^ .Ve IN THE HI6H COURT OF CHHATTIS6ARH AT BILASPUR WRIT PETITION No. J\ O 2004 PETITIONER ^ '\^ •• ^ »'*-i'ys" •<r. VH* ^f'^ ..^^>- ^^ <>'-<^° ^ Sakti Brata Lodh S/o Late S. C. Lodh aged about 53 years, R/o Sardar Patel Nagar, Jamnipali, Korba west SADA Colony, Senior MI£ A/3 Korba, Distt. Korba (C.6.) VERSUS RESPONbENTS s^ "^ ^ ^ v^€^y ^ ' ^" i ~^€^y ..^y tvy ' 1. Union of India Through Secretary, ' (^. Ministry of Steel d Mines, Department of Mines, Shashtri Bhawan, New belhi. 2. State of ChhattiS9arh ^ Through Director, ^" Industrial Health A Safety, Raipur (C.G.) 3. Managing Director, ^ Bharat /\luminium Co. Ltd. g_ (BALCO), Korba Aluminium j Project, Balco Township, (Chhattisgarh) 4. Chairman-cum-Managing Director ^ M/s. Sterlite Industnes Ltd. Korba Aluminium Project, Balco Township, (Chhattisgarh) ,li -2- 5. Head Security, Fire Department, Balco Township, ^-' Korba (C.6.) 4 V>/RIT PETITION UNDER ARTICLE226/227 OF THE CONSTITUTION OF INDIA k ^. HIGH COURT OF CHHATTISGARH AT- BILASPUR WRIT FETITION N0.210/2004 1 K1 Sakti Brata Lodh A l- PetitiOn ;titionerm person. Shri Abhishek Sinlia, counsel for respondents no.3,4 & 5. QRD Meard.. 2. The petitioner has filed fhe instant petition on the auegation tnat fie nas been torced. to resign trom semce. o. The petitioner submits fhat he toined the services on 3/9/1981 and served for about 21 years. He applied for voluntary retirement on 19/1/200l. It is submitted that the said application was not accepted and the same was rejected on '26/3/2002 vide Annex.P/2 and the information was sent to the petitioner. It is also subinitted that thereafter on 5/10/2002, the petitioner submitted another application (Annex.P/6) for accepting me voliintary retirement und.er mstaUment Payment Plan (Annex.P/5~j. It is also subniitted fhat on the same day i.e. 5/10/2002 the petitioner was forced to sign a resignation letter and fhe order (Annex.P/7'l was passed fhat fhe resignation submitted by hun is accepted and he is relieved from fhe services ofthe Companv. 4. On the other hand, leamed counsel appearing for respondents no.3,4 and 5 raised an objection that the writ petition is not maintainable because the BALCO is now the private companY. He furfher submits that UTitiallv the petitioner submitted the application for voiuntan" retirement. On the said application, AGM (INS & Fire) made a remark on 2/2/2001 mat since he is the oniv •Executive" of Fu-e discipline in me Companv aiid Fli'e Uepartment is aireadv navmg acute shortage of manpower, ms V.K. is not recommenctect. it is submittea fhat fhe said application was rejected vide order dated 26/3/2002. It is furtlier submitted that thereafter the petitioner submitted fhe resigiiation iinder his own handwriting and signatixre vide Annexure-2, which was accepted by fhe authorities concemed of the Company with a direction that he is relieved fi'om fhe services of the Companv and he wiU be paid Notice Pay eauivalent to three months salary. It is also submitted that the petitioner prefeiTed a inercy appeal, which was also not accepted. 5. T'he petitioner submits fhat the resignation. has been forcefuuv taken from him. The contention is fhat the resignation is conditional one inasmuch as the car loan taken from the Company has not been waived. ]e;s ^ tj? 6. So far as ground regarding maintainabilit}7 of petitlon is concemed, thls Court has dealt with the laatter in great in fhe case of K.P. Chandrawanshi and nine others -v- National Themial Power Corporation Limited and Two others reported UT. 2004(11 C.G.L.J. 268. Paragraphs 15, 16 and 17 ofthe decision are relevant and quoted below:- s 15. The first point raised bii the leamed counsel for the respondent is that as the petitioners have not been able to show iTijrUtQGJTlffTit Oj dTi'y Oj tt^S-tY jU.TiiS.ClTTteTitCt.l TtQitt OT violation of anij legal riqht, therefore, petition for issucsnce