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2018 DIGILAW 773 (ORI)

Jagannath Pattnaik v. State Of Odisha

2018-08-28

K.R.MOHAPATRA, K.S.JHAVERI

body2018
ORDER K.S. Jhaveri, C.J. - Heard. 2. Petitioner in this writ petition challenges the judgment order dated 30.04.1999 (Annexure-8) passed by the Odisha Administrative Tribunal,Cuttack Bench, Cuttack in O.A. No.1682(C) of 1994, by which learned Tribunal has rejected the Original Application of the petitioner. 3. Main contention of the learned Senior Advocate for the petitioner was that the petitioner was not granted the benefit of Government Scheme/Policy with regard to transfer and posting of its employees, whereby after serving in the backward districts, an employee is to be transferred to his home district. But, under a misconception, the petitioner was transferred from Padmapur (Koraput) to Cuttack instead of Rayagada (his home district) vide order dated 28.06.1991 (Annexure-1) in the guise of implementation of said Policy decision. He, accordingly made representations as at Annexure-3 series to the Director of the then Harijan and Tribal Welfare Department at regular intervals, i.e., on 09.07.1992, 30.11.1992 and 31.05.1993. In his first representation dated 09.07.1992, he requested the authority for posting him at any place in Rayagada Welfare district and in any of the blocks like Gudari, Gunupur, Ramanguda, Padmapur or Kasinagar block of Koraput district. He even intimated his intention of taking voluntary retirement, vide his representation dated 30.11.1992 and 31.05.1993, in case his prayer for transfer to his home district is not considered favourably. However, Director-cum-Additional Secretary to Government in Tribal Welfare Department vide his order dated 20.01.1993, directed for transfer of the petitioner from Marsaghai block in Cuttack district to Malkangiri district on administrative ground. Further, rejecting his prayer for being transferred to Rayagada district, he was directed vide letter dated 25th June, 1993 (Anneuxre-5) of the Deputy Secretary to Government in Tribal Welfare Department to apply for voluntary retirement through proper channel. 4. Pursuant to issuance of Annexure-5, petitioner, vide his letter dated 30th July, 1993 (Annexure-6), intimated the Commissioner-cum-Secretary to Government in Tribal Welfare Department that since he has already offered option for taking voluntary retirement vide representation dated 30.11.1992 and 31.05.1993 in case his prayer for transfer to his home district (Rayagada) is not granted, there is no need of separate application for voluntary retirement. Subsequently, the Deputy Secretary, Tribal Welfare Department vide order dated 19th August, 1993 (Annexure-6/1) intimated the petitioner that application for voluntary retirement should be submitted without putting any condition. Subsequently, the Deputy Secretary, Tribal Welfare Department vide order dated 19th August, 1993 (Annexure-6/1) intimated the petitioner that application for voluntary retirement should be submitted without putting any condition. However, since the petitioner did not respond, the Additional Secretary to Government in Tribal Welfare Department, who was in-charge of the Director T & W, Government of Odisha, by his order dated 9th March, 1994, accepted prayer of the petitioner for voluntary retirement with immediate effect. 5. Learned Senior Advocate for the petitioner has mainly contended that in spite of his specific allegation before the Tribunal as well as before this Court, no response/counter was filed by the Government. Relevant paragraphs-3 and 12 of the writ petition are reproduced herein below:- "3.....It is submitted here that, all the appointment initially as Agriculture Teacher and Subsequently as W.E.O. was given by the State Government. xx xx xx 12. That, even though no voluntary retirement notice as provided under the rule was submitted through proper channel, as is evident from the letter of Deputy Secretary to Govt. In T&W Deptt. Dated 19.8.93 stating that voluntary retirement on condition merits no consideration. A copy of the aforesaid letter annexed herewith as Annexure-6/1. But surprisingly treating the representation dated 30.7.93 submitted to the Commissioner-cum-Secretary to Govt. in Welfare Department in response to his order dated 25.06.93, and even though the said representation was submitted out of disgust and utter frustration and the same was a conditional one, without applying his mind and in the absence of any power/authority and not being the appointing authority, the opposite party No.2 himself vide order No.8419 dated 9.3.94 allowed the voluntary Retirement of the petitioner from Government Service." 