Gujarat High Court
Rajkot Municipal Corporation vs Nanubhai Mohanbhai Trivedi on 22 January, 2025
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Reserved On: -10/01/2025
Pronounced On : 22/01/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 273 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
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RAJKOT MUNICIPAL CORPORATION
Versus
NANUBHAI MOHANBHAI TRIVEDI
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Appearance:
MR KV GADHIA(319) for the Appellant(s) No. 1
MR. GAURAV A. GOGIA(14128) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1.1 The present Second Appeal has been filed against the
judgment and order dated 14.09.2022 passed by the 13 th Additional
District Judge, Rajkot in Regular Civil Appeal No.36 of 2014
whereby the said Regular Civil Appeal has been dismissed and the
judgment and decree passed in Regular Civil Suit N.851 of 1996
dated 21.02.2014 has been confirmed.
The parties herein i.e. appellant and the respondent are
referred to as their original status in the suit proceedings as
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defendant and the plaintiff respectively, for sake of convenience.
1.2 Brief background of the litigation is that, this is the second
round of litigation, however, it arose from one cause which had
reached upto the Hon'ble Supreme Court and the Hon'ble Supreme
Court had directed this Court to decide the dispute within stipulated
time bound schedule. First to clear these facts of the case ;- the
original plaintiff Nanubhai Mohanlal Trivedi instituted Regular Civil
Suit No.851 of 1986 against the employer - Rajkot Municipal
Corporation for declaration and permanent injunction for the
following reliefs:
"a) It may be declared that the Plaintiff continues to be in
active service as Deputy Engineer of the Rajkot Municipal
Corporation i.e. the Defendant - Corporation with all its
consequential and incidental benefits and the act of not
permitting the Plaintiff to discharge his duties as Deputy
Engineer is illegal, null and void and also ineffective. By
further setting aside the Office Order No:RA/MU/KO/ESTA/
VASHI/ 286 Dt:5-7-1986, issued by the Commissioner, Rajkot
Municipal Corporation, Rajkot.
b) The Defendants and its servants may please be
restrained from interfering the Plaintiff from doing his duties as
Deputy Engineer and also from withholding his salary and
other consequential benefits f the post and by further directing
the Defendant to permit the Plaintiff to discharge his duties as
Deputy Engineer and to draw his salary as such.
c) Any other better relief or reliefs, which the Hon'ble
Court may deem just and proper under the circumstances of
the case along with cost of the suit."
1.3 The trial Court, after hearing parties, framed the issues and
decreed the suit vide judgment and decree dated 19.01.2000 in
favour of plaintiff directing the defendant Corporation to reinstate
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the plaintiff in service from 05.07.1986, treating him to be in
continuous service with all consequential and incidental benefits and
also with 50% back wages from the date of acceptance of
resignation, till his reinstatement excluding the period for which he
had procured his alternative job in other employment. Against the
said judgment and decree dated 19.01.2000, the defendant -
Corporation preferred appeal being Regular Civil Appeal No.16 of
2000 before the District Court, Rajkot and the learned Principal
District Judge, Rajkot vide judgment and order dated 28.07.2004
partly allowed the said appeal quashing and setting aside the
judgment and decree of the trial Court insofar as back wages
granted to the plaintiff is concerned, however, confirmed the said
judgment and decree which relates to reinstatement of the plaintiff.
