The High Court
Case Details
WP(C) 5637/2012 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE MR. JUSTICE P.K.MUSAHARY By making this writ application under Article 226 of the Constitution of India, the petitioners, who were respondents in Original Application (in short, OA) No . 54 of 2010, have put to challenge the order, dated 15.07.2010, passed, in OA No. 54 of 2010, by the learned Central Administrative Tribunal, Guwahati Bench, setting aside the order, dated 18.07.2007, passed by respondent No.1, namely, Se cretary, Ministry of Water Resource, Govt. of India, accepting the resignation o f the respondent herein, who was applicant in the said OA, and also the communic ation made by the letter, dated 06.05.2009, issued by the respondents/authoriti es concerned, which stood impugned in the said OA. 2. for the petitioners, and Mr. S. Sarma, learned counsel, for the respondents. 3. Resisting the writ petition, Mr. Sarma, learned counsel for the sole res pondent, has raised a preliminary objection, the preliminary objection being tha t the writ petition deserves to be dismissed inasmuch as the learned Tribunal’s order, which stands impugned in this writ petition, was passed as far back as on We have heard Ms. B. Das, learned Central Government Counsel, appearing 15.07.2010; whereas the writ petition has been filed on 05.10.2012. Though there has been delay in filing the writ petition, the writ petiti 4. oners have explained the delay in para 17 of the writ petition. This apart, the refusal to exercise extra-ordinary jurisdiction, under Article 226 of the Cons titution, on the ground of delay is a matter of policy and it does not debar th e High Court completely from invoking, in appropriate case, its extra-ordinary j urisdiction under Article 226 even if a person approaches the High Court bela tedly by way of writ petition. In this regard, we must not ignore the submissio n, which has been made on behalf of the petitioners, that the reliefs, which the learned Tribunal has granted in favour of the respondent herein, would open a flood-gate of similar claims by other employees if it is treated that Voluntar y Retirement Scheme (in short, ’VRS’) was applicable to the employees of the re spondent Board not with effect from 07.08.2008, but with effect from from the da te, when the VRS was made applicable to the Central Government employees. The submission, so made, is momentous, significant and cannot be lightly ignored. 5. We, therefore, deem it appropriate, in the peculiarity of the facts of the case at hand, to examine the issues, which have been raised in the present writ petition, including the question as to whether the employees of the respo ndent Board ought to have been paid VRS even before the Board’s Circular, date d 07.08.2008, came into force. 6.
Legal Reasoning
While serving, as a Lower Division Clerk (in short, LDC), in Brahmaputra Board, which is an autonomous body constituted under the Brahmaputra Board Ac t, 1980, the respondent herein was transferred from the Board’s Head Office, at Guwahati, to Tezu, Arunachal Pradesh. As the respondent’s son had been sufferi ng from Autistic Spectrum Disorder, he requested the Board to retain him at Guwa hati. Since the request, so made, was not acceded to by the Board, the petitione r submitted letter of resignation, on 03.09.2006, which read as under: (cid:28)To The Secretary, Brahmaputra Board, Basistha, Guwahati, Through the Executive Engineer, Tezu Division, Brahmaputra Board, Tezu(A.P.) Sub: Registration letter for the post of L.D.C. Sir, With reference to the above, I do hereby tender my resignation from the post of L.D.C., with effect from 30.9.06(A.N), due to my personal reason as wel l as for the treatment of my son. And for your refusal for V.R.S.
