w w w . L a w y e r S e r v i c e s . i n



Rajendra Bose v/s Institute of Cost Accountants of India & Others

    W.P. No. 642 of 2017

    Decided On, 24 June 2020

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE ARIJIT BANERJEE

    For the Petitioner: Sakya Sen, Sunil Kumar Gupta, Advocates. For the Respondents: Deb Kumar Sen, Advocate.



Judgment Text

1. The short question that falls for determination in this Writ Application is whether or not the Petitioner's Resignation Letter, dated 7th August 2017 whereby he had tendered resignation from the post of Joint Director (Advanced Studies) & Director (Discipline) in the Respondent No.1 Institute, with effect from the afternoon of the same day, could be treated as validly withdrawn by the Petitioner's Letter, dated 25th September 2017. The material facts of the case relevant for the purpose of deciding this application are as follows.

2. The Petitioner joined the Respondent No.1-Institute i.e. the Institute of Cost Accountants of India (in short, 'ICAI') as a Joint Director in terms of his Appointment Letter, dated 10th February 2011. Thereafter, from time to time, he served ICAI in different capacities. As on 7th August 2017, the Petitioner held the post of Joint Director (Advanced Studies) and Director (Discipline). Allegedly due to harassment and humiliation faced by the Petitioner from the then President of ICAI, the Petitioner tendered his resignation by Letter, dated 7th August 2017. The letter of resignation in so far as the same is material reads as follows:

"Dear Sir, With due respect, I wish to state that owing to unavoidable circumstances, it will not be possible to render my services to this organization any further. Hence, I am tendering my resignation as Joint Director (Advanced Studies) & Director (Discipline) w.e.f. this afternoon the 7th August 2017.

I shall be thankful, if you kindly accept my resignation as Director (Discipline) and issue necessary instructions for relieving me from the said post with immediate effect (i.e., w.e.f. 7th August 2017).

In terms of Appointment Letter Ref. No.G:142:02:2011, dated 10th February 2011, three months' notice (or pay in lieu of notice) is required for cessation/ resignation of employment. Hence, I would like to be released on 6th November 2017 from the present duties and responsibilities which shall be in due compliance with the terms of the above referred appointment letter."

3. By a Letter, dated 12th August 2017 the Secretary of ICAI being the Respondent No.2 herein, accepted the Petitioner's resignation. The said acceptance letter reads as follows:

"Dear Sir, This has reference to your Letter, dated 7th August 2017 tendering resignation from the position of Director (Discipline) & Joint Director (Advanced Studies) in the Institute with a request to consider the date of resignation from 7th August 2017 and to release from the post of Director (Discipline) with immediate effect w.e.f. 7th August 2017 and to release from present duties and responsibilities on 6th November 2017.

Your resignation has been accepted as per the terms of your appointment letter. You have been relieved from the position of Director (Discipline) w.e.f. 7th August 2017 as already communicated to you by my Mail, dated August 9, 2017.

You are directed to handover all documents of Directorate of Discipline to me and of Advanced Studies to Shri Arnab Chakraborty (Senior Director, Admin & Studies) on August 14, 2017. You will be relieved from the post of Joint Director (Advanced Studies) on August 14, 2017 after handing over all the documents.

You are transferred w.e.f. August 14, 2017 (A/N) to Thiruvanthapuram to look after CAT related activities there. You will report to Shri L. Gurumurthy, Sr. Director (CAT, Admin, T & P) till the date of your release from the services of the Institute."

4. Subsequently, the Petitioner was transferred to Thiruvanthapuram. On 25th September 2017, the Petitioner wrote a letter to the Secretary of ICAI withdrawing his resignation letter. The Letter, dated 25th September 2017 reads as follows:

"Dear Sir, You kind attention is invited to my Letter, dated 7th August 2017 addressed to your good self with a copy thereof addressed to President of this Institute regarding tendering of resignation from the services of the organization. I had also requested for notice period of 03 (three) months (in lieu of pay) in terms of the Appointment Letter Ref No.G:142:02:2011, dated 10th February 2011.

