Reserved Judgment IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL First Appeal No. 617 of 2001 (Old No. 327 of 1978) Sri Deep Chand Gupta S/o Sri Kalyan Das, Ex-Officer Incharge, Punjab National Bank, Uttarkashi, R/o 18 / 191, Maithan, Agra. …………… Plaintiff/Appellant Versus Punjab National Bank, Head Office 5, Parliament Street, New Delhi Through Chairman Punjab National Bank 5 Parliament Street, New Delhi. ……………. Defendant / Respondent Mr. M.C. Kandpal, Senior Counsel assisted by Mr. S.S. Chaudhary, counsel for the appellant. Mr. M.C. Pande, counsel for the respondent. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 96 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 19.05.1978, passed in Civil Suit No. 73 of 1975 (UK), by the then learned District Judge, Tehri Garhwal, whereby plaintiff’s suit for recovery of Rs. 10,209/- has been dismissed with costs. (This First Appeal was filed before the Allahabad High Court in the year 1978 and the same has been received by transfer under Section 35 of the U.P. Re-organization Act, 2000 to this Court, for its disposal). 2) Brief facts of the case are that plaintiff (present appellant) before his retirement on 31st October, 1973, was posted as Officer In-charge of Punjab National Bank, Branch Uttarkashi. Plaintiff’s case is that he applied for 85 days privilege leave i.e. leave preparatory to retirement and sought to avail leave fare concession in the month of August and September, 1973, admissible to him. It is alleged in the plaint that the Regional Manager of the Punjab National Bank sanctioned leave for 30 days but the intimation did not reach in time to the plaintiff and he could not hand over the charge. It is further alleged in the plaint that since the business of the Bank was in fluctuations, as such, the next man in the Bank, Mr. S.K. Sharma did not took charge from the plaintiff, and the plaintiff could not proceed on leave. Alleging high- handedness on the part of the authorities of the Bank and alleging injustice done to him, plaintiff claimed first class Railway fare of 800 kilometers for six members amounting to Rs. 3,108.00 towards double leave fare concession from the Bank, apart from Rs. 5,647.49 on account on admissible leave preparatory to retirement and 12% interest thereon. In all, the plaintiff sought recovery of Rs. 10,209.01 (inclusive of Rs. 55/- as cost of notice) from the defendant Bank. 3) Defendant – respondent contested the suit and filed its written statement in which it is pleaded that the plaintiff did not discharge his duties satisfactorily. It is also pleaded in the written statement that before being sent to Uttarkashi, the plaintiff was posted in Agra. It is further pleaded in the written statement, that the plaintiff is not entitled to the leave fare concession and the leave preparatory to retirement, as claimed by him. It is denied in the written statement that Mr. S.K. Sharma never refused to take over charge from the plaintiff. In the additional pleas, it is pleaded that the suit is barred by principle of estoppel and acquiescence on the ground that the plaintiff has already received his dues including the provident fund, gratuity etc. in full and final satisfaction of his claim, after his retirement. It is further pleaded in para 29 of the written statement that the plaintiff was given warnings several times for his negligence in discharge of his duties in the Bank. As per the record, according to the Bank, on 04.11.1972 only 24 days privilege leave was due to the plaintiff and further 24 days became due on 01.4.1973, as such, there is no question of sanction of 85 days leave to the plaintiff. However, as a special case defendant Bank did sanction on 03.08.1983, privilege leave to the plaintiff for 30 days, as applied by him for the period 07.08.1973 to 05.09.1973 on the leave fare concession fro that term, but it was the plaintiff who failed to avail the leave as he reused to hand over his charge to his next officer Mr. S.K. Sharma in the Bank. Had he been interested in availing the leave he should have handed over charge to said person. The claim of the plaintiff, according to the defendant Bank itself gets falsified that from 31.10.1973 to 10.10.1973, he himself handed over charge of his office to Mr. S.K. Sharma, as such, reason suggested for not handing over charge to Mr. Sharma is incorrect. Since, the plaintiff himself failed to avail the leave, no amount became due to him. The amount which can be reimbursed for the expenses cannot be paid to the plaintiff when he actually not availed the leave incurring the expenses. 