SHRI KISHAN GOPAL VERMA (SINCE DEAD) REPRESENTED BY HIS LEGAL HEIRS v. THE BALOISE MARINE INSURANCE CO. LTD. AND OTHERS

Judgment

- 19TH May,2012 HON'BLE MS. JUSTICE BELA M.TRIVEDI Mr. Amit Gupta for Mr. B.L.Aggrawal, for the appellants, Mr. Arif Madnani, for the respondents, BY THE COURT (1) The appellant(original plaintiff) had filed the present appeal under Section 96 read with O. XLI R.1 of C.P.C. challenging the judgment and decree dated 29.7.92, passed by the Additional S.B. CIVIL FIRST APPEAL NO. 236/1992 2 District and Sessions Judge No. 2, Ajmer, in Civil Suit No. 38/74(157/85), whereby the trial Court had dismissed the suit of the plaintiff. During the pendency of the appeal, the appellant having expired, his heirs have been brought on record and they have pursued the appeal. (2)The appellant(original-plaintiff) was appointed as Typist-cum-clerk and posted at the branch office, Ajmer, by the respondent no.1 (original defendant no.1), on 15.7.1965 and was confirmed as such on 1.6.1967. On 3.4.1969, the plaintiff tendered his resignation from the services of defendant no. 1 to the Branch Manager at Ajmer, of the defendant

no. 1. According to the plaintiff, the said resignation letter was operative and effective after the expiry of 30 days notice or on forfeiture of salary of 30 days in lieu of the notice as per the service conditions contained in the letter of appointment. The Branch Manager, Ajmer, of the defendant no. 1, vide his letter dated 4.4.1969, forwarded the resignation of the plaintiff to the S.B. CIVIL FIRST APPEAL NO. 236/1992 3 Bombay office of the defendant no. 1. Thereafter the plaintiff on 7.4.1969, withdrew his resignation and intimated about the same to the defendant no. 1 at Bombay as well as the branch office at Ajmer. However, the Manager at the Bombay Office of the defendant no. 1 had accepted the resignation of the plaintiff on 8.4.1969 with effect from 3.4.1969. The services of the plaintiff thus came to be determined with effect from

3.4.1969. The plaintiff thereafter served a registered notice to the defendant no. 1 on 28.5.1969, claiming his reinstatement in service, however the defendant no. 1 did not reinstate the plaintiff. Thereafter, it appears that the management of the defendant no. 1 was taken over by the defendants nos. 2 and 3, in view of the Presidential Notification dated 13.5.1971, and accordingly the assets and liabilities of the defendant no. 1 had vested in the defendant nos. 2 and 3. The plaintiff thereafter serving notice dated 10.5.1972 to the defendant no. 2 under Section 80 of the C.P.C., filed the suit in the S.B. CIVIL FIRST APPEAL NO. 236/1992 4 trial Court seeking a declaration that the plaintiff was in the service of the defendants right from 3.4.1969 and was also entitled to his salary for the intervening period. (3) The said suit was resisted by the respondents (original defendants) by filing two separate written statements, challenging the very maintainability of the suit, on the ground of being barred by law of limitation. It was also contended inter alia that the suit in substance was for reinstatement in service and the Court did not have the jurisdiction to entertain the suit. The defendant nos.2 and 3 had also contended that no cause of action had arisen against the said defendants as the plaintiff at the relevant time was in the employment of the defendant no. 1 and his services having come to an end as per his resignation, he could not be said to be in the employment of the defendants. It was also contended that the resignation of the plaintiff having been accepted by the defendant no. 1 on

