Delhi District Court
Shri R.K Gupta vs Delhi Public School Society on 5 September, 2009
-: 1 :- RCA 190/06
IN THE COURT OF SHRI VIDYA PRAKASH
ADDITIONAL SENIOR CIVIL JUDGE DELHI
RCA-190/06
Shri R.K Gupta
S/o Sh Rattan Lal Gupta,
R/o H. No. 264, Pocket G-20,
Sector-7, Rohini,
Delhi-110085.
...Appellant
Versus
Delhi Public School Society,
D.P.S Flat,
(Staff Flats), F-Bock, East of Kailash,
New Delhi.
...Respondent
APPEAL AGAINST THE JUDGMENT/ORDER DATED
24.08.2006 PASSED BY SH. NARESH KUMAR, Ld CIVIL
JUDGE DELHI IN CASE BEARING NO. 9/02/98 TITLED AS '
R.K GUPTA VS. DELHI PUBLIC SCHOOL SOCEITY'.
DATE OF INSTITUTION OF APPEAL : 25.09.2006
JUDGEMENT RESERVED ON : 05.09.2009
JUDGMENT DELIVERED ON : 05.09.2009
JUDGMENT
The present appeal takes exception to the judgment / decree dated 24.08.2006 passed by Ld. Civil
-: 2 :- RCA 190/06 Judge by which suit of plaintiff / appellant has been dismissed.
I have already heard Ld counsels for both the parties. I have also carefully perused the material available on record including Trial Court Record as well as the authorities cited at the bar.
In brief, plaintiff / appellant filed suit for declaration, mandatory and permanent injunction on the averments that he was appointed as Principal in Delhi Public School, Vindhyanchal on a probation of one year vide letter dated 25.02.1992. He joined his duty on 24.03.1992 and his services were confirmed subsequently. Plaintiff / appellant received message about illness of his wife at Delhi on which he applied for leave for a period of one week vide application dated 28.06.1993 w.e.f. 30.06.1993. His wife could not recover from the illness on which he applied for extension of leave up to 31.07.1993. Plaintiff received telegram on 30.07.1993 regarding not granting of extension of leave -: 3 :- RCA 190/06 and he was asked to join duty on 31.07.1993. Plaintiff informed the Secretary, DPSS, Delhi about his inability to join the duty and requested for extension of leave till 31.08.1993 vide letter dated 31.07.1993. The plaintiff was undergoing difficult situation as his wife was not keeping well and he was made to resign by the Secretary of the defendant but plaintiff was never communicated about acceptance of his resignation despite telegram dated 16.10.1995. It was stated that the resignation of plaintiff was not accepted till 18.10.1995 and he requested vide letter dated 18.10.1995 for taking him back on duty. The said letter was followed by reminders dated 15.11.1995 and 21.12.1995. The plaintiff recd letter dated 21.12.1995 stating therein "Our decision stands". It was further claimed that plaintiff wrote letters dated 05.01.1996, 17.01.1996, 26.02.1996, 13.03.1996 and 18.03.1996 for clarifying the things as he was not communicated about the decision taken on his resignation and plaintiff received letter from defendant on -: 4 :- RCA 190/06 04.07.1996 that acceptance of his resignation had already been communicated. After serving legal notice dated 11.11.1997, the plaintiff filed the suit by seeking declaration that he continues to be in service with consequential relief of permanent injunction for restraining the defts and its officials from filling up the vacant post and also decree of mandatory injunction for directing the defendant and its officials for taking back the plaintiff on duty with full back wages and continuity of service.
The suit was contested by defendant / respondent society taking preliminary objections that Court lacks territorial jurisdiction to try the suit; there was no relationship of employer and employee between the parties; suit was barred by limitation and suit was not maintainable in its present form. On merits, factum regarding appointment of plaintiff vide letter dated 25.02.1992 initially for a period of one year as well as confirmation to the said post subsequently, were not -: 5 :- RCA 190/06 disputed. It was denied that plaintiff applied for extension of leave vide letter dated 31.07.1993. Rather, plaintiff tendered his resignation vide letter dated 21.07.1993 and handed over the charge of the post of principal to the then principal incharge of DPS, Vindhyanchal, M.P. vide letter dated 31.08.1993. It was further claimed that plaintiff himself tendered his resignation which was duly accepted and there was no question of plaintiff being continuing in service. It was denied that the Secretary of the society asked the plaintiff for tendering his resignation as alleged. It was further claimed that the correspondence for clearing the dues of plaintiff established that plaintiff had tendered his resignation in full sense and had also handed over the charge. It was denied that resignation of the plaintiff was not accepted and that the same was not communicated to him.
