Case: P. Kasilingam Vs. P.S.G. College of Technology

beg to resign my office as Judge High Court of Judicature at Allahabad. "I will be on leave till 31st of July, 1977. My resignation shall be effective on 1st of August, 1977." 11. The Court in construing the words resign his office in proviso (a) to Art. 217(1) of the Constitution held that a High Court Judges letter addressed to the President intimating or notifying his intention to resign his office of a Judge on a future date, does not and cannot sever him from the office of the Judge, or terminate his tenure. It may be conceded that it is open to a servant to make his resignation operative from a future date and to withdraw such resignation before it s acceptance. The question as to when a Government servants resignation becomes effective came up for consideration by this Court in Raj Kumar v. Union of India. It was held that the services of a Government servant normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, unless there is any law or statutory rule governing the conditions of service to the contrary. There is no reason why the same principle should not apply to the case of any other employee.We are, however, constrained to observe that the Government acted in breach of the rules of natural justice inasmuch as there was on its part non-compliance of the requirements of cl. (1) of sub-s. (2) of s. 39 of the Act, which reads:"39(2) On receipt of any such appeal, the appellate authority shall, after- (i) giving the parties an opportunity of making their representations, (ii) ..... ........ ( iii).............. make such order as it deems just and equitable." 12. It is contended on behalf of the respondent that the High Court instead of resting its decision on merits, should have directed the Government to re-hear the appeal under s.20 of the Act. It is submitted that there was a duty cast on the Government to hear the respondent since the Addl. Director of Technical Education had on the basis of the evidence adduced, come to a definitive finding that the letter of resignation submitted by the appellant was voluntary, before it came to a contrary conclusion. The contention has considerable force. It is needless to stress that ordinarily the Government must, in all such cases, as a matter of course, give the parties the opportunity of making their representations before taking a decision. 13. In our judgment it would however, really serve no useful purpose in remitting the appeal in this particular case to the Government for a re-hearing . It is not seriously disputed before us that the charges levelled against the appellant were not of such a nature as would merit his dismissal from service. On the contrary, it can easily be visualised that even if the appeal were sent back to the Government, it would either exonerate the appellant or may let him off with a minor penalty. The better course would be to restore the order of the Government for the reinstatement of the appellant in service, having regard to the facts and circumstances of the case.There still remains the question of back-wages. It is sought to be urged on behalf of the appellant that upon such reinstatement he would be entitled under the terms of sub- s.(1) of s.40 of the Act to all his arrears of pay and allowances. We are afraid, we can make no such direction in this appeal. There is nothing on record to show that any such appeal has been filed by the respondent. Sub-section (1) of s.40 makes deposit of arrears of salary and allowances upon reinstatement by the appellate authority referred to in s.20 of the Act, a pre-condition to the preferment of an appeal by the management under s.22. Only when such an appeal is preferred by the management the Tribunal is invested with jurisdiction to make a direction under sub-s.(1) of s.40 that the management shall deposit the arrears of pay and allowances due to the appellant within such time as it directs. In that event, it is of course, open to the ma nagement to raise a dispute according to sub-s.(3) of s.40 of the Act as to the amount to be deposited under sub-s.(1). In the instant case, however, since there is no appeal filed by the respondent under s.22 of the Act, the question of making a direction in terms of sub-s.(1) of s.40 of the Act does not arise. 14. It was, however, open to the Government while allowing the appeal preferred by the appellant under s. 20 of the Act to make a direction not only for his reinstatement but also for payment of all his arrears of pay and allowances. The words make such order as it deems just and equitable read in the context of cl.(iii) thereof: "(iii) considering all the circumstances of the case" occurring in sub-s.(2) of s.3 9 of the Act, are wide enough to include the power to make such a direction. Normally, the reinstatement of a person in service should carry a direction for payment of his back-wages. We regret to find that the Government has made no direction i n that behalf. We are, therefore, constrained to remit the matter to the Government. While adjudicating upon the claim of the appellant to payment of all his arrears of pay and allowances, the Government shall give an opportunity t o the respondent to have its say in the matter. The respondent is entitled, as a matter of law. it adjustment of equities between the parties by an account being taken of the salary earned by the appellant elsewhere or of any income derived by him from any source whatsoever, between the period from September 19, 1976 till the date of reinstatement. The appellant had a duty to mitigate his loss and it cannot be that during the aforesaid period he remained idle throughout.I n

