CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur J U D G M E N T In S.B. Civil Second Appeal No.151/1992 National Productivity Council and another Vs. G.R. Rijhwani Date Of Judgment :: 31.8.09 P R E S E N T Hon'ble Mr. Justice Jitendra Ray Goyal Mr. Manoj Kumar Sharma, for appellants. Mr. R.C. Joshi with Mrs. Namita Parihar, for respondent. ........... By the Court :- By way of this second appeal, appellant-defendants seek to challenge the judgment and decree dated 25/4/1992 passed by Additional District Judge No.6, Jaipur City, Jaipur in First Appeal No.28/1991 whereby he affirmed the judgment and decree dated 18/8/1990 CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (2) passed in favour of plaintiff by Additional Civil Judge No.4, Jaipur City, Jaipur in Civil Suit No.50/1988. 2. The parties shall be referred hereinafter in the manner as they were arrayed in the plaint. 3. Brief relevant facts giving rise to this second appeal are that plaintiff filed a suit stating therein that plaintiff was degree holder in mechanical engineering; he was appointed by the defendant organization on 6/12/1971 as Assistant Director and was confirmed on the said post on 6/12/1973 and on the basis of merit he was given promotion as Deputy Director (Junior) vide order dated 4-10-1976 and he was further promoted and confirmed on the post of Deputy Director (Senior) vide orders dated 15/10/1978 and 15/10/1980 CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (3) respectively. According to the plaintiff, he was not properly considered for the post of Director Grade-II in spite of his good record and persons junior to him were promoted on 12/4/1983. It was his further case that on account of regular super-session, he remained perturbed and he had to proceed on leave from 30/3/1983 to 13/5/1983, thereafter again he got his leave sanctioned from 14/5/1983 to 11/11/1983 and ultimately he tendered his resignation from the service on account of wrong action of the defendant National Productivity Council and its officers. He sent his resignation with three months prior notice on 30/8/1983 by registered A.D. which was received by the defendants. It was further pleaded that he received a letter sent by Director of defendant CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (4) organization dated 27/29-10-1983 whereby he was informed that his resignation is illegal, he has remained absent from the duty and he did not join the duty despite of the fact that his leave has been cancelled which was sanctioned from 30/3/1983 and further he was directed to refund the salary which he had received from 30/3/1983 to April, 1983 and it was also conveyed that his resignation has been deemed w.e.f. 29-3-1983 afternoon and thus according to the plaintiff this whole action was wrong and illegal, therefore, a declaration was sought to the effect that the letter dated 27/29-10-1983 is illegal and void and prayer for issuance of mandatory injunction was also made that plaintiff be considered on the post of Director Grade-II from the date when his juniors CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (5) were promoted. 4. Defendant National Productivity Council in its reply denied the allegations made in the plaint and averred that plaintiff was also considered for the post of Director Grade-II and the persons found suitable were promoted by the departmental- promotional committee and there was no malafide against the plaintiff. It was further pleaded by the defendants that plaintiff was in a habit to take leave and he remained mostly on leave after 1/5/1982 when he was transferred at Delhi. He remained on leave uptil 13/5/1983 on full wages and his half pay leave for the period from 14/5/1983 to 11/11/1983 was also sanctioned with the stipulation that as and when his services shall be required he shall present CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (6) himself on duty. It was further averred that a telegram was sent to the plaintiff on 5/8/1983 followed by registered letter, to join the duty. According to the defendant, it was incumbent upon the plaintiff to give three months prior notice or three months pay before resignation and since plaintiff sent his resignation while he was on leave, therefore, it was not in accordance to the rules. It was also pleaded that it was within the rights of the defendants from which date resignation may be made effective and since his resignation has been accepted on 29-10-1983, therefore, plaintiff was not having any right to withdraw the same. 5. On the basis of the pleadings of the parties, the trial court framed following issues :- CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (7) 1.आया ूितवादȣ का आदेश बमांक 22151 Ǒदनांक 27/29.10.1983 वाÙपऽ मɅ वǔण[त कारणɉ से अवैध, ूभावशूÛय व ǒबना अिधकार के है ् | 2. आया वादȣ ःथाई िनषेधा£ा कȧ सहायता पाने का अिधकारȣ हɇ यǑद हाँ तो Ǒकस कदर ? 3. आया Ûयायालय को वाद सुनने का ¢ेऽािधकार नहȣं हɇ ? 4. सहायता 5. आया वादȣ को डाइरेÈटर मेड-2 के पद पर पदोÛनित के िलए उसके ǒवभाग Ʈारा फैवरली व ूोपरली कंसीडर नहȣं ् Ǒकया गया है 6. Evidence was recorded and after hearing both the parties the trial court decided all the issues in favour of the plaintiff and decreed the suit. 7. Aggrieved from the said judgment and decree, the appellant- defendants filed first appeal which was partially allowed whereby the judgment and decree of the trial court except the decision on issue no.5 was upheld. Hence, this second appeal by the CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (8) defendants. 8. Heard learned counsel for the parties and perused the impugned judgments of the courts below and other material available on the record. 