Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9532 of 2012 ====================================================== Pandey Venktesh Prasad Sinha S/O Late Bhairaw Prasad R/O Vill- Matukpur, P.S.-Barhara, Distt-Bhojpur .... .... Petitioner Versus 1. The State Of Bihar Through Principal Secretary, Social Welfare Department Govt. Of Bihar, Patna 2. Deputy Secretary, Social Welfare Department Govt. Of Bihar, Patna 3. Director , I.C.D.S., Directorate , Social Welfare Department Govt. Of Bihar, Patna 4. District Magistrate Kishanganj 5. District Programme Officer Kishanganj 6. Sub-Divisional Officer Kishanganj 7. Block Development Officer Dighalbank, Distt-Kishanganj .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Banwari Sharma, Adv. Mr. Shiv Kumar, Adv. For the Respondent/s : Mr. Girija Shankar Pd GP-1 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 5 08-03-2013 Heard counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “For issuance of a writ in the nature of writ of certiorari for quashing the notification issued vide memo no. 2187 dated 27.4.2012 under the signature of Deputy Secretary, Social Welfare Department, Govt. of Bihar, as contained in Annexure 10, whereby and whereunder after accepting the resignation of the petitioner w.e.f. 8.6.2011, his service has been terminated. And further a writ in the nature of writ of Mandamus for directing the respondent authorities to reinstate the petitioner on the post on which he was working earlier with all the consequential benefits Patna High Court CWJC No.9532 of 2012 (5) dt.08-03-2013 2 in accordance with law.” Mr. Banwari Sharma, learned counsel appearing on behalf of the petitioner, in support of the aforementioned prayer has submitted that the impugned order cannot be sustained primarily on the ground that the respondents have literally acted against the spirit of Rule 74 of the Bihar Service Code, inasmuch as the petitioner had never sought voluntary retirement which has been virtually made the basis for accepting the resignation of the petitioner. In this regard he would submit that the concept of voluntary retirement under Rule 74 of the Bihar Service Code is totally different from the concept of resignation, inasmuch as whereas voluntary retirement will come into force only after giving notice by an employee and completion of period of 90 days, the effect of resignation will be only from the date it is accepted by the employer. He has also in this regard invited attention of this Court to the resignation letter of the petitioner dated 8.6.2011 wherein the petitioner had tendered his resignation and had not sought voluntary retirement. It is on the basis of the aforesaid submission that he has also proceeded to explain that the impugned order dated 27.04.2012 terminating the service of the petitioner by way of acceptance of resignation letter of the petitioner dated 8.6.2011 despite the Government being fully
Facts
Patna High Court CWJC No.9532 of 2012 (5) dt.08-03-2013 3 aware of withdrawal of such resignation by the petitioner on 29.9.2011 would be contrary to the principles well settled in law that an incumbent who has put in his papers for resignation will always be entitled to withdraw such resignation prior to its acceptance by the competent authority. In this case a counter affidavit has been filed by the Special Secretary of the Department wherein certain justification has been given for passing of the impugned order. In the said counter affidavit the stand of the Government seems to be that as the petitioner had submitted his resignation letter on 8.6.2011 and thereafter the petitioner had also relinquished charge of his post and had not done any work while leaving the Headquarter on 26.6.2011 he will be deemed to have abandoned