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2013 DIGILAW 119 (GAU)

Union of India and Ors. v. Jogen Talukdar

2013-02-21

I.A.ANSARI, P.K.MUSAHARY

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I A. Ansari, J By making this writ application under article 226 of the Constitution of India, the petitioners, who were respondents in Original Application (‘OA') No. 54 of 2010, have put to challenge the order, dated 15.7.2010, passed, in OA No. 54 of 2010, by the learned Central Administrative Tribunal, Guwahati Bench, setting aside the order, dated 18.7.2007, passed by respondent No.1, namely, Secretary, Ministry of Water Resource, Government of India, accepting the resignation of the respondent herein, who was applicant in the said OA, and also the communication made by the letter, dated 6.5.2009, issued by the respondents/authorities concerned, which stood impugned in the said OA. 2. We have heard Ms. B. Das, learned Central Government Counsel, appearing for the petitioners, and Mr. S. Sarma, learned counsel, for the respondents. 3. Resisting the writ petition, Mr. Sarma, learned counsel for the sole respondent, has raised a preliminary objection, the preliminary objection being that the writ petition deserves to be dismissed inasmuch as the learned Tribunal's order, which stands impugned in this writ petition, was passed as far back as on 15.7.2010; whereas the writ petition has been filed on 5.10.2012. 4. Though there has been delay in .filing the writ petition, the writ petitioners have explained the delay in para 17 of the writ petition. This apart, the refusal to exercise extraordinary jurisdiction, under article 226 of the Constitution, on the ground of delay is a matter of policy and it does not debar the High Court completely from invoking, in appropriate case, its extraordinary jurisdiction under article 226 even if a person approaches the High Court belatedly by way of writ petition. In this regard, we must not ignore the submission, which has been made on behalf of the petitioners, that the reliefs, which the learned Tribunal has granted in favour of the respondent herein, would open a flood-gate of similar claims by other employees if it is treated that Voluntary Retirement Scheme (‘VRS') was applicable to the employees of the respondent Board not with effect from 7.8.2008, but with effect from the date, when ,the VRS was made applicable to the Central Government employees. The submission, so made, is momentous, significant and cannot be lightly ignored. 5. The submission, so made, is momentous, significant and cannot be lightly ignored. 5. We, therefore, deem it appropriate, in the peculiarity of the facts of the case at hand, to examine the issues, which have been raised in the present writ petition, including the question as to whether the employees of the respondent Board ought to have been paid VRS even before the Board's Circular, dated 7.8.2008, came into force. 6. While serving, as a Lower Division Clerk ('LDC'), in Brahmaputra Board, which is an autonomous body constituted under the Brahmaputra Board Act, 1980, the respondent herein was transferred from the Board's Head Office, at Guwahati, to Tezu, Arunachal Pradesh. As the respondent's son had been suffering from Autistic Spectrum Disorder, he requested the Board to retain him at Guwahati. Since the request, so made, was not acceded to by the Board, the petitioner submitted letter of resignation, on 3.9.2006, which read as under : "To The Secretary, Brahmaputra Board, Basistha, Guwahati, Through the Executive Engineer, Tezu Division, Brahmaputra Board, Tezu (A.P.) Sub : Registration letter for the post of LDC Sir, With reference to the above, I do hereby tender my resignation from the post of LDC, with effect from 30.9.2006 (AN), due to my personal reason as well as for the treatment of my son. And for your refusal for VRS. In view of the above, I request you kindly to accept my resignation with immediate effect as the date mentioned above. Yours faithfully Sd/- Shri Jogen Talukdar LDC, Tezu Division, Brahmaputra Borad. Tezu (AP) 30.9.2006." 7. The above resignation letter, dated 30.9.2006, was not accepted by the petitioners herein. The respondent herein, then, submitted another letter of resignation, on 6.3.2007, which read as follows : "To The Secretary Brahmaputra Board, Basistha, Guwahati-29 Sub : Resignation letter for the post of LDC Sir, With reference to the above, I do hereby tender my resignation from the post of LDC w.e.f. 30.9.2006 (AN). In view of the above, I request you kindly to accept my resignation letter with immediate effect as the date mentioned above. Yours faithfully Sri Jogen Talukdar Brahmaputra Board Dated 6.3.2007." 8. Acting upon the letter, dated 6.8.2007, aforementioned, whereby the respondent had sought to resign with effect from 3.9.2006, the present petitioners accepted the respondent's resignation by their impugned letter, dated 18.7.2007, with effect from 30.9.2006. 9. Yours faithfully Sri Jogen Talukdar Brahmaputra Board Dated 6.3.2007." 8. Acting upon the letter, dated 6.8.2007, aforementioned, whereby the respondent had sought to resign with effect from 3.9.2006, the present petitioners accepted the respondent's resignation by their impugned letter, dated 18.7.2007, with effect from 30.9.2006. 