After completion of the pleadings of the parties, following issues were framed on 02.02.2000 :- -: 6 :- RCA 190/06
1. Whether the plaintiff is entitled for the decree of declaration? OPP
2. Whether the plaintiff is entitled for the decree of mandatory injunction ? OPP
3. Whether the plaintiff is entitled for the decree of permanent injunction ? OPP
4. Whether this Court has the territorial jurisdiction ?
OPD
5. Whether there is any relationship between the parties ? OPD
6. Whether the suit is barred under the period of limitation ? OPD
7. Whether the suit is barred under the period of limitation ? OPD
8. Relief.
In support of his case, plaintiff / appellant examined only himself as PW-1 whereas the defendant / respondent society also examined only one witness i.e. -: 7 :- RCA 190/06 DW-1 Sh. J. Mohanti towards DE.
After hearing the parties, the impugned judgment and decree has been passed by Ld Trial Court whereby issues no. 4 and 5 were decided in favour of the plaintiff but rest of the issues were decided against the plaintiff and in favour of the defendant.
Feeling aggrieved from the said judgment / decree, plaintiff has filed the present appeal.
Ld. Counsel for appellant had argued that Ld. Trial Court has wrongly decided issue no. 6 against the appellant by holding that suit is barred by limitation by observing that period of limitation for filing the suit started from 21.07.1993 i.e. the date of tendering of resignation. Counsel argued that cause of action to file the suit arose on 18.10.1995 since the resignation of appellant was not accepted and the appellant wrote letter dated 18.10.1995 for withdrawing his resignation. Ld. Counsel further argued that cause of action also arose on subsequent dates i.e. 15.11.1995 and 05.01.1996 by -: 8 :- RCA 190/06 which appellant sent reminders for taking his back on duty and also on 13.03.1996 and 18.03.1996 when appellant sought clarification from the respondent. Ld. Counsel argued that the suit was filed on 03.03.1998 and in this manner, the present suit is well within the period of limitation. Next limb of argument raised by Counsel for appellant on the said issue was that Ld. Trial Court has not given any finding as to how the cause of action did not arose on the aforesaid dates and also ignore the fact that resignation of appellant was neither accepted nor communicated to him.
In support of his submissions, he had relied upon the following judgments:-
1. 2007 (141) DLT 661
2. 2006 (129) DLT 272
3. 2006 (92) DRJ 331
4. Writ petition (Civil) No. 766/1996 tilted as "Narender Kumar Parwanda Vs. Union of India"
decided on 25.07.2006
5. 2006(131) DLT 202 -: 9 :- RCA 190/06
6. 2006 (127) DLT 88
7. 2005 (118) DLT 665
8. 2003 (102) DLT 702 On the other hand, Ld Counsel for respondent had argued that Ld. Trial Court has rightly held the suit to be barred by limitation. Dilating upon the said issue, it was argued by Ld. Counsel that appellant had himself has tendered his resignation vide letter dated 31.07.1993 and had also relinquished his charge to the Principal Incharge vide letter dated 31.08.1993 which points out that his resignation was duly accepted and was informed to him. Ld. Counsel had also referred to the correspondence exchanged between the party wherein appellant claimed himself to be Ex-principal of the school which also points out towards his knowledge about the acceptance of resignation submitted by him. Ld. Counsel had also argued that the resignation of appellant being tendered and accepted in 1993 while the suit filed in 1998, is bitterly barred by limitation and therefore, the -: 10 :- RCA 190/06 present appeal has no merits.
