JUDGMENT
D.K. Seth, J.
1. The petitioner had submitted a resignation letter on 19th December, 1992 and another on 26th February, 1993. According to Mr. G.C. Gehrana these two resignation letters were conditional resignations in terms of Paragraph 218 of the Hydel Manual. The petitioner contends that he had learnt from the newspaper report that the resignation has been accepted, but according to Mr. Gehrana the conditions for the resignation were not redressed. According to him without redressal of the grievance there cannot be acceptance of any resignation. If the resignation is conditional in that event it has to be accepted alongwith the conditions and not without it. Therefore, according to him the order dated 29th March, 2000 on which the resignation was accepted cannot be sustained. He then contends that paragraph 218 provides for appeal. The alleged redressal of his grievance and acceptance of resignation being simultaneous, the petitioner is deprived of his right of appeal, since according to him on account of acceptance of his resignation the petitioner is no more an employee of the department and is not eligible to prefer an appeal. According to him there should have been time gap in order to enable the petitioner to prefer an appeal before the resignation is accepted. He then contends that acceptance of resignation is mala fide inasmuch as the petitioner was transferred but he was not paid his salary for long seven months, therefore, he had asked for payment of salary and transfer allowance in advance so as to enable him to join the transferred post. Subsequently, however, certain payments were made and transfer allowance were allowed and as soon as the petitioner was preparing to go on transfer his resignation was accepted. Thus, it appears that the order dated 29th March, 2000 is in fact a penalty and in disquise effecting a termination in the guise of acceptance of resignation. He further contends that the manner in which his grievances were sought to be redressed also reflects the mala fide on the part of the respondents. He further points out that on merit the orders to deal with the grievance of the petitioner are incorrect, arbitrary and against the principle of law. Therefore, the entire process was only a show emulating from bias on the part of the respondents. According to him it has affected his legal right which he can enforce through writ jurisdiction, when the statutory authority has acted in violation of statutory responsibility as well as in violation of the statutory provisions, namely paragraph 218 of the Manual. He further contends that unless the conditions are redressed, the authority concerned had no jurisdiction to accept the resignation. In case the resignation is not accepted in that event the petitioner had a right of appeal or to tender unconditional resignation himself.
2. Paragraph 218 does not empower the authority to accept the resignation without redressing the grievance. The redress meant for in paragraph 218 is actual redress and not a show of redress. On this ground he prays that the reliefs sought for in the writ petition should be allowed.
3. Mr. S.P. Mehrotra, learned Counsel appearing for the respondents on the other hand points out that the petitioner was absenting from his duties right from 19th December, 1992 till 20th February, 1995 and that after he was transferred he did not join the transferred post on one way or the other and in fact he absented himself from duties for which he was not entitled to any payment of salary. He further contends that the question which is being sought to be espoused through this writ petition refers to the redressal of the grievance with regard to the payment of salary fixation of scale and other consequential benefits which is available to him in service. These matters are already the subject matter of the proceedings before the Public Service Tribunal which is still pending. The petitioner for the same relief had moved writ petition No. 30434 of 1993, which was disposed of on 10th January, 1994, whereby it was held that the relief with regard to the salary from December, 1992 onward after revision of pay in the revised scale was subject matter of the procedings pending before the Public Service Tribunal, therefore, the arrears if any due to the petitioner may be claimed by him in his claim petition before the Public Service Tribunal and that the writ petition cannot be maintained in this Court so far as that relief is concerned. Therefore, according to him the petitioner cannot maintain this writ petition after decision dated 10.1.1994 contained in Annexure 4. He further contends that by reason of the ultimate order passed in the said decision the Board was directed to accept petitioner’s resignation if no disciplinary proceeding is pending against him. According to him the condition of acceptance of resignation was complete if no disciplinary proceeding was pending and the form of the order that was passed appears mandatory which has not been challenged by the petitioner. The second part of the order is not condition for acceptance of the resignation. The second part is a direction the Board to examine the grievance raised by the petitioner in his application date 3rd June, 1992, 19th December, 1992 as well as those in his letter of resignation dated 26th February, 1993. Therefore, according to him the petitioner cannot make out any grievance if his resignation is accepted and grievances are examined simultaneously. According to him in that event the petitioner may prefer an appeal. He further contends that it would make no difference if his resignation is accepted and if the petitioner is so aggrieved he may tender unconditional resignation in terms of paragraph 218 of