Nuclear Power Corp.Of India Ltd vs Dr.(Major)Hari Singh Rathore

/1/ D.B.S.A.W.No.392 OF 2007

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

J U D G M E N T

D.B.CIVIL SPECIAL APPEAL (WRIT) No.392 of 2007

NUCLEAR POWER CORP.OF INDIA LTD. V/S DR.(MAJOR)HARI SINGH RATHORE

Date of Judgment : 25th September 2008

PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J.

Mr. M.S.Singhvi }, for the appellant. Mr. Arun Bhansali }, Mr. P.S.Bhati, for the respondent.

BY THE COURT : (PER HON'BLE GUPTA,J.)

REPORTABLE

This appeal has been filed by the appellant, to

challenge the order of the learned Single Judge dated

07.3.2007, accepting the writ petition of the respondent,

and holding, that the present appellant erroneously

accepted the resignation of the writ petitioner, from

service, and on that basis, allowed the writ petition,

quashed the order dated 16.9.1992 (Annexure/15), accepting

the resignation of the petitioner from service, and

directing, the writ petitioner to be reinstated, in the

service, with all consequential benefits.

The necessary facts are, that the petitioner was /2/ D.B.S.A.W.No.392 OF 2007

released from army, as a short service Commission Officer,

and was selected on the post of Surgeon, and appointed by

the present appellant, vide order dated 01.1.1990, then a

corrigendum was issued on 11.7.1991 (Annexures/ 5 and 6).

We may notice here that in exhibit/ 5, the

petitioner was offered appointment on the post of Surgeon,

and vide exhibit/6, it was confirmed, that the petitioner

has been appointed as Surgeon SO/SF. This SO/SF is

Scientific Officer, and S.F. is the scale pay. It is then

alleged, that the petitioner ought to have been fixed at

Rs. 5100/- basic, on the basis of the LPC, issued by the

army, then, it is alleged in para 8, that it was a custom

and practice, in the RAPS hospital, to treat the senior

most Dr. as Medical Superintendent, who besides his normal

work, was to look after administrative, and financial

aspect of medical wing. According to the petitioner, the

petitioner being senior most medical officer on the day,

he was appointed, as he was given highest salary, in the

higher grade, in medical wing, being SO/SF, while all

other doctors were appointed in the lower grade. It is

then alleged, that this appointment of the petitioner was

not liked by already working medical superintendent Dr.

P.K. Sinha, and Dr. Srinivasan, and consequently on the

day, the petitioner joined, the conspiracy was hatched to

harass, humiliate and torture the petitioner, so that he

is compelled to resign, and respondents Nos 3 to 6,

wanted to precipitate a situation to throw away the

petitioner, for various of reasons, cataloged in para 11,

which included to work and report to Dr. P.K. Sinha being /3/ D.B.S.A.W.No.392 OF 2007

a lower grade officer, then Dr. Sri Nivasan's interest in

bringing to Dr. Shringi from Madras to Rajasthan and so

on. In that para, though the petitioner has purported to

catalogue the reasons, on ground of which he was sought to

be thrown out, but as a matter of fact, apart from the

above, the petitioner has narrated only inconveniences and

sufferings, that were being felt by the petitioner, in his

job. Be that as it may. It is then alleged that Dr. P.K.

Sinha was transferred on 10.6.1991, and the petitioner was

made in charge of RAPS hospital, instead of making him

medical superintendent, without financial powers, and it

was on his representations, and on intervention of

Managing Director, that vide order dated 20.9.1991, Ex./8,

the petitioner was designated as medical superintendent.

And then, in para 16, the petitioner has purportedly

produced Ex/9 dated 14.11.1991, to contend that there is

no post of Medical Superintendent in the corporation, and

senior most amongst the specialist, is designated as

Medical Superintendent. It is also alleged, that it was

at a late stage, that due to intervention of managing

director, that the petitioner was made Medical

Superintendent, which was not liked by the respondents Nos

3 to 6, and thus, difficulties were created in his

working. Then, the petitioner has cataloged day to day

events of the difficulties and inconveniences, being faced

by him. Then, it is alleged that since in view of the

circumstances cataloged in the writ petition, it became

difficult for the petitioner to work efficiently and

discharging his additional duties, as Medical

Superintendent, the petitioner, requested Shri T. S. V. /4/ D.B.S.A.W.No.392 OF 2007

Ramanan, to issue him a certificate, stating therein, that

the petitioner is employed by the respondent, as Surgeon

and Medical Superintendent, and his working and conduct is

satisfactory, whereupon on 10.9.1992, a certificate Ex/12

was issued, wherein nothing was written about the working

and conduct of the petitioner. The petitioner, thereupon,

insisted to record remarks about the conduct and work of

the petitioner, and also requested, that if the work and

conduct is not satisfactory, Shri Ramanan may record, in

adverse manner as well, but Shri Ramanan refused to write

anything, in this matter, either bad or good. The

petitioner then requested, that if the functionaries of

the corporation do not like the petitioner to work as

Medical Superintendent, he is ready to relinquish duties

of Medical Superintendent, and would like to continue as

Surgeon, as he has no ambition to work as administrator,

and is also not interested in financial powers, and that

the functionaries of the corporation are creating

hindrances for him, and even refusing a token certificate,

he submitted his resignation from the post of Medical

Superintendent. A copy of this letter has been produced as

Ex/13. The above pleadings with regard to Ex/13, are

contained in para 20 of the writ petition, and it is this

Ex/13, which is the precise document, on the basis of

which, the entire controversy has reached upto to this

stage.

Then it is alleged, that immediately after

submission of Ex. 13, the petitioner has alleged to have

proceeded on tour of thermal power Station, Tarapore. The /5/ D.B.S.A.W.No.392 OF 2007

tour programme has been produced as Ex. 14, according to

which, after availing two days' leave i.e. 16 to 17, he

was allowed to visit Bombay Head office, where he visited

on 16.9.1992 to 18.9.1992, and met Dy. General Manager

(P&I.R.) Shri R.P. Haran, and the Director Personnel Shri

S.S. Dhillon, and requested to fix his pay, and provide

him reimbursement of medical expenses, sanction HRA etc.,

who assured that problem would be sorted out very soon.

Then, when the petitioner arrived on his duty on

19.9.1992, he came to know, that an order has been passed

on 16.9.1992, whereby his resignation was accepted, and he

was relieved from the corporation on 16.9.1992 in

absentia, a copy of this order has been produced as Ex.

15, and vide order dated 16.9.1992, one Dr. Anklesaria was

posted as Medical Superintendent. Then the petitioner

submitted a communication to the Managing Director on

19.9.1992, conveying that he has only resigned form the

duties of Medical Superintendent, and not from his

substantive post of Surgeon. His letter dated 12.9.1992

has been wrongly interpreted by Shri Ramanan, and he has

deliberately forwarded it to higher authorities, showing

it to be the resignation from the corporation. These

representations are produced as Ex/16 and Ex/17. Since no

action was taken, then on the same day, he addressed

another communication to Chief Superintendent RAPS, Ex/18,

whereby he sought to withdraw his latter dated 12.9.1992.

Then it is alleged, that the petitioner was neither

communicated anything, nor he was allowed to work, and

that, the stand of the corporation about reliving the

petitioner, from 16.9.1992, is not supported by the facts, /6/ D.B.S.A.W.No.392 OF 2007

as he was on approved tour programme, and that at the

time, when he submitted withdrawal of resignation, it is

clearly established from the document, that he was serving

the corporation. The corporation also cleared the bill in

respect of his tour programme, up to 16.9.1992.

Then, in para 29, it is narrated, that according

to a condition of service, the petitioner can be

terminated after serving one month's notice, or on payment

of wages for the notice period, in lieu of the same. The

same condition applies in the case, where the employee

wants to resign form his service, while in the present

case, acting in hot haste, ignoring the condition, the

resignation has been accepted, and communicated, even

without disclosing as to who, in fact, has applied his

mind, in accepting the resignation.

Thus, the acceptance of resignation is nothing

but to harass the petitioner, and to misuse the

administrative power by the corporation. It is also

alleged that there was nothing to show, as to whether the

competent authority applied its mind in accepting the

resignation or not? It is also contended, that the

employee serving in the cadre, in which the petitioner is

serving, can be terminated only by the chairman. While

according to the respondents, it was accepted by Shri

Srinivasan, Chief Engineer (Commission), who was not

having any jurisdiction. With narration of these facts,

the action of the corporation is challenged, by pleading

various grounds, which are more or less repetition of the /7/ D.B.S.A.W.No.392 OF 2007

pleadings already taken.

Reply has been filed on behalf of the

respondents, to the writ petition, raising certain

preliminary objections, to the effect, that the petitioner

has based his case on alleged malafide intention against

various officials of the corporation, who have not been

impleaded as party respondent, in absence of whom, the

averments cannot be examined. Then giving para wise reply,

it was contended inter alia, that the order dated

01.1.1990 was merely offer of appointment. It was admitted

that the petitioner was fixed in the pay scale of Rs.

4500-5700, which appointment was accepted, and the

petitioner joined the service, while he should not have

accepted the appointment, if the pay scale was not

acceptable to him. It is alleged, that the representation

regarding fixation was duly replied, being AnnexureR/1

dated 16.1.1992. The claim of the petitioner, being senior

most was denied, contending that on joining of the new

post, the petitioner cannot claim to be senior most

doctor, on the very first day, and that since Dr. P.K.

Sinha was already working as medical superintendent, there

was no question of making the petitioner as Medical

Superintendent, immediately on his joining, as he was

having no experience of administration, or knowledge,

about the work in the new hospital.

Then replying averments of malafides, it is

contended, that Srinivasan was one of the member of the

selection committee, and as such, if there had been any /8/ D.B.S.A.W.No.392 OF 2007

conspiracy against the petitioner, then his appointment

would have been opposed, instead of his being selected.

Since doctor P.K. Sinha was already working,

there was no reason for them to harass the petitioner

rather Dr. Sinha was subsequently transferred to Kakarpara

unit of the corporation. It was also contended, that the

names of the respondent No 3 to 6, as originally impleaded

having got deleted by the petitioner, vide order dated

03.9.2006, as such allegations made against them cannot be

examined. Then, allegations about the petitioner having

been made as in charge of the hospital, instead of Medical

Superintendent, without any power was denied, it was

contended, that in charge of RAPS was having the same

powers, as Medical Superintendent. Apart from the fact,

that on the representation being made, he was designated

as Medical Superintendent, with all powers, not only

financial control, but also administrative control, over

the hospital.

Then, replying para 16 of the writ petition, it

is contended that it is not correct to say that senior

most specialist has always been re- designated as Medical

Superintendent, rather from time to time, medical officers

have been made as Medical Superintendent, and Annexure/9

is one of them.

Then replying para 20, the crucial para, it is

pleaded, that the petitioner compelled the Chief

Superintendent to issue certificate, though as per /9/ D.B.S.A.W.No.392 OF 2007

practice, no certificate is required to be issued, as for

the purpose of adjudging the performance and conduct, ACRs

are submitted by the competent authority. However, as the

petitioner insisted, the certificate was issued, which has

neither any legal sanctity nor any value. It is also

pleaded, that when the petitioner was appointed, Dr. Sinha

was working as Medical Superintendent, and on his being

transferred, the petitioner was re-designated as Medical

Superintendent, in such circumstances, there was no

reason, as to why the certificate was required, by the

petitioner, regarding his performance.

