-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.472 OF 2001 APPEAL NO.472 OF 2001 APPEAL NO.472 OF 2001 Subhashchandra Gawade ...Appellant vs. The State of Maharashtra and Anr. ...Respondents Mr.P.P.Chavan for the Appellant Mr.B.H.Mehta A.G.P. for State CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 18, 2008 : FEBRUARY 18, 2008 : FEBRUARY 18, 2008 P.C.: P.C.: P.C.: 1. Heard Advocates for the parties. The Appellant was appointed as a Junior Engineer at Pandharpur Sub Division by the first Respondent-State of Maharashtra. The Appellant tendered his resignation with a request to the Respondent to accept the same from 29th February 1980. It is the case of the Appellant that the second Respondent informed him that the resignation tendered by the Appellant was not as per the rules. The Appellant filed the present suit for recovery of arrears of pay and allowances. After constitution of the Maharashtra Administrative Tribunal, the said suit was transferred to the said tribunal. When the suit appeared before the Tribunal, a letter dated 15th September 1995 sent by the Maharashtra Water Supply and Sewerage Board was placed before the tribunal in which it was mentioned that the resignation tendered by the Appellant has been accepted with effect from 29th February 1980. The tribunal noted that the -2- said Board had accepted that the Appellant was its employee and therefore the tribunal will not have jurisdiction to entertain the suit. Therefore, the suit was again transferred to the Civil Court. The suit was decreed by the Civil Court. An Appeal was preferred by the second Respondent before the District Court which has been allowed by the impugned Judgment and Decree. 2. The submission of the learned Advocate for the Appellant is that the impugned Judgment is perverse in as much as the suit filed by the Appellant has been dismissed only on the ground that the notice as contemplated by section 80 of the Code of Civil Produce,1908 was not served by the Appellant to the Maharashtra Water Supply and Sewerage Board. He submitted that the said board was not at all a party to the suit. Moreover, he submitted that the Board has been constituted under the Maharashtra Water Supply and Sewerage Board Act,1976 and therefore, there is no question of giving a notice under section 80 of the said Code to the said Board. He submitted that as the Appeal has been allowed by the District Court on a non existing ground, an order of remand may be passed as the Appellate Court has not considered the merits of the case. 3. I have carefully considered the submissions. Primafacie, the learned Advocate for the Appellant is right in pointing out that the suit could not have been dismissed by the -3- Appellate Court on the ground that the notice under section 80 of the said Code was not served to the said Board. It must be, however, noted that the suit filed by the Appellant was transferred to the said Tribunal on the ground that the relief claimed therein was against the first Respondent-State of Maharashtra and the second Respondent is an Officer of the first Respondent. By order dated 13th February 1996, the tribunal directed that the matter should be again transferred to the Civil court. It will be necessary to refer to the paragraphs 4 and 5 of the order of the tribunal which read thus : "4) When the matter came up for hearing today, Mr.Patil a Learned C.P.O. placed on record a letter dated 15-9-1995 from the Maharashtra Water Supply and Sewerage Board stating that the resignation of the plaintiff has been accepted with effect from 28-2-1980 and the said fact has been communicated to all concerned under letter No.8053 dated 1-10-1991. Mr. Dalvi, Advocate on behalf of the plaintiff denied that his client has received such a letter. he also denies that the Department had ever contacted the plaintiff in any context since then. 5) However, it is atleast now clear that whatever be the contentions in the written statement, the Board in question has since now owned the petitioner/plaintiff as -4- their employee and they claim that they had taken certain action on the basis of the alleged resignation tendered by the petitioner. If so, the matter does not fall within the jurisdiction of this Tribunal and the same will have to be adjudicated upon by the Civil Court in which the suit was initially instituted. The learned counsel on both the sides agreed about this legal position. Hence, it is directed that the matter be transferred to the Court of C.J.S.D., Solapur for disposal according to law. Record and Proceedings be remitted to that court...." 4. Therefore, it appears that it was accepted before the tribunal even by the Appellant that he was an employee of the said Board. In view of this accepted position, it was held that the tribunal does not have jurisdiction and that is the reason why the suit was sent back to the Civil Court. 5. Thus, now the accepted factual position which emerges is that the Appellant could have claimed relief only as against the said Board and not against the first and second Respondents herein. The said board is not a party to the suit. 6. In view of this factual position, no purpose will be served by passing an order of remand. As even if the order of -5- remand is passed, the Appellant will not succeed in obtaining any effective decree against the present Respondents. 7. Only on this ground, the Second Appeal is not entertained and the same is dismissed as such. It is obvious that if the Appellant has any remedy available against the said board, notwithstanding the dismissal of this Appeal, it will be open for the Appellant to adopt the said remedy. No substantial question of law arises. Second Appeal is dismissed with no order as to costs. JUDGE JUDGE JUDGE