Supreme Court: In an appeal against the judgment passed by Bombay High Court, whereby the Court dismissed the appeal preferred by the appellant and confirmed the order passed by the Single Judge, wherein the challenge was made by the appellant to the rejection of withdrawal of her prospective resignation, prior to the effective date, and the rejection of her prayer for rejoining the duties. the division bench of JK Maheshwari* and KV Viswanathan, JJ. while setting aside the impugned orders, reiterated that in the absence of anything contrary in the provisions governing the terms and conditions of the office or post and in the absence of any legal contractual or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective.
Further, the Court directed the Trust to regularize the service period of the appellant from 24-09-2003 till the date of joining the duty at the new Institution as Principal on 01-10-2007. Thus, she would be entitled to her pension and other retiral benefits, including the arrears of pension. The Court directed that the said exercise be completed within a period of four months from the date of this judgment, and on failure to pay retiral benefits/pension and arrears within the time as specified, the appellant shall be entitled to interest @ 7% per annum.
Background:
Before the Mumbai University and College Tribunal (‘College Tribunal’), the appellant filed an appeal to quash the order passed by Marwadi Sammelan Trust (‘Trust’) rejecting her request for withdrawal of resignation. Thereafter, a writ petition was filed by the appellant against the order passed by College Tribunal the before the Bombay High Court, wherein the College Tribunal opined that since it was not an order of dismissal, removal or termination of service, therefore, the appeal was not maintainable under Section 59(1) of the Maharashtra Universities Act, 1994 (“1994 Act”) and on such, the question of limitation under Section 59(2) does not arise. Further, it held in law that the prospective resignation can be withdrawn before the expiry of the intended date. However, on facts, it was held that there was an implied understanding between the parties’ prohibiting withdrawal of resignation. Hence, according to the College Tribunal, the present case fell within the exception in the case of The Rev. Oswald Joseph Reichel v The Right Rev. John Fielder (1889), House of Lords, XIV, 249, and hence, the College Tribunal dismissed the appeal.
Thereafter, the Single Judge of the High Court held that the right to withdraw the prospective resignation can be given up or waived off by the person who holds that right. However, after looking at the conduct of the appellant, it held that the findings recorded by the tribunal on merits did not warrant any interference. The division bench of the High Court upheld the said order. Thus, the appellant filed the present appeal.
Issues and Analysis:
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Whether in the facts of the case, withdrawal of resignation dated 25-03-2003 submitted by the appellant prior to the effective date, i.e., 24-09-2003 ought to have been permitted?
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Whether in the facts of the case, letter of the Management dated 08-04-2003 accepting the resignation was final, binding and irrevocable; and the rejection of the request for withdrawal of such resignation was in accordance with law?
After analysing the judgment in Rev. Oswald (supra) and Union of India v. Gopal Chandra Misra, (1978) 2 SCC 301, the Court said that the prospective or intending resignation would be complete and operative on arrival of the indicated future date in the absence of anything contrary in the terms and conditions of the employment or contract. The intimation sent in writing to the Competent Authority by the incumbent employee of his intention or proposal to resign from his office/post from a future specified date can be withdrawn at any time before it becomes effective.
After noting the facts, the Court said that it appears that the management wanted unconditional resignation from appellant and to waive the notice period mutually, they further proposed to consider dropping the enquiry which was not accepted by the appellant. The appellant did not submit any unconditional resignation and reiterated to consider her resignation dated 25-03-2003. The management on its own accepted the said resignation from future date but unilaterally mentioned that it accepted her unconditional resignation with six months’ notice w.e.f. 24-09-2003 as final, binding and irrevocable.
After perusing the acknowledgment letter dated 11-08-2003 of the appellant, the Court said that the resignation was not submitted by the appellant to foreclose the commencement of any enquiry against her.
Further, after perusing the resignation letter, the Court noted that the appellant requested to accept her resignation from a future date w.e.f. 24-09-2003 due to medical reasons.
The Court said that in the case of Rev. Oswald (supra) an unconditional deed of resignation was executed. However, in the case at hand, the unconditional resignation waiving the requirement of six months’ notice as demanded by the Trust was not submitted by the appellant. Without prior consent, the acceptance of the resignation using the words final, binding and irrevocable was unilateral. Therefore, the Court viewed that the judgment of Rev. Oswald (supra) does not apply to the facts of the present case. Thus, it held that dismissal of the petition of appellant on similarity of facts with the case of Rev. Oswald (supra) is not correct and such findings by three fora are unsustainable. Further, it said that on the facts of this case, the ratio of the judgment of the Constitutional Bench in the case of Gopal Chandra Misra (supra) applies in full force.
The Court held that that the letter dated 25-03-2003 is an intimation of resignation from a prospective date i.e., 24-09-2003, which could have been withdrawn by the appellant prior to the effective date. There is no Rule or Regulation which restrains such withdrawal. There was no prior consent to the letter dated 08-04-2003 for accepting resignation w.e.f. 24-09-2003 as ‘final, binding and irrevocable’. Therefore, by using such words, the acceptance of resignation was unilateral. Therefore, the withdrawal of such resignation by appellant prior to the effective date is permissible as per the law laid down in the case of Gopal Chandra Misra (supra) and Srikantha S.M. v. Bharath Earth Movers Ltd., (2005) 8 SCC 314
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Whether in the facts of the case, what relief could be granted to the Appellant?
The Court said that the Trust had arranged to give officiating charge to the principal in the place of appellant, so there was no prejudice to public interest.
Thus, the Court directed the Trust to regularize the service period of the appellant from 24-09-2003 till the date of joining the duty at the new Institution as Principal on 01-10-2007. Applying the principle of ‘no work no pay’, the Court said that the appellant would not be entitled to back wages and salary for such regularized period, as she has not worked with the Trust. Thus, it observed that the period from 24-09-2003 to 01-10-2007 would be regularized by the respondent and be counted as a period spent on duty for all purposes including pension.
Further, it directed that the service tenure of the appellant, both in the institution run by Trust and in M.M.P. Shah College to be counted without any break in service. Thus, she would be entitled to her pension and other retiral benefits, including the arrears of pension. The Court directed that the said exercise be completed within a period of four months from the date of this judgment, and on failure to pay retiral benefits/pension and arrears within the time as specified, the appellant shall be entitled to interest @ 7% per annum.
[Suman V. Jain v. Marwadi Sammelan, 2024 SCC OnLine SC 161, decided on 20-02-2024]
*Judgment Authored by: Justice JK Maheshwari
Know Thy Judge| Supreme Court of India: Justice Jitendra Kumar Maheshwari
