Prabhakar Mahalik vs National Aluminum Company Ltd, Bhubaneswar And Others

Dr. S. Muralidhar, CJ.

The challenge in the present writ appeal is to an order dated 5th November, 2019 passed by the learned Single Judge dismissing the Appellant’s W.P.(C) No.5416 of 2008, whereby the Appellant had prayed that an order issued by National Aluminum Company Limited (NALCO) on 10th August, 2006, accepting the resignation of the Appellant as Charge Man Grade-III of Mines and relieving him from the services of the Company from 10th August, 2006 (Afternoon), should be quashed.

The brief background is that the Appellant submitted a handwritten resignation letter to NALCO on 26th October, 2005. The Appellant contends that he was under great stress as a result of his minor son being falsely implicated in the criminal case under Section 302 read with Section 201 of IPC and being arrested in that case. The Appellant alleges that he was severely beaten by his fellow employees and was therefore, forced to tender the above resignation. Fearing for the safety of himself and his family members, he left the place. After having submitted the above resignation letter, the Appellant applied for leave on 28th August, 2005.

Apparently, the leave application was received by post by the Chief Manager (HRD) of NALCO only on 14th November, 2005 and within five days thereafter i.e. on 19th November, 2005, the following letter was issued to the Appellant.

“To

Shri Prabhakar Mahalik

At: Ambulakuda

Post: Kantipur

Via: Goddevlia

Dist: Balasore (Orissa)

Sub: Grant of leave.

Sir,

Please refer to your letter dated 28.10.2005 requesting for grant of leave in your favour. The said letter was received through post at our end on 14.11. 2005.

In this connection, it is clarified here that as per the rules of the Company once the resignation is tendered by employee; no Leave can be granted to him except Casual Leave. As such, in your case whatever CL is due to you as on date, will only be considered for sanction on receipt of your request for the same in the prescribed proforma.”

Thanking you.

Yours faithfully

(P. Minz)

Chief Manager (HRD)

The above letter, therefore, made it clear to the Appellant that his leave was not being sanctioned and that if he wanted to avail of casual leave, he should apply in the proper format. Apparently, the Appellant did not do so. It is further not in dispute that the Appellant continued to stay away from the work, even till the issuance of the letter dated 10th August, 2006 by NALCO accepting his resignation letter.

The Appellant’s contention that the withdrawal of his resignation having been tendered on 28th December, 2005, much before the acceptance of his resignation by NALCO, his resignation ought not to have been accepted and its withdrawal should have been acted upon.

The learned Single Judge declined to accept the above plea on the ground that the withdrawal itself was conditional. Applying the ratio of the decision of the Supreme Court of India in Dr Prabha Atri. v. State of U.P. (2003) 1 SCC 707, the learned Single Judge found no merit in the writ petition and dismissed it.

The letter dated 28th December 2005 sent by the Appellant to NALCIO withdrawing the resignation reads as under:

“To

The D.G.M. Mines

Panchpatamali Buxite Mines

Damonjodi, Koraput

Sub: Application for withdrawal of Resignation.

Honourable Sir,

With reference to the subject cited above I am to request your honour you may kindly withdraw my resignation letter which I have submit forcefully by the people of this locality during my duty period on 26.10.05.

Therefore I fervently request your highness you may kindly reinstated me to my service and transfer me to another place like Angul (Smelter & Power plant) for smooth performing my duties and for which act of your kindness I shall be highly obliged.”

Thanking you.

Yours faithfully

(Pravakar Mahalik)

P.N. 13274

Charge man Gr.III

Damonjodi.

Dr. J.K. Lenka, learned counsel for the Appellant submits that the above letter was in fact not conditional. The request for transferring the Appellant to some other place was a separate one.

Mr. Tanmay Mishra, learned counsel appearing for NALCO, on the other hand, place reliance on the decision of the Delhi High Court in Northen Coalfields Ltd. v. Satya Pal Arora (2006) 87 DRJ 788 (DB) and of the Supreme Court in Dr. Prabha Atri (supra) to urge that a conditional withdrawal of resignation need not be acted upon by the authority. Reliance was also placed on the decision of this Court in Jagannath Pattnaik v. State of Odisha (2018) II ILR Cuttack 663. Mr. Mishra also placed reliance on the decision in Union of India v. Hitender Kumar Soni, 2014 13 SCC 204, where it was held by the Supreme Court that “it would be impossible to relieve an absconding employee of his duties” and that if the reasoning of the High Court in that case was to be accepted “such employee, even if he has tendered resignation, must be continued in service till he is actually found or till he presents himself to be relieved of his duties”. Such a view according to the Supreme Court “would be impractical and run against larger public interest.” Accordingly, Mr. Mishra submits that since the Appellant abandoned service and never reported for duty after tendering his resignation, his request for withdrawal of the resignation could not be acted upon.

The above submissions have been considered. While it may be correct to contend that the letter dated 28th December, 2005 submitted by the Appellant withdrawing his resignation, could not be considered to be ‘conditional’, the fact remains that after tendering his resignation initially on 26th October, 2005, the Appellant never reported for duty. On his own showing, he left the place with his family and applied for leave. Despite, the leave application not being accepted, he continued to remain absent from work. Although, Dr. Lenka sought to contend that during this period, the Appellant was under threat to the life and safety of himself and his family, his letter withdrawing the resignation only uses the word ‘forcefully’ without adverting to any of the other circumstances. Also, strangely, the Appellant never wrote to NALCO during the entire period between 26th October, 2005 and 10th August, 2006 (when he was relieved from service) explaining why he could not report for duty. Indeed, staying away from work indefinitely, without leave being sanctioned, would really bring the Appellant within the category of an ‘absconding person’. Therefore, the ratio of the decision in Union of India v. Hitender Kumar Soni (supra) would apply. Indeed, it would not be in larger public interest for NALCO to permit the Appellant to withdraw his resignation, when he failed to turn up for duty for months on end after tendering his resignation on 26th October, 2005.

Consequently, the Court finds no reason to accept the plea of the Appellant that the withdrawal of his resignation by the letter dated 28th December, 2005, ought to have been acted upon by NALCO. No grounds have made out for interference. The appeal is dismissed.

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