Allowed

Sudershan Kumar Gupta v. F.C.I.& Ors.

Punjab & Haryana HC16 Apr 2012CWP/14863/1993

Case brief

AI extract

What is this about?

This High Court allowed a writ petition, holding that an employee could withdraw a resignation before the stipulated effective date and the employer could not unilaterally accelerate acceptance. The court ordered regularisation of the petitioner's service and payment of arrears.

What did the court decide?

Writ petition allowed; petitioner entitled to regularisation, increments, arrears of salary (50% for specific period), pension, gratuity, and terminal benefits calculated within 8 weeks.

Sudershan Kumar Gupta Vs F.C.I.& Ors. — Pension and Retirement Benefits | Punjab & Haryana HC (2012)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Writ Petition No.14863 of 1993 (O&M) Date of decision: 16.04.2012

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Sudershan Kumar Gupta son of Shri Atma Ram Gupta, Technical Assistant Grade-I, in the Food Corporation of India, Bathinda.

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...Petitioner

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versus

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The Food Corporation of India, through its Managing Director, FCI Headquarters, 16-20, Baran Khamba Lane, New Delhi, and others.

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....Respondents

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CORAM: HON’BLE MR. JUSTICE K. KANNAN

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Present: Mr. G.S. Bal, Advocate, and Mr. Keshav Gupta, Advocate, for the petitioner.

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Ms. Neelofar A. Perevesh, Advocate, for the respondents.

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Whether reporters of local papers may be allowed to see the judgment ? Yes.

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To be referred to the reporters or not ? Yes.

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Whether the judgment should be reported in the digest ? Yes.

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----

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K.Kannan, J.

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The petitioner challenges the order passed by the Senior Regional Manager of the Food Corporation of India (for short, FCI), arrayed as 2nd respondent, rejecting the claim for regularization of the services during the disputed period, namely, the period of absence when the petitioner had submitted a letter of resignation which he later withdrew. The facts as stated in the petition are as follows.

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Civil Writ Petition No.14863 of 1993 (O&M) - 2 -

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The petitioner, while serving as Technical Assistant Grade-I at FCI, SFSC Lab, Bhatinda, submitted a letter of resignation on 24.05.1988 seeking to be relieved w.e.f. 31.08.1988. The petitioner withdrew his resignation on 30.08.1988, that is, before the expiry of the stipulated date i.e. 31.08.1988. The letter dated 30.08.1988 withdrawing the letter of resignation submitted to the District Manager appears to have been forwarded to the Senior Regional Manager on 30.08.1988 itself, but in spite of the withdrawal letter, the District Manager purported to pass an order dated 31.08.1988 accepting his resignation and relieving him in the afternoon of 31.08.1988. The petitioner would claim that he was prevented from marking his presence after 31.08.1988, although the petitioner would claim that he repeatedly went to the office to attend the office. It appears that after several representations remonstrating at the respondents' conduct in not allowing him to resume duty, the petitioner was finally allowed to join duty at Bhatinda on 23.09.1991. However, at the time when an order was issued on 23.09.1991, it was stated that the competent authority had ordered that the period of absence would be regularized by granting him 'leave of the kind due'. The petitioner ultimately joined duty on 23.10.1991 in the afternoon.

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The petitioner's grievance is that the period from 31.08.1988 to 22.10.1991 had been treated as break in service and did not grant to him the increments for the said period. He was also

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denied the salary payable to him for no fault of his. This period was also not taken into reckoning for conferring to him the future increments due after 23.10.1991. For the said period, he had been granted 120 days of earned leave, 188 days of half pay leave and 840 days of extraordinary leave (without pay). This period was also being excluded for payment of gratuity, pension etc. and other retiral benefits. The petitioner would contend that the manner of making a provision for extraordinary leave could not be granted without the consent of the employee himself and the treatment of the said period as extraordinary leave was, therefore, against the provisions of law. The contention of the petitioner is resisted by the respondents by contending that the Senior Regional Manager had accepted resignation even on 29.09.1988 and the withdrawal of resignation admitted to have been received by the District Manager on 31.08.1988 had itself been communicated only on 07.09.1988. The letter of withdrawal of resignation had not been initialled by the District Office, FCI that it was received on 30.08.1988. The moment the resignation letter was accepted by the Senior Regional Manager on 29.08.1988, the withdrawal of the resignation made on a subsequent day i.e. on 30.08.1988 could not take effect. There was really no provision for withdrawal of resignation letter, but on consideration of the appeal/representation given by the petitioner to the Zonal Manager, the Management took a sympathetic consideration and allowed for the withdrawal of resignation, with a

