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2003 DIGILAW 1204 (RAJ)

F. C. I. v. Mangal Sen Agrawal

2003-08-27

N.N.MATHUR, O.P.BISHNOI

body2003
JUDGMENT 1. Admit Issue notice.Mr. M.P. Singhvi waives service of the notice, On the request of the learned counsel for the parties the matter is taken for final disposal. 2. The necessary facts giving rise to the instant appeal are that the respondent Mangel Sen, Agarwal, Assistant Grade III (Accounts) tendered resignation from the service by writing a letter dated 17.12.1984. Under communication dated 15.1.1985, the District Manager forwarded the resignation to the Senior Regional Manager with a recommendation to accept the same. By letter dated 21.2.1985 the appellant was asked to deposit a sum of Rs. 371.85/-. It was also stated therein that resignation shall be accepted only after he deposits the of said amount. The appellant repeatedly asked the respondent to accept his resignation. Ultimately, he submitted a letter dated 25.9.1990 and withdrew the resignation. After a great hassle the resignation was accepted w.e.f. 20.10.1994 by office order dated 7.3.1991. The balance out-standing amount of Rs. 392.05/- was waived off. 3. The appellant challenged the said order of acceptance of resignation by way of writ petition before this Court. The order of accepting the resignation was stayed by the order of this Court dated 30.3.1993. Inspite of interim order the respondent did not report on duty. In view of this fact the interim order was vacated by the order of the learned Single Judge dated 9.9.1999. 4. The learned Single Judge taking guidance from the decision of the Apex Court in Union of India v. Gopal Chandra Misra, reported in AIR 1978 SC 694 and Shambhu Murari Sinha v. Project and Development India Ltd., reported in 2002 AIR SCW 1165 held that in absence of legal, contractual or constitutional bar, a 'prospective' resignation can be withdrawn at any time before it becomes effective and it. becomes effective when it operates to 1 terminate the employment or the office-tenure of the employee. 5. In the opinion of the learned Single Judge, the acceptance of the resignation by office order dated 7.3.1991 was not sustainable as the resignation was withdrawn on 29.5.1990. Consequently, the learned Single s Judge allowed the writ petition and quashed the order of accepting resignation on 7.3.1991. The learned Single Judge directed to treat the respondent on duty w.e.f. 29.5 1990. It is further directed that since 29.5.1990 he will be entitled to all consequential benefits. 6. Consequently, the learned Single s Judge allowed the writ petition and quashed the order of accepting resignation on 7.3.1991. The learned Single Judge directed to treat the respondent on duty w.e.f. 29.5 1990. It is further directed that since 29.5.1990 he will be entitled to all consequential benefits. 6. It is contended by the learned counsel appearing for the Food Corporation of India that since the respondent was on probation, the appellant thought that the services would come to an end automatically, We are unable to agree with the contention of the learned counsel. The department was required to take a conscious decision to not to continue him in service for not satisfactorily completing the period of probation. On the contrary, the appellant is accepted the resignation on 7.3.1991, which shows that he was treated to have continued in service. Thus, in view of the settled legal position of law, the respondent employee was entitled to withdraw the resignation before it was accepted. Thus, we do not find any infirmity in the order of the learned Single Judge so far as it relates to quashing of the order dated 7.3.1991 is concerned. 7. It is next contended by the learned counsel that the respondent will not be entitled to back-wages w.e.f. 29.5.1990 as inspite of interim order of this Court he did not report on duty. In our view the contention deserves to be accepted by applying the principle of "no work no pay." The effect of the stay order was that the order accepting resignation was put in absence. Thus, it was obligatory on his part to report on duty. Thus, the part of the order of the learned Single Judge directing all the consequential benefits since 29 5.1990 deserves to be set-aside. 8. Consequently, this special appeal is partly allowed and we modified and substitute the order of the learned Single Judge as follows:- 1. The order dated 7.3.1991 (Annex. 1) passed by the respondent No. 2 by which the resignation of the respondent was accepted w.e.f. 20.10.1984 is quashed. 2. The appellants are directed to treat the respondent on duty w.e.f. 29.5.1990 but he will be entitled to salary only from the date he has as joined in pursuance of the direction of the learned Single Judge dated 21.5.2002. Appeal partly allowed. *******