UNION OF INDIA & ORS.versusHITENDER KUMAR SONI

                      [2014] 6 S.C.R. 563


                   UNION OF INDIA & ORS.                              A
                                V.
                   HITE;NDER KUMAR SONI
               (Civil Appeal No.10645 of 2010)
                        JULY 21, 2014
                                                                      B
   [VIKRAMAJIT SEN AND SHIVA KIRTI SINGH, JJ.]

     SERVICE LAW:

      Resignation - Effective date - Temporary employee               c
under probation, absenting himself from duty and sending
resignation letter - Resignation accepted - Thereafter, letter
by employee that his resignation letter be treated as
cancelled - Prayer not acceded to - High Court holding that
resignation could not have come into effect as the employee
                                                                      0
was not relieved of his duties - Held: Clause (4) of r. 5(1) of
Central Civil Services (TS) Rules, 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       E
of resignation ....: In the case of notice of termination, 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, and
Government has the power to accept the resignation so as to           F
bring' about a severance of relationship of master and servant
with immediate effect - 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, therefore, there was no requirement to relieve       G
him of his duties - In such a case, 0. M. dated 11. 2. 1988
relating to acceptance of resignation will not be applicable -
Even as per said O.M., resignation is required to be intimated

                               563                                    H
    564       SUPREME COURT REPORTS                  [2014] 6 S.C.R.


A · in writing disclosing the intention to resign the office/post either
    immediately or from a future date specified - The resignation
    has to be clear and unconditional - The view of High Court
    cannot be sustained and, as such, impugned judgment is set
    aside - In view of the facts of the case writ jurisdiction was not
8   required to be exercised - Writ petition of respondent shall
    stand dismissed.

          WORDS AND PHRASES:

          Expression 'relieve' - Connotation of.
c
        The respondent joined as Investigator with the
  appellant-employers on 26.9.1996. While his service was
  still temporary and under probation, he absented himself
  from duty on 6.10.1997 and sent a resignation letter dated
  7.10.1997. By order dated 16.6.1998 his resignation was
0
  accepted. On 5.8.1998 the respondent sent a letter that
  his resignation letter may be treated as cancelled. His
  request was not acceded to. He filed an O.A. before the
  Central Administrative Tribunal, which was rejected.
  However, the High Court allowed his writ petition holding
E that the resignation could not have come into effect, as
  per clause (3) of 0. M. dated 11.2.1988 issued by the
  Government of India, Ministry of Personnel, Public
  Grievances and Pension, the respondent was also
  required to be relieved of his duties which was not done
F by the appellants.

          Allowing the appeal, the Court

          HELD:

G       1.1. The view of the High Court cannot be sustained.
    Clause (4) of r. 5(1) of the Central Civil Services (TS)
    Rules, 1965 considers the case of a temporary·
    Government servant who has a right to opt out of
    Government service by giving a notice of termination of
H
UNION OF INDIA & ORS. v. HITENDER KUMAR SONI 565


service. The subsequent provision of clause (4) has been       A
held applicable to the respondent because instead of
notice of termination he had tendered a letter of
resignation. In such a case, 0. M. dated 11.2.1988 relating
to acceptance of resignation will not be applicable. [para
9) [573-F-G]                                                   B

     1.2. Even. the relevant clauses of the O.M. dated
11.2.1988 prescribe that resignation is required to be
intimated in writing disclosing the intention to resign the
office/post either immediately or from a future date           C
specified. The. resignation has to be clear and
unconditional. The respondent did not specify any future
date but submitted his resignation in writing giving
reasons and his intention to resign is clear and
unconditional. [para 8-9) [572-F-H]; 573-A]
                                                               D
     1.3. In the considered view of this Court, clause (4)
of r.5(1) of 1965 Rules makes a distinction between the
right of a temporary Government servant to sever his
conQection from Government service by giving a notice
of termination and that of a temporary Government              E
servant who chooses not to give such notice but opts to
submit a letter of resignation. In the case of notice of
termination, 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            F
tenders a simple resignation and 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. [para 10) [573-H; 574-A-D]

    1.4. In the instant case, the letter of acceptance         G
clearly s.hows that termination of respondent's service as
per his offer of resignation was not deferred to any future
date and, therefore, there was no requirement to relieve
him of his duties. Even the peculiar facts of the case show
    566      SUPREME COURT REPORTS            [2014] 6 S.C.R.