It is also alleged, that if the respondents were

annoyed with the petitioner since his appointment, then

petitioner would not have been made, either in charge, or

Medical Superintendent, as immediately after transfer of

Dr. Sinnha, petitioner was re-designated, as Medical

Superintendent. Rather, it was due to typical attitude of

the petitioner himself, that he started creating problems

for himself, as well as, for the patients, who also had

complaints against the attitude of the petitioner. It is

pleaded that in such circumstances, the resignation,

cannot be said to have been made at the hindrance of the

respondent, or as a result of hindrance, created by the

respondents, and if, the petitioner has resigned, then

after its acceptance, he has no right to remain in duty or

in service.

Then replying para 21, it is pleaded, that mere

submission of the resignation does not mean the end of / 10 / D.B.S.A.W.No.392 OF 2007

service, unless the same is accepted. On 12.9.1992, the

resignation was tendered, and was accepted subsequently,

therefore in the intervening period, if the petitioner was

allowed to visit Tarapur and Bombay Office, then, the same

is of no significance. More so when tour programme was

submitted by the petitioner, much prior to submitting

resignation, which programme had already been approved.

Likewise for the same reason, his visit to Bombay and

meeting the higher officers is also of no consequence,

however, the facts regarding meeting with the Dy. General

Manager and Director ( Personnel )were denied.

Then replying para 23, it was pleaded that the

competent authority has accepted the resignation, and

information of the acceptance was communicated to the

petitioner, and alleged that in this para date alleged is

not correct.

Then regarding Dr. Anklesaria's posting, it was

pleaded that he has not been impleaded as party, apart

from the fact that once the petitioner has resigned, he

cannot have concern with the appointment of any other

medical officer, as Medical Superintendent. Then it is

pleaded that the petitioner on his own volition submitted

resignation, from the post he was holding, at the relevant

time. It is also contended, that the stand, that the

petitioner had only resigned from the post of Medical

Superintendent, and not from the post of Surgeon, would

only mean, that a feeble attempt is being made on the part

of the petitioner to confuse the issue and gain mileage.

/ 11 / D.B.S.A.W.No.392 OF 2007

What is relevant is, that on 12.9.1992, the writ

petitioner submitted a letter, clearly indicating

intention to resign, which has been accepted, and he was

relieved from his duty. Thus, it is totally wrong to

contend, that the letter dated 12.9.1992 was

misinterpreted. It is contended, that it is the contents

of the resignation letter, that need to be looked into,

and letter dated 12.9.1992 was a document, expressing

clear intention of the petitioner, to determine a contract

of the employment, with the corporation, which has been

accepted by the competent authority. It was contended,

that it was wrong to contend that Ex. 15 and 16 were not

communicated to the petitioner, as without communication,

petitioner could not possibly annex the copies thereof. It

is pleaded that as a matter of fact, the petitioner

refused to accept the letters and then the same were sent

at his home address. It is pleaded that in fact the whole

story behind the curtain is, that the petitioner had never

expected that the corporation would accept his

resignation. When the petitioner learnt that it has been

accepted, then he tried to cook up stories, and tried to

read in between the line of the resignation letter.

Otherwise, from perusal of the resignation letter, it is

clear, that the petitioner tendered resignation, not only

from the post of Medical Superintendent, but also, from

any post, which the competent authority did not like, or

the petitioner is found unfit. Thus, it is clearly

revealed, that it was resignation from the corporation,

and once it has been accepted, the petitioner cannot be

allowed to make up new story.

/ 12 / D.B.S.A.W.No.392 OF 2007

Then, regarding the petitioner's performing

duties upto 19.9.1992, it is contended, that he was on

tour programme attending the workshop at Tarapur; tour

programme has been of 14 and 15, and he availed casual

leave on 16 and 17, thus, the contention about his being

on tour, for the entire period from 12 to 19 is not

correct. Regarding signature in attendance register, it

was contended, that the signatures are not admitted, and

so called signature does not mean, that the employee is

serving, the attendance register was available in office,

and he might have signed the register un-authorisedly, or

with malafide intention. It was pleaded, that very fact

the petitioner got the register photocopied, and produced

after the period of 14 years, establishes the above

intention. Then, regarding the contention about the

petitioner having not been relieved, it is pleaded, that

from the communications of the petitioner himself, being

application dated 05.1.1993, for final withdrawal of the

PF, and application dated 29.4.1993, for withdrawal of CPF

and interest etc., it is clear, that the petitioner was

relieved on 16.9.1992. These applications have been

produced as Annexures R/3 and R/4. Then, regarding

clearance of bills of tour programme, it was contended,

that he was considered to be on duty on 15.9.1992 only,

and accordingly, his salary, bonus and LTC payment was

settled up, and Ex. 20 is self prepared document. The

calculations sheet, in respect of the payment made, to the

petitioner have been produced as Annexure R/5, and

register as Annexure R/6. Then, it is pleaded, that it is / 13 / D.B.S.A.W.No.392 OF 2007

settled legal position that once the competent authority

has accepted the resignation, it is not open for the

petitioner to withdraw it, as the relationship of employee

and employer, comes to an end, and it came to an end in

the present case on 16.9.1992, as such representation

dated 19.9.1992, is of no consequence. Then, replying to

para 29, regarding terms of contract, it was pleaded, that

terms mentioned in the 'Offer of appointment' relates to

termination by the employer, however in case the employee

wants to relinquish his job, by way of resignation, or on

any other pretext, then there is no such requirement of

any notice, as assumed by the petitioner, as there is no

such stipulation, contained therein. It was denied that

there was any haste on the part of the appellant. The

resignation was submitted on 12.9.1992, and it was

forwarded to competent authority, for acceptance, who

accepted, and acceptance was communicated on 15.9.1992,

and relieving order was issued on 16.9.1992. Regarding

application of mind, the allegation was denied, and it was

contended, that the competent authority, has accepted his

resignation. Regarding plea said to have been taken by the

corporation, about having admitted that the resignation

was accepted by G.R. Srinivasan, it was contended, that as

a matter of fact, in the reply to the writ petition, it

was pleaded, that the third respondent accepted the

resignation, and relieved the petitioner, from the duties,

and in the same para, it was clarified, that on acceptance

of resignation, the same was forwarded by Chief

Superintendent, to the higher officials at Bombay

Office, as the Chief Superintendent was not competent to / 14 / D.B.S.A.W.No.392 OF 2007

accept the resignation, All the relevant papers, along

with the noting of the dealing officers, were put up

before the competent authority, for consideration, and the

competent authority was pleased to accept the resignation.

Thus it was contended, that the reply was misinterpreted.

Thereafter, it is also pleaded that the petitioner himself

tendered resignation on his own, which cannot be

challenged, on any ground, whatever, and it has already

been clarified, that once the petitioner has resigned from

the post, it cannot be said, that he should be given other

post of Surgeon.

It was also contended, that the petitioner never

indicated, nor requested, to be resigning from the post of

medical superintendent, nor offered to be allowed to

continue to work as Surgeon. It is pleaded, that in the

Ex. 13 the petitioner clearly mentioned, that he resigns

from the post of Medical Superintendent, or any other

post. Resignation is complete in itself, and on its

acceptance, the petitioner is not entitled to any relief

whatever. It is also submitted, that once the petitioner

was designated as Medical Superintendent, and if he

resigns, then it cannot mean, that the resignation is not

from service, rather it clearly means to be resignation

from the service. The subsequent representations are

clearly pleaded to be after thought. It was reiterated,

that the clear mention of the word "I have no right to

remain as Medical Superintendent or any post" does make it

clear, that the petitioner resigned from the post of

Medical Superintendent or any other post, and it is not / 15 / D.B.S.A.W.No.392 OF 2007

correct to say, that he merely desired to relinquish the

job of Medical Superintendent, and wanted to continue as

Surgeon.

The petitioner filed rejoinder mainly reiterating

the original pleadings. However, regarding deletion of

names of respondents No 3 to 6, it was pleaded, that in

view of fact, of their non holding of the post, or their

superannuation, their names were deleted, and hence, their

absence is of no consequence. It is also pleaded, that the

petitioner was holding the additional charges of post of

Medical Superintendent, apart from the post of Surgeon,

and that, the two posts are clearly different posts, and

resignation was with respect to relinquishing the duties,

as Medical Superintendent, which does not mean, that the

petitioner submitted his resignation, from the post of

Surgeon also, or also from service. It was reiterated,

that offer of appointment clearly incorporated a

condition, that one month's notice would be necessary, in

case of termination of employee, is a condition for both,

the employer and the employee.

Learned Single Judge noticed, that though several

grounds are raised by the learned counsel for the

petitioner, to challenge the impugned act, but the learned

single judge confined himself to first contention only, as

he felt convinced, that it is sufficient to redress the

grievance of the petitioner.

The first contention has been noticed, being that / 16 / D.B.S.A.W.No.392 OF 2007

letter of resignation, was wrongly interpreted by the

corporation, as the petitioner, by the said letter,

intended to resign from the work of Medical

Superintendent, and not form the post, held by him, being

of Surgeon SO/SF. It was emphasized, that the petitioner

was appointed as Surgeon So/SF, and was instructed to look

after the work of Medical Superintendent, being senior

most Surgeon, and that, even from reading of the

resignation dated 12.9.1992, it is clear, that the reason

for which the petitioner was to get himself disassociated

with the work of Medical Superintendent, only and then

appreciating this contention, it was found, firstly that

from a reading of resignation letter, it is clear, that

the petitioner was much aware of the difference between

Medical Superintendent and Surgeon SO/SF, and has nowhere

stated, that he wants to resign from the post of Surgeon

So/SF, which clearly shows, that he was having intention

to get himself relieved, from the work of Medical

Superintendent, while continuing as Surgeon SO/SF.

The other thing, which has been found is, that

the resignation letter was not addressed to the competent

authority, but to Chief Superintendent, which clearly

establishes, that no resignation from service was

submitted by the petitioner, and the corporation mis-

communicated. The other thing found is, that the entire

action was taken in a hot haste as the resignation was

sent by fax, to the competent authority, on the same day,

without expressing the real intention and implication of

the letter concerned, and the resignation was accepted / 17 / D.B.S.A.W.No.392 OF 2007

from service, and ordered to relieve the petitioner from

duties. In the opinion of the learned Single Judge, the

competent authority should have waited, at least to get

the original document, inter-alia, with this conclusion,

the impugned order has been made.

Assailing the impugned order it is contended,

that the learned Single Judge has proceeded on

fundamentally wrong assumption. It is contended, that the

resignation inherently means to resign from service, or in

other words, to sever the relationship of employer and

employee. It cannot be from a post only, with continuance

of service. Substantiating this argument, it was

contended, that as a matter of fact, the petitioner was

not holding two posts, being that of Surgeon SO/SF, and

that of Medical Superintendent, rather he was re-

designated as Medical Superintendent, with the result,

that the assumed two posts were merged into one, and he

became Medical Superintendent. It is not a case where, he

was getting salary of Surgeon SO/SF, and was also

receiving certain additional salary, allowance, or

perquisites, of Medical Superintendent, so as to show the

survival of two posts together, making it possible for the

petitioner to contend that the petitioner was holding two

posts, and out of them, he relinquished, or resigned, from

one only. Since with re-designation, the petitioner

continued to hold only one post, from which he resigned,

that resignation could not have the effect of re-emergence

of the merged post, or to bring into existence the post,

which existed before re-designation. It was contended, / 18 / D.B.S.A.W.No.392 OF 2007

that even according to the petitioner, Medical

Superintendent is not independent cadre, or post, but is

only re-designation. Thus, the learned Single Judge

proceeded on basic conception, about there being two

posts. Then it was contended, that the learned Single

Judge has further erred in accepting the contention,

regarding resignation letter dt. 12.9.1992 having not been

addressed to the competent authority. According to the

learned counsel, it is nowhere the requirement, that

resignation should be addressed to the competent

authority. In the present case, the resignation was

forwarded by the recipient to the competent authority, and

it was the competent authority, who accepted the same

without any mis-interpretation of the resignation. It was

then contended, that much has been said, and assumed, by

the learned Single Judge, on the basis of so called haste

in acceptance of the resignation. It was contended, that

there was no extra-ordinary haste, employed by the

appellant, and in any case, even if any prompt action is

taken, that cannot be decried on the assumption of haste.