8.4.1969, w.e.f. 3.4.1969, the services S.B. CIVIL FIRST APPEAL NO. 236/1992 5 of the plaintiff had come to an end and that his suit was also barred by the provisions contained in the Specific Relief Act. (4) From the pleadings of the parties, the trial Court had framed as many as nine issues and after appreciating the evidence on record, dismissed the suit of the plaintiff by the impugned judgment and decree dated 29.7.1992. As stated earlier, being aggrieved by the said judgment and decree, the present appeal was filed by the original plaintiff/appellant. (5) It has been submitted by learned counsel Mr. Amit Gupta for Mr. B.L.Aggrawal for the appellants, who are now substituted as legal representatives of the original appellant that the trial court had mis- appreciated the evidence on record and also the Provisions of the Contract Act. Pressing into service the provisions contained in Section 5 of the Contract Act, Mr. Gupta has submitted that the plaintiff had right to revoke his offer namely, withdrawal of resignation, before the communication of the S.B. CIVIL FIRST APPEAL NO. 236/1992 6 acceptance of the said resignation was received by the plaintiff. According to Mr. Gupta, the defendant no.1 had accepted the resignation of the plaintiff on 8.4.1969, whereas the plaintiff had withdrawn his resignation dated 3.4.1969 on 7.4.1969 and intimated the same to the Ajmer Branch of the defendant no. 1 and thus had withdrawn the resignation before the same was accepted by the defendant no. 1 at Bombay office. He also submitted that the Ajmer Branch of the defendant no. 1 had also sent a telegram(Ex.13) to the Bombay Office of the defendant no. 1 soon after the receipt of withdrawal of resignation(Ex.5), which was over looked by the trial Court while holding that the resignation of the plaintiff was already accepted before it was withdrawn by the plaintiff. Mr. Gupta has placed reliance upon decisions of Apex Court in cases of Bank of India and others V. O.P. Swarankar , AIR 2003 Supreme Court 858, SHAMBHU MURARI SINHA VS. PROJECT AND DEVELOPMENT INDIA AND ANOTHER(2000)5 Supreme Court Cases 621, J.N. SRIVASTAVA S.B. CIVIL FIRST APPEAL NO. 236/1992 7 VS. UNION OF INDIA AND ANOTHER (1998)9 Supreme Court Cases 559, POWER FINANCE CORPOROATION LTD. VS. PRAMOD KUMAR BHATIA(1997)4 Supreme Court Cases 280, and STATE OF PUNJAB V. AMAR SINGH HARIKA, AIR 1966 Supreme Court 1313 to buttress his submissions. (6) As against that , the learned counsel Mr. Arif Madnani for the respondents has vehemently submitted that resignation of the plaintiff having been already accepted by the defendant no.1 on

8.4.1969,his services had come to an end w.e.f. 3.4.1996. He also submitted that as per the settled legal position, in absence of any rules, the services stand determined as soon as the resignation of the employee is accepted by the employer and not on the communication of such acceptance. According to him, even the communication of acceptance was also not necessary. He also submitted that the finding of the trial Court that the suit was not barred by law of limitation was erroneous and the same could be assailed by the respondents while supporting the decree without filing any cross S.B. CIVIL FIRST APPEAL NO. 236/1992 8 objection against such finding in view of O. XLI R. 22 of the C.P.C. According to Mr.Madnani, the suit was grossly time barred as though the resignation was accepted by the defendant no. 1 on

8.4.1969, w.e.f. 3.4.1969, the plaintiff did not challenge the said action of the defendant no. 1 for a period of more than three years and in the meantime, as per the Presidential Notification, the management of defendant no.1 was taken over by the defendant no. 2 & therefore, also no cause of action had survived against the defendants. Mr. Madnani has relied upon the decisions of Apex Court in cases of Raj Kumar V. Union of India AIR 1969 SUPREME COURT 180, RESERVE BANK OF INDIA AND ANOTHER VERSUS CECIL DENNIS SOLOMON AND ANOTHER (2004)9 Supreme Court Cases 461 , RAJASTHAN STATE ELECTRICITY BOARD AND OTHERS VS. BRIJ MOHAN PARIHAR(2000)9 Supreme Court Cases 269 and NORTH ZONE CULTURAL CENTRE AND ANOTHER VS. VEDPATHI DINESH KUMAR(2003) 5Supreme Court Cases 455 in support of his submissions. S.B. CIVIL FIRST APPEAL NO. 236/1992 9 (7)If the submissions made by the learned counsels for the parties are appreciated in the light of the evidence adduced by the parties in the trial Court, two main points arise for determination before this Court in the present appeal. Firstly, whether the suit of the plaintiff was barred by law of limitation and secondly, whether the plaintiff was entitled to the declaratory reliefs as sought for in the suit. (8) The undisputed facts, which are also part of the record are that the plaintiff was in the employment of the defendant no. 1 since 15.7.1965, and was confirmed on 1.6.1967. He was working as the Typist-cum-clerk at the Ajmer Branch of the defendant no. 1. He tendered the resignation dated 3.4.1969 (Ex.2) to the Branch Manager, Ajmer Branch of the defendant no. 1 by post. On 4.4.1969, the Branch Manager, Ajmer Branch , wrote a letter (Ex.3) to the plaintiff acknowledging the receipt of the resignation letter dated 3.4.1969, and further conveying that as per terms of S.B. CIVIL FIRST APPEAL NO. 236/1992 10 appointment, 30 days notice was necessary, however, since he was determined to leave the company's service, the Principal Office, Bombay was recommended to accept the said resignation. Thereafter, the plaintiff again wrote a letter to the Branch Manager, Ajmer Branch, on 7.4.1969, withdrawing his resignation (Ex.5). However, before the said letter dated

