R. Rajeev v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY ,THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941** ## **WP(C).No. 39349 of 2018** ## **PETITIONER/S:** **R.RAJEEV AGED 48 YEARS S/O. RAVIDASAN N, ASSISTANT MANAGER, THE KERALA STATE CASHEW DEVELOPMENT CORPORATION LTD, CASHEW HOUSE, POST BOX NO. 13, MUNDAKKAL, KOLLAM-691 001, RESIDING AT SIVAGANGA MYTHRI NAGAR 3.A, THATTAMALA P.O, KOLLAM.** **BY ADVS. SMT.SREEDEVI KYLASANATH SRI.ACHUTH KYLAS SRI.KDEAGO JOHN K SRI.R.MAHESH MENON** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 THE KERALA STATE CASHEW DEVELOPMENT CORPORATION LTD. REPRESENTED BY SECRETARY, CASHEW HOUSE, POST BOX NO. 13, MUNDAKKAL, KOLLAM-691 001 3 THE MANAGING DIRECTOR KERALA STATE CASHEW DEVELOPMENT CORPORATION LTD, CASHEW HOUSE, POST BOX NO. 13, MUNDAKKAL, KOLLAM-691 001** **BY ADV. SRI.VIPIN P.VARGHESE, SC, KERALA STATE CASHEW DEVELOPMENT CORPORATION LTD.** ## **OTHER PRESENT:** ## **RON BASTIAN GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 39349 of 2018 2** ## **JUDGMENT** ## This writ petition is filed with the following prayers:- _(I) To issue a writ of Certiorari or any other appropriate writ, order or direction calling for records relating to Exhibits P-3, P-3(a) and P-8 and quash the same to that extent it re-appoint petitioner as junior most Assistant Manager and deduction of pay scale and benefits._ _(ii) To issue a writ of Certiorari or any other appropriate writ, order or direction calling for records relating to Exhibit P-5 and quash the same to that extent it lower petitioner's seniority as junior most in the cadre of Assistant Manager._ _(iii) To issue a writ of Mandamus or any other appropriate writ, order or direction, directing respondents to treat petitioner in continuous service as Assistant Manager (Liaison) and give him all benefits including seniority and arrears of salary with interest._ _(iv) To declare that re-appointment of petitioner as junior most in the post of Assistant Manager instead of allowing to continue in the post of Assistant Manager after withdrawal of resignation is illegal and void._ _(v) To issue a writ of Mandamus or any other appropriate wit, order or direction, directing the respondents to treat the break in service as absence on leave without pay._ ## 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. 3. The petitioner, who had been working as Assistant Manager (Liaison) under the 2[nd] respondent had submitted Ext.P2 dated 3.8.2017 letter of resignation from service allegedly on account of mental harassment. It is submitted that before the resignation letter was acted upon, the petitioner submitted Ext.P2(a) dated 7.8.2017 request withdrawing his resignation. ## **WP(C).No. 39349 of 2018 3** 4. The learned counsel for the petitioner would contend, relying on the provisions of Rule 10 of Ext.P10 Staff Rules applicable to the respondents, that an employee would be entitled to leave or discontinue service in the Corporation only on giving one month notice in writing to the Managing Director. It is also contended that the petitioner had liabilities towards the Corporation and no steps could have been taken to accept his resignation before making necessary orders as regards the settlement of the dues of the petitioner. It is contended by the learned counsel for the petitioner that Ext.P2 resignation as well as Ext.P2(a) withdrawal had been placed before the Board only on 17.8.2017. The Board considered both the applications together and passed Ext.P3 order by which the resignation was accepted and the petitioner had been re-employed as Assistant Manager (Liaison) as the junior most hand under the Corporation. It is contended that the petitioner joined service and was permitted to do so. Thereafter, by Ext.P7, the petitioner had approached the Chairman stating that there is huge financial loss to the petitioner on account of his re-engagement being treated as re-appointment and seeking service benefits and salary as drawn earlier in view of the fact that the petitioner had submitted the letter of withdrawal of his resignation before his resignation had been accepted. It is stated that even thereafter, no steps have been taken to consider the grievances of the ## **WP(C).No. 39349 of 2018 4** petitioner, which has led to the filing of this writ petition. 5. The learned counsel for the petitioner relied on the decisions of the Apex Court in _**Rajkumar v. Union of India [AIR 1969 SC 180], Union of India and others v. Gopal Chandra Misra and others [AIR 1978 SC 694] and Balram Gupta v. Union of India and another [1987 Suppl. SCC 228]**_ as well as the recent decision of this Court in W.P.(C) No.7798/2016 to contend that where the resignation had not been accepted by the appropriate authority before it was withdrawn, there is no resignation in the eye of law. It is therefore contended that the act of the respondents in having re-appointed the petitioner as the junior most hand and treating him as a fresh entrant is completely without justification. 