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Nirvair Singh Vs. the Punjab State Electricity Board and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 926 of 1969
Judge
Reported inAIR1973P& H322
ActsPunjab Civil Services Rules - Rule 4.4; East Punjab Essential Services (Maintenance) Act, 1947 - Sections 3
AppellantNirvair Singh
RespondentThe Punjab State Electricity Board and ors.
Cases ReferredRaj Kumar v. Union of India
Excerpt:
.....judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a..........one month's pay in lieu of notice on may 9, 1961, and, therefore, according to the appointment letter his resignation became effective from that very day and did not require any acceptance by the board. the board or its officers had no power to compel the petitioner to continue in its service when he was unwilling to do so. the question of acceptance would have arisen if the petitioner had continued in service to await the decision of the board on his resignation. the petitioner voluntarily snapped his ties and put an end to the relationship of master and servant between the board and himself. he cannot be head to say that his resignation, though complete, could not be effective without acceptance by the board.10. there is another way of looking at the matter. after putting in his.....
Judgment:
ORDER

1. The petitioner joined service of Punjab State Electricity Board as a Lineman Grade 1 on June 14, 1957, and was promoted to the rank of Line Superintendent on June 9, 1959. On May 9, 1961, he submitted his resignation to the Chief Engineer Punjab State Electricity Board, Patiala, through proper channel reading as under:--

'As my family circumstances do not permit me to serve the Board any longer I, therefore, tender my resignation with immediate effect from today i.e. 9th May, 1961 A. N. One month's pay as required under rules Rs. 150.50(Rupees one hundred and N. P. 50 only) has been deposited by me vide receipt no. 45/157 dated 9-5-1961.'

This resignation was handed over to the Executive Engineer and the petitioner was relieved of his post. On May 11, 1961, he sent the following telegram to Shri L. R. Malik Executive Engineer, Electricity Board, Chandigarh:

'Kindly reject resignation phonic request joining twelfth or thirteenth.'

On May 13, 1961, the petitioner reported for duty and delivered to the Executive Engineer the following letter:

'I beg to say that I have resigned my post as Line Supdt. Grade II on 9-5-1961 A. N. due to some family circumstances, for which I regret very much and request to return my resignation and accept my arrival report w. e. f. today (i.e. 13-5-1961 F. N.) on the same post.'

On this letter the Executive Engineer made the following note:

'I think he can withdraw his resignation before it is accepted.

His joining report be provisionally accepted from today. Of course he will have to abide by the decision of Higher Authority.

He should be told above facts and on acknowledgment taken from him in writing.'

The Executive Engineer thereafter informed the Superintending Engineer, Ambala Circle, about the resignation and resumption of duty by the petitioner by letter dated May 19, 1961, and asked for the advice as to how the intervening period was to be regularised. The Superintending Engineer wrote a letter to the Chief Engineer on June 3, 1961 in which it was stated:

'The official has been allowed to resume his duties on 13-5-1961 in anticipation of your approval in the interest of Board's work. It is, therefore, requested that action taken by the undersigned as above may kindly be approved.'

2. The Chief Engineer wrote back to the Superintending Engineer on July 1, 1961, as under:--

'You were neither competent to accept the resignation of the above named official nor to take him back into the service once he had been relieved of his duties. Please intimate why the resignation of the official was accepted and then he was taken back into service without the orders of the competent Authority.'

3. In reply to this letter the Superintending Engineer informed the Chief Engineer by letter dated July 17, 1961, that the resignation of the petitioner had not been accepted till then by any officer and his resignation had not even been received in his office. However the Executive Engineer allowed him to join subject to the approval of the chief Engineer in the interest of the Board as there was dearth of practical and experienced hands. He asked for the final decision in this matter. By letter dated October 27, 1961, the Chief Engineer informed the Superintending Engineer, Ambala Circle that the case of the petitioner was of re-appointment and the Board alone was competent to re-employ him and he should be informed whether the petitioner was qualified for the post of Line Superintendent Grade II. The Superintending Engineer, Ambala, supplied the requisite information by letter dated January 8, 1962, reading as under:--

'(1) Shri Nirvair Singh, who is a Matriculate and has passed 2 years' electrician course held by Government of India D. G. R. New Delhi joined his Department on 14-6-1957 F. N.

