# Radhey Shyam Birla v. Union of India & Ors

- **Citation:** WRIT A No. 30517 of 2005
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-25
- **Case number:** WRIT A No. 30517 of 2005
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-birla-v-union-of-india-ors-45174
- **Pages:** 22

## Headnote

A. Service Law -General Clauses Act,
1897-: Section 27;- Indian Evidence Act,
1872:- Section 114(e), 114(f);- Indian
Post Office Act, 1898:- Sections 2(f), 3, 4,
17, 14 - Voluntary Retirement Scheme -
Resignation - It is for the sendee, who
deny service of registered letter upon him
and attempted to challenge endorsement
of "refusal" made by Postman, to lead
evidence which includes examination of
"Postman" also and in case he fails to do
so, legal presumption will go against him
and will remain to be unrebutted unless
there is other material to show otherwise.
Nothing of this sort has been shown in the case
in hand. (Para 45)
Petitioner
withdrew
his
resignation
and
communicated this fact to the respondents vide
letters dated 07.07.2003 and 21.07.2003 which
was sent by registered post. It is not the case of
the respondents that registered letter is not
properly addressed and, hence, presumption of
service lies in favour of petitioner unless proved
otherwise by respondents. Respondents as per
the own case set up finally accepted resignation
of petitioner vide letter dated 30.01.2004 i.e.
after withdrawal of resignation which could not
have been done. Therefore, acceptance of
resignation letter dated 31.07.2002 is invalid
and not in accordance with law. (Para 7, 16, 46)

B.
Meaning
of
words
"resign"
and
"resignation" referred to - A conditional
resignation is not a valid resignation (Para
52 to 62) - It can be safely said that letter of
resignation tendered by petitioner in the present
case is a conditional letter of resignation. It
states that resignation may be accepted on
payment of all outstanding dues, which shows
that resignation was simultaneous to payment
of all outstanding dues. Hence, it could not have
been accepted. (Para 50, 51)
Therefore, the contention of the respondent
that withdrawal of resignation being conditional,
will not be treated to be a withdrawal, does not
suffice, as the resignation itself is rendered
invalid. (Para 49)

C. Constitution of India: Article 12 - A
public functionary cannot be permitted to
act like a dictator causing harassment to a
common man and in particular when the
person subject to harassment is his own
employee - The respondents being "State"
under
Art.
12,
its
officers
are
public
functionaries. Petitioner has placed on record
certain
documents
to
show
that
some
employees have been retained by respondents
which is sought to be explained by respondents
that a skeleton staff was maintained to take out
formal closure activities. This means that entire
staff has not been terminated. In these facts
and circumstances, there is no reason to deny
relief to petitioner to which he is entitled,
particularly when
respondent-Employer
has
committed fault. They cannot be allowed to take
advantage of their own wrong. (Para 64, 65, 66,
73, 74)
Therefore, the contention that Unit in which
petitioner was working is closed in 2004 itself
and, therefore, petitioner neither can be given
re-employment or reinstatement nor any other
service benefit, does not suffice. (Para 63)
Writ petition allowed. (E-4)

Precedent followed

## Text

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3-5 All. Radhey Shyam Birla Vs. Union of India & Ors.
1223
(2020)03-05ILR A1223
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

WRIT A No. 30517 of 2005

Radhey Shyam Birla ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kshetresh Chandra Shukla, Sri Vivek
Kumar Singh

Counsel for the Respondents:
S.S.C., Sri Devendra Pratap Singh, Sri
Jitendra Nath Sharma, Kirtika Singh, Sri
V.B. Singh

A. Service Law -General Clauses Act,
1897-: Section 27;- Indian Evidence Act,
1872:- Section 114(e), 114(f);- Indian
Post Office Act, 1898:- Sections 2(f), 3, 4,
17, 14 - Voluntary Retirement Scheme -
Resignation - It is for the sendee, who
deny service of registered letter upon him
and attempted to challenge endorsement
of "refusal" made by Postman, to lead
evidence which includes examination of
"Postman" also and in case he fails to do
so, legal presumption will go against him
and will remain to be unrebutted unless
there is other material to show otherwise.
Nothing of this sort has been shown in the case
in hand. (Para 45)
Petitioner
withdrew
his
resignation
and
communicated this fact to the respondents vide
letters dated 07.07.2003 and 21.07.2003 which
was sent by registered post. It is not the case of
the respondents that registered letter is not
properly addressed and, hence, presumption of
service lies in favour of petitioner unless proved
otherwise by respondents. Respondents as per
the own case set up finally accepted resignation
of petitioner vide letter dated 30.01.2004 i.e.
after withdrawal of resignation which could not
have been done. Therefore, acceptance of
resignation letter dated 31.07.2002 is invalid
and not in accordance with law. (Para 7, 16, 46)

B.
Meaning
of
words
"resign"
and
"resignation" referred to - A conditional
resignation is not a valid resignation (Para
52 to 62) - It can be safely said that letter of
resignation tendered by petitioner in the present
case is a conditional letter of resignation. It
states that resignation may be accepted on
payment of all outstanding dues, which shows
that resignation was simultaneous to payment
of all outstanding dues. Hence, it could not have
been accepted. (Para 50, 51)
Therefore, the contention of the respondent
that withdrawal of resignation being conditional,
will not be treated to be a withdrawal, does not
suffice, as the resignation itself is rendered
invalid. (Para 49)

