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PETITIONER: P. KASILINGAM

       Vs.

RESPONDENT: P.S.G. COLLEGE OF TECHNOLOGY

DATE OF JUDGMENT08/01/1981

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) CHANDRACHUD, Y.V. ((CJ) ISLAM, BAHARUL (J)

CITATION:  1981 AIR  789            1981 SCR  (2) 490  1981 SCC  (1) 405        1981 SCALE  (1)38

ACT:      The Tamil Nadu Private Colleges (Regulation) Act, 1976, sections 20,  22, 39  and 40,  scope  of-Competence  of  the Government in dealing with an appeal under section 20 of the Act to  come to  its own conclusion and even contrary to the findings of  the enquiry officer-Rules of natural justice as enjoined by  section 39  of the  Act must be followed by the Government while  disposing of  an appeal  in a disciplinary proceeding-While adjudicating  upon the  claim to payment of back wages  the employer  is entitled  as a matter of law to adjustment of  equities between  the parties  by an  account being taken  of the salary earned by the discharged employee elsewhere-Constitution  of   India,  Article  226,  writ  of certiorari, intention behind, issuance of.

HEADNOTE:      Allowing the  appeal and  remitting the  matter to  the Government for adjudication of the claim for back wages, the Court, ^      HELD  :   (1).  The  manner  in  which  the  letter  of resignation was  obtained from  the appellant  together with the letter  of apology, just before the departmental enquiry was to  commence suggests  that they  were integral parts of the  same   transaction.  It  was  somewhat  unusual  for  a delinquent officer  to be  called to  the residence  of  the Correspondent of the College along with the Principal and to have the  two documents  signed by  him, as  a condition for dropping the  enquiry. The  submission of letter of apology, which amounted  to an  admission of  guilt, along  with  the unconditional letter  of resignation,  was part  of  a  deal between the  management and  the appellant.  It was meant to act as  an inducement  for the  enquiry not  to be proceeded with. The management wanted to dispense with the services of the appellant.  The Government  was, therefore, justified in holding that  if the  appellant placed in such circumstances submitted his  resignation, it  would not  necessarily  give rise to an inference that his act in doing so was voluntary. The Government in dealing with an appeal under section 20 of the Tamil  Nadu Private Colleges (Regulation) Act, 1976 was, at any rate, entitled to come to that conclusion.

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                                                  [494 C-F]      (2) It  is open  to a  Government servant  to make  his resignation operative  from a  future date  and to  withdraw such resignation  before its  acceptance. The  services of a Government servant  normally stand  terminated from the date on which  the letter  of  resignation  is  accepted  by  the appropriate authority,  unless there is any law or statutory rule governing  the conditions  of service  to the contrary. There is  no reason  why the  same principle  should not  be applicable to the case of any other employee. [497 E-F]      Raj  Kumar  v.  Union  of  India,  [1968]  3  SCR  857, followed.      Union of  India v.  Shri Gopal  Chandra Misra  &  Anr., [1978] 3 SCR 12, distinguished. 491      (3) Ordinarily  the  Government  must,  in  all  cases, before it  comes to  a contrary  conclusion, as  a matter of course, give  the parties  the opportunity  of making  their representations before  taking a  decision. In  the  instant case, the  Government acted in breach of the rule of natural justice inasmuch  as there was on its part non-compliance of the requirements of clause (1) of sub-sec. (2) of section 39 of the  Tamil Nadu  Private Colleges (Regulation) Act, 1976. However, remitting the appeal in this particular case to the Government for  a re-hearing  would really  serve  no  usual purpose inasmuch  as (i)  the charges  levelled against  the appellant were  not of  such a  nature as  would  merit  his dismissal from  service. (ii)  on  the  contrary,  it  could easily be visualised that even if the appeal were to be sent back to  the  Government,  it  would  either  exonerate  the appellant or may let him off with a minor penalty.                                        [497 F-G, 498 B, C-D]      (4) Sub-section (1) section 40 of the Act makes deposit of arrears  of salary  and allowances  upon reinstatement by the appellate authority referred to in section 20 of the Act a pre-condition  to the  preferment  of  an  appeal  by  the management under  section 22.  Only when  such an  appeal is preferred by  the management  the Tribunal  is invested with jurisdiction to  make a  direction under  sub-section (1) of section 40  that the management shall deposit the arrears of pay and  allowances within  such time as it directs. In that event, it  is of  course, open  to the management to raise a dispute according  to sub-section  (3) of  section 40 of the Act as  to the  amount to be deposited under sub-section (1) In the instant case, however, since there is no appeal filed by the  management under section 22 of the Act, the question of making a direction in terms of sub-section (1) of section 40 of the Act does not arise.                                                    [498 F-H]      (5) It  was, however,  open  to  the  Government  while allowing the appeal preferred by the appellant under section 20 of  the  Act  to  make  a  direction  not  only  for  his reinstatement but also for payment of all his arrears of pay and allowances.  The words "make such order as it deems just and equitable"  read in  the  context  of  sub-clause  (iii) thereof, "considering  all the  circumstances of  the case", occurring in  sub-section (2)  of section 39 of the Act, are wide enough  to include  the power to make such a direction. Normally, the  reinstatement of  a person  in service should carry a  direction for  payment of  his back  wages. In  the instant case,  the Government  has made no direction in that behalf. [498 H, 499 A]      (6) The management was entitled, as a matter of law, to adjustment of  equities between  the parties  by an  account being taken  of the salary earned by the appellant elsewhere