9. The letter of acceptance, issued by the petitioners herein, on 18.7.2007, read as under : "OFFICE ORDER Resignation tendered by Sri Jogen Talukdar LDC, Tezu Division, Brahmaputra Board, Tezu from the Brahmaputra Board Services is hereby accepted with effect from 30.9.2006 (AN) This issues with the approval of the competent authority. Sd/- Secretary Memo No. BB/4118/03/43-A Dated, Guwahati the 18th July, 2007." 10. Subsequent to the acceptance of his resignation by the present petitioners by their letter, dated 18.7.2007, aforementioned, the respondent herein requested for his reinstatement in service by letter, dated 11.9.2008, and this request was turned down by the petitioners herein by their letter, dated 6.5.2009. 11. The letter, dated 6.5.2009, aforementioned reads as follows : "To Sri Jugen Talukdar, Ex.LDC-cum-Typist Vill. & P.O.-Barpalaha Viz Bezera Dist.Kamrup PIN 781121 Sub : Prayer for reinstatement Ref: Your No. Nil dated 11.9.2008 With reference to the subject above, I am directed to inform you that your prayer for reinstatement of service has been duly examined by the competent authority. It is however, regretted to say that your request for reinstatement of service has not been accepted, as the same is not covered under the Government Rule due to the fact that the period of your absence from duty between effective date of resignation 30.9.2006 and the date of your application for reinstatement 11.9.2008 is more than 90 days. Sd/- Under Secretary (E)" 12. As the respondent herein had asked for benefit of VRS and the same had not been made available to him, the respondent herein filed the OA aforementioned seeking the reliefs, which are reproduced below : "8. Relief(s) sought for: 8.1 To set aside and quash the impugned communication dated 6.5.2009 directing the respondents to reinstate the applicant with all consequential benefits. (Annexure 17). 8.2 To set aside and quash the impugned order dated 18.07.2007 declaring the acceptance to be no acceptance. (Annexure 12) And/or 8.3 To grant the benefits of VRS Scheme considering the peculiar fact situation of the case with all consequential benefits. 8.4 Cost of the application. (Annexure 17). 8.2 To set aside and quash the impugned order dated 18.07.2007 declaring the acceptance to be no acceptance. (Annexure 12) And/or 8.3 To grant the benefits of VRS Scheme considering the peculiar fact situation of the case with all consequential benefits. 8.4 Cost of the application. 8.5 Pass any such order/orders as Your Lordships may deem fit and proper." 13. By the impugned order, dated 15.7.2010, aforementioned, the learned Tribunal has allowed the OA by setting aside and quashing the communication, dated 6.5.2009, aforementioned, and directed the present petitioners te proceed with the respondent's case under Voluntary Retirement Scheme and make available to him all consequential benefits. 14. While considering the present writ petition, what attracts our attention, most prominently, is that the learned Tribunal has treated the letter, dated 30.9.2006, aforementioned, which the respondent herein submitted, as a letter of conditional resignation. We have read and re-read the letter, dated 30.9.2006, aforementioned and we have not been able to persuade ourselves to agree with the conclusion of the learned Tribunal that the respondent's letter, dated 30.9.2006, aforementioned was a conditional letter of resignation. For resigning from service by his letter, dated 30.9.2006, the respondent herein had, in fact, assigned three reasons, namely, (i) personal reason; (ii) treatment of his son; and (iii) refusal to make available to him the benefits of VRS. 15. The reasons, which the respondent herein so assigned, were really the reasons, which impelled him to resign from the post, which he had been holding. By no means, the said letter, dated 30.9.2006, can be treated, or could have been treated, as a conditional letter of resignation. A conditional resignation is a resignation, which is subject to some condition or conditions and, upon fulfilment of such condition or condition, the resignation comes into effect. If an employee resigns by assigning reasons, such a resignation cannot be treated as a conditional resignation. If, however, compelled by such circumstances, which the employer creates, an employee resigns from his post, his resignation, in the context of the facts of a given case, may be treated as involuntarily, forcibly or coercively obtained resignation. Such a resignation, being involuntary in nature, may not be treated as a valid resignation. 16. If, however, compelled by such circumstances, which the employer creates, an employee resigns from his post, his resignation, in the context of the facts of a given case, may be treated as involuntarily, forcibly or coercively obtained resignation. Such a resignation, being involuntary in nature, may not be treated as a valid resignation. 16. In the case at hand, we do not find that the respondent's case was that he was compelled by circumstances to tender resignation and that his resignation shall be treated as involuntarily, void ab initio and non est in law. 17. The respondent's grievance was that the benefit of VRS was not made available to him. In this regard, it is noteworthy that the respondent Board is an autonomous statutory body and, in the absence of any material showing that the Voluntary Retirement Scheme, in question, which governs service conditions of Central Government employees, had been adopted by the Board before the respondent herein resigned from his post and before his resignation was accepted, the benefit of the said Scheme cannot be extended to any of the employees before the said Scheme was adopted by the Board. In fact, it is not in dispute that the Voluntary Retirement Scheme, introduced by the Central Government, came to be accepted by the respondent Board after the acceptance of the resignation of the present respondent. In these circumstances, the benefits of the VRS could not have been validly sought for by the respondent herein nor could have the same been extended to the respondent herein by the learned Tribunal. 