ORDER
1. The proceedings dated
7-12-1990 on the file of the respondent herein purporting to accept the resignation of the petitioner is challenged in this writ petition on various grounds. The petitioner also prays for a declaration declaring that he is entitled to continue in service upto the age of superannuation and further declaration that the action of the respondent in proposing to recover the amount of encashment of leave paid to him from out of his gratuity amount etc., as illegal.
2. It may be necessary to notice few relevant facts; The petitioner joined the respondent-Corporation as a Manager. It appears that the post of Managers were split up into various grades after the petitioner joined the services of the Corporation and the petitioner continued as Manager Grade-I. The post is Class I post and all Class 1 posts in the Corporation are Executive posts.
3. The petitioner submitted his resignation from the post on 26-9-1990, white he was working as Warehouse Manager Grade I at Vedayapalem in Nellore District. According to the petitioner he was suffering from Cataract and Hernia and advised to undergo operation. He was not aware that he was entitled to medical leave. He had Earned leave of 164 days to his credit. But the authorities told him that he was not entitled to apply for Earned leave for undergoing operation and it is under those circumstances, he submitted his resignation. According to him, the resignation will come into effect only with effect from 25-12-1990 as per the Regulations of the Corporation. The Regulations are known as A.P. State Warehousidng Corporation Employees Regulations, 1965 (for short the
Regulations’). At the relevant time, the petitioner had another one and half years of service. He was drawing a total emoluments of Rs.5,534-20 Ps. per month.
4. It may be necessary to notice Regulation 11 of the said regulations which says that” an employee shall not leave or discontinue his service in the Corporation without first giving one month’s notice in writing of his intention to do so to the Managing Director.
Provided that three months’ notice shall be necessary in the case of Category I employees.
(2) In the case of a breach of this regulation, the employee shall be liable to pay to the Corporation as compensation, a sum equal to his substantive pay for the said period of notice.
Further provided that the payment of such compensation may be waived by the Managing Director in his discretion.”
5. According to the petitioner, he submitted a representation on 7-12-1990 before the expiry of three months notice period withdrawing his resignation. The respondent-Corporation issued proceedings dated 7-12-1990 purporting to accept the resignation of the petitioner and communicated the same to the petitioner and stated to have been received by him on 24-12-1990. According to the petitioner, he had already withdrawn his resignation before receiving the proceedings accepting his resignation on 24-12-1990. The petitioner again made a representation on 24-12-1990 stating that his resignation should be treated as withdrawn and cancelled. The petitioner, accordingly prayed for grant of medical leave for 45 days from 16-12-1990.
6. It is the case of the petitioner that even if his resignation deemed to have been
accepted, the same has to be treated as voluntary retirement and he is entitled to all the benefits to be paid to an employee who is retiring from service. The respondent-Corporation’s action in refusing to permit the petitioner to encash leave is also questioned by the petitioner.
7. It is under those circumstances, the petitioner prays for an appropriate writ virtually seeking a declaration as if he continued to be in service until he attains the age of superannuation notwithstanding his letter of resignation dated 26-9-1990.
8. The counter-affidavit filed by the respondent-Corporation and the record would disclose that the petitioner submitted his resignation letter on 26-9-1990 which reads as follows:
“1 submit, I resign to the post of Warehouse Manager. I request kindly accept and approve my resignation.”
This was followed by another letter dated 4-10-1990 reiterating his request and giving further reason as to why he proposed to leave the organisation and with a further request to approve his resignation and “send substitute to take charge of Vedayapalem Warehouse.” This was received in the office of the Corporation on 8-10-1990. The petitioner’s resignation was however, accepted by the Managing Director of the Corporation on 6-12-1990 itself with effect from the date of his relief at Vedayapalem Warehouse. The petitioner handed over the charge to his substitute on 15-12-1990. The petitioner’s representation purporting to withdraw his resignation dated 7-12-1990 reached the office of the Managing Director only on 18-12-1990. The petitioner’s representation dated 24-12-1990 once again requesting the Managing Director to treat his resignation as withdrawn and to grant medical leave for 45 days from 16-12-1990 reached the office of the Corporation on 26-12-1990.