I write to inform you that I have now changed my mind and would like to continue in the present services of the Institute and the resignation tendered vide Letter, dated 7th August 2012 stands withdrawn with immediate effect. On withdrawal of my resignation, I may kindly be allowed to continue in the present employment of this Institute in the same manner like any other Employee of the Institute as if no resignation has been tendered."

5. The Petitioner did not receive any reply to the Letter, dated 25th September 2017. Apprehending that the Respondents shall not give effect to the letter withdrawing his resignation and will release him from service on 6th November 2017, the Petitioner filed the present Writ Application on or about 6th November 2017. The main prayer in the Writ Petition is as follows:

"(a) A writ in the nature of Mandamus commanding the Respondent Authorities to treat your Petitioner's Resignation Letter, dated 7th August 2017 as non-existent in view of subsequent withdrawal of such resignation vide a Letter, dated 25th September 2017 and treat your Petitioner in the same position with similar service conditions and benefits as was before 7th August 2017."

6. In the aforesaid factual matrix, the moot question that arises for determination is as to whether or not the Petitioner's Letter, dated 25th September 2017 had the effect of withdrawal of his Resignation Letter, dated 7th August 2017 thereby entitling the Petitioner to continue in service with ICAI.

7. Before recording the arguments advanced on behalf of the parties, it may be noted that the Respondent Authorities issued an Order, dated 10th November 2017 releasing the Petitioner from the service of ICAI. Learned

Counsel for the Petitioner submitted that this was a mala fide act on the part of the Respondents since copy of the Writ Petition had already been served on the Respondents on 8th November 2017.

8. Learned Counsel for the Petitioner submitted that the letter of resignation was withdrawn before expiry of the notice period and as such the same was not an absolute or complete resignation that could become operative with immediate effect. He also submitted that the letter of resignation at best amounted to a proposal or notice of intention to resign on a future dated i.e. 6th November 2017. As such, the Petitioner had every right to withdraw such resignation letter.

9. Learned Counsel then submitted that in the Letter, dated 7th August 2017, the Petitioner expressed his desire to be relieved from the responsibilities of Director (Discipline) immediately, but resignation from the post of Joint Director was to take effect only after 6th November 2017. The Petitioner, even after handing over the charge of Director (Discipline) on 14th August 2017, continued to serve in his capacity as Joint Director (CAT), Joint Director (Placement for Eastern & Western Region) and Appellate Authority under RTI Act, 2005. The Petitioner was also given charge for placement of passed out CMA students (Eastern and Western Region) vide Office Order No.26/2016-2017, dated 26.9.2017. The Petitioner was never relieved from such posts and continued to shoulder the said responsibilities even after his transfer to Thiruvanthapuram. All these would go to show that while ICAI may have accepted the resignation of the Petitioner as Director (Discipline) on 7th August 2017, which was an added responsibility, he was never relieved from his other responsibilities and therefore, the Employer-Employee relationship subsisted without any interruption.

10. It was submitted that the release Order, dated 10th November 2017 was issued in undue haste immediately upon a copy of the Writ Petition being served on the Respondents on 8th November 2017. Hence, by implication the Respondents admitted that the Employer-Employee relationship continued even beyond 6th November 2017.

11. Learned Counsel assailed the release Order, dated 10th November 2017 signed by the Senior Director (Administration) as having no legal sanctity as the same was issued in violation of the Cost and Works Accountants Act, 1959 and the Regulations framed thereunder, which empower only the Secretary of the Institute to issue such release order. In this connection, Learned Counsel referred to Regulation 99 of the Cost and Works Accountants Regulations, 1959. Further with reference to Section 16(2) of the 1959 Act, it was submitted that the Council of the Institute constituted under Section 9 of the Act was the appointing authority in so far as the Petitioner is concerned and hence, the release order could not have been issued by a Senior Director.

