The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1849 of 2024 ------- Naveen Kumar aged about 49 years S/O Nand Kishor Prasad R/O G/4, Zena Block, Ashtha Space Town, Dimna Road, Sankosai, P.O. & P.S Mango at Jamshedpur, District- East Singhbhum, 831012. Versus …Petitioner 1. The State of Jharkhand 2. The Secretary, Water Resource Department, Government of Jharkhand having its office at Nepal House, At +PO+PS-Doranda, Dist-Ranchi. 3. The Joint Secretary, Water Resource Department, Government of Jharkhand, having its office at Nepal House, At +PO+PS-Doranda, Dist-Ranchi.. 4. The Deputy Secretary, Water Resource Department, Government of Jharkhand, having its office at Nepal House, At +PO+PS-Doranda, Dist-Ranchi. 5. The Chief Engineer, Water Resource Department, Chandil Complex, Swarn Rekha Bhavan, P.O &P.S Adityapur, at- Jamshedpur ,District-East Singhbhum, Jharkhand. 6. The Superintending Engineer, Barage Circle, P.O & P.S Galudih, at-Jamshedpur Dist- East Singhbhum - Jharkhand. 7. The Executive Engineer, Irrigation Division, P.O & P.S Galudih at-Jamshedpur Dist-East Singhbhum - Jharkhand. ... … Respondents CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN ------- For the Petitioner For the Respondents : Ms. Pinki Tiwari, AC to AG : Mr. Krishna Murari, Adv. ------- CAV on:- 14.08.2024 Pronounced on:-25/10/2024 ------- The Petitioner, by filling this instant Writ Petition, prays for issuance of appropriate direction(s) / Writ(s) / order(s) for the following reliefs: i. To quash the impugned order bearing memo no.1438 dated 15.03.2024 (Annexure-8) issued under the Under signature of under Secretary, Water Resource Department, Government of Jharkhand, whereby and whereunder after Revocation of Resignation letter dated 25.01.2019, on 12.06.2019 itself, the order of acceptance of resignation has been issued after more than five years amounting to illegal termination/dismissal of the 1 Petitioner from the service in patent violation of Rule 74 (b) (i) (iii) to be read with Article 14 & 21 of the Constitution of India. ii. Consequently for direction upon the respondents to restore the Petitioner with continuity in service and all consequential, monetary and service benefits, followed by due promotion etc.) 2.
Legal Reasoning
The brief facts of the case as per the pleadings are that the petitioner being an engineer was selected and appointed to the post of Assistant Engineer in Water Resource Department, Government of Jharkhand in the year 2008, pursuant to the recommendation of the Jharkhand Public Service Commission (hereinafter to be referred as JPSC). While discharging his duty to the satisfaction of all concerned as aforesaid at Chaibasa; his wife suddenly fell seriously ill and as a result of which he being engaged in her medical treatment was unable to justify his attendance in the office. Consequently, he remained absent for 2 months. However, after her recovery, he joined there and continued discharging his duties up to December 2018. However, since his wife was interminably falling ill and there was no one to look after her; thus, the Petitioner himself filed a letter of resignation dated 25.01.2019. 3. Further facts reveal that since the petitioner did not receive any response from the respondents, he filed an application dated 12.06.2019 before controlling Executive Engineer, Irrigation Division, Galudih revoking his letter of resignation dated 25.01.2019 and for his continuation in service. Consequently, he was allowed to discharge his duties. In due course, the Executive Engineer wrote letter no.28 dated 21.01.2020 to the Superintending Engineer seeking permission to release the outstanding salary of the petitioner due since 12.06.2019, as per decision taken during discussion in the meeting held on 2 14.01.2020 in the office of Deputy Secretary, Water Resource Department, Government of Jharkhand. The same was forwarded to the Chief Engineer by the Superintending Engineer vide letter no. 59 dated 01.02.2020, which was replied by the Chief Engineer vide letter dated 14.02.2020 granting sanction for payment of current as well as arrear of salary, w.e.f. 12.06.2019 as per the decision taken in meeting dated 14.01.2020. 4. The case of the petitioner is that while he was continuing as aforesaid and discharging his duties, the impugned order bearing memo no. 1438 dated 15.03.2024 has been issued by the Respondent Department under the signature of Under Secretary, whereby and whereunder it has been reported that as the resignation was recalled after 4.5 months which is beyond 3 months; as per the advice of learned Advocate General; the letter of resignation stands deemed allowed after the 3 months of resignation, which as per the petitioner is palpably absurd on the face of it besides being illegal, arbitrary and unconstitutional. Hence, this writ application. 5. Learned Counsel for the petitioner submits that for valid resignation and valid consequential order accepting resignation there must be sound decision with healthy mind beside the statutory compliance as mandated under Rule 74 (b) (i) (ii) of Jharkhand service Code as has been held by this Court in the case of Dr.
