Supreme Court of India
DR. MRS. SUMAN V. JAINversusMARWADI SAMMELAN THROUGH ITS SECRETARY AND OTHERS
- Citation
- 2024 INSC 127
- Decided
- 20 February 2024
- Disposal
- Appeal(s) allowed
- Bench
- K MAHESHWARI
Holding
A prospective resignation may be withdrawn at any time before it becomes effective unless a specific contractual or statutory bar exists; the Trust's acceptance without prior consent was unilateral and not binding.
Summary
Dr. Suman V. Jain, a permanent principal of a college run by Marwadi Sammelan Trust, submitted a prospective resignation on 25 March 2003 effective from 24 September 2003. The Trust accepted the resignation on 8 April 2003, calling it "final, binding and irrevocable," and later rejected her request to withdraw the resignation before the effective date. The appellant sought to withdraw the resignation, arguing that a prospective resignation can be withdrawn before it becomes effective unless a specific contractual or statutory bar exists. The Supreme Court examined the principles laid down in Union of India v. Gopal Chand Misra and other precedents, holding that in the absence of any rule or contract to the contrary, a prospective resignation is withdrawable before its effective date and the Trust's acceptance was unilateral and not binding. Consequently, the Court set aside the orders of the College Tribunal and the High Court, directed the Trust to regularize the appellant's service period from 24 September 2003 to 1 October 2007 for pension purposes, and allowed the appeal.
Issues considered
- Whether the appellant could withdraw her prospective resignation dated 25‑03‑2003 before its effective date of 24‑09‑2003.
- Whether the Trust's letter of 08‑04‑2003 accepting the resignation was final, binding and irrevocable.
- What relief, if any, should be granted to the appellant.
Legislation cited
- Maharashtra Universities Act, 1994s. 59(1), s. 59(2)
Subjects
Prospective resignationWithdrawal of prospective resignationEffective dateIntending resignationPrior to the effective dateIntention or proposal to resignIntimation of resignationAcceptance of resignationPrinciple of vinculum juris
Judgment
[2024] 2 S.C.R. 617 : 2024 INSC 127
Dr. Mrs. Suman V. Jain
v.
Marwadi Sammelan through its
Secretary and Others
(Civil Appeal No. 1480 of 2012)
20 February 2024
[J.K. Maheshwari* and K.V. Viswanathan, JJ.]
Issue for Consideration
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; whether the 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 and; in
the facts of the case, what relief could be granted to the Appellant.
Headnotes
Service Law – Withdrawal of prospective resignation prior to
the effective date – Permissibility:
Held: 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 – 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/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 – Letter
dtd. 25.03.2003 was an intimation of resignation from a prospective
date 24.09.2003, which could have been withdrawn by the appellant
prior to the effective date – There was no Rule/Regulation which
restrained such withdrawal – There was no prior consent to the
letter dtd. 08.04.2003 for accepting resignation w.e.f. 24.09.2003
* Author
618 [2024] 2 S.C.R.
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as ‘final, binding and irrevocable’ and therefore, by using such
words, the acceptance of resignation was unilateral – Withdrawal
of such resignation by appellant prior to the effective date was
permissible – Thus, the judgment of the House of Lords in “The
Rev. Oswald Joseph Reichel Vs. The Right Rev. John Fielder”
does not apply to the facts of the present case and the dismissal
of the petition of appellant on similarity of facts with the said case
was not correct and such findings by three fora are unsustainable
– On facts, the ratio of the judgment of the Constitution Bench
in Union of India and Others v. Gopal Chand Misra and Others
[1978] 3 SCR applies in full force – Orders passed by the College
Tribunal and the High Court set aside – Further, on peculiar facts
of this case, respondent no.1 to regularize the service period of
the appellant from 24.09.2003 (when they wrongly treated the
appellant as having resigned) till the date of joining the duty at
the new Institution as Principal on 01.10.2007 – Directions issued.
[Paras 28, 12, 27, 21, 31 and 29]
Doctrines/Principles – Principle of “vinculum juris” –
Discussed. [Para 24]
Case Law Cited
Union of India and Others Vs. Gopal Chand Misra and
Others, [1978] 3 SCR 12 : (1978) 2 SCC 301 – followed.
BSES Yamuna Power Limited Vs. Ghanshyam Chand
Sharma and Others, [2019] 14 SCR 546 : (2020) 3
SCC 346 – distinguished.
Air India Express Limited and Others Vs. Captain
Gurdarshan Kaur Sandhu, [2019] 12 SCR 980 : (2019)
17 SCC 129 – held inapplicable.
Srikantha S.M. Vs. Bharath Earth Movers Limited, [2005]
Supp. 4 SCR 156 : (2005) 8 SCC 314; Balram Gupta
Vs. Union of India and Another, [1987] 3 SCR 1173 :
1987 (Supp) SCC 228; Raj Kumar Vs. Union of India,
[1968] 3 SCR 857 : AIR 1969 SC 180 – relied on.