A 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. [para 10]
B [575-A-C]

       1.5. The word, "relieving" itself must be understood
  in the ordinary parlance because it is not defined in the
  O.M. nor in the relevant rules. The meaning of the word
C "relieve" given in the Law Lexicon 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. Therefore, there was no
D obligation on the Government to write a formal letter that
  the respondent has been relieved. The wholesome writ
  jurisdiction was not required to be exercised in the facts
  of the case keeping in view the conduct of the
  respondent in escaping away from his duties without
E obtaining leave when he was only a temporary employee
  under probation. The impugned judgment of the High
  Court is set aside. The writ petition of the respondent
  shall stand dismissed. [para 12-13] [575-E-H; 576-A-B]

F       Union of India & Ors. v. Gopal Chandra Misra & Ors.
                     =
    1978 (3) scR 12 1978 (2) sec 301     =(1978) 2 sec 301;
                                                =
    Raj Kumar v. Union of India 1968 SCR 875 AIR 1969 SC
    180 - referred to.
                         Case Law Reference :
G
          1978 (3) SCR 12       referred to            para 6
          1968 SCR 875          referred to            para 7
      CIVIL APPELLATE JURISDICTION                  Civil Appeal
H No.10645 of 2010.
UNION OF INDIA & ORS. v. HITENDER KUMAR SONI 567


    From the Judgment and Order dated 11.12.2008 in Civil            A
Writ Petition No. 41/2001 of the High Court of Himachal
Pradesh at Shimla.

     R. Balasubramanian, Kiran Bhardwaj, Rohitash Nagar (for
D.S. Mahra) for the Appellants.                                      B
     C.K. Sucharita for the Respondent.

    The Judgment of the Court was delivered by

     SHIVA KIRTI SINGH, J. 1. As Appellants the Union of             C
India and its concerned officials are aggrieved by the judgment
and order under appeal dated 11.12.2008 passed by a Division
Bench of High Court of Himachal Pradesh in Civil Writ Petition
No.41 of 2001 whereby the High Court allowed the Writ Petition
preferred by the sole Respondent and set aside the impugned
order·of the Central Administrative Tribunal dated 15.5.2000.        D
The High Court held the Respondent entitled for reinstatement
in service to the post of "Investigator". 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               E
opportunity to the Respondent, of hearing as well as leading
evidence.

     2. Before adverting to the tac.ts it is relevant to notice at
the outset that the High Court, inspite of resignation of the        F
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               G
Grievances and Pensions, the Respondent was also required
to be relieved of his duties which was not done by the
Appellants.

     3. The question falling for determination in this appeal is
                                                                     H
    568           SUPREME COURT REPORTS               [2014) 6 S.C.R.


A 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
B employee. In the judgment under appeal, the relevant clauses,
  i.e., clauses 1, 2, 3 and 4 have been extracted in paragraph
  1O(iii) and those clauses are reproduced hereinbelow for the
  sake of clarity and convenience :

          "Clause (01) : Format of resignation: Resignation is an
c         intimation in writing sent to the competent authority by the
          incumbent of a post, of his intention or proposal to resign
          the office/post either immediately or from a future specified
          date. A resignation has to be clear and unconditional.

D         Clause (02): Circumstances under which resignation
          should be accepted.

          It is not in the interest of Government to retain an unwilling
          Government servant in service. The general rule, therefore,
          is that a resignation of a Government servant from service
E
          should be accepted, except in the circumstances indicated
          below:-

           (i)     Where the Government servant concerned is ·
                   engaged on work of importance and it would take .
F                  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.

G          (ii)    xxxx xxxx xxxx xxxx xxxx

        Clause (03): A resignation becomes effective when it is
        accepted and the Government servant is relieved of his
      · duties. If a Government servant who had submitted a
        resignation, sends an intimation in writing to the appointing
H
UNION OF INDIA & ORS. v. HITENDER KUMAR SONI 569
            [SHIVA KIRT! SINGH, J.]

    authority withdrawing his earlier letter of resignation before   A
    its acceptance by the appointing authority, the resignation
    will be deemed to have been automatically withdrawn and
    there is no question of accepting the resignation. In case,
    however, the resignation had been accepted by the
    appointing authority and the Government servant is to be         B
    relieved from a future date, if any request for withdrawing
    the resignation is made by the Government servant before
    he is actually relieved of his duties, the normal principle
    should be to allow the request of the Government servant
    to withdraw the resignation. If, however, the request for        c
    withdrawal is to be refused, the grounds for the rejection
    of the request should be duly recorded by the appointing
    authority and suitably intimated to the Government servant
    concerned.

    Rules governing temporary Government servants in
                                                                     D
    reference to Rule 5(1) of the CCS (TS) Rules, 1965..

