N. K. Jagnani v. Bihar State Electricity Board — 1974 DIGILAW 193 (PAT)

JUDGMENT OF THE COURT The petitioner N.K. Jagnani on the basis of his application under Article 226 and 227 of the Constitution of India obtained a rule from this Court. In the application he has prayed for quashing the resolution dated the 2nd May, 1974 (annexure 6'), passed by the respondent and also under the supplementary application the petitioner has prayed for quashing the order dated 9.5.1974 (annexure 7'), passed by the respondent. The relevant portion of the order in annexure 7' reads as : "The resignation tendered by Shri N.K. Jagnani, who was appointed as a temporary Assistant Electrical Engineer in Board's Notification no. A/M-1003/644249/EB dated the 4th December, 1964 is accepted with effect from the 31st December, 1972." Where as the relevant portion of the resolution contained in annexure 6' is to this effect : "It was decided that whenever any employee tendered his resignation from the Board's service, withdrawal of the same may not be allowed even if no formal intimation of 'acceptance of the resignation had been sent before such withdrawal. In the instant case also, the above general decision will apply and it was decided that responsibility for delay in acceptance of the resignation may be examined and fixed up so that the persons at fault, if any may be suitably punished" 2. In order to appreciate the point involved in the application it would be necessary to state briefly the facts. The petitioner was appointed as Electrical Engineer Assistant under the respondent with effect from 15th September, 1962. The petitioner was thereafter promoted Assistant Electrical Engineer by a Notification dated the 4th December, 1964, a portion of which has been annexed by the petitioner as annexure 1' to the application. The entire Notification has been placed on the record by the respondent annexed as annexure 'A' to the counter-affidavit, filed by respondent. As stated by the petitioner he served under the respondent at different places as Assistant Electrical Engineer up to the 6th June, 1972. Thereafter the petitioner's father fell ill, and on that account the petitioner proceeded on leave for one month with effect from 7th of June, 1972. Due to the serious illness of his father which continued for some time the petitioner extended his leave from time to time till 30th November, 1972. Thereafter the petitioner's father fell ill, and on that account the petitioner proceeded on leave for one month with effect from 7th of June, 1972. Due to the serious illness of his father which continued for some time the petitioner extended his leave from time to time till 30th November, 1972. The petitioner further stated in his application that due to family trouble particularly due to the illness of his father, the petitioner found difficulty in continuing in service under the respondent, and hence he tendered his resignation under his letter dated the 29th November, 1972, a true copy of the resignation letter is marked annexure 2' to 'the application. Under annexure 2' the petitioner had requested, the respondent that his resignation should be accepted on or before the 31st December, 1972. The petitioner did not receive any reply accepting the resignation of the petitioner, from the respondent by the 31st December, 1972. The petitioner however subsequently received an order dated the 9th May, 1974 from the respondent which has been quoted earlier under annexure 7' intimating therein that the resignation of the petitioner was accepted with effect from 31st of December, 1972. Before receiving the order contained in annexure 7', the petitioner by his letter dated 2nd August, 1973 (annexure 4') withdrew his resignation and reported himself to duty on the same date. In the said letter he had also requested the respondent to accept his joining report and to treat the petitioner's letter' of resignation dated the 29th November, 1972 as having been withdrawn. In the application the petitioner has also annexed a copy of his joining report dated 2nd August, 1973 as annexure 3'. Thereafter the petitioner attended the office of the respondent regularly from day to day with effect from 2nd August, 1973 and as stated by him, he continued attending the office till 2nd of May, 1974 when he learnt about the resolution passed by the respondent contained in annexure 6'. Subsequently on the 8th of September, 1973, the petitioner wrote a letter to the respondent, a true copy of the said' letter is marked annexure 10' requesting thereunder to accept the letter of withdrawal of his resignation. Subsequently on the 8th of September, 1973, the petitioner wrote a letter to the respondent, a true copy of the said' letter is marked annexure 10' requesting thereunder to accept the letter of withdrawal of his resignation. Under the letters ,of 3rd September, 1973 (annexure 9')' and of 8th April, 1974 (annexure 5') the petitioner complained to the respondent that inspite of joining his duty the petitioner was not given his emoluments and therefore he requested that necessary orders might be passed to pay his salary and allowance etc. But instead of replying to his various letters the respondent passed the resolution contained in annexure 6' and the order contained in annexure 7'. 