It is this judgment and order dated 28.07.2004 passed by the
learned District Judge, Rajkot in Regular Civil Appeal No.16 of
2000, which was the subject matter of two appeals filed earlier
before this Court, being Second Appeal No.82 of 2004, which was
filed by the defendant being aggrieved by the reinstatement of the
plaintiff and Second Appeal No.50 of 2006 which was filed by
plaintiff against the same judgment and order dated 28.07.2004 so
far it relates to quashment of trial Court's judgment and decree
granting backwages to the plaintiff. Both these appeals were heard
by the coordinate Bench of this Court and this Court vide common
order dated 23.04.2012 passed in Second Appeal N.16 of 2000 and
Second Appeal No.50 of 2000 quashed and set aside the judgment
and decree dated 19.01.2000 passed in Regular Civil Suit No.581 of
1986 [original suit filed by the plaintiff and decreed in favuor of
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plaintiff] so also judgment and order dated 28.07.2004 passed in
Regular Civil Appeal No.16 of 2000 [whereby reinstatement of
plaintiff was confirmed, however, backwages was denied] with a
direction to decide the main suit afresh in accordance with law and
on merits and inclusive of the issue with respect to jurisdiction of
the Civil Court to decide the dispute between the parties, within a
period of six months from the date of receipt of the order. The
original suit i.e. Regular Civil Suit No.851 of 1986 was heard finally
and vide judgment and decree dated 21.02.2014, the trial Court
held letter of acceptance of resignation bearing number RA / MU /
KO / ESTA / Vashi / 286 dtd.05.07.1986 as illegal, null and void so
also non-existence of service of the plaintiff is considered to be
continuous without back-wages from the date of his tendering
resignation till the resume. Against the said order, the defendant
again challenged the judgment and decree dated 21.02.2014 passed
in Regular Civil Suit No.851 of 1986 by way of filing Regular Civil
Appeal No.36 of 2014 whereby original plaintiff Nanubhai
challenged the said order by way of filing Regular Civil Appeal
No.95 of 2014 so far it relates to quashment of back wages is
concerned. The Regular Civil Appeal No.36 of 2014 filed by the
defendant came to be rejected by learned District Judge, Rajkot
vide judgment and order dated 14.09.2022 confirming the judgment
and decree dated 21.02.2014 passed in Regular Civil Suit No.851 of
2014 against which the defendant preferred the present Second
Appeal. The Coordinate Bench of this Court vide order dated
15.07.2024 admitted the appeal and framed the substantial
questions of law and also granted the interim relief as per Para:4(A)
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of application thereby staying the judgment and order dated
14.09.2022 passed by the District Judge, Rajkot in Regular Civil
Appeal No.36 of 2014 so also the judgment and decree dated
21.02.2014 passed by the trial Court in Regular Civil Suit N.851 of
1986. Against this order dated 15.07.2024, the plaintiff preferred
Special Leave to Appeal (C) No.26358-26359 of 2024 before the
Hon'ble Supreme Court wherein the Hon'ble Supreme Court
dismissed the said petition vide order dated 11.11.2024 with a
direction to this Court to dispose of the second appeal as
expeditiously as possible, preferably within a period of two months
from the date of passing of the order. It is with this background of
the round of litigation, the present Second Appeal is being heard
and decided finally.
2. The brief facts arising in the present Second Appeal are as
under:-
2.1 The plaintiff had approached the learned Civil Court
challenging the acceptance of his resignation dated 03/04.07.1986
by the Municipal Commissioner of defendant - Rajkot Municipal
Commissioner on the ground that the Commissioner had no
authority to accept the resignation and that the said resignation
given by the plaintiff had already been withdrawn by the plaintiff.
The dispute before the trial Court in the suit was that the
Municipal Commissioner of defendant could not accept the
resignation of the plaintiff as the Municipal Commissioner of
defendant did not have any authority to accept it and, therefore, to
declare that letter of acceptance of resignation bearing number RA /
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MU / KO / ESTA / Vashi / 286 dtd.05.07.1986 issued by the
Commissioner, Rajkot Municipal Corporation, be declared to be
declares as illegal null and void and non-existence and the services
of the plaintiff be considered in continuation and that the plaintiff
be entitled to all the benefits as if he was in service.
2.2 The order passed in Regular Civil Appeal No.16 of 2000 was
challenged by the plaintiff as well as the defendant by way of
Second Appeal N.82 of 2004 and Second Appeal No.50 of 2006.
Thereafter vide common judgment dated 23.04.2012, all the orders
i.e. judgment and decree dated 19.01.2000 passed in Regular Civil
Suit No.581 of 1986 as well as judgment and order dated
28.07.2004 passed by the learned District Judge, Rajkot in Regular
Civil Appeal No.16 of 2000 were quashed and set aside and the
Coordinate Bench was pleased to remand the matter back to the
learned trial Court on the ground that the issue of jurisdiction of
the Civil Court taken by the defendant was not decided by the trial
Court.