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or of  any income derived by him from any source whatsoever. [499C-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 493 of 1980.      Appeal by  Special Leave  from the  Judgment and  Order dated 11-10-1979 of the Madras High Court in W.P. No. 16/79.      R. K.  Garg,  Vimal  Dave  and  R.  C.  Misra  for  the Appellant.      T. S. T. Krishnamurthy Iyer, A. T. M. Sampath and P. N. Ramalingam for respondent No. 1. 492      A. V. Rangam for Respondent No. 2.      The Judgment of the Court was delivered by      SEN, J.  This  appeal  by  special  leave  is  directed against a  judgment of  the Madras  High Court dated October 11, 1979  quashing an order of the State Government of Tamil Nadu dated  December 20,  1978 passed in appeal preferred by the appellant under s. 20 of the Tamil Nadu Private Colleges (Regulation) Act,  1976, hereinafter  referred  to  as  ’the Act’, by  which the  Government held  that  the  resignation submitted by him on March 19, 1976 from his post as Lecturer in the  Department of  Electronics in  P. S.  G. College  of Technology, Coimbatore,  was not  voluntary and,  therefore, directed his reinstatement with immediate effect.      The facts  giving rise  to the  appeal are  these :  On February 28,  1976, the  appellant while he was on probation as a  Lecturer in  the Department  of Electronics  in P.S.G. College  of  Technology,  Coimbatore,  was  subjected  to  a departmental   enquiry   for   dereliction   of   duty   and irresponsible conduct  by the  Principal and the two charges levelled against  him were  (1) on  February 18, 1976 he did not allow one batch of students of III-B Technology Class to complete their  laboratory experiments  in the test that was being held  from 1.45  p.m. to 4.30 p.m. and further that he left the  college before  4.30 p.m.  without collecting  the answer books  of the  students who  had  carried  out  their laboratory experiments  in that test and without signing the attendance register,  and  (2)  he  failed  to  conduct  the laboratory class  for III-B Technology students which was to be held  on  February  25,  1976.  On  March  3,  1976,  the appellant submitted  his explanation  refuting  the  charges framed against  him and prayed that an oral enquiry be held. The Principal  accordingly appointed  an enquiry officer who was to  commence the  enquiry on  March 13, 1976, but at his request it  had to  be adjourned  to 9.0  a.m. on  March 19, 1976.      On March  19, 1976  at 8.30  a.m., i.e.,  just  as  the departmental  enquiry   was  to   commence,  the   appellant accompanied by  the Principal  of the  College came  to  the Correspondent’s  residence   and  handed  over  two  letters addressed to  the Principal,  first was  a letter of apology and the other a letter of resignation. The letter of apology submitted by  him was  virtually an  admission of  guilt and contained a  promise that he would reform in future and give no further cause for complaint. It reads :           "I apologize  sincerely for  these  lapses  on  my      part. I assure you that hereafter I will conduct myself      in conformity with the rules and the regulations of the      institution and to the satisfaction of my superiors." 493 The letter  of resignation  submitted along with the written