Century Spinning and Manufacturing Company Limited
and Another Vs. The Ulhasnagar Municipal Council and
Another, [1970] 3 SCR 854 : AIR 1971 SC 1021; Union
of India and Others Vs. M/s. Anglo Afghan Agencies
[2024] 2 S.C.R. 619
Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its
Secretary and Others
Limited, [1968] 2 SCR 366 : AIR 1968 SC 718; New
Victoria Mills and Others Vs. Shrikant Arya, [2021] 11
SCR 750 : (2021) 13 SCC 771; B.L. Shreedhar and
Others Vs. K.N. Munireddy and Others, [2002] Supp.
4 SCR 601 : (2003) 2 SCC 355 – referred to.
The Rev. Oswald Joseph Reichel Vs. The Right Rev.
John Fielder (1889), House of Lords, XIV, 249 – held
inapplicable.
List of Acts
Maharashtra Universities Act, 1994.
List of Keywords
Prospective resignation; Withdrawal of prospective resignation;
Effective date; Intending resignation; Prior to the effective date;
Intention or proposal to resign; Intimation of resignation; Acceptance
of resignation; Principle of “vinculum juris”.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1480 of 2012
From the Judgment and Order dated 04.07.2008 of the High Court of
Bombay in AN No. 63 of 2008 & WP No. 1611 of 2004
Appearances for Parties
Varinder Kumar Sharma, Shantanu Sharma, Deeksha Gaur, Advs.
for the Appellant.
Ms. Nina Gupta, Dr. Lalit Bhasin, Ms. Vaishnavi Gupta, Ms. Radhika
Gupta, Aaditya Aniruddha Pande, Siddharth Dharmadhikari, Sourav
Singh, Aditya Krishna, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
J.K. Maheshwari J.
1. The instant appeal arises out of the judgment dated 04.07.2008,
passed by the Division Bench of the ‘High Court of Judicature at
Bombay’ in Appeal No. 63 of 2008, whereby the Division Bench
dismissed the appeal preferred by the appellant and confirmed the
620 [2024] 2 S.C.R.
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order dated 08.08.2006 passed by learned Single Judge in Writ
Petition No. 1611 of 2004. The said writ petition was filed by the
appellant being aggrieved by an order dated 30.04.2004 passed by
the ‘Mumbai University and College Tribunal, Mumbai’ (hereinafter
referred to as “College Tribunal”) in ‘Civil Appeal No. 51 of 2003’.
Before the College Tribunal, the appellant filed an appeal to quash
the order dated 10.09.2003 passed by respondent No. 1 “Marwadi
Sammelan Trust” (hereinafter referred to as “Trust”) rejecting her
request for withdrawal of resignation vide letter dated 09.09.2003.
As such, this appeal is arising out of the orders passed by the three
fora before whom 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.
FINDINGS OF THE COLLEGE TRIBUNAL
2. Assailing the rejection of request for withdrawal of the prospective
resignation prior to the effective date, appellant preferred an Appeal
No. 51 of 2003 before the College Tribunal. The College Tribunal
vide judgment dated 30.04.2004 was of the opinion 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 (hereinafter referred
to as “1994 Act”) and on such, the question of limitation under
Section 59(2) does not arise. The College Tribunal having found
that the appeal is not maintainable, even delved into the question
of withdrawal of the prospective resignation before the effective
date on merits. After appreciating the facts, it was 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 judgment of the House of Lords
in the case of “The Rev. Oswald Joseph Reichel Vs. The Right
Rev. John Fielder (1889), House of Lords, XIV, 249”, and hence,
the College Tribunal dismissed the appeal.
FINDINGS RECORDED BY THE LEARNED SINGLE JUDGE
3. The said judgment was challenged by filing a Writ Petition No.
1611 of 2004 before the Bombay High Court. Learned Single
Judge considered the question as to whether a right to withdraw
[2024] 2 S.C.R. 621
Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its
Secretary and Others
the prospective resignation can be given up or abandoned? While
considering the same, learned Single Judge relied upon the judgment
of Rev. Oswald (supra) and after quoting the same, observed that
the right to withdraw the prospective resignation is capable of being
given up or waived off by the person who holds that right. Later,
the Court referred to the judgment on the principle of ‘estoppel’ and
‘waiver’ and in view of the letters dated 28.03.2003, 08.04.2003
and looking to the conduct of the appellant held that the findings
recorded by the tribunal on merits did not warrant any interference.
Learned Single Judge failed to appreciate the aspect about the
Tribunal having once found the appeal as not maintainable, as to
how far it was justified in confirming the findings and examining the
issue on merits.
