G.M. LODHA, J.—A hangover of internal emergency of India in 1976, this writ petition is the result of half hearted relief given to an employee after change over of the Government in 1977-78. A resignation obtained by duress, and coercion on refusal to undergo Nas-bandi vasectomy from, an Govt. employee, during emergency, is no resignation in the eye of law, is the pivot of reasons for accaptance of this writ petition. 2. The petitioner was a permanent railway servant in the non-gazetted class-Ill service. He was appointed on 12th of September, 1966. He was working as Fitter in the scale of Rs. 260-400/- in the Foundary department of Loco-workshoop at Ajmer and was drawing Rs, 430/- as per his pay-slip issued to him in the month of November, 1976. 3. The allegation of the petitioner is that during the year 1976, respondent No. 2 was exerting pressure on the railway subordinate servants including the petitioner to get them sterlised by under-going Nasbandi operation and coercive methods were adopted towards the subordinate railway servants. 4. Since September, 1976, the petitioner was being also forced to undergo Nasbandi operation and, since he was reluctant to do so, he was made subject matter of various types of tortures and threats. 5. The petitioner was of the opinion that Nasbandi operations, sometimes in some cases proved fatal and in many cages they have adverse effects. He had in his mind the names of Shri Kishan, Ram Swaroop, both railway employ-ees and Bhura Ram etc. to support adverse effect of operations, and, therefore, he was not prepared to undergo Nasbandi operation at any costs. In these coercive conditions the petitioner was forced to resign. 6. He had in his mind the names of Shri Kishan, Ram Swaroop, both railway employ-ees and Bhura Ram etc. to support adverse effect of operations, and, therefore, he was not prepared to undergo Nasbandi operation at any costs. In these coercive conditions the petitioner was forced to resign. 6. On 29-10-76, the Foreman of the Foundary shop under whom the petitioner was working reported the matter of refusal to undergo Nasbandi operation by the petitioner to the Production Engineer On this the Production Engineer showered his anger over the petitioner saying to him,Yah Sarkari Mahkama hai tere baabaa Ka karkhana nahin hai; naukari karna chahte ho to Nasbandi fouran aur abhee karane chale jao nahin to istiffa likh kar ghar, jakar baith jao." At this juncture, the petitioner had no alternative but to submit to the dictates of his boss and as being directed he wrote a letter of his resignation mentioning his unwillingness for undergoing operation for Nasbandi as the reason for his resignation and handed it over to the Production Engineer. The Production Engineer on reading this letter became angry and then, another letter was got written at the instance and directions of the petitioners boss and the same was handed over to the officials. This letter of resignation dated 29-10-76 was accepted and the petitioner ceased to be in the railway service from 6-12-76 vide Deputy Chief Mecahnical Engineer (Loco) Western Railway, Ajmers letter dated December 4, 1976. 7. The petitioners case is that fas soon as the emergency was lifted, he applied to respondent No. 2, requesting him for cancellation of his resignation and taking him back on duty. Inspite of the representations dated 27-5-77 and 27-9-77, the petitioner was not taken back on duty. 8. 7. The petitioners case is that fas soon as the emergency was lifted, he applied to respondent No. 2, requesting him for cancellation of his resignation and taking him back on duty. Inspite of the representations dated 27-5-77 and 27-9-77, the petitioner was not taken back on duty. 8. It was in the above circumstances that the petitioner has filed this writ application with the following prayers:— "It is, therefore, humbly prayed that this Honble Court be pleased to quash letter of resignation dated 29-10-1976 (Annexure "3") and letter dated 4-12-76 (Annexure "6") accepting the petitioners resignation and direct the respondents to take the petitioner back to duty forthwith on same post and pay to him a full salary for the intervening period commencing from 1-12-1976 to the date of reinstatement with all resultant service benefits to which he would have been entitled for the remaining out of employment by reason of his forced resignation by means of issue of writ of mandamus or any other appropriate writ, direction as order as this Honble Court deems just and proper. The Honble Court my further be pleased to grant cost of this petition." 