Ashok Kumar Porwal v. Hindustan Zinc Ltd. — 1998 DIGILAW 686 (RAJ)

Honble GUPTA, J.—Petitioner Ashok Kumar Porwal was Deputy Manager (Mining), Rampura-Agucha Mines, a unit of the respondent Hindustan Zinc Limited. He was superseded and two persons junior to him were accorded promotion on 1.1.96. He, therefore, made a representation but it was not accepted. The petitioner therefore tendered his resignation vide letter dt. 31.3.96 Anx. 1. On 24.4.96 the peti- tioner received a communication from the respondent that his resignation has been accepted and he would be relieved w.e.f. 30.6.96. (2). The petitioners case is that in disturbed mental state and frustration he had tendered resignation but he had withdrawn the same vide his application dt. 16.5.96 yet the respondent relieved him on the basis of his resignation dt. 31.3.96. It has been averred that an employee can withdraw his resignation prior the date on which the resignation is to take effect, and the respondent has violated Articles 14, 16, 21 and 300A of the Constitution of India when it relieved the petitioner on 30.6.96 though he had already withdrawn his resignation. It has been prayed that the orders dt.24.4.96 and 30.6.96 be quashed and the respondent be directed to take the petitioner back in service with all consequential benefits. (3). In the return filed by the respondent, it has been averred that in the resignation letter the petitioner had not stated that the same would take effect from 30.6.96 and the facts have been distorted in the writ petition. It has been further averred that bare reading of the resignation shows that it was in the present and it was not to take effect from any future date and therefore the respondents could accept the same at any time and thereafter the same could not be withdrawn. (4). In the rejoinder filed by the petitioner, the facts of the writ petition have been reiterated. It has been stated that as per the terms of the appointment, the resignation could take effect only after a period of three months and therefore the resignation was to take effect only from 30.6.96. In the supplementary rejoinder it has been averred that the petitioner was made to work right upto end of three months from the date of resignation which means that the requirement of three months notice was not waived by the respondent. (5). Mr. Mridul, learned Sr. Advocate vehemently contended that vide Anx. In the supplementary rejoinder it has been averred that the petitioner was made to work right upto end of three months from the date of resignation which means that the requirement of three months notice was not waived by the respondent. (5). Mr. Mridul, learned Sr. Advocate vehemently contended that vide Anx. 1, the petitioner had requested to accept his resignation and relieve him as per the Company Rules which means that he could be relieved only as per the terms of the appointment Anx. 7 and if the respondents have accepted the resignation from a date prior to 30.6.96, it was of no effect and the petitioner had every right to exercise his right of withdrawal of the resignation before 30.6.96. In support of his conten- tions he cited the cases of Union of India vs. Gopal Chandra (1), Balram Gupta vs. Union of India (2) and Punjab National Bank vs. P.K. Mittal (3). (6). Mr. Gupta, on the other hand, contended that vide letter Anx. 1 the petitioner had requested for the acceptance of resignation with immediate effect and had prayed that he should be relieved as per the Company Rules which means that he had left the matter at the discretion of the respondent. He submitted that where an employee expresses his intention to resign from a particular date, the management cannot afford to wait upto that date, because in that case there would be no-one in the office on the post held by such employee and the work would be dislocated. According to him steps are required to be taken in advance for making appointment of a person on the vacancy to be caused by the employee and therefore, the employee cannot be permitted to withdraw his resignation at any time, more so after its acceptance. He cited the case of State of Haryana vs. Ram Kumar (4) to emphasise that the resignation once accepted can not be withdrawn. (7). I have given the matter my anxious consideration. One thing is obvious on record that the petitioner was not relieved on 24.4.96, the date on which the order accepting resignation was issued. It was directed that the petitioner would continue to serve the company upto to 30.6.96 and would be relieved on that date. It is also an admitted fact that the petitioner worked in the office of the respondent as Dy. It was directed that the petitioner would continue to serve the company upto to 30.6.96 and would be relieved on that date. It is also an admitted fact that the petitioner worked in the office of the respondent as Dy. Manager (Mining) upto 30.6.96 and he has been paid salary upto that date. (8). The question for consideration is what is that effect of the order Anx. 2 dt. 24.4.96 on petitioners withdrawing the resignation vide application dt. 16.5.1996. In the application dt. 31.3.96 the petitioner had not expressed his intention to resign from service with immediate effect. It was clearly stated that his resignation should be accepted and he should be relieved as per the Company Rules, which clearly means that the petitioner had given three months notice to the respondents as required in the terms of the appointment Anx. 7. (9). Sub-para (3) of Para 1 of the terms of the appointment provides that an employee can resign from service after giving three months notice to the management and the management at its discretion reserve the right not to accept the resignation. It is relevant to state that in this sub para this discretion has not been given to the management that it could waive the three months notice period. As a matter of fact the order Anx. 2 does not indicate that the management had waived the notice period, rather it is clear from the order that the resignation was accepted w.e.f. 30.6.96 i.e. after the expiry of three months period. (10). It has to be accepted that the petitioner had a right to withdraw the resignation prior to the date from which the resignation was to take effect. The right of the petitioner to withdraw the resignation