FINDINGS OF THE DIVISION BENCH OF HIGH COURT
4. On challenge, the Division Bench confirmed those findings. In para
12 of the judgment, it was held that in normal circumstances, it was
open for the appellant to withdraw her resignation before it came into
effect, subject to a contract to the contrary. The Division Bench then
proceeded to consider the issue as to whether the Tribunal committed
any error in considering the factual aspect of the matter. The Division
Bench considered the correspondence made from the very inception,
i.e., letters dated 18.02.2003, 25.03.2003, 31.03.2003 and 11.8.2003
written by the appellant and letters dated 25.03.2003, 28.03.2003
and 08.04.2003 written by the management and observed that the
acceptance of withdrawal of resignation was not objected for quite
some time and that it reflected an understanding that the resignation
was irrevocable, final and binding between the parties. Relying upon
the judgment rendered in the case of Rev. Oswald (supra) and also
in the case of “Century Spinning and Manufacturing Company
Limited and Another Vs. The Ulhasnagar Municipal Council and
Another, AIR 1971 SC 1021” and “Union of India and Others Vs.
M/s. Anglo Afghan Agencies Limited, AIR 1968 SC 718” on the
issue of estoppel, the findings recorded by the College Tribunal and
the learned Single Judge of the High Court were affirmed.
ARGUMENTS RAISED
5. Learned counsel for the appellant placed reliance upon the judgment
of “Union of India and Others Vs. Gopal Chand Misra and Others,
(1978) 2 SCC 301” to contend that the decision of Rev. Oswald
622 [2024] 2 S.C.R.
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(supra) has been considered and distinguished in the said case. It
is submitted that in the absence of any contrary provision governing
the employment, prospective resignation given by an employee
can be withdrawn at any time before it becomes effective. Reliance
has further been placed on the judgments of “Srikantha S.M. Vs.
Bharath Earth Movers Limited, (2005) 8 SCC 314”; Balram Gupta
Vs. Union of India and Another, 1987 (Supp) SCC 228; “Air
India Express Limited and Others Vs. Captain Gurdarshan Kaur
Sandhu, (2019) 17 SCC 129” and “New Victoria Mills and Others
Vs. Shrikant Arya, (2021) 13 SCC 771”. It is pointed out that on
filing of an appeal before the Tribunal, there was a stay in favour
of the appellant till the disposal of the said appeal, i.e., 30.04.2004.
On disposal of the appeal by the College Tribunal and during the
pendency of the proceedings before the High Court, she secured
another job as Principal at M.M.P. Shah College and after joining
on 01.10.2007, she worked till the age of superannuation, i.e., till
31.10.2015. It is urged that the period from the date of acceptance of
the resignation till the joining in the new college may be directed to
be regularized on reinstatement, as otherwise, it may cause serious
prejudice to the appellant in the matter of payment of pension. It
is stated that, in the instant case, there was no written contract
or any contrary Rule governing the service of appellant, hence,
it is contended that she was entitled to withdraw the prospective
resignation. Learned Counsel contested the finding of implied contract
after referring to the correspondence between the appellant and the
management. According to the learned counsel, the said finding
was recorded without appreciating the contents of the letter in their
correct perspective. The College Tribunal, learned Single Judge and
the Division Bench, according to learned counsel have relied upon
the case of Rev. Oswald (supra) which was a judgment based on
the deed of resignation executed before the witnesses. Therefore,
the ratio of the said judgment is not applicable in the facts of this
case and the findings as recorded are not in conformity with the law.
6. Per contra, learned counsel for the Trust vehemently opposed the
stand taken by the appellant and argued in support of the reasonings
and findings of the impugned judgment. It is contended that the
present case is not a case of withdrawal of resignation from a future
effective date, rather it is a case where, by mutual understanding
resignation was accepted by the management and the controversy
[2024] 2 S.C.R. 623
Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its
Secretary and Others
was put to rest. Learned counsel contends that in fact both parties
have mutually agreed and the controversy was put at rest by accepting
the resignation. Further, the doctrine of “locus poenitentiae” or the
opportunity for withdrawal of resignation by change of mind is of
no help to the appellant because the letter dated 08.04.2003 was
not objected for quite some time. According to the learned counsel,
from the correspondence between the appellant and the respondent
it is clear that the management intended to initiate departmental
inquiry and to avoid that inquiry, appellant submitted her resignation
from the prospective date, which was accepted as irrevocable, final
and binding. Thus, the findings recorded by the College Tribunal,
learned Single Judge and the Division Bench against the appellant
according to learned counsel warrants no interference. In support of
the contentions, reliance has been placed on “BSES Yamuna Power
Limited Vs. Ghanshyam Chand Sharma and Others, (2020) 3
SCC 346”, “B.L. Shreedhar and Others Vs. K.N. Munireddy and
Others, (2003) 2 SCC 355”, Air India Express Limited (supra),
Gopal Chand Misra (supra), Balram Gupta (supra) and The Rev.
Oswald (supra) and it has been submitted that this appeal deserves
to be dismissed.
7. Learned counsel for the Respondent Nos. 3 and 4 submits that
the College was run by the Trust affiliated by “Shreemati Nathibhai
Damodar Thackersey Women’s University” (hereinafter referred to
as “SNDT University”). As per Clause 8(3)(d) of SNDT Women’s
University Statute, the Governing Body of the management is
empowered to accept the resignation on giving six months’ notice or
payment of salary and the government has no role to play in refusal
or acceptance of the resignation. However, in the facts of the case,
once the resignation has been accepted by the Governing Body, the
findings as recorded by the Tribunal and High Court did not warrant
any interference.
