HON'BLE SRI JUSTICE R.KANTHA RAO W.P.No.9697 of 2000:
27. 06.2012 Smt. K.Nagarathnam Hindustan Fluorocarbons Ltd. Rep. by its Managing Director, Basheerbagh, Hyderabad. Counsel for the petitioner : Sri T.Sharath Counsel for respondent : Smt.G.Sudhaa HEAD NOTE: ?Cases referred:
1. AIR 196.SC 180(1) 2. AIR 199.SC 180.3. AIR 200.SC 191.4. AIR 197.SC 694(1) 5. 1987 (SUPP) SCC 22.6. AIR 199.SC 157.7. AIR 200.SC 15.8. (2002) 3 SCC 43.9. 2011(5) SCC 14.ORDER: This writ petition is filed seeking an order or direction in the nature of writ of mandamus declaring the letter dated 20.05.1999 addressed by the respondent to the petitioner relieving her from duty pursuant to the acceptance of her resignation letter dated 20.02.1999 as illegal, arbitrary and against the principles of natural justice and consequently to direct the respondent to reinstate the petitioner in her duties and to pass such other order granting all consequential benefits.
2. The brief averments of the writ petition may be stated as follows: Initially on 22.12.1986 the petitioner was appointed as Trainee (Accounts) by the Management of the respondent Hindustan Fluorocabons Ltd., a Government of India undertaking. The petitioner reported to duty at the Head Office, Basheerbagh, Hyderabad. After training, she was absorbed as Accounts Officer and was promoted as Senior Accounts Officer and further as Assistant Manager (Finance) in the Head Office. On 31.10.1997 the respondent transferred the petitioner from Head Office to Factory at Rudram, Medak District as Assistant Manager, HRD. There was no toilet facility for the petitioner, she had to walk long distance to reach the office at the factory as there was no provision for exclusive ladies bathroom, and she had to walk to the rest room at the medical centre which is at a long distance. After her transfer to the factory, her health was deteriorated mainly due to the kidney problem. Under these circumstances, she addressed a letter dated 13.08.1998 to the respondent seeking transfer to the Head Office. The respondent vide its reply dated 04.09.1998 advised the petitioner to make her own arrangement to undertake her journey and also to use the toilets at the Medical Centre and declined to transfer her from the factory. As her health was badly affected, she had to apply long leave and subsequently as her request for transfer was not acceded to, she tendered her resignation by letter dated 20.02.1999. The respondent by letter dated 19.03.1999 has accepted her resignation but failed to consider the request to condone the notice period and intimated the petitioner that she will be relieved on 20.05.1999.
3. It is further submitted by the petitioner that she will be relieved subject to completion of departmental enquiry pending against her. According to the petitioner, she was never served with any notice or furnished any information regarding any proposed disciplinary action earlier to the said letter. It is the version of the petitioner that her superiors in the organisation intentionally harassed her, subjected her to humiliation and victimisation with a view to make her to tender resignation. In the meanwhile, it is said that the respondent in its letter dated 19.03.1999 informed that her request for transfer to Head Office was considered on health grounds and subsequently she was transferred from factory to Head Office by an order dated 23.02.1999. Since the request of the petitioner for transfer to the Head Office was considered, the petitioner submitted a letter dated 06.04.1999 to the respondent withdrawing her resignation.
4. Nextly it is submitted that on the very next day i.e. on 07.04.1999 the respondent transferred the petitioner back to factory since she had taken back her resignation. She reiterated that the attitude of the respondent clearly demonstrates that her superiors in the respondent's organisation were bent upon harassing her and driving her to tender her resignation. Being left with no other alternative, the petitioner reported to duty at factory once again. But, the respondent had neither replied to the letter of resignation of the petitioner dated 06.04.1999 nor accepted her withdrawal of resignation. Finally on 20.05.1999 she was relieved from duty by an order of the respondent purportedly pursuant to the acceptance of her resignation.