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Regrettably the High Court has in allowing the writ petition converted itself into a court of appeal and examined for itself the correctness of the conclusion reached by the Government and decided what was the proper view to be taken or the order to be made. It adverts to the three circumstances relied upon by the Government for reaching the conclusion that the letter of resignation was not voluntary and not accepting the report of the enquiry officer. It observes that though Prof. Shanmughasundaram, Head of the Department, had been examined during the enquiry, there was no specific question put to him during his cross-examination that the two letters had been typed by him. It further observes that there was absolutely no evidence at all as to who typed the letters in question and on whose typewriter they were got typed. It observes that the Government was also aware of the lack of evidence on this aspect of the case and it was for this reason they have not made any specific averment in the counter affidavit. They merely say the letter s seem to have been typed by the management themselves. This appears to be a mere conjecture and a finding based on such a conjecture cannot at all be supported as based on any acceptable evidence. It then proceeds to refute the suggestion of the Government that the corrections made in the two letters were in the handwriting of the Advocate appearing for the management, and goes on to say that the Government once again merely surmises that the letter contained corrections by the Advocate for the management. It also rejects the suspicion attaching to the submission of the letters of resignation and apology simultaneously by expressing that we do not see how the Government can delve into the mind of the management and find out whether there was necessity to give the letter of resignation and apology simultaneously.The Government was competent to come to the conclusion that it did upon the facts appearing on the record. The High Court could not speculate as to what were the circumstances which outweighed the finding recorded by the Addl. Director of Technical Education holding that the appellant had voluntarily submitted his resignation. The fact remains that the report submitted by him was not accepted by the Government and it came to the conclusion that the letter of resignation could not be treated to be voluntary. The Government was circumspect in viewing the circumstances surrounding the submission of the letter of resignation with certain amount of suspicion. The finding reached by the Government does not necessarily mean that the letter of resignation was obtained from the appellant under coercion. It may well be that the appellant was acting under an element of compulsion for he had become a victim of the situation brought about by the holding of a departmental enquiry and if the appellant placed in such circumstances submitted a letter of resignation it would not necessarily give rise to an inference that his act in doing so was voluntaryRegrettably the High Court has in allowing the writ petition converted itself into a court of appeal and examined for itself the correctness of the conclusion reached by the Government and decided what was the proper view to be taken or the order to be made. It adverts to the three circumstances relied upon by the Government for reaching the conclusion that the letter of resignation was not voluntary and not accepting the report of the enquiry officer. It observes that though Prof. Shanmughasundaram, Head of the Department, had been examined during the enquiry, there was no specific question put to him during his cross-examination that the two letters had been typed by him. It further observes that there was absolutely no evidence at all as to who typed the letters in question and on whose typewriter they were got typed. It observes that the Government was also aware of the lack of evidence on this aspect of the case and it was for this reason they have not made any specific averment in the counter affidavit. They merely say the letter s seem to have been typed by the management themselves. This appears to be a mere conjecture and a finding based on such a conjecture cannot at all be supported as based on any acceptable evidence. It then proceeds to refute the suggestion of the Government that the corrections made in the two letters were in the handwriting of the Advocate appearing for the management, and goes on to say that the Government once again merely surmises that the letter contained corrections by the Advocate for the management. It also rejects the suspicion attaching to the submission of the letters of resignation and apology simultaneously by expressing that we do not see how the Government can delve into the mind of the management and find out whether there was necessity to give the letter of resignation and apology simultaneously.The Government was competent to come to the conclusion that it did upon the facts appearing on the record. The High Court could not speculate as to what were the circumstances which outweighed the finding recorded by the Addl. Director of Technical Education holding that the appellant had voluntarily submitted his resignation. The fact remains that the report submitted by him was not accepted by the Government and it came to the conclusion that the letter of resignation could not be treated to be voluntary. The Government was circumspect in viewing the circumstances surrounding the submission of the letter of resignation with certain amount of suspicion. The finding reached by the Government does not necessarily mean that the letter of resignation was obtained from the appellant under coercion. It may well be that the appellant was acting under an element of compulsion for he had become a victim of the situation brought about by the holding of a departmental enquiry and if the appellant placed in such circumstances submitted a letter of resignation it would not necessarily give rise to an inference that his act in doing so was voluntaryThe contention has considerable force. It is needless to stress that ordinarily the Government must, in all such cases, as a matter of course, give the parties the opportunity of making their representations before taking a decisionIn our judgment it would however, really serve no useful purpose in remitting the appeal in this particular case to the Government for a re-hearing . It is not seriously disputed before us that the charges levelled against the appellant were not of such a nature as would merit his dismissal from service. On the contrary, it can easily be visualised that even if the appeal were sent back to the Government, it would either exonerate the appellant or may let him off with a minor penalty. The better course would be to restore the order of the Government for the reinstatement of the appellant in service, having regard to the facts and circumstances of the case.There still remains the question of back-wages. It is sought to be urged on behalf of the appellant that upon such reinstatement he would be entitled under the terms of sub- s.