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2010 DIGILAW 358 (JK)

Gh. Ali Sheikh v. State Of J&K

2010-06-05

Hakim Imtiyaz Hussain, Hasnain Massodi

body2010
Per Massodi, J. 1. The Letters Patent Appeal is directed against judgment and order dated 18th March 2009 in SWP No.242/1997 whereby the Writ Court has dismissed appellant’s writ petition. 2. The background facts are as under:-. The appellant was engaged as Daily wager in Food & Supplies Department somewhere in 1979. The appellant continued as such till 1983, when the appellant because of his absence from duty on account of indisposition was disbanded. However, the appellant was reengaged vide order No.Dfsk/Adm/Rtg/223/829 dated 14.1.1984. The intervening period was treated as period without wages. The services of appellant were later regularized vide order No.65-DFSK of 1994 dated 24.1.1994 and the appellant appointed as Watchman in the pay scale of 750-940. The appellant continued to serve the respondents till the appellant lost his father and was taken ill in June 1994, whereafter the appellant submitted his resignation from the post. The appellant’s resignation was accepted by respondent No.3 i.e., Deputy Director (Adm) Food & Supplies Department, Kashmir, Srinagar w.e.f. 12.9.1994. The order, in this regard, was made on 19th of October 1994. The appellant after his recovery, felt persuaded to give a second look to his earlier decision of resignation from the post, the appellant held. The appellant had a change of mind and on 04th November 1995, made an application to respondent No.2, signifying his intention to withdraw resignation and request respondent No.2 to revoke order, accepting appellant’s resignation. The appellant requested that the period of his absence from duty after resignation was tendered, be treated as leave of whatever kind due to the appellant. The appellant in his representation dated 4th January 1995, highlighted his personal and family problems and insisted that he had a huge family to look after and to have no source of sustenance. The representation filed by the appellant was forwarded by respondent No.3 to respondent No.4 vide his letter No.Dfsk/Adm/PF/44/24-A dated 14.01.1995. The respondent No.4 in turn deputed Supervisor for on spot inquiry and the Supervisor, on visit to the spot, found substance in the representation and joined the appellant in requesting respondent No.4 to accept representation on humanitarian grounds so that appellant was in a position to sustain himself and his family. Respondent No.4 vide No.FS/ADBla/ 95/2082 dated 26.4.1995, informed the respondent No.3 that financial position of the appellant called for a humanitarian and compassionate look at the representation. Respondent No.4 vide No.FS/ADBla/ 95/2082 dated 26.4.1995, informed the respondent No.3 that financial position of the appellant called for a humanitarian and compassionate look at the representation. It was also recommended that the period of absence be treated as leave of whatever land due. The respondent No.2 on receipt of the communication from respondent No.4 in turn addressed letter No.Dfsk/Adm/PF/44/24 dated 12.9.1995 to respondent No.1, recommending the case set up by the appellant. The respondent No.1, after asking for some information touching the matter and examining the matter in totality, returned the matter to respondent No.2, informing respondent No.2 that the matter fell within the powers of respondent No.2. The matter after a few more communication were exchanged between the respondents, was closed by respondent No.2 when the respondent No.2 vide No.DFSK/Adm/Pf/44/24 dated 01.11.1996, finally rejected the representation. 3. The appellant aggrieved of order dated 19th October 1994, whereby his resignation was accepted by respondent No.3 and order dated 01.11.1996, whereby his subsequent representation, asking for revocation of resignation, was rejected, filed a writ petition SWP No.2428/1997, before this Court. 4. The appellant, on the grounds set out in the petition, prayed for following reliefs: i) by issuance of an appropriate writ, order or direction including one in the nature of certiorari the order No.606 of DFSK of 1994 dated 19.10.1994 and order No.DFSK/Adm/PF/44-24 dated 1.11.1996 issued by respondent No.2 be quashed; and ii) by issuance of an appropriate writ, order or direction including one in the nature of mandamus, respondents be directed to take back the petitioner in service and after treating the period of his absence as leave whichever kind be due to him, they be directed to give him all the consequential benefits as he had never tendered any resignation or same had been accepted by respd.no.3 at any point of time." 5. The Writ Court, vide order dated 18th March 2009, dismissed writ petition. The Writ Court, vide order dated 18th March 2009, dismissed writ petition. The appellant calls in question the Writ Court judgment and order dated 18th March 2009 on the following grounds:- a) That as the resignation tendered by the appellant was accepted by an authority other than appellant’s appointing authority, its acceptance was of no legal consequence and only option left with the appellant was to make a representation as was done by the appellant; that the finding to the contrary recorded by the Writ Court is bad in law, requires to be set-aside; b) That an employee tendering resignation is within his rights to withdraw the resignation before such employee is relieved and as the appellant was never relieved by the respondents, the appellant had a right to withdraw his resignation; that the Writ court did not at all deal with this aspect of the case and committed an error of jurisdiction. c) That as the respondents relied upon Central Resignation Rules, it was necessary for the Writ Court to consider the matter in the context of rules relied upon by the respondents; That the Central Resignation Rules press into service by the respondents, according to the appellant, provide for withdrawal of resignation within 90 days from the date of resignation, the Writ court, has not gone into the true import of Central Resignation Rules. 