2020 PLP (C (PLC(CS))

By this Intra-Court Appeal in terms of Section 3 of the Law Reforms Ordinance, 1972, the appellant has called in question order dated 20.11.2018, passed in W.P.No.13244 of 2017 by which the learned Judge-in-Chambers has dismissed the writ petition, assailing the legally and propriety of orders dated 27.01.2017 and 15.08.2017.

2. Learned counsel for the appellant has maintained that the moot point before the learned Single Judge-in-Chambers was whether the appellant's (purported) resignation from service was voluntary or did it tantamount to complaint/protest but this aspect of the case was not resolved in its true perspective in the impugned order.

3. Point raised needed consideration. At this stage, learned Law Officer entered appearance on behalf of the respondents, so we proceeded to decide this appeal as an admitted case, with the consent of learned counsel for the parties.

4. The appellant, who jointed education career as E.S.E. in year 2012, on 31-12-2016 submitted her resignation, which reads as under:--

5. The District Education Officer (EE-W), Khanewal/respondent No.4 vide order dated 27-1-2017 accepted the resignation w.e.f. 31-12-2016. Thereafter, on 27.02.2017, the appellant submitted request for withdrawal of her resignation, but the same was not adjudicated by the competent authority and in pursuance of order dated 17.05.2017, passed in W.P.No.7138 of 2017, the authority rejected the request/representation of appellant for withdrawal of her resignation in the following terms:- "Up shot of the above and what has been discussed and after perusal of written reply it is held that the petitioner willfully and knowingly submit her resignation through registered post. So, it is beyond any shadow of doubt that her resignation was received and accepted accordingly. Therefore, the undersigned is hereby Rejected the appeal/representation being devoid of merit".

6. Subsequently, the appellant assailed the above order passed by the District Education Officer (EE-W) Khanewal through the constitutional petition, but the same was dismissed by the learned Judge-in-Chambers vide impugned order dated 20.11.2018, while observing as under:- "

8. I have gone through all the judgments relied upon by the learned counsel for the petitioner, in particular, Syed Faisal Raza Gillani case which reflect that the Appellant submitted request for withdrawal of the resignation to the competent authority before the resignation was either accepted or pending. But in the present case the situation is totally different because the petitioner resigned from service on 31.12.2016 which was received to the authority vide diary No.125 dated 21.01.2017; the petitioner submitted application for withdrawal of her resignation on 27.02.2017. The record is daylight clear that the resignation of the petitioner was accepted vide Order No.461/Admn.II. dated 27.01.2017 w.e.f. 31.12.2016 so the petitioner tendered her request for withdrawal of resignation after the resignation was duly accepted almost one month prior. Therefore, the facts and circumstances of the case in hand are distinguishable from that of the cited case law, as such the same cannot be relied upon".

7. Before proceeding further, to appreciate pro and contra submissions made by the respective counsel for the parties, we deem it appropriate to examine the definition of "resignation:- Black's Law Dictionary (Sixth Edition) defines resignation as under:- Resignation. Formal enouncement or relinquishment of an office. It must be made with intention of relinquishing the office accompanied by act of relinquishment. (underlining is ours) In Corpus Juris Secundum, Volume LXXVII at page 77 "Resignation" has been defined as follows:- Resignation.

It has been said that "resignation" is a term of legal art, having legal connotations which describe certain legal results. It is characteristically the voluntary, surrender of a position by the one resigning made freely and not under duress and the word is defined generally. (emphasis supplied by us). In case reported as "Muhammad Khan v. Pakistan through Secretary, Ministry of Interior Karachi" (PLD 1958 Karachi 75) definition of "Resignation" and its components have been given as under: "Resignation is the act of giving up. It is the act of an officer by which he declines his office and renounces the further right to use it. To constitute a resignation it must be unconditional, addressed to the prescribed officer and there must be an intention to relinquish the remaining portion of the term of his office."

