Hon'ble Devendra Kumar Arora, J.
Heard Sri S.K. Kalia, Senior Advocate, assisted by Sri Alok Mishra, learned Counsel for the petitioner and Sri Adnan Ahmad, learned Counsel for the opposite party No.1 and Sri Anurag Srivastava, learned Counsel for the Bank.
Through the instant writ petition under Article 226 of the Constitution of India, the petitioner has assailed the order dated 26.5.2011 passed by the Appellate Authority/Chief General Manager, State Bank of India rejecting the appeal dated 12.3.2011 preferred by the petitioner and letter dated 3.4.2010 of the Regional Manger (RBO-II), whereby recommendations to accept the resignation dated 25.3.2010 submitted by the petitioner, has been made. Petitioner further challenges the circular/letter dated 20.7.2010 issued by the Deputy Managing Director and Corporate Development Officer, S.B.I. Corporation Centre, Mumbai (opposite party No.3) to the extent it stipulates the condition of achievement of minimum of 60% target during the financial year 2009-2010 and order dated 24.6.2010 passed by the Chief Manager (RC PC) communicating the petitioner regarding acceptance of his resignation, contained in Annexure No.1, 2, 3 and 4, respectively, to the writ petition.
In nutshell, the facts of the case are that petitioner was appointed on the erstwhile post of Officer Marketing and Sales Farm Sector (now Officer Marketing and Recovery Rural) on contract basis for a period of two years, i.e., w.e.f. 22.11.2004 to 21.11.2006. Vide letter dated 15.5.2007, the term of contractual appointment of the petitioner was extended for a further period of three years w.e.f. 22.11.2006 to 22.11.2009 subject to his achieving minimum 60% of target assigned to him in each financial year during the period of extension.
According to the petitioner, despite his repeated requests, since the petitioner was not paid admissible dues causing serious financial constraints and continued harassment, he tendered his resignation by giving three months' notice on 25.3.2010. On realizing the mistake and on the assurance given by the senior officers that all dues would be cleared shortly, petitioner withdrew his resignation dated 25.3.2010 vide application dated 21.6.2010 addressed to the Chief General Manager. Thereafter, on 24.6.2010, the application for withdrawal of resignation was submitted through proper channel, i.e. the Chief Manger, S.B.I. (RCPC), Raebareli (opposite party No.5) by hand. However, vide impugned letter dated 3.4.2010, the Regional Manager (RBI-II) forwarded the issue regarding resignation of the petitioner to the Deputy General Manager (RB-NP) wherein several stigma have been casted upon his work and conduct. Subsequently, the Chief Manager (RC/PC), vide letter dated 24.6.2010, informed the petitioner that his application for resignation dated 25.3.2010 has been accepted by the appropriate authority and as such, he would be relieved from his duties at the close of business hours on 25.6.2010. Feeling aggrieved, the petitioner preferred a statutory appeal. During pendency of the departmental appeal, the petitioner preferred a writ petition, bearing No. 20 (S/B) of 2010, before this Court. This Court, vide order dated 9.3.2011, disposed of the writ petition directing the appellate authority to decide the appeal, expeditiously within a period six weeks from the date of receipt of a certified copy of the order. In compliance of the order dated 9.3.2011, the appellate authority, vide order dated 26.5.2011, considered the petitioner's appeal and rejected it, hence the instant writ petition.
Sri S.K. Kalia, Senior Advocate, appearing on behalf of the petitioner submits that as per provisions of Rule 20.5 of the Conduct Rules, no officer will be deemed to have left bank service unless the bank communicates its approval for termination of contract in writing, but in the instant case, the petitioner was never communicated with any kind of information with regard to the acceptance of resignation or termination of his contract prior to 24.6.2010, which is evident from a letter dated 24.6.2010 issued by the Chief Manager (RC-PC) to the petitioner with regard to acceptance of his resignation w.e.f. 25.6.2010 and further communicating the petitioner that he will be relieved from the duties at the close of business hours on 25.6.2010. The appellate authority, vide order dated 26.5.2011, accepted the proposition of law that an employee has a right to withdraw such resignation before expiry of the statutory notice period and in such a situation, by withdrawing resignation, his right to continue in service revives, but the opposite parties have taken a stand that since the terms of contract have already expired on 21.11.2009, therefore, the OMR Service Rules seized to be applicable in the case.
