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2005 DIGILAW 482 (GAU)

Hav. Rohmingliana v. State of Mizoram

2005-06-27

BROJENDRA PRASAD KATAKEY

body2005
JUDGMENT B.P. Katakey, J. 1. By these writ petitions the petitioners have challenged the reinstatement of the private respondents in Mizoram Police Service after acceptance of their resignations from service. As the point involved in both the cases is same, and identical, both were heard together as agreed by the learned Counsel for the parties and taken up for disposal by a common judgment. 2. In W.P.(C) 113/03, the petitioners who are serving as Havildars in Mizoram Police have challenged the order of re-instatement dated 10.2.2003 passed by the Director General of Police, Mizoram reinstating the respondent No. 5 in service as Sub-Inspector of Police, who was discharged from service with effect from 6.1.1988 vide order dated 8.1.1988 on the basis of the resignation submitted by him on 5.1.1988. 3. In W.P(C) 114/03 the petitioners who are serving as Naik in Mizoram Police has challenged the order dated 13.2.2003 passed by the Director of Police Mizoram re-instating the respondent No. 5 as Hayildar who was discharged from service vide order dated 2.12.1987 on the basis of the resignation submitted by him on 24.11.1987. 4. The facts leading to filing of the present writ petitions in brief is as follows : - (I) In W.P(C) 113 of 2003 The respondents No. 5 who was serving as Sub-Inspector in Mizoram Police on 5.1.1988 submitted his resignation from service to the Commandant 1st Bn. MAP Aizawl requesting him to release him from service at the earliest on the ground that he can no longer continue to be in service due to family problem. The Commandant by accepting the resignation vide order dated 8.1.1988 discharged respondent No. 5 from service on his own request with effect from 6.1.1988 and his period of absence from 1.10.1987 to 5.1.1988 was treated as leave without pay. The respondent No. 5 thereafter on 3.7.2000 submitted an application before the Home Minister praying for re-instating him in service with all service benefits including seniority alleging that he was forced to resign from service. The authority thereafter called for a detailed report from the Commandant, pursuant to which vide communication dated 25.8.2000 the Commandant has informed Asstt. The respondent No. 5 thereafter on 3.7.2000 submitted an application before the Home Minister praying for re-instating him in service with all service benefits including seniority alleging that he was forced to resign from service. The authority thereafter called for a detailed report from the Commandant, pursuant to which vide communication dated 25.8.2000 the Commandant has informed Asstt. Inspector General of Police-I about voluntary submission of resignation by the respondent No. 5 on 5.1.1988 and his discharge from service on 6.1.1988.The Director General of Police thereafter vide order dated 10.2.2003 re-instated the petitioner in service with immediate effect by treating the period from 8.1.1988 to the date of joining as on duty for the purpose of pensionary benefits only without any arrear of pay and other allowances thereby revoking the order date 8.1.1988 passed by the Commandant accepting resignation submitted by the respondent No. 5 on 5.1.1988. Hence the present writ petition before this Court filed by the petitioner challenging the said order of reinstatement on the ground that the said order is palpably illegal and has diminished their chances of promotion to the post of Sub-Inspector (Armed Branch). (II) In W.P(C) 114 of 2003 Havildar Khualchunga, respondent No. 5 in Mizoram Police submitted his resignation from service and on the basis of which the Commandant 1st Bn. MAP Aizawl vide order dated 2.12.1987 discharged him from service by accepting the resignation with effect from 24.11.1987. The respondent No. 5 thereafter on 16.1.2001 submitted an application before the Home Minister complaining that the Congress Ministry at that point of time remove him from service on 24.11.1987 and wants to continue in his service and prayed for re-instatement in service. The Deputy secretary vide communication dated 1.2.2001 forwarded the said application to the Director General Police, Mizoram for his comment, which was in turn forwarded to the Commandant 1st Bn. MAP for submission of a detail report vide communication dated 8.2.2001. The Commandant on 28.1.2002 submitted the report to the Asstt. Inspector General of Police-1 on the said application filed by the respondent No. 5 intimating that the respondent No. 5 had voluntarily submitted his resignation, in pursuant to which he was discharged from service on the basis of his own request and not on any political influence. The Commandant on 28.1.2002 submitted the report to the Asstt. Inspector General