Judgment :- The management of CAMPCO Ltd., aggrieved by the award dt. 28.10.2010 in IDR 11/2008 of the Labour Court, D.K. Mangalore, Annexure-A has presented this petition. 2. Undisputed facts briefly stated are: Respondent-employee of the petitioner forwarded a letter of resignation on 3.5.2006 extending a month’s advance notice and on 5.8.2006 addressed a letter withdrawing the said letter of resignation, received by the petitioner on 9.8.2006. Petitioner’s acceptance of the letter of resignation by resolution dt. 21.7.2006, w.e.f. 2.6.2006 of its Executive Committee was neither communicated to the respondent nor was the respondent relieved from service. 3. Petitioner alleging to have accepted the respondent’s resignation w.e.f. 2.6.2006 and treating as leave without pay and allowance, the absence from 8.7.2005 onwards upto 3.5.2006 the date of resignation, declined the respondent’s request to withdraw the letter of resignation and permit him to report to duty. This resulted in initiation of conciliation proceedings under Industrial Disputes Act, 1947, for short ‘ID Act’, which when ended in a failure, the State Govt. by order dt. 15.4.2008 referred the points for adjudication to the Labour Court, Mangalore, registered as IDR 11/2008. Respondent filed a claim petition which was resisted by filing counter statement of the petitioner, on notice, inter alia contending that the respondent was irregular in attendance and was unauthorisedly absent from 8.7.2005 to 15.11.2005 for 131 days when leave was refused and thereafter was issued with a show cause notice dt. 15.4.2006, whence the respondent apprehending legal action submitted a resignation letter dt. 3.5.2006. The Executive Committee in its meeting held on 21.7.2006, accepted the resignation to be effective from 2.6.2006. 4. The Labour Court in the premise of pleadings of parties framed additional issues. Respondent was examined as WW-1 and 38 documents exhibited, while petitioner examined one Harsha Shetty as MW-1 and exhibited 26 documents. 5. The Labour Court in the admitted factual matrix and following a long line of reported opinions recorded a finding of fact that the respondent had the locus poenitentiae to withdraw his proposal of resignation before the communication of acceptance of resignation and accordingly by the award dt. 28.10.2010 impugned, allowed the reference in part, directed reinstatement with continuity of service and 50% backwages from 5.8.2006 upto the date of reinstatement. 6. 28.10.2010 impugned, allowed the reference in part, directed reinstatement with continuity of service and 50% backwages from 5.8.2006 upto the date of reinstatement. 6. Petition is opposed by filing statement of objections of the respondent inter alia seeking to sustain the award impugned as being well merited, fully justified and not calling for interference. In addition, it is contended that since the respondent, admittedly, was earning Rs.5,000 to 6,000/- p.m. as an LIC agent, while his last drawn wage was Rs.10,000/- p.m. the award of 50% of backwages is justified. 7. Heard Sri. Ramachandran, learned counsel for the petitioner and Sri. K. Srihari, learned counsel for the respondent. The first contention of the learned counsel for the petitioners is that the respondent having submitted his resignation by letter dt. 3.5.2006 extending a month’s time as notice, in terms of Rule 14.3 of the Central Arecanut and Coco Marketing and Processing Cooperative Limited Service Rules, for short ‘Service Rules’ respondent was deemed to have been relieved from service on expiry of the period of one month from 3.5.2006 and therefore, the application received by the petitioner on 9.8.2006 requesting withdrawal of resignation was unsustainable. It is next contended that the communication of the order of acceptance of resignation is of no consequence since under the Service Rule 14.3, the respondent having left the employment as on 3.5.2006, respondent’s intention to withdraw his resignation, ought to have been done before the expiry of 30 days from 3.5.2006. In addition, it is contended that the respondent having remained absent from 8.7.2005 onwards, antecedent to the letter dt. 3.5.2006 and thereafter too having not reported to duty, voluntarily abandoned the service disentitling him to a consideration of withdrawal of resignation. It is lastly contended that the respondent in cross-examination having admitted to be gainfully employed as an agent of LIC, UTI and share business, with a monthly income of Rs.5,0000-6,000/- is disentitled to backwages for the period from 5.8.2006 onwards. 8. Per contra, learned counsel for the respondent seeks to sustain the award impugned as being well merited, fully justified and not calling for interference. Learned counsel hastens to add that unless the respondent was relieved from duty, there is no automatic relieving from the post immediately after submitting the letter dt. 3.5.2006 of resignation. 