Learned Counsel has submitted that earlier after expiry of first term of the contract of the petitioner on 21.11.2006, the petitioner was allowed to continue, though the contract of the petitioner was renewed vide letter dated 15.5.2007 extending the term of the contract with effect from the back date, i.e. 22.11.2006 to 21.11.2009. He submits that even after the expiry of contract period, the petitioner was considered to be an employee of the bank, therefore, his term of contract was extended vide letter dated 15.5.2007 and no fresh contract was executed and as such, this time also after expiry of the contract period i.e. 21.9.2010, the petitioner was under impression that his services will again be extended on contract basis, that is why he had withdrawn his resignation also, though admittedly prior to acceptance of his resignation letter but the opposite parties in a most illegal and arbitrary manner, and after misconstruing the relevant provisions contained in the Conduct Rules under rule 20.5, treated the petitioner to be an outsider even during the period, he worked in the interest of the bank and was paid salary so as to deny him an opportunity to return back into the services of the bank after withdrawal of his resignation for which he is legally entitled to.
Elaborating his arguments, learned Counsel submitted that even the employees have been permitted to withdraw their resignation in order to be absorbed in the services of the bank but due to the illegal and discriminatory action on the part of the opposite parties, the application for withdrawal of resignation of the petitioner, which was submitted on 21.6.2010 i.e. the date much prior to expiry of notice period, is not even being considered by the appellate authority, while passing the impugned order dated 26.5.2011 on the frivolous and baseless objections, that the petitioner was no more in services of the bank as per the statutory rules since the period of contract was already expired.
Refuting the submissions made by Counsel for the petitioner, Mr. Anurag Srivastava, learned Counsel for the Bank supported the orders passed by the authorities of Bank including that of Appellate Authority and submitted that as the petitioner has no right to remain in service after expiry of term of contract and as such, there was no necessity to consider the application for withdrawl of his resignation nor far passing any order for termination. The impugned orders are perfectly valid and justified.
As regards the payment of salary to the petitioner beyond the period of contract is concerned, the same has already been paid to him. On perusal of the impugned order dated 24.6.2010, it is abundantly clear that the application for resignation was processed as is evident from the impugned order, which is reproduced as under:-
"With reference to your letter dated 25.3.2010, the appropriate authority has accepted your resignation from the post of Officer Marketing & Recovery with effect from 25.6.2010. Therefore, your will be relieved from your duties at the close of business on 25.6.2010.
2. In this connection, please note that in event of your resignation from Bank's service, your request for reemployment in the bank in same cadre will not be considered in any circumstances and Bank's laid down norms will be observed."
As is evident from the aforesaid order, it is abundantly clear that the petitioner has not been debarred from service on account of non-extension of period of contract.
The law is well settled that a prospective resignation becomes effective from the date given by the employee and it can be withdrawn prior to the date of its commencement come into effect. In the instant case, it is not disputed that the petitioner has given the withdrawal of application before the effective date, i.e. 25.6.2010. Therefore, it was incumbent upon the competent authority/appointing authority/appellate authority to pass appropriate orders on the said application and in not doing so and acting solely on the resignation letter is wholly arbitrary and shows the colourable exercise of powers.
In Punjab National Bank v. P.K. Mittal, AIR 1989 SC 1083, the Hon'ble Supreme Court again examined the case wherein the employee tendered his resignation on 21.1.1986 to be effective on 30.6.86. The resignation was accepted on 7.2.86 pointing out that it had been accepted by the Authority with immediate effect. The Apex Court held that the Authority had no competence to advance the date of its effectiveness and resignation, if accepted, could have become effective only on 30.6.86 and as the resignation was to be effective with future date, the employee had a right to withdraw the same prior to 30.6.86.
