G. M. LODHA, J. - (1.) A 'hangover' of internal emergency of India in 1976, this writ petition is the result of half hearted relief given to an employee after 'change over' of the Government in 1977-78. A resignation obtained by duress, and coercion on refusal to undergo 'nas-bandi' vasectomy from, an Govt. employee, during emergency, is no resignation in the eye of law, is the 'pivot' of reasons for accaptance of this writ petition.
(2.) THE petitioner was a permanent railway servant in the non-gazetted class-Ill service. He was appointed on 12th of September, 1966. He was working as Fitter in the scale of Rs. 260-400/- in the Foundary department of Loco-workshoop at Ajmer and was drawing Rs, 430/- as per his pay-slip issued to him in the month of November, 1976. The allegation of the petitioner is that during the year 1976, respondent No. 2 was exerting pressure on the railway subordinate servants including the petitioner to get them sterlised by under-going 'nasbandi' operation and coercive methods were adopted towards the subordinate railway servants. Since September, 1976, the petitioner was being also forced to undergo 'nasbandi' operation and, since he was reluctant to do so, he was made subject matter of various types of tortures and threats. The petitioner was of the opinion that Nasbandi operations, sometimes in some cases proved fatal and in many cages they have adverse effects. He had in his mind the names of Shri Kishan, Ram Swaroop, both railway employ-ees and Bhura Ram etc. to support adverse effect of operations, and, therefore, he was not prepared to undergo 'nasbandi' operation at any costs. In these coercive conditions the petitioner was forced to resign. On 29-10-76, the Foreman of the Foundary shop under whom the petitioner was working reported the matter of refusal to undergo Nasbandi operation by the petitioner to the Production Engineer On this the Production Engineer showered his anger over the petitioner saying to him,'yah Sarkari Mahkama hai tere baabaa Ka karkhana nahin hai; naukari karna chahte ho to Nasbandi fouran aur abhee karane chale jao nahin to istiffa likh kar ghar, jakar baith jao. " At this juncture, the petitioner had no alternative but to submit to the dictates of his boss and as being directed he wrote a letter of his resignation mentioning his unwillingness for undergoing operation for Nasbandi as the reason for his resignation and handed it over to the Production Engineer. The Production Engineer on reading this letter became angry and then, another letter was got written at the instance and directions of the petitioner's boss and the same was handed over to the officials. This letter of resignation dated 29-10-76 was accepted and the petitioner ceased to be in the railway service from 6-12-76 vide Deputy Chief Mecahnical Engineer (Loco) Western Railway, Ajmer's letter dated December 4, 1976.
(3.) THE petitioner's case is that fas soon 'as the emergency was lifted, he applied to respondent No. 2, requesting him for cancellation of his resignation and taking him back on duty. Inspite of the representations dated 27-5-77 and 27-9-77, the petitioner was not taken back on duty. It was in the above circumstances that the petitioner has filed this writ application with the following prayers: - "it is, therefore, humbly prayed that this Hon'ble Court be pleased to quash letter of resignation dated 29-10-1976 (Annexure "3") and letter dated 4-12-76 (Annexure "6") accepting the petitioner's resignation and direct the respondents to take the petitioner back to duty forthwith on same post and pay to him a full salary for the intervening period commencing from 1-12-1976 to the date of reinstatement with all resultant service benefits to which he would have been entitled for the remaining out of employment by reason of his forced resignation by means of issue of writ of mandamus or any other appropriate writ, direction as order as this Hon'ble Court deems just and proper. The Hon'ble Court my further be pleased to grant cost of this petition. " This writ application was first considered by this court and show cause notice was issued on 17th of August, 1978. Later on, it was considered by this court on 6th of November, 1978 and ultimately it was admitted on 12th of January, 1979. On 12th January, 1979, a specific direction was given to the railway that the railway should file reply within one month and the case should be heard in second week of March, 1979. The railway has not filed any reply till now. ;