and ors. vs. Gurdarshan Kaur Sandhu' (Civil Appeal No.6567 of 2019, decided on 22.08.2019), to substantiate that post-severance of employer-employee relationship, the employer had made alternate arrangements, therefore, the same cannot be undone by accepting employee's request for withdrawal resignation.
In order to appreciate the submissions. as made by learned counsel for the parties, lets have a clear picture with regard to Rule 19 of the Rules of 2018, which deals with acceptance of resignation. The same is extracted hereinafter:-
(1) A member of Service may resign his appointment by giving notice of not less than three months in writing direct to the appointing authority with a copy marked to his immediate superior officer. The period of three months notice shall be reckoned from the date of receipt of such notice by the appointing authority.
(2) The member of Service may withdraw the notice of his resignation before its acceptance and withdrawal of resignation shall not be permitted after its acceptance by the appointing authority.
(3) The appointing authority shall issue orders on the notice of resignation before the date of expiry of notice, either accepting the resignation from a date not later than the date of expiry of the notice or rejecting the same, giving the reasons thereof. If no such order is passed, the resignation shall be deemed to have been accepted on the expiry of the period of notice.
(4) Notice of resignation given by the member of service shall be accepted by he appointing authority, subject to the conditions-
(i) that no disciplinary proceeding is contemplated or pending against the member of concerned under rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules 2016:
(ii) that a report from the Director of Vigilance and Anti-Corruption has been obtained to the effect that no enquiry is contemplated or pending against the member of Service:
(iii) that no dues are pending to be recovered by the Government from the member of Service, and
(v) that there is no contractual obligation of any kind including contractual obligation to serve the Government during the period in which the member of Service seeks to resign.
(5) Notwithstanding anything contained in clauses (i) and (ii) of sub-section (4), where a member of Service, under suspension of against whom disciplinary or criminal action of vigilance enquiry is pending, seeks to resign, the appointing authority shall examine the nature and gravity of the case and may accept the resignation, if the case is not such as would warrant rejection of the notice of resignation.
A minute examination of the above Rule, makes the following things clear that:-
(i) A member of service may resign his appointment, but he is required to give notice of not less than three months in writing to the appointing authority;
(ii) The period of three months notice, shall be reckoned from the date of receipt of such notice by the appointing authority;
(iii) Sub clause 2 of Rule 19, gives right to an employee to withdraw the notice of his resignation before its acceptance, however, the same cannot be withdrawn post-acceptance by the appointing authority;
(iv) Sub clause 3 of Rule 19, empowers the appointing authority to issue orders on notice of resignation before the date of expiry of notice period, which may either accept the resignation from the date not later than the date of expiry of the notice or rejecting the same, giving the reasons thereof. This clause further specifies about the deemed acceptance of resignation, in case no such order is passed by the appointing authority, on the expiry of period of notice.
On the anvil of the above rule position, lets examine the facts of the instant case, which are as under:-
(i) The petitioner on 10.12.2024 (Annexure P-4), made a request to allow him to leave his service by tendering writing resignation, with a further prayer not to deduct his salary on account of such resignation application. The relevant of application is extracted hereinafter:-
“With due respect, it is requested that I am unable to perform the job, hence kindly allow me to leave the job. My salary should not be deducted due to the application. It is prayed to relive me today itself. You will be very kind to me.”
(ii) On the very next day, i.e. 11.12.2024 (Annexure P-5), the aforesaid resignation application was conditionally accepted by the appointing authority, with a condition of depositing one month salary and other dues, if any. The said order is extracted hereinafter:-
“Office report perused. Resignation submitted by Sh.Nirmal Singh, Peon is accepted subject to deposit of one month salary and other dues, if any.”
(iii) A perusal of the above order makes it very clear that the acceptance of resignation was not absolute, rather, it was conditional one, i.e. subject to deposit of one month salary and other dues, if any. It is important to note that the petitioner neither deposited one month salary, nor the appointing authority informed about any dues pending against him. Within a period of six days thereafter, i.e. on 17.12.2024 (Annexure P-6), the petitioner made a request for withdrawal of his resignation vide Annexure P-6, citing various reasons as recorded above. The relevant of application is extracted hereinafter:-
“It is respectfully submitted that I have my submitted my resignation on 10.12.2024 due to domestic problem as I was suffering from anxiety. Now I have come up from my domestic problem and wants to withdraw my resignation and now I realized my mistake.
That I have no other source of income and I have three daughters and a son and without source of income. It is very difficult for me to face serious consequences of inflation. I am working in the department since 3.4.2017 and performing my duties sincerely and honestly.
