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Gauhati High Court · body

1995 DIGILAW 271 (GAU)

Ajay Bir Singh v. Allahabad Bank

1995-12-15

J.N.SARMA

body1995
This application under Article 226 of the Constitution of India has been filed by the petitioner who in an employee of Allahabad Bank, respondent No. 1. The petitioner was appointed as a Hindi Officer in Allahabad Bank pursuant to recruitment test held by the Bank. The letter of appointment dated 16.10.87 is Annexure 4 to the writ application. The petitioner joined at the Head Office of the Bank in Calcutta on 21.12.87 and he was on probation for a period of 2 years as provided under the Service Regulation of the Bank. Thereafter the petitioner was transferred to the Regional Office at Guwahati on 11.10.88. That while in Guwahati the petitioner had some hits with one Ashok Sharrna, an officer of the establishment of the Bank at Guwahati. The petitioner did not find the job to his liking and wanted to resign from the job and accordingly he submitted his resignation on 26.9.89. The reply was sent to him vide Annexure 6 and the petitioner was asked to comply with the requirements and the resignation and reply are Annexure 5,6,7,8 and 9 which are quoted below: xxxx  xxxxx xxxx 2. On 4.10.89 the possession of the flat occupied by the petitioner was handed over to the authority of the Bank and that is Annexure 10. Earlier to it on 27.9.89 there was an incident with Ashok Sharma and an ejahar was lodged with the police, that is, Annexure 11 to the writ application, that is quoted below: xxxx  xxxxx xxxx 3. On 27.9.89 itself an order of suspension was passed against the petitioner, that is, Annexure 12 which is quoted below : xxxx  xxxxx xxxx 4. An affidavit-in-opposition has been filed on behalf of respondent Nos. 1, 2 and 3, wherein inter alia, it is stated as follows : (i) That the petitioner was on probation for a period of 2 years and as a probationer the petitioner could not resign without giving one month notice in writing. However, the resignation letter was forwarded to the competent authority, but the same has not been accepted by the authority as yet. (ii) It is admitted that a sum of Rs.4,722/- being the dues from the petitioner has been deducted from his account. However, the resignation letter was forwarded to the competent authority, but the same has not been accepted by the authority as yet. (ii) It is admitted that a sum of Rs.4,722/- being the dues from the petitioner has been deducted from his account. (iii) That the petitioner was placed under suspension as an enquiry was contemplated under Regulation 6 of the Discipline Appeal Regulation of 1976 for the alleged acts of unruly behaviour, assault and beating Shri Ashok Sharma, an employee of the Bank. (iv) As the resignation letter of the petitioner has not been accepted, the petitioner must be deemed to be an employee of the Bank and the petitioner can be put under suspension. (v) An affidavit-in-reply has been filed wherein it is stated that all the amounts due from the petitioner on account of his resignation have been deducted from the account of the petitioner vide Annexure 17. It is urged that the resignation became effective as and when the amount was deducted from the petitioner. 5. During the pendency of the Civil Rule ultimately on September 5,1995, the resignation of the petitioner has been accepted and that is quoted below : "With reference to your letter dated 26.09.1989 tendering resignation from the service of the Bank, we have since considered the same and accept your resignation from Bank's service wef 27.09.1989. You shall be deemed to have been relieved wef 27.09.1989. Please submit the relevant information in the enclosed proforma which will be scruitnized in the enclosed for the purpose of releasing your admissible terminal dues only." 6. Now it is contended by the petitioner that this acceptance of the resignation after a lapse of 6 years will entitle the petitioner to receive the subsistence amount and other dues. Because he was kept hanging for this 6 years by the Bank. 7. On behalf of the Bank it is urged that this resignation letter was accepted in terms of the earlier order of this Court dated 20.7.95, that order is quoted below: "20.7.95 : After hearing Mr. AB Choudhury, learned counsel for the petitioner and Mr. CKS Baruah, learned counsel for the respondents I feel that this matter is hanging for last 6 years without serving any useful purpose. The petitioner resigned from the post on 26.9.89 and his resignation was not accepted on the ground that disciplinary proceedings was pending as against him. AB Choudhury, learned counsel for the petitioner and Mr. CKS Baruah, learned counsel for the respondents I feel that this matter is hanging for last 6 years without serving any useful purpose. The petitioner resigned from the post on 26.9.89 and his resignation was not accepted on the ground that disciplinary proceedings was pending as against him. That disciplinary proceedings was regarding the alleged assault of an officer of the Bank. Be that as it may, 1 direct that the authority shall do the needful to consider the resignation submitted by the petitioner within a period of 1 (one) month by dropping the disciplinary proceeding as more that 6 years have elapsed and no purpose will be served by continuing that disciplinary proceeding as this will amount to mere a witch-hunt. List this matter after one month. This matter shall be treated as part heard. The petitioner may obtain a certified copy of this order and shall produce the same before the authority to do the needful in terms of this order. Sd/- JN Sarma, Judge." 8. A bare perusal of that order will show that this Court never directed the authority to accept the resignation from a back date. The only question which now survives for determination in this case is: Whether the petitioner is entitled to salary and other benefits for these period of almost 6 years ? 9. I have heard Shri AB Choudhury, learned Advocate for the petitioner and Shri CKS Baraah, learned Advocate for the respondents. The law on resignation has been dealt with in a large number of judgments of the Apex Court. To decide the controversy in the present matter, I only rely on the following decisions: (i) AIR 1972 SC lS02 (Raj Narain (in both the appeals), vs. Smti Indira Nehru Gandhi & another (in both the appeals), wherein the Supreme Court in paragraph 22 of the judgment pointed out as follows : "22. The question as to when a Government servant's resignation becomes effective came up for consideration by this Court in Raj Kumar vs. Union of India (1968) 3 SCR 857 : .