[ENTITY] Petitioner(s)V/S[ENTITY] (INFLIBNET) Respondent(s) C/SCA/2720/2013 10 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2720 of 2013 [ENTITY] Petitioner(s) Versus [ENTITY] (INFLIBNET) Respondent(s) Appearance: MR [ENTITY], ADVOCATE for the Petitioner(s) No. 1 MR [ENTITY], ADVOCATE for the Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 13/03/2013 ORAL ORDER
1. Heard Mr. [ENTITY], learned advocate for the petitioner and Mr. [ENTITY], learned advocate for the respondent.
In present petition, the petitioner has prayed that:-
(A) quash and set aside the decision of the respondent authority of accepting the resignation of the petitioner from service, and consequently quash and set aside the office order purported to be dated 19.2.2013, whereby the petitioner is ordered to be relieved of his services from the respondent authority, Annexure-A to this petition, and (B) quash and set aside the order of the respondent authority dated 22.2.2013 denying the request of the petitioner for deputation to Bastar University, Annexure-T to this petition, and further be pleased to direct the respondent authority to relieve the petitioner on deputation for joining Bastar University, Jagadalpur, and Pending admission and final disposal of the petition, the Honourable Court may be pleased to stay the operation, implementation and execution of the impugned order dated 19.2.2013, Annexure-A to this petition, and thereby the Honourable Court may be pleased to restrain the respondent authority from relieving the petitioner from his service with the respondent authority, and Pending admission and final disposal of the petition, the Honourable Court may be pleased to direct the respondent authority to relieve the petitioner on deputation for joining Bastar University, Jagadalpur;
It prima facie appears from the record that the petitioner voluntarily tendered his resignation from service.
3.1 According to the letter of resignation, the petitioner had requested that he may be relieved as per rules counting the day from date of the said letter. The request, which emerges from the letter of resignation, reads thus:-
Herewith I am tendering my resignation from the service. You are requested to relieve me as per the rules counting the day from today Even according to the case of the petitioner, the notice period in cases where employee wants to leave employment by way of resignation, is three months.
4.1 Therefore, the petitioner was supposed to give three months notice.
4.2 According to the stipulation in petitioner's letter of resignation he had requested that he may be relieved as per rules counting the day of resignation i.e. 14.3.2013.
4.3 Thus, according to applicable rules, the petitioner's resignation would be effective from 14.3.2013. The relevant provisions read thus:-
2.12.2 Resignation A permanent employee of the Centre may tender his / her resignation to the Centre, subject to acceptance by the Centre, by giving not less than three month notice in writing. For an employee during the period of probation or for a temporary employee, the period of notice shall be one month.
The appointing authority, or the authority to whom the power has been delegated, may accept a shorter period of notice from a member of the staff in special circumstances. The resignation shall not become effective unless it is accepted by the competent authority and the employee concerned is relieved of this post in the INFLIBNET Centre.
Earned leave on full pay may be counted towards the period of notice required, and for any part not so utilized, pay and allowances may be paid at the discretion of the Director as per [ACT].
5. Having regard to the request made in letter of resignation and the above quoted provisions, the competent authority communicated acceptance of resignation to the petitioner vide communication dated 19.2.2013. The said communication reads thus:-
OFFICE ORDER The resignation letter dated 14.12.2012 of Mr. [ENTITY] Scientist 'B' (LS) has been accepted by the Competent Authority of the Centre in the greater interest of the organization. Accordingly Mr. [ENTITY] Scientist 'B' (LS) will be relieved of his services from the INFLIBNET Centre w.e.f. 14.03.2013 forenoon.
He is required to clear his all dues and hand over his assignments and responsibilities to the officials listed below:-
OJAS :
Shri [ENTITY], Scientist-B (CS) MRP : -do-
Theses Database :Mrs. [ENTITY], Scientist-B (LS) Publications :
Shri [ENTITY], Scientist-B (LS) Thus, the petitioner's resignation was accepted w.e.f. 14.3.2013 and acceptance was conveyed to the petitioner vide letter dated 19.2.2013.
