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Judgment
Goda Raghuram, J.—By order bearing Reference No. HO:PER:PNA:5086:2001, dated 12.12.2001, pursuant to a departmental enquiry and in purported exercise of the power under Rule 21(1), 26(3) read with Rule 23(e) of the General Insurance (Conduct, Discipline and Appeal) Rules, 1975, the 2nd respondent disciplinary authority imposed on the petitioner a major penalty of reduction to a lower stage by three steps in the time scale applicable to the post of Assistant Manager while informing him of a right of appeal under Rule 31 of the Rules.
The petitioner assails the above order on the ground that it is illegal, incompetent and without jurisdiction and also seeks a declaration that there is no subsisting relationship of employer and employee between the petitioner and the respondents and also seeks the relief of a direction to the respondents to release the terminal benefits to him as he is entitled to.
On facts, the petitioner was initially entered the service in the United India Insurance Company Limited in the year 1984 as Assistant Administration Officer. After having his promotions as Administrative Manager and Assistant Manager he was promoted in September, 1997 as Divisional Manager. By letter dated 25.8.1999, the petitioner communicated the intent to resign from service with effect from 24.9.1999 with a request that the notice period be counted from the date of the letter i.e. 25.8.1999. In this letter, the petitioner further requested for waiver of the balance notice period of two months on the ground that he has sufficient earned leave to his credit.
In response thereto, the employer through the Regional Manager replied by the letter dated 23.9.1999 (received by the petitioner on 30.9.1999), that the competent authority does not accede to the petitioner''s request for waiver of notice period and that the decision regarding the acceptance or otherwise of the petitioner''s resignation would be intimated to him in due course. Thereafter, by the Office Order dated 7.10.1999 the petitioner who was working at the Divisional Office No. IX, Hyderabad was transferred to the Regional Office, Hyderabad and was directed to report to the Officer in-charge of the Region and to take charge of the post forthwith. Another communication dated 8.10.1999 was addressed to the petitioner calling upon him to handover the charge to the named Assistant Manager.
The petitioner addressed a letter dated 11.10.1999 to the 1st respondent sensitizing the said respondent about his resignation letter dated 25.8.1999 and seeking relief from service with effect from 24.9.1999, that he has not received any communication thereupon till 24.9.1999, that he received on 30.9.1999 a communication to the effect that waiver of notice period was not acceded to and that, in the circumstances, he is agreeable to pay in lieu of the notice period the gross salary for the short fall of the notice period required to be given by him as per Clause IV of the "Guidelines governing Resignation and Voluntary Retirement of Officers". This letter also stated that the petitioner authorizes the company to deduct the above and other dues from his terminal benefits. The letter ended by recording that as per the instructions of the Regional Manager, he has handed over the charge of the Divisional Office to his successor at the close of office hours on 11.10.1999 and reiterated the request for immediately relieving him from duties.
The Regional Manager by his letter dated 12.10.1999 informed the petitioner that the representation dated 11.10.1999 was being forwarded to the 1st respondent for appropriate action. The 2nd respondent on 25.10.1999 informed the petitioner by his letter that since action is being contemplated against him for certain irregularities noticed against him in certain claims recommended/approved by him, it is not possible to accept his letter of resignation from the services of the company. This communication dt. 25.10.1999 was received by the petitioner on 27.10.1999. A letter dated 1.11.1999 was addressed to the petitioner stating that he has not so far reported for duty at Regional Office, Hyderabad nor has any application from the petitioner requesting for sanction of leave been received, and therefore, he is advised to report for duty at Regional Office, Hyderabad immediately, failing which his presence will be treated as an unauthorised one and appropriate action will be initiated as per applicable rules. To the above letter, the petitioner replied by his letter dated 8.11.1999 stating that he had already submitted his resignation, authorized the respondents to deduct from his terminal benefits the gross salary for the short fall in the notice period as permissible under Clause 4 of the relevant guidelines, that he has been relieved from duties with effect from 11.10.1999 and therefore he requests his terminal benefits and other dues be settled immediately. Thereupon, by the show cause notice dated 16.11.1999, the petitioner has been called upon to explain why action should not be initiated against him for his absence from 12.10.1999, being unauthorised, under Rule 18 of the Rules. This show cause notice after setting out the chronology of events has stated that the competent authority had not accepted the petitioner''s resignation and therefore continues to be on the rolls of the company. The petitioner submitted his explanation to the show cause notice by his communication dated 23.11.1999 reiterating the correspondence already adverted to and that in the circumstances he is deemed to have been relieved from the service of the company with effect from 11.10.1999 and thus he cannot be said to have been absent unauthorisedly. This explanation also reiterated the request for settlement of terminal benefits and other dues. Thereafter, by a covering letter dated 24.11.1999, a cheque dated 26.10.1999 was sent to the petitioner representing his salary for the month of October, 1999. In response to this letter, the petitioner replied to the employer stating that he accepts the cheque and the amount contained therein is accepted partly towards salary up to 11.10.1999 and the balance towards terminal benefits payable by the employer.