12. Learned Counsel finally submitted that the principle involving withdrawal of resignation has been dealt with by the Constitutional Courts in various Judgments wherein it has been held that if an Employee resigns in praesenti, the resignation terminates his office/tenure forthwith, and cannot therefore be withdrawn or revoked thereafter. However, if the Employee by such writing chooses to resign with effect from a future date, the act of resignation is not complete because it does not terminate his tenure until such date and the Employee can at any time before the arrival of that prospective date, withdraw the resignation as the Constitution does not bar such withdrawal. In this connection Learned Counsel relied on the following decisions-

(i) Union of India v. Gopal Chandra Mishra, 1978 (2) SCC 301, Para 50

(ii) Dr. P. Chattopadhyay v. The Institute of Cost and Works Accountants of India, 1987 (1) Cal. LT 179, Paras 50 & 51.

13. Learned Counsel for the Respondents argued that the instant Writ Petition has become infructuous in view of the fact that the Petitioner had submitted his resignation from the post of Director (Discipline) on 7th August 2017 and once the same was accepted by the Respondents, the right of the Petitioner, if any, ceased to exist.

14. It was further submitted that the present Writ Petition is nothing but a fanciful desire and/or whimsical prayer that is beyond the provisions of law and it has no legs to stand on. It was also argued that once the Petitioner tendered his resignation on 7th August 2017, a new Officer was appointed on 1st September 2017 in his place. The Petitioner handed over charge on 14th August 2017 to the appropriate authority. Once the Petitioner resigned and his resignation was accepted by the Respondents, the Employer- Employee relationship between the Petitioner and ICAI ceased to exist and as such the Petitioner is not entitled to claim any relief.

15. It was then submitted that as on 10th November 2017, the Secretary of ICAI was on medical leave. The next official in line was also on leave for personal reasons. The President of ICAI, upon realising that the work of the Institute was coming to a halt, directed the Senior Director (Administration), Delhi office, to issue a formal Order of Release, dated 10th November 2017. There was no irregularity in that regard.

16. As regards the decisions cited by learned Counsel for the Petitioner, learned Counsel for the Respondents submitted that the ratio decidendi of those decisions do not apply to the facts of the present case. Learned Counsel for the Respondents prayed for dismissal of the Writ Petition.

Court's View:

17. I have carefully considered the rival contentions of the parties.

18. I have quoted hereinabove the Letter of Resignation, dated 7th August 2017 tendered by the Petitioner and the letter of acceptance of such Resignation, dated 12th August 2017, issued by the Secretary of ICAI. It is true that the Petitioner stated in the letter that he was tendering his resignation as Joint Director (Advanced Studies) and Director (Discipline) with immediate effect. In the second paragraph, he stated that he wished to be relieved from the post of Director (Discipline) with immediate effect i.e. 7th August 2017. However, in the third paragraph of his Resignation Letter, the Petitioner referred to the requirement of three months' notice mentioned in his letter of appointment and he has recorded his wish to be released on 6th November 2017 “from the present duties and responsibilities.” It is not in dispute that as on 7th August 2017 the Petitioner was serving the Institute in various other capacities, i.e. Joint Director (CAT), Joint Director (Placements for Eastern & Western Region) and Appellate Authority under RTI Act, 2005. On a meaningful reading of the letter of resignation, I am of the view that the Petitioner expressed his intention to sever the Employer-Employee relationship with ICAI only with effect from 6th November 2017. This would also be in due compliance of Clause 4 of the Letter of Appointment dated February 10, 2011 which is to the effect that after confirmation, the service may be terminated by giving three months' notice or pay in lieu thereof by either side.

19. Learned Counsel for the Respondents argued that even assuming that the Petitioner offered to resign with effect from 6th November 2017, once such offer was accepted by ICAI on 12th August 2017, the same resulted in termination of the Petitioner's service with effect from 6th November 2017. The argument was that after the Respondents accepted the Petitioner's offer to resign with effect from a future date, the Petitioner could not withdraw the letter of resignation. Going by the first Principles of contractual law this argument appears to be attractive. I might have accepted the submission of Learned Counsel for the Respondents but for the decision of a Division Bench of this Court which stares at my face.

