' CH. HASAN NAWAZ (MEMBER).--- This judgment is concerned with the disposal of an appeal under section 4 of the Service Tribunals Act, 1973, filed by the appellant who had been serving with the respondents as Stenographer Grade 1, after having been recruited as such on 14-1-1978.
2. Facts in the background are not in dispute: The appellant submitted his resignation (Annexure- C) on 1-2-1983 on the ground that he was unable to continue because of family circumstances. It was requested that the resignation "may kindly be accepted on 24 hours' notice basis with effect from 1-2-1983 by adjusting earned leave at my credit against the notice period."
3. By letter dated 22-3-1983 (Annexure-D), the Director Training to whom the resignation had been addressed, informed that it had not been accepted by the Chief Engineer, S&GA, Lahore, because he had not informed the Authority fifteen days before its submission in accordance with the rules and that his "casual leave could not be considered as the period prior to notice". He was accordingly directed either to attend the office and get his record regularized as desired by the Authority or deposit one month's salary, if he was not going to serve the Authority with a notice in accordance with the existing rules, failing which ex parte action was to be taken against him.
4. On 20-1-1986, after the lapse of about three years, during which period the appellant claims to have remained occupied with the treatment of his father and wife at Islamabad, Lahore and Karachi, he sent letter (Annexure-E) to the Chief Engineer, Services and General Administration WAPDA, where it was requested that his absence may be treated as leave without pay and necessary orders may be issued allowing him to join his duty. It was further requested that he may be appointed as Stenographer Grade 1, in case the prayer made by him fails to find favour with the Authority.
5. This letter having gone without any response, on 20-2-1986 he addressed another letter (Annexure-F) to the Director-General, S&GA, WAPDA, (respondent No,2) praying that he may be allowed to withdraw his resignation and orders for his posting may be issued at the earliest possible opportunity. He said in this letter that his resignation had not been accepted by the concerned Authority, in accordance with the information received by him.
6. On 22-4-1986, after the aforementioned letter regarding withdrawal of resignation had been received by the Director-General, a letter (Annexure-G) was issued to the appellant informing him that the competent authority had been "pleased to accept the resignation with effect from 31-1- 1983 (A.N)". On 8-5-1986, after having received letter dated 22-4-1986, the appellant made a representation (Annexure-H) to the Director-General (respondent No,2) requesting that his case may be reconsidered in the light of Rules and standing instructions on the point and that his prayer for withdrawal of resignation may be granted. It was pleaded in this representation that acceptance of resignation after its withdrawal did not have the support of rules and standing instructions on the subject. It was further pleaded that it could not have been accepted with retrospective effect.
7. By letter dated 29-6-1987 (Annexure-J) the appellant was informed that his representation had not been accepted; which led him to the Tribunal with the present appeal where the relief sought is that orders dated 22-4-1986 and 29-6-1986 rejecting his request for withdrawal of resignation may be set aside with the direction that the appellant be reinstated in service.
8. The appeal was mainly opposed on the ground of limitation. On facts, the defence was that orders dated 22-4-1986 were legally passed by the competent authority and were, therefore, unexceptionable, for it was clear from the record that the appellant had no intention to join duty after submitting his resignation and that in any case, he did not have the option to return after more than three years and ask for the withdrawal of his resignation.
9. Before dealing with the real issues involved in the matter, I take notice of the appellant's pleadings regarding the circumstances leading him to the submission of resignation from service on 1-2-1983. It is said that his father had an attack of Shiatica, as a result of which he could not walk. He being the only male member of the family, nobody else could attend his father and get him medically treated. This obliged him to make application dated 30-12-1982 (Annexure-A) for two months earned leave which was refused. On 31-1-1983, he made an application for three days' casual leave from 1-2-1983 to 3-2-1983 after having received a message that the condition of his father had become serious and then left for his home on the evening of the same day. On 1-2-1983, he submitted his resignation because of compelling circumstances which obliged him to remain with his father for his treatment. During this period, his wife too had an attack of tuberculosis and he had to get her treated at Karachi. In their written statement, the respondents have denied that the appellant had any genuine reasons either for submitting his resignation or for remaining away from the office. It was pleaded that on numerous occasions in the past, he absented from duty on one pretext or the other and warnings were issued to him on many such occasions. Documents Annexures 'A' to 'F' with the written statement have been produced in support to show that the appellant was habitual absentee without permission and that exception was taken to his conduct by the competent authority on various occasions and that a warning was also conveyed to him through letter dated 18-11-1981.