9. It is the case of the respondent-Corporation that it is obligatory on the part of the employee concerned to give three months prior notice to the Corporation expressing his intention to resign from service. But the Corporation is not bound to keep the letter of resignation pending during that period. It is also the case of the Corporation that there was no provision for any voluntary retirement provided for under the Regulations and therefore, the petitioner is not entitled to encash leave to his credit and no amount is liable to be paid towards Earned leave at his credit. The Corporation is entitled to recover dues, if any, from the petitioner in accordance with the Rules and Regulations of the Corporation.
10. Sri M. Panduranga Rao, learned Counsel for the petitioner submits that an employee is entitled to withdraw his resignation before it is actually accepted by the employer and communicated such acceptance to the employee. At any rate, the employer in this case could not have accepted the resignation of the petitioner until the expiry of three months notice period as admittedly the petitioner withdraw his resignation much before the expiry of the notice period.
11. Smt. Meenakshi, learned Standing Counsel appearing on behalf of the Corporation contends that the Corporation had accepted the resignation of the petitioner on 6-12-1990 and proceedings were-issued on 7-12-1990 itself and admittedly the petitioner handed over the charge and got himself relieved on 15-12-1990. Therefore, he is not entitled for any relief. Learned Standing Counsel would submit that this writ petition itself is the result of an after thought on the part of the petititoner.
12. Sri Vedula Srinivas appeared as amicus curios at the request of the Court and readily agreed to assist the Court. Learned amicus curiae would submit that the intention of the employee as expressed
in the resignation letter would be very vital to consider the question as to whether and from what date the resignation would come into effect. In a given case the resignation letter itself may suggest as if an employee himself is requesting for dispensing with any formalities including mandatory notice period.
13. Various decisions are cited across the bar. The law on the subject is not res ititegra. It is true, the Apex Court took the view that there is practically no distinction between the resignation and voluntary retirement, as the result effect ofboth the voluntary retirement as well as the resignation is the cessation of relationship of an employer and employee between the parties. The effect of resignation or voluntary retirement is unilateral termination of the relationship of employer and employee. The observations made by the Supreme Court in Balram Gupta v. Union of India,, , that a notice of voluntary retirement may stand at par with letter of resignation is required to understood in the back-ground of the Central Civil Services (Pension) Rules, 1972. The effect of voluntary retirement and resignation resulting in cessation of employer and employee relationship may be the same. The said decision does not support the broad submission made by the learned Counsel for the petitioner as if there is no distinction between volunatry retirement and resignation. In a given case, the difference, if any, may depend upon setting of the Rules governing the resignation as well as voluntary retirement. This aspect need not detain us any further, as admittedly, there is no provision under the regulations with which we are now presently concerned for any voluntary retirement. It is settled law that the resigning office necessarily involved relinquishment of the office which implies cessation or termination of, or cutting as under from the office. In Balram Gupta’s case (supra) the very letter of resignation dated 24-12-1980 by the employee was come into operation with effect from 31-3-1981 as per the contents of the resignation letter.
It is under those circumstances, the Supreme Court held that the employee therein is entitled to withdraw his resignation on any day prior to 31-3-1981. It was permissible for the employee to withdraw his resignation before its acceptance by the employer and the employer could not have accepted the resignation prior to 31-3-1981. Such is not the case on hand. More about it later.
