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K. Appa Rao v/s M/s Tungabhadra Steel Products Ltd. & Others

    Writ Petition No.26221 of 2003 (S-RES)
    Decided On, 12 July 2006
    At, High Court of Karnataka
    By, THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
    For the Petitioner: M.S. Padmarajan Senior Advocate for N.G. Sreedhar, Advocate. For the Respondents : Sree Ranga, H.M. Muralidhar, Advocates.


Judgment Text
(This writ petition is filed under article 226 of the constitution of India praying to quash vide anx. J and M dt.4.4.2003 and 17.4.2003 both passed by R2 respectively and communication dt.10.4.2003 of the R2 (Anx.L) as arbitrary, illegal and unconstitutional.)


The petitioner was appointed by the respondent-organization in February 1993. He was promoted as senior Accounts Officer on probation on 1.9.2001. The petitioner was confirmed in the post of Senior Accounts officer on 25.1.2003 on 24.3.2003, the petitioner submitted his resignation to the post of company Secretary of which he was placed in additional charge and to the post of senior accounts officer, which is the basic appointed post to the third respondent. The third respondent had issued an office order assigning the post of company secretary to the Deputy Manager (Finance), one Sri J. Madhusudhan Rao and the petitioner handed over the charge to him on 3.4.2003. The respondent had reallocated the work of the petitioner in the Bill Section on 3.4.2003. However, on 4.4.2003, the petitioner sought to withdraw his resignation to the post of Senior Account officer. But the same was returned to the petitioner by an office order of the fourth respondent, while intimating him that the petitioner?s resignation was accepted on 31.3.2003 by the third respondent. This was communicated to the petitioner on 5.4.2003. On 10.4.2002, the second respondent issued reply to the petitioner?s representation dated 7.4.2003 to state that his resignation has been accepted on 31.3.2003 subject to the conditions as per office order dated 4.4.2003 and that he would be relieved from service on 30.6.2003 after the notice period of three months and that withdrawl of his resignation could not be recommended by the Deputy Manager (Finance) since the resignation tendered on 24.3.2003 has already been accepted by the Managing Director. And further, paragraph 1 of the OFFICE ORDER dated 4.4.2003 ?he has to serve three months notice period from 31.3.2003 to 30.6.2003. The EL at his credit as on 30.6.2003 will be en-cashed as per the rules? was sought to be modified. This order was modified vide office order dated 17.4.2003 to read that ?he has to serve 3 months Notice period from 24.3.2003. to 23.6.2003 instead of 31.3.2003 to 30.6.2003 and he would be relieved on 23.06.2003 afternoon.? In this background, the present petition is filed.


2. Sri M.S. Padmmarajaiah, Senior Advocate for Sri N.G. Sreedhar, counsel for the petitioner, would submit that the only question involved in the present petition is whether the petitioner?s withdrawal of resignation was valid and in the face of the circumstances, whether it can be said that the petitioner?s resignation stood accepted by the respondent as contended.


