WITHDRAWAL OF RESIGNATION/VOLUNTARY RETIRMENT BEFORE ITS ACCEPTANCE AND COMMUNICATION IS VALID.

[Mr. M. GOVINDARAJAN]

                                    Whether the employee is within his right to withdraw his option for voluntary retirement after its acceptance but before actual date of release from the employment?  The Constitution Bench in ‘Union of India V. Gopal Chand Misra’ – AIR 1978 SC 694 held that the complete and effective act of resignation office is one which severs the link of the resignor with his office and terminates the tenure.  The Supreme Court further explained in ‘Power Finance Corporation Limited V. Pramod Kumar Bhatia’ – 1997-II-LLJ-819 that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation, the jural relationship of the employee and the employer does not come to an end.  The resignation in spite of its acceptance can be withdrawn before the effective date set aside the direction and allowed the employee to continue in service with all consequential benefits.

                        In ‘Padubidri Damodar Shenoy V. Indian Airlines Limited’ – (2009) 10 SCC 514 the employee who had not attained 55 years of age whom completed 20 years of continued service applied for voluntary retirement whence it was held that the employees; retirement would not be automatic on the expiry of period of notice of three months as in the case of employee who attained 55 years of age and applied for voluntary retirement since it is subject to voluntary retirement since it is subject to approval of competent authority and that there was no necessity for the employer to indicate refusal of approval to the employee during the period of notice, though notice of three months for voluntary retirement by the employee remains valid even if no communication is received within notice period, but it becomes authority. 

                        In ‘J.N. Srivatsava V. Union of India’ – 1999-I-LLJ-546 (SC) the Supreme Court held that it is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement.

                        In ‘Managing Director, CAMPCO Limited, Mangalore V. B. Vishnu Murthy, Mangalore’ – 2012-LLJ-819 (Karn) the employee of the petitioner company submitted a letter of resignation on 03.05.2006 extending a month’s advance notice.  On 06.08.2006 he withdrew the said letter.  But the resignation of the employee was accepted by the company but it was neither communicated to the employee nor was the employee relieved from the service. The petitioner company did not accept to withdraw the resignation of the employee on the ground that the employee was continuously absent from duty.  The matter was referred to conciliation which was failed.   The employee filed a claim petition before the Labor Court, Mangalore.   The petitioner company, in its objections contended that the employee was irregular in attendance and was unauthorisedly absent from duty from 08.07.2005 to 15.11.2005for 131 days whence leave was refused and thereafter a show cause notice was issued to him on 15.04.2006, whence the employee apprehending legal action submitted a resignation letter.  The resignation was accepted with effect from 02.06.2006.

                        The Labor Court after hearing both sides held that the employee had locus poenitentiae to withdraw his proposal of resignation before the communication of acceptance of resignation and accordingly by the award dated 28.10.2010 allowed the reference in part directed reinstatement of the employee with continuity of service and 50% back wages from 05.08.2006 up to the date of reinstatement.

                        Against the said order the petitioner company filed this petition before the High Court.  The petitioner company contended that the employee having submitted his resignation by letter dated 3.05.2006 extending a month’s time as notice, in terms of Rule 14.3 of the Central Arecanut and Coco Marketing and Processing Co-operative Limited Service Rules the respondent was deemed to have been relieved from the service on expiry of the period of one month from 03.05.2006 and therefore the application for the withdrawal of resignation was unsustainable.  The petitioner company further contended that the communication of the order of acceptance of resignation is of no consequence since under the Service Rules 14.3 the employee having left the employment as on 03.05.2006, the employee’s intention to withdraw his resignation ought to have been done before the expiry of one month from 03.05.2006.  The employee having remained absent from 08.07.2005 onwards, and antecedent to the letter dt. 03.05.2006 and thereafter too having not reported to duty, voluntarily abandoned the service disentitling him to a consideration of withdrawal of resignation.  The employee himself admitted that he gainfully employed as an LIC agent and earned Rs.5000/- as monthly income.  Therefore his is not entitled to 50% of back wages. 

                        The employee contended that unless he was relieved from duty there is no automatic relieving from the post immediately after submitting the letter dated 03.05.2006 of resignation.  The employee continued to hold the post and there was no cessation of relationship of employee and employer until acceptance of resignation and its communication to the employee, which having not happened, was entitled to withdraw the resignation.  The employee being under the administrative control of the petitioner company was susceptible to disciplinary proceedings for having remained absent and if initiated would have responded suitably and therefore the question of voluntary abandonment did not arise. 

                        The High Court analyzed the provisions of Rule 14.3 the held that it is apparent that in the event of an employee volunteers to resign from employment by submitting a letter of resignation, as in the instant case, extending notice period of 30 day does not tantamount to relieving the employee of duties immediately after expiry of 30 days, so as to sever the relationship between the petitioner and the employee.   In the absence of an order relieving the employee from duty or termination from the post held by the employee, it cannot be said that there was a cessation of the jural relationship of employer and employee between the petitioner and the employee.   The monthly wages of the employee was Rs.10000/- per month.  The employee during his absence earned Rs.5000/- per month.   Thus there is a justification for granting 50% back wages.   The High Court dismissed the petition filed by the petitioner company.

                        In the modern age we should not put embargo upon people’s choice or freedom.  In the modern and uncertain age it is very difficult to arrange one’s future with any amount of certainty; a certain amount of flexibility is required, and if such flexibility does not jeopardize the administration, the administration should be graceful enough to respond and acknowledge the flexibility of the human mind and attitude and allow to withdraw the voluntary retirement/resignation in the facts and circumstance of the case.