1. The petitioner has presented this petition for quashing the award of the Labour Court, Mysore, holding that the management was justified in accepting the resignation of the petitioner even after he withdrew the said resignation as the same had been accepted by the management before its withdrawal.
2. The facts of the case in brief are as follows :
3. The petitioner was a clerk in the service of M/s. Kushal nagar Works at Kudige in the district of Coorg. According to the petitioner, on account of the use of abusive language and ill-treatment by the then manager, he tendered his resignation on 23rd August, 1969, and the resignation has to become effective on the expiry of one month, i.e., with effect from 22nd September, 1969. Subsequently, after considering the consequences that would ensue to him as a result of loss of job, the petitioner made a representation on 3rd September, 1969 (annexure-3 to the counter-statement) to the managing director and in the said representation, he withdrew his resignation. But he was not allowed to continue in service on the ground that his resignation had already been accepted as per the order dated 23rd August, 1969. Subsequently, he was relieved of his duties with effect from 22nd September, 1969. Thereafter, the petitioner raised an industrial dispute. After the conciliation proceedings failed the Stage Government, by its order dated 29th December, 1970, referred the following points of dispute for adjudication to the Labour Court, Mysore. (annexure-5) :
POINTS OF DISPUTE
1. Is the management of M/s. Kushal nagar Works, Kudige, justified :
(a) in accepting the resignation of Sri P. Nagaraju, ex-employee of the said management, as voluntary and if so.
(b) in not permitting him to withdraw his resignation before he was actually relieved :
2. If not, to what relief the above workman is entitled
After recording the evidence, the Labour Court came to the conclusion that the resignation tendered by the petitioner was voluntary and, therefore, the management was justified in accepting the resignation. As regards the second point, viz., whether the management was justified is not permitting the petitioner, to withdraw his resignation, the Labour Court held that the management was justified in doing so as the resignation had already been accepted though it had not become effective. The relevant portion of the order of the Labour Court reads thus : 'This takes me to the question whether the management was justified in not permitting the workman to withdraw his resignation before he was actually relieved. The first party workman tendered his resignation, letter exhibit M-3, on 23rd August, 1979, and on the same day, his resignation was accepted by the Manager and the said fact was intimated to the workman as per exhibit M-4. Thereupon, the workman made a representation to the Managing Director as per his application dated 3rd/9th September, 1969, to permit him to withdraw his resignation. But the management did not allow him to withdraw his resignation. The workman was not relieved of his duties on 23rd August, 1969, the date on which his resignation was accepted, but he was actually relieved on 22nd September, 1969. The submission of the workman is that he was entitled to withdraw his resignation before he was actually relieved. I am unable to accept his submission. As per the appointment order, exhibit M-1, one month's notice on either side was required for terminating the employment. As per the said condition in the appointment order, the workman requested the management in his resignation letter, to accept his resignation and to permit him to do his duty and to relieve him after one month, i.e., from 22nd September, 1969. Thus, as per the condition in the appointment order and as per the request of the first party workman himself, he was permitted to do his duty for one month even though his resignation was accepted. As soon as the resignation was accepted, the matter became closed even though the workman was to be relieved after one month. In other words, the resignation became effective from the date on which it was accepted, i.e., on 23rd August, 1969. Under these circumstances the management was perfectly justified is not permitting the workman to withdraw his resignation before he was actually relied.'
Aggrieved by the abovesaid order, the petitioner has presented this writ petition.
4. The contention of the petitioner in this writ petition is that even on the basis that the resignation tendered by him was voluntary, as the resignation was to become effective only with effect from 22nd September, 1969, he had the right to withdraw the said resignation at any time earlier to the date on which it would have become effective and as he had withdrawn the resignation through his representation dated 3rd September, 1969, i.e., clearly 19 days before the date on which the resignation was to become effective, he had the right to withdraw the resignation and, therefore, he should have been continued in service.
5. As against the above submission of the petitioner, learned counsel for the management submitting as follows. The petitioner admittedly tendered his resignation on 23rd August, 1969. The Labour Court has held that it was voluntary. On the same day a communication was given to him informing him that his resignation had been accepted. Therefore, the petitioner had no right to withdraw the resignation after the same was accepted.
6. In support of his contention, learned counsel relies on the judgment of the Supreme Court in Rajkumar v. Union of India [1970-I L.L.J. 13]. The ratio of the decision is that an employee who had tendered resignation could withdraw his resignation before it was accepted and he could not do so after it was accepted and he ceased to be in service.
