Paras Nath Mishra vs Director General N.C.C.& Ors.

S.H.A. Raza, J.—The petitioner, who is a Senior Lecturer in the Ancient History Culture and Archaeology Department of the Ishwar Saran Degree College, which is affiliated to the University of Allahabad, was commissioned in the N.C.C. on 20th September, 1986 and became a part time officer (A.N.O.) after the installation of N.C.C. unit in the College. According to the petitioner, he performed his N.C.C. duties to the entire satisfaction of his seniors and no one ever had any complaint or grudge against him. His work in the Company, according to the petitioner, was appreciated by the Commanding Officer of the Battalian. Thereafter, a dispute between the petitioner and Lt. Col. Sajan Singh arose, who, according to the petitioner, misappropriated a sum of Rs. 6204 being the refreshment amount of the N.C.C. during the year 199091. The petitioner alleged that the washing allowance for the year 199091 was also not paid. The honorarium of the petitioner from the period commencing March, 1992 to August, 1992 amounting to Rs. 1650 was also not paid and the same is remained unpaid till now. Lt. Col. Sajan Singh not only refused to pay the amount to the petitioner, but, according to the petitioner, he pressed the petitioner to submit false claim, which was not acceptable to the petitioner and petitioner refused to became party to it.

In the aforesaid circumstances, according to the petitioner, it became impossible for him to continue as part time officer of N.C.C. unit in the Ishwar Sharan Degree College, Allahabad, the petitioner, therefore, tendered his "conditional resignation'' from the post of Associate N.C.C. Officer on 191992.

As the said Commanding Officer was changed, the petitioner on the alleged, insistence of N.C.C. cadets and his friends, by means of the communication dated 431994, 1181994, 1791994, 2791994 and 28111994 requested for the withdrawal of the said resignation letter, but his request to withdraw the resignation was turned down on 371995 by the Lt. Col. Virendra Bhatia. In the said order it was mentioned that the discharge/relinquishment of NCC Commission in respect of NCC 17238 Lt. (Dr.) P.N. Mishra, has been approved by the higher authorities w.e.f. 10th September, 1992 under NCC Act and Rule No. 28(2)(e) vide D.O. NCC New Delhi letter No. 0415/No. 2/DONCC/MS (D) dated 8th June, 1995. The period from 10th September, 1992 to 8th June, 1995 will not be counted towards seniority, promotion or any other benefits in N.C.C.

The petitioner filed a review petition against the said order, but that too has not been considered. Thereafter, the petitioner knocked the door of this Court.

The contention of the petitioner is that the resignation letter dated 191992 was conditional in nature and the petitioner before its acceptance had a right to withdraw the same. The resignation becomes final, when it has been accepted and the officer relieved from his duty. The respondent No. 1 did not intimate to the petitioner about the action taken on his letter, which shows that it was not accepted prior to 861995, hence the respondents committed a manifest error of law in no t considering the request of the petitioner to withdraw the said resignation letter, before its acceptance.

Before dealing with the contention of the petitioner it would be worthwhile to consider the tenor of the resignation letter itself, which is reproduced below:

"I hereby submit by resignation from the post of Associate NCC Officer with effect from 10th September, 1992 due to the following reasons:

(a) Lt. Col. Sajan Singh, CO. 17 UPBN NCC Allahabad has misappropriated to the tune of Rs. 6204. In spite of best efforts, he however, grabbed the amount and did not pay refreshment and washing allowance to the cadets. Thus, he has damaged the image of NCC in the eyes of students.

(b) The present CO. Lt. Col. Sajan Singh has written so many letters against me and against the smooth functioning of NCC in the college on false grounds to save his own skin.

(c) The Present C.O. presses the Associate NCC Officer to submit false claim which is not acceptable to me and I do not want to become a party to this corruption. Thus, I find NCC full of corruption, which does not suit my temperament being a Lecturer in a Degree College associated with Allahabad University.

Under the circumstances, I request you to kindly accept my resignation from the post of Association NCC Officer with effect from 10th September, 1992."

A perusal of the said resignation letter dated 191992 indicates that the petitioner wanted the acceptance of his resignation from the post of Associate NCC Officer with effect from 10th September, 1992.

Now the question which remains to be decided is as to whether the petitioner could withdraw the said resignation letter prior to its acceptance by the authority concerned.

In the counteraffidavit the allegation made by the petitioner regarding misappropriation of fund by Col. Sajan Singh was not only denied, but it was averred that an investigation was carried out and the allegation was found to be incorrect. Allegation against Lt. Col. Sajan Singh was found to be false and baseless.

In Raj Kumar v. Union of India, AIR 1969 SC 180, the appellant was a member of Indian Administrative Services, asked the Government to relieve him from service. The Government accepted it. But before communication of the order accepting his resignation reached him, he withdrew his offer of resignation. In the light of the aforesaid circumstances Hon''ble Supreme Court observed:

"That a member of Indian Administrative Service (1) had no locus penitential to so withdraw his offer of resignation after it was accepted ; (2) that the principle that an order terminating employment is not effective until it is intimated to the employee could not apply to the facts of the case ; (3) that there is no rule framed under Article 309 of the Constitution about when the resignation becomes effective; (4) that clauses (c) and (d) contained in the Government of India, Ministry of Home Affairs Memo dated 651958 have no statutory force; and (5) that it being no order of dismissal, Article 311 of the Constitution was not attracted."