of Police-1 on the said application filed by the respondent No. 5 intimating that the respondent No. 5 had voluntarily submitted his resignation, in pursuant to which he was discharged from service on the basis of his own request and not on any political influence. It was also mentioned in the said report that at the relevant point of time the Ministry was formed by the Mizo National Front with Pu Laldenga as the Chief Minister of Mizoram and therefore, the allegation of political victimization is not true. The Director General of Police thereafter vide order dated 13.2.2003 re-instated the respondent No. 5 in service as Havildar by treating the period from 24.11.1987 as on duty for the purpose of pensionary benefit only and without any arrear of pay and allowances thereby, revoking the order of discharge from service dated 2.12.1987 passed by the Commandant by accepting the resignation of the respondent No. 5. Hence the present writ petitions by the petitioners, who were serving as Naik, challenging the said order of re-instatement on the ground of the same being illegal and having effect of diminishing the chance of promotion. 5. I have heard Mr. C. Lalramzauva, learned Counsel for the petitioner, Mr. Sailo learned State counsel appearing on behalf of respondents No. 1 to 4, Mr. Vanlalenmawia, learned Counsel appearing on behalf of respondent No. 5 in both the writ petitions. 6. Mr. C. Lalramzauva, learned Counsel for the petitioner has submitted that the respondent No. 5 having submitted his resignation voluntarily, in both the cases and their resignations having being accepted by the authority immediately, they cannot be re-instated in service that too after lapse of more than 12 years, on the basis of an application submitted by the respondent No. 5 which is virtually the application for withdrawal of resignation. According to the learned Counsel once the resignation has been accepted, the relationship of employer and employee between Government and person concerned ceased to exist and therefore there are can not be any question of withdrawing of resignation and re-instatement of petitioner in service. The further submission of learned Counsel is that by the orders of re-instatement in service chances of promotion of the petitioners have been diminished there by adversely effecting the service career of the petitioners. The further submission of learned Counsel is that by the orders of re-instatement in service chances of promotion of the petitioners have been diminished there by adversely effecting the service career of the petitioners. Advancing argument on the point of locus standi, the learned Counsel has submitted that as their chances of promotion have been diminished by the action of the Government in re-instating the respondent No. 5 in service thereby effecting the service career, they have every right to challenge the order of re-instatement of the service of the respondents by accepting the application filed by them which is nothing but an application for withdrawal of the resignation. In any case according to the learned Counsel for the petitioner, the respondents having chosen not to challenge the order of discharge which was passed by the authority by accepting the letters of resignation, for more than 12 years and the respondents having accepted all the dues payable after the discharge, are estopped from raising plea that their resignations were not voluntary. The learned Counsel in support of his contention has placed reliance on the judgment passed by the Apex Court in P. Kasilingam v. P.S.G. College of Technology reported in (1981) I LLJ 358 SC, Lakhi Ram v. State of Haryana and Ors. reported in AIR 1981 SC 1655 , Dr. Prabha Atri, reported in (2003) I LLJ 1123 SC, P. Led v. Union of India and Ors. reported in (2003) II LLJ 164 SC and also a decision of a division bench of this Court in Abdul Khalique Laskar v. All Assam Public Health Employees Association and Ors. reported in 2003 (2) GLT 241. 7. Mr. N. Sailo, the learned state counsel appearing on behalf of the respondent No. 1 to 4 relying on the affidavit-in-oppositions filed on their behalf has submitted that the respondent No. 5 in both the cases were re-instated in service by revoking the orders of discharges from service, which were passed by accepting the letter of resignation, as the Government found that such letters of resignation were not voluntary and injustice was caused to the respondent No. 5. The further submission of the learned state counsel is that the petitioners have no locus standi to challenge re-instatement of the respondents in the service as it has not effected their service career. The further submission of the learned state counsel is that the petitioners have no locus standi to challenge re-instatement of the respondents in the service as it has not effected