6. In support of his contention that the appointing authority and the relieving authority being different, the impugned order is not sustainable, learned Senior Advocate strongly relied upon the decision in the case of Delhi Electricity Supply Undertaking vs. Tara Chand, reported in 1978 (2) SLR 425 , relevant portion of which reads as under: "4. The trouble in this case started with the transfer of Tara Chand from Jama Masjid to Jangpura on 27.01.1962. The respondent did not take kindly to this particularly because it would compel him to walk about 25 miles daily between his quarters and office. He did not report at Jangpura by 31.01.1962 as directed. The trouble in this case started with the transfer of Tara Chand from Jama Masjid to Jangpura on 27.01.1962. The respondent did not take kindly to this particularly because it would compel him to walk about 25 miles daily between his quarters and office. He did not report at Jangpura by 31.01.1962 as directed. Instead, he wrote a very long representation to the G.M.-cataloguing a series of grievances and complaints against his immediate superiors and alleging that he was being victimized and ill-treated by them because he, out of loyalty to the undertaking, stood in the way of their benefiting by malpractices and corrupt practices at the cost of the undertaking. He requested that he may be transferred to some other station under the DESU Colony and stated he could prove all his allegations before the enquiry committee. Unfortunately be concluded this letter by saying:- "Under protest due to cruel behaviour and unfair terms of the officers concerned of the DESU throughout of my nine (9) years service I am being compelled by them hereby to resign for the sake of the saving of lives of myself and my family members." This letter, according to DESU, was a letter of resignation by Tara Chand from his job and was accepted by the administration w.e.f. 1.4.1962. The Labour Court, after examining in detail the circumstances in which this letter came to be written and, 'accepted' and its language, came to the conclusion that it was only a letter of grievances and not one of resignation. Kappur J. was of the view that the proper interpretation of the letter was purely a question of fact and expressed himself unable "to hold that the Labour Court was wrong in treating the letter as not a letter of resignation". The Labour Court also held that, even if it was a letter of resignation, it had not been properly and validly accepted and this finding was also upheld by Kapoor, J. These are the two basic issues for determination in this appeal. xx xx xx 9. We agree with Sri Dayal that the fact that the letter contains a detailed catalogue of grievances does not militate against its being a letter of resignation. xx xx xx 9. We agree with Sri Dayal that the fact that the letter contains a detailed catalogue of grievances does not militate against its being a letter of resignation. It is not unusual to find a person even when he is actually resigning from an employment, taking advantage of the opportunity for slinging brickbats against the employer which he could not have done with impunity earlier while in service. But it seems to us that it would not be correct, as Sri Dayal does to read only the last sentence and ignore the rest of the letter as irrelevant and meaningless. It is a cardinal rule of interpretation that a document should be read as a whole and the meaning of last sentence should be appreciated in the context of the whole letter. Perusing the letter carefully, it appears to us that there are several passages which show that it was not a resignation letter. At the outset, we may point out, the employee prepared as many as nine copies to various officers which is more consistent with a letter of complaint than one of resignation. Then, the LETTER starts by saying that the writer is in bad health and on sick leave and was compelled by his superiors to write the letter. It proceeds to level various allegations which it is purposeless to repeat, but there are certain passages whose significance cannot be missed. After cataloguing several "misdeeds" of his immediate superiors, there is a prayer that: I may be transferred to some other Station which may be nearer to DESU Colony". There is an assertion that all the allegations "will be proved before your honour and documentary proof will be provided to the E/c (Enquiry Committee)". Even in the ultimate sentence immediately before the sentence on which the entire case of the Corporation is based it is said that documentary proof was ready and that everything will be explained fully in the Enquiry Committee. The penultimate para contains a request "to deal with case as a special," as many new cases will come to the G.M's notice. These passages cannot have any meaning if the employee's wish was only to resign. Above all, in the final sentence the words "hereby to resign from the service" follow upon the words, "compelled by the officer and are in inverted commas. We have perused this letter carefully. These passages cannot have any meaning if the employee's wish was only to resign. Above all, in the final sentence the words "hereby to resign from the service" follow upon the words, "compelled