Sanjeev Setia vs Bhartiya Mahila Bank Ltd. and Others

V. Kameswar Rao, J—The challenge in this writ petition is to the communication dated March 31, 2015 whereby the resignation of the petitioner has been accepted by the competent authority with a decision to relieve the petitioner from the respondent-bank''s service on April 11, 2015.

It is the submission of Mr.K.C. Mittal, learned counsel for the petitioner that the petitioner, while working in Nehru Place branch, New Delhi of the respondents, was transferred to Patna vide order dated December 20, 2014. On January 6, 2015, he tendered his resignation through an e-mail and requested that he be placed at a different branch to serve the notice period. The said request of the petitioner was not accepted by the respondents and he was called upon to report to Patna branch immediately, with a further rider that the period of notice of 90 days shall be considered from the date, the petitioner joins the Patna branch. On January 12, 2015, the petitioner did join the Patna branch. In between, certain correspondences were exchanged between the parties. He submits, through an e-mail dated April 6, 2015 at 10.44 a.m., the petitioner decided to withdraw the resignation tendered by him and requested that he may be allowed to continue in service. He submits, the petitioner at around 10.55 a.m., received an e-mail from the respondents on the same day wherein, the scanned copy of communication dated March 31, 2015 accepting his resignation was attached, wherein it was mentioned that the petitioner would be relieved on April 11, 2015. According to him, the physical copy of the letter dated March 31, 2015 was not received by the petitioner till April 9/10, 2015. The appeal to the higher authorities to allow him to consider the withdrawal of the resignation did not find favour. He would state, in terms of the appointment letter, in the eventuality, the petitioner desires to leave the service of the bank, either during the period of probation or after the confirmation, he was required to give three months notice in writing to the bank, and the relationship being purely contractual, the request of the petitioner for withdrawing the resignation need to have been accepted and the petitioner should have been allowed to continue in the service. He would rely upon the judgments in the cases of Shambhu Murari Sinha Vs. Project and Development India and Another, AIR 2000 SC 2473 : (2000) 3 CTC 319 : (2000) 86 FLR 206 : (2000) 6 JT 358 : (2000) 2 LLJ 935 : (2000) 4 SCALE 262 : (2000) 5 SCC 621 : (2000) SCC(L&S) 741 : (2000) AIRSCW 2577 : (2000) 3 Supreme 680 and Punjab National Bank Vs. P.K. Mittal, AIR 1989 SC 1083 : (1989) 2 CompLJ 184 : (1989) 58 FLR 449 : (1989) 1 JT 264 : (1989) 1 LLJ 368 : (1989) 1 SCALE 353 : (1989) 2 SCC 175 Supp : (1989) 1 SCR 612 : (1989) 2 SLJ 1 : (1989) 1 UJ 495 in support of his contention.

