Head - Outsourcing
Consultant In Legal Matters
From what is written-you have given notice and resignation from your side.
But department neither accepted nor responded initially.
So silence in this case has not become acceptance.
How much was the bond amount as per agreement.
What was the length of service?
Since resignation is not complete from company side,they not only promoted you,but now issued a chargesheet for long absenteeism.
How did they reach chargesheet stage?
Was any preliminary enquiry completed first?
Did you receive any notice regarding enquiry by SECL?
I doubt whether you will get release letter at this stage.
Why dont you visit the HQ and talk to them about the whole series of events.
There is some missing link in the whole affair.
Legal remedies can be sought by you.
But first try and sort out amicably.
After all lot of delay has taken place .
7th June 2015 From India, Pune
7th June 2015 From India, New Delhi
"Taking instant legal remedy seems to be appropriate as you are deemed to have been relieved from service after expiry of notice period."
Can one be deemed to be relieved from service after expiry of notice period unless Competent authority has accepted it?
I was reading a judgment of UOI v/s Hitendra Kumar Soni in Honble SC, a part of which I reproduce:
The general rule, therefore, is that a resignation of a Government servant from service should be accepted, except in the circumstances indicated below :-
Where the Government servant concerned is engaged on work of importance and it would take time to make alternative arrangements for filling the post, the resignation should not be accepted straightaway but only when alternative arrangements for filling the post have been made. xxxx xxxx xxxx xxxx xxxx Clause (03): A resignation becomes effective when it is accepted and the Government servant is relieved of his duties.
The High Court, in a rather lengthy judgment, has considered a large number of judgments of this Court for recapitulating the well established principles of law such as – normally, the tender of resignation becomes effective and the service or office tenure of the concerned employee stands terminated, when it is accepted by the Competent Authority.
Here employer clearly seems not have accepted the resignation and even promoted him.
Here off course,the person needs to seek urgent clarifications from employer and even move the courts if no response is forthcoming.
i still fail to understand how charge sheet can be issued when domestic inquiry details are not known to the poster.
More facts are to be given for better understanding of the case.
7th June 2015 From India, Pune
In the instant case, it is evident that no reply was given by employer to employee regarding rejection of his resignation letter nor bond amount was communicated to him.
The issue before the Apex court in Union Of India & Ors vs Hitender Kumar Soni was whether relevant clause (4) of the Office Memorandum dated 11.2.1988 takes away the power of the Government to effectively bring to an end the service of an employee by accepting his resignation unless the Government, besides accepting the resignation also proceeds to relieve the employee.
It pertinent to mention that the resignation of the respondent was accepted but no relieving order was issued as the court observed: “However, ultimately the Competent Authority, as noted earlier, by letter dated 16.6.1998 accepted the resignation of the Respondent” The Court held that “there was no obligation on the Government to write a formal letter that the Respondent has been relieved”
The italicized lines in the extract of the judgment are important.
However, the long standing law prevails that the rejection of acceptance of resignation should have been done before the expiry of notice period of resignation otherwise the employee would be deemed to have been relieved on expiry of notice period as per the Apex Court decisions of larger Benches decisions stated down below.
The court in Union Of India & Ors vs Hitender Kumar Soni no doubt observed that the normal rule remains that Government has the power to accept a resignation with immediate effect. In case the Government for some reasons wishes to defer or specify the date from which resignation would become effective, it is entitled to take work from the concerned Government servant till he is relieved in accordance with the facts and requirements of the case. The letter of Government accepting an offer of resignation itself should normally be conclusive for deciding whether the Government has opted for immediate termination of service by accepting the resignation or has deferred such termination to a future date. Only in the latter eventuality the relationship of master and servant shall continue till the concerned Government servant is relieved of his duties.
The relevant passages are extracted below:
Supreme Court of India
Union Of India & Ors vs Hitender Kumar Soni on 21 July, 2014
“The Government was directed to decide the admissibility and entitlement of leave, arrears of pay and allowances and other service benefits of Respondent upon his reinstatement after affording full opportunity to the Respondent, of hearing as well as leading evidence. Before adverting to the facts it is relevant to notice at the outset that the High Court, inspite of resignation of the Respondent dated 07.10.1997 having been accepted by the Competent Authority by order dated 16.6.1998 held that the resignation could not have come into effect because as per clause (4) of Office Memorandum dated 11.2.1988 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, the Respondent was also required to be relieved of his duties which was not done by the Appellants.
The question falling for determination in this appeal is whether relevant clause (4) of the Office Memorandum dated 11.2.1988 takes away the power of the Government to effectively bring to an end the service of an employee by accepting his resignation unless the Government, besides accepting the resignation also proceeds to relieve the employee.
