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2016 DIGILAW 1161 (KER)

Hindustan Organic Chemicals Ltd v. P A James

2016-12-21

P.R.RAMACHANDRA MENON, P.SOMARAJAN

body2016
JUDGMENT P.R. Ramachandra Menon, J. 1. Withdrawal of resignation tendered by the 1st respondent/employee before proper acceptance by the employer/petitioners, which stands upheld by the CAT, is the subject matter of challenge in this writ petition filed by the employer. When the employee contends that the resignation submitted on 23.12.2008 was under pressure of circumstances and it was withdrawn as per letter dated 06.01.2009 before the same was accepted by the competent authority, the stand taken by the employer is that it was accepted on 06.01.2009 [the date on which employee had submitted the letter of withdrawal], though the employee was relieved only later, at 8.30 a.m. on 09.01.2009. 2. The 1st petitioner is a Company having its registered office at Rasayani in the State of Maharashtra, which has got a unit at Ambalamugal as well. The first respondent/applicant is a post graduate in Chemical Engineering, who joined service of the petitioner Company as Chemical Operator Grade III in the year 1986. Later, he was promoted and appointed as Plant Engineer as per Annexure A1 in the year 1991. Thereafter, he was promoted as Assistant Manager (Production) in the year 1995 and still further as Deputy Manager (Production) w.e.f. 01.07.2000. He was aspiring promotion to the next higher post of Manager (Production) on completion of 'five' years in the feeder category as per the relevant norms and practice followed by the Company, which however was not given to him. The applicant approached this Court by filing W.P.(C) No. 28264 of 2007 for directing the Company to promote him to the said post. The contention of the Company was that a call letter was issued to him, though acknowledgment was not obtained on the duplicate, and that he had not turned up on that day. According to the applicant, the call letter was not served upon him. The Company contended that, as per Rule 17.1 of the Promotion Rules, if the officer does not turn up for interview, he will not be considered for promotion for one year. It was also pointed out that the petitioner was considered for the next year and was promoted as Manager (Production) w.e.f. 01.01.2008. The version of the Company was accepted and the writ petition was dismissed as per Anenxure A2 dated 15.10.2008. Annexure A2 verdict was sought to be challenged by the employee by filing W.A. No. 614 of 2009. It was also pointed out that the petitioner was considered for the next year and was promoted as Manager (Production) w.e.f. 01.01.2008. The version of the Company was accepted and the writ petition was dismissed as per Anenxure A2 dated 15.10.2008. Annexure A2 verdict was sought to be challenged by the employee by filing W.A. No. 614 of 2009. The employee had filed W.P.(C) No. 37925 of 2008 for giving retrospective effect to the promotion given from 01.01.2008. When the matter came up for admission before the Court on 15.01.2009, the employer submitted that the employee had already tendered resignation and was relieved from duty on 09.01.2009. Accordingly, the writ petition was closed, as per Annexure A3 verdict dated 15.01.2009, granting liberty to the employee to approach the appropriate authority, if at all aggrieved in any manner. This was sought to be challenged by filing W.A. No. 417 of 2009, which was disposed of by a Division Bench of this Court as per Annexure A11 verdict dated 24.02.2009, holding that even on the date of passing Anenxure A3 verdict by the learned single Judge, jurisdiction of the High Court stood transferred to the Central Administrative Tribunal. It was accordingly, that Annexure A3 judgment was set aside and the writ petition was dismissed, allowing the appeal, with liberty to the writ petitioner to approach the CAT for prosecuting the matter. 3. After dismissal of the earlier Writ petition as per Anenxure A2 in October 2008, it was stated that the employee was undergoing much stress and strain because of the denial of promotion at the hands of the employer; coupled with the adverse circumstances prevailing at home, particularly in connection with the plight of his one and only child aged 6½ years, who was mentally retarded, suffering from 'down syndrome'. According to the employee, he submitted Annexure A4 letter dated 23.12.2008 for permission to resign from service to the Deputy General Manager (P& A) of the Company at Ambalamugal without proper application of mind. On second thought, the employee chose to withdrew the resignation, by submitting Annexure A5 dated 06.01.2009 preferred before the Deputy General Manager (P&A) of the Company at Ambalamugal, and sought to permit him to continue in service till superannuation i.e. 31.05.2009. On second thought, the employee chose to withdrew the resignation, by submitting Annexure A5 dated 06.01.2009 preferred before the Deputy General Manager (P&A) of the Company at Ambalamugal, and sought to permit him to continue in service till superannuation i.e. 31.05.2009. According to the employee, after leaving the