14. The decision in D. Sundara Rao v. Visakhapatnam Port Trust, Visakhapatnam, 1974 JLR 488, upon which reliance is placed by the learned Counsel for the petitioner would also not render any assistance whatsoever and support the case put-forth by the petitioner. In that case, the employee gave notice of resignation on 3rd April, 1970 with three months’ notice with a request that the same may be taken as notice of resignation. The employer accepted the resignation with effect from 2nd July, 1970. The employee by letter dated 18th April, 1990 withdraw his resignation, but the same was not accepted by the employer on the ground that the resignation has already been accepted. It is under those circumstances, a Division Bench of this Court observed that when there was an agreement in future to terminate the contract of service with effect from a particular date, a new contract fructifies and springs into life only on that date and has the effect of putting and end to the original contract of service. Till then the relationship of master and servant continues. The old contract will be extinguished only when the new agreement came into force. Since the relationship of master and servant continues and the employee continues to be in service, it must follow that he had the right to withdraw his offer of resignation before it became irrevocable and it could become irrevocable only on the expiry of the stipulated period when the acceptance become binding on the parties. In Union of India v. Gopal Chandra Misra, , interpretation of Article 217 of the Constitution of India dealing with resignation of a Judge of the High Court fell for consideration. The Judge concerned through
letter dated May 7th, 1977 gave an intimation or notice of his intention to resign his office on a future date, viz., August 1, 1977. The said letter was withdrawn by the Judge concerned through another letter dated July 15, 1977 addressed to the President of India. Under those circumstances, the letter dated May 7, 1977 was construed as communication as a prospective or potential resignation, but before the arrival of the indicated future date, it was certainly not a complete and operative resignation because, by itself, it did not and could not sever the writer from the office of the Judge, or terminate his tenure as such. It was held that before the arrival of the indicated future date, it was wholly inert, inoperative and ineffective, and could not,and in fact did not cause any jurat effect. The Apex Court held that in the absence of legal, constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office-tenure of the resignor. In P. Ksailingam v. P.S.G. College of Technology, , it is observed by the Supreme Court that the service of a Government servant normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, unless there is any law or statutory rule governing the conditions of service to the contrary. In Coromandal Fertilizers Ltd. v. P. Vemigopal, 1986 (1) LLJ 417, Jeevan Reddy, J.(as his Lordship then was) speaking for the Bench observed that “in the absence of standing orders, bye laws or Rules governing resignation of employees in a company, the same has to be judged with reference to the ordinary law of the land that is the law of contract. Resignation submitted by the employee is in the form of an offer. It is open to the management to accept the said offer or reject the same but it was not open to the Management to accept the resignation with effect from 20th October 1981. Such an acceptance is not really the acceptance of an offer but amounts to a counter offer which must again be accepted by the workman.
15. The facts in Punjab National Bank v. P.K. Mittal, 1989 Supp. (2) SCC 175, are not exactly similar but nearer to the facts on hand. A permanent officer in the Bank, sent a communication to the bank on January 21, 1986 purporting it to be a letter of resignation from the services of the bank due to personal reasons. In the said letter, he added that the date of receipt of the letter should be treated as the date of the commencement of the notice period, so that, inclusive of the same his resignation would become effective on June 30, 1986. The Officer received letter from the bank on February 7, 1986 informing that his resignation letter dated January 21, 1986 has been accepted by the competent authority with immediate effect by waiving the condition of notice and that, consequently, he was being relieved from the service of the bank with effect from the afternoon of the same date i.e., February 7, 1986. That was challenged. The relevant service Regulations provide that no officer shall resign from the services of the Bank, otherwise than on the expiry of three months from the service on the bank of a notice in writing of such resignation: Provided that the competent authority may reduce the period of three months, or remit the requirement of notice. Interpreting the said regulation which is more or less similar to that one on hand, the Supreme Court observed that there are two ways of interpreting this clause, one is that the resignation of an employee from service being a voluntary act on the part of an employee, he is entitled to choose the date with effect from which his resignation would be effective and give a notice to the employer accordingly. The only restriction is that the proposed date should not be less than three months from the date on which the notice is given of the proposed resignation. The other interpretation is that, when an employee gives a notice of resignation, it becomes effective on the expiry of three months from the date thereof. In the said case, it is observed by the Supreme Court that the employee wished to resign with effect from June 30, 1986 and so the resignation would