3. The respondent after receiving the notice of the application of the petitioner in this Court, filed a counter-affidavit. Thereafter the petitioner filed a reply to the counter-affidavit on the 16th August, 1974. 4. Learned counsel appearing on behalf of the petitioner has assailed the impugned resolution contained in annexure ‘6’ and the order contained in annexure 7' to the writ application. According to him before acceptance of his resignation the petitioner being a public servant of the Board, created by the statute could have withdrawn his resignation. In this connection he drew our attention to paragraph 4 of the notification contained in annexure 'A' which reads as : "Their appointment is temporary and terminable on one month's notice on either side." According of the learned counsel, the aforesaid term contained in the Notification did not mean that termination of the petitioner's service was automatic, and no acceptance was required by the respondent. He urged that the respondent also has considered that in such a case, acceptance would be required, so much so, that under the resolution contained in annexure 6' which has been quoted earlier, it was decided that acceptance would be required. On the basis of the resolution, they accepted the resignation of the petitioner, with effect from 31st of December, 1972, contained in annexure 7'. The petitioner also under annexure 2' had requested the respondent to accept it. Therefore, it is clear that both parties understood that under the terms contained in paragraph 4 of the Notification, acceptance would be required. On the basis of the resolution, they accepted the resignation of the petitioner, with effect from 31st of December, 1972, contained in annexure 7'. The petitioner also under annexure 2' had requested the respondent to accept it. Therefore, it is clear that both parties understood that under the terms contained in paragraph 4 of the Notification, acceptance would be required. In this connection learned counsel also referred to paragraph 4 of the counter-affidavit, wherein it is stated that, however, the resignation letter was accepted by the Respondent Board dated 7.5.1974 (annexure 7') with effect from 31st of December, 1972. The delay had been on account of the fact that before accepting the resignation letter, several formalities had to be undergone. Learned counsel has laid stress upon the later part of the statement, which indicated various formalities that had to be undergone before the acceptance letter was sent to the petitioner. Learned counsel submitted that even in case of temporary appointment terminable, at the option of the parties by giving one month's notice, the acceptance of the resignation would be required, because the petitioner, being a public servant, might have been entrusted with various records, and properties, and therefore his resignation could not have been terminated automatically, without acceptance, as the respondent being the employer has to find out whether the petitioner owed anything to the respondent. 5. In order to find support to his contention, learned counsel has relied on a Full Bench decision of the Allahabad High Court in the case of Bahari Lal Paliwal vs. District Magistrate, Bulandshahr A.I.R. 1956 All, 511. In that case the Chairman of the Town Area Committee had tendered his resignation. Agarwala, J who delivered the Judgment for the Court observed at page 511-14 that normally the Chairman held office, during the continuance of the term of office of the members of the committee. But during that period a vacancy might occur in the office of the chairman by reason of (a) death (b) removal or (c) resignation. His lordship posed a question as to whether the vacancy occurred as soon as the resignation was submitted by the chairman? It was held in that case that in certain cases the resignation might be effective as soon as it was delivered to the proper authority. In other cases, it may not be effective till it was accepted by that authority. It was held in that case that in certain cases the resignation might be effective as soon as it was delivered to the proper authority. In other cases, it may not be effective till it was accepted by that authority. In voluntary organisation like clubs a person was free to be a member, and unless the contrary was laid down in the rules of the association, he was free to resign at any time he liked. The freedom to associate implied the freedom to disassociate. But in corporations created by the statute for the discharge of public function, a member might not have an absolute right to resign at will, because the law may cast a duty upon the person elected to a public office to Act, in that office in the public interest. His lordship after surveying various decision on the point including an extract from Halsbury's Laws of England observed in paragraph 24 at page 513 that a person had a right to withdraw