JUDGMENT S. Rafat Alam and Sudhir Agarwal, JJ.
1. This special appeal under the Rules of the Court is preferred against the judgment dated 5.3.2002 of the Hon'ble Single Judge dismissing Civil Misc. Writ Petition No. 48111 of 1999 of the petitioner-appellant.
2. We have heard Sri R.N. Singh, learned senior counsel for the appellant assisted by Sri N.C. Gupta, Advocate and Sri Anil Kumar Srivastava, learned Counsel for the respondents-Bank.
3. The appellant was initially appointed as Field Supervisor on 1.4.1995 and was posted at the Head Office of the Vindhya Vasini Gramin Bank, Mirzapur, which has been established under the provisions of the Regional Rural Bank Act, 1976, (hereinafter referred to as the Act) and is governed by the provisions made by the Board of Directors of the Bank in consultation with National Bank for Agricultural and Rural Development. The petitioner-appellant was also subsequently confirmed on the post of Supervisor. Pursuant to an award of the National Industrial Tribunal published in the year 1991 the Field Supervisors were re-designated as Officers of the Bank. The petitioner-appellant was initially posted as Manager of Jharo Kalah Branch in the year 1991 and after being designated as Officer in the year 1993 transferred to Head Office in the Department of Administration where he worked for little less than three years and again on 15.1.1996 was transferred to Jharo Kalan Branch. While working at Jharo Kalan Branch the petitioner earned displeasure and annoyance of the then Chairman of the Bank for certain reasons who, in furtherance of his intention to harass the petitioner-appellant sent a letter dated 4.4.1998 stating that on 3.3.1998 when the Branch was visited by him neither he was found present at the Branch nor there was any information about the reason of his absence and certain other irregularities were also noticed at the Branch. He, therefore, required the petitioner-appellant to explain as to why disciplinary action may not be taken against him. The petitioner-appellant refuted the allegations stating that as a matter of fact no person visited his Branch on the said date and the allegations were incorrect. However, in a state of serious mental disturbance on account of false allegation made by the then Chairman of the Bank the petitioner-appellant under frustration he prepared a letter dated 15.4.1998 addressed to the Chairman of the Bank stating that he is extremely disturbed with the false allegation made against him and, therefore, on account of the said allegation tendering his resignation otherwise he should be furnished the evidence of all the allegations made against him. He also stated to abide by the directions of the Chairman. The said letter was handed over in the Bank's Head Office during the course of a meeting on 16.4.1998 at 1.30 PM. A meeting of all ' the Officers of the Bank was convened by the then Chairman on 16.4.1998 which was attended by the Officers of about 20 Branches of the Bank and during the course of the meeting the then Chairman abused and scolded the petitioner-appellant in the present of other Officers making serious allegations against him and immediately thereafter issued a hand written letter stating that the petitioner-appellant abused and mis-behaved with him and disrupted the meeting and, therefore, instructed to leave the meeting immediately.
4. In this meeting the said resignation letter was handed over by the appellant to the Chairman. Thereafter the petitioner-appellant resiled from his stand, met the Chairman, tendered his apology, and also handed over a letter dated 16.4.1998 (annexure-4 to the writ petition) seeking withdrawal of his resignation. The aforesaid letter was also received in the office of the Chairman on the same day, i.e., 16.4.1998. However, the Chairman communicated on 17.4.1998, that resignation was already accepted vide letter dated 16.4.1998 and directed the appellant to hand over charge of the office to another officer.
5. Assailing the aforesaid order dated 16.4.1998 passed by the Chairman of the Bank accepting resignation of the petitioner-appellant, writ petition was preferred in the year 1998 but when it was noticed that the order was appelable under Regulation 31(1) of the Vindhyavashini Gramin Bank Staff Service Regulation, 1994, the writ petition was withdrawn to avail the remedy of appeal and thereafter the appeal was preferred under the aforesaid Regulation. The appeal remained kept pending with the appellate authority, hence the petitioner-appellant again approached this Court by filing Civil Misc. Writ Petition No. 43106 of 1999 which was disposed of vide order dated 13th October, 1999 directing the appellate authority to decide appeal within three months from the date of production of a certified copy of the judgment. Thereafter, the Bank issued letter dated 30th October, 1999 (Annexure-13 to the writ petition) stating that the Board of Director has already decided appeal rejecting the same on 20.11.1999. Aggrieved by the orders dated 16.4.1998 and 30.10.1999, the appellant preferred Civil Misc. Writ Petition No. 48111 of 1999, which has been dismissed by the Hon'ble Single Judge vide judgment under appeal.