(1) of s.40 of the Act to all his arrears of pay and allowances. We are afraid, we can make no such direction in this appeal. There is nothing on record to show that any such appeal has been filed by the respondent. Sub-section (1) of s.40 makes deposit of arrears of salary and allowances upon reinstatement by the appellate authority referred to in s.20 of the Act, a pre-condition to the preferment of an appeal by the management under s.22. Only when such an appeal is preferred by the management the Tribunal is invested with jurisdiction to make a direction under sub-s.(1) of s.40 that the management shall deposit the arrears of pay and allowances due to the appellant within such time as it directs. In that event, it is of course, open to the ma nagement to raise a dispute according to sub-s.(3) of s.40 of the Act as to the amount to be deposited under sub-s.(1). In the instant case, however, since there is no appeal filed by the respondent under s.22 of the Act, the question of making a direction in terms of sub-s.(1) of s.40 of the Act does not arise7. There is no manner of doubt that the circumstances attendant upon the submission of the letter of resignation and the letter of apology on March 19, 1976 are somewhat strange. The manner in which the letter of resignation was obtained from the appellant on that day at 8.30 A.M. together with his letter of apology, just before the departmental enquiry was to commence at 9.00 A.M., clearly suggests that they were integral parts of the same transaction. It was somewhat unusual for a delinquent officer to be called to the residence of the Correspondent of the College along with the Principal and to have the two documents signed by him, as a condition for dropping the enquiry. It appears that the submission of let ter of apology, which virtually amounted to an admission of guilt, along with the unconditional letter of resignation, was part of a deal between the management and the appellant. It was meant to act as an inducement for the enquiry not to be proceeded with. One is left with the unfortunate impression that the management wanted to dispense with the services of the appellant. The Government was, therefore, justified in holding that if the appellant placed in such circumstances submitted his resignation, it would not necessarily give rise to an inference that his act in doing so was voluntary. The Government in dealing with an appeal under s. 20 of the Act was, at any rate, entitled to come to that conclusiony the High Court has in allowing the writ petition converted itself into a court of appeal and examined for itself the correctness of the conclusion reached by the Government and decided what was the proper view to be taken or the order to be made. It adverts to the three circumstances relied upon by the Government for reaching the conclusion that the letter of resignation was not voluntary and not accepting the report of the enquiry officer. It observes that though Prof. Shanmughasundaram, Head of the Department, had been examined during the enquiry, there was no specific question put to him during hisn that the two letters had been typed by him. It further observes that there was absolutely no evidence at all as to who typed the letters in question and on whose typewriter they were got typed. It observes that the Government was also aware of the lack of evidence on this aspect of the case and it was for this reason they have not made any specific averment in the counter affidavit. They merely say the letter s seem to have been typed by the management themselves. This appears to be a mere conjecture and a finding based on such a conjecture cannot at all be supported as based on any acceptable evidence. It then proceeds to refute the suggestion of the Government that the corrections made in the two letters were in the handwriting of the Advocate appearing for the management, and goes on to say that the Government once again merely surmises that the letter contained corrections by the Advocate for the management. It also rejects the suspicion attaching to the submission of the letters of resignation and apology simultaneously by expressing that we do not see how the Government can delve into the mind of the management and find out whether there was necessity to give the letter of resignation and apology simultaneously.The Government was competent to come to the conclusion that it did upon the facts appearing on the record. The High Court could not speculate as to what were the circumstances which outweighed the finding recorded by the Addl. Director of Technical Education holding that the appellant had voluntarily submitted his resignation. The fact remains that the report submitted by him was not accepted by the Government and it came to the conclusion that the letter of resignation could not be treated to be voluntary. The Government was circumspect in viewing the circumstances surrounding the submission of the letter of resignation with certain amount of suspicion. The finding reached by the Government does not necessarily mean that the letter of resignation was obtained from the appellant under coercion. It may well be that the appellant was acting under an element of compulsion for he had become a victim of the situation brought about by the holding of a departmental enquiry and if the appellant placed in such circumstances submitted a letter of resignation it would not necessarily give rise to an inference that his act in doing so was