Heard Sri Yogesh Agarwal, learned counsel for the petitioner, Sri Siddharth Singh, learned counsel for the respondent No.3 and learned standing counsel for the respondents No.1 & 2.
This writ petition has been filed praying for a writ, order or direction in the nature of certiorari to quash the order dated 15.07.1993 passed by the District Inspector of Schools, Ballia.
Learned counsel for the petitioner submits that specific averments made in paragraphs-21, 25 & 27 have been replied by the respondent No.3 in paragraphs-16, 18 and 20 of the counter affidavit without annexing any evidence of affording opportunity of hearing to the petitioner and thus, averments made in the counter affidavit are not entertainable in view of the law laid down by the Hon'ble Supreme Court in the case of Bharat Singh: Dallu: Nathu Ram: Ram Phal Vs. State of Haryana, AIR 1988 SC 2181 (para-13) to the effect that when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit and if the facts are not pleaded or evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. He submits that the resignation was obtained by force and as such there is no resignation in the eyes of law. He further submits that Clause 35.02 of Chapter XXIII of Statute of University of Gorakhpur provides the manner for resignation by a temporary employee from service by giving one month's notice in advance in writing to the management otherwise he has to deposit one month's salary in lieu of notice. In the present set of facts, the petitioner has neither deposited one month's salary with the college nor the college has demanded one month's salary from the petitioner in lieu of notice and as such even this forced resignation was without compliance to the procedure prescribed by statute 35.02. In support of his submission, he relied upon a decision of Hon'ble Supreme Court in the case of A.K. Roy Vs. State of Punjab, AIR 1986 SC 2160 (para-10) to submit that if a statute prescribes the manner in which something is to be done, then it has to be done in that manner and in no other manner. He, therefore, submits that since the resignation of the petitioner dated 01.07.1992 was obtained by force by the management of the college and also since the aforesaid resignation was not in the manner prescribed by statute 35.02 of Chapter XXIII of Statute of University of Gorakhpur and as such the aforesaid resignation was wholly null and void. He further submits that no opportunity of hearing was afforded by the respondent No.2 before passing the impugned order dated 15.07.1993.
Sri Siddarth Singh, learned counsel for the respondent No.3 submits that one Sri Subhash Chandra Singh was appointed after due approval of the D.I.O.S. dated 02.02.1994 on the vacancy created due to resignation of the petitioner. Averments in this regard have been made in paragraph-18 of the counter affidavit and paras-9 & 10 of the supplementary counter affidavit which have not been specifically denied by the petitioner. He submits that the writ petition is not maintainable because of non-impleadment of newly appointed employee Sri Subhash Chandra Singh. The allegation of the petitioner against the manager of the institution is not entertaianble inasmuch as the manager has not been made party in the present writ petition. The Principal was the appointing authority, who was present before the D.I.O.S. and the petitioner was afforded full opportunity of hearing. He refers to paragraphs-16, 18 & 20 of the counter affidavit and paragraphs-8, 9 & 10 of the supplementary counter affidavit. He further submits that entire records were produced before the D.I.O.S. who passed the impugned order after affording full opportunity of hearing to the petitioner.
I have carefully considered the submissions of learned counsel for the parties.
Briefly stated, the facts of the present case are that according to the petitioner, one post of class-IV employee (Zamadar) fell vacant due to termination of service of one Katari Ram. The vacancy was advertised and the petitioner was appointed on the said post following due procedure of law and he was allowed to work w.e.f. 03.01.1992 after due approval of the competent authority. It is stated in paragraph-11 of the writ petition that the petitioner was forced to sign a resignation letter which incident was reported by him to the Superintendent of Police, Ballia on 24.08.1992. The petitioner filed a Civil Misc. Writ Petition No.6730 of 1993, Kameshwar Thakur Vs. Regional Higher Education Officer, Gorakhpur and others, which was disposed of by this court by order dated 29.03.1993 as under:
"In view of the above facts, I direct that the petitioner may approach the District Inspector of Schools, Ballia through a representation to be filled by him before the said Inspector along with a certified copy of this order within a period of two weeks from today. On filing of the representation by the petitioner, the District Inspector of Schools, Ballia shall examine the petitioner's case and look into the correctness of the allegations made by him regarding the forced resignation which might have been procured by the Manager. He shall pass appropriate orders on petitioner's representation after hearing the Manager and the petitioner within three weeks from the date of the receipt of the representation.
With these directions, the writ petition is disposed of finally."
