There may be cases where an employee resigning from service has gone
in hiding or is in jail custody etc. The construction placed upon the relevant
clauses of the O.M. dated 11.2.1988 by the High Court will render the
provisions unworkable, hence such construction needs to be avoided.
The word, “relieving” itself must be understood in the ordinary parlance
because it is not defined in the O.M. or in the relevant rules as is apparent from
the judgment of the High Court. The meaning of the word “relieve” given in
the Law Lexicon (2nd Edn. 1997 by P. Ramanatha Aiyar) is – “to free or clear a
person from an obligation”.
This result manifests itself from the order
accepting the resignation because no reservation has been made by the
Government that the Respondent has to continue in service till any particular
time or till being relieved. Hence, in the instant case, there was no obligation
on the Government to write a formal letter that the Respondent has been
relieved. Even if such requirement had been there, in the case in hand it would
be an empty formality. The wholesome writ jurisdiction was not required to be
exercised in the facts of the present case keeping in view the conduct of the
Respondent in escaping away from his duties without obtaining leave when he
was only a temporary employee under probation.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10645 OF 2010
Union of India & Ors.
.....Appellants
Versus
Hitender Kumar Soni
SHIVA KIRTI SINGH, J.
Citation;AIR 2014 SC 3574
Dated;July 21, 2014.
1.
As Appellants the Union of India and its concerned officials are
aggrieved by the judgment and order under appeal dated 11.12.2008 passed by
a Division Bench of High Court of Himachal Pradesh in Civil Writ Petition
No.41 of 2001 whereby the High Court allowed the Writ Petition preferred by
the sole Respondent and set aside the impugned order of the Central
Administrative Tribunal dated 15.5.2000. The High Court held the Respondent
entitled for reinstatement in service to the post of “Investigator”.
The
Government was directed to decide the admissibility and entitlement of leave,
arrears of pay and allowances and other service benefits of Respondent upon
his reinstatement after affording full opportunity to the Respondent, of hearing
as well as leading evidence.
2.
Before adverting to the facts it is relevant to notice at the outset that the
High Court, inspite of resignation of the Respondent dated 07.10.1997 having
been accepted by the Competent Authority by order dated 16.6.1998 held that
the resignation could not have come into effect because as per clause (4) of
Office Memorandum dated 11.2.1988 issued by the Government of India,
Ministry of Personnel, Public Grievances and Pensions, the Respondent was
also required to be relieved of his duties which was not done by the Appellants.
3.
The question falling for determination in this appeal is whether relevant
clause (4) of the Office Memorandum dated 11.2.1988 takes away the power of
the Government to effectively bring to an end the service of an employee by
accepting his resignation unless the Government, besides accepting the
resignation also proceeds to relieve the employee. In the judgment under
appeal, the relevant clauses, i.e., clauses 1, 2, 3 and 4 have been extracted in
paragraph 10(iii) and those clauses are reproduced hereinbelow for the sake of
clarity and convenience :
“Clause (01) : Format of resignation: Resignation is an intimation
in writing sent to the competent authority by the incumbent of a
post, of his intention or proposal to resign the office/post either
immediately or from a future specified date. A resignation has to
be clear and unconditional.
Clause (02): Circumstances under which resignation should be
accepted.
It is not in the interest of Government to retain an unwilling
Government servant in service. The general rule, therefore, is
that a resignation of a Government servant from service should
be accepted, except in the circumstances indicated below :-
(i)
Where the Government servant concerned is engaged on
work of importance and it would take time to make
(ii)
alternative arrangements for filling the post, the
resignation should not be accepted straightaway but only
when alternative arrangements for filling the post have
been made.
Clause (03): A resignation becomes effective when it is accepted
and the Government servant is relieved of his duties. If a
Government servant who had submitted a resignation, sends an
intimation in writing to the appointing authority withdrawing his
earlier letter of resignation before its acceptance by the
appointing authority, the resignation will be deemed to have been
automatically withdrawn and there is no question of accepting the
resignation. In case, however, the resignation had been accepted
by the appointing authority and the Government servant is to be
relieved from a future date, if any request for withdrawing the
resignation is made by the Government servant before he is
actually relieved of his duties, the normal principle should be to
allow the request of the Government servant to withdraw the
resignation. If, however, the request for withdrawal is to be
refused, the grounds for the rejection of the request should be
duly recorded by the appointing authority and suitably intimated
to the Government servant concerned.
Rules governing temporary Government servants in reference to
Rule 5(1) of the CCS (TS) Rules, 1965.
Clause (4): Since a temporary Government servant can sever his
connection from Govt. service by giving a notice of termination
of service under Rule 5(1) of the Central Civil Services (TS)
Rules, 1965, the instructions contained in this Office
Memorandum relating to acceptance of resignation will not be
applicable in cases where a notice of termination of service has
been given by a temporary Govt. servant. If, however, temporary
Govt. servant submits a letter of resignation in which he does not
even mention that it may be treated as a notice of termination of
service, he can relinquish the charge of the post held by him only
after the resignation is duly accepted by the appointing authority
and he is relieved of his duties and not after the expiry of the
notice period laid down in the Temporary Service Rules.”
