1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32 (2)(b) Writ Petition No. 416 of 2006 (S/S) (Old No. 28682 of 1993) Date of decision: - 02.07.2010 A.F.R. (Approved for Reporting) Not approved for reporting Date: - 02.07.2010 Initials of Judge Note:- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. 2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 416/2006 (S/S) Samay Singh S/o Pitambar Singh ……. Petitioner Versus Regional Manager U.P. State Road Transport Corporation ….. Respondents. Hon’ble Tarun Agarwala, J. Heard Mr. Sidhartha Shah, the learned counsel for the petitioner, Mr. Ramji Srivastava, the learned counsel for the Uttar Pradesh State Road Transport Corporation and Mr. R.S. Bisht, the learned counsel for the Uttaranchal State Road Transport Corporation. The Petitioner was appointed as a Driver in the U.P. State Road Transport Corporation (hereinafter referred to as U.P.S.R.T.C.) in the year 1970 and worked with satisfaction of the respondent authority. It transpires that on account of certain personal problems, the petitioner submitted his resignation on 07.05.1987 and requested the authorities to accept the same. The application of the petitioner for resignation remained pending and, in the meanwhile, the petitioner has second thoughts on his resignation and accordingly submitted another letter dated 02.06.1987 requesting the authority that his resignations may be treated as withdrawn but, the respondent, without considering the letter of the petitioner dated 02.06.1987 accepted the resignation letter 07.05.1987 by an order dated 08.07.1987. The petitioner, being aggrieved, has filled the present writ petition praying that his resignation letter may be returned and that he should be deemed to be in continuous service of the corporation till he reached the age of superannuation. The petitioner has also prayed that he should be paid his salary from 06.09.19863 onwards. The respondent has filed a counter affidavit contending that the petitioner is not entitled for any relief, since, there are laches 3 on the part of the petitioner in approaching the writ court. The respondent had taken a decision accepting the resignation of the petitioner on 08.07.1987. The said decision has not been challenged by the petitioner and he remained silent for almost six years and approached the writ court in August, 1993, Consequently, the writ petition, having being filed after a lapse of six years, suffered from laches and the writ petition should be dismissed on this ground itself. The learned counsel further submitted that even otherwise the order of the respondent accepting their resignation on 08.07.1987, having not being challenged, no relief can be granted to the petitioner. The learned counsel further submitted that under Regulation 38 of the Regulations framed by the respondent, there is no provision to unilaterally withdraw the resignation letter unless permission for such withdrawal was given by the respondent corporation. For facility, the relevant provision Regulation 38 is extracted therein. iii)…………… That is may be pointed out that under proviso to Regulation 38 it has been provided: “Provided also that the notice once given by an employee under sub regulation (1) seeking voluntary retirement shall not be withdrawn by him except with the permission of appointing authority.” Having heard the learned counsel for the parties, this Court is of the opinion that there is no doubt that there is a considerable delay in approaching the writ court and the writ petition should have been dismissed on the ground of laches. But since, the same was entertained in the year 1993 and upon the creation of the State of Uttarakhand, the said petition was transferred to this Court, this court if of the opinion, that at this belated stage, after almost 17 years of the pendency of the writ petition, the court is not inclined to dismiss the petition on the ground of laches. Delay in filing the writ petition would be considered while moulding the final relief, if available and granted to the petitioner. The submission of the 4 learned counsel for the respondent on this aspect is, consequently, rejected. A perusal of Regulation 38 as extracted aforesaid reveals that that the said provision applies only for voluntary retirement and is not applicable for an employee tendering his rejection. This Court is, therefore, of the opinion that Regulation 38 is not applicable to the present facts and circumstances of the case. Having perused the resignation and withdrawal letter, the Court finds that the petitioner had made an application requesting that he may be permitted to resign on account of his personal problems and requested the department to accept his resignation. The voluntary act on the part of the employee