10. I am of the view that the aforementioned pleadings are immaterial in so far as the main issues are concerned. A cursory application to these pleadings has, however, been considered necessary merely to create an occasion just for saying that they are irrelevant to the question involved namely whether the resignation could be accepted by the competent authority after it had been withdrawn. As it could be noticed from the arguments of the appellant's learned counsel, he seems to have made an effort to show that his resignation was involuntary and that he was compelled by the circumstances to resort to this course. On the other hand, the respondents have taken pains to show that he never wanted to serve and that the ailment of his father was only a lame excuse for submitting resignation from service, which for all intents to purposes was a voluntary affair. My approach to this aspect of the matter is that under the circumstances of this case, the question whether the resignation was voluntary or otherwise is quite immaterial and bears no relevancy to the real questions in controversy between the parties.
11. As already seen, there is no dispute about the fact that the resignation was accepted by the competent authority by order dated 22-4-1986 (Annexure-G) after it had been withdrawn through application dated 24-2-1986 (Annexure-F). I do not think this aspect of the matter requires a detailed analysis and this is in view of the fact that the respondent's learned counsel did not lay any particular stress on whether the resignation could be accepted after its withdrawal. In actual fact it would not be wrong to say that it is not the respondents' case that respondent No,2 was legally competent to accept the resignation after it had been withdrawn. Irrespective of this situation, however, a reference may be made to PLD 1958 Karachi 75 in support of the view that a resignation could be withdrawn or recalled before its acceptance by the competent authority. In this case it was laid down that it is well-established rule of law that a resignation could be withdrawn or recalled before its acceptance by the competent authority and that this view is indirectly supported by the observations of their Lordships of the Indian Supreme Court in a decision reported as AIR 1954 SC 584 (J. Ram v. Union of India) where it was laid down that 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 td give him the requisite permission to change his mind subsequently and ask for cancellation of the permission thus obtained.
12. The learned Judges of the appellate Court in Reichel v. Biship of Oxford (LVI) L T R (N.S.) 539 emphasized the same principle. Cotton L.J. While considering the case of a resignation observed that "undoubtedly no resignation is effectual until it has been assented to and approved by the Biship. "It was further observed that "as long as the resignation has not become binding by the assent of the Biship or ordinarily, so long can there be a revocation of the complete act; but, as soon as the resignation is complete by the assent of the Biship, then there is no locus poenitentiae; there is no power to recall". Lindley L.J. While dealing with a similar question made an observation that "speaking generally, resignation is revocable until it has been accepted by the Biship and when it is accepted by him, the living become void".
13. It was contended by the respondents' learned counsel during the course of his arguments, and I should say this is the crux of their case, that the resignation had already been accepted before its withdrawal on 24-2-1986. Reliance has been placed on letters dated 22-3-1983 (Annexure-D) and 14-4-1983 (Annexure-G with the written statement) which according to the learned counsel amounted to acceptance of resignation. Letter dated 22-3-1983, makes the following reading:-- "You are hereby informed that your resignation has not been accepted by Chief Engineer, S&GA, Lahore for the reason that you had not informed Authority 15 days before your resignation as per rules and your casual leave could not be considered as the period prior to notice.
' You are, therefore, directed to either attend this office and get your record regularized as desired by Authority or deposit one month salary, if notice is not being served by you as per existing rules, otherwise ex parte action will be taken against you."