by the officer and are in inverted commas. We have perused this letter carefully. We find that there are a number of place where inverted commas appear: but they are all places where the use of inverted commas is appropriate as containing an extract of what someone has said. The use of inverted commas in the last sentenced should also be attached its due significance as incorporating an alleged demand by his superiors that he should resign. The word 'hereby' is also in quotations and though in certain contexts, as in the case cited by Shri Dayal, the word has been interpreted as "throughout', it cannot be understood in this case to mean that Tara Chand was tendering a letter of resignation. xx xx xx 12. There is also another aspects which we may mention here, Both the Labour Court and the learned Single Judge have come to conclusion on a consideration of the relevant circumstances, that the letter of 1-3-1962 was not a resignation letter. We agree, for the reasons above discussed, with this conclusion. But even assuming that two views may be possible and that the contention of Sri Dayal is a plausible one. We do not think we would be justified in interfering with the concurrent conclusions arrived at by the Labour Court and Kapur, J. We therefore, confirm on this point the view taken by the Labour Court and Kapoor, J. and hold that the letter dated 1-3-1962 was only a representation of certain grievances against the management and not a resignation letter. xx xx xx 21. Contention No.3. But, supporting that an acceptance by the DESU was necessary before the resignation can be effective, was there a valid and proper acceptance here? The case of the respondent is that the resignation can be validly accepted only by the GM to whom the letter of 1-3-1962 was addressed and who was otherwise competent to accept it. Contention No.3. But, supporting that an acceptance by the DESU was necessary before the resignation can be effective, was there a valid and proper acceptance here? The case of the respondent is that the resignation can be validly accepted only by the GM to whom the letter of 1-3-1962 was addressed and who was otherwise competent to accept it. Sri Dayal, on the other hand, urged that in an organization that is governed by statutory rules and regulations, it would not be correct to say that the resignation letter can be accepted only by the person who, it was addressed, particularly when copies thereof have been endorsed to all persons including the A.O.G. and A.P.O. We, should, therefore, try to trace the authority empowered by the statute and the regulations thereunder in such matters. The relevant sections of the DMC Act are Ss. 64, 491 and 504. Section 64 enacts that, save as otherwise provided in the Act, the entire executive power pertaining to the DESU will vest in the G.M. (Electricity) who shall also, inter alia. "(ii) prescribe the duties of, and exercise supervision and control over all acts and proceedings of all municipal officers and other municipal employees employed in connection with the Delhi Electric Supply Undertaking and subject to such regulations as may be made in this behalf, disposed of all matters relating to the service of the said officers and other employees and their pay, privileges, allowances and other conditions of service." xx xx xx So, it is said, the resignation letter or representation received from the respondent had to be disposed of not by the G.M. but only by the A.O.G. xx xx xx 31. We may also point out that the very basis of Shri Dayal's argument that the issue has been finally decided in the Rent Control proceedings is not correct. The Rent Controller no doubt expressed an opinion that the letter was one of a resignation but he was primarily influenced by the factual position that Tara Chand had been relieved of his duties and had not been doing any work in the DESU after 1-4-1962. On appeal the Rent Control Tribunal also confirmed this order observing: "it is not for this Court to decide how for the appellants dismissal or termination is regular or legal. This matter is said to be pending in some other Court of competent jurisdiction. On appeal the Rent Control Tribunal also confirmed this order observing: "it is not for this Court to decide how for the appellants dismissal or termination is regular or legal. This matter is said to be pending in some other Court of competent jurisdiction. According to the appellant's own admission, he has not been put to any work under the respondent Corporation.....and the order of eviction passed against the appellant may appear fully justified because of the cessation of his work about 4 or 5 years ago." In other words, the effect in law of the LETTERS was not adjudicated upon by these Tribunals which went by the factual position that Tara Chand had ceased to render services to the DESU after 1-4-1962. We, therefore, held that even if Shri Dayal's above contentions are accepted, the bar does not apply on the