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2013 DIGILAW 1223 (PAT)

Dhananjay Kumar v. State Of Bihar

2013-10-08

JAYANANDAN SINGH

body2013
ORDER Short facts of the case are that the petitioner was elected as Ward Commissioner for Ward no.25 of the Nagar Parishad, Hilsa in the district of Nalanda on 22.8.2011. Thereafter, he contested for the post of Deputy Chief Councillor of the Nagar Parishad and was elected on 22.09.2011. It is his case that soon he got dissatisfied with the functioning of the Executive Officer and the Chief Councillor due to their negligence towards the development work and their dishonesty. He claimed that he always used to raise finger and used to voice his objection to their functioning. Finally, after getting disgusted with their activities, he went to meet the Chief Councillor in the office on 17.1.2013 and offered his resignation letter to her. However, the Chief Councillor advised him to continue and serve the people. He accepted her advice and accordingly he took back the resignation letter and returned. But, when he reached back home he found that his resignation letter was missing from his pocket. Hence, the very next day he reported this fact to the officer in-charge of the Hilsa police station, vide Annexure-3. The next day i.e. on 19th petitioner visited the office of the Nagar Parishad in Hilsa and handed over a letter addressed to the Chief Councillor, to one employee in the office, namely Saket Kumar, in which he requested her not to accept the resignation letter as he had decided to continue on the post, and took his receiving on a copy of the same, vide Annexure-4. On that very day, he also sent an application to the Collector-cum-District Election Officer through fax, vide Annexure-5, in which he mentioned that he had come to know about somebody having handed over his misplaced resignation to the Executive Officer without his knowledge. Hence, he requested that no action be taken on the same. On 21.1.2013, he also faxed an application to the Principal Secretary, Urban Development Department, Bihar, Patna, vide Annexure-6, for the same purpose. On that day itself, he again submitted an application in the office of Executive Officer as well as the Chief Councillor requesting them not to act upon his resignation which was also received by the said employee Saket Kumar, vide Annexure-7. On that day itself, he again submitted an application in the office of Executive Officer as well as the Chief Councillor requesting them not to act upon his resignation which was also received by the said employee Saket Kumar, vide Annexure-7. However, he shocked and surprised on 19.2.2013 when he received a letter dated 9.2.2013 of the Chief Councillor through registered post, vide Annexure-8, informing him that as, within one week, she had not received any application from him withdrawing his resignation, the same has been accepted. This letter of the Chief Councillor, annexed as Annexure-8, is under challenge in this writ application. 2. Learned counsel for the petitioner submitted that the petitioner had sent sufficient information to all concerned and had also repeatedly submitted his application in the office of Chief Councillor intimating about his position to withdraw his resignation. However, the Chief Councillor in connivance with the Executive Officer, ignored all his subsequent applications and accepted his resignation on the ground that she had not received any letter withdrawing the same within one week. 3. Both the Executive Officer, who is respondent no.4, and the Chief Councillor, who is respondent no.5, have appeared and filed separate counter affidavits. In both the counter affidavits, their stand is identical. It is asserted that after tendering his resignation, petitioner never wrote any letter withdrawing the same. Hence, his resignation was accepted and the Department was accordingly informed on 9.2.2013 with a request to fill up the vacancy, vide Annexure-B. It is asserted that the petitioner had tendered his resignation in a meeting on 17.1.2013 which was placed in the file and subsequent steps leading to acceptance of the same and intimation to the Department are all recorded in the file. The allegations of connivance and malafide intentions on their part have been denied. The information to the Officer In-charge of the police station is asserted to be collusive and it is also asserted that the person who is said to have received the letter in the office of the Nagar Parishad was not an official staff of respondent no.4 or 5 and no such letter, as contained in Annexure-4, was served on them. It is asserted that the said letter is a manufactured one for the purposes of this case. It is asserted that the said letter is a manufactured one for the purposes of this case. The application of the petitioner sent to the Principal Secretary is not denied, but it is said that the same was not properly written to respondent no.5 for withdrawal of resignation. It is also said that respondent nos.4 and 5 never received any direction from the respondent no.2, the Principal Secretary in the matter. The Executive Officer has also filed a supplementary counter affidavit in support of the stand that the person, who is said to have received the letter of the petitioner, was not a regular staff of the Nagar Parishad, as evident from the report sent to the Department with regard to strength of employees in the Nagar Parsihad, through letter dated 1.6.2013, vide Annexure-D. 4. Learned counsel appearing for the respondents placed reliance on the counter affidavits and the supplementary counter affidavit filed in the case and has referred to Section 25 of the Bihar Municipal Act, 2007 and submitted that the resignation letter has to take effect after 7 days, unless, within the said period of 7 days, the Deputy Chief Councillor withdrew the resignation by writing under his hand addressed either to the Divisional Commissioner or to the Chief Councillor as the case may be. He submitted that, in view of the denial by the respondents of said Saket Kumar being a regular employee of the Nagar Parishad, the onus lay on the petitioner to prove that his so-called applications were in fact filed in the office of Nagar Parishad and were placed on the file for being considered by the Chief Councillor. 