8. In view of the findings recorded by the three fora, and the arguments
advanced by learned counsels for the parties in the facts of this case,
the following questions arise for determination before this Court –
A. 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?
624 [2024] 2 S.C.R.
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B. 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?
C. Whether in the facts of the case, what relief could
be granted to the Appellant?
DISCUSSION ON QUESTIONS (A) AND (B)
9. For the sake of convenience and since the discussion on the facts
and legal issues are common, questions (A) and (B) are taken up
together and dealt with simultaneously. On perusal of the findings
as recorded by the three fora, it is spelt out that relying upon the
judgment of the House of Lords in the case of Rev. Oswald (supra),
appeal, writ petition and the further appeal to Division Bench have
been dismissed. Therefore, we first need to analyze in detail the
said judgment. In the said case, the controversy arose from the
conduct of the ‘Vicar’ who was informed by the Bishop that he
must either submit to an inquiry or cease to hold his benefice.
On such proposal being made by the Bishop, the Vicar executed
an unconditional deed of resignation before the witnesses and
sent it to the Bishop’s Secretary on which the Bishop postponed
the formal acceptance of Vicar’s resignation until first of October.
However, on tenth of June, the Vicar by another document revoked
the earlier deed of resignation and communicated the same to
the Bishop’s Secretary on sixteenth of July. The Bishop in spite
of the revocation by Vicar, signed the document and accepted the
resignation from the first of October and declared the vicarage
void. Aggrieved by the same, the Vicar brought an action against
the Bishop and others seeking a declaration that he was a Vicar
and the acceptance of the resignation by the Bishop was void. He
also sought an injunction to restrain the defendants from treating
the benefice as vacant. The matter reached the House of Lords
in appeal, which affirmed the decision of the Court of Appeal and
held that the resignation was voluntary, absolute, validly executed
and irrevocable. Hence, the action brought by the Vicar was not
successful.
10. The judgment of Rev. Oswald (supra) was placed before the
Constitution Bench of this Court for consideration in the case of
[2024] 2 S.C.R. 625
Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its
Secretary and Others
Gopal Chandra Misra (supra) and in para 69, it was distinguished
on facts and observed as thus –
"69. Reichal is no authority for the proposition that an
unconditional prospective resignation, without more,
normally becomes absolute and operative the moment
it is conveyed to the appropriate authority. The
special feature of the case was that Reichal had, of
his own free will, entered into a “perfectly binding
agreement” with the Bishop, according to which,
the Bishop had agreed to abstain from commencing
an inquiry into the serious charges against Reichal
if the latter tendered his resignation. In pursuance
of that lawful agreement, Reichal tendered his
resignation and did all to complete it, and the Bishop
also at the other end, abstained from instituting
proceedings against him in the Ecclesiastical Court.
The agreement was thus not a nudum pactum but
one for good consideration and had been acted upon
and “consummated before the supposed withdrawal
of the resignation of Mr. Reichal”, who could not,
therefore, be permitted “to upset the agreement” at
his unilateral option and withdraw the resignation
“without the consent of the Bishop”. It was in view
of these exceptional circumstances, Their Lordships
held Reichal’s resignation had become absolute and
irrevocable. No extraordinary circumstances of this
nature exist in the instant case.”
11. The Constitution Bench in the said case laid down the principles
with regard to prospective or potential resignation and held that
such resignation can be withdrawn at any time before it becomes
effective. The relevant paras 28, 29, and 41 are reproduced, for
ready reference, as thus –
"28. The substantive body of this letter (which has been
extracted in full in a foregoing part of this judgment)
is comprised of three sentences only. In the first
sentence, it is stated: “I beg to resign my office as
Judge, High Court of Judicature at Allahabad.” Had
this sentence stood alone, or been the only content of
this letter, it would operate as a complete resignation
626 [2024] 2 S.C.R.
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in praesenti, involving immediate relinquishment of
the office and termination of his tenure as Judge.
But this is not so. The first sentence is immediately
followed by two more, which read: “I will be on leave
till July 31, 1977. My resignation shall be effective
on August 1, 1977.” The first sentence cannot be
divorced from the context of the other two sentences
and construed in isolation. It has to be read along
with the succeeding two which qualify it. Construed
as a whole according to its tenor, the letter dated
May 7, 1977, is merely an intimation or notice of the
writer’s intention to resign his office as Judge, on
a future date viz. August 1, 1977. For the sake of
convenience, we might call this communication as a
prospective or potential resignation, but before the
arrival of the indicated future date it was certainly
not a complete and operative resignation because,
by itself, it did not and could not, sever the writer
from the office of the Judge, or terminate his tenure
as such.
