' AIMAL MIAN, J.--This petition is directed against the order. Dated 4th September, 1983 passed by respondent No, 1.
' The relevant facts leading to the filing of the above petition are that the petitioner filed nomination paper from Local Council Unit No, 19, Municipal Committee, Mirpurkhas, in respect of the election which was scheduled to be held on 29th September, 1983. It seems that respondent No, 2, who is one of the contesting candidates from the above constituency filed objections to the nomination on the ground that the petitioner was in railway service till 7th August, 1982 and, therefore, was disqualified under clause (e) of subsection (2) of section 37 of the Sind Local Government (Second Amendment) Ordinance, 1983 (hereinafter referred to as the Ordinance). However, the above objection was overruled by the Returning Officer i,e, Additional District Judge, Mirpurkhas, by his order, dated 22nd August, 1983. Respondent No, 2 being aggrieved by the above order filed appeal No, 57-LBE/83, which was allowed by respondent No, 1 and the petitioner was held to be disqualified under the above provision of law. The petitioner being aggrieved by the above order has filed the present petition.
2. (a) In support of the above petition Mr. Wadood learned counsel for the petitioner has urged as follows :-
(i) That as admittedly the petitioner had submitted resignation on 8th August, 1977 and as admittedly the petitioner had contested Local Council Election in 1979, respondent No, 1 was not justified in declaring the petitioner as disqualified under section 37 of the Ordinance.
(ii) That respondent No, 1 had no power to make inquiry behind the back of the petitioner by referring the alleged letter, dated 21st November, 1982 to the Railways for verification without any opportunity to the petitioner.
(b) On the other hand Mr. Hatif Khudai, learned counsel for respondent No, 2 has contended as follows :--
(i) That the petitioner has been guilty of suppression of material facts from this Court as he has not produced all the relevant documents to indicate what, was the nature of inquiry, which was going on before the Railway Authorities till 1982 and that as the Railway authorities removed the petitioner from service through their letter, dated 21st November, 1982 on the ground of remaining absent without leave for more than five years the above resignation had no value in the eye of law.
(ii) That respondent No, 1 was entitled to refer the above letter, dated 21st November, 1982 to the Railway authorities to ascertain the authenticity of the same.
(c) Mr. Sayeed A. Shaikh, learned Advocate-General, Sind, who was present on Court notice has urged that respondent No, 1 acting under the Sind Local Council (Election) Rules was not required to make detailed inquiries or to decide the nice question of law, namely, whether in law the resignation was deemed to have taken effect from the date on which it was submitted or on any other date subsequent to the date of submission of the resignation.
3. Mr. Wadood in support of his contention has referred to rule 149 of Pakistan Railway Establishment Code Vol. I and the case of A. K. Fazalul Quader Choudhry v. Shah Nawaz and 2 others (I) and the case of Malik Masih v. The Election Tribunal/Civil Judge, Bhakhar and another (2).
Whereas Mr. Hatif Khudai has referred to rule 2014 of the Pakistan Railway Establishment Code, Vol. II, Reprint 1961.
4. It may be observed that it has not been denied nor it has been held otherwise by the Returning Officer respondent No, 3 or by respondent No, 1 the Commissioner, Hyderabad Division (acting as the appellate authority) that the petitioner had not contested Local Council Election in 1979. This factum has not even been denied by respondent No,
2. What has been denied by respondent No, 2 is that petitioner had not contested from the same constituency and not the fact that he had contested from the same city but from the different constitutency. From the letter which has been relied upon by respondent No, 2 and by respondent No, 1 in the order under appeal seems that the factum that the petitioner had submitted his resignation has also not been denied. It has also not been denied that he had not attended duties with effect from 8th August, 1977. In this view of the matter, the question which requires consideration is, as to whether in law the resignation which was tendered by the petitioner on 8th August, 1977 was deemed to have taken effect on its submission or on the expiry of a reasonable period or the Railway authorities had the option not to accept the above resignation and to dismiss the petitioner after the expiry of 5 years on the ground that he remained absent from duty for over five years. It may be pointed out that there is no rule in the Railway Manual providing that till the acceptance of resignation a railway employee who is not gazetted officer, shall be deemed to be in service and was required to attend his duties till the acceptance of his resignation. In this regard reference may be made to rule 149, which deals with the question of resignation inter alia by a non-gazetted employee of the Railway which reads as follows : "249. Resignations.-(1) In no circumstances shall the resignation of a railway servant whose conduct is under investigation be accepted without the sanction of the authority competent to dismiss him. In cases in which a railway servant has committed an offence for which the penalty is dismissal or removal from service, no suggestion should be made to him to tender his resignation.
(1) PLD 1966 SC 105 (2) 1982 CLC 1693
(2) Subject to the provisions of clause (1), the resignation of gazetted officers, other than those holding administrative posts, serving on railways may be accepted by the General Manager. The acceptance of resignation of all other gazetted officers shall require the sanction of the Governor- General. The retirement of all gazetted officers on Pakistan Railways shall be reported to the Railway Division.
(3) Subject to the provision of clause (1) the resignation of a nongazetted railway servant may be accepted by the authority competent to fill the post held by him at the time of resignation."