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apology signified  his intention to leave the service of the respondent with  a request that his services may be retained for six months. It was in these terms :           "I hereby  tender my  resignation as  Lecturer.  I      request that  I may  be relieved  of my  duties on 19th      September, 76." There is an endorsement of even date by the Principal at the foot of  the letter  of resignation by which he accepted the resignation but  directed that  the appellant  as desired by him, be  relieved from duties with effect from September 19, 1976. He  further directed that the enquiry into the charges levelled against the appellant be dropped. On April 5, 1976, the Principal,  however, issued a relieving order dispensing his services forthwith on payment to him salary for a period of six  months by  a cheque  for Rs. 5,165.53 i.e., upto the period  ending  on  September  19,  1976  because  the  date September 19, 1976 fell in the midst of the academic session 1976-77 and  would have  disrupted the normal working of the College.      The appellant  preferred an  appeal under  s. 20 of the Act to the Government on September 27, 1976.      The Tamil  Nadu Private Colleges (Regulation) Act, 1976 is enacted, inter alia, for the regulation of the conditions of service  of teachers  employed in  private colleges.  The avowed purpose and object of the Act is to confer protection to the  teachers of private educational institutions against arbitrary action  of or  victimisation by  the management of such  educational  institutions,  Section  20  of  the  Act, insofar as material, provides :           "20. Any  teacher or  other person employed in any      private college-           (a)  who is  dismissed, removed or reduced in rank                or whose appointment is otherwise terminated,           (b)  ...........by any order, may prefer an appeal                against  such  order  to  such  authority  or                officer as may be prescribed......."      The Government directed the Addl. Director of Technical Education to  hold an  enquiry into  the allegations made by the  appellant  that  his  letter  of  resignation  was  not voluntary  but  had  been  obtained  by  the  respondent  by coercion. It  appears that  the  Addl.  Director,  Technical Education held an enquiry and afforded the parties an oppor- 494 tunity to  lead their  evidence and  ultimately submitted  a report holding  that the  allegations made  by the appellant were baseless. The Government, however, by their order dated December 20,  1978 did  not accept  the report  of the Addl. Director of  Technical Education and held that the letter of resignation submitted  by the  appellant was  not voluntary. The Government, accordingly, allowed the appeal and directed the reinstatement  of the  appellant with  immediate effect. The  respondent   challenged  the   impugned  order  of  the Government by  a writ  petition. The  High Court  has by its judgment under appeal quashed the order of the Government.      There is  no manner  of doubt  that  the  circumstances attendant upon  the submission  of the letter of resignation and the  letter of  apology on  March 19,  1976 are somewhat strange. The  manner in  which the letter of resignation was obtained from  the  appellant  on  that  day  at  8.30  A.M. together  with  his  letter  of  apology,  just  before  the departmental enquiry  was to  commence at 9.00 A.M., clearly suggests  that   they  were   integral  parts  of  the  same transaction.  It  was  somewhat  unusual  for  a  delinquent officer to  be called  to the residence of the Correspondent of the  College along with the Principal and to have the two

