Smt Vijayamathengee Iyer vs Union of India And Ors

The present OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-

"8(a) to allow the Original Application,

(b) to hold and declare that, since the applicant has withdrawn her resignation dt.15.03.2010 on 23.04.2010, action of the respondents in accepting her resignation w.e.f. 15.05.2010 is not sustainable in law.

(c) to hold and further declare that, since the notification in Gazette of India, about acceptance of Applicant's resignation by the President is yet not published, the employer - employee relation between the applicant and the respondents continues and the applicant to be deemed treated as an Officer of the respondent No.2,

(d) to quash and set aside the order dt.01.06.2010 issued by the respondents,

(e) to direct the respondents to allow the applicant to resume duty forthwith as Scientific Officer Grade-'C' under them

(f) to pass any other order which may be considered necessary in the facts and circumstances of the case,

(g) to award the cost of application."

The facts necessary for disposal of the present OA are that the applicant in pursuance to the Advertisement issued by the respondents applied for the post of Scientific Assistant - 'C', appeared for the interview and was selected and recommended by the Interview Board to be appointed to the post of Scientific Assistant 'C' and was issued appointment letter dated 16.03.1998 by the respondents, BARC. However, she was allowed to join w.e.f. 25.02.1998 as per the orders of the respondents. She was placed on probation for a period of one year. Her probationary period was satisfactorily completed in terms of order dated 24.02.1999 issued by the respondents. She had been appointed in the pay scale of Rs.5500-9000/-. Vide letter dated 24.02.1999, she was given her first increment w.e.f. 01.05.1999. She was promoted to the post of Scientific Officer - 'SB' (Group 'A' Gazetted post) w.e.f. 01.08.2003 vide order dated 06.02.2004. She received her next promotion to Scientific Officer Grade-'C' w.e.f. 01.08.2008 vide letter dated 07.07.2009.

2.1 She has alleged that she was not getting proper treatment from her superior i.e. respondent No.3 in the office regarding which she also filed complaint but despite that no action was taken against her and her behaviour towards the applicant became worst. Due to tension, the applicant suffered stroke and was admitted in Jaslok Hospital in Mumbai. After she was declared medically fit, she rejoined her duty but since the attitude of respondent No.3 did not improve and she was continuously harassed by her, she proceeded on leave as per medical advice. After she rejoined her duty w.e.f 23.02.2010, she was coerced by respondent No.3 to submit her resignation on the ground that during her leave period the office work suffers. The applicant being under great tension and pressure submitted her resignation in the prescribed form on 15.03.2010 from the post of Scientific Officer Grade 'C'. The resignation was kept pending by the respondents and no decision about its acceptance was communicated to her. However, after giving second thought, she submitted an application on 23.04.2010 for withdrawing her resignation letter dated 15.03.2010.

2.2 It is also stated that since the applicant was holding class I (Gazetted) post under the Central Government, her appointing/disciplinary authority is the President of India and thus the resignation submitted by her was required to be accepted by the Appointing Authority and thereafter published in Gazette to give effect to the same.

2.3 It is further stated that she kept on enquiring about the status of the said application. She was being informed orally by respondent No.3 that no reply was received from Higher Authorities. On 04.06.2010, she was informed by dealing clerk that her resignation had been accepted by Department of Automic Energy. She received letter dated 01.06.2010 from the Dy. Establishment Officer, BARC stating that her resignation was accepted by Competent Authority and she was permitted to relinquish charge retrospectively from 26.05.2010. It is alleged that the said letter is not authenticated in the name or on behalf of the President and thus legal requirement is not fulfilled. Further that the applicant had submitted her application dated 23.04.2010 for withdrawal her resignation and the same ought to have been accepted by the respondents as the same was submitted before acceptance of resignation.

