Zilla Parishad, Agra v. R. P. Singhal — 1981 DIGILAW 237 (ALL)

JUDGMENT V.K. Mehrotra, J. - Zila Parishad, Agra, the defendant in a suit filed by plaintiff-respondent Dr. R.P. Singhal, had filed the present Second Appeal, against the judgment of the District Judge, Agra decreeing the plaintiff's suit after setting aside the trial court decree of its dismissal. By the impugned decree, the District Judge has directed recovery of a sum of Rs. 6570/- with pendente lite and future interest at 6 per cent per annum till the date of realisation along with proportionate cost thereof from the appellant. 2. The case of the plaintiff was that after his appointment as a Medical Officer of Etmadpur dispensary on May, 21, 1963 by the then President of the Parishad, he assumed charge on May 25, 1963 and performed his duties sincerely. He proceeded on casual leave during the month of October, 1963 and got it extended till November, 1 of that year, Meanwhile, the Zila Parishad illegally appointed one Dr. V.P. Goel as Medical Officer for the dispensary aforesaid in his place. Subsequently, the Parishad is said to have initiated disciplinary proceedings against the plaintiff in respect of some misconduct attributed to him and placed the plaintiff under suspension pending inquiry. The matter was dealt with leisurely by the Parishad. The plaintiff felt disgusted with the manner in which he was being dealt with and tendered his resignation from the post to which he had been appointed and asked the Parishad to accept the same. This was done on September 15, 1964. The Parishad, according to the plaintiff, continued to deal with the matter of resignation in a dilatory fashion and did not communicate its acceptance to him in spite of repeated reminders. Eventually, it was as late as on January 4, 1966 that the plaintiff was informed that his resignation has been accepted through a resolution by the Parishad on November 8, 1965 with effect from September 15, 1964. The plaintiff filed a suit, out of which the present appeal arises, on July 31, 1967 in which he claimed that he continued to remain in the employment of the Parishad till January 4, 1966 when he was communicated the acceptance by the Parishad of his resignation. He claimed that he was entitled to all the emoluments which he would have received from the Parishad till that date. He claimed that he was entitled to all the emoluments which he would have received from the Parishad till that date. Since the Parishad had not paid him the amount, the plaintiff claimed for a decree in his favour. In addition to the amount of emoluments due to him, the plaintiff also claimed some other outstanding amount due from the Parishad to him as well as a sum of Rs. 5000/- as the cost of the articles left by him in the premises where he was residing while in service and which was subsequently occupied by his successor. In all, he claimed a decree for a sum of Rs. 11,935/- with pendente lite and future interest. The details of the amount claimed were given out by the plaintiff in annexure 'A' appended to the plaint. 3. The suit was resisted by the present appellant on various grounds and inter alia, it was pleaded that the plaintiff's suit was barred by limitation for having not been brought within the period of six months of the date on which the plaintiff admittedly was communicated with the Parishad's decision to accept his resignation. This plea was founded upon the provisions contained in sub-section (3) of Section 257 of the U.P. Kshettra Samiti and Zila Parishad Adhiniyam, 1961 (hereinafter, the 'Adhiniyam'). The correctness of the plaintiff's claim in regard to the amount recoverable was also disputed and it was averred that the plaintiff was not entitled to any amount for the period beyond September 15, 1964 from which date his resignation had been accepted. It was said that the plaintiff was only entitled to a sum of Rs. 132.50 as remuneration for the period between August 1, 1964 to September 15, 1964 after deduction of a months remuneration in lieu of the period of notice for resignation. 4. The trial court, after framing the necessary issues, took the view that the plaintiff had not succeeded in establishing that any personal goods belonging to him had been left behind in the residential quarter occupied by him. As such, he could not claim a sum of Rs. 5000/- in that regard. 