6. A counter affidavit has been placed on record by the 2[nd] respondent. It is contended therein that the 2[nd] respondent Board in its meeting held on 17.8.2017 had considered the issue relating to the resignation of the petitioner and the subsequent withdrawal of his resignation. It is said that the Board had approved the act of the 3[rd] respondent and accordingly Ext.P3 re-appointment order was issued to the petitioner. A copy of the minutes of the Board meeting is also produced. It is contended that the Board had decided to reinstate the petitioner as the junior most Assistant Manager, and since the petitioner had accepted the fresh appointment order, he cannot ## **WP(C).No. 39349 of 2018 5** challenge the proceedings by which he was re-appointed. It is stated that the Board meeting held on 28.06.2018 had decided not to consider the petitioner's appeals dated 15.9.2017 and 7.12.2017. It is contended that the resignation of the petitioner, which was submitted on 3.8.2017 had become effective on 4.8.2017 and that therefore the proceedings are completely in order. 7. The learned Standing Counsel also relied on decision of the Apex Court in **North Zones Cultural Center and Ors. V. Vedpathi Dinesh Kumar [AIR 2003 SC 2719]** to contend that where the resignation has been accepted by the competent authority, the delay in communication of acceptance of the resignation cannot give rise to a claim by the employee that his withdrawal in the interregnum between the acceptance and the communication of the same should be acted upon. 8. I have considered the contentions advanced. In the instant case, petitioner had submitted Ext.P2 letter of resignation on 3.8.2017. Apart from contending that the resignation had become operative on 4.8.2017, the respondents have not produced any material to show that there was any acceptance of the resignation either by the 3[rd] respondent or by the 2[nd] respondent before 17.8.2017. When the matter was apparently placed before the Board on 17.8.2017, the petitioner's withdrawal of resignation dated **WP(C).No. 39349 of 2018 6** 7.8.2017 was also on record. As a matter of fact, the counter affidavit of the 2[nd] respondent reveals that the Board considered the resignation as well as the withdrawal of the same at the Board meeting dated 17.8.2017. If that be so, as on the date when the resignation of the petitioner was being considered by the Board, his withdrawal of resignation was also on record and was available for consideration by the respondents. It is also pertinent to note that no steps had apparently been taken by the respondents to seek the settlement of the dues of the petitioner or to require him to make any payments to the Board in respect of amounts admittedly outstanding. Rule 10 of the Staff Rules also provides for a notice period of one month in case of confirmed employee. This Court as well as the Apex Court have repeatedly held that a resignation can be withdrawn at any point in time before it is accepted by the competent authority. In the instant case, there is nothing on record to show that there was any acceptance of resignation submitted by the petitioner on any date before 17.8.2017. 9. In the above view of the matter, I am of the opinion that the Board, which considered the request of the petitioner for resignation, was in seisin of his request for withdrawal of resignation as well and as such, the resignation which had already been withdrawn ought not to have been acted upon. ## **WP(C).No. 39349 of 2018 7** In the above view of the matter, I am of the opinion that the writ petition is liable to be succeeded. Ext.P8 decision as well as Ext.P3 order of fresh appointment is set aside. It is declared that the petitioner who had withdrawn his resignation by Ext.P2(a) proceedings before Ext.P2 resignation had been accepted, is entitled to continue in service without reference to Ext.P3. The respondents shall pass appropriate orders treating the petitioner as having continued in service by regularising the period of absence appropriately. The petitioner shall be entitled to re-fixation of his pay and allowances on the basis of his earlier appointment in service without reference to Ext.P3. Orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. The petitioner shall be released all arrears thereafter without undue delay. The writ petition is ordered accordingly. **SD/-** **ANU SIVARAMAN** **JUDGE** rmm **WP(C).No. 39349 of 2018 8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 22.2.1993** **EXHIBIT P2 TRUE COPY OF RESIGNATION LETTER DATED 3.8.2017.** - **EXHIBIT P2 A TRUE COPY OF THE LETTER DATED 7.8.17 WITHDRAWING RESIGNATION.** - **EXHIBIT P3 TRUE COPY OF THE RE-APPOINTMENT ORDER DATED 8.9.2017 OF 3RD RESPONDENT.** - **EXHIBIT P3 A TRUE COPY OF THE PROCEEDING OF THE MANAGING DIRECTOR DATED 11.9.2017 ON PETITIONER'S RE-APPOINTMENT AS ASSISTANT MANAGER (PLANTATION)** - **EXHIBIT P3 B TRUE COPY OF THE RELEVANT PORTION OF THE DECISION OF THE BOARD MEETING HELD ON 17.8.2017.** - **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS OF 2ND RESPONDENT ON PETITIONER'S JOINING DUTY AS ASSISTANT MANAGER DATED 11.9.2017** - **EXHIBIT P5 TRUE COPY OF THE OFFICE ORDER DATED 31.10.2017 OF THE 3RD RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE SENIORITY LIST OF JUNIOR EXECUTIVE SHOWING PETITIONER'S DATE OF ENTRY IN SERVICE AS 11.9.2017** - **EXHIBIT P7 TRUE COPY OF THE APPEAL DATED 15.9.2017 SUBMITTED BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P7 A TRUE COPY OF THE APPEAL DATED 7.12.2017 SUBMITTED BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 12.9.2018** - **EXHIBIT P9 TRUE COPY OF THE INFORMATION DTD 30.8.2018 RECEIVED UNDER RIGHT TO INFORMATION ACT.** - **EXHIBIT P10 TRUE COPY OF THE STAFF RULES DEALING WITH TERMINATION OF SERVICE.** **WP(C).No. 39349 of 2018 9** ## **RESPONDENTS EXHIBITS** **ANNEXURE A1:- THE TRUE COPY OF THE MINUTES OF THE BOARD MEETING DATED 17.08.2019 IS PRODUCED HEREWITH AND MARKED ANNEXURE A1.** ## **// TRUE COPY //** ## **P.A TO JUDGE**