4) Learned trial court after perusal of the pleadings of the parties, framed following issues: 1. Whether, the plaintiff is entitled to Rs. 3,108/- and Rs. 5,647.49, as claimed by him from the defendant? 2. Whether, the plaintiff is entitled to interest at the rate of 12% per annum of the above sum, as claimed by him? 3. Whether, suit is bad for mis-joinder of defendants No. 2 to 4? 4. Whether, the suit is barred by estoppel and acquiescence, as alleged? 5. To what relief, if any, the plaintiff is entitled? 5) Learned trial court, after recording the evidence and hearing the parties, found that the plaintiff himself failed to avail the leave and did not incur expenses, as such, he was not entitled to the leave fare concession. As to the privilege leave i.e. leave preparatory to retirement, the trial court found that the plaintiff actually never applied for said eave, as such, there is no question of getting salary in lieu of that leave. As far as the mis-joinder of defendants Nos. 2 to 4 is concerned, the said issue was decided as a preliminary one on 18.02.1978, and the plaintiff deleted the names of the officers of the Bank i.e. defendants No. 2 to 4. Since, the plaintiff was not found entitled to the amount claimed by him on account of the leave fare concession and leave preparatory to retirement, for which he did not make any application, as such, he was not found entitled to any interest claimed by him. However, as to the objection regarding applicability of principle of estoppel and acquiescence to the present case, the issue was decided in favour of the plaintiff. 6) I heard learned counsel for the parties and perused the entire record. 7) Admittedly, plaintiff was officer in-charge in Branch Uttarkashi of the defendant Bank. It is also not disputed that he got retired on 31st October, 1973. The dispute relates as to the entitlement of the leave fare concession claimed by him to the tune to Rs. 3,108/- and encashment of leave preparatory to retirement to the tune of Rs. 5,647.49. It is argued on behalf of the plaintiff-appellant that the defendant Bank did not maintain proper leave account of the plaintiff-appellant, as such, denial to leave preparatory to retirement and the leave fare concession to him on the part of the defendant Bank, is unjust and unlawful. 8) From the evidence adduced by the parties, it has come on the record that appellant did not apply for the leave preparatory to retirement and he continued to work even after he was sanctioned 30 days leave applied by him. The question of sanctioning leave preparatory to retirement would arise only when the appellant applies for the same. From the oral as well as documentary evidence it is not established on the record that the plaintiff applied for said leave. As such, neither there is question of sanction of leave preparatory to retirement nor salary in lieu thereof. (When the plaintiff was working on an extended term, otherwise also there was no question of leave preparatory to retirement). Therefore, this Court is in agreement with the finding of the trial court on this point. Similarly, on the point of the leave fare concession, the appellant’s case is misconceived. He can claim reimbursement of travel charges only if he actually performs the journey after getting the leave travel concession sanctioned. In the present case, it has come on the record, that the appellant has not actually performed the travel nor has submitted the bills there for, as such, his case of claim of travel expenses is untenable in law. The trial court has discussed all the relevant circular letters on this point, apart from the oral and documentary evidence adduced by the parties. The finding and the reasons there for given by the trial court are just, proper and in accordance in law. It has also come in the evidence that the appellant’s excuse that there was none to take charge from him was found false as the second officer Mr. S.K. Sharma himself deposed on behalf of the defendant-respondent before the trial court that he was ready to take over charge from the appellant. Since, amount claimed on account of the leave fare concession and salary in lieu of leave preparatory to retirement is not found payable to the appellant, there is no question of interest payable thereon. 9) For the reasons as discussed above, this Court did not find any error of law or that of fact committed by the trial court, which requires interference to upset the impugned judgment and decree. Accordingly, the appeal is liable to be dismissed. The same is dismissed. Costs easy. (Prafulla C. Pant, J.) Dt. 17th August, 2006. H.Negi