    Clause .(4): Since a temporary Government servant can
    sever his connection from Govt. service by giving a notice
    of termination of service under Rule 5(1) of the Central Civil   E
    Services (TS) Rules, 1965, the instructions contained in
    this Office Memorandum relating to acceptance of
    resignation will not be applicable in cases where a notice
    of termination of service has been given by a temporary
    Govt. servant. If, however, temporary Govt. servant submits      F
    a letter of resignation in which he does not even mention
    that it may be treated as a notice of termination of service,
    he can relinquish the charge of the post held by him only
    after the resignation is duly accepted by the appointing
    authority and he is relieved of his duties and not after the     G
    expiry of the notice period laid down in the Temporary
    Service Rules."

    4. Now, the relevant facts. After being selected and
recommended by the Staff Selection Committee for
                                                                     I-'
    570      SUPREME COURT REPORTS                 [2014] 6 S.C.R.


A   appointment as "Investigator'' (Group 'C' non-gazetted post), the
    Respondent joined the said post in the Office of the Assistant
    Director, National Samples Survey Organisation, Shimla, Field
    Operation Division on 24.6.1996. His service was still
    temporary and under probation. He did not report for duty on
B   06.10.1997 and on the next day a letter of resignation dated
    07 .10.1997 sent by the Respondent 'Was received in the
    concerned office through post. The reason for resignation
    mentioned in the letter was unavoidable family circumstances
    and ill health of the Respondent. For some administrative
c   reasons, the resignation of the Respondent could not be
    accepted immediately although he disobeyed directions
    through various letters to resume his duties and never reported
    for work although no leave was sanctioned. Through a letter
    dated 31.10.1997 Respondent was informed that his
D   resignation cannot be accepted for some administrative
    reasons. The details of relevant correspondences, preceding ,
    and succeeding the letter dated.31.10.1997, have been noted
    by the High Court in paragraphs 4 and 5 of the judgment. By a
    letter dated 24.10.1997, Respondent was informed that
E   tendering of resignation was not sufficient to absolve him of his
    official duties unless it was accepted by the Competent
    Authority. He was asked to submit some other official
    documents such as Instructions Set, Identity Card, Tour Diary,
    Kit items and some relevant official papers. He was also asked
    to offer clarification regarding a sample survey and was warned
F   that on failure disciplinary action might be initiated against him.
    In reply, the Respondent through a letter dated 10.11.1997,
    informed that he had returned Instructions Set, Tour Diary,
    Random Table and NIC book. He also requested that the cost
    of.kit items may be adjusted from his pending dues. He again
G   made a request that his resignation which he had already
    submitted may be accepted. Letters were issued to the
    Respondent in February and April 1998 regarding his
    obligation to join duties and his failure to submit leave
    application. However, ultimately the Competent Authority, as
H
UNION OF INDIA & ORS. v. HITENDER KUMAR SONI 571 •.
            [SHIVA KIRTI SINGH, J.]

noted earlier, by letter dated 16.6.1998 accepted the               A
resignation of the Respondent. On 5.8.1998 the Respondent
sent a letter to the effect that the circumstances under which
he had submitted his resignation had now changed and hence
his resignation letter may be treated as cancelled. The
concerned officials got the Identity Car.d of the Respondent        8
collected on 25.8.1998 for fear of its misuse.

      5. Since the Appellants did not accede to the request of
the Respondent, he preferred Original Application No.798/HP/
1998 before the Central Administrative Tribunal, Chandigarh
Bench, Circuit Bench at Shimla, seeking quashing of the order       C
accepting his resignation and for a direction to treat him in
service and grant of consequential reliefs. The Tribunal rejected
the prayers made in the O.A. by order dated 15.5.2000 but gave
liberty to the Respondent to apply for fresh appointment to the
post of "Investigator". The Appellants were directed to consider    D
such an application sympathetically and offer him employment
in case he was found eligible. Accordingly, Respondent made
an application dated 26.6.2000 to consider for his fresh
appointment sympathetically. That representation/application
was rejected on 27.11.2000 pointing out that the Respondent         E
was already over-age at the time of order by the Tribunal.
Thereafter, Respondent preferred Civil Writ Petition No.41 of
2001 which has been allowed by the order under appeal.

      6. The High Court, in a rather lengthy judgment, has
                                                                    F
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. For     G
this, reference may be made to a judgment of a Constitution
Bench in the case of Union of India & Ors. v. Gopa/ Chandra
Misra & Ors. (1978) 2 sec 301; and that notice of voluntary
retirement or resignation can be withdrawn at any time before
it becomes effective.
                                                                    H
    572       SUPREME COURT REPORTS                  [2014] 6 S.C.R.