It appears that pursuant to the aforesaid order passed by this court, the respondent No.2 fixed the date for hearing for 15.05.1993 on which date the petitioner and the Principal of the Institution appeared and made their submissions. The Manager of the Institution was requested either to appear or to submit his report on 22.06.1993 which was submitted by him by a letter dated 22.06.1993. After considering the report of the Manager and the statement of the Principal and the petitioner recorded during the course of hearing on 15.05.1993 and 21.05.1993, the respondent No.2 came to the conclusion that the resignation was written and signed by the petitioner, which was submitted before the respondent No.3 on 01.07.1992 and for verification of the resignation, three lecturers namely Sri Baldev Mishra, Sri Sudama Ram and Sri Premanand Mishra were requested who confirmed the resignation. The permission for filling up the vacant post due to resignation of the petitioner was granted by the respondent No.2 on 09.07.1992. He also recorded a finding that the allegation of forced resignation was also not found correct by the Police. On these findings, he rejected the representation of the petitioner. Aggrieved with this order dated 15.07.1993, the petitioner has filed the present writ petition.
In paragraph-21 of the writ petition, the petitioner has alleged that 15.05.1993 was the date fixed for hearing by the respondent No.2 on which date manager of the college was not present and subsequently without affording any opportunity to the petitioner, the respondent No.2 passed the impugned order dated 15.07.1993. It is relevant to note that in the impugned order, it is specifically mentioned that the petitioner and the Principal of the Institution were heard on 15.05.1993 and 21.05.1993 and their statements were also recorded. However, this fact, even though mentioned in the impugned order; has not been denied by the petitioner. This clearly indicates that the petitioner was afforded opportunity of hearing by the respondent No.2 who passed the order on the representation of the petitioner after considering the statement of the petitioner, the statement of the Principal of the Institution, the report of the Manager as well as the materials available on record. In paragraph-16 of the counter affidavit, it is specifically stated that the petitioner was afforded full opportunity of hearing by the respondent No.2 who also examined entire record including alleged complaint of the petitioner and his resignation letter etc. The averments so made is also verifiable from the contents and findings in the impugned order as aforementioned with regard to opportunity of hearing.
In paragraph-25 of the writ petition, the petitioner himself has mentioned about the approval of appointment of another person on the post on 09.07.1992. This paragraph has been replied in paragraph-18 of the counter affidavit. In paragraphs-8, 9 & 10 of the supplementary counter affidavit full relevant details of appointment of one Sri Subhash Chandra Singh has been disclosed supported by relevant papers including the approval of appointment dated 02.02.1994 granted by letter No.5349-52, dated 02.02.1994. Thus, the fact of appointment of one Sri Subhash Chandra Singh on the vacancy created due to resignation of the petitioner dated 01.07.1992, was well within the knowledge of the petitioner at relevant point of time but the petitioner has not impleaded the said employee as respondent in the present writ petition, who is a necessary party. In paragraph-25 of the writ petition, a reference to Clause-35.02 of the statute of the University has been made to contend that the resignation was not in the manner prescribed and if the petitioner had actually resigned then the management would have demanded one month's salary from the petitioner as per Rules. In paragraph-20 of the counter affidavit, it is stated that the management through letter dated 05.07.1992 had directed the petitioner to deposit one month's salary.
Clause 35.02 of Chapter XXIII of the statute provides that if a temporary employee resigns from service he shall give notice to this effect in writing to the management of the college one month in advance otherwise he shall have to deposit one month's salary with the college in lieu of notice and similarly if the management of a college decides to terminate the services of an employee, the management shall give one month's notice to the employee or one month's salary in lieu thereof.
Bare perusal of the provisions of para-35.02 of the Statute as aforementioned clearly indicates that employee who resigns without notice is under a legal obligation to deposit one month's salary with the college in lieu of notice. If he does not deposit the salary then it shall not render the resignation to be invalid. The only consequence of resignation without deposit of one month's salary in lieu of notice would be that the college shall become entitled to recover the said amount in accordance with law. Not giving one month's prior notice or not depositing one month's salary in lieu thereof, while tendering resignation; was the breach of Clause 35.02 of Chapter XXIII of the Statutes of the University committed by the petitioner and as such he cannot be allowed to say that the resignation was bad for want of one month's notice or deposit of one month's salary. The petitioner has committed a wrong of which he cannot take advantage. The resignation was voluntarily tendered by the petitioner which was lawfully accepted by the competent authority. On the post which fell vacant due to resignation of the petitioner, one Sri Subhash Chandra Singhw was appointed, whose appointment was duly approved by the respondent No.2 yet the petitioner has not impleaded him as respondent. The manager of the college against whom sole allegation of forced resignation has been made, has also not been impleaded as respondent.
In view of the above discussions, I do not find any merit in this writ petition. Writ petition is wholly misconceived and is, therefore, dismissed. However, there shall be no order as to costs.
Order Date :- 11.07.2016 NLY