There is no requirement that the competent authority,

either should have waited for the receipt of original

resignation letter, or to have applied its mind, in the

manner, and for the purpose, as intended to be contended.

Thus, the impugned order is clearly bad. Then elaborating

the argument, it was submitted, that as is clear from the

pleading in the writ petition, and various Annexures,

annexed with the writ, that the petitioner was feeling the

atmosphere prevailing to be bad, and if his attempts to

reverse the atmosphere, to suit his temperament did not / 19 / D.B.S.A.W.No.392 OF 2007

yield any result, and on that count, if the petitioner

submitted resignation, it cannot be said, that he did not

tender the resignation from the service, and submitted the

resignation from the particular post only. According to

the learned counsel, whatever be the reasons, on account

of which the petitioner felt persuaded, or stood advised,

to submit resignation, and even if the petitioner happens

to recite some of them in the resignation letters, the

resignation does not cease to be resignation, and once it

is accepted, it is not open to the employee to withdraw it

thereafter.

It was submitted, that it clearly appears from

the averments of the writ petition, that right from the

day one he joined, the petitioner was not feeling

comfortable with the job. Though he has alleged the

existence of conspiracy, since the day he joined, but then

the allegation of conspiracy is writ large false, as some

of the persons, who are said to be the conspirators, are

the persons, who have selected the petitioner. With this

background, from the material on record, it is clear, that

immediately after joining, the petitioner started creating

problems for himself. He has claimed fixation of pay, then

claimed designation, and when all of these were given,

still he was not satisfied, and desired to quit, and in

that sequence, he submitted the resignation. It is pointed

out, that a look at the resignation letter Ex.13, makes it

clear, that he has signed it as Surgeon, and not as

Medical Superintendent, which was a deliberate act on the

part of the petitioner, to confuse the things, seeking to / 20 / D.B.S.A.W.No.392 OF 2007

contend to be resigning as Medical Superintendent, a re-

designated post, and signing as a Surgeon. Then he

submitted his resignation, and on that very day, he

proceeded on tour, and then submitted representation on

19.9.1992, signing as Medical Superintendent. Even if the

petitioner's stand, for the sake of arguments, were to be

considered, then, when he had resigned from the post of

Medical Superintendent on 12.9.1992, which resignation has

been accepted, it was in his knowledge, and there was no

occasion for him to submit the representation on

19.9.1992, as Medical Superintendent. The petitioner very

well claims to be aware of the distinction between Medical

Superintendent and Surgeon. Likewise, it was also

contended, that the petitioner was frustrated with the

job, even to the extent, that he communicated, that the

Officers in the establishment, are medically sick, and are

required to be examined by psychiatrist. All these actions

clearly show, that he did intend to, and as a matter of

fact did, resign from the service.

It was also contended by the learned counsel,

that the resignation was duly forwarded to the competent

authority, and it was the competent authority, who

accepted the same, and consequent upon such acceptance,

the petitioner was relieved; merely because the petitioner

chose to withdraw the resignation, before being

communicated the acceptance of the resignation, it does

not have any effect. It cannot be said that the

resignation did not come into effect, leaving any right

available to the petitioner, to withdraw the resignation, / 21 / D.B.S.A.W.No.392 OF 2007

once accepted.

Then, in the alternative it was contended, that

even if for any reason, this Court comes to the

conclusion, either, that Ex.13 does not constitute

resignation from the post of Surgeon, or that, it is not

valid resignation, or that it has not been accepted by the

competent authority, and thus, for all, or any of the

reasons, the action of the appellant, is found to be

unsustainable, even then, the petitioner is not entitled

to the relief, as granted by the learned Single Judge. In

this regard, it was contended, that the petitioner's

conduct, right from the date of acceptance of resignation,

had been such, which clearly disentitles him to any relief

of reinstatement, or even the emoluments for the back

period, and in any case, instead of reinstatement, at the

most, he may be awarded some lump sum cash compensation.

In this regard it was contended, that the resignation was

accepted on 15.9.1992, then representation was submitted

by the petitioner on 19.9.1992 and then of course, the

writ petition was filed on 26.9.1992. But then what is

significant to note is, that the writ petition was filed

in a court having no jurisdiction to entertain the same,

inasmuch as, despite the writ being required to be filed

before the Principal Seat, it was filed at Jaipur Bench.

Then vide order dt. 21.5.1997, the writ petition was

transferred to the Principal Seat, with a clear and

positive direction to the parties, to appear before the

Principal Seat at Jodhpur on 10.9.1997. Notwithstanding,

that the petitioner did not appear on 10.9.1997, and when / 22 / D.B.S.A.W.No.392 OF 2007

the matter came up before the Court on 10.9.1997, nobody

appeared on behalf of the petitioner, and the Court,

instead of dismissing the writ petition, only showed

benevolence, and ordered the matter to be listed, as and

when the parties make an application, and then, the

application came to be filed by the petitioner, as late as

on 28.3.2005 only. Thereafter, the matter was taken up,

and the matter was heard. Then the petitioner sought

permission to amend the writ petition, which prayer for

amendment was allowed on 20.9.2006, and the matter

thereafter was heard. Thus, for good long 13 years, the

matter was not pursued by the petitioner. Then certain

other aspects were pointed out, inasmuch as, the writ

petitioner had tried to explain out this delay, which

explanation has been controverted, and in that regard,

contradictory affidavits have come to be filed on side of

the petitioner himself, which contradictions were

highlighted. With this, it was submitted, that now the

petitioner is on the verge of attaining the age of

superannuation, and the employment being not pensionable,

at the best, the petitioner could be awarded some lump sum

cash compensation. Then it was contended, that during the

interregnum period also, the petitioner was gainfully

employed, as has been noticed by the Division Bench, in

the detailed order dt. 20.7.2007, passed while admitting

the appeal, and disposing of the stay petition, wherein

the contents of the affidavit filed by the petitioner were

recapitulated, and from that, it was sought to be

contended, that it is clear that the petitioner was

gainfully employed, and at the same time, the extent of / 23 / D.B.S.A.W.No.392 OF 2007

gainful employment is not to be calculated on mathematical

basis, so as to require gainful employment, yielding an

income equivalent to, or in close proximity of, the income

being earned from the employment in question, and since he

was gainfully employed, therefore also, is not entitled

for back emoluments.

Then one more argument was submitted, that after

acceptance of the resignation, the petitioner, by moving

applications, has received all amounts, which were payable

to him, on account of his resignation having been

accepted, and the employment having come to an end

thereby, and to have received the amount, rather without

any protest, as such the petitioner is estopped from

maintaining the writ petition. Learned counsel invited our

attention to the various applications filed by the

petitioner in this regard.

Learned counsel relied upon various judgments of

Hon'ble Supreme Court on different aspects, being as

under:-

J.K. Cotton Spinning and Weaving Mills Company

Ltd. vs. State of U.P. & Ors., reported in (1990) 4 SCC

page 27; North Zone Cultural Centre & Anr. Vs. Vedpathi

Dinesh Kumar, reported in (2003)5 SCC 455; Post Graduate

Institute & Ors. vs. Dr. J.B. Dilawari, reported in AIR

1988 SC, 1348; Chairman & MD, BPL Ltd. Vs. S.P.Gururaja &

Ors., reported in 2003(8) SCC 567; A.K. Bindal & Anr. vs.

Union of India, reported in 2003 (98) Factory and Labour / 24 / D.B.S.A.W.No.392 OF 2007

Reports page 1; North East Karnataka Road Transport

Corporation vs. M. Nagangouda, reported in AIR 2007 SC

page 973; General Manager, Haryana Roadways vs. Rudhan

Singh, reported in (2005)5 SCC page 591; Kendryia

Vidyalaya Sanghathan & Anr. Vs. SC Sharma, reported in

2005(2) SCC 363; O.P. Bhandari vs. Indian Tourism

Development Corpn. Ltd. & Ors., reported in (1986) 4 SCC

337.

Then reliance was placed on the judgment of this

Court, being Om Prakash vs. Hindustan Petroleum

Corporation Ltd. & Ors., reported in 2008(1) RLR, page

408, and an unreported judgment of Division Bench of this

Court dt. 2.11.2007, rendered in D.B. SAW No. 847/2007,

whereby aforesaid judgment was affirmed.

On the other hand, learned counsel for the writ

petitioner contended, that it is not a case of resignation

as such, but it was only a communication, addressed in

sequence of Ex.10, Ex.11 and Ex.11-A, conveying the stress

and anguish. It was also contended, that the requirement

is, that resignation should be unconditional, while the

question required to be considered, in the present case

is, as to whether the Ex.13 is a resignation at all.

On being asked, as to what are the legal

provisions, governing the subject, it was submitted, that

as such there was no legal provision, and some guidance

can be sought only from Rule 26 of the Central Civil

Service (Pension) Rules, 1972. Then relying on Ex.9 dt.

/ 25 / D.B.S.A.W.No.392 OF 2007

14.11.1991, available at page 128 of the paper book, it

was contended that Ex.9 dt. 14.11.1991 does give list of

posts in RAPS, which list does not include the post of

Medical Superintendent, and at item No.1, there is only

one post of Surgeon. Then document available at page 129,

being part of Ex.9 itself, shows that senior most amongst

the specialist is to be designated as Medical

Superintendent. The petitioner was the senior most

Scientific Officer in Grade SF (SO/SF) and he was re-

designated as Medical Superintendent on 20.9.1991. It was

contended that, earlier documents, which have been sought

to be relied upon by the appellant, to show, that the

petitioner was not satisfied with atmosphere, which made

him resign, are, according to the learned counsel for the

writ petitioner, required to be seen for the purpose of

ascertaining the intention of the petitioner, as to

whether, it was ever the intention of the employee to

sever the relationship, and if so, to what extent, and in

that background, Ex.11 (dt.28.5.1992) was relied upon,

wherein, it was given out by the petitioner, that he will

love to work as Surgeon, else, he would be committing

professional suicide by wasting most of his time and

energy in administrative work, and it was contended, that

this unmistakably makes it clear, that the petitioner was

in frame of mind, to get relieved of the administrative

work only, and as such, the Chief Superintendent was

conveyed to have any other person, as Medical

Superintendent. Then it was contended, that of course, the

post of Surgeon was itself re-designated as Medical

Superintendent, but then, thereby the post of Surgeon was / 26 / D.B.S.A.W.No.392 OF 2007

not abolished, or changed. Learned counsel highlighted the

duties of Medical Superintendent, and submitted, that even

vide Annexure-11-A, the petitioner had requested to change

the Medical Superintendent.

Then coming to the Ex.13, the crucial document,

the resignation itself, it was contended, that in the

subject of the communication, it is clearly mentioned to

be resignation from the post of Medical Superintendent.