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documents signed  by him,  as a  condition for  dropping the enquiry.  It  appears  that  the  submission  of  letter  of apology, which  virtually amounted to an admission of guilt, along with the unconditional letter of resignation, was part of a  deal between  the management and the appellant. It was meant to  act as  an inducement  for the  enquiry not  to be proceeded with.  One is left with the unfortunate impression that the  management wanted to dispense with the services of the appellant.  The Government  was, therefore, justified in holding that  if the  appellant placed in such circumstances submitted his  resignation, it  would not  necessarily  give rise to an inference that his act in doing so was voluntary. The Government  in dealing with an appeal under s. 20 of the Act was, at any rate, entitled to come to that conclusion.      The stand  of the  Government before  the High Court is reflected in para 8 of its return, which reads :           "8. As  for averments  contained in para 16 of the      Affidavit it  is submitted that a close examination and      on comparison  of the exhibits R9 and R10 with exhibits      R20 and  R21, it  is seen  that both  the  apology  and      resignation letters  seem to  have been  typed  by  the      management  themselves.  It  is  also  clear  that  the      correction in  the apology  letter was  carried out  in      handwriting  of   the  Advocate   for  the  management.      Therefore, these circumstances were taken into 495      account and  in view  of the  position, the  Government      independently  came   to  a   conclusion  on  materials      available that  the resignation  letter was obtained by      force. Further,  there will  be no  necessity  to  give      resignation and apology letters simultaneously."      Regrettably the  High Court  has in  allowing the  writ petition  converted  itself  into  a  court  of  appeal  and examined  for  itself  the  correctness  of  the  conclusion reached by  the Government  and decided  what was the proper view to  be taken or the order to be made. It adverts to the three  circumstances  relied  upon  by  the  Government  for reaching the  conclusion that  the letter of resignation was not voluntary  and not  accepting the  report of the enquiry officer. It  observes that  ’though Prof. Shanmughasundaram, Head  of  the  Department,  had  been  examined  during  the enquiry, there  was no  specific question  put to him during his cross-examination that the two letters had been typed by him.’ It  further observes  that ’there  was  absolutely  no evidence at  all as to who typed the letters in question and on whose  typewriter they  were got typed’. It observes that ’the Government  was also  aware of  the lack of evidence on this aspect of the case and it was for this reason they have not made  any specific  averment in  the counter  affidavit. They merely  say the  letters seem to have been typed by the management themselves.  This appears to be a mere conjecture and a  finding based  on such  a conjecture cannot at all be supported as  based on  any acceptable  evidence’.  It  then proceeds to refute the suggestion of the Government that the corrections made  in the two letters were in the handwriting of the Advocate appearing for the management, and goes on to say that ’the Government once again merely surmises that the letter  contained   corrections  by  the  Advocate  for  the management’. It  also rejects the suspicion attaching to the submission  of   the  letters  of  resignation  and  apology simultaneously by  expressing that  ’we do  not see  how the Government can  delve into  the mind  of the  management and find out  whether there  was necessity to give the letter of resignation and apology simultaneously’.      The Government  was competent to come to the conclusion

