2024 INSC 127 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1480 OF 2012

Dr. Mrs. Suman V. Jain …..Appellant

Versus

Marwadi Sammelan through its …..Respondents

Secretary and Others.

J U D G M E N T

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 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”

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(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 C OLLEGE 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

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be withdrawn before the expiry of the intended date.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 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

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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 BENC H 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

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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 (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 Limite d 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

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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

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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 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, f rom 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

8

against the appellant according to learned counsel warrants no

interference. In support of the contentions, reliance has been

placed on “BSES Yamuna Power L imited 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.

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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?

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

10

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

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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

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.”

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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 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

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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. ”

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

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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 containi ng 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

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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 –

“ 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

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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

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 24

th

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.

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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 an y 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 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

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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.

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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, 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

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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

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subsequent letter dated 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

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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 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

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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 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

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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

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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 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

26

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

27

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 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

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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

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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. 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

30

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.

…………….…………J.

(J.K. MAHESHWARI)

………………………..J.

(K.V. VISWANATHAN )

New Delhi,

20.02.2024