/ 1 / D.B.S.A.W.No.392 OF 2007 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B.CIVIL SPECIAL APPEAL (WRIT) No.392 of 2007 NUCLEAR POWER CORP.OF INDIA LTD. V/S DR.(MAJOR)HARI SINGH RATHORE Date of Judgment : 25th September 2008 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr. M.S.Singhvi }, for the appellant. Mr. Arun Bhansali }, Mr. P.S.Bhati, for the respondent. BY THE COURT : (PER HON'BLE GUPTA,J.) REPORTABLE This appeal has been filed by the appellant, to challenge the order of the learned Single Judge dated 07.3.2007, accepting the writ petition of the respondent, and holding, that the present appellant erroneously accepted the resignation of the writ petitioner, from service, and on that basis, allowed the writ petition, quashed the order dated 16.9.1992 (Annexure/15), accepting the resignation of the petitioner from service, and directing, the writ petitioner to be reinstated, in the service, with all consequential benefits. The necessary facts are, that the petitioner was / 2 / D.B.S.A.W.No.392 OF 2007 released from army, as a short service Commission Officer, and was selected on the post of Surgeon, and appointed by the present appellant, vide order dated 01.1.1990, then a corrigendum was issued on 11.7.1991 (Annexures/ 5 and 6). We may notice here that in exhibit/ 5, the petitioner was offered appointment on the post of Surgeon, and vide exhibit/6, it was confirmed, that the petitioner has been appointed as Surgeon SO/SF. This SO/SF is Scientific Officer, and S.F. is the scale pay. It is then alleged, that the petitioner ought to have been fixed at Rs. 5100/- basic, on the basis of the LPC, issued by the army, then, it is alleged in para 8, that it was a custom and practice, in the RAPS hospital, to treat the senior most Dr. as Medical Superintendent, who besides his normal work, was to look after administrative, and financial aspect of medical wing. According to the petitioner, the petitioner being senior most medical officer on the day, he was appointed, as he was given highest salary, in the higher grade, in medical wing, being SO/SF, while all other doctors were appointed in the lower grade. It is then alleged, that this appointment of the petitioner was not liked by already working medical superintendent Dr. P.K. Sinha, and Dr. Srinivasan, and consequently on the day, the petitioner joined, the conspiracy was hatched to harass, humiliate and torture the petitioner, so that he is compelled to resign, and respondents Nos 3 to 6, wanted to precipitate a situation to throw away the petitioner, for various of reasons, cataloged in para 11, which included to work and report to Dr. P.K. Sinha being / 3 / D.B.S.A.W.No.392 OF 2007 a lower grade officer, then Dr. Sri Nivasan's interest in bringing to Dr. Shringi from Madras to Rajasthan and so on. In that para, though the petitioner has purported to catalogue the reasons, on ground of which he was sought to be thrown out, but as a matter of fact, apart from the above, the petitioner has narrated only inconveniences and sufferings, that were being felt by the petitioner, in his job. Be that as it may. It is then alleged that Dr. P.K. Sinha was transferred on 10.6.1991, and the petitioner was made in charge of RAPS hospital, instead of making him medical superintendent, without financial powers, and it was on his representations, and on intervention of Managing Director, that vide order dated 20.9.1991, Ex./8, the petitioner was designated as medical superintendent. And then, in para 16, the petitioner has purportedly produced Ex/9 dated 14.11.1991, to contend that there is no post of Medical Superintendent in the corporation, and senior most amongst the specialist, is designated as Medical Superintendent. It is also alleged, that it was at a late stage, that due to intervention of managing director, that the petitioner was made Medical Superintendent, which was not liked by the respondents Nos 3 to 6, and thus, difficulties were created in his working. Then, the petitioner has cataloged day to day events of the difficulties and inconveniences, being faced by him. Then, it is alleged that since in view of the circumstances cataloged in the writ petition, it became difficult for the petitioner to work efficiently and discharging his additional duties, as Medical Superintendent, the petitioner, requested Shri T. S. V. / 4 / D.B.S.A.W.No.392 OF 2007 Ramanan, to issue him a certificate, stating therein, that the petitioner is employed by the respondent, as Surgeon and Medical Superintendent, and his working and conduct is satisfactory, whereupon on 10.9.1992, a certificate Ex/12 was issued, wherein nothing was written about the working and conduct of the petitioner. The petitioner, thereupon, insisted to record remarks about the conduct and work of the petitioner, and also requested, that if the work and conduct is not