Service matter -Once Resignation was accepted in a case of temporary employee, there is no obligation on Govt. to relieve him from duties by way of separate letter to hold the validity of his resignation -No question of reinstatement - on probation - unauthorised absent during probation - on the next day sent resignation - resignation was accepted after long correspondence - Request for cancellation of Resignation letter subsequently - rejected - challanged in Tribunal - dismissed - High court allowed and directed to pay arrears too after reinstatement on the ground that he was not relieved from his duties after acceptance of letter - Apex court held that 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 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. 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 as he absconded from duties for 8 months without joining inspite of letters =
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.
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.
Since the Appellants did not accede to the request of the Respondent, he
preferred O.A. in Tribunal - Tribunal dismissed and filed writ in 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
The High Court 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
and further 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.=
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.=
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.”
Apex court held that
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.
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.
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.
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 …..Respondent
J U D G M E N T
SHIVA KIRTI SINGH, J.
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.
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.
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 :-
Where the Government servant concerned is engaged on work of importance and
it would take time to make 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.
xxxx xxxx xxxx xxxx xxxx
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.”
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.
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.
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.
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….”.
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.
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”.
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.
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.
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.
-----------------------
11
there, in the case in hand it would be an empty formality as he absconded from duties for 8 months without joining inspite of letters =
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.
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.
Since the Appellants did not accede to the request of the Respondent, he
preferred O.A. in Tribunal - Tribunal dismissed and filed writ in 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
The High Court 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
and further 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.=
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.=
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.”
Apex court held that
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.
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.
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.
2014 – July. Part – http://judis.nic.in/supremecourt/filename=41787
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 …..Respondent
J U D G M E N T
SHIVA KIRTI SINGH, J.
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.
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.
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 :-
Where the Government servant concerned is engaged on work of importance and
it would take time to make 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.
xxxx xxxx xxxx xxxx xxxx
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.”
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.
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.
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.
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….”.
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.
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”.
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.
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.
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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