[1] IN T IN T IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.63 OF 2008 IN WRIT PETITION NO.1611 OF 2004 Dr. Mrs. Suman V. Jain, residing at 9, Narsimh Niwas, 45, M.B. Raut Road, Shivaji Park, Dadar (West), Mumbai-400 028. .... Appellant - Versus - 1. Marwadi Sammelan, through its Secretary, having their office at 227, Kalbadevi Road, Mumbai-400 002. 2. S.N.D.T. University, through its Registrar, M.K. Road, Mumbai-400 020. 3. Joint Director of Higher and Technical Education, Elphinstone Technical Institute, Dhobi Talao, Mumbai. 4. State of Maharashtra, through its Department of Higher and Technical Education, Mantralaya Annexe, Mumbai-400 032. .... Respondents Mr. J.P. Cama, Senior Counsel a/w Mr. Mihir Desai and Mr. Alok Gupta, Advocates, for the Appellant. Mr. N.M. Ganguli, Advocate, for the Respondent No.1. Ms Iman Calcuttawala, Asst. Government Pleader, for the Respondent Nos.3 & 4. [2] CORAM: CORAM: CORAM: SRI R.M.S. KHANDEPARKAR & SRI P.B. MAJMUDAR, JJ. DATED: DATED: DATED: JULY 04, 2008 ORAL JUDGMENT (Per Sri P.B. Majmudar, J.): ORAL JUDGMENT (Per Sri P.B. Majmudar, J.): ORAL JUDGMENT (Per Sri P.B. Majmudar, J.): 1. This appeal is directed against the judgment and order of the learned single Judge dated 8-8-2006 passed in Writ Petition No.1611 of 2004 by which the learned single Judge has dismissed the writ petition filed by the present appellant by upholding the order of the College Tribunal dated 30-4-2004 by which the Tribunal dismissed the appeal filed by the present appellant. 2. The appellant herein was discharging the duty of a Principal in B.M. Ruia Girls and G.D. Birla Girls College, run by the respondent No.1-Trust. The said college is affiliated to the respondent No.2-University. The appellant was appointed as the the Principal of the said College on 1-7-1992. Her appointment was subsequently approved by the University on permanent basis. It is the case of the appellant that the management of the respondent No.1-Trust was changed in December, 1998 and one Mr. Biani was appointed as the convener of the management and thereafter Mr. Biani started interfering in the day-to-day management of the College. The appellant, therefore, made a complaint against him. Subsequently, the appellant was subjected [3] to a letter issued by one of the trustees of the respondent No.1-Trust on 5-3-2003 stating therein that a preliminary inquiry is required to be made against the appellant as there are several allegations against her. It is also the case of the appellant that because of the aforesaid aspect, her health started deteriorating and in view of her ill-health, she decided to give up her employment and, therefore, she tendered her resignation on 25-3-2003 and it was to take effect after the expiry of six months i.e. on 24-9-2003. It is also the case of the appellant that subsequently before the effective date mentioned in the resignation, she withdrew the said letter of resignation and requested the management to allow her to resume duty by writing a letter to that effect. By letter dated 10-9-2003 the respondent No.1 informed the appellant that she was not entitled to withdraw her resignation as the same was already acted upon and in that view of the matter her request to withdraw the resignation cannot be entertained. 3. Being aggrieved by the said decision of the management by which she was not allowed to resume her duties, the appellant filed an appeal before the College Tribunal at Mumbai. The Tribunal, by its order dated 30-4-2004, came to the conclusion that it was not open to the appellant to withdraw the resignation as the same was given in view of understanding between the parties [4] that she will resign from the employment from a particular date and that, therefore, looking to the conduct of the appellant, the resignation in question was irrevocable and cannot be withdrawn as the same was given with the specific understanding to the effect that it is not to be withdrawn. The appellant carried the matter further by challenging the order of the Tribunal by way of filing writ petition being Writ Petition No.1611 of 2004. The learned single Judge by the impugned order dated 8-8-2006 dismissed the said writ petition by upholding the order of the Tribunal. The learned single Judge found that the Tribunal has drawn inference to the effect that there was a settlement arrived at between the parties whereby the appellant was not to withdraw her resignation letter. The learned single Judge came to the conclusion that the inference drawn by the Tribunal was on the basis of the correspondence between the parties and the Tribunal has drawn a plausible inference from the material on record. Having found that the inference drawn by the Tribunal is on the basis of the material on record, the learned single Judge held that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot interfere with such an order. The learned single Judge also found that the right to withdraw the prospective resignation can be given up or waived by the person who holds the right. On the aforesaid basis, the [5] writ petition filed by the present appellant was dismissed by the learned single Judge which has resulted into filing of the present appeal at the instance of the appellant. 