5. It is contended by the petitioner that though she had taken back her resignation by letter dated 06.04.1999 before she was relieved from service by the respondent by order dated 19.03.1999 without taking any decision on letter of withdrawal of resignation, she was relieved from service. She pointed out that transferring her back to factory immediately after withdrawing the resignation demonstrates mala fides and arbitrary action on the part of the respondent. She stated that under these circumstances she filed the present writ petition for the aforementioned relief under Article 226 of the Constitution of India.
6. In the counter filed on 03.07.2002, the respondent contended inter alia that the petitioner never submitted any letter withdrawing her resignation as claimed by her in the writ petition, that the resignation would become operative and comes into effect the moment it is accepted and communicated to the employee concerned in writing, the resignation letter cannot be withdrawn after the acceptance of the resignation and even if any such withdrawal is there as claimed by the petitioner, it being after the acceptance of resignation is bad in law, and is of no consequence.
7. It is contended that the transfer of the petitioner from office to factory and subsequently from factory to the office is purely on administrative reasons to meet the exigencies of work and reorganisation of the unit, for economy and convenience but not to victimise or harass the petitioner. It is further contended that the petitioner had concocted the letter of withdrawal of resignation as an afterthought and the said document is a fabricated with a view to file the same in the present writ petition.
8. Nextly, it is contended that the petitioner resigned her job for reasons of prolonged ill-health which was mentioned in the resignation and there was no allegation of any harassment or victimisation in the said letter. According to the respondent, since the petitioner made a request to permit her to work during the notice period in the office on account of ill-health and as she was leaving the employment permanently, her request was considered and she was permitted to work in the office till the alternative arrangements were made, but, the said transfer was not for any other reasons.
9. In her reply affidavit, the petitioner submitted that when the matter came up on 05.09.2002 as it was represented on behalf of the respondent that no letter of withdrawal of resignation was submitted by her, she immediately on the same day filed xerox copy of letter dated 06.04.1999 along with the acknowledgement of the respondent into the court. It is contended by her that the letter dated 20.05.1999 of the respondent did not refer to any order or action on her letter withdrawing the resignation and therefore, she had reason to believe that the same was pending consideration. According to her, tendering letter of withdrawing resignation itself is an indication on her part that she had no intention to put an end to employer and employee relationship and that she continued to work till she was forcibly relieved from duty on 20.05.1999. Her version is that her letter withdrawing the resignation was submitted and pending with the respondent, the respondent had no jurisdiction to issue the order dated 20.09.1999 relieving her from duties. It is also submitted by her that as she had no other means, she accepted the payment of gratuity amount etc. and receipt of such payments cannot be a ground to contend that the letter of withdrawal is waived. The version of the petitioner is that the respondent has been deliberately refusing to acknowledge two letters dated 19.06.1999 and 24.07.1999 addressed by her and that she referred about those letters in her subsequent letter dated 11.10.1999. The order dated 20.05.1999 passed by the respondent relieving her from duty does not indicate that any action has been taken on the withdrawal letter of the petitioner and thus, she contends that she was forcibly relieved from duty without bothering to consider or reject the application for withdrawal of the letter of resignation and therefore, she states that the action of the respondent is arbitrary and illegal. She also further submitted that after her letter dated 11.10.1999 which was admittedly received by the respondent, no letter was addressed by the respondent to her stating that they have not received her letter dated 06.04.1999 which is seeking withdrawal of resignation and also letters dated 19.06.1999 and 24.07.1999 i.e. almost ten years after filing of the counter affidavit filed by them.
10. In the additional counter-affidavit, it is contended by the respondent that the petitioner addressed a letter dated 20.05.1999 to the Chairman/Finance Manager of the group of the respondent company stating that she had been relieved from the company vide Part-II Order No.34/1999 and requested for payment of gratuity etc. which was due to her and in the said letter, the petitioner did not state anything about the withdrawal of her resignation as claimed by her in the present writ petition. As regards failure to mention about the withdrawal of resignation in letter dated 20.05.1999, the respondent contended that the petitioner had unequivocally agreed for the acceptance of her resignation by the respondent and asked for her full and final settlement of dues. It is submitted that the petitioner was paid an amount of Rs.1,46,439/- in full and final settlement of her dues pursuant to acceptance of resignation and relieving her from duty. The petitioner having received the said amount without any dispute or protest cannot agitate that no decision had been taken by the respondent on her letter of withdrawal of resignation. Thus, contending the respondent sought to dismiss the writ petition.