( AIR 1969 SC 180 ). The question as to when a Government servant's resignation becomes effective came up for consideration by this Court in Raj Kumar vs. Union of India (1968) 3 SCR 857 : .( AIR 1969 SC 180 ). Therein this Court ruled that when a public servant has invited by this letter of resignation, the determination of his employment, his service normally stands terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or statutory 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 of the appropriate authority." (ii) 1989 (Suppl) II SCC 175 (Punjab National Barfk vs. PK Mittal), wherein in paragraph 5 and 7, the Supreme Court pointed out that an employer cannot accept a resignation from a back date. (iii) (1993) 2 SCC 725 (Moti Ram vs. Param Dev & another), where in paragraphs 16, 17, 18, 19 and 20 the law has been laid down as follows: "16. As pointed by this Court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act if its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. [See: Union of India vs. Gopal Chandra Misra ]. If the act relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is hot required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in present. A resignation may also be prospective to be operative from a future date in mat event it would take effect from the date indicated therein and not from the date of communication. A resignation may also be prospective to be operative from a future date in mat event it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character the commission of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g. acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it. 17. Under the Constitution of India there are various offices which can be relinquished unilateral act of the holder of the office and acceptance of resignation is not required, e.g. President [Article 569a)]. Vice President [Article 67(a)], Deputy Chairman of Rajya Sabha [Article 90(b)], Speaker and Deputy Speaker of Lok Sabha [Article 94(b)], Judge of the Supreme Court [Article 124(2)(a)], Judge of a High Court [Article 217(1)(a)]. As regard member of a either House of Parliament or a member of a House of Legislature of a State, originally, the position was that he could resign his office by unilateral act and the acceptance of resignation was not required. The requirement of acceptance of such resignation was introduced in Article 190(3)(b) by the Constitution (Thirty third Amendment) Act, 1974. Similarly in Company Law, a directory of a company is entitled to relinquish is office at anytime he pleases by proper notice to the company and acceptance of the resignation is not required. [See : Glossop vs. Glossop and Halsbury's Laws of England, 4th Ed. Vol. 7 p.316, para 536]. 18. A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer. Insofar as Government employees are concerned, there are specific provisions in the service rules which require acceptance of the resignation before it becomes effective. 18. A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer. Insofar as Government employees are concerned, there are specific provisions in the service rules which require acceptance of the resignation before it becomes effective. In Raj Kumar vs. Union of India, it has been held : “… But when a public servant has invited by his letter of resignation determination of his employment, his service 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 poenitentiae but not thereafter." (P.860) 19. Similarly, in Central Inland Water Transport Corporation Ltd vs. Brojo Nath Ganguly which related to an employee of a Government company jointly and wholly owned by the Central Government and two State Governments, it was observed : (see p.228, Para 111 : ATC p.175, para 111) 7“… A resignation by an employee would, however, normally require to be accepted by the employer in order to be effective. It can be that in certain circumstances an employer would be justified in refusing to accept the employee's resignation as, for instance, when an employee wants to leave in the middle of a work which is urgent or important and for the completion of which his presence and participation are necessary. An employer can also refuse to accept the resignation when there is a disciplinary inquiry pending against the employee. In such a case, to permit an employee to resign would be to allow him to go away from the service and escape the consequences of an adverse finding against him in such an inquiry. There can also be other grounds on which an employer would be justified in not accepting the resignation of an employee." (SCR p.386) 20. The same view was reiterated in JK Cotton Spinning and Weaving Mills Company Ltd vs. State of UP which also relates to a contract of employment." 11. There can also be other grounds on which an employer would be justified in not accepting the resignation of an employee." (SCR p.386) 20. The same view was reiterated in JK Cotton Spinning and Weaving Mills Company Ltd vs. State of UP which also relates to a contract of employment." 11. So, the law is well established that the resignation will be effective only from the date of acceptance. The Bank authority failed to produce before me any rule authorising it to accept a resignation from a back date. Here in the instant case the petitioner was hanging in balance for a period of 6 years and during this period the petitioner was not paid anything. 12. In that view of the matter I direct that the authority shall do the needful to pay the petitioner all the salary and allowances from 27.9.89 to 5.9.95. The petitioner was wrongfully and illegally kept out of employment by the authority and accordingly the authority is responsible for its own laches, negligence and inaction. The authority deducted from his account all the due required to be given by the petitioner, the possession of the flat allotted to him was taken back. But the authority took resort to deep slumber to cause loss and injury to the petitioner. The Court moreso, a writ Court being a Court of equity cannot close its eyes to this sort of illegality. Accordingly this writ application is disposed of with a direction that the authority shall pay all the allowances and salaries due to the petitioner from 27.9.89 to 5.9.95. This shall be done within a period of 2 months from the date of receipt of this order by the authority. There is no denying of the fact that by now the position is clear and it has crystalised that a writ Court can take into consideration subsequent events and can mould the relief appropriately. The writ application is disposed of as indicated above with the direction. 13. In the facts and circumstances of the case, the petitioner shall be entitled to a cost of Rs. 1,000/- to be paid by the respondents.