Legal Reasoning
Shrilal Kisku vs state of Jharkhand passed in W.P.(C) no. 1900 of 2014 vide judgement dated 23.02.2017, holding therein that unless the person concerned has been given three months advance notice and then specific order is passed, he cannot be relieved in the garb of 3 deemed acceptance of Resignation, which is foreign to the law. Fact remains that since the date of birth of the petitioner is 7.11.1974 and further since his year of appointment is 2008; the same otherwise does not satisfy the pre-emptory requirement of resignation within the meaning of Rule 74 (b) of the Jharkhand Service Code. He further contended that it is well settled under the service jurisprudence that if before acceptance of voluntary retirement, the same is recalled/withdrawn; the Employer cannot accept the same after revocation of resignation. So far case of the petitioner is concerned, his case stands on a better footing wherein not only after his withdrawal of resignation the same was ratified, the payment of salary was also allowed, followed by the issuance of due play slip from the finance department and payment of arrears and current salary; as such the impugned order is liable to be quashed. 6. Learned Counsel for the respondents submits that the petitioner gave his resignation from the post Assistant Engineer on 25-01-2019 and recalled his resignation after a period of about 4.5 months on 12.06.2019. In regard to this, the answering respondents sent the file to the Law Department for consultation regarding acceptance of withdrawal of resignation. In the course of consultation with the Law Department, the learned Advocate General, Jharkhand, Ranchi stated that in accordance with Rule 74 of the Service Code, one CWJC No.-2321/1988 in Panchanan Jha vs. State of Bihar has been decided and the Hon'ble Patna High Court passed an order on 25.05.1989 and at para 18 of the said order it has been mentioned as follows:- “From the above just as the State it follows that Government Servant retired from the Government Service after attaining the age of fifty years after giving three 4 months notice, the civil servant also in his turn is free to proceed on voluntary retirement after giving three months notice…..” She further submits that in another case in WP(S) No.-516/2015 Ravi Choudhary VS Jharkhand State and others, this High Court vide order dated 15- 06-2020 has held at Para 12 as follow:- “12. The law with respect to VRS is now no more res integra and the government has no choice but to accept it unless the case falls under clause (Ka) and ( Kha) of the aforesaid circular. Further, it is also settled that after completion of three months from the date of application there would be deemed retirement and the petitioner will be entitled to all the retirement benefits.” In this sequence, the advice given by the learned Advocate General, Jharkhand, Ranchi has been given as under. “The effect of the above judicial pronouncements is that the request for resignation will into effect soon after completion of 3 month's notice period. The employee now after lapse after 4 ½ months cannot be permitted to withdraw his resignation.” In relation to the above advice given by the learned Advocate General, Jharkhand, Ranchi, the Finance Department too gave its consent in the same. In the light of the advice of the learned Advocate General, Jharkhand, Ranchi in consultation with the Law Department and the consent received from the Finance Department, the resignation of the petitioner was accepted with effect from 25.01.2019 vide Departmental Order No. 15.03.2024 as such no interference is required. 7. Having heard learned counsel for the parties and after going through the averments made in their respective affidavits, it appears that the petitioner was selected and appointed to the post of Assistant Engineer in Water Resource Department, Government of Jharkhand in 2008. Then he was posted in the office of Executive Engineer, and thereafter he was transferred to 5 the Rural Works Department in the office of Rural Department Special Division, Chaibasa. It further appears that while discharging his duties his wife fell seriously ill and consequently, he remained absent for 2 months and joined his duty in December 2018. Thereafter, the petitioner signed the letter of resignation dated 25.01.2019 without giving any prior notice to the department; however, when no response or communication was made by the respondent department with the petitioner; he filed an application dated 12.06.2019 revoking his letter of resignation and thereby he was allowed to discharge his duties and even the Superintending Engineer granted sanction for payment of salary to this petitioner w.e.f. 12.06.2019 as per decision taken in meeting dated 14.01.2020. Subsequently, an order bearing memo no. 1438 dated 15.03.2024 was issued by the respondent department under the signature of Under Secretary, whereby it was reported that since the resignation was recalled after 4.5 months which is beyond 3 months; as per the advice of learned Advocate General the letter of resignation stand deemed allowed. 