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Judgment
B. Subhashan Reddy, J.—The important points which arise for consideration in this case are :
(1) What is a cause of action? When does it arise? Whether any part of the cause of action within the precincts of State of Andhra Pradesh so as to have territorial jurisdiction to issue the writ as sought for?
(2) What is the effective date of resignation? Whether it can be accepted before the said effective date preventing the person tendering the resignation from revoking the same before the said effective date?
(3) Whether the back wages can be granted if points 1 and 2 are answered in affirmative?
The facts briefly stated are thus : The petitioner who was first appointed as Legal Officer, Grade-B in the Legal Department of Reserve Bank of India, Bombay, was sent on deputation to erstwhile Agricultural Refinance and Development Corporation, Bombay, during March, 1982 and worked there till 11th July 1982. From 12th July, 1982, he became employee of the 1st respondent-Bank, which was created under the provisions of National Bank for Agriculture and Rural Development (shortly called NABARD). After about 2 years of service in the 1st respondent-bank, the petitioner was promoted from Grade-B Legal Officer to Grade-C Legal Officer designated as Deputy Manager (Legal) and was confirmed in the said post with effect from 7th March, 1985. Due to his several personal reasons, the petitioner sought for transfer from Bombay to Hyderabad. But the same was not favourably considered. The petitioner tendered his resignation from the post he was holding and the said letter was sent on 29-4-1987 to be effective from 31st July, 1987. Before the date set for resignation, the petitioner reconciled and decided to continue in respondent''s service and had addressed a letter dated 11-6-1987 to the 3rd respondent withdrawing his resignation. It is admitted that till the said date i.e., 11-6-1987, the petitioner did not receive any written communication of acceptance of resignation. It was only after the said letter dated 11-6-1987 was received by the 3rd respondent, a communication dated 22-6-1987 was sent to the petitioner which was received by the latter on 24-6-1987 stating that his resignation was accepted by the 3rd respondent on 15-5-1987 and that the withdrawal of resignation could not be accepted. It was even stated in the said letter that already the petitioner was orally communicated about the acceptance of resignation before the issuance of withdrawal of resignation letter by the petitioner which of course is disputed by the petitioner. Even though the petitioner has pleaded that by deeming that he is continuing in service, notional promotion should be granted and also the attendant benefits, but that do not call for any consideration in the instant case, as the petitioner having been sent out of the job by the respondent, practiced law for sometime in the office of his brother as an Advocate and then later joined a job and now I am informed that he is holding a good post in a company carrying attractive pay and emoluments. That is why Mr. D. V. Seetharam Murthy, the learned Counsel for the petitioner, has limited his claim to declare the acceptance of resignation as illegal and arbitrary and to direct the payment of back wages till 17-5-1989.
Cause means, action at law. It refers to the media upon which the suitor argues the Court to arrive at conclusion in his favour. It comprises of bundle of essential facts. The cause of action is not an abstract one. It is something more than a ground of title. It may consist of a single fact or of an assemblage of facts. The word "cause" must be understood in the sense of "causa causons" meaning thereby the real effective cause. Thus, the cause of action means all things necessary to give a right of action.
The necessary question which arises for consideration is whether the respondents were obligated to communicate the order. While Mr. Seetharam Murthy, the learned Counsel for the petitioner contends that the order should be communicated to the petitioner, Mr. K. Srinivasa Murty, the learned Counsel for the respondents contends otherwise. In Liberty Oil Mills and Others Vs. Union of India (UOI) and Others, , it was held by the Supreme Court that it is inconceivable under our Constitutional scheme that a decision of the kind contemplated may have the adverse effect on the person without his being communicated of the adverse order and that intertwined is the question of observance of natural justice and that natural justice cannot be satisfied if the decision is not even communicated. The Supreme Court held that to construe that, a decision taken need not be communicated, would result in arbitrariness violating Article 14 of the Constitution of India and that even if the decision was to be without assigning any reason, it implies that the same has to be communicated. In State of Punjab v. Amar Singh AIR 1963 SC 1313 a Constitution Bench of the Supreme Court held that mere passing of an order of dismissal of an employee is not effective unless it is published and communicated to the officer concerned and that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it, does not take effect, as from the date on which the order is actually written out by the said authority and that such an order can only be effective after it is communicated to the employee concerned. But, Mr. K. Srinivasa Murthy cites a decision in State of Punjab Vs. Khemi Ram, , wherein it was held that the word ''communicate'' means to impart, confer or transmit information and that the said word cannot be interpreted to mean that the order would become effective only on its receipt by the concerned employee unless there is a provision expressly providing for the same. It was also held that actual knowledge by an employee of an order of dismissal, may perhaps become necessary because of certain consequences. Reliance is also placed by him on the decision rendered in State of Punjab and Others Vs. Balbir Singh and Others, . In the said case, the Supreme Court held that the reversion order becomes effective as soon as the same is sent out, no matter when the employee actually receives it. In the decisions referred to above by Mr. K. Srinivasa Murthy, there is a vital distinction made out between an order pending disciplinary proceedings and an order after disciplinary proceedings. The distinction is so clear from the reading of the above decisions that while in a case of suspension and reversion which have got only temporary effects, the effectiveness of the said orders does not wait till they are actually communicated, but they become effective the moment the said orders are sent out. But, such a principle is not applicable in so far as the final orders of dismissal from service are concerned.
