K. P. Xavier v. Kerala State Co-operative Marketing Federation Ltd

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933** **WP(C).No. 1441 of 2007(V)** **------------------------------------** ## **PETITIONER(S):** **---------------------** **K.P. XAVIER, AGED 56 YEARS, S/O.PAPPU, ASSISTANT ACCOUNTS OFFICER, KERALA STATE CO-OPERATIVE MARKETING FEDERATION LTD GANDHI NAGAR, KOCHI-20, RESIDING AT KALLOOKARAN HOUSE, 1/921/A, PADAMUGHAL, KAKKANAD, KOCHI-30.** **BY ADV. SRI. AUGUSTINE JOSEPH** ## **RESPONDENT(S):** **------------------------** **1. THE MANAGING DIRECTOR, KERALA STATE CO-OPERATIVE MARKETING FEDERATION LTD P.B.NO.2024, GANDHI NAGAR, KOCHI-20.** **2. THE CHAIRMAN, KERALA STATE CO-OPERATIVE MARKETING FEDERATION LTD P.B.NO.2024, GANDHI NAGAR, KOCHI-20.** **3. THE SECRETARY TO THE GOVERNMENT, CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **RI & R2 BY ADV. SMT.MILLU DANDAPANI SC FOR MARKETFED R3 BY GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2011. THE COURT ON 20/12/2011 DELIVERED THE FOLLOWING:** **SD** ## **WPC NO. 1441/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** - **P1 COPY OF THE LETTER DATED 6.7.1999 RECEIVED BY THE PETITIONER** - **P2 COPY OF LETTER DATED 12.7.1999 SUBMITTED BY THE PETITIONER BEFORE R1** - **P3 COPY OF THE REPRESENTATION DATED 29.11.2011 SUBMITTED BY THE PETITIONER** - **P4 COPY OF THE JUDGMENT DATED 12.07.2006 IN O P NO. 8716 OF 2002** - **P5 COPY OF THE COMMUNICATION DATED 28.12.2006 RECEIVED BY THE PETITIONER FROM R1** - **P6 COPY OF THE APPOINTMENT ORDER DATED 22.11.2001 RECEIVED BY THE PETITIONER FROM AN ABU DHABI COMPANY** ## **RESPONDENT'S EXHIBITS** ## **R1 (a) COPY OF TE CHARGE MEMO DATED 18.09.1999 ISSUED BY THIS RESPONDENT TO PETITIONER** **R1(b) COPY OF REPLY DATED 03.10.1999 SUBMITTED BY PETITIONER TO THIS RESPONDENT** **R1(c) COPY OF LETTER DATED 03.11.1999 ISSUED BY THIS RESPONDENT TO PETITIONER** **R1(d) COPY OF RESOLUTION NO. 19(5) DATED 10.07.2003 OF THE 1ST RESPONDENT, REFERRED TO IN THE ADDITIONAL COUNTER AFFIDAVIT** ## **// TRUE COPY //** **P.A. TO JUDGE** **SD** **K. SURENDRA MOHAN, J. -----------------------------------------------------------W.P(C) NO: 1441 OF 2007** **----------------------------------------------------------Dated this the 20[th] December, 2011.** ## **JUDGMENT** The petitioner has filed this writ petition seeking the following reliefs:- “a) To call for the records leading upto Ext.P5 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction. b) To declare that the petitioner is still continuing as an employee of the Marketfed and entitled to wages, emoluments etc. as there is no proper termination of service in accordance with law. c) To declare that the fundamental rights of the petitioner guaranteed to him under Articles 14, 16 and 21 of the Constitution of India have been violated by the action of the respondents. d) To issue a writ of mandamus commanding the respondents to continue the petitioner in service and pay him all the attendant benefits as if he was continuing in service. e) To issue such other writs, orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case.” WPC 1441/2007 2 2. According to the petitioner, he was working as the Assistant Accounts Officer in the Kochi Branch of the Kerala State Co-operative Marketting Federation Limited, commonly referred to as the 'Marketfed'. The petitioner had taken leave on a number of occasions and had worked abroad. On the expiry of his leave, he used to come back and join service. While so, he came back from abroad and joined back in service on 30-4-1998. He joined duty at the Head Office, Kadavanthra and was thereafter transferred and posted to the Kochi branch on 15-9-1998. While so, on 6-7-1999, he was transferred and posted to Kasaragode, as the Assistant Accounts Officer of Marketfed, as per Ext.P1. The petitioner was seriously aggrieved by his transfer to Kasaragode. Therefore, he submitted his letter of resignation to the first respondent. The said letter of resignation dated 12-7-1999 is Ext.P2 in the writ petition. Thus, he did not comply with the order of transfer and stopped attending work. Though the petitioner had submitted Ext.P2 letter of resignation on 12-7-1999, his resignation was neither accepted nor rejected. Therefore, the petitioner submitted a representation dated 29-11-2001 to the first respondent explaining the circumstances under which he had resigned from service, offering to withdraw his resignation and seeking a posting either at the WPC 1441/2007 3 headquarters of the Marketfed or at any of its branches in the districts of Thrissur, Ernakulam or Kottayam. He also requested for the grant of the financial benefits due to him if his resignation had been accepted. The said representation is Ext.P3. 