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2010 DIGILAW 101 (ORI)

State of Orissa v. Jirimiya Prasad Nanda

2010-02-18

B.K.NAYAK, B.P.DAS

body2010
JUDGMENT B.P. DAS, J. — This writ petition has been filed by the State with a prayer to quash the judgment dated 20.6.2001 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No.33 of 1996 under Annexure-3. 2. The brief fact, as delineated in the writ application, tends to reveal that the opposite party while working as a Writer Constable in Bolangir Police District his case was not considered for promotion despite his representation to the authorities, for which the opposite party vide letter dated 10.10.1980 tendered his resignation to the Superintendent of Police, Bolangir and requested him to accept his resignation. The resignation of the opposite party was accepted on 24.10.1980. Thereafter on 5.11.1980, the opposite party made a representation to the In¬spector General of Police requesting him to restore him back in his service, which was refused by the authorities. Against the denial/refusal of the authorities to restore him in service, the opposite party approached the Tribunal in O.A. No.33 of 1996. Before the Tribunal, the opposite party took the aid of the provisions of Section-9 of the Police Act, 1861 and advanced an argument that he had withdrawn his resignation prior to expiry of two months and as such he should have been restored to service. The opposite party also alleged that the acceptance of his resig¬nation before expiry of two months period was illegal as it violated the mandate of Section-9 of the Police Act. 3. The Tribunal after hearing learned counsel for the parties and relying upon the judgment of the apex Court in the case of Punjab National Bank v. P.K. Mittal, AIR 1989 SC 1083 , and the decision of this Court in the case of Satya Sundar Nayak & Kumuda Ranjan Mahaduk v. Industrial Development Corporation, 86 (1998) CLT 546, vide judgment dated 20.6.2001 allowed the Original Application holding that the acceptance of resignation was illegal in view of the principles enunciated in the aforesaid cases. The relevant portion of the judgment of Satya Sundar Nayak (supra), which has been relied upon by the Tribunal and quoted in paragraph-10 of its judgment, is also quoted herein below :- (i) In absence of a legal, contractual or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective and it becomes effective when it operates to terminate the employment or office tenure of the resignor. (ii) Normally, the tender of resignation becomes effective and the service or office-tenure of the resignor is terminated when it is accepted by the competent authority. (iii) If resignation of an employee was to take effect on a subsequent date and withdrawal was long before that date, accept¬ance of resignation is illegal. If in the resignation letter it is stated that the letter may be taken as a notice for the re¬quired period, by waiving that period of notice resignation cannot be accepted. 4. Learned counsel for the State submits that the ratio decidendi in the case of Punjab National Bank (supra) and Satya Sundar Nayak (supra) is absolutely not applicable to the facts and circumstances of this case because the opposite party here is a member of the Police Force and is guided by the provisions of the Police Act. For the shake of convenience, it is profitable to quote herein below Section-9 of the Police Act. “9- Police-officers not to resign without leave or two months notice - No police-officer shall be at liberty to withdraw himself from the duties of his office unless expressly allowed to do so by the District Superintendent or by some other officer authorized to grant such permission, or without the leave of the District Superintendent, to resign his office unless he shall have given to his superior officer notice in writing, for a period of not less than two months of his intention to resign.” 5. A bare reading of the aforesaid provision would go to show that the District Superintendent of Police has been empow¬ered not to allow a Police officer of a disciplined service to leave the Force at his own sweet will meaning by a letter of resignation. The mandate of the provision is that the officer shall not be allowed to withdraw himself from the duties unless expressly allowed to do so by the District Superintendent of Police or unless he has given not less than two months notice of his intention to resign. 6. There is no provision under the aforesaid section that the employer is bound to wait for two months to accept the letter of resignation. In the present case, the letter of resignation of the opposite party is enclosed to the Original Application, which is annexed to the writ petition as Annexure-1. 6. There is no provision under the aforesaid section that the employer is bound to wait for two months to accept the letter of resignation. In the present case, the letter of resignation of the opposite party is enclosed to the Original Application, which is annexed to the writ petition as Annexure-1. In paragraph-12 of the said letter of resignation, it has been indicated as thus :- “That I am a scheduled caste candidate for which due privilege would have been given to me according to law framed by the Government as per the Development programme for S.C. and S.T. as per action 10.11.12 and the Orissa Reservation of vacancy in posts and services for S.C. and S.T. Act, 1975. But I am debarred from the above Development programme meant for uplifting the condition of S.C. and S.T. and as such, I presume that law framed by the Government for Development programme of the purpose is only in black and white. I am refrained from the privilege so also the general privilege for which I am naturally depressed. This is for your favour of information and necessary action. Please treat this resignation on condition and protest of two months notice.” So, after the resignation letter was received by the employ¬er, the employer accepted the same on 24.10.1980. 7. Let us now examine whether the ratio of the decisions relied upon by the Tribunal in its Judgment is acceptable to the facts of the case at hand. In the case of Punjab National Bank (supra), the relevant regulation is Regulation-20 (2), which reads as thus :- “No officer shall resign from the service of the bank other¬wise than on the expiry of three months from the service on the back of a notice in writing of such resignation.” The aforesaid regulation provides a rider on the employer not to accept the resignation of his employee before expiry of three months. In other words, the resignation of the employee can be accepted only after expiry of the notice period of three months. Here in this case, such a provision is not available in the statute. Hence the conclusion would be that after the resignation is tendered, the authority can accept the same at any time and even within two months. 8. The other decision which has been relied upon is the case of Satya Sundar Nayak (supra). Here in this case, such a provision is not available in the statute. Hence the conclusion would be that after the resignation is tendered, the authority can accept the same at any time and even within two months. 8. The other decision which has been relied upon is the case of Satya Sundar Nayak (supra). In this case this Court was called upon to take a decision regarding the date on which the resigna¬tion would become effective and it was decided that in the absence of any legal, contractual or constitutional bar, a pro¬spective resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or office tenure of the resignor. The principle decided in the above case is no way beneficial to the opposite party. 9. In view of such, the Tribunal has totally proceeded on a wrong premise by relying upon the aforesaid two decisions, which are not applicable to the facts and circumstances of the present case. 10. Looking at the provision of Section-9 of the Police Act, 1861, there is neither any scope for the opposite party to withdraw the resignation after it was accepted nor was there is any scope for the employer to wait for two months to accept the resignation tendered by the employee. 11. For the reasons indicated above, we set aside the judgment dated 20.6.2001 passed by the Tribunal in O.A. No.33 of 1996 (Annexure-3). The writ application is accordingly allowed, but without any order as to costs. B.K. NAYAK, J. I agree. Application allowed.