Company by 8.30 p.m. on 09.01.2009 (after completing duty), he was not physically well and applied for medical leave for a few days. When he reported for duty on 20.01.2009, he was not permitted to join, stating that his resignation had already been accepted. This made the employee to challenge the proceedings by filing Ext. P1 O.A. No. 216 of 2009, seeking to declare that Annexure A4 resignation was legally and properly withdrawn by the applicant/employee by submitting Annexure A5 and to direct the employer to permit him to continue in the post of Manager (Production) till his superannuation on 31.05.2009. The employer filed Ext. P2 reply statement and Ext. P3 additional reply statement. The employee filed Ext. P4 rejoinder. Pursuant to the interim order passed by the Tribunal, the representation preferred by the employee was considered by the Chairman cum Managing Director and the request to permit the applicant to continue in service was rejected, which was also sought to be challenged by amending the Original Application. 4. After hearing the rival contentions, the Tribunal as per Ext. P5 order dated 22.10.2009 held that the course pursued by the competent authority was not correct or sustainable and hence the impugned proceedings were set aside. The operative portion of Ext. P5 Order as contained in paragraph 19 is extracted below : 19. In the normal course, the applicant would have retired on 31st May 2009. The difference is just four months and 22 days. In view of the fact that the act on the part of the respondents in not permitting him to resume duty on 20th January 2009 on the ground that his resignation had already been accepted and he was relieved of his duties after duty hours on 09.01.2009 is to be held as illegal, the applicant should be deemed to have continued in service till 31st May 2009 and the period between 20th January to 31st May 2009 has to be regularised either by grant of leave or by any other way as rules provide for. If no leave is available, he may not be entitled to any pay for the said period on the basis of 'no work no pay'. The applicant is entitled to count the service for the purpose of terminal benefits if any applicable to him. Other terminal benefits as available to any other individual shall be available to him. It is against the said verdict, that the Company/employer and other authorities concerned have approached this Court by filing this writ petition. 4. A counter affidavit has been filed by the 1st respondent producing two documents such Ext. R1(a) [which is the same as Annexure A3 judgment] and Ext. R1(b) copy of the Service Rules of the employer Company [which was stated as already produced before the Tribunal]. Some additional documents have also been produced as Ext. R1 (c), (d) and (e) [obtained under the RTI Act] along with I.A. No. 16044 of 2014, to the effect that neither the CMD at Mumbai, nor the officers concerned in the Unit at Ambalamugal had any 'tour program' to have interacted and passed the order accepting the resignation stated as effected by the 'CMD' at Mumbai on 06.01.2009 i.e. the date on which Annexure A5 withdrawal letter was submitted. 5. Heard Mr. V. Krishna Menon, the learned standing counsel appearing for the petitioners/employer and Sri. P.K. Ramkumar, the learned counsel appearing for the employee/applicant. 6. Pursuant to the order dated 21.11.2016, the relevant file was made available by the learned standing counsel for the petitioner and this Court has perused the same. 7. It is settled law that an employee who tenders his resignation has every right to have it withdrawn before it is accepted by the competent authority. There is no dispute for either side in this regard and as such, the judicial precedents referred to and discussed by the Tribunal do not require to be reproduced herein, nor does it require to be added on by supplementing something more. The only question is whether there was a 'valid acceptance' of the resignation, before it was withdrawn. 8. Obviously, Annexure A4 letter of resignation is dated 23.12.2008, whereas Annexure A5 letter of withdrawal is dated 06.01.2009. Both of there were submitted before the Deputy General Manager (P&A), HOC Ltd., Ambalamugal. The only question is whether there was a 'valid acceptance' of the resignation, before it was withdrawn. 8. Obviously, Annexure A4 letter of resignation is dated 23.12.2008, whereas Annexure A5 letter of withdrawal is dated 06.01.2009. Both of there were submitted before the Deputy General Manager (P&A), HOC Ltd., Ambalamugal. According to the Company, Annexure A5 withdrawal letter was obtained in the Production Office only at 9.30 a.m., after relieving the petitioner from service at 8.30 a.m on that day, as disclosed from Anenxure B produced along with Ext. P2 reply statement filed by the Company before the Tribunal. It is stated that, by the time Annexure B/Anenxure A5 withdrawal letter was submitted, Annexure A4 resignation had already been accepted by the competent authority/CMD at Mumbai on 06.01.2009 itself, as discernible from Annexure A produced along Ext. P2 reply statement. This Court finds it difficult to agree with the version of the Company/Petitioners for several reasons. 