29. Thus tested, sending of the letter dated May 7, 1977
by Appellant 2 to the President, did not constitute
a complete and operative resignation within the
contemplation of the expression “resigns his office”
used in proviso (a) to Article 217(1). Before the arrival
of the indicated future date (August 1, 1977), it was
wholly inert, inoperative and ineffective, and could
not, and in fact did not, cause any jural effect.
xxx xxx xxx xxx
41. The general principle that emerges from the foregoing
conspectus, is that in the absence of anything to the
contrary in the provisions governing the terms and
conditions of the office/post, an intimation in writing
sent to the competent authority by the incumbent,
of his intention or proposal to resign his office/post
from a future specified date can be withdrawn by him
at any time before it becomes effective, i.e. before
it effects termination of the tenure of the office/post
or the employment. ”
[2024] 2 S.C.R. 627
Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its
Secretary and Others
12. As per the law laid down above by the Constitution Bench, 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.
13. Now to appreciate the findings recorded by three fora, the facts of
the present case are required to be discussed with precision. In the
case at hand, the appellant was appointed as Principal on 01.07.1992
in “B.M. Ruia Girls and G.D. Birla Girls College” (hereinafter
referred to as “College”), affiliated to SNDT University and run
by respondent No. 1 – Trust. Her appointment was permanent,
and she was discharging the duties for a decade long period. In
the month of December 1998, the management of the Trust was
changed, and the functioning of the school was taken over by
the new management. In 2001, one Mr. Biani was appointed as
Convenor and it is alleged that there was interference in the day-
to-day functions and passing of lewd and inappropriate comments.
Distressed by it, the appellant along with her colleagues wrote a letter
dated 18.02.2003 containing some allegations and raised a protest.
It should also be noticed that one of the Trustees sent a letter to
appellant on 05.03.2003, stating that there are certain allegations
of financial irregularities and indiscipline against her, and she was
called upon to submit her justification. Appellant did not submit any
response to the said letter, and vide letter dated 04.03.2003, withdrew
her protest letter. On 25.03.2003, due to serious health issues, the
appellant submitted an intimation of resignation to the President of
Trust and informed that she wishes to resign from future date, i.e.,
24.09.2003. The President on the same date informed the appellant
that the Management Committee has decided to conduct a detailed
enquiry by a “Fact Finding Committee”. Appellant was directed to
proceed on leave for two months and hand over the charge to
one Mrs. Purvi Shah who shall work as “officiating Principal” with
immediate effect. Shortly within three days, i.e., on 28.03.2003, the
President informed the appellant to submit a fresh unconditional
resignation. For ready reference, the relevant portion of the said
letter is reproduced as under –
628 [2024] 2 S.C.R.
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“ xxx xxx xxx xxx
If you want to resign unconditionally of your own volition
with immediate effect and settle the controversy on this
footing, the management can perhaps consider your
request to drop the enquiry subject to affirmation of
managing committee. Your resignation with effect from
24.09.2003 is not acceptable to the management. Six
months’ notice can be waived on both sides in view of the
present situation is not mandatory. If you are not willing
to resign unconditionally with immediate effect, it is your
choice. If you want to resign with immediate effect, the
management may perhaps be persuaded to drop the
proposed enquiry in larger interest of the institute.
If no reply is received from you within 48 hours from receipt
of this letter, the management shall take appropriate action
in the matter as deemed fit.
xxx xxx xxx xxx ”
14. The appellant did not submit a fresh resignation and submitted
her response to the said letter on 31.03.2003 and requested the
management to consider her prayer to accept resignation from
prospective date, i.e., 24.09.2003. The relevant portion of the letter
specifying the reasons are reproduced as under –
“ xxx xxx xxx xxx
(1) As per Government statute, I am supposed to give
a 6 months’ notice before resigning from the post of
Principal. I would like to adhere to this government
rule.
(Ref. Dated )
(2) I have a total of approximately 7 months’ leave to my
credit which I would like to avail of before resigning.
Since I shall be receiving my remuneration from the
government, there will be no financial burden on the
management.
(3) Since I am already on long leave on medical advice,
I shall not be in a position to attend college till I am
[2024] 2 S.C.R. 629
Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its
Secretary and Others
medically fit to do so in view of the very serious nature
of my brain and spine problems.
In view of the above, I request you to accept my resignation
valid from 24.09.2003. I am hopeful that the management
will take a sympathetic view of my request.
xxx xxx xxx xxx ”
15. Thereafter, the management vide letter dated 08.04.2003 accepted
the resignation in the following terms and replied to the appellant.
The necessary relevant portion is reproduced as thus –
“ xxx xxx xxx xxx
I acknowledge receipt of your letter dated 31.03.2003.
The management hereby accepts your unconditional
resignation with 6 months’ notice, i.e., with effect from 24th
September 2003 as final, binding and irrevocable. You
shall be on leave till 23.09.2003. As suggested by you, the
entire leave period shall be debited to your leave account.
In view of the above, the allegations and averments on
either side need not be dealt with. The same are not
admitted. The unpleasant dispute and the controversy is
thus closed on the above footing.