4. The trial court, after framing the necessary issues, took the view that the plaintiff had not succeeded in establishing that any personal goods belonging to him had been left behind in the residential quarter occupied by him. As such, he could not claim a sum of Rs. 5000/- in that regard. It also took the view that, inasmuch as, the acceptance of his resignation by the Parishad had been communicated to the plaintiff on January 4, 1966 the suit which was filed on July 31, 1967 after a lapse of more than eighteen months thereafter, was barred by limitation due to the provisions of Section 257 of the Adhiniyam which provided for a period of six months as limitation from the date of the accrual of the cause of action. For coming to this conclusion, the trial court placed reliance upon the decision of the Supreme Court in Sita Ram Goel v. Municipal Board, Kanpur ( AIR 1958 SC 1036 ): (1959 All LJ 106) and of this Court in Dargahi Lal Nigam v. Kanpur Municipal Board (AIR 1952 J All 382): (1952 All LJ 122) (FB) which were rendered in respect of a similar provision in Section 326 of the U.P. Municipalities Act. The trial Court dismissed the suit. 5. The plaintiff took the matter in appeal and the lower appellate court modified the decree in favour of the plaintiff. The lower appellate court, after reappraising the evidence on record, concluded, like the trial court, that the plaintiff had not succeeded in establishing his case of having left behind personal goods in the residential quarter and thus being entitled to claim a sum of Rs. 5000/- from the Parishad in that regard. It, however, disagreed with the trial court in its view about the suit being barred by limitation. It took the view that, the suit was within limitation being one for recovery of arrears of salary for which the period of limitation would be three years from the date when the cause of action for its recovery accrued. The lower appellate court was of opinion that the cause of action accrued when information about the acceptance of his resignation by the Parishad was received by the plaintiff, namely, on January 4, 1966. The lower appellate court was of opinion that the cause of action accrued when information about the acceptance of his resignation by the Parishad was received by the plaintiff, namely, on January 4, 1966. In taking this view the lower appellate court followed the decision of this Court in the case of Municipal Board, Agra v. Ram Kishan, (1933 All LJ 1414): (AIR 1933 All 785) and that in the case of Zilla Parishad (District Board) v. Smt. Shanti Devi, ( AIR 1965 All 590 ): (1965 All LJ 221) (FB). In these cases, the view taken was that where the recovery of an amount from the Board was not founded upon withholding of payment, the non-payment could not be held to be civil wrong and could not, therefore, be treated as an act of the Board which was being assailed in the suit so as to invoke the bar of six months rule of limitation. 6. The submission which has been made on behalf of the appellant Parishad in this Court is that the view taken by the lower appellate court that the suit was not governed by the six month's rule of limitation provided for in Section 257 of the Adhiniyam is not correct. It has been urged that admittedly the resignation tendered by the plaintiff had been accepted by the Parishad with effect from September 15, 1964 and that before the plaintiff's suit for recovery of emoluments for any period subsequent to that date could be decreed, it had to be found that the resolution of the Parishad by which the resignation of the plaintiff has been so accepted, was invalid. Since the resolution of the Parishad was an act of the Parishad, any adjudication about it could not be made except in a suit brought within a period of six months from the communication of the resolution of the Parishad to the plaintiff. This submission has been countered on behalf of the plaintiff-respondent and the submission made is that the resignation of the plaintiff was a mute and ineffective resignation till its acceptance by the Parishad had been communicated to the plaintiff so that the plaintiff was not called upon to seek any adjudication about the validity of the resolution of the Parishad. This submission has been countered on behalf of the plaintiff-respondent and the submission made is that the resignation of the plaintiff was a mute and ineffective resignation till its acceptance by the Parishad had been communicated to the plaintiff so that the plaintiff was not called upon to seek any adjudication about the validity of the resolution of the Parishad. The cause of action, according to the submission made on behalf of the plaintiff-respondent, arose only when it was communicated to him that his resignation has been accepted by the Parishad for it is only on that date, namely, January 4, 1966 that the relationship of master and servant between the Parishad and the plaintiff ceased. The plaintiff was therefore, entitled to the salary which accrued to him, month by month, till January 4, 1966 and he could bring a suit for its recovery within a period of three years from that date in accordance with Article 102 of the Schedule to the Indian Limitation Act, 1963. 