Patna High Court
Assistant Branch Manager, Now Branch ... vs Shanti Swarup Sharma on 17 January, 1980
Equivalent citations: 1981(29)BLJR65
JUDGMENT U.C. Sharma, J.
1. This is the defendants appeal against the judgment and decree dated the 15th of March, 1975, passed by the Additional Subordinate Judge, Patna, decreeing the plaintiff's suit for declaration that the letter of acceptance of resignation dated the 17th of September, 1966 issued by the defendant No. 2 was mala fide, premature, without jurisdiction illegal, void and not binding on the plaintiff and that he still continues in service.
2. The undisputed facts in this case are that the plaintiff was appointed as an Assistant in Class III service under defendant No. 5, the Life Insurance Corporation of India on the 17th of August, 1957. On the expiry of probationery period he was confirmed in the post. At the relevant time while the plaintiff was posted at Giridih under the Assistant Branch Manager (defendant No.l) the plaintiff filed an application before him on the 12th of September, 1966 praying for leave on medical grounds from the 10th of September, 1966 of the 30th of September 1966 and expressed therein his intention to resign from the service in case he would not be in a position to resume his duties after the 30th of September, 1966 on account of his illness or for some other family reasons. The defendant No, 1 called for a medical certificate for considering the leave application and forwarded a copy of the application to defendant No. 2 for his attention. Defendant No. 2 under his letter dated the 17th of September, 1966 intimated the plaintiff that his resignation had been accepted with effect from the 12th of September, 1966.
2-a. The case of the plaintiff is that on the 1st of October, 1966 he went to resume his duties, but he was not allowed to join by defendant No. 1 on the ground that his resignation had been accepted by the defendant No. 2. It was stated that on receipt of the letter dated the 17th of September, 1966 the plaintiff lapsed into mental imbalance necessitating his hospitalisation in Kanke Mental Hospital. The plaintiff's case further is that thereafter he made representations and appeals to the authorities concerned against the termination of his service, but they were not accepted. There was a conciliation proceeding under the Industrial Disputes Act. There also he failed. Thereafter the plaintiff filed this suit.
3. The suit was contested by the defendants who filed a written statement contending, inter alia, that the suit was not maintainable and there was no cause of action for the suit and that the suit was barred by estoppel, waiver and acquiescence. Their case was that the plaintiff had, in an unambiguous term, expressed his intention to resign in his letter dated the 12th of September, 1966 and the same having been accepted, became final. It was also stated that the plaintiff's intention to resign became confirmed by his letter dated the 29th of September, 1968 addressed to defendant No. 2, It was contended that in the circumstances, as stated above, the plaintiff was rightly not allowed to join his duties. They disclaimed any knowledge about mental condition of the plaintiff after acceptance of his resignation. On these pleas it was prayed that the plaintiff's suit was liable to be dismissed.
4. The parties went to trial and adduced oral and documentary evidence. On consideration of the materials on the record, the Court below held that the acceptance of the plaintiff's resignation was premature, void ab initio and the plaintiff must, there fore, be deemed to be still in service. The plaintiff's suit was, accordingly, decreed.
5. The learned Counsel appearing for the appellants contended that the plaintiff's suit was not maintainable and that it was barred under the provision of Section 34 of the Specific Relief Act, 1963 (equivalent to Section 42 of the old Act). It was urged that the plaintiff's resignation having been accepted, it became final and he was no longer in service of the Corporation and as such he was not entitled to maintain the suit. The learned Counsel for the plaintiff-respondent, on the other hand, contended that the plaintiff never resigned from his service and, therefore, the question of acceptance of his resignation did not arise, and since he has been illegally debarred from joining his service on the supposed resignation, he was entitled to enforce his legal right in the Court of law.
6. The question for consideration is whether the suit is barred under Section 34 of the said Relief Act. Section 34 of the Relief Act reads:
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief;
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a more declaration of title, omits to do so.
