Procedure to relieve an absconding employee of his duties when his resignation is accepted

Service - Dismissal order - Reinstatement - Legality - Held, letter of acceptance clearly showed 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 - Respondent while on probation had already abandoned his temporary service for almost 8 months and had not cared to report for duty in spite of several requests - It would be impossible to relieve an absconding employee of his duties and if reasoning of HC was accepted such employee, even if he tendered resignation, must be continued in service till he was actually found or till he presents himself to be relieved of his duties - Such view would be impractical and run against larger public interest - Result manifests itself from order accepting resignation because no reservation was made by Govt., that respondent had to continue in service till any particular time or till being relieved - There was no obligation on Govt., to write formal letter that respondent was relieved - Conduct of respondent in escaping away from his duties without obtaining leave when he was only temporary employee under probation - Impugned order passed by HC was set aside.   

 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

Dated;July 21, 2014.

                              

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.

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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