7.4.1969, could reach to the Principal Office of the defendant no.1, at Bombay, the resignation tendered by the plaintiff was accepted by the said office as per the letter dated 8.4.1969, waiving the notice period of 30 days, relieving the plaintiff from his duty w.e.f. 3.4.1969 (Ex.4). Again the plaintiff wrote a letter dated

20.4.1969, to the Manager of Principal Office of defendant No. 1 at Bombay, stating interalia that since he had withdrawn his resignation, he was required to be treated in service and was entitled to the salary and other allowances from 3.4.1969(Ex.6). The said letter was replied to by the Bombay S.B. CIVIL FIRST APPEAL NO. 236/1992 11 Office of the defendant No.1 vide letter dated 28.4.1969, stating inter alia that the resignation of the plaintiff was already accepted vide letter dated

8.4.1969 and the question of withdrawal of the resignation did not arise (Ex.10). It was also stated that the plaintiff was not entitled to receive any dues for the month of April 1969, as he had remained absent from duty on 1st and 2nd April, 1969, without applying for leave and his resignation was accepted w.e.f. 3.4.1969, and that the matter be treated as closed. (9) In view of the above correspondence, it clearly transpires that the cause of action to challenge the decision of the defendant no. 1 had already arisen on

8.4.1969, when the resignation of the plaintiff was accepted w.e.f. 3.4.1969, and thereafter when the plaintiff was informed vide letter dated 28.4.1969, to treat the matter as closed, informing him that the question of withdrawal of resignation did not arise nor the question of his receiving any dues from the defendant no. 1 had arisen. However, S.B. CIVIL FIRST APPEAL NO. 236/1992 12 the plaintiff remained silent for about more than three years and thereafter suddenly served a notice to the defendant no. 3, the Union of India, under Section 80 of C.P.C. on 9th of May 1972, making the same request of reinstatement and payment of arrears of salary and other dues(Ex.8). After the service of said notice, the plaintiff filed the suit against the defendants seeking declaration and injunction on

12.7.1972. At this juncture, it is required to be stated that as per Article 58 of the Limitation Act, 1963, the suit to obtain declaration is required to be filed within a period of three years from the date when the right to sue first accrues. In the instant case, as stated herein above, the right to seek declaratory relief had already arisen against the defendant no. 1, when the defendant no.1 accepted the resignation of the plaintiff vide letter dated 8.4.1969, and thereafter refused to entertain any correspondence with him with regard to his withdrawal of resignation or payment of salary as per S.B. CIVIL FIRST APPEAL NO. 236/1992 13 the letter dated 28.4.1969. The suit thereafter having been filed on 12.7.72, i.e. more than three years after the cause of action having arisen, the same was clearly barred under Article 58 of the Limitation Act. (10)Though, it was sought to be submitted by learned counsel Mr. Amit Gupta for the appellants that the trial Court had decided the issue with regard to the limitation in favour of the plaintiff, considering the notice dated 10.5.1972 given by the plaintiff to the defendant No. 2 under Section 80 of C.P.C. prior to filing of the suit and that there was no cross-objection filed by the respondents in the present appeal against the said finding given by the trial Court,there is no substance in the said submission of Mr. Gupta. As discussed herein above, the cause of action to file the suit against the defendant no. 1 had already arisen on