3. It is the case of the petitioner that since his resignation was neither accepted nor rejected he was within his rights to withdraw his resignation. Therefore, he waited for some response from the first respondent. When the first respondent failed to respond, the petitioner approached this Court by filing O.P.8716/2002 seeking permission to withdraw his resignation and other ancillary reliefs. The said writ petition was disposed of by Ext.P4 judgment directing the respondents to consider the request of the petitioner. Pursuant to the direction in Ext.P4, the petitioner was issued with Ext.P5 communication of the first respondent. In Ext.P5, the first respondent has informed the petitioner that the petitioner's resignation had been accepted with effect from 7-7-1999. Regarding his claim for terminal benefits, the stand taken in Ext.P5 is that since the petitioner does not have continuous service of five years, he was not entitled to any amount as gratuity. The other benefits due to him have been calculated WPC 1441/2007 4 and disbursed through cheque. Being aggrieved by Ext.P5, the petitioner has challenged the same in this writ petition. 4. According to the petitioner, since his resignation had not been accepted and since no such acceptance was communicated to him, the resignation had not taken effect. Therefore, the petitioner has to be treated as continuing in service. He should be held entitled to continue in service and also entitled to be given a posting by the respondents. Since the petitioner has been illegally kept out of employment by the respondents, he is entitled to be compensated for the loss caused. 5. A counter affidavit has been filed on behalf of respondents 1 and 2. According to the respondents, since the petitioner has resigned from service and his representation has been properly considered in compliance with the directions of this Court, the petitioner is not entitled to any further relief in this matter. The case of the respondents is that the writ petition itself is not maintainable in law or fact. The petitioner had resigned from service and his resignation was also accepted. Thereafter he had filed a representation seeking revocation of the same on 29-42001 as per Ext.P3. It is stated in paragraph 5 of the counter affidavit that the request of the petitioner in Ext.P3 was, either to WPC 1441/2007 5 permit him to withdraw his resignation if the same had not been accepted or if the resignation had been accepted, to disburse the financial benefits due to him. Accordingly, since his resignation had been accepted, the financial benefits due to him was ordered to be disbursed to him. According to the respondents, the impugned order Ext.P5 was perfectly valid and legal. 6. It is the further contention of the counsel for the respondents that the petitioner had been permitted to proceed on leave to work abroad and he had been so working until he joined back on 30-4-1998. While so working, though he was transferred to Kasaragode on 6-7-1999, he did not obey the said order and did not join duty at Kasaragode. Thereafter, on 12-7-1999 he submitted his resignation. According to the respondents the resignation could not be accepted immediately for the reason that disciplinary proceedings were contemplated against the petitioner. Accordingly Ext.R1(a) charge memo was issued to him and disciplinary action was initiated. The petitioner submitted his explanation to Ext.R1(a) on 3-11-1999, which is Ext.R1(b). Since the explanation was not satisfactory, as per Ext.R1(c) proceedings, the petitioner was informed that his explanation was not acceptable and that he would hear further in the matter. Subsequently, on the basis of legal WPC 1441/2007 6 opinion obtained in the matter, the resignation of the petitioner was accepted with effect from 7-7-1999 as per resolution No:1 by the Board Meeting dated 4-7-2003. 7. The petitioner has filed a reply affidavit in answer to the contentions of the respondents in the counter affidavit. According to the petitioner though the petitioner had submitted his resignation on 12-7-1999, there was no action thereon for the period from 3-11-1999 to 28-12-2006. In spite of the petitioner's requests for some action thereon throughout the said period, the respondents were keeping his resignation pending and pursuing disciplinary action against him. Finally, the petitioner filed O.P.8716/2002 for necessary reliefs, which was disposed of by Ext.P4 judgment. It was only thereafter that Ext.P5 was issued. It is the case of the petitioner that since his prayer in the said writ petition was to permit him to withdraw his resignation and to give him a suitable posting, the direction of this Court in Ext.P4 to look into the matter and to pass appropriate orders thereon in accordance with law was nothing but a direction to give him a posting. The gap of seven years that preceded Ext.P5 is remaining unexplained. Therefore, it is submitted that the petitioner is entitled to a direction that he had continued in service up to WPC 1441/2007 7 25-4-2008, the date of his superannuation. Consequently, he is also entitled to his salary and other benefits for the said period. 