7. The question as to when the resignation offered by an employee becomes effective has been the subject matter of various judicial pronouncements, In Raj Kumar v. Union of India ( AIR 1969 SC 180 ) it was observed (in paragraph 5 of the report) as follows;- "....... Termination of employment by order passed by the Government does not become effective until the order is intimated to the employee. But where 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 open 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. Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation has not been accepted .... 7A. 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. Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation has not been accepted .... 7A. In Union of India v. Gopal Chandra Misra ( AIR 1978 SC 694 ) a Constitution Bench of the Supreme Court laid down (by majority) that in the case of the Government servant or functionary who cannot, under the conditions of his service or office, by his own unilateral act if tendering resignation, give up his service/or office, normally the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. 8. In the present case, it is undisputed that the resignation tendered by the plaintiff was accepted by the Parishad by its resolution dated November 8, 1965. It is true that the acceptance so made was communicated to the plaintiff by the Parishad on January 4, 1966. That would, however, not postpone the effectiveness of the resignation tendered by the plaintiff to the later date as is contended by his learned counsel. The plaintiff had mentioned in the letter of his resignation (Ex. A-11) as follows :- "Sir I tender my resignation from the post of Medical Officer, Chitrahat Dispensary, Agra with immediate effect. May this be kindly accepted." It was not mentioned by the plaintiff that his resignation was not to be effective until acceptance thereof was intimated to him. It is obvious that on its plain terms the resignation was to become effective as soon as it was accepted by the appropriate authority. In this respect, the position of the resignation letter sent by the plaintiff is akin to the one which was under consideration before the Supreme Court in Raj Kumars case ( AIR 1969 SC 180 ) (supra). The Supreme Court in that decision did not countenance the argument that the resignation tendered would not become effective until the acceptance thereof was communicated to the tenderer. 9. The Supreme Court in that decision did not countenance the argument that the resignation tendered would not become effective until the acceptance thereof was communicated to the tenderer. 9. In Smt. Indira Nehru Gandhi v. Raj Narain ( AIR 1975 SC 2299 ), M.H. Beg, J. (as he then was) observed (in para 435 of the report) that neither the Government nor the Government servant is in a worse position than an ordinary master or servant on a matter governed by contract. In fact, Article 310 makes it clear that in such a case, the tenure of office of a Central Government servant is "during the pleasure of the President". In the instant case, the President's pleasure was contained in the notification D/- 25-1-1971 showing that the President had accepted the resignation of Shri Kapur with effect from the forenoon of 14-1-1971. And, this is what Shri Kapur himself wanted. Hence, there is no difficulty at all in accepting the correctness of a resignation effective from the date which both parties to the contract on patent facts, had agreed to. No rights of an innocent third party were either involved or affected by such an acceptance of the resignation from the date immediately after the date on which Shri Kapur had tendered his resignation .......... Relying upon these observations, it has strenuously been contended by the counsel for the appellant Zilla Parishad that the plaintiff having himself offered to resign with immediate effect, the acceptance of that request by the Parishad, though delayed, would not have the effect of postponing the effectiveness of the resignation to any date subsequent to the date on which the resignation had been tendered. This submission can, however, not be accepted in the facts of the present case. As has been noticed earlier, the plaintiff had asked for the acceptance of the resignation tendered by him. It is not in dispute between the parties that under the relevant rules, it was not open to the plaintiff to have unilaterally given up his post and that it was imperative for him to have waited for the acceptance of the resignation by the Parishad before he could treat himself to be out of its employment. It is not in dispute between the parties that under the relevant rules, it was not open to the plaintiff to have unilaterally given up his post and that it was imperative for him to have waited for the acceptance of the resignation by the Parishad before he could treat himself to be out of its employment. In these circumstances, it has to be held that