his resignation before it was accepted or before his office had come to an end. The learned counsel also referred to a Bench decision of the Punjab High Court in the case of Rajkumar Iswar Das vs. Union of India A.I.R. 1966 Pun. 221 wherein 1956 Allahabad, 511 (Supra) was relied upon Kapur, J. who delivered the judgment for the Court at paragraph 6 at page 223 observed : "As we have already said, we have to decide really two questions (1) is acceptance of resignation by a Civil Servant necessary and (2) Does it take effect only when it is communicated to the servant and not before and consequently can be withdrawn before acceptance is communicated? We are of the opinion that acceptance of resignation is necessary before the service of an employee can come to end. Such an acceptance is a necessary step in giving effect to the resignation, and until that step has been taken, the resignation cannot be said to be complete and effective. In the case of a civil servant it is not a matter affecting the two parties, namely the employee and the Government. The public has also the right to the service of all the citizens and may demand them - in all departments, Civil as well as in military. In the case of a civil servant it is not a matter affecting the two parties, namely the employee and the Government. The public has also the right to the service of all the citizens and may demand them - in all departments, Civil as well as in military. We cannot lose sight of the fact that civil servants are appointed for the purposes of exercising the functions and carrying on the operations of the Government. They have to discharge all sorts of duties, judicial as well as administrative and it would result in complete chaos, if it were held that the resignation would become effective as soon as a civil servant tendered it. The exigencies of the public office may demand that the civil servant, must carryon the operations of the Government and continue to discharge the functions till the Government is able to make alternative arrangements. A political organization would seem to be imperfect which should allow the depositories of its powers to throw off the responsibility at their own pleasure. Even if the matter be treated as a contract between the parties the same result would follow. A person who has agreed to serve till his services are terminated must first make an offer communicating his intention to terminate and that offer must be accepted. We have then to consider whether the communication of the acceptance is necessary before the employment comes to an end. In our opinion, it is not, necessary. To hold otherwise may again lead to similar complications". In view of the above observation the application of the petitioner Raj Kumar failed, as his withdrawal was after the acceptance of his resignation. Aggrieved by the said judgment he preferred an appeal before the Supreme Court, the judgment of which has to be found in the case of Raj Kumar Vs. Union of India AIR 1969 S.C. 180 , where their Lordships of the Supreme Court affirming the above view of the Punjab High Court in the case of Raj Kumar Ishwar Das Vs. Union of India AIR 1969 S.C. 180 , where their Lordships of the Supreme Court affirming the above view of the Punjab High Court in the case of Raj Kumar Ishwar Das Vs. Union of India A.I.R. 1966 Pun, 221, observed in paragraph 5 at page 182, the relevant portion of which is to this effect : "Our attention was invited to a judgment of this Court in State of Punjab v. Amar Singh Harika (A.I.R. 1966 S.C. 1313) in which it was held that an order of dismissal passed by an authority, and kept on its file without communicating it to the officer concerned or otherwise publishing it did not take effect as from the date on which the order was actually written out by the said authority, such an order could only be effective after if was communicated to the officer concerned or was otherwise published. The principle of that case has no application here. Termination of employment order passed by the Government does not become effective until the order is intimated to the employee. 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. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance the public servant concerned has locus paenitentiae but not thereafter. Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation has not been accepted." In view of the above discussions, in our opinion the contention of learned counsel for the petitioner is well founded. However, Mr. Rai Parasnath, learned counsel appearing on behalf of the respondent submitted that none of the cases referred to above on which reliance was placed by the petitioner dealt with the case of temporary employment. However, Mr. Rai Parasnath, learned counsel appearing on behalf of the respondent submitted that none of the cases referred to above on which reliance was placed by the petitioner dealt with the case of temporary employment. According to him those observations are not helpful to the petitioner, as under the terms of his employment contained in paragraph 4 of the Notification which has been quoted above (vide annexure 'A'), the termination of the service of the petitioner was automatic on giving one month's notice on either side. Therefore no acceptance is required in such a case, where the parties are governed by the clear terms of appointment. In order to find support he relied on the case of Shankar Dutt Sukla vs. President Municipal Board, Auruiya AIR 1958 All 70 wherein Mehrotra, J, held that where an application for resignation by a municipal servant sent to the President was to come into existence from 1st of April, 1955 till that date there was no resignation at all and the applicant had the right to intimate to the President before that date that he no longer wished that his application should be considered as effective. 