C. Constitution of India: Article 12 - A
public functionary cannot be permitted to
act like a dictator causing harassment to a
common man and in particular when the
person subject to harassment is his own
employee - The respondents being "State"
under
Art.
12,
its
officers
are
public
functionaries. Petitioner has placed on record
certain
documents
to
show
that
some
employees have been retained by respondents
which is sought to be explained by respondents
that a skeleton staff was maintained to take out
formal closure activities. This means that entire
staff has not been terminated. In these facts
and circumstances, there is no reason to deny
relief to petitioner to which he is entitled,
particularly when
respondent-Employer
has
committed fault. They cannot be allowed to take
advantage of their own wrong. (Para 64, 65, 66,
73, 74)
Therefore, the contention that Unit in which
petitioner was working is closed in 2004 itself
and, therefore, petitioner neither can be given
re-employment or reinstatement nor any other
service benefit, does not suffice. (Para 63)
Writ petition allowed. (E-4)

Precedent followed

1. Whitfield Vs. Lord Le Despencer, (1778) 2
Cowp. 754 (Para 20, 23)
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Triefus & Co. Ltd. Vs. Post Office, (1957) 2
Q.B. 352 (Para 21, 23)

3. U.O.I. Vs. Mohd. Niazim, AIR 1980 SC 431
(Para 23)

4. Harihar Banerji & ors. Vs. Ramashashi Roy &
ors., AIR 1918 PC 102 (Para 26)

5. Sukumar Guha Vs. Naresh Chandra Ghosh,
AIR 1968 Cal. 49 (Para 27)

6. Wasu Ram Vs. R.L. Sethi, 1963 AWR 472
(Para 28)

7. Asa Ram Vs. Ravi Prakash, AIR 1966 All.
519 (Para 30)

8. Ganga Ram Vs. Phulwati, AIR 1970 All.
446 (Para 31, 35)

9. Vaman Vithal Vs. Khanderao Ram Rao,
AIR 1935 Bom 247 (Para 34)

10.
Jankiram
Narhari
Vs.
Damodhar
Ramchandra, AIR 1956 Nag. 266 (Para 34)

11. Tekchand Devidas Vs. Gulab Chand
Chandan Mal, AIR 1957 Madh B. 151 (Para
34)

12. Samittri Devi & anr. Vs. Sampuran
Singh & anr., (2011) 3 SCC 556 (Para 35)

13.
Puwada
Venkateswara
Rao
Vs.
Chidamana Venkata Ramana, AIR 1976 SC
869 (Para 36)

14. Har Charan Singh Vs. Shiv Rani, AIR
1981 SC 1284 (Para 37)

15. Anil Kumar V.s Nanak Chandra Verma,
AIR 1990 SC 1215 (Para 38)

16. Shiv Dutt Singh Vs. Ram Das, AIR 1980
All. 280 (Para 38)

17. Jagdish Singh Vs. Natthu Singh, AIR
1992 SC 1604 (Para 39)

18. Gujarat Electricity Board Vs. Atmaram Sungomal
Poshani, AIR 1989 SC 1433 (Para 40, 41)

19. Jhabul Ram Vs. D.J., Ballia, 1994 (23)
ALR 464 (Para 41)

20. Basant Singh Vs. Roman Catholic
Mission, 2003 (1) AIC 1 (SC) (Para 42)

21. Noor Mohammad & anr. Vs. XIV A.D.&
S.J., Kanpur Nagar, 2006 (63) ALR 244
(Para 43)

22. Brij Nandan Gupta Vs. III A.D.J.,
Rampur & anr., Writ-A No. 24853 of 1989
(Allahabad) (Para 44)

23. U.O.I. etc. Vs. Gopal Chandra Misra &
ors., (1978) 2 SC 301 (Para 47)

24. U.O.I. & anr. ther Vs. Wing Commander
T. Parthasarathy, (2001) 1 SCC 158 (Para
47)

25.
Srikantha S.M. Vs. Bharath Earth
Movers Ltd., (2005) 8 SCC 314 (Para 47)

26. Shambhu Murari Sinha Vs. Project &
Development India Ltd. & anr., (2002) 2
SCC 437 (Para 48)

27. R.J. Maurya Vs. St., 1967 SLR 823 (Para
55)

28.
Ramchand
Nihalchand
Advani
Vs.
Anandlal Bapalal Kothari & anr., AIR 1962
Gujrat 21 (Para 56)

29. Hirdeyashawer Singh Chauhan Vs. St. of
M.P., 1987 Jabalpur Law Journal 566 (Para
57)

30. Prabha Atri (Dr.) Vs. St. of U.P. & ors.,
2003 (1) UPLBEC 772; AIR 2003 SC 534
(Para 58, 59)

31. Phool Chandra Singh Vs. The Chairman,
Vindhyavasini Gramin Bank & ors., 2006 (6) AWC
5513 (All.) (Para 62)

32. Cassell & Co. Ltd. Vs. Broome, 1972 AC 1027
(Para 67)

33. Lord Devlin in Rooks Vs. Barnard & ors.,
1964 AC 1129 (Para 67)
3-5 All. Radhey Shyam Birla Vs. Union of India & Ors.
1225
34. L.D.A. Vs. M.K. Gupta, JT 1993 (6) SC 307
(Para 67)