9. This Court admitted the appeal on 21-10-1992 and framed following substantial questions of law :- 1. Whether the letter dated 4.11.1983 written by the respondent to the petitioners has been wrongly construed as letter withdrawing the resignation w.e.f 30.11.83 ? 2. Whether the resignation w.e.f. 30.11.83 could be withdrawn by the respondent after it had been accepted by the petitioners ? 10. Learned counsel for the appellants firstly argued on the CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (9) application filed by him under Order 41 Rule 27 (1)(b) of the Code of Civil Procedure and submitted that defendant has not been afforded reasonable opportunity to cross-examine the plaintiff and the questions put to the plaintiff showing some relevant documents have wrongly been disallowed by the trial court. 11. In this regard, suffice is to say that defendants never raised this plea before the first appellate court and for the first time he is raising such plea before this Court in second appeal which under the facts and circumstances of the present case cannot be permitted at this stage. Therefore, there is no merit in the said application and the same is rejected. 12. Appellant-defendants have also CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (10) filed another application under Order 41 Rule 25 of the Code for framing the additional issue. 13. In this regard, learned counsel for the appellants submitted that there was specific pleading of the defendant that plaintiff's sanctioned leave was cancelled and he was informed by telegram dated 5/8/1983 followed by registered letter, therefore, this issue was essential for the just decision of the case that “whether in the facts and circumstances in which the Respondent had submitted his resignation dated 30/08/1983 from the services of the appellant and the facts mentioned in the letter dated 27/10/1983, the appellant rightly accepted the Respondent to have resigned the services of the appellant Council with effect from 29/03/1983.” CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (11) 14. In my considered opinion, the argument advanced by the counsel for the appellant-defendants on this point is not acceptable for the reason that no such specific plea has been taken by the defendants before the first appellate court and secondly the proposed issue is vague and virtually a rebuttal of issue no.1. Therefore, it is not desirable to frame additional issue as suggested by the counsel for the defendants at the stage of second appeal and therefore the said application deserves to be rejected and is rejected accordingly. 15. Learned counsel for the appellant-defendants next contended that plaintiff was in a habit to take leave and he mostly remained on leave after his transfer at Delhi; that his half pay leave was sanctioned with the stipulation CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (12) that as and when necessity would arise he may be called upon to join the duty. It was then submitted that sanctioned leave has been cancelled invoking the provisions contained in Rule 57 of the National Productivity Council (Service Rules) (in short the Rules) which were given effect from 1/4/1982 and he was informed by telegram followed by registered letter but despite of service and information he did not join, therefore, vide impugned order Ex.22 dated 27/29-10-1983 taking into account his long absence and by invoking the provisions of Rule 51 of the Rules it was deemed that plaintiff has resigned from service of the defendant Council and the same was accepted. It was then submitted that both the courts below have wrongly interpreted Ex.22 treating it to be an CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (13) order of acceptance of resignation tendered by the plaintiff whereas in fact that was not an acceptance letter of the resignation tendered by the plaintiff but because of long absence of the plaintiff from the duty it has been deemed that he has resigned from the service of the defendant Council w.e.f. 29-3-1983 afternoon, the date from which the sanctioned leave of the plaintiff has been cancelled. It was next submitted that defendant organization has dispensed with the service of the plaintiff because of his long absence by invoking the provisions of Rule 51 of the Rules and in such matters it was always not necessary to initiate disciplinary proceedings. In support of the contentions reliance has been placed upon the judgment rendered in the case of Nagpur Electric Light & Power CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (14) Co. Ltd and others Vs. K. Shreepathirao, reported in AIR 1958 S.C. 658 wherein while considering the C.P. and Berar Industrial Disputes Act and the standing orders issued thereunder, it has been held that it was open to the company to take action and terminate the service of the employee in accordance with the standing orders, even if no order of punishment and misconduct has been passed. He also relied upon the judgment delivered in the case of The Tata Engineering And Locomotive Co., Ltd. Vs. S.C. Prasad and another, reported in 1969 (3) Supreme Court Cases 372, wherein it has been held that exercise of the powers by the appellant company under standing order in preference to disciplinary action cannot render the order of discharge malafide or one passed in CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (15) clourable exercise of the power to discharge a workman from service if such power was properly exercised. It was next submitted that deemed resignation was given effect from 29-3-1983 in accordance to the Rules, however otherwise his deemed resignation may be treated from the date of order i.e. 27/29-10-1983. Reliance has been placed upon the judgment rendered in the case of Kumaon Motor Owner's Union, Ltd., Kathgodam Vs. State of Uttar Pradesh and others reported in 1994-II L.L.N. 79, wherein it was held that order purports to operate retrospectively is not permissible in law and therefore order of termination operates prospectively from the date on which it is passed. It was also submitted that it is not a case of government employee, therefore Article CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (16) 311 of the Constitution of India does not have any application in this matter. 