' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- This petition has been filed for leave to appeal against judgment dated 10-4-2003 of Punjab Service Tribunal (hereinafter referred to as the Tribunal).
2. Precisely stating, facts of the case are that petitioner joined the office of District and Sessions Judge, Gujranwala as far back as in the year 1987. It is alleged that on 25-9-2002 he tendered his resignation from service, which was statedly drafted by one Abdul Sattar, Junior Clerk of the Sessions Court. Respondent No,2, being competent authority accepted his resignation with immediate effect, subject to the condition that he will deposit one month salary with the Nazir of the Court i,e, District and Sessions Judge, Guiranwala. Subsequent thereto on 7-10-2002, an appeal was filed by the petitioner before the Registrar, Lahore High Court, Lahore-respondent No,1 wherein he alleged that resignation was not tendered by him voluntarily. Contents of the appeal read as under:-- "I, Muhammad Zahoor son of Fateh Muhammad, ex-Naib Qasid, was serving in the Court of Chaudhry Asad Raza, District and Sessions Judge, Gujranwala. I was serving since March, 1987, with a spotless career.
(2) That on 25-9-2002, I was forced by the learned District and Sessions Judge, to resign under coercion failing which, I was threatened either to resign or I will he handed over to the police under a fake complaint against me. The learned Sessions Judge got resignation from me by force which was accepted on the same date i,e, 25-9-2002 (copy attached).
(3) It is worthy to mention that the resignation was not written by me rather it was got written by learned District and Sessions Judge by an official (Abdul Sattar, Junior clerk) and I was forced to sign the same.
(4) It is, therefore, prayed that I may be given an opportunity to prove my case that I never resigned voluntarily but it was obtained under duress. It is further requested that I may be provided personal hearing and be reinstated in service with all back-benefits."
3. Since no relief was given to the petitioner, therefore, he preferred an appeal before the Tribunal but without any success as the same has been dismissed vide impugned judgment, hence instant petition for leave to appeal. Relevant para. From the judgment for convenience is reproduced below:-- "(5) I asked the learned counsel for the appellant, as to why the District and Sessions Judge, Gujranwala put pressure upon the appellant to tender his resignation. Learned counsel for the appellant could not give me any reason after consulting the appellant. In the appeal filed before the Registrar, Lahore High Court, Lahore against the order dated 25-9-2002, appellant did not cite any reason why, the District and Sessions Judge, Gujranwala pressurized the appellant to tender resignation. In the appeal before the Tribunal I also do not find any reason given by the appellant, why the alleged mischief was committed with him. When the appellant himself is reluctant to give any reason which prompted the District and Sessions Judge, Gujranwala to persuade him to tender resignation it becomes crystal clear that the resignation was as a result of appellant's own free-will and volition. He shall not be allowed, now, to turn back and state that his resignation was forced.
There is no merit in the appeal, which is accordingly dismissed."
4. Learned counsel for the petitioner contended that the petitioner had served for a period of 15 years to the utmost satisfaction of his superiors as there is no adverse report against him. The competent authority pressurized him for submission of the resignation. This fact was disclosed by him immediately at the first available opportunity to next higher authority by filing an appeal but unfortunately the Tribunal without having looked into this aspect of the case in depth rejected his appeal. To strengthen his arguments, he contended that it is not the only case in which in such a manner the resignation was obtained but there were many other officials of the same Court who were compelled to tender resignation but ultimately their appeals were accepted. In this behalf he has made reference to cases of Irfan Latif Ahmad v. Registrar, Lahore High Court, Lahore (Appeal No,2322 of 2002), Muhammad Javed Gondal v.. District and Sessions Judge, Gujranwala (Appeal No,2862 of 2002), Muhammad Malik v. Registrar Lahore High Court, Lahore (Appeal No,3021 of 2002), Muhammad Riaz Shahid v. Registrar, Lahore High Court, Lahore (Appeal No,286 of 2003) and Shaukat Ali v. District and Sessions Judge, Gujranwala (Appeal No,2406 of 2003).
5. Mr. Nadeem Anwar, Junior Clerk appeared on behalf of the Registrar, Lahore High Court, Lahore and placed service record of the petitioner before us for our perusal. Similarly Mr. Abdul Sattar, English Clerk, Office of the District and Sessions Judge, Gujranwala appeared and stated that record is with the High Court.
