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Judgment
Dipak Misra, J.
In this intra-court appeal preferred u/s 2(1) of M.P. Uchh Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 the faultlessness of the order dated 27.2.2006 passed by the learned Single Judge in W.P. No. 4121/94 is called in question.
Bereft of unnecessary details the facts which are imperative to be narrated are that the Appellant-Petitioner (here in after referred to as the Appellant'') was absorbed in the services of the Respondent No. 2 Jila Sahkari Kendriya Bank Maryadit, Damoh. There is no cavil about the factum that his absorption was on temporary status. He submitted an application for resignation on 11.1.94 which has been brought on record as Annexure R-2/5. In the said letter it was communicated that he was facing harassment and victimisation and his resignation be accepted with immediate effect. The said letter was forwarded by the Manager of the Bank to the Chairman who accepted the prayer for resignation as per his order dated 13.1.94. The same was communicated to the Appellant on 17.1.94. The Appellant submitted an application for withdrawal of his resignation on 19.1.94. There is no dispute that the Chairman had accepted the prayer for resignation in anticipation of approval by Staff Sub Committee which gave the approval as is evincible from the record, that was called by this Court, on 19.10.94.
Faced with the aforesaid situation, the Appellant invoked the extra ordinary jurisdiction of this Court assailing the ussation of the jural relationship between the Appellant and the second Respondent on the foundation that the Respondent No. 2 had acted in contravention of the rules inasmuch as conditions precedent as prescribed under the rule, namely "Jila Sahkari Kendriya Bank Seva Nivriti, Adhiniyant (here in after referred to as the rule''). It was urged that the concept of acceptance is alien to the rule and once a rule postulates specific procedure, the same has to be adhered to and in the case at hand there has been total non-adherence to the same. It was urged that giving effect to the request of resignation is per se illegal and unsustainable. It was highlighted before the learned Single Judge that it is not a case of that nature where the employer has a discretion to accept the letter of resignation forthwith for certain requirements as envisaged in the rules are to be complied with.
The Respondent Bank before the learned Single Judge contended that the letter of the Appellant indicated that he desired his resignation to be accepted forthwith and accordingly the bank accepted the resignation in anticipation of approval of Staff Sub Committee which has been given, and hence, no illegality can be found with the action taken by the bank. It was also canvassed that it was open to the Respondent bank to waive the conditions that find mention in the relevant rule and the bank has so done by accepting the resignation in quite promptitude and, therefore, the same is absolutely correct and no flaw can be found with it. It was further contended before the learned Single Judge that with immediate acceptance of the letter of resignation, the jural relationship between the employer and employee came to an end and the extinction of the same is legally valid.
We have heard Mr. Rohit Arya, learned Senior Counsel along with Mr. Anurag Jain, for the Appellant and Mr. V.S. Choudhary, learned Counsel for the second Respondent the Bank in question.
At the very outset we may state that the facts enumerated hereinabove are not disputed at the Bar. The singular question that emanates for consideration is whether the Respondent bank was justified in law in bringing an end to the relationship of employer an employee by taking recourse to the act of acceptance on 13.1.94 anticipating approval of the Staff Sub Committee.
Submission of Mr. Rohit Arya, learned Senior Counsel for the Appellant is that if the anatomy of the rule is scanned in a proper manner nothing is inhered therein that an employee can file an application for immediate resignation without complying with the condition precedent. It is urged by him that there is a stipulation in the rule that one month''s salary has to be deposited with the bank or in lieu thereof a month''s notice has to be given. And hence, the application for resignation was futuristic in nature. Incrementing the aforesaid facet it is contended by Mr. Arya that in the absence of the first precondition being satisfied, it has obligatory on the part of the employer to wait for one month as the factum of resignation could only have been fructified after expiration of one month and, therefore, he had the jural relationship for one month with the employer and had the locus paenitentiae to act within the parameters of law.
Per contra, Mr. v. Choudhary, Learned Counsel for the Respondent bank would submit that the Appellant had made a request for acceptance of resignation forthwith and on that bedrock when the authorities of bank acted in promptitude, no fault can be found with it. It is also submitted by him that the Bank can waive the condition and accept the withdrawal and in such act of waiver no fault should be perceived.
To appreciate the rival contentions raised at the Bar, it is appropriate to refer to Rule 62(3) which is relevant for our purpose. The English translation of the rule would read as under:
62(3). An employee of the Bank whether permanent or probationer, may resign from his post by giving notice to the Bank in writing. The period of notice shall be three months, in the case of permanent employee and one month in the case of a probationer. However, an employee in lieu of the period of notice may deposit his salary for the requisite period. Bank shall have a right to deduct such an amount from the dues payable to the employee by the Bank.
On a scrutiny of the said Rule, it is quite vivid that a temporary employee is required to serve a month''s notice. Alternatively, as is postulated, in lieu of notice, he can deposit one month''s salary. In the case at hand, the Appellant had only served the notice but not deposited a month''s salary.
In this context, we may refer with profit to the decision rendered in Moti Ram Vs. Param Dev and another, , wherein the Apex Court while dealing with the issue of resignation, albeit in a different context, expressed the view as under:
As pointed out by this Court, ''resignation'' means the spontaneous relinquishment of one''s own right and in relation to an office, it connotes 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 v. Gopal Chandra Misra]. 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 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.
A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer. Insofar as Government employees are concerned, there are specific provisions in the service rules which require acceptance of the resignation before it becomes effect. In Raj Kumar v. Union of India it has been held:
... But when a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter.
