IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 PRESENT THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R DEVDAS WRIT APPEAL No.64/2017 (S-RES) Between:
1. The Chairman and Managing Director, M/s. BEML Limited, BEML Soudha, S.R.Nagar, Bangalore – 560 027. (Through Authorized Signatory Praseetha A.P.) 2. The Deputy General Manager (HRD), M/s. BEML Limited, Mysore Complex, Mysore – 570 009.
(Through Authorized Signatory Praseetha A.P.) …Appellants (By Sri. Ashok Haranahalli, Senior Counsel for Sri.Ismail M Musba, Advocate) And :
1. Sri. M.S.R. Sathyanarayana, S/o late M.Rajarao, Aged about 56 years, R/at No.301, Lord’s Apartment, I Main Road, Kodihalli, HAL 2nd Stage, Bangalore – 560 008.
2. Union of India, Ministry of Defense, New Delhi, Represented by its Secretary.
...Respondents (By Sri. Gowthamdev C Ullal, Advocate for R1; Smt. Anupama Hegde, CGC for R2) This Writ Appeal is filed under Section 4 of the Karnataka High Court Act praying to set aside the order passed in the Writ Petition 2474/2012 dated 11.11.2016.
This Writ Appeal coming on for orders this day, Narayana Swamy J, delivered the following:
JUDGMENT The first respondent was appointed as an Assistant Manager (Production) on 18.03.1997 and thereafter, he was promoted as the Manager (Safety) through the order dated 01.01.2004 and was subsequently working as Senior Manager (Grade-V). During the course of his employment, the first respondent was placed under suspension through the order dated 23.10.2007 which according to the first respondent was based on false complaints made by certain other employees. The suspension was revoked and thereafter the 1st respondent has been transferred to the Mysore Complex of the appellants. The appellants were requested for retention, which was not considered and insofar as the action that had been initiated against the first respodnent based on the complaints of the co-employees, the reply submitted was considered as not satisfactory. In view of the said development, the first respondent being disheartened and being dissatisfied with the working condition, submitted the resignation letter dated 26.05.2008. Though no action had been taken on the resignation letter, the enquiry which had been initiated was proceeded further and was concluded on 27.06.2008. In that regard, a notice dated 05.11.2008 was served proposing to demote the petitioner to the lower grade from Grade-V to Grade IV as a punishment but the punishment of reduction in salary was imposed despite the reply submitted by the petitioner.
2. Though this was the position, at that stage, the appellant No.2 accepted the resignation through the letter dated 30.01.2009, subject to the conditions indicated therein. The first respondent did not comply with the conditions but addressed two letters dated 11.02.2009 and 20.02.2009 withdrawing the resignation letter submitted on 26.05.2008. Despite the same, the appellants issued the relieving letter dated 18.03.2009. Thereafter, he made representation to the appellants to give effect to his letters dated 11.2.09 and 20.2.2009 The appellants have rejected the case of the first respondent. Therefore, he had preferred writ petition before the learned Single Judge, The learned Single Judge by his order dated 11.11.2016 has allowed the writ petition. Being aggrieved by the same, the appellants have preferred this writ appeal.
3. The learned Sr. counsel appearing for the appellants submitted that once the resignation is accepted on 30.1.2009, it disentitles the person to withdraw his resignation. Hence rightly, the representation made by the first respondent for withdrawal of the resignation has been rejected. The interference by the learned Single Judge with relieving letter dated 18.3.2009 is inconsequential since the resignation had already been accepted. This aspect has not been considered by the learned Single Judge.
4. The other ground is that there is delay and laches in approaching this Court but the same has not been explained. The acceptance of resignation was on 30.1.2009 whereas he had approached the Court in the year 2016. On this delay alone, the writ petition is liable to be dismissed. The another important ground is that he has been relieved from service, he had served in other establishments. Having served there, after his resignation is accepted, non-disclosure of the same would amount to suppression of material facts. So the respondent is not entitled to any reliefs. It is submitted that the services rendered in other establishments were not available and the appellant could not produce the same before the learned Single Judge.