his service and as such his resignation had come into effect. It has also been stated that the Government in view of the subsequent event of withdrawing resignation by the petitioner on 29.9.2011 had sought opinion from the Finance Department and the Finance Department on the basis of circular no. 6190 dated 27.7.1979 had given its opinion that a Government servant will retire voluntarily from service only after giving three months prior notice. It has also been explained that though the petitioner had submitted his application for withdrawal of his resignation but since it was done after more Patna High Court CWJC No.9532 of 2012 (5) dt.08-03-2013 4 than three months, the Finance Department did not agree on the proposal of the department and the resignation of the petitioner was accepted with effect from 8.6.2011 by passing the impugned order. In the considered opinion of this Court there is something amiss in the functioning of the Government. The Finance Department’s opinion is not on record. There is also nothing on record to show that after the petitioner had tendered his resignation on 8.6.2011 and before it was withdrawn on 29.9.2011 there was any order passed by the competent authority accepting such resignation of the petitioner. Once this aspect infact becomes admitted that the resignation of the petitioner was not accepted prior to 29.9.2011 and filing of withdrawal of resignation letter by the petitioner dated 29.9.2011 is also not in dispute inasmuch as its mention has been made even in the impugned order dated 27.4.2012, there would be nothing left for this Court to speculate that the impugned order based on the concept three month's notice of voluntary retirement could not have been passed by way of acceptance of resignation of the petitioner on 27.4.2012. In that view of the matter, the solitary plea taken in the counter affidavit seems to be both factually incorrect and legally impermissible. The petitioner’s conduct whether he had been continuing Patna High Court CWJC No.9532 of 2012 (5) dt.08-03-2013 5 in service on or after 8.6.2011 or had abandoned his post and thereafter had violated the order of transfer are matter of details which the department could have gone into in view of the report received from the Collector of the District but it could not have proceeded to accept the resignation letter of the petitioner dated 8.6.2011 on 27.4.2012 when such resignation had already stood withdrawn by the petitioner with effect from 29.9.2011. To that
Legal Reasoning
This Court infact has also considered the contents of the resignation letter of the petitioner dated 8.6.2011, relevant portion whereof reads as follows:- ^^var esa xgu fopkjksijkUr esa blh fu"d"kZ ij igwWpk gwW fd bl rkyhckuh O;oLFkk es a jgdj fcgkj ljdkj dh lsok djus ls csgrj R;kx i= gh nsuk lgh gS vkSj eSa ,rn~ }kjk vkt fnukad 08-06-2011 ds vijkg~u ls fcgkj ljdkj dh lsok ls R;kx i= ns jgk gwWA d‘i;k esjs R;kx i= dks Lohdkj fd;k tk;s vkSj fdlh vU; inkf/kdkjh dks ifj;kstuk dk Routine dk;ksZa dks laikfnr djus ds fy;s izkf/kd‘r djus dh fo’ks"k d‘ik djsaxsA eSa laizfr dkQh Depression esa gwWA esjs tSls lalk/ku fofgru inkf/kdkjh tks fiNys yxHkx ,d o"kksZa ls vieku] izrkM+uk ds ckotwn vius dRrZO;ks dk fuogZu djrs vk jgk gwWA esjs }kjk ,d ekg rd ljdkj dh etnwjh djus ds ckotwn esjk osru LFkfxr dj nsuk U;k;kfpr ugha gSA jksdM+ cgh dk izHkkj eSa LoLFk gksus ij ns nwWxkA** Patna High Court CWJC No.9532 of 2012 (5) dt.08-03-2013 6 The aforesaid letter of resignation therefore cannot be held to be voluntary which is a must for being a valid letter of resignation as was held by the Apex Court in the case of P. Kasilingam Vs. P.S.G. College of Technology reported in AIR 1981 SC 789, Punjab National Bank Vs. P.K. Mittal reported in AIR 1989 