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condition that the period of absence would be regularized as 'leave of the kind due'. The respondents would contend that Regulation 23 of the FCI Staff Regulations did not contemplate any consent of the employee before the grant of extraordinary leave. When the petitioner had accepted a letter permitting the withdrawal of resignation and rejoined duty, he cannot selectively reject the conditions imposed at the time when the order was passed in his favour allowing him to rejoin such duty and giving him the benefit of withdrawal of the resignation letter.

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The whole issue would turn on whether the letter of resignation sent by the petitioner to be effective from 31.08.1988 could take effect even without any acceptance from the respondents and whether the petitioner had a right to withdraw his resignation before the date when the resignation was to take effect, namely, on 31.08.1988. If the letter of resignation was irrevocable and could be treated as accepted by any of the Regulations to be effective from a particular date mentioned, then a letter of withdrawal of resignation would have no value. On the other hand, if the letter of resignation was required to be accepted in order to give effect to it, the issue that has to be examined further is whether the employer could accelerate the acceptance before the day when it was to be effective, that is, before 31.08.1988 in the manner that was sought to have been done in this case on 29.08.1988 itself.

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The petitioner has relied on fairly a large body of case law to contend for the position that a resignation could be withdrawn prior to the date when it is to take effect. In Union of India etc. Versus Gopal Chandra Misra and others-AIR 1978 Supreme Court 694 , the Hon'ble Supreme Court was considering the issue of a High Court Judge, who sent a letter to the President intimating his intention to resign from the office from a future date. I would not find any reason to go at length to consider this case, for, the resignation from the post of a High Court Judge is determined by the constitutional provisions themselves, but the appointment to the post in FCI would have to be examined in the light of its own Regulations and not by reference to the constitutional provisions that governs the service of a High Court Judge. This is particularly so because by virtue of Article 217(1) proviso (a), there is a unilateral right or privilege for a High Court Judge to resign his office and the resignation would become effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. It requires no acceptance from any person. In such a situation, if under the terms of writing addressed to the President, he resigns his office in praesenti, the resignation would terminate his office tenure forthwith. If, on the other hand, by such writing, a Judge chooses to resign from a future date, the act of resigning the office itself will not be complete because it does not terminate his tenure before such date and the Judge could at any time before the

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arrival of that prospective date withdraw it because the Constitution did not bar such withdrawal.

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In Balram Gupta Versus Union of India and another-

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AIR 1987 Supreme Court 2354 , the Hon'ble Supreme Court was considering the issue of a notice of 3 months required to be given by an employee for voluntary resignation. The employee had withdrawn the notice within the time prior to the expiry of the notice period. The order, which was passed to retire prospectively on the expiry of the notice period without allowing the withdrawal of the notice of resignation, was found by the Hon'ble Supreme Court to be illegal. This decision was by examination of the relevant rules under the Central Civil Services (Pension) Rules of 1972. Section 48-A of the Rules provided for retirement on completion of 20 years' qualifying service. The said provision allowed for giving of notice not less than 3 months in writing to the appointing authority to retire from service. Sub-rule (2) specifically provided that notice of voluntary retirement given under sub-rule (1) would require acceptance by the appointing authority and proviso stated that if the appointing authority did not refuse to grant the permission for retirement, the retirement shall be effective from the date of the expiry of the said period. Sub-rule (4) of Rule 48-A prevented withdrawal of resignation letter except with the approval of the authority. While considering whether the withdrawal could be made in terms of sub-rule (4), the Hon'ble Supreme Court ruled that the