18 In fact the Circular, dated 7.8.2008, issued by the respondent Board shows that the respondent Board, in its 24th Board Meeting, introduced the VRS to its employees. In the face of the Circular, dated 7.8.2008, aforementioned, there could not have been any VRS in existence or in force, for the employees of the Board, prior to 7.8.2008 and we do, therefore, conclude that the VRS, as applicable to the Central Government Employees, became available to the employees of the respondent Board, with effect from 7.8.2008; whereas the respondent's resignation had already been accepted on 18.7.2007. 19. In the backdrop of what have been pointed out above, we notice that the resignation of the respondent herein was accepted by the impugned order, dated 18.7.2007, with effect from 30.9.2006. 19. In the backdrop of what have been pointed out above, we notice that the resignation of the respondent herein was accepted by the impugned order, dated 18.7.2007, with effect from 30.9.2006. However, the acceptance of resignation by the petitioners with retrospective effect is wholly illegal inasmuch as the petitioners have accepted the resignation on 18.7.2007; hence, the resignation of the respondent herein had come into effect on 18.7.2007 and not before. To this extent, the office order, dated 18.7.2007, is incorrect and illegal. 20. The respondent is, therefore, entitled to receive benefits of pay and allowances till 18.7.2007 and his case ought to have been dealt with by the present petitioners accordingly. To the extent, as indicated hereinbefore, appropriate relief could have, and ought to have, been given to the respondent herein by the learned Tribunal. When the VRS became available to the employees of the respondent Board with effect from 7.01.2008, the learned Tribunal could not have directed the petitioners herein to make available to the respondent herein the benefits of the VRS, when the resignation of the respondent herein had already been accepted on 18.7.2007. 21. Referring to rule 48 A of the Central Civil Services (Pension) Rules, 1972, Mr. Sarma, learned counsel, has submitted that on completion of 20 years of service, the petitioner was entitled to receive the benefit of VRS. Suffice it to point out, in this regard, that the question of giving benefit of VRS to an employee, by virtue of rule 48A, would arise only when a scheme for voluntary retirement is found to have been in force. In the case at hand, since the VRS came to be introduced in respect of the employees of the respondent Board by the Circular, dated 7.8.2008, and the Circular was not given retrospective effect, it logically followed that the respondent herein could not have been given the benefit of VRS by resorting to rule 48A too. 22. Because what have been discussed and pointed out above, we find that the impugned decision of the learned Tribunal is not sustainable in law to the extent that it has set aside the petitioners' letter, dated 6.5.2009, and directed the petitioners to give the benefit of VRS to the respondent herein by deeming him as a person covered by the VRS scheme. 23. For what has been discussed and pointed out above, this writ petition succeeds. 23. For what has been discussed and pointed out above, this writ petition succeeds. The impugned order passed by the learned Tribunal is hereby set aside to the extent that the impugned order sets aside the communications, dated 6.5.2009 and 18.7.2007, and the direction, contained in the impugned order, to pay to the respondent the benefit of VRS. We have made it clear that the resignation of the respondent herein from service shall be treated to have come into effect on 18.7.2007 and, thereafter, pay, allowances and other benefits, which were, otherwise, available to the petitioner, shall be made available to him in consequence of his being treated to have resigned from the post of LDC with effect from 18.7.2007. 24. Before parting with this writ petition, it is made clear that it has been submitted, on behalf of the respondent, that the respondent had to resign compelled by the circumstances, which his employer had created, and, hence, his resignation ought not to be treated as resignation at all and he ought to have been treated as having remained in employment of the respondent Board. Since this was not the case of the respondent before the learned Tribunal, we express no opinion on this aspect. 25. On the above submission, which has been made on behalf of the respondent, we, in the interest of justice, give liberty to the respondent herein to raise the grievance, as indicated hereinbefore, by way of appropriate OA and if such a grievance is raised, the learned Tribunal shall consider and dispose of the same in accordance with law. 26. With the above observations and directions, this writ petition is disposed of. 27. No order as to costs.