(2) His case may be considered by the Board of re-appointment.

(3) In view of his experience in the Branch and two years' Electrical Course he was allowed to rejoin his post. In view of his experience and qualification which are considered adequate, the case may kindly be considered for re-appointment.'

4. On February 15, 1962, the petitioner wrote a letter to the executive Engineer, Chandigarh Division, Chandigarh reading as under:

'With due respect I beg to state that in case the higher authorities do not allow me to withdraw my resignation, I would not lodge any claim against the Board.

This I am giving under protest.'

5. On April 4, 1962, the Assistant Secretary of the Board informed the Chief Engineer that there was no objection to the re-appointment of the petitioner as officiating Line Superintendent Grade II with effect from 13th May 1961, i.e. the date on which he had been taken in service after resignation. It was further directed that the pay of the petitioner should be fixed under Rule 4.4(b) of the Punjab Civil Services Rules, Vol. I, Part I. (minimum of the time scale). Thereafter the Chief Engineer informed the Superintending Engineer by letter dated May 9, 1962 that the re-appointment of the petitioner as officiating Line Superintendent Grade II with effect from 13-5-1961 i. e. the date on which he had been taken service after resignation was approved and that his pay should be fixed under Rule 4.4(b) of the Punjab Civil Services Rules. Vol. I, Part I. (minimum of the time scale). By another letter dated November 5, 1962, the Chief Engineer informed the Superintending Engineer Chandigarh Circle, that the petitioner should be informed that he had been re-appointed as a special case and was to be treated as a fresh recruit for all intents and purposes and that the question of condoning the period of absence after resignation did not arise. On December 29, 1964, the petitioner was offered the post of officiating Line Superintendent Grade II on a salary of Rs. 90/- P. M. in the scale of 90-6-150/7-185 90-6-150/7-185 with effect from 13-5-1961. He was to be granted allowances as may be in force from time to time. It was further stated in the appointment letter that the appointment was temporary and the services would be terminable by one month's notice by the Board on the one side and the petitioner on the other or by depositing with the Board one month's pay plus allowances in lieu thereof. The petitioner accepted the appointment under protest and made a representation to the Board on March 6, 1965, which was rejected on June 30, 1965. He made another representation on August 10, 1968, which was rejected on February 13, 1969. The petitioner thereafter filed the present petition praying that the Punjab State Electricity Board should be directed to consider the petitioner continuously in its service from June 14, 1957, when he joined the department as Lineman and to ignore the resignation submitted by him which was withdrawn before it was accepted. It was further prayed that the order accepting his resignation should be quashed. Written statement has been filed by the Board and during the course of arguments, the petitioner filed a copy of the notification dated September 16, 1959 (marked as annexure D by me) and the respondent-Board filed copies of letters (marked R. 4 to R. 14 by me). The above documents were allowed to be produced in order to clarify the facts.

6. The learned counsel for the petitioner as emphasised that the mere tendering of the resignation did not put an end to the relationship of master and servant between the State Electricity Board and the petitioner and he could withdraw that resignation before it was accepted. Since he withdrew his resignation before its acceptance the resignation could not be acted upon and had to be treated as non-existent. In that view of the matter, the learned counsel submits, the petitioner continued to be in service and his re-appointment with effect from May 13, 1961, could not be considered to be a fresh appointment depriving him of his previous service. The learned counsel has relied on the judgment of a Division Bench of this Court in Raj Kumar v. Union of India, ILR (1966) 1 Punj 236=(AIR 1966 Punj 221) wherein the following observations occur:--

