M.B.K. Singh, J.
1. Heard Mr. A.M. Mazumdar, learned Counsel appearing on behalf of the petitioner and Mr. K.P. Sarma, learned Counsel appearing on behalf of the respondents.
2. Brief facts leading to the filing of this writ petition are as follows:
The petitioner was appointed as a Junior Engineer (Civil) Grade-II of the North Eastern Electric Power Corporation (in short NEEPCO), vide an order dated 8.4.88 and he joined his place of posting, the office of the Executive Engineer at Doyang Hydro Electric Project (in short DHEP), Wokha, Nagaland on 27.4.88.
3. On 15.11.90, he filed an application to the concerned authority of the Corporation praying for transferring him from DHEP to some other place on the ground that while working there, there was risk of his life because of lack of security. In the said application, he cited instances of assault and threat made by a local contractor.
4. Thereafter, he was posted as a Junior Engineer (Civil) Grade-I on in-charge basis at Kopili Hydro Electric Project (in short KHEP), Umrangso, vide office order No. 1912 dated 14.3.91, issued by the concerned authority. The petitioner joined his new posting on 25.4.91'.
5. On getting information through WT Messages about the need of his reporting to the Senior Personnel Officer DHEP, the petitioner went to Doyang on 5.6.91 and he learnt about a police case having been registered as against him. The said case was one registered on the basis of a written report/complaint made by the then Security Officer, DHEP in respect of theft of fencing post and the petitioner was kept in custody for a period more than 48 hours starting from 20.6.91 in connection with investigation of the criminal case.)
6. On 6.7.91, the petitioner submitted a representation to the respondent No. 2 narrating his bad experiences at Doyang and praying for justice. However, the petitioner was suspended from his service with effect from 20.6.91, vide order No. 49 dated 11.10.91, issued under memo No. KHP/SE (Q/G-10/ 91-92/2105 dated 11.10.91/
7. On 11.10.91 itself, the petitioner submitted his joining report to the SE (C), Civil Maintenance Circle, KHEP, Umrangso, NEEPCO Ltd. stating to the effect that he could not join earlier because of intensive medical treatment he had to undergo starting from 23.6.91 in connection with tortures, which had been subjected to him by Senior Security Officer of DHEP and police before handing him over to police in connection with the criminal case. The joining report of the petitioner was returned to him on the same day i.e. 11.10.91 by the SE(C) as the same was not found in order for want of necessary medical fitness certificate.
8. Thereafter, the petitioner submitted a representation to the respondent No. 2 on 1.1.92 tendering his resignation from service stating about his suffering and unwillingness to work for the Corporation any further and praying for allowing to get all his dues and entitlement. On 12.2.91, the petitioner submitted a reminder to the concerned authority regarding his resignation and praying in effect for expediting the matter.
9. The criminal case being Wokha P.S. Case No. 4(4)/91 under Section 380 IPC with reference to GR No. 34/91, pending as against the petitioner, was closed on the ground of insufficiency of evidence as against him vide order dated 22.7.93, passed by SDM, Wokha. On 17.4.01, the petitioner submitted an application to the respondent No. 2 withdrawing his resignation letter, which he had submitted on 1.1.92, before its acceptance by the competent authority. On 18.4.01, the petitioner submitted his joining report to the Senior Manager (C), Civil Construction and Maintenance Circle, KHEP, NEEPCO Ltd. and the same was forwarded by the Senior Manager (C) or 2.5.01 to the competent authority along with connected papers.
10. On 21.1.01, the petitioner submitted a reminder to the Executive Director, Personnel and Administration, NEEPCO Ltd. Shillong stating all the essential facts and praying for allowing him to join and get all his dues. Thereafter, on 27.2.02, the Senior Manager (P&A;), KHEP, Umrangso, issued an office order being No. 1847/02 bearing No. NEEPCO, KHEP/P&A;/PF-893/02 stating to the effect that consequent upon disposal of the criminal case as against the petitioner, the Chairman and Managing Director, NEEPCO Ltd. Shillong had accorded approval towards acceptance of the resignation of the petitioner with effect from 1.1.92 and that the suspension order as against the petitioner was thereby revoked. On 27.5.02, Assistant Manager (P) KHEP, Umrangso forwarded forms for monthly pension under Pension Scheme, 1995 to the petitioner for submission after doing the needful.