4. Leaned senior counsel Mr. J.P. Cama, appearing on behalf of the appellant, has submitted that the resignation which is prospective in nature can always be withdrawn by the employee before the effective date mentioned in such resignation. Mr. Cama further submitted that it is not open to the management to accept the resignation with immediate effect when the employee has mentioned a specific date in the resignation from which such resignation is to come into effect. Mr. Cama further submitted that option is always available with the employee to withdraw the resignation which is prospective in nature and the employee can exercise such option of withdrawing such resignation before the due date and that it is not open for the management to accept such resignation in advance. He further submitted that when the appellant had exercised her option of withdrawing the resignation, which was an unconditional resignation, it was not open for the respondent-Trust to refuse such request for withdrawal of the resignation and to prevent her from discharging her duties. It is submitted by Mr. Cama that when a resignation is given effective from future [6] date, the option is available only to the employee to withdraw it before such date but there is no option left with the management to accept it before such due date. Mr. Cama also further submitted that there is no evidence on record to suggest that the appellant had agreed that she will not withdraw her resignation and that there is nothing on record to suggest that it is an irrevocable resignation. It is further submitted that there is no material on record by which a legitimate inference can be drawn to the effect that the appellant had promised the management that in case the inquiry is dropped against her, she is willing to resign and on that basis the management had agreed to accept her resignation from a future date. It is also submitted by Mr. Cama that the inference drawn by the Tribunal is contrary to the record of the case. The Tribunal has held that there must have been an agreement between the parties by which the appellant had resigned by giving six months notice which is required as per the rules. Mr. Cama also further submitted that if the judgment of the Tribunal is based on no evidence, or is contrary to the evidence on record, then this Court can interfere with such an order in its extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India and set aside such an order. It is submitted that since the order of the Tribunal is based merely on surmises and conjectures, without there being any material in [7] this behalf, this appeal is required to be allowed by setting aside the order of the Tribunal as well as the order of the learned single Judge. 5. Learned counsel appearing for the respondent No.1-Trust submitted that it is true that under normal circumstances if a resignation is given from a future date, it can be withdrawn before such effective date mentioned in the resignation letter. It is further submitted that considering the background of the case and considering the facts and circumstances in which the appellant tendered her resignation makes it clear that such resignation was given with the understanding that it is not to be withdrawn and ultimately the appellant had shown her willingness to say good-bye to the management by relinquishing her employment from the future date. It is submitted that the Tribunal has drawn valid inference on the basis of the facts and circumstances of the case as the appellant was aware that an inquiry was likely to be held against her and since she was not willing to undergo the said process, ultimately, decided to quit the employment. It is submitted that under these circumstances, the Tribunal has come to the conclusion that the petitioner and the respondent management must have arrived at a particular arrangement. The said finding of the Tribunal is based on the evidence on record. There must have been a sort [8] of understanding is a finding given on the basis of the evidence on record and this is not a fit case in which the High Court should interfere with the said finding in its extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India by interfering with the order of the Tribunal. It is further submitted that in the facts and circumstances of the case, this Court may not interfere with the impugned orders and the appeal is required to be dismissed. 6. During the course of the hearing, learned senior counsel Mr. Cama, appearing for the appellant, has submitted that since now the appellant is already employed somewhere else, she is not interested in getting reinstatement but his argument is only for back wages as according to him, if it is held that the impugned order is bad in law, the appellant would be entitled to back wages till she was re-employed elsewhere. Mr. Cama also further submitted that by deciding the question regarding back wages as well as on the ground that the Tribunal has not based its finding on evidence on record, the matter may be sent back to the Tribunal to re-decide the question whether there was really an implied agreement between the parties by which the appellant had decided to quit and for that purpose the Tribunal may be directed to permit the parties to lead further evidence. [9] 7. We have heard the learned counsel for both the parties at length and we have also gone through the documents forming part of the proceedings. So far as the first question posed by Mr. Cama regarding the right of the employee to withdraw prospective resignation is concerned, the learned counsel for the appellant has relied upon various decisions of the Supreme Court in order to substantiate his say that it is the right of the employee to withdraw the resignation before the effective date mentioned in the resignation letter. Mr. Cama