'We are of the opinion that the acceptance of resignation is necessary before the service of an employee can come to an end. Such an acceptance is a necessary step in giving effect to the resignation and until that step has been taken the resignation cannot be said to be complete and effective. In the case of a Civil Servant it is not a matter affecting the two parties, namely, the employee and the Government. The public has also a right to the service of all the citizens and may demand them in all Departments civil as well as in military. Civil Servants are appointed for the purposes of exercising the functions and carrying on the operations of the Government. They have to discharge all sorts of duties, judicial as well as administrative and it would result in complete chaos if it were held that the resignation would become effective as soon as a civil servant tendered it. The exigencies of the public office may demand that the civil servant must carry on the operations of the Government and continue to discharge the functions till the Government is able to make alternative arrangements. A political organisation would seem to be imperfect which should allow the repositories of its powers to throw off the responsibility at their own pleasure. Even if the matter be treated as a contract between the parties, the same result would follow. A person who has agreed to serve till his services are terminated must first make an offer communicating his intention to terminate and that officer must be accepted.'

7. The petitioner in that case filed an appeal which was dismissed by their Lordships of the Supreme Court on April 18, 1968. That judgment, is reported as Raj Kumar v. Union of India, 1968 Serv LR 730=(AIR 1969 SC 180). Their Lordships held that the communication of the acceptance of the resignation was not necessary and even if Raj Kumar had been permitted to continue in service in spite of the acceptance of the resignation the withdrawal of his resignation was of no effect.

8. The facts of that case are that Raj Kumar, a member of the Indian Administrative Service in Rajasthan submitted his resignation to the Chief Secretary to the Government of Rajasthan on August 31, 1964, which was forwarded to the Central Government. The Central Government accepted the resignation and its decision was despatched to the State Government on October 31, 1964 for communication to the petitioner. The acceptance of the resignation was not as yet communicated to the petitioner when he wrote another letter dated November 27, 1964, withdrawing his resignation. The Central Government refused the petitioner's request to withdraw the resignation and relieved him of his duties on the ground that his resignation had already been accepted. It is thus apparent that the facts of the case are clearly distinguishable from the facts of the present case. In that case the petitioner was a civil servant who had a statutory status and which could not be put an end to without the acceptance of his resignation. It was, however, held that whereas the acceptance of the resignation was necessary the communication of the acceptance was not sine qua non for making that acceptance effective. In the present case the State Electricity Board is not a 'State' and its employees do not enjoy any statutory status. As between the Board and its employees, there is essentially a contract of service which is governed by certain service rules and the conditions in the appointment letter.

9. It has been stated by the learned counsel for both the parties that there were no service rules governing the petitioner's service in the Board and according to the appointment letter the petitioner could resign by giving one month's notice to the Board or by paying one month's pay in lieu of notice. The petitioner paid one month's pay in lieu of notice on May 9, 1961, and, therefore, according to the appointment letter his resignation became effective from that very day and did not require any acceptance by the Board. The Board or its officers had no power to compel the petitioner to continue in its service when he was unwilling to do so. The question of acceptance would have arisen if the petitioner had continued in service to await the decision of the Board on his resignation. The petitioner voluntarily snapped his ties and put an end to the relationship of master and servant between the Board and himself. He cannot be head to say that his resignation, though complete, could not be effective without acceptance by the Board.

10. There is another way of looking at the matter. After putting in his resignation and depositing the amount on May 9, 1961 the petitioner left the service. Thereafter he remind absent from duty for 3 days i.e. 10th, 11th and 12th May and rejoined on May 13, 1961. His absence from duty for those 3 days was not condoned by the Board and it was considered as a break in his service, the result of which was that he forfeited his previous service. It was open to the Board to condone the absence from duty for those 3 days and to convert it into the leave of the kind due but after due consideration the Board did not condone the same. The matter was under the consideration of the Board for more than 3 years and on December 29, 1964, the petitioner was offered a fresh appointment with effect from May 13, 1961, which he accepted although under protest. The acceptance under protest had no meaning in the circumstances of the case. No rule has been brought to my notice where under the voluntary absence from duty without leave or permission cannot be said to take effect as break in service and that it must be condoned and converted into leave of the kind due. The Board was thus within its rights to treat the petitioner as having terminated his appointment with effect from May 9, 1961, and to appoint him afresh with effect May 13, 1961. If the terms of fresh appointment were not acceptable to the petitioner, he should not have joined the service of the Board. Having joined the service on those terms he cannot claim that he should be given the benefit of his previous service and should be considered to have been continuously in the service of the Board with effect from June 14, 1957 when he originally joined the service.

