' ABDUS SATTAR ASGHAR, J./MEMBER.--- This appeal under section 5 of the Punjab Subordinate Judiciary Service Tribunal Act, 1991 is directed against impugned Notification No.14- JOB(I)VI.J.1016 dated 17-1-2012 issued by the respondents whereby appellant's resignation was accepted w.e.f. 11- 1-2012. It also assails order dated 28-5-2012 issued by respondent whereby appellant's departmental appeal, under section 21 of the Punjab Civil Servants Act, 1974 against the Notification dated 17-1-2012 was dismissed.
2. Respondent No.1 has contested this appeal by filing written reply and contending that when a resignation tendered by a government servant is accepted and the acceptance is communicated to him it becomes final and that there can be no question of allowing him to withdraw the resignation; that the appellant of his own free will and consent in his own handwriting submitted his resignation on 11-1-2012; that the orders dated 17-1-2012 and 28-5-2012 passed by the Authority are in accordance with law.
3. Arguments heard. Record perused.
4. Brief facts for disposal of this appeal are that appellant joined the District Judiciary as Civil Judge on 3-5-1994 and promoted as Additional District and Sessions Judge on 13-10-2008. Appellant was working as Additional District and Sessions Judge Chunian on 5-I-2012 when his Court was inspected by learned District and Sessions Judge Kasur. During the inspection some files of decided cases were found in his Court wherein final judgments had neither been dictated nor typed or signed. Consequently learned District and Sessions Judge Kasur issued a show cause notice on 5-I-2012 to the appellant requiring him to submit written explanation in this regard.
Appellant submitted reply to the show cause notice on 6-1-2012 explaining that the orders/judgments in the decided cases could not be dictated by him as he remained under mental stress and pressure for some time due to some chronic domestic problems. Learned District and Sessions Judge Kasur transmitted the appellant's reply to the respondent/Authority where it was pending for consideration when the appellant submitted his resignation from service vide application No.6 dated 11-1-2012 in the following manner:--- "I have the honour to submit that due to some domestic problems, I am unable to continue with this illustrious service.
' I therefore submit my resignation herewith, with the submission to accept the same at the earliest."
5. Appellant's resignation was pending under consideration before the respondent/Authority when the appellant made another application No.7 dated 13-1-2012 to the Authority with the following submissions:--- "In continuation of my earlier application No.6 dated 11-1-2012 on the subject cited above, I have the honour to submit that prior to make any further proceedings on my hand written request to resign from service, my submission inter alia for the grant of a few days time (just 3-4 days) to clear the pending files, made through the reply dated: 6-1-2012 (original available in the office of the worthy District and Sessions Judge, Kasur where as copy appended herewith) may first be considered and I may further be honored to have an interview with the Hon'ble Authority. It is further requested that in the meanwhile, the worthy District and Sessions Judge, Kasur may kindly be directed to permit me to resume my duty. I shall remain thankful as ever."
' Record reveals that the application dated 13-1-2012 was received in the office of learned District and Sessions Judge Kasur on the same day through fax. Record also verifies that the learned District and Sessions Judge Kasur forwarded appellant's said application in original to the Registrar Lahore High Court Lahore vide diary No.141-P1 dated 13-I-2012. Record further transpires that appellant's resignation in original dated 11-1-2012 and his subsequent request dated 13-1-2012 both were placed before the Registrar on 16-1-2012. On the request for acceptance of resignation the Registrar recorded the remarks 'already under process place on relevant file' and forwarded the same to the office. Whereas on the appellant's application dated 13-1-2012 the Registrar merely put his initial and forwarded the same to the office. It is therefore crystal clear that the appellant's subsequent request dated 13-1-2012 did not come up before the Authority up till 17-1-2012 when the impugned notification was issued. It is settled law that resignation can be withdrawn or recalled before its acceptance by the Competent Authority. There is no explanation of the respondent that why the appellant's subsequent application dated 13-1-2012 was withheld and not considered before accepting the resignation vide impugned Notification dated 17-1-2012.