S.C. 1083 = 1989 (2) SLJ Page-1, Dr. Prabha Atri Vs. State of U.P., reported in (2003) 1 SCC page 701. and also the case of Srikantha S.M. Vs. Bharat Earth Movers Ltd. in 2005(8) SCC 314 wherein it has been held that in order to constitute resignation it must be unconditional and with intention to operate as such. In Dr. Prabha Atri‟s case she was served with a memo of charge dated 5.1.1999 and on 9.1.1999 while replying to the charges she had stated that if explanation was not acceptable then she would have no option but to tender his resignation with immediate effect. Such resignation of Dr. Prabha Atri having been accepted on 9.1.1999 itself, when her writ petition against the impugned order accepting his resignation was dismissed. The Apex Court after considering the concept of resignation and also considering the earlier judgment of the Apex Court in the case of „P.K.Ramachandra Vs. Union of India‟ reported in 1984(2) SCC- 141, as also in the case of „Moti Ram Vs. Paramdeo‟ reported in Patna High Court CWJC No.9532 of 2012 (5) dt.08-03-2013 7 1993 (2) SCC-725 and also in the case of „Union of India Vs. Gopal Chandra Mishra‟ reported in 1978 (2) SCC-301 had held that even if expression used for tendering resignation with immediate effect was there in Dr. Prabha Atri‟s letter dated 9.1.1999, the same could not be accepted as letter of resignation. Paragraph 10 of the aforesaid judgment in the case of „Dr. Prabha Atri Vs. State of U.P. & Ors‟ reported in (2003) 1 S.C.C. 701 in this context becomes relevant which is quoted hereinbelow:- “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 sever her services once and for all. The letter cannot be construed, in our view, to convey and 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 Patna High Court CWJC No.9532 of 2012 (5) dt.08-03-2013 8 decision in P.K. Ramachandra Iyer 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 9.1.1999 does not seek for any of those things to be settled or the disciplinary proceedings being scrapped as a sequel to her so-call 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 the respondents have seized an opportunity to get rid of the appellant the moment they got the Patna High Court CWJC No.9532 of 2012 (5) dt.08-03-2013 9 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.” Having held that the letter of resignation of the petitioner dated 08.06.2011 was not voluntary and thus could not have been acted upon by the Respondents, the next question would be as to whether it could have been accepted on 27.04.2012 even when the petitioner had already withdrawn his letter of resignation by his application dated 29.09.2011, relevant portion whereof reads as follows:- ^^lsok eas] mi lfpo] lekt dY;k.k foHkkx] fcgkj] iVukA fo"k;& R;kx i= fujLr djus ds laca/k esaA egk’k;] mi;qZDr fo"k; ds laca/k esa eq>s lknj dguk gS fd eSsus viuh i= la[;k 221] fnukad 08-06-2011 }kjk R;kx i= ftyk inkf/kdkjh] fd’kuxat dks Hkst fn;k FkkA okLro esa ;g R;kx i= eSus LosPNk ls ugha fn;k FkkA ckj ckj eq>s viekfur ,oa ekufld :i ls izrkfM+r fd;k tkrk FkkA ftlds dkj.k eSa ?kksj ekufld ruko esa vk x;k FkkA eSus ;g R;kx i= ?kksj ekufld ncko ,oa ruko esa vkdj fn;k FkkA bl laca/k esa eq>s vkxs dguk gS fd esjh lsokfuo‘fr dh frfFk fnukad 31-03-2013 gSA bl rjg Li"V gS fd esjk lsok dky yxHkx Ms<+ o"kZ ’ks"k gS vkSj eSA viuh ’ks"k lsok dky iwjh djuk pkgrk gwWWA Patna High Court CWJC No.9532 of 2012 (5) dt.08-03-2013 10 vr% Jheku~ ls lknj vuqjks/k gksxk fd esjs R;kx i= dks fujLr djus dh egrh d‘ik dh tk;sA fo’oklHkktu g0@& 29-09-11 ik.Ms; os adVs’k izlkn flUgk iwoZ cky fodkl ifj;kstuk inkf/kdkjh fn?kycSad] fd’kuxat As a matter of fact the Respondents hadnot accepted the letter of resignation of the petitioner dated 08.06.2011 till 29.09.2011 is also no where