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that it did upon the facts appearing on the record. The High Court  could   not   speculate   as   to   what   were   the ’circumstances’ which outweighed the finding recorded by the Addl. Director  of  Technical  Education  holding  that  the appellant had  voluntarily submitted  his  resignation.  The fact remains  that the  report  submitted  by  him  was  not accepted by  the Government  and it  came to  the conclusion that the  letter of  resignation could  not be treated to be voluntary. The  Government was  circumspect in  viewing  the circumstances surrounding the sub- 496 mission of  the letter of resignation with certain amount of suspicion. The  finding reached  by the  Government does not necessarily mean that the letter of resignation was obtained from the  appellant under  coercion. It may well be that the appellant was  acting under  an element of compulsion for he had become  a victim  of the  situation brought about by the holding of  a departmental  enquiry  and  if  the  appellant placed  in   such  circumstances   submitted  a   letter  of resignation  it  would  not  necessarily  give  rise  to  an inference that his act in doing so was voluntary.      The High  Court has  viewed the  matter  from  a  wrong perspective. In  quashing the  order of  the Government, the High Court observes that its finding is based on no evidence but proceeds  on conjectures  and surmises.  In doing so, it ignores the  long line  of decisions  starting  from  T.  C. Basappa  v.   T.  Nagappa   &  Anr.  laying  down  that  the supervision of  the High  Court exercised  through writs  of certiorari  goes   on  two   points.  One  is  the  area  of jurisdiction and  the qualifications  and conditions  of its exercise, the  other is  the observance of law in the course of its exercise. Such writs are obviously intended to enable the High  Court to  issue them  in  grave  cases  where  the subordinate tribunals  or  bodies  or  officers  act  wholly without jurisdiction,  or in  excess of  it,  or  refuse  to exercise a jurisdiction vested in them, or there is an error apparent on  the face  of the record and such act, omission, error or  excess has  resulted in manifest injustice. It was rightly observed in Basappa’s case that a writ of certiorari will not  issue as a cloak of an appeal in disguise. It does not lie  to bring up an order or decision for re-hearing. It exists to  correct error of law when revealed on the face of an order or decision or irregularity or absence of or excess of jurisdiction when shown.      It is  clear beyond  doubt  that  the  High  Court  had transgressed  its   jurisdiction  under   Art.  226  of  the Constitution by  entering upon the merits of the controversy by embarking upon an enquiry into the facts as to whether or not the letter of resignation submitted by the appellant was voluntary.  The   question  at   issue  as  to  whether  the resignation was  voluntary was  a matter  of inference to be drawn  from   other  facts.   The  question   involved   was essentially one  of fact.  It cannot  be questioned that the Government undoubtedly  had the jurisdiction to draw its own conclusions upon the material before it.      In the view that we take of the case, the submission of the learned  counsel for the appellant based on the majority decision in Union of 497 India v.  Shri Gopal  Chandra Misra  & Anr.  does not really arise. It  is urged  that it  is open  to a civil servant to tender his  resignation on  a prior date to take effect on a subsequent date specified and, therefore, it could always be withdrawn before  the expiry  of such  date. There can be no dispute with  the proposition,  but the  decision  on  which

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reliance is  placed is clearly distinguishable on facts. The letter addressed  by Satish  Chandra J.,  as he then was, to the President  signifying his  intention to demit the office of a  Judge was  couched in  entirely different language. It ran thus :           "I beg  to resign my office as Judge High Court of      Judicature at Allahabad.           "I will  be on  leave till  31st of July, 1977. My      resignation shall be effective on Ist of August, 1977." The Court  in construing  the words  ’resign his  office’ in proviso (a)  to Art.  217(1) of the Constitution held that a High  Court   Judge’s  letter  addressed  to  the  President intimating or  notifying his  intention to resign his office of a  Judge on  a future date, does not and cannot sever him from the  office of  the Judge,  or terminate his tenure. It may be  conceded that  it is  open to  a servant to make his resignation operative  from a  future date  and to  withdraw such resignation  before its  acceptance. The question as to when a  Government servant’s  resignation becomes  effective came up  for consideration  by this  Court in  Raj Kumar  v. Union  of  India.  It  was  held  that  the  services  of  a Government servant  normally stand  terminated from the date on which  the letter  of  resignation  is  accepted  by  the appropriate authority,  unless there is any law or statutory rule governing  the conditions  of service  to the contrary. There is  no reason  why the same principle should not apply to the case of any other employee.      We  are,  however,  constrained  to  observe  that  the Government acted  in breach  of the rules of natural justice inasmuch as  there was  on its  part non-compliance  of  the requirements of  cl. (1)  of sub-s. (2) of s. 39 of the Act, which reads :           "39(2)  On   receipt  of   any  such  appeal,  the      appellate authority shall, after-           (i) giving  the parties  an opportunity  of making      their representations,           (ii) .............  (iii).............. make  such      order as it deems just and equitable." 498 It is  contended on  behalf of  the respondent that the High Court instead of resting its decision on merits, should have directed the  Government to re-hear the appeal under s.20 of the Act.  It is  submitted that there was a duty cast on the Government to  hear the  respondent since the Addl. Director of Technical  Education had  on the  basis of  the  evidence adduced, come  to a  definitive finding  that the  letter of resignation submitted by the appellant was voluntary, before it  came  to  a  contrary  conclusion.  The  contention  has considerable force. It is needless to stress that ordinarily the Government  must, in  all such  cases, as  a  matter  of course, give  the parties  the opportunity  of making  their representations before taking a decision.      In our  judgment it  would  however,  really  serve  no useful purpose  in remitting  the appeal  in this particular case to the Government for a re-hearing. It is not seriously disputed before  us that  the charges  levelled against  the appellant were  not of  such a  nature as  would  merit  his dismissal from  service. On  the contrary,  it can easily be visualised that  even if  the appeal  were sent  back to the Government, it  would either  exonerate the appellant or may let him off with a minor penalty. The better course would be to restore the order of the Government for the reinstatement of the  appellant in service, having regard to the facts and circumstances of the case.      There still  remains the  question of back-wages. It is