Then by reading the contents of this communication, it was

contended to be conditional, and to be simply ventilating

the grievances of the petitioner, so also, to be in

continuation of the preceding three letters, being Ex.10,

Ex.11 and Ex.11-A, wherein he had conveyed to be to love

to work as Surgeon, and by this Ex.13, purported to resign

from the post of Medical Superintendent. Learned counsel,

in this regard, relied upon the judgments of the Hon'ble

Supreme Court, in P.K. Ramachandra Iyer vs. Union of

India, reported in (1984) 2 SCC 141, which was followed

by Hon'ble Supreme Court in Dr. Prabha Atri vs. State of

U.P. & Ors., reported in (2003) 1 SCC, page 701.

Then replying to the arguments about conduct, it

was contended, that contention of conduct is required to

be bifurcated in two parts: The first being the conduct,

while in department, and second being in pursing the

litigation. Then it was submitted, that so far as the

conduct of the petitioner, while in department is

concerned, that cannot be looked into, for the simple

reason, that for that, if the Corporation so thought / 27 / D.B.S.A.W.No.392 OF 2007

appropriate, disciplinary action could have been taken

against him, but no departmental enquiry whatever ever

initiated, and therefore, that cannot be looked into in

the present writ petition, for the purpose of adjudicating

upon the construction of Ex.13, the resignation letter,

and/or upon the validity of action of the Corporation, in

accepting the resignation. It was contended that no

pleading has been taken in the writ petition, with regard

to the conduct of the petitioner, while in service.

Then regarding conduct during litigation, it was

contended, that the petitioner immediately approached the

Court on 26.9.1992 itself. Then from the material on

record, it is clear, that the case was listed in the Court

on 10.7.1997, then even in the reply to the amended writ

petition, which was submitted on 10.11.2006, no pleading

has been taken about any conduct on the part of the

petitioner in delaying the litigation. It was also

contended that diligent pursuit of litigation is not

defined anywhere, nor is possible to define, and simply

because the litigation takes some time, it cannot be

pressed into service as negative factor, to deny the

benefits of the past period, to the petitioner.

It was also submitted that the petitioner was on

tour, under the previously approved tour programme, and

while so being on tour, the resignation was sent by the

Chief Superintendent by FAX, it was immediately accepted,

which was clearly an action taken in hot haste, and cannot

be described to be merely an act of promptitude.

/ 28 / D.B.S.A.W.No.392 OF 2007

Then it was contended, that the resignation has

not been accepted by the competent authority, and the

order of acceptance of resignation, by the competent

authority has not been placed on record, despite the fact,

that the Court desired it to be produced, but it was not

produced, and it was given out, that the record is not

available. Then reference was made to Annexure-15 at page

No.139, to show, that the telex message about acceptance

of resignation, does not even correctly contain name of

the petitioner, inasmuch, it mentions some R.S. Rathore,

whose resignation has been accepted, while the petitioner

is H.S. Rathore. Then an action in appointing Dr.

Anklesaria, to function as Medical Superintendent, was

also assailed by contending, that other senior persons

were available. Then it was submitted, that the

petitioner, on 19.9.1992, had clearly submitted a

representation Annexure-17, pointing out that his letter

dt. 12.9.1992 has been misunderstood and misinterpreted;

and that, the petitioner had never resigned from the

Corporation, nor was the letter addressed to the

appointing authority, and then, vide Ex.18, it was clearly

withdrawn.

Replying the contention based on the ground of

estoppel, it was contended, that the petitioner had only

received the salary, allowance, DA, medical, bonus, LTC

settlement and CPF, which was his own contribution, and

even in Anenxure-R/3, the petitioner was paid terminal

benefits, and not the retiral benefits, therefore, it does / 29 / D.B.S.A.W.No.392 OF 2007

not amount to estoppel. In the alternative, it was

submitted, that even if under financial crunch, the

petitioner felt it necessary to withdraw the amount, that

cannot attract the principle of estoppel to non-suit the

petitioner, in this writ petition. Reliance was placed on

the judgments of the Hon'ble Supreme Court in Ramesh

Chandra Sharma vs. Punjab National Bank & Anr., reported

in 2007 (9) SCC, page 15 and Mahendra vs. Punjab and Sind

Bank, reported in 2005 (12) SCC 747.

Then replying the arguments about the gainful

employment, it was contended, that the petitioner has

honestly made a clean breast of whatever he had received,

and that does not show, that the petitioner was ever

gainfully employed. The petitioner originally is from

Bikaner, and even since before joining Army, his Chartered

Accountant was from Bikaner, and therefore, he collected

information from him and submitted, which cannot be said

to be manipulated.

Then reliance was placed on the judgment of

Hon'ble Supreme Court in Srikant S.M. vs. Bharath Earth

Movers Ltd., reported in AIR (2005)8 SCC 314, wherein

after considering the three previous judgments, Hon'ble

Supreme Court has awarded full back wages.

Then re-enforcing the arguments, that resignation

has not been accepted by the competent authority, it was

contended that the competent authority, in case of the

petitioner, is a Chairman, and the resignation has not / 30 / D.B.S.A.W.No.392 OF 2007

been accepted by the Chairman.

Then making some reference to order of Division

Bench dt. 20.7.2007, wherein it was noticed, that

admittedly, the petitioner has undergone the operation of

cataract, it was submitted, that with the modern

technology of cataract operation, the petitioner does not

suffer handicap, rather now he has 6/6 vision. Inter

alia, with this, the judgment of the learned Single Judge

was supported.

In rejoinder, it was submitted by the learned

counsel for the appellant, that quitting from the job is

unilateral act of the employee. Regarding acceptance of

the resignation, it was submitted, that the appellant has

clearly pleaded in rejoinder to the reply of the appeal,

in para 3, that the unconditional resignation submitted

by the writ petitioner on 12.9.1992 was forwarded to the

Corporate Office for its acceptance, and the then Managing

Director of the Corporation, Shri S.L. Khatti accepted the

resignation of the writ petitioner on 15.9.1992, and that

the Director Personnel has informed the RAPS Authority,

about the acceptance of the resignation by the Managing

Director, who was competent authority to appoint and

accept resignation etc. of Group-A Officers of the

Corporation, and on receiving the communication from the

Corporate Office, RAPS issued the relieving letter. Thus,

it is clear that the resignation was accepted by the

competent authority. Then on the aspect of the

resignation, certain submissions were made, by referring / 31 / D.B.S.A.W.No.392 OF 2007

to some provisions, like section 62 of the Rajasthan

Municipalities Act, the Panchayati Raj Act, Article 90 of

the Constitution etc., to contend, that where it is

desired, that the resignation should be in a particular

manner, including, as to whether, it should be in own

writing, or not, of a person resigning, and as to when, to

whom, it is to be addressed, or to be delivered, and the

period during which it can be accepted etc., different

provisions have been made in the above provisions, but

then, no provision has been made in the Corporation

Establishment. As such, on the general principle, the

resignation letter Ex.13, itself, has to be construed, and

on being so construed, it is clear, that the petitioner

intended to resign from the service, and to bring the

employment to an end, had received every penny that became

payable to him, consequent upon his employment coming to

an end, and nothing more is claimed to be due. Then it

was also contended, that the learned Single Judge had

asked the petitioner to file additional affidavit, and

that obviously was intended to obtain information from the

petitioner, to enable the Court, to consider the question,

as to what relief is to be given to the petitioner. From

the affidavit so filed, it is clear, that the petitioner

was gainfully employed, as such, the petitioner could not

be awarded emoluments for the back period.

We have heard learned counsel for the parties,

have gone through the various judgments cited at the bar,

and have also gone through the entire bulky file of the

petition, appeal, reply filed thereto, and the rejoinder / 32 / D.B.S.A.W.No.392 OF 2007

as well. However, we clarify, that without any permission

of the Court, written arguments were filed by the parties,

and we took a very serious exception thereof, and on

11.9.2008, they were specifically declined to be taken on

record, and Registry was directed to return the said

written arguments to the respected counsels. Obviously

therefore, neither we are supposed to, nor did we, look

into the alleged written arguments.

We did not get involved in the bulk and volume of

the file, and in the first instance, concentrated on the

core question involved in the matter, being as to whether

the letter of the writ petitioner dated 12.9.1992, being

Ex.13, amounts to resignation? If so, does it amount to

resignation from the post of Medical Superintendent, so as

to enable the writ petitioner to contend to be continuing

as Surgeon? Thirdly, whether the resignation has been

accepted by the competent authority, so as to validly

bring to an end the relationship of employer and employee?

In case the cumulative result of these questions goes

against the writ petitioner, other questions need not be

gone into.

On the other hand, if the cumulative effect of

the answer to these questions goes in favour of the writ

petitioner, then the next important question, for our

consideration would be, as to what relief the writ

petitioner is entitled to?

Taking up the first question, we first proceed to / 33 / D.B.S.A.W.No.392 OF 2007

consider the aspect, as to whether Ex.13, can be said to

be amounting to resignation. At the outset we may observe,

that so far as the present employer appellant is

concerned, of course certain regulations have been framed,

but then much later, and it is not in dispute, that at the

relevant time, i.e. when the resignation of the petitioner

was accepted, the matter was governed by the Rules

applicable to Central Government Employees. In this regard

we may rely upon and refer to Annex.R/11.

From that point of view, we looked into the

provisions governing to Central Govt. employees, and the

only provision we find is the one contained in Rule 26 of

the Central Civil Services Pension Rules, 1972, which

reads as under:-

"26.Forfeiture of service on resignation

(1) resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails forfeiture of past service.

(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies.

(3) Interruption in service in a case falling under sub-rule (2), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him.

(4) The Appointing Authority may permit / 34 / D.B.S.A.W.No.392 OF 2007

a person to withdraw his resignation in the public interest on the following conditions, namely:-

(i)that the resignation was tendered by the Government servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation;

(ii)that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper;

(iii)that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days;

(iv)that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available.

(5) Request for withdrawal of a resignation shall not be accepted by the Appointing Authority where a Government servant resigns his service or post with a view to taking up an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government.

(6) When an order is passed by the Appointing Authority allowing a person to withdraw his resignation and to resume duty, the order shall be deemed to include the condonation of interruption in service but the period of interruption shall not count as qualifying service.

(7) A resignation submitted for the purpose of Rule 37 shall not entail / 35 / D.B.S.A.W.No.392 OF 2007

forfeiture of past service under the Government."

Thus, a reading of the above provision of Rule 26

makes it clear, that this is of no assistance to either

side, either ways, and the matter rests in the realm of

the basic and general law of resignation, as is required

to be perceived, gathered, collected, and conceived, from

other possible relevant material.

If considered from that standpoint, as submitted

by learned counsel for the appellant, there are various

provisions relating to mode, manner, contents of the

resignation and as to how the resignation is to be

prepared and signed under different legislations quoted

above so also Article 217 of the Constitution, and what we

find is that in all the above legislations, different

phraseology has been used, different requirements have

been prescribed, obviously therefore, it is clear that

wherever a particular requirements are to be intended to

be provided, they have been provided, and in the absence

of any such provision, such requirements cannot be

imported where they do not exist. Any otherwise approach

would bring about an anomalous situation, obviously

therefore, the different legislations make different

provisions, which at times, may not be reconcilable, so as

to be put in any one uniform straitjacket formula.

