TMI Blog1993 (3) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... te for filing the nomination papers was February 2, 1990 and the scrutiny of the nomination papers was fixed for February 5, 1990. Fifteen persons, including the appellant and Shri Karam Singh had filed nomination papers. At the time of scrutiny, an objection was raised on behalf of one of the candidates against the nomination of Shri Karam Singh on the ground that he was holding the office of Chairman, Himachal Pradesh Khadi and Village Industries Board, which is an office of profit within the meaning of Article 191(1)(a) of the Constitution and was, therefore, disqualified for being chosen as a member of the Legislative Assembly. By order dated February 7, 1990, the Returning Officer upheld the said objection and rejected the nomination of Shri Karam Singh. The High Court has, however, found that the said rejection of nomination of Shri Karam Singh was improper because on the date of scrutiny Shri Karam Singh was not holding an office of profit and has, for that reason, set aside the election of the appellant. Before we proceed to deal with the appeals on merits, it may be mentioned that during the pendency of these appeals before this court, the Himachal Pradesh Legislative A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appeal arising therefrom would not survive because it would be futile and meaningless for the court to decide an academic question the answer to which would not affect the position of one party or the other. Although in the instant case the election is not challenged on the ground of commission of any corrupt practice and a finding would not result in electoral disqualification in future but- the present case differs from the case of Loknath Padhan v. Birendra Kumar Sahu (supra) in the sense that in Loknath's case the election petition was dismissed whereas in the present case the election petitions against the election of the appellant have been allowed and the election has been set aside. It has been submitted by Shri A.K. Ganguli, the learned Senior counsel appearing on behalf of the appellant, that in view of the fact that the decision of the High Court setting aside his election, the appellant may be required to refund the various allowances that he has received while he was functioning as a member of the Legislative Assembly after his election till the decision of the High Court. It would thus appear that invalidation of the election of the appellant may give rise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd as the Government may from time to time fix. In sub- rule (2) of Rule 7, it is laid down that the Chairman, the Vice-Chairman, the secretary and other members of the Board shall also be entitled to draw travelling and daily allowances for journeys performed for attending the meetings of the Board or for the purpose of discharging such duties as may be assigned to them by the Board in accordance with the rules and orders issued by the Government from time to time at the highest rate admissible to Government servants of Grade 1. By notification dated September 2, 1982, issued in exercise of the powers conferred by Rule 7 of the Rules, the Governor of the Himachal Pradesh, ordered that the Chairman of the Board shall be entitled to pay and other allowances from the Funds of the Board at the following rates:- (1) Pay/remuneration/honorarium of ₹ 1500 p.m. (consolidated). (2) Free electricity and water charges upto ₹ 1500 per year. (3) Use of a car or in lieu thereof a conveyance allowance of ₹ 300 per month. (4) Telephone facilities in office and at residence. (5) TA and medical expenses admissible to the officers of Highest First Grade category. By ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted with effect from today Le. 31st January, 1990 . On the basis of the letter of January 31, 1990, which was received on the same day, the matter was processed in the office of Financial Commissioner-cum-Secretary (industries) and it was placed before the Chief Minister for his approval with the recommendation that the resignation of Shri Karam Singh, Chairman, may be accepted. The Chief Minister gave his approval on February 4, 1990. On February 12, 1990, a notification was issued in the following terms :- In exercise of the powers vested in him under section 7 of the Himachal Pradesh Khadi and Village Industries Board Act, 1966, the Governor, Himachal Pradesh is pleased to accept the resignation of Shri Karam Singh Thakur, Chairman, H.P. Khadi and Village Industries Board, Shimla with immediate effect . In the meanwhile, Shri Karam Singh filed his nomination papers for election to the Himachal Pradesh Legislative Assembly from the 60 Chachiot Assembly constituency. The scrutiny of the nomination papers was held on February 5, 1990. An objection was raised against the nomination of Shri Karam Singh on behalf of one of the candidates, viz., Vir Singh, on the ground th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 990 since he had tendered his resignation on January 31, 1990. The High Court, further, found that in view of the letter dated October 18. 1989 sent by Shri Karam Singh conveying his request of giving up the remuneration of ₹ 1500 per month (consolidated) which request was accepted by the State Government as pet notification dated January 8, 1990, pursuant to which Shri Karam Singh ceased to be entitled to draw the abovementioned remuneration with effect from January 8, 1990, Shri Karam Singh was not entitled to remuneration which could be classified as `profit' for the office of Chairman of the Board held by him and after January 8, 1990, it could not be said that Shri Karam Singh was holding an office of profit and therefore the disqualification for membership of the Legislative Assembly of Himachal Pradesh could not attach to him. For the reasons aforesaid, the High Court held that the nomination of Shri Karam Singh was wrongly rejected by the Returning Officer. Shri Ganguli has assailed the findings recorded by the High Court on both the questions whereas Shri B. Datta, the learned senior counsel appearing for the respondents has supported the said findings. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Allahabad High Court in Lala Rain v. Gauri Shanker, 1981 All. Law 1982. Having carefully considered the said contention of Shri Ganguli we find it difficult to accede to it. As pointed out by this court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. (See : Union of India v. Shri Gopal Chandra Misra Ors., [1978] 3 SCR 12 at p. 21). If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion before it becomes effective. In Raj Kumar v. Union of India, [1968] 3 SCR 857, it has been held But when a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be (,pen to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus paenitentiae but not thereafter . (p.860) Similarly, in Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. (supra) which related to an employee of a Government company jointly and wholly owned by the Central Government and two State Governments, it was observed A resignation by an employee would, however, normally require to be accepted by the employer in order to be effective. It can be that in certain circumstances an employer would be justified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chairman of the Board has to be nominated from amongst the members of the Board. This means that the Chairman of the Board holds office so long as he is a member of the Board and if he ceases to be a member of the Board he also ceases to be the chairman of the Board. But the converse is not true. A Chairman of the Board may resign his office as Chairman but may continue as member of the Board. If he resigns only from the office of Chairman of the Board, there is no requirement that such resignation should be accepted by any authority or that any other action is required to be taken for the said resignation to be effective. It would, therefore, appear that the act of relinquishment of the office of Chairman of the Board is unilateral in character and the resignation from the said office takes effect when it is communicated without any further action being required to be taken on the same. Since the Chairman of the Board is nominated by the Government of Himachal Pradesh under Section 4(2) of the Act, resignation has also to be communicated to the Government of Himachal Pradesh i.e., the Head of the Department dealing with the Board, and once it is so communicated it takes effect fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Head of the Department in the Government of Himachal pradesh if it is it? praesenti or from the date indicated therein if it is prospective to be operative from a future date. He would, however, continue to be a member of the Board till his resignation from the office of member is notified in the Official Gazette by the Government of Himachal Pradesh under Section 7 of the Act. The instant case falls in the third category because Shri Karam Singh, by his letter dated January 31, 1990, resigned from the office of member as well as the office of Chairman of the Board and wanted the resignation to be accepted with effect from the same day, i.e., January 31, 1990. By notification dated February 12, 1990, it was notified that the resignation of Shri Karam Singh Thakur, as Chairman of the Board has been accepted by the Governor of Himachal Pradesh with immediate effect. In our opinion, the said notification dated February 12, 1990, proceeds under a misconception of the correct legal position. The resignation of Shri Karam Singh as Chairman of the Board was not required to be accepted by the Government of Himachal Pradesh. It became effective on January 31, 1990 when the letter of resi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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