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Uttarakhand High Court · body

2012 DIGILAW 613 (UTT)

Ganga Prasad Belwal v. State of Uttarakhand

2012-09-24

TARUN AGARWALA

body2012
Judgment : Tarun Agarwala, J. Heard Mr. Rakesh Thapaliyal, the learned counsel for the petitioner and Mr. J. P. Joshi, the learned counsel for the respondent nos.2 to 5. and Mr. Lalit Miglani, the learned Brief Holder for the State of Uttarakhand. 2. The petitioner has filed the present writ petition praying for the quashing of the order dated 03rd December, 2003 by which the petitioner’s resignation has been accepted. The petitioner has further prayed that he may be allowed to continue in service. 3. The facts leading to the filing of the writ petition is, that the petitioner was working as a Secretary of the Cooperative Society, Uttaranchal for almost 26 years. On 23.01.2002, the petitioner was suspended and, thereafter, on 15.03.2002, was issued a chargesheet. The petitioner submitted a reply denying the charges levelled against him. By an order of 17.04.2002, the petitioner’s suspension was revoked with a condition that except the subsistence allowance, no salary and other allowances would be paid to the petitioner during the suspension period. The petitioner accepted this order and the matter came to an end. 4. However, prior to his suspension, the petitioner was not paid his salary for 9 months, which led to monetary loss and harassment. The petitioner, not being in a proper frame of mind, sent a letter dated 24th September, 2003. This letter is the bone of controversy, namely, as to whether the said letter amounts to a resignation letter or not. The subject of this letter states “resignation under certain circumstances”. The contents of the letter indicates that the petitioner is compelled to submit his resignation under certain circumstances. The circumstances has been disclosed, namely, that he was suspended on the basis of certain charges and, thereafter, his suspension was revoked, and that prior to his suspension, his salary for a period of 9 months had not been released till date due to which he is suffering a huge loss. It was also stated in the letter that because of the stoppage of the salary, he was unable to pay the premium of his two L.I.C. policies as a result of which he was denied the benefit of bonus in the LIC policies. On account of his stoppage of salary, the petitioner had to face pecuniary losses and had to suffer harassment not only for himself but also for his family. On account of his stoppage of salary, the petitioner had to face pecuniary losses and had to suffer harassment not only for himself but also for his family. It has also been alleged that the petitioner was transferred, as a result of which, his salary for the month of February, 2003 had not been released. It has also been alleged that the petitioner had been frequently transferred from one place to other place and, in 26 years of his service, he has not been transferred to his home district and has been transferred to other places. In the end, the petitioner contends that on account of the aforesaid circumstances, he is not in a proper frame of mind and therefore, he has no other option but to submit his resignation letter. 5. This alleged resignation letter remained pending with the authorities. The District Administrative Committee in its meeting of 20.10.2003 considered the grievances of the petitioner as indicated in the alleged resignation letter and found that his grievances were genuine and consequently directed the Secretary to release his salary and other dues. The Committee however accepted the resignation letter on the ground that the petitioner often remained absent from duty without giving proper leave application and that there are other charges of financial irregularities against him. The resolution of the Administrative Committee was communicated by the Secretary of the Society to the petitioner by an order dated 03.12.2003. 6. The petitioner, being aggrieved by the acceptance of the alleged resignation, has filed the present writ petition. 7. The moot question arises for consideration is, that whether the letter dated 24.09.2003 written by the petitioner is a resignation letter or not. According to the petitioner, it was not a resignation letter and was only a complaint ventilating his grievances that he is being harassed and that if his complaint was not heard or accepted, he would have no other option, but, to resign from the service. On the other hand, the learned counsel for the respondents submitted that the letter of 24.09.2003 was unequivocally a resignation letter, which had been voluntarily given without any condition attached to it and such unconditional resignation letter was validly accepted by the District Administrative Committee. 8. Before dwelling on this aspect, the court finds the U.P. Primary Agricultural Cooperative Credit Societies Centralised Service Regulations, 1978 is applicable in the case of the petitioner. 