M.R.A. Ansari, J.
(1) The petitioner, M/s. Dass Studios, Connaught Place, New Delhi, which is a commercial establishment under the Delhi Shops and Establishment Act, 1954 (hereinafter referred to as the Act) has filed the present petition under articles 226 and 227 of the Constitution of India challenging the validity of the award dated 9-7-1969 of
(2) The learned counsel for the petitioner has raised the following three contentions before me, namely,
(i) that the resignation letter was not a conditional one; (ii) that even if it was a conditional resignation the petitioner was not bound to fulfill the conditions before accepting the resignation; and (iii) that it was open to the petitioner to accept the resignaltion with immediate effect notwithstanding the date fixed by the 2nd respondent for the resignation to take effect.
(3) The resignation letter is in Hindi and the original as well as its English translation had been filed along with the writ petition, the translation being Annexure 'A'. This letter consists of two portions. The first poriton contains allegations of ill-treatment and respondent The second portion contains the notice of regisnation since there is a controversy regarding the interpretation of this portion of the letter, it is desirable to reproduce it. It may be stated that the second respondent has not challenged the correctss of the translation of this pportion of the letter. The second portion of the letter both in original as well as the translation thereof are reproduced below :- ** ** ** **
''I am, thereforee, writing with great pain that considering service for 19 years and bonus for 14 years, out of which a dispute for 12 years' bonus is pending in court, and whatever account comes to me that may be cleared and I may be relieved from service from service within one month with effect from 16-8-1968 so that I may feed my children by working somewhere else or by working as a labourer. This is my notice for one month and i shall be grateful for your for your relieving me from service. Please intimate me in writing within a week that you have accepted may resignation so that I may inform some other employer about the exact date. Your servant for 19 years, Sham Sunder'
(4) According to the learned counsel for the second resopndent, the following were the conditions to the acceptance of the resignation:-
1. payment of compensation for 19 years of service 2. Payment of bonus for 14 years, and 3. Resignation to take effect only from 16-8-1968.
This is also what the second respondent stated in his letter dated 27-7-1968. There is, however, no mention of compensation in the letter. Reference to service for 19 years has been made by the second respondent at more than one place in his letter respondent at more than one place in his letter dated 17-7-1968 In the first portion of the letter also, it is stated that the second respondent had been working with the petitioner for about 19 years and that in spite of such a long service and such hard-work the condition of his family was deteriorating. Just above his signature also , second respondent has desceibed himself as 'your servant for 19 years'. thereforee, in the absence of a specific demand for compensation, it cannot be said that the reference to 19 years service in the second portion of the letter implied a demand of compensation for 19 years of service. There is, however, no ambiguity about the demand of bonus for 14 years. I cannot, however construe this demand for bonus as a condition precedent to the acceptance of the registration. In te first portion of the letter,the second respondent after referring to his ill-treatment at the hands of the petitioner, has stated that he considered it better to beg or do the job of a porter than to do service under the petitioner.This would indicate that the second respondent had decided to quit the petitoner's service on accoutn of the ill-treatment suffered by him. Further his request to the petitioner for intimation within a week that his regisnation had been accepted so that the second respondent may inform some other employee about the exact date also indicate that the second had decided to seek employement somewhere else. The second respondent has no doubt damanded payment of the bonus for 14 years. But that was only natural in view of his decision to quit the petitioner's service. I cannotconsider this demand of bonus as a condition precedent to the acceptance of his resignation in the sense that unless the demand was met, the second respondent was not quitting the petitioner's service. The second respondent had also stated that 'This is my notice for one month and I shall be grateful for your relieving me from service'. This notice also indicates that the second respondent had decided to quit the petitioner's service from 16-8-1968. Whether the petitioner could accept the resignation before the said date 18-8-1968 will be considered at a later stage. For the present, this notice of one month given by the second respondent coupled with his other statements in the letter are capable only of one interpretation, namely, that while communicating his desire the resign from the petitioner's service, the second respondent had also demanded the payment of bonus for 14 years. This demand of bonus cannot be construed as a condition precedent to the acceptance of the resignation.
