Regular Second Appeal No. 1105 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1105 of 1986 Date of decision: 24.02.2010 The State of Punjab ...Appellant Versus Sukhdev Singh ...Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. B.B.S. Teji, AAG, Punjab for the State. Ms Esha Gupta, Advocate for the respondent. RANJIT SINGH J. This order will dispose of two Regular Second Appeals No. 572 and 1105 of 1986. The State as well as Sukhdev Singh have filed these separate Regular Second Appeals being aggrieved against the judgment and decree passed by the trial Court as well as by the First Appellate Court. The facts are being taken from RSA No. 1105 of 1986 filed by the State. According to the State, the substantial question of law in regard to right of employer to accept resignation after its withdrawal that too with much delay would arise in this case. Even the counsel appearing for the respondent-Sukhdev Singh, would urge that substantial question of law relating to the right of employer to accept resignation once it stood withdrawn and grant of continuity of service and backwages and applicability of the principle of 'No Work No Pay', Regular Second Appeal No. 1105 of 1986 2 would arise. The facts noticed in brief are that Sukhdev Singh- respondent filed a suit averring that due to his family circumstances he resigned from the post of Section Officer (Civil) on 20.06.1972. His resignation was accepted on 16.02.1982, despite the fact that he had issued letters dated 26.07.1975 and 03.08.1978 to withdraw the resignation which he had submitted in the year 1972. He, accordingly, filed a suit praying for direction to allow him to join the services once he had withdrawn his resignation prior to its acceptance. It is then that the impugned order dated 16.02.1982 was passed, which he ultimately challenged on the ground of being illegal, null and void. He also prayed for grant of arrears of pay and allowances. The defendant contested the suit by filing the written statement. It was pleaded that the suit was barred by limitation and that respondent was estopped by his act and conduct from filing the suit. The suit was also said to be not maintainable in the form it was filed. It was pleaded that the respondent was not entitled to declaration prayed for. On merit, it was pleaded that order dated 16.02.1982 was legal and valid. It is accepted that the respondent remained absent from duty w.e.f. 03.06.1972 and ultimately resigned due to family circumstances on or about 20.06.1972, which was accepted on 16.02.1982. The appellant would acknowledge the receipt of letters dated 26.07.1975 and 03.08.1978. The suit was tried on the following issues: 1. Whether order impugned is illegal, ultra vires, unconstitutional, arbitrary, void, ineffective, inoperative Regular Second Appeal No. 1105 of 1986 3 and not binding upon the plaintiff as pleaded in the plaint?OPP. 2. Whether the suit is within time?OPP. 3. Whether plaintiff is estopped from instituting the suit by his act and conduct?OOPD. 4. Whether suit is maintainable?OPP. 5. Whether plaintiff is entitled to declaration sought for?OPP. 6. Relief. The parties led oral as well as documentary evidence. The suit filed by the respondent was decreed except to the extent of his claim of arrears of salary and allowances, which was declined. The appellant, accordingly, challenged the impugned order allowing the suit to the extent that order dated 16.02.1982 was set aside. The respondent-Sukhdev Singh also filed an appeal challenging the part of the order whereby he was denied salary and allowances for the period he had remained out of service. Since both the parties were aggrieved against the order passed by the trial Court to the extent as indicated above, the First Appellate Court heard the parties in detail and ultimately dismissed both the appeals. Both the parties are now in the present two Regular Second Appeals before this Court. The pleas on the lines that had advanced before the First Appellate Court are accordingly advanced before me as well. The appellant-State would plead that the judgment setting aside the order passed by the State to accept the resignation submitted by the respondent-Sukhdev Singh is illegal and had wrongly been interfered with by the trial Court. On the other hand, the counsel for Regular Second Appeal No. 1105 of 1986 4 respondent-Sukhdev Singh would plead that principle of 'No Work No Pay' would not apply in these cases and would rather plead that he would be entitled to seek declaration for continuity of service, once the order accepting his resignation has been set aside. In support, counsel for the respondent-Sukhdev Singh has referred to judgments in the cases of Srikantha S.M. Versus M/s Bharath Earth Movers Ltd., 2005 (6) SLR 509, Shambu Murari Singh versus