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Madhya Pradesh High Court · body

2003 DIGILAW 1081 (MP)

Brij Bhooshan Mishra v. State of M. P.

2003-09-12

S.P.KHARE

body2003
JUDGMENT This is a writ petition under Article 226 of the Constitution of India for quashing the order dated 25.10.1996 (Annexure P-5) by which the resignation of the petitioner has been accepted. It is not in dispute that the petitioner was appointed as a Lower Division Clerk by order dated 22.4.1995 (Annexure P-2). Clause (6) of the appointment order provided that either party would be entitled to terminate the service by giving one month's notice or one month's salary in lieu of notice. The petitioner submitted his resignation letter dated 5.10.1996. It was accepted by the impugned order dated 25.10.1996. The petitioner's case is that the letter of his resignation was in fact a notice of one month as required by Clause (6) of the appointment order and, therefore, it could not be accepted before the expiry of the period of 30 days. The petitioner submitted his representation dated 2.11.1996 but it was rejected. His subsequent representation was rejected by the High Court also on its administrative side. The respondents' case is that the resignation of the petitioner has been validly accepted. It has been pointed out that the petitioner was virtually carrying on a medical shop during the employment. The learned counsel for both the sides have been heard. The submission of the petitioner is that he did not actually send his resignation letter but he gave it to Naib Nazir who by playing fraud upon him sent it to the appointing authority. The Naib Nazir has been impleaded as respondent No.3 and he has denied that he played any fraud upon the petitioner. This question is beyond purview of the petition under Article 226 of the Constitution. The disputed questions of fact cannot be examined in the writ petition. The argument of the learned counsel for the petitioner that the resignation letter was in fact a notice of 30 days as envisaged in the appointment letter is not acceptable. The resignation letter is marked as Annexure P-4. In this letter it is clearly mentioned that the petitioner is resigning from his post. There is no mention that he is giving notice of 30 days as stipulated in the appointment letter. This was resignation in praesenti. It was not a prospective resignation which was to take effect after sometime. The letter (Annexure P-4) does not state that it is a prospective resignation. There is no mention that he is giving notice of 30 days as stipulated in the appointment letter. This was resignation in praesenti. It was not a prospective resignation which was to take effect after sometime. The letter (Annexure P-4) does not state that it is a prospective resignation. Therefore, the acceptance of this resignation by the impugned order dated 25.10.1996 (Annexure P-5) cannot be said to be contrary to any law. In Moti Ram v. Param Dev AIR 1993 SC 1662 it has been pointed out in para 17 that it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. It can be withdrawn before its acceptance. The learned counsel for the petitioner has cited two decisions of the Supreme Court in Shambhu Murari Sinha v. Project and Development India 2000(II) MPWN 161 = (2000) 5 SCC 62 and IN. Srivastava v. Union of India (1998) 9 SCC 559 . The first case related to voluntary retirement. That was not a case of resignation. It is observed in that decision that the resignation can be withdrawn before the "effective date". The second case also related to voluntary retirement. In this case also it has been held that the letter of voluntary retirement can be withdrawn before the date of retirement is reached. These decisions are inapplicable to the present case. The petition is dismissed.