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2024 DIGILAW 619 (TS)

Mothukuri Babu Rao v. State of Telangana

2024-08-30

PULLA KARTHIK

body2024
ORDER : This Writ Petition, under Article 226 of the Constitution of India, is filed seeking the following relief: “…to issue Writ of Mandamus: a. To declare the action of the respondents in treating the petitioners employment as re appointment instead of treating the petitioners employment as continuation of his service as on dated: 30- 03-2022 as illegal, arbitrary, unconstitutional and violation of the principles of natural justice thereby to set aside the proceedings of the 3rd respondent, bearing No. E1/692(2)/2022-RM-KMM, dated: 11-05-2022 in treating the petitioners appointment as re appointment even after application of the petitioner for withdrawal of resignation before one month and even before issuance of proceedings dated: 11-05-2022 accepting the resignation by the 3rd respondent with effect from dated: 19-04-2022; b. To direct to return the amount deposited by the petitioner as per the orders of R-5 while forwarding the letter of resignation of the petitioner; and…” 2. The brief facts of the case are that the petitioner began working as a Tyre Mechanic in respondent No.2 Organization on 21.02.1990 and continued as such until 27.06.2012. Thereafter, he was appointed as an Assistant Depot Clerk on 28.06.2012, then promoted as a Leading Hand on 10.10.2013, and finally as Deputy Superintendent (Mechanical) on 31.03.2016. Further, due to his personal issues and work pressures, the petitioner tendered his resignation on 30.03.2022. The petitioner’s resignation letter was forwarded to respondent No.5, who directed the office to collect the petitioner’s one-monthly gross salary of Rs.45,859/- towards acceptance of resignation, and the petitioner has also deposited the same before respondent No.5 on 01.04.2022. However, despite tendering his resignation and depositing his one-month gross salary, he was asked to continue performing his duties until his resignation was accepted. As a result, he reported to duty in the month of April, 2022. Furthermore, while performing his duties at respondent No.5 Depot, the petitioner has decided to withdraw his resignation dated 30.03.2022, as he was already (58) years old and was about to retire from service on attaining the age of superannuation. As such, on 22.04.2022, the petitioner sent a letter to respondent No.5 requesting permission to withdraw his resignation, and he continued attending duties till 27.04.2022. However, he was not allowed to perform his duties after that day. Subsequently, respondent No.3 issued the impugned proceedings dated 11.05.2022, reappointing the petitioner into service, afresh. As such, on 22.04.2022, the petitioner sent a letter to respondent No.5 requesting permission to withdraw his resignation, and he continued attending duties till 27.04.2022. However, he was not allowed to perform his duties after that day. Subsequently, respondent No.3 issued the impugned proceedings dated 11.05.2022, reappointing the petitioner into service, afresh. Aggrieved by the same, the petitioner filed the present writ petition. 3. Heard Sri B. Chinnapa Reddy, learned counsel appearing for the petitioner and Sri Gaddam Srinivas, learned Standing Counsel for Telangana State Road Transport Corporation, on behalf of respondent Nos.2 to 5. 4. Learned counsel for the petitioner submits that the petitioner submitted his resignation letter on 30.03.2022, and prior to lapse of one month period and even before its acceptance, he sent a letter to respondent No.3 on 22.04.2022 requesting to withdraw his resignation. Furthermore, in the letter dated 22.04.2022, the petitioner made no request for a re-appointment or re-employment, rather, it was merely a permission to withdraw his resignation and a request to continue him in service under the same terms and conditions as on the date of submission of his resignation letter. However, without considering the same, respondent No.3 issued the impugned proceedings dated 11.05.2022, reappointing the petitioner into service, afresh, thereby, forfeiting the petitioner’s total approximate service of (32) years. It is further submitted that even after tendering his resignation, the petitioner was asked to perform his duties and he continued serving the respondent Organization until 27.04.2022 i.e., subsequent to submitted the letter of withdrawal of resignation dated 22.04.2022, and the petitioner was also paid salary for the month of April, 2022. Thus, it is deemed that the petitioner’s application was withdrawal of resignation is accepted even prior to acceptance of the resignation. 5. It is further submitted that in the impugned proceedings dated 11.05.2022, a reference was made to the acceptance of the petitioner’s resignation vide proceedings dated 19.04.2022. However, no such proceedings were ever communicated to the petitioner or the office of respondent No.5. Therefore, the petitioner’s continuation of service shall not be considered as a reappointment and he must be treated as a regular employee, owing to the fact that he withdrew his resignation within one month and also prior to its acceptance. Further, the petitioner has also continued his duties until 26.04.2022, i.e., until the respondent authorities refused to allow him to attend the duties. Further, the petitioner has also continued his duties until 26.04.2022, i.e., until the respondent authorities refused to allow him to attend the duties. It is also contended that the respondents must refund the deposited amount of Rs.45,859/- to the petitioner, in the light of the withdrawal of his resignation. Therefore, learned counsel for the petitioner prays this Court to pass necessary orders in the present writ petition. In support of his contentions, learned counsel relied on a decision of the Hon’ble Apex Court in J.N. Srivastava v. Union of India and another, (1998) 9 SCC 559 and a decision of the High Court of Gujarat in Haribhai J. Desai v. State of Gujarat and others, 2001 SCC OnLine Guj 545. 