their service career. According to the learned state counsel as the petitioners in W.P(C) No. 114/03 are not qualified for promotion to the post of Havildar having not completed the mandatory senior grade course they have no locus standi to challenge the reinstatement the respondent No. 5 therein as in no case the petitioners chances of promotion have not been diminished for the re-instatement of the respondent No. 5 as they are not qualified for being considered for promotion. According to the learned State counsel, the Government has issued the order of re-instatement in service in both the cases after taking into account affidavits filed by a retired Inspector of 1st Assam Police Bn. submitted by the respondent No. 5 to the effect that the respondent No. 5 were forced to resign. According to the learned State counsel the Government has every power and authority to re-instate any employee in service by setting aside the order of discharge if the resignation submitted by them is found to be not voluntary and such power can be exercise at any point of time. 8. Mr. Vanlalenmawia, learned Counsel appearing on behalf of respondent No. 5 in both the writ petitions supporting the orders of reinstatement in service has submitted that the petitioners in both the petitions have no locus standi to challenge the said orders of reinstatement. The further submission of the learned Counsel is that since the government after taking into account the affidavits filed by the then Inspector of the 1st Police Bn., who have since been retired from service, found that resignations submitted by them in the year 1987/88 were not voluntary, the Government has rightly re-instated them in service. According to the learned Counsel the scope of judicial review of the order of re-instatement in service by the writ court in exercise of its power under Article 226of the Constitution of India being very limited, which can be exercised only if the order is arbitrary or unjust, this Court shall not interfere with the orders of re-instatement in service as the said orders are neither arbitrary nor unjust. The learned Counsel in support of his contention has placed reliance on the decision of the Apex Court in P. Kesilingam v. P.S.G. College of Technology reported in (1981) I LLJ 358 SC, State of U.P. v. Dharamvir Singh Tyagi and Ors. reported in and also a single bench decision of this Court in M/s. No. 35 Pakaria Min Samabai Samiti Ltd. v. State Assam and Ors. 9. I have considered the submission of the learned Counsel for the parties and also perused the pleadings. It appears from the facts narrated above in that in W.P.(C) No. 113/03 the respondent No. 5 submitted his resignation on 5.1.1988 on the ground of his family problem and the said resignation was accepted by the Commandant with effect from 6.1.1988 and order of discharge was passed on 8.1.1988. Similarly the respondent No. 5 in WP(C) No. 114/03 submitted his resignation which was accepted by the Commandant with effect from 24.11.1987 and accordingly he was also discharged from service vide order dated 2.12.1987. The respondent No. 5 in both cases thereafter did not raised any objection to the release from service on the basis of the resignation submitted by them till 3.7.2000 (in WP(C) No. 113/03) and 16.1.2001 (in WP(C) No. 114/03), when they submitted their applications for reinstatement alleging that the resignations submitted by them more than 12 years back were not voluntary. The authority on receipt of the said applications called for the reports from the Commandant who vide communications dated 25.8.2000 (in WP(C) No. 113/03) and 21.8.2002(in WP(C) No. 114/03) submitted their reports intimating the Asstt. Inspector General of Police-1 that the respondents filed their resignations voluntarily and there was no question of forcible submission of resignation. The most interesting part is that the authority has issued the orders of re-instatement in service on 10.2.2003 (in WP(C) No. 113/03) and on 13.2.2003 (in WP(C) No. 114/03) virtually allowing the respondents to withdraw the resignation which was accepted on 8.1.1988 (in WP(C) No. 113/03) and 2.12.1987 (in WHO No. 114/03) that too on the basis of affidavits filed by a retired Police Inspector of Police to the effect that the resignations submitted by the respondents were forcible and ignoring the reports submitted by the Commandant that there was no forcible resignation and the respondents have willingly left their job by submitting their resignation voluntarily. 10. 