At this stage, by the Memo bearing reference No. HO:Per:JR:5473:99, dt. 29.11.1999 it was communicated to the petitioner that disciplinary enquiry is being initiated under Rule 25 of the Rules. This memo was accompanied by one Article of Charge alleging failure in maintenance or devotion to duty by his unauthorized absence for a period of 46 days from 12.10.1999 to 26.11.1999. It also communicated to the petitioner the statement of imputations of misconduct/misbehavior in support of the article of charge. The petitioner assailed this initiation of disciplinary proceedings in Writ Petition No. 18706 of 2000. The writ petition was disposed of by this Court by the judgment dated 17.8.2001. This Court recorded that it does not express any opinion on the merits of the subject matter and that the respondents are directed to pass appropriate orders based on the enquiry report within a period of eight weeks from the date of receipt of the enquiry report.
In the circumstances above, the petitioner submitted his explanation to the charge memo on 16.12.1999 reiterating his contention that there was no question of unauthorized misconduct of absence as he has exercised his option available under the rules to opt for retirement and was also relieved from the service of the company after handing over the charge to his successor and reliever. The contentions in the explanation are substantially to the effect that there was no relationship of master and servant consequent on his having effectively exercised the option of resignation. After process of enquiry, Enquiry Officer submitted his report dated 24.10.2001 holding the charge of unauthorised absence as proved. Thereupon, a show cause notice dated 19.11.2001 was issued. The petitioner submitted his opinion on the enquiry report by his letter dated 6.12.2001 addressed to the disciplinary authority. Thereupon the impugned order dated 12.12.2001 has been passed imposing on him penalty of reduction of pay to a lower stage by three steps in the pay scale of Assistant Manager.
Meanwhile, by a charge memo dated 31.3.2000 the petitioner was alleged to have committed misconduct in the matter of recommending and approving certain claims during his active service with the respondent. The disciplinary proceedings in that regard are still pending.
After receipt of the impugned proceedings, the petitioner has assailed not only the imposition of the penalty pursuant to disciplinary enquiry, but has also sought, as already adverted to, a declaration that there is no subsisting relationship of master and servant and on that plea assails the initiation of disciplinary proceedings as well as its culmination in the impugned order.
The question that arises is whether apropos the petitioner''s letter of resignation dated 25.8.1999 the petitioner''s service with the respondent stood determined and if so with effect from what date and with what consequences?
Heard Sri G. Vidya Sagar, learned counsel for the petitioner and Sri Ramesh Ranganathan, learned Additional Advocate General appearing for the respondents instructed by Sri M.V. K. Viswanadham.