7. Therefore, there can be no doubt that if the resignation of the petitioner became effective from the date of its acceptance, i.e., 23rd August, 1969, the petitioner had no right to withdraw. But the facts of this case are different. Though the management purported to accept the resignation on 23rd August, 1969, even according to the acceptance - extracted later in the judgment - the petitioner was to continue in service till 22nd September, 1969, and his service was to come to an end only on 22nd September, 1969. In other words the resignation was to come into effect from 22nd September, 1969. Therefore, the precise question which arises for consideration in this case is whether the petitioner was entitled to withdraw the resignation before it became effective This aspect is directly covered by the judgment of the Supreme Court in Union of India v. Gopal Chandra Misra, : (1978)ILLJ492SC . The relevant portion of the judgment reads thus :
'It will bear repetition that the general principle is that in the absence of a legal contractual or constitutional bar, a 'prospective' resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a Government servant or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally the tender of resignation becomes effective and his service/or office-tenure terminated when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under proviso (a) to Article 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand, addressed to the President, he resigns in praesenti, the resignation terminates his office-tenure forthwith, and cannot, therefore, be withdrawn or revoked thereafter. But, if he by such writing chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective withdraw it, because the Constitution does not bar such withdrawal.'
From the above judgment, it is clear that in a case where the resignation tendered is to become effective with effect from a future date, the employee who has tendered resignation has a right to withdraw the resignation before it becomes effective and he goes our of employment.
8. The relevant documentary evidence in this case, to which I proceed to refer, brings the case of the petitioner within the ratio of the case in Gopalchandra Misra (supra).
The letter of resignation dated 23rd August, 1969 (annexure-I), reads :
Kushal nagar Works,
As there are no prospects in my present position here, I have decided to relinquish my job and, therefore, please accept this as my resignation and relieve me from my duties from 22nd September, 1969.
* * ** * * Yours faithfully,
Dated : 23rd August, 1969.
As could be seen from the aforesaid resignation letter, it was to become effective from 22nd September, 1969, and the petitioner was to be relieved from service from the said date. On the same day, the Manager sent a communication to the petitioner accepting his resignation.
It reads thus :
I am in receipt of your dated 23rd August, 1969, tendering your resignation of your job in Kushal nagar Works and requesting to be relieved from 22nd September, 1969, thereby, giving a month's notice. I am writing this to inform you that your resignation is hereby accepted and you will be believed from the service of the Company on 22nd September, 1969, as requested. In the meanwhile, I have written to our Head Office to inform about your provident fund and other service benefits to be paid to you and the same will be settled as soon as I hear from our Head Office at Pollibetta. Please take notice to vacate your quarters on the 23rd September, 1969, after handing over the quarters and Company belongings to the Assistant Superintendent.
* * * According to the aforesaid letter also, though the resignation of the petitioner was accepted, he was to be relieved with effect from 22nd September, 1969. As indicated in the said communication itself, the petitioner was also required to give one month's notice. Therefore, undisputedly the petitioner continued in service even after 23rd August, 1969, and was in service till 22nd September, 1969. In the meanwhile, the petitioner made a representation to the Managing Director (annexure-3 to the objection statement). In the said representation, after setting out the circumstances under which he tendered his resignation, the petitioner proceeded to state as follows :-
'* * *'* * * I, therefore, request that I may kindly be allowed to continue in service treating this as my letter withdrawing the resignation, I may kindly be given a personal hearing when I will convince the Managing Director of my loyalty and under which stress and extraordinary circumstances I had to tender resignation.'
In the aforesaid paragraph, the petitioner in clear terms has stated that he was withdrawing his resignation. In view of the aforesaid withdrawal, the petitioner was entitled to continue in service as if he had not tendered resignation. In other words, there was no resignation to be acted upon. Therefore, it is the ratio of the decision of the Supreme Court in Gopalchandra's Case, (supra) which is apposite to this case and not the one in Rajkumar's case (supra). The Labour Court, therefore, erred in answering point No. I(b) referred to it for adjudication against the petitioner.
9. For the reasons aforementioned, point No. I(b) has to be and is answered in favour of the petitioner. He is entitled to be reinstated and continued in service.
10. The only other question for consideration is about the back-wages. Learned counsel for the management submitted that as it was the petitioner himself who by his own voluntary resignation created the problem, he was not entitled to back-wages. It is true, the petitioner by tendering the resignation, whatever, be the reason, invited trouble to himself. But the management by not continuing the petitioner in service even after the withdrawal of resignation invited trouble to itself. The only excuse pleaded for the management was that the law was not clear on the point at that point of time. There is some force in this plea. On a consideration of all the facts and circumstances and in particular that the initial cause for all the trouble squarely lies with the petitioner, I consider it proper to deny him in 25% of the back-wages.
In the result, I make the following order :
(i) Rule made absolute.
(ii) The impugned award of the Labour Court dated 18th November, 1978, is set aside. The petitioner shall be entitled to reinstatement with continuity of service and back-wages to the extent of 75% of the wages which he would have drawn had he continued in service.
(iii) Respondent No. 2 shall within one month from today call upon the petitioner to join duty by giving him 15 days' time to do so. No costs.