10. The authority in passing the order of re-instatement of service has also not assigned any reason. But from the affidavits in opposition filed on their behalf it is evident that the authority has taken their resignation as not voluntary on the basis of application filed by the respondents after lapse of more than 12 years. It also appears from the additional written information filed by the learned Govt. Advocate on 8.6.2005, with a copy to the learned Counsel for the writ petitioner as well as the private respondents, that the private respondent in W.P(C) No. 113/03 has withdrawn the G.P.F amount on 14.2.1989 after acceptance of the resignation, so also the private respondents in W.P(C) 114/03 on 16.8.1988 the amount payable against the Group Insurance Scheme, which were the benefits available to them after acceptance of resignation. The private respondents having accepted the dues in the year 1988-89 cannot subsequently turn around and say that their resignation were forcefully obtained and therefore, there contention in that respect cannot be accepted. 11. The Apex Court in Dr. Prabha Atri (supra) has held that to constitute a resignation it must be unconditional and intending to operate as such. In the instant case the letters of resignation as well as the conduct of the respondents in not challenging the order of discharge for more than 12 years amply shows that their intention was to leave the service and the said resignations were also not conditional. 12. The respondents having resigned from service and the same having being accepted and they having not raised any dispute regarding the voluntariness of such resignation before its acceptance, can riot thereafter turn around, that too after expiry of more than. 12 years and say that their resignations were not voluntary. Since the resignations have been accepted, the relationship of employee and employer between the respondent No. 5 in both the cases and the ceased to exist. The Apex Court in P. Lal (supra) in dealing with a situation where the employee concerned, who submitted the application for voluntary retirement was allowed to withdraw the same by the Government has held that once the request for voluntary retirement is accepted the relationship of employer and employee ceased to exist and hence such request for withdrawal of request for voluntary retirement after its acceptance is not entertainable in the law. In the said case the challenge to Governments order allowing to withdraw the voluntary retirement after acceptance, was made by another employee who was junior to the said person and the Apex Court has held that as the appellant's service career would be effected because of such order of the Government, he can challenge such order as his claim is not based on mere expectations or accidental windfall. 13. In the instant case also as held above the relationship of master and servant ceased to exist when the resignation of the respondents were accepted by the authority and thereafter there is absolutely no scope of withdrawal of such resignation on the plea that the resignations were not voluntary. Moreover, as held above the respondents never at any time challenged the orders discharging them from service on their own request and have filed the applications for re-instatement in service wherein it has been stated that as the MNF came to power their cases should be considered. The Government accordingly obliged the respondents by re-instating them in service. The authority having accepted the resignations of the respondents there is no question of allowing them to withdraw the same that too after more than 12 years, on the ground that such resignation was not voluntary. Moreover, the respondents have also withdrawn all the service benefits after acceptance of their resignations. 14. In P. Kasilingam (supra) the Apex Court relying on Raj Kumar v. Union of India reported in (1970) I LLJ 13 SC has held that the service of a Government servant normally stands terminated from the date on which the letter of resignation was accepted by the appropriate authority, unless there is any law or statutory rule governing condition of service to the contrary. As held above the respondents resignations were accepted by the competent authority and hence it became effective from the date of acceptance. The learned Counsel for the respondent No. 5 has also placed reliance on said decision in P. Kashilingam on the point that the High Court in exercise of its Jurisdiction under Article 226 of the Constitution of India can not enter upon the merit of the controversy by embarking upon an enquiry into the facts as to whether or not the letter of resignation submitted by the appellant was voluntary. In the instant case the facts are different. In the instant case the facts are different. As observed above the respondents No. 5 submitted their resignation in the year 1987 and 1988 which were accepted immediately thereafter and only after lapse of more than 12 years they have questioned their resignation by stating that it was not voluntary. During that long period of more than 12 years they never objected their discharge from service on the basis of their resignation. The High Court definitely in exercise of power under Article 226 of the Constitution of India can not make enquiry about factual situation but in the instant case there is no dispute on the facts. 