We have already appointed officiating Principal. We shall
proceed with the appointment of a regular Principal with
effect from 24.09.2003. The process shall be started soon.
During this period, you shall not represent the college
before any authority or elsewhere.
xxx xxx xxx xxx ”
16. From the above correspondence, 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 with effect from the future date
i.e., 24.09.2003 as prayed vide response dated 31.03.2003. The
management on its own accepted the said resignation from future
date but unilaterally mentioned as follows: – “hereby accept your
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unconditional resignation with six months’ notice w.e.f. 24.09.2003
as final, binding and irrevocable.”
17. The stand taken by the respondent that the contents of letter dated
11.08.2003 written by appellant is a sort of an implied understanding.
Hence, the contents of the letter is required to be reproduced to
appreciate the findings as recorded in this regard by the three fora
which reads as thus –
“ xxx xxx xxx xxx
This is to point out to you that some office bearers of
the managing committee have on certain occasions
(meetings, functions etc.) including a program held
in the college on 09.09.2003 made unsubstantiated,
unproved, incorrect and unauthentic allegations against
me publicly.
This is contrary to your own letter dated 08.04.2003 in
which it has been mentioned that “The allegations and
averments on either side need not be dealt with. The same
are not admitted. The unpleasant dispute and controversy
is thus closed on the above footing.
Making false allegations publicly amounts to character
assassination and defamation.
I therefore request you to ensure that henceforth members
of the managing committee do not publicly or otherwise
make false defamatory statements against me.
xxx xxx xxx xxx ”
On perusal of the same, the reference to the letter dated 08.04.2003
made in the said letter of 11.08.2003, referring to the contents,
particularly the lines “The allegations and averments on either side
need not be dealt with. The same are not admitted. The unpleasant
dispute and controversy thus end on above footing”, cannot be said
to be an acknowledgment of unconditional resignation. The consent
must be prior to the date of accepting the resignation. The contents
of letter dated 11.08.2003 do not indicate that it was an acceptance
of the resignation w.e.f. 24.09.2003 as final, binding and irrevocable.
On the basis of the contents of the letter dated 11.08.2003, we
cannot countenance the findings as recorded in impugned order,
[2024] 2 S.C.R. 631
Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its
Secretary and Others
maintaining the order of rejection of her request to withdraw the
potential resignation with future date.
18. We have perused the above correspondence in detail. It does not
appear to us that the resignation was submitted by the appellant to
foreclose the commencement of any enquiry against her. Nothing
has been placed on record to demonstrate that the resignation was
submitted in lieu of the waiving of any departmental enquiry. Any
correspondence of the appellant showing prior consent has also not
been placed before us. The College Tribunal and the High Court
recorded the finding relying on the letter dated 08.04.2003 attributing
an acknowledgment by the appellant vide letter dated 11.08.2003.
The Courts below have treated it to be an implied understanding
or contract because the letter of 08.04.2003 was not replied to for
quite some time.
19. On perusal of the contents of the resignation letter dated 25.03.2003,
it is clear that the appellant requested to accept her resignation from
future date w.e.f. 24.09.2003 due to medical reasons. Vide letter dated
28.03.2003, the management demanded unconditional resignation
of appellant waiving the 6 months’ notice period by mutual consent,
which was not agreed and a reply was submitted on 31.03.2003
justifying the resignation from a prospective date. Thereafter, vide
letter dated 08.04.2003 the resignation dated 25.03.2003 was
accepted from a prospective date ‘unilaterally’ using the words “final,
binding and irrevocable.”
20. The judgment in Rev. Oswald (supra) was relied upon in the impugned
judgment to say that facts of the instant case are similar. In our view,
the case of Rev. Oswald (supra) was a case in which unconditional
deed of resignation was executed before the witnesses and sent
to the Bishop’s Secretary with an understanding of postponing the
formal acceptance until the future date. The resignation deed so
executed before witnesses was unilaterally withdrawn by the Vicar,
therefore, the House of Lords held that the resignation was voluntary,
absolute, validly executed and irrevocable.
21. 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 resignation vide letter dated 08.04.2003 using the words final,
binding and irrevocable was unilateral. In the subsequent letter dated
632 [2024] 2 S.C.R.
Digital Supreme Court Reports
11.08.2003, acceptance of the words “final, binding and irrevocable”
was not expressly made. In fact, it was in the context of the wordings
of the letter dated 08.04.2003 extracted hereinabove. The averments
in the letter dated 11.08.2003, which is after date of acceptance of
resignation also does not disclose any implied agreement to the
contents of the letter dated 08.04.2003. From above discussion, in our
view, we cannot accept the said line of reasonings recorded by three
fora. Therefore, in our view, the judgment of Rev. Oswald (supra)
does not apply to the facts of the present case. Thus, 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 for are
unsustainable. In our view, 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.