8.4.1969, when the services of the plaintiff were determined by the respondent no. 1. The subsequent notice given by the plaintiff on 10.5.1972, to S.B. CIVIL FIRST APPEAL NO. 236/1992 14 the defendant no. 2 under the guise of complying with the requirement of Section 80 of C.P.C. was given only with a view to bring the suit within the period of limitation. During the said period between 1969 to 1972, the management of the defendant no. 1 was already taken over by the defendant nos. 2 and 3, in view of the Presidential Notification dated 13.5.1971.There being no cause of action having arisen against the defendant no. 2 and 3, as such there was no need to serve any notice to the said defendants under Section 80 of C.P.C. It is also pertinent to note that in view of O. XLI,R.22 read with R.33, the respondents are entitled to support the decree of the trial Court without challenging the particular finding rendered by the trial Court against them without filing memorandum of cross- objection. The said position is also settled by the Apex Court in cases of S. Nazeer Ahmed v. State Bank of Mysore & Ors. AIR 2007 SUPREME COURT 989 and RAVINDRA KUMAR SHARMA VS. STATE OF ASSAM AND OTHERS (1999)7 Supreme Court S.B. CIVIL FIRST APPEAL NO. 236/1992 15 Cases 435 . In that view of the matter , it is required to be noted that the suit filed by the plaintiff was clearly barred by the law of limitation. (11) So far as the merits of the case of the plaintiff are concerned, it was submitted by learned counsel Mr. Gupta that the plaintiff had right to withdraw his resignation before its acceptance was communicated to him. The learned counsel Mr. Gupta has relied upon the judgments of Apex Court to buttress his submissions, however, all the said judgments pertained to the cases where the employee had tendered voluntary retirement and withdrawal of such retirement was in question. None of the said cases has any application to the facts of the present case in as much as the present case pertained to the resignation and not the voluntary retirement. The Apex Court in case of RESERVE BANK OF INDIA AND ANOTHER VERSUS CECIL DENNIS SOLOMON AND ANOTHER (Supra), has while pointing the differences between the “voluntary retirement” and “resignation” has S.B. CIVIL FIRST APPEAL NO. 236/1992 16 observed that “though both involve voluntary acts, operate differently. Resignation can be tendered at any time but voluntary retirement can be sought for only after rendering the requisite period of qualifying service. In case of the former , normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary.” (12)In the instant case, Mr. Gupta has failed to point out any rule or guideline of the defendant no. 1 requiring the defendant no. 1 to communicate the acceptance of resignation tendered by the plaintiff. As per the normal rule, the resignation comes into effect and becomes operative from the date it is accepted by the S.B. CIVIL FIRST APPEAL NO. 236/1992 17 competent authority and not from the date when such communication of acceptance is received by the employee as sought to be submitted by Mr. Gupta. The Apex Court in case of NORTH ZONE CULTURAL CENTRE AND ANOTHER VS. VEDPATHI DINESH KUMAR (SUPRA) has gone to the extent of observing that even non-communication of the acceptance does not make the resignation inoperative provided there is in fact an acceptance before the withdrawal. So far as the facts of the present case are concerned, the resignation of the plaintiff was already accepted by the Bombay Office of the defendant No. 1 on 8.4.1969, w.e.f.

3.4.1969 and , therefore, the services of the plaintiff had already come to an end with such acceptance of resignation. Though the said resignation was sought to be withdrawn by the plaintiff as per his letter dated 7.4.1969, there is nothing on record to show that the said letter for withdrawal of resignation had reached to the Bombay Office of defendant No. 1, which was competent authority, before his resignation was S.B. CIVIL FIRST APPEAL NO. 236/1992 18 accepted by it on 8.4.1969. Even if it is believed that the plaintiff had withdrawn his resignation by the letter dated 7.4.1969, and submitted the same at branch office at Ajmer, the said letter had not reached to the Bombay Office of the defendant no. 1 before it was accepted on 8.4.1969. In absence of any rule or guideline, also it could not be said that the resignation of the plaintiff had not come into force till the communication of its acceptance was not received by the plaintiff. Therefore, it is required to be held that the resignation of the plaintiff had already become operative and effective from the date of its acceptance from 8.4.1969 w.e.f. 3.4.1969 as per the letter of the competent authority dated 8.4.1969(Ex.4). (13)In that view of the matter, the Court does not find any substance in the present appeal. The appeal, therefore, deserves to be dismissed and is accordingly dismissed. (Bela M. Trivedi)J. S.B. CIVIL FIRST APPEAL NO. 236/1992 19 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Indu Janjani PS-cum-J.W.