9. This writ application was first considered by this court and show cause notice was issued on 17th of August, 1978. Later on, it was considered by this court on 6th of November, 1978 and ultimately it was admitted on 12th of January, 1979. On 12th January, 1979, a specific direction was given to the railway that the railway should file reply within one month and the case should be heard in second week of March, 1979. The railway has not filed any reply till now. 10. Today, during arguments Mr. Bafna prayed that time may be allowed for filing the reply. In view of the facts and more particularly the specific order of this court at the time of admission by which one months time was granted to the railway to file reply and by now above 10 months time has elapsed, there appears to be no good ground for granting adjournment for filing reply. The obvious presumption is that the facts mentioned in the writ application are correct and the railway officers and authorities could not dare to controvert them by filing reply and swearing the correctness and the truth-fullness of the same on an affidavit. 11. The obvious presumption is that the facts mentioned in the writ application are correct and the railway officers and authorities could not dare to controvert them by filing reply and swearing the correctness and the truth-fullness of the same on an affidavit. 11. It is, therefore, now to be seen whether the petitioner is entitled to get any relief on the basis of the above facts which stand un-rebutted. 12. Before I proceed to consider this aspect of the matter, it should be mentioned that at the time of admission and in pursuance of the show cause notice the railway made it clear that the railway would be prepared to reinstate the petitioner and. in fact, the petitioner can go and join any time. The petitioners case was that inspite of the repeated representations, he has not been reinstated and the offer of the railway made in this court is without any intention to fulfill the same. However, as it now transpires, ultimately the petitioner went to the railway office at Ajmer and was allowed to join on 13th of November, 1978, during pendency of writ petition. 13. Mr. Bafna, counsel for the railway respondent has verbally controverted the facts during the arguments and submitted now that the petitioner has been re-instated and no relief should be granted by this court. According to him, the railways already accepted his representation made after the lifting of the emergency and directed him to appear for posting orders vide letter dated 3rd of February, 1978. This letter reads as under:— "Sub:—Request for withdrawal of resignation N.G. Staff-Shri Bhanwar Lal Ex. Fitter T. No. 62390 of Loco, Ajmer. Ref:—Your application dated 25-1-77 and 27-5-77. Your request as made vide your applications cited above has been considered. 2. You should therefore present yourself in this office immediately for posting orders and make suitable arrangements for depositing the amount paid to you being the settlement dues viz. S. C. to PF assets in full in one instalment. In case you fail to deposit full amount your past service and present service will not be counted together for the purpose of final settlement on retirement. Sd/- Dy. C.M.E. (L) Ajmer. Copy for personal case of the employee concerned." 14. S. C. to PF assets in full in one instalment. In case you fail to deposit full amount your past service and present service will not be counted together for the purpose of final settlement on retirement. Sd/- Dy. C.M.E. (L) Ajmer. Copy for personal case of the employee concerned." 14. Learned counsel for the petitioner, on the contrary submits that in this letter, there was a pre-requisite condition, for permitting to join service, was for payment of settlement dues. Since no settlement dues were paid to him, he could not pay the same, and he pointed out this infirmity in his letter dated March. 28, 1975 in reply to the above letter. Learned counsel further submitted that a resignation obtained under coercion and force is no resignation, as held in Abraham Reuban vs. The Karachi Municipality (AIR 1929 Sind 69) The relevant portion of this judgment is as under :— "Now, in these circumstances and in this state of facts, the question is, whether the acts of the plaintiff, especially the act of handing over charge on 27th December are to be interpreted as a voluntary resignation by him or whether the action of the Managing Committee considered as a whole, amounts to a dismissal of the plaintiff from municipal services. The case of Stephenson vs. London Joint Stock Bank Ltd. (1) bears considerably on the point. In that case the plaintiff, a clerk, in the defendant Bank had endorsed a promissory note made by one Mr. Sedger. On the Bank coming to know of this the plaintiff was called upon for an explanation. On receipt of it the Secretary to the Bank wrote a letter to the plaintiff containing the words: "You are required to resign your appointment in the Bank forthwith." The plaintiff then wrote to the Bank resigning his appointment. The question was, whether the plaintiff had retired with the consent of the Directors or had been dismissed. The Lord Chancellor in delivering the judgment of the Court of Appeal said he entertained no doubt upon the point. They had to look at the whole of the facts, and