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2004 DIGILAW 789 (MP)

VIJAY SHANKAR TRIPATHI v. PROJECT OFFICER

2004-09-24

A.K.SHRIVASTAVA, S.P.KHARE

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A. K. SHRIVASTAVA, J. ( 1 ) THIS appeal has been preferred by appellant Vijay Shankar against the impugned order passed by learned single Judge dismissing, his writ petition and affirming the order passed by the Central Government industrial Tribunal-cum-Labour Court (in short the Tribunal) dated August 26, 1998. The appellant was appointed on the post of "auto helper Category-II" in the year 1984. It is admitted by the parties that the petitioner submitted his resignation vide letter dated september 10, 1991 (Annexurea/1 ). On going through the resignation letter, it is found that a prayer to accept it immediately was made. According to appellant he did submit the application to withdraw the resignation vide annexure A-2 on the same day i. e. September 10, 1991. On going through the withdrawal letter, it is gathered that in a heat of passion, he did submit an application of resignation. However on the same day, he requested not to accept the resignation, by submitting application of withdrawal. There is a note at the bottom of Annexure A-2 that it was received on September 11, 1991. The contention of appellant before the Tribunal as well as before the writ Court, was that since before the acceptance of the resignation letter, he withdrew the resignation on (sic) September 10, 1991, therefore the resignation could not have been accepted on September 11, 1991. ( 2 ) THE other contention which was raised on behalf of appellant before the Tribunal as well as before the writ Court was that in view of clause 24. 3 of the Standing Orders, no workman is permitted to leave the service of the employer unless notice in writing is given of one month in the case of monthly paid workman and two weeks in the case of weekly paid workman. The attention was also invited to the proviso to clause 24. 3 which empowers the employer to relax this condition but subject to the payment of cash in lieu of such notice. The attention was also invited to the proviso to clause 24. 3 which empowers the employer to relax this condition but subject to the payment of cash in lieu of such notice. It was further proponed before the writ Court as well as before the Tribunal that the certificate issued by Superintendent of respondent certifying that petitioner did work on september 10, 1991 as well as on September 11, 1991 and therefore, if the resignation was accepted on September 10, 1991, how appellant was allowed to work on September 11, 1991 and therefore it cannot be said that the resignation was accepted on September 10, 1991. ( 3 ) COMBATING the aforesaid submissions, on behalf of respondents, a return was submitted in the writ Court in which it was pleaded that appellant was working as a labourer and he had submitted his resignation on account of his personal difficulties with a request for its immediate acceptance. The resignation of the appellant was accepted by respondent on September 10, 1991 and therefore, the request of withdrawal of resignation which was made on the next day i. e. September 11, 1991 was without any sanguinity. It was submitted in the writ Court on behalf of respondent that clause 32. 2 of the standing Orders gives right to the employer to accept the resignation with immediate effect. According to case of respondents since resignation was accepted on September 10, 1991, therefore, the appellant had no case and therefore he is not entitled for any relief. ( 4 ) THE Tribunal as well as the writ Court did find the merit in the contentions raised by respondent. The writ Court did not accept the contention of appellant and held that clause 24. 3 of the Standing Orders is not applicable in his case and on the other hand clause 32. 1 is applicable. The case of Punjab National Bank v. P. K. Mittal, AIR 1989 SC 1083 : 1989 Supp (2) SCC 175 : 1989-I-LLJ- 368 and Ravinder singh v. State of M. P. and others 1995 (2) SLR 424, were not found to be applicable by learned single Judge. 1 is applicable. The case of Punjab National Bank v. P. K. Mittal, AIR 1989 SC 1083 : 1989 Supp (2) SCC 175 : 1989-I-LLJ- 368 and Ravinder singh v. State of M. P. and others 1995 (2) SLR 424, were not found to be applicable by learned single Judge. The learned single judge by placing reliance on the decision of the Supreme court in the case of J. K. Cotton Spinning and weaving Mills Company Ltd. v. State of U. P and others AIR 1990 SC 1808 : 1990 (4) SCC 27 : 1991-I-LLJ-39 held that appellant had no case and dismissed the writ petition. Hence, this appeal. ( 5 ) IN this appeal Shri Kishore Shrivastava, learned counsel for the appellant has contended that the Tribunal as well as the writ Court committed, error in holding that the resignation was accepted on September 10, 1991 before the application of withdrawal of resignation was submitted. It has been further contended that application of withdrawal of resignation was submitted on September 10, 1991 before the resignation could be accepted. It has been further putforth by Shri. Shrivastava that indeed Annexure A-1 cannot be said to be a resignation letter in its stricto sensu. To. buttress his contention, reliance has been placed on the decision of the Supreme Court in the case of Dr. Prabha Atri v. State of U. P. and others AIR 2003 SC 534 : 2003 (1) SCC 701 : 2003-I-LLJ-1123. The contention is that the resignation letter must be unconditional and intending to operate as such. The learned counsel also placed reliance on Union of India v. Wing Commander T. Parthasarathy AIR 2001 SC 158 : 2001 (1) SCC 158 and Shambhu murari v. Project and Development India and another AIR 2000 SC 2473 : 2000 (5) SCC 621 : 2000-II-LLJ-935. The other two decisions p. K. Mittal (supra) and Ravindra Singh (supra)which were also relied by appellant in the writ court, are pressed. ( 6 ) REFUTING the submission of learned counsel for the appellant, Shri Anoop Nair, learned counsel for the respondent argued in support of the impugned order and has contended that the withdrawal of resignation carries no meaning since it was submitted after the acceptance of the resignation letter. ( 7 ) AFTER having heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed. ( 7 ) AFTER having heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed. ( 8 ) THE contention of appellant in annexure A-l which is his resignation letter