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Uttarakhand High Court · body

2010 DIGILAW 401 (UTT)

QUARBAN ALI v. TELETRONIX LTD.

2010-06-23

TARUN AGARWALA

body2010
JUDGMENT Heard Mr. I.P. Gairola, the learned counsel for the petitioner and Mr. Sandeep Kothari, the learned counsel for the respondents. 2. The petitioner was appointed as a driver in the year 1987 in the Teletronic Ltd., Bhimtal, District Nainital, which is a subsidiary company of Kumaon Mandal Vikas Nigam Ltd. and a Government enterprise. The petitioner was confirmed on the post of driver and it is alleged that there was no complaint with regard to his work and performance. By means of a letter dated 31st October, 1993, the petitioner submitted his resignation, which was effective from 31st January, 1994. The petitioner had a second thought and changed his mind and consequently, wrote a letter dated 31st December, 1993 withdrawing his resignation letter. This letter was received by the respondents on 1st January, 1994. Inspite of the withdrawal of the resignation letter, the petitioner was not allowed to enter the premises and, on the other hand, was served with a letter dated 30th December, 1993 which was sent by registered post on 7th January, 1994 in which it was indicated that the resignation letter of the petitioner had been accepted and that the petitioner had been relieved from the post of driver w.e.f. 31st December, 1993 and that the petitioner was entitled to be paid the salary for the month of January, 1994. The petitioner, being aggrieved by the action of the respondents, has filed the present writ petition praying for the quashing of the order dated 30.12.1993 and further praying for a writ of mandamus commanding the respondents to pay the arrears of salary and allow the petitioner to continue to work as a driver in the respondents/company. 3. The respondents have filed a counter affidavit submitting that the petitioner had submitted his resignation on 31st October, 1993 on account of his domestic problems which was forwarded to the head office and was received on 7th November, 1993 and the same was forwarded by the Personnel Officer and Deputy Manager of the Head Office for its approval. The respondents submitted that the Managing Director of the Company accepted the resignation of the petitioner on 11.11.1993 and that the petitioner was duly relieved by an order dated 30.12.1993. The respondents submitted that since the resignation had already been accepted on 11.11.1993, the question of the petitioner revoking the resignation by its letter dated 31st December, 1993 does not arise. The respondents submitted that since the resignation had already been accepted on 11.11.1993, the question of the petitioner revoking the resignation by its letter dated 31st December, 1993 does not arise. 4. The respondents company has its own rules with regard to the condition of service of its staff. The relevant clause relating to discontinuation from the service of a confirmed employee is extracted hereunder; “A confirmed employee may leave or discontinue from the service of the Company after giving three months notice in writing or depositing an amount equivalent to three months pay and dearness allowance in lieu thereof to the Company. However this notice may be waived off by the appointing authority.” 5. A perusal of the aforesaid provision indicates that a confirmed employee can leave the service of the company after giving three months notice in writing or depositing an amount equivalent to three months pay and dearness allowance in lieu thereof to the Company. This period of notice could however be waived off by the appointing authority on the request of the employee. In the light of the aforesaid, the resignation letter was submitted by the petitioner on 31st October, 1993, which indicates that he gave three months notice to the employer and requested that he should be relieved after the expiry of three months. This request of the petitioner was accepted by the Managing Director on 11.11.1993 namely, the request of the petitioner that he should be relieved after three months. The petitioner had second thought in the matter and withdrew his resignation by a letter dated 31st October, 1993, that is, much before the expiry of the period of three months, but, the Management issued a letter dated 30th December, 1993 accepting the resignation letter and relieving the petitioner w.e.f. 31st December, 1993. 6. Having heard the learned counsel for the parties and having perused the provision relating to resignation, it is clear that the rule relating to resignation makes it incumbent upon an employee to serve a notice in writing of such proposed resignation. The clause makes it clear that the resignation will not be effected otherwise than of the expiry of three months from the service of such notice. The voluntary act on the part of the employee is that he is entitled to choose the date on which his resignation would be effective and give a notice to the employer accordingly. The clause makes it clear that the resignation will not be effected otherwise than of the expiry of three months from the service of such notice. The voluntary act on the part of the employee is that he is entitled to choose the date on which his resignation would be effective and give a notice to the employer accordingly. In the present case, the petitioner wrote a letter dated 31st October, 1993 proposing his resignation and giving three months notice to the employer and requested that he should be relieved after the expiry of three months i.e. on 31st January, 1994. This request of the petitioner was accepted by the Managing Director on 11.11.1993. Consequently, there was no occasion for the respondents to relieve the petitioner on 31st December, 1993 prior to the expiry of the period of three months. 7. The respondents/company has tried to justify their action by submitting that the clause in the service conditions gives a power to the company to waive the notice period and consequently, by the letter dated 30th December, 1993, the resignation was accepted prematurely by waiving one month’s notice period. The submission of the learned counsel for the respondents is bereft of merit. The regulations clearly indicate that the employee has to give atleast three months advance notice. The provision further contemplates that in a case where the employee desires that his resignation should be effected even before the expiry of the period of three months, the employer may consider such a request and waive the period, if it considers fit to do so. 8. The question of waiver does not arise in the present case because the petitioner had not requested the respondents to reduce the period of notice. The contention of the respondents that the employer had a power to reduce the period and waive the requirement of notice even without being a request made by the employee, is patently erroneous. In the light of the aforesaid, it is clear from a reading of the aforesaid regulation that the petitioner was entitled to continue in service till 31st January, 1994 on which date his service would have come to an end in terms of his resignation letter, but, before the expiry of that period, the petitioner exercised his right to withdraw his resignation. Since the withdrawal letter was written before the resignation became effective, the resignation stood withdrawn as a result of which the petitioner continued to be in the service of the employer. 9. Further, the court finds that the terms as indicated in the resignation letter dated 31st October, 1993 namely, that his resignation would be effective after three months i.e. on or after 31st January, 1994 was duly accepted bys the Managing Director by his order dated 11.11.1993. Consequently, there was no occasion to relieve the petitioner on 30th December, 1993. The learned counsel for the petitioner has cited a decision of the Supreme Court in the case of Punjab National Bank vs. P.K. Mittal reported in A.I.R. 1989 S.C. 1083, which is squarely applicable to the present facts and circumstances of the case. 10. In the light of the aforesaid, the employer committed a manifest error in issuing the letter dated 30th December, 1993 and relieving the petitioner with immediate effect. The order cannot be sustained and is quashed. The writ petition is allowed. The petitioner is entitled for payment of salary.