have become effective only on that date. If the said interpretation is to be accepted, the employee’s resignation would have taken effect on or about April 21, 1986 even though he had mentioned a later date. Under those circumstances, the Supreme Court observed that in either view of the matter, the respondent’s resignation did not become effective till April 21, 1986 or June 30, 1986. It would have normally automatically taken effect on either of those dates as there is no provision for any acceptance or rejection of the resignation by the employer. However, it was sought to be argued that the said Regulations and its proviso are intended only to safeguard the Bank’s interest, as the proviso enables the competent authority to reduce the period of three months or remit the requirement of notice which has been done in that case. The Supreme Court rejecting the contention observed that the Regulation and the proviso is intended not only for the protection of the Bank but also for the benefit of the employees. It is observed that “the proviso in our opinion should not be interpreted as enabling a bank to thrust a resignation on an employee with effect from a date different from the one on which he can make his resignation effective under the terms of the regulation.” Under those circumstances, the Supreme Court held that it was open to the employee to exercise his right to withdraw the resignation before the resignation became effective. However, the observations of the Supreme Court while referring the judgment of the Delhi high Court in Delhi Electric Supply Undertaking v. Tara Chand, (1978) 2 SLR 425 (Del.), may have vital bearing on the issue. The Delhi High Court in that case was concerned with the interpretation of the similar Regulation observed that notice under the regulation was intended for the benefit of the employer which could, if it considered necessary or proper, waive the period of notice and accept the resignation with immediate effect. In that context the Supreme Court observed “but that was a case where the employee, though bound to give three months notice
expressed his desire to resign with immediate effect and it was also accepted by the employer. It was not the case that he had given notice indicating a desire to be relieved at a future dale. The analogy of that case would have applied to the present case as well if the respondent here had expressed his desire to be relieved immediately even before the expiry of three months’ notice period and the bank had accepted it. The employer would then certainly have been entitled to accept the resignation, as requested by the employee, waiving the notice period. The distinction between that case and the present one is that, here, the employee has chosen a future date on which resignation would be effective but he is being forced to resign before such date”. The observations are very pertinent.
16. The observations made by the Supreme Court and the reasoning as to why it thought to approve the action of the Delhi Electric Supply Undertaking (supra) would equally apply to the facts on hand. In this case, the petitioner could have issued notice expressing his intention to resign at the expiry of the period of notice in terms of Regulation 11. He could have also submitted his resignation expressing his intention to be relieved with effect from a date chosen by him. In the first eventuality his resignation could have been accepted only after the three months’ period of notice as provided under Regulation 11 and the same would have resulted in cessation of employer and employee relationship between the parties with effect from the date of acceptance of the resignation. In the second scenario his resignation could have been accepted by the respondent-Corporation only with effect from future date chosen by the petitioner. But the letter of resignation sent by the petitioner in the instant case suggests as if he wanted his resignation to be accepted by the respondent-Corporation instantaneously. Infact within one week the petitioner reiterated his request to accept his resignation and send substitute to take charge from him at the place of his work. Neither the resignation letter dated
26-9-1990 nor the subsequent letter dated 4-10-1990 suggest any future date from which his resignation would come into effect nor the said letters would suggest as if the petitioner intended to give notice of three months’in terms of Regulation II. Under those circumstances, the decision of the respondent-Corporation to accept the resignation of the petitioner by condoning the advance notice period does not suffer from any infirmity. If the letter of resignation was the notice within the meaning of Regulation 11, perhaps, the Corporation could not have waived the period of notice unilaterally depriving the petitioner of his right to withdraw the resignation within the notice period. The petitioner perfectly would have been at liberty to withdraw his resignation before expiry of the mandatory notice period provided for under the Regulation. But in this case, it is the petitioner who pressed for acceptance of his resignation with immediate effect. It is under those circumstances, the Corporation not only accepted the resignation but condoned the period of notice.
17. The petitioner got himself relieved on 15-12-1990 and whereas his letter purporting to withdraw the resignation reached the office of the respondent-Corporation only on 18-12-1990, though dated 7-12-1990. By the time his resignation had already been accepted by the competent authority. The petitioner has even acknowledged his relief at Vedayapalem on 15-12-1990 itself. It is quite possible that the petitioner may have deliverately put the date as 7-12-1990 after he is relieved from his post. Evidently the said letter is not sent under registered post acknowledgment due, but appears to have been submitted in person and received in the Corporation only on 18-12-1990. The facts speak for themselves. The respondent-Corporation had not committed any illegality whatsoever in accepting the resignation of the petitioner as requested by him by waiving the notice period. There is no dispute whatsoever that the petitioner voluntarily tendered his resignation and
not on account of any duress or coersion and it is an act by which he voluntarily gave up his job.
