IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.5281 of 2007 BRAJESH KUMAR, S/O MUNMUN RAI, R/O NEW KARMAN TOLA, BRAMHARSHI NAGAR, ARA(BHOJPUR) ..............Petitioner. Versus 1.THE UNION OF INDIA THROUGH THE MINISTRY OF DEFENCE. 2.THE COMMANDANT, RAJPUTANA RIFLES, REGIMENTAL CENTRE-DELHI CANT.10. 3.CHIEF RECORDS OFFICER, THE RAJPUTANA RIFLES,C/O 56 APO AT CENTRE DELHI CANT 10. 4.THE GOC-IN-C, SOUTH WEST COMMAND, C/O 56 APO AT CENTRE DELHI CANT 10. .............Respondent. Appearance : For the Petitioner/s : Mr. D.N.Pandey Mr. Ashwini Parashar For the Respondent/s : Mr. Dr.R.Ranjan(Asst.Sg) Mr. Sudhir Kr.Tiwary ------------- 04 25-04-2011 Heard Mr. D.N Pandey learned counsel for the petitioner and counsel for the Union of India. The prayer of the petitioner in this writ application reads as follows:- “Issuance of appropriate Writ/Writs, Rule/Rules, Order/Orders including the Writ of Certiorari for quashing the Order of discharge from service on and from 31.03.2006 as per Order of the comandant Rajputana Rifle Regiment, Centre who is respondent no. 2 in the present case, without holding any enquiry as prescribed in law. Issuance of Writ of Mandamus directing the respondents for granting re-instatement to the petitioner who have been discharge from service arbitrarily, summarily, without following the due process of law, which is totally Unconstitutional, illegal and void in nature as much as the facts on the records indicate that no opportunity have been given, when the complaints have been made and no enquiry has been held.” Mr. Pandey at the outset would submit that the impugned order cannot be sustained in view of the fact that the petitioner had never voluntarily submitted his resignation and that the alleged resignation submitted by him on 16.03.2006, is by way of forced resignation. He would accordingly submit that when the petitioner came to know of his being discharged on the ground of his voluntary resignation, he filed a detailed representation by way of complaint dated 17.07.2006 (Annexure-3), but the authorities had passed the impugned order without holding an enquiry and/or affording an opportunity of hearing to the petitioner. Counsel for the Union of India on the other hand would submit that the resignation tendered by the petitioner is as clear as a day light and in this context he would refer to the contents of the resignation letter, which for the sake of brevity and clarity is quoted hereinbelow:- lsukWd & 16013110W in & jk0 eSu@fyfid uke & czts'k dqekj dEiuh & ^?k* nEiuh lsok esa] Jheku deku vf/kdkjh egksn;] 20 jktiwrkuk jkbZQYl ekQZr 56 lsuk Mkd?kj fo"k;& lSU; lsok ls fMLpk;Z tkus gsrq izkFZkuk i= egksn;] lfou; fuosnu gS fd eSa lsukWd 16013110W jk0eSu@fyfid czts'k dqekj fiNys nks lky ls 20 jktiwrkuk jkbZQYl esa dk;Zjr gwW] ysfdu vHkh lSU; lsok djus esa vleFkZ gwW] D;ksafd fiNys dkQh fnuksa ls esjk ekufld larqyu Bhd ugha jgrk gSaA vr% esjh izkFkZuk gS fd eq>s 'kh?kz ls 'kh?kz lSU; lsok ls eqDr djus dh d`ik djsaA g0@& vkidk vkKkdkjh lSfud lsUkkWd 16013110W flQkfj'k dh tkrh gS@ugha dh tkrh gS in & jk0 eSu@fyfid uke& czts'k dqekj vuqefr nh tkrh gS@ugha nh tkrh gS dEiuh& ^?k* dEiuh ;wfuV & 20 jkt fjQ Proceeding further he would submit that when such application was filed, the competent authority in exercise of its power conferred under Article 13(III)(iv) of Army Act had allowed such prayer of the petitioner by discharging him from the service of Army. To that extent, he has also placed reliance on the order passed by the Commanding Officer as contained in Annexure-R/1 dated 23.02.2006. He has also submitted that there was no question of any regular inquiry on the complaint filed by the petitioner contained in Annexure-3 dated 17.07.2006, inasmuch as, the authority has considered whatever was alleged by the petitioner in his complaint as with regard to his alleged voluntary retirement. In the considered opinion of this Court, the petitioner cannot be allowed to blow hot and cold in the same breath. Admittedly the petitioner had given in writing as would be evidenced from his signature in Annexure-2, which tallies with his other signatures on his subsequent applications contained in Annexure-7 and Annexure-3. In fact in Annexure-7, he has himself admitted to have submitted his resignation wherein he had explained that such resignation was not on his own but was tendered on account of certain pressure and coercion exercised by the higher authorities. Such explanation of the petitioner would however not inspire confidence inasmuch as resignation of the petitioner having already been accepted by the competent authority under Rule 13 namely the Commanding Officer on 23.02.2006, the subsequent complaint of the petitioner dated 07.04.2006, could not have been acted upon. To that extent this Court is in complete agreement with the order recorded by the Authority on 22.07.2006, wherein, it was held as follows:- “On indl's request, hisapplication for disc from service on compassionate grnds was fwd to Records RAJ RIF vide this unit letter No. 2017/115/A dt. 13 Dec 2005. His disch was approved vide records RAJ RIF letter No. RAC/4/2/20/11 dt 23 Feb 2006. He proceeded to Depot Coy ex RAJ RIF Regt Centre for pension drill vide this unit Mov Order No. 20RR/Permt Mov/2006 dt 01 Mar 2006. He was disch from service with effect from 31 Mar 06(AN) under the provn of items 13(3)III(iv) of Army Rules 1954.” This Court is therefore, satisfied that no error was committed by the Army Authorities in allowing the voluntary resignation of the petitioner by way of discharge and the petitioner's afterthought could not have led to any Court of Inquiry for finding out the correctness of allegations of such resignation to be forced resignation. It is well settled that resignation can be withdrawn before the same becomes effective, but after such voluntary retirement had been accepted and acted upon the same cannot be assailed by taking a plea that it was not voluntary. Even otherwise this court is satisfied from the wordings of Annexure-2, the resignation letter of the petitioner that the same was wholly voluntary in nature. Merely because the content of Annexure-2 was written by someone else and contained the signature of the petitioner, would not make the same as a case of forced resignation. That being so, there is no merit in this writ application of the petitioner and the same is, accordingly, dismissed. Ranjan (Mihir Kumar Jha ,J)