2.4 In the OA, the applicant has also submitted that after she was counselled by Dr. K.B. Sainis on 13.04.2010 and by Head of Medical Division Dr. V. Karira and the Group Director on 19.04.2010, it was recommended that to give her chance to overcome her ailment problems she will be posted in hospital for six months and thereafter her case will be reviewed. It is only thereafter she agreed to withdraw her resignation and submitted an application on 23.04.2010 for withdrawal of her resignation, which was not acknowledged by the respondents. She has claimed that she did not receive any letter / order from the respondents communicating her that the resignation had been accepted and that she also did not receive letter dated 28.06.2010 from the respondents forwarding the copy of letter of acceptance of her resignation by the Competent Authority. It is claimed that the letter dated 28.06.2010 was never delivered to her nor she refused to accept the same though it is claimed that for short period she had gone to Mathurai and thus in her absence the aforesaid letter at Bombay address would have been sent back by post office. She admits receiving letter dated 06.07.2010 alongwith annexed letter dated 01.06.2010 signed by Deputy Establishment Officer on the subject of acceptance of resignation w.e.f. 26.05.2010 but claims that she had already sent her application for withdrawal of resignation on 23.04.2010.

2.5 The applicant has also stated that her resignation was neither accepted by the Competent Authority nor the same was published vide Gazetted Notification, thus her lien to her job continues.

2.6 The applicant has sought relief from the Tribunal to hold and declare that since the applicant has withdrawn her resignation dated 15.03.2010 on 23.04.2010, the action of respondents in accepting her resignation w.e.f. 25.05.2010 is not sustainable.

All the respondents have contested the present OA vide their respective replies. They have categorically denied the averments made by the applicant in the OA. It is claimed that applicant was even counselled by Bio Medical Group (BMG) on 24.04.2010 but she was keen on resignation despite Director, BMG's advice to reconsider her decision. Instead she was pressing for acceptance of resignation immediately. The respondents have relied upon letter dated 06.04.2010 (Exhibit R-1) addressed to the applicant by the respondents whereby she was intimated that she will be relieved only when suitable information to that effect is received from Personnel Division. The applicant without intimating the department started absenting unauthorisedly from her duties w.e.f. 21.04.2010 to 26.05.2010 i.e. the date of acceptance of her resignation. It is stated that the resignation dated 15.03.2010 was processed. The approval of Competent Authority was obtained and, accordingly, the applicant was relieved of her duties w.e.f. 26.05.2010.

3.1 The allegations against respondents No.3 as contained in the OA are denied to be false as she was not HOD and hence was not competent to recommend or accept her resignation. It is submitted that on 15.03.2010 the applicant on her own volition visited respondent No.3 from his place of duty at Ghatkopar dispensary and stated that she wanted to resign from the post of SA(C) on the ground that she was suffering from Systemic Lupus Erythrematous (SLE) and was an immuno suppression therapy. She was advised by respondent No.3 about the consequences of submitting the resignation but despite counselling, the applicant submitted her resignation. That being a permanent employee the applicant was required to give three moths notice for resignation to the respondents but she requested to be relieved w.e.f. 15.04.2010 by waiving notice period and that in case her request for curtailment of notice period is not accepted, she may be relieved on expiry of notice period i.e. w.e.f. 15.06.2010. Further, that the purported withdrawal of resignation letter dated 23.04.2010 was not received in the office of respondent No.3. The resignation was inwarded on 15.03.2010 inward register OPA No.5791 and was forwarded on the same day to Dr. K. Majumdar in charge Psycho Social Services, BARC, Hospital. The applicant was counselled on 13.04.2010 by Dr. V. Karira, Head Medical Division and on 24.04.2010 by Dr. K.B. Saini, Director BMG but she still remained firm on her decision of resignation and did not submit any formal request for withdrawal from the same. Consequently, after the processing of her resignation and approval of the Competent Authority, she was permitted to relinquish the charge w.e.f. 26.05.2010 vide order dated 01.06.2010 and the period of unauthorised absence from duty w.e.f. 21.04.2010 to 26.05.2010 was treated as dies non.