6. Sri R.N. Singh, learned senior counsel appearing for the appellant confined his argument on two issues (i) the alleged resignation dated 15th October, 1998 submitted by the petitioner cannot be said to be an unconditional resignation and, therefore, the same was not a valid resignation in the eyes of law. (ii) It was also withdrawn on the same day, hence, it could not have been accepted by respondent No. 1 and, therefore, the impugned orders are wholly illegal and vitiated in law.
7. The first question, raised before this Court has not been argued before the Hon'ble Single Judge and therefore, there was no occasion for the Hon'ble Single Judge to consider the aforesaid question. The learned Counsel for the parties, however, besides the oral arguments also filed written submissions and agreed that the matter may be decided in the appeal itself instead of remanding it to the Hon'ble Single Judge. Both the learned Counsel for the parties have filed their written submissions and have also advanced their oral arguments.
8. Coming to the first issue, the short controversy involved is whether that the alleged resignation is a resignation simplicitor or amounts to conditional resignation.
9. It would be appropriate to reproduce the contents of the letter of resignation (Annexure-4 to the writ petition), which is as under:
vkidk mijksDr i= gesa izkIr gqvk geus mDr i= dks i<+dj euu fd;kA vkids mDr i{k ds iz0 la0&2 ds dze la[;k&7 dks i<+k rks gesa ekufld #i ls v'kkfUr fefyA vkSj eSa mlh v'kkfUr dh n'kk esa dk;Z dj jgk gwW ek= vkids Hkze.k ds nkSjku esjs Nfo ds fo"k; esa iwjh tkudkjh vkidks 2 ?k.Vs esa gks x;hA mDr Nfo 'kCn ds mij v/kksgLrk{kjh us vc ;g le> fy;k gS fd vki gekjs mij }s"k o'k dk;Zokgh dj jgs gSaA vr% vkids }kjk esjs mij fd;s x;s nks"kkjksi.k ¼Nfo½ 'kCn ds dkj.k v/kksgLrk{kjh viuk ukSdjh ls bLrhQk ns jgk gSA vU;Fkk vHkh gesa rRdky bl 'kCn ls izHkktu miyC/k djk;k tk;A vkidk tks Hkh funsZ'k gks gesa ekU; gSA
10. A plain reading of the aforesaid shows that it cannot be said to be an unconditional resignation letter. The petitioner-appellant in the penultimate paragraph has said that he is submitting resignation for the reasons stated in the earlier part of the letter and otherwise, he should immediately be made available evidence of all such allegations. The respondents could have supplied the material they hod in support of the allegations made against the petitioner-appellant instead of treating the said letter to be a resignation simplicitor.
11. We are unable to agree with the submissions of the learned Counsel for the respondents that the impugned letter of resignation is a resignation simplicitor. Referring to the conduct of the petitioner-appellant that he abused the Chairman of the Bank and thus, was guilty of serious misconduct, learned Counsel for the respondents vehemently contended that in such circumstances there was no option for the Chairman but to accept the aforesaid resignation and this is not a fit case in which this Court interfere. The contention of the learned Counsel for the respondents, thus, appears to be that the petitioner-appellant being guilty of serious misconduct of abuse and misbehaviour with the Chairman was liable to be terminated and instead of taking disciplinary action against him the respondents chose to inflict lesser punishment by accepting the aforesaid resignation. We propose to deal with this submission of the learned Counsel for the respondents, a little later and first of all it would be appropriate to consider the relevant law as to when a letter of lesignation can be said to be a "resignation simplicitor" or a conditional resignation letter.