The section recognises the right of a person who is entitled to any legal character, to institute a declaratory suit against a person who denies that legal character. The circumstances in which such declaration should be granted, is a matter of discretion of the Court. That right is however, subject to limitation, namely, where the plaintiff, though able to seek further relief, omits to do so, the Court shall not make such declaration. It follows that in order to avoid the rigors of Section 34 of the Specific Relief Act, the plaintiff must show that he has a legal character or right and that he has included the further reliefs where available, otherwise the suit shall be barred. The whole purpose of the section appears to be to shorten the litigation. If the plaintiff brings a suit he must include in it the entire reliefs. If he does not do so, he would not be entitled to any relief. The position will, however, be different if, apart from the declaration which the plaintiff sought, he was not able or entitled to claim any further relief. In that case, in my view, it cannot be said that since the plaintiff's suit is only for a declaration, it must fail. Applying the above principle to the facts of the present case, it would appear that on the facts as alleged, the plaintiff sought a declaration that the letter of acceptance of resignation was premature, void, etc. After that declaration, it is not clear what further relief the plaintiff could have claimed in the suit. If, however, any such relief was necessary, the plaintiff in relief No. 2 claimed that he still has the right to the post he held at the time of the issue of the said letter of acceptance of resignation. In view of the facts of the present case, I do not think, the suit is hit by the provision of Section 34 of the Specific Relief Act.
7. The question then is what legal character the plaintiff had. It is an undisputed fact in this case that the plaintiff was a permanent employee of the Corporation. The said Corporation was constituted under the provisions of the Life Insurance Corporation Act, 1956 (31 of 1956). Section 49 of the said Act empowers the Corporation to make regulations on, among others, the terms and conditions of service of its employees. The Corporation in accordance with the said provision, framed a regulation known as "Life Insurance Corporation of India (Staff) Regulations, 1960 (hereinafter called as "the Regulations"). It would thus appear that the service conditions etc. of the employees of the Corporation including that of the plaintiff were to be governed by the said Regulations. The Corporation is thus a statutory authority, the Regulation framed by it has the statutory force and its employees have a statutory status entitled to constitutional protection (vide the case of Sukhdev Singh and Ors. v. Bhagatratn Sardar Singh Raghuvanshi and Anr. . The plaintiff was admittedly a permanent employee of the Corporation and had thus a right and legal character. If, as he alleges in this case, his resignation, if any, was not accepted in accordance with law, and he was being illegally deprived of his legal right and character and debarred from performing his legal duties, he was perfectly entitled to seek a declaration which he has sought, his suit cannot be hit by the provisions of Section 34 of the Specific Relief Act.
8. The question arises whether the plaintiff resigned and whether his resignation was validly accepted. Regulation 18 of the Regulations provides:
An employee other than an employee on probation or an employes appionted on a temporary basis, shall not leave or discontinue his service in the Corporation without first giving notice in writing to the competent authority of his intention to leave or discontinue the service.
The "competent authority" under Schedule I, so far as the plaintiff was concerned, was the Appointing Authority, namely, the Divisional Manager. Schedule IV provides that the "Appointing Authority" has full power to accept notice from an employee about his intention to leave the service. From this provision it would appear that if an employee of the Corporation wants to leave the service, he would do so after giving notice in writing to the competent authority of his intention to leave or discontinue the service. It is for the competent authority to accept that notice or not. It implies, firstly, that what the competent authority would accept, is the notice of the employee to leave the service in the terms thereof and not in its truncated or altered form ; secondly, that a valid notice of the employee's clear intention to leave or discontinue the service, is pending before the "Competent Authority" at the time of its acceptance. The notice, to my mind, is an offer to resign. The offer has to be accepted or rejected in terms in which it has been made. If the acceptance has not been made in the terms of the offer, it is no acceptance in the eye of law. In the light of the legal position as discussed above, we may examine the facts of this case.
9. Ext. 1 (G) is a letter written by the plaintiff to the Assistant Branch Manager, Giridih on 12-91966. It would be relevant to quote the contents of the letter at this stage, because this letter is supposed to be and treated as resignation of the plaintiff from service ;
Since 9-9-66 I am suffering from stomach trouble here and there is none to look after me at this place, so I would request you to kindly allow me permission to leave H. Q. today so that I may be under proper care of my family members.
I may be on leave from 10-9-1966 to 30-9-1966 and so kindly grant the same.
Further it may also be noted that if due to illness or some other family reasons I become unable to join my duties in the office after the above period, it should thereby be presumed that I would not be in a position to continue in the services, so my resignation should be given effect to from 1-10-1966.
In this letter the plaintiff, firstly, asked for permission to leave the Headquarters. Secondly, he prayed for grant of leave from 10-9-1966 to 30-9-1966. It is clear that till 30-9-1966 he had no intention to leave or to discontinue the service, rather he wished to continue in service till then. The Branch Manager who received this letter replied on 14-9-1966 (Ext. 1 (b) ) asking the plaintiff to furnish a certificate from his attending physician. Thus, the Branch Manager also understood the letter of the plaintiff in the same sense, namely, that the plaintiff would continue in service till 30-9-1966. It was, however, stated by the Branch Manager in his letter dated 14-9-1966 that the plaintiff's contemplated resignation after 30 of September, 1966 was being forwarded to the Divisional Manager.