6. Per contra, learned Standing Counsel for the respondents submits that on 30.03.2022, the petitioner submitted an application requesting for acceptance of his resignation, and based on the same, a notification dated 01.04.2022 was issued to the petitioner, advising him to pay one-month gross salary of Rs.45,859/- as per Item No.6B(4)(1)(b) of the Employees’ Service Regulations. Accordingly, the petitioner has deposited his onemonth gross salary of Rs.45,859/- vide MR.No.02/076394 dated 01.04.2022, and he has also submitted his debit and credit particulars before respondent No.5 Depot in order to accept his resignation. Based on the said application, a resignation note was processed and the department has accepted his resignation on 19.04.2022. Thereafter, the petitioner submitted an application on 22.04.2022 requesting for withdrawal of his resignation and reinstatement into service, and the said application was received by respondent No.5 on 23.04.2022. Later, respondent No.5 processed a note vide Note File No.A1/692(1)/2022-SPL dated 27.04.2022, requesting authorization to withdraw the petitioner’s resignation. Accordingly, respondent No.3 has accorded permission to reappoint the petitioner afresh subject to certain conditions, and it has been clarified that the petitioner is not entitled for count of any portion of his previous service. In accordance with the same, the petitioner was issued a reappointment order dated 11.05.2022, and he reported to duty before respondent No.5 on 10.06.2022. Therefore, there are no merits in the present writ petition warranting indulgence of this Court. As such, learned Standing Counsel prays this Court to dismiss the present writ petition. 7. This Court has taken note of the rival submissions made by learned counsel for the respective parties. 8. Therefore, there are no merits in the present writ petition warranting indulgence of this Court. As such, learned Standing Counsel prays this Court to dismiss the present writ petition. 7. This Court has taken note of the rival submissions made by learned counsel for the respective parties. 8. A perusal of the record discloses that the petitioner submitted his resignation application on 30.03.2022 and on 01.04.2022, respondent No.5 addressed a letter to the office vide proceedings No.E1/692(1)/2022- SPL, directing to collect Rs.45,859/- from the petitioner towards onemonth gross salary in order to accept his resignation. Admittedly, on the same day, the petitioner deposited the aforementioned amount towards one-month gross salary in exchange for acceptance of his resignation. The petitioner then submitted a letter to respondent No.5 on 22.04.2022, requesting to withdraw his resignation dated 30.03.2022. Thereafter, respondent No.3 issued the impugned proceedings dated 11.05.2022 re-appointing the petitioner into service, afresh, subject to the following conditions: a) He become junior most in the cadre of the Dy.Supdt.(Mech) in Karimnagar Zone. b) TSRTC Employees Leave Regulations-193, item No.25(3) Resignation of service, even though it is followed immediately by re-employment, shall entail forfeiture of past service for the purpose of leave. c) Service Regulations- 7 (b): The re-appointment of such person to any service shall be treated in the same way as a first appointment to such service by direct recruitment and all rules governing such appointment shall apply; and on such re-appointment he shall not be entitled to count any portion of his previous service for any benefit or concession admissible under any rule of order. 9. In the impugned proceedings, a reference was made to the proceedings dated 19.04.2022, which dealt with respondent No.3 accepting the petitioner’s resignation. However, neither of the parties, more particularly, the respondents, produced the same before this Court. Further, according to the petitioner, no such proceedings were ever issued or communicated to him. Moreover, the counter affidavit filed by the respondents is also silent regarding this aspect. 10. A perusal of the petitioner’s pay-slip for the month of April 2022 would reveal that, even after submitting his resignation on 30.03.2022, the petitioner has performed his duties during the said period, and that he was also paid salary for the said month. In view of the same, it clear that the respondents have continued him in service and did not accept the petitioner’s resignation. In view of the same, it clear that the respondents have continued him in service and did not accept the petitioner’s resignation. Further, it is to be noted that the petitioner was denied to perform his duties only from 27.04.2022 onwards. Hence, it can be assumed that the alleged proceedings dated 19.04.2022 regarding acceptance of the petitioner’s resignation were never in existence. 