In the circumstances, I hold that the adverse orders against the petitioner became effective only from the actual receipt thereof and not when sent out.
The main office of the 1st respondent-Bank is located at Bombay while it has got a Regional Office and some branches at Hyderabad. Even though the resignation was tendered by the petitioner while serving at Bombay, he was sent out of the post and came back to his native place viz., Visakhapatnam and it was there where the order rejecting his appeal was received by him. Then, which is the cause of action for this writ petition? Is it the original order or the appellate order. The answer depends upon the proposition as to whether the original order merges in the appellate order or not. Dealing with the same proposition, the Supreme Court in S.S. Rathore Vs. State of Madhya Pradesh, of the Judgment held :
"We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order, but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation, is made".
In the instant case, such a statutory appeal is provided for and there is no dispute on the said aspect. As such, I conclude that cause of action in this case arose on 20-11-1987 when the order of the appellate authority was communicated to the petitioner at his native place viz., Visakhapatnam.
The next aspect is that of jurisdiction of this Court to entertain this cause. In Umasankar Chatterjee v. Union of India 1982 (2) LIC 1361, it was held that infringement of rights gives rise to a cause of action, and, consequently, the right to use, and that the order of removal from service gives rise to a cause of action to institute an action for the establishment of his right to be in service and so long as the order was not effective, there was no question of accrual of a cause of action or the right to sue. But the moment the said order became effective, there was an automatic accrual of cause of action and the consequent right to use. It was further held that even though the petitioner in that case was holding the post at Korba in Madhya Pradesh at the time of his removal from service, the same became effective giving rise to cause of action at Calcutta where the said orders of removal were communicated to him and that as such the Calcutta High Court was having jurisdiction to entertain the writ petition. In S. K. Chatterjee v. Eastern Coalfields Ltd. 1986 LIC 50, it was held that the workmen were entitled to claim C. D. S. amount by invoking the jurisdiction of Calcutta High Court under Article 226 of the Constitution of India even though the colliery where such workmen was working fell outside the territorial jurisdiction of Calcutta High Court, but in as much as the appointment of Receiver was made by Calcutta High Court, who was holding C. D. S. amounts, part of cause of action arose at Calcutta and consequently the Calcutta High Court was having jurisdiction. To the same effect is the Judgment rendered in P. D. Gopalan v. D. I. G. 1986 LIC 980. There, the petitioner was dismissed from service after departmental enquiry and the said order passed by the disciplinary authority was also confirmed by the appellate authority. The order of appellate authority was served on the petitioner, who was then residing within the area of jurisdiction of Kerala High Court, even though he was holding the post of Security Guard in the Central Industrial Security Force, govern by the Central Industrial Security Force Act, 1969 and was working as such in Hindustan Zinc Ltd., CISF Unit, Visakhapatnam, within the State of Andhra Pradesh. The Kerala High Court has held that the order of disciplinary authority had merged in the order of the appellate authority had merged in the order of the appellate authority and that in as much as the appellate authority confirmed the order and communicated the same to the petitioner who was residing within the area of jurisdiction of Kerala High Court had jurisdiction to entertain the writ petition and grant relief sought for. The case of State of Rajasthan and Others Vs. Swaika Properties and Another, , cited by Mr. K. Srinivasa Murthy, has got no application to the fact of this case. The said case arose under the provisions of Section 52(2) of the Rajasthan Urban Improvement Act and the acquisition of the land under the said provisions. The land was situated in the Rajasthan, but the owner thereof was residing at Calcutta and the notices under the above Act were issued at Rajasthan and were served on the owner residing at Calcutta. The Calcutta High Court entertain a writ petition, passed interim orders and the same was set at naught by the Supreme Court in the above decision, on the ground that no part of the cause of action arose at Calcutta merely because the land owner was staying there.
In the circumstances, I hold that though the order passed by the appellant authority emanated from Bombay, a part of cause of action arose there, the final cause of action arose when the said order became effective after the service of the same on the petitioner at Visakhapatnam and as such, this Court is having jurisdiction to exercise its powers under Article 226 of the Constitution of India.