the Manual. He also contends that the petitioner also filed Writ Petition No. 4057 of 2000. The said writ petition is still pending while the respondents were directed to consider the grievance of the petitioner regarding payment of salary. According to Mr. Mehrotra, some various amounts were paid to the petitioner on advance date which is apparent from the record. Mr. Mehrotra also contends that the petitioner moved another writ petition being Writ Petition No. 3303 of 1993 before the Lucknow Bench which was dismissed on 27th April, 1993 against the order of transfer. The petitioner had filed another writ petition being Writ Petition No. 37239 of 1999 since been disposed of on 1st September, 1999 a copy where or is annexed Annexure 9 to the writ petition by which the respondents were directed to take decision upon the representation of the petitioner which was made by him on 13th July, 1999. Pursuant to the order dated 1st September, 1999 petitioner’s representation was decided by order dated 29th March, 2000 which is Annexure 14 to this writ petition. The question of examination of the grievance of the petitioner in terms of the order dated 10.1.94 was also disposed of on the same date 29th March, 2000 which is Annexure 15 to this writ petition and the resignation was accepted in terms thereof with immediate effect namely from 29th March, 2000. Thus, according to him there is no infirmity in the whole process and the petitioner cannot claim any benefit out of the present proceedings.
4. I have heard both the learned Counsel at length. The fact that the petitioner was absent from his duties during the period 19th December, 1992 till 20th February, 1995 though apparent on the face of the record but this Court is not called upon to decide the same since this question may be gone into in the case before the Public Service Tribunal where the petitioner has already sought for his relief. But on the face of it might be contended by the respondents that the petitioner was absent from the duty for a long time, therefore, he cannot be entitled to salary for some time. It can also be contended by the respondents that the petitioner was transferred but did not join on the ground that certain payments were not made that might be a ground against the petitioner for claiming payment then again it appears that from the material produced before this Court various amounts were paid to the petitioner on diverse dates which fact is not in dispute. Since it is admitted in the writ petition itself as would be apparent from paragraph Nos. 22, 24, 31, 1, 33, 35 and 37 respectively. The petitioner has been making a grievance that the amount towards provident fund could not be deducted for income tax. The main grievance of the petitioner is with regard to the fixation of the pay and payment of arrears of pay as would be apparent from paragraph 31 and its sub-paragraphs and paragraph Nos. 47, 48 and 49. The statement made in paragraph No. 49 of the writ petition shows that he is claiming
gratuity and payment of G.P.F. as well as leave encashment which are available only after the retirement or resignation.
5. The petitioner had tendered resignation conditionally. Thus, tendering of resignation itself shows that the petitioner was not interested in continuing in the service coupled with the fact that he had absented himself for the long time and that he was not interested in joining the transferred post. Since his grievance with regard to the payment of arrears or otherwise were subject matter of the proceedings pending before the Public Service Tribunal and by reason of the decision dated 10.1.94, the same having been accepted as exclusive relief to be availed of by the petitioner from the Public Service Tribunal and the writ petition once having not been entertained it is no more open to the petitioner to maintain the second writ petition with regard to the same cause of action which is otherwise prohibited under Rule 7, Chapter XXII of the Allahabad High Court Rules. The finding given therein would operate as resjudicata, though the Code of Civil Procedure does not apply in a writ proceeding by virtue of Section 141 of the Code, yet the principle of resjudicata, which is a public policy is very much attracted even in a writ petition in order to bring finality to an adjudication. Therefore, the endeavour made by Mr. Gehrana with regard to the relief for payment of arrears and other benefits cannot be entertained in this writ petition. It is open to the petitioner to claim such releif before the Public Service Tribunal or through any other proceedings before such forum as would be available to him in law. Once this Court had held that this relief cannot be entertained so long as the proceeding is pending before the Tribunal and the same question cannot be gone into in a fresh writ petition, which is sheer abuse of the process of law. Mr. Gehrana contends that the proceeding before the Tribunal has been decided in favour of the petitioner allowing the relief claimed before the Tribunal and the decision of the Tribunal would become final unless the same is challenged according to the process or procedure available therefor. The said question cannot be gone into in this proceeding where the decision of the Tribunal is not under challenge. The order dated 10.1.1994 is clear to that extent. Mr. Gehrana contends that the decision of the Tribunal having been given in 1997 in favour of the petitioner, the petitioner is entitled to the relief with regard to the payment by virtue of the decision of the Tribunal and till the decision of the Tribunal as well as those that might be available to the petitioner thereafter. In my view this preposition does not appear to be sound inasmuch as the