12. Resignation in relation to an office connotes the act of giving up or relinquishment of the office. To relinquish office means to cease to hold office or to lose hold of the office. Therefore, it means that the employee wants to sever his relation from the employer without any riders and then only it would amount to resignation.
13. Corpus Juris Secundum Vol. 77 page 311 defines the words 'resign' and 'resignation' as under: -
RESIGN. To give up; to surrender by a formal act; to yield; to relinquish; to give up one's office or position; to withdraw from. The word "resign," in its ordinary and usual sense, imports a voluntary act, and has been held not to include the act of one whose continuance in a position has been terminated by death or by induction into the armed forces under the Selective Service Act.
"Resign" has been held equivalent to, or synonymous with, "abandon" see 1 C.J.S. p 41 note 33. "renounce" see 76 C.J.S. p 206 notes 90.2, 90.3.
RESIGNATION. It has been said that "resignation" is a term of legal art, having legal connotations which describe certain legal results. It is characteristically the voluntary surrender of a position by the one resigning, made freely and not under duress, and the word is defined generally as meaning the act of resigning or giving up, as a claim, possession, or position
14. The Words and Phrases Permanent Edition Vol.37 Page 473 defines the word 'Resign' denoting voluntarily act, to give up, surrender by formal act, yield, relinquish, give up one's office or position, or withdraw from. It is synonymous with words "abandon" and "renounce". At Page 474 the word 'Resignation' has been defined and at Page 476 it provides that the resignation must be unconditional and with the intent to operate as such.
15. Black's Law Dictionary Sixth Edition Page 1310 defines the resignation as formal renouncement or relinquishment of an office. It must be made with intention of relinquishing the office accompanied by act of relinquishment. It is said that resignatio est juris proprii spontanea refutatio i.e. resignation is spontaneous relinquishment of one's own right.
16. In the case of R.J. Maurya v. State 1967 SLR 823 it was held that the term resignation implies voluntary surrender of the position by a person resigning and acting freely and not under duress and it becomes effective when the authority |competent to make appointment accepts it.
17. In Ramchand Nihalchand Advani v. Anandlal Bapalal Kothari and Anr. AIR 1962 Gujrat 21 it was held that the letter of resignation must be unambiguous and where an ambiguous letter of resignation is submitted, the authority should right to the employee to explain or clear the ambiguity instead of proceeding to accept the same.
18. In the present case, the appellant requested the Chairman of the Bank to prove the allegations else he is tendering his resignation on account of allegations made against him and this part of the letter cannot be said to be unambiguous, which must have resulted on the part of the Chairman of the Bank to seek clarification from the appellant instead of straightway proceeding to accept the same.
19. The Hon'ble Madhya Pradesh High Court in Hirdeyashawer Singh Chauhan v. State of Madhya Pradesh 1987 Jabalpur Law Journal 566 observed that "the resignation denotes voluntary surrender of a position by one resigning, made freely and not under duress. The resignation denotes, therefore, a spontaneous relinquishment of one's own right. It is conveyed by maxim resignatio est juris proprii spontanea refutatio.