8. Per contra, learned counsel for the respondent seeks to sustain the award impugned as being well merited, fully justified and not calling for interference. Learned counsel hastens to add that unless the respondent was relieved from duty, there is no automatic relieving from the post immediately after submitting the letter dt. 3.5.2006 of resignation. Learned counsel further adds that the respondent continued to hold the post and there was no cessation of relationship of employee and employer until acceptance of resignation and its communication to the respondent, which having not happened, was entitled to withdraw the letter of resignation. According to the Learned counsel respondent being under the administrative control of the petitioner-organisation was susceptible to disciplinary proceeding for having remained absent and if initiated would have responded suitable and therefore the question of voluntary abandonment did not arise. As regards the direction in the award to pay 50% backwages, learned counsel submits that the respondent, in all fairness, admitted to have received income of Rs.5,000/- to 6,000/- p.m. as an agent of LIC and other organizations, being 50% of the monthly wage and therefore, award of 50% of backwages is justified. 9. Having heard the learned counsel for the parties, perused the pleadings and examined the award impugned, the question for decision making is whether in the facts and circumstances, the Labour Court was justified in allowing the reference to set-aside the acceptance of resignation of the respondent and directing reinstatement with continuity of service with 50% backwages from 5.8.2006? 10. Before proceeding to consider the contentions advanced by the learned counsel, it will be useful to refer to the observations of the Apex Court in the following reported opinions: a) In Shambhu Murari Sinha –v- Project and Development India Ltd AIR 2000 SC 2473 # (2003) 3 SCC 437 the question that arose for consideration was whether it was open to a person having exercised option of voluntary retirement to withdraw the said offer after its acceptance but before it was made effective? The facts of that case were the employee exercised the option of voluntary retirement by letter dt. 18.10.1995 which though accepted by letter dt. The facts of that case were the employee exercised the option of voluntary retirement by letter dt. 18.10.1995 which though accepted by letter dt. 30.7.1997, the employee not relieved but allowed to continue in service till 26.9.1997 which, for all practical purposes was the effective date when he was relieved from service, and in the meanwhile the employee withdrew his proposal of voluntary retirement by letter dt. 7.8.1997. The apex court answered the said question by following its earlier opinions in BalaramGupta –v- Union of India (1987) 1 SCC Suppl 228; J.N. Srivastava –v- Union of India (1998) 9 SCC 559 and Power Finance Corporation Ltd –v- Pramod Kumar Bhatia (1997) 4 SCC 280 , holding that resignation, in spite of its acceptance, can be withdrawn before the effective date, set-aside the direction and allowed the employee to continue in service with all consequential benefits. (b) InS. Srikant –v- Chairman, India Institute of Management and Another ILR 2001 Kar 787, a Division bench of this Court considered the facts that the employee’s request to retire w.e.f. 22.6.1994 was however granted leave from 23.6.1994 to 22.7.1994 to run concurrently with the curtailed period of notice and permitted to retire on 23.7.1997 by which time a special voluntary retirement scheme was introduced for employees who completed 55 years of age, as on 30.6.1994, and the employee opted for that offer with a request for permission to retire from 7.8.1994 was turned down. The Division Bench followed the principles laid down in Balaramgupta’s case (supra2) to hold that the employee had not ceased to be in employment when the scheme was floated or when the petitioner had opted for it. The Division Bench extracted the observations of the Apex Court in Union of India –v- Gopal Chand Misra AIR 1978 SC 694 which reads thus: “In the modern age we should not put embargo upon people’s choice or freedom- In the modern and uncertain age it is very difficult to arrange one’s future with any amount of certainty; a certain amount of flexibility is required, and if such flexibility does not jeopardize government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case …. As a model employer the Government must conduct itself with high probity and candour towards its employees.” So also the Division Bench extracted the observations of the apex Court in J.N. Srivastava’s case (supra 3) as under: “It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement.” c) In ShambhuMurari Sinha’s case (supra 1) the question that arose for consideration before the Supreme Court was whether the employee was within his right to withdraw his option for voluntary retirement after its acceptance but before actual date of release from the employment? The Constitution Bench of the Apex Court noticed the summary of the principles laid down in GopalChandra Misra’s case (Supra 6) thus: “Complete and effective act of resigning office is one which severs the link of the resignor with his office and terminates the tenure.” The Apex Court further extracted its observation in Power Finance Corporation Ltd. – v- Pramod Kumar Bhatia (Supra 4) thus: “It is now settled legal position that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end.” d) In PadubidriDamodar Shenoy –v- Indian Airlines Ltd. (2009) 10 SCC 514 facts were that the employee who had not attained 55 years of