fact and circumstances of the case. xx xx xx " Reliance is also place on the decision in the case of Dr. Prabha Atri vs. State of U.P. and others, reported in AIR 2003 SC 534 , wherein the Hon'ble Supreme Court held as under:- "7. The only question that mainly requires to be considered is as to whether the letter dated 9.1.1999 could be construed to mean or amounted to a letter of resignation or merely an expression of her intention to resign, if her claims in respect of the alleged lapse are not viewed favourably. Rule 9 of the Hospital Service Rules provided for resignation or abandonment of service by an employee. It is stated therein that a permanent employee is required to give three months notice of resignation in writing to the appointing authority or three months salary in lieu of notice and that he/she may be required to serve the period for such notice. In case of non-compliance with the above, the employee concerned is not only liable to pay an amount equal to three months salary but such amount shall be realizable from the dues, if any, of the employee lying with the Hospital. In Words and Phrases (Permanent Edition) Vol. 37 at page 476, it is found stated that, "To constitute a "resignation", it must be unconditional and with intent to operate as such. There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. In Words and Phrases (Permanent Edition) Vol. 37 at page 476, it is found stated that, "To constitute a "resignation", it must be unconditional and with intent to operate as such. There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. It is to give back, to give up in a formal manner, an office." At page 474 of the very same book, it is found stated: "Statements by club's President and corresponding Secretary that they would resign, if constant bickering among members did not cease, constituted merely threatened offers, not tenders, of their resignations." It is also stated therein that "A 'resignation' of a public office to be effective must be made with intention of relinquishing the office accompanied by act of relinquishment". In the ordinary dictionary sense, the word 'Resignation' was considered to mean the spontaneous relinquishment of one's own right, as conveyed by the maxim: Resignatio est juris proprii spontanea refutatio [Black's Law Dictionary 6th Edition]. In Corpus Juris Secundum. Vol.77, page 311, it is found stated "It has been said that 'Resignation' is a term of legal art, having legal connotations which describe certain legal results. It is characteristically, the voluntary surrender of a position by the one resigning, made freely and not under duress and the word is defined generally as meaning the act of resigning or giving up, as a claim, possession or position." xx xx xx 10. We have carefully considered the submissions of the learned counsel appearing on either side, in the light of the materials and principles, noticed supra. This is not a case where it is required to consider as to whether the relinquishment envisaged under the rules and conditions of service is unilateral or bilateral in character but whether the letter dated 9.1.1999 could be treated or held to be a letter of resignation or relinquishment of the office, so as to severe her services once and for all. The letter cannot be construed, in our view, to convey any spontaneous intention to give up or relinquish her office accompanied by any act of relinquishment. To constitute a 'resignation', it must be unconditional and with an intention to operate as such. The letter cannot be construed, in our view, to convey any spontaneous intention to give up or relinquish her office accompanied by any act of relinquishment. To constitute a 'resignation', it must be unconditional and with an intention to operate as such. At best, as observed by this Court in the decision in P.K. Ramachandra Iyer (supra) it may amount to a threatened offer more on account of exasperation, to resign on account of a feeling of frustration born out of an idea that she was being harassed unnecessarily but not, at any rate, amounting to a resignation, actual and simple. The appellant had put in about two decades of service in the Hospital, that she was placed under suspension and exposed to disciplinary proceedings and proposed domestic enquiry and she had certain benefits flowing to her benefit, if she resigns but yet the letter dated 9.1.99 does not seek for any of those things to be settled or the disciplinary proceedings being scrapped as a sequel to her so-called resignation. The words 'with immediate effect' in the said letter could not be given undue importance dehors the context, tenor of language used and the purport as well as the remaining portion of the letter indicating the circumstances in which it was written. That the management of the Hospital took up such action forthwith, as a result of acceptance of the resignation is not of much significance in ascertaining the true or real intention of the letter written by the appellant on 9.1.1999. Consequently, it appears to be reasonable to view that as in the case reported in P.K. Ramachandra Iyer (supra) the respondents have seized an opportunity to get rid of the appellant the moment they got the letter dated 9.1.1999, without due or proper consideration of the matter in a right perspective or understanding of the contents thereof. The High Court also seems to have completely lost sight of these vital aspects in rejecting the Writ Petition." Relying on the above two decisions, learned Senior Advocate for the petitioner contended that the voluntary retirement has been wrongly accepted. 