A Constitution Bench of Hon''ble Supreme Court consisting of five Judges in Union of India v. Gopal Chandra Mishra, AIR 1978 SC 694, has laid down the following principles regarding the resignation:

"The general principle regarding resignation is that in the absence of a legal, contractual of 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 officetenure of the resign or. 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 the service/or office, by his own unilateral Act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or officetenure terminate, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under Proviso (a) to Article 217 (1) 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 band addressed to the President, he resigns in praesenti, the resignation terminates his officetenure 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 not terminate his tenure before such date and the Judge cannot any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal."

In P. Kasilingam v. PS. G. College of Technology, AIR 1981 SC 789, Hon''ble Supreme Court observed:

"(Obiter) : It may be conceded that it is open to a servant to make his resignation operative from a future date and to withdraw such resignation before its acceptance. The principle that the services of a Government servant normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, unless there is any law or statutory rule governing the conditions of service to the contrary can apply to the case of any other employee."

In Moti Ram v. Param Dev&Anr., AIR 1993 SC 1662, Hon''ble Supreme Court observed:

"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 itself, would not be sufficient to result in relinquishment of the office and 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."

It was further observed:

"The person holding the office of the Chairman of the Board may resign both from the office of member of the Board. In such a case, his resignation from the office of Chairman of the Board would take effect from the date of communication to the Head of the Department in the Government of Himachal Pradesh if it is in praesenti or from the date indicated therein if it is prospective to be operative from a future date. He would, however, continue to be a member of the Board till his resignation from the office of member is notified in the Official Gazette by iiie Government of Himachal Pradesh under Section 7 of the Act. In the instant case the Chairman of the Board by his letter resigned from the office of member as well as the office of Chairman of the Board and wanted the resignation to be accepted with effect from same day. By notification it was notified that his resignation as Chairman of the Board has been accepted by the Governor of Himachal Pradesh with immediate effect. Thus, the said notification proceeds under a misconception of the correct legal position. The resignation of the incumbent as Chairman of the Board was not required to be accepted by the Government of Himachal Pradesh. It became effective on the date when the letter of resignation was received by the Financial CommissionercumSecretary (Industries) to the Government of Himachal Pradesh who was the Head of the Department dealing with the Board and to whom it was addressed. Since there is no requirement in the Act that the resignation of the Chairman of the Board should be notified in the Official Gazette as in the case of member of the Board, it cannot be said that the resignation of incumbent did not take effect till it was notified in the official Gazette."

In the instant case the petitioner on 191992 addressed his resignation letter to the Director General NCC, New Delhi. The said resignation letter was to be operative from a prospective date, Le. 10th September, 1992. The petitioner made no effort to withdraw the said resignation letter before 10th September, 1992. Thus, the letter of resignation became operative on 10th September, 1992 if it would have reached to the Director General, NCC by that time. It was not the case of the petitioner that the letter of resignation did not reach to the Director General, NCC, New Delhi before 431994 when he sent a communication for the withdrawal of the resignation.

The contention that prior to 861995 when the letter of resignation was accepted, the petitioner had submitted an application for the withdrawal of the said resignation letter, hence it could not have been accepted, appears to be misconceived, because the authority to whom the Act of relinquishment was communicated was not required to take any action and the relinquishment takes effect from the date of such communication as the resignation in the instant case was prospective in nature to be operative from a future date, hence it would take effect from the date indicated therein and not from the date of communication. If for the argument sake the contention of the petitioner is accepted that in the instant case the relinquishment was of a bilateral character, the communication of the intention to relinquish would be sufficient to result in relinquishment of the office, has no force because after the petitioner sent his resignation, he ceased to work.

On 1211993 Shri K.R. Mohan, Lt. Col. Offg. Commanding Officer 17 UPBN. NCC, Allahabad addressed a letter to the Principal, Ishwar Saran Degree College, Allahabad, which is reproduced as under:

"Reference your letter No. ISD/155/9293 dated 22121992 addressed to NCC Group Headquarters, Allahabad received vide their letter No. 111/A/PNM/17 Bn/HQ dated 28th December, 1992. Since NCC17439 Lt. P.N. Mishra Coy Comdr. of 5/17 Coy NCC of your college has resigned from NCC service, Shri S.P. Pandey of your college is hereby appointed as care taker w.e.f. 12th Jan., 1993 provisionally until the approval from the higher authorities come. Please confirm that the handing/taking over of all the stores held on charge of the Coy may be completed by 20th January, 1993."

On 1811993 the petitioner in his own writing handed over the charge to Shri S.P. Pandey and intimated that fact to the Principal of Ishwar Sharan Degree College, Allahabad.

We have desisted ourselves from dealing with the allegations, which were levelled against the petitioner, for the simple reason that it was not very material or relevant for the purpose of deciding this case. It might be possible that due to the said allegations, which were levelled against the petitioner and were published in the newspapers, the petitioner might have tendered his resignation, but while doing so, he levelled certain charges against Lt. Col. Sajan Singh, which were proved to be false after investigation. The petitioner was holding an honorary post and was paid honorarium and it would have been appropriate that after tendering his resignation he should have kept quiet and should have not raked up that issue before this Court.

It was not at all necessary for the respondents to have intimated to him about the acceptance of his resignation. The resignation became operative from the date which was indicated in the letter.

In view of what has been indicated hereinabove, we are n9t inclined to interfere. The writ petition is devoid of merit, it is accordingly dismissed.

However, parties are directed to bear their own costs. Petition dismissed.