4. In support of his submission, the learned Sr.
Counsel relied upon the judgment of Hon’ble Supreme Court in the case of Raj Kumar Vs. Union of India, in Civil Appeal No.2429/1966, another decision reported in 2007 (8) SCC 540 in the case of Modern School Vs. Shashi Pal Sharma and others and also another judgment of the Supreme Court in Civil Appeal No.10645/2010 in the case of Union of India and others Vs. Hitender Kumar Soni to substantiate his submission that when resignation is accepted, the status of the employer and employee ceases and withdrawal of the resignation subsequent to acceptance does not arise for consideration. For delay and laches, the learned counsel has relied upon another decision reported in 1972 SC 2060 in the case of KAMINI KUMAR DAS CHOUDHURY VS STATE OF WB AND OTHERS, in paras 6 and 7 it is held as follows:-
“In the case before us, we find that at least the following questions on which both sides made conflicting assertions in affidavits before the Court, were seriously disputed : (1) Was the appellant denied due opportunity to adduce any relevant evidence or to cross-examine witnesses? (2) Did the Deputy Commissioner of Police, who had passed the dismissal order, become a complainant or a necessary witness in the case so that be could not award punishments simply because he had passed the order which the appellant was shown to have disobeyed ? (3) Was there any actual bias on the part of the dismissing authority, or, in other words, was the order of dismissal vitiated by malafides ? Perhaps, it was for this reason, as the Division Bench had observed, that the appellant did not press his case on disputed questions of fact before the Single Judge. Although, the appellant raised these points in appeal, yet, the Division Bench was only impressed by the submission that the Deputy Commissioner of Police was in the position of a complainant who could not act as a Judge. But we find that the actual violation of the order of the Deputy Commissioner was detected by other officers. It is true that the Enquiring Officer had made certain charges against the appellant when he found him returning from somewhere, one furlong removed from the place where, according to orders given, the appellant should have been present then, yet, he had merely collected evidence against the appellant and made a report. It could more properly be said that he and not the Deputy Commissioner of Police was the accusing officer. In such cases it is undoubtedly just and proper that the enquiry and punishment proceedings should both be entrusted to other officers who may appear to be more unbiased and independent. Nonetheless, the questions whether there was bias, ill-will, malafides, or a due opportunity to be heard or to produce evidence, given in the course of departmental proceedings, are solargely questions of fact that it is difficult to decide them merely on conflicting assertions made by affidavits given by the two sides. The mere fact that the Deputy Commissioner's orderswere alleged to have been disobeyed did not make him a complainant and a witness. We, therefore, think that, quite apart from the ground of delay in filing the Writ Petition, the assertions and counter- assertions made on merits were of such a nature that, in accordance with the rule laid down by this Court in Union of India v. T. R. Varma(1) the Writ Petition could have been dismissed on the ground that it is not the practice of Courts to decide such disputed questions of fact in proceedings under Article 226 of the Constitution. Other proceedings are more appropriate for a just and proper decision of such questions.
We find that the position taken up in affidavits filed on behalf of the State and the Police authorities of West Bengal was that the appellant's case was, according to them, considered fairly and impartially and that there was no grudge or ill-will operating against him. The Calcutta High Court had specifically repelled the allegations of malafides and ill-will. If, however, the appellant considers that there is substance in any of his allegations, we think it is best to leave him free to go to an ordinary Civil Court for such relief by way of declaration or damages as may still be open to him. At any rate, we do not think that the discretion of the learned Single Judge and the Division Bench, with regard to a delay which defeated the petitioner's right to a discretionary relief, could be interfered with by us in this case.
5. The decision in Civil Appeal No.1502/2019 in the case of Maruti Narayan Satpute Vs. Divisional Controller, Maharashtra State Road Transport Corporation, Solapur Maharashtra in para 6 and 7 it is held as follows;-
“However as the petitioner has attained the age of superannuation in the year 2009. He was responsible for the situation which he created by submitting the resignation . Thus, he would not be entitled to the benefits of salary for the period he would have rendered the services till the date of his superannuation. However, the period till the date of his superannuation shall be counted towards the services rendered by him and his retiral benefits shall be worked out and refixed accordingly and be paid to him within three months from today.”
6. All these aspects have not been considered by the learned Single Judge. It is submitted that once the resignation is accepted, the same is not open for the petitioner to make representation or letter to withdraw the same.
7. On the otherhand, the learned Govt. Advocate appearing for Respondent No.2 submits that since the facts are not in dispute, he adopts the submission made by the learned counsel for the appellant.
8. The learned counsel for respondent No.1 sought to dismiss this appeal. It is submitted that the resignation was made on 26.5.2008, it was accepted on 30.1.2009 and he was relieved from duties on 18.3.2009. The representations dated 11.2.2009 and 20.2.2009 made by him have not been considered. Non consideration of the same amounts to arbitrariness. The resignation has been made on 26.5.08 and it was given immediate effect and he was relieved from duties on 18.3.2009. It is submitted that resignation has been accepted on 30.1.2009 with certain conditions stated therein and it is stated that there is no endorsement as to whether the respondent No.1 had complied with these conditions and thereby he was continued in service till he was relieved i.e, 18.3.2009. This itself shows that resignation has been accepted and compliance of the condition has not been communicated and secondly the relieving order was on 18.3.2009. The first respondent has submitted the resignation contrary to Rule 16.2 of the BEML service rules. According to Rules, it does not permit to submit resignation These aspects have not been considered by the learned Single Judge.
9. By producing additional documents, the learned counsel for the respondent No.1 submits that he was working in other establishment as he has to lookafter the family and school going children . Hence sought to dismiss the appeal.