8. The petitioner has set up a further case, in an Interlocutory Application, I.A.6005/2009 filed by him that he had obtained an appointment order from a company in Abu Dhabi. However, he could not accept the same for the reason that he was not in a position to produce a relieving order, as stipulated by Ext.P6. For the above reason, the petitioner also contends that he is entitled to be compensated for the said loss. 9. An additional counter affidavit has been filed on behalf of the respondents producing Ext.R1(d) resolution accepting the resignation of the petitioner adopted at the Board Meeting of the first respondent on 4-7-2003. According to the respondents the petitioner is a person who was being proceeded against departmentally, a person who had refused to obey the order of transfer issued to him. He had absented from duty unauthorisedly. He had only submitted his resignation to escape from the unpleasant consequences. Therefore, it is contended that petitioner is not entitled to any of the reliefs claimed in the writ petition. 10. I have heard Shri. Augustine Joseph who appears for the WPC 1441/2007 8 petitioner as well as Shri. Millu Dandapani who appears for the respondents, at length. I have also considered the rival contentions of the parties anxiously. 11. It is not in dispute that the petitioner had been on leave, working abroad until he joined back in service on 30-4-1998. He joined back in service at the Head Office of the first respondent and was transferred to the Kochi branch on 15-9-2008. It appears that there were some unsavoury incidents in the office, involving the petitioner, one Shri. Manuel Stanley Jones, Deputy Finance Manager and one Shri. K.K.Radhakrishnan, Branch Manager, Kochi. Ext.R1(b) explanation of the petitioner to Ext.R1(a) charge memo refers to two written complaints made by him, dated 23-6-1999 and 2-7-1999 to the Manager (Administration), with regard to the said incidents. The transfer of the petitioner on 6-7-1999 from Kochi to Kasaragode is actually, in the wake of the said incidents. The acute displeasure of the petitioner at the turn of events that led to his transfer is expressed in unmistakable terms in Ext.R1(b) explanation. In the light of the totality of the circumstances obtaining at that time, the petitioner decided to resign from service and accordingly submitted his resignation, Ext.P2. On the expectation that the same would be accepted, he did not obey the WPC 1441/2007 9 order of transfer Ext.P1. The case of the petitioner is that though he had submitted Ext.P2 letter of resignation, the same was not accepted by the respondents. Therefore, the petitioner submitted Ext.P3 representation seeking permission to withdraw his resignation, if the same was not accepted. He also sought for disbursement of his monetary benefits if his resignation had been accepted. 12. Though in the meantime a charge memo had been issued to the petitioner on 18-9-1999 Ext.R1(a) and he had replied to the memo as per Ext.R1(b), which was followed up with Ext.R1(c), the petitioner has not mentioned any of the above facts in his writ petition. His case in the writ petition is that though he had resigned on 12-7-1999 no action was taken thereon till 29-11-2001 and therefore, he had approached this Court by filing O.P.8716/2002. In the fitness of things, it was certainly incumbent upon the petitioner to have stated the above facts also in the writ petition rather than conceal the same as he has done. 13. The further case of the petitioner in his writ petition is that he had withdrawn his resignation before the same was accepted by the respondents. The above contention cannot be countenanced in view of the facts pleaded by the petitioner himself. WPC 1441/2007 10 According to the counsel for the petitioner, the petitioner has withdrawn his resignation by submitting Ext.P3. However, what he has sought for in Ext.P3 is totally different. The relevant portion of Ext.P3 reads as follows:- “ **I would therefore like to request your goodself that in case my resignation is not accepted, I may be allowed to withdraw the same and I may be posted either at the Head Quarters of the Market Fed** or at any branches of