35. Ghaziabad Development Authorities Vs.
Balbir Singh, JT 2004 (5) SC 17 (Para 68)

36. Registered Society Vs. Union of India & ors.,
(1996) 6 SCC 530 (Para 70)

37. Shivsagar Tiwari VsU.O.I., (1996) 6 SCC 558
(Para 71)

38. D.D.A. Vs. Skipper Construction & anr., AIR
1996 SC 715 (Para 72)

Referred to:

1. Corpus Juris Secundum, Vol. 77, page 311
(Para 52)

2. Words and Phrases, Permanent Edition, Vol.
37, Page 473 (Para 53)

3. Black's Law Dictionary, Sixth Edition, Page
1310 (Para 54)

Petition assails orders dated 31.07.2003
and 31.01.2004, passed by National
Textiles Corporation (UP) Ltd.

(Delivered by Hon'ble Sudhir Agarwal, J.

1. Heard Sri Vivek Kumar Singh,
learned counsel for petitioner and Sri
Devendra Pratap Singh, learned counsel for
respondents.

2. Petitioner was an employee of
National
Textiles
Corporation
(U.P.)
Limited
(hereinafter
referred
to
as
"NTCL") which was having its unit New
Victoria Mills at Kanpur. He was appointed
on 27.04.1984 as Cotton Selector (nongazetted post). Several units of NTCL
suffered losses and declared sick, therefore,
Modified Voluntary Retirement Scheme
(hereinafter referred to as "MVRS") was
launched by Respondent-Employer and
pursuant whereto, petitioner submitted
letter dated 31.07.2002 resigning from
service. Said letter reads as under:-

^^jk"V~h; iquokZl ;kstuk }kjk lapkfyr
lalksf/kr LoSfPNd lsokfuo`fRr ;kstuk ds vUrxZr
fey dh lwpuk fnukad 13&6&2002] ,oa
27&7&2002 ds ifjizs{; esa viuk R;kx i= nsuk
pkgrk gwaA

vr% fuosnu gS fd izkFkhZ ds lsokdky
ls lEcfU/kr leLr ns;ksa dk Hkqxrku lqfuf'pr
djrs gq, R;kx i= Lohdkj djus dh d`ik djsaA**

"Under
amended
Voluntary
Retirement
Scheme
run
by
National
Rehabilitation Plan, in the light of
information
dated
13.6.2002
and
27.7.2002, I wish to tender my resignation.

It is, therefore, requested that
resignation of applicant be kindly accepted
ensuring all payments payable to him
relating to his service period."
 (Emphasis added)

(English Translation by Court)

3. However, before it could be
accepted, petitioner submitted another letter
dated
07.07.2003
withdrawing
his
resignation letter dated 31.07.2002. A
reminder letter dated 21.07.2003 was also
submitted by petitioner to Officer on
Special Duty Unit at Kanpur intimating that
he is withdrawing his resignation and in
this regard he has already submitted letter
dated 07.07.2003, therefore, his resignation
should not be accepted. Averments in
respect of withdrawal of resignation vide
letters dated 07.07.2003 and 31.07.2003
have been made in paras- 14 and 15 of writ
petition which read as under:-

"14.
That
the
petitioner
withdrawn his resignation as tendered on
31.07.2002 by means of letter dated
7.7.2003 given to respondent no. 4. The
said applicatioin dated 7.7.2003 was duly
received by Factory Manager/ Manager
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
(Industial Relation) on same date which
was duly endorsed on the Register of New
Victoria Mills.

15. That the petitioner also sent
withdrawal application dated 21.07.2003
through registered post to respondent-4
and the copy of the same also forwarded
before the respondent no. 3 for revocation
of
his
resignation
dated
31.07.2002
tendered
in
pursuance
to
modified
Voluntary Retirement Scheme."

4.

However,
respondents
communicated
to
petitioner
that
his
resignation has been accepted with effect
from 01.08.2003.

5. It is contended that since petitioner
has
already
withdrawn
resignation,
subsequent acceptance of resignation is
patently
illegal
and
of
no
legal
consequence.

6. Sri D.P. Singh, learned counsel for
respondent-Employer drew my attention to
the averments contained in para-8 of
counter affidavit wherein it is stated that
letter dated 07.07.2003 was not received by
Office/Management and has wrongly been
annexed as Annexure-3 to the writ petition.
It is further stated that it was a conditional
withdrawal of resignation to provide a job
in the Mill which was not possible. Reply
to para-15 of the writ petition has been
given in para-9 of the counter affidavit
wherein it is stated that letter dated
31.07.2002 mentioned in said letter, was
not actually received in the Office. He also
submitted that Mill has already been
closed, therefore, it is not possible to take
petitioner into service.

7. The first question up for
consideration before Court is, "whether
acceptance of resignation letter dated
31.07.2002 is valid and in accordance with
law".