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issue to be raised in such a case where there existed a provision for withdrawal to be effective only if the withdrawal of resignation was approved by the authority, was not what prompted the employee to seek for withdrawal but essentially what prompted the authority to withhold the withdrawal. Adverting to the administrative guidelines which provided that ordinarily permission for withdrawal was to be granted, unless the officer concerned was in a position to show that there had been a material change in the circumstances in consideration of which the notice was originally given, the Supreme Court observed that the employee was giving a particular reason, namely, of persistent and personal requests of the staff members that he dropped the idea of seeking voluntary retirement. The Hon'ble Supreme Court observed that there was no reason why this could not be treated to be good and valid reason. The Court further observed that “in the modern age, we should not put embargo upon people's choice or freedom. If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant's offer to retire and withdrawal of the same happened in so quick succession that it could not be said that any administrative set up or arrangement was affected.”

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In Punjab National Bank Versus Sh. P.K. Mittal-1989

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(1) RSJ 391 , the Hon'ble Supreme Court was considering the case of the letter of resignation sent by an employee on 21.01.1986 due to

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personal reasons. He had added in that letter that date of receipt of letter should be treated as the date of commencement of notice period, so that his resignation would become effective from 30.06.1986. The Bank sent a letter that was received by the employee on 07.02.1986 that his resignation had been accepted with immediate effect. The employee sought to withdraw his resignation on 15.04.1986 and contended that the letter of acceptance issued by the Bank and received on 07.02.1986 to take effect with immediate effect was bad in law. The Hon'ble Supreme Court affirmed the decision of the High Court and held that an employer did not have a power to accelerate the resignation to be effective from a date earlier to a point of time to a date specified by the employee himself. The Court observed that the resignation of the employee could be made effective only w.e.f. 30.06.1986 since that was the date when the petitioner had sought retirement to be effective and the resignation could not be accepted before that date and made effective by a stipulation that the petitioner would be paid salary for the remaining period. The Court further observed that even the receipt of salary that was sent along with letter of acceptance would not bar him from contending that the acceptance of resignation was bad.

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I have not been shown through any of the Regulations that allowed for any particular manner of acceptance of resignation or any Regulation that allowed for the resignation to be irrevocable and that it required no acceptance from the employer. In such a

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Civil Writ Petition No.14863 of 1993 (O&M)

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situation the decision of the Hon'ble Supreme Court in Balram Gupta's case and the still later decision in Punjab National Bank's case , referred to above, squarely govern the issue that the petitioner could not be kept away from rejoining duty and prevented from withdrawing his letter of resignation. If the respondents themselves had resiled later and allowed the petitioner to rejoin duty, the period when he was not allowed to join duty must be taken as a period when he was prevented from joining duty in spite of the willingness to rejoin duty. The refusal was untenable and the petitioner is entitled to treat the entire period as having been spent on duty. The denial of increments during the said period as also the terminals benefits to be calculated on such a basis is equally untenable. If the petitioner should be faulted for any reason for tendering his resignation and keeping it pending on the respondents till the last date on 30.08.1988, I would hold that during the period when he was not in service, he should be denied some portion of his salary and the said period shall be treated as duty period and he would be entitled to all the increments, but he would draw only 50% of the salary due to him. He shall also be entitled to a reckoning of the increments notionally in so far as they are relevant for calculation of the terminal benefits. The arrears during the period of absence shall be calculated and released to the petitioner within a period of 8 weeks from the date of receipt of copy of this order. The arrears of pension, gratuity and any other terminal benefits payable for the said

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Civil Writ Petition No.14863 of 1993 (O&M)

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10 -

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period shall also be calculated and released to the petitioner within

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the same period referred to above.

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The writ petition is allowed on the above terms.

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(K.KANNAN) JUDGE 16.04.2012 sanjeev

Sudershan Kumar Gupta v. F.C.I.& Ors.

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Sudershan Kumar Gupta v. F.C.I.& Ors.

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