At this stage now we may refer to the

Constitutional Bench Judgment of Hon'ble the Supreme / 36 / D.B.S.A.W.No.392 OF 2007

Court, in Union of India & Ors. Vs. Gopal Chandra Misra &

Ors., reported in (1978) 2 SCC 301, where the

Constitutional Bench considered the meaning of the term

"resignation", and in para 24 and 25 held as under:-

"24. 'Resignation' in the dictionary sense, means the spontaneous relinquishment of one's own right. This is conveyed by the maxim :

Resionatio est juris propii spontanea refutatio (See Earl Jowitt's Dictionary of English Law). In relation to an office, it connotes the act of giving up or relinquishing the office. To "relinquish an office" means to "cease to hold" the office, or to "loose hold of" the office (cf. Shorter Oxford Dictionary); and to "loose hold of office", implies to "detach", "unfasten", "undo or untie the binding knot or link"

which holds one to the office and the obligation and privileges that go with it.

25. In the general juristic sense, also, the meaning of "resigning office" is not different. There also, as a rule, both, the intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see, e.g. American Jurisprudence, Second Edn., Vol.15A, page 80), although the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Thus, resigning office necessarily involves relinquishment of the office, which implies cessation or termination of, or cutting asunder from the office. Indeed, the completion of the resignation and the vacation of the office, are the casual and effectual aspects of one and the same event."

Then in para 112 of the same judgment certain

propositions have been propounded, and one of the

principle propounded is, that since in that particular

case, the resignation did not require any acceptance as

such, it was held, that resignation, once submitted, and / 37 / D.B.S.A.W.No.392 OF 2007

communicated to the appropriate authority, becomes

complete and irrevocable, and acts ex proprio vigore, in

absence of there being anything to indicate, that the

resignation was to take effect from any future date. It

was also held, that in such cases, resignation is purely

unilateral act, and takes effect ipso facto, once the

intention to resign is communicated to the competent

authority, according to the provisions of the relevant

Rules.

That being the position, we have to be guided by

the definition of the term 'resignation' as contained in

the law dictionaries and as considered by Hon'ble the

Supreme Court in Gopal Chandra's case. In Gopal Chandra's

case, the resignation letter clearly stipulated on the

part of the person resigning, that resignation shall be

effective on 1.8.1977, and that was construed by Hon'ble

the Supreme Court to be merely an intention, or notice of

the writer's intention to resign his office on a future

date viz. 1.8.1977. Meaning thereby, that in absence of

any provision for acceptance of resignation, or in absence

of any provision about particular mode of giving

resignation, or about the resignation to be required to be

addressed to any particular authority, if the

communication falls within the four-corners of

resignation, it becomes effective, proprio vigore as soon

as it is given.

Then we feel it better to quote the document in

question, being Ex.13, as such, which reads as under:-

/ 38 / D.B.S.A.W.No.392 OF 2007

"CONFIDENTIAL To

Shri T. S. V. Ramanan Chief Superintendent, RAPS Site.

Sub:- Resignation from the post of Medical Superintendent, RAPS Hospital.

Sir,

You being my Superior officer, hesitated to give even a certificate that my work and conduct is satisfactory then I think morally I have no right to remain as Medical Superintendent or any post which you do not like or for which your feel I am unfit, Hence I am submitting my resignation from the post of Medical Superintendent RAPS Hospital.

Thanking You.

Yours sincerely.

Ad/- Dr. (Major) H.S.Rathore Surgeon SO/SF.

Dated. 12-9-92 RAPS Hospital."

Thus, from a reading of this Ex.13, it clearly

shows, that it is intended to be a resignation, as the

caption subject itself reads to be resignation from the

post of Medical Superintendent, R.A.P.S. Hospital. Then

the last sentence also reads "Hence I am submitting my

resignation...". In our view, this last sentence of the

communication does clearly show, and manifests, the

complete and effective act of resigning the office. Much

stress was laid by learned counsel for the writ petitioner

on the basis of the judgment of Hon'ble the Supreme Court

in Dr. Prabha Atri's case, to contend it to be not

tentamounting to resignation, or in any case to be a / 39 / D.B.S.A.W.No.392 OF 2007

conditional one.

We may at once observe, that we are not inclined

to accept the submissions that Ex.13 is in any manner

conditional. The contents of the documents, which were

read to us, narrating the incident of the Chief

Superintendent having hesitated in giving a certificate

about work and conduct to be satisfactory, and the

incumbent feeling morally to be having no right to remain

as Medical Superintendent, or any post, which is not liked

by the Chief Superintendent, as the later feels the

incumbent to be unfit, cannot be said to be putting up any

condition, subject to fulfillment of which only,

resignation was intended to be operative. This narration,

is narration of only past events, which appears to have,

or may have, contributed in the mental frame of the writ

petitioner, to arrive at a decision to tender resignation.

It is required to be grasped, that no employee would

submit resignation only by the way. There must always be

some reason working in the mind of the employee, or some

reason at some time in the foregone past, or recent past,

that should have worked in the mind of the employee to

arrive at a conscious decision to submit resignation. Such

reasons may be enumerable, to illustrate may be family

circumstances, may be own health, may be his surrounding

family atmosphere, may be surrounding availability and

non-availability of certain relations, may be his

disliking of certain other co-workers, or may be disliking

his superiors, or the subordinates, or may be his not

liking the job, or the job not providing him expected / 40 / D.B.S.A.W.No.392 OF 2007

level of job satisfaction, or the employee may not find

the work place atmosphere to be conducive to his working,

or the atmosphere might not have come up to his

expectation, or the employee may be having in his vision

some better alternative, and so on and so forth. It would

obviously be a futile exercise on our part to venture to

list such grounds, but then, this cannot be denied at all,

that the initiation of move in the mind of the employee,

and culmination whereof into a decision to tender

resignation, is always an out come of certain facts,

events, circumstances, or series of them, and in case, the

employee chooses to catalogue them in the resignation, it

would be too much to concede that such cataloguing of the

events, facts or circumstances, which persuaded the

employee to take the decision to tender resignation, makes

the resignation conditional. So far as the judgment in Dr.

Prabha Atri's case is concerned, the communication in that

case is entirely different, inasmuch as, that was clearly

conditional. The precise portion thereof has been quoted

by Hon'ble the Supreme Court, which reads as under:-

"your letter is uncalled for and should be withdrawn. I have been working in this hospital since 10-5-1978 and have always worked in the best interest of the patients. It is tragic, instead of taking a lenient view of my sickness you have opted to punish me.

If the foregoing is not acceptable to you then I have no option left but to tender my resignation with immediate effect."

(Emphasis Supplied)

Thus, in our view, the words used by the / 41 / D.B.S.A.W.No.392 OF 2007

expression "If the foregoing is not acceptable to you then

..." obviously did constitute a condition precedent for

terming the communication as resignation. With all

possible best efforts on our part, and by reading and re-

reading this document Ex.13, any number of times, and very

closely, we do not find any such condition, or any other

condition, putting a condition precedent for rendering

this communication to be a resignation. In that view of

the matter, we have no hesitation in concluding, that this

communication is very much a resignation.

So far as this resignation being addressed to the

Chief Superintendent, and not being addressed to

appointing authority is concerned, again we may observe,

that where such requirement was intended to exist, about

resignation being addressed to particular authority,

specific provision to that effect has been made in the

various legislations referred to above, but in absence of

any such provision, in case of the appellant's

establishment, we cannot import any such condition, at the

pain of invalidating resignation.

So far as withdrawal of resignation is concerned,

it has clearly been ruled in J.K. Cotton's case that under

common law the resignation is not complete unless it is

accepted by the proper authority, and before acceptance an

employee can change his mind, and withdraw the

resignation. But once it is accepted the contract comes to

an end, and relationship of master and servant stands

snapped. Then even the appellant while replying para 21 of / 42 / D.B.S.A.W.No.392 OF 2007

the writ petition, has pleaded, that mere submission of

the resignation does not mean the end of service, unless

the same is accepted. Thus in the case in hand the parties

are ad-idem that the resignation was required to be

accepted, and in the present case since according to the

appellant the resignation has been accepted on 15.9.1992,

the right to withdraw the resignation is claimed to have

come to an end. Whereas the resignation has not been

accepted by the competent authority, the communication

withdrawing resignation is of much assistance to the writ

petitioner, as his right to withdraw clearly survived.

Then the question arises, as to what is the

effect of this resignation also, viz. as to whether by

this, the writ petitioner resigned from the post of

Medical Superintendent only, or it has the effect of

resigning from the service, as such, resulting into

severance of relationship of employee and employer?

Of course in the subject, it is mentioned that

resignation from the post of Medical Superintendent, and

the last sentence of the body of the communication also

reads to be the petitioner submitting resignation from the

post of Medical Superintendent, RAPS, Hospital, and much

stress was laid by learned counsel for the appellant on

the words "or any post" appearing in the body of the

communication, forming part of the sentence "I have no

right to remain as Medical Superintendent or any post,

which you do not like or for which you feel I am unfit".

But then, at least from the language of this document, it / 43 / D.B.S.A.W.No.392 OF 2007

is clear, that the petitioner purported to resign from the

post of Medical Superintendent, while according to the

appellant, the writ petitioner intended to sever

relationship of employer and employee, and for that

purpose, the appellant has highlighted the series of past

events, right from the date of his appointment, till

12.9.1992, and has tried to show that right from day one,

the petitioner was not satisfied with job and work place

atmosphere, he was feeling that a conspiracy is hatched

against him to remove him, or humiliate him, and for that

purpose certain acts are alleged to have been done by the

various employees of the appellant, and according to the

submission of learned counsel for the appellant, those

acts, events and circumstances, are not alleged to have

been done against the petitioner, only as Medical

Superintendent, but as an employee, and since feeling

aggrieved, disgusted or frustrated from all of them, the

petitioner submitted resignation, therefore, it cannot be

said that the resignation was tendered only from the post

of Medical Superintendent, with intention to continue in

the job as Surgeon, rather it was another step of

calculated trick, played by the writ petitioner, to keep

the employer on tantor's hooks, and take advantage of the

situation, as may suit the convenience of the petitioner,

at a given point of time, and in given circumstances, but

then, he cannot be allowed to take advantage thereof. On

the other hand, according to the learned counsel for the

writ petitioner, the petitioner was a qualified Surgeon,

and was appointed as such, and since he was not feeling

comfortable as Medical Superintendent, on account of / 44 / D.B.S.A.W.No.392 OF 2007

certain things, including financial and administrative

powers, he had clearly expressed his intention vide Ex.11,

that he would love to work as a Surgeon, otherwise he

would be committing professional suicide, by wasting most

of his time and energy in administrative work, and offered

to be ready to handover the charge of Medical

Superintendent, that day itself.

We have considered the aspects projected on the

two rival sides.

