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Y.K. Mathur and anr. Vs. the Commissioner, M.C.D. Etc. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Appeal No. 49 of 1973
Judge
Reported inILR1973Delhi266
ActsConstitution of India - Article 133(1)
AppellantY.K. Mathur and anr.
RespondentThe Commissioner, M.C.D. Etc.
Advocates: C.K. Daphtary,; V.P. Chaudhary,; B. Kirpal and;
Excerpt:
.....supreme court - requirements of article 133 (1) not satisfied in present case - appeal liable to be dismissed as no certificate as prayed can be issued. - - ' (11) it has to be noted that all the above requirements should be satisfied before a certificate can be granted. in view of the amended article 133(1) before a certificate can be given we have to be satisfied that the said question, in our opinion, needs to be decided by the supreme court. we are, thereforee, not satisfied that the requirements of article 133(1) are satisfied in the present case and we, thus cannot give a certificate......on 11-8-1972. in that case the petitioner was an employee of the life insurance corporation. by a letter dated may 12, 1962, the petitioner had tendered his resignation and had requested that he may be relieved of his duties 'after the expiry of his notice period.' the resignation submitted by the petitioner was accepted by tine zonal manager on july 9, 1962 with effect from 12-8-1962. the decision of the zonal manager was communicated to the petitioner on july 23, 1962. thereafter the petitioner wrote a letter dated august 4, 1962 by which he wanted to withdraw his resignation. this was not permitted by the zonal manager. the division bench took a view that having regard to the wording of the regulation 18(1) of the life insurance corporation regulations acceptance of the notice to.....
Judgment:

Sachar, J.

(1) This application under Article 132(1) and 133(1) of the Constitution of India has been filed for the grant of leave to appeal to the Supreme Court against our judgment dismissing the writ petition No. 1130 of 1972 on March 2, 1973. Two Municipal Councillors namely respondents 3 and 4 had in a meeting of the Delhi Municipal Corporation held on November 16, 1972, tendred their resignation from the membership of the Corporation. The commissioner, Municipal Corporation, however, had taken the view that as these resignation letters were not delivered to him personally they were not effective. Civil Writ 1130 of 1972 was filed challenging the order of the Commissioner and seeking the quo warranto that the seat of respondents 3 and 4 had become vacant as they must be deemed to have resigned from the Corporation. It was contended by respondents 3 and 4 that their resignation letters were not effective as the same were not delivered personally to the Commissioner as required by Section 33(l)(b) of Delhi Municipal Corporation Act (hereinafter called the Act). We, however, held that the resignation letters of respondents 3 and 4 were delivered to the Commissioner as required by Section 33(l)(b) of the Act. On that finding we allowed the petition qua respondent No. 3 as according to us his resignation letter was effective from that date.

(2) The resignation letter of respondent No. 4, however, though given on 16.11... was dated 16.12... We, thereforee, held that the only meaning that can be given is that as the letter is dated 16.12... respondent No. 4 was wanting to resign from that date, though this letter was delivered to the Commissioner on 16-11-1972 and the necessary result would be that this letter of resignation would be incomplete and ineffective till 16.12. . . when alone it will become effective. Respondent No. 4 had by a letter, dated 15-12-1972 delivered to the Commissioner withdrawn his letter of resignation dated 16.12... The petitioner had contended that the councillor could not resign his seat from the future date nor could he after having sent the resignation letter withdraw it. After referring to a number of Indian and English cases we came to the conclusion that it was only in two sets of eventualities that it had been held by courts that a person has no right of withdrawing his resignation. One, in those cases where the right of resignation is subject to it being accepted by some other authority. The second is where, as in England under the Municipal Corporation Act, resignation is complete on its being delivered in the prescribed manner. No case was cited to us where resignation was to operate in future and was not subject to its being accepted by any authority and yet it might have been held that he would be debarred from withdrawing the resignation which was still to operate from a future date. We, consequently held that once respondent No. 4 had delivered his letter of withdrawal on December 15, 1972 to the Commissioner, resignation letter which was to operate from December 16, never got life and remained ineffective. As a result we allowed the writ petition qua respondent No. 3 but dismissed it with respect to respondent No. 4.