The 2nd respondent has filed a counter affidavit on behalf of the respondent. The defence theme of the respondent to the relief sought by the petitioner is that an offer of resignation does not become effective unless it is positively accepted by the employer. It is also asserted in the counter affidavit that the petitioner was in a hurry to submit his resignation and leave the company in view of charge sheets having been issued to three Officers of the Company at that point of time whereby the petitioner was apprehending that he would also be charge sheeted because of possible enquiries made against his role in certain transactions. It is also stated that the CBI is looking into some of the transaction and the answering respondent is not aware of the outcome of those investigations by the CBI. The counter affidavit also asserts at paragraph-34 that the reason for non acceptance of the petitioner''s resignation was, at the relevant time, action was being contemplated against him for irregularities noticed in certain claims recommended/approved by him. It is also stated that the petitioner''s offer of resignation was not accepted for the above reasons and that this is substantiated by the fact that subsequently departmental enquiry proceedings were initiated in respect of the alleged misconduct of recommending/approval of certain claims, by the issuance of the memorandum of charge dated 31.3.2000. The impugned order penalizing the petitioner for proven misconduct of unauthorised absence is justified on the ground that there was subsisting relationship of employer and employee consequent on the rejection of the petitioner''s offer of resignation. As no issue has been joined on the infirmity of the impugned order on the traditional ground of infirmity in the conduct of disciplinary proceedings, this Court is not called upon to go into that aspect of the matter.
The only question that falls for determination is whether there was subsisting employer and employee relationship between the petitioner and the respondent as on the date of issuing of the memorandum of the charges i.e. 25.11.1999 by which disciplinary proceedings in respect of the alleged misconduct of unauthorized absence were initiated.
In view of the factual and legal profile presented to this Court, if the memorandum of Charges dated 29.11.1999 is competent, then the punishment by the impugned order is unassailable. If it is not for the reason that there was any subsisting jural relationship of employer and employee on 21.11.1999, then both the initiation of departmental enquiry and its culmination by the impugned order would fail.
Legal Regime:
It is a synoptic refrain of the counsel for the respective parties that the only statutory instrument having some bearing on the question is the General Insurance (Termination, Superannuation and Retirement of Officers and Development Staff) Scheme, 1976, (for short ''the 1976 Scheme''), which has been issued in S.O. No. 627(E) by the competent authority-Central Government in purported exercise of its powers u/s 16(1)(g) of the General Insurance Business (Nationalisation) Act, 1972. It is admitted position that the petitioner is an Officer of the respondent and that the respondent is a Company within the meaning of the provisions of the 1976 Scheme, which defines the Company as including the respondent company.
Paragraph-5 of the Scheme being relevant for the resolution of the lis presented in this case is reproduced, as it is relevant.
"5) Determination of Service:
An officer or a person of the Development Staff, other than one on probation, shall not leave or discontinue his service without first giving notice in writing to the appointing authority of his intention to leave or discontinue the Service and the period of notice required to be given shall be three months;
Provided that such notice maybe waived in part or in full by the appointing authority at its discretion.
Reliance has been placed on behalf of the petitioner on paragraph - 8 in Chapter-XIV of Manual of Instructions governing various aspects including service conditions in the respondent company. Though, it is contended on behalf of the respondent that this Manual is not statutory as it is an instrument of instruction to controvert the discretion of the Administration authorities of the respondents in dealing with administration matters and in the context of the fact that the respondent is admittedly an instrumentality of the State, applicable principles of Constitutional and Public Law would posit an obligation on the respondent firm to the procedural and substantive standards it has set for itself in the governance of its affairs vide CITADEL reported in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, .
Para-8 of the Manual occurring in Chapter XIV, in particular, paragraph 8.1 deals with resignation of employees belonging to class I & II. It is an admitted position that the petitioner is an Officer belonging to Class II. The relevant portion of the Manual is as under.
" An Officer or a Development Officer shall not leave or discontinue his/her service without giving notice in writing to the appointing authority of his intention and the period of notice shall be three months. Such a notice maybe waived in part or in full by the appointing authority at its discretion.
In case of breach, he/she shall be liable to pay the company as compensation a sum equal to his/her salary for the notice period which maybe deducted from any amounts due to him."
Before proceeding, on an analysis of the precedents cited on behalf of the respective parties, it is proper to deal with the rival interpretations on the aforesaid two instruments as urged by the counsel for either side.