is that he is entitled to choose the date on which his resignation would be effected and gave a notice to the employer accordingly. In the present case, the petitioner gave a notice requesting the employer to accept his resignation, but, before the resignation could be accepted the petitioner withdraw his resignation by means of a letter dated 02.06.1987. The fact that he had given the letter dated 02.06.1987 has been not been specifically denied in paragraph 6 of the Counter Affidavit. The assertion made in paragraph 6 of the counter affidavit is, that the petitioner was not permitted to withdraw the letter of voluntary retirement as per Regulation 38, as held aforesaid, Regulation 38 is not applicable to the case in hand. In Punjab National Bank Vs. P.K. Mittal 1989 (Supp. (2) SCC 175, the Supreme Court held: “7. ….….…………………………It is common knowledge that a person proposing to resign often wavers in this decision and even in a case where he has taken a firm decision to resign, he may not be ready to go out immediately. In most cases he would need a period of adjustment and hence like to defer the actual date of relief from duties for a few months 5 for various personal reasons. Equally on employer may like to have time to make some alternative arrangement before relieving the resigning employee.” In the light of aforesaid observation, the petitioner after submitting his resignation and requesting the employer to accept the same had second thoughts and, before the resignation could be accepted, the petitioner withdraw the resignation letter. The withdrawal of resignation letter has not been denied by the respondent. Consequently the respondents could not have accepted the resignation letter which had already been withdrawn by the petitioner. Consequently, the action of the respondent in accepting the resignation letter was a void action. Once it is a void action, it is not necessary for the petitioner to challenge the same by making the request for the quashing of the impugned order. In the light of the aforesaid petitioner was entitled to continue in service. Much water has flown since the filing of the writ petition. It has been stated at the bar by the learned counsel for the petitioner that if the petitioner had continued in service, he would have retired on reaching the age of superannuation in September, 1994. The court finds that the resignation was accepted on 08.07.1987, but, the writ petition was filed in the year 1993 and no plausible explanation has been given as to why the petitioner could not have approached the Court earlier. Consequently, for the period i.e. 08.07.1987 fill the date of filing the writ petition i.e 17.08.1993, the writ petitioner is not entitled for any relief. Considering the fact and circumstances of the case that has been brought on record, this Court is of the opinion that a lumpsum amount would be just and proper, which would compensate the loss which he has incurred. This Court is of the opinion that a sum of Rs. 25,000/- will suffice and meet the ends of justice for the compensation for the period 17.08.1993 till the age of his retirement in September, 6 1994. This Court is of the opinion that retirement benefits would be payable to the petitioner and the period from 1987 to 1994 would be treated in service for the purpose of calculation of retirement benefits. The learned counsel for the U.P.S.R.T.C. submitted that pursuant to the Reorganisation Act, 2000 and upon the creation of the State of Uttarakhand, an agreement was arrived at between the U.P.S.R.T.C. and the Uttaranchal State Road Transport Corporation to the effect that the liability of the pending cases would be that of the Uttaranchal State Road Transport Corporation. On the other hand, the learned counsel for the Uttaranchal State Road Transport Corporation submitted that the liability of Uttaranchal State Road Transport Corporation would be on such cases where the employees are absorbed in the Uttaranchal State Road Transport Corporation in view of the notification dated 27.10.2003. In view of the aforesaid, this Court is of the opinion that since the workman would have retired upon reaching the age of superannuation in the year 1994 when the State of Uttarakhand was not formed nor the Uttarakhand State Road Transport Corporation fame into existence, liability for the payment of the amount as stipulated aforesaid including post retiral dues would be upon the U.P.S.R.T.C. Accordingly, the writ petition is allowed. A writ of mandamus is issued directing the respondents to pay a sum of Rs. 25,000/- as stipulated aforesaid within three months from the date of production of a certified copy of this order and also pay the post retiral benefits within the same period. Dated 02.07.2010 (Tarun Agarwala,J.) S.K.