decision of the Tribunal is capable of execution and as such the petitioner has every right to obtain the relief through execution of the decision of the Tribunal. The writ jurisdiction cannot be utilised by the petitioner for the purpose of obtaining execution of the decision of the Tribunal. The High Court while exercising the writ jurisdiction does not act as Executing Court of the decision of a Tribunal subordinate to it if he has any claim after 1997. It is open to him to approach the appropriate authority for such determination of the application the same cannot be subject matter of this writ petition, where the main contention is with regard to the acceptance of the conditional resignation. According to him paragraph 218 of the Manual the resignation was submitted once on 19th December, 1992 and then on 26th February, 1993. Thus, the question involved in this writ petition has to be confined till the date of submission of resignation even if it is accepted about the last one in that event it would be till 26th February, 1993. The question arising thereafter cannot found subject matter of this writ petition since the question is with regard to the acceptance of the resignation on the basis of the conditions contained in the said letter of resignation. Even if any subsequent representation is made with regard to some other reliefs those cannot form part of the letter of the resignation even in the order dated 10.1.1994; the grievances were confined to the letters dated 3rd June, 1992, 19th December, 1992 and that of 26th February, 1993. Thus, the resignation has to be accepted on the basis of resignation letter either that of 19th December, 1992 or 26th February, 1993, whereas the grievance could be examined with regard to both the resignation letters alongwith the letter dated 3.6.92. The decision contained in Annexures 14 and 15 is in compliance of the decision dated 10.1.1994 and then the petitioner had made another representation on 13th July, 1999, which was directed to be decided by reason of the order dated 1st September, 1999, passed in Writ Petition No. .37239 of 1999. In compliance of this decision an order was passed on 29th March, 2000 which is contained in Annexure 12 to this writ petition relates to the claim of the petitioner after decision of the Tribunal but that is independent of conditional resignation and as such does not. come within the scope and ambit of paragraph 21 of the Manual and as such cannot be brought within the scope and ambit of this writ petition. If he is aggrieved he may approach the Public Service Tribunal or the Civil Court for the redressal of his grievance.
6. So far as the order contained in Annexures 14 and 15 are concerned, the question of acceptance of resignation is no more res-integra by reason of order dated 10th January, 1994, whereby the respondents were directed to accept the resignation of the petitioner, then again even if the petitioner is aggrieved in view of paragraph 218 of the Manual the petitioner has two remedies open, one is to prefer an appeal to the higher authority or to tender unconditional resignation. Thus, when the grievances were the subject matter of the Tribunal and has since been decided the question of preferring appeal with regard to those grievances does not survive. So far as acceptance of the resignation is concerned, if he is aggrieved that this resignation should have been accepted after redressal of his grievance that will make no difference since the remedy open to him was to tender unconditional resignation, therefore, the acceptance of resignation, levaves the petitioner nowhere.
7. Thus, the petitioner cannot make out any grievance with regard to the acceptance of resignation after the decision dated 10.1.94, so far as his grievance being conditions for resignation contained in the resignation letter dated 26th February, 1993 having been subject matter before the Public Service Tribunal has since been segregated by order dated 10.1.92 there is no scope for being aggrieved on account of failure to redress the grievance of the petitioner, since he had obtained redress by reason of decision of the Tribunal which was in favour of the petitioner. Thus the petitioner cannot maintain any grievance with regard to Paragraph 218 of the Manual vis-a-vis conditional resignation.
8. Now the petitioner has asked for redresnal of payment of arrears of salary since 1981 till date since he did not pray for it before the Tribunal. This question was open to him to be agitated before the Tribunal if he has not done so and had confined his claim since 1992 in that event it has to be presumed that the petitioner had waived the said claim and cannot reagitate the same any further, even in the decision dated 10.1.94 the petitioner did not ask for the relief with regard to the arrears since 1981 The third relief with regard to the time scale and other matters referred to in the third prayer also cannot be reagitated in view of the fact that this matter relates to the period 1983 and 1989 which could be the subject matter of the proceedings before the Tribunal initiated in 1993. So for as 1994 is concerned the same could also be included in the said proceedings which were decided in 1997. Even if it was not included in that event it would be open to him to agitate the same before the
apprpriate forum, if permissible in law but that question cannot be brought within the scope and ambit of this writ petition. The question of interest made in prayer 4 being consequential can no more be available independent of the other prayers. So far as prayer No. 5 is concerned the petitioner had tendered resignation and the same having been accepted the petitioner cannot claim the relief of continuation in service.