6. Relying on the above observation learned counsel for the respondent contended that in the instant case the petitioner could have withdrawn his resignation only within one month from 29.11.72 the date of letter of resignation contained in annexure 2'. Since in the instant case he had not withdrawn his resignation within one month's time as prescribed in the terms of his appointment, he could not have withdrawn his resignation. Admittedly in the present case he had withdrawn his resignation on 2.8.1973 much after the expiration of one month. According to the learned counsel, in the case of temporary employment, where his service is based upon the terms of appointment no acceptance is required. The only requirement is that he must withdraw his resignation if he wants, before his employment comes to an and. In the instant case it comes to an end, according to him on the expiry of one month's notice from the date of the resignation of the petitioner. In our opinion the above observation made by Mehrotra, J. is not acceptable in view of the Full Bench decision of the Allahabad High Court and the decision of the Supreme Court referred to above. 7. In our opinion the above observation made by Mehrotra, J. is not acceptable in view of the Full Bench decision of the Allahabad High Court and the decision of the Supreme Court referred to above. 7. Learned counsel for the respondent also drew our attention to the case of Jai Ram vs. Union of India AIR 1954 S.C. 584 which has been relied upon in 1956 Allahabad page 70 (Supra). In paragraph 7 at page 586-87 it was observed that it might be conceded that it was open to a servant who had expressed a desire to retire from service and applied to his superior officer to give him the requisite permission to change his mind, subsequently and asked for cancellation of the permission thus obtained, but he could be allowed so long as he continued in service and not after it had terminated. In our opinion the above observation is also of no avail to the respondent. The question still arises when it would be considered that the service of the petitioner was terminated, whether before or after the acceptance of his resignation? The answer, according to the Supreme Court's judgment referred to above, and according to Full Bench decision of the Allahabad High Court, which we have already referred to, is that the withdrawal of the resignation, could not be made after the acceptance of the resignation. The termination of the service for this purpose would be considered as terminated, only after the acceptance of the resignation. 8. Learned counsel for the respondent however, contended that in the instant case the petitioner has no remedy available in his writ application. The petitioner is entitled if at all to damages. In order to find support of this contention he relied upon a decision of this Court in the case of Bhagwandas Vs. Senior Suprintendant, Way and Works, Eastern Rly A.I.R. 1956 Pat. 23 where it was held that where there was some irregularity in the matter of the notice given to the employee in accordance with the terms of his service agreement, the irregularity might give him a cause of action for claiming damages, and the employee might, if he was so advised, make the claim for such compensation as he thought he was entitled to, in a properly constituted suit. But no writ could be issued under Article 226 directing that the employee be reinstated in his post. But no writ could be issued under Article 226 directing that the employee be reinstated in his post. In our opinion this observation also is of no assistance to the respondent in the instant case. It may be noticed that in the present application the petitioner has not made any such grievance nor he had claimed any damages. His simple prayer is for quashing the resolution contained in annexure 6' and the order contained in annexure 7'. 