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Judgment
Paritosh k. Mukherjee, J.—This is an application for Review and/or reconsideration of my judgment dated July 5, 1990.
By the said judgment dated July 5, 1990, this Court after hearing the submissions of both sides and upon consideration of the facts, was not inclined to interfere with the impugned order whereby the Respondents refused to consider the representation of the writ Petitioner in the matter of withdrawal of his resignation from the post of Deputy General Manager (Personnel) of N.T.C. (W.B. A.B.O.)
The uncontroverted facts as appear from the writ petition are as follows:
By the order dated August 10/11, 1988, the Petitioner''s resignation from the post of Deputy General Manager (Personnel) was accepted with immediate effect. The said post of Deputy General Manager (Personnel) was designated as Deputy General Manager (Legal and Administration.
In the letter of resignation the Petitioner informed that the resignation would be effective after expiry of one month.
The writ Petitioner had resigned from the post of Deputy General Manager by letter dated June 15, 1988, and requested that the said resignation may be accepted with effect from July 15, 1988, and the Petitioner may be released at an early date.
Thereafter, the Petitioner by his letter dated August 1, 1988, has changed his decision and prayed for withdrawal of the resignation before the same was accepted. By the Office order dated August 10/11, 1988, the General Manager (Personnel) has informed the resignation of the writ Petitioner was accepted, with immediate effect and the writ Petitioner was advised to hand over his charges to Sri B.L. Giri, F.A. and A.A.O.
It further appears that the said office order was issued with the approval of the Competent Authority.
Ultimately, the writ Petitioner by his representation dated October 14, 1988, addressed to the Chairman-cum-Managing Director, N.T.C. (W.B. A.B.Q,) Ltd. submitted that as the Petitioner wanted to withdraw the resignation during the notice period, the Petitioner may be allowed to withdraw the resignation before the expiry of the notice period which, however, was not allowed and rejected by the impugned communication dated May 11, 1989.
The said communication and/or decision has been challenged in the earlier writ petition.
my earlier judgment dated July 5, 1990, I have not only referred the case of Union of India v. Gopal Chandra Mishra AIR 1978 S.C. 894 but wanted to distinguish the fact of that case in the facts of the present case before me and also another judgment of the Karnataka High Court in the case of P. Nagaraju v. State of Karnataka and Ors. 1985 (2) L.L.J. 96 wherein the said Bench of Karnataka High Court had followed the case of Gopal Mishra (Supra).
I have also noted the submission of Mr. Amulya Kumar Mukherjee, learned Advocate appearing for the Petitioner, and I have also rioted the decision of the Supreme Court in the case of State of Punjab Vs. Amar Singh Harika, wherein, the Supreme Court observed as follows:
The mere passing of an order of dismissal is not effective unless it is published and communicated to the officer concerned. An order of dismissal passed by an appropriate authority not kept on its file without communicating it to the officer concerned or otherwise publishing it does not take effect as from the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published.
Held that the order of dismissal passed against the officer on the 3rd June 1949 could not be said to have taken effect until he came to know about it on the 28th May, 1951.
This Court also noted the submission of Dr. Tapas Banerjee appearing for N.T.C. and also taken into consideration of the statements made in para. 6 of the petition which is as follows:
The allegations made in paragraph 9 of the said application are denied and disputed. The verbal intimation as sought to be projected is totally false and baseless. The statement to the effect that the Petitioner could not accept employment from July 16, 1988, is also false and false to the knowledge of the Petitioner. I called upon the Petitioner to prove that the withdrawal letter was received on October 18, 1988.
The letter of resignation dated June 15, 1988 received on June 20, 1988, was accepted by the Chairman-cum-Managing Director, N.T.C. (W.A.A.B.O) Ltd. on June 20, 1988.
It is settled position of law that the resignation shall be deemed to be from the date the same is accepted as per record of the resignation of the Petitioner was accepted from June 20, 1988, and only procedural aspect for formalizing the release was done and the same was communicated by a letter dated August 10/11, 1988.
At this stage one broad fact has to be stated which was disclosed at the hearing of the application for Review that the Petitioner had filed an application on March 2, 1990, for recording subsequent events, which was not placed and which was not argued and, as such, this Court had no occasion to deal with the said application in the original judgment for which the present application for review has been filed on behalf of the Petitioner.
In the supplementary affidavit, a letter dated February 16, 1990, issued by R.K. Basu, Secretary of the NTC/WBABO to the writ Petitioner has been annexed, wherefrom it appears that the writ Petitioner was requested to contact: with Sri R.K. Basu, Secretary, in an Enquiry Proceeding of Sri S.K. Basu Roy Choudhury immediately.
