Smt. Neelam Sharma vs The Government of India and Others

CLMA No. 889 of 2010

Learned Counsel for the respondents does not oppose the application for condonation of delay in filing the restoration application.

In view of the above, CLMA No. 889 of 2010 is allowed. Delay in filing the application for restoration of the main Appeal is condoned.

MCC No. 56 of 2010

For the reasons indicated in the application, we are of the view that the order dated 23.6.2009 dismissing the Special Appeal No. 145 of 2008 in default deserves to be recalled. The same is accordingly recalled. The aforestated Special Appeal is accordingly restored to its original number.

Special Appeal No. 145 of 2008

The appellant was inducted into the service of respondents as a Lower Division Clerk on 27.3.1987. A few months thereafter, on 27.7.1987 the appellant tendered her resignation from service. The resignation submitted by the appellant was accepted on 8.8.1987. The order dated 8.8.1987 was assailed by the petitioner by filing Writ Petition No. 7633 of 1995 before the High Court at Allahabad. On the reorganisation of the composite State of Uttar Pradesh, the aforesaid writ petition was transferred to this Court. In this Court, the same writ petition was re-registered as Writ Petition (SS) No. 6712 of 2001. The case set up by the appellant, in the writ petition, was that the aforesaid resignation was tendered so as to be operative w.e.f. 31.7.1987, and that, prior to 31.7.1987, the appellant had withdrawn the resignation through a communication dated 28.7.1987. Despite the aforesaid, the resignation of the petitioner was accepted by the authorities on 8.8.1987 wrongfully, arbitrarily and illegally.

Writ Petition (SS) No. 6712 of 2001 was dismissed by a learned Single Judge of this Court by an order dated 13.2.2008. Through the instant Special Appeal, the appellant has assailed the order passed by the learned Single Judge dated 13.2.2008 disposing of Writ Petition (SS) No. 6712 of 2001.

From the sequence of facts narrated hereinabove, it is apparent, that the appellant had tendered her resignation through a communication dated 27.7.1987. As per the aforesaid resignation letter, the resignation was to be effective w.e.f. 31.7.1987. However, according to the appellant, before the effective date of resignation, the appellant withdrew her resignation, through a communication dated 28.7.1987. If the factual position as noticed hereinabove is correct, then the claim raised by the appellant, undoubtedly, would have deserved to be accepted, inasmuch as, it is open to an employee to withdraw his/her resignation prior to the effective date thereof, or for that matter, even prior to the date of its acceptance. The instant assertion made at the hands of appellant is, however, disputed by the respondents. It is the case of the respondents, that the petitioner had not revoked her request to resign prior to the acceptance thereof, by the authorities on 8.8.1987. In other words, the case of the respondents has been that the petitioner never submitted the revocation letter dated 28.7.1987.

The issue that we have been called upon to adjudicated (by the learned Counsel for the petitioner) is most definitely in the nature of a disputed question of fact. Ordinarily, it would not have been open to the petitioner/appellant to press such a claim based on disputed questions of fact, in a petition filed under Article 226 of the Constitution of India. But it is open to this Court even while exercising its jurisdiction under Article 226 of the Constitution of India to examine such a matter when it is possible to arrive at a clear conclusion. The narration of facts at the hands of the petitioner, in our view, lead to irresistible inference, that she had factually not addressed any such communication to the respondents (dated 28.7.1987). The aforesaid inference is derivable from the pleadings in the writ petition, wherein the express case set up at the hands of the petitioner was, that she had visited the office of the respondents to submit the communication dated 28.7.1987, for revoking the resignation earlier submitted by her on 27.7.1987. But, the same was not accepted from her. Ordinarily, when such vital rights are affected, and such a communication is not accepted, the normal and ordinary course, that would be adopted by an individual in such a situation would be, to dispatch the said communication through registered acknowledgement due post. Therefore, after the aforesaid letter dated 28.7.1987 had not been accepted, it would have been expected of the appellant/petitioner to dispatch the same on the same day through registered post. This, however, was not done by the petitioner. The pleadings in the writ petition preferred by the appellant further demonstrate, that the petitioner did not make any representation to the Higher Authorities asserting, that the revocation letter tendered by her on 28.7.1987 was not being accepted. The appellant raised a challenge to the action of the authorities in having accepted the resignation letter on 8.8.1987, after a lapse of about 8 years, by filing Writ Petition No. 7633 of 1995, before the High Court at Allahabad. The appellant had by then obviously been advised, that she could exploit the judicial system to seek re entry into employment, which had been abandoned years ago. However, in order to demonstrate, that she had dispatched the communication dated 28.7.1987 for revoking the resignation letter dated 27.7.1987, she relied upon a U.P.C. (Under Postal Certification) dated 30.7.1987. The aforesaid certification, in our view, cannot be a basis to draw an inference in favour of the petitioner. It is a matter of common knowledge that such UPC''s can easily be procured. In the background of the factual position noticed hereinabove, there is no material whatsoever on the record, of this case, on the basis whereof it can be concluded, that the appellant revoked her resignation through her communication dated 28.7.1987 i.e. prior to the date of its acceptance ( on 8.8.1987).

In view of the conclusion drawn by us hereinabove, namely, that the appellant had not revoked the resignation letter dated 27.7.1987 prior to its acceptance, we have no hesitation in concluding, that the order of acceptance dated 8.8.1987 was fully justified. Reliance on the U.P.C. so as to demonstrate that the revocation communication dated 28.7.1989 had actually been submitted by her, in our view, was a matter of deceit practiced by her, when she approached the High Court at Allahabad to file Writ Petition No. 7633 of 1995. In filing the instant Special Appeal, she has again repeated the same folly.

In the facts and circumstance of this case, we are of the view that the instant Special Appeal deserves to be dismissed with costs. The instant Special Appeal is accordingly dismissed with costs quantified at Rs. 10,000/-. Of the aforesaid costs, a sum of Rs. 5,000/- shall be paid by the appellant to the Legal Services Authority, Uttarakhand, and a further sum of Rs. 5,000/- shall be paid by her to the Bar Association of the High Court of Uttarakhand. Receipts in token of payment of the aforesaid costs, shall be placed on the record of this case within one month from today. In case, no such receipt is placed on the record as directed hereinabove, the instant Special Appeal shall be re-listed by the Registry of this Court for motion hearing for recovery of the costs.