before the relevant date cannot be de- nied on the ground that the management, in the eventuality of the resignation had proceeded to make alternative arrangements. It may be a problem of the respondent but the petitioner cannot be denied to exercise his right of withdrawal of the resignation. The cases relied on by Mr. Mridul clearly lay down the principle that a resignation can be withdrawn by an employee at any time before it becomes effec- tive. In relation to an office, the word resignation connotes the act of giving up or relinquishing the office. The cases relied on by Mr. Mridul clearly lay down the principle that a resignation can be withdrawn by an employee at any time before it becomes effec- tive. In relation to an office, the word resignation connotes the act of giving up or relinquishing the office. A complete and effective act of resigning office is one which severes the link of the resignor with his office. (11). In the case of Union of India vs. Gopal Chandra (supra), Shri Justice Satish Chandra had written to the President of India on 7.5.77 intimating his resig- nation from the office of Judge of the Allahabad High Court w.e.f. 1.8.77. However, on 15.7.77 Shri Agarwal wrote to the President of India revoking his earlier communication and commenced deciding matters in court. One advocate of the Allahabad High Court filed writ petition in the High Court alleging that Shri Agarwal was usurping the public office. Their lordships of the Constitutional Bench of the Apex Court held that in the absence of legal contractual or constitutional bar an intimation in writing sent to the appropriate authority by an incumbent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it becomes effective. (12). The Apex Court reiterated the principle in the case of Balram vs. Union of India (supra). In that case of employee wrote vide letter dt. 24.12.80 to the appointing authority seeking voluntary retirement on 31.3.81. By the order dt. 20.1.81 he was allowed to retire voluntarily w.e.f. 31.3.81 but in the meantime on 31.1.81 the employee withdrew his notice. The employee however was relieved on 31.3.81. Their lordships of the Supreme Court held that it was not acceptable that once notice was given, it became operative immediately but the dissolution would be brought about only on the date indicated i.e. 31.3.81 and upto that the employee was a government servant and therefore he had a right to withdraw his notice of voluntary retirement. (13). It is significant to point out that in that case it was contended, as is the contention of Mr. (13). It is significant to point out that in that case it was contended, as is the contention of Mr. Gupta, that the administration had made arrangements acting on the request of the employee of voluntary retirement, to make available other employee for his job, but was not found favour with the Apex Court It is to be noticed that in the instant case, the petitioner made an application to revoke the resignation much before the date on which the resignation was to take effect and therefore, it cannot be accepted that any administrative set up or arrangements were affected. (14). In the case of Punjab National Bank vs. P.K. Mittal (supra) also similar controversy arose. The employee sent a communication to the Bank on 21.1.86 expressing his intention to retire w.e.f. 30.6.86. On 7.2.86 the employee was informed by the Bank that his resignation letter had been accepted by the competent authority with immediate effect by waiving the condition of notice and he was being relieved from the service of the Bank w.e.f. 7.2.86. The employee challenged the acceptance of his resignation by filing writ petition. However, after filing the writ petition the employee wrote a letter to the Bank by which he purported to withdraw the resignation letter dt. 21.1.86. Their lordships of the Supreme Court held that as the withdrawal letter was written before the resignation became effective, the resignation stood withdrawn with the result that the employee continued to be in the service of the Bank. (15). In the instant case, as already stated, the petitioner had withdrawn the resignation before it was to take effect and therefore even if the order Anx. 2 was issued before the petitioner made application Anx. 3 withdrawing the resignation, it would not adversely affect the right of the petitioner to withdraw his resignation. (16). The facts of the case State of Haryana vs. Ramkumar (supra) relied on by Mr. Gupta are very different. In that case the employee had submitted his resignation on 23.4.82 to contest election as a member of the State Legislative Assembly. The resignation was accepted on 18.5.82. The employee contested the election but was defeated. Thereafter he filed an application on 21.5.82 withdraw- ing his resignation but his request was not accepted. Gupta are very different. In that case the employee had submitted his resignation on 23.4.82 to contest election as a member of the State Legislative Assembly. The resignation was accepted on 18.5.82. The employee contested the election but was defeated. Thereafter he filed an application on 21.5.82 withdraw- ing his resignation but his request was not accepted. He filed the writ petition mainly on the ground that in similar circumstances, the employer (State of Haryana) has permitted withdrawal of the resignation. Their lordships of the Supreme Court held that the employee had no right whatsoever and cannot be given the relief wrongly given to the other employees i.e. the benefit of withdrawal of the re- signation. It is obvious, in that case, this controversy has not been decided as to whether the resignation could be withdrawn before it became effective on some future date. It is to be noticed that in that case, the petitioner not only resigned and his resignation was accepted, he even contested the election and thereafter he made an application purporting to withdraw his resignation. Thus, the facts of that case are very different and the ratio of the case does not help the respondent. (17). For the reasons stated above, the writ petition deserves acceptance and it is hereby allowed. The impugned orders dt. 24.4.96 and 30.6.96 are hereby quashed. The petitioner shall be deemed to continue in service even after 30.6.96. He will get all consequential benefits.