3.2 Further that on 10.06.2010 (Exhibit R-3) the applicant submitted a representation to Head Medical Division through fax requesting to withdraw her resignation on humanitarian ground and in this representation she stated that she had submitted her withdrawal of resignation on 23.04.2010 through proper channel after counselling by Dr. K.B. Sainis on 24.04.2010.

3.3 It is alleged by the respondents that the applicant was intimated regarding acceptance of resignation and relieving of her duties but she refused to accept the cover and the postal authorities returned the same undelivered. Alongwith this cover the three other envelopes containing necessary forms for final settlement of dues were also sent to the applicant which were all received back with the remarks 'left', 'unclaimed' and 'no such addressee'. The respondents to this effect have relied upon Note No.MD/204/602/13596 dated 28.06.2010 issued by APO, Medical Division (Annexure A-12) and Letter No.V/1968/Med/Estt.I/989, 990 & 991 dated 06.07.2010 (Exhibit R-4 colly).

3.4 The applicant under RTI Act made query about the steps taken by the respondents on her letter dated 23.04.2010 for withdrawal of resignation and she was informed vide letter dated 12.10.2010 that her letter was not received by the respondents till date. It is claimed that the applicant has not come to this Tribunal with clean hands as she was suffering from Systemic Lupus Erythrematous (SLE) and was unable to attend duties during her office hours but instead of accepting her illness as reasons for submitting resignation, she levelled false allegation against respondent No.3.

We have heard the arguments of Shri S.P. Saxena, learned counsel for the applicant and Shri R.R. Shetty, learned counsel for the respondents and perused the material available on record alongwith original record produced by the respondents.

The short question to be decided in the present OA is as to whether the applicant had tendered her application dated 23.04.2010 for withdrawal of the resignation to the respondents, if so what was the date of tendering of this application and whether it was tendered before acceptance of her resignation by the Competent Authority and also whether the resignation was accepted by the Competent Authority.

The learned counsel for the applicant has submitted that on 23.04.2010 the applicant had submitted her application for withdrawal of her resignation submitted vide letter dated 15.03.2010 and that till 23.04.2010 the resignation of the applicant had not been accepted, thus the acceptance of her resignation vide order dated 26.05.2010 is violative of the principles of natural justice. It is further submitted that even the order of acceptance of resignation received by the applicant is not authenticated to have been issued by the President of India as required under the Rules and thus the acceptance has no legal value.

On the other hand, learned counsel for the respondents has submitted that the applicant after she tendered her resignation vide letter dated 15.03.2010, was counselled on 13.04.2010 by Dr. V. Karira, Head Medical Division and thereafter by Dr. K. B. Sainis, Director, BMG on 24.04.2010 and that once the applicant was being counselled by the Higher authorities to withdraw her resignation, there was no reason for them not to consider her application dated 23.04.2010, if at all moved for withdrawal of her resignation.

The respondents have categorically denied that applicant had moved application on/dated 23.04.2010 to withdraw her resignation and it is observed from the record that after the applicant tendered her resignation vide letter dated 15.03.2010, she was counselled by HMD, Dr. V. Karira on 13.04.2010 and by Dr. K.B. Sainis, Director, BMG on 19.04.2010 and not on 24.04.2010 as claimed by the respondents in their reply. The relevant record of counselling was produced by the respondents in sealed cover. On opening the same it is found containing the document reference No.MD/204/602/8140 dated 13/19.04.2010 with the subject as under:-

"Sub:- Details of counselling undertaken for Smt Vijayamathangi on submission of her notice of resignation."