' It may be observed that under sub-rule (3), it has been provided that the resignation of a non- gazetted railway servant may be accepted by the authority competent to fill the post held by him at the time of resignation. It may also be pertinent to make a reference to rule 2014 relied upon by the learned counsel for respondent No, 2 which reads as follows :- "2014. (F. R. 18) Continuous absence from duty.--Unless the Governor-General in view of the special circumstances of the case shall otherwise determine, after five years continuous absence from duty, elsewhere than on foreign service in Pakistan, whether with or without leave, a railway servant ceases to be in government employ."
' In our view the above rule 2014 has no relevancy. The above rule merely provides that if a railway employee remains absent without leave for a period of five years, he shall cease to be an employee after the expiry of five years. It does not deal with the question whether a resignation submitted by a non-gazetted officer like the petitioner, who was working as a fireman, could have been kept pending for a period of five years without any cogent reason.
5. (a) Reference may also be made to the above Supreme Court case, reported in PLD 1966 Supreme Court 105, in which the Hon'ble Supreme Court while construing Article 107 of the late Constitution, 1962 held that letter of resignation which complies with the conditions mentioned in that Article would automatically take effect and would not require any acceptance from any authority. The above case has no direct application to the instant case as we are not construing any railway rule parallel to Article 107 of the late Constitution 1962.
(b) As regards the second case relied upon by Mr. Wadood reported in 1982 CLC 1693, it may be observed that a Division Bench of the Lahore High Court while dealing with the question of disqualification for contesting a Local Council Election held that the petitioner was no longer in service after he submitted his resignation alongwith depositing of one month salary in lieu of one month notice under rules and, therefore, he was not a civil servant on the date of his nomination.
The petitioner's petition was allowed and rejection of nomination paper by the Returning Officer was held to be illegal.
6. It was also contended by Mr. Hatif Khudai that since the petitioner's resignation was conditional as referred to in the above letter, dated 21st November, 1982, it could not have been accepted. In order to appreciate the above contention, it may be advantageous to reproduce hereinbelow the resignation which according to the petitioner he had submitted on 8th August, 1977, which reads as follows :- "To, The Divisional Superintendent, Pakistan Railways, Karachi.
Sir, ' It is respectfully submitted that 1 was serving as Fireman since 1958 in this Department. My dues are not clear so far. I had to face hardship. Accounts people are not helping me at all. I am fed-up with this running around. I know that there is no hope of getting justice from anywhere. 1f even tried to see you but all went in vain.
That is why I have decided to resign immediately from my job and request that all my dues may kindly he cleared as soon as possible.
An early action and reply is requested.
Yours obediently, Dated : 8th August, 1977. (Sd.) Abdul Samad Khan."
' A plain reading of the above-quoted resignation letter indicates that the only request, which the petitioner had made was that his dues should be cleared as early as possible but the resignation submitted by him was unconditional. We are inclined to hold that in the absence of any rule in the Railway Manual providing that till the acceptance of the resignation of a non-gazette railway employee he shall be deemed to be in service and/or shall continue to attend to his duties, the resignation in question either would take effect immediately on its receipt or at the most it can be argued that it would take effect on the expiry of a reasonable period, which could not have been more than one mouth.
' In this regard reference may be made to some observations from Vol. 77 of the well-known treatise, namely, Corpus Juris Secundum 1965 Edition on the words "resign and resignation", which read as follows :- "Resign."--To give up ; to surrender by a formal act ; to yield ; to relinquish ; to give up one's office or position ; to withdraw from. The word "resign". In its ordinary and usual sense, imports a voluntary act, and has been held not to include the act of one whose continuance in a position has been terminated by death or by induction into the armed forces under the Selective Service Act.
"Resign" has been held equivalent to, or synonymous with, "abandon" see 1 C.J.S. p. 3 note 53, "decline" see 26 C.J.S. p. 41 note 38, "renounce" see 76 C.J.S. p. 1166 note 27, and "withdraw".
' It has been distinguished from "expel" see 35 C.J.S. p. 206 notes 902, 90, 3."
"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 as meaning the act of resigning or giving up, as a claim, possession, or position.
It may be noticed that resign or resignation is a voluntary act, to give up ; to surrender by a formal act ; to yield ; to relinquish ; to give up one's office or position. An unwilling employee cannot be forced to continue/ in service against his will in the absence of any provision in an enactment) or a statutory rule.
7. As regards Mr. Sayeed. A. Shaikh, learned Advocate-General, Sind's contention that respondents Nos. I and 3 are not supposed to go into nice questions of law, while determining the question of disqualification of a candidate, it may be observed that the Returning Officer who was an Additional District Judge, had taken the view that the petitioner was not disqualified and, therefore, accepted his nomination paper. The appellate authority on the basis of the above letter, dated 21st November, 1982 produced by respondent No, 2 held that since the petitioner was removed from service by the railway, with effect from 7th August, 1982 he was deemed to be in service. In our view, since the factum that the petitioner had tendered resignation in 1977 was even admitted in the above letter, dated 21s November, 1982 relied upon by respondent No, 2, respondent No, 1 could not have set aside the order of the Returning Officer i,e, respondent No, without going into the question, whether the above resignation could have been withheld by the railway authorities for no reason for a period of more than five years. It may be pointed out that there was no charge of misconduct against the petitioner except that he remained absent since 7th August, 1977 i,e, from the date of submission of the resignation.
8. We, therefore, allow the above petition and declare the impugned/ order as without lawful authority and of no legal effect. The respondents) are restrained from acting upon the above order.
Respondent No, 3 shall allow the petitioner to contest the election in case the symbol allocated told him has been printed on the ballot-papers.