20. Recently, the question as to when a resignation would be conditional and what are the requirement of a valid letter of resignation has been considered in Prabha Atri (Dr.) v. State of U.P. and Ors. wherein it has been held:
"The only question that mainly requires to be considered is as to whether the letter dated 9.1.1999 could be construed to mean or amounted to a letter of resignation or merely an expression of her intention to resign, if her claims in respect of the alleged lapse are not viewed favourably. Rule 9 of the Hospital Service Rules provided for resignation or abandonment of service by an employee. It is stated therein that a permanent employee is required to give three months notice of resignation in writing to the appointing authority or three months salary in lieu of notice and that he/she may be required to serve the period for such notice. In case of non-compliance with the above, the employee concerned is not only liable to pay an amount equal to three months salary but such amount shall be realizable from the dues, if any, of the employee lying with the Hospital. In Words and Phrases (Permanent Edition) Vol. 37 at page 476, it is found stated that, 'To constitute a "resignation", it must be unconditional and with intent to operate as such. There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. It is to give back, to give up in a formal manner, an office." At page 474 of the very same book, it is found stated: "Statements by club's President and corresponding Secretary that they would resign, if constant bickering among members did not cease, constituted merely threatened offers, not tenders, of their resignations." It is also stated therein that "A 'resignation' of a public office to be effective must be made with intention of relinquishing the office accompanied by act of relinquishment". In the ordinary dictionary sense, the word 'Resignation' was considered to mean the spontaneous relinquishment of one's own right, as conveyed by the maxim; Resignatio est juris proprii spontanea refutatio [Black's Law Dictionary 6th Edition]. In Corpus Juris Secundum. Vol.77, page 311, it is found stated "It has been said that 'Resignation' is a term of legal art, having legal connotations which describe certain legal results* It is characteristically, the voluntary surrender of a position by the one resigning, made freely and not under duress and the word is defined generally as meaning the act of resigning or giving up. as a claim, possession or position. " (Para-7) "We have carefully considered the submissions of the learned Counsel appearing on either side, in the light of the materials and principles, noticed supra. This is not a case where it is required to consider as to whether the relinquishment envisaged under the rules and conditions of service is unilateral or bilateral in character but whether the letter dated 9.1.1999 could be treated or held to be a letter of resignation or relinquishment of the office, so as to severe her services once and for all. The letter cannot be construed, in our view, to convey any spontaneous intention to give up or relinquish her office accompanied by any act of relinquishment. To constitute a 'resignation', it must be unconditional and with an intention to operate as such. At best, as observed by this Court in the decision in P.K. Ramachandra Iyer (supra) it may amount to a threatened offer more on account of exasperation, to resign on account of a feeling of frustration born out of an idea that she was being harassed unnecessarily but not, at any rate, amounting to a resignation, actual and simple. The appellant had put in about two decades of service in the Hospital, that she was placed under suspension and exposed to disciplinary proceedings and proposed domestic enquiry and she had certain benefits flowing to her benefit, if she resigns but yet the letter dated 9.1.99 does not seek for any of those things to be settled or the disciplinary proceedings being scrapped as a sequel to her so-called resignation. The words 'with immediate effect' in the said letter could not be given undue importance dehors the context, tenor of language used and the purport as well as the remaining portion of the letter indicating the circumstances in which it was written. That the management of the Hospital took up such action forthwith, as a result of acceptance of the resignation is not of much significance in ascertaining the true or real intention of the letter written by the appellant or 9.1.1999. Consequently, it appears to be reasonable to view that as in the case reported in P.K. Ramachandra Iyer (supra) the respondents have seized an opportunity to get rid of the appellant the moment they got the letter dated 9.1.1999, without due or proper consideration of the matter in a right perspective or understanding of the contents thereof. The High Court also seems to have completely lost sight of these vital aspects in rejecting the Writ Petition.
21. It would also be appropriate to quote the letter of resignation which was considered by the Hon'ble Apex Court in Prabha Atri (Dr.) v. State of U.P. and Ors. (Supra) which is as under: -
Your letter is uncalled for and should be withdrawn. I have been working in this Hospital since May, 10, 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 which immediate effect.
22. Considering the kind of letter of the resignation the Hon'ble Apex Court found in Prabha Atri (Dr.) v. State of U.P. and Ors. (Supra) to be a conditional letter and, ' therefore, not a valid resignation in the eyes of law, it can be safely said that the letter of resignation tendered by the petitioner-appellant in the present case is also a conditional letter of resignation. A reading of the entire letter dated 15.4.1998 shows that neither the same can be said to have been submitted voluntary nor it is unconditional.
23. The totality of the circumstances and the language of the letter submitted by the petitioner-appellant show that he wanted the Chairman of the Bank either to prove the allegations made against him failing which he sought to resign. It was not open to the respondent, in such circumstances, to get rid of the appellant by proceeding to accept his resignation as a substitute of departmental inquiry against him in respect to the allegations made against him. The pace with which the Chairman acted in accepting the resignation and the factum that on the same date the petitioner-appellant also submitted a letter withdrawing his resignation makes entire transaction to be dubious and in above hope.