While perusing the same, it is observed that the applicant was counselled by Dr. V. Karira, HMD on 13.04.2010 and By K. Majumdar on 23.04.2010. However, it is observed that the date 23.04.2010 is interpolated and it appears that before interpolation there was some other date mentioned below 23. When we read top right corner of the document, the date mentioned therein is 13.04.2010 and 19.04.2010 respectively. Thus it can be presumed that the counselling of the applicant was done on 13.04.2010 and thereafter on 19.04.2010. Learned counsel for the respondents has failed to explain this overwriting in date of second counselling which has been converted into 23.04.2010. It is the case of the applicant the she was counselled twice i.e. on 13.04.2010 and again on 19.04.2010 which is in consonance with the dates mentioned in the top right of his document. What was the purpose behind the overwriting the date of second counselling is known only to the concerned person who has done the interpolation. In view of the dates mentioned on the top right of the document the dates for counselling are taken as 13.04.2010 and 19.04.2010 respectively. It is also observed from the reply of the respondents that they have claimed that the applicant was counselled by Dr. K.B. Sainis, Director, BMG on 24.04.2010. However, no such record has been produced before the Tribunal. Merely from this record produced by the respondents, we cannot come to the conclusion as to whether the applicant had filed or not her application for withdrawal of resignation on 23.04.2014. The record produced by the respondents in sealed cover was called as the counsel for the respondents has argued that if the applicant had tendered application for withdrawal of resignation on 23.04.2010 then there was no reason to give her counselling on 24.04.2010 as the purpose of counselling was only to persuade her to withdraw her resignation. However, now it is observed from this record that there was no counselling done on 24.04.2010. The counselling was done only on 13.04.2010 and thereafter on 19.04.2010. If after the counselling the applicant had changed her mind, there could be every possibility that she had tendered her application for withdrawal of resignation either on 23.04.2010 or at any other date convenient to her.

We have to find out as to what material the applicant has placed on record to show that she had moved an appropriate application with the concerned authorities either on 23.04.2010 or at any point thereafter but prior to the date of acceptance of her resignation.

The respondents have categorically denied that applicant had moved an application dated 23.04.2010 or on 24.04.2010 as claimed by the applicant in the OA and has stated that there was no reason for the respondents not to accept the same as it is only for this reason she was being counselled persistently to withdraw her resignation. This argument of learned counsel for the respondents do have some force. The applicant herself has admitted in the OA that she was counselled on 13.04.2010 and thereafter on 19.04.2010 and at the same time she has claimed that on account of counselling she had changed her mind and had decided to withdraw her application for resignation. The applicant has claimed that she had tendered her application for withdrawal her resignation though she has mentioned two different dates i.e. 23.04.2010 and 24.04.2010 of tendering of such application. The respondents have claimed that they have never received any application from the applicant and they came to know about such application only when the applicant made her representation dated 10.06.2010 and therein she mentioned the fact that she had tendered her withdrawal of resignation on 23.04.2010 through proper channel which was not acknowledged by the concerned authority. However, this plea does not find support from the pleadings as in the pleadings it is nowhere mentioned that when she tendered the above referred application, the same was not acknowledged. It is also observed that applicant did not agitate this issue at any platform prior to making representation dated 10.06.2010 wherein for the first time it was brought to light that she had moved any application on 23th or 24th April, 2010 seeking withdrawal of her resignation. The respondents have categorically denied to have received any such application for withdrawal of resignation tendered vide order dated 15.03.2010. The onus was throughout on the applicant to produce the necessary acknowledgment of having moved any such application. As referred above, she did not raise any objection in this regard at any platform at the earliest available opportunity. In the representation dated 10.06.2010, she has not mentioned with clarity as to whom she had tendered her application and who was the concerned official who refused to issue the acknowledgment and also as to why she kept quite till she was communicated acceptance of her resignation. Neither in the OA nor in the representation dated 10.06.2010 she attributed malafide to any specific official of the respondents. In the absence of any evidence on record that she had tendered application on 23/24.04.2010 for withdrawal her resignation, we have no hesitation to hold that the applicant concocted this story of having approached the respondents for withdrawal of her resignation before it was accepted by the Competent Authority.