9. Firstly, it is to be noted that Annexure A4 letter of resignation was processed in the office of the Company at Ambalamugal in Kerala and a 'Note' was prepared to have it forwarded to the competent authority at Mumbai, pointing out that the employee had not given three months' notice, as per the terms of the employment, and hence he had to pay three months' salary towards notice pay, simultaneously giving his leave particulars and also adding that no vigilance proceedings were pending or contemplated against him. It is also stated that, subject to clearance of all outstanding dues to the Company, his resignation could be accepted and relieved from service. This 'Note' prepared by the Manager (P&A) at Ambalamugal was recommended by the DGM (P&A) on 06.01.2009 itself and it was further recommended by the General Manager on that day, as borne by their signature contained on Annexure A. The CMD subscribed his signature to it, granting approval, subject to A, i.e. subject to clearance of all outstanding dues to the Company. The date of such approval is shown as 06.01.2009. The date of such approval is shown as 06.01.2009. Since the petitioners do not have a case that the CMD had left Mumbai and come over to Kochi or that the officers of the Company in Kochi/Ambalamugal had gone with the above proceedings to Mumbai [as revealed from the tour programs and such other particulars obtained under the RTI Act and produced from the part of the applicant] on that day itself, it has to be ascertained, how the aforesaid office 'Note' originated/prepared at Kochi/Ambalamughal was transmitted to the CMD at Mumbai and how the CMD came to subscribe the signature on that day itself and still further, how the outcome was re-transmitted / communicated back to the Office at Kochi/Ambalamugal, to have the applicant relieved on 09.01.2009. Since no proper explanation was forthcoming, the 'File' was directed to be produced, by this Court on 21.11.2016. Accordingly, the filed was produced and we have gone through the same. Admittedly, no document is available in the entire File, to show that it was taken either by Hand, by Special messenger, by Registered post, by Speed post, by Fax or otherwise. No particulars of the 'Fax' or 'e-mail' details [which probably could have been the only modes to have it communicated on that day itself] or any particulars with regard to the return intimation as to the 'conditional approval' stated as given on 06.01.2009 is placed in the File. Even the original of Annexrue A is not available , but for a photocopy. In the said circumstances, this Court cannot but hold that there was absolutely no chance for having accepted the resignation by the competent authority/CMD on 06.01.2009 at Mumbai, pursuant to the 'file/note' originated and stated as forwarded from Kochi [Ambalamugal] on that day i.e. 06.01.2009. 10. Another aspect to be noted is that the 'approval' as mentioned above, was conditional i.e. subject to clearance of all outstanding dues to the Company. In other words, till the entire dues were cleared, the acceptance of resignation would not come into effect. According to the learned standing counsel for the employer/petitioner Company, clearance was obtained from all Departments to the effect that there were no dues. But some of the materials forming part of the file, particularly, issued from one of the Departments bearing the date 09.01.2009 shows that a sum of Rs. According to the learned standing counsel for the employer/petitioner Company, clearance was obtained from all Departments to the effect that there were no dues. But some of the materials forming part of the file, particularly, issued from one of the Departments bearing the date 09.01.2009 shows that a sum of Rs. 51,786/- was due towards 'car loan interest' and Rs.53,000/- towards 'adhoc advance'. Another document bearing endorsement dated 07.01.2009 and signature of the official concerned reveals that a sum of Rs.18/- was due towards the 'canteen coupon charges' for December 2008 and January 2009. As evident from Annexrue R(a) forwarding note/acceptance of the resignation, three months' notice pay had to be realized and admittedly, this amount was not satisfied by the employee, but was subsequently appropriated against the terminal benefits payable to him. This only suggests that the 'conditional approval' i.e. subject to satisfaction of due amounts to the Company had not come into effect till such satisfaction was recorded and as such, it was quite possible for the employee to withdraw his resignation as per Annexure A5 dated 06.01.2009, though stated as received only on 09.01.2009. 