Of course the attending circumstances culminating

into tendering of resignation may be required to be looked

into, and may be relevant for spelling out the intention

of the person tendering resignation, but then, here there

is one significant thing, which cannot be ignored, viz.

that the writ petitioner was appointed as Surgeon, and on

his representation, and according to the writ petitioner

at the intervention of the Managing Director, he was re-

designated as Medical Superintendent. The word re-

designation is very significant, inasmuch as, with re-

designation the original post gets merged, or converted,

into the re-designated post. The two posts cease to

continue to retain their independent identity, and

existence. It is not the case of the petitioner either,

that he continued to work as Surgeon, and was given

additional charge of Medical Superintendent, much less

that he was given any benefit for the additional charge,

whether by way of additional pay, or additional

allowances, or additional perquisites, or the like. It is / 45 / D.B.S.A.W.No.392 OF 2007

categoric case of the petitioner, as pleaded in para 13,

that the petitioner submitted representation to the

Managing Director, and other higher authorities, for all

his troubles, for his proper fixation, timely grant of

increment from appropriate date, and thereafter, because

of intervention by Managing Director, an order was issued

on 20.9.1991 (Ex. 8), by which the petitioner was

designated as Medical Superintendent, and after the

petitioner was made Medical Superintendent, no

administrative and financial power was given, which was

alleged to have been subsequently given. Then a look at

Ex.8 shows, that thereby the competent authority had 're-

designated' the writ petitioner as Medical Superintendent

with immediate effect. Obviously distinction between the

designation and re-designation is no less significant,

perhaps for this reason, the petitioner has pleaded in

para 13 of the writ, that he was designated, while as a

matter of fact vide Ex.8 he had been re-designated. It is

nowhere the plea, nor any order has been placed by the

petitioner, to show, that he was given any additional

charge of the post of Medical Superintendent. In that view

of the matter, it cannot be said, that there were two

posts subsisting together, being held by the petitioner,

being that of the Surgeon as well as Medical

Superintendent, nor is it the situation brought about,

that by virtue of his re-designation as Medical

Superintendent, his appointment as Surgeon got eclipsed,

capable of being revived or reappearing, on the shadow of

the post of Medical Superintendent being away. That being

the position, even if it were to be assumed, that the / 46 / D.B.S.A.W.No.392 OF 2007

petitioner tendered resignation from the post of Medical

Superintendent, that was the only post he was holding

consequent upon Ex.8, the re-designation, from that date,

and thus the resignation does have the effect of bringing

to an end the employment, and severance of relationship of

employer and employee. So far as Ex.11 is concerned, that

is a matter of 28.5.92, to be precise, but then, pursuant

thereto he did not hand over the charge of Medical

Superintendent. In such circumstances, if after around 4

months, he submitted his resignation, and even without

mentioning, that he continues to work as Surgeon, it

cannot ipso facto have the effect of tentamounting to

resignation from the post of Medical Superintendent only,

and not from the service. It is a different story, as to

whether, even if such clarification were to be made in

Ex.13, it would have any consequence or not, but in any

case, in absence of any such clarification, it cannot be

said, in view of the above observations and conclusions,

that his appointment as Surgeon revived, or reappeared, or

continued.

Then the question comes up about acceptance of

resignation by the competent authority. Since in the

present case, the appellant has purportedly accepted

resignation, and likewise the writ petitioner had also

purportedly withdrawn resignation, it is of significance,

as to whether the acceptance was by the competent

authority or not?. In this regard, the case of the

petitioner, as pleaded in the writ petition is in para 29

and 30 of the writ petition, and according to which, the / 47 / D.B.S.A.W.No.392 OF 2007

resignation could be accepted by the Chairman of the

Corporation, the petitioner has referred to the earlier

reply filed by the appellant, to the un-amended writ,

wherein it is alleged, that it was admitted by the

appellant corporation, that the resignation was accepted

by Chief Superintendent. This plea of the petitioner has

been replied by pleading that in the reply to un-amended

writ, it has been pleaded, that on acceptance of letter of

resignation, the same was forwarded by the Chief

Superintendent to Corporate Office Bombay, as Chief

Superintendent was not competent to accept the

resignation, and that all the relevant papers along with

the notings of the dealing officer, were put up before the

competent authority for consideration, and the competent

authority was pleased to accept the resignation, and thus,

it was contended, that the resignation has been accepted

by the competent authority. Then in para 22 of the

rejoinder, it was pleaded, that in whole of the reply, the

respondent has nowhere disclosed, as to who was the

competent authority, while according to the petitioner, it

was the Chairman, who was the competent authority, for

according appointment, and accepting resignation, and any

person below that rank could not accept the resignation.

The learned Single Judge on this aspect did not dilate

much, and proceeded on the basis, that the competent

authority on 15.9.1992 itself, without examining the real

contents, intent and implication of the letter, accepted

the resignation of the petitioner. Thus, it is clear that

the resignation was required to be accepted by the

Chairman, or the Managing Director, in any case. Then we / 48 / D.B.S.A.W.No.392 OF 2007

find at page 86, being rejoinder of the reply to the

appeal, in para 3, it is pleaded by the appellant, that

the resignation submitted by the writ petitioner on

12.9.92 was forwarded to the corporate office for its

acceptance, the then Managing Director of the Corporation

Shri S.L. Khatti accepted the resignation on 15.9.92. The

Director (Personnel) has informed the RAPS authorities

about acceptance of the resignation by the Managing

Director, who was competent authority to appoint, and

accept the resignation of Group A officers of the

Corporation, and upon receiving the communication from the

corporate office, the RAPS authorities issued relieving

letter.

During course of hearing, we desired from the

learned counsel for the appellant, to make available for

our perusal the original record about acceptance of

resignation by the Managing Director, and thereupon it was

given out, that the record is not traceable, and we were

shown only a noting of the Director (Personnel), about his

remembering, that the resignation was accepted by the then

Managing Director Shri S.L. Khatti. This noting is of a

date, much later than the controversy had not only arisen,

but had reached much advanced stage, and looking to the

time leg between the alleged acceptance of resignation by

the Managing Director, and the date of the noting, it

would be too much for us to believe the noting on the face

value.

It is well-nigh possible that the person / 49 / D.B.S.A.W.No.392 OF 2007

concerned may not be remembering, and at the same time, it

is equally possible, that the resignation may not have

been accepted by the competent authority, and therefore,

the record is not being produced before the Court, and

this noting is only sought to be relied upon. Director

(Personnel) is not shown to be the person, who was in any

manner concerned with the matter. It is also not shown

that there is any procedure for weeding out the record

after a particular period of time, nor is it shown, that

the record has been weeded out, and then, rather the writ

petition had been filed, though at Jaipur Bench,

immediately after the petitioner being relieved, taking

the ground about acceptance of resignation, being not by

competent authority, it was all the more reason for the

appellant to have preserved the record, for being made

available for perusal of the Court, if so ordered. In this

background we recapitulate the plea taken by the present

appellant in the reply to the un-amended writ petition,

where it has been pleaded that the resignation was

accepted by the Chief Superintendent. Though it has then

been pleaded therein, that on acceptance of letter of

resignation, the same was forwarded by the Chief

Superintendent to Corporate Office Bombay, as Chief

Superintendent was not competent to accept the

resignation, and that all the relevant papers along with

the notings of the dealing officer, were put up before the

competent authority for consideration, and the competent

authority was pleased to accept the resignation. We are

confident, that we will not be erring, if we read the

above plea in between the lines, and draw an inference, / 50 / D.B.S.A.W.No.392 OF 2007

that the resignation was accepted by the Chief

Superintendent, and it is simply being put as a ruse, that

after acceptance of the letter of resignation it was

forwarded by the Chief Superintendent to the Corporate

Office, where the competent authority accepted the same.

Thus, all these circumstances, taken cumulatively make us

infer, that it is well nigh possible, that the resignation

has not been accepted by the competent authority.

That being the position, when the appellant

purported to accept the resignation, and the writ

petitioner seeks to withdraw the resignation, then the

right of withdrawal can be forfeited, only if the

resignation is accepted, or given effect to by the

competent authority, before withdrawal, and since it is

not shown to have been so accepted, or given effect to by

the competent authority, the petitioner could not be said

to be not entitled to withdraw the resignation, as done

vide Ex.18.

Thus, the last question of the first group of

questions framed, is required to be, and is, answered in

favour of the writ petitioner, and against the appellant.

At this stage, we may also examine the cases cited on

behalf of either side, one by one.

In J.K. Cotton's case, learned counsel for the

appellant has relied upon para-4 & 7. Para-4 deals with

the aspect as to whether acceptance of resignation amounts

to retrenchment within the meaning of Section 2(s) of the / 51 / D.B.S.A.W.No.392 OF 2007

Industrial Disputes Act, requiring the employer to comply

with the other provisions of the Industrial Disputes Act,

and it was held, that just as an employer has a right to

terminate the services of an employee, an employee too has

a right to put an end to the contract of employment, by

informing his employer of his intention to give up the

job. It has further been held, that where the employee

makes his intention to resign his job to the employer, and

the later accepts the resignation, the contract of

employment comes to an end, and with it stands severed the

employer-employee relationship. It has further been held,

that under the common law the resignation is not complete

until it is accepted by the proper authority, and before

such acceptance an employee can change his mind, and

withdraw the resignation, but once resignation is

accepted, the contract comes to an end, and relationship

of master and servant stands snapped. Then, in para-6 the

meaning of resignation has been considered, and then in

para-7 it has been held, that when an employee resigns his

office, he formally relinquishes or withdraws from his

office. It implies that he has taken the mental decision

to sever the relationship with his employer and thereby

put an end to the contract of service.

In our view the principles propounded in this

judgment are not in dispute on either side. It is not a

case where it might be claimed, that the acceptance of

resignation amounts to retrenchment, entailing other

consequences, and so far as the effect of resignation is

concerned, we have already discussed in the foregoing part / 52 / D.B.S.A.W.No.392 OF 2007

of the judgment. However, this judgment supports our view,

that under common law the resignation is not complete

unless it is accepted by the proper authority, and before

such acceptance an employee can change his mind and

withdraw the resignation. In the present case, as we have

found that it is not established that the resignation was

accepted by the competent authority, and admittedly it was

withdrawn. Thus, in a way this judgment supports the case

of the writ petitioner, in view of what we have found

above.

Then, in North Zone Cultural Centre's case

attention was invited to para-14 onwards. In para-14 the

Hon'ble Supreme Court has noticed, that from perusal of

the judgment of learned Single Judge, it is seen, that he

also accepted the statement in the affidavit of the

Director of the Organisation that the resignation was

accepted on 18.11.1988 but he held that it was

communicated on 1.12.1988 only, and in the meanwhile the

resignation was withdrawn, and this subsequent

communication of withdrawal had become redundant. It is on

this aspect, that earlier judgment of the Hon'ble Supreme

Court in Raj Kumar's case (Raj Kumar Vs. Union of India

reported in AIR 1969 SC-180) was considered. We are also

of the same view, that communication of acceptance of

resignation to the employee has no relevance, as the

resignation becomes complete and effective, the moment it

is accepted by the competent authority, and after it is so

accepted it cannot be withdrawn. But then we reiterate,

that before disentitling the employee from withdrawing the / 53 / D.B.S.A.W.No.392 OF 2007

resignation, it must be shown to have been accepted by the

competent authority. While in the present case, we have

already found above, that the appellant has failed to

establish that the resignation was accepted by the

competent authority.

Then, so far the judgment in Post Graduate

Institute's case is concerned, that in our view has no

bearing on the controversy involved in the present case,

as there the aspect considered was, that quickness of

action is not of adverse effect unless it is malafide. In

the present case, we are not deciding in favour of the

employee the writ petitioner on the ground of haste,

therefore, this judgment need not detain us.

Likewise is the effect of the judgment in

Chairman & MD, BPL Ltd.'s case. Therefore, that judgment

also need not detain us.

We at this stage also refer to the judgment of

the Hon'ble Supreme Court in Srikantha S.M's case cited by

the learned counsel for the writ petitioner. In that case

on acceptance of resignation, the employee was informed,

that he would be relieved by the close of working hours of

the day immediately next to the expiry of the casual leave

period, but before that date employee withdrew his

resignation. The legal proposition flowing therefrom is

not in dispute, and we also found that since the appellant

has failed to establish that the resignation has been

accepted by the competent authority, and the employee / 54 / D.B.S.A.W.No.392 OF 2007

having withdrawn the same, the action of removal has been

found bad. Thus, this judgment also need not detain us.

On the other hand, the judgment relied upon in

this regard on the side of the writ petitioner, is that in

Dr. Prabha Atri's case, which we have already discussed in

the earlier part of the judgment, and therefore, need not

discuss it over again here.

