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2000 DIGILAW 172 (RAJ)

District & Sessions Judge, Balotra v. Kishan Lal

2000-02-10

BHAGABATI PRASAD BANERJEE, SHIVARAJ V.PATIL

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Honble PRASAD, J.–The present appeal arises out of the decision of a learned Single Judge of this Court dated 24.3.1998 whereby the learned Single Judge was pleased to accept the writ petition filed by the respondent No.1. (2). In the writ petition, the respondent No.1 contested the acceptance of his resignation. On 6.5.1988 the resignation was submitted by the respondent No.1. In his resignation the respondent No.1 expressed that the same should be effective from 16.8.1988. On 24.6.1988 the competent authority drawn proceedings by virtue of which the resignation tendered by the respondent No.1 was accepted. It was further ordered that he will be relieved with effect from 16.8.1988 afternoon. A communication to this effect was sent to the respondent. On 2.7.1988, the respondent received this communication. 16th August was declared as Holiday. Therefore, on 17.8.1988 the respondent No.1 was relieved. After receiving communication of acceptance of the resignation on 2.7.1988, the respondent No.1 on 11.7.1988 addressed a letter (Annexure 3). In this application the respondent No.1 has said as under: fouez fuosnu gS fd esjk fnukad 16-8-88 dk uksfVl ckcr R;kx i= fnukad 31-12-88 rd vkxs c<+kus dh d`ik djkosaA** (3). This communication of the respondent No.1 was rejected vide Annex. 4. Consequently came the relieving of the respondent No.1 on 17.8.1988. After all this happened, on 10.9.1988 the respondent No.1 sent another request produced alongwith the writ petition as Annex.7. In this communication the respondent No.1 desired that he withdraws his resignation. (4). Learned Single Judge after considering the case of the respondent No.1 came to the conclusion that in view of the law laid down by the Honble Supreme Court in Union of India vs. Balram Gupta (1), Raj Kumar vs. U.O.I. (2) and Punjab National Bank vs. P.K. Mittal (3) the resignation could only come into effect from the date the employee had mentioned and even if it was accepted prior to the date of effectivity, the employee had a right to withdraw it and in this light allowed the writ petition and ordered reinstatement of the respondent No.1. (5). The appellant has contested the decision. It has been submitted that the respondent No.1 gave an unequivocal resignation vide Annex. 2. In Annex. 3 he has prayed that the notice regarding resignation be extended upto 31.12.1988. He has not expressed the intention of withdrawing the resignation. (5). The appellant has contested the decision. It has been submitted that the respondent No.1 gave an unequivocal resignation vide Annex. 2. In Annex. 3 he has prayed that the notice regarding resignation be extended upto 31.12.1988. He has not expressed the intention of withdrawing the resignation. What has been expressed is that the date of effectivity of the resignation should be changed to 31.12.1988. (6). Learned counsel for the appellant has further stated that the wish of the respondent No.1 was to get the notice date extended. It does not in any way tantamount to withdrawal of the resignation. The respondent No.1 had to withdraw the resignation as laid down by the Honble Supreme Court. Choosing to change its date of effectivity at will is not inconsonance with the law laid down by the Supreme Court. The State of Rajasthan in its administrative decision has held as under:- ``(3) Attention is invited to the Government of Rajasthans Decision No.1 which gives discretion to the competent authority to accept resignation. Normally it is not in the interest of Government to retain the services of an unwilling Government servant and so resignation from service should be accepted as a general rule except in the circumstances mentioned in the aforesaid order. (7). The State has reviewed the case of unwilling Government servants. The case of the respondent No.1 vide Annex. 2 is clear that he is unwilling to continue and even in Annex. 3 there was no intention expressed by the respondent No.1 to continue but he only wanted that the notice period should be extended. That did not change the intention of the respondent No.1 to be a positive one to resign. He continued to be an unwilling employee. Under such circumstances if the resignation was accepted then no wrong was committed. (8). What is significant in the conduct of the respondent No.1. He was relieved on 17.8.1988 and the real withdrawal of the resignation was sought by him only on 10.9.1988. Nearly about 3 weeks after the relieving. In these circumstances also it can be seen that until after relieving he was unwilling. It was only in retrospect that he decided to withdraw the resignation. He was relieved on 17.8.1988 and the real withdrawal of the resignation was sought by him only on 10.9.1988. Nearly about 3 weeks after the relieving. In these circumstances also it can be seen that until after relieving he was unwilling. It was only in retrospect that he decided to withdraw the resignation. Such waivering and uncertain employees cannot serve the cause of the Government and thus such unwilling employee does not serve any good to the Government therefore no wrong has been committed in not permitting him to continue in service. (9). Learned counsel for the respondent No.1 supported the judgment of the learned Single Judge and has contended that latent intent of respondent No.1 should be read in Annex. 3 to the effect that he wanted to withdraw his resignation. This extension was only a camouflage to that. Subsequently he has written for withdrawal. All these dates are prior in time and thus, he has expressed his intention to continue in service. He has placed reliance on a decision of the Honble Supreme Court rendered in the case of J.N. Srivastava vs. Union of India and another (4), and has stressed that the appellant should be continued in service. (10). He has further stated that the respondent No.1 has continued in service for 18 years. After relieving under the orders of the Court he had served. Therefore, he should not be now turned out of the service. (11). We have considered the rival submissions of the learned counsel for the parties. (12). The law on the point of withdrawal of resignation is clear and unambiguous. An employee has a right to withdraw his resignation before the same comes into effect. In the instant case, the employee has given his withdrawal on 10.9.1988. This date was three weeks latter than his relieving i.e. 17.8.1988. Obviously, it cannot be said that the resignation was withdrawn before it became effective. (13). Another fact which deserves notice is Annex. 2. By this letter, the respondent employee had asked for the correction of the date of notice. There was no whisper in this notice that the employee had any intent of withdrawing his resignation. What is permissible in law is the withdrawal. The employee has only desired that the notice period be extended. In the circumstances, he confined to be an unwilling employee. There was no whisper in this notice that the employee had any intent of withdrawing his resignation. What is permissible in law is the withdrawal. The employee has only desired that the notice period be extended. In the circumstances, he confined to be an unwilling employee. In this background, it cannot be said that the authority accepting the resignation has committed any illegality. An unwilling employee has to be dealt with appropriately. In view of the State Government decision, such course has been adopted by the authorities. (14). Consequently, the appeal deserves to be allowed. The judgment of the learned Single Judge is set aside, with the result the writ petition filed by the respondent/petitioner before the learned Single Judge is dismissed.