of writ of mandamus cannot be entertained. The second povzt arcfued O.v tne leanzed cxsunsel for the respondents is thcct these writ petitioizs are not maintainable for the reason that the petitioners have cdtemative efficacioas remedy available to redress their grievance. Their case is covered under the Madhya Pradesh Indttstrial Relations Act, 1960. As per provisiortS of Section 51 ofthe said Act, they ought to have approached the Latocur Court visteacl of approaching this Court by invoking the extraordinani jwisdwtion under Article 226 of the COftStitlttUSTi Gj' iTtCtid. JLIOIVSVQT, CtS jCtT dS th.S seoond point is concemed, since the petitio'iis are being heard finally on their merits, therefore, the leamed counsel for the respondents had not laid <^^^*/lZ^ tf^-^v/^r^F^ /^*fr» ^J^^r^ v^f^f-Vt^- jtiic^Vfi, ^t-fc'o^? \^ft- i./i.lo fcA/fc/i.t.. 16. On the other hand, leamed couiisel for the i^<+^/^^^/^frt <»^^«jK <f * /^ /^ ^Z^»^nf^ ^Z^ ^^ /^T ji/t/^+-c<*^^» tr's^ ^ l/^/^ t./y/^f '<• Tp€'€VClGTlGTS CLTQU.ffd I.n.0,1 THff CJtieS'CiGTl l.nVOiVffd these petitions is pure and simple interpretatwn of certain agreements and appointment letters and no disputed facts are involved, therefore, this Court is entitled to invoke the ju.risdict'von under Article 226 of the Constitution of India and the petitiortS of the petitioners should not be thrown out on these technical objections as the cfuesUon involved relates to iife of the petitioners, their fcanily members and their right to continue in the job as per the tsrms and conditions of the appointment, as ffie action of respondent trartSferriiig the petitioners' services to BALCO is arbttrani and unreasoiiable. Therefore, the writ petitions are ma.intainable. 17. In this connection, the settled law is that U i-c. ij u.t?o fcl.vf i UJ •sti nf r,1+ G.iTSTsiCiTtf' /»4»»! »'/»Wft/»/-<Tf ff^ /t/fft.t.'iAL^ t^3 • ?/-> /^"^ ^J discretion and not the rule of law. 'The Hon'ble 'mational Limited and another vs. Export Cred.it Guarantee Apex Court in the of ABL Intef Corparation oflndia Lirrdted and others held that, 'Wlvle entertaining coi objection as to the >etition tinder mcdntavzability of a writ Aiticle 226 of the ConsUtution of India, fhe Court should bear in rrdnd the fact that the power to issue prerogative ivrits under Article 226 of the Constitu.tion is plenary in nature and. is not Ivnited &.y cmy other r,f tho r>, 'i-ti^ ti-">- proristons of the Cofistttution. The High Court having regard to the facts of the case, CES a discretion to entertain or not to entertain a writ petition. 'The Cowt has imposed upon itself certain restrictioriS in the exercise of this power fSee : W~n.irlpool Corporation vs. Registrar of /H»'.»^/7^-> S/Tjn-B-t-F'. 1 f U.U.V IVlvM' f\^?, Miimbai and others) And tlvs plenary right of the High r^rw^ . ^^ *H'H yt./t^ \-/Otl?T TO £3.SU€ CA f)fGT\SQCf.Ctf}Q 'U^itT U/Zt,i {IGT normally be exercised by the Court to the ,a^-!s, "•«->?-' excbision of other cwcalable remedies unless much action of tlze iitaie tTtSTTTA-mffnTCtt^TI^ tS Ctfvt-CiCt.T^ or its dTiCt unreasonable so as to violate the cotistitutioncd mandate ofArticle 14for other valid and legitimate reasoriS, for which the Court thinks it necessani to exerase the saul JUrl l^iGf.DUfciUft- In para 27 of the above judcjment, the Court has held that 'follawing legal principles emerge as to the maintcdnabilitu ofa writ petition :- (a) In an appropriate case, a writ petition against a State or an wistrum.entaicty of a State arising aut of a contractu.al obligation is maintainable. (b) Merety because some disputea questiofis offacts arise for corisideration, same cannot be a oround to refuse to entertain a writ petition in all case as a matter qfrule. fcj A writ petition invotving a cottsequential relief of monetary maintainable.' claim 03 In fhe decision in Uie case of K.P. Chandrawanshi aiid nine others (Supra'j, fhis Court has held that there is no aDsoiute bar in entertaining the writ petitions. 