11. I have heard Sri T.Sharath, learned counsel appearing for the petitioner and Ms. G.Sudha, learned counsel appearing for the respondent.
12. The point for determination in the writ petition is whether the letter dated 20.05.1999 addressed by the respondent to the petitioner relieving her from duty pursuant to the alleged acceptance of her resignation letter dated 22.09.1999 is illegal, arbitrary and the respondent is entitled to reinstatement into service with all consequential benefits.
13. Admittedly, the petitioner submitted her resignation on 20.02.1999. The petitioner was relieved from duty by the respondent vide letter dated 20.05.1999 purportedly pursuant to the acceptance of her resignation. The petitioner, however, contends that she submitted a letter withdrawing her resignation on 06.04.1999. The respondent without replying to the said letter by passing any order either accepting or rejecting her withdrawal of resignation letter, suddenly served an order dated 20.05.1999 relieving her from duty. The petitioner addressed a letter dated 01.03.199 to the respondent requesting to condone the notice period of three months and to relieve her immediately. But, she was informed by the respondent vide letter dated 19.03.1999 that the request to condone the notice period is not considered and that she would be relieved on 20.05.1999. It is the contention of the petitioner that in the meanwhile she submitted letter withdrawing her resignation on 06.04.1999. The respondent filed counter-affidavit on 03.02.2002 contending interalia that the petitioner never submitted any letter withdrawing her resignation on 06.04.1999 and did not obtain any acknowledgement and the said letter is concocted for the purpose of filing the same in the present writ petition. In this context it requires to be noticed that when the mater came up for hearing on 05.09.2002, the respondent submitted that no letter withdrawing any resignation was submitted by the petitioner and immediately the petitioner filed Xerox copy of the letter dated 06.04.1999 containing the due acknowledgement of the respondent into the court. Therefore, according to the petitioner, a false plea was taken by the respondent that no letter withdrawing resignation was submitted by the petitioner at any time. The contention raised by the petitioner in her reply-affidavit assumes greater importance to consider the issue as to whether any letter withdrawing resignation was submitted by the petitioner. Consistently contending that the respondent has been deliberately refusing to acknowledge two letters dated 19.06.1999 and 24.07.1999 by her which are referred in the letter dated 11.10.1999, she filed copy of the letter dated 19.06.1999 along with material papers in the writ petition. In the letters it has been specifically mentioned about withdrawal of resignation and expressed her grievance that no weightage was given to her withdrawal application and she was relieved from duties arbitrarily and forcibly without bothering to consider or reject her letter seeking withdrawal of resignation. From this what all can be understood is that she filed letter dated 11.10.1999 to settle her duties properly, but did not respond to the letter dated 19.06.1999. There is a reference to the letter dated 19.06.1999 in the letter dated 11.10.1999 addressed by the petitioner. Curiously after 11.10.1999 the respondent did not address any letter to the petitioner stating that no letter of withdrawal of resignation was submitted nor of taking any action on the letter of resignation dated 06.04.1999. There is also no reply to the letters dated 19.06.1999 and 24.07.1999. The contention of the petitioner is that the situation above referred clearly demonstrates the afterthought attempts of the respondent to put-forth a false version that they did not receive the letter dated 06.04.1999 withdrawing the resignation. Since the petitioner filed the copy of the said letter on the first date of hearing along with the acknowledgement and in view of the aforementioned conduct of the respondent, I am of the considered view that the petitioner in fact submitted a letter withdrawing her resignation on 06.04.1999, but no decision was taken by the respondent before passing an order dated 20.05.1999 relieving her from duties.
