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Madhya Pradesh High Court · body

2017 DIGILAW 501 (MP)

Shail Modi v. State of Madhya Pradesh

2017-04-12

HEMANT GUPTA, S.K.PALO

body2017
JUDGMENT : 1. The present appeal is directed against an order passed by the learned Single Judge on 25.11.2016, whereby the writ petition, challenging an order dated 29.12.2012 whereby the appellant was communicated that her resignation submitted on 2.7.2012 stands accepted therefore, her withdrawal of resignation cannot be considered. 2. Learned counsel for the appellant submitted that resignation was submitted on 2.7.2012, when the same was given to the Principal of the school. It is thereafter, the appellant sought to withdraw her resignation by communication dated 23.10.2012. The appellant reiterated her request on 17.12.2012 by submitting a request to the Collector, District - Khandwa. It is in pursuance to the said communications, the school informed the appellant on 29.12.2012 that her resignation was accepted soon after it was submitted and her salary was stopped. It is thereafter, the appellant was formally informed about the decision on the resignation on 10.12.2012. 3. Learned Single Judge dismissed the writ petition challenging the action of not permitting the appellant to withdraw her resignation on the ground that unilateral resignation does not require any acceptance. For such principle, the Court relied upon the judgments of Supreme Court in the cases of Moti Ram v. Param Dev - (1993) 2 SCC 725, Prabha Atri (Dr.) v. State of U.P. - (2003) 1 SCC 701 ; Shrikantha S. M. v. Bharath Earth Movers Ltd. - (2005) 8 SCC 314 ; Union of India v. Gopal Chandra Mishra - (1978) 2 SCC 301 and judgment in the case of Sitaram Jivyabhai Gavali v. Ramjibhai Potiyabhai Mahala and others - (1987) 2 SCC 262 . 4. The relevant extract form the judgment of the Supreme Court reported as Moti Ram v. Param Dev, (1993) 2 SCC 725, read as under: "16. As pointed out by this Court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. [See: Union of India v. Gopal Chandra Misra - (1978) 2 SCC 301 ] If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it. 17. Under the Constitution of India there are various offices which can be relinquished by unilateral act of the holder of the office and acceptance of resignation is not required, e.g., President [Article 56(a)], Vice-President [Article 67(a)], Deputy Chairman of Rajya Sabha [Article 90(b)], Speaker and Deputy Speaker of Lok Sabha [Article 94(b)], Judge of the Supreme Court [Article 124(2)(a)], Judge of a High Court [Article 217(1)(a)]. As regards member of either House of Parliament or a member of a House of Legislature of a State, originally, the position was that he could resign his office by unilateral act and the acceptance of resignation was not required. The requirement of acceptance of such resignation was introduced in Articles 101(3)(b) and 190(3)(b) by the Constitution (Thirty-third Amendment) Act, 1974. The requirement of acceptance of such resignation was introduced in Articles 101(3)(b) and 190(3)(b) by the Constitution (Thirty-third Amendment) Act, 1974. Similarly in Company Law, a Director of a company is entitled to relinquish his office at any time he pleases by proper notice to the company and acceptance of the resignation is not required. [See: Glossop v. Glossop and Halsbury's Laws of England, 4th Ed., Vol. 7, p. 316, para 536.] 18. A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer. Insofar as Government employees are concerned, there are specific provisions in the service rules which require acceptance of the resignation before it becomes effective. In Raj Kumar v. Union of India, it has been held : "... But when a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter." 5. Learned counsel for the appellant could not refer to any service condition of the school that resignation is required to be accepted or that there was any bar to submit resignation without notice of specific period. In absence of any such service condition to which the appellant is bound, the resignation would become effective from the moment it is submitted, as no one can be compelled to work against his wishes. It is case of unilateral resignation which does not require any acceptance by the employer. It is only in the circumstances where the service conditions require notice of specific period or resignation is required to be accepted by the management, the resignation will come into force only on acceptance, but in a case where there is no service condition contemplating either acceptance of resignation or period of resignation, the resignation will come into force with immediate effect. 6. 6. In view of the above, we do not find any error in the order passed by the learned Single Judge, which may warrant interference. 7. Accordingly, the appeal stands dismissed.