Service Matter Employee Resigation & Its Withdrawal and Employer Right To Reject

 

Service Jurisprudence: Employee right to withdraw request of  resignation or voluntary retirement viz. a viz. employer‟s right

Can an employee withdraw the Resignation or VRS request anytime before acceptance?

During employment it is open to any employee to retire from service and seek such requisite permission and even ask for cancellation 1  of  such su ch re requ ques este ted d be befo fore re it is ac acce cept pted ed by em empl ploy oyer er.. In ca case ses s of  resignation and its withdrawal, resignation 2  became effective on the date of its acceptance by the Government of India and a subsequent withdrawal of the resignation was ineffective even if acceptance of the resignation was not intimated to him. If competent authority is not passing any order on the application for resignation for a long period then it may justify an inference that the resignation has not been accepted and if employee is not perm rmiitted to determine the relationship of employment, then such an act amounts to bounded labour 3. At the same time, if any em emp ploy oyee ee has tend nde ere red d his re resi sign gnat atio ion n at futu future re da day y an and d sa same me wa was s with withdr draw awn n prio priorr to that that ef effe fect ctiv ive e date date,, then then in su such ch ca case ses s auth author orit ity y ca can’ n’tt ac acce cept pt su such ch resignat resi gnation ion prio priorr to eff effect ective ive dat date. e.4  Howe Howeve ver, r, ac actt of with withdra drawa wall of  resignation could be permitted and the same depends upon of whether  the employment is governed by unilateral or bilateral character 5. It is now settled legal position that unless employee is relieved of the duty,  jural relationship of the employee and employer does not come to an end en d an and d if an any y or orde derr ac acce cept ptin ing g the the vo volu lunt ntar ary y reti retire reme ment nt wa was s a conditional6, then condition ought to have been complied with. Before the condition could be complied, if any employee withdrew voluntary retirement did not become effective and right to withdraw resignation 1 2 3 4 5 6

 Jai Ram Vs. Union of India & ors., AIR 1954 SC 584  Raj Kumar Vs. Union of India & ors., AIR 1969 SC 180, the Apex Court  Central Inland Water Transport Corporation Ltd. Vs. Brojonath Ganguli, AIR 1986 SC 1571  Punjab National Bank Vs. P.K. Mittal, AIR 1989 SC 1083  Moti Ram Vs. Param Dev & Anr., AIR 1993 SC 1162  Power Finance Corporation Ltd. Vs. Parmod Kumar Bhatia, (1997) 4 SCC 280

 

can’t be curtailed7  by statutory rules/regulations. Acceptance of the application for retirement is to be considered as per the law applicable.  An employee has a right to resign or seek premature retirement, howeve how ever, r, sub subjec jectt to the statut statutory ory prov provisi isions ons,, if any, gov governi erning ng the same sa me.. The The Au Auth thor orit ity y ma may y re refu fuse se to ac acc cep eptt the the resi resign gnat atio ion n if an employee is seeking retirement just to avoid the adverse findings in a di disc scipl iplina inary ry pro proce ceedi eding ng pe pendi nding ng// co cont ntem empl plat ated ed aga again inst st him him or his his serv rviices cann nnot ot be dispense nsed with be bec cause of the na natture of  work wo rk/p /proj rojec ect. t. In ca case se res resig igna nati tion on is no nott of pro prosp spec ecti tive ve nat natur ure, e, it beco be come mes s effe effect ctiv ive e as so soon on as it is ac acce cept pted ed by the the Co Comp mpet eten entt  Authority and even non-communication of the said order to the resign or wo woul uld d be im immat materi erial al and em empl ploy oyee ee ca canno nnott se seek ek wi with thdra drawa wall of  applica appl icatio tion n the thereaf reafter ter.. Tha Thatt the Con Const stitu itutio tion n Ben Bench ch of the Hon Hon'bl 'ble e Supreme Court, in Union of India Vs. Gopal Chandra Misra & ors., AIR 1978 SC 694, 694, held eld tha hatt "It will be repetition that the general   principle is that in the absence of a legal, contractual or constitutional  bar, a prospective resignation can be withdrawn at any time before it  becom bec omes es effe effect ctiv ive, e, an and d it be beco come mes s effe effect ctiv ive e when when it ope operat rates es to terminate the employment or the office tenure of the resign or...... If he chooses to resign from a future date, the act of resigning office is not  complete because it does not terminate his tenure before such date and the Judge can, at any time before arrival of prospective date on whic wh ich h it wa was s inte intend nded ed to be effe effect ctiv ive, e, wi with thdr draw aw it, it, beca becaus use e the the Constitution does not bar such withdrawal." 

It is clear that employer does not have a right to prepone the date of  effectiveness of resignation/VRS and it would be within the right to decide the date of retirement by any employee and in case of a prospect pros pective ive res resign ignati ation, on, the empl employe oyee e has a rig right ht to wit withdr hdraw aw the resignation prior to the date it becomes effective and not subsequent to it. Similarly, it is the employer discretion to reject or accept the resignation or VRS subject to rules and regulations.

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 Union

of India Vs. Wg. Comm. T. Parthasarathy, (2001) 1 SCC 158