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Judgment
Satish K. Agnihotri, J.—By this petition, the petitioner seeks quashing of the order dated 17.9.1998 (Annexure-P/26) by which the voluntary retirement application dated 19.8.1998 (Annexure-P/25) was accepted by the respondent authorities w.e.f. 19.11.1998 (A.N.), the petitioner further seeks a direction to restore the position of the petitioner, as it was prior to 16.8.1998 and also seeks a direction to the respondent authorities to make payment of back wages, arrears of special salary etc. The indisputable facts, in nutshell, as projected by the petitioner, are that initially the petitioner was appointed on the post of Clerk/Steno by order dated 29.3.1989 (Annexure-P/1) in the pay scale of Rs. 870-20-910-25-1010-30-1220-40-1420/- and special salary of Rs. 40/-. The petitioner joined on 1.4.1989 (Annexure-P/2). By order dated 5.5.1989 (Annexure-P/3), the petitioner was directed to work in Copying Section for the period from 29.5.1989 to 23.6.1989. According to the petitioner, the special salary of Rs. 40/- was not paid to the petitioner in the salary for the period from 1.4.1989 to 30.4.1989 for which the petitioner made a representation on 12.5.1989 (Annexure-P/4). The petitioner also made a representation on 12.10.1989 and sent the same by registered post (Annexures P-5, P-6 & P-7). By order dated 15.1.1991 (Annexure-P/8) the petitioner was granted seven days leave on without pay basis. The similar order was also passed on 26.6.1991 (Annexure-P/9) and granted 28 days leave on without pay basis. Against the said orders the petitioner made a representation on 4.7.1991 (Annexure-P/10).
According to the petitioner, the petitioner made an application for his transfer on the ground of his personal difficulties which was filed by the respondent authorities by order dated 25.9.1991 (Annexure-P/11) for which the petitioner made a representation on 1.10.1991 (Annexure-P/12), but the same does not yield any result. Again, the petitioner was granted 17 days leave without pay basis, by order dated 10.1.1992 (Annexure-P/13) for which also the petitioner made representations on 21.1.1992, 16.3.1992 as is evident from (Annexures-P/14, P/15 & P/16). Subsequently, by order dated 14.2.1994 (Annexure-P/17) the services of the petitioner was attached to Ambikapur. Thereafter, the petitioner made a representation on 23.9.1994 (Annexure-P/18) for grant of payment of Steno. Again the petitioner made an application on 6.10.1995 (Annexure-P/19) for his transfer on the ground of personal problems.
The respondent authorities compelled the petitioner to work even during the holidays also, which is evident from the memo dated 19.10.1995 (Annexure-P/20). The petitioner was also directed to work during the period of sanctioned leave, as is evident from the memo dated 18.12.1995 (Annexure-P/21). The leave application of the petitioner for grant of medical leave and for grant of G.P.F. advance has also been filed, as is evident from the order dated 67.1998 (Annexure-P/22). The petitioner made a representation before respondent No. 2 on 25.10.1990 (Annexure-P/23) in respect of recommended leave by the respondent No. 3 in relation to his application dated 8.10.1990 and the office order dated 16.10.1990, which was not at all considered.
By order dated 22.4.1991 (Annexure-P/24) the salary of the petitioner was enhanced, but the special salary of Rs. 40/- was excluded. The petitioner fell sick since 18.6.1998 for a long period and in this regard, the petitioner submitted medical certificates {Annexure-P/24, P/24 (a) & P/24 (b)}, but there is no proper response from the respondent authorities.
According to the petitioner, when no proper response and cooperation was received from the respondent authorities the petitioner made an application on 19.8.1998 (Annexure-P/25) seeking voluntary retirement from service. The said application was accepted by the impugned order dated 17.9.1998 (Annexure-P/26) and the petitioner was permitted to take voluntary retirement from the services with effect from 19.11.1998 (A.N.). On knowing about the impugned order dated 17.9.1998, the petitioner immediately moved an application on 20.10.1998 {Annexure-P/26 (a)}, by post {Annexure-P/26 (b)} and requested the respondent authorities to cancel the order dated 17.9.1998 and permit him to render his service. Thereafter, also the petitioner made representations before Hon''ble the Chief Justice of India, Hon''ble the Chief Justice, High Court of Madhya Pradesh, (Annexures-P/27 & P/28), respectively. Hence this petition.
Shri Nair, learned counsel appearing for the petitioner, would submit that the petitioner submitted the notice of his intention to resign from service in a distress condition, as his medical leave and G.P.F. advance applied for his medical treatment was not sanctioned. The petitioner has a right to withdraw his resignation, which is prospective before the resignation became effective. The petitioner requested the District Judge to cancel the impugned order and permit him to resume his duties almost one month before the resignation became effective. The District Judge did not permit the petitioner to resume his duties. The action of the District Judge was contrary to the law laid down by the Supreme Court in a catena of decisions. Shri Nair would further submit that so long as master and servant relationship subsists, the employee has a right to withdraw his letter for resignation. The employee can exercise his right even one day before the master and servant relationship ceases. In the case on hand, the relationship of master and servant would cease only on 19.11.1998 and the employee had exercised his right much before that date.
Shri Nair would next submit that the petitioner has not been paid his terminal benefits like gratuity, G.P.F., etc., even after such a long period. The petitioner was willing and ready to work as per the letter dated 20.10.1998 and the respondent authorities had refused to permit the petitioner to work and earn his livelihood. The principle of "no work no pay" will not apply to such cases where the employer refuses to take work from the employee even though he was willing and ready. The petitioner is, therefore, entitled to the pay and allowances for the entire period during which his employer refused to take work from him, including annual increments and pay revision benefits with arrears.