11. When the employee asserts that the Annexure A5 withdrawal was submitted on 06.01.2009, by hand; besides serving a copy of the same by other mode, the endorsement made by the DGM (P&A) on 09.01.2009 is to the effect that it was received only at 9.30 am on 09.01.2009. If this be true, what made the said officer to have it accepted on 09.01.2009, after relieving the employee at 8.30 a.m. on 09.01.2009, pursuant to the acceptance of the resignation on 06.01.2009, without getting the date of the said proceedings corrected as 09.01.2009' [in place of 06.01.2009' shown therein] remains a matter of mystery. The date shown on Annexure B stands intact as 06.01.2009' and it was never scored off or corrected/modified in any manner, which only points to the fact that, it must have been submitted by the employee on that day itself, i.e. 06.01.2009 as contended by him. 12. There is a case for the employee that as per Anenxure R1(b) Rules dealing with Resignation, various requirements had to be completed before accepting the resignation. It is contended that no 'exit interview' was done in his case. 12. There is a case for the employee that as per Anenxure R1(b) Rules dealing with Resignation, various requirements had to be completed before accepting the resignation. It is contended that no 'exit interview' was done in his case. But, merely for the reason that no exit interview was conducted, it cannot be said that the CMD could not have accepted the resignation, if it was actually accepted. Similarly, even if three months' prior notice was necessary, power is vested with the CMD to waive a portion of shortfall in the notice, to an extent of 30 days or less; subject to the conditions mentioned therein. But, what matters more is the manner in which the letter of resignation is to be accepted, as contained in the opening paragraph of 'Chapter F' dealing with Resignation under the General Rules in the Personnel Manual produced by the petitioner Company which reads as follows: F. RESIGNATION : Competent Authority to accept the resignation of the officer is Chairman and Managing Director of the Company. On receipt of the resignation of an officer, duly addressed to CMD, and forwarded through their Head of Division, the following procedure is to be followed: (i) After receipt of the resignation letter, PAD will intimate to FIN and Time Officer for further necessary action. (ii) Exit interview is to be conducted. (iii)The proposal for acceptance of the resignation by CMD is to be processed. 13. From the above, it is explicitly clear that the letter of resignation had to be duly addressed to CMD, to be forwarded through the Head of the Division, for being dealt with by the competent authority/CMD. The crucial question is, whether Annexure A4 letter of resignation was duly addressed to the CMD, to have been accepted, even if forwarded through the Head of the Division. As mentioned already, and as clearly discernible from Anenxure A3, the said letter of resignation was never addressed to CMD/Competent authority, but to the Deputy General Manager (P&A), Ambabalamugal. This being the position, on submitting Annexure A3 before the Deputy Manager (P&M), he ought to have returned it to the employee, instructing him to submit a proper application duly addressed to the CMD, to be in conformity with Ext.R1(B) Rules. This being the position, on submitting Annexure A3 before the Deputy Manager (P&M), he ought to have returned it to the employee, instructing him to submit a proper application duly addressed to the CMD, to be in conformity with Ext.R1(B) Rules. Instead of doing so, it was simply processed, that too, even without satisfaction of three months' salary towards notice pay [if at all consideration of it was emergent for the employee] on 06.01.2009, and was stated as accepted by the CMD at Mumbai on that day itself. Annexure A4 application tendering resignation could never be considered as 'valid application' duly addressed to the CMD, to have acted upon. Since it was never addressed to the CMD/competent authority, it was never to be forwarded to the said authority, to have it accepted and as such, any order passed on such invalid application is not liable to be treated as a valid order of acceptance. 14. Yet another important aspect to be noted is that, as per Ext. R1(b) Rules produced by the Company and even according to their pleadings, three months' notice is necessary to have the letter of resignation accepted; failing which, satisfaction of three months' salary [subject to permissible extent of concession to be ordered by the competent authority/CMD] is necessary. In Annexure A4 letter of resignation dated 23.12.2008, the employee had requested the DGM (P&A) to relieve him at the earliest. No communication was issued to him. This normally could have acted upon only after expiry of 'three months', as no specific date to bring the resignation to effect was mentioned in Annexure A4. No notice was admittedly issued to the employee, whether he wanted to have it considered immediately, and if so, to satisfy three months' salary towards notice pay. As it stands so, the employee was free to have it withdrawn before satisfying the requirements, and it was accordingly, that Annexure A4 was withdrawn as per Annexure A5 dated 06.01.2009 before acceptance by the Competent Authority. 15. In the above facts and circumstances, we are of the view that Ext. P5 order passed by the Tribunal does not warrant any interference at the hands of this Court. The Writ Petition fails and it stands dismissed accordingly. The 'File' produced by the learned standing counsel for the petitioner Company will stand returned to him.