2.3 In pursuance of the said order of remand, when the matter
was placed before the trial Court, the defendants took the ground
of jurisdiction as well as the fact that the resignation was accepted
prior to purported withdrawal of the said resignation, the said
contentions were raised before the trial Court as by the order dated
23.04.2012 in Second Appeal No.82 of 2004 with Second Appeal
No.50 of 2006, the Coordinate Bench had remanded the matter to
the trial Court to decide and dispose of the said suit afresh in
accordance with the law and on merits and inclusive of the issue
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with respect to jurisdiction of the Civil Court and in view of the
said fact the defendant took the ground that the trial Court did not
have jurisdiction to hear and decide the dispute between the parties
and also took the ground that the Commissioner of Rajkot
Municipal Corporation i.e. defendant had powers to accept the
resignation under Section 67 of Bombay Provincial Municipal
Corporation Act ['BPMC Act', for short]. The trial Court by
judgment and order dated 21.02.2014 allowed the suit partly and
held that the Civil Court has jurisdiction to hear and decide the
dispute between the parties and the trial Court also held that the
Municipal Commissioner did not have any authority to accept the
resignation of the plaintiff and as per provisions of Section 53 of
the 'BPMC Act', it was not in the purview of Municipal
Commissioner to accept the resignation of the plaintiff.
2.4 The defendant challenged the said judgment and decree dated
21.02.2014 by filing Regular Civil Appeal No. 36 of 2014 on various
grounds including the ground that the Civil Court lacks of
jurisdiction and that the Municipal Commissioner had authority to
accept the resignation of the plaintiff and over and above the said
grounds, the defendant, in the appeal memo, had also taken the
ground that the plaintiff had attained the age of the superannuation
and, therefore, learned trial Court could not statutorily reinstate the
plaintiff.
2.5 The District Court has dismissed the said Regular Civil Appeal
No.36 of 2014 by judgment dated 14.09.2022 and, therefore, being
aggrieved by the order dated 14.09.2022 of the Appellate Court, the
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present Second Appeal is filed.
3. The Coordinate Bench of this Court vide order dated
15.07.2024 has admitted the present appeal on following substantial
questions of law.
"1. Whether the Ld. Civil Court erred in holding that it had
jurisdiction to entertain the suit a matter which was as such
a dispute between employee and employer i.e. under the
realm of Labour Laws?
2. Whether the Commissioner of the Corporation had no
powers to accept the resignation tendered to him by the
respondent?"
4.1 Mr.K.V.Gadhia, learned advocate for the defendant has argued
that if the appointment letter, which is produced vide Exh.49 before
the trial Court is perused, it appears to have been signed by the
Commissioner, Rajkot Municipal Commissioner and, therefore, the
Appointing Authority of the plaintiff in the present case is
Municipal Commissioner, Rajkot Municipal Corporation. By way of
appointment letter the plaintiff has been appointed as Deputy
Engineer in the Pay-scale of Rs.410-20-450-EB-25-525-30-675-EB-850
and in the said appointment letter dated 17.05.1978 it has also
been mentioned that he has been appointed by the Municipal
Service Commission. The said letter also reflects that the
appointment of the plaintiff is through Municipal Service
Commission and the said appointment would be subject to
provisions of 'BPMC Act' and, therefore, it is argued that the
Appointing Authority with respect to the appointment of the
plaintiff, in the present, would be Municipal Commissioner, Rajkot
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Municipal Corporation.
4.2 It has also been argued by learned advocate for the defendant
that vide Exh.50/59 the plaintiff had given resignation dated
04.07.1986 addressed by the plaintiff to the Municipal
Commissioner, Rajkot, Municipal Corporation whereby the plaintiff
had stated that he wants to resign from the post of Deputy
Engineer and that his resignation may be considered to be after
office hours from 03.07.1986 and that his resignation be accepted.
4.3 Learned advocate for the defendant has vehemently argued
that that the appointment of the plaintiff is by the Municipal
Commissioner and the resignation vide Exh.50 is also given by the
plaintiff to the Municipal Commissioner, Rajkot Municipal
Corporation and, therefore, the plaintiff now can not come forward
with the case that the Municipal Commissioner, Rajkot Municipal
Corporation did not have any authority to accept the resignation of
the plaintiff.
4.4 Learned advocate for the defendant has also argued and
drawn attention of this Court to the cross-examination of the
plaintiff [Exh.62] wherein the plaintiff has admitted that after
period of probation, confirmation letter was also issued by the
Municipal Commissioner, Rajkot Municipal Corporation.