5.1 It appears that after the said communication, the petitioner suddenly changed his mind and by communication dated 21.2.2013, the petitioner intimated the respondent that he wants to withdraw his resignation and that the resignation may be treated as withdrawn with immediate effect i.e. w.e.f. 21.2.2013.
5.2 It appears that since the resignation was already accepted and the decision was also conveyed and also because of the previous events viz. the petitioner had twice tendered his resignation before tendering resignation in question, the said request was not accepted by the respondent.
5.3 Therefore, the petitioner felt aggrieved and preferred present petition which appears to have been filed on or around 7.3.2013 and it was listed for admission hearing for the first time on 11.3.2013 and thereafter, it was heard on 12.3.2013. On 11.3.2013 and 12.3.2013 below mentioned orders were passed:-
Today, the lawyers are on strike. Mention has been made by [ENTITY] petitioner in person that this matter may be taken up by tomorrow i.e. 12th March 2013. List this matter on 12th March 2013.
Counsel for the respondent has raised a preliminary objection that the respondent is not an authority of Central Government and the same is a society registered under the [ACT] and [ACT]. This matter is wrongly placed by the office before this Court, registry is directed to place this matter tomorrow i.e. 13th March 2013, before the learned Single Judge having competent jurisdiction.
5.4 In view of the said orders the petition is listed before this Court and for the first time it has been effectively heard today.
5.5 As mentioned above, the letter of resignation and its acceptance are to become effective from 14.3.2013 i.e. tomorrow.
5.6 The petitioner now seeks above quoted relief and has also prayed for interim relief which reads thus:-
(C) Pending admission and final disposal of the petition, the Honourable Court may be pleased to stay the operation, implementation and execution of the impugned order dated 19.2.2013, Annexure-A to this petition, and thereby the Honourable Court may be pleased to restrain the respondent authority from relieving the petitioner from his service with the respondent authority, and 5.7 As mentioned above, in light of the communication dated 19.2.2013, the petitioner is to be relieved in view of his voluntary resignation from forenoon of 14.3.2013. It is a matter of record that petitioner's resignation has been accepted vide order dated 19.2.2013 and the decision is duly conveyed to the petitioner and it is after the said decision that the petitioner informed the respondent on 21.2.2013 about his wish to withdraw the resignation.
5.8 So far as petitioner's contention as regards his right to withdraw resignation before it is accepted or before it becomes effective is concerned, the petitioner has relied on the decisions of the Hon'ble Apex Court in case of [PRECEDENT] and in case of [PRECEDENT] In light of the details mentioned in the petition and the dispute raised by the petitioner about actual date of the acceptance order and the dispute raised by the petitioner that the letter of acceptance of resignation was actually issued after petitioner's letter withdrawing resignation, the Court is of the view that so as to examine said aspect, petition requires consideration. Therefore, petition is required to be admitted.
6. Hence, Rule.
7. However, so far as the issue of granting interim relief is concerned, the Court is of the view that when letter of resignation is not in dispute i.e. it is not the case of the petitioner that letter of resignation was not given voluntarily or was tendered under any influence etc. and in light of the fact that the resignation was accepted before withdraw and the order relieving the petitioner w.e.f. 14.3.2013 was passed before the petitioner took decision to withdraw resignation and requested authority to permit him to withdraw resignation, request for interim relief does not deserve to be and cannot be granted.
If such mandatory relief is granted at this stage it would amount to directing the respondent to continue the contract of employment and thereby enforce the contract of employment. In view of this Court such relief cannot be granted as interim relief.
7.1 The appointment letter by which the petitioner was appointed is in nature of contract i.e. contract of employment and that therefore in view of the provisions related to specif relief the relief cannot be granted in light of [SECTION] read with [SECTION] of [ACT].