doing so there could be no doubt but that the plaintiff had been dismissed. The use of polite instead of pre-emptory language did not alter the fact. In General Bill Posting Co. They had to look at the whole of the facts, and doing so there could be no doubt but that the plaintiff had been dismissed. The use of polite instead of pre-emptory language did not alter the fact. In General Bill Posting Co. vs. Atkinson (2) the House of Lords held, approving the earlier authorities: "that the true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract." In In re Rubel Bronse & Metal Co., and Vos. (3) Mc Cardie, U., States: "It has been authoritatively stated that the question to be asked in cases of alleged repudiation is "whether the acts and conduct of the party evince an intention no longer to be bound by the contract." and again at P. 323 of the report : "If the conduct of the employer amounts to a basic refusal to continue the servant on the agreed terms of employment, then there is at once a wrongful dismissal and repudiation of the contract." Applying these rulings to the facts in the case before me as I have set them out, I am of opinion that the only inference to be drawn is, that the plaintiff did not resign his appointment but was dismissed by the Managing Committee of the Municipality. It has been argued that the plaintiffs letter Ex. 18 amounts to a voluntary resignation, that the Managing Committee gave the plaintiff an opportunity to resign and the plaintiff availed himself of that opportunity. I think the argument is unsubstantial: Ex. 18 is surely not to be read by itself but in the light of the fact and circumstances immediately preceding and following it, and so read cannot by any stretch of imagination be regarded as evidencing a voluntary resignation." 16. I have carefully considered the submissions of the learned counsel for the parties and perused the record of the case. 17. A proclamation of the emergency dated, June 25, 1975 was published by G.S.R. 353(E) and it reads as under:— "In exercise of the powers conferred by clause (x1) of Art. 352 of the Constitution, I Fakhruddin Ali Ahmed, President of India, by this proclamation declare that a grave emergency exists whereby the security of India is threatened by internal disturbances." 18. There was, however, already inforce a proclamation of Emergency, which was issued on December 3, 1971 by the President of India, on the ground that the Security of India, was threatened by external aggression. Thereafter on December, 4, 1971 the Defence of India Rules, 1971 were published. 19. By virtue of Art. 358 of the Constitution freedoms guaranteed under Art. 19 of the Constitution restricting the power of the State to make any law or to take any executive action which the State would but for the provisions contained in Part HI be competent to make or to take, remained suspended till the withdrawal of the emergency proclaimed on June 25, 1975. On June 26, 1975, a censorship order was passed by the Central Government under Rules of the Defence of India Rules, 1971. This was amended on July 6, 1975 and July 13, 1975. 20. The declaration of the emergency and consequent suspension of the fundamental rights under Art. 19 resulted in the suspension of the protection of Arts. 14, 21 & 22 by the issue of the Presidential Order in exercise of the powers under Art. 359 of the Constitution. The right of equality under Art. 14 and the right of fundamental guarantee against deprivation of life and personal liberty according to procedure established by law also stood suspended and the protec-tion against arrest and detention could not be challenged before the courts. The right of free speech and expression, right to assemble peacefully, to form associations and unions; to move freely throughout the territory of India; to reside and settle in any part of the territory of India; to acquire, hold and dispose of property and to practice any profession, or to carry on any occupation trade or business, which were guaranteed under clause (1) of Art. 19, could no, thereafter be exercised during this period. 21. As held by the Honble Supreme Court in Addl. Distt. Magistrate, Jabalpur vs. Shivakant Shukla (1), during this period of emergency a citizen of India could not claim right to live or "right to exist" what to say of "liberty" or freedom to act. 22. The above constitutional position is beyond dispute, and that adds strength to the probability of petitioners case. Distt. Magistrate, Jabalpur vs. Shivakant Shukla (1), during this period of emergency a citizen of India could not claim right to live or "right to exist" what to say of "liberty" or freedom to act. 22. The above constitutional position is beyond dispute, and that adds strength to the probability of petitioners case. The petitioners allegation that he was compelled and pressurised for undergoing Nasbandi operation at Ajmer while he was serving in the railway by his railway bosses, which resulted ultimately in his resignation from service on refusal to get himself operated, are supported by the affidavit and remain un-rebutted as the same has not been contradicted by the respondent. It is not without significance that even though this court passed a specific order at the time of admission that the railway authority should file reply within one month, they have chossen to abstain from filing reply even though 10 months have passed since then. It would be fair and reasonable to presume that the respondents are not in a position to rebut the factual allegations. 