Thus, even after considering the judgments cited

at the Bar on the either side, we maintain our

conclusions, that first part of the question framed by us,

for decision of the appeal, which arises in this

litigation, is answered in the manner, that Ex.13 is

resignation, and had the effect of putting to an end the

employer-employee relationship, but then, it is not

established to our satisfaction, that the resignation was

accepted by the competent authority, before the petitioner

addressed the communication Ex.18, whereby he had

withdrawn the resignation. Thus cumulative answer to the

set of questions is, that the action of the appellant in

relieving the petitioner is bad, and he continues to be

the employee.

Then, before proceeding to consider the second

question framed, it is necessary for us to deal with the

submissions made on behalf of the appellant, on the

aspect, about the writ petitioner being estopped from

challenging the action in the present writ petition, on

account of his having withdrawn the terminal benefits.

/ 55 / D.B.S.A.W.No.392 OF 2007

Learned counsel for the appellant in this regard has

relied upon the judgment in Om Prakash's case, being a

Single Bench judgment of this Court, which has been

affirmed by the Division Bench in appeal on 2.11.2007, in

S.A.W. No. 847/2007. In that case the matter related to

the employee taking voluntary retirement under the V.R.S.

(Voluntary Retirement Scheme) floated by the employer. The

employee in that case submitted application to the

employer, seeking voluntarily retirement on 17.7.2004,

with effect from 31.12.2004. This application was accepted

on 18.11.2004, and it was conveyed to the employee that

consequent upon his V.R.S. application, the employee would

be voluntary retiring w.e.f. close of business on

31.12.2004, and in order to facilitate settlement of final

dues expeditiously, the blank forms to be filled, and

completed by him, were also attached and sent to the

employee. The employee sent a communication on 23.12.2004,

stating that even though his application is accepted, but

then he has changed his mind, and wants to continue in the

service, and therefore, sought permission to allow him to

remain in service. This was responded vide communication

dt. 8.12.2004, informing that he is a member of

Superannuation Benefit Fund Scheme (the SBF Scheme) and

has opted for VRS Scheme. Consequently, he is ceased to be

a member of SBF Scheme, and he was apprised of the options

available to him as per the Rules of SBF scheme; (1) to

receive refund of his contributions along with interest as

per the rules, which option was exercised by the employee

to receive the refund of his contribution, and the amount

was sent to him by cheque, in view of the option exercised / 56 / D.B.S.A.W.No.392 OF 2007

by him, and one gold coin weighing about 25 grams was also

given to him, which was available to the retiring person

on superannuation, and this was also received by the

employee, and then the employee was informed that on

account of various loans and advances, the balance amount

standing to his credit was also informed. In these

circumstances, the controversy arose as to whether the

employee was entitled to continue in service. In our view,

the matter turns on the premises of the scheme, and

interpreting those aspects, i.e. the aspect of terms of

scheme, and consequences flowing therefrom, various

earlier judgments of the Hon'ble Supreme Court were

considered, and it was found, that the employee never

objected, rather received the amounts. It was held, that

under the Scheme the employer was under no obligation to

accept the request of the employee of his seeking

voluntary retirement, but once it was accepted, in view of

clear terms of the scheme, the question of withdrawal did

not arise, and the employee was found to be not entitled

to be permitted to withdraw it. It was in this background

found, that the employee in that case after receiving

communication dt. 18.11.2004, filled relevant forms to

facilitate final settlement of dues expeditiously,

exercised option for the SBF Scheme to receive all his

contribution. Not only this he also received one gold

coin, entitling the person retiring under VRS Scheme, so

also; received a credit balance of Rs. 5,97,760/- towards

gratuity and ex-gratia payment, and thus it was found,

that he is not entitled to continue.

/ 57 / D.B.S.A.W.No.392 OF 2007

On the other hand, learned counsel for the writ

petitioner has relied upon the judgment of the Hon'ble

Supreme Court in Ramesh Chandra Sharma's case, which in

our view is of no relevance, as that was a case of

employee having proceeded against departmentally, and the

question was about withholding/withdrawing pension.

Learned counsel for the writ petitioner has cited this

judgment only for drawing distinction between retiral

benefits and terminal benefits. In our view that

distinction is not of any relevance for the present

purposes, inasmuch as the question sought to be canvassed

by the appellant is, about entitlement of the writ

petitioner to assail the action, after having received all

such amounts, as he became entitled to receive, consequent

upon severance of his relationship of employer and

employee.

Then, the next case relied upon is Mohinder Pal

Singh's case, wherein it was held, that waiver of a right

implies his knowledge of the existing right i.e. waiver of

the right with the knowledge of existence of right. In

that case the employee had withdrawn his offer to avail

voluntary retirement before its being accepted, and had

filed a writ petition, when he came to know that the Bank

had unilaterally accepted offers of certain employees,

despite the same having been withdrawn. In that case the

Bank had deposited the amounts becoming payable to the

employee consequent upon acceptance of voluntary

retirement application in the bank account of the

employee, which account was maintained by the employer / 58 / D.B.S.A.W.No.392 OF 2007

bank itself, and it was found, that it is not in dispute

that the Bank had not accepted the offer of the applicant

before he withdrew therefrom, and it is also not in

dispute that no such communication was ever made to the

applicant, and the amount of Rs. 10,50,000/- to which the

employee was entitled by way of benefits in terms of the

scheme, had not been offered to the applicant till the

date, and out of leave encashment amount, a sum of Rs.

1422.21 only was credited in the account of the applicant,

and the applicant was never communicated that the said

amount was being deposited in terms of the scheme. It was

considered that the amount of Rs. 10,50,000/- which the

appellant became entitled by way of scheme had not been

deposited in the account of the employee because the

employee had closed his account. In these circumstances,

it was held that no waiver and no estoppel can be claimed.

On the principles emerging from the above

judgments, we now proceed to consider the factual aspects

of the case in hand. A look at the record shows, that in

this regard the only pleading that has been taken by the

appellant is containing in para-25 and 26 of the reply to

the writ petition, and the documents Annexure R/3 to R/6.

In para-25 of the reply it is pleaded as under:-

"25.................It is not disputed that the petitioner with prior permission of the department has attended the seminar and visited Head Office of the respondent. The contention of the petitioner that he was not relieved on 16.09.1992 is not correct. Upon perusal of various communications by the petitioner himself i.e. application-dated 05.01.1993 for final withdrawal of Provident Fund and application-

/ 59 / D.B.S.A.W.No.392 OF 2007

dated 29.04.1993 for CPF & Interest etc., reveals that the petitioner was relieved w.e.f. 16.09.1992. Copies of these communications are enclosed herewith and marked as Annexure R-3 & R- 4 respectively. It is not correct to say that department has cleared the bills in respect of tour programme of the petitioner up to 19.09.1992. That the petitioner was considered to be on duty upto 15.09.1992 only and accordingly his salary, bonus and payment of LTC were settled up-to 15.09.1992 only. The annexure submitted by the petitioner along with letter dated 24.03.1993 (exhibit 20) is apparently a self-prepared document. Calculation sheet in respect of dues paid to the petitioner is annexed herewith and marked as Annexure R-5. These facts can be further confirmed from the Staff Pay Bill Register, the relevant extract of staff pay bill register is enclosed herewith and marked as Annexure R-6.

Then, in para-26 it is pleaded as under:-

"26. That in reply to averments made in para 28 of the petition, it is not correct to say that the petitioner was on official tour for entire period of 12.09.1992 to 19.09.1992 as in continuation of his official tour he had applied for availing Casual Leave/ Compensatory Off on 16.09.1992 & 17.09.1992. The petitioner was very much aware about the fact of acceptance of his resignation and his relieving order. As per the settled principle of law that once the competent authority has accepted the resignation it is not open for the employee to withdraw his resignation. As the relationship of employer and employee came to an end w.e.f. 16.09.1992 hence representation of the petitioner dated 19.09.1992 have no legal substance hence same was not accepted by the authorities."

Thus, from these pleadings it is clear, that the

appellant has pleaded the fact about the writ petitioner

having relieved, and his having received the amounts under

self prepared document sheet. But then, no plea of

estoppel has been taken, even in a round about way, either

to plead, that by this conduct the petitioner has waived / 60 / D.B.S.A.W.No.392 OF 2007

his right to challenge the action of the employer, or that

the employee is estopped from challenging the action of

the appellant. Estoppel obviously is a question of fact,

and is required to be pleaded. It cannot be permitted now

to be argued as an inference of law at appellate stage. It

is also significant to note, that writ petitioner had

filed a rejoinder, and the pleadings have been taken from

the stand point of the factum of acceptance of

resignation. Thus, the parties were ad-idem on the

question, that the pleadings related to the only question

as to whether the resignation was accepted, and the

contention on the basis of estoppel was neither raised,

nor was even intended to be raised. In this sequence, even

a look at the judgment of the learned Single Judge also

shows, that even there, the aspect of estoppel was not

raised. In such circumstances, in our view, on facts, it

cannot be said, that the appellant has been able to

establish, that the writ petitioner is estopped, by

receiving certain amounts, from assailing the action of

the appellant, in relieving him, consequent upon purported

acceptance of resignation.

Then, the million dollar question, that survives

is, as to what relief, the writ petitioner is entitled to.

In this regard again there are two aspects, as to whether

in all cases where the resignation has been found to have

not been accepted, or to have been wrongly accepted, as a

natural consequence, or as a rule of thumb, the employee

is entitled to reinstatement, and with all emoluments for

the back period, or some other considerations can work for / 61 / D.B.S.A.W.No.392 OF 2007

modulating the relief, and the other aspect is that even

if admittedly the employee was in gainful employment,

still he is to be awarded emoluments, for the entire back

period.

In this regard, learned counsel for the writ

petitioner again relied upon the judgment of the Hon'ble

Supreme Court, in Srikantha's case, wherein in para-28

onwards the Hon'ble Supreme Court considered, as to what

benefit the employee in that case was entitled to, as he

had withdrawn the resignation, and yet he was not allowed

to work, and with, this it was held, that he is entitled

to all consequential benefits. To negative the contention

of the employer, about the employee having not actually

worked, the Hon'ble Supreme Court has referred to few

earlier judgments, in J.N. Srivastava Vs. Union of India

reported in (1998) 9 SCC-559, Shambhu Murari Sinha Vs.

Project and Development India Ltd. reported in (2002) 3

SCC-437, and Balram Gupta Vs. Union of India reported in

1987 Supp. SCC-229, and held the employee to be entitled

to full salary and allowance. To distinguish this

judgment, it was contended by the learned counsel for the

appellant, that this judgment and the earlier three

judgments referred therein, have simply proceeded on the

assumption about the employee being entitled to full

salary and allowances, without discussing any aspect of

the matter. On the other hang the learned counsel for the

appellant relied upon the judgment of the Hon'ble Supreme

Court in O.P. Bhandari's case, Kendriya Vidyalaya

Sangathan's case, and General Manager, Haryana Roadways' / 62 / D.B.S.A.W.No.392 OF 2007

case. In O.P. Bhandari's case the employee was terminated.