Sri Vidya Sagar, learned counsel for the petitioner would urge that the only consequence of the non-acceptance of the petitioner''s request for waiver of the notice period would be an obligation of the petitioner to pay gross salary for the balance of the notice period from 25.9.1999 to 24.11.1999 as he had already served with a manual from the date of resignation i.e. 25.9.1999 to 24.11.1999 and what is more even beyond. To substantiate this contention, petitioner relies both on paragraph 5(2) of the 1976 Scheme and paragraph 8.1 of the Manual which has already been extracted above. It is contended on behalf of the petitioner that paragraph 5(2) of the 1976 Scheme enjoins a liability on an Officer of the respondent to pay to the respondent as compensation a sum equivalent to the period of salary required of him, which sum may be deducted from monies due to him, on account of a breach by him of the provisions of the paragraph 8.1. In fine, it is contended that while giving of a notice is mandatory, an employee seeking to resign may either give the respondent employer of three months notice after which he proposes to avail the option of discontinuing service or may request the part or full waiver of the notice period or may without doing either of the above, breach the requirements of paragraph 5(1). In the later of the eventuals, contends Sri Vidya Sagar, the only liability of an employee would be the liability enjoined by paragraph 5(2) and non-treatment of the resignation as non-est or inoperative.
To the contrary contends Sri Ramesh Ranganathan, learned senior counsel for the respondents that explanation (II) to paragraph 5(1) ordains that a notice given under paragraph 5(1) shall be deemed to be proper only if the employee remains on duty during the period of notice and such Officer or person shall not be entitled to set off any period of service against such individuals and that on a true and fair construction of explanation (II), the interpretation is irresistible that a discontinuance from service during the notice period by an employee will render the notice of discontinuance of resignation as of no effect. Learned counsel for the respondents would interpret paragraph 5(II) to mean an additional liability cast on the employer to pay compensation on a sum equal to the employee''s salary for the period of notice and not that resignation would take effect and the only liability would be payment of the compensation amount as ordained in paragraph 5(2) as contended by the petitioner.
It was also faintly urged on behalf of the respondents, but apparently without much conviction that the 1976 scheme, which traverse the arrears of superannuation, termination and retirement of Officers, does not deal with resignation. In any event, the text and structure and the phraseology employed in paragraph-5 warrants rejection of this contention, however faintly urged. Paragraph-5 deals with leaving or discontinuing service. Broad language has been employed and the same must be given effect to. Leaving or discontinuing service in any manner is the subject matter of paragraph-5 and there appears no warrant for restricting it by reference to the title of the scheme. Even otherwise, the expression ''Retirement of Officers'' is a term of wide import. It takes in retirement by means including resignation.
On an analysis of paragraph-5 of the 1976 Scheme, which is admittedly statutory, there is no warrant for the interpretation that explanation-II to paragraph 5(1) is outside the scope of the area covered by paragraph 5(2). Explanation-II is a draftsman''s devise to particularize and delineate the scope of expression and the expression covered by paragraph 5(1). It emphasizes and reiterates the requirements of a notice in writing that is required to be given by an Officer or person of a development staff before leaving or discontinuing his service. In fact, the first part of explanation (II) is a particularisation of the requirement of paragraph 5(1). The intention underlying paragraph 5(1) is to avoid hardship to the employer by sudden cessation from active service by an employee with a discretion vested in the appointing authority to waive the notice period at his discretion. This obligation of the employee to continue in service during the notice period preceding the date of leave or discontinuance from service is effectuated by prescription of sanction in paragraph 5(2) that on breach of requirement of continuance in service during the notice period, or generically, any other condition of the provisions of conditions in paragraph 5(1), the employee committed breach shall be liable to the employer a compensation as enjoined therein. The rule has taken the administrative consideration and has incorporated the sanction for the breach by the employee of the notice period and compensated the employer for the consequent administrative inconvenience by such breach of the employee. Inasmuch as, paragraph 5(2) specifically deals with not only a compensation to be paid by the employer for the breach of the notice period but also provides that such sum of compensation may be deducted from any monies due to him. On this analysis, the contrary contentions urged on behalf of the respondent by Sri Ramesh Ranganathan does not commend acceptance of this Court.
Though not statutory as contended, paragraph 8.1 in Chapter XIV of the Manual, which has been extracted above, is also an instrument of guidelines to be followed by the respondent employer. It needs to be noticed that paragraph 8.1 is the reiteration of the generic contents of paragraph 5 of the 1976 scheme. Paragraph-8 and in particular, paragraph 8.1 of the Manual deals with resignation of employees.
