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Service Jurisprudence: Employee right to withdraw request of resignation or voluntary retirement viz. a viz. employer's right

Can an employee withdraw the Resignation or VRS request anytime before acceptance?

During employment it is open to any employee to retire from service and seek such requisite permission and even ask for cancellation[1] of such requested before it is accepted by employer. In cases of resignation and its withdrawal, resignation[2] became effective on the date of its acceptance by the Government of India and a subsequent withdrawal of the resignation was ineffective even if acceptance of the resignation was not intimated to him. If competent authority is not passing any order on the application for resignation for a long period then it may justify an inference that the resignation has not been accepted and if employee is not permitted to determine the relationship of employment, then such an act amounts to bounded labour[3]. At the same time, if any employee has tendered his resignation at future day and same was withdrawn prior to that effective date, then in such cases authority can’t accept such resignation prior to effective date.[4] However, act of withdrawal of resignation could be permitted and the same depends upon of whether the employment is governed by unilateral or bilateral character[5]. It is now settled legal position that unless employee is relieved of the duty, jural relationship of the employee and employer does not come to an end and if any order accepting the voluntary retirement was a conditional[6], then condition ought to have been complied with. Before the condition could be complied, if any employee withdrew voluntary retirement did not become effective and right to withdraw resignation can’t be curtailed[7] by statutory rules/regulations. Acceptance of the application for retirement is to be considered as per the law applicable. An employee has a right to resign or seek premature retirement, however, subject to the statutory provisions, if any, governing the same. The Authority may refuse to accept the resignation if an employee is seeking retirement just to avoid the adverse findings in a disciplinary proceeding pending/ contemplated against him or his services cannot be dispensed with because of the nature of work/project. In case resignation is not of prospective nature, it becomes effective as soon as it is accepted by the Competent Authority and even non-communication of the said order to the resign or would be immaterial and employee cannot seek withdrawal of application thereafter. That the Constitution Bench of the Hon'ble Supreme Court, in Union of India Vs. Gopal Chandra Misra & ors., AIR 1978 SC 694, held that "It will be repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office tenure of the resign or...... If he chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can, at any time before arrival of prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal."

It is clear that employer does not have a right to prepone the date of effectiveness of resignation/VRS and it would be within the right to decide the date of retirement by any employee and in case of a prospective resignation, the employee has a right to withdraw the resignation prior to the date it becomes effective and not subsequent to it. Similarly, it is the employer discretion to reject or accept the resignation or VRS subject to rules and regulations.

  • [1] Jai Ram Vs. Union of India & ors., AIR 1954 SC 584
  • [2] Raj Kumar Vs. Union of India & ors., AIR 1969 SC 180, the Apex Court
  • [3] Central Inland Water Transport Corporation Ltd. Vs. Brojonath Ganguli, AIR 1986 SC 1571
  • [4] Punjab National Bank Vs. P.K. Mittal, AIR 1989 SC 1083
  • [5] Moti Ram Vs. Param Dev & Anr., AIR 1993 SC 1162
  • [6] Power Finance Corporation Ltd. Vs. Parmod Kumar Bhatia, (1997) 4 SCC 280
  • [7] Union of India Vs. Wg. Comm. T. Parthasarathy, (2001) 1 SCC 158

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