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Harish Chandra Gupta Vs. State of Madhya Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1972)IILLJ369MP; 1972MPLJ435
AppellantHarish Chandra Gupta
RespondentState of Madhya Pradesh and anr.
Cases Referred and Raj Kumar v. Union of India A.I.R.
Excerpt:
- - 4. we would like to observe at the outset that the manner in which the case of the petitioner has been handled by the irrigation department is not at all satisfactory and it appears that they have no clear idea of the implications of the letter of resignation (annexure r. on this view of the matter the petition is liable to fail......they will be required to give a month's notice or forfeit a month's pay in lieu of such notice. a resignation tendered under this rule stands on a different footing from a resignation tendered by a permanent employee. such a resignation takes effect on the expiry of the period of notice and brings about the termination of service automatically. in such a case, acceptance of the resignation by the competent authority is not necessary to bring about the termination of the service. in fact, this rule gives either party an option to bring about the termination of service by its unilateral act by giving notice for the required period. a resignation tendered under this rule does not require acceptance and, in fact, it is not open to the government or to the competent authority not.....
Judgment:
ORDER

S.M.N. Raina, J.

1. This is a petition under Article 226 of the Constitution.

2. The petitioner was appointed as overseer in the Irrigation Department by the Chief Engineer of the said department (non-petitioner No. 2) on 14th September, 1959 and he continued to work on the said post till 21-2-1966, on which date he was relieved from the said post at his own request in pursuance of a resignation tendered by him on 16-1-1966. The case of the petitioner is that there was no lawful termination of his service as the resignation was not accepted by the competent authority. In fact, a departmental inquiry was held against him on certain charges and the inquiry continued till July, 1970. The inquiry ultimately terminated in his favour. On 30-12-69, the petitioner submitted an application for withdrawal of his resignation and for being permitted to resume his duties as an overseer. In reply he was informed that he could not be permitted to resume his service as he had tendered his resignation and had remained absent from duty for more than 80 days, vide Annexure 5. The petitioner has, therefore, filed this petition praying for a writ of mandamus directing the State Government and the Chief Engineer to repost the petitioner as overseer and award him all his dues.

3. The non-petitioners, in their return, submitted that treating the letter of resignation of the petitioner, vide Annexure.R. 2, as one month's notice he was relieved from the department on 21-2-1966, and, therefore, he is not entitled to withdraw his resignation and to resume his duties as an overseer.

4. We would like to observe at the outset that the manner in which the case of the petitioner has been handled by the Irrigation Department is not at all satisfactory and it appears that they have no clear idea of the implications of the letter of resignation (Annexure R. 2) and the action taken by them in the matter. It seems that the matter was not brought to the notice of the Chief Engineer and his orders were not obtained. Whatever action was taken appears to have been taken in the office of Executive Engineer without reference to higher authorities.

5. The general rule is that a resignation can take effect only when it is accepted by the employer (Government). It merely amounts to an offer to quit the service and unless the offer is accepted by the employer or someone duly authorized in this behalf, it cannot bring about the termination of service of the employee concerned. Although the relationship between the Government and its employees is not entirely based on contract, in matters which are not governed by any statutory rules or the terms of employment, the principles relating to contracts are applicable. It is for this reason that the principles applicable to withdrawal of offers under the law of contract are also applicable to the withdrawal of a resignation and it has been held in a number of cases that a resignation can be withdrawn before it is accepted by the competent authority, vide Shankar Dutta v. Oraiya Municipality 1956-I L.L.J. 736 : A.I.R. 1956 All 70, and Raj Kumar v. Union of India A.I.R. 1966 Punj. 221.

6. The termination of the service of a Government servant can be brought about either in accordance with the rules governing the conditions of service or by the terms of employment or by acceptance of resignation. Neither party is competent to bring about the termination of service by an unilateral Act, except in accordance with the rules or the terms of employment. It is, therefore, clear that the service of an employee does not stand terminated merely by tendering resignation. It can be terminated only by acceptance of the resignation by a competent authority.

7. In the instant case the petitioner was appointed by the Chief Engineer and as such his service could be terminated by acceptance of his resignation by the Chief Engineer, who was the appointing authority. There is nothing to show that the Chief Engineer ever accepted the resignation or had even occasion to consider it. On the contrary, the order of the Government dated 9th May, 1968, (Annexure 2) which was sent through the Chief Engineer regarding holding a departmental inquiry against the petitioner and another officer, suggests that the petitioner was still being treated in service. Thus, if the acceptance of the resignation is considered necessary in this case it would follow that there was no lawful termination of the service of the petitioner even though he was relieved of his post on 21-2-68, vide Annexure 2.

8. We, however, find that in this case, the question of acceptance of the resignation is not at all material. The petitioner was admittedly a temporary employee and as such it was open to him to bring about termination of his service by giving notice for the required period in accordance with Rule 12 of the M. P. Government Servants (Temporary and Quasi-Permanent Servants) Rules, I960. The said rule is reproduced below for facility of reference:

12. (a) subject to any provision contained in the order of appointment or in any agreement between the Government and the temporary Government servant, the service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant:

* * *(b) The period of such notice shall be one month unless otherwise agreed between the Government and the Government servant.

Under the aforesaid rule, it is open to a temporary Government servant to bring about the termination of his service at any time by giving one month's notice in writing to the appointing authority unless a longer period of notice is required by the terms of appointment Similarly, it is open to the appointing authority to terminate the service of a temporary employee by a similar notice. There is a similar provision in Rule 98 of the M.P. Public Works Department Manual (Vol. 1). The Rule provides that if the members of the temporary establishment desire to resign their appointment they will be required to give a month's notice or forfeit a month's pay in lieu of such notice. A resignation tendered under this rule stands on a different footing from a resignation tendered by a permanent employee. Such a resignation takes effect on the expiry of the period of notice and brings about the termination of service automatically. In such a case, acceptance of the resignation by the competent authority is not necessary to bring about the termination of the service. In fact, this rule gives either party an option to bring about the termination of service by its unilateral act by giving notice for the required period. A resignation tendered under this rule does not require acceptance and, in fact, it is not open to the Government or to the competent authority not to accept a resignation which is submitted under this rule. It would, therefore, appear that since the petitioner was relieved of his post in pursuance of a notice given under this rule, his service stood terminated with effect from the date he was relieved and there was no question of acceptance of his resignation.

9. Learned Counsel for the petitioner produced at the hearing the order of appointment of the petitioner, which provides as under:

If he desires to resign his appointment he will be required to give 3 months' notice or forfeit 3 months' pay in lieu thereof.

Even according to the aforesaid provision it was open to the petitioner to bring about the termination of his service by giving three months' notice. He could even quit without giving any such notice, but in that case he was liable to forfeit 3 months' pay. Thus, even under this provision, the petitioner could bring about the termination of service by unilateral act and that is what he did in this case. He submitted a letter of resignation giving one month's notice and he was relieved on the expiry of the said period. It is, therefore, clear that the petitioner's service stood terminated with effect from the date he was relieved and thereafter it was not open to him to withdraw his resignation. Once the service is duly terminated and the relationship cannot be restored by withdrawal of the resignation. On this view of the matter the petition is liable to fail. It seems that under some erroneous impression, the Government held an inquiry against him treating him in service, but that is of no consequence, looking to the legal position as indicated above.

10. The petition, therefore, fails and is hereby dismissed. We do not, however, make any order as to costs in the circumstances of this case. The security amount shall be refunded to the petitioner.


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