satisfactory, Shri Ramanan may record, in adverse manner as well, but Shri Ramanan refused to write anything, in this matter, either bad or good. The petitioner then requested, that if the functionaries of the corporation do not like the petitioner to work as Medical Superintendent, he is ready to relinquish duties of Medical Superintendent, and would like to continue as Surgeon, as he has no ambition to work as administrator, and is also not interested in financial powers, and that the functionaries of the corporation are creating hindrances for him, and even refusing a token certificate, he submitted his resignation from the post of Medical Superintendent. A copy of this letter has been produced as Ex/13. The above pleadings with regard to Ex/13, are contained in para 20 of the writ petition, and it is this Ex/13, which is the precise document, on the basis of which, the entire controversy has reached upto to this stage. Then it is alleged, that immediately after submission of Ex. 13, the petitioner has alleged to have proceeded on tour of thermal power Station, Tarapore. The / 5 / D.B.S.A.W.No.392 OF 2007 tour programme has been produced as Ex. 14, according to which, after availing two days' leave i.e. 16 to 17, he was allowed to visit Bombay Head office, where he visited on 16.9.1992 to 18.9.1992, and met Dy. General Manager (P&I.R.) Shri R.P. Haran, and the Director Personnel Shri S.S. Dhillon, and requested to fix his pay, and provide him reimbursement of medical expenses, sanction HRA etc., who assured that problem would be sorted out very soon. Then, when the petitioner arrived on his duty on 19.9.1992, he came to know, that an order has been passed on 16.9.1992, whereby his resignation was accepted, and he was relieved from the corporation on 16.9.1992 in absentia, a copy of this order has been produced as Ex. 15, and vide order dated 16.9.1992, one Dr. Anklesaria was posted as Medical Superintendent. Then the petitioner submitted a communication to the Managing Director on 19.9.1992, conveying that he has only resigned form the duties of Medical Superintendent, and not from his substantive post of Surgeon. His letter dated 12.9.1992 has been wrongly interpreted by Shri Ramanan, and he has deliberately forwarded it to higher authorities, showing it to be the resignation from the corporation. These representations are produced as Ex/16 and Ex/17. Since no action was taken, then on the same day, he addressed another communication to Chief Superintendent RAPS, Ex/18, whereby he sought to withdraw his latter dated 12.9.1992. Then it is alleged, that the petitioner was neither communicated anything, nor he was allowed to work, and that, the stand of the corporation about reliving the petitioner, from 16.9.1992, is not supported by the facts, / 6 / D.B.S.A.W.No.392 OF 2007 as he was on approved tour programme, and that at the time, when he submitted withdrawal of resignation, it is clearly established from the document, that he was serving the corporation. The corporation also cleared the bill in respect of his tour programme, up to 16.9.1992. Then, in para 29, it is narrated, that according to a condition of service, the petitioner can be terminated after serving one month's notice, or on payment of wages for the notice period, in lieu of the same. The same condition applies in the case, where the employee wants to resign form his service, while in the present case, acting in hot haste, ignoring the condition, the resignation has been accepted, and communicated, even without disclosing as to who, in fact, has applied his mind, in accepting the resignation. Thus, the acceptance of resignation is nothing but to harass the petitioner, and to misuse the administrative power by the corporation. It is also alleged that there was nothing to show, as to whether the competent authority applied its mind in accepting the resignation or not? It is also contended, that the employee serving in the cadre, in which the petitioner is serving, can be terminated only by the chairman. While according to the respondents, it was accepted by Shri Srinivasan, Chief Engineer (Commission), who was not having any jurisdiction. With narration of these facts, the action of the corporation is challenged, by pleading various grounds, which are more or less repetition of the / 7 / D.B.S.A.W.No.392 OF 2007 pleadings already taken. Reply has been filed on behalf of the respondents, to the writ petition, raising certain preliminary objections, to the effect, that the petitioner has based his case on alleged malafide intention against various officials of the corporation, who have not been impleaded as party respondent, in absence of whom, the averments cannot be examined. Then giving para wise reply, it was contended inter alia, that the order dated 01.1.1990 was merely offer of appointment. It was admitted that the petitioner