11. This writ petition has been filed alleging illegalities and irregularities committed by the respondents in not allowing the petitioner to join to his service, in suspending him from his service, in accepting the resignation of the petitioner after about 10 years of submission of the prayer for resignation by the petitioner without considering the withdrawal of the prayer for resignation before its acceptance and in issuing the pension paper on the assumption of the petitioner having been resigned from his service. The petitioner is praying for quashing the said order dated 27.2.02, wherein the fact of according approval towards acceptance of his resignation was stated and the said letter dated 27.5.02, through which pension form was issued to him. According to the petitioner, he was never informed about his suspension and he was never paid his subsistence allowance. Further according to him, the acceptance of resignation was made after 10 years without considering his withdrawal and also without giving any opportunity of being heard.
12. A counter affidavit was filed on behalf of the respondents 2 to 7 denying most of the allegation of the petitioner. According to the said respondents, despite filing of his joining report dated 11.10.91, the petitioner was not allowed to join his service for non submission of medical fitness certificate along with medical certificate of illness and he was duly informed, vide letter No. KHP/SE (Q/PF-23/ 91-92/2092, dated 11.10.91 about the requirement of medical fitness certificate for enabling to accept his joining report. Further, according to the respondents, there was no information in the office about the petitioner's illness and he also never applied for leave. Moreover, according to the said respondents, the suspension of the petitioner was as per Clause 24(2) of the Conduct Discipline and Appeal Rules for the reason of his being in custody for more than 48 hours in connection with the criminal case, the suspension order could not be furnished to the petitioner as he was not available at his station Umrangso, the suspension order was sent by registered post to his home address but it was returned with a note written on the envelop as 'the addressee left returned to the sender' and he was never denied his subsistence allowance.
13. Further more, according to the said respondents, the closure of criminal case against the petitioner was brought by him to the notice of the respondents only on 18.4.2001 at the time of his submission of joining report for the second time and the resignation letter of the petitioner was accepted after getting information about the closure of the criminal case and the pension form was forwarded inadertently.
14. An additional affidavit was also filed by the petitioner with reference to the counter affidavit of the respondents 2 to 7. Upon hearing the parties through their respective counsel and in the light of the materials filed by them before the Court, it is ascertained that the only point required to be determined is whether the said order, dated 27.2.02, issued by Senior Manager (P&A;), KHEP, Umrangso, regarding the acceptance of the resignation letter of the petitioner after about 10 years of its submission as well as without consideration of the petitioner's letter, dated 17.4.01, withdrawing his resignation letter, is valid in law or not
15. In J. K. Cotton Spg. and Wvg. Mills Ltd. v. State of U.P. : (1991)ILLJ39SC , the Apex Court, after referring to the meaning of the terms 'resign' and 'retire' in different dictionaries, held at paragraph 7:
From the aforesaid dictionary meanings it becomes clear that when an employee resigns his office he formally relinquishes or withdraws from his office. It implies that he has taken a mental decision to severe his relationship with his employer and thereby put an end to the contract of service. As pointed out earlier, just as an employer can terminate the services of his employee under the contract so also an employee can inform his employer that he does not desire to serve him any more. Albeit, the employee would have to give notice of his intention to snap the existing relationship to enable the employer to make alternative arrangements so that his work does not suffer. The period of notice will depend on the period prescribed by the terms of employment and if no such period is prescribed, a reasonable time must be given before the relationship is determined. If the employee is not permitted by the terms of his contract to determine the relationship of master and servant, such an employment may be branded as bonded labour. That is why in Central Inland Water Transport Corporation v. Brojo Nath Ganguly : (1986)IILLJ171SC , this Court observed as under: (SCC p. 228, para 111):
By entering into a contract of employment a person does not sign a bond of slavery and a permanent employee cannot be deprived of his right to resign. A resignation for an employee would, however, normally require to be accepted by the employer in order to be effective.
16. In Motiram v. Param Dev and Anr. : (1993)IILLJ629SC , the Apex Court held at para 15 (p. 1668) as under:
15. As pointed out by this Court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, it cannotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. (See: Union of India v. Gopal Chandra Misra : (1978)ILLJ492SC . If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it.