8. Parties have not disputed that
resignation letter dated 31.07.2002 was
given by petitioner. Its contents are already
reproduced in para-2 of the judgement.
Respondents claim to have accepted
petitioner's resignation after an year i.e.
vide order dated 31.07.2003. Petitioner was
sought to be relieved on 01.08.2003. The
letter/ notice dated 31.07.2003 issued by
Sri N.K. Pandey, Officer on Special Duty
(hereinafter referred to as "OSD") is
Annexure-5 to the writ petition and it reads
under:-

"Notice

It is, hereby, informed to the
following employees that their resignation
under M.V.R.S., have been accpeted by the
management.
Accordingly,
they
are,
hereby, retired/relieved from the services of
the mills w.e.f. 01.08.2003 (before duty).

S.No. Name
Deoig
Dept
t.
P.F.
No.
1
Sri
R.K.
Verma
By.
Psocg
Mastor
Proc
g.
8082
2
Sri
S.K.
Dixit
Shift
Incharg
e
Wvg. 5112
3
Sri
R.S.
Birla
Cotton
Selector
Spg.

(N.K. Pandey)

Officer on Spl. Duty"

9. There is another office order dated
10.09.2003 issued by OSD Sri N.K. Pandey
which clearly states that due to some
3-5 All. Radhey Shyam Birla Vs. Union of India & Ors.
1227
unavoidable circumstances, acceptance of
resignations under MVRS is not possible
and, hence, they (petitioner and another)
are desired to continue in service and for
the gap, if any, they may avail earned
leave. Said office order is annexed as
Annexure-6 to the writ petition and it reads
as under:-

"Due
to
some
unavoidable
circumstances, till further orders to accept
the resignation under MVRS of the
following officials of the mills is not
possible and as such they are desired to
continued their services. For the gap, if
say in between, they may avail their earned
leave.

1. Sri Mohd. Yunus, Jr. Asstt.
W/H/ Incharge.

2. Sri R.S.Birla, Cotton Selector."

(Emphasis added)

10. The facts about office order dated
10.09.2003 have been mentioned by
petitioner in para-22 of the writ petition. It
has been replied in para-11 of the counter
affidavit wherein, though, it has been
denied but subsequent explanation shows
admission of issue of said letter dated
10.09.2003 by Sri N.K. Pandey, OSD. It
would be appropriate to reproduce para-11
of the counter affidavit as under:-

"11.
That
the
contents
of
paragraph Nos. 22 and 23 of the writ
petition as stated are denied. The letter of a
OSD of N.V.M. Dated 10.09.2003 is not the
denial of MVRS or non acceptance of his
resignation
submitted
by
him
dated
31.07.2002. It was merely a letter for
taking work from the petitioner as a
temporary measure for which necessity
arose as a wining up operation. Few
skeleton hands were required for closing of
operation. But it does not effect the status
of the petitioner to claim continuance of
service in the Mill which is not existence."

11. Then, there is another letter dated
23.10.2004 (Annexure-1 to the counter
affidavit) filed on behalf of respondents-1
to 4 wherein it is stated that petitioner's
resignation has been accepted and he has
been relieved from service with effect from
01.02.2004. Here the date of relieving, after
acceptance of resignation, has changed
from
01.08.2003
to
01.02.2004.
Respondents have also filed a copy of letter
dated 16.02.2004 stating that original copy
of
letter
dated
30.01.2004
regarding
acceptance of petitioner's resignation under
MVRS with effect from 31.01.2004 is
enclosed and the same was also displayed
on
notice
board.
This
letter
dated
16.02.2004 (Annexure- CA-2) reads as
under:-

"Shri
R.S.
Birla,
Ex.Cotton
Selector

H.No. 11/249,

Opp: G.C.T.I. Hostel,

Souterganj,

Kanpur

Dear Sir,

Enclosed
please
find
herewith the original copy of this letter
dated 30.01.2004 regarding accpetance of
your resignation under Modified Voluntary
Retirement Scheme w.e.f. 31.01.2004 (After
duty). A copy of the same has already been
displayed at the Notice Board of the mills.
Please also submit your Bank Account
number immediately.

Thanking you,

Yours faithfully,

for New Victoria Mills,

Unit of NTC (UP) Limited,

(Govind Singh)
1228 INDIAN LAW REPORTS ALLAHABAD SERIES

Officer on Spl. Duty"

12. A copy of letter dated 31.01.2004
is Annexure-10 to the writ petition and this
shows
that
alleged
acceptance
of
resignation under MVRS was vide letter
dated 31.01.2004 and petitioner was sought
to be relieved in the afternoon on
31.01.2004. It also directed petitioner to
collect his dues from office. The contents
of letter dated 31.01.2004 reads as under:-

^^avkids la'kksf/kr LoSfPNd lsokfuo`fRr
;kstuk ds vUrxZr tks R;kx i= fn;k x;k gS]
mls lohdkj dj fy;k x;k gSA vkidks fnukad
31-01-2004 1⁄4M~;wVh mijkur1⁄2 ls fey dh lsokvksa
ls lsokfuo`Rr fd;k tkrk gSA

vkidk tks Hkh /ku curk gS mls 25
fnu ds ckn fdlh dk;Z fnol esa fey dk;kZy;
ls izkIr dj ysA**

"The resignation tendered by you
under the Modified Voluntary Retirement
Scheme has been accepted. You stand
retired from the Mill services w.e.f.
31.01.2004 (after duty).

