Sri. Jiban Sankhali Mohapatra vs Orissa University of Agriculture and Technology

P.K. Mohanti, J.—The Petitioner was appointed on temporary basis as an Assistant Chemist in the All India Coordinated Research Project on Jute and Allied Fibres under the Orissa University of Agriculture and Technology and he joined the Post on 8-12-1975. On 28-10-1976 he tendered resignation on the ground that his parents were greatly troubled in managing the landed properties of the family and wanted him to join them immediately for undertaking scientific farming. Petitioner also stated that he had some other personal grounds to quit the job. He prayed for being relieved with effect from 5th November, 1976. (vide Annexure-2). The Vice-Chancellor of the University instead of accepting the resignation, granted extraordinary leave to the Petitioner for one year and this was communicated to him by letter dated 18-11-1976 by the Registrar of the University. The Petitioner intimated that the grant of leave would not serve his purpose and pleaded for immediate relief. But no further intimation was sent to the Petitioner. In his anxiety to become free he even offered to pay one month''s salary in lieu of a month''s notice in case the same was considered necessary for acceptance of the resignation and prayed for being relieved with effect from 28-11-1976 (Annexure 4). He made another application to the Vice-Chancellor saying that he had already made over charge of his office and in case he was not relieved by 5th January, 1977, he would deem himself to have ceased to be an employee of the University for all purposes from that date (vide Annexure 3). He discontinued attending Office with effect from 6-12-1976. A disciplinary proceeding was started against him for unauthorised absence and charge-sheet was served on him on 23-3-1977. Then he filed this application for issue of a writ of mandamus requiring the opposite party to accept the resignation.

The opposite party filed a counter affidavit contending that the University was m acute shortage of trained personnel and it appeared to have become the practice of the job seekers to use the University as a stepping stone for their sustenance and thereafter look for jobs with better prospects elsewhere and give up University service and take to such other employments. The Petitioner had got a job in a Bank for which he had applied directly without permission of the University and that is the real reason why he was keen on being relieved. The insistence for acceptance of the resignation was with the sole purpose to join an alternate job and not for helping his parents in scientific farming as stated in the letter of resignation. It was further contended that the question of acceptance of resignation does not arise since a disciplinary proceeding has been started against him for unauthorised absence from duty as per the charge-sheet in Annexure A.

The sole point for consideration is whether in the facts and circumstances of the case, termination of the Petitioner''s service was automatic with effect from the notified date i. e. 5-1-1977 or required acceptance of the employer to be effective.

The University in question is governed by the Orissa University of Agriculture and Technology Act 17 of 1965 and in terms of Section 3(2) of the Act, it is a body corporate. Indisputably employment under it is not service under the State though, the University being ''State'' within the meaning of Article 12 of the Constitution would be amenable to the extraordinary jurisdiction of the Court.

Admittedly the Petitioner was a temporary servant and qua temporary servant ordinarily with one month''s notice on either side such service could terminate. He tendered his resignation which was nothing but a notice to the employer to terminate his service. No doubt, the resignation has not been accepted; but is there any necessity for acceptance of resignation?

In the return made to the rule nisi, the opp. party has not relied upon any service rule applicable to the Petitioner nor has any special contract been pleaded. The Supreme Court in the Case of S.B. Dutt Vs. University of Delhi, , was considering the case of termination of service of a Professor of the University governed by the Delhi University Act. The Court observed:

There is no doubt that a contract of personal service cannot be specifically enforced. Section 21, Clause (b) of the Specific Relief Act, 1877, and second illustration under this clause given in the section make it so clear that further elaboration of the point is not required.

The Supreme Court upheld the judgment of the High Court by which the Award restoring the Professor to service was vacated as impermissible in law.

In Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi, the Court concluded the discussion by saying:

From the two decisions of this Court, referred to above, the position in law is that no declaration to enforce a contract of personal service will be normally granted, but there are certain well-recognised exceptions to this rule and they are: To grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311. (2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A statutory body when it has acted in breach of a mandatory obligation imposed by the statute.

This view was approved by the Supreme Court in Sirisi Municipality by its President, Sirisi v. Cecelia Kom Francis Tellis 1973 S.C.D 525.

From these authorities, it is clear that the Petitioner''s case would be covered by the general law of master and servant. Personal service of the Petitioner against his volition cannot be enforced. When the Petitioner is only a temporary employee, he can certainly give reasonable notice to the employer (when no specific period of notice is contemplated) and abandon employment. The Petitioner was, therefore, free to terminate the bond of employment by notice and that is what he has done on more than one occasion. He specified a date when his service should be deemed to have come to an end even offered a month''s salary in lieu of notice if the earlier notice was considered inadequate. We are inclined to agree that a month''s notice which in such cases is usual was reasonable.

It is significant to note that while granting extraordinary leave to the Petitioner the Vice-Chancellor of the University gave option to the Petitioner either to resign or to return to his post after expiry of the period of leave. The order of the Vice-Chancellor communicated to the Petitioner in letter No. 20493 dated 18-11-1976 of the Registrar of the University is in the following terms:

In view of the serious personal ground stated by Shri Mohapatra we may grant him leave extraordinary for a year and encourage him to assist his old parents in managing the property and initiating scientific farming. He will have the option to resign or to return to his post after one year depending on the progress made by him.

The Vice-Chancellor could not force the Petitioner to proceed on leave when he was unwilling to continue in service. The order granting extraordinary leave is, therefore, inoperative. But the fact remains that the Petitioner was given the opotion to resign. He cannot now be compelled to join service. Non-acceptance of the resignation appears to be arbitrary. The Petitioner having already abandoned the service, initiation of disciplinary proceeding against him on that ground is equally arbitrary and cannot be used as a defence for defeating his request for relief from employment. In his application in Annexure-3 the Petitioner categorically stated that he had already made over charge and if he was not relieved by 5th January. J 977 he would be deemed to have ceased to be an employee of the University for all purposes from that date. We accordingly hold that the service of the Petitioner automatically came to an end with effect from 5-1-1977 and a formal order of acceptance of the resignation was not required.

In the result, the writ petition is allowed. We make no order for costs as it appears that initially the Vice-Chancellor wanted to protect the interest of the Petitioner by giving him an opportunity to experiment in farming and if it was satisfactory then to resign. A writ of mandamus be issued directing the opposite party to treat the employment of the Petitioner as terminated with effect from 5-1-1977. The disciplinary proceeding started against the Petitioner is quashed.

R.N. Misra, J.

I agree

Petition allowed.