Can An Employee Withdraw Prospective Resignation Before It Becomes Effective? Supreme Court Explains

The Supreme Court held that 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the office or post and in the absence of any legal contractual or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective.

The Court was deciding an appeal filed by a female employee against the judgment of the Bombay High Court by which the Division Bench dismissed her appeal and confirmed the order of the Single Judge in a writ petition challenging the order of the Mumbai University and College Tribunal.

The two-Judge Bench of Justice J.K. Maheshwari and Justice K.V. Viswanathan observed, “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letter dated 25.03.2003 is an intimation of resignation from a prospective date i.e., 24.09.2003, which could have been withdrawn by the appellant prior to the effective date.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 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).”

Advocate Varinder Kumar Sharma represented the appellant while Advocate Nina Gupta represented the respondents.

In this case, the female employee (appellant) preferred an appeal before the College Tribunal to quash the order of the Marwadi Sammelan Trust, rejecting her request for withdrawal of resignation vide a letter. The appeal arose out of the orders passed by the three fora before whom the challenge was made by her to the rejection of withdrawal of her prospective resignation, prior to the effective date and the rejection of her prayer for rejoining the duties. Assailing the rejection of request for withdrawal of such resignation, the employee approached the College Tribunal.

The Tribunal was of the opinion that since it was not an order of dismissal, removal or termination of service, the appeal was not maintainable under Section 59(1) of the Maharashtra Universities Act, 1994 and on such, the question of limitation under Section 59(2) does not arise. It even delved into the question of withdrawal of the resignation before the effective date on merits. After appreciating the facts, it was held in law that the resignation can be withdrawn before the expiry of the intended date, however, on facts, it was held that there was an implied understating between the parties’ prohibiting such withdrawal. As the High Court also dismissed her appeal, the employee was before the Apex Court.

The Supreme Court in view of the above facts noted, “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 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.”

The Court added that such judgment has no application in the facts of the case. It refused to examine the question about how far the Tribunal was justified in dealing with the issue on merits.

Furthermore, the Court said that the appellant cannot be allowed to join the duty in the respondent institution because of the setting aside of the orders impugned and due to the superannuation.

“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”, it also noted.

The Court directed the Trust to regularize the service period of the appellant from the date when they wrongly treated her as having resigned till the date of joining the duty at the new Institution as Principal. It applied the principle of ‘no work no pay’ and said that the appellant would be entitled to back-wages and salary for such regularized period as she did not work 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. … 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”, it directed.

The Court ordered that the retiral and pensionary benefits be calculated and paid accordingly including the arrears of pension and that the said exercise be completed within a period of four months.

Accordingly, the Apex Court allowed the appeal and set aside the orders of the College Tribunal and High Court.

Cause Title- Dr. Mrs. Suman V. Jain v. Marwadi Sammelan through its Secretary and Others (Neutral Citation: 2024 INSC 127)

Appearance:

Appellant: AOR Varinder Kumar Sharma and Advocate Shantanu Sharma.

Respondents: Advocates Nina Gupta, Lalit Bhasin, AOR Radhika Gupta, Advocate Vaishnavi Gupta, AOR Aaditya Aniruddha Pande, Advocates Siddharth Dharmadhikari, Bharat Bagla, Sourav Singh, Aditya Krishna, Preet S. Phanse, and Adarsh Dubey.

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