The Kerala State Cashew Development Corporation Ltd. v. R. Rajeev

_**WP(C).1524/19**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941** ## **WA.No.1524 OF 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) 39349/2018(P) OF HIGH COURT OF KERALA** ## **APPELLANT/S:** **1 THE KERALA STATE CASHEW DEVELOPMENT COPORATION LTD., REPRESENTED BY SECRETARY, CASHEW HOUSE, POST BOX NO. 13, MUNDAKKAL, KOLLAM PIN 691 001 2 THE MANAGING DIRECTOR, THE KEREALA STATE CASHEW DEVELOPMENT CORPORATION LTD, REPRESENTED BY SECRETARY, CASHEW HOUSE, POST BOX NO. 13, MUNDAKKAL, KOLLAM PIN 691 001** **BY ADVS. SRI.VIPIN P.VARGHESE SMT. DHANYA T MALLAR** ## **RESPONDENT/S:** **1 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 2 STATE OF KERALA REPRESENTED BY ITS SECRETARY, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 R1 BY ADV. SMT.SREEDEVI KYLASANATH (B/O) R2 BY GOVERNMENT PLEADER(B/O)** _**WP(C).1524/19**_ 2 ## **OTHER PRESENT:** ## **SR.GP SRI.ANTONY MUKKATH** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03-02-2020, THE COURT ON 03-02-2020 DELIVERED THE FOLLOWING:** _**WP(C).1524/19**_ 3 ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** ## **----------------------------------------------W.A.No. 1524 of 2019 ----------------------------------------------Dated this the 3[rd] day of February, 2019** ## **JUDGMENT** ## _**Arun, J.**_ The appellants are the Kerala Cashew Development Corporation('the Corporation' for short) and its Managing Director. By the impugned judgment, the learned Single Judge allowed the writ petition filed by the 1[st] respondent and declared the him to be entitled to continue in service without reference to Exhibit P3 by which the 1[st] respondent was reappointed in service as the junior most Assistant Manager. The respondents were directed to pass orders treating the 1[st] respondent to have continued in service by regularising the period of his absence appropriately and to re-fix his pay and allowances on the basis of his earlier appointment in service. The necessary facts for deciding this appeal, are as follows: 2. The petitioner was appointed as Junior Assistant in the Corporation on 22.2.1993 and was promoted as Senior Assistant on 2.4.2007, as Liaison Officer on 10.6.2010 and as Assistant Manager (Liaison) on 9.1.2014. While continuing in the post of Assistant Manager (Liaison), the petitioner submitted Exhibit P2 resignation _**WP(C).1524/19**_ 4 letter dated 3.8.2018, allegedly due to the mental harassment meted out by the Managing Director. According to the petitioner, he had submitted the resignation letter on a sudden impulse and on realising the mistake, had withdrawn the resignation as per Exhibit P2(a) letter dated 7.8.2017. The petitioner did not receive any communication thereafter of either the resignation or the withdrawal having been accepted. The petitioner was not relieved of his duties also. 3. While so, the Director Board of the Corporation considered the petitioner's letter of resignation and application seeking withdrawal of resignation in its meeting held on 17.8.2017 and based on a note put up the Managing Director, that the petitioner's resignation was accepted on 4.8.2017, decided to re-appoint the petitioner as the junior most Liaison Officer, subject to stringent conditions. Accordingly, Exhibit P3 re-appointment order was issued to the petitioner and he joined duty on 11.9.2017. Even though the petitioner preferred an appeal against Exhibit P3 requesting to allow him to continue in service without break, the appeal was rejected by the Director Board and the decision communicated under Exhibit P8. The writ petition was thereupon filed seeking to quash Exhibit P3, P3(a) and P8 and for issue of a writ of mandamus directing the respondents to treat the petitioner to have been in continuous service as Assistant Manager (Liaison) and to grant him all benefits, including seniority and arrears of salary. _**WP(C).1524/19**_ 5 4. In the writ petition it was contended that acceptance of the petitioner's resignation by the Managing Director was never communicated to him and the petitioner was not relieved from service. The resignation letter as well as the withdrawal of resignation having been placed before the Director Board, the Board committed an illegality in finding the petitioner to have resigned from service based on the alleged acceptance of the resignation by the Managing Director. It was contended that the factum of acceptance of resignation was never communicated to the petitioner prior to the submission of his request for withdrawal of resignation and therefore the resignation had not come into effect. In support of this contention, reliance was placed on the decision of the Apex Court in _**Union of India v. Gopal Chandra Misra**_ [1978 2 SCC 301], _**Balram Gupta v. Union of India**_ [(1987) suppl. 228] and _**Power Finance Corporation Limited v. Pramod Kumar Bhatia**_ [(1997) 4 SCC 280]. 