8. Before dwelling on this aspect, the court finds the U.P. Primary Agricultural Cooperative Credit Societies Centralised Service Regulations, 1978 is applicable in the case of the petitioner. Regulation 32 provides that a member can resign from the Society. The said provision is extracted hereunder:- “32. Resignation. – (a) A member may resign from service by giving one month’s notice the member / secretary of the district committee of notice in special circumstances. (b) Resignation shall take effect from the date of acceptance. (c) A member shall be entitled the pay for the period specified in the order of acceptance of his resignation for making over charge of records, book and properly of society in his custody, but if he makes delay in making over complete charge he shall not be entitled for pay for the excess period. (d) If any records, books or property of the society are found to have been detained by the member, he shall continue to be liable for the same inspite of the acceptance of his resignation.” A perusal of the aforesaid provision indicates that a member may resign from the service by giving one month’s notice and that the resignation will take place from the date of acceptance. 9. The learned counsel for the parties have placed reliance on various judgments. The learned counsel for the petitioner placed reliance upon a decision in Dr. Prabha Atri Vs. State of U.P. & others 2003 (1) SCC 701 in which it was held that the letter of the appellant could not be construed to convey any spontaneous intention to give up or relinquish the office. It was further held that in order to constitute a resignation, there must be an intention to give up or relinquish the office accompanied by an act of relinquishment. The Supreme Court, on the language written by the appellant, held that the letter was not a resignation letter, but, was a threatened offer more on account of exasperation to resign on account of a feeling of frustration borne out of an idea that she was being harassed unnecessarily. 10. On the other hand, the learned counsel for the respondent placed reliance upon a decision of the Supreme Court in Rajasthan State Electricity Board & others Vs. 10. On the other hand, the learned counsel for the respondent placed reliance upon a decision of the Supreme Court in Rajasthan State Electricity Board & others Vs. Brij Mohan Parihar 2000 (9) SCC 269 , wherein the respondent employee tendered his resignation vide letter dated 10.10.1983 which was to be made effective w.e.f. 25.11.1983. Thereafter, the respondent absented himself for 4 years and reported back for work on 22.08.1987. The Supreme Court held that the conduct on the part of the respondent employee was sufficient to indicate that he treated himself to have resigned from the service w.e.f. 25.11.1983, particularly when he himself thereafter demanded payment of gratuity and other post retiral benefits. 11. The learned counsel for the respondents also placed reliance upon a decision of the Supreme Court in Chand Mal Chayal Vs. State of Rajasthan 2006 (10) SCC 258 in which the controversy was that the appellant had tendered his resignation which was accepted and, thereafter, the appellant applied for withdrawal of his resignation, which was rejected. The Supreme Court held that the settled principle of law was that an incumbent was entitled to withdraw his resignation before acceptance and that once his resignation was accepted there was no jural relationship between the employee and the employer and that the employee could not claim for withdrawal of the resignation or reinstatement on the post in question. 12. In the light of the aforesaid decisions, the learned counsel for the respondents urged that since the resignation of the petitioner has been accepted validly, the question of his reinstatement or re-employment in the respondent organisation did not arise and that the petitioner cannot claim his right of employment as a matter of right after acceptance of his resignation by the competent authority. 13. In Secretary, Technical Education, U.P. & others Vs. Lalit Mohan Upadhyay & another 2007 (4) SCC 492 , the Supreme Court held that when a Government servant under the conditions of his service, by his own unilateral act of tendering resignation, gives up his service, normally the tender of resignation becomes effective and his service tenure gets terminated when it is accepted by the competent authority. It was further held that there has to be an unequivocal intention to resign with immediate effect. The resignation which is tendered should be voluntarily without any pressure or coercion. It was further held that there has to be an unequivocal intention to resign with immediate effect. The resignation which is tendered should be voluntarily without any pressure or coercion. In the said case, the Supreme Court found that no pressure or coercion was imposed by the authority and that the allegation made by the employee in the resignation letter was found unwarranted and unfounded. 14. In the light of the aforesaid decisions, it is found that in order to constitute a resignation, it must be unconditional and intend to operate as such and that there must be an intention to relinquish the office or the post in question accompanied by an act of relinquishment. In the ordinary dictionary sense, the word `resignation' is considered to mean the spontaneous relinquishment of one's own right. 