4.
Now, the relevant facts. After being selected and recommended by the
Staff Selection Committee for appointment as “Investigator” (Group ‘C’ non-
gazetted post), the Respondent joined the said post in the Office of the
Assistant Director, National Samples Survey Organisation, Shimla, Field
Operation Division on 24.6.1996. His service was still temporary and under
probation. He did not report for duty on 06.10.1997 and on the next day a letter
of resignation dated 07.10.1997 sent by the Respondent was received in the
concerned office through post. The reason for resignation mentioned in the
letter was unavoidable family circumstances and ill health of the Respondent.
For some administrative reasons, the resignation of the Respondent could not
be accepted immediately although he disobeyed directions through various
letters to resume his duties and never reported for work although no leave was
sanctioned. Through a letter dated 31.10.1997 Respondent was informed that
his resignation cannot be accepted for some administrative reasons. The details
of relevant correspondences, preceding and succeeding the letter dated
31.10.1997, have been noted by the High Court in paragraphs 4 and 5 of the
judgment.
By a letter dated 24.10.1997, Respondent was informed that
tendering of resignation was not sufficient to absolve him of his official duties
unless it was accepted by the Competent Authority. He was asked to submit
some other official documents such as Instructions Set, Identity Card, Tour
Diary, Kit items and some relevant official papers. He was also asked to offer
clarification regarding a sample survey and was warned that on failure
disciplinary action might be initiated against him. In reply, the Respondent
through a letter dated 10.11.1997, informed that he had returned Instructions
Set, Tour Diary, Random Table and NIC book. He also requested that the cost
of kit items may be adjusted from his pending dues. He again made a request
that his resignation which he had already submitted may be accepted. Letters
were issued to the Respondent in February and April 1998 regarding his
obligation to join duties and his failure to submit leave application. However,
ultimately the Competent Authority, as noted earlier, by letter dated 16.6.1998
accepted the resignation of the Respondent. On 5.8.1998 the Respondent sent a
letter to the effect that the circumstances under which he had submitted his
resignation had now changed and hence his resignation letter may be treated as
cancelled. The concerned officials got the Identity Card of the Respondent
collected on 25.8.1998 for fear of its misuse.
5.
Since the Appellants did not accede to the request of the Respondent, he
preferred
Original
Application
No.798/HP/1998
before
the
Central
Administrative Tribunal, Chandigarh Bench, Circuit Bench at Shimla, seeking
quashing of the order accepting his resignation and for a direction to treat him
in service and grant of consequential reliefs. The Tribunal rejected the prayers
made in the O.A. by order dated 15.5.2000 but gave liberty to the Respondent
to apply for fresh appointment to the post of “Investigator”. The Appellants
were directed to consider such an application sympathetically and offer him
employment in case he was found eligible. Accordingly, Respondent made an
application dated 26.6.2000 to consider for his fresh appointment
sympathetically. That representation/application was rejected on 27.11.2000
pointing out that the Respondent was already over-age at the time of order by
the Tribunal. Thereafter, Respondent preferred Civil Writ Petition No.41 of
2001 which has been allowed by the order under appeal.
6.
The High Court, in a rather lengthy judgment, has considered a large
number of judgments of this Court for recapitulating the well established
principles of law such as – normally, the tender of resignation becomes
effective and the service or office tenure of the concerned employee stands
terminated, when it is accepted by the Competent Authority.
For this,
reference may be made to a judgment of a Constitution Bench in the case of
Union of India & Ors. v. Gopal Chandra Misra & Ors. (1978) 2 SCC 301;
and that notice of voluntary retirement or resignation can be withdrawn at any
time before it becomes effective.
7.
A plea was taken by the Respondent before the High Court that the
decision accepting his resignation was not received by him. The High Court, in
paragraph 27 of the judgment, took the view that such a plea would not have
any effect upon the order of acceptance of resignation.
This view is in
accordance with judgment of this Court in the case of Raj Kumar v. Union of
India AIR 1969 SC 180. In that case, the concerned employee had withdrawn
his resignation before the order accepting his resignation had reached him.
This Court, in paragraph 5 of the Report, made a distinction between an order
of dismissal on one hand and termination of employment on the other which is
invited by a public servant through an offer of resignation.
In the latter
eventuality, the employee’s “services normally stand terminated from the date
on which the letter of resignation is accepted by the appropriate authority and
in the absence of any law or rule governing the conditions of his service to the
contrary, it will not be open to the public servant to withdraw his resignation
after it is accepted by the appropriate authority....”.
8.
We have heard learned counsel for the Appellants and learned counsel
for the Respondent and we find, on a perusal of the order under appeal, that the
only ground, on which the High Court has allowed the writ petition and granted
relief to the Respondent, is its opinion that in view of requirement of clause (4)
of O.M. dated 11.2.1988 it was incumbent upon the Appellants to bring some
materials on record to show that the Respondent was relieved from the duties
of his office following the acceptance of resignation on 16.6.1998. For the
reasons indicated hereinbelow, we are unable to agree with the aforesaid view
of the High Court.