(emphasis supplied)
In Shambhu Murari Sinha Vs. Project and Development India Ltd. and Another, in paragraophs 9 and 10 it has been held as under:
A Constitution Bench of this Court in Union of India v. Gopal Chandra Misra in paragraph 50 held that the general principle is that in the absence of a legal, contractual or constitutional bar, a "prospective" resignation can be withdrawn at any time before it becomes effective, and "it becomes effective when it operates to terminate the employment or the office tenure of the resignor." (SCC p.317) (emphasis ours). As stated above in the present case in VRS, there was no indication regarding effective date of voluntary resignation and there is also no condition that once it was accepted it could not be withdrawn.
In Balram Gupta v. Union of India the principle laid down in Gopal Chandra Misra was summarized as follows: "A complete and effective act of resigning office is one which severs the link of the resignor with his office and terminates his tenure.
In this context, we may refer with profit to para 17 of the said decision. It reads as follows:
It was pointed out in that case that the acceptance of voluntary retirement was not unconditional and before the conditions could be complied with, the employee could withdraw from the Scheme. On those facts, the above observations were made. It is not necessary to consider whether in all cases, actual relief becomes the crucial date. However, the ratio of decision in Balram Gupta case coupled with the observations of the Constitution Bench in Gopal Chandra Misra case could usefully be applied to the present case.
(emphasis supplied).
In this regard we may asetully refer to the decision rendered in Bank of India and Others Vs. O.P. Swaranakar etc., where in the Apex Court in paragraph 113 expressed the view as under:
The submission of the learned Attorney General that as soon as an offer is made by an employee, the same would amount to resignation in praesenti cannot be accepted. The Scheme was in force for a fixed period. A decision by the authority was required to be taken and till a decision was taken, the jural relationship of employer and employee continued and the employees concerned would have been entitled to payment of all salaries and allowances etc. Thus, it cannot be said to be a case where the offer was given in praesenti but the same would be prospective in nature keeping in view of the fact that it was come into force at a later date and that too subject to acceptance thereof by the employer. We, therefore, are of the opinion that the decisions of this Court, as referred to hereinabove, shall apply to the facts of the present case also.
The same view was reiterated in the case of State Bank of Patiala Vs. Romesh Chander Kanoji and Others, . Similar view was also expressed in Hindustan Copper Ltd. And Ann v. Banshi LaL & Ors, 2006 AIR SCW Page 55. In the case of Punjab & Sind Bank v. 2006 (1) SC SLR 28, the three-Judge Bench of the Apex Court reiterated the principles laid down in the case of O.P. Swarnakar (supra).
We are conscious that the latter decisions have been rendered on the bed rock of acceptance of voluntary retirement under a scheme and some times under a funded scheme but as has been held that resignation made by an employee would not amount to resignation in praesenti by shutting the doors when conditions are not satisfied. If the letter contained in R/2-5 and the rules are understood in proper prospective, there can be no shadow of doubt, the letter of resignation did not comply with the condition precedent. Looked from one spectrum it can be said it was not a proper and legally acceptable letter of resignation to be considered in praesenti as it was imperative that a month''s salary was required to be deposited along with it. Looked from another angle, in the absence of deposition of the amount as required under the rules, it would be treated to be an offer for resignation or submission of an application for resignation in future to be given effect to only after expiration of one month. Thus, it is essentially futuristic in nature. The employer could not have considered the same with immediate effect. Needless to emphasise whether the Chairman should have adverted to the same or it should have gone to Staff Sub Committee is immaterial, for the simon pure reason, the same could not have been looked into before expiry of the stipulated period under the rules.
At this juncture, we think it appropriate to deal with the decision which have been relied upon by the learned Single Judge. The learned Single Judge has placed reliance on the decision of Anandilal Ganesh Podar Society and Another Vs. Mrs. V. Chakravarti and Another, . In the aforesaid case Rule 40 of the relevant rules was considered. The said rule lays down a stipulation that three calendar months notice by a permanent employee and one months notice by a non permanent employee is to be given. The said rule is not in absolute terms. Sub rule (1) of Rule 40 provides that the management may allow an employee to leave service earlier on payment of pay in lieu of notice or, a part of the period of the notice, as the case may be. Sub-rule (2) of the said rule further postulates the consequence where the management does not insist upon the payment of pay in lieu of notice. The consequence is a proportionate amount representing pay in lieu of the notice shall be deducted from the grant that is due to the incumbent concerned. In the case at hand Rule 62 of the present Rule, does not lay down such stipulations.
In view of the aforesaid, the decision of the Bombay High Court rendered in Anandilal Ganesh Podar Society and Anr. (supra), does not apply to the present case and is distinguishable.
The learned Single Judge has also placed reliance on the decision rendered in Raj Kumar Vs. Union of India (UOI), . In the aforesaid case the Apex Court while dealing with the resignation of a government servant and acceptance of the same. In that context their Lordships expressed the view that withdrawal of the resignation was not permissible on the ground that before communication of the order he had withdrawn his offer of resignation. In that context their Lordships expressed the opinion that withdrawal of resignation was not permissible even before communication of order as it had already been accepted by the Government. In the said case their Lordships observed that there were no rn framed under Article 309 of the Constitution stipulating when the resignation would become effective and the memorandum issued by the Ministry of Home Affairs on 6.5.58 had no statutory force. In view of the factual matrix therein, we are disposed to think, the said decision has no applicability to the present case. In the case at hand, the notice of resignation was futuristic in nature and could be withdrawn before expiry of one month, more so, when the conception of prior acceptance is not provided under the rules.
In the result, the writ appeal is allowed. The order passed by the learned Single Judge is set aside and as a fall out the Appellant is directed to be reinstated in service. However, in the facts and circumstances of the case, we would like to restrict the back wages to 20 percent. There shall be no order as to costs.