was fixed in the pay scale of Rs. 4500-5700, which appointment was accepted, and the petitioner joined the service, while he should not have accepted the appointment, if the pay scale was not acceptable to him. It is alleged, that the representation regarding fixation was duly replied, being AnnexureR/1 dated 16.1.1992. The claim of the petitioner, being senior most was denied, contending that on joining of the new post, the petitioner cannot claim to be senior most doctor, on the very first day, and that since Dr. P.K. Sinha was already working as medical superintendent, there was no question of making the petitioner as Medical Superintendent, immediately on his joining, as he was having no experience of administration, or knowledge, about the work in the new hospital. Then replying averments of malafides, it is contended, that Srinivasan was one of the member of the selection committee, and as such, if there had been any / 8 / D.B.S.A.W.No.392 OF 2007 conspiracy against the petitioner, then his appointment would have been opposed, instead of his being selected. Since doctor P.K. Sinha was already working, there was no reason for them to harass the petitioner rather Dr. Sinha was subsequently transferred to Kakarpara unit of the corporation. It was also contended, that the names of the respondent No 3 to 6, as originally impleaded having got deleted by the petitioner, vide order dated 03.9.2006, as such allegations made against them cannot be examined. Then, allegations about the petitioner having been made as in charge of the hospital, instead of Medical Superintendent, without any power was denied, it was contended, that in charge of RAPS was having the same powers, as Medical Superintendent. Apart from the fact, that on the representation being made, he was designated as Medical Superintendent, with all powers, not only financial control, but also administrative control, over the hospital. Then, replying para 16 of the writ petition, it is contended that it is not correct to say that senior most specialist has always been re- designated as Medical Superintendent, rather from time to time, medical officers have been made as Medical Superintendent, and Annexure/9 is one of them. Then replying para 20, the crucial para, it is pleaded, that the petitioner compelled the Chief Superintendent to issue certificate, though as per / 9 / D.B.S.A.W.No.392 OF 2007 practice, no certificate is required to be issued, as for the purpose of adjudging the performance and conduct, ACRs are submitted by the competent authority. However, as the petitioner insisted, the certificate was issued, which has neither any legal sanctity nor any value. It is also pleaded, that when the petitioner was appointed, Dr. Sinha was working as Medical Superintendent, and on his being transferred, the petitioner was re-designated as Medical Superintendent, in such circumstances, there was no reason, as to why the certificate was required, by the petitioner, regarding his performance. It is also alleged, that if the respondents were annoyed with the petitioner since his appointment, then petitioner would not have been made, either in charge, or Medical Superintendent, as immediately after transfer of Dr. Sinnha, petitioner was re-designated, as Medical Superintendent. Rather, it was due to typical attitude of the petitioner himself, that he started creating problems for himself, as well as, for the patients, who also had complaints against the attitude of the petitioner. It is pleaded that in such circumstances, the resignation, cannot be said to have been made at the hindrance of the respondent, or as a result of hindrance, created by the respondents, and if, the petitioner has resigned, then after its acceptance, he has no right to remain in duty or in service. Then replying para 21, it is pleaded, that mere submission of the resignation does not mean the end of / 10 / D.B.S.A.W.No.392 OF 2007 service, unless the same is accepted. On 12.9.1992, the resignation was tendered, and was accepted subsequently, therefore in the intervening period, if the petitioner was allowed to visit Tarapur and Bombay Office, then, the same is of no significance. More so when tour programme was submitted by the petitioner, much prior to submitting resignation, which programme had already been approved. Likewise for the same reason, his visit to Bombay and meeting the higher officers is also of no consequence, however, the facts regarding meeting with the Dy. General Manager and Director ( Personnel )were denied. Then replying para 23, it was pleaded that the competent authority has accepted the resignation, and information of the acceptance was communicated to the petitioner, and alleged that in this para date alleged is not correct. Then regarding Dr. Anklesaria's posting, it was pleaded that he has not been impleaded as party, apart from