Mr. Jagat Arora, learned counsel, by relying on the counter affidavit filed by the respondents, would submit that the petitioner, who at the relevant point of time, working at Nehru Place branch of the respondent bank was counseled many times for improving his performance as he was not working satisfactorily and his colleagues/ officers were not happy with his style of working. Keeping in view the administrative exigency, it was decided that the petitioner be transferred to another place. As there was a vacancy at Guwahati branch, the management decided to post the petitioner at Guwahati branch. On coming to know his likely posting, he approached the HR Department of the respondents to transfer him to a Hindi speaking area since at Guwahati, he could face language problem. According to the respondents, keeping in view the verbal request of the petitioner in this regard, his posting was changed to Patna where the Branch Head was required. The transfer order dated December 20, 2014 had been made and he was relieved from the Nehru Place, New Delhi branch on December 31, 2014 to report for his new posting. The petitioner, however did not report for duties at Patna branch as directed, and absented himself from January 1, 2015 and sent an email dated January 1, 2015 for sick leave due to his poor health, without mentioning any specific ailment. He also informed that he would resume the duty once he recovers again, without mentioning any time frame. The Bank informed the petitioner that his absence was being treated as unauthorized absence on loss of pay and that he should report at Patna branch to take the charge of the branch. Despite the communication, no medical certificate in support his illness was produced nor he reported to Patna branch. It is his submission that on January 06, 2015, an email resignation letter was received, wherein, the petitioner had expressed his difficulty to join the Patna branch and submitted that in case change in posting was not possible, the letter may be treated as his resignation letter. It was specifically stated by him that the email be considered as a formal resignation from the service. The email dated January 06, 2015 was placed before the competent authority, who accepted the e-mail as resignation letter and stated that the petitioner''s notice period shall commence from the day he reports at Patna branch. When the petitioner did not join till January 9, 2015, an e-mail was sent on the same day stating that his relocation was not possible and his absence from Patna branch was treated as unauthorized absence on loss of pay. The petitioner was informed that the period of notice of 90 days would be considered from the day, he reports at Patna branch. He submits, it was made clear, if he did not join the Patna branch immediately, the bank would be constrained to initiate action against him as deemed fit. The petitioner ultimately joined the Patna branch on January 12, 2015. It is the submission, because of irresponsible attitude of the petitioner, the bank had to run without a branch head for 11 days, which subjected the branch to operational risk and customer service at risk. Thereafter, the competent authority had accepted the resignation on March 17, 2015 itself and directed the relieving of the petitioner from the bank''s service on completion of notice period. After completion of internal process, a letter dated March 31, 2015 was sent to the petitioner informing the acceptance of his resignation and relieving him on April 11, 2015. He would state, as a new Branch Manager was to be posted, arrangements were being made. It is his submission, the new Bank Manager Mr. Jitender Jaiswal joined the Patna Branch on April 6, 2015, which justifies the relieving of the petitioner on April 11, 2015. It is his submission that the facts as highlighted by the respondents in their counter affidavit would disentitle the petitioner the relief, more particularly, in proceedings under Article 226 of the Constitution of India. He would rely upon the following judgments in support of his contention:

Balram Gupta Vs. Union of India (UOI) and Anr, AIR 1987 SC 2354 : (1987) 3 JT 480 : (1988) LabIC 46 : (1987) 2 LLJ 541 : (1987) 2 SCALE 521 : (1987) 1 SCC 228 Supp : (1987) SCC 228 Supp : (1987) 3 SCR 1173 : (1988) 1 SLJ 79 : (1987) 2 UJ 746 .

Union of India (UOI) Vs. Hitender Kumar Soni, (2014) AIRSCW 4873 : (2014) 8 SCALE 743

Raj Kumar Vs. Union of India (UOI), AIR 1969 SC 180 : (1969) 18 FLR 125 : (1969) LabIC 310 : (1970) 1 LLJ 13 : (1968) 3 SCR 857

Shangrila Food Products Ltd. and another Vs. Life Insurance Corporation of India and another, AIR 1996 SC 2410 : (1996) 6 JT 522 : (1996) 5 SCALE 289 : (1996) 5 SCC 54 : (1996) 3 SCR 279 Supp : (1996) 2 UJ 599

North Zone Cultural Centre and Another Vs. Vedpathi Dinesh Kumar, C.A. No. 3506/2003 dated April 17, 2003

Having heard the learned counsel for the parties, the first issue which arises for consideration is whether the petitioner having withdrawn his request for resignation dated January 6, 2015 on April 6, 2015, before he was to be relieved on April 11, 2015, the impugned action of the respondents relieving the petitioner on April 11, 2015 is justified. The said question does not require any elaborate reasoning. Suffice to state, the stipulation in appointment letter contemplates a notice period of three months. There is no dispute that the three months were to expire on April 11, 2015. The said stipulation reads as under:

"However, if you desire to leave the service of the Bank, either during the period of probation or after confirmation, you shall be required to give three months'' notice in writing to the Bank."