2) ANALYSIS OF CASE LAW:
On behalf of the petitioner, reliance is placed firstly on a decision of the Division Bench of the Patna High Court in an unreported decision in PRATHIBA THUKRAL vs. UNITED INDIA INSRUANCE COMPANY LIMITED AND OTHERS in Writ Petition No. 183 (SB)/ 99. It needs to be noticed that the employer respondent in that case is also the respondent here, namely, United India Insurance Company Limited. On facts, the petitioner in the case was an Assistant Administrative Officer in the Lucknow Branch of the respondent who was promoted as an Administrative Officer in 1986. When she was posted as Assistant Manager at Meerut, she tendered resignation on 9.6.1998. In reply thereto, the respondent employer addressed the employee on 2.7.1998 stating that three months notice is essential for tendering resignation failing which three months salary from her terminal dues is liable to be deducted and that she should furnish declaration about her non-employment with any other employer having recognized Provident Fund and that her response to the letter is requested. By her reply dated 21.7.1998, the petitioner therein submitted her reply on 21.7.1998. while so, the charge sheet dated 25.9.1999 was served and thereafter regular departmental proceedings were initiated and at this stage the writ petition was filed seeking invalidation of the order dated 15.3.1999 whereby the petitioner''s request for resignation was rejected. On an analysis of the provisions of Paragraph-8 of the Home Rules (Establishment Manual) of the respondent company which has been extracted herein supra, the Division Bench of the Patna High Court came to the conclusion that if an employee resigns from the post, he has to give three months notice and in case of default of the notice period, there is a liability to pay compensation on a sum equivalent of his or her salary for the notice period which could be deducted from any amount due to such employee and that in the circumstances, the petitioner succeeded, consequently a declaration was given that the resignation tendered by the petitioner is deemed to have been accepted on the date it is tendered, i.e., 9.6.1998 and that the respondents are at liberty to deduct the compensation, i.e. the salary for the period of three months.
Reliance has also been placed on the judgment of the Supreme Court in State of Haryana and Others Vs. S.K. Singhal, . On facts, the employee, a Medical Officer governed by the Punjab Civil Services Rules gave three months notice on 16.8.1995 seeking voluntary retirement under Rule 5.32(B) of the Punjab Civil Services Rules-II on his completing 20 years of qualifying service. There was no response from the employer within three months period i.e. upto 16.11.1995. Subsequently, by the order dated 13.12.1995, the petitioner was informed that he could not be deemed to have retired. The issue that eventually came to be considered by the Supreme Court was whether the employee was deemed to have automatically retired from service when permission to retire was not positively refused within the notice period. As there was conflict of views expressed qua certain earlier decisions of the Supreme Court, on a major analysis of the precedents on the aspect, the Supreme Court in the aforesaid case, identified two classes of cases of employees seeking voluntary retirement. To set out the two classes identified by the Supreme Court in its own felicitous expression "some rules are couched in language which results in an automatic retirement of the employee upon the expiry of the period specified in the employee''s notice. On the other hand, certain rules in some other departments are couched in language which makes it clear that even upon expiry of the period specified in the notice, the retirement is not automatic and an express period specified in the notice, the retirement is not automatic and an express order granting permission is required and has to be communicated. The relationship of master and servant in the latter type of rules continues after the period specified in the notice till such acceptance is communicated; refusal of permission could also be communicated after 3 months and the employee continues to be in service".
With regard to the first class, the Supreme Court relying upon the earlier decisions of three judge benches in Dinesh Chandra Sangma Vs. State of Assam and Others, , and B.J. Shelat Vs. State of Gujarat and Others, reiterated the principle and ratio that in the absence of any rule or statute that on the expiry of the period specified in the notice of retirement, retirement is not automatic but requires an express grant of permission for retirement, retirement would come into effect on the expiry of the notice period. Paragraphs 10 to 13 of the judgment requires to be extracted which read as under:
300 & 303
The second class of cases where the retirement is not automatic on expiry of the notice period, but require for its effectuation a grant of permission to proceed on retirement was dealt with in paragraphs 14 to 17of the judgment supra. Provisions of Rule 5.32(B) of the Punjab Civil Services Rules which fell for consideration in the above judgment of the Supreme Court are somewhat analogous to paragraph 5 of the 1976 scheme, both contemplated a notice to retire and not to refuse consequential permission to retire. Both in the Punjab Civil Services Rules and the 1976 scheme what is contemplated is only for seeking exemption from the three months period. Further, the paragraph 5(2) of 1976 scheme enjoins the liability on the employee to pay the compensation for the deficit in the notice period on his breach of the conditionalities incorporated in the paragraph 5(i). Following the ratio enunciated in the judgment of the Supreme Court supra, the interpretation is obligated with its polestic consideration of paragraph 5 of the 1976 Scheme which brings about the cessation of master and servant relationship on the date the employee discontinues from the active service of the employer subsequent to submitting a written notice of such leave or discontinuance from service, subject to the liability on the employee to compensate the employer for the deficit in the notice period or for any other breach of the requirement of paragraph 5(1).