7. Learned counsel for opposite party-State, on the other hand, supporting the decision of the Tribunal contended that while accepting the resignation the authority has relieved him and 22 years have passed in the meantime. 7. Learned counsel for opposite party-State, on the other hand, supporting the decision of the Tribunal contended that while accepting the resignation the authority has relieved him and 22 years have passed in the meantime. Thus, the thing which has occurred 22 years back should not be allowed to be altered. Learned counsel for the opposite parties has taken us to the order of the Tribunal and contended that the Tribunal, while considering the matter, at paragraphs-3 and 4, observed as under:- "3. No counter has been filed in this case. Accordingly, with available materials on record we dispose of this O.A. 4. In terms of the Orissa Service Code, a Government servant can retire from Government Service voluntarily by giving three months' notice. The termination of Service of an employee is permissible both at the instance of the employer and employee. In the case of permanent government servant his services get terminated by notice of three months from either side. Thus when an employee given notice for voluntary retirement, it takes effect, automatically after expiry of three months notice periods. In absence of any specific provision, in the service code the authorities cannot prevent a government servant from retiring voluntarily or force him to continue in service beyond that period. There seems to be no instructions on question of acceptance of such retirement. Mr.Rao the learned counsel for the applicant challenges annexure-8 basing on the decision indicated above. The authority referred to above is distinguishable both on points of fact and law. This is a case of resignation which is always subject to acceptance. In the given case the applicant issued notice for voluntary retirement with effect from 1.3.1993 by addressing annexure-3 dated 13.11.1992. Since no decision was taken, he again insisted to allow him to retire voluntarily by issuing letter under annexure-5 dated 31.05.1993. Even though he was asked to submit an application for voluntary retirement separately under annexure-6, he did not comply and insisted through annexure-7, to allow his voluntary retirement. In consideration of his insistence for voluntary retirement, there was no other alternative for respondents than to allow him to retire voluntarily from government service with immediate effect under annexure-8. Even though he was asked to submit an application for voluntary retirement separately under annexure-6, he did not comply and insisted through annexure-7, to allow his voluntary retirement. In consideration of his insistence for voluntary retirement, there was no other alternative for respondents than to allow him to retire voluntarily from government service with immediate effect under annexure-8. Even assuming for the sake of argument, that he was inadvertently posted at Cuttack instead of Rayagada under annexure-1, that by itself will not confer on him any enforceable right for a posting at his home district. In that view of the matter, we find no merit in the O.A." However, before proceeding further in the matter, it is very much clear from the record that all throughout as stated hereinabove, petitioner in all his applications/representations was keen to take VRS and the authority while considering the matter has taken into consideration that it was not possible to accept his request for transfer to Rayagada district. In that view of the matter, the 2nd request of the petitioner was accepted. Apart from that, the Addl. Secretary to the Government is the same authority; it is only delegation of power. Only on technical ground, the VRS cannot be set aside after 22 years. In our considered opinion, the intention of the petitioner is very much clear that he does not want to work at Cuttack or at the transferred place, i.e., Malkangiri. He wanted to be transferred specifically to his home town/district, i.e., Rayagada, which has not been accepted by the State Government and VRS has been accepted. 8. In our considered opinion, the view taken by the Tribunal is just and proper. No interference is called for. Hence, the writ petition being devoid of any merit stands dismissed.