7.2 Besides this if the petitioner succeeds in the petition then, having regard to the fact that despite request made by the petitioner it was the respondent who continued with its decision of acceptance of resignation and did not accept the letter of withdrawal, appropriate direction compensating petitioner in terms of money can be passed at the time of final decision in the matter.
7.3 When the petitioner can be compensated in terms of money, interim relief of the nature which is prayed for by the petitioner cannot be granted at this stage more particularly because the respondent has already, vide communication dated 19.2.2013, informed the petitioner about acceptance of his resignation.
7.4 Besides the aforesaid reasons below mentioned factual aspects, as it emerges from the affidavit filed by the respondent are also required to be taken into consideration while considering the petitioner's request for interim relief. The respondents have averred in the reply affidavit that:-
Dates Particulars 10/01/13 The Competent Authority of the Management Director has accepted the voluntarily resignation dated 14-12-2012 of the petitioner. Thus, as per Clause 2.12.2, the resignation of the petitioner becomes effective from the date of acceptance. Annexed hereto and marked as Annexure-E is a copy of the order dated 10-01-2013 passed by the Competent Authority.
Since, the office of the respondent was shifted from Ahmedabad to Gandhinagar, the acceptance letter of the resignation could not be communicated to the petitioner immediately after 10-01-2013.
19-02-2013 Vide letter dated 19-02-2013, the respondent communicated to the petitioner about acceptance of his resignation dated 14-12-2012 and asked the petitioner to hand over the charge to other officers of the Center and the petitioner was asked to collect his legal dues. Annexed hereto and marked as Annexure-F is a copy of the acceptance letter dated 19-02-2013.
19-02-2013 The acceptance letter was sent through peon to the petitioner. The petitioner read the contents of the letter dated 19-02-2013 and after reading the same refused to accept the said letter dated 19-02-2013. Annexed hereto and marked as Annexure-G is a copy of the abstract from the peon book. I say that the concerned peon had made his endorsement stating that the petitioner had refused to accept the acceptance letter.
21-02-2013 At the be-hest of the petitioner, the Bastar University, Jagdalpur sent an e-mail to the respondent Center, asking the respondent to issue no objection for sparing the services of the petitioner for deputation. Annexed hereto and marked as Annexure-H is a copy of the e-mail dated 21-02-2013 received from Bastar University, Jagdalpur.
21-02-02013 On the basis of the e-mail of the Bastar University, Jagdalpur, the petitioner sent e-mail showing his willingness to join Bastar University, Jagdalpur on deputation and to leave the service of the respondent Institution. Annexed hereto and marked as Annexure-I is a copy of the e-mail dated 21-02-2013 received from the petitioner.
21-02-2013 Simultaneously, after about 2 months and 7 days after tendering the resignation and after knowing that his resignation has already been accepted on 10-01-2013 and communicated on 19-02-2013. And further, after getting the order of deputation from Bustar University, Jagdalpur, the petitioner sent a letter seeking permission to withdraw his old resignation dated 14-12-2012. Annexed hereto and marked as Annexure-J is a copy of the letter dated 21-02-2013 regarding withdrawal of the resignation.
I say that since, there was 2 days nation wide strike all over India, the Post Offices were closed on 20-02-2013 and 21-02-2013 and therefore, the respondent again could not sent the acceptance letter immediately to the petitioner.
8. Thus, from the above mentioned details in the reply affidavit, it prima facie appears that the petitioner changed his mind and withdrew his resignation probably because of the fact mentioned in the affidavit.
The aforesaid aspects can be considered at the time of final hearing of the petition. However, for the reasons mentioned hereinabove, interim relief as prayed for does not deserve to be granted. Hence, request for interim relief is rejected at this stage. But having regard to the facts of the case Rule is made returnable on 8.4.2013.
([ENTITY], J.) [ENTITY]