9. Learned counsel for the respondent then drew our attention to some portion of paragraph 4 of the counter-affidavit, wherein it was stated that the petitioner's service as per terms of his appointment letter, automatically stood terminated after the expiry of one month from 29.11.1972. In our opinion this is merely a submission and it is not an assertion. The assertion of facts has been made in the subsequent sentence, which we have already mentioned, 'wherein it was stated that the resignation letter of the petitioner was accepted by the Respondent' Board on 7.5.1974 (annexure 7") with effect from 31st December, 1972. The delay was on account of the fact that before, the acceptance of the resignation letter several formalities had to be undergone. In that view of the matter the respondent has admitted of certain formalities that had to be undergone before accepting the resignation letter of the petitioner. That apart, even interpreting the terms of his appointment contained in paragraph 4 of the Notification the word 'terminable' contained therein, is of great significance. It also indicates that it was not automatic, and some formalities had to be undergone before the acceptance of resignation letter of the petitioner. If the parties intended that it would be automatic, the language would have been different. It ought to have been written. Their appointment is temporary and shall stand terminated on one month's notice either side, Therefore even on interpreting paragraph 4, we find that it lends additional support to the contention of the learned counsel for the petitioner. 10. Learned counsel for the respondent further urged that in the instant case the petitioner has suppressed the material facts in his application, and on that score alone, the application of the petitioner under Article 226 is not maintainable. 10. Learned counsel for the respondent further urged that in the instant case the petitioner has suppressed the material facts in his application, and on that score alone, the application of the petitioner under Article 226 is not maintainable. He drew our attention to annexure 1' wherein the entire notification has not been annexed by the petitioner and the material particular of it which is contained in paragraph 4 of annexure 'A' was deliberately suppressed by the petitioner it is because of his suppression that the respondent had to enclose in their counter-affidavit, the 'notification contained in annexure (A). According to the learned counsel, if the petitioner would not have suppressed, the material particular of the notification, the application of the petitioner would not have been even admitted. He emphasised that suppression of material particulars by the petitioner in an application under Article 226 of the Constitution of India, is sufficient to throw out the application of the petitioner in limini. In order to find support of his contention; he relied on a Bench-decision in the case of Gaya Prasad Vs. Union of India A.I.R. 1955 Pat 305 He drew our attention to paragraph 25at page 316. The relevant portion of which reads to this effect : "The learned Government Advocate in opposing this application also contended that the application should be thrown out on the simple ground that the petitioner in support of his application under Article 226 of the Constitution suppressed all the material facts of the case and did not refer at all to any fact relating to the enquiry held against him and relating to the two opportunities given to him, firstly to show cause against the charges framed against him; and secondly, to show cause against the action which were proposed to be taken against him. There is no doubt that the original application of the petitioner filed in this Court under Article 226 is completely silent on the facts just stated. In that application he has merely referred to the history of his service in the railway department, then dispute between him and Karam Singh, then the fact that Karam Singh got him removed from the service with the help of Mr. A.R. Sarkar, Superintendent Transportation and lastly to the point that the order of removal against the petitioner was not in accordance with R. 1708 and, therefore, invalid. A.R. Sarkar, Superintendent Transportation and lastly to the point that the order of removal against the petitioner was not in accordance with R. 1708 and, therefore, invalid. This, therefore, clearly supports the contention of the learned Government Advocate that the petitioner completely withheld the material facts from the court in his application under Article 226 and I think he on that ground alone forfeits his right for a writ as held in the case of-Ganesh Das V. State of U.P. A.I.R. 1952 All 922. 11. In our opinion the above observation is not applicable to the facts of the present case. In the instant case we find that in the annexure 2 to the application he has mentioned about one month's notice, which is obviously in the line with the terms of the appointment contained in paragraph 40f the Notification (Annexure 'A'). Besides, by reading the application as a whole, we do not find that the petitioner has deliberately suppressed other part of the Notification. Therefore, we are not inclined to accept the contention of the learned counsel for the respondent. 12. In the result, after careful consideration, we allow the application, and quash the - impugned resolution contained in annexure 6' and the order contained in annexure 7'. On the facts and in the circumstances of the case, there will be no order as to costs. Application allowed.