15. A Constitutional bench of Apex Court in Union of India and Ors. v. Gopal Chandra Misra and Ors. reported in (1978) I LLJ 492 SC while dealing with the provision of Article217(1) of the Constitution of India has dealt with the meaning of 'resignation'. The Apex Court in the said case has held that a complete and effective act of resigning office is, one which severs the link of the resignor with his office and terminates its tenure. It has further been held that in the general juristic sense, the meaning of 'resigning office' is not different. The intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation, although the act of relinquishment may take different forms or assume a unilateral or bilateral character depending on the nature of the office and the conditions governing it. Resigning office necessarily involves relinquishment of the office, which implies cessation or termination of, or cutting asunder from the office. It has further been held that very concept of withdrawal of resignation arises only if the resignation has to be accepted by an employer, because so long as a resignation is not accepted, it remains an incomplete document and totally ineffective. In such circumstances, it is always open to the resignor to withdraw his resignation which has not reached the stage of completion. The resignation send by an employee is not a resignation in the eye of law until accepted by the employer and so long as it is not the effective resignation, there can be no bar to withdraw the same. 16. The resignation send by an employee is not a resignation in the eye of law until accepted by the employer and so long as it is not the effective resignation, there can be no bar to withdraw the same. 16. Relying on the judgment of Gopal Chandra Misra case the Apex court in Nand Keshwar Prasad v. Indian Farmers Fertilizers co-operative Ltd. and Ors. reported in (1998) II LLJ 1008 SC has held that unless controlled by conditions of service or statutory provisions, retirement mentioned in the letter of resignation must take effect from date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date and it is open to the employee concern to withdraw the letter of resignation before the same becomes effective. The Apex Court in the said case has held that as the voluntary resignation was not withdrawn before the date from which the resignation was to take effect, the employee concerned can not be allowed to question the resignation on the ground that the same was obtained from him under threat or coercion. The Apex court has also taken the same view in a recent judgment in State Bank of Patiala v. Phoolpati reported in AIR 2005 SCW 1549 wherein the apex court has held that a complete and effective act of resigning office is one which severs the link of the resignor with his office and terminates its tenure. 17. In State of Uttar Pradesh v. Dharamvir Singh Tyagi and Ors., the Apex Court on the basis of facts of the said case has held that the resignation submitted by the respondents therein was not voluntary but the same was submitted under threat. In view of the factual position of the instant case the said decision is not applicable. In the said case the respondent therein was forced to resign during the period emergency and immediately after lifting the said proclamation of emergency, the application was filed before the authority disclosing his stand that the resignation was not valid as it was taken under threat. In the instant case the situation is otherwise. The respondents No. 5 submitted the resignations in 1987 and 1988 and never objected to acceptance of the same for more than 12 years and have also accepted the dues payable to them. In the instant case the situation is otherwise. The respondents No. 5 submitted the resignations in 1987 and 1988 and never objected to acceptance of the same for more than 12 years and have also accepted the dues payable to them. The learned Counsel for the respondents No. 5 has also placed reliance on a judgment of this Court in M/s. No. 35 Pakaria Min Samabai Samity (supra) regarding the scope of judicial review of an administrative action. According to the learned Counsel since the Government has taken the decision of re-instatement of the respondents by accepting their plea that the resignations were not voluntary, the Writ Court in exercise of its power under Article 226 on the Constitution of India can not interfere with the said order as the authority has the discretion to pass such order. There is no dispute on the proposition of law that the administrative authority can exercise the discretion within