10. We have heard the learned counsel for both the parties. The facts are not in dispute. The rule BEML Service Rules 1925 pertain to service rules for officers which provides for submitting resignation . Rule 16 1(a) enables that permanent employee may resign his employment by giving three month’s notice in writing or by paying three months basic pay and dearness allowance in lieu of notice to the Company. This applies to the employees submitting resignation. The petitioner could have submitted resignation under Section 16.1(a) because in view of departmental enquiry, he could not invoke Rule 16(1) of the Rules. Rule 16(1) provides the employees to resign from job and Rule 16(2) bars from submitting resignation which reads as follows:-
16.2 Employees against whom disciplinary proceedings or enquiries are pending cannot resign from service even by giving due notice in case of the Management decides to continue the proceedings against them.
Rule 16.3 of the rules provides that ;-
“If an employee does not report for work after giving notice of the intention to resign or reports for duty for a few days and stays away without serving the full notice period, he will be treated as an employee leaving without notice and an amount equivalent to his basic pay and dearness allowance for the requisite period of notice shall be recovered from him. The management reserves the right to decide the proceedings either to accept or reject. In the above case, no orders either under Rule 16(1)(a) or under Rule 16.2 of BEML Service Rules.
11. The Service Rules of the Officers of the second respondent-BEML is referred to by the learned counsel for the Appellants. Clause 16 therein refers to the mode of resignation. Clause 16.1 thereof provides that a permanent employee may resign his employment by giving three months notice in writing or by paying three months basic pay and dearness allowance in lieu of notice to the company. The resignation will become valid and effective only after the company communicates in writing to the employee accepting his resignation. It further provides that if an employee gives notice of intention to resign, the management may accept the resignation and release him at once or at any time before the date of expiry of the notice period, in which case he will be paid only for the period he actually works. In that view, with reference to the said rule, the learned counsel for the respondents No.2 and 3 relies on the letter dated 30.01.2009 to contend that the resignation had been accepted on the said date and as such the withdrawal letters dated 11.02.2009 and 20.02.2009 which are after such acceptance is without effect. Hence, it is contended that the respondent No.1 cannot rely on the same.
12. Learned counsel for the 1st respondent on the other hand would refer to the instant facts to point out that the resignation submitted by the petitioner was on 26.05.2008 and the acceptance of resignation is dated 30.01.2009. Though the letter indicates that the respondent No.1 is relieved with immediate effect certain conditions were imposed which were required to be complied by him. Hence the said letter itself advises the Respondent No.1 to comply with the requirements of the management and immediately get relieved from the services of the company. It is therefore contended that the act of relieving was not simultaneous but had been postponed to a date after the compliances of the conditions. The Respondent No.1 did not comply with the said conditions and as such the acceptance which was conditional did not become absolute. In that circumstance, the Respondent No.1 had addressed letters dated 11.02.2009 and 20.02.2009 withdrawing the resignation and as such the letter dated 18.03.2009 subsequent thereto to relieve the petitioner is not justified.
13. In the above background, the legal position is clear that if an unconditional resignation is submitted, the management would have the option of accepting the same and to relieve the employee with immediate effect. In that circumstance, if the acceptance is made and the employee is also relieved, any request thereafter for withdrawing the resignation cannot be entertained. The background of the legal position, the facts in the instant case on the face of it would disclose that it is not one such open and shut case relating to submission of resignation and acceptance of the same without being deferred. At the outset, it is to be noticed that the resignation was submitted on 26.05.2008 and the very contents thereof will indicate that it is not voluntary act but under compelling circumstances stated therein which in fact has led to change of heart and withdrawal of the resignation. The acceptance of the resignation as claimed by the management is on 30.01.2009 after about eight months of submitting the resignation. The acceptance letter also contains certain conditions to be complied. During the said intervening period of eight months, several developments have taken place which cannot be over-looked. Under these circumstances, the learned Single Judge has rightly allowed the petition.
14. Secondly in Civil Appeal No.10645/2010 in the case of UNION OF INDIA AND OTHERS VS.
HITENDER KUMAR SONI in para 10 it is held as follows:-
“ The normal rule, however, remains that Government has the power to accept a resignation with immediate effect. In case the Government for some reasons wishes to defer or specify the date from which resignation would become effective, it is entitled to take work from the concerned Government servant till he is relieved in accordance with the facts and requirements of the case. The letter of Government accepting an offer of resignation itself should normally be conclusive for deciding whether the Government has opted for immediate termination of service by accepting the resignation or has deferred such termination to a future date. Only in the latter eventuality the relationship of master and servant shall continue till the concerned Government servant is relieved of his duties.”
15.The learned Single Judge considered all the aspects of the matter. The Central Government Standing counsel adopts the submissions of the learned counsel for the appellants. We find the order of the learned Single Judge is sound and proper. Hence the appeal is dismissed. The first respondent is entitled for consequential and retirement benefits.
SD/- JUDGE SD/- JUDGE Nm