has relied upon the decision of the Supreme Court in the case of Union of India etc., v. Union of India etc., v. Union of India etc., v. Gopal Chandra Misra and others, etc., Gopal Chandra Misra and others, etc., Gopal Chandra Misra and others, etc., reported in AIR 1978 SC 694. The Supreme Court has considered the question about the withdrawal of the resignation which is given prospectively. While considering the question of withdrawal prospective resignation, it has been held in para 51 as under: "51. It will bear repetition that the general principle 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 [10] terminate the employment or the office-tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a Government servant or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under Proviso (a) to Article 217 (1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti the resignation terminates his office-tenure forthwith, and cannot therefore, be withdrawn or revoked [11] thereafter. But, if he by such writing, chooses to resign from a future date, the act of resigning office is not complete because 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." 8. Mr. Cama has also relied upon the decision of the Supreme Court in the case of Balram Gupta v. Union of Balram Gupta v. Union of Balram Gupta v. Union of India and another, India and another, India and another, reported in AIR 1987 SC 2354. So far as the aforesaid decision is concerned, it is in connection with voluntary retirement notice. In the said case, the employee gave three months’ notice for voluntary retirement as per rule and during that period the request for voluntary retirement was withdrawn. While considering the aforesaid aspect about whether such right is available, the Supreme Court has held that an employee can withdraw his resignation before it’s effective date. In para 13 of the said decision, it has been observed as under: "13. We hold, therefore, that there was no valid reason for withholding the [12] permission by the respondent. We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in Government service and induced the appellant to withdraw the notice. In the modern and uncertain age it is very difficult to arrange one’s future with any amount of certainty, a certain amount of flexibility is required, and if such flexibility does not jeopardize Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appellant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful attitude. The court cannot but condemn circutous ways "to ease out" uncomfortable employees. As a model [13] employer the government must conduct itself with high probity and candour with its employees." 9. Mr. Cama has further submitted that in the instant case, as per the requirement of the rules, the appellant had given six months notice which is a statutory period prescribed under the rules and regulations and it was open to the employee, therefore, to withdraw the resignation before the said resignation becomes effective. It is further submitted that for the benefit of both the employee as well as the employer, such notice period is prescribed so that in the meanwhile either the employee or the employer can review its decision. In order to substantiate its say that prospective resignation can be withdrawn, Mr. Cama has also relied upon the decision of the Supreme Court in the case of Punjab National Bank v. Shri P.K. Mittal, Punjab National Bank v. Shri P.K. Mittal, Punjab National Bank v. Shri P.K. Mittal, reported in 1989 I-LLJ SC 368. The question under consideration in that case before the Supreme Court was in connection with the resignation given with effect from future date after giving the requisite notice of three months. The said requirement of giving three months notice was as per Regulation 20(2) of the Punjab National Bank (Officers) Service Regulations, 1979. The Supreme Court has considered this aspect in para 5 of the said decision and it has been held as under in para [14] 5: "5. We have given careful thought to this contention of the learned counsel and we are of the opinion that the High Court was right in the conclusion it reached. Clause (2) of regulation 20 makes it incumbent on an officer of the bank, before resigning to serve a notice in writing of such proposed resignation and the clause also makes it clear that the resignation will not be effective otherwise than on the expiry of three months from the service of such notice. There are two ways of interpreting this clause. One is that the resignation of an employee from service being a voluntary act on the part of the employee, he is entitled to choose the date with effect from which his resignation would be effective and give a notice to the employer accordingly. The only restriction is that the proposed date should not be less than three months from the date on which the notice is given of the proposed resignation. On this interpretation, [15] the letter dated 21st January, 1986 sent by the employee fully complied with the terms of this clause. Though the letter was written in January, 1986 the employee gave more than three clear months’ notice and stated that he wished to resign with effect from 30th of June, 1986 and so the resignation would have become effective only on that date. The other interpretation is that, when an employee gives a notice of resignation, it becomes effective on the expiry of three months from the date thereof. On this interpretation, the respondent’s resignation would have taken effect on or about 21st April 