the fact that once the petitioner has resigned, he cannot have concern with the appointment of any other medical officer, as Medical Superintendent. Then it is pleaded that the petitioner on his own volition submitted resignation, from the post he was holding, at the relevant time. It is also contended, that the stand, that the petitioner had only resigned from the post of Medical Superintendent, and not from the post of Surgeon, would only mean, that a feeble attempt is being made on the part of the petitioner to confuse the issue and gain mileage. / 11 / D.B.S.A.W.No.392 OF 2007 What is relevant is, that on 12.9.1992, the writ petitioner submitted a letter, clearly indicating intention to resign, which has been accepted, and he was relieved from his duty. Thus, it is totally wrong to contend, that the letter dated 12.9.1992 was misinterpreted. It is contended, that it is the contents of the resignation letter, that need to be looked into, and letter dated 12.9.1992 was a document, expressing clear intention of the petitioner, to determine a contract of the employment, with the corporation, which has been accepted by the competent authority. It was contended, that it was wrong to contend that Ex. 15 and 16 were not communicated to the petitioner, as without communication, petitioner could not possibly annex the copies thereof. It is pleaded that as a matter of fact, the petitioner refused to accept the letters and then the same were sent at his home address. It is pleaded that in fact the whole story behind the curtain is, that the petitioner had never expected that the corporation would accept his resignation. When the petitioner learnt that it has been accepted, then he tried to cook up stories, and tried to read in between the line of the resignation letter. Otherwise, from perusal of the resignation letter, it is clear, that the petitioner tendered resignation, not only from the post of Medical Superintendent, but also, from any post, which the competent authority did not like, or the petitioner is found unfit. Thus, it is clearly revealed, that it was resignation from the corporation, and once it has been accepted, the petitioner cannot be allowed to make up new story. / 12 / D.B.S.A.W.No.392 OF 2007 Then, regarding the petitioner's performing duties upto 19.9.1992, it is contended, that he was on tour programme attending the workshop at Tarapur; tour programme has been of 14 and 15, and he availed casual leave on 16 and 17, thus, the contention about his being on tour, for the entire period from 12 to 19 is not correct. Regarding signature in attendance register, it was contended, that the signatures are not admitted, and so called signature does not mean, that the employee is serving, the attendance register was available in office, and he might have signed the register un-authorisedly, or with malafide intention. It was pleaded, that very fact the petitioner got the register photocopied, and produced after the period of 14 years, establishes the above intention. Then, regarding the contention about the petitioner having not been relieved, it is pleaded, that from the communications of the petitioner himself, being application dated 05.1.1993, for final withdrawal of the PF, and application dated 29.4.1993, for withdrawal of CPF and interest etc., it is clear, that the petitioner was relieved on 16.9.1992. These applications have been produced as Annexures R/3 and R/4. Then, regarding clearance of bills of tour programme, it was contended, that he was considered to be on duty on 15.9.1992 only, and accordingly, his salary, bonus and LTC payment was settled up, and Ex. 20 is self prepared document. The calculations sheet, in respect of the payment made, to the petitioner have been produced as Annexure R/5, and register as Annexure R/6. Then, it is pleaded, that it is / 13 / D.B.S.A.W.No.392 OF 2007 settled legal position that once the competent authority has accepted the resignation, it is not open for the petitioner to withdraw it, as the relationship of employee and employer, comes to an end, and it came to an end in the present case on 16.9.1992, as such representation dated 19.9.1992, is of no consequence. Then, replying to para 29, regarding terms of contract, it was pleaded, that terms mentioned in the 'Offer of appointment' relates to termination by the employer, however in case the employee wants to relinquish his job, by way of resignation, or on any other pretext, then there is no such requirement of any notice, as assumed by the petitioner, as there is no such stipulation, contained therein. It was denied that there was any haste on the part of the appellant. The resignation was submitted on 12.9.1992, and it was forwarded to competent authority, for acceptance, who accepted, and acceptance was communicated on 15.9.1992, and relieving order was issued on 16.9.1992. Regarding