7. Perused fhe record and exaiiuned the matter. It is pouitea out tnat me petiGoner suDmittect the resii^nation (Annex.2) under his own handwriting and signature, wruch is quotea below: "ro, The Vioe President, 1 ftW V iUG C(xr loan from the CompGny, the valco-K.ortia. Through-Proper Channel. Sub: Tendering Tesignation. Respected Sir, With due respect, I beg to stcite that I have not in a posttion to worlc, due to some domestic problem at home. Therefore, I tender my resignation from the seruwes of ttie Compuny, I have taken HBA + Car k same may K>e waivea. I hope you wiU consuter my above request of wcdve offfhe outstanding loans. 1 iiCtTii\,ut.Q yGti^ With kind reciards, 1 v/i-&ft3 ^UiU^f^it.i^ Sd/-5-10-2002 (/S.-B. Lodh) P. No. 07816 Date:5/"l0/2002 Korba.' ». 'l'tie atoresaicl resignafaon was accepted bv tne authorities concenied otthe Company vide Annexure-P/7. He was given the three months Notice Pay which he has accepted. 'l'ne orcler Annex.F/ / reaas as iincter: 'Bhm'at Aluminium Co. Ltd. No.KB-Pers/Estt./ExJ-7816 dated 5m October, 2002. ORDER d Resignation dated 5th October, 2002 tendered by Mr. S.B. Lodh (Emp.Na.07816), A3stt. Manager (Fire Cwvtrdl,, BALCO, Korba has been accepted bv the Competent Authority with effectfrom 5/1G/2002 (AN). Accordingty, he is relieved from the servwes ofthe Corrcpany on 5/10/2002 (AN). He wiS be paid Notlce Pay equivalent to 3 (threej months' salani {Basic+D.A.). He may collect Ifttt-i rffi^-ie^ •v'f / {,i^> tAfcfct/".&,;, if any, frwn Financs 8s Accounte Department within two working days on submission of I' He Dues Certtfwates from all concemed Departments. ateo advised to vacate his Company's accommodation forthwith. Sd/- Manager (Personnel) Mr. S.B. LodhlEfnp. No.07816) Assistant Manager (Fire Control) BALCL, Korba. Copy to: 1. Sr. GM (Financej, 2. Head-Admn., (3) Manager (F & !PF." A)/ /t /^, //^ 1 L^r-i^Tj (-T^' Then the petitioner on 15/ 10/2002 submitted the mercy appeal (Annexiire-3) wherein he stated to ffae Vice President IHKl, Balco that lie has subniitted tne resignation on 5/10/2002, which was accepted by the Managem.ent ancl some tacilities are not given to tne eiaplovees who are resigatng trom service. Annexure-3 reads as under: "T'o, Thle Vice I^resident (HR}, Balco-Korba. S'ub: Mercy appeal for considering the following facSities. Respected Sir, With due resfsect, l t>eg to state that l have tendenng my resignation on 5/10/2002, which was accepted by the management on 5/10/2002 (AN). As per COS rule the following facilities are not given to emplayees wno are resigning from seniice. 157 111 Leave encashment-50% ofthe total. (2) R.T.A. for setf & family members. l'3'l TranstMrtation & Settlement allouiance. (4) Packin.g Charges. So J therefore request your honour mai) kindlii consider the above facilities extended to me mercifUlly tn which I may get some financial he'lp to shift my mater terials in sqfe and good manner on 100% basis. Thanking tiou Sir, for consideration the above on hujrtanitcsrian ground as a mercfful act please. Yours fcdthfuily, R.-i f-1 c- 7 n-r?nnr> hJiA./ -j. ^-^. t/-^:.L/U''^;' fS.B. Lodh) Ex.Enw.No. 07816' Thereafter the petitioner again wrote a letter on 29/10/2002 for adjustment of outstanding balance, which reads as under: "To, The Vioe President (HR), Balco-Korba. Sub: Adjustment ofmy outstanding bcdance.. Respected Sir, With due respect, I beg to state that the outstcinding balan.ee amau.nt may plectse be adjustment frGm the payment due to me frorn the Company. In case st31 there is any autstanding cmvw.nt for recovery, Iwill give apost dated cheque for the same. Dt. 29/20/2002 Yours faithfullij. Sd/-15-10-2002 (S.B. Lodh) B'f &isc,# B.A rit nn /CVy/. 1 P, No.07816- It is pertinent to mention here that vide Annex.P/8 dated 14/10/2002 the petitioner was advised to deposit the outstanding lying against nim. 