4.5 Learned advocate for the defendant has also drawn attention
of this Court that vide Exh.51 by letter dated 05.07.1986, the
resignation of the plaintiff is also accepted by the Municipal
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Commissioner, Rajkot Municipal Corporation and, therefore, there is
no dispute on the fact that there is an appointment letter which has
been signed by the Municipal Commissioner, Rajkot Municipal
Corporation and that the plaintiff has voluntarily given his
resignation to the Municipal Commissioner and that Municipal
Commissioner has accepted the said resignation.
4.6 Learned advocate for the defendant has also argued that in
the plaint, the plaintiff has mentioned that the plaintiff himself had
gone to meet the Commissioner at his residence and handed over
the copy of the withdrawal of his resignation on 07.07.1986 and
that the Commissioner accepted the said letter, and, therefore, it is
an admitted fact that it was voluntary act of the plaintiff to go
before the Municipal Commissioner and given his resignation letter
and withdrawal letter of resignation.
4.7 Learned advocate for the defendant has also argued, that
contents of the said resignation letter also does not state that
resignation of the plaintiff is subject to approval of the Standing
Committee of the defendant and, therefore, the said resignation
letter was with the clear understanding that the plaintiff has
resigned from his job as Deputy Engineer from evening hours. He
has also drawn attention of the Court to Exh.1 i.e. plaint which
suggests that the age of the plaintiff in the year 1986 is 38 years
and that the relief with respect to reinstatement that has been
granted by the trial Court cannot be enforced as the plaintiff on
account of his superannuation also cannot be reinstated.
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4.8 Learned advocate for the defendant has also argued that even
after the letter of resignation dated 03.07.1986, if the plaintiff has
come to work till 18.08.1986, the same will not change the
complexion of the matter.
4.9 Learned advocate for the defendant submitted that even
otherwise judgment and decree of the trial Court cannot be
complied with, on account of superannuation of the plaintiff.
Learned advocate for the appellant has also brought to the notice of
this Court that admittedly after the resignation on 03.07.1986, the
plaintiff had joined Anand Municipal Corporation on 14.09.1987 and
the said fact has been mentioned in the cross-examination of the
plaintiff.
4.10 The other arguments of learned advocate for the defendant is
that the plaintiff is covered under the definition of 'workman' and,
therefore, present suit could not be filed in the Civil Court.
4.11 Relying upon the decision rendered in the case of Mikhi
Ram vs. Himachal Pradesh State Electricity Board [2021 (0) AIJEL
SC 67896], learned advocate for the defendant has stated that the
facts in case of Mikhi Ram (supra) case and the facts of case on
hand are similar. Reliance was placed more particularly on
paras:13, 14 and 16 of the said decision, which read as under:
"13. The above contentions of the parties indicate that the only
issue to be considered here is whether the suit before the civil court
at the instance of the terminated employee, was maintainable. The
civil courts may have the limited jurisdiction in service matters, but
jurisdiction may not be available to Court to adjudicate on orders
passed by disciplinary authority. The authorities specified under the
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ID Act including the appropriate government and the industrial
courts perform various functions and the ID Act provides for a wider
definition of "termination of service", the condition precedent of
termination of service. The consequence of infringing those, are also
provided in the ID Act. When a litigant opts for common law
remedy, he may choose either the civil court or the industrial
forum.
14. In the present matter, the Appellant has clearly founded his
claim in the suit, on the provisions of the ID Act and the employer
therefore is entitled to raise a jurisdictional objection to the
proceedings before the civil court. The courts below including the
executing court negated the jurisdictional objection. The High Court
in Revision, however has overturned the lower court's order and
declared that the decree in favour of the Plaintiff is hit by the
principle of coram non judice and therefore, the same is a nullity.
15. xxx ....
16. As can be seen from the material on record, the challenge to
the termination was founded on the provisions of the ID Act.
Although jurisdictional objection was raised and a specific issue was
framed at the instance of the employer, the issue was answered
against the Defendant. This Court is unable to accept the view
propounded by the courts below and is of the considered opinion
that the civil court lacks jurisdiction to entertain a suit structured on
the provisions of the ID Act. The decree favouring the Plaintiff is a
legal nullity and the finding of the High Court to this extent is
upheld."
4.12 Learned advocate for the defendant has also relied upon
the decision in the case of R.S.R.T.C. vs. Deen Dayal Sharma
[ 2010 (0) AIJEL - SC 48504], more particularly para:14 which
reads as under, contending that Civil Court could not have decided
the dispute and that the trial Court and appellate Court have
erroneously decided that the present dispute could be a dispute
which has to be decided by the Civil Court.