(3) The present application has been filed seeking leave against that part of the judgment by which we dismissed the writ petition with respect to respondent No. 4. it is alleged in pare 4 of the application:

'THATthis petition raises the following substantial questions of law relating to the interpretation of Section 33(1)(b) of the Act, which would equally arise while interpreting Articles 101(3)(b) and 190(3)(b) of the Constitution of India:- (I) Whether a letter of resignation can be given so as to take effect from a future date and whether the member can have an option to fix any date previous or subsequent. from which his resignation shall take effect. (II) In the absence of any provision for withdrawal of a resignation, is the resignation once given revocable and can it be withdrawn? (III) When a resignation is intended to take effect from a future date, whether the same can be withdrawn before that date in the absence of any provision for acceptance of a resignation or of its withdrawal. (IV) Whether the effective operation of a resignation need always be simultaneous with the vacation of office and whether it is not permissible that the. seat may be vacated some time later though the resignation might become complete and effective as soon as it is tendered. (V) When a resignation letter is required to be addressed to a specified person, can the letter of withdrawal be addressed to some other person, may be the one to whom the delivery of resignation is required to be effected? (VI) Notwithstanding the fact that in the body of the letter no date is mentioned from which the resignation was to become effective, dues a future date mentioned under the signatures of a person who tenders it make the resignation operative from that date? (VII) From a letter of resignation purporting to bear a future date, can an intention to resign in. a given case be inferred from the date it is delivered by attending circumstances?'

(4) It is also alleged that on the question posed in para 4 (II) above there is a conflict of judicial opinion amongst various High Courts.

(5) A reference to cases mentioned in the application shows that these are the very cases which were cited to us at the time of hearing of the writ petition. In our judgment we have pointed out that none of these cases dealt with the position where the resignation was to operate in future and was not subject to its being accepted by any authority and yet it might have been held that a person would be debarred from withdrawing the resignation which was to operate from a future date. We were of the view that all these cases were distinguishable on facts. There is thus no conflict between those decisions and out decision. Mr. Daphtary referred us to Sambalpur Municipal Council and another V. State of Orissa and others I.L.R. 1967 Cut 122. In that case Orissa Municipal Act provided that vice-Chairman of a Municipality, may resign by writing under his hand addressed to the State Government and on such resignation being accepted shall be deemed to have vacated office. The question that arose was whether it was open to the vice chairman to withdraw his resignation before its acceptance, and it was answered in the negative. The bench relied on Bahori Lal Paliwal V. District Magistrate, Bulandshahr and another : AIR1956All511 . But as pointed out by us in our judgment even the minority opinion in Allahabad decision had held that even if the resignation had been sent it was open to the party to apply for its withdrawal and the only difference of opinion between the minority and majority was that whereas the majority held that the appropriate authority had no discretion to refuse the withdrawal, the minority held that it was in the discretion of the appropriate authority either to accept the resignation or to act on the withdrawal of the resignation. It is relevant to note that at page 135 of this very authority while holding that where resignation has to be accepted a person has not the unconditional right to withdraw it, having sent it, the court went on to observe that such a situation namely the right of unconditional withdrawal can only arise if, under the common law rule, the holder of a public office also had been granted an absolute right to offer his resignation in which case it might also have been possible to hold that he had an absolute right to withdraw the resignation.

(6) It will thus be seen that even this authority proceeded to deny the right of withdrawal because in its view as the resignation was subject to right of acceptance unconditional rights of withdrawal could not arise. This case is obviously distinguishable. On the other hand we found that the view taken by us found support from a Division Bench of this court in Mohan Chandra and others V. The Institute of Chartered Accountants of India and others : AIR1972Delhi91 and M. Kunukrishnan Nadar V. Hon'ble Speaker Kerala Legislative Assembly Trivandrum and others : AIR1964Ker194 .