You may on expiry of 25 days
receive your dues from the Mill office in
any working day."

(English
Translation by Court)

13. In between, I find that there is one
more letter dated 07.10.2003 which informs
petitioner that his resignation under MVRS
has been accepted by Management and
shortly he shall be relieved. This letter
dated 07.10.2003 is Annexure-7 to the writ
petition and contents thereof reads as
under:-

^^alwpuh; gS fd la'kksf/kr LoSfPNd
lsokfuo`fRr ds vUrxZr vkids }kjk fn;k R;kx i=
fnukad 12-07-2002 izcU/k ra= }kjk Lohdkj fd;k
tkrk gSA rFkk vkidks 'kh?kz lsok ls eqDr dj
fn;k tk;sxkA^^

"Be
informed
that
your
resignation tendered under the Modified
Voluntary
Retirement
Scheme
stands
accepted
by
the
Management
on
12.07.2002 and you will be relieved of your
duties at the earliest."

(English
Translation by Court)

14. Therefore, as per the case set up
by respondents, resignation submitted by
petitioner on 31.07.2002 was accepted,
firstly, vide letter dated 31.07.2003 and he
was relieved on 01.08.2003; thereafter vide
letter dated 10.09.2003, petitioner was
informed that it is not possible to accept his
resignation and he will continue to work.
Again,
vide
letter
dated
07.10.2003,
respondents
claim
to
have
accepted
petitioner's resignation but state that he
shall be relieved shortly. Then comes third
letter dated 31.01.2004 informing petitioner
that his resignation has been accepted and
he is being relieved in the afternoon on
31.01.2004. In the meantime, respondents
admit that petitioner had continued to work
and one of such letter dated 07.01.2004
(Annexure-9 to the writ petition) shows
that earlier he was attached with Vigilance
Department of the Unit, vide order dated
09.01.2001 which was withdrawn and he
was directed to report to his place of new
posting. He was relieved by Vigilance
Officer on 07.01.2004. Subsequent vide
letter
dated
16.02.2004
issued
by
respondents
refers
to
resignation
of
petitioner vide letter dated 30.01.2004 and
his relieving in the afternoon on 31.01.2004
which means that earlier acceptance was
not acted upon by respondents or it was not
accepted or there was no such valid
acceptance at all. In the meantime,
petitioner submitted letter dated 07.07.2003
withdrawing his resignation. Then letter
dated 21.07.2003 (Annexure-4 to the writ
3-5 All. Radhey Shyam Birla Vs. Union of India & Ors.
1229
petition) was also given referring to
withdrawal letter dated 07.07.2003. It was
sent by registered post. Interestingly, facts
regarding
withdrawal
letters
dated
07.07.2003 and 21.07.2003 have been
stated in paras- 14, 15 and 16 to the writ
petition and it read as under:-

"14.
That
the
petitioner
withdrawn his resignation as tendered on
31.07.2002 by means of letter dated
7.7.2003 given to respondent no.4. The said
application dated 7.7.2003 was duly
received by Factory Manager/ Manager
(Industrial Relation) on same date which
was duly endorsed on the Register of New
Victoria Mills.

15. That the petitioner also sent
withdrawal application dated 21.07.2003
through registered post to respondent-4
and the copy of the same also forwarded
before the respondent no. 3 for revocation
of
his
resignation
dated
31.07.2002
tendered
in
pursuance
to
Modified
Voluntary Retirement Scheme.

16. That it is noteworthy here that
the office of respondent no. 4 had received
the said registered revocation letter dated
23.07.2003."

15.

Respondents
have
replied
aforesaid paragraphs in paras- 8 and 9 of
counter affidavit and the same read as
under:-

"8.
That
the
contents
of
paragraph Nos. 12, 13 and 14 of the writ
petition as stated are denied. The letter of
resignation dated 31.07.2002 has been
accepted
and
acted
upon
by
the
management. By letter dated 07.07.2003
which has not been received by the
management
and has
wrongly
been
annexed as Annexure No. 3 in the writ
petition, even its perusal tells different
story. It is a conditional withdrawal of
resignation and provide a job in the mill
was impossibility for the management. It is
reiterated that the letter is a manufactured
document only to create a confusion.

9.That contents of paragraph
Nos. 15, 16 and 17 of the writ petition as
stated are denied. It is too late for the
petitioner to take Summer Sault. His
resignation dated 31.07.2002 was accepted
and on the Notice Board pasted on
31.07.2003. Petitioner has been relieved
from duty w.e.f. 01.08.2003, his name
appears at Sl.No.3 vide Annexure-5 in the
writ petition annexed by the petitioner. As
stated above, even the withdrawal of
resignation which has never received by
the management was conditional as sated
by the petitioner by a document Annexure
No. 3 not received by the management. In
the alternative, the petitioner will have no
other remedy in the matter as due to the
closure of mill, no relief can be granted. It
is wrong to allege that the registered letter
dated 23.07.2003 was ever received by the
management rather the management is
always informed even personally to the
petitioner that he stood relieved. His
resignation has been accepted and his
MVRS is ready can be collected by him.
The petitioner was fluctuating in the
decision."