6. We have gone through memorandum of appeal as also the Writ record. We have heard learned counsel for the parties at length. 7. The appellant edificed his petition before the Writ court primarily on the following grounds: 1. That the appellant after his disbandment from service and his appointment as Watchman in the grade o 750-940 discharged his duties, till June 1994 the appellant lost his father, who left behind a huge family without any means of sustenance; that the tragedy that had be fallen the appellant due to untimely demise of his father pushed the appellant into the state of acute mental depression resulting in lack of interest in normal and day to day work; that it was under acute mental depression that the appellant informed his officers that the appellant was unable to attend his duties and conveyed his decision to leave the job; 2. That the respondent without making an inquiry to know whether the resignation was voluntary or made under any circumstances, which would indicate that the resignation was not made by the appellant of his free volition, rushed to accept the resignation; That the officer to whom the application was addressed was under duty to satisfy himself that the resignation was voluntary and free from any element of coercion, fraud, deceit or undue influence; 3. That the respondent No.3 was not competent to accept resignation inasmuch as the respondent No.3 was not the appointing authority of the appellant; that the acceptance of resignation by the respondent No.3 thus was of no legal consequence and the resignation having not been accepted in accordance with the rules. The appellant was to be taken to have withdrawn the resignation before it met acceptance; 4. That the application addressed by the appellant after the appellant Lost his father, was erroneously treated as resignation by the respondents; that the application only expressed inability of the appellant to attend his duty because of the tragedy that had be fallen the appellant and the unfortunate situation in which the appellant had got trapped. 5. That there was enough material before the respondents to conclude even without going for a formal inquiry that the resignation was not voluntary but depicted the state of helplessness and acute mental depression to which the appellant had been pushed by the unfortunate and tragic circumstances. 8. The Writ court dismissed the petition on the sole ground that as the resignation tendered by the appellant was accepted vide order No.606 Dfsk of 1994 dated 19.10.1994, the appellant was stripped off on any right to withdraw resignation. The Writ court was of the view that an employee, who has resigned and whose resignation has been accepted, cannot withdraw the resignation. The Writ court spotted and spelt out the main issue involved in the petition in following words:- "The core question involved in the writ petition is whether resignation tendered by can be withdrawn after its acceptance by the authority concerned and whether the order of acceptance of resignation can be revoked by the competent authority?" 9. The Writ court spotted and spelt out the main issue involved in the petition in following words:- "The core question involved in the writ petition is whether resignation tendered by can be withdrawn after its acceptance by the authority concerned and whether the order of acceptance of resignation can be revoked by the competent authority?" 9. The Writ court thereafter noticed law laid down in Raj Kumar v. Union of India, AIR 1969 SC 180 ; Mohammad Amin Pukhta v. State of J&K, 1997 SLJ 205; Shambhu Murari Sinha V. Project and Development India, AIR 2000 SC 2473 ; North Zone Cultural Centre v. Vedpathi Dinesh Kumar, AIR 2003 SC 2719 , and held the law so laid down to be squarely applicable to the facts of the appellant’s case and proceeded to dismiss the writ petition. 10. The Writ, court while dealing with the writ petition appears to have only dealt with fringe areas and left the core issues unattended. The Writ court failed to appreciate that main plank of the appellant’s case was that the application addressed by the appellant to the respondents merely gave vent to his plight and miserable condition and did not signify an intention to quit the job; that the application even if treated as resignation was not accepted by the competent authority and that the resignation not having been accepted by the competent authority, it was wide open to the appellant to withdraw the resignation, which the appellant had done while addressing communication dated 4th January 1995, to the respondents. It is not required to be emphasized that resignation can be withdrawn by the government servant before it is accepted. The resignation cannot be taken to have been accepted unless and until it is accepted by an authority competent to accept it. Conversely, the government servant who has tendered resignation can withdraw the resignation before it is accepted by an authority competent to accept the resignation. 11. The real question before the Writ court thus was whether the respondent No.3 was competent to accept resignation and only after replying the question, it was open to the Writ Court to take the resignation as having been accepted and hold that all doors were shut for the appellant to reopen the matter. The Writ court instead has dealt with peripheral issues and left real controversy unresolved. 12. The Writ court instead has dealt with peripheral issues and left real controversy unresolved. 12. We, on the consideration of the matter against the aforesaid backdrop, are of the view that the Writ Court order on the grounds urged in the appeal deserves to be set-aside. We, accordingly, set-aside Writ court order dated 18 March 2009 and request the Writ court to consider the matter afresh in light of observations made and as far as possible decide the matter within four weeks from the date the matter is listed for the first time before the Writ court. Needless to mention that the controversy having remained unresolved for last about 13 years, the writ petition needs to be listed, taken up and disposed of on priority.