5. Petitioner has filed a rejoinder to the counter affidavits. With his rejoinder, petitioner has placed on record an affidavit by the said Saket Kumar, as Annexure-9, claiming that he was working as Computer Operator in the office of Nagar Parishad and he had received applications of the petitioner dated 19.1.2013 and 21.1.2013 and had placed the same in the file of Executive Officer and had also verbally informed the Chief Councillor in that respect. He has also annexed an establishment detail of the office of Nagar Parishad as Annexure-9A to show that the said Saket Kumar was functioning as Computer Operator in the office on contract basis since 24.09.2008 under the orders of Block Development Officer-cum-Executive Officer and his contract has been extended thrice. He has also annexed an establishment detail of the office of Nagar Parishad as Annexure-9A to show that the said Saket Kumar was functioning as Computer Operator in the office on contract basis since 24.09.2008 under the orders of Block Development Officer-cum-Executive Officer and his contract has been extended thrice. 6. It is correct to say that, in view of the challenge by the respondents to receiving of the two applications of the petitioner dated 19.1.2013 and 21.1.2013 in the office of Nagar Parishad by a person, not admitted to be regular employee in the office, onus lay on the petitioner to prove that they were indeed received in the office. But from the counter affidavits of the Chief Councillor as well as of the Executive Officer, this Court finds that there is no denial by them that the said Saket Kumar working in the office at all. The expression used by them in this regard is that …..‘the person who received letter is not official staff of respondent nos.4 and 5 and never such letter contained in Annexure-4 of the writ petition was served to the respondent nos.4 and 5…….’ Again it is said that ‘….the person who has written on the margin about the receiving of one copy is not official staff….’ In the counter affidavit of the Executive Officer also the stand in respect of the person who has received the letters of the petitioner is identical. In the supplementary counter affidavit of the Executive Officer it is stated that one Vikash Kumar was posted on contract basis as Data Operator in the Nagar Parishad, Hilsa from 8.8.2011 which is evident from the order of the Collector, vide Annexure-E. The copy of the rejoinder was served on learned counsel for the respondent nos.4 and 5 on 16.7.2013. This matter was heard on 12.8.2013 i.e. almost one month after. But this Court finds that, still the respondents have not denied the statements made in the rejoinder and have not challenged the said affidavit of Saket Kumar. 7. This matter was heard on 12.8.2013 i.e. almost one month after. But this Court finds that, still the respondents have not denied the statements made in the rejoinder and have not challenged the said affidavit of Saket Kumar. 7. Be that as it may, on its own, taking said two applications of the petitioner dated 19.1.2013 and 21.1.2013 said to be submitted in the office of the Chief Councillor in isolation, they are not sufficient to establish the case of the petitioner of having withdrawn his resignation through an application in writing addressed to the Chief Councillor submitted within one week. But this has to be noticed that the petitioner had submitted information petition to the officer in-charge of the police station on 18th itself and had sent an application to the Collector-cum-District Election Officer on 19th through fax and an application to the Principal Secretary on 23rd. The genuineness of the information submitted by the petitioner with the officer in-charge of the police station has been doubted by the respondents, but they have not challenged the application of the petitioner submitted before the Collector-cum-District Election Officer dated 19th and sent to the Principal Secretary on 21st. This shows that, coming to know that his resignation had got misplaced and the same had become available with the Chief Councillor, he immediately took steps to communicate his decision to continue on the post and made requests to the respondents not to act upon the said resignation letter, all well within the one week prescribed time. These two documents, which has not been challenged by the respondents, gives strength to the case of the petitioner that he had communicated withdrawal of his resignation within the prescribed time. Hence action of the petitioner in this regard cannot be doubted. In this background the letters of the petitioner dated 19.1.2013 and 21.1.2013 said to have been submitted in the office of Nagar Parishad, gets credence. The respondents have very cleverly said that the said Saket Kumar was not an official staff of Nagar Parishad, but they have not denied in specific terms that no such person was working in the office of Nagar Parishad in whatever capacity on the relevant dates. The affidavit of the said Saket Kumar placed on the records of this case almost one month earlier has not been denied and challenged by the respondents. The affidavit of the said Saket Kumar placed on the records of this case almost one month earlier has not been denied and challenged by the respondents. Hence, taking the entire facts and circumstances in totality, benefit of doubt has to go in favour of petitioner and it has to be held that he had submitted his application withdrawing his resignation well within the one week stipulated time. In the circumstances, it has to be held that the Chief Councillor had acted illegally in taking a decision to accept the resignation of the petitioner. 8. In the circumstances, this writ application is allowed. The communication of the Chief Councillor dated 9.2.2013, as contained in Annexure-8, and her decision in records accepting the resignation of the petitioner are quashed. The Chief Councillor and the Executive Officer are directed to allow the petitioner to re-join on the post of Deputy Chief Councillor in Nagar Parishad, Hilsa immediately and allow him to function as such till any adverse order is received by them, passed by any competent court of law or any competent authority.