A       7. A plea was taken by the Respondent before the High
  Court that the decision accepting his resignation was not
  received by him. The High Court, in paragraph 27 of the
  judgment, took the view that such a plea would not have any
  effect upon the order of acceptance of resignation. This view
B is in accordance with judgment of this Court in the case of Raj
  Kumar v. Union of India AIR 1969 SC 180. In that case, the
  concerned employee had withdrawn his resignation before the
  order accepting his resignation had reached him. This Court,
  in paragraph 5 of the Report, made a distinction between an
C order of dismissal on one hand and termination of employment
  on the other which is invited by a public servant through an offer
  of resignation. In the latter eventuality, the employee's "services
  normally stand terminated from the date on which the letter of
  resignation is accepted by the appropriate authority and in the
D absence of any law or rule governing the conditions of his
  service to the contrary, it will not be open to the public servant
  to withdraw his resignation after it is accepted by the
  appropriate authority .... ".

       8'. We have heard learned counsel for the Appellants and
E learned counsel for the Respondent and we find, on a perusal
  of the order under appeal, that the only ground, on which the
  High Court has allowed the writ petition and granted relief to
  the Respondent, is its opinion that in view of requirement of
  clause (4) of O.M. dated 11.2.1988 it was incumbent upon the
F Appellants to bring some materials on record to show that the
  Respondent was relieved from the duties of his office following
  the acceptance of resignation on 16.6.1998. For the reasons
  indicated hereinbelow, we are unable to agree with the
  aforesaid view of the High Court.
G
         9. A perusal of the relevant claus-es of the O.M. dated
   11 .2 .1988 discloses that resignation is required to be intimated
 " in writing disclosing the intention to resign the office/post either
   immediately or from a future date. In the latter case, such future
H date should be specified. The resignation has to be clear and
UNION OF INDIA & ORS. v. HITENDER KUMAR SONI 573
            [SHIVA KIRTI SINGH, J.]

unconditional. The Respondent did not specify any future date       A
but submitted his resignation in writing giving reasons and his
intention to resign is clear and unconditional. Clause (2)
contains circumstances under which resignation should be
accepted. This is for the guidance of the concerned officials
and does not create any right in the concerned employee to          B
resist acceptance of resignation. Clause (3) specifies that a
resignation becomes effective when it is accepted and the
Government servant is relieved of his duties. A careful reading
of this clause throws some light as to why the requirement of
relieving a Government servant has been indicated in this           c
Office Memorandum. The second sentence of this clause states
the normal rule that a Government servant can withdraw his letter
of resignation before its acceptance by the appointing authority.
The next following sentence spells out that in case the
resignation had been accepted by the appointing authority and       D
the employee is to be relieved from a future date, if a request
for withdrawal of resignation is received from the employee, the
normal rule should be to allow the request to withdraw the
resignation. But, even in such a case, the request for
withdrawal may be refused but the grounds for the rejection         E
should be recorded and intimated to the Government servant
concerned. In continuity, clause (4) considers the case of a
temporary Government servant who has a right to opt out of
Government service by giving a notice of termination of service
as per applicable service rules of 1965. In such a case the
                                                                    F
Office Memorandum in question relating to acceptance of
resignation will not be applicable. The subsequent provision of
clause (4) has been held applicable to the Respondent because
instead of notice of termination he had tendered a letter of
resignation. In such a case as per clause (4), " .... he can
relinquish the charge of a post only after resignation is duly      G
accepted by the appointing authority and he is relieved of his
duties and not after the expiry of the notice period laid down in
the Temporary Service Rules".

     10. In our considered view, the part of clause (4) extracted   H
    574       SUPREME COURT REPORTS                 [2014] 6 S.C.R.


A   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
B   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
c   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
o   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
E   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
F   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
G   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 relafionship of master and servant shall
    continue till the concerned Government servant is relieved of
H
UNION OF INDIA & ORS. v. HITENDER KUMAR SONI 575
            [SHIVA KIRTI SINGH, J.]
his duties. In the instant case, the letter of acceptance clearly         A
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                 B
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              c
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.

   .. 11. There may be cases where an employee resigning
from service has gone in hiding or is in jail custody etc. The            D
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.

      12. The word, "relieving" itself must be understood in the          E
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       F
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               G
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
                                                                          H
    576       SUPREME COURT REPORTS                [2014] 6 S.C.R.


A   Respondent in escaping away from his duties without obtaining
    leave when he was only a temporary employee under probation.

         13. For the aforesaid reasons, we find no option but to set
    aside the order and judgment of the High Court under appeal.
    We order accordingly. The appeal is allowed and as a result,
8
    the writ petition of the Respondent shall stand dismissed. In the
    facts of the case we pass no order as to costs.
    Rajendra Prasad.                                   Appeal allowed.