22. Our said view is further fortified by the judgment of this Court in
Balram Gupta (supra), wherein reiterating the view taken in “Raj
Kumar Vs. Union of India, AIR 1969 SC 180”, this Court held
that till the resignation is accepted by the Competent Authority in
consonance with the rules governing the acceptance, the employee
has the ‘locus poenitentiae’, but not thereafter. On the facts referred
hereinabove of the present case, the withdrawal of the resignation
was made two weeks prior to the effective date, i.e., on 09.09.2003,
however, the appellant was having locus to withdraw the resignation
prior to the effective date of resignation.
23. In a later judgment of this Court in Srikantha S.M. (supra), the
principle of “vinculum juris” has been propounded, paras 26 and 27
whereof, are relevant therefore, reproduced as thus –
"26. On the basis of the above decisions, in our opinion,
the learned counsel for the appellant is right in
contending that though the respondent Company
had accepted the resignation of the appellant on
4-1-1993 and was ordered to be relieved on that
day, by a subsequent letter, he was granted casual
leave from 5-1-1993 to 13-1-1993. Moreover, he was
informed that he would be relieved after office hours
on 15-1-1993. The vinculum juris [[Ed.: vinculum (per
OED): A bond of union, a tie. Usually figurative, and
juris (per Black’s): Of Law; Of Right]], therefore, in our
[2024] 2 S.C.R. 633
Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its
Secretary and Others
considered opinion, continued and the relationship of
employer and employee did not come to an end on
4-1-1993. The relieving order and payment of salary
also make it abundantly clear that he was continued
in service of the Company up to 15-1-1993.
27. In the affidavit-in-reply filed by the Company, it was
stated that resignation of the appellant was accepted
immediately, and he was to be relieved on 4-1-1993.
It was because of the request of the appellant that
he was continued up to 15-1-1993. In the affidavit-in-
rejoinder, the appellant had stated that he reported
for duty on 15-1-1993 and also worked on that day.
At about 12.00 noon, a letter was issued to him
stating therein that he would be relieved at the close
of the day. A cheque of Rs 13,511 was paid to him
at 17.30 hrs. The appellant had asserted that he
had not received terminal benefits such as gratuity,
provident fund, etc. It is thus proved that up to 15-1-
1993, the appellant remained in service. If it is so, in
our opinion, as per settled law, the appellant could
have withdrawn his resignation before that date.
It is an admitted fact that a letter of withdrawal of
resignation was submitted by the appellant on 8-1-
1993. It was, therefore, on the Company to give effect
to the said letter. By not doing so, the Company has
acted contrary to the law and against the decisions
of this Court and hence, the action of the Company
deserves to be quashed and set aside. The High
Court, in our opinion, was in error in not granting
relief to the appellant. Accordingly, the action of the
Company as upheld by the High Court is hereby set
aside. ”
24. In the above case, on submitting the resignation, appellant was
relieved on 04.01.1993 granting leave from 05.01.1993 till 13.01.1993.
The effective date of resignation was prospective, i.e., 15.01.1993.
The appellant therein withdrew the resignation before the effective
date on 08.01.1993. The Company refused to accept such withdrawal
of resignation. In the said factual context, this Court set-aside such
an action of refusal to accept the withdrawal of resignation and
634 [2024] 2 S.C.R.
Digital Supreme Court Reports
explained the principle of “vinculum juris” holding that the relationship
of employer and employee did not come to an end on the date
of sending an intimation of withdrawal of resignation and it would
continue till the actual date of acceptance. In the said case, after
quashing the action of the company, this Court held that it would be
unjust to deny assignment of further work to the employee by the
employer and the employee was held entitled for salary and other
consequential benefits. In our view, the facts of the present case
are broadly similar to the said case.
25. Learned counsel for Trust has placed reliance on the judgment of
this Court in BSES Yamuna Power Limited (supra), however, the
facts of the said case are different. In the said case, the resignation
was treated as request for voluntary retirement however, the High
Court counting the past service of petitioner held him entitled for
pensionary benefits. The petitioner in the said case was regularized
on 22.12.1971. He submitted resignation on 07.07.1990, which
was accepted. The acceptance of the said resignation would have
resulted in forfeiture of past service. The High Court has treated it
as request for voluntary retirement and granted pensionary benefits.
Dealing with the said issue, this Court after referring the provision of
Rule 26 of Central Civil Services Pension Rules, 1972, clarified that
the resignation would have entailed forfeiture of service, and such
request cannot be treated as request for voluntary retirement. With
the said discussion, the judgment of the High Court was set-aside.
In our view, looking to the facts of this case, the said judgment is of
no help to the respondent.
26. The judgment of Captain Gurdarshan Kaur Sandhu (supra) has
been relied upon by the counsels for both sides, wherein this Court
in paragraph 12 reaffirmed the law laid down in Gopal Chandra
Misra (supra) and Balram Gupta (supra). The relevant para of the
said judgment is reproduced as thus –
"12. It is thus well settled that normally, until the resignation
becomes effective, it is open to an employee to
withdraw his resignation. When would the resignation
become effective may depend upon the governing
service regulations and/or the terms and conditions of
the office/post. As stated in paras 41 and 50 in Gopal
Chandra Misra [Union of India v. Gopal Chandra
[2024] 2 S.C.R. 635
Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its
Secretary and Others
Misra, (1978) 2 SCC 301 : 1978 SCC (L&S) 303],
“in the absence of anything to the contrary in the
provisions governing the terms and conditions of the
office/post” or “in the absence of a legal contractual or
constitutional bar, a ‘prospective resignation’ can be
withdrawn at any time before it becomes effective”.