In Dr. Prabha Atri v. State of U.P. and others [(2003) 1 SCC 701], the Apex Court held that resignation must be clear and unconditional and intending to operate as such. In that case, while replying to the show cause, the employee had stated that in case his explanation was not accepted, he would have no option but to resign. It was held not to be resignation.
In Power Finance Corporation Ltd. v. Parmod Kumar Bhatia [(1997) 4 SCC 280, the Supreme Court examined the case of a conditional resignation. The employee tendered the resignation under a Scheme on 20.12.94 to come into effect on 31.12.94 with demand of outstanding dues and to hand over the relieving certificate. The submission made before the Court was that as the voluntary retirement of the employee was a conditional one and he himself understood that unless he was relieved of the duties after payment of outstanding dues, the voluntary retirement would not be effective. The court held that as the employee rightly understood that unless he was relieved of the duty of the post after payment of outstanding dues, the order accepting his voluntary retirement did not become effective. However, the Court observed as under:-
"It is now settled legal position that unless employee is relieved of the duty, jural relationship of the employee and employer does not come to an end. Since the order accepting the voluntary retirement was a conditional one, the condition ought to have been complied with. Before the condition could be complied with, the appellant withdrew the scheme. Consequently, the order accepting voluntary retirement did not become effective, therefore, no vested right has been created in favour of respondent."
In Nandkeshwar Prasad v. Indian Farmers Fertilizers Co-operative Ltd. and others [(1998) 5 SCC 461], the Apex Court held that unless the issue of resignation is controlled by Conditions of Service or the Statutory Provisions, the retirement or resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date and the employee concerned has a right to withdraw the letter of resignation before the same becomes effective.
In J. N. Srivastava v. Union of India and another [AIR 1999 SC 1571], the Apex Court again considered the case of prospective resignation tendered on 31.10.89 to come into effect on 31.1.90 and withdrawn on 2.11.89. The Court held that as it was a prospective resignation, it could be withdrawn prior to the date of its being effective.
In Union of India v. Wg. Comm. T. Parthasarathy [(2001) SCC 158], the Apex Court considered the case of a prospective resignation submitted on 31.7.85 to become effective on 31.8.1986 and withdrawn on 19.2.186 but the withdrawal application was rejected on the ground that under the existing policy, there was no scope of withdrawal. The Court reiterated the law that a prospective resignation becomes effective from the date given by the employee and it can be withdrawn prior to the date of its commencement into effect. The Court further held that the right to withdraw cannot be curtailed by Executive Instructions or Policy Decision and unless there are statutory rules prohibiting such withdrawal, the right of an employee to withdraw is not acceptable.
In the case of Srikantha S.M. v. Bharath Earth Movers Ltd. [(2005) 8 SCC 314], the Supreme Court went to the extent of saying that the resignation could be withdrawn, even after acceptance, but before the actual date on which the employee concerned was to be relieved.
Having gone through the material on record, one thing is clear that the petitioner tendered his resignation because his admissible dues were not being cleared causing serious financial problem to him. From the letter of resignation dated 25.3.2010 one can easily infer that the officers of the Bank were harassing the petitioner regularly, inasmuch as his T.A. Bills, Medical, LFC etc. were not paid. His request for clearing the admissible dues in the monthly meeting went in vain. The compelling circumstances stimulated the petitioner, who was under serious mental stress, to resign with three months notice, i.e. with effect from 25.6.2010. The Regional Manager, vide impugned letter dated 3.4.2010, forwarded the resignation of the petitioner to the Deputy General Manager (RB-NP). It may be noted that while forwarding the resignation and making recommendation to accept the resignation w.e.f. 25.6.2010, several allegations were imputed regarding his non-achievement of the target and was also mentioned that he is a non-performer and problem creator for the Bank. Thus, stigma was also casted upon him.