its legal limits and statutory power. Such administrative action is not to be interfered with unless it is unreasonable, unjust, arbitrary or illegal. In the instant case after the acceptance of the resignations there is no scope for withdrawal of the same the resignation more so after remaining silent for more than 12 years. In view of the fact and circumstances of the case the decision referred by the learned Counsel for the respondents No. 5 is also not applicable in the instant case. 18. The learned Counsel for the petitioners have also referred to a division bench judgment of this Court in Abdul Khalique Laskar wherein challenge to the decision of the Government in correcting the date of birth of an employee by the employees' association was allowed. 19. Now let me discuss the point of locus standi of the petitioners to challenge the said orders. 20. The learned Counsel for the respondents has submitted that the petitioners have no Locus standi to challenge the said orders of reinstatement in service of the respondents No. 5 passed by the authority. 19. Now let me discuss the point of locus standi of the petitioners to challenge the said orders. 20. The learned Counsel for the respondents has submitted that the petitioners have no Locus standi to challenge the said orders of reinstatement in service of the respondents No. 5 passed by the authority. According to the learned Counsel for the respondents, in WP(C) No. 114/03 as the writ petitioner have not completed mandatory senior grade course to qualify themselves for consideration for promotion to the post of Havildar, they can not challenge the order of re-instatement of the respondent No. 5 as Havildar, as they are not qualified for promotion to the post of Havildar, there is no question of dismissing the chances of promotion because of re-instatement of the respondent No. 5. The learned State counsel has however, not contended in WP(C) 113/03 that the petitioner were not qualified for consideration for promotion to the post of Sub-Inspector. 21. In WP(C) No 113/03 the petitioners have made a categorical statement that they have the requisite qualification for the purpose of consideration for promotion to the post of Sub-Inspector of Mizoram Police Armed Branch and said statement has not been denied by the respondents in the affidavit-in-opposition. Though the official respondents in WP(C) No. 114/03 has made a statement that the petitioners were not qualified for consideration for promotion, in the affidavit-in-reply filed by the petitioners they have categorically stated that the petitioner No. 2 has completed the mandatory senior grade course and is qualified for the purpose of consideration for promotion to the next higher rank, i.e., Havildar. Therefore, it is evident that at least the petitioner No. 2 in WP(C) No. 114/03 and all the petitioners in WP(C) No. 113/03 have their essential qualifications for the purpose of promotion to the next higher rank. 22. The Apex Court in Ajit Singh and Ors. (II) v. State of Punjab and Ors. reported in AIR 1999 SC 3471 has held that the Article 16(1) of the Constitution of India provides every employee otherwise eligible for promotion or who comes within the zone of consideration, a Fundamental right to be considered for promotion. The Apex Court in P. Lal (supra) has also held that an employee can challenged the order allowing another employee to withdraw the voluntary retirement. The Apex Court in P. Lal (supra) has also held that an employee can challenged the order allowing another employee to withdraw the voluntary retirement. In Lakhiram v. State of Haryana and Ors., the Apex Court while dealing with a matter relating to expungement of the adverse remarks of employee has held that the an officers whose chances of promotion are prejudiced by the government action expunging adverse remark from the only confidential report of a co-officer has locus standi to maintain a writ petition under Article 226 of the Constitution of India challenging the expungement of such adverse remark even though made in favour of another person. 23. In the instant case by the re-instatement of the respondents No. 5 in service, the chances of promotion of the petitioners were diminished thereby effecting the service careers of the petitioners and hence they have locus standi to challenge such orders of re-instatement passed by the Government. In fact the writ, petitioners through their association filed the representations before the authority after passing such orders of re-instatement. 24. In view of the above discussion, I am constrained to hold that the orders of re-instatement of the respondent No. 5 in both the cases dated 10.2.2003 and 13.2.2003 are illegal and liable to be set aside, which I accordingly do. 25. The writ petitions are accordingly allowed . No cost. Petition allowed