I need some case laws or legal points confirming that when an officer is reinstated back into service after having earlier orders of compulsory retirement issued by DA & AA set aside, he cannot be relieved immediately on the day of reinstatement without taking fresh resignation.
Any resignation, in whatsoever form, submitted before his reinstatement and not accepted in writing due to disciplinary proceedings becomes null and void on reinstatement and cannot be acted upon. In any case, a resignation not accepted due to disciplinary proceedings becomes null on the award of punishment or after three months from the date of resignation.
Please confirm my above contentions.
From India , Delhi
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Any resignation, in whatsoever form, submitted before his reinstatement and not accepted in writing due to disciplinary proceedings becomes null and void on reinstatement and cannot be acted upon. In any case, a resignation not accepted due to disciplinary proceedings becomes null on the award of punishment or after three months from the date of resignation.
Please confirm my above contentions.
From India , Delhi
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Dear Rahul,
Legal position on resignation and reinstatement
Resignation, being an offer of unilateral termination of the contract of employment by an employee, once refused acceptance on any valid ground like pending disciplinary proceedings, non-adherence to notice conditions, non-completion of the minimum period of service after on-the-job training, etc., and thus rejected by the employer, the rejection is final. Particularly, when the employee contests the punishment of involuntary termination like compulsory retirement in a Court of Law and gets an order of reinstatement, the employer cannot relieve him on his reinstatement as per the orders of the Court by taking recourse to his earlier resignation, which was already rejected in view of the disciplinary proceedings. In fact, both the resignation and the disciplinary proceedings become non-est on the dates of rejection and orders of reinstatement by the Court respectively.
Seeking judicial remedy
The above is the legal position. Finding a case law exactly with a similar situation is very laborious. You may straight away file an appeal to the appellate authority in the organization simply on the above ground. If it's not fruitful, you can seek judicial remedy in which case your lawyer would be able to find the case laws in support of the above contention.
From India, Salem
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6108Legal position on resignation and reinstatement
Resignation, being an offer of unilateral termination of the contract of employment by an employee, once refused acceptance on any valid ground like pending disciplinary proceedings, non-adherence to notice conditions, non-completion of the minimum period of service after on-the-job training, etc., and thus rejected by the employer, the rejection is final. Particularly, when the employee contests the punishment of involuntary termination like compulsory retirement in a Court of Law and gets an order of reinstatement, the employer cannot relieve him on his reinstatement as per the orders of the Court by taking recourse to his earlier resignation, which was already rejected in view of the disciplinary proceedings. In fact, both the resignation and the disciplinary proceedings become non-est on the dates of rejection and orders of reinstatement by the Court respectively.
Seeking judicial remedy
The above is the legal position. Finding a case law exactly with a similar situation is very laborious. You may straight away file an appeal to the appellate authority in the organization simply on the above ground. If it's not fruitful, you can seek judicial remedy in which case your lawyer would be able to find the case laws in support of the above contention.
From India, Salem
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Termination vs. Retirement
The first thing is that the person was not retiring but rather terminated by the management. The person is to be treated the same as before the disciplinary action, and it was a one-sided decision.
Resignation and Reinstatement
The resignation or whatever was offered by the person becomes null and void after the order of reinstatement. Furthermore, the management did not accept the resignation when it was tendered because the management wanted capital punishment rather than simply letting the person go or exit.
Challenging the Reinstatement Order
The management should challenge the reinstatement order if not satisfied. Prior to that, the management should have all possible facts and figures that did not come up during the disciplinary proceedings and suggestions from the EO.
From India, Mumbai
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The first thing is that the person was not retiring but rather terminated by the management. The person is to be treated the same as before the disciplinary action, and it was a one-sided decision.
Resignation and Reinstatement
The resignation or whatever was offered by the person becomes null and void after the order of reinstatement. Furthermore, the management did not accept the resignation when it was tendered because the management wanted capital punishment rather than simply letting the person go or exit.
Challenging the Reinstatement Order
The management should challenge the reinstatement order if not satisfied. Prior to that, the management should have all possible facts and figures that did not come up during the disciplinary proceedings and suggestions from the EO.
From India, Mumbai
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Dear Sir,
Further to my query, which was promptly replied to, I am attaching herewith a copy of the letter submitted by the officer after submitting his review request for reinstatement back into services. On the date of this letter, the officer was not in service as he had been compulsorily retired. He was reinstated only on 28.12.98 when he rejoined duties after receiving reinstatement orders following the approval of his review by the chairman.
His earlier resignation, submitted before the issuance of the chargesheet, was rejected in writing in August 98 itself. Management relieved him on the same day of his rejoining duties after reinstatement by accepting his resignation. They have treated the letter dated 19.12.98 as a resignation, which I feel is totally illegal, as after reinstatement, one has to submit a fresh resignation.
Secondly, the letter dated 19.12.98 was for reinstatement, which means it was not a voluntary act, while a resignation has to be voluntary. Additionally, since the officer was not in service on 19.12.98, this letter cannot be considered a resignation at all. This letter was in furtherance to his review request, so it can only be taken as part of the review.
The last point is that resignation and reinstatement cannot go hand in hand. Please study this letter and advise/confirm my contention that this letter by no means can be treated as a resignation. This officer has been fighting a legal battle for the last 23 years. Your kind advice will help him in pleading his case successfully.
Thanks.
From India , Delhi
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Further to my query, which was promptly replied to, I am attaching herewith a copy of the letter submitted by the officer after submitting his review request for reinstatement back into services. On the date of this letter, the officer was not in service as he had been compulsorily retired. He was reinstated only on 28.12.98 when he rejoined duties after receiving reinstatement orders following the approval of his review by the chairman.
His earlier resignation, submitted before the issuance of the chargesheet, was rejected in writing in August 98 itself. Management relieved him on the same day of his rejoining duties after reinstatement by accepting his resignation. They have treated the letter dated 19.12.98 as a resignation, which I feel is totally illegal, as after reinstatement, one has to submit a fresh resignation.
Secondly, the letter dated 19.12.98 was for reinstatement, which means it was not a voluntary act, while a resignation has to be voluntary. Additionally, since the officer was not in service on 19.12.98, this letter cannot be considered a resignation at all. This letter was in furtherance to his review request, so it can only be taken as part of the review.
The last point is that resignation and reinstatement cannot go hand in hand. Please study this letter and advise/confirm my contention that this letter by no means can be treated as a resignation. This officer has been fighting a legal battle for the last 23 years. Your kind advice will help him in pleading his case successfully.
Thanks.
From India , Delhi
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