5. Relying on Rule 10 of the Staff Rules of the Corporation, it was contended that an employee could discontinue his service with the Corporation only by giving prior notice of not less than one month and that on contravention of the said requirement, the employee would be liable to pay compensation. It was pointed out that the petitioner having failed to comply with the requirement, the Corporation ought to have claimed compensation and the fact that no such compensation was claimed would show that the resignation was never accepted. _**WP(C).1524/19**_ 6 6. The Corporation refuted the averments and contended that the Managing Director, the competent authority, had accepted the resignation and such acceptance was approved by the Director Board, after considering the petitioner's resignation as well as withdrawal applications. It was contended that in Exhibit P3 re-appointment order it is clearly stated that the resignation of the petitioner had come into effect from 4.8.2017 onwards. It is contended that, the petitioner having accepted the appointment and having rejoined service, is estopped from challenging Exhibit P3 and the consequential orders. The learned Single Judge found that, as on the date when the resignation of the petitioner was considered by the Board, his withdrawal of resignation was also on record. It was found that there is nothing on record to show that the resignation submitted by the petitioner was accepted before 17.8.2017. It was held that when the request of the petitioner for resignation and his request for withdrawal of resignation were placed before the Board, the resignation, which had already been withdrawn, ought not have been acted upon. It was noticed that no steps had been taken by the respondents for settlement of the petitioner's dues. Based on the findings, the writ petition was allowed and consequential reliefs granted. 7. Heard. 8. The learned counsel for the appellant reiterated the contentions urged before the learned Single Judge. It is submitted that _**WP(C).1524/19**_ 7 the Managing Director who is the competent authority had accepted the petitioner's resignation on 4.8.2017, which fact was taken note of by the Board in its meeting held on 17.8.2017. On being convinced that the petitioner's resignation has taken effect, the Board decided to reappoint the petitioner as a fresh hand. According to the learned counsel sufficient leniency was shown to the petitioner by reappointing him in service and having joined service based on such concession, the petitioner cannot turn around and question the decision. 9. The learned counsel for the petitioner would submit that the impugned judgment do not warrant interference. It is submitted that even as on date, other than a self serving note alleged to have been submitted by the Managing Director, of having accepted the petitioner's resignation, there is nothing on record to show that the resignation was accepted prior to 17.8.2017. It is contended that, had the resignation been accepted, the Managing Director would not have placed the letter of resignation along with the letter of withdrawal before the Board. It is argued that when the withdrawal of resignation was placed for consideration before the Board, decision ought to have been taken as to whether the withdrawal could be accepted or not. It is submitted that by compelling the petitioner to rejoin service as a fresh hand, he lost 24 years of prior service. 10. On consideration of the rival contentions and the materials on record, we find no reason to interfere with the well-founded judgment _**WP(C).1524/19**_ 8 rendered by the learned Single Judge. As rightly found in the judgment, there was no material to show that the petitioner's resignation had been accepted by the Managing Director. The petitioner was not relieved from service consequent to the alleged acceptance of his resignation and no action was taken to settle his dues. Moreover, if the resignation was accepted, there was no reason for the Managing Director to have placed the petitioner's withdrawal of resignation before the Board. The withdrawal having been placed for its consideration, it was incumbent upon the Board to take a decision thereon, rather than acting upon a note submitted by the Managing Director that he had already accepted the resignation. If, as found by the Board, the petitioner's service stood terminated on his resignation being accepted, the Board did not have any authority to direct reappointment of the petitioner, in the absence of any enabling provision. The petitioner being a public sector undertaking, can effect appointments only after a regular process of selection and not in any whimsical manner, the Board deems appropriate. 11. Having found no reason to interfere with the impugned judgment, we dismiss the writ appeal. It is made clear that if the directions in the impugned judgment have so far no been complied with, by regularising the period of absence of the petitioner, treating him to have been in service continuously from the initial date of his appointment and by re-fixing his pay and allowances and releasing all _**WP(C).1524/19**_ 9 arrears due to him, the Managing Director shall be held personally liable for the delay. If the monetary benefits, as directed in the impugned judmgnent is not disbursed within one month from the date of receipt of a copy of this judgment, the amount will carry interest at the rate of 7% from 1.7.2019, the date on which the three months granted under the impugned judgment expired. The writ petition is dismissed with the above directions. No order as to costs. Sd/- ## **K.VINOD CHANDRAN** **JUDGE** Sd/- **V.G.ARUN JUDGE** _vgsx_