 (Emphasis added)

16. The provisions of MVRS also
shows that once resignation is accepted,
incumbent could not have been allowed to
continue since that will have resulted in
abolition of post. Hence, if resignation of
petitioner was accepted by respondents
vide letter dated 31.07.2003, neither it
could have been deferred nor petitioner
could have been allowed to continue nor
there would have arisen any other occasion
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
to accept resignation at two different times
i.e. 07.10.2003 and 30.01.2004. This shows
that respondents have taken inconsistent
stand in the matter though, in the
meantime, petitioner already withdrew his
resignation and communicated this fact to
the
respondents
vide
letter
dated
07.07.2003 and again vide letter dated
21.07.2003 which was sent by registered
post. The registered receipt is shown as
Annexure-8 to the rejoinder affidavit and
copy of said letter was also addressed to
Chairman and Managing Director, N.T.C.
(U.P.) Limited, Kanpur. It is not the case of
respondents that registered letter is not
properly
addressed
and,
hence,
presumption of service lie in favour of
petitioner unless proved otherwise by
respondents. In taking above view, I am
fortified by Statute and may refer the same
as under.

17. First, is Section 27 of General Clauses
Act, 1897 (hereinafter referred to as "Act, 1897"
which reads as under:

"27. Meaning of service by post.-
Where any Central Act or Regulation made after
the commencement of this Act authorizes or
requires any document to be served by post, where
the expression "serve" or either of the expressions
"give" or "send" or any other expression is used,
then, unless a different intention appears, the
service shall be deemed to be effected by properly
addressing pre-paying and posting by registered
post, a letter containing the document, and unless
the contrary is proved, to have been effected at the
time at which the letter would be delivered in the
ordinary course of post."

18. Another relevant provision is Section
114, Illustrations (e) and (f), Indian Evidence Act,
1872 (hereinafter referred to as "Act, 1972") which
reads as under:

"114. Court may presume existence of
certain facts.- The Court may presume the
existence of any fact which it thinks likely to have
happened, regard being had to the common course
of natural events, human conduct and public and
private business, in their relation to the facts of the
particular case.
Illustrations

The Court may presume-

...

(e) The judicial and official acts have
been regularly performed;

(f) That the common course of business
has been followed in particular cases;"

19. The third is Indian Post Office Act, 1898
(hereinafter referred to as "Act, 1898"). Section 3
and 14 thereof, relevant for the purpose of present
case, are reproduced as under:

"3. Meanings of "in course of
transmission by post" and "delivery".-
For the purposes of this Act,-

a) a postal article shall be
deemed to be in course of transmission by
the post from the time of its being delivered
to a post office to the time of its being
delivered to the addressee or of its being
returned to the sender or otherwise
disposed of under Chapter VII;

b) the delivery of a postal article
of any description to a postman or other
person authorized to receive postal articles
of that description for the post shall be
deemed to be a delivery to a post office;
and

c) the delivery of a postal article
at the house or office of the addressee, or
to the addressee or his servant or agent or
other person considered to be authorized to
receive the article according to the usual
manner of delivering postal articles to the
addressee, shall be deemed to be delivery
to the addressee."
3-5 All. Radhey Shyam Birla Vs. Union of India & Ors.
1231

"14. Post Office marks prima
facie evidence of certain facts denoted.-In
every proceeding for the recovery of any
postage or other sum alleged to be due
under this Act in respect of a postal
article,-

(a) the production of the postal
article, having thereon the official mark of
the Post Office denoting that the article
has been refused, or that the addressee is
dead or cannot be found, shall be prima
facie evidence of the fact so denoted, and

(b) the person from whom the
postal article purports to have come, shall,
until the contrary is proved, be deemed to
be the sender thereof."

20. Though in the three statutes
referred to above, the oldest one is Act,
1872 but in fact the provisions relating to
Post Office Act are older, going to 1866
when the first Post Office Act was enacted.
In the then British Indian Territory
governed by the British Government, postal
services were established by appointing a
Director, Post Office by the Governor
General in Council in order to regulate this
branch of public service and revenue, in the
light of experiences gained by English
postal legislation and development of Post
Offices. Commenting upon the Post Office
service in England, in Whitfield Vs. Lord
Le Despencer (1778) 2 Cowp. 754, Lord
Mansfield had said:

"The Post Master has no hire,
enters into no contract, carries on no
merchandise or commerce. But the post
office is a branch of revenue, and a
branch of police, created by Act of
Parliament. As a branch of revenue, there
are great receipts; but there is likewise a
great surplus of benefit and advantage to
the public, arising from the fund. As a
branch of police it puts the whole
correspondence of the kingdom (for the
exceptions
are
very
trifling)
under
government, and entrusts the management
and direction of it to the crown, and
officers appointed by the crown. There is
no analogy therefore between the case of
the Post Master and a common carrier."

21. Following the above decision, in a
recent case in Triefus & Co. Ltd. Vs. Post
Office (1957) 2 Q.B. 352, it was held that
Post Office is a branch of Revenue and
Post Master General does not enter into any
contract with a person who entrusted to the
Post Office a postal packet for transmission
overseas.

22. Presently also the Post Office
service in India, with which this Court is
concerned, is not in the hands of any
private individual or corporate body but it
is a Department of Government of India
and on certain matters, it is regulated by
various Statutes including Act, 1898.

