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C.A.No.10645/10

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10645 OF 2010

Union of India & Ors. …..Appellants

Versus

Hitender Kumar Soni …..Respondent

J U D G M E N T

SHIVA KIRTI SINGH, J.

1. As  Appellants  the  Union  of  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.  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 opportunity to the Respondent, of hearing  

as well as leading evidence.

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2. Before adverting to the facts it is relevant to notice at the outset that the  

High Court, inspite of resignation of the Respondent dated 07.10.1997 having  

been accepted by the Competent Authority by order dated 16.6.1998 held that  

the resignation could not have come into effect because as per clause (4) of  

Office  Memorandum  dated  11.2.1988  issued  by  the  Government  of  India,  

Ministry of Personnel, Public Grievances and Pensions, the Respondent was  

also required to be relieved of his duties which was not done by the Appellants.

3. 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  the  judgment  under  

appeal, the relevant clauses, i.e., clauses 1, 2, 3 and 4 have been extracted in  

paragraph 10(iii) and those clauses are reproduced hereinbelow for the sake of  

clarity and convenience :

“Clause (01) : Format of resignation: Resignation is an 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.

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 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  time  to  make  

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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.

(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 authority withdrawing his  earlier  letter  of  resignation  before  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  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  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 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  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 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 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 appointment as “Investigator” (Group ‘C’ non-

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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 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 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 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  

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  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  

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of kit items may be adjusted from his pending dues.  He again 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 noted earlier, by letter dated 16.6.1998  

accepted the 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 Card of the Respondent  

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 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 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 was already over-age at the time of order by  

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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 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  this,  

reference may be made to a judgment of a Constitution Bench in the case of  

Union of India & Ors. v. Gopal Chandra Misra & Ors. (1978) 2 SCC 301;  

and that notice of voluntary retirement or resignation can be withdrawn at any  

time before it becomes effective.

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  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 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  

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in the 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 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 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.

9. A perusal of the relevant clauses 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 date should be 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.   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 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  

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reading of this clause throws some light as to why the requirement of relieving  

a Government servant has been indicated in this 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  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  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 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 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 above makes a  

distinction between the right of a temporary Government servant to sever his  

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connection from Government service by giving a notice of termination and that  

of a temporary Government servant who chooses not to give such notice but  

opts to submit a letter of resignation.  In the case of notice of termination the  

concerned employee can relinquish the  charge of  the post  on expiry of the  

period of notice, but, such right will not be available to a temporary employee  

in  case  he  tenders  a  simple  resignation.   The  reason  is  obvious  because  a  

resignation requires acceptance by the appointing authority and till  then his  

right to relinquish is impinged by the requirement, to be relieved of his duties.  

On a joint reading of clauses (3) and (4) it can be safely inferred that depending  

upon the facts and circumstances of a case and nature of request made in a  

resignation letter, the Government has the power to accept the resignation so as  

to bring about a severance of relationship of master and servant with immediate  

effect. But in cases where the letter of resignation itself specifies a future date  

for  being  relieved  or  where,  as  indicated  in  clause  (2)  the  concerned  

Government servant is  engaged on work of  importance etc.,  the resignation  

may  not  be  accepted  straightaway.   It  is  in  such  circumstances  only  that  

Government may exercise its power to accept the offer but defer the date from  

which resignation would become effective.  The normal rule, however, remains  

that Government has the power to accept a resignation with immediate effect.  

In case the Government for some reasons wishes to defer or specify the date  

from which resignation would become effective, it is entitled to take work from  

the concerned Government servant till he is relieved in accordance with the  

facts and requirements of the case.   The letter of Government accepting an  

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offer of resignation itself should normally be conclusive for deciding whether  

the Government has opted for immediate termination of service by accepting  

the resignation or has deferred such termination to a future date. Only in the  

latter eventuality the relationship of master and servant shall continue till the  

concerned Government servant is relieved of his duties.  In the instant case, the  

letter of acceptance clearly shows that termination of Respondent’s service as  

per his offer of resignation was not deferred to any future date and hence there  

was no requirement to relieve him of his duties.  Even the peculiar facts of this  

case show that the Respondent while on probation had already abandoned his  

temporary service for almost 8 months and had not cared to report for duty  

inspite  of  several  requests.   In  such  a  situation,  it  would  be  impossible  to  

relieve an absconding employee of his duties and if the reasoning of the High  

Court is accepted such employee, even if he has tendered resignation, must be  

continued in service till he is actually found or till he presents himself to be  

relieved of his duties.  Such a view would be impractical and run against larger  

public interest.

11. There may be cases where an employee resigning from service has gone  

in hiding or is in jail custody etc.  The construction placed upon the relevant  

clauses  of  the  O.M.  dated  11.2.1988  by  the  High  Court  will  render  the  

provisions unworkable, hence such construction needs to be avoided.

12. 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  

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the Law Lexicon (2nd Edn. 1997 by P. Ramanatha Aiyar) is – “to free or clear a  

person  from  an  obligation”.   This  result  manifests  itself  from  the  order  

accepting  the  resignation  because  no  reservation  has  been  made  by  the  

Government that the Respondent has to continue in service till any particular  

time or till being relieved.  Hence, in the instant case, there was no obligation  

on  the  Government  to  write  a  formal  letter  that  the  Respondent  has  been  

relieved.  Even if such requirement had been there, in the case in hand it would  

be an empty formality. The wholesome writ jurisdiction was not required to be  

exercised in the facts of the present case keeping in view the conduct of the  

Respondent in escaping away from his duties without obtaining leave when he  

was only a temporary employee under probation.

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, the writ petition of the Respondent shall stand  

dismissed.  In the facts of the case we pass no order as to costs.

…………………………….J. [VIKRAMAJIT SEN]

……………………………..J. [SHIVA KIRTI SINGH]

New Delhi. July 21, 2014.

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