23. The irresistable conclusion is that the allegations of the petitioner specifically made in respect of the respondents and their officers pressurising him to have Nasbandi operation at the relevant period in 1976 during emergency are correct. The logical termination of such pressurisation and coercion of the bosses of the petitioner could have been either in petitioners undergoing the operation of vasectomy (Nasbandi) or to quit. 24. No Government servant having a permanent job would like to voluntarily resign unless there are compelling reasons. The petitioner, has mentioned in his writ application that he was aware that a number of railway employees and other villagers, who agreed to undergo the operation of Nasbandi and were actually operated upon, had some serious after effects of operation which had damaged their health and physique and, therefore, he was not prepared to undergo this operation. The names of those persons have also been mentioned, and the respondents have not chosen to controvert or rebut that also. Having refused to obey the directions, instructions or advice whatever may be called of his bosses, the petitioner resigned from the office simply to save himself from the compulsion and the pressurisation of the officers for getting himself operated. In this context, the allegation of the petitioner seems to be natural and logical and have got inherent appearance of truth. Having refused to obey the directions, instructions or advice whatever may be called of his bosses, the petitioner resigned from the office simply to save himself from the compulsion and the pressurisation of the officers for getting himself operated. In this context, the allegation of the petitioner seems to be natural and logical and have got inherent appearance of truth. The silence and absence of rebuttal of the respondents have only added to the truthfulness and correctness of these allegations. 25. Yet another featurs of the case which further strengthens the case of the petitioner is that after the lifting of the emergency, the letter of May, 1977 was honoured and respected by the railway itself. The petitioner in his letters; copies of which have been produced before this court which remain unrebutted and un-challenged (Annexures-1, 6 and 7), has expressly mentioned that he was compelled to resign on his failure to obey the directions of the railway bosses to get himself operated of Nasbandi and he mentioned this also in his resignation but the same was torn and he was asked to give some other reason in his resignation. , 26. In these letters he has mentioned that now the emergency has been lifted and the emergsncy excesses are being accepted by the Government and the relief is being given. He prayed that his resignation letters should also be treated as cancelled, void and withdrawn and he should be reinstated on service with payment of his emoluments as if, there was no resignation at all. The railway authorities in letter dated February 3, 1978 has accepted this request for withdrawal of resignation and this provides clinching evidence of the genuineness of the bonafides, correctness and truthfulness of the petitioners allegations that he was compelled and forced to resign on his failure to undergo the Nasbandi operation during emergency. 27. This letter was followed by another letter dated 23rd March, 1978 (Annexure-13) of the railway. Annexure-14 dated 28th March, 1978 of Mr. Hemandas Advocate expressly mentions that the railway has wrongly asked him to pay the settlement dues because, no settlement dues were paid to his client, and, therefore, he should be reinstated and paid all wages of the earlier period without insistence on the payment of the settlement dues. Since this was not replied and the petitioner was not taken back in servics, the petitioner filed this writ application. Since this was not replied and the petitioner was not taken back in servics, the petitioner filed this writ application. That being so, the contention of Mr. Bafna that no relief should be granted by this court is untenable both on facts and the law. 28. I am convinced that the present one is a case in which the petitioner was coerced to resign for failure to agree to Nasbandi operation by the railway authorities, and, therefore, his resignation obtained under duress, compulsion and coercion cannot be acted upon. The resignation in order to become effective should be conscious, voluntary act of an employee and since it was not so, the acceptance of the same by the railway was unlawful, invalid and cannot be sustained. 