Project and Development India Ltd. 2002 A.I.R. (SC) 1341 and M.S. Munivenkatappa versus State Bank of India and another 2007 (3) S.C.T. 108. The first issue, which would require consideration in this case is, whether the resignation which was submitted on 20.06.1972 could be accepted after nearly 10 years on 16.02.1982, despite the fact that the same stood withdrawn through letters dated 26.07.1975 and 03.08.1978, receipts of which were duly acknowledged by the appellant. As noticed by the First Appellate Court, the facts are not much in dispute in this case. The date of submitting the resignation is conceded and so also the date of acceptance thereof. There was a gap of period of nearly 10 years between the date of submission of resignation and its acceptance and in between the respondent- Sukhdev Singh had issued letter Ex. P2 dated 26.07.1975 and Ex. P3 dated 03.08.1978 withdrawing the resignation on the ground that his family circumstances had changed and thus he be allowed to join duty. It will be rather strange to notice that request for resignation was kept pending for so long for which there is no reason coming on record to justify the same. It appears to be just a lethargic Regular Second Appeal No. 1105 of 1986 5 attitude of the appellant that had given a undue advantage and benefit to respondent-Sukhdev Singh. After submitting his resignation in the year 1972, the respondent-Sukhdev Singh does not take any action till he initiates Ex. P2. Strangely, the appellant still do not take action either way. Another 3 years go pass, when respondent- Sukhdev Singh initiates another letter Ex. P3. The appellant still do not act in any manner either to accept or reject his prayer for resignation. They take another 4 years to finally accept the resignation that too when respondent-Sukhdev Singh filed a suit seeking declaration for permitting him to join duties. Strange may be the facts and conduct of both the parties, but the fact remains that the resignation submitted by the respondent-Sukhdev Singh was not accepted till the date of its withdrawal. There was no order passed by the appellant to disallow the prayer of the respondent-Sukhdev Singh to withdraw this resignation. The legal principle by now is fully settled that resignation before his acceptance could be withdrawn. The support in this regard, if any, can be had from the cases of Balram Gupta verus Union of India and another, 1987 Supp. SCC 228, J.N.Srivastava versus Union of India 1998 (9) SCC 559, Nand Keshwar Prasad versus Indian Farmers Fertilizers Cooperative Ltd. and others, 1999 (1) SCT 276 (SC) and Raj Kumar versus Union of India 1968 (3) SCR 857. Accordingly, the view taken by the trial Court and upheld by the First Appellate Court that the resignation submitted, which was withdrawn could not have been accepted. In Balram Gupta's case (supra), the appellant-employee offered to voluntary retire from service and accordingly sent a letter Regular Second Appeal No. 1105 of 1986 6 within the notice period. He, however, changed his mind and then sent a letter seeking to withdraw his notice of voluntary retirement. His request was disallowed by the concerned authority on the ground that the withdrawal of notice could only be with the specific approval of the authority. The Hon'ble Supreme Court took a view that the employee was at liberty to withdraw his notice to voluntary retirement and for this purpose prior approval was not required. In J.N. Srivastava's case (supra) it was held as under:- “ It is well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirment is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement. The said view has been taken by a Bench of this Court in the case of Balram Gupta v. Union of India.” Even in the case of Nand Keshwar Prasad's (supra) the Hon'ble Supreme Court clearly held that it is open to the employee to withdraw letter of resignation before the date indicated in the notice. In Raj Kumar's case (supra) it is held that the service normally stands terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or rule governing the conditions of service to the contrary it will not be open to the public servant to withdraw his resignation after it is accepted. There is no doubt that there was inordinate, unexplained delay on the part of the respondent-Sukhdev Singh to withdraw this resignation but the appellants are not seen in any good light in this Regular Second Appeal No. 1105 of 1986 7 regard. They not only failed to take timely action to accept the resignation but waited for acceptance till inordinately prolonged period and thus gave an opportunity and time to the respondent to think over and withdraw the same. The fact remains that the resignation when it was accepted had already withdrawn not once but twice. It is the