K.K. Maitra learned Advocate appearing on behalf of the Petitioner in support of the application for Review submitted that had it been a fact that the Petitioner''s resignation has been accepted with effect from June 20, 1988, there would have been no occasion on the part of the Respondent authorities to request the writ Petitioner to contact the Secretary Mr. R.K. Basu for the purpose of discussion as an officer on behalf of the Company.
Mr. Maitra, learned Advocate, submits that at no point of time the resignation was accepted as suggested in the bald statement made in para. 6 of the affidavit, rather the deponent in the said paragraph had deliberately stated incorrect statement only to mislead the Court and accordingly this Court arrived at an erroneous decision that resignation was accepted with effect from June 20, 1988, which was communicated by the letter dated August 10/11, 1988, as per Annex. ''H'' to the writ petition.
Mr. Maitra, learned Advocate, again appearing for the applicant in support of the application for review submitted that the scope of review, as provided under Order 47 Rule 1, Code of Civil Procedure, is as follows:
If there is some mistake or error apparent on the face of record or any other sufficient reason, the application for review is maintainable.
In support of his contention he has placed reliance in the case of Moran Mar. Basselios Gatholicos v. Most Rev. Mar Poulose Athanastus AIR 1954 S.C. 526 wherein in interpreting the provisions of Order 47 Rule 1 of the CPC relating to any other sufficient reasons construed that ''any other sufficient reason'' must mean a reason sufficient on grounds, at least analogous to those specified in the rule.
In concluding portion of para. 34 of the judgment the Supreme Court observed as follows:
The majority judgments, therefore, are defective on the fact of them in that they did not effectively deal with and determine an important issue in the case on which depends the title of the Plaintiffs and the maintainability of the suit. This, in our opinion, is certainly an error apparent on the face of the record.
Mr. Moitra, learned Advocate, further submitted that in the instant case the Petitioner who was in the N.T.C. (W.B.A.B.O.) Ltd. since 1982 as Personnel Manager and, thereafter, promoted to the rank of the Deputy General Manager (Legal and Administration), he had to resign under certain circumstances as mentioned in para Section 6, 7 and 8 of the writ petition by forwarding the letter dated June 15, 1988. The said circumstances inter alia were that even after promotion no improvement as to the Petitioner''s position has been made by the Respondent Corporation: Even no chair was allotted and out of disgust the Petitioner had to tender his resignation on June 15, 1988, and in para. 9 of the writ petition the Petitioner has stated that the officials of the Vigilance Department suggested that the Petitioner should not be released. The broad fact remains that purported acceptance of the resignation tendered by the Petitioner as far back as on June 15, 1988, as claimed by Respondents was communicated for the first time by the letter dated August 10/11, 1988, and, cannot be believed as such in the application for review the following points were raised for adjudication.
(i) Purported acceptance of resignation with effect from June 15, 1988, before the expiry of the notice period without any earlier communication to that effect in fact has no legal effect has to be considered in view of the observation, of Amar Singh''s case (Supra).
(ii) That even if it is the Respondents'' case as made out in the affidavit-in-opposition that resignation had been accepted on June 20, 1988, the same could not be treated as valid acceptance as the Petitioner had given notice that the same be accepted after expiry of July 15, 1988, Before that, if any acceptance is made that is not covered by the contract of employment and the Petitioner has every right to challenge and/or alter his decision during the notice period.
(iii) Had it been the fact that the Petitioner''s resignation was accepted with effect from June 20, 1988, there would have been no occasion on the part of the Respondents to request the writ Petitioner to meet the Secretary of the Company, as disclosed in the supplementary affidavit affirmed on March 2, 1990, and served upon the Respondents on March 6, 1990, before the hearing of the writ petition and the judgment was delivered.
According to Mr. Moitra, learned Advocate, as this Court had no occasion to deal with the aforesaid facts in the earlier judgment, a strong case for review and/or rectification of such error "which is apparent on the fact of record" had been made out and as such, the application for review should be allowed.
Before concluding Mr. Moitra, learned Advocate, referred to a recent judgment of the Supreme Court in the case of Punjab National Bank Vs. P.K. Mittal, wherein the Supreme Court in interpreting resignation of a permanent officer of the Bank for sending a letter to the Bank, considered the effect of its acceptance with the following observations:
Where a permanent officer in the Punjab National Bank sent a communication to the Bank by which he purported to resign from a future date adding that the date of receipt of his letter should be date of commencement of notice period. However, the Bank informed him by a letter that his resignation was accepted with ''immediate effect'', by waiving the condition of notice. It was held that such letter would be without jurisdiction.