24. Therefore, following the law laid down in Prabha Atri (Dr.) (Supra), we are of the view that the letter of resignation accepted by means of the impugned orders was not a valid letter of resignation in the eyes of law, which could have been validly accepted by the respondents. It cannot be said to be a voluntary letter of resignation tendered by the petitioner-appellant without any condition. Various allegations against him have been mentioned in the letter and as admitted by the respondents themselves the same was submitted to respondent No. 1 on 16.4.1998 at 1.30 PM during the course of the meeting when there was some hot exchange between the appellant and the Chairman of the Bank. Accepting what has been contended by the respondents that the appellant forced the Chairman to accept his resignation, it also, in our view, fortify the conclusion that in the heat of moment the appellant submitted resignation and in the same manner without any sound, peaceful and unbiased exercise of power, the Chairman in the same heat of moment accepted the same, His further action of not giving weight to the letter of same date submitted by the appellant withdrawing "his resignation also goes to show that the management wanted to get rid of the appellant and to short circuit the procedural requirement of disciplinary proceedings the aforesaid method of acceptance of resignation was followed and adhered to. In the totality of the circumstances, it cannot be said that the alleged resignation was accepted by the competent authority in a proper exercise of power in normal circumstances. The letter of resignation by no stretch can be said to construe any spontaneous intention on the part of the appellant to give up or relinquish office by act of relinquishment and the acceptance of resignation in the same heat of moment also cannot be said to be a valid acceptance on the part of the competent authority.
25. There is another aspect of the matter. Admittedly, the petitioner-appellant was on duty on 16.4.1998. As admitted by the respondents, the letter of resignation was received by the Bank on 16.4.1998 at 1.30 pm i.e. in the afternoon. Admittedly, the appellant was liable to be treated on duty on the entire day i.e. 16.4.1998 and any termination whether by way of resignation or otherwise would have been effective on a date subsequent to 16.4.1998. The letter withdrawing resignation was received by the Bank on 16.4.1998 and in the acknowledgement the time of receipt of such has not been mentioned, as is apparent from annexure 5 to the affidavit filed in support of the said application. The respondents have, however, tried to explain that although the said letter of withdrawal was received on 16.4.1998 but since the resignation was already accepted the aforesaid letter of withdrawal needed no further attention on the part of the Bank. Para 20 of the counter affidavit of the Bank in the writ petition accepting the receipt of annexure 4 of the writ petition, which is a letter of withdrawal of resignation and the reason for not proceeding further on the said letter is reproduced below: -
20. That in reply to the contents of para 16 of the writ petition, it is stated that as regard the letter dated 16.4.1998 (Annexure 4 to the writ petition) is concerned, and which is alleged to has been given to the answering respondents is not denied. However, it is stated that after the resignation was given and accepted, it requires no further attention. Otherwise allegations made in para under reply are not correct and as such are denied.
26. Since the petitioner-appellant was and had to be treated on duty on the entire day on 16.4.1998, in any case his services could have been terminated on a day subsequent to 16.4.1998. In these circumstances, when the petitioner, on the same day, withdrew his letter of resignation, in our view, there was no justification for the respondents to treat the resignation letter dated 16.4.1998, as irrevocable, after the Chairman said to have passed the order on the same accepting it, although, admittedly, it was not communicated to the appellant, who was present in the Bank on 16.4.1998. Various correspondences exchanged between the petitioner and the Chairman of the Bank on 16.4.1998 also leaves much scope to doubt even the correctness of the stand of the respondents that the letter of resignation was accepted earlier to the letter of withdrawal submitted by the appellant.
27. It is not the case of the respondents that there is some provision existing under the Rules or otherwise preventing a person from withdrawing his resignation. In such case the resignation, which is likely to be operated from a future date, can be withdrawn before it operates to terminate the employment or the connection of the resignor with his office. The Hon'ble Apex Court also while considering the meaning of the word "resigning office" in the case of Union of India etc. v. Gopal Chandra Misra and Ors. held as under: -
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, 2nd Edition, Volume 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 as under from the office. Indeed, the completion of the resignation and the vacation of the office, are the causal and effectual aspects of one and the same event.