8. Thus, the moot question to be decided by this Court is whether the resignation letter which was revoked by the petitioner after 3 months is deemed to be allowed without communication of acceptance by the respondent department ? As stated hereinabove; though the petitioner resigned from his office by letter dated 25.01.2019 and on receiving no response or communication from the department he also revoked his resignation after 4.5 months and the respondent department allowed the petitioner to work and even granted sanction for payment 6 of salary which in the opinion of this court is an indication of acceptance of the revocation application of the petitioner. In other words, though his revocation of resignation letter was not replied in explicit words but since he was allowed to work and even he was granted sanction for payment of salary; it can safely be held that the act of the respondent department was in acceptance of the petitioner’s revocation letter, inasmuch as, the respondent department allowed the petitioner to work and even granted sanction for payment of salary which clearly indicates that there was no finality to the letter of resignation dated 25.01.2019. 9. At this stage, it would be profitable to refer the definitions of express and implied. The meaning of “express” and “implied” as per Blacks’s Law Dictionary (8th Edition) are as under: Express, “Clearly and unmistakably communicated; directly stated.” Implied, “Not directly expressed; recognized by law as existing inferentially.” It is an admitted fact that the respondent department never communicated the acceptance of resignation before receiving the revocation application. On the contrary; after receiving the revocation application, they allowed the petitioner to work and sanctioned his salary thereby they had impliedly accepted the revocation application and once it is deemed to have been accepted; the department cannot terminate the service on the basis of the revoked resignation. Therefore, the impugned order dated 15.03.2024 is non-est in the eyes of law. 10. Reliance in this regard may also be placed upon the decision of Hon’ble Apex Court in the case of S.D. Manohara Vs. Konkan Railway Corporation Limited & Ors. reported in (2024) SCC Online SC 2546 7 wherein Hon’ble Apex Court has ordered reinstatement of appellant in service because the resignation letter was accepted via internal communication and no such letter was received by the appellant i.e. the acceptance of resignation was not communicated to the appellant and further the appellant was asked to report to duty giving an indication that there was no finality to the letter of resignation. The relevant paragraphs are quoted herein below: “10. The respondent-employer strongly relies on the letter of acceptance of resignation dated 15.04.2014 and submits that it has come into effect from 07.04.2014. We are inclined to accept the submission made by the appellant that the letter dated 15.04.2014 is an internal communication. There is no clear evidence about the service of such letter on the appellant. Further, it is also not denied that the appellant has been continuously in touch with the respondent… 11….As stated earlier, there is also the letter dated 10.05.2014 of the respondent asking the appellant to report on duty for considering his unauthorised absence from 28.04.2014 to 18.05.2014 which gives an indication that there was no finality to the letter of resignation dated 05.12.2013. The learned single Judge was correct in his conclusion that the resignation was withdrawn before its acceptance. The relevant portion of the single Judge order is as under:- “13. In the present case, the resignation which was submitted on 05.12.2013 with a request to accept it at the expiry of one month was stated to have been accepted only on 15.04.2014. There is undue delay in accepting the resignation by the respondents. In the above decision, the delay of mere 13 days in communicating acceptance of the resignation, is held to be not an undue delay so as to infer that resignation had not already been in Vedpathi accepted. Therefore, the decision Dinesh Kumar’s case is also of no help to the respondents. 14. In the circumstances, I am of the view that petitioner having submitted his letter dated 26.5.2014 seeking to withdraw the resignation much before the effective date, 01.07.2014 with the official order on 15.07.2014 by which petitioner was relieved of his duties, withdrawal of resignation ought to have been accepted by the respondents and continued in service. The contrary decision by the respondents by the communication dated 23.06.2014 that withdrawal of resignation is not accepted and decision accepting the resignation stands good, is not sustainable in law….” the petitioner 12. In our opinion, the decision of the Single Judge is correct, and the Division Bench committed an error in not 8 eschewing the communication dated 15.04.2014 from consideration.” 11. Having regard to the above discussions, the impugned order bearing memo no. 1438 dated 15.03.2024 (Annexure-8) issued under the signature of Under Secretary, Water Resource Department, Government of Jharkhand deserves to be, and, is hereby, quashed and set aside and the respondents are hereby directed to restore the petitioner with continuity in service and all consequential, monetary and service benefits, followed by due promotion. It goes without saying that the entire exercise shall be completed within a period of 8 weeks from the date of receipt/production of copy of this order. 12. Accordingly, the instant writ petition stands allowed. Pending I.A(s), if any, also stand closed. (Deepak Roshan, J.) Fahim/- AFR 9