9. The fact remains that the petitioner on the one hand has claimed certain reliefs as well as tendered his resignation and on the other hand he was not attending his duties and remained absent for a long time. Even if assuming but not admitting this fact to be true then also prima facie it does not appear that the petitioner can raise any grievance in a writ jurisdiction, wherein disputed questions of fact cannot be gone into and it would be the Tribunal which would be the appropriate forum, where such disputed questions of fact can be gone into. Therefore, on that ground also the petitioner cannot claim any relief in this proceeding.
10. Mr. Gehrana also pointed out that from Annexures 12 and 14 that purported redressal of the grievance are in fact baseless, arbitrary, incorrect and mala fide. This again relates to the determination of the disputed question of facts, which cannot be gone into in writ proceedings. Over and above the question related to paragraph 218 of the Manual with regard to the conditional resignation as such this Court is called upon to confine itself within the scope and ambit of paragraph 218 and not beyond it. As such whether the order is good, bad or indifferent is not the question to be gone into by Court. It has to be examined as to whether the acceptance of the resignation can be justified in view of paragraph 218 of the Manual having regard to the facts and circumstances of the case.
11 As observed earlier it is apparent that it does not violate the prvoisions contained in Paragraph 218 of the Manual. Paragraph 218 of the Manual reads as under:
“218. Conditional resignation, that is, when an Officer couples, with a request for leave or for redress of some sort, an offer to resign his appointment if the leave or redress asked for be not granted, should ordinarily not be accepted. Orders should be passed only in regard to the application for leave or redress. If the officer is dissatisfied with the orders passed if is open to him to appeal to higher authority or to tender an unconditional resignation.”
12. A plain reading of the said paragraph shows that if the resignation is not accepted and he becomes dissatisfied with the non-acceptance he may prefer an appeal or he may tender unconditional resignation. The said proceedings provides that when an officer joins his request for leave or for redress of some sort with an offer to resign if the leave or redress asked for is not granted such conditional resignation should not be ordinarily accepted. This provision does not prohibits the acceptance of conditional resignation altogether. It used the expression that the conditional resignation shall not be accepted ordinarily. If it is accepted even then it cannot be said that it is
accepted without the authority. In the present case the redress has since been granted by refusing the grievance. Therefore, the petitioner could have a remedy either to prefer an appeal or to tender unconditional resignation. Since there was no scope for preferring an. appeal against his grievance, which are already allowed by the Tribunal, therefore, the only question remains the question of acceptance of resignation. The question would have been otherwise, but for decision dated 10.1.94, which was invited by the petitioner himself and was accepted by him since not been challenged, the direction contained therein for acceptance of resignation is final and binding. There is no alternative for this Court to support such acceptance of the resignation so long the order dated 10.1.94 remains in force. Now so far as the examination of his grievance are concerned the same having been allowed by the Tribunal there was no necessity to examine the grievance but still this grievance has been examined and certain orders have been passed it is not open to this Court to examine the merits of this decision as contained in Annexures 14 and 15 as the case may be. If the petitioner is aggrieved he may avail of the remedy open to him either before the Tribunal or before the Civil Court as the case may be, after the order dated 10.1.94 the petitioner had lost all rights with regard to the question of acceptance of resignation which was the mandate issued in the order dated 10.1.94 since invited/obtained/accepted by the petitioner himself. Thus, even if there might be any infirmity so long not appearing in the orders contained in Annexures 12 and 14 the same cannot be a ground for questioning the acceptance of resignation and the order that has been passed in the proceedings by the competent passed in the proceedings by the competent Court of jurisdiction remains valid and operative between the parties irrespective of its being good, bad or indifferent so long as it remains in force.
13. Thus, I do not find any merit in this writ petition, therefore, the writ petition is dismissed.
14. No costs.