14. The crucial question therefore now arises for consideration is whether in law, the petitioner is entitled to withdraw her resignation before she was relieved from duty by a letter dated 20.05.1999 by the respondent.
15. Smt. G.Sudha, learned counsel appearing for the respondent contends that as soon as the resignation of the petitioner was accepted, the master and servant relationship between the petitioner and the respondent came to an end and the petitioner cannot contend that she can withdraw her resignation at any time before she was in fact relieved from duties by an order passed by the respondent. In support of her contention, the learned counsel relied on the following decisions:
1. In RAJ KUMAR v UNION OF INDIA1 the Supreme Court held that on the plain terms of the letters which were brought on record, in the said case the resignation was to become effective as soon as it was accepted by the appointing authority as there was no rule framed under Article 309 of the Constitution which enacts that for an order accepting the resignation to be effective, it must be communicated to the person submitting his resignation. 2) In M/S. J.K. COTTON SPG. AND WVG. MILLS COMPANY LTD., KANPUR v STATE OF U.P. AND OTHERS2 the Supreme Court held that under the common law the resignation is not complete until it is accepted by the proper authority and before such acceptance an employee can change his mind and withdraw the resignation but once the resignation is accepted the contract comes to end and the relationship of master and servant stands snapped. 3) STATE BANK OF PATIALA v PHOOLPATI3 in which case the employee submitted resignation voluntarily and sought to withdraw the same prior to the effective date, it was not considered by the employer on the ground that the employee failed to justify his mental tension for submitting resignation. The Supreme Court having found that the employee reiterated his request for acceptance of the resignation and inconsequence thereof, the employer relieved him from service which was not questioned by the employee during his life time, subsequent claim made by the wife of the employee that acceptance of resignation letter despite its withdrawal is illegal cannot be accepted.
16. On the other hand, Sri T.Sharath, learned counsel appearing for the petitioner contends that at any time before the termination of employment of the employee, the employee is entitled to withdraw the resignation submitted by him. According to him, in the instant case, since no order has been passed by the respondent-employer on the letter withdrawing the resignation submitted by the petitioner relieving her from service by order dated 20.05.1999 unilaterally is arbitrary and illegal and therefore, the said letter is liable to be set aside. In support of his contention, he relied on the following decisions:
1. UNIION OF INDIA ETC. v. GOPAL CHANDRAMISRA AND OTHERS4 wherein Constitution Bench of the Supreme Court held as follows: "The general principle regarding resignation is that in the absence of a legal, contractual or 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. 2) BALRAM GUPTA v. UNION OF INDIA AND ANOTHER5 wherein the Supreme Court apart from holding that notice of voluntary retirement stands on par with letter of resignation laid down that notice of voluntary retirement can be withdrawn before retirement becomes effective notwithstanding any rule providing for obtaining of specific approval of the concerned authority as condition precedent to withdrawal of notice and the authority is not entitled to refuse to grant approval for the withdrawal in absence of any reason showing disturbance in administrative set up or arrangement as a result of such withdrawal. 3) J.N. SRIVASTAVA v. UNION OF INDIA AND ANOTHER6. In this case also the Supreme Court held that even after voluntary retirement notice is accepted by the employer, the employee has locus standi to withdraw the proposal before date of retirement is reached and the fact that the employee has given up charge of post as per his memo relinquishing charge, does not estop him from withdrawing his voluntary retirement notice . 4) UNIOIN OF INDIA AND ANOTHER v. WING COMMANDER T. PARTHASARATHY7. In this case also the Supreme Court held that an application for premature retirement can be withdrawn before it becomes effective and acceptance of application before prospective date fixed for retirement does not cease master servant relationship between the department and the employee and in the absence of statutory bar, policy decision or certificate to the effect that employee can seek cancellation of his application for pre-mature retirement. 5) In SHAMBHU MURARI SINHA v. PROJECT AND DEVELOPMENT INDIA LTD. AND ANOTHER8 the Supreme Court has laid down that when the relevant scheme of voluntary retirement does not stipulate that an employee opting for voluntary retirement would be disentitled to withdraw from voluntary retirement even though the application for voluntary retirement scheme has been accepted by the employer, the employee is entitled to withdraw from VRS before the date of actual release from service. 