Further, as laid down in Balram Gupta [Balram Gupta
v. Union of India, 1987 Supp SCC 228 : 1988 SCC
(L&S) 126], “If, however, the administration had made
arrangements acting on his resignation or letter of
retirement to make other employee available for his
job, that would be another matter. ”
In the said case, this Court carved out an exception on the basis of a
legal, contractual or a constitutional bar for withdrawal of prospective
resignation as referred in paragraph 50 of Gopal Chandra Misra
(supra). This Court referring to the “Civil Aviation Requirements,
2009” (hereinafter referred to as “CAR”) made a distinction that
the public interest would prevail over the interest of an employee’s
own interest. Interpreting Clause 3.7 of the CAR, the Court observed
that without appointment of pilots for operating the flights, the public
interest would be adversely affected. Thus, it was said that the
guiding idea of the eventuality specified therein were the parameters
required to be taken by employer in public interest and, the interest
of an employee cannot be given prominence over the public interest.
In our view, the said judgment has no application in the facts of
instant case wherein the charge of Principal was given on the date
of intimation of resignation itself, to one Mrs. Purvi Shah who was
appointed as “officiating Principal” with immediate effect, directing
the appellant to proceed on leave.
27. In view of the foregoing discussion, we answer question (A) and (B)
in favour of appellant and hold that 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 brought to our notice
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’ which is on record and therefore,
by using such words, the acceptance of resignation was unilateral.
As discussed, there was no implied contract and understanding
636 [2024] 2 S.C.R.
Digital Supreme Court Reports
with prior consent. 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. (supra). Learned counsel for the parties have also relied on
some more case law, but there is no need to burden our judgment
as the question of law as decided in those cases is one and the
same. It is further required to be observed that in view of the findings
recorded hereinabove, we are not examining the question about how
far the Tribunal was justified in dealing with the issue on merits. In
view of the above discussion, both the questions are answered in
favour of appellant.
ANALYSIS OF QUESTION (C)
28. 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 as discussed
above. The Trust had made arrangements giving officiating charge
to the Principal in the place of appellant and as such there was no
prejudice to public interest.
29. In the peculiar facts of this case, it is clear that the effective date
of resignation was 24.09.2003. The College Tribunal granted stay
on 20.09.2003 which remained operative till the final judgment was
delivered by the College Tribunal on 30.04.2004. On filing of the writ
petition and appeal against the order of Writ Court, it was decided
against the appellant by the impugned judgment. During pendency of
litigation before the High Court, the appellant got selected on the post
of Principal in M.P.P. Shah College and on joining duty on 01.10.2007
worked till attaining the age of superannuation i.e., 31.10.2015.
Thus, because of the setting-aside of the orders impugned and due
to the superannuation, she cannot now be allowed to join the duty
in the respondent No. 1 institution. Simultaneously, it would not be
appropriate to give liberty to the Trust to initiate departmental action
for the allegations as raised in the letter of Trustee dated 05.03.2003,
especially after a lapse of more than 20 years, in particular when the
appellant had already attained the age of superannuation in 2015.
Therefore, while deciding the questions (A) and (B) in favour of
appellant, we deem it appropriate to direct the Trust to regularize the
service period of the appellant from 24.09.2003 (when they wrongly
[2024] 2 S.C.R. 637
Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its
Secretary and Others
treated the appellant as having resigned) till the date of joining the
duty at the new Institution as Principal on 01.10.2007. In the facts
of the case, the principle of ‘no work no pay’ would apply and 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
would suffice to observe that in view of her deemed continuance and
in view of our findings hereinabove, the period from 24.09.2003 to
01.10.2007 would be regularized by the respondent and be counted
as period spent on duty for all purposes including pension.
30. In view of the above discussion, we direct that on the regularization
of the period and treating the same as period spent on duty, the
service tenure of the appellant, both in the institution run by Trust
and in M.M.P. Shah College would be counted without any break in
service. Since she would have then completed minimum 20 years’
service required for pension under the Rules, she would be entitled
to her pension and other retiral benefits. The retiral and pensionary
benefits should be calculated and paid accordingly including the
arrears of pension. The said exercise be completed within a period
of four months from the date of this judgment. On failure to pay retiral
benefits/pension and arrears thereof within the time as specified, the
appellant shall be entitled to interest @ 7% per annum.
31. Accordingly, this appeal stands allowed in the above terms, and the
orders passed by the College Tribunal and the High Court stand
set-aside. Pending application(s), if any, shall also stand disposed
of. No order as to costs.
Headnotes prepared by: Divya Pandey Result of the case:
Appeal allowed.
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