application of mind, the allegation was denied, and it was contended, that the competent authority, has accepted his resignation. Regarding plea said to have been taken by the corporation, about having admitted that the resignation was accepted by G.R. Srinivasan, it was contended, that as a matter of fact, in the reply to the writ petition, it was pleaded, that the third respondent accepted the resignation, and relieved the petitioner, from the duties, and in the same para, it was clarified, that on acceptance of resignation, the same was forwarded by Chief Superintendent, to the higher officials at Bombay Office, as the Chief Superintendent was not competent to / 14 / D.B.S.A.W.No.392 OF 2007 accept the resignation, All the relevant papers, along with the noting of the dealing officers, were put up before the competent authority, for consideration, and the competent authority was pleased to accept the resignation. Thus it was contended, that the reply was misinterpreted. Thereafter, it is also pleaded that the petitioner himself tendered resignation on his own, which cannot be challenged, on any ground, whatever, and it has already been clarified, that once the petitioner has resigned from the post, it cannot be said, that he should be given other post of Surgeon. It was also contended, that the petitioner never indicated, nor requested, to be resigning from the post of medical superintendent, nor offered to be allowed to continue to work as Surgeon. It is pleaded, that in the Ex. 13 the petitioner clearly mentioned, that he resigns from the post of Medical Superintendent, or any other post. Resignation is complete in itself, and on its acceptance, the petitioner is not entitled to any relief whatever. It is also submitted, that once the petitioner was designated as Medical Superintendent, and if he resigns, then it cannot mean, that the resignation is not from service, rather it clearly means to be resignation from the service. The subsequent representations are clearly pleaded to be after thought. It was reiterated, that the clear mention of the word “I have no right to remain as Medical Superintendent or any post” does make it clear, that the petitioner resigned from the post of Medical Superintendent or any other post, and it is not / 15 / D.B.S.A.W.No.392 OF 2007 correct to say, that he merely desired to relinquish the job of Medical Superintendent, and wanted to continue as Surgeon. The petitioner filed rejoinder mainly reiterating the original pleadings. However, regarding deletion of names of respondents No 3 to 6, it was pleaded, that in view of fact, of their non holding of the post, or their superannuation, their names were deleted, and hence, their absence is of no consequence. It is also pleaded, that the petitioner was holding the additional charges of post of Medical Superintendent, apart from the post of Surgeon, and that, the two posts are clearly different posts, and resignation was with respect to relinquishing the duties, as Medical Superintendent, which does not mean, that the petitioner submitted his resignation, from the post of Surgeon also, or also from service. It was reiterated, that offer of appointment clearly incorporated a condition, that one month's notice would be necessary, in case of termination of employee, is a condition for both, the employer and the employee. Learned Single Judge noticed, that though several grounds are raised by the learned counsel for the petitioner, to challenge the impugned act, but the learned single judge confined himself to first contention only, as he felt convinced, that it is sufficient to redress the grievance of the petitioner. The first contention has been noticed, being that / 16 / D.B.S.A.W.No.392 OF 2007 letter of resignation, was wrongly interpreted by the corporation, as the petitioner, by the said letter, intended to resign from the work of Medical Superintendent, and not form the post, held by him, being of Surgeon SO/SF. It was emphasized, that the petitioner was appointed as Surgeon So/SF, and was instructed to look after the work of Medical Superintendent, being senior most Surgeon, and that, even from reading of the resignation dated 12.9.1992, it is clear, that the reason for which the petitioner was to get himself disassociated with the work of Medical Superintendent, only and then appreciating this contention, it was found, firstly that from a reading of resignation letter, it is clear, that the petitioner was much aware of the difference between Medical Superintendent and Surgeon SO/SF, and has nowhere stated, that he wants to resign from the post of Surgeon So/SF, which clearly shows, that he was having intention to get himself relieved, from the work of Medical Superintendent, while continuing as Surgeon SO/SF. The other thing, which has been found is, that the resignation letter was not addressed to