17. In the above referred case, the Apex Court held that under the Constitution of India there are various offices which can be relinquished by a unilateral act of the holder of the office and acceptance of resignation is not required e.g., President (Article 56(a), Vice President (Article 67(a), Deputy Chairman of Rajya Sabha (Article 90(b), Speaker and Deputy Speaker (Article 94(b), Judge of the Supreme Court (Article 124(2)(a), Judge of a High Court (Article 217(1)(a). However, in the opinion of the Apex Court, the contract of employment stands at a different footing. The Apex Court held at paras 17 and 18 (p. 1668-1669) as under:
17. A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer. Insofar as Government employees are concerned, there are specific provisions in the Service rules which require acceptance of the resignation before it becomes effective. In Raj Kumar v. Union of India : (1970)ILLJ13SC , it has been held:
But when a public servant has invited by his letter of resignation determination of his employment, his service 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 in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter.
18. Similarly in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly : (1986)IILLJ171SC (supra) which related to an employee of a Government company jointly and wholly owned by the Central Government and two State Governments, it was observed-
A resignation by an employee would, however, normally require to be accepted by the employer in order to be effective, it can be that in certain circumstances an employer would be justified in refusing to accept the employee's resignation as, for instance, when an employee wants to leave in the middle of a work which is urgent or important and for the completion of which his presence and participation are necessary. An employer can also refuse to accept the resignation when there is a disciplinary inquiry pending against the employee. In such a case, to permit an employee to resign would be to allow him to go away from the service and escape the consequences of an adverse finding against him in such an inquiry. There can also be other grounds on which an employer would be justified in not accepting the resignation of an employee.
18. In Ram Kumar v. Union of India : (1970)ILLJ13SC , the normal rule has been stated as follows by the Apex Court (SCR p. 860 F-G):
When a public servant has invited by his letter of resignation determination of his employment, his service normally sland 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. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter.
19. In Power Finance Corporation Ltd. v. Promod Kumar Bhatia : (1997)IILLJ819SC , the Apex Court observed thus: (SCC p. 282 para 7).
7. 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.
20. Keeping in view the above said settled principle of law, the present case is to be considered in the light of the relevant service rules governing the petitioner. As per standing Order No. 34 (a) of the Certified Standing Orders applicable to all the employees of NEEPCO Ltd., employees other than those who have executed a Bond to serve the Corporation for specified period, who wish to leave the Corporation's service must give the Corporation the same notice as the Corporation is required to give them under standing Order No. 33. The management may at its discretion accept the resignation with immediate effect or from any time before expiry of the notice period. Further, as per standing Order No. 33(a), the employment of a permanent employee may be terminated by the Corporation giving due notice as per the terms of his appointment or on payment of salary or wages in lieu there of. Standing Order No. 33(b) says that employment of a temporary workman may be terminated as per term of his appointment. In the appointment of the petitioner dated 8.4.88, it is clearly stated that the appointment was purely temporary and might be terminated at any time without assigning any reason or notice thereof. The transfer order dated 14.3.91 did not change the position of the petitioner substantially. No other terms and condition of the appointment of the petitioner has been brought to the notice of the Court.
21. Thus there was no requirement on the part of the petitioner to give notice for a specific period regarding his resignation. Even then, in the absence of specific provision in the relevant service rules dispensing with requirement of notice, the normal rules in respect of the contract of employment that the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer should be applicable in the case of the petitioner. Further, so long as the said resignation letter of the petitioner was not accepted, the contract of employment continued and until the resignation was accepted by the proper authority and before the acceptance of it, the petitioner could change his mind and withdrew the resignation. Accordingly, in the present case by purporting to accept the resignation, after the same having been withdrawn by the petitioner before its acceptance, the concerned respondent acted illegally.
22. In my considered opinion, the concerned respondents acted arbitrary, unfairly and unjustly by issuing the impugned order regarding the acceptance of the resignation of the petitioner without considering the above withdrawn made before the said acceptance and as well as without giving any opportunity of being heard to him after about 10 years of the submission of the resignation letter.
23. In the result, the impugned order dated 27.2.02, issued by the Senior Manager (P&A;) KHEP, Umrangso in so far as it relates to the acceptance of the resignation letter of the petitioner is hereby quashed and no effect is to be given in respect of the matter. In the facts and circumstances, an appropriate consequential order will have to be issued by the concerned respondents in respect of the service of the petitioner in accordance with law. The question, if the petitioner is or not to be allowed to join his service will have to be decided by the concerned respondents in accordance with law and having regards to the facts and circumstances of the case. This writ petition is allowed to the extent stated above and it stands disposed of. No order as to costs.