(5) Even assuming for a moment that the second respondent had demanded the payment of compensation of 19 years service and bonus for 14 years as conditions precedent to the acceptance of his resignation, the further question arises whether the petitioner is bound to comply with these conditions before accepting the resignation. According to the petitioner, the second respondent was not entitled either to any compensation or to any bonus and that, thereforee, he was not bound to comply with these conditions. In this connection, it is pointed out that even according to the second respondent's letter of resignation a dispute was pending in Court regarding the claim of bonus. The claim for bonus before the Court was only for 12 years, whereas the second respondent in his letter has demanded payment of bonus for 14 years. Before the dispute regarding the claim of bonus is decided by the Court, it is not open to the second respondent to demand payment of the bonus of a condition precedent to the acceptance of the resignation nor is the petitioner bound to comply with this demand. It is not clear under what provision of law or contract the second respondent claimed compensation for 19 years of service. Ordinarily, compensation is payable only in cases of retrenchment and this is not such a case. thereforee, it would appear that the demands made by the second respodnent for payment of compensation and for payment of bonus are unreasonable demands and the petitioner was not bound to comply with these demands before accepting the second respondent's resignation. It is, thereforee, to be held firstly that the letter of resignation was not a conditional letter and secondly that even if it was a condtional letter, the petitioner was not bound to comply with the conditions before accepting the resignation.
(6) This leads me to a consideration of the effect of the notice of one month given by the second respondent. Section 30 of the Act provides for the termination of services of an employee either by the employer or by the employee himself. Sub-section (1) of section 30 of the Act provides-
'NOemployer shall dispense with the services of an employee who has been in his continuous employment for not less than three months, without giving such person at least one month's notice in writing or wages in lieu of such notice:'
The proviso to sub-section (1) is not relevant. Under sub-section (2) of section 30-
' 'No employee who has put in 3 months' continuous service shall terminate his employment unless he has .given to his employer a notice of at least one month, in writing. In case he fails to give one month's notice he will be released from his employment on payment of an amount equal to one month's pay.'
It would, thereforee, appear that whereas the notice of one month under sub-section ( I ) is for the benefit of the employee, the notice under sub-section (2) is for the benefit of the employer. If an employer gives the notice) under sub-section (1), it is open to the employee to quit the service even before the expiry of the period of one month. Similarly, where the notice is given under sub-section (2), it is open to the employer to dispense with the services of the employee even before the expiry of the period of one month. It is not necessary for the employer to wait for the full period of one month before dispensing with his services, just as it is not necessary for an employee who has received notice under sub-section (1) to wait for the full period of one month before quitting the services of the employer. There is no direct decision on the implications of section 30(2) of the Act. But the learned counsel for the petitioner has cited some decisions which support the view I have taken. In Glossop v. Glossop, (1907) c. Chancery Division 370(1), the articles of a limited liability company provided that the office of a director should be vacated if by notice in writing to the company he resigned his office, provided that the vacation of office should not take effect unless the directors should pass a resolution to the effect that he had vacated his ofice, such resolution to be passed within six months from the happening of the event whereby such director had vacated his office. The Managing Director of the said company wrote a letter dated May 16, 1907 to the company tendering his resignation. But on May 23, before any meeting of the directors had been held, he wrote another letter withdrawing his letter of resignation. 'The Board of Directors of the company accepted the resignation of the Managing Director conveyed under the letter dated May 16, 1907. The Managing Director thereupon moved the Court for an injunction restraining the directors of the company from excluding him from the office of the Managing Director. It was held that a director once having given in the proper Quarter notice of his resignation of his office, was not entitled to withdraw that notice, but, if it was withdrawn, it must be by the consent of the company properly exercised by the managers who were the directors of the company. In Messrss. Macfarlane &. Co Ltd. v. Shri Sudhir Kumar Dhar and others reported in 1953 L A C 695 which was a case under the Industrial Disputes Act, the employees of the company addressed a letter dated 31st January, 1953 to the Managing Director of the company staling as follows :-
'We xx. xx. xx. xx. xx. give you, one and all of us, a month's notice of resignation as from 1-3-1953. We shall be grateful if you settle all our dues at the end of the period.'