Decision
In view of the above, I request you kindly to accept my resignation with immediate effect as the date mentioned above. Yours faithfully Sd/- Shri Jogen Talukdar L.D.C., Tezu Division, Brahmaputra Borad. Tezu(A.P)30.9.2006 (cid:29) The above resignation letter, dated 30.09.2006, was not accepted by the 7. petitioners herein. The respondent herein, then, submitted another letter of res ignation, on 06.03.2007, which read as follows: (cid:28)To The Secretary Brahmaputra Board, Basistha, Guwahati-29 Sub: Resignation letter for the post of LDC Sir, With reference to the above, I do hereby tender my resignation from the post of LDC w.e.f. 30.09.06 (AN). In view of the above, I reauest you kindly to accept my resignation let ter with immediate effect as the date mentioned above. Yours faithfully Sri Jogen Talukdar Brahmaputra Board Dt.06-03-07 (cid:29) 8. Acting upon the letter, dated 06.08.2007, aforementioned, whereby th e respondent had sought to resign with effect from 03.09.2006, the present petit ioners accepted the respondent’s resignation by their impugned letter, dated 18. 07.2007, with effect from 30.09.2006. 9. 7, read as under: (cid:28)OFFICE ORDER The letter of acceptance, issued by the petitioners herein, on 18.07.200 Resignation tendered by Sri Jogen Talukdar L.D.C., Tezu Division, Brahm aputra Board, Tezu from the Brahmaputra Board Services is hereby accepted with e ffect from 30.9.06 (A.N.) This issues with the approval of the competent authority. Sd/- Secretary Memo No. BB/4118/03/43-A Dated,Guwahati the 18th July, 2007 (cid:29) The letter, dated 06.05.2009, aforementioned reads as follows: Subsequent to the acceptance of his resignation by the present petitione 10. rs by their letter, dated 18.07.2007, aforementioned, the respondent herein requ ested for his reinstatement in service by letter, dated 11.09.2008, and this req uest was turned down by the petitioners herein by their letter, dated 06.05.2009 . 11. (cid:29)To Sri Jugen Talukdar, Ex.L.D.C.-cum -Typist Vill. & P.O.-Barpalaha Viz Bezera Dist.Kamrup PIN 781121 Sub: Prayer for reinstatement Ref: Your No. Nil dt. 11.9.2008 With reference to the subject above , I am directed to inform you that your prayer for reinstatement of service has been duly examined by the competen t authority. It is however, regretted to say that your request for reinstatement of service has not been accepted, as the same is not covered under the Govt. R ule due to the fact that the period of your absence from duty between effective date of resignation(30-9-2006) and the date of your application for reinstateme nt (11.09.2008) is more than 90 days. Sd/- Under Secretary (E) (cid:29) 12. As the respondent herein had asked for benefit of VRS and the same had n ot been made available to him, the respondent herein filed the O.A aforementione d seeking the reliefs, which are reproduced below: (cid:28)8. RELIEF(S) SOUGHT FOR: 8.1 To set aside and quash the impugned communication dated 06.05.09 directi ng the respondents to reinstate the applicant with all consequential benefits.(A NNEXURE-17). 8.2 cceptance to be no acceptance.(ANNEXURE-12) And / or 8.3 To grant the benefits of VRS Scheme considering the peculiar fact situation To set aside and quash the impugned order dated 18.07.07 declaring the a of the case with all consequential benefits. 8.4 8.5 Cost of the application. Pass any such order/orders as Your Lordships may deem fit and proper (cid:29) 13. By the impugned order, dated 15.07.2010, aforementioned, the learned Tri bunal has allowed the O.A by setting aside and quashing the communication, dated 06.05.2009, aforementioned, and directed the present petitioners to proceed wit h the respondent’s case under Voluntary Retirement Scheme and make available to him all consequential benefits. 14. While considering the present writ petition, what attracts our attention , most prominently, is that the learned Tribunal has treated the letter, dated 3 0.09.2006, aforementioned, which the respondent herein submitted, as a letter of conditional resignation. We have read and re-read the letter, dated 30.09.2006, aforementioned and we have not been able to persuade ourselves to agree with th e conclusion of the learned Tribunal that the respondent’s letter, dated 30.09.2 006, aforementioned was a conditional letter of resignation. For resigning from service by his letter, dated 30.09.2006, the respondent herein had, in fact, ass igned three reasons, namely, (i) personal reason;(ii) treatment of his son; and (iii) refusal to make available to him the benefits of VRS. The reasons, which the respondent herein so assigned, were really the re 15. asons, which impelled him to resign from the post, which he had been holding. By no means, the said letter, dated 30.09.2006, can be treated, or could have been treated, as a conditional letter of resignation. A conditional resignation is a resignation, which is subject to some condition or conditions and, upon fulfilm ent of such condition or conditions, the resignation comes into effect. If an em ployee resigns by assigning reasons, such a resignation cannot be treated as a c onditional resignation. If, however, compelled by such circumstances, which the employer creates, an employee resigns from his post, his resignation, in the con text of the facts of a given case, may be treated as involuntarily, forcibly or coercively obtained resignation. Such a resignation, being involuntary in nature , may not be treated as a valid resignation. In the case at hand, we do not find that the respondent’s case was that 16. he was compelled by circumstances to tender resignation and that his resignation shall be treated as