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Himachal Pradesh High Court · body

2006 DIGILAW 109 (HP)

LEKH RAM v. STATE OF H. P.

2006-04-21

B.S.CHAUHAN, NARINDER SINGH THAKUR

body2006
JUDGEMENT Narinder Thakur, Vice Chairman: This O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following main reliefs:- "I) That the notification (Annexure-A/5) dated 19.6.2004 whereby it has been conveyed that the resignation of the applicant has been accepted in the facts and the circumstances of the case be quashed. ii) That the respondents be directed to treat the applicant in service in continuity without having any effect of the notification dated 19.6.2004 (Annexure-A/5). iii) That the respondents may be directed to pay the applicant his salary for the month of June, July, August and September, 2004 immediately. iv) That the respondents be directed to produce the whole record for the perusal of this Tribunal." 2. The applicant is aggrieved by the impugned order dated 19.6.2004 (A-5) i whereby his conditional resignation has been accepted. The facts germane to determine the present controversy are in narrow compass as follows:- 3. The applicant tendered his resignation on 15.6.2004 (A-2). By this time he has put in about 30 years of service. The said resignation was however, withdrawn shortly thereafter on 17.6.2004 (A-3). Interestingly the haste shown by the concerned authority in accepting the resignation of the applicant clearly indicates towards the non-application of mind on the part of concerned authority. 4. Be it be noted herewith the resignation dated 15.6.2004 was handed over by the applicant to one Shri Gopal Verma, Legal Assistant in the absence of respondent No.2 who had gone to Vidhan Sabha on that day. Likewise, the with drawl letter dated 17.6.2004 (A-3) was also made to respondent No.2 through the Joint Director (College), Director of Education, Shimla, who in turn had forwarded the same to respondent No.2. Annexure-A/3, clearly bears the endorsement made by Dr. D. C. Katoch. However, the stand taken by respondents in their reply that they have not received with withdrawal letter does not seem to be correct in view of the endorsement made on (A-3). Notwithstanding, if the plea of respondents in this regard is taken to be. correct that he has not received the communication with respect to the withdrawal of conditional resignation, the facts as are born out of the records, the said communication was already in the possession of respondent department may be the same has not actually been seen by respondent No.2 personally. correct that he has not received the communication with respect to the withdrawal of conditional resignation, the facts as are born out of the records, the said communication was already in the possession of respondent department may be the same has not actually been seen by respondent No.2 personally. In this eventuality too, the legal position is that once an incumbent has withdrawn his resignation before being accepted the said resignation cannot be accepted. Any delay in placing the withdrawal letter before the concerned competent authority due to internal mal-functioning g cannot be made a pretext to nullify the settled legal position It is also observed from the record that after withdrawal of resignation the applicant has joined duties on 19.6.2006. 5. We have heard the learned counsel Shri C.N. Singh for the applicant and Shri D.C. Pathik, learned Additional Advocate General for respondents and have gone through their pleadings and we have also gone though the record produced by the respondent State. 6. It is admitted position from the pleadings that the applicant has given the conditional resignation vide Annexure-A/2 which reads as under: - "To The Director of Education, Himachal Pradesh, Sub: Conditional Resignation. Sir, In compliance of your letter No. EDN-II(I) B (6)3/2003 dated 15 May, 2004 I am ready to join in the Estt-I Branch in the post of Senior Assistant (Grade-11 Supdt. As per my clerical seniority) On the other hand I am a senior most Stenographer in the Education Directorate, therefore, I may be attached with the Senior Most Officer and if you are unable to attach me with senior officer as per my seniority, then kindly accept my resignation as I feel very much humiliation/mental harassment." Annexure/A-3 the request for the with drawl of conditional resignation which reads as under: "To The Director of Education. Himachal Pradesh. Sub: Request for the with drawl of conditional Resignation. Sir, Please refer to my conditional resignation dated 15.6.2004 on the subject cited above. In this reference it is requested that due to frustration, I took the above mentioned step. But now I have made my mind to withdrawn this conditional resignation for which I feel sorry and regret the said decision. Therefore, please cancel my conditional resignation and adjust me at any suitable i.e. Directorate of Education (Primary) or NCC Group, Headquarters, Shimla." 7. But now I have made my mind to withdrawn this conditional resignation for which I feel sorry and regret the said decision. Therefore, please cancel my conditional resignation and adjust me at any suitable i.e. Directorate of Education (Primary) or NCC Group, Headquarters, Shimla." 7. The above Annexure-A/3 was received by one Shri D.C. Katoch on 17.6.2004 who has submitted the same to the District of Education with the remarks that "submitted with a request to kindly accept his plea and adjust him suitably". Shri D.C. Katoch, Additional Director was present in person on 12.1.2006 and he has submitted that he has received the application and has also signed the same on 17.6.2004 and forwarded to the Director of Education Himachal Pradesh. 8. The perusal of Annexure/A-2 clearly indicates that the resignation tendered by the applicant is out of frustration caused by humiliation done to him by not adjusting him as per his seniority. It would have been prudent on the part of respondent No.2 to have given personal hearing to the applicant in given facts and circumstances of the case. Respondent No.2 has certainly acted in most hot haste and autocratic manner in accepting the resignation without giving second though. As such, the action of respondent No.2 cannot be sustained. 9. Without deiving into much details the impugned order cannot be sustained in view of the settled position of law. The Honble Apex Court in Union of India vs. Gopal Chandra Misra reported in 1978 (2) SCC 301 has held that in general juristic sense "resigning office" means both the intention to give up or to relinquish the office and concomitant act or its relinquishment. The immediate withdrawl of the applicant is clear indication that he has no intention to resign the office. 10. It is observed that the matter respect to pre-mature retirement are governed by the rules none as H.P. Civil Services (Pre-mature retirement Rules 1976). The rule provides that any Govt. servant can after giving at least three months previous notice in writing the appropriate authority retire from service on completion of 30 years of qualifying service or attaining the age of 55 years. As such the resignation so tendered by the applicant was to take effect after lapse of three months. The rule provides that any Govt. servant can after giving at least three months previous notice in writing the appropriate authority retire from service on completion of 30 years of qualifying service or attaining the age of 55 years. As such the resignation so tendered by the applicant was to take effect after lapse of three months. As per the settled legal position, when a resignation is to take effect from future or prospective date if the same is withdrawn before that date, the resignation is tendered nullified. The Honble Apex Court has already laid down in this regard in a case titled as Union of India vs. Gopal Chandra Misra (supra) PNB vs. P.K. Mittal reported in 1989 (2) SLJ. 1. 11. In view of the foregoing the present Original Application is allowed and tire impugned order Anenxure-A/5 is quashed. As a result the applicant will be entitled to the all the consequential benefits. Respondents are directed to implement these orders within two months from the date of this order, failing which the applicant shall be entitled to the interest on arrears @ 10% per annum. With these aforesaid observation the present Original Application stands finally disposed of.