Thereupon, the company by a notice dated 21st February, 1953 accepted the resignation of the employees with immediate effect and informed the employees that they would no longer be required to report for duty, but their salary for the whole of the month of February would be immediately paid to them on their calling at the Gate Office. Thereupon, the employees made a complaint to the Industrial Tribunal under section 33A of the Industrial Disputes Act, 1947. The Tribunal thereupon passed an order directing the company to reinstate the employees with continuity of service on the finding that the relationship of employer and employee had not been lawfully terminated. One of the grounds on which this finding was given was that the resignation was accepted before the 1st March, 1953 which was the date from which the resignation was to take effect according to the letter of the employees dated 31st January, 1953. The Labour Appellate Tribunal of India set aside the order of the Industrial Tribunal holding that the intervening period between 31st January, 1953 and 1st March, 1953 was for the benefit of the empolyer and he was within his rights to waive the benefit by accepting the resignation with effect from an earlier date. The Appellate Tribunal accepted the contention of the company that the juristic act was complete and became effective as soon as the letter dated 31st January, 1953 reached the company and that under the law of Master and Servant, the notice so given by the workmen could not be withdrawn without the consent of the employer and had its effect immediately it was received by the employers. In Jwala Prasad v. State of Uttar Pradesh and others : (1954)IILLJ698All , a Patwari tendered his resignation on 2-2-1953 and asked to be relieved by 3-3-1953. On 10-2-1953, the Sub-Divisional Officer accepted the resignation. On 24-2-1953, he sent his application for permission to withdraw his resignation. This permission was refused. The Patwari then moved the Court under Artcile 226 of the Constitution. It was held that no question of withdrawal could arise, his resignation having been already accepted and that even if his withdrawal of resignation application had been received before the resignation was accepted, he could not claim an absolute right to withdraw his resignation and further that the resignation was unconditional, and whether he would be permitted to withdraw that resignation was a matter within the discretion of the appointing authority. In Raj Kumar v. Union of India : (1970)ILLJ13SC , the appellant, a member of the Indian Administrative Service addressed a letter dated August 30, 1964 to the Chief Secretary to the Government of Rajasthan submitting his resignation from the Indian Administrative Service for early acceptance and the Government accepted the resignation of the appellant on October 31, 1964 and requested the Chief Secretary to the Government of Rajasthan to intimate the date on which the appellant was relieved of his duties so that a formal notification could be issued in that behalf. Thereafter, by a letter dated November 27, 1964, the petitioner requested the Chief Secretary to the Government of Rajasthan to recommend acceptance of the withdrawal of his resignation from the Indian Administrative Service. He also addressed a separate letter to the Secretary' to the Government of India, Ministry of Home Affairs, intimating that he wa,s withdrawing his resignation from the Indian Administrative Service. On March 29, 1965, an order accepting the resignation of the appellant from the Indian Administrative Service was issued and the appellant was directed to hand over the charge of his office. The appellant then moved the High Court of Punjab at Delhi for the issue of a writ of certiorari quashing the order passed by the Government of India accepting the resignation of the appellant. The High Court rejected the petition holding that the resignation became effective on the date on which it was accepted by the Government of India and a subsequent withdrawal of the resignation was ineffective, even if acceptance of the resignation was not intimated to the appellant. On further appeal to the Supreme Court, it was held that-
'Where a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate auhority in consonance with the rules governing the acceptance, the public servant has locus paenitentiae but not thereafter.'
(7) Although none of the above decisions lias been given under section 30 of the Act, the principles enunciated therein in my view will apply to the facts of the present case. The learned counsel for the second respondent has referred to sections 7 and 8 of the Indian. Contract Act and also to a number of decisions on the said provisions of the Contract Act. These provisions in my view can have no application to the facts of the present case. There is no question of any contract arising between the petitioner and the second respondent under the letter of resignation dated 17-7-1968 and the letter of the second respondent accepting the resignation. It cannot, thereforee, be contended that the petitioner could accept the resignation of the second respondent only with effect from 16-8-1968. If the petitioner had not accepted the resignation, it would be open to the second respondent under section 30(2) of the Act to quit the petitioner's service from 16-8-1968 and not from an earlier date. But if the resignation was accepted even prior to 16-8-1968, the second respondent cannot insist on continuing in service till that date.
(8) In the result, the order of the learned Labour Court cannot be sustained and is hereby set aside. The writ petition is accepted and the 2nd respondent is directed to refund all the amounts received by him under the interim order of the Court dated 9-6-1969. There shall be no order as to costs.