"14. The case of the respondent as set up in the plaint,
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therefore, is that in the absence of departmental enquiry as
contemplated in Standing Orders, the order of dismissal is bad
in law. It is true that respondent pleaded that he has been
dismissed from service without affording any opportunity of
defence and hearing and in breach of principles of natural
justice but the said plea has to be understood in the backdrop
of his pleading that the dismissal order has been passed
contrary to Standing Orders without holding any departmental
enquiry. The legal position that Standing Orders have no
statutory force and are not in the nature of
delegated/subordinate legislation is clearly stated by this Court
in Krishna Kant [(1995) 5 SCC 75]. In that case (Krishna Kant),
this Court while summarizing the legal principles in paragraph
35(6) stated that the certified Standing Orders framed under
and in accordance with the Industrial Employment (Standing
Orders) Act, 1946 are statutorily imposed conditions of service
and are binding both upon the employers and employees,
though they do not amount to `statutory provisions' and any
violation of these Standing Orders entitles an employee to
appropriate relief either before the forum created by the
Industrial Disputes Act or the civil court where recourse to
civil court is open according to the principles indicated therein.
In Bal Mukund Bairwa [(2009) 4 SCC 299], in para 37 of the
report, the position has been explained that if the infringement
of the Standing Orders is alleged, the civil court's jurisdiction
may be held to be barred but if the suit is based on the
violation of principles of common law or constitutional
provisions or on other grounds, the civil court's jurisdiction
may not be held to be barred. In our opinion, nature of right
sought to be enforced is decisive in determining whether the
jurisdiction of civil court is excluded or not. In the instant
case, the respondent who hardly served for three months, has
asserted his right that the departmental enquiry as
contemplated under the Standing Orders, ought to have been
held before issuing the order of dismissal and in absence
thereof such order was liable to be quashed. Such right, if
available, could have been enforced by the respondent only by
raising an industrial dispute and not in the civil suit. In the
circumstances, it has to be held that civil court had no
jurisdiction to entertain and try the suit filed by the
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respondent."
4.13 Reliance is also placed upon the decision rendered by the
Hon'ble Supreme Court in case of Shriram Manohar Bande vs.
Uktranti Mandal & Ors. [rendered in Special Leave Petition (C) No.
21401 of 2022] dated 25.04.2024. Para:22 of the said decision reads
as under:
"22. This Court in North Zone Cultural Centre and another VS.
Vedpathi Dinesh Kumar reported in (2003) 5 SCC 455 has held that
resignation would be effective on its acceptance, even if the
acceptance is not communicated as long as rules or guidelines
governing the resignation do not mandate such acceptance of
resignation is to be communicated. In the North Zone (supra) case,
the employee who was a temporary Accountant tendered his
resignation from the post held by him on 18.11.1988. With effect
from the said date, the resignation was accepted by the Director on
the very same day with the endorsemnent "Accepted, hand over
charge". The employee vide Telegram on 21.11.1988 withdrew his
resignation stating that the same was obtained by pressure. He was
communicated vide letter dated 18.11.1988 regarding acceptance of
his resignation. The High Court allowed the writ petition on two
grounds; (i) the acceptance of resignation was not communicated till
the withdrawal and (ii) the employee was permitted to attend the
duty even after acceptance of resignation.Setting aside the judgment
of the High Court, this Court held that non-communication of the
acceptance does not make the resignation inoperative provided, there
is, in fact, an acceptance before the withdrawal. It is also held that
it is not open to the public servant to withdraw his resignation after
it is accepted by the appropriate authority."
4.14 Learned advocate for the defendant has relied upon the the
decision in the case of North Zone Cultural Centre vs. Vedpathi
Dinesh Kumar [ 2003 (0) AIJEL - SC 19885 = 2003 (5) SCC 455],
para:23 of which reads as under:
"23. As noticed above, in the present case the resignation is dated
18.11.1988 and the same as found by us is accepted on 18.11.1988
itself. The communication was on 1.12.1988 about 13 days
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thereafter which delay, in our opinion, is not an undue delay so as
to make us draw an inference that there has been no acceptance of
the resignation. Even the fact that in the meantime the respondent
either attended duty or signed the attendant register will be of no
assistance to claim his resignation had not taken effect. Even
otherwise the appellant shave urged that because there was no
responsible officer in the headquarter from 18.12.1988 after
respondent's resignation was accepted till 1.12.1988 and the
respondent took advantage of the same and marked his attendance
and such attendance cannot be treated as lawful attendance in view
of the acceptance of his resignation on 18.11.1988. We agree with
this contention of the appellant."