The Divisional Manager on 17-9-66 wrote back (Ext. 1 (c)) to the plaintiff;
We have received a copy of the letter dated 12 September, 1966, addressed to the Assistant Branch Manager Life Insurance Corporation of India, Giridih in connection with your resignation from the service of the Corporation. Please note that we have accepted your resignation from 12 September, 1966.
It is clear that the Divisional Manager accepted the plaintiff's resignation from the 12th of September, 1966 when no notice of the plaintiff expressing his intention to leave or discontinue the service within the meaning of Regulation 18 of the said Regulations was pending before him. That being so, the Divisional Manager had no right to accept something which did not exist on the 12th of September, 1966. His acceptance of the supposed resignation on that date was void. Last paragraph of the plaintiff's letter dated 12-9-1966 has been treated as a letter expressing his intention to resign. Let us see whether the plaintiff had expressed such an intention. Assuming that the last sentence of the letter amounted to plaintiff's expression of intention to resign, it should have been accepted, if at all, in those very terms. The plaintiff in clear terms, stated that the resignation, if at all, should be given effect to from 1-10-1966. In face of this clear expression of intention, it cannot be said by any stretch of imagination nor has it been said that the plaintiff expressed his intention to leave or to discontinue the service earlier than 1-10-1966. But the Divisional Manager accepted the resignation from the 12 of September, 1966. If there was no resignation in existence on the 12 of September, 1966, the acceptance of it has no legs to stand nor had the Divisional Manager any jurisdiction to accept the same.
10. Even the so-called resignation from 1-10-1966 was not unequivocal. His intended or contemplated resignation, as it appears from the last paragraph of his letter dated 12-9-1966, was conditional and contingent upon the happening of certain events, namely, that if he would not be unable to join after 30-9-1966 due to his illness or other family reasons, then it may be presumed that he would not continue in service from 1-10-1966. It clearly indicates that the question of his discontinuing from service would arise only after he had not joined on 1-10-1966 and not before that. It thus follows that if the plaintiff joined on 1-10-1966, there was no question of his resignation from service, and in that case he cannot be legally debarred from continuing to service the Corporation as has been done in this case.
11. The question, therefore, arises whether the plaintiff joined or will be deemed to have joined his duties on 1-10-1966. If the answer is in the affirmative, the plaintiff would be deemed to be continuing in service. The plaintiff's case in this regard is contained in paragraph 9 of the plaint which is in these terms:
That as the contingency viz., illness or some other family reasons indicated in the application of plaintiff dated 12-9-1966 never occurred he as usual in the exercise of his right to serve went to resume his duties on 1-10-1966 but was never allowed to do so by the defendant No. 1 on the ground of alleged acceptance of resignation by the defendant No. 2.
The statement in paragraph 9 as quoted above was sought to be traversed on behalf of the defendants in paragraph 14 of the written statement. It was stated ;
That with reference to the statements made in paragraph No. 9 of the plaint it is stated that under the circumstances in which the plaintiff resigned from his service and the acceptance thereof by the Corporation the plaintiff has not been rightly permitted to join his duties after he ceased to be an employee of the Corporation.
Thus, the defendants did not deny that the plaintiff had gone to join his duties on 1-10-1960, rather it seems to be admitted that the plaintiff went to join but he was not allowed to join. In paragraph 17 of the written statement towards the end it was, however, stated:
...It is submitted that allegations regarding plaintiff's reporting to duty on 1-10-1966 are false and fabricated and not admitted by the answering defendants.