15. In P. K. Ramachandra Iyer Vs. Union of India 1984 (2) SCC 141 , the Supreme Court had an occasion to consider the nature and character of a letter written by one of the petitioners in that case who after stating in the letter that he has been all along patiently waiting for the redressal of his grievance, yet justice has not been done to him and consequently stated “as such, after showing so much patience in the matter, I am sorry to decide that I should resign from the membership of the Faculty in protest against such a treatment and against the discrimination and victimization shown to me by the Head of the Division in the allotment of students of 1968 and 1969 batches and departmental candidates.” 16. In that context, the Supreme Court observed that it was the callous and heartless attitude of the Academic Council in seizing an opportunity to get rid of him by treating the said letter to be a letter of resignation when in fact he was all along making representations seeking justice for himself and that out of exasperation the said person wrote that letter stating that the only honourable course left open to him was to resign rather than suffer. 17. 17. In the light of the aforesaid and after considering the submissions of the learned counsel for the parties and in the light of the alleged resignation letter, the court finds that the alleged letter dated 24.09.2003 cannot be construed to be a spontaneous intention to give up or relinquish the post accompanied by an act of relinquishment. The letter does not indicate that the resignation would be made with immediate effect. The letter only highlights his exasperation, his feeling of frustration, which is borne out of an idea that the petitioner was being harassed unnecessarily. In the opinion of the court, the alleged letter of resignation is not an unconditional action of resignation nor does it indicate any intention that it would operate as a resignation. The Supreme Court, in the case of Dr. Prabha (supra) held that the said letter at best could connote a threatened letter which was more on account of exasperation and to resign on account of a feeling of frustration borne out of harassment. The circumstances in Dr. Prabha (supra) leading to the writing of the alleged resignation letter is more or less the same as in the case of the petitioner. 18. The court also finds that the grievances of the petitioner was genuine and had been accepted by the Administrative Committee wherein it was resolved to release the arrears of pay. The stoppage of 9 months pay had led to frustration and harassment. On account of his stoppage of pay, the petitioner was unable to pay the premium of his L.I.C. policies as a result of which he could not get the bonus. Such harassment lead to exasperation on the part of the petitioner to write the alleged letter, which was due to the frustration on account of the callous attitude of the respondents in not releasing his dues which the petitioner deserved. Consequently, when the Administrative Committee accepted the grievances of the petitioner and directed the release of the amount which was due and payable to the petitioner, it was not open to the respondents to construe the said letter as a letter of resignation and accept the same. Consequently, when the Administrative Committee accepted the grievances of the petitioner and directed the release of the amount which was due and payable to the petitioner, it was not open to the respondents to construe the said letter as a letter of resignation and accept the same. In the opinion of the court, the reason given in the impugned order that the petitioner often used to take leave without giving a proper application for leave and that there were some charges of financial irregularity appears to be an afterthought to give the respondents an opportunity to get rid of the petitioner. 19. In any case, the court finds that the said letter dated 24.09.2003 in the given circumstances which the petitioner was ventilating his grievances, cannot be construed to be a resignation letter nor could it be construed to have been given voluntarily and unconditionally. The said letter does not give any spontaneous intention to give up or relinquish his post nor was it accompanied by any act of relinquishment. The respondents committed a manifest error in construing the letter dated 24.09.2003 as a letter of resignation. Consequently, the question of acceptance of the Administrative Committee by its resolution dated 20.10.2003 and the communication made by the Secretary by its letter dated 03.12.2003 cannot be sustained and are quashed. The writ petition is allowed. The petitioner shall be reinstated in service with continuity of service. However, in the given circumstances since the petitioner has not worked, he will not be entitled for any arrears of salary from the date of acceptance of his resignation till his reinstatement pursuant to this order. It is also directed that the respondents shall reinstate the petitioner within six weeks from the date of production of a certified copy of this order. In the circumstances of the case, the parties shall bear their own cost.