14. In view of the emphasis on letter dated 14-4-1983, it also deserves a detailed notice. It is to the following effect:- "Ref: Your application dated 1-4-1983 addressed to the Director (Training) WAPDA, Lahore, on the subject cited as above.
' You are directed to deposit one month's pay in lieu of notice period prior to acceptance of your resignation from WAPDA service, as per Pakistan WAPDA Leave Rules for WAPDA Employees, 1982, the earned leave at your credit cannot be adjusted against the notice period for resignation. You are further directed to submit the clearance certificate from the concerned WAPDA Offices."
15. It was argued by the respondents' learned counsel on the basis of this letter that the resignation had not been refused by the competent authority and that it was not specifically accepted because he had failed to observe certain formalities, in that he failed to inform the Authority fifteen days before the resignation in accordance with the rules. He was directed to join the office and get the record regularized as desired by the Authority or deposit one month's salary if he was not willing to serve a notice in accordance with the existing rules. The learned counsel pointed out that through letter dated 14-4-1983, he was directed to deposit one month's pay in lieu of notice prior to acceptance of resignation in accordance with the Leave Rules of WAPDA Employees, 1982. He was also informed that in accordance with the Leave Rules, the earned leave at his credit could not be adjusted against the notice period for resignation. He was directed to submit a clearance certificate from the concerned WAPDA Office. The learned counsel's main stay is that these letters amounted to acceptance of resignation and that they expressed clear willingness on the part of the competent authority to accept the resignation. He contended that refusal was a mere way of expression and that he had in fact been asked to observe certain formalities before formal acceptance could be conveyed to him.
16. I am afraid it is not possible to agree. Whatever be the reasons with the competent authority for its inability to accept the resignation, the fact remains that it had not been accepted. I would rather say that the reasons which led the competent authority to show its inability to accept the resignation are wholly irrelevant and what is material in this case is that the resignation had not been accepted as conveyed to the appellant through letter dated 22-3-1983. May be that the competent authority had no objection to the submission of resignation and that it was in actual fact willing to accept it. This circumstance, as I have already pointed out, is all together insignificant and immaterial in so far as the question in dispute is concerned and what really mattered was the situation obtaining all through the period from 1-2-1983 to 24-2-1986, the date on which the resignation was withdrawn, and this situation was that the resignation was still pending for decision, no matter what were the reasons behind it. Since the resignation had not been accepted and the matter was still pending determination before the competent authority, nothing could prevent the appellant from changing his mind and recalling it from the Authority. It is not possible for me to be in line with the thinking that letters dated 22-3-1983, 14-4-1983 and 12-9- 1983 (Annexure-H) in any manner, amounted to acceptance of the resignation. I would rather say that it will be an outrage on the factual position to say that these letters had the effect of approving the resignation.
17. Reliance has also been placed upon application dated 23-10-1986 in support of the contention that approval of resignation made by the competent authority on 22-4-1986 was accepted by the appellant. In this application addressed to the Director-General (respondent No,2), he made a mention of the fact that his resignation was accepted on 22-4-1986 and that he was entitled to withdraw the amount lying in his E.P. Fund A/c No,42449 with the Authority. He requested that Budget and Accounts Section may be directed to order the release of the funds. Here again, I am of the view that the request made by the appellant has no bearing on the question whether acceptance of the resignation was legal. He could not be expected to know the correct legal position and in any case, the mere fact that he made a request for withdrawal of the E.F. Fund, would not necessarily amount to acknowledgment of the fact that the resignation had been legally accepted.
18. There is another aspect of the matter. Application dated 1-2-1983 (Annexure-C) bears out that the resignation had been addressed to the Director, Training WAPDA, Lahore who was admittedly not the competent authority. A reference may again be made to the case of Muhammad Khan v.
Pakistan PLD 1958 Karachi 75 where it was laid down that "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 office." In the present case, the resignation addressed to the Director, Training WAPDA instead of the Director-General, who was the competent authority, was not a resignation in the eye of law and, therefore, an ineffective document. In so far as I am concerned, the respondents have got no case and order dated 22-4-1986 accepting a non existing resignation addressed to an incompetent authority was ab initio void and a nullity in the eye of law.