appellant, who would suffer the consequences and they are responsible for the consequences of inaction on their part, which gave rise to some legal rights flowing in favour of the respondent-plaintiff. Accordingly, the view taken by the trial Court and upheld by the First Appellate Court that the resignation could not have been accepted since it was withdrawn is legal, just and appropriate and is accordingly upheld. The appeal filed by the State thus would deserve to be dismissed. It is now to be seen whether the prayer made by the respondent-Sukhdev Singh to claim benefit of continuity of service, wages for the period he had remained out of service and denied to him concurrently by both the courts would call for any interference. The reference to the case of Srikantha S.M. (supra), where the appellant therein was treated in continuous service upto the age of superannuation was in the background that resignation was withdrawn with a few days of its submission and he reported for duty and had worked on a particular date. In this case, the appellant therein had submitted a resignation on 04.01.1993 and was to become effective w.e.f. 15.01.1993. Within this period the employee changes his mind and withdrew his resignation on 08.01.1993. He reported on duty on 15.01.1983 and worked on that day and his resignation was accepted by the employer from 04.01.1993 and the Regular Second Appeal No. 1105 of 1986 8 action to allow him to work was held illegal and unlawful. In this background, the Hon'ble Supreme Court took this view. No doubt, in the present case, the respondent had withdrawn the resignation that too after passing nearly 3 years for the first time but still there is no record available to indicate that he had reported for any duty and that he was not allowed to work. He took another 3 years to take action to initiate a letter without reporting for any work. He did not perform any duty even from 1978 to 1982 till his resignation was accepted. The suit was also filed in the year 1982. The facts in this case would stand entirely differently. It will be totally unfair to permit the respondent-Sukhdev Singh to grant continuity of service or pay and allowances for this period when he had remained away from duty and have not performed any duty. In fact, the principle of 'No Work No Pay' in this case would not strictly get attracted. It is not a case where after withdrawing the resignation, the respondent was not allowed to work. This was the main consideration, which weighed with the Hon'ble Supreme Court in granting prayer of Srikantha S.M. (supra). The ratio of this case thus would not apply to the facts/situation of the present case. Learned counsel for the respondent would then refer to the case of M.S. Munivenkatappa (supra) what is held in this case is that if an employee is illegally prevented from discharging his duties, the doctrine of 'No work, No pay' cannot be applied. This was the case where voluntary retirement was unilaterally treated as resignation which was found to be an action without jurisdiction. The Court had rightly observed that such a request could either be accepted or rejected but request for voluntary retirement could not Regular Second Appeal No. 1105 of 1986 9 be treated as a resignation. In this case, the Court also found that full backwages cannot be denied unless gainful employment of employees established by some acceptable proof. As already noticed, the principle of 'No work, No pay' has rightly been analysed and applied in the case of M.S. Munivenkatappa (supra) . The finding was that the employee in this case was illegally denied from discharging his duty and so the doctrine of No Work, No Pay was held not applicable. In the present case, it cannot be said that respondent-Sukhdev Singh was ever prevented from work or that he volunteered himself for work and he was not made to join duty. There is nothing on record to show that for 10 years, respondent was gainfully employed or not. It was for him to establish that he was not gainfully employed anywhere during this period to claim benefit. It would be very hard to accept that respondent-plaintiff was not working anywhere for a period of 10 years and was just sitting idle to await for the outcome of his request for withdrawal of resignation. He was not in any manner prompt in making this request. He is getting benefit only on the account of lethargic attitude of the appellant. Accordingly, the principle of 'No Work No Pay' would not arise in this case. The case of Shambu Murari Singh (supra) is only concerning the withdrawal of the resignation before its acceptance and this aspect has already been considered above. There is thus no merit in both the Regular Second Appeals and these are accordingly dismissed. February 24, 2010 ( RANJIT SINGH ) rts JUDGE