11. The learned counsel for the petitioner has then relied on the notification dated September 16, 1959, issued by the Governor of Punjab, declaring the employment under the Punjab State Electricity Board as essential for maintaining supplies or services necessary for the life of the community under Section 3 of the East Punjab Essential Services (Maintenance) Act, 1947. It is submitted by the learned counsel that according to the said Act the petitioner could not abandon his post of duty without the sanction of the Board and, therefore, it should be considered that he never abandoned his post. The submission seems to be misconceived. The petitioner could be prosecuted under that Act for having abandoned his duty without the acceptance of his resignation by the Board but if the Board had no objection to the abandoning of his duty, he incurred no liability under the said Act. Even if he incurred any liability to be prosecuted under that Act, it did not mean that he could not be said to have given up the service of the Board on May 9, 1961. Even if he had been prosecuted under that Act he could not claim reinstatement after serving the sentence, if any, imposed on him. It was entirely for the Board to treat him as having remained in service continuously or to treat him as a fresh appointee with effect from May 13, 1961. In the absence of any statutory rules, this Court cannot command the Board to treat the petitioner as having remained in its service continuously from June 14, 1957 in spite of having absented himself from duty voluntarily without the leave or permission of the Board for at least 3 days from May 10, to May 12, 1961.

12. The learned counsel for the petitioner has relied on the judgment of a Division Bench of the Mysore High Court in 1967 Serv LR 823 (Mys) which does not help him. In that case the petitioner was a Sub-Registrar who resigned from service and was relieved of his duties. He withdraw his resignation and was re-instated after a period of 3 years and eight months. That period of absence from duty was treated as leave without pay. He claimed seniority from the date of his original appointment. The learned Judges held that ' a resignation becomes effective when the authority competent to make the appointment accepts it and the servant resigning is relieved of his duties. As resignation, after it has become effective, puts an end to the relationship of master and servant and the post occupied by the person resigning becomes vacant.' With regard to seniority, the learned Judges observed as under:--

'Seniority is determined by the length of continuous service in the same grade as between two persons. Rule 8(11) defines 'continuous service' as meaning 'service of a Government Servant from the beginning of his service, without any break. Only leave with allowance will be included in continuous service. This is a general Rule and seems to regulate the general conditions of service. Therefore in deciding whether a person, like the third respondent, in whose service there has been a break and whose absence from duty is treated as 'Leave without allowances', the Government should take into account the implications of this rule as well. The Seniority Rules, as they stand, do not contain any rule to cover the case of respondent No. 3. In such cases Rule 8 of the said Rules empowers the State Government to fix the seniority of such persons, in consultation with the Public Service Commission. It would be now for the State Government to take a decision in the matter according to the rule. That has not been done. It is advisable that the State Government should consider and provide expressly in the Rules as to how the seniority of a person who is 'reinstated' should be regulated.'

13. These observations are based on certain service rules which are not to be found in the present case. Moreover, these observations instead of helping the petitioner go against him.

14. The learned counsel for the respondent-Board has raised an objection that the petition is belated and should be dismissed on that ground. The petitioner's representation was rejected on June 30, 1965, whereas he filed the present petition on April 14, 1969. The petitioner has explained that he did not receive the communication rejecting his representation which he had submitted in 1965 and he made another representation on August 10, 1968, which was rejected on February 13, 1969, which rejection was conveyed to him. I, therefore, do not propose to dismiss the petition on the ground of delay.

15. For the reasons given above, I find no merit in this petition which is dismissed but the parties are left to bear their own costs.

16. Petition dismissed.


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