On the other hand, Shri Agrawal, learned Advocate General appearing for the respondents, would submit that a bare perusal of the appointment order would show that for resignation one month''s notice is necessary or a month''s salary in lieu of one month''s notice. The application for resignation dated 19.8.1998 submitted by the petitioner, was accepted by the competent authority by order dated 17.9.1998 w.e.f. 19.11.1998 (A.N.).
Shri Agrawal would further submit that when a public servant has submitted a letter of resignation from services, the determination of his employment, his service normally stand terminated from the date on which letter of resignation is accepted by the appropriate authority and in absence of any law or statutory rule governing the condition of the 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.
Shri Agrawal would next submit that the petitioner had never seriously even withdrawn his resignation and he simply asked for setting aside the order. Since the petitioner had not withdrawn his resignation, there is no question of withdrawal of resignation and/or setting aside the order. Shri Agrawal would lastly submit that the petitioner''s employment was terminated on his resignation having been accepted by the respondent No. 2 on 17.9.1998. The petitioner''s resignation becomes complete and effective from the date 17.9.1998 when it was accepted by the competent authority and the petitioner was not entitled to withdraw his resignation after its acceptance by the competent authority. The petitioner in his letter/memo dated 20.10.1998 has simply asked for setting aside the order dated 17.9.1998, which is manifest from a bare perusal of the application dated 20.10.1998 and there is no prayer for withdrawal of resignation, in fact, also. Thus from any angle, the petitioner has no case for interference by this Court under Article 226/227 of the Constitution of India and the writ petition is liable to be dismissed.
I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.
The petitioner was appointed on the post of Clerk/Steno on temporary basis, wherein the condition of appointment was that his services may be terminated on one month''s notice or one month''s pay in lieu of notice. Thereafter, on regularization the condition as prescribed during probation when he was appointed on temporary, basis was not applicable. Thus, the contention of the learned counsel for the petitioner that the condition of appointment was one month''s notice or one month''s salary in lieu of notice does not merit acceptance. The contention of the learned Advocate General that the application of the petitioner for resignation was rightly accepted on completion of one month i.e. on 17.9.1998 and the same became final is not acceptable in the facts of the case.
Indisputably, the petitioner made an application on 19.8.1998, wherein the petitioner has stated the grounds for making the application without specifying as to whether his letter be accepted forthwith or from any prospective date. On 1.9.1998, the application dated 19.8.1998 submitted by the petitioner was accepted with prospective date i.e. 19.11.1998 (A.N.).
Subsequently, on 20.10.1998, the petitioner has sent a communication to the respondent No. 2 stating therein that he had made an application on 19.8.1998 in view of his conditions, which was accepted on 17.9.1998, the same be cancelled and the petitioner be permitted to continue in service after his recovery from the illness. However, the petitioner has nowhere stated that the petitioner wanted to withdraw the earlier application dated 19.8.1998 whereunder the petitioner has requested for acceptance of his resignation. In that condition, the order dated 17.9.1998 became effective, as no prospective date was shown in the application dated 19.8.1998 seeking from service.
Relevant portion of the application dated 19.8.1998 (Annexure-P/25) reads as under:
The application dated 20.10.1998 {Annexure P/26 (a)} reads as under:
So far as accepting the application dated 19.8.1998 by order dated 17.9.1998 is concerned, the respondent authorities have granted three months time from date of making the application to avoid the payment of three months salary. It was pointed out, at the bar, that for resignation, the pre-condition was either three months salary or three months notice.
On perusal of the documents, the Court did not find any mention of withdrawal of the earlier application dated 19.8.1998 whereby the petitioner had sought resignation from the service though it was made effective w.e.f. 19.11.1998 (A.N.). However, for want of request for withdrawal of resignation letter, it cannot be held that the petitioner wanted to withdraw the resignation letter before the same became effective.
In the case on hand, since no specific date of resignation was pointed out by the petitioner, the same becomes effective immediately. The employer has accepted the resignation from the prospective date, however, no application was made seeking withdrawal of the resignation letter.
It is a trite law that if the employee chooses to resign from a future date, the act of resigning office is not complete till the prospective date. (See: Raj Kumar Vs. Union of India (UOI), , Union of India (UOI) and Others Vs. Gopal Chandra Misra and Others, , P. Kasilingam Vs. P.S.G. College of Technology, , North Zone Cultural center and Another Vs. Vedpathi Dinesh Kumar, , Chand Mal Chayal Vs. State of Rajasthan, and The Secretary, Technical Education, U.P. and Others Vs. Lalit Mohan Upadhyay and Another,
In the case on hand, the petitioner had not specified any prospective date for resignation. Secondly, the petitioner had not withdrawn his letter dated 19.8.1998 seeking his resignation from the service. Thus, it cannot be held that the letter dated 19.8.1998 was withdrawn before the prospective date of resignation on 19.11.1998.
Reliance of the petitioner upon the decision of the Supreme Court in Power Finance Corporation Ltd. Vs. Pramod Kumar Bhatia, is of no assistance to the facts of the present case, as the petitioner had not withdrawn his application dated 19.8.1998 submitted for resignation from service. By subsequent application dated 20.10.1998 the petitioner asked for cancellation of the order dated 17.9.1998, not on the ground that he wanted to withdraw the resignation letter dated 19.8.1998. As a sequel, the writ petition, sans substratum, is liable to be and is hereby dismissed, leaving the parties to bear their own costs.