Dear Mr. Nath Rao,
In the instant case, it is evident that no reply was given by the employer to the employee regarding the rejection of his resignation letter, nor was the bond amount communicated to him.
Union Of India & Ors vs Hitender Kumar Soni
The issue before the Apex Court in Union Of India & Ors vs Hitender Kumar Soni was whether the 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 is 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 the notice period of resignation; otherwise, the employee would be deemed to have been relieved on the expiry of the notice period, as per the Apex Court decisions of larger Benches stated below.
The court in Union Of India & Ors vs Hitender Kumar Soni observed that the normal rule remains that the 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 shall the relationship of master and servant 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, in spite of the 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 the nature of the request made in a resignation letter, the Government has the power to accept the resignation so as to bring about a severance of the 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 in work of importance, etc., the resignation may not be accepted straightaway. It is in such circumstances only that the 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 the 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 shall the relationship of master and servant 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 in spite 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 an 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 into 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 a 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.”
Prevailing Law
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 the notice period of resignation; otherwise, the employee would be deemed to have been relieved on the expiry of the notice period in view of the 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 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], a 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, 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 voluntarily retired had no effect:
"35..........there are three categories of rules relating to seeking of voluntary retirement after notice. In the first category, voluntary retirement automatically comes into force on expiry of the notice period. In the second category also, retirement comes into force unless an order is passed during the notice period withholding permission to retire, and in the 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 the appointing authority, and the proviso to the Rule further laid down that retirement shall come into force automatically if the 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 voluntarily 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 the 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)
Versus
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 the interpretation of OM dated 11.2.1988 of DOPT, but it does not overturn the above-said settled law that rejection of acceptance of resignation should have been done before its expiry period.
Thanks
Regards