Trial Court record shows that plaintiff admitted during his cross examination as PW-1 that he had resigned from the post of Principal on 31.07.1993 vide letter Ex.PW1/4. The appellant could not explain as to how the said letter which is hand written, came into existence. The said letter has also been referred to by the witness examined by respondent as DW1/3 but not challenged from the side of plaintiff during his cross examination. The same leads to an inference that appellant also admits to have executed the said letter. Perusal of said letter shows that appellant handed over the complete charge including the briefcase, files, DO letters, Stamps, cheque book, etc., which were lying in his custody to the Principal Incharge, DPS, Vindhya Nagar and requested for clearance of his account in the shape of his salary and provident fund at the earliest. Appellant as PW-1 has also admitted during his cross examination that he had handed over all the articles, stamps, files etc to -: 11 :- RCA 190/06 the respondent society vide said letter Ex.PW1/DX1 (also exhibited as DW1/3). In case, the appellant was not communicated with the acceptance of his resignation or in case the appellant was still pursuing the matter with the respondent, there was no question of handing over the charge by him to the successor in interest for the said post and to ask for payment of his balance dues. It is no where the case of appellant that the said document came to be executed under some compelling circumstances. Not only this, appellant also admitted that the letter dated 10.09.1993 was written by him to the respondent which is Ex.PW1/DX2 wherein he has shown himself to be the Ex-Principal. Same is the position in the subsequent letter dated 30.09.1993 Ex.PW1/DX3. Again the appellant did not explain as to when he had not been communicated about the acceptance of his resignation by the respondent then why and under what circumstances, he showed himself to be the Ex-Principal in the aforesaid letter. The said conduct on the part of appellant spells -: 12 :- RCA 190/06 out the fact that his resignation was duly accepted and after handing over the charge, his dues were also cleared. It is quite difficult to believe that a person who is constantly pursuing the matter with the employer with no intimation of his resignation being accepted by the said employer, would handover the complete charge and would request for payment of his entire dues. The correspondence exchanged between the parties as borne out from the letters Ex.DW1/4 and DW1/5 further fortifies this fact that appellant was interested in getting the dues cleared by the respondent society and nothing else. The plaintiff / appellant himself put the document Ex.DW1/P2 during cross examination of DW1 which shows that the resignation tendered by appellant was duly placed before the Chairman of the respondent society. It is only at a very belated stage, the appellant appears to have written letter to the respondent society for taking him back on duty but the same was declined by the respondent society vide letter dated 05.01.1996 -: 13 :- RCA 190/06 Ex.PW1/8 (also exhibited as Ex.DW1/P4). It is also an admitted case of the appellant himself that he did not pursue the matter with the respondent society after August 1993 till October 1995 which also goes to show that he was quite satisfied with the acceptance of his resignation and payment of his dues.
In the aforesaid background, this Court is of the view that cause of action for seeking the relief of declaration to the effect that resignation of appellant was not accepted and he continues to be in service started in 1993 itself and the Trial Court has rightly held that the present suit filed on 03.03.1998 is barred by limitation. The appellant cannot be allowed to extend the period of limitation by writing a letter in October 1995 for taking him back on duty and when his said request was declined then by filing the suit in March 1998 by claiming it be within the period of limitation counted from October, 1995.
The authorities relied upon by Ld counsel for -: 14 :- RCA 190/06 appellant, are distinguishable from the facts and circumstances of the present matter. Authority mentioned at serial no. 1 is in the context of Army Rules whereas authorities mentioned at serial no. 2 and 6 are rendered in the context of School Education Act and the rules framed there under while the other authorities are in the context of Labour Law. Moreover, in the said authorities it was established that resignation was withdrawn by the employee before its acceptance by the employer.
In view of the aforesaid discussion, this Court is of the view that the suit has been rightly held to be barred by limitation by the Court below.
In view of the findings that suit is barred by limitation, it is not desirable to give any findings on merits of the case and therefore, the said issues are left open.
The net result of the above discussion is that appeal fails. Consequently, same is hereby dismissed with no order as to costs. Decree sheet be prepared -: 15 :- RCA 190/06 accordingly. Trial Court record be sent back alongwith copy of this judgment to Ld Trial Court/Successor Court. Appeal file be consigned to Record Room.
Announced in open Court. (Vidya Prakash)
Dt. 05.09.09 Addl. Senior Civil Judge
Delhi
-: 16 :- RCA 190/06