3. In this regard, he would point out that the petitioner sought to resign with effect from 19.4.2003 whereas, the respondents by their several communications indicated that the petitioner would be relieved only with effect from 23.6.2003. In effect, the effective date of acceptance of resignation is the date on which the petitioner would be relieved namely on 23.6.2003 and in this regard he would refer to the law, as laid down by this court and the Apex Court. In writ petition No.877/2000 decided on 16.6.2003 in the case of Nagesh B. Prabhu vs. Syndicate Bank, this court has reviewed the case law and the facts of that case was that the petitioner therein had sought voluntary retirement on 14.12.1999 which was to be effective from 1.1.2000. Before the effective date, the petitioner sought to withdraw from voluntary retirement. This was denied by the employer by a response dated 1.1.2000. This court while referring to the case law namely In Balaram Gupta Vs. Union Of India And Another (AIR 1987 SC 2354) wherein it is was held that in this modern age, an embargo cannot be placed on a person?s choice, if however, the administration had made other arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellants offer to retire and withdrawal of the same happened in such quick succession that it cannot be said that any administrative set up or arrangement was affected. In Shambhu Murari Sinha Vs. Project And Development India And Another (2000 SCC (L&S) 741), it was held that the appellant therein having exercises the option of voluntary retirement and his having been accepted by the employer on 18.10.1995 but by their letter dated 30.7.1997 directing the appellant to continue in service till 26.9.1997. This would be rendered as the ?effective date? for all purposes and therefore, the voluntary retirement could be withdrawn in the mean time. In H.L. Nagaraju Vs. Dy. Gm, Personal Department (HRD) Vijaya Bank (ILR 1999 Kar 1197) it was held that there was no reason to refuse withdrawal of notice of retirement following Balaram Gupta?s case stated supra. And the learned counsel would also refer to the judgment in the case of Srikantha S.M. Vs. Bharath Karth Movers Ltd., Reported in (2005) 8 SCC 314) wherein a senior manager in the respondent company had tendered his resignation on 4.1.1993 and sought to be relieved from duties from that date as per company Rules and his resignation was accepted on 4.1.1993 itself with immediate effect. By another letter, the appellant was informed that his application for Casual Leave had been sanctioned from 5.1.1993 to 13.1.1993 and 14.1.1993 being a holiday, the appellant would be relived by the close of working hours on 15.1.1993. On 8.1.1993, the appellant withdrew his resignation. In deciding the question, the supreme court has held that though the respondent company had accepted the resignation of the appellant on 4.1.1993 and he was ordered to be relieved on that day. By a subsequent letter, he was granted casual leave and he was further informed that he would be relieved after office hours on 15.1.1993. The vinculum juris therefore, continued and the relationship of employer and employee did not come to an end on 4.1.1993. Hence, quashed the action of the company.


Per contra, the counsel for the respondent would submit that the resignation tendered by the petitioner was accepted as early as 31.3.2003 and the fact that it was to take effect from 26.3.2003 was wholly immaterial. In that it is the date of acceptance which is material. He would further submit that there is differences in so far as voluntary retirement and resignation is concerned. It is only in so far as voluntary retirement is concerned that notice is warranted and in so far as resignation is concerned, it is not a per condition. In this regard, he would place reliance on the judgment of the supreme court in Reserve Bank of India And Another Vs Cecil Dennis Solomon And Another (2004 AIR SCW 1402) wherein the court was considering the RBI Pension Regulations and the case of the appellants before the court who had voluntarily retired from service and were seeking pension under the regulations and in considering the case of the petitioners, the supreme court has contemplated (1) Retirement on superannuation, (2) Compulsory retirement on invalidation (3) Compulsory retirement and (4) Voluntary retirement and further stated that resignation does not fit into any of the above said categories. The Supreme Court has thereafter reasoned that in service jurisprudence the expressions superannuation, voluntary retirement, compulsory retirement, and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering to prescribed period of qualifying service. Other fundamental distinction is that in the case of former, normally retrial benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in the case of the latter, permission of the concerned employer is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary.


4. On these rival contentions, it is to be seen that even according to the employer there was a notice period prescribed and that the resignation if at all would take effect only from the expiry of the notice period and it is on this basis that the employer has chosen to hold that the resignation shall take effect from 26.3.2003. In which event, applying the law laid down by the Supreme Court, even in terms of the Judgment relied on by the respondent, the express prov

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isions of the terms of the service, itself would indicate that the resignation would take effect or the effective date of resignation would be 23.6.2003 and hence, it could not be held that the petitioner could not withdraw letter of resignation. Applying the general principles of Contract Law, now in the facts and circumstances of the present case, the conditional acceptance on the part of the respondent to hold that the resignation would take effect from 23.,6.2003, did entitles the petitioner to withdraw resignation and the further distinguishing feature, as pointed out by the Supreme Court, that in a case where the employer has made alternative arrangements made in view of the proposed resignation by the person would not have any bearing on the present case since it is not even the case of the respondent that he has made alternative arrangement on the proposed resignation of the petitioner. Accordingly, the petition is allowed. Annexures J, L and M are quashed.
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