29. It is true that the railway itself has realised this unlawful act of their officers and on account of that accepted the representation of the petitioner and sent letters dated, February 3, 1978 and 23rd March, 1978. But by doing so, probably on account of mis-under-standing they insisted for payment of settlement dues without realising that in fact, no settlement dues were paid to the petitioner which could have been refunded or re-deposited. This created deadlock which compelled the petitioner to come to this court 30. An ancillary argument was made by Mr. Bafna that since the petitioner has come as mentioned in the writ application that he moved the railway for withdrawal of the resignation on January, 1977 on lifting of emergency. The petitioners case be treated to be false because the emergency was not lifted in January, 1977, but, it was withdrawn in March, 1977. 31. It is true that the Notification of revoking proclamation of emergency was issued on 27th March, 1977 by the Vice President acting as President. This Notification is as under:— Proclamation:— "In exercise of the powers conferred by sub-clause (a) of clause (2) of Article 352 of the Constitution I, Basappa Danappa Jatti, Vice President acting as President of India, hereby revoke the Proclamation of Emergency issued under clause (1) of that article on the 25th June, 1975, and published with the notification of the Government of India in the Ministry of Home Affairs No. G.S.R. 353(E) dated the 26th June, 1975." 32. However, merely on this, the consequence which Mr. Bafna wants, cannot follow. However, merely on this, the consequence which Mr. Bafna wants, cannot follow. It is to be noted that the petitioners representation dated, May 27, 1977 and September 27, 1977 (Annexure 5 & 7 ) and notice of demand of justice dated, March 5. 1978 (Annexure 8) and letter of the learned Advocate (Annexure 14) dated March 28, 1978, categorically mention all the facts alleged by the petitioner in the writ application regarding the railway officers compelling him to undergo Nasbandi operation, his refusal and the consequent resignation at the instance of the railway officers to save himself from the Nasbandi operation. Since the railway itself has replied to the letter and accepted the representation by permitting him to withdraw the resignation, the representation of the petitioner are further confirmed to be true and genuine. In view of this, if at one place the petitioner has mentioned a wrong fact of lifting of the emergency in January, 1977, it cannot be said that his entire case of the alleged resignation having been given under duress and compulsion is false and fabricated. 33. In fact, it is not open to the railway now after having accepted representation of the petitioner, to take a some result in writ petition. As mentioned above the letter of the railway dated, February 3, 1978 and March 23, 1978 expressly mantioned in the subject column, request for withdrawal of resignation, and the reference is to the representation of the petitioner dated, May 27, 1977. It is further to be noted that the railway authorities acceptance of the withdrawal application and prayer of his unconditional reinstatement, corroborate the story of the petitioner and his case has got inherent truth as discussed above. 34. In view of the above, there is no escape but to accept this writ application which is hereby accepted. The respondents are directed to treat the resignation of the petitioner withdrawn and non-est illegal and void in the eye of law and provide him all the benefits of salary, wages and other emoluments to which he is entitled under the railway rules, after ignoring the letter of resignation, for all intents purposes. Since the petitioner was not paid settlement dues at the time he was relieved from service in 1976, the requirement of payment or refund of settlement dues as mentioned in the letter of the railway dated 3rd February, 1978 is quashed. Since the petitioner was not paid settlement dues at the time he was relieved from service in 1976, the requirement of payment or refund of settlement dues as mentioned in the letter of the railway dated 3rd February, 1978 is quashed. The petitioner has already been reinstated during the pendency of the writ application on 11th November, 1978, and he would continue in service according to law. The respondents are directed to provide him all permissible benefits of service, treating him in employment, continuously without any break of service, as if no resignation was given. 35. However, in view of the fact that the railway itself, partially accepted the representation and voluntarily offered to give relief to the petitioner of reinstatement by the letter dated 3-2-78, the parties are directed to bear their own costs.