9.
A perusal of the relevant clauses of the O.M. dated 11.2.1988 discloses
that resignation is required to be intimated in writing disclosing the intention to
resign the office/post either immediately or from a future date. In the latter
case, such future date should be specified. The resignation has to be clear and
unconditional. The Respondent did not specify any future date but submitted
his resignation in writing giving reasons and his intention to resign is clear and
unconditional.
Clause (2) contains circumstances under which resignation
should be accepted. This is for the guidance of the concerned officials and
does not create any right in the concerned employee to resist acceptance of
resignation. Clause (3) specifies that a resignation becomes effective when it is
accepted and the Government servant is relieved of his duties. A careful
reading of this clause throws some light as to why the requirement of relieving
a Government servant has been indicated in this Office Memorandum. The
second sentence of this clause states the normal rule that a Government servant
can withdraw his letter of resignation before its acceptance by the appointing
authority. The next following sentence spells out that in case the resignation
had been accepted by the appointing authority and the employee is to be
relieved from a future date, if a request for withdrawal of resignation is
received from the employee, the normal rule should be to allow the request to
withdraw the resignation. But, even in such a case, the request for withdrawal
may be refused but the grounds for the rejection should be recorded and
intimated to the Government servant concerned.
In continuity, clause (4)
considers the case of a temporary Government servant who has a right to opt
out of Government service by giving a notice of termination of service as per
applicable service rules of 1965. In such a case the Office Memorandum in
question relating to acceptance of resignation will not be applicable. The
subsequent provision of clause (4) has been held applicable to the Respondent
because instead of notice of termination he had tendered a letter of resignation.
In such a case as per clause (4), “....he can relinquish the charge of a post only
after resignation is duly accepted by the appointing authority and he is relieved
of his duties and not after the expiry of the notice period laid down in the
Temporary Service Rules”.
10.
In our considered view, the part of clause (4) extracted above makes a
distinction between the right of a temporary Government servant to sever his
connection from Government service by giving a notice of termination and that
of a temporary Government servant who chooses not to give such notice but
opts to submit a letter of resignation. In the case of notice of termination the
concerned employee can relinquish the charge of the post on expiry of the
period of notice, but, such right will not be available to a temporary employee
in case he tenders a simple resignation. The reason is obvious because a
resignation requires acceptance by the appointing authority and till then his
right to relinquish is impinged by the requirement, to be relieved of his duties.
On a joint reading of clauses (3) and (4) it can be safely inferred that depending
upon the facts and circumstances of a case and nature of request made in a
resignation letter, the Government has the power to accept the resignation so as
to bring about a severance of relationship of master and servant with immediate
effect. But in cases where the letter of resignation itself specifies a future date
for being relieved or where, as indicated in clause (2) the concerned
Government servant is engaged on work of importance etc., the resignation
may not be accepted straightaway.
It is in such circumstances only that
Government may exercise its power to accept the offer but defer the date from
which resignation would become effective. 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. In the instant case, the
letter of acceptance clearly shows that termination of Respondent’s service as
per his offer of resignation was not deferred to any future date and hence there
was no requirement to relieve him of his duties. Even the peculiar facts of this
case show that the Respondent while on probation had already abandoned his
temporary service for almost 8 months and had not cared to report for duty
inspite of several requests. In such a situation, it would be impossible to
relieve an absconding employee of his duties and if the reasoning of the High
Court is accepted such employee, even if he has tendered resignation, must be
continued in service till he is actually found or till he presents himself to be
relieved of his duties. Such a view would be impractical and run against larger
public interest.
11.
There may be cases where an employee resigning from service has gone
in hiding or is in jail custody etc. The construction placed upon the relevant
clauses of the O.M. dated 11.2.1988 by the High Court will render the
provisions unworkable, hence such construction needs to be avoided.
12.
The word, “relieving” itself must be understood in the ordinary parlance
because it is not defined in the O.M. or in the relevant rules as is apparent from
the judgment of the High Court. The meaning of the word “relieve” given in
the Law Lexicon (2nd Edn. 1997 by P. Ramanatha Aiyar) is – “to free or clear a
person from an obligation”.
This result manifests itself from the order
accepting the resignation because no reservation has been made by the
Government that the Respondent has to continue in service till any particular
time or till being relieved. Hence, in the instant case, there was no obligation
on the Government to write a formal letter that the Respondent has been
relieved. Even if such requirement had been there, in the case in hand it would
be an empty formality. The wholesome writ jurisdiction was not required to be
exercised in the facts of the present case keeping in view the conduct of the
Respondent in escaping away from his duties without obtaining leave when he
was only a temporary employee under probation.
13.
For the aforesaid reasons, we find no option but to set aside the order
and judgment of the High Court under appeal. We order accordingly. The
appeal is allowed and as a result, the writ petition of the Respondent shall stand
dismissed. In the facts of the case we pass no order as to costs.
..................................J.
[VIKRAMAJIT SEN]
...................................J.
[SHIVA KIRTI SINGH]
New Delhi.
July 21, 2014.
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