in dispute inasmuch as Mr. Sharma has produced a copy of the order dated 25.10.2011 passed by the Secretary to the department while disposing of the representation of the petitioner in terms of the direction given by this Court in the order dated 10.08.2011 in C.W.J.C. No. 12673/2011 with regard to his order of transfer dated 28.06.2011, wherein he was directed to join on the post of C.D.P.O. Baria as would be apparent from the extract of the aforesaid order dated 25.10.2011 reading as follows:- ^^lekns’k ;kfpdk la[;k 12673@2011 ik.Ms; osadVs’k izlkn flUgk cuke jkT; ljdkj ,oa vU; esa fnukad 10-08-2011 dks ikfjr U;k;kns’k ds vkyksd es a oknh ds vkosnu …,usDlj&4‰ dks fu"iknu fd;k tk jgk gSA mYys[kuh; gS fd oknh Jh ik.Ms; osadVs’k izlkn flUgk] cky fodkl ifj;kstuk inkf/kdkjh] fn?kycSad …fd’kuxat‰ dk foHkkxh; vf/klwpuk la[;k 2535] fnukad 29-06-2011 }kjk LFkkukUrj.k djrs gq, cky fodkl ifj;kstuk inkf/kdkjh csfj;k …if’pe pEikj.k‰ esa Patna High Court CWJC No.9532 of 2012 (5) dt.08-03-2013 11 inLFkkfir fd;k x;k gSa viuh chekjh@vLoLFkrk dk dkj.k n’kkZrs gq, buds }kjk iVuk ds vkl&ikl vFkok iwoZ inLFkkfir LFku fn?kycSad fd’kuxat esa gh cus jgus nsus dk vuqjks/k fd;k x;k gSA vkosnu esa buds }kjk mYys[k fd;k x;k gS fd ;s cjkcj vko’;drkuqlkj fd’kuxat esfMdy dkWyst esa viuk bykt djkrs gSA 2- vkosnu ds uo inLFkkfir LFkku ds fudVre ftyk eqtIQjiqj esa [;kfr izkIr fpfdRlk egkfo|ky; ,oa vLirky gSa tgka lkekU;r;k fd’kuxat esfMdy dkWyst ls csgrj fpfdRlk lsok miyC/k gSa ftyk vLirky if’pe pEikj.k] csfr;k esa Hkh vko’;d fpfdRlk lqfo/kk,a miyC/k gSa 3- vr,o oknh Jh flUgk }kjk mfYyf[kr dkj.k dks vekU; djrs gq, buds LFkkukUrj.k LFkxu vkosnu …,suDlj&4‰ dks vLohd‘r fd;k tkrk gS ,oa vkns’k fn;k tkrk gS fd Jh flUgk uo inLFkkfir LFkku cky fodkl ifj;kstuk inkf/kdkjh] cSfj;k …if’pe pEikj.k‰ esa vfoyEc ;ksxnku djsaA bl izdkj Jh flUgk ds vkosnu dks fuLrkfjr djrs gq, vkns’k fn;k tkrk gS fd bls lacaf/kr dk;kZy;@inkf/kdkjh ,oa ljdkjh vf/koDrk] ekuuh; mPp U;k;ky; dks lalwfpr dj fn;k tk,A g0@& …lanhi ikS.Mjhd‰ ljdkj ds lfpoA Kkikad&l0d0LFkk0…jkt0‰&10&161@2010 4162@iVuk fnukad 25@10@2011** Thus when the petitioner was asked to comply his order of transfer dated 29.06.2011 and his representation was rejected on 25.10.2011 there was even otherwise no question of acceptance of his letter of resignation dated 08.06.2011 by the impugned order dated 27.04.2012 relevant portion whereof reads as follows:- vf/klwpuk vf/klwpuk la[;k&----------------@ftyk inkf/kdkjh] fd’kuxat ds i=kad 286] fnukad 22-06-2011 ds }kjk Jh ik.Ms osadVs’k izlkn flUgk] cky fodkl ifj;kstuk inkf/kdkjh] fn?kycSad] fd’kuxat }kjk vfrfjDr ,oa Patna High Court CWJC No.9532 of 2012 (5) dt.08-03-2013 12 feuh vkaxuokM+h dsUnzksa dk eSafiax iath izLrqr ugha fd;s tkus ds vkjksi esa iwNs x, Li"Vhdj.k ,oa d‘r dkjZokbZ ds tokc esa Jh flUgk ds i=kad 221@08-06-2011 }kjk lwfpr fd;k x;k fd os fn0&08-06-2011 ds vi0 ls fcgkj ljdkj dh lsok ls R;kx i= nsrs gSa ckn esa Jh flUgk }kjk vius vkosnu fnukad 29-09-2011 ds }kjk vius R;kx i= dks fujLr fd;s tkus dk vuqjks/k foHkkx ls fd;k x;kA Jh flUgk }kjk mDr vkosnu fn0&29-09-2011 esa vafdr fd;k x;k fd okLro esa muds }kjk LosPNk ls R;kx i= ugha fn;k x;k Fk vfirq ckj&ckj viekfur ,oa ekufld :i ls izrkfM+r gksus ds dkj.k ?kksj ekufld ruko esa vkdj R;kx i= fn;k x;k FkkA Jh flUgk Hkh ok?kZD; lsok fuo‘fr fnukad 31-03-2012 dks fuf’pr gSa 2- Jh flUgk ds inR;kx ds vkosnu ds laca/k esa foHkkxh; i=akd 5267@22-12-2011 ,oa Lekj i= la[;k&1079@28-02-2012 }kjk ftyk inkf/kdkjh] fd’kuxat ds bl vk’k; dh lwpuk dh ekax dh x;h fd Jh flUgk R;kx i= ij vey fd;s ;k ugha] R;kxi= nsus ds ckn dk;ZHkkj NksM+ fn;s Fks ;k ughaA bl lanHkZ esa ftk inkf/kdkjh] fd’kuxat ds i=kad&138@07-03-2012 }kjk foHkkx dks izfrosfnr fd;k x;k fd Jh flUgk ds }kjk fn0 08-06-2011 ds izHkko ls vius in ls R;kxi= nsus