On behalf of the respondents, reliance is placed on a line of decisions dealing with resignations in the context of the employee''s right to withdraw his offer of resignation before the effectuation of the resignation. The first of the cases relied on is RAJ KUMAR vs. UNION OF INDIA & OTHERS 1969 SC 180. In this case, a member of the I.A.S. sought relief from service, which was accepted. Before communication of the order of acceptance, he withdrew his offer of resignation. The principal question that fell for the consideration of the Supreme Court was whether the employee has had locus paenitentiae to withdraw his offer of resignation after it is accepted and which is the effective date of communication of such acceptance by the employer. In the context of considering that substantive question, the Supreme Court noticed that the memorandum of the Government of India dated 6.5.1958 which dealt with the procedure for resignation from service was not statutory in character. At paragraph 5 of the judgment, the Supreme Court held as under:
"But where a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or rule governing the conditions of his 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."
The above observation of the Supreme Court has been reiterated in Raj Narain Vs. Indira Nehru Gandhi and Another, . After reiterating the observations in Raj Kumar''s case cited supra, the Supreme Court observed that "the question as to when Yashpal Kapur''s resignation became effective will have to be examined with reference to his conditions of service."
The aspect again fell for consideration of the Supreme Court in Union of India (UOI) and Others Vs. Gopal Chandra Misra and Others, , where again the question was regarding the parameters and circumstances in which the prospective resignation becomes effective and whether it could be withdrawn before it becomes so effective. The observation in the earlier judgment in Raj Kumar''s case cited supra was reiterated. It is however worth noticing the observations of the Supreme Court in the context of dealing with the aspect of resignation per se. This is what has been observed in paragraph 51 of the Judgment reported in 1ir 1978 Sc 694.
"In the case of Government servant or a 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 of resignation becomes effective and his service/or office-tenure, terminated, when it is accepted by the competent authority".
Discernable for the above cases, the expression in the judgment in 1978 SC is a slight shift in the emphasis from that apparent in Raj Kumar''s case 69 Sc. There is a hunt to that and just that and that the Government Servant or a functionary cannot unilaterally bring about his effective resignation or give up his service or office, except in the manner the resignation is to become effective under the conditions of his service or office.
Be that as it may, this aspect again fell for consideration of the Supreme Court in P. KASILINGAM vs. P.S.G. COLLEGE OF TECHNOLOGY & OTHERS ( )1981 SC 789. Another authority relied upon by the respondents. This is also a case of tender of resignation from a future date and withheld it prior to such date. The earlier decisions in RK 69 sc and 79 SC were reiterated. It requires to be noticed that while referring to the earlier decision in R.K 69, the Supreme Court in this case recorded as under :
"It was held 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" and added that there was no reason why the same principle would not apply to the case of any other employee". Reliance is also placed on certain observations of the Supreme Court in Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, , particularly those at paragraph 112 of the said judgment. It must be noticed that in this case, the Supreme Court was dealing with a condition in a contract of employment which empowered the employer to terminate the service of an employee on issuing of notice of a given period or payment of wages in lieu of such notice period. But, such rule in so far as the employer is empowered to terminate the service of even temporary employee on short notice came to be considered in its Constitutional and equality provisions of Section 23 of the Contact Act in the context of a challenge that such a contractual term in a contract of public employment is subversive of public policy within the meaning of Section 23 of the Indian Contract Act. It is in this context that the observations in paragraph 112 have been made and the observations are as under.