6) In POWER FINANCE CORPORATION v. PRAMOD KUMAR BHATIA, the Supreme Court held as follows: "It is now settled legal position that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end." 17. We have now to examine the present case in the context of the principles laid down by the Hon'ble Supreme Court in the judgments above referred. The version of the petitioner as could be seen from the affidavit filed in support of the writ petition is that she was transferred from the Head Office to Factory at Rudram, Medak District where there was not even toilet facility. She explained her difficulties to the management and requested for transfer repeatedly on the ground that her health was deteriorated, but her request was not considered. Under the compelling circumstances, it appears, she submitted a letter of resignation on 20.02.1999. She also sent another letter to accept the letter even before the notice period and relieve her from duties. But the employer sent reply stating that the notice period cannot be condoned and that she will be relieved from duties on 20.05.1999 after completing the departmental enquiry pending against her. Curiously the respondent by letter dated 19.03.1999 informed the petitioner that her request for transfer to Head Office was considered on health grounds and that she was subsequently transferred from factory to head office by an order dated 20.03.1999. From the way in which the respondent organisation dealt with the petitioner, it seems, as rightly contended by her, the respondent organisation had bent upon intentionally harassing her by subjecting her to lot of inconvenience and humiliation. The grievance of the petitioner that she was subjected to harassment and victimisation with a view to make her to resign the job appears to be genuine and correct. Under the circumstances, in which the petitioner was placed she was wavering in her decision whether to stick on to her letter of resignation or to withdraw the same. The judgments relied on by the learned counsel appearing for the respondent were in the context of altogether different facts and circumstances to that of the present case and therefore, I am of the view that they are not applicable to the instant case. Further from the judgments relied upon by the learned counsel appearing for the petitioner the settled legal position appears to be that despite the acceptance of resignation by the employer, the employee has a right to withdraw the same at any time before the employment actually comes to an end. In the instant case, by not accepting the request of the petitioner to accept her resignation before the notice period and transferring her to the place of her choice, the respondent gave a clear indication that it did not consider that the employer and employee relationship came to an end. Moreover, the respondent took apparently untrue plea that the petitioner never submitted any resignation. The said contention for the reasons mentioned hereinabove, this court rejected. Under these circumstances, this Court is of the view that the petitioner has a right to withdraw her resignation before the actual cessation of master and servant relationship between her and the respondent organisation. The order dated 20.02.1999 passed by the respondent relieving the petitioner from her duty purportedly under the guise of acceptance of resignation in the considered view of this Court is arbitrary and illegal and is declared as null and void and the petitioner is entitled to be reinstated.
18. The other question now comes up for consideration is whether the petitioner is entitled for back wages and all consequential benefits. When an employee is ordered to be reinstated into service upon setting aside the order of termination/removal of service by the employer, the employee will not get an indefeasible right of back wages. The court has to take into consideration the facts and circumstances of the case, the conduct of the parties, totality of the circumstances either to give or refuse the back wages. In this context, it would be relevant to refer the following judgment of the Supreme Court in CHAIRMAN-CUM-M.D., COAL INDIA v. ANANTA SAHA AND OTHERS9 wherein the Supreme Court held as follows: "That even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is re- instated, it would not automatically make him entitled for back wages as entitlement to get back wages is independent of re-instatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic." 19. Keeping in view the above principles laid down by the Hon'ble Supreme Court, I am of the view that in the instant case, since the petitioner was out of employment pursuant to the resignation submitted by her for a considerably long period, she is not entitled for back wages. However, she is directed to be reinstated with all consequential benefits pertaining to her service without any back wages.
20. Consequently, the writ petition is allowed to the extent indicated above. There shall be no order as to costs. R.KANTH RAO,J Date:27-06-2012