The petitioner in the writ petition has averred that the senior officers of the Bank asked him to withdraw the resignation and assured that his dues will be cleared very soon. In these circumstances, the petitioner wrote a letter dated 21.6.2010 to the competent authority withdrawing his resignation and felt sorry for the wrong decision. He also assured that he would work with the Bank with full spirit. The petitioner sent another letter dated 24.6.2010 reiterating his withdrawal of resignation. When the petitioner has submitted the application for withdrawal of resignation, it should have been considered by the competent authority, but instead of doing so, an order was passed on 24.6.2010 showing acceptance of his resignation with effect from 25.6.2010.
From the perusal of the counter-affidavit, it comes out that the application for withdrawal of resignation was considered, but the same was rejected. In the letter dated 2.8.2010, the Deputy Chief General Manager had indicated that he had asked the view/opinion of the Assistant General Manager (Law) to examine the matter from legal angle as to whether Sri Sengar can withdraw his resignation after his resignation has been accepted by the appointing authority and after he was relieved from his services. The opinion of the AGM (Law) reads as under:-
"He (Shri Sengar) has acknowledged the relieving letter without any protest. Records further show that Shri Sengar had moved an application on 21.6.2010 for withdrawal of his resignation on the condition that he may be posted in Region - V or Region I. It is well settled law that once the resignation has been accepted and decision in this regard has been communicated, the Officer concerned cannot be allowed to withdraw the resignation when Shri Sengar has already been relieved."
From the opinion of the AGM (Law), referred to above, one thing is crystal clear that the application withdrawing the resignation was made on 21.6.2010, i.e. before the effective date of resignation. In other words, it is established that the withdrawal letter had been submitted before the resignation letter was accepted. It may be added that the resignation is unilateral act and there could not be no estoppel against the withdrawal of resignation. It has been the consistent view of the Courts that the resignation letter can be withdrawn before its acceptance and on such withdrawal of resignation, the services of an employee cannot be terminated by accepting the resignation after its withdrawal.
It is also pertinent to add that from the perusal of the various orders, including the appellate order, it is apparent that contradictory statements have been made, as on one hand, the bank authorities have admitted the proposition of law regarding withdrawal of resignation before expiry of statutory notice period, but on the other hand, the benefit of the same has been denied on account of the fact that the contract of the petitioner has already expired on 21.11.2009 and as such, he was not covered by any provision contained in Officer Marketing and Recovery (Rural Service) and Conduct Rules. The stand of the Bank that OMR service Rules ceased to be applicable in the case of petitioner on account of expiry of contract period is wholly baseless for the reason that on earlier occasion, after expiry of the first term of the contract, the petitioner continued in service and was paid all his dues and the contract in writing was renewed vide letter dated 15.5.2007 extending the term of contract with effect from the back date, i.e. 22.11.2006 to 21.11.2009. After expiry of this period, the petitioner was allowed to work and was paid his salary.
The petitioner in the writ petition has asserted that various other employees have been absorbed and they were allowed to withdraw their resignation, but in the case of the petitioner, the same principle was not being applied. If it is so, the petitioner's candidature may be considered for absorption if it is permissible under the policy. However, we are not inclined to accept the assertion of the petitioner that the policy framed by the Bank is arbitrary as in catena of cases, the Apex Court has held that the the Courts should not interfere in the policy matters and should refrain from themselves from saying to adopt a particular policy.
The result of the above discussion is that acceptance of resignation shall be deemed to be inoperative and the petitioner will be deemed to be continued in service.
The writ petition is allowed and the letter accepting the resignation and the consequential appellate order are hereby quashed. The petitioner shall be entitled to all consequential benefits and his admissible dues shall be disbursed to the petitioner, within a maximum period of three months, from the date of production of a certified copy of this order.
Dt.13.3.2012 lakshman