For deciding the validity of termination, the provisions

of Article 14 and 16 of the Constitution were considered,

and it was held, that the tenure of service of a citizen

who takes up employment with the State cannot be made to

depend on the pleasure or whim of the competent authority,

unguided by any principle or policy. In that case the

employee was terminated in accordance with the provisions

of the Indian Tourism Development Corporation (Conduct,

Discipline and Appeal) Rules, 1978, and Rule 31(v) of the

Rules, which provided for termination of the services of

the employees of the respondent-Corporation simply by

giving 90 days' notice, or by payment of salary for the

notice period in lieu of such notice, was quashed. In that

background considering the question of relief, it was

held, that although in cases of workmen and 'white collar'

employees reinstatement would be a rule, and compensation

in lieu thereof an exception, but as regards the high

level managerial cadre, the matter deserves to be viewed

from an altogether different perspective, a larger

perspective, which must take into account, the demands of

national interest, and the resultant compulsion to ensure

the success of the public sector, in its competitive co-

existence with the private sector. It was held, that the

public sector can never fulfill its life aim or

successfully vie with the private sector, if it is

compelled and obliged to entrust its management on

incapable or inefficient personnel, in whom it has no

trust or faith, and with whom it cannot function

harmoniously. These factors have to be taken into account / 63 / D.B.S.A.W.No.392 OF 2007

by the court at the time of passing the consequential

order, for, the court has full discretion in the matter of

granting relief, and the court can sculpture the relief to

suit the needs of the matter at hand. The court, if

satisfied that ends of justice so demand, can certainly

direct, that the employer shall have the option not to

reinstate, provided the employer pays reasonable

compensation, as indicated by the Court.

Then, in Kendriya Vidyalaya Sangathan's case

again, that was a case of dismissal of the employee

without holding regular enquiry, which was found to be not

sustainable, and then, examining the question of relief to

be granted, the Hon'ble Supreme Court considered its

earlier judgment in P.G.I. of Medical Education and

Research Vs. Raj Kumar reported in (2001) 2 SCC-54,

Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya

reported in (2002) 6 SCC-41, Indian Rly. Construction Co.

Ltd. Vs. Ajay Kumar reported in (2003) 4 SCC-579, and

M.P.S.E.B. Vs. Jarina Bee reported in (2003) 6 SCC-141,

wherein it was held, that payment of back wages having a

discretionary element involved in it, has to be dealt

with, in the facts and circumstances of each case, and no

straitjacket formula can be evolved, and considering that

principle, it was held, that when the question of

determining the entitlement of a person to back wages is

concerned, the employee has to show that he was not

gainfully employed. As such the initial burden is on him,

but after, and if he places materials in that regard, the

employer can bring on record materials to rebut the claim.

/ 64 / D.B.S.A.W.No.392 OF 2007

While in the case in hand before Hon'ble the Supreme Court

it was found, that the employee has not placed any

material in this regard. Since in that case the matter was

sent back for enquiry afresh, extent of back wages to

which the employee was entitled was not decided.

Then, in General Manager, Haryana Roadways' case

it was held by the Bench presided by three Hon'ble Judges

of the Hon'ble Supreme Court, that there is no rule of

thumb, that in every case, where termination is found bad,

entire back wages should be awarded, rather a host of

factors like the manner and method of selection and

appointment i.e. whether after proper advertisement of the

vacancy or inviting application from the employment

exchange, nature of appointment etc. has to be weighed.

Likewise the length of service, which the workman had

rendered with the employer, is also relevant factor, and

that, where the total length of service rendered by a

workman is very small, the award of back wages for the

complete period would be wholly inappropriate.

As we find from the order of the Division Bench

of this Court dated 20.7.2007, whereby the appeal was

admitted, and interim stay was granted, that though the

material has come on record even in the form of affidavit

of the writ petitioner himself, that during the

interregnum period he was gainfully employed, it was

sought to be contended by the learned counsel for the writ

petitioner, that the writ petitioner was earning a wholly

meager amount, and at best that amount can be adjusted / 65 / D.B.S.A.W.No.392 OF 2007

against the emoluments for the entire back period, to

which the writ petitioner is entitled, and balance is

required to be awarded. As against this, learned counsel

for the appellant contended, that the extent of gainful

employment was not required to be examined in mathematical

terms to ascertain the extent of income earned by gainful

employment. All that is to be seen is, as to whether the

employee was gainfully employed, or not. Since in the

present case admittedly he was gainfully employed, he is

not entitled to be awarded emoluments for the back period.

Then, in this regard it was also submitted that

the conduct of the writ petitioner is also such, which

clearly disentitles him to any emoluments for the back

period. In this regard the conduct of the writ petitioner

during service was also highlighted, and conduct after

being relieved was also highlighted. As noticed above, it

is contended by the learned counsel for the writ

petitioner that no pleadings have been taken in the reply,

even to the amended writ petition, about disentitlement of

the writ petitioner to emoluments for the back period on

the ground of his conduct while in service, apart from the

fact, that even if any pleading would have been taken,

that conduct cannot come in his way, as that might furnish

a ground to the employer to proceed against the employee

departmentally, while admittedly no such action was taken

against the employee by the employer.

Then, regarding subsequent conduct i.e. conduct

after being relieved, it was submitted by the learned / 66 / D.B.S.A.W.No.392 OF 2007

counsel for the appellant, that though the writ petitioner

had filed the writ petition immediately after action,

shortly after being relieved, but then that was filed at

Jaipur Bench. Then, notwithstanding the fact, that while

transferring that petition to the Principal Seat, vide

order dt. 21.5.1997, passed in presence of the learned

counsel for the parties, it was specifically directed,

that the parties shall appear before the Dy. Registrar

(Judicial) at Jodhpur on 10.7.1997, so that the matter may

be listed before the concerned Bench. On 10.7.1997 the

matter was listed in the Court, but nobody appeared on

behalf of the present writ petitioner. Of course, on that

date on that count the writ petition could have been

dismissed, but the Court showed benevolence, and directed

the matter to be listed before the Court as and when

parties make an application, and thereafter the

application was filed on 28.3.2005 only. Thus, the writ

petitioner is clearly guilty of delaying the matter for

all this time, in any case upto 28.3.2005, and therefore,

was not entitled to emoluments for the entire back wages.

On the other hand, learned counsel for the writ

petitioner contested this contention, and invited our

attention to the reply to the appeal, specially at page-25

thereof, wherein it is contended, that the parties were

directed to appear before Dy. Registrar (Judicial) on

10.7.1997, while the case was not listed before the Dy.

Registrar (Judicial), and on subsequent enquiry it

revealed that instead of 10.7.1997 the matter was listed

in the Court on 10.7.1997, and enquiry was undertaken in / 67 / D.B.S.A.W.No.392 OF 2007

respect of the writ petition from the office of Dy.

Registrar (Judicial) through his colleagues, and it was

confirmed that the case was not listed in the cause list.

Then, the case never came to be listed before the Court,

and it is also pleaded that there was no delay on the part

of the writ petitioner, rather the writ petitioner was in

contact with the lawyer till 1996, was attending court

proceedings regularly, the lawyer only told not to come on

every date, as it is High Court, and it takes long time to

finalise the case, and he will inform accordingly. Later

on because of personal, family and social circumstances,

the writ petitioner was compelled and could not keep track

of his case. The frequent change of rented accommodation,

and telephone numbers, the counsel at Jaipur lost the

contract with his client at Jodhpur. The writ petitioner

came to know about transfer of the case when he personally

met his lawyer at Jaipur in the year 2003, and he advised

to hire an additional lawyer from Jodhpur, and thereupon

he moved an application. It was also contended that after

the writ petition was admitted, it was put in due course,

but the petitioner moved an application for getting the

matter listed along with the cases of 1992, and assigning

priority of 1992 accordingly, whereupon the matter came

up.

Learned counsel for the appellant controverted

this stand, by inviting our attention to the affidavit of

the writ petitioner filed in Feb. 2007, available at page-

244, wherein it has been deposed, that after being

relieved from the appellant Corporation the writ / 68 / D.B.S.A.W.No.392 OF 2007

petitioner started practice as Surgeon, and not being

satisfied, he had taken a loan from the Rajasthan

Financial Corporation, and established a super speciality

hospital, in the name of Rajat Roop Urological Hospital,

Jodhpur, but for professional reasons he had to close down

the hospital in the month of November, 1999, and suffered

a great financial loss and paid the R.F.C. loan by selling

his only house in Jodhpur in the year 2003. According to

the learned counsel, meaning thereby, that till 2003 the

writ petitioner was having his own house, and obviously

was living therein. Thus, the story given in the reply to

the appeal, is per-se false. Our attention was further

invited to para-6 of the affidavit also, wherein it is

deposed, that writ petitioner had shifted from Jaipur to

Jodhpur in the year 1993, therefore, the communication

relating to transfer of the case could not reach him, as

his new address was not available with his lawyer. With

reading this it was submitted that this averment is wrong,

inasmuch as in reply to the appeal, the writ petitioner

had clearly pleaded that the writ petitioner was in

contact with his lawyer till 1996, and was attending the

Court proceedings regularly. Thus, it was contended that

self contradictory stands have been taken by the writ

petitioner, in an attempt to explain his conduct of

delaying the matter, and therefore, he is not entitled to

be awarded any emoluments for the back period.

We have considered the submissions. In our view,

obviously the conduct of the writ petitioner, during

service, can obviously be not taken into account for the / 69 / D.B.S.A.W.No.392 OF 2007

purpose of deciding the question about entitlement of the

employee to receive emoluments for the back period.

Therefore, we simply ignore that.

Then, coming to the conduct subsequent to his

being relieved, that conduct in our view, is ofcourse

relevant. Ofcourse, the writ petitioner had filed the writ

petition immediately after his being relieved, but then,

it also appears from his affidavit, that he was gainfully

employed thereafter, and it is well nigh possible, that in

view of his gainful employment during this interregnum

period, he simply lied low. In any case when the matter

was ordered to be transferred to Jodhpur vide order dt.

21.5.1997, in the presence of the counsels for the

parties, directing to appear at the Principal Seat on

10.7.1997, there was no occasion for the writ petitioner

to lie low for all this period of time till as late as on

28.3.2005. We cannot resist ourselves from considering,

that on 10.7.1997 the Court could very well dismiss the

writ petition for non-appearance, in which event the

matter would have died once for all, but the Court rather

showed benevolence, and simply mummified the litigation,

by directing, that it be listed as and when parties make

an application, and obviously the writ petitioner stood by

this mummification for all this period of time. The

explanations given for all this period are self

contradictory. It is only on 28.3.2005 that the writ

petitioner moved the application, and the litigation was

got de-mummified, and revived.

/ 70 / D.B.S.A.W.No.392 OF 2007

In these circumstances, keeping in view the

subsequent conduct of the writ petitioner in regard to

pursuing the matter, coupled with the fact, that

admittedly the writ petitioner was gainfully employed, in

our view, keeping in view the judgments of the Hon'ble

Supreme Court, as cited by the learned counsel for the

appellant, interest of justice would be met, if the writ

petitioner is awarded back emoluments from 28.3.2005.

Obviously, the writ petitioner is entitled to be

reinstated.

Accordingly, the appeal is partly allowed.

Differing with the reasonings given by the learned Single

Judge, we find, for the reasons mentioned above, that the

writ petitioner is entitled to be reinstated, and is also

entitled to emoluments for the back period from 28.3.2005.

Since the writ petitioner is shortly to complete his age

of superannuation, and since there is only one post

available with the appellant Corporation, and we are

informed, that post is already filled, we give an option

to the Corporation, to continue to pay the admissible

emoluments to the writ petitioner, treating him to have

been reinstated, month by month, as and when they fell

due, till he attains the age of superannuation. The

parties shall bear their own costs throughout.

(KISHAN SWAROOP CHAUDHARI),J. (N.P.GUPTA), J.

/n.s./ /m.asif/ /tarun/ /sushil/