The observations of the Supreme Court acceded to be considered as it is a settled principle of precedent law that the observations of a Court are often coloured by the context of the concepts and facts that fell for determination in particular cases and are not to be construed in a locoestic graphic manner or as binding varieties of time, occasions and circumstances. It requires however to be noticed that the last sentence in the aforesaid quotation "
....
Therefore, it is possible to infer that the observations of the Supreme Court are to the effect that entering into employment does not result in an infinite bondage of employment and a permanent employee is as much entitled to exercise his right to resign and his employer is also at liberty to prohibit such resignation and the will of the employee provided a legal environment is in place empowering the employer to enact such prohibition for rationale reasons like, say pendency of disciplinary proceedings or such like administrative circumstances where permitting resignation of employee at will would be subversive of institutional interest or public interest.
In the case on hand, both the provisions of paragraph-5 of the 1976 scheme which is statutory in particular and paragraph 8.1 of the Manual of instructions neither expressly nor by any other necessary implication reserves or preserves a right in the respondent employer to prohibit the resignation of an employee at his choice and of time by such resignation. There is also nothing in the above two provisions nor any other provision is brought to the notice of the Court which requires either the employee to obtain the leave of the employer to leave or discontinue the service or permits the employer to exercise the choice of veto on such request/choice of resignation. Both paragraph-5 of the 1976 Scheme and the paragraph 8 of the Manual merely incorporate a requirement of a written notice to be issued by the employee intimating his intention to retirement and the requirement to give three months notice, which require his sanction by a counter feigning penalty on the employee for breach of the notice period in discontinuing the service before such notice period. This sanction enjoined in paragraph 5 (2) of the1976 scheme and paragraph 8.1 of the Manual is a sanction for the employee in leaving or discontinuing the service before expiry of the notice period in circumstances where either he has not requested any waiver of the notice period or such request having been made has not been acceded to by the employer. In the case on hand, the petitioner submitted his letter of resignation on 25.8.1999 and intimated his intention to relieve from 24.9.1999 requesting that the balance two months of notice period to be adjusted towards leave to his credit. This part of the request could not have been entertained in view of explanation (II) to paragraph 5(1) of 1976 scheme. Therefore and in the context of the fact that the petitioner factually discontinued from active service from 11.10.1999 on having been relieved on his transfer to the Regional Office, the conduct of the petitioner must fail before characterized as to the sanction enjoined by paragraph 5(2). Consequently, the petitioner could be liable to pay the pro tanto gross salary for the period of short fall of the notice. As he has clearly indicated his intention to relinquish service from 25.9.1999, this Court is not inclined to treat the factual service of the petitioner from 25.9.1999 to 12.10.1999 as service which could be counted for rejection of the liability under paragraph-5 (2).
On the analysis above, this Court is of the considered view that the petitioner is seized to be in the service of the respondents with effect from 24.9.1999. He is liable to the respondent employer for payment of compensation in terms of an amount of the gross salary that he is liable to draw of his gross salary frot he period 25.9.1991 to 24.11.1999 which two months deficit in the notice period he was obligated to conform to under paragraph-5(4)and in the context of which his liability arises under 5(2) of 1976scheme.
In the light of the clear language employed in paragraph 5(2, the respondents are at liberty to recover this amount liable to be paid by the petitioner from the terminal and other benefits payable to the petitioner by the respondents. As the petitioner''s active and jural relationship with the respondent as an employee stood determined with effect from 25.9.1999 as per the analysis above and in the absence of any plea by the respondents that they are entitled to initiate disciplinary proceedings after cessation of an employer and employee relationship, the initiation of disciplinary proceedings against the petitioner for unauthorized absence by the memorandum of charges dt. 29.11.1999 and culminating in the impugned order dated 12.12.2001 are intrensically incompetent without jurisdiction and non-est. Consequently, the impugned order bearing reference No. dated12.12.2001is set aside. The petitioner would be entitled to his terminal benefits payable by the respondents subject to deduction of his liability under paragraph 5(2)of the 1976 scheme.
The writ petition is allowed as above. No order as to costs.