16. Learned counsel for the plaintiff submitted that on account of harassment by senior officers of the defendant organization, plaintiff tendered his resignation Ex.15 on 30-8-1983 with three months prior notice with the prayer that his resignation may be given effect from 1/12/1983 but the said resignation was not accepted by the appellant-organization which is evident from the letter Ex.22 which is under challenge and against the rules decision has been taken that plaintiff employee shall be deemed to have resigned from the service of the Council w.e.f. 29-3-1983 afternoon, which was absolutely illegal and perverse because plaintiff-respondent was never informed or served with a CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (17) notice/letter that his sanctioned leave has been cancelled by the defendant- organization. It was further submitted that even according to Rule 51 of the Rules, an opportunity explaining the reasons of absence has to be given to the employee but there is no whisper at all in this regard that any letter was issued for affording him an opportunity to clear the position. Reliance has been placed upon the judgment in Jai Shanker Vs. State of Rajasthan, reported in AIR 1966 Supreme Court 492. It has further been submitted that there is concurrent finding of the fact which does not call for any interference. 17. I have considered the rival submissions made at the bar. Plaintiff has challenged the letter/order of the defendant organization Ex.22 dated CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (18) 27/29-10-1983 whereby the service of the plaintiff has been dispensed with considering his long absence to be deemed resignation. It is relevant to mention here that according to the written statement filed by the defendant organization, the resignation dated 30-8-1983 Ex.15 tendered by the plaintiff has been accepted by the defendants with retrospective effect i.e. 29-3-1983 but contrary to this as per the letter/order dated 27/29-10-1983 Ex.22 the said resignation tendered by the plaintiff was found not to be in accordance with the Rules and considering plaintiff's absence from the duty after cancellation of his sanctioned leave it has been deemed that plaintiff has resigned from the duty with effect from the date of cancellation of leave i.e. 29-3-1983 and this was the CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (19) case advanced and argued by the counsel for the defendant. Therefore, this controversy lost its significance that “whether plaintiff's letter dated 4-11- 1983 received by the defendants for withdrawal of his resignation was wrong and also whether plaintiff was competent to withdraw his resignation after its acceptance.” 18. Now the point remained for consideration is whether services of the plaintiff has rightly been dispensed with by invoking the provisions of Rule 51 of the Rules. Here it would be relevant to have a glance upon the said Rule which reads as under :- 51. Overstay after expiry of leave: An employee who remains absent from duty on the expiry of his leave shall not, unless the authority granting leave CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (20) directs otherwise, be entitled to any pay and allowances and shall be deemed to have resigned from the service of the Council, if the period of such unauthorised absence exceeds 15 days, unless he explains the reason for his absence to the satisfaction of the leave sanctioning authority. 19. According to the first part of the said Rule, an employee who remains absent from the duty on the expiry of his leave shall not be entitled to any pay and allowances unless the authority granting leave directs otherwise and in the second part there is a provision of deemed resignation from service of the Council if the period of such unauthorised absence exceeds 15 days and the employee fails to explain the reason CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (21) of his absence to the satisfaction of the leave sanctioning authority. Therefore, from the Rule 51 of the Rules, it is explicitly clear that before taking any recourse under the said provision, it was incumbent upon the employer to afford opportunity for explaining the reasons of absence to the satisfaction of the leave sanctioning authority. In Jai Shanker's case (supra) Hon'ble the Apex Court has held that removal from service of an employee for overstaying leave without giving opportunity to show cause is illegal even when service regulations provide that there is automatic termination of service on overstay. 20. In the instant case, neither there is any pleading of the defendant CSA 151/92 National Productivity Council & Anr. Vs. G.R. Rijhwani (22) organization nor any proof that plaintiff was given any notice to explain any reason for his absence after cancellation of his sanctioned leave, which in my considered view was mandatory before taking recourse under Rule 51 of the Rules. In view of the discussion made here-in-before, I find no reason to interfere with the net result arrived at by both the courts below. 21. Consequently, this appeal along with stay application is hereby dismissed. (J.R. Goyal),J. VS Shekhawat/- Jr. P.A.