IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 5-7-2007 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.31937 of 2005 1. D. Mugunda Babu (deceased) 2. M. Mohan Babu 3. M. Krishnaveni 4. Mohana Selvi ... Petitioners (Petitioners 2 to 4 are substituted as LRs. of deceased sole petitioner as per order of the Court dt.6.4.2006 in WPMP No.10875/2006) Vs. 1. The Government of Tamil Nadu, rep.by its Commissioner and Secretary, Health and Family Welfare Department, Madras - 9. 2. The Director of Public Health and Preventive Medicines, Madras - 6. ... Respondents This writ petition came to be numbered under Article 226 of Constitution of India, by way of transfer of O.A.No.335 of 1995 from the file of the Tamil Nadu Administrative Tribunal, with a prayer to direct the respondents to permit the deceased first petitioner to join duty as Exhibition Assistant in the Health Education Bureau Wing of the second respondent or to permit the deceased first petitioner to retire from service and direct the respondents to pay all the pensionary benefits to which the deceased first petitioner is entitled to inclusive of gratuity, G.P.F., Leave Salary, etc. For Petitioners : Mr.R.N.Amarnath For Respondents : Mr.I.Paranthaman, Addl.Govt. Pleader O R D E R
Prayer in this writ petition is to issue a writ of mandamus directing the respondents to permit the deceased first petitioner to join duty as Exhibition Assistant in the Health Education Bureau Wing of the second respondent and to permit him to retire from service with a further direction to the respondents to pay all pensionary benefits inclusive of gratuity, GPF, leave salary, etc.
2. The case of the petitioners is that the deceased first petitioner was appointed as Craftsman in the Health Education Bureau under the Directorate of Public Health Department on 1.1.1962 and subsequently promoted as Exhibition Assistant in 1969. After working for about eight years in the said capacity, on 22.9.1977 he submitted a letter of resignation to the Director of Public Health and Preventive Medicine, Chennai, through the Technical Assistant of the Directorate. The resignation letter was given on health reasons and also due to family circumstances. On 29.10.1977, petitioner received a memo from the second respondent stating that he should remit a sum of Rs.40/- being festival advance due to the Government and according to the affidavit filed by the deceased first petitioner, the same was also remitted and communicated by letter dated 19.1.1978. The deceased first petitioner also handed over the tools and materials available with him to the Craftsman by name T.G.Santhanakrishnan on 15.2.1978.
3. It is the further stated in the affidavit that even after compliance of the directions, he did not receive any reply intimating acceptance of resignation. As his health and family situation improved, on 23.2.1994 petitioner submitted a representation to the first respondent to cancel his resignation letter and allow him to continue as Exhibition Assistant in the Health Education Bureau Wing. No reply having been received even though the request was acknowledged by the first respondent on 28.2.1994, he filed O.A.No.335 of 1995 and the same is transferred to this Court and numbered as the above writ petition.
4. The date of superannuation of the deceased petitioner is stated as 30.4.1995. The original application was filed on 2.9.1995, even though in the application it is stated that the date of filing is 5.10.1994. From the above dates it is clear that the application was filed by the deceased first petitioner long after his date of superannuation i.e. on 30.4.1995.
5. The respondents filed counter affidavit on 27.5.1996 before the State Administrative Tribunal wherein it is stated that the deceased first petitioner has tendered his resignation on 22.9.1977 and he stayed away from duty with effect from 25.9.1977 without getting relieved from the office. He has given an undertaking on 12.10.1977 to the effect that he is fully aware of the consequences of the resignation and will not claim the post in the Public Health and Preventive Medicine Department in future and also remitted Rs.40/-, outstanding festival advance and furnished challan evidencing the same. It is further stated that in respect of the repeated instructions, the deceased first petitioner failed to furnish details and charge of the post. An audit objection was raised against the petitioner as per the Accountant General’s Audit report and a memo was forwarded to the petitioner, which was returned by the postal authorities, stating that the petitioner is not available in the given address. Since then the deceased petitioner’s whereabouts are not known and therefore audit objections also could not be cleared by effecting recoveries. However the said amount of Rs.1,272/- was recovered from the immediate superior officer of the deceased first petitioner. It is further stated in the counter affidavit that he could neither be contacted, nor he has furnished his correct address and the application submitted on 23.2.1994 withdrawing the resignation is only an afterthought, which lacks bona fide. It is also stated in the counter affidavit that the post of Exhibition Assistant in the Tamil Nadu Public Health Subordinate Service, which fell vacant from 25.9.1977 due to unauthorised absence of the deceased first petitioner was filled up by a candidate selected by the Tamil Nadu Public Service Commission during July, 1985, and as such, there is no post available and due to want of clearance of audit objection, his resignation could not be considered and the request to treat his resignation letter dated 22.9.1977 as a letter of voluntary retirement from service also could not be complied with.