So I request kindly ignore my resignation request and I may kindly be allowed to continue my present position and I shall be grateful in this regard.”
(iv) The aforesaid request of the petitioner was declined vide order 23.12.2024 (Annexure P-7), as the appointing authority presumed that his resignation was already accepted on 11.12.2024. He was further directed to deposit one month salary and other dues, if any, in view of the order dated 11.12.2024. The appointing authority further clearly specified that in case of non-deposit of the same, petitioner's application received on 10.12.2024, will be treated as one month prior notice and he will be relieved on 19.01.2025 (afternoon). The relevant of order dated 23.12.2024, is extracted hereinafter:
“Office report perused. Request of Sh. Nirmal Singh, Peon for withdrawal of resignation cannot be entertained as per Instructions as it has already been accepted vide order dated 11.12.2024. He be directed to deposit one month salary and other dues if any, as already ordered. In case of non deposit of the same, his application received on 10.12.2024 will be treated as one month prior notice and he will be relieved on 09.01.2025 (after-noon), after getting deposited other dues, if any.”
A perusal of the above order dated 23.12.2024, makes three things clear, which are as under:-
(a) The appointing authority itself made it clear that the acceptance of resignation of the petitioner on 11.12.2024, was subject to the condition of deposit of one months salary and other dues, if any; and,
(b) in case the aforesaid salary and other dues, if any, are not deposited, his application dated 10.12.2024, will be treated as one month prior notice; and,
(c) further that, in eventuality of not depositing one month salary and other dues, if any, the petitioner will be relieved on 09.01.2025 (afternoon), after getting deposit the other dues, if any.
It is a clear-cut case where the acceptance of the petitioner’s resignation vide order dated 11.12.2024, was conditional one, and the said condition admittedly remained unfulfilled, as is evident from the order dated 23.12.2024, as extracted hereinabove. Moreover, the petitioner’s resignation application was directed to be treated as a one month’s notice. Once the appointing authority itself construed the resignation as a notice of one month, the petitioner was well within his right to withdraw the same before the expiry of the notice period. It is not under dispute that the petitioner neither deposited one month’s salary and other dues, nor did the appointing authority assess any such dues or issue a no-dues certificate.
It is trite law that an employee is entitled to withdraw his resignation before it comes into effect or becomes operative. In the instant case, the appointing authority itself clarified that the notice would operate prospectively, i.e., from 09.01.2025, owing to non-deposit of one month’s salary and other dues, therefore, the petitioner was fully entitled to withdraw his resignation before the said date. In fact, the petitioner continued in service, and there was no severance of the employer–employee relationship. The service of the petitioner would have ceased only on 09.01.2025, when the act of resignation would have become complete and effective.
This Court has also examined the judgement rendered by Hon'ble Supreme Court, in Air India's case (supra), upon which much reliance has been placed by learned counsel for respondents. However, the said judgement has no applicability to facts of the instant case. In that case, while taking into consideration that, the Civil Aviation Requirement (CAR) acknowledges that it takes considerable period to train a pilot to operate an aircraft and that as a part of training, the new incumbent will be required to pass a technical and performance examinations and will have to undergo simulator and flying training and to undergo skill test to satisfy the requirements, and such activities have already been undertaken by the employee, the Hon'ble Supreme Court has held that employee therein, was not within its right or entitled to withdraw his resignation. However, the factual matrix of the instant case is entirely distinguishable as no such circumstances exist herein. Accordingly, it is not applicable to the present case.
For the sake of repetition, as per Rule 19(2) of the Rules, 2018, a member of service may withdraw the notice of resignation before its acceptance, however, withdrawal is not permissible after its acceptance. As already discussed hereinabove, in the present case, the notice of resignation was not accepted on 11.12.2024 in absolute terms; rather, its acceptance was conditional, and to take effect only upon the petitioner depositing one month’s salary and other dues, if any. In the absence of compliance with such condition, the resignation dated 10.12.2024 could only be treated as a notice of resignation to be effective from a prospective date, which position also stands affirmed by the appointing authority in its order dated 23.12.2024. Therefore, this Court is of the considered view that the impugned orders (supra) do not pass the test of legality, and are, accordingly, set aside. The petitioner is permitted to withdraw his resignation.
The petitioner shall report the appointing authority 01.04.2026 at 9.00 a.m., and thereupon, the latter concerned, shall, take further necessary action, in accordance with law.
Consequently, the instant petition, stands allowed.
All pending application(s), if any, also stand disposed of accordingly.