Ashok Bhushan, J. - (1.) This is a writ petition filed by Anand Kumar Tiwari praying for quashing the order of the State Public Services Tribunal, Lucknow dated 17.12.1996. Petitioner has further prayed for a writ of mandamus directing the respondents to treat the petitioner in service as Constable in the U. P. Police. Facts of the case as emerge from the pleadings of the parties are :
(2.) Petitioner was recruited as a Constable in 1974 and was lastly posted at Jaunpur. Petitioner's elder brother died at his village on 11.9.1984. The death of elder brother of petitioner had a serious effect on his mind. Petitioner claimed in the writ petition that he prayed for leave and when the authorities did not grant him leave, he submitted his resignation on 27.10.1984. Petitioner thereafter on 2.11.1984 submitted an application for grant of leave for period of one month. The said application has been annexed as Annexure-1 to the writ petition. In the leave application, petitioner stated that the acceptance of resignation of the petitioner will take sometime and petitioner has to go to his home for sowing his crops, hence he should be granted one month leave. Petitioner has further stated in will petition that he sent another application on 21.11.1984 praying that no action be taken on his resignation dated 27.10.1984. The said application is annexed as Annexure-2 to the writ petition, which was claimed to have been sent under certificate of posting. A copy of certificate of posting is annexed as Annexure-3 to the writ petition. Petitioner stated that he continued to remain under treatment of a Doctor till 27.4.1989 and could report at Jaunpur on 28.4.1989, but he was not allowed to join on the ground that he is no more in service. Petitioner thereafter filed a claim petition No. 179/V/HM3/89 in the U. P. State Public Services Tribunal, Lucknow. In the claim petition, the petitioner reiterated that after submitting his resignation on 27.10.1984, he wrote to the Superintendent of Police a letter dated 21.11.1984 withdrawing his resignation. Petitioner in the claim petition took the ground that resignation until accepted by the concerned authority, is nullity and petitioner can withdraw before communication of the orders thereon ; hence he is entitled to join his duties and be treated to be in continuous service. A written statement supported by an affidavit was filed by Superintendent of Police, Jaunpur before the U. P. Public Services Tribunal. In the written statement, it was stated that the petitioner has submitted his resignation voluntarily. Petitioner's resignation was accepted nine days after expiry of his one month's leave vide order No. R-389/84, dated 11.12.1984. It was further stated that the aforesaid order dated 11.12.1984 was communicated in two copies to the Superintendent of Police, Bhojpur, Bihar with the request to get it served on the petitioner. It was further stated that Superintendent of Police, Bhojpur sent a report that person of the name of petitioner does not live in the village but he lives outside, his father also lives outside. The letter was returned with the aforesaid report regarding service on the petitioner. In his written statement, Superintendent of Police has categorically stated that the letter dated 21.11.1984 was never received in the office of Superintendent of Police, Jaunpur. It was stated that after sending his resignation on 27.10.1984, the petitioner again sent a letter reiterating his request of resignation. Petitioner filed a rejoinder-affidavit to the written statement in which there is no specific reply of paragraph 3 of the written statement in which it was stated that resignation was accepted vide order dated 11.12.1984. Paragraph 10 of the written statement contains the allegation that letter of acceptance of resignation sent on 11.12.1984 was returned back with the report of Superintendent of Police. Bhojpur that petitioner 19 not residing in the village, has also not been specifically denied. Public Service Tribunal after considering the evidence of both the parties recorded following findings : (i) Petitioner has not shown any receipt of the office of opposite parties or signatures of any official in token of the letter of withdrawal having been received which is being denied categorically by the opposite party. The certificate of posting dated 21.11.1984 filed by the petitioner, does not conclusively prove that it was only the letter of withdrawl of resignation which has been sent through it. (ii) Alleged application submitted by wife of the petitioner has been denied by the opposite parties. The petitioner has not shown any receipt of they having been received in the officer of opposite parties. In view of there being no evidence on behalf of the petitioner and denial by opposite parties, the case of the petitioner cannot be accepted. (iii) The Superintendent of Police did not accept the resignation during the leave period of the petitioner and did so only when he did not turn up for nine days after the expiry of leave. These facts also establish that the Superintendent of Police and other officers had sympathy with the petitioner and were not biased against him. That being the position if the petitioner would have withdrawn his resignation during his leave period he would have certainly been allowed to do so.
(3.) Counsel for the petitioner Shri S.K. Verma, Senior Advocate assisted by Shri Sidharth Verma submitted in support of the writ petition that petitioner was never communicated the acceptance of his resignation, hence the resignation never became effective and he had every right to withdraw the same and resume his duties. Counsel for the petitioner further submitted that Tribunal did not record finding that acceptance of resignation was ever communicated to the petitioner, rather the pleading of respondent in the written statement proves that letter of acceptance was never received by the petitioner. In the above circumstances, petitioner's services never came to an end and he had right to resume his duties and the Tribunal having ignored to give the findings on vital issues the order is vitiated.;