The resignation of the employee could have become effective only on the expiry of three months from date thereof or from the date on which he wished to resign.
The facts stated in the said judgment as submitted by Mr. Moitra through not identical but the Petitioner is entitled to the benefit of the observation of their Lordships of the Supreme Court in the case of the Punjab National Bank v. P.K. Mittal (Supra).
Mr. Partha Sarathi Sengupta, learned Advocate, led by Dr. Tapas Banerjee appearing on behalf of Respondents to oppose the application for review submitted that the ground mentioned in para. 7 of the application for review cannot and should not be treated as a ground, for review.
Mr. Sengupta after citing relevant portion from my judgment submitted that this Court having considered the contentious and the rival contention of the parties was of the view.that the judgment referred to in Gopal Chandra Mishra''s case (Supra) would not be availed of by the writ Petitioner, as in the said case, before acceptance of resignation. Satish Chandra J. had expressed to withdraw the same which is not the facts of the present case.
According to Mr. Sengupta, the acceptance of resignation by letter dated June 20, 1988, haying been confirmed by the earlier judgment of this Court, the said finding may not be re-opened by entertaining the application for review.
Mr. Sengupta further submitted that the case of Balram Gupta Vs. Union of India (UOI) and Anr, has no manner of application in the facts and circumstances of the present case before me, as according to him, in the said case by letter dated December 24, 1989, the concerned officer sought for voluntary retirement with effect from March 31, 1981. The service rules require acceptance of notice of voluntary retirement by order dated January 1, 1981. By an order dated January 20, 1981, the officer concerned was allowed to retire voluntarily with effect from the afternoon of March 31, 1981, but he withdrew his resignation by letter dated January 31, 1981.
In the said case it was, inter alia, held that the voluntary retirement and resignation stand ''at par'', as an employee is entitled to draw within the time before the effective date of retirement and the principle laid down in the case of Gopal Chandra Mishra (Supra) which is as follows:
The general principle regarding resignation 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 on the office-tenure of the designer. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a Government servant/or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender or resignation becomes effective and his service or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of High Court who is a constitutional functionary and under Proviso (a) to Article 217 has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in present, the resignation terminates his office-tenure forthwith and cannot, therefore, be withdrawn or revoked thereafter. But if he by such writing chooses to resign from a future date, the act of resigning office is not complete, because it does terminate his tenure before such date and the Judge can at any time before, arrival of that prospective date on which it was intended to be effective, withdrew it, because the Constitution does not bar such withdrawal.
I have considered the rival contentions and submissions of both parties and having considered the submissions made by both the parties, I am of the view that a strong case has been made out for review and rectification of the mistake as committed by this Court by delivery of the earlier judgment.
The mistake and/or error are as follows:
(a) This Court committed the error that by not consideration of the relevant letter dated February 16, 1990, being Annex ''I'' to the supplementary affidavit, this Court had committed palpable mistake which is error apparent on the face of the record that the purported acceptance of resignation was never acted upon.
(b) Further, in my view, this Court has committed error by accepting the bald allegations made in para. 6 of the opposition by the deponent and this Court was swept away by the submission that the letter of resignation dated June 15, 1988, had been accepted with effect from June 20, 1988, as claimed by the subsequent letter dated August, 10/11 of 1988 which would be evident from the conduct of the parties.
(c) Further, in my view, this Court not having taken into relevant consideration that had it been the fact, the resignation was accepted even before the notice period with effect from June 20, 1988, such acceptance should not have been taken as a valid acceptance in view of the Balaram Gupta''s case (Supra) referred to hereinabove.
(d) In the result, this Court having committed mistake in arriving at the necessary conclusion that the case of Gopal Chandra Mishra (Supra) does not apply with full force in the facts of the present case. In my view, Gopal Chandra Mishra''s case is actually applicable in the facts of the present case in view of the aforesaid pleadings quoted above in this judgment.
In the result, the application for review should succeed and necessary orders should be passed upon the Respondents directing them to allow the writ Petitioner to withdraw his resignation letter dated June 15, 1988, and allow him to resume his duties as before the issuing of the letter dated August 10/11, 1988, which has been impugned in the original writ petition.
The application for review is allowed.
There will be no order as to costs.
Having regard to the facts of the present case, I am of the view that the Petitioner will be entitled to consequential benefits including the salary and emoluments, as if the resignation has not been accepted by the impugned letter dated August 10/ 11, 1988.
Prayer for stay of the operation of the judgment passed in this review application is considered and rejected.
Let a xerox copy of this order be given to the learned Advocate for the Petitioner on observing necessary formalities for communication to the authority concerned for compliance.