age who completed 20 years of continued service applied for voluntary retirement whence it was held that the employees’ retirement would not be automatic on the expiry of period of notice of three months as in the case of the employee who attained 55 years of age and applied for voluntary retirement since it is subject to approval of competent authority and that there was no necessity for the employer to indicate refusal of approval to the employee during the period of notice, though notice of three months for voluntary retirement by the employee remains valid even if no communication is received within notice period, but it becomes effective only after approval by the competent authority. The Apex Court further noticed as a fact that even after the expiry of notice period the employee continued to attend to duty many months thereafter. 11. The Apex Court further noticed as a fact that even after the expiry of notice period the employee continued to attend to duty many months thereafter. 11. Keeping in mind the aforesaid principles and applying the same to the undisputed facts of this case, the letter of resignation submitted on 3.5.2006 by the respondent though acknowledged by the petitioner-employer was not acted upon or communicate the resolution of the Executive Committee on 21.7.2006 accepting the resignation w.e.f. 2.6.2006 by treating the absent from 8.7.2005 onwards upto 3.5.2006 the date of resignation, as leave without pay and allowance, before the petitioner submitted the letter dt. 5.8.2006 withdrawing the letter of resignation dt. 3.5.2006. Hence the refusal of the petitioner to consider respondent’s application for withdrawal of the resignation following by the refusal to report to duty was justifiably held to be illegal by the Labour Court in the award impugned. 12. Chapter IV of ‘Service Rules’ govern terms of retirement whereunder clause 14.3 reads thus: 14.3 – an employee including an employee on probation or an employee appointed on temporary basis shall not leave or discontinue his/her service in the CAMPCO without giving notice, in writing, to the competent authority of his/her intention to leave or discontinue the services. The period of notice required shall be 90 days for the post of Officers of Grade-I and above and 30 days for other posts; 14.31 – in case of breach of this said rule he/she shall be liable to pay the CAMPCO as compensation the sum equivalent to his/her salary for the period of notice required of him/her, which sum may be deducted from any amount due to her/his, on the other hand if the management wants to terminate the service of an employee then he/she is eligible to claim notice pay as described above; and 14.32 – notice period and leave during notice period cannot run concurrently as a matter of right. 13. A bare perusal of the aforesaid terms relating to retirement, it is apparent that in the event an employee volunteers to resign from employment by submitting a letter of resignation, as in the instant case, extending notice period of 30 days does, not tantamount to relieving the respondent of duties immediately after expiry of the 30th day, so as to sever the relationship between the petitioner and the respondent. In the absence of an order relieving the respondent from duty or termination from the post held by the respondent, it cannot be said that there was a cessation of the jural relationship of employer and employee between the petitioner and the respondent. So also the contention that the failure on the part of the respondent to report to duty immediately after 3.5.2006, the date of application for resignation tantamounts to voluntary abandonment of service cannot be countenanced. If the respondent continues to be under the Administrative control of his employer, even after the expiry of the period of notice under the letter dt. 3.5.2006, but before acceptance of resignation and communication of the same, it is needless to state that it is open for the employer to initiate disciplinary proceeding if permissible over such absence, since Clause 14.32 (supra) makes it clear that notice period and leave during notice period cannot run concurrently as a matter of right. Yet again the contention that if the respondent has withdrawn the resignation before the expiry of 30 days from 3.5.2006 would be valid and legal, I am afraid is unsustainable since Chapter 14 of the ‘Service rules’ does not indicate such a compulsion. 14. The last of the contentions that the award of 50% backwages from 5.8.2006 is perverse since the respondent was admittedly gainfully employed and was earning Rs.5,000/- to 6,000/- p.m. as an agent of LIC and other institutions, must necessarily fail. It is no doubt true that the Labour Court did not in many words assign reasons and findings to direct payment of 50% backwages, nevertheless the admission in the examination of the respondent, as rightly pointed out by Sri. Ramachandran, learned counsel for the petitioner discloses that the respondent did earn Rs.5,000/- to 6,000/-p.m. while he was out of employment. Since the respondent asserts that he was drawing a monthly wage of Rs.10,000/- while in employment before 3.5.2006, the award of 50% of backwages cannot but be said to be justified. In the result, petition devoid of merit is accordingly rejected.