28. Further in para 42 of the aforesaid judgment the Hon'ble Apex Court approving the principle of withdrawal before the relationship of the employer and the employee held as under:
The general principle that emerges from the foregoing conspectus is that in the absence of anything to the contrary in the provisions governing the terms and conditions of the office post, an intimation in writing sent to the competent authority by the incumbent, of his intention or proposal to resign his office/post from a future specific date, can be withdrawn by him at any time before it becomes effective, i.e. before it effects termination of the tenure of the office/post or the employment.
29. In respect of the matters of resignation general principle is that in the absence of a legal, contractual or constitutional bar, a 'prospective' resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries and the employees of the statutory bodies or the instrumentalities of the State, which constitute State under Article 12 of the Constitution of India.
30. In the present case, as discussed above, the resignation could have been operative only on 17.4.1998 and on 16.4.1998 the relationship of the petitioner-appellant and the Bank continued for the entire day. In these circumstances, it cannot be said that the resignation could not have been withdrawn on 16.4.1998, since it has become effective immediately after the acceptance by the Chairman. In our view, the assumption on the part of the respondents in treating the resignation effective w.e.f. 16.4.1998 after its acceptance is not correct.
31. Further, the consideration prevailed with the Board of Directors who is the appellate authority in rejecting the appeal and the submissions made by the learned Counsel for the parties before this Court also shows that the petitioner-appellant was guilty of serious misconduct and, therefore, he was liable to be terminated and the respondents treated the mode of acceptance of resignation as a substitute of termination of service of the appellant on account of its alleged misconduct. We cannot approve this approach of the respondents. If the petitioner-appellant was guilty of any misconduct it was always open to the respondents to initiate disciplinary proceeding against him and in case charges are proved, to impose adequate punishment in accordance with law upon the petitioner-appellant but in the garb of acceptance of resignation the services of the petitioner-appellant could not have been terminated by way of punishment. Resignation of service cannot be equated with the termination of service or in lieu of penal action against the employee.
32. Though, this Court has found that the termination of services of the appellant in the manner the respondents have proceeded in the case is inconsistent with the requirement of law applicable in the case of resignation but we also simultaneously feel it a disturbing factor in which the petitioner, being an employee of the Bank, has behaved with the authority of the Bank, namely, the Chairman. However, we do not propose to deal with this aspect any more since this is a matter to be dealt by the Bank in accordance with Rules, if they are so advised.
33. Special appeal is, therefore, allowed and the impugned judgment under appeal is set aside. Consequently, the writ petition also stands allowed and the orders impugned in the writ petition, i.e., 16.4.1998 and 30th October, 1999 (Annexures 4 and 13 to the writ petition) respectively are set-aside.
34. The petitioner shall be entitled for reinstatement and all consequential reliefs including the payment of salary and other benefits except the arrears of salary for the period he remained terminated. Normally, setting aside the order of termination would result in restoring the employee back to his position with all his attending benefits including arrears of salary but considering the peculiar facts and circumstances of the case and also the conduct of the petitioner-appellant, we do not find it appropriate to allow arrears of salary for the period he remained terminated pursuant to the order dated 16.4.1998 passed by the Chairman of the Bank. The entire incident has caused due to the involvement of the appellant also to some extent and he is also responsible to bring a situation causing the respondents to pass the order impugned in the writ petition. It is not a case where the respondents on their own have passed the orders of having the effect of termination of service of the employee. We, therefore, propose to apply the principle of 'no work no pay' and provide that the petitioner-appellant shall not be entitled to arrears of the salary for the period he did not discharge his duties but the aforesaid period shall not be treated as break in service and shall be counted for all other purposes, namely, seniority, increment, promotion, pensionary benefits etc. The petitioner-appellant shall be reinstated henceforth. However, in respect to the allegations the respondents are at liberty to initiate disciplinary proceeding against the appellant in accordance with rules, if they are so advised. There shall be No order as to costs.