The conduct of the applicant can also be appreciated from the fact that in the present OA she alleged that she was harassed by respondent No.3 and at her instance she had to submit resignation on 15.03.2010. However, learned counsel for the respondents has drawn our attention to the documents filed on record in earlier OA No.284/2011 filed by the applicant, It is pointed out that in her application for leave dated 23.04.2010, Exhibit A-8 of OA No. 284/2011 at page number 154 of present OA, the applicant has addressed this letter to the respondent No. 3 and has mentioned therein that she is unwell and undergoing Ayurvedic treatment as per the advice of APO(Mr. J G Ravinderan) and she is unable to come to the office for duty and requested her to approve her leave. Whereas, in the other letter of the same date, Exhibit A-7, which is the purported letter for withdrawal of her resignation submitted on 15.03.2010, it is mentioned that she had submitted her resignation as per the advice of Shri P.A. Ranji, the respondent No. 1 in the present proceedings and now after DBGM( Dr. K B Saini's) counselling and guidance she had decided to withdraw her resignation and she may kindly be granted permission for the same. Learned counsel for respondents has rightly pointed out that the contents of both these documents itself show that the applicant is making different statements in two different documents of the same date. The claim of the respondents that the applicant was having health problems and was thus unable to perform her duties efficiently and it is only for this reason she had tendered her resignation finds support from the counselling sheet dated 13/19.04.2010. The observations made by the counselors in this sheet are relevant. On 13.04.2010, she was counselled by Dr. V. Karira and Dr. K. Majumdar and the comments of the counsellors are as follows:

"She is suffering from SLE, stiffness of joints. She is under treatment. On medical grounds we will post her in hospital for 6 months and then we will review. She will be posted from 9 AM to 4 PM, it will help her in stiffness of joints. She had agreed to withdraw her resignation"

She was further counselled on 19.04.2010 and the commence of the counsellors are as follows "Smt. Vijaya Mathangee met me today. She has a debilitating illness. If we can help her by posting her at one place like BARCH, it will reduce her health problem relating working difficulties temporarily but she is keen on resigning. I requested her to reconsider her decision. We should post her to BARCH and give her chance to overcome her problems. "

The observation of the counsellors referred above clearly shows that the applicant had resigned only due to health reasons as in the counselling note sheet it is nowhere mentioned that since respondent No.3 was harassing her, for this reason she had given her resignation. It is also observed that the applicant even during the counselling sessions was of wavering mind as during first session, she agreed to withdraw her resignation whereas, in the second session which took place on 19.04.2010, she was keen on resigning. In these circumstances, for all the more reasons, it is for the applicant to bring sufficient material on record that she had taken a voluntary decision and had moved an appropriate application before the respondents at any point of time for withdrawal of her resignation before it could be finally accepted by the Competent Authority. However, she has failed to produce any such material on record. Hence, in the absence of any application for withdrawal of the resignation, her resignation tendered vide application dated 15.03.2010 was rightly accepted.

Now the only issue left to be decided is whether the resignation was accepted by the Competent authority i.e. The President of India. It is claimed by the applicant that since she was holding class-I(Gazetted post) under the central Government, her appointing/DA is the President of India, and thus, the resignation submitted by her is required to be accepted by the appointing authority and thereafter, it was published in the Gazette to give effect to the same. It is claimed that in her case, the resignation was not accepted by the President of India and thus the order of acceptance of resignation communicated to her is of no consequence in the eyes of law. However, learned counsel for the respondents has submitted that the resignation tendered by the applicant was processed and approval of the Competent Authority viz., Joint Secretary(R&D) who is competent to accept the resignation vide delegation of power order No. 24/1/99/Admn/380 dated 23.04.1999 in respect of officers upto and inclusive of grade SO/H, was obtained and accordingly she was permitted to relinquish the charge of post of SO(C) in BARC w.e.f. 26.05.2010 vide order No. V/1968/Med/Estt.I/50397 dated 01.06.2010. The relevant document to this effect has been placed on record as R-15. In view of this discussion even the applicant has failed to prove that the resignation tendered by her was not accepted by the Competent Authority.

In the above facts and circumstances, the Original Application is without any merits and is thus dismissed. MA No.368/2014 also stands closed. No order as to costs.