In our considered view, the part of clause (4) extracted above makes a distinction between the right of a temporary Government servant to sever his connection from Government service by giving a notice of termination and that of a temporary Government servant who chooses not to give such notice but opts to submit a letter of resignation. In the case of notice of termination the concerned employee can relinquish the charge of the post on expiry of the period of notice, but, such right will not be available to a temporary employee in case he tenders a simple resignation. The reason is obvious because a resignation requires acceptance by the appointing authority and till then his right to relinquish is impinged by the requirement, to be relieved of his duties. On a joint reading of clauses (3) and (4) it can be safely inferred that depending upon the facts and circumstances of a case and nature of request made in a resignation letter, the Government has the power to accept the resignation so as to bring about a severance of relationship of master and servant with immediate effect. But in cases where the letter of resignation itself specifies a future date for being relieved or where, as indicated in clause (2) the concerned Government servant is engaged on work of importance etc., the resignation may not be accepted straightaway. It is in such circumstances only that Government may exercise its power to accept the offer but defer the date from which resignation would become effective. The normal rule, however, remains that Government has the power to accept a resignation with immediate effect. In case the Government for some reasons wishes to defer or specify the date from which resignation would become effective, it is entitled to take work from the concerned Government servant till he is relieved in accordance with the facts and requirements of the case. The letter of Government accepting an offer of resignation itself should normally be conclusive for deciding whether the Government has opted for immediate termination of service by accepting the resignation or has deferred such termination to a future date. Only in the latter eventuality the relationship of master and servant shall continue till the concerned Government servant is relieved of his duties. In the instant case, the letter of acceptance clearly shows that termination of Respondent’s service as per his offer of resignation was not deferred to any future date and hence there was no requirement to relieve him of his duties. Even the peculiar facts of this case show that the Respondent while on probation had already abandoned his temporary service for almost 8 months and had not cared to report for duty inspite of several requests. In such a situation, it would be impossible to relieve an absconding employee of his duties and if the reasoning of the High Court is accepted such employee, even if he has tendered resignation, must be continued in service till he is actually found or till he presents himself to be relieved of his duties. Such a view would be impractical and run against larger public interest. There may be cases where an employee resigning from service has gone in hiding or is in jail custody etc. The construction placed upon the relevant clauses of the O.M. dated 11.2.1988 by the High Court will render the provisions unworkable, hence such construction needs to be avoided. The word, “relieving” itself must be understood in the ordinary parlance because it is not defined in the O.M. or in the relevant rules as is apparent from the judgment of the High Court. The meaning of the word “relieve” given in the Law Lexicon (2nd Edn. 1997 by P. Ramanatha Aiyar) is – “to free or clear a person from an obligation”. This result manifests itself from the order accepting the resignation because no reservation has been made by the Government that the Respondent has to continue in service till any particular time or till being relieved. Hence, in the instant case, there was no obligation on the Government to write a formal letter that the Respondent has been relieved. Even if such requirement had been there, in the case in hand it would be an empty formality. The wholesome writ jurisdiction was not required to be exercised in the facts of the present case keeping in view the conduct of the Respondent in escaping away from his duties without obtaining leave when he was only a temporary employee under probation.”
The PREVAILING law, which is applicable to the instant case, is that the rejection of acceptance of resignation should have been done before the expiry of notice period of resignation otherwise the employee would be deemed to have been relieved on expiry of notice period in view of following:
i) Supreme Court of India
Dinesh Chandra Sangma vs State Of Assam & Ors on 5 October, 1977
(c). Since the conditions of F.R. 56(c) are fulfilled in the instant case, the appellant must be hold(sic held) to have lawfully retired as notified by him with effect from 2nd August, 1976.
(ii) In the case of B.J.SHELAT vs. STATE OF GUJARAT AND OTHERS [(1978) 2 SCC 202], similar issue arose regarding the deemed acceptance of voluntary retirement and if no order is passed rejecting the request of voluntary retirement within the notice period of three months. In paragraph 10, it is held thus:
"10.It will be useful to refer to the analogous provision in the Fundamental Rules issued by the Government of India applicable to the Central Government servants. Fundamental Rule 56(a) provides that except as otherwise provided in this Rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. Fundamental Rule 56(j) is similar to Rule 161(aa)(1) of the Bombay Civil Services Rules conferring an absolute right on the appropriate authority to retire a Government servant by giving not less than three months' notice. Under Fundamental Rule 56(k) the Government servant is entitled to retire from service after he has attained the age of fifty-five years by giving notice of not less than three months in writing to the appropriate authority on attaining the age specified. But proviso (b) to sub-rule 56(k) states that it is open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this clause. Thus under the Fundamental Rules issued by the Government of India also the right of the Government servant to retire is not an absolute right but is subject to the proviso whereunder the appropriate authority may withhold permission to a Government servant under suspension. On a consideration of Rule 161(2)(ii) and the proviso, we are satisfied that it is incumbent on the Government to communicate to the Government servant its decision to withhold permission to retire on one of the grounds specified in the proviso."