the Market Fed in the Districts of Thrissur, Ernakulam or Kottayam. **If, on the other hand your goodself has decided to accept my resignation necessary orders may be passed sanctioning the financial benefits due to me** from the Market Fed without any further delay. I pray that your goodself will be pleased to consider this representation as expeditiously as possible and pass necessary order thereon.” (emphasis supplied) It is clear from the above that what the petitioner has sought for is permission to withdraw his resignation. Therefore, he has not withdrawn his resignation by submitting Ext.P3. The above is clear from his prayers in O.P.8716/2002 also which are extracted in Ext.P4 judgment. The second prayer in the said writ petition was for the issue of a mandamus or other appropriate order or direction “directing the respondents to permit the petitioner to withdraw his WPC 1441/2007 11 resignation and to post him in a suitable post as Assistant Accounts Officer” as requested in his representation. Therefore, it is clear that the petitioner had not withdrawn his resignation even in the year 2006, but, was only seeking permission to withdraw the same, if the same had not been accepted. It is in the above circumstances that Ext.P5 dated 28-12-2006 has been issued wherein the petitioner has been informed by the Managing Director of the first respondent that his resignation had been accepted with effect from 7-7-1999. It is to be noted that Ext.P5 has been passed pursuant to the direction of this Court in Ext.P4 judgment to pass orders on his representation, Ext.P11. Ext.P11 referred to in Ext.P4 judgment is the same as Ext.P3 in this writ petition. It is clear from the above that the case of the petitioner that he had withdrawn his resignation before it was accepted by the respondents is absolutely baseless, and untenable. On the contrary, the materials on record show otherwise. 14. It is true that, the respondents have no explanation for the delay in accepting the petitioner's resignation. The delay is considerable, for the reason that though the petitioner's resignation is dated 12-7-1999, the same was accepted only at the Board meeting held on 4-7-2003. However, since the petitioner had WPC 1441/2007 12 not withdrawn his resignation before the same was accepted, the delay can at best confer on the petitioner, only a right to claim interest on the amounts due to him. 15. The entire edifice of the petitioner's case is built upon the contention that he had withdrawn his resignation before the same was accepted by the first respondent. Having found that the said contention is factually incorrect, the other contentions of the petitioner fade into insignificance. The petitioner has sought for the issue of a direction that he be continued in service and be paid his salary and other benefits, including retirement benefits. The counsel for the petitioner has also placed reliance on the decisions of the Apex Court in **Shambhu Murari Sinha v. Project & Development India {(2000)5 SCC 621}, Union of India v. Wing Commander T.Parthasarathy {(2001) 1 SCC 158}, Srikantha S.M. v. Bharath Earth Movers Ltd. {(2005)8 SCC 314}, Chand Mal Chayal v. State of Rajasthan {(2006)10 SCC 258} and Secretary, Technical Education, U.P. v. Lalit Mohan Upadhyay {(2007)4 SCC 492}** as well as the decisions of this Court reported in **Mani v. State Bank of Travancore (1999(3) KLT 958)** to contend that he was entitled to claim salary up to the date on which he retired from service on attaining superannuation since he had withdrawn his WPC 1441/2007 13 resignation. However, as I have already found that the petitioner had not withdrawn his resignation at any point of time, the above decisions that deal with the point of time at which a resignation takes effect, have no application. For the above reason, I refrain from considering the said decisions cited before me. 16. The further contention of the counsel for the petitioner is that the petitioner is entitled to his retirement benefits including gratuity. However, according to the respondents since the petitioner did not have continuous service for a period of five years, he was not entitled to be paid any gratuity as claimed. The above contention of the respondents is disputed by the petitioner. However, no materials or details regarding the service put in by the petitioner are available before me to support the petitioner's case. Therefore, the said contention also has to fail. For the aforesaid reasons the petitioner is not entitled to any of the reliefs claimed in the writ petition. The writ petition fails and is accordingly dismissed. No costs. Sd/- K. SURENDRA MOHAN Judge jj ## P.S.to Judge WPC 1441/2007 14