6. The learned counsel for the petitioner submitted that the deceased first petitioner’s resignation letter having not been accepted even according to the counter affidavit filed by the respondents and no disciplinary proceeding having been initiated against him till his date of superannuation i.e., on 30.4.1995, the deceased first petitioner shall be treated to have been in service and he is entitled to get all terminal benefits. The learned counsel further submitted that even though the prayer in the writ petition is for direction to permit the petitioner to join duty and for consequential direction to pay the retirement benefits, this Court can mould the relief by treating the deceased first petitioner as retired from 30.4.1995 and can direct to pay all the pensionary benefits.
7. The learned Additional Government Pleader for the respondents submitted that the deceased first petitioner had submitted letter of resignation on 22.9.1977 and he has remitted the amount of Rs.40/- as directed, which is a pre-requisite for accepting the resignation. The deceased petitioner having kept quiet from 1977 to 1994 and having been absent unauthorisedly from 22.9.1977, the department filled up the post by selecting a person through the Tamil Nadu Public Service Commission in July, 1985. It is further submitted that the request of the petitioner to seek withdrawal of resignation and permission to join duty made on 23.2.1994 lacks bona fide and therefore the petitioners are not entitled to get any relief in this writ petition.
8. I have considered the rival submissions made by the learned counsel appearing for the petitioner as well as the learned Additional Government Pleader appearing for the respondents.
9. From the averments contained in the affidavit as well as counter affidavit, it is clear that the deceased petitioner worked in the Health Department from 1.1.1962 to 22.9.1977, on which day he submitted his letter of resignation. Admittedly he has not worked thereafter. As per the counter affidavit the resignation letter has not been accepted and the reason for not accepting the resignation till the date of his superannuation on 30.4.1995, is stated in paragraphs 12 to 14 of the counter affidavit, which reads as follows,
“12. If he had given his correct address to the Director of Public Health and Preventive Medicine, acceptance of his resignation would have been sent to him on settlement of audit report, after recovering the amount due from him for the missing tolls and materials.
13. In view of the circumstances explained above, the resignation tendered by the Thiru D.Mugunda Babu, the then Exhibition Assistant could not be accepted.
14. Hence the request of the applicant treating his resignation letter dated 22.9.77, as cancelled and reinstating him in service so as to enable him to retire from service on superannuation with effect from 30.4.95 cannot be complied with.”
(Emphasis supplied)
The deceased petitioner also kept quiet from 1977 to 1994 and due to his non-reporting to duty from 23.9.77, the department filled up the post through Tamil Nadu Public Service Commission in July, 1985 itself.
10. In the light of the above uncontroverted facts, it has to be decided as to whether the acceptance of resignation is mandatory or not as per the rule prevailed then.
11. Rule 41-A of the Tamil Nadu State and Subordinate Service Rules deals with acceptance of resignation, which reads as follows,
“41-A. Acceptances of resignation.- (a) The resignation of a member of a service shall not be accepted, if it has been withdrawn by him before orders accepting the resignation are actually issued.
(b) The resignation of a member of a service shall be accepted either prospectively or retrospectively as decided by the authority competent to accept the resignation.”
(Emphasis supplied)
A perusal of the above rule makes it clear that resignation of a member of the service shall not be accepted if it has been withdrawn before orders accepting resignation is passed and the resignation of a member of the service shall be accepted either prospectively or retrospectively as decided by the authority competent to accept the resignation. Therefore, acceptance of resignation is mandatory under Rule 41-A.
12. The above said rule was in force till 17.6.1998 and as per the amended rule, three months notice is mandatory and withdrawal of resignation could be made before it is accepted, and if no order is passed, the resignation shall be deemed to have been accepted on the expiry of the period of notice. The requirement of giving three months notice and if no order is passed, resignation shall be deemed to have been accepted on the expiry of the period of notice is not found in the then existed rule, extracted above, which was governing acceptance of resignation of a Government servant till 17.6.1998. Admittedly no deemed acceptance of resignation was contemplated under the previous rule as stated supra.