6. Besides it is pertinent to mention that appellant's earlier reply dated 6-1-2012 bearing his explanation that 'he remained under mental stress and pressure for some time due to some chronic domestic problems' was also pending before the Authority which too was not taken into consideration while accepting the appellant's resignation through the impugned Notification dated 17-1-2012.
7. Registrar's failure in placing the appellant's request dated 13-1-2012 before the Authority and undue haste shown in acceptance of his resignation vide impugned notification dated 17-1-2012 without taking into consideration the appellant's pending request dated 13-1-2012 therefore leads us to formulate the opinion that the appellant was denied his fundamental right of due process as guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
8. It is an established principle of law that resignation can be revoked or recalled before its acceptance by the competent Authority. In the case titled Reichel v. Biship of Oxford ((LVI) LTR (N.S.)
539) the learned Judges of the appellate Court emphasized the same principle. Cotton, L.J.
Considering the case of resignation observed:--- "Undoubtedly, no resignation is effectual until it has been assented to-approved- by the bishop.
As long as the resignation has not become binding by the assent of the bishop or ordinary so long can there be a revocation of the complete act; but, as soon as the resignation is complete by the assent of the bishop, then there is no locus paenitentiae; there is no power to recall."
' Lindley, L.J., while considering the same question observed as under:--- "Speaking generally, a resignation is revocable until it has been accepted by the bishop, and when it is accepted by him the living becomes void."
9. The moot point in this case is whether the request for acceptance of resignation was effectually recalled by the appellant. At this juncture it will be advantageous to take guidance from the dictum of Hon'ble Supreme Court laid down in the case titled Registrar, Lahore High Court Lahore v. Syed Javed Akbar and another (2007 SCM R 792). In the cited case Syed Javed Akbar respondent withdrew his resignation however his request for withdrawal was declined by the Authority. His appeal before the Service Tribunal was accepted. The Authority being dissatisfied preferred an appeal before the Hon'ble Supreme Court. The Hon'ble Apex Court dismissed the appeal lodged by the Authority. Relevant extract from the judgment of the Hon'ble Supreme Court reads below:--- "4. It is a settled law that a resignation can be withdrawn or recalled before its acceptance by the Competent Authority. This view is indirectly supported by the observations of their Lordships of the Indian Supreme Court in a decision reported in Jai Ram's case AIR 1954 SC 584. The relevant observation is as follows:- "It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but he can be allowed to do so, so long as he continues in service and not after it has terminated." (underlining is mine)
' The expression 'it is open to a servant to change his mind subsequently' used in the cited case of Jai Ram (supra) is of great importance. Keeping in view the above expression it is important to note that in the instant case appellant's request dated 13-1-2012 depicts a clear change in his mind with regard to submission of resignation. The appellant in his request dated 13-1-2012 categorically beseeched the Authority that prior to any further proceedings on his hand written request for acceptance of resignation from service his submission for D grant of 3-4 days time to clear the pending files may first be considered and he may further be honourd to have an interview with the Hon'ble Authority. He also requested to the Authority that learned District and Sessions Judge may kindly be directed to permit him to resume the duty. It clearly shows that the appellant intended to withdraw his resignation. In our considered opinion this is a case of withdrawal by conduct. In formulating this view we are guided by the dictum laid down by the Hon'ble Supreme Court in the case of Muhammad Khan v. Pakistan through Secretary, Ministry of Interior, Karachi (PLD 1958 (W.P.) Karachi 75). Relevant extract whereof reads below:- "It seems to us that under these circumstances the petitioner was entitled to withdraw his resignation and by his subsequent conduct had sufficiently indicated his intention to withdraw the same. In these circumstances the resignation did not become effectual."
10. For the reasons given above this appeal is allowed and the impugned Notification dated 17-1- 2012 and order dated 28-5-2012 passed by the respondents/Authority being illegal are declared inoperative and E thus set aside. The appellant is reinstated in service with all back-benefits. The intervening period from the date of issuance of impugned notification dated 17-1-2012 shall be treated as kind of leave due.