1986 even though he had mentioned a later date. In either view of the matter, the respondent’s resignation did not become effective till 21st April 1986 or 30th June 1986. It would have normally automatically taken effect on either of those dates as there is no provision for any acceptance or rejection of the resignation by the employer, as is to be found in other rules, such as the Government Service Conduct Rules." [16] It is accordingly held that an option was available with the employee in such type of resignation which is prospective in nature to withdraw it before the effective date mentioned in the resignation as such resignation comes into effect on the expiry of the date mentioned in the resignation. Mr. Cama has also tried to rely upon certain other decisions on this aspect. So far as the question whether an employee can withdraw his resignation before the effective date mentioned in such resignation, in our view, it is settled by a catena of decisions that prospective resignation can be withdrawn. 10. In the case of Srikantha S.M. v. Bharath Earth Srikantha S.M. v. Bharath Earth Srikantha S.M. v. Bharath Earth Movers Ltd., Movers Ltd., Movers Ltd., reported in 2005 III CLR 806, wherein the Supreme Court has considered the aspect as to whether a resignation which is given from prospective date can be accepted by the management forthwith. The Supreme Court in para 27 of the said decision has observed as under: "27. On the basis of the above decisions, in our opinion, the learned counsel for the appellant is right in contending that though the respondent-company had accepted the resignation of the appellant on January 4, 1993 and was ordered to be relieved [17] on that date, by a subsequent letter, he was granted casual leave from January 4, 1993 to January 13, 1993. Moreover, he was informed that he would be relieved after office hours on January 15, 1993. The vinculum juris, therefore, in our considered opinion, continued and the relationship of employer and employee did not come to an end on January 4, 1993. The relieving order and payment of salary also make it abundantly clear that he was continued in service of the company upto January 15, 1993." Considering the decisions of the Supreme Court on the subject, we are of the opinion that it is always open for an employee to withdraw his resignation before the effective date of such resignation. Therefore, prospective resignation given by an employee can be withdrawn at any time before its due date. 11. Learned counsel for the respondent-Trust has also relied upon the decision of the Supreme Court in the case of Modern School v. Shashi Pal Sharma and others, Modern School v. Shashi Pal Sharma and others, Modern School v. Shashi Pal Sharma and others, reported in (2007) 8 SCC 540. So far as the facts of the aforesaid case are concerned, the resignation tendered by an employee was to be accepted as per Rule [18] 114-A of the Delhi School Education Rules and which resignation was required to be approved by the Director of Education and as per the provisions of the rules, the non-receipt of approval within 30 days, the approval would be deemed to have been received after the expiry of that period. In the aforesaid case, the resignation accepted by the management was forwarded to the Director of Education who had not communicated his approval within 30 days and the management on 13-5-1997 informed the respondent that his resignation was accepted and that he was relieved from 17-6-1997. Considering the facts and the background of the case, the Supreme Court found that acceptance of resignation was valid as after the period of 30 days the resignation itself had come into effect. In paras 16 and 18 of the said decision, it has been observed as under: "16. Resignation submitted by the first respondent could be withdrawn by him before its acceptance. Such acceptance of resignation was to be made within a period of one month. Within the said period itself, the Director of Education should have accorded or refused to accord his approval. We have noticed hereinbefore, the findings of the learned Single Judge of the High Court [19] holding categorically that the purported letter dated 18-3-1997 was never received by the authorities of the School. The said finding of fact has not been interfered with by the Division Bench of the High Court." "18. In terms of the said telegram the first respondent did not withdraw his resignation. He merely purported to have communicated that the same stood withdrawn on the next day of his submission of resignation, namely, 18-3-1997. If the contention of the first respondent that he had withdrawn his resignation on 18-3-1997 is found to be incorrect, as has been held by the learned Single Judge of the High Court, in our opinion, receipt of the said letter by itself would not amount to withdrawal of his resignation before it is accepted. There is no doubt whatsoever that the Director of Education acted in terms of the representation made by the first respondent that he had withdrawn his resignation. If the same was factually [20] incorrect, the said authority was obligated in law to communicate his decision to the School authority within a period of 30 days from the date of communication of the letter of the first respondent. 12. So far as the factual aspect of the present case is concerned, it is not in dispute that the appellant had sent a letter of withdrawal of the resignation before the date mentioned in the said resignation became effective. Considering the case law on the