13. It is the specific case of the first respondent that the resignation tendered by the deceased first petitioner could not be accepted due to non-settlement of the audit report. Since deemed acceptance of resignation provision was not available under Rule 41-A, as on 22.9.1977 the respondents are bound to pass orders either accepting or rejecting the resignation letter. It was up to the respondents to accept resignation even retrospectively as per the then existed rule. However, no order either rejecting or accepting resignation prospectively or retrospectively is passed till date. Hence petitioner cannot be treated as resigned from the post from 22.9.1977 due to the inaction on the part of the respondents.
14. The deceased first petitioner is also not justified in requesting to permit him to join duty in the year 1994 after a lapse of more than 16 years. The respondent department is also justified in filling up the post through Tamil Nadu Public Service Commission in July, 1985. Thus, there is inaction not only on the part of the respondents but also on the part of the deceased petitioner. However, the fact remains the rule with regard to acceptance of resignation as required under rule 41-A was not complied with by the respondents.
15. The Honourable Supreme Court considered similar issue in the decision reported in 2003 AIR SCW 3297 (North Zone Cultural Centre v. Vedpathi Dinesh Kumar) wherein also similar acceptance of resignation was considered and non-communication of the acceptance was challenged by the Government Servant, wherein it was held that non-communication cannot be a reason to withdraw the resignation and rejoin duty. In paragraphs 15 and 16 the Honourable Supreme Court held as follows,
“15. In our opinion, both these grounds are unsustainable in law. This Court in Raj Kumar’s case (AIR 1969 SC 180) held:
“When a public servant has invited by his letter of resignation the determination of his employment, his service normally stands terminated from the date on which the letter of resignation is accepted by the appropriate authority and, in the absence of any law or statutory 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. Undue delay, in intimating to the public servant concerned the action taken on the letter of resignation, may justify an inference that the resignation had not been accepted.”
16. Therefore, it is clear that non-communication of the acceptance does not make the resignation inoperative provided there is in fact an acceptance before the withdrawal.”
16. In the case on hand, even according to the counter affidavit filed by the respondents, the resignation letter for acceptance could not be considered in view of the pending audit objection and even after recovery of the said amount, nothing prevented the department to communicate the acceptance of resignation either prospectively or retrospectively. On the contrary, a specific stand is taken in the counter affidavit to the effect that the resignation letter could not be accepted. Hence I am of the view that as per the then existed rule 41-A, deceased first petitioner’s service shall not be taken as deemed to be resigned. There was audit objection pending against the deceased first petitioner for a sum of Rs.1,272/- and according to the counter affidavit the said amount has been recovered from the higher officer. The deceased first petitioner also has not chosen to withdraw the resignation letter and report for duty within a reasonable time. Withdrawal of resignation was made only after 16 years, that too on the verge of his superannuation date. Further, the post was also filled up by the respondents after selecting a person through TNPSC in July, 1985.
17. Taking note of all the above facts and the mistakes committed by the petitioner as well as respondents and in view of the fact that the deceased first petitioner died on 13.9.2005, I am of the view that the interest of justice would be met by treating the deceased first petitioner as compulsorily retired from service from 22.9.1977. By adopting such a course, the person appointed in petitioner’s place will not be affected; the request of the deceased petitioner to rejoin duty after 16 years of his admitted silence need not be entertained; no prejudice will be caused to the department even though it failed to accept the resignation letter as per the statutory requirement under Rule 41-A of the Tamil Nadu State and Subordinate Service Rules as it stood prior to 1998. It is made clear that the said order is passed solely based on the rule position viz., Rule 41-A, which is a statutory requirement, which the respondents failed to comply with. In view of the order passed treating the petitioner as compulsorily retired from 22.9.1977, petitioners are entitled to get the eligible pension considering the services rendered by the deceased petitioner from 1.1.1962 to 22.9.1977 and consequential retirement benefits. The respondents are directed to work out the retirement benefits payable to the deceased petitioner from 23.9.1977 till 13.9.2005, the date of his death and thereafter family pension to the widow of the deceased petitioner (third petitioner herein) and pay the same within a period of twelve weeks from the date of receipt of copy of this order.
The writ petition is disposed of with the above directions. No costs.
Index : Yes/No.
Website : Yes/No. 5-7-2007 vr To 1. The Commissioner and Secretary, Health and Family Welfare Department, Madras - 9. 2. The Director of Public Health and Preventive Medicines, Madras - 6. N. PAUL VASANTHAKUMAR, J. Vr Pre-Delivery Order in W.P.No.31937 of 2005 5-7-2007