23. I have referred to the above two
decisions in Whitfield Vs. Lord Le
Despencer (1778) 2 Cowp. 754 and
Triefus & Co. Ltd. Vs. Post Office (1957)
2 Q.B. 352 for the reason that the system of
Post Office in India has been observed to
be similar as it was in England. Apex Court
referring to the certain provisions of Act,
1898 has said, in Union of India Vs. Mohd.
Niazim AIR 1980 SC 431, as under:

"These are only some of the
provisions of the Act which seem to
indicate that the post office is not a
common carrier, it is not an agent of the
sender of the postal article for reaching it
to the addressee. It is really a branch of the
public service providing postal services
subject to the provisions of the Indian Post
Office Act and the rules made thereunder.
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
The law relating to the post office in
England is not very much different from
that in this country. "

24. The aforesaid decision was
rendered considering the provisions in Act,
1898 which was enacted by repealing
previous Act of 1866 so as to consolidate
and amend the law relating to Post Office
in India.

25. The Post Office in India, thus, is an
institution established by a statute. "Postage"
required to avail of the postal services has been
defined in section 2 (f) of Act, 1898 as "the duty
chargeable for the transmission by post of
postal articles". Under section 4 the exclusive
privilege of conveying letters is reserved to the
Central Government with certain exceptions
which are not significant. Section 17 of the Act
says that "postage stamps" shall be deemed to
be issued by Government for the purpose of
revenue. The provisions of the Act indicate that
the Post Office is not a common carrier. It is not
an agent of sender of the postal article for
reaching it to the addressee. It is really a branch
of the public service providing postal services
subject to the provisions of Act, 1898 and the
Rules made thereunder. It is in this context,
Section 14 of Act, 1898 would also be a matter
of relevance which says that the production of
the postal article, having thereon the official
mark of Post Office denoting that the article has
been refused, or that the addressee is dead or
cannot be found, shall be prima facie evidence
of the fact so denoted. The Statute provides a
prima facie evidence of the mark given by
Postal Department on the postal article sent by
post regarding its correctness, though the word
"prima facie" shows that it is liable to be
disproved by adducing evidence otherwise.
Meaning thereby the mere denial by the party in
respect to whom the endorsement has been
made by postal agent otherwise, would not be
sufficient unless he adduce evidence to discredit
prima facie evidence in the shape of
endorsement made by postal department on the
article concerned. This provision read with
Section 114 of Act, 1872 and Section 27 of Act,
1897 makes the situation quite clear. It appears
that in various decisions, while considering the
question of service of notice, most of the times,
provisions of Act, 1898 and its implication have
been omitted even when the service was sought
to be effected by registered post.

26. Initially the issue of service of
notice under Section 106 of Transfer of
Property Act, 1882 (hereinafter referred to
as "Act, 1882") was considered by Privy
Council in Harihar Banerji and others
Vs. Ramshashi Roy and others AIR 1918
PC 102. Court said, if a letter, properly
directed, containing a notice to quit, is
proved to have been put into Post Office, it
is
presumed
that
letter
reached
its
destination at the proper time according to
the regular course of business of Post
Office and was received by the person to
whom it was addressed. The presumption
would apply with still greater force to such
letters for which the sender has taken
precaution to register and is not rebutted
but strengthened by the fact that a receipt
for the letter is produced, signed on behalf
of the addressee by some person other than
the addressee himself. Here was a case
where service of notice was not denied by
all and one of the person has admitted its
service, therefore, a presumption was
drawn. So the facts of this case makes it
clear that the presumption was rightly
drawn.

27. In Sukumar Guha Vs. Naresh
Chandra Ghosh AIR 1968 Cal. 49, a
Single Judge (Hon'ble Amresh Roj, J.)
referring to Section 114, Illustration (f) of
Act, 1872, Section 106 of Act, 1882 and
Section 27 of Act, 1897 said that
3-5 All. Radhey Shyam Birla Vs. Union of India & Ors.
1233
presumption under Section 27 of Act,
1897 can arise only when a notice is
sent by registered post while there may
arise a presumption under Section 114
of Act, 1872 when notice is sent by
ordinary post or under certificate of
posting. Both the presumptions are
rebuttable. When the cover containing
notice has been returned to the sender
by postal authorities, then that fact is
direct proof of the fact that the notice
sent by post was not delivered to the
party to whom it was addressed.
Whether it was tendered and, if so, to
whom tendered, remains a matter to be
ascertained on evidence. If acceptable
evidence is available that it was
tendered to the party personally, then
such facts may bring the service of
notice within the second mode, namely,
tendered or delivered personally to such
party. If however, tender or delivery is
not to the party personally but to a
member of his family or a servant, then
it may be effective tender or delivery
only when the notice was addressed to
the
residence
of
the
party.
Such
personal tender or vicarious tender may
be effective even if it was through the
agency of post office, and proof of that
tender comes from testimony of any
person present at the event, and not
only by examining the postman. Here
what I find is that when Court talks of
evidence, when we read it in the context
of Section 114 of Act, 1872, a
registered envelop received back from
postal authority with the endorsement
of postman of "refusal" will constitute a
valid evidence to show that it was
served upon the addressee but he
refused
to
accept
unless
proved
otherwise and for that purpose the
examination of postman for constituting
a prima facie evidence further would
not be required in view of Section 14 of
Act, 1898. This Section 14 of Act, 1898
has not been noticed by the Court.