20. In Dr. P. Chattopadhyay v. The Institute of Cost & Works Accountants of India (supra) the Writ Petitioner/Appellant was appointed as a Director of Research in ICAI which is the Respondent No.1 herein. He tendered his resignation from the post of Director of Research with immediate effect by a Letter, dated 4th May 1981. As per the terms of his appointment he could sever his relationship with ICAI only after giving three months' notice. Upon receipt of the said letter, the Secretary of ICAI requested him to have his letter of resignation modified keeping in view the three months' notice period that was required for resigning. On 6th May 1981 he sent another letter incorporating the necessary compliance of three months' notice and mentioned in that letter that he wanted to be relieved from his duties with effect from 1st September 1981. During the continuance of the notice period, on 24th August 1981, the Appellant withdrew his Resignation Letter. By a Letter, dated 29th August 1981 the Appellant was intimated that his letter of withdrawal of resignation had been referred to the Executive Committee and the said Committee had decided to refer the matter to the Council of the Institute for consideration. The Appellant was informed that a final decision in the matter would be communicated to him after the next meeting of the Council of the Institute which was scheduled to be held on 17th October 1981. The Appellant was allowed to carry on the functions of his office even after the expiry of the notice period i.e. 1st September 1981. By a Letter, dated 19th October 1981 the Secretary of ICAI intimated the Appellant that the Council had decided that they were unable to allow the Appellant to withdraw his resignation and the Appellant was requested to handover charge to the Secretary and collect his dues. Challenging such communication the Appellant moved the Writ Court. The Learned Single Judge dismissed the Writ Petition. In Appeal, the Division Bench, while allowing the Appeal, held as follows:

"50. The other point which remains for determination is whether the Writ Petitioner, who filed the conditional, resignation, had the right to withdraw the same and if the case of such withdrawal, was duly and appropriately considered by a proper authority. As it is, we feel that a person holding such exalted position like a Director of Research of the said Institute like that on the Petitioner, must not be hesitant or vacillating in his decisions, so it was expected that when once he had expressed his unequivocal desire to resign from a given date, he should have adhered to the same and should not be heard to say that he withdrew the same subsequently. But, such view, in view of the determinations in the case of Union of India v. Gopal Chandra Mishra (supra), can no longer be adhered to, even though we feel, that in that case, the Hon'ble Supreme Court of India had not considered the effect of withdrawal of the concerned resignation by the concerned learned Judge, before the same become effective or his conduct and whether his conduct was hesitant or vacillating ? It is true that the learned Judge in that case, before expiry of the date, from which his resignation could be effective, withdrew his letter of resignation and practically such withdrawal was allowed by the Supreme Court, applying the terms of Proviso (a) to Article 217(1) of the Constitution of India, under which a learned Judge has an unilateral right or privileges to resign his office and his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. The Supreme Court has observed in that case, that since the learned Judges concerned, on his right, chose to resign from a future date, the act of resigning from the office was not complete and so it does not terminate his tenure before such date and the Judge can, at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal. We feel that even in spite of the fact that there is no bar to such withdrawal, the conduct of a resigning learned Judge, viz., his hesitancy and vacillation should have been considered. We are also of the view and really we fail to understand that if a learned Judge, who is so hesitant and vacillating in his own case, how he is expected to do justice in the case of others. However, the law having been laid down in the case as mentioned above, on application of the said principles, in the facts of this case also, we can hold that since the resignation was withdrawn before the same became effective, the writ Petitioner was within his jurisdiction, authority and competence, to have the same withdrawn.