Reading the written statement as a whole, it would appear that the defendants took a vaccilating stand with regard to the plaintiff's clear assertion that he reported for duty on 1-10-1966, but he was not allowed to join by the defendant No. 1. If I may say so, the later statement in paragraph 17 of the written statement cannot be said to be a denial of the plaintiff's allegation in paragraph 9 much less a specific denial. In any case, the plaintiff in his evidence as P.W. 1 asserted that on 1-10-1966 he went to join in the Branch Office at Giridih, but he was not allowed to join on the basis of the letter of the Divisional Manager (Ext. 1 (c)). There is no cross-examination of this witness on the point. The Branch Manager, Giridih, was not examined in this case. He was the only, competent witness to have stated whether the plaintiff had reported for duty on 1-10-1966 or not. Instead, one employee of the Corporation, Patna, has been examined in this case on behalf of the defendants as D.W.I. He no where denied in his evidence that the plaintiff had reported for duty on 1-10-1966. In view of all these, it stands proved, rather admitted in this case that the plaintiff had reported for duty on 1-10-1966 before the defendant No. 1, Branch Manager, Giridih but he was not allowed to join. It would thus appear that the contingency on which the contemplated resignation of the plaintiff was dependant, never happened and, therefore, in the eye of law there was no resignation of the plaintiff in this case. It follows as a natural corollary that if the plaintiff had not resigned, he could not be legally debarred from joining his duties and he would be deemed to be continuing in service.
12. The learned Counsel appearing for the defendants-appellant drew our attention to the plaintiff's letter dated 29-9-1966 addressed to the Divisional Manager (Ext. A (2). This letter was with reference to his letter dated 17-9-1966. In this letter the plaintiff thanked the Divisional Manager for his letter dated 17-9-1966 and begged to settle his all dues with the Corporation. On the basis of this letter, it was contended that the plaintiff acquiesced in the acceptance of his resignation and he cannot now turn round and say that he still continued in service. The plaintiff's case in this regard in contained in paragraph 12 of the plaint. He stated that on receipt of the said letter he became a victim of mental imbalance incapable of knowing and abbreviating the consequences of his own acts, so much so, that he had to be hospitalised in the Mental Hospital at Kanke. This was also asserted by the plaintiff in his evidence. The only thing which has been said in reply to this part of the plaintiff's case, is contained in paragraph 17 of the written statement in which the defendants denied any knowledge as to what happened to the plaintiff after he resigned from service and acceptance of his resignation by the competent authority, nor did the witness on behalf of the defendants say anything in his evidence in this regard. The plaintiff has thus proved that he wrote the letter dated 29-9-1966 (Ext. A (2)) at a time when he was mentally perturbed on receipt of the letter accepting his so-called resignation. This, if I may say so, is the natural human conduct. Every body placed in his position and in the circumstances in which the plaintiff found himself, would be disturbed and if in that state of mind the plaintiff thanked the Divisional Manager for accepting his resignation, it cannot be said that he acquiesced in the matter. His subsequent conduct would show that he did not accept the position arising as a result of acceptance of his so-called resignation. On 1-10-1966 he went to join his duty. He filed representations and appeals before the authorities. He also went to the Industrial Tribunal and protested against the acceptance of his so-called resignation. In any case, it has been found that the Divisional Manager, had no authority to accept the resignation, as he has done and the acceptance of the resignation was without jurisdiction and invalid in the eye of law. That being the position, even if the plaintiff is taken to have acquiesced in the situation created by the letter of the Divisional Manager dated 17-9-1966, his acquiescence to an invalid act would not validate that act of the Divisional Manager.
13. The learned Counsel for the appellants relied on the case of Raj Kumar v. Union of India , and contended that in that case even though the appellant had withdrawn his resignation, their Lordships held that he could not do so and the acceptance of the resignation was valid. In that case the appellant duly submitted his resignation and it was duly accepted by the authorities in accordance with the rules. After acceptance, the appellant wanted to withdraw his resignation. It was said that after acceptance the matter was final and he could not do so. In the present case there is no question of withdrawal of resignation. If the resignation in this case had been validly accepted on valid resignation, then of course, the plaintiff had no case, but it has been found that there was no resignation in this case nor was it validly accepted by the competent authority. The case on the facts is distinguished.
14. For the reasons stated above, it has to be held that the suit is maintainable and the acceptance of the plaintiff's resignation by the Divisional Manager was void and the plaintiff still continues in service. It has come in evidence that the plaintiff had submitted his resignation from service on earlier occasion but at that time he was allowed to withdraw the same on compassionate ground. I fail to appreciate the conduct of the plaintiff. Such attitude of the employee of a public body is neither conducive to him nor to the institution he serves. If I may say so, the authority who has to deal with an employee, like the plaintiff, will feel harassed. I only wish and hope that in future the plaintiff would exhibit better conduct and give better account of himself. All the same, it has to be held that the plaintiff's suit has been rightly decreed.
15. In the result, the appeal fails and is dismissed, but in the circumstances of the case, I direct that the parties would bear their own costs throughout.
Uday Sinha, J.
16. I agree.