8. The scanning of record makes it crystal clear that before acceptance of resignation of the appellant by the competent authority, it had not examined the "purported" resignation and the grounds highlighted therein. The appellant was not summoned or interviewed by her immediate, boss or competent authority to ascertain that her decision for resignation was voluntary or under the compelling circumstances, i.e. non-congenial atmosphere and harsh conduct of the high-ups, which forced the appellant to submit the resignation and that the resignation was for all intents and purposes a complaint against the officials/officers of Education Department for non-redressal of appellant's grouses and grievances. As such, we are of the considered view that while processing and accepting the resignation of the appellant, neither the appellant's immediate boss nor the competent authority had bothered to examine these pivotal points, thus, the competent authority failed to discharge the legal obligation, which was required from the competent authority before passing the impugned order. The competent authority had not taken into consideration the fact that in such era of unemployment, dearness and economic crises, an employee, who has no technical skill and bright prospective of re-employment or running an independent business/trade etc. would submit her resignation as first choice or would beseech for redressal of his/her grievances.

9. Of course, it is, the legal obligation of the senior officers so far as possible to provide better and congenial working environment, so that their subordinates may perform and discharge their duties according to their best abilities, and to the entire satisfaction of their immediate boss.

10. In case Muhammad Zahoor v. Registrar, Lahore High Court, Lahore and another (2005 SCMR 1194), following test was laid down to determine that the resignation of an employee was voluntary or not:- "... in determining whether a person has resigned or has been compelled to resign the correct test is to find out whether the acts and conduct of the servant evince an intention no longer to be bound by the contract, or whether the conduct of employer amounts to a basic refusal to continue the servant on the agreed terms of employment". (emphasis supplied by us)

11. In view of the above deliberations, we are clear in our minds that while proceeding to process and accept the "purported" resignation of appellant, the competent authority had not discharged its legal obligation and had not satisfied itself that the resignation of the appellant was voluntary or not or that the purported resignation was voluntary decision of the appellant for quitting the job or was in fact a protest as highlighted in the resignation.

12. The next legal question is that whether, after submission of resignation, before its acceptance and communication of order to an employee, he/she has a right to pray for the withdrawal of resignation, this question has already been dealt with by this Court in I.C.A.No. 27 of 2018 (Bahawalpur Bench).

13. As noticed in earlier paras of the judgment, the competent authority had also not taken into consideration the grounds agitated in subsequent petition for permission of withdrawal of resignation and a mechanical manner dismissed the same. Whereas, it was necessary for the competent authority to determine that the resignation was withdrawn by the appellant before communication of its acceptance to the appellant or subsequent thereto.

14. When confronted with the above illegalities and infirmities in the impugned orders passed by the respondents, which could not be rightly considered and appreciated in the order passed by the learned Judge-in-Chambers, the learned Law Officer could not defend the orders impugned herein.

15. As such, with the concurrence of learned counsel for the parties, this I.C.A is disposed of in, the terms that copy of the writ petition along with all annexures be remitted to the Chief Executive Officer, Khanewal with the direction to treat it as representation of petitioner and decide it afresh in the light of following formulated questions:- (i) Whether the resignation was voluntary or had been submitted as a protest/complaint, in the circumstances painted in the resignation (reproduced in Para No.4 supra). (ii) Whether the resignation was withdrawn before communication of acceptance of resignation to the appellant. The Chief Executive Officer, Khanewal is directed to decide the representation of the petitioner within 30 days from the date of receipt of order of the court, after affording right of audience to the appellant and departmental representative, by passing a lawful order on merits, as per law/rules, the case reported as Muhammad Zahoor v. Registrar, Lahore High Court, Lahore and another (2005 SCMR 1194), equity and principles of natural justice, without being influenced by the orders impugned herein.

6. For that purpose the parties will appear before the Chief Executive Officer Khanewal on 28.03.2019. ZC/N-24/L Order accordingly.