51. There is no provision embodied in the Rules as regards the right of the Employee to resign from service. Similarly, there is no provision regarding the acceptance of resignation. The resignation, therefore, was to take effect from a future date. The Writ Petitioner by his Letter, dated 6th May 1981 changed his decision to effect his resignation in praesenti which would be patent from the Letter, dated 6th May 1981, whereby he postponed it to the future date. So long as the resignation does not become effective, the appellant had a right to withdraw and in fact, he duly and properly exercised his right. The present case, if tested on the touchstone of the principle laid down in the case of Union of India v. Gopal Chandra Mishra (supra) would show that the general principle as regards resignation is that in absence of a legal contractual or constitutional bar, a resignation fashioned with prospectivity can be in actuality withdrawn at any point of time before it becomes operative or effective. When it operates to terminate the employment of the office of the tenure of the resigner it becomes effective. If in the terms of writing, as would appear in the facts and circumstances of the present case from the Letter, dated 6th May 1981 the appellant by such writing chose to resign from a future date the act of resigning office was neither final nor complete by reason of the fact it did not constitute termination of his tenure before such date and he could at any time before the arrival of that prospective date on which it was in actuality to be effective withdrew it. There is nothing either in the rules or any executive instructions which bars such withdrawal. It is very clear that in a case where the resignation tendered is to become effective from a future date the Employee, who has tendered resignation has the right to withdraw the resignation before it becomes effective and he goes out of employment. In the Letter, dated 24th August 1981, the Petitioner in clear terms has stated that he was withdrawing the resignation. In view of the aforesaid withdrawal, the Petitioner was entitled to continue in service. In other words, the ration of the decision of the Supreme Court in Union of India v. Gopal Chandra Mishra (supra) is opposite to the present case and not the one in Raj Kumar v. Union of India, AIR 1991 SC 45."

21. The facts of the aforesaid case are as similar as could be, to the facts of the instant case. The aforesaid case also concerns the same institute i.e.. ICAI. Interpreting the decision of the Hon'ble Supreme Court in Union of India v. Gopal Chandra Mishra (supra), the Division Bench held that since the resignation was withdrawn before the same became effective, the Petitioner was within his jurisdiction, authority and competence to have the same withdrawn. It is really of no relevance as to whether or not I agree with the aforesaid decision. The same is binding on me.

22. Accordingly, I hold that the Writ Petitioner in the instant case was competent to withdraw his Letter of Resignation, dated 7th August 2017 by issuing his subsequent Letter, dated 25th September 2017. Such withdrawal was valid in law as the same was done before the resignation took effect. This is permissible as per the law laid down by judicial precedents referred to above which are binding on me.

23. The conduct of the Respondents also would go to show that there was no cessation of Employer-Employee relationship between the Petitioner and the Respondent even beyond 6th November 2017. The Petitioner continued to serve the I

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nstitute in various capacities mentioned above even after 7th August 2017 and even after handing over charge as Director (Discipline) on 14th August, 2017. Had the resignation been given effect to by the Respondents on 7th August 2017 itself, they could not have insisted on the Petitioner continuing to serve them in various capacities. The Employer- Employee relationship between the Petitioner and ICAI was very much alive on the date when the Petitioner withdrew his resignation. Acceptance by the ICAI of the Petitioner's Resignation Letter, on 12th August 2017, is of no legal consequence. The terms of appointment of the Petitioner do not require acceptance by either party of the other party's notice to terminate the Employer-Employee relationship so long as three months' notice is given. 24. As regards the authority of the Senior Director (Administration) to issue the Order, dated 10th November 2017 releasing the Petitioner from service, I have serious doubts as to whether or not the said Officer had the competence to issue such order. However, this is an internal matter for the Respondent-Institute and, in my view, any irregularity in that respect could be cured by ratification of the order by the Competent Authority. However, I need not go into such question since, in my view, the Order, dated 10th November 2017 which has been brought on record by way of a Supplementary Affidavit filed by the Petitioner cannot stand since the same is based on the Letter of Resignation, dated 7th August 2017. Since I am of the considered view that the letter of resignation was duly withdrawn by the Petitioner by his Letter, dated 25th September 2017 and such withdrawal has the sanction of law, the resignation letter ceased to exist in the eyes of law upon the Respondents receiving the Petitioner's withdrawal Letter, dated 25th September 2017. Hence, the release Order, dated 10th November 2017 issued by the Respondents to the Petitioner has no legs to stand on. Such order cannot be given effect to. 25. Accordingly, there be an order in terms of Prayer (a) of the Writ Petition. It is further clarified that the Order, dated 10th November 2017 purporting to release the Petitioner from service shall have no effect. 26. W.P. No.642 of 2017 is accordingly disposed of. There will be no order as to costs. Urgent certified photocopy of this Judgment and Order, if applied for, be given to the parties upon compliance of necessary formalities.
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