is that illegal acts of the antisocial elements (Gundas) of the colony who had taken shelter of Ismile driver and through them Ismile happens to sell illegal liquor for which several times the inhabitants of the colony made oral complaint but no action was taken on it. In the resignation letter he has also submitted that project Officer happens to interfere in his duties and he is being harassed by him. It has been further contended in the resignation letter that he has been told by these persons that whoever would try to create hindrance in the sale of illegal liquor, he would face dire consequence. The appellant was also threatened by the Gundas elements and the project Officer who is also carrying on the business of illegal liquor in the colony. On these grounds he is abandoning his services because he does not want to die and therefore his account be cleared earliest. ( 9 ) WE have given our bestowed consideration to the said letter and according to us the same is not unconditional and some riders have been put in it. Since the resignation letter is not unconditional, therefore, it cannot be equated with the resignation. To constitute a resignation, it must be unconditional and with an intention to operate as such. In the case of prabha Atri (supra), the Supreme Court has shown sufficient light in this regard in para 10 which we would like to quote as under 2003-I-LLJ-1123 at p. 1126:"10. We have carefully considered the submissions of the learned counsel appearing, on either side, in the light of the materials and principles, noticed supra. This is not a case where it is required to consider as to whether the relinquishment envisaged under the rules and conditions of service is unilateral or bilateral in character but whether the letter dated January 9, 1999 could be treated or held to be a letter of resignation or relinquishment of the office, so as to sever her services once and for all. The letter cannot be construed, in our view, to convey any spontaneous intention to give-up or relinquish her office accompanied by any act of relinquishment. The letter cannot be construed, in our view, to convey any spontaneous intention to give-up or relinquish her office accompanied by any act of relinquishment. To constitute a "resignation", it must be unconditional and with an intention to operate as such. At best, as observed by this court in the decision in P. K. Ramachandra iyer it may amount to a threatened offer more on account of exasperation, to resign on account of a feeling of frustration born out of an idea that she was being harassed unnecessarily but not, at any rate, amounting to a resignation, actual and simple. The appellant had put in about two decades of service in the hospital, that she was placed under suspension and exposed to disciplinary proceedings and proposed domestic enquiry and she had certain benefits flowing to her benefit, if she resigns but yet the letter dated January 9, 1999 does not seek for any of those things to be settled or the disciplinary proceedings being scrapped as a sequel to her the context, tenor of language used and the purport as well as the remaining portion of the letter indicating the circumstances in which it was written. That the management of the hospital took up such action forthwith, as a result of acceptance of the resignation is not of much significance in ascertaining the true or real intention of the letter written by the appellant on January 9, 1999. Consequently, it appears to be reasonable to view that as in the case reported in P. K. Ramachandra Iyer the respondents have seized an opportunity to get rid of the appellant the moment they got the letter dated January 9, 1999, without due or proper consideration of the matter in a right perspective on understanding of the contents thereof. The High Court also seems to have completely lost sight of these vital aspects in rejecting the writ petition. " ( 10 ) IF the ratio decidendi of the case of prabha Atri (supra) is tested on the touchstone of the present factual scenario, it is revealed that the resignation letter is conditional one and is not unconditional. Further, there is no intention to operate it as such and therefore it cannot be construed as a resignation as held by the Apex Court in the case of Prabha Atri (supra ). Further, there is no intention to operate it as such and therefore it cannot be construed as a resignation as held by the Apex Court in the case of Prabha Atri (supra ). On going through Annexure A-4 which is a letter of acceptance, it is revealed that at the specified place date September 11, 1991 has been typed however, below the signature of Project Officer, date which is hand-written can be read 10 as well as september 11, 1991. It be seen that on the specific place where the date is to be written, date September 11, 1991 is typed which would mean that it was typed on September 111 1991. Project Officer, who had signed has not corrected the date. Even otherwise on going through Annexure A-3 which is a certificate issued by respondent, it is gathered that appellant did work upto September 10, 1991 as well as on September 11, 1991. This further corroborates the contention of learned counsel for the appellant that before the resignation could be accepted it was withdrawn and with a mala fide attitude the Project Officer deliberately wrote the date below his signature which could be read as 10 as well as 11. Another important feature is that if the resignation was accepted on September 10, 1991 then how appellant was allowed to work on 10 as well as on September 11, 1991. On going through the certificate issued by superintendent of respondent, it is clear that the appellant had worked on 10 as well as on september 11, 1991, which would clearly mean that the resignation was never accepted on September 10, 1991. ( 11 ) SINCE there is overwhelming material in order to, hold that the resignation was withdrawn earlier to its acceptance, according to us, the acceptance of resignation letter by respondent after its withdrawal, carries no meaning in the eye of law. ( 12 ) IN the result, the appeal succeeds and is hereby allowed the order passed by learned single Judge in Writ Petition No. 5113/1999 dated November 1, 2002 and the order passed by the Tribunal dated August 26, 1998 are hereby set aside. The respondents are directed to reinstate the petitioner in service with 30% back wages. Looking to facts and circumstances of the case, the parties are directed to bear their own costs. .