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sought to be urged on behalf of the appellant that upon such reinstatement he  would be  entitled under the terms of sub- s.(1) of  s.40 of  the Act  to all  his arrears  of pay  and allowances. We  are afraid, we can make no such direction in this appeal.  There is  nothing on  record to  show that any such appeal  has been  filed by  the respondent. Sub-section (1)  of   s.40  makes  deposit  of  arrears  of  salary  and allowances upon  reinstatement by  the  appellate  authority referred to  in s.20  of the  Act, a  pre-condition  to  the preferment of  an appeal  by the management under s.22. Only when such  an appeal  is preferred  by  the  management  the Tribunal is  invested with  jurisdiction to make a direction under sub-s.(1)  of s.40  that the  management shall deposit the arrears  of pay  and allowances  due  to  the  appellant within such  time as  it directs.  In that  event, it  is of course, open  to the management to raise a dispute according to sub-s.(3)  of s.40  of the  Act as  to the  amount to  be deposited under  sub-s.(1). In  the instant  case,  however, since there  is no appeal filed by the respondent under s.22 of the  Act, the  question of making a direction in terms of sub-s.(1) of s.40 of the Act does not arise.      It was,  however, open to the Government while allowing the appeal preferred by the appellant under s. 20 of the Act to make a 499 direction not  only  for  his  reinstatement  but  also  for payment of  all his arrears of pay and allowances. The words ’make such order as it deems just and equitable’ read in the context of cl.(iii) thereof :      "(iii) considering  all the  circumstances of the case" occurring in  sub-s.(2) of  s.39 of the Act, are wide enough to include the power to make such a direction. Normally, the reinstatement  of   a  person  in  service  should  carry  a direction for  payment of  his back-wages. We regret to find that the Government has made no direction in that behalf. We are, therefore,  constrained to  remit  the  matter  to  the Government.  While   adjudicating  upon  the  claim  of  the appellant  to   payment  of  all  his  arrears  of  pay  and allowances, the  Government shall give an opportunity to the respondent to  have its say in the matter. The respondent is entitled, as  a matter  of law.  it adjustment  of  equities between the  parties by an account being taken of the salary earned by  the appellant  elsewhere or of any income derived by him  from any  source whatsoever, between the period from September 19,  1976 till  the  date  of  reinstatement.  The appellant had  a duty  to mitigate his loss and it cannot be that  during   the  aforesaid   period  he   remained   idle throughout.      In the  result, the appeal succeeds and is allowed. The judgment of the High Court is set aside and the order of the State Government  for  reinstatement  of  the  appellant  in service is  restored. We  remit the appeal to the Government to decide as to whether the appellant is entitled to all his arrears of  pay and  allowances upon  his  reinstatement  in service, and direct that while dealing with the question, it shall afford  the parties full opportunity to raise all such contentions as  they may  be advised and lead their evidence thereon, for  determination of  the  amount  payable.  There shall be no order as to costs. S.R.      Appeal allowed and matter remitted to Government. 500