19. The only other question which now requires determination is that of limitation. The argument on behalf of the respondents is that no departmental appeal being competent against order dated 22-41986, the appellant should have come to the Tribunal within 30 days of its communication and that the present appeal filed on 28-7-1986 is time-barred.
20. From the appellant's point of view, the facts are that he filed Representation/Review petition dated 8-5-1986 (Annexure-H) to respondent No,2 against order dated 22-4-1986 with the request that the matter may be reconsidered, because a withdrawn resignation could not be accepted.
This representation was finally refused and the factum of refusal was conveyed through letter dated 29-6-1986 (Annexure-J). If limitation be taken to have started running from this date, the appeal filed on 28-7-1986 will be within time.
21. The appeal is accompanied by an application for condonation of delay in case it be held that limitation had started running against the appellant with effect from the date of communication of order dated 22-4-1986. In this application it was pleaded that the appellant was under a bona fide misunderstanding that the appeal before the Tribunal would not be competent without a departmental representation, which was due to the fact that he had been living at Shakargarh in District Sialkot where expert legal advice was not available. It was pleaded that under the circumstances, there had been no wilful delay in approaching the Tribunal and that the mistake, if any, was honest and occasioned on account of circumstances of the case.
22. It was further pleaded that there have been instances where without being any provision for departmental remedy, the respondents have entertained and decided representations of the employees in their favour. Two such instances have also been quoted. On the basis of these precedents, it was contended by the appellant's learned counsel that delay in filing the appeal came about because of a bona fide belief that a representation was necessary before coming to the Tribunal to fulfil its jurisdictional 'requirements and that in any case, the circumstances do justify condonation of the delay.
23. I am of the opinion that there is substance in the pleadings of the appellant and that delay in filing the appeal deserves condonation under the circumstances stated by the appellant, particularly when the impugned order is void and a nullity. Reliance may be placed on Mst. Rehmat Bibi v. Punnu Khan and others 1986 SCMR 962 where it was held that if the impugned order was passed without hearing and notice to a party whose presence was otherwise necessary before the authorities concerned it would be a nullity in the eye of law and no question of limitation would arise.
24. Further, delay has been condoned not only by this Tribunal, but also by superior Courts under similar circumstances. Reliance may be placed upon M. Sarwar Maqbool v. WAPDA, Lahore 1987 PLC (C.S.) 84 where delay in filing the appeal came about because of the preference of review petition which was not competent against the order passed under section 17 (1-A) of WAPDA Act, 1958. Taking notice of the fact that the Authority had been encouraging review petitions, some of which were accepted after due consideration, the application for condonation was granted in the circumstances, in view of the fact that the Tribunal had been condoning delay in several other cases on similar facts. Reliance may also be placed on Province of Punjab v. Ikramul Haq and others 1986 SCMR 1994 where delay in filing the appeal before the Provincial Service Tribunal was caused because the appellant had been pursuing his remedy by means of an appeal before the Federal Service Tribunal in good faith. The explanation was considered by the Tribunal which condoned the delay under the circumstances in exercise of its discretion. It was ruled by the Supreme Court that no illegality or perversity was found in exercise of discretionary powers vested in the Tribunal and that exercise of such jurisdiction was not open to exception under the circumstances. In view of this legal position, the delay in filing the appeal in this case is condoned.
25. For the reasons mentioned above, the appeal is accepted and the impugned orders dated 22- 4-1986 and 20-4-1986 are set aside. The respondents will, however, be at liberty to initiate disciplinary proceedings against the appellant for his unauthorised absence from duty from the date of submission of his resignation till 24-2-1986, when he submitted an application for withdrawing his resignation. As the appellant's service did not come to an end with the submission of resignation, he was bound to attend the office till a final decision was taken by the competent authority on his resignation.
26. There will be no order as to costs.