11. A similar issue fell for consideration before the Hon’ble Apex Court in the case J.N. Srivastava (referred supra), wherein, it is held as follows: “3. The short question is whether the appellant was entitled to withdraw his voluntary retirement notice of three months submitted by him on 3-10-1989 which was to come into effect form 31-1-1990. It is true that this proposal was accepted by the authorities on 2-11-1989. But thereafter before 31-1-1990 was reached, the appellant wrote a letter to withdraw his voluntary retirement proposal. This letter is dated 11-12- 1989. The said request permitting him to withdraw the voluntary retirement proposal was not accepted by the respondents by communication dated 26-12-1989. The appellant, therefore, went to the Tribunal but the Tribunal gave him no relief and took the view that the voluntary retirement had come into force on 31-1-1990 and the appellant had given up the charge of the post as per his memo relinquishing the charge and consequently, he was stopped from withdrawing his voluntary retirement notice. In our view the said reasoning of the Tribunal cannot be sustained on the facts of the case. It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement. The said view has been taken by a Bench of this Court in the case of Balram Gupta v. Union of India1. In view of the aforesaid decision of this Court it cannot be said that the appellant had no locus standi to withdraw his proposal for voluntary retirement before 31-1-1990. It is to be noted that once the request for cancellation of voluntary retirement was rejected by the authority concerned on 26-12-1989 and when the retirement came into effect on 31-1-1990 the appellant had no choice but to give up the charge of the post to avoid unnecessary complications. It is to be noted that once the request for cancellation of voluntary retirement was rejected by the authority concerned on 26-12-1989 and when the retirement came into effect on 31-1-1990 the appellant had no choice but to give up the charge of the post to avoid unnecessary complications. He, however, approached the Tribunal with the main grievance centering round the rejection of his request for withdrawal of the voluntary retirement proposal. The Tribunal, therefore, following the decision of this Court ought to have granted him the relief. We accordingly, allow these appeals and set aside the orders of the Tribunal as well as the order of the authorities dated 26-12-1989 and directed the respondents to treat the appellant to have validly withdrawn his proposal for voluntary retirement with effect from 31-1-1990. The net result of this order is that the appellant will have to be treated to be in service till the date of his superannuation which is said to be somewhere in 1994 when he completed 58 years of age. The respondent-authorities will have to make good to the appellant all monetary benefits by treating him to have continuously worked till the date of his actual superannuation in 1994. This entitles him to get all arrears of salary and other emoluments including increments and to get his pensionary benefits refixed accordingly. However, this will have to be subject to adjustment of any pension amount and other retirement benefits already paid to the appellant in the meantime up to the date of his actual superannuation. It was submitted by learned Senior Counsel for the respondent-authorities that no back salary should be allowed to the appellant as the appellant did not work and therefore, on the principle of “no work, no pay”, this amount should not be given to the appellant. This submission of learned Senior Counsel does not bear scrutiny as the appellant was always ready and willing to work but the respondents did not allow him to work after 31-1-1990. The respondents are directed to make available all the requisite monetary benefits to the appellant as per the present order within a period of 8 weeks on the receipt of copy of this order at their end. Office shall send the same to the respondents at the earliest.” 12. The respondents are directed to make available all the requisite monetary benefits to the appellant as per the present order within a period of 8 weeks on the receipt of copy of this order at their end. Office shall send the same to the respondents at the earliest.” 12. The record further discloses that respondent No.5 processed the petitioner’s application vide File No.E1/692(1)/2022-SPL dated 27.04.2022, in order to obtain permission for acceptance of withdrawal of the petitioner’s resignation. It is evident from the said proceedings that as on 27.04.2022, the petitioner’s resignation was not accepted. Though, in the impugned order, a reference was drawn to the proceedings dated 19.04.2022 accepting the petitioner’s resignation, the said proceedings were, admittedly, never been communicated to the petitioner. Furthermore, the petitioner was permitted to perform his duties until 27.04.2022. Hence, it can be inferred that the petitioner’s resignation was never accepted. 13. In the facts and circumstances of the case, this Court is of the opinion that the respondents have erroneously issued the present impugned proceedings dated 11.05.2022 reappointing the petitioner, afresh, without duly considering his request for withdrawal of the resignation dated 22.04.2022. 14. In view of the above made discussion, this Court deems it fit and proper to direct the respondents to treat the petitioner’s employment as a continuation of his service and not as a fresh employment. Therefore, the petitioner is entitled for all the consequential monetary benefits including pension and pensionary benefits. However, it is made clear that he is not entitled for any salary for the period he was not on duty, in view of the ‘no work, no pay’ principle. Further, the respondents are further directed to return the petitioner’s one-month gross salary of Rs.45,859/- deposited towards acceptance of his resignation. 15. Accordingly, the Writ Petition is allowed. Miscellaneous applications, if any, pending in this writ petition, shall stand closed. No costs.