The relationship between the parties is contractual. The petitioner is within his right to withdraw his request for resignation before he is actually relieved, on April 11, 2015. The plea advanced by Mr. Jagat Arora that the respondents having accepted the request of resignation of the petitioner much before he was relieved, on March 17, 2015 and communication thereof was sent on March 31, 2015, would have no bearing as long as the request for withdrawing the resignation has been given by the petitioner before April 11, 2015, and the law in this regard is well settled by the Supreme Court in Balram Gupta''s case (supra), Shambhu Murari Sinha''s case (supra) and J.N. Srivastava Vs. Union of India (UOI) and Another, AIR 1999 SC 1571 : (1999) 1 LLJ 546 : (1998) 9 SCC 559 : (1998) SCC(L&S) 1251 : (1998) AIRSCW 4057 wherein, it was held that it is always permissible for an employee even though request for voluntary retirement has been accepted by employer, to withdraw the same before the last date of notice period.

But, this Court finds one aspect which may have a bearing on the relief sought for by the petitioner, which is in view of the arrangements made by the respondents on the resignation by the petitioner by posting one Mr. Jitender Jaiswal at Patna in place of the petitioner, can a direction be given for taking back the petitioner in service. It is a conceded position that Mr. Jaiswal did join Patna on April 6, 2015.

I note, Mr. Jaiswal was issued the appointment letter on April 4, 2015 before the petitioner withdrew the request for resignation on April 6, 2015. Mr. Jaiswal joined his place of posting at Patna on April 6, 2015, presumably, in the morning. It appears, the joining of Mr. Jaiswal at Patna had made the petitioner withdraw his request for resignation. In any case, when on the strength of the petitioner''s request for resignation a decision was taken on March 17, 2015 to accept the same and to relieve him on April 11, 2015, and a communication in that regard was issued on March 31, 2015 by the respondents which even if received only on April 6, 2015 and the respondents having made alternative arrangements to post Mr. Jaiswal at Patna vide order dated April 4, 2015 in place of the petitioner and Mr. Jaiswal having joined his place of posting at Patna on April 6, 2015, would clearly demonstrate that the respondents have taken measures to meet the exigency of the petitioner leaving the job. Under such circumstances, even if a request has been made by the petitioner at 10.44 a.m., on April 6, 2015, surely, after Mr. Jaiswal has joined Patna branch and the request of the petitioner for withdrawing the request having not been allowed, no fault can be found with that action.

I note, the relevant observation of the Supreme Court in the case of Balram Gupta (supra), wherein, the Supreme Court has held as under:

"12. In this case the guidelines are that ordinarily permission should not be granted unless the Officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. In the facts of the instant case such indication has been given. The appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo upon people''s choice or freedom. If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but (emphasis supplied) the appellant''s offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administrative set up or management was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this purpose the respondent is to blame and not the appellant".

The submission of Mr. K.C. Mittal, that, the posting of Mr. Jaiswal, would not effect the right of the petitioner to withdraw his request of resignation, before he is actually relieved and even otherwise, there are vacancies available in the bank, elsewhere and the petitioner can be accommodated there, is concerned, the same does not appeal to the Court for the following reasons:

(i) The petitioner did not join Guwahati and sought his transfer to Hindi speaking area;

(ii) On his transfer to Patna, the petitioner did not join the place; he took leave, without furnishing medical certificates;

(iii) The petitioner resigned with a request to change his posting from Patna during notice period;

(iv) It was only after the petitioner was told that it is after he joins Patna, the notice period would commence, he accordingly joined Patna;

(v) The petitioner continued working in Patna, without withdrawing his request for resignation; at least till April 6, 2015.

(vi) During the notice period, the respondents took steps to make alternative arrangements to post a Branch Manager in Patna, which they did, on April 4, 2015 by appointing Mr. Jaiswal, who joined the Branch on April 6, 2015.

(vii) The petitioner withdrew the resignation on April 6, 2015 at 10.44 a.m.,

The facts demonstrate that the petitioner wanted the employment on his own terms, which surely is impermissible. Moreover, it is noted that Branch at Patna remained headless for 11 days.

Keeping in view the facts of the case, this Court is of the view, that the Court should not exercise jurisdiction in favour of the petitioner by granting the relief as prayed for. The writ petition is dismissed.

CM No. 10503/2015 (stay)

In view of the order passed in the writ petition, the present application is dismissed as infructuous.