18. In J.N. Srivastava v. Union of India, , the question came up for consideration before the Supreme Court was whether the appellant therein was entitled to withdraw his voluntary retirement notice of three months’ submitted by him on 3-10-1989 which was to come into effect from 31-1-1990. The proposal of the employee was accepted by the authorities on 2-11-1989 but thereafter before 31-1-1990 was reached, the employee wrote a letter to withdraw his voluntary retirement proposal by letter dated 11-12-1989. This was rejected by the employer through communicated dated 26-12-1989. However, the employee having relinquished the charge, questioned the same before the Tribunal. The Supreme Court observed that “even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement”. The Supreme Court relied upon the decision in Balram Gupta’s case (supra). It is required to observe that in the said case the employee served the retirement notice of three months’ on 3-1-1989 which was to come into effect from 31-1-1990. But in the instant case, the petitioner has not issued any letter as such, as provided for under the Regulation 11, by giving three months’ notice. It is he who wanted his resignation should be accepted immediately. In General Manager, BHEL Research and Development, Hyderabad v. K. Rajita Suryakama, , a Division Bench of this Court observed that “mere passing of the order accept the resignation by itself would not terminate the relationship of master and servant as the management is always at liberty to withdraw the order passed before the same is implemented”. In the facts and circumstances of the case, it is observed that “in pith and substance, reading of
the letter of offer of resignation and acceptance of the same in its totality indicate that the relationship of master and servant is being brought to an end only with effect from 2-1-1987 and it would be well within the right of the employee to withdraw the resignation and continue the relationship of master and servant before the final end is brought to the said relationship”.
19. To sum up in the instant case, the petitioner has submitted his resignation through letter dated 26-9-1990 without giving any notice of three months’ period as provided for under Regulation 11 of the said Regulations of the Corporation. It is not a case of any notice but a request to accept his resignation at once. Even while it was under consideration of the Corporation, the petitioner reiterated his request through letter dated 4-10-1990 requesting the Corporation to approve his resignation and send the substitute to take charge from him. This has been accepted by the Managing Director on 6-12-1990 itself, but proceedings were issued on 7-12-1990 accepting the resignation of the petitioner from the date of his relief at Vedayapalem Warehouse. The petitioner accepted the same and got himself relieved by handing over the charge to his substitute on 15-12-1990. The petitioner thereafter sent letter dated 7-12-1990 (on the said date, the proceedings accepting the petitioner’s resignation was issued) proposing to withdraw his resignation letter dated 26-9-1990. But the same is received by the respondent’s office only on 18-12-1990, but by the time, not only the resignation was accepted but also he was relieved from his post. The respondent-Corporation through the proceedings dated 8-1-1991 informed the petitioner about the refusal to accept his request to withdraw his resignation on the ground that his resignation had already been accepted vide proceedings dated 7-12-1990 by condoning the advance notice period. As observed earlier, it is not a case where the employee issued any notice expressing his intention to resign after the expiry of
notice period as provided for by the Regulation. It is not a case where an employee expressed his desire to tender resignation with reference to any future date. It is a case where an employee wanted to resign voluntarily and by putting an end to the service by his unilateral act requesting the employer to accept his resignation forthwith. It is a case where the employer merely acceded to the request of the employee. He cannot be allowed to turn round and complain that his resignation could not have been accepted even before the expiry of notice period and his resignation would come into effect only after the expiry of notice period.
20. There is no provision under the Regulations of the Corporation for any voluntary retirement. Therefore, the petitioner is not entitled for any benefit as if he retired from the service. Under those circumstances, the respondent-Corporation is entitled to proceed against the petitioner for recovery of any dues from him in accordance with law.
21. For the aforesaid reasons, I do not find any merit in this writ petition and the same shall stand accordingly dismissed. No order as to costs.
22. The Court acknowledges the valuable assistance rendered by Sri Vedula Srinivas who readily agreed to assist the Court as amicus curlae.