ds ckn mDr frfFk ds ckn cky fodkl ifj;kstuk inkf/kdkjh fd’kuxat dk dk;Z ugha fd;k x;k rFkk fcuk izHkkj lkSais gh vU;= izLFkku dj x, rFkk LFkkuh; O;oLFkk ls iz[k.M fodkl inkf/kdkjh fn?kycSad }kjk fn0 26-06-2011 dks mDr in dk izHkkj Lor% xzg.k fd;k x;kA 3- mDr vkyksd esa ekeys dh lE;d leh{kk ds vkyksd esa foRr foHkkx dk ijke’kZ izkIr fd;k x;kA foRr foHkkx ds i=kad 6190@27- 07-1979 dh dafMdk&6 esa ;g izko/kku gS fd ,sfPNd rkSj ij lsok fuo‘fr dh lwpuk fu;qfDr inkf/kdkjh dh lgefr ls okil yh tk ldrh gS c’krsZ bldh okilh dk vuqjks/k lwpuk dh frfFk lekfIr ds iwoZ fd;k tk,A bl ekeys esa R;kx i= vkosnu okil ysus dh lwpuk fofgr 03 ekg dh vof/k chrus ds ckn nh x;h gSA Qyr% R;kxi= okil ysus dh vuqefr@Lohd‘fr ds foHkkxh; izLrko ij foRr foHkkx }kjk vlgefr O;Dr fd;k x;kA Patna High Court CWJC No.9532 of 2012 (5) dt.08-03-2013 13 mDr vkyksd esa Jh ik.Ms osadVs’k izlkn flUgk rRdkyhu cky fodkl ifj;kstuk inkf/kdkjh] fn?kycSad] fd’kuxat lEizfr cSfj;k] if’pe pEikj.k }kjk cky fodkl ifj;kstuk inkf/kdkjh ds in ls fnukad 08-06-2011 ds izHkko ls ,sfPNd R;kxi= fn, tkus dks n‘f"Vxr j[krs gq, vuq’kklfud izkf/kdkj }kjk muds 08-06-2011 ds izHkko ls muds R;kxi= dks Lohd‘r djrs gq, lsok lekIr fd;k tkrk gSA fcgkj jkT;iky ds vkns’k ls g0@& …pUnz ’ks[kj flag‰ ljdkj ds mi lfpoA Kkikad&la0la0&l0d0LFkk0&10&183@2010&2187@iVuk] fnukad 24@09@2012 It thus becomes clear that the State Government despite being fully aware of the fact that petitioner had already withdrawn his resignation letter dated 08.06.2011 on 29.09.2011 had still proceeded to accept the aforesaid letter of resignation on a patently illegal ground by actually terminating the service of the petitioner. The law as with regard to employer being bound to allow withdrawal of an offer of resignation of employee before its acceptance and acted upon is well settled and reference in this connection may be usefully made to a division bench judgment of this Court in the case of Chandraditya Nath Das Vs. State of Bihar and others reported in 2009(1) P.L.J.R. 719. In that view of the matter, this Court would quash the impugned order, contained in Annexure 10 to the writ application, and would remit the matter back to the Department to now proceed from the stage the petitioner had withdrawn his Patna High Court CWJC No.9532 of 2012 (5) dt.08-03-2013 14 resignation on 29.9.2011 and thus would be deemed to be continuing in service. The payment of salary of the interregnum period i.e. from 08.06.2011 the date of filing of resignation letter by the petitioner to 27.04.2012 the date of the impugned order shall however be decided on the basis of proof of working of the petitioner and if it is found that the petitioner in the concerned period had worked at his place of posting and had compliance order his transfer dated 29.6.2011 he will be paid his salary but for the period after the impugned order had been passed i.e. on or after 27.4.2012, as the petitioner was deprived from working on account of passing of the impugned order passed by the Department he will definitely be entitled for payment of full salary from 27.4.2012 to this day. Nothing said in this order, however, will come in the way of the department to take appropriate action against the petitioner for dereliction of duty and/or any misconduct committed by him while continuing in service or even after tendering his resignation and before its being accepted by the impugned order. With the aforementioned observation and direction, this
Arguments
extent Mr. Sharma learned Counsel for the petitioner in correct in placing reliance on the order this Court in the case of Dhrub Kumar Roy vs. Bihar State Co-operative Land Development Bank Ltd. & ors., reported in 2007(4) PLJR 359 .
Decision
application is disposed of. (Mihir Kumar Jha, J) surendra/-