(iii) In the decision reported in TEK CHAND vs. DILE RAM (2001) 3 SCC 290 court held that voluntary retirement came into force on expiry of the notice period and subsequent order conveyed to him that he could not be deemed to have voluntary retired had no effect:
"35..........there are three categories of rules relating to seeking of voluntary retirement after notice. In first category, voluntary retirement automatically comes into force on expiry of notice period. In second category also, retirement comes into force unless an order is passed during notice period withholding permission to retire and in third category voluntary retirement does not come into force unless permission to this effect is granted by the competent authority. In such a case, refusal of permission can be communicated even after the expiry of the notice period. It all depends upon the relevant rules. In the case decided, the relevant rule required acceptance of notice by appointing authority and the proviso to the Rule further laid down that retirement shall come into force automatically if appointing authority did not refuse permission during the notice period. Refusal was not communicated to the respondent during the notice period and the court held that voluntary retirement came into force on expiry of the notice period and subsequent order conveyed to him that he could not be deemed to have voluntary retired had no effect."
iv) The Apex Court held that on expiry of one month of such notice the employee ceased to be in employment and no letter of acceptance is necessary to terminate his service:
Gauhati High Court
Sadhan Datta vs State Of Tripura And Ors. on 26 June, 2007: 2007 (4) GLT 273
“13. In terms of employment the employer could terminate his service by giving one month notice and on expiry of one month, of such notice the employee ceased to be in employment and no letter of acceptance is necessary to terminate his service, in the light of the decision of Supreme Court in State of Uttar Pradesh v. Ved Prakash Sharma 1995 (Supp.) 2 SCC 528.”
v) If the respondents desired to reject the request, such refusal order had to be passed within the notice period. The departmental inquiry was vitiated:
Gujarat High Court
DURGESHKUMAR VISHWANATH JANI....Petitioner(s)
COMMISSIONER OF TECHNICAL EDUCATION & 2....Respondent(s)
“3. In the present case, admittedly no departmental inquiry was instituted till the time the petitioner issued the notices for voluntary retirement and the statutory period of three months was over. Till such time, the request was not even rejected. In terms of Rule 47 of the said Rules, thus, his request for voluntary retirement would stand granted. If the respondents desired to reject the request, such refusal order had to be passed within the notice period. .....”
Thus the decision in Hitender Kumar Soni is regarding interpretation of OM dated 11.2.1988 of DOPT but it does not overturn the abovesaid settled law that rejection of acceptance of resignation should have been done before its expiry period.
7th June 2015 From India, New Delhi
Sub: Letter for Notice Period & Resignation from the services of the company.
(Through Proper Channel)
With due respect I the undersigned hereby inform that I am resigning from Coal India Limited.The period from **** to ***** may be considered as my Notice Period.
I would like to put on record that my stay in the company was a great learning experience and I will cherish the industrial exposure provided to me by the company. My decision is irreversible as I am in search for better prospects ahead in my career.
I extend my apologies for the inconveniences caused. I would like to request you to give necessary directions to the concerned authorities for making necessary payments due to me. I am enclosing the office orders from my joining till date for your reference.
At the time of joining i submitted the bond of 50K for serving company for 50 months after some time company circulated office order for increasing bond amount from 50k to 3 lacs and bond period from 50 months to 60 months.I did not sign any new bond i.e. 3 lacs.
Length of service 4 years 4 months i.e. 52 months
I don't know how they reach for charge sheet. I didn't get charge sheet at my home till date....Personal manager just informed me about charge sheet refusing to give details of bond amount I can submit through DD.
No notice was given to me about my absenteeism till date.
No preliminary enquiry till date.
I am planning to go for HQ it is 2000 Km far from my home town and due to vacation heavy rush is there in trains. No satisfactory answer i got on telephonic conversation.
9th June 2015 From India, Delhi
On completion of notice period Mr Andrew has gone out of service and there will be no employer - employee relationship, unless the Management place him under suspension pending enquiry (copy of Mad HC Judgement attached). Mr Andrew could send a letter explaining the legal position - enclosing a copy of the Mad HC Judgement and ask for relieving letter.
N Nataraajhan, Sakthi Management Services (HP:+ 91 94835 17402 ; e-mail:email@example.com)
10th June 2015 From India, Bangalore
Hello Andrew. has there been any progress on your case. I am in a similar position (Asst. Mgr) and in Coal India. I intend to resign immediately and serve the notice period. this thread has come as an eye opener for me. Coal India has great disrepute for being an organisation with hardly any knowledge of rules. Your case clearly shows the poor management that is running the organisation. Please share further details about the progress of your case
5th February 2016 From India, Ranaghat