6. On the other hand learned Assistant Advocate-General, Punjab contended that as the petitioner had tendered his resignation, therefore, in view of judgment of this Court in the case of Dr. Muhammad Munirul Haq v. Dr. Muhammad Latif Chaudhry 1992 SCM R 2135, the voluntariness of submitting the resignation cannot be questioned unless it is proved otherwise by the petitioner himself. According to her, despite questioning by the Tribunal, the petitioner failed to disclose the reason as to why he was forced to tender his resignation after serving 15 years, therefore, the presumption would be that the resignation was submitted voluntarily, as such, according to her, he is not entitled to any relief.
7. We have heard petitioner's counsel as well as the respondents through their representatives and the learned Assistant Advocate-General at length and have also gone through the impugned judgment as well as the order passed by District Judge, Gujranwala accepting resignation of the petitioner with immediate effect on 25-9-2002.
8. It is true that the petitioner in the resignation letter dated 25-9-2002 categorically mentioned that he was no more interested in the service but to ascertain whether it was a statement which was given voluntarily by the petitioner examination of attending circumstances, which have come on record is necessary. Firstly, it is to be noted that the petitioner himself had not drafted the resignation; secondly, in the resignation he had not stated that the resignation may be accepted with immediate effect because a low paid employee serving as Naib Qasid would ordinarily never desire for acceptance of his resignation subject to deposit of one month salary. In all fairness, the competent authority should have postponed the acceptance or otherwise of the resignation for some time because when there was no request in this behalf, there was no necessity to show haste in accepting his resignation; thirdly, in the appeal dated 7-10-2002, relevant contents wherefrom have been reproduced hereinabove, the petitioner in so many words stated that he had not voluntarily tendered the resignation but he was forced to do so with the threat that otherwise he would be sent to jail. Admittedly no comparison can be drawn between the powers of Sessions Judge qua a Naib Qasid, therefore, in view of such assertion the Registrar, Lahore High Court, Lahore-respondent No,1 had a legal and moral obligation to probe into the matter because it was a question of survival of a low paid employee; fourthly, same plea was repeated by the petitioner in the appeal filed by him before the Tribunal, but the Tribunal also, with utmost respects, did not care to analyse this aspect of the case at all.
9. Having taken into consideration above aspects of the case and having gone through the service record of the petitioner which has been produced for our perusal, no other conclusion can be drawn except, that there was no allegation of whatsoever nature of any insubordination against him. The Annual Confidential Reports of petitioner were also found satisfactory because the competent authority and Reporting Officer hid been grading him very good and good. It may be noted that along with this petition, an affidavit has been tiled by the petitioner for the first time before us in which certain facts have been disclosed by him due to which Sessions Judge compelled him to resign from service, as he had informed allegedly about his habits to the Advocates but we do not like to ponder upon the same being indecent in character. Be that as it may, even if it is not considered and whatever we have discussed hereinabove, without experiencing any difficulty, inference can be drawn that the petitioner had not tendered his resignation voluntarily. In Abraham Reuben v. Karachi Municipality AIR 1929 Sindh 69 a test to detect voluntariness or otherwise of a resignation has been laid down. Similarly, this Court in the case of Dr. Muhammad Munirul Haq (ibid) has laid down following test:-- "(30) There is no dispute about the proposition advanced by respondent No,1 that a resignation has to be intentional and voluntary and as defined in Black's Law Dictionary it means "formal renouncement or relinquishment of an office. It must be made with intention of relinquishing the office accompanied by act of relinquishment". It is also correct that the totality of the circumstances have to be taken into consideration for drawing a conclusion whether the resignation tendered was voluntary or not."
10. Taking into consideration the principle laid down in the above judgment and in the judgment of Abraham (ibid), wherein it has been held that 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 the employer amounts to a basic refusal to continue the servant on the agreed terms of employment. In the latter case there is a wrongful dismissal and repudiation of the contract and the use of polite instead of peremptory language would not alter the conclusion. In our considered opinion, in the instant case the resignation was not tendered voluntarily, therefore, the Tribunal erred in law in not granting the relief to the petitioner.
11. As far as the precedents cited by the petitioner's counsel pertaining to the Court of District and Sessions Judge, Gujranwala noted hereinabove are concerned, need no discussion in view of above cited judgments.
12. Thus, for the foregoing reasons, petition is converted into appeal and allowed. Petitioner is ordered to be reinstated in service without back-benefits. However, the period of service during which he E remained out of job shall be treated on duty against leave accrued, if any, or leave without pay for the purpose of his length of service and future benefits.