28. This Court in Wasu Ram Vs.
R.L. Sethi 1963 AWR 472 said:

"The
question
whether
a
communication sent through the post
was received by the address is one of
fact, but in many cases it may be
difficult
and
inconvenient
if
not
impossible,
to
produce
the
postal
official who delivered the letter or the
money order. To obviate this difficulty
the
Evidence
Act
permits
certain
presumptions to be made under certain
circumstances. S. 16 provides that
"when there is a question whether a
particular act was done, the existence
of any course of business, according to
which it naturally would have been
done,
is
a
relevant
fact".
The
illustration (a) to this section explains
that in a question "whether a particular
letter was despaired, the facts that it
was the ordinary course of business for
all letter put in a certain place to be
carried to the post, and that particular
letter was put in that place, are
relevant". S. 114 provides that the court
may presume the existence of any fact
which it thinks likely to have happened,
regard being had to the common course
of natural events, human conduct and
public and proper business, in their
relation to the facts of the particular
case. Illustration (e) to this section says
that "the court may presume that
judicial and official acts have been
regularly performed"; and Illustration
(f) says that the court may presume that
"the common course of business has
been followed in particular cases". The
combined effect of these two sections is
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
to
raise
a
presumption
that
a
communication
sent
by
post
was
received in the ordinary course by the
addressee, and if it was returned to the
sender with the endorsement "refused",
the postman must have tendered it but
delivery could not be made because of
the refusal of the addressee. These
presumptions are based on human
experience and common sense. Our
experience tells us that millions of letters
which are posted are delivered in due
course
to
the
address,
though
in
exceptional cases letters do get lost. The
onus of proof is on the person who asserts
that the abnormal happened in his case and
the communication sent by post did not
follow its normal course to destination."

29. This Court further held:

"Whenever a communication is
sent by post there is a presumption that it
was duly delivered or tendered. If the
communication is returned by the post
office with the endorsement "refused" the
presumption will be that it was tendered by
the postal authorities in their ordinary
course of business to the addressee who
refused. The strength of the presumption
will vary according to the fact of each case,
being strong in the case of registered
letters, and strongest in the case of money
orders and insured articles the delivery of
which cannot be made without observing
certain precautions which are prescribed.
Rules u/Chap. VII of the Post and
Telegraph Guide provide that in case of
refusal the money order shall be returned
to the remitter with the endorsement
"refused". If the addressee states on oath
that he never received the communication,
the Court must decide after considering all
the surrounding circumstances, whether he
should be believed. The question is always
one of fact, though I would add as a matter
of plain common sense that a denial which
is not only bare but bare-faced and made
by a person who stood to profit by his
denial and, therefore, had all the motive in
the word to deny, will not ordinarily
weaken the presumption."

30. The above view was followed in
Asa Ram Vs. Ravi Prakash AIR 1966
All. 519 and relevant observation in para 3
reads as under:

"3. Mr. Sinha then argued that a
presumption of refusal could arise only if
the endorsement 'refused' was proved by
evidence, and this could only be done by
producing the postman who made the
endorsement. I do not agree. If the landlord
deposes that he sent an envelop containing
the notice and that the same envelop was
received by him with the endorsement
'refused' which was not there before and he
produces the envelop with the endorsement,
this is a sufficient evidence to prove the
endorsement. In this case the respondent
appeared as a witness and proved the
sending and the return of the envelope. On
this evidence the Court could rely on the
presumption authorized under S. 114 of the
Evidence Act."

31. Thereafter, the issue came to be
considered by a Full Bench in Ganga Ram
Vs. Phulwati AIR 1970 All. 446. One of
the
three
questions
referred
for
consideration before Full Bench was
"whether it is incumbent on the plaintiff to
prove the endorsement of refusal on the
notice sent by registered post by producing
the postman or other evidence in case the
defendant denies service on him? Full
Bench considered this question referring to
provisions of all three Statutes, namely,
Act, 1872; Act, 1897 and Act, 1898.
3-5 All. Radhey Shyam Birla Vs. Union of India & Ors.
1235
Besides others, it also referred to Rule 64
(1) of Indian Post Office Rules which reads
as under:

"64 (1). If the sender of a
registered article pays at the time of
posting the article a fee of one anna in
addition to the postage and registration fee,
there shall be sent to him on the delivery of
the article a form of acknowledgement
which shall be signed by the addressee or if
the addressee refuses to sign shall be
accompanied by a statement to the effect
that the addressee has refused to sign."

32. Having referred to various
provisions of Act, 1898 and Rules framed
thereunder, Court said, when the postmen
or the clerks at the station of destination are
required to do and what endorsements they
are required to make, all such acts are
clearly provided in the Statute. All such
acts are done by them and all such
endorsements are made by them in
discharge of their official duties. Court,
thus, proceeded further and held that a
notice sent by registered post will be
entitled to draw a presumption regarding
due service of that notice vide Illustration
(e) and (f) of Section 114 of Act, 1872.