(7) We may also refer to the decision of this court given in Life Insurance Corporation of India V. Shri T. R. Dua (L.P.A. 332 of 1971) decided on 11-8-1972. In that case the petitioner was an employee of the Life Insurance Corporation. By a letter dated May 12, 1962, the petitioner had tendered his resignation and had requested that he may be relieved of his duties 'after the expiry of his notice period.' The resignation submitted by the petitioner was accepted by tine Zonal Manager on July 9, 1962 with effect from 12-8-1962. The decision of the Zonal Manager was communicated to the petitioner on July 23, 1962. Thereafter the petitioner wrote a letter dated August 4, 1962 by which he wanted to withdraw his resignation. This was not permitted by the Zonal Manager. The Division Bench took a view that having regard to the wording of the regulation 18(1) of the Life Insurance Corporation Regulations acceptance of the notice to leave or discontinue the service on the expiry of the period of notice was not necessary to make the notice effective and that the notice did not depend upon acceptance by the competent authority to become effective. Even on the alternative argument that the notice under Regulation 18(1) of the Regulations required acceptance, the bench held that the position will not be different because if the competent authority had accepted the notice or the letter of resignation and the decision was communicated to the employee by the Zonal Manager, the same cannot be withdrawn by him as it is only till the time the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance that the public. servant has locus paenitentiae but not thereafter. We do not find any thing in that case which goes against the view taken by us in the present case. It will be seen that regulation 18 which was interpreted by the bench in that appeal required that the employee shall not leave or discontinue his service without his giving a notice in writing to the competent authority, the period of notice being three months. It will thus be seen that the employee is deemed to have, in terms of the regulations, exercised his option unconditionally of leaving the service at the time when he sends the letters. The requirement of giving notice does not keep the factum of resignation in a fluid state. The resignation is unconditional when it is sent. The only effect of the notice is that the employee will cease to be in service on the expiry of that notice. Thus once the option to resign was exercised by the employee he would not be in a position to unilaterally withdraw it because the period of notice has nothing to do with exercise of his option to send in his resignation. Moreover in that case resignation had even been accepted by the Zonal Manager and obviously it could not be withdrawn thereafter. The decision in the L.P.A. case is analogous to the case of respondent No. 3 where we held that the unconditional resignation submitted on 16-11-1972 became effective immediately. We thus do not find any conflict with that decision.

(8) We may mention that the application for leave to appeal to the Supreme Court was filed against the judgment of L.P.A. 332/72 but the same has been dismissed by the bench by its order, dated 23-2-1973.

(9) We may also mention that in the application seeking leave to appeal to the Supreme Court, Article 132 has also been invoked. Invocation of that Article is however misconceived as we were not interpreting any provision of the Constitution. Mr. Daphtary who appeared for the petitioners suggested that as Section 33(1)(b) of the Act had been bodily lifted from Article 190(3)(b) of the Constitution the interpretation given to this section of the Act by us will also apply to the interpretation of that Article. We do not think that Article 132 can be invoked by this analogy. Moreover we have already pointed out in our judgment that various legislatures have framed procedure with respect to the resignation under Article 190(b) of the Constitution and, thereforee, the form of resignation will have to comply with the Article and procedure mentioned therein.

(10) The requirements for giving a certificate have become very stringent in view of the amendment of Clause (1) of Article 133 of the Constitution of India by (Thirtieth Amendment) Act, 1972 which has come into force with effect from February 27, 1973 and now the certificate can only be given under Article 133(1), if the High Court certifies that (a) the case involves a substantial question of law of general importance; and (b) in the opinion of the High Court the said question needs to be decided by the Supreme Court. A division bench of this court while dealing with the scope of this amendment. in S.C.A. 8 of 1973 decided on 30-3-1973 has in interpreting it observed as follows :-

'Acertificate can be granted only if the case involves a question of law :- (i) which is not only substantial but is also of general importance; and (ii) the said question, in our opinion, needs to be decided by the Supreme Court.'

(11) It has to be noted that all the above requirements should be satisfied before a certificate can be granted. It means that it is not sufficient if the case involves a substantial question of law of general importance, but in addition to it the High Court should be of the opinion that such question needs to be decided by the Supreme Court. Further, the word 'needs' suggests that there has to be a necessity for a decision by the Supreme Court on the question and such a necessity can be said to exist where for instance two views are possible regarding the question and the High Court takes one of the said views. Such a necessity can also be said to exist when a different view has been expressed by another High Court.

(12) Mr. Daphtary, learned counsel for the petitioners contended that the matter arising out of this petition is one which is likely to arise in future and public is also interested in it and thus it is a substantial question of general importance and thereforee the petitioners were entitled to the grant of a certificate. We must, however, reject this argument. In view of the amended Article 133(1) before a certificate can be given we have to be satisfied that the said question, in our opinion, needs to be decided by the Supreme Court. It is apparent that there must be some imperative necessity arising from the fact and circumstances of the case before we can certify it to be fit one to prefer an appeal to the Supreme Court. As we have not been referred to any decision which has taken a view contrary to the one taken by us it is not possible for us to say that we consider that it is a point of such a nature that in our opinion it needs to be decided by the Supreme Court. We are, thereforee, not satisfied that the requirements of Article 133(1) are satisfied in the present case and we, thus cannot give a certificate.

(13) The result is the application for leave to appeal is dismissed, but in the circumstances of the case with no order as to costs.


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