Himachal Pradesh High Court
Deep Lal vs The Principal Army Public School & ... on 21 December, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 32 of 2022 .
Date of decision: 21.12.2023
Deep Lal. ...Petitioner.
Versus
The Principal Army Public School & Another. ...Respondents.
of
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1 Yes.
For the Petitioner.
rt Mr.Nitin Thakur, Advocate.
For the Respondents: Mr.Karan Singh Kanwar and Mr.Vaibhav
Kanwar, Advocates.
Vivek Singh Thakur, Judge
This petition, under Article 227 of the Constitution of India, has been preferred by plaintiff (petitioner herein) against judgment dated 13.1.2022 passed by Additional District Judge, Sirmour at Nahan in Civil Miscellaneous Appeal No. 4-N/14 of 2021, titled as The Principal Army Public School, Nahan and another Vs. Deep Lal, whereby interim order dated 31.3.2021 passed in favour of petitioner/plaintiff by Senior Civil Judge, Sirmour at Nahan in CMA No. 78/6 of 2021 under Order 39 Rules 1 and 2 of the Code of Civil Procedure in Civil Suit No. 7/1 of 2021, titled as Deep Lal Vs. The Principal Army Public School, Nahan and another, has been set aside and vacated.
2. Brief facts of the case are that petitioner/plaintiff had been serving in the Army Public School (APS), Nahan since 16th April, 1998 till March, 2019 as PGT Commerce. On 19.1.2021, he submitted his resignation due to his family problem with request to relieve him as per rule position of Red Book Addition dated 25.3.2019.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 21/12/2023 20:33:18 :::CIS 2 CMPMO No. 32 of 2022
3. Petitioner/plaintiff filed an application dated 28.1.2021 for withdrawal of his resignation forthwith with prayer to allow him to continue his duties as PGT in Army Public School (APS) as before, stating therein .
that at the time of submitting his resignation on 19.1.2021 he was under
duress, and since submission of his resignation, he was under great stress as he was hailing from a very poor background and it would not be possible for him to sustain himself and his family without employment in the School of and, therefore, analyzing the situation, he had realized that resigning from the School, under duress, was not a wise step especially when he has rt excellent credentials as a PG Teacher (Commerce) in prestigious APS for the last 23 years of his employment.
4. Claim of the respondent/defendant is that before withdrawal of resignation, it was accepted by the Chairman Managing Committee on 27.1.2021 and it was sent to the plaintiff/petitioner on the same date, through Head Clerk. However, plaintiff did not receive it by saying that he will first meet the Chairman sir before accepting the same. According to defendants, withdrawal of resignation on 28.1.2021 was meaningless after acceptance of resignation on 27.1.2021. Whereas, petitioner/plaintiff claims that he had received the communication dated 27.1.2021 only on 3.2.2021 through his email, but never before, and according to him this communication was antedated, with mention of a date before 28.1.2021, on which date, he had filed an application for withdrawal of resignation.
5. It is further claim of the plaintiff/petitioner that as per Red Book, he after tendering resignation, was entitled to continue up to 31.3.2021 and resignation would have been accepted on 31.3.2021 and, therefore, withdrawal of resignation on a date prior to 31.3.2021, i.e. 28.1.2021, was valid and petitioner should have been permitted by the concerned authority, particularly when acceptance of resignation vide communication dated 27.1.2021 is not by the competent authority, as it has been accepted by ::: Downloaded on - 21/12/2023 20:33:18 :::CIS 3 CMPMO No. 32 of 2022 Chairman only, whereas competent authority is Patron of the School Management.
6. Feeling aggrieved by non-acceptance of withdrawal by the .
defendant/respondent, petitioner has preferred a suit seeking declaration that communication dated 27.1.2021, accepting the resignation of plaintiff/petitioner is illegal, arbitrary, nullity, having no effect on the rights of the plaintiff to continue to hold the post of PGT (Commerce) till retirement of with all consequential benefits of job and also for mandatory injunction to direct the defendants by appropriate writ or command to withdraw order rt dated 27.1.2021 and permit the plaintiff to continue in service as before 27.1.2021 as per Rules alongwith all consequential benefits and for permanent injunction restraining the defendants from throwing out the plaintiff/petitioner from the job of PGT (Commerce) Teacher illegally.
7. The application for interim injunction was also filed alongwith suit, which was allowed by the Trial Court, restraining the defendants from removing the plaintiff/petitioner from his regular job till final disposal of the main suit.
8. Defendants/respondents preferred appeal, which has been allowed by the Additional District Judge and order passed by the Trial Court has been set aside, mainly on the ground that petitioner/plaintiff is not going to suffer legal injury, which cannot be compensated in terms of money and further that balance of convenience in present case is in favour of defendants.
9. It has been contended on behalf of plaintiff/petitioner that acceptance of resignation is not by the competent authority and, therefore, there is no acceptance of resignation and thus application for withdrawal of resignation is legal and valid and plaintiff/petitioner is entitled to continue in the school and, therefore, Trial Court has rightly passed temporary ::: Downloaded on - 21/12/2023 20:33:18 :::CIS 4 CMPMO No. 32 of 2022 injunction restraining the respondents/defendants from ousting the petitioner from the job.
10. It has been contended on behalf of respondents/defendants .
that resignation has been accepted by the competent authority before withdrawing the same and the School has closed the Commerce stream, because there were only 6 students in the school in the said stream and salary of Commerce teacher, i.e. petitioner/plaintiff is to be derived from fee of of these students and now respondents/defendants are not in a position to pay salary of petitioner and in such a situation services of petitioner could rt not be thrusted upon by the Court upon the respondents/defendants.
11. Plaintiff/petitioner is claiming his right on the basis of service rules applicable to him on the basis of contract of service. He is claiming his entitlement for withdrawing the resignation rendered by him to be legal and valid and well in time. The said fact is being disputed by respondents/defendants. Petitioner/plaintiff stands ousted from job, as he has not been permitted to continue by the respondents/defendants.
12. The essential ingredients which warrant issuance of temporary interim injunction in favour of a party are that whether there is a prima facie case in favour of applicant, balance of convenience and irreparable loss, which cannot be compensated in terms of money.
13. In present case, it cannot be said ex facie that there is no merit in the claim of either party, however, it is difficult to say without adjudication that in whose favour prima facie case is made out and the injury suffered by the petitioner/plaintiff cannot be termed as a irreparable injury which cannot be compensated in terms of money. Breach of service contract or denial of continuation in service illegally, shall always make the defendants liable to pay damages for that. It is not a case where compensation cannot be calculated in terms of money.
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14. As stream of Commerce has been closed in the School and, therefore, balance of convenience also lies in favour of the respondents/defendant, because in absence of students, a teacher of a .
subject, stream whereof has been closed, cannot be thrusted upon the School by the Court, however, in case, on conclusion of trial case is decided in favour of petitioner/plaintiff, he can always be compensated with direction to the respondents/defendants to pay damages equivalent to or higher than of his emoluments payable to him till his retirement. Further, it is also noticeable that in plaint, there is no prayer for damages also.
rt Without commenting upon the impact thereof, this issue is kept open, because plaintiff has always a right to amend the plaint as permissible under law.
15. Be that as it may, in view of above discussion, it is apparent that by passing impugned order Additional District Judge has not committed any illegality, irregularity, judicial impropriety or perversity by setting aside the order passed by the Trial court and accordingly, petition is dismissed being devoid of merit, so also pending application(s), if any.
(Vivek Singh Thakur), st 21 December, 2023 Judge.
(Keshav) ::: Downloaded on - 21/12/2023 20:33:18 :::CIS