the plaintiff could only treat himself relieved from his obligation as an employee of the Parishad when the resignation tendered by him was accepted by the Parishad as prayed for by the plaintiff. In Indira Nehru Gandhi's case (supra), the facts, in the background whereof the aforesaid observations of the Supreme Court have to be read, were that Sri Kapur whose resignation was the subject matter of the observation, had put the date as 14-1-1971 under his signature on the document evidencing a final handing over charge as it was to take effect from that date. The request of Sri Kapur to be relieved from office with effect from 14-1-1971 had been accepted and acted upon immediately by Sri P.N. Haksar as the official head of the Prime Minister's Secretariat (and the) papers were sent to the Secretariate of the President of India for completion of the formality. Subsequently the presidential sanction having been obtained, the notification dated 25-1-71 declaring the resignation of Sri Kapur to be effective from 14-1-1971 was published on 6-2-1971. It is obvious that the circumstances in the present case are substantially different from the one in the case of Smt. Indira Nehru Gandhi. 10. If once it is held that the resignation which had been tendered by the plaintiff became effective only upon its acceptance by the Parishad by its resolution dated November 8, 1965 it follows as a natural corollary that the letter of resignation remained a mute letter until that date. The occasion for obtaining any adjudication about the correctness of the recital in that letter that the resignation of the plaintiff was being accepted with effect from September 15. 1964 did not, therefore, arise, as is argued, before the plaintiff could claim his emoluments on the basis that he continued to be in the service of the parishad until the acceptance of his resignation. There was no question, therefore, of there being any adjudication of an act done by the parishad being involved in the matter. 1964 did not, therefore, arise, as is argued, before the plaintiff could claim his emoluments on the basis that he continued to be in the service of the parishad until the acceptance of his resignation. There was no question, therefore, of there being any adjudication of an act done by the parishad being involved in the matter. Consequently, the rule of limitation provided for in Section 257 of the Adhiniyam was not attracted. The view of the lower appellate court in this regard is not erroneous as canvassed by the counsel for the parishad. The rule of limitation which would govern the instant case was rightly held to be one of three years provided for in Article 102 of the Schedule to the Indian Limitation Act, 1963. Thus viewed, the plaintiffs suit could not be thrown out on the ground that it was barred by limitation. 11. The lower appellate court, as noticed earlier decreed the plaintiffs suit for recovery of the amount claimed by him as emoluments till January 4, 1966, This decree can, however, not be upheld in view of what has been said earlier. The resignation of the plaintiff became effective on November 8, 1965 and he was, consequently, not entitled to any amount for a period subsequent to that date. It has been urged by the counsel for the parishad that from the amount to which the plaintiff could be held entitled, a sum due for the period of notice, which the plaintiff was obliged to give to the parishad before resigning from his office, has to be adjusted. No serious objection can be taken to this submission. From paragraph 27 of the written statement of the parishad as also from the recital contained in its letter dated January 4, 1966 (Exhibit A-18) to the plaintiff and the reply to the counsel for the parishad to the notice served by the plaintiff's counsel (in paragraph 251, it is clear that the parishad was claiming to be entitled to a month's pay in lieu of the period of notice for resignation. That amount has thus to be deducted from the amount which the plaintiff is entitled to recover. 12. In the result, the appeal succeeds and is partly allowed. That amount has thus to be deducted from the amount which the plaintiff is entitled to recover. 12. In the result, the appeal succeeds and is partly allowed. The plaintiff's suit shall stand decreed for the emoluments due to him till November 8, 1965 less the amount of a month's emolument, in lieu of the period of notice of resignation, instead of for the amount for which it has been decreed by the lower appellate court, namely for the period ending January 4, 1966. The suit, therefore, shall stand decreed for recovery of a sum of Rs. 6735/- in addition to which the plaintiff shall be entitled to pendente lite and future interest at the rate of 6% per annum till the date of realisation. The parties shall, however, bear their own costs In this court.