Coming to the next point with regard to the date of effectiveness of the resignation, Mr. D. V. Seetharama Murthy, the learned Counsel for the petitioner relies upon the judgments rendered by the Supreme Court in Union of India (UOI) and Others Vs. Gopal Chandra Misra and Others, , Balram Gupta v. Union of India AIR 1977 SC 2354, D. Sundera Rao v. Visakhapatnam Port Trust 1973 (2) APLJ 382, K. L. MHAJ Sekhar v. Osmania University, 1989 (1) ALT 365. Mr. K. Srinivasa Murthy has placed reliance on the judgments rendered by the Supreme Court in Raj Kumar Vs. Union of India (UOI), and Raj Narain Vs. Indira Nehru Gandhi and Another, . The judgment in Gopal Chandra''s case (supra) is that of Constitutional Bench and ruled that a prospective resignation can be withdrawn at any time before it becomes effective and it becomes effective when it operates to terminate the employment, office or tenure of the resignor. It was further held that in the case of a Government servant, the resignation is not an unilateral act, but it is a bilateral act and until resignation is accepted, the same does not become effective and that before becoming effective, the said resignation can be withdrawn. The distinction stated regarding the constitutional functionary is not relevant for this case. Following the said judgment, it was held in Balram Gupta''s case (supra) that a notice of 3 months of voluntary retirement given by the employee could be withdrawn within the time prior to the expiry of the notice period. The Supreme Court emphatically held that the order allowing to retire prospectively on expiry of notice period without allowing the withdrawal of the notice is bad and illegal. A Division Bench of this Court in Sundera Rao''s case (supra) took the same view that till the expiry of the period mentioned in the notice of resignation, the relationship of master and servant continues and that the employee continues in service and that the employee has a right to withdraw his offer of resignation before it becomes irrevocable and it would be irrevocable only on the expiry of three months and the acceptance become binding on the parties and that the resignation cannot be accepted before the expiry of the term specified in the notice. A learned single Judge of this Court has followed the view in K. L. MHAJ Sekhar v. Osmania University 1989(1) ALT 365 and held that before the period mentioned in the notice the resignation cannot be accepted and cannot be given effect to. The said judgment is based on the judgment of the Supreme Court in Balram Gupta v. Union of India, AIR 1977 SC 2354.
In view of the authoritative pronouncement in Balram Gupta''s case (supra) following the earlier Supreme Court Judgment in Gopal Chandra''s case (supra), I cannot countenance the argument of Mr. K. Srinivasa Murthy. That apart, the decisions rendered in Raj Kumar''s case (supra) and Raj Naraian''s case (supra) are based on their own facts which are not similar to the one on hand. The judgment rendered in Balram Gupta''s case (supra) which is in consonance with the earlier Constitutional Bench judgment of the Supreme Court in Gopal Chandra''s case (supra) and followed by this Court, applies to this case on all fours. In the circumstances, I hold that before 31st July, 1987, there was no power or authority for the respondents to accept the resignation of the petitioner and his letter dated 11-6-1989 withdrawing his resignation letter dated 29-4-1987 was valid in law and as such the resignation letter dated 29-4-1987 has become inoperative and consequently the act of the respondents in depriving the petitioner of his continuance in duties is illegal, arbitrary and without jurisdiction.
The last point for consideration is with regard to the entitlement of the petitioner for back wages. The only thing alleged against the petitioner was that the petitioner being a law graduate had joined his brother''s chamber and practiced as legal practitioner for about one and half years. There is no evidence forthcoming on the part of the respondent-bank, as to what was the exact earning of the petitioner through the said short period of his advocacy. Mr. D. V. Seetharama Murthy, contends that the petitioner during that short tenure cannot be expected to earn any amounts worth mentioning and that as such it cannot be said that he was gainfully employed so as to disentitle him from having his back wages. Even though Mr. K. Srinivasa Murthy replies that the petitioner was gainfully employed, he could not furnish me any data of actual income of the petitioner. But it is not difficult to assume what could be the income of the petitioner having regard to the fact that he did not practice earlier and that he was a fresher as an Advocate which also did not last long as he has got employment elsewhere with effect from 17-5-1989. It can be taken judicial note of, that in the early periods of advocacy, particularly, for the first three years, there will not be any significant income and it depends upon a senior who may pay, which may be hardly sufficient for his pocket expenses, even if such a payment is made. It is a well-known saying that there are three stages for an Advocate, i.e., (1) no practice, no money, (2) practice and proportionate money, and (3) practice and more money. The petitioner fits only under the first limb and even if the same is termed as gainful employment by the respondents, such a plea will be untenable. In this context, the comment of the Supreme Court in Rejender Kumar''s case (supra) is apt to be mentioned. The Supreme Court while lamenting and rejecting the plea of management that the petitioner in that case was gainfully employed while out of job for maintaining his family helping his father-in-law in his case depot and living with him having no other source, held that "if this could be the gainful employment, begging by the employee would as well be gainful employment". While holding so, the Supreme Court granted full back wages to the employee concerned therein. The said judgment is squarely applicable to the instant case also and in view of the same, I grant the full back wages to the petitioner payable by the respondents for the period upto 17-5-1989. The said payment shall be made within two months from the date of receipt of this order.
The writ petition is allowed to the extent indicated above. No order as to costs.