involuntarily, void ab intio and non est in law. 17. The respondent’s grievance was that the benefit of VRS was not made avai lable to him. In this regard, it is noteworthy that the respondent Board is an autonomous statutory body and, in the absence of any material showing that the Voluntary Retirement Scheme, in question, which governs service conditions of Central Government employees, had been adopted by the Board before the responden t herein resigned from his post and before his resignation was accepted, the ben efit of the said Scheme cannot be extended to any of the employees before the sa id Scheme was adopted by the Board. In fact, it is not in dispute that the Volun tary Retirement Scheme, introduced by the Central Government, came to be accepte d by the respondent Board after the acceptance of the resignation of the present respondent. In these circumstances, the benefits of the VRS could not have been validly sought for by the respondent herein nor could have the same been exten ded to the respondent herein by the learned Tribunal. 18. In fact, the Circular, dated 07.08.2008, issued by the respondent Board shows that the respondent Board, in its 24th Board Meeting, introduced the VRS t o its employees. In the face of the Circular, dated 07.08.2008, aforementioned, there could not have been any VRS in existence or in force, for the employees of the Board, prior to 07.08.2008 and we do, therefore, conclude that the VRS, as applicable to the Central Government Employees, became available to the employee s of the respondent Board, with effect from 07.08.2008; whereas the respondent’s resignation had already been accepted on 18.07.2007. 19. In the backdrop of what have been pointed out above, we notice that the resignation of the respondent herein was accepted by the impugned order, dated 18.07.2007, with effect from 30.09.2006. However, the acceptance of resignation by the petitioners with retrospective effect is wholly illegal inasmuch as the p etitioners have accepted the resignation on 18.07.2007; hence, the resignation of the respondent herein had come into effect on 18.07.2007 and not before. To this extent, the office order, dated 18.07.2007, is incorrect and illegal. The respondent is, therefore, entitled to receive benefits of pay and al 20. lowances till 18.07.2007 and his case ought to have been dealt with by the prese nt petitioners accordingly. To the extent, as indicated hereinbefore, appropriat e relief could have, and ought to have, been given to the respondent herein by t he learned Tribunal. When the VRS became available to the employees of the respo ndent Board with effect from 07.01.2008, the learned Tribunal could not have dir ected the petitioners herein to make available to the respondent herein the bene fits of the VRS, when the resignation of the respondent herein had already been accepted on 18.07.2007. 21. Referring to Rule 48 A of the Central Civil Services (Pension) Rules, 19 72, Mr. Sarma, learned counsel, has submitted that on completion of 20 years of service, the petitioner was entitled to receive the benefit of VRS. Suffice it t o point out, in this regard, that the question of giving benefit of VRS to an em ployee, by virtue of Rule 48 A, would arise only when a scheme for voluntary ret irement is found to have been in force. In the case at hand, since the VRS came to be introduced in respect of the employees of the respondent Board by the Circ ular, dated 07.08.2008, and the Circular was not given retrospective effect, it logically followed that the respondent herein could not have been given the bene fit of VRS by resorting to Rule 48A too. 22. Because what have been discussed and pointed out above, we find that the impugned decision of the learned Tribunal is not sustainable in law to the ext ent that it has set aside the petitioners’ letter, dated 06.05.2009, and dire cted the petitioners to give the benefit of VRS to the respondent herein by deem ing him as a person covered by the VRS scheme. 23. For what has been discussed and pointed out above, this writ petition su cceeds. The impugned order passed by the learned Tribunal is hereby set aside to the extent that the impugned order sets aside the communications, dated 06.05.2 009 and 18.07.2007, and the direction, contained in the impugned order, to pay t o the respondent the benefit of VRS. We have made it clear that the resignation of the respondent herein from service shall be treated to have come into effect on 18.07.2007 and, thereafter, pay, allowances and other benefits, which were, o therwise, available to the petitioner, shall be made available to him in consequ ence of his being treated to have resigned from the post of LDC with effect from 18.07.2007. 24. Before parting with this writ petition, it is made clear that it has bee n submitted, on behalf of the respondent, that the respondent had to resign comp elled by the circumstances, which his employer had created, and, hence, his resi gnation ought not to be treated as resignation at all and he ought to have been treated as having remained in employment of the respondent Board. Since this was not the case of the respondent before the learned Tribunal, we express no opini on on this aspect. 25. On the above submission, which has been made on behalf of the responde nt, we, in the interest of justice, give liberty to the respondent herein to ra ise the grievance, as indicated hereinbefore, by way of appropriate O.A and if such a grievance is raised, the learned Tribunal shall consider and dispo se of the same in accordance with law. 26. ed of. 27. With the above observations and directions, this writ petition is dispos No order as to costs.