'T'ne service certiticate (Anncx.P/9) was also issued to 1-um on 18/'10/2002 regarauig Uie einoluinents arawrn by nuri. 9. F'rom fhe above facts, it is amply cleai' that petitioner hunseif submitted the resignation on his own handwriting, which was accepted by the authorities concemed. Thereafter various correspondences were also made between u-ie period 14/10/2002 to 29/10/2002. T'his all goes to show that there was no iindue uiflueace, coercion or pressure. T'he averment regarding the coercion or pressure has been made for the first tinie in the instant writ petition, that too casuauv without any detail as to who put the pressure and as to why he would put the pressure. Once the person submitted his resignation voluntarily, he is not entitled for any merc;". It is also pointed out that dues have been given to the petitioner which he has withdrawn. 10. The Apex Court. in the case of J.K. Cotton Spinning and 'weavincj MSls Compami Ltd. vs. State of U.P. and others reported in (1990) 4 SCC 27 has held fhat where a contract of service is determined on fhe eiaployee exercising his right to quit, such termuiation cannot be said to be at the instance of fhe employer to fall wifhin tlie first part of fhe dennition of retrenchment in Section 2(si of the State Act. 59 11. The Apex Court further in the case of Srikantha S.M. vs. Bharath Earfh Movers Ltd. reported in f2005j 8 SCC 314 considered fhe term. tesignation'. It has been held as uncler : '....'The term 'resignation' has not been defined in the Service Rules. Accordm.g to the dicticnary meaning, however, lresicination: means spontaneous relinquishment of one's awn right It is conveyed by the Latin maxim Resignatio est Ju.itS pTGyVi S'pGTi^dnSO TGjUXdXlQr ^t\.ff3tQaCi{~lGTt TS Ci. spontaneovs relinquishment of one's own right). In relation to an office, resignation connotes the act oj givwig itp or reiinqmslv.ng tn.e ojTice. "I'o relinquish dn office' meartS 'to cease to hold the office' or 'to leave the job' or 'to leave the position'. 'To cease to hold office' or 'to lose hold of the office' implies to 'detach', 'unfasten', 'undo' or 'untie', 'the binding knot or Unk' which holds one to the office and the obliaations and privileges that go ivith it. s 12. The Apex Court also in fhe case of State Bank. of Patiala vs. Phoolpati reported ia l'2005'l 1 SC-SLR 511 has neid as unaer: SA comptete and effective act of resigning office is one which severs the link of the resignor with his office cind tenmnates his tenure. This position ti/as highliyhted by a Constitution Bench of tlns Coun in union of tnavi anct ottiers v. G 2 SCC Gopal Chcsidra Misra and others, (1978) 301, and reiterated in Balram Gupta v. Union of J.N. India and another, (1987) Supp SCC 228, Srivastava v. Union oflndia and another, j'1998) 9 Rf~'/~' c-.c.Q kj^-/<u' <-/i^Jr, Nand Keshwar Prasad iitCttC^T Farmers Fertiivsers Cooperative Ltd., and others, (1998) 5 SCC 461 and Shambhu Murafi. Sinha v. Project and Development India Ltd, AIR 2002 SC 1341.° In the uistant case, fhe petitioner submitted the resignation which was accepted. and. ne nas tseen relieved. H/P- 10 160 Thereafter various correspondences were made between the parties. AU dues have also been withdrawn by the petitioner. As such, he cannot tum round and is not entitled for relief. 13. In view of the above discussions, not a case for interferertce - by fhis Court while exercising the extraordinary jurisdiction under Article 226/227 of fhe Constitution of India. 14. Accordingly, fhis writ petition faHs and is dlsmissed. 15. At this stage, fhe petitioner submitted that he is coming from outside. He prays for supplying copy of fhe order. 16. Copy of this order be suppUed to the petitioner free of costs and it be despatehed to his address. Sd/- Fakhruddin Judge 13/1/06 ^ s