It has been argued that the facts of the said case and the
present case are relatively same and in the said case also though
the plaintiff had attended the duty and signed attended register, the
same will not be of any assistance to claim that his resignation had
not taken effect.
4.15 Therefore, learned advocate for the defendant has summerised
his arguments on the point of jurisdiction stating that the present
dispute is covered under the Industrial Disputes Act, 1947, and,
therefore, the Civil Court will have no jurisdiction to hear and
decide the suit and also under Section 67 of the 'BPMC Act', the
Commissioner will have powers to accept the resignation and in
that view of the matter, present Second Appeal be allowed and
judgment and order dated 14.09.2022 passed by the learned
Additional District Judge, Rajkot in Regular Civil Appeal No.36 of
2014 be quashed and set aside.
5.1 Per contra, learned advocate for the plaintiff has argued that
both the Courts below have given concurrent findings on the facts
and also on the point that the dispute between the parties have to
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be decided by the Civil Court and that the dispute does not fall
within the provisions of the Industrial Disputes Act, 1947 ('the Act,
1947', for short) and that there are concurrent findings on the fact
that the Municipal Commissioner not being the appointing
authority, the resignation could not have been accepted by the
Municipal Commissioner and in that view of the matter as there is
no perversity, the second appeal be dismissed.
5.2 Learned advocate for the plaintiff has also fairly conceded
that when the suit was filed in the year 1986, the age of the
plaintiff was 38 years but in the year 2006 because of his
superannuation, the plaintiff cannot resume his duty and therefore
that portion of the judgment dated 21.02.2014 cannot be enforced.
However, the fact remains that by order dated 21.02.2014 the trial
Court has declared letter of acceptance of resignation bearing
No.RA/MU/KO/ESTA/ Vashi / 286 dated 05.07.86 issued by the
Rajkot as illegal, null and void and non-existence and granted relief
that the services of the plaintiff to be considered to be continuous
and that the plaintiff is entitled to receive all the consequential
benefits in service including pensionary benefits in lieu of his
service without back-wages shall survive. Therefore, it has been
argued by learned advocate for the plaintiff that it cannot be said
that because of the superannuation the entire judgment and decree
are not capable of being enforced. The relief with respect to the
service of the plaintiff to be considered in continuation and his
entitlement to receive all consequential benefits in service including
pensionary benefits in lieu of services will have to be considered by
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the Court. Learned advocate for the plaintiff has also brought to the
notice of this Court that trial Court and the lower appellate Court
have given cognate reasons with respect to the jurisdiction aspect of
the Civil Court.
5.3 Learned advocate for the plaintiff has stated that the plaintiff
has challenged the action of the defendants for violation of General
Law relating to resignation, violation of principles of natural justice
and exercise of powers by the Municipal Commissioner of defendant
without jurisdiction and in arbitrary manner and has much
emphasised his argument that there are no allegations or
contentions in the plaint for violation of any of the provisions of
the Industrial Disputes Act, 1947 and, therefore, the Civil Court has
jurisdiction to decide the suit under Section 9 of Code of Civil
Procedure, 1908. To buttress his argument, he has relied on the
judgment reported in 2009 GLH (2) 348 in the case of Rajasthan
State Road Transport Corporation and Ors. vs. Bal Mukund
Bhirwaa, more particularly relied on paras:15 and 16 and has
emphasised his argument that as the dispute is not an industrial
dispute, nor does it enforce any right under the Act, the only
remedy that lies with the plaintiff is Civil Court and has also
argued that even if the dispute is an industrial dispute arising out
of right or liability under General Law or common Law and not
under the Act, jurisdiction of the Civil Court is alternative and the
plaintiff had to choose remedy for the relief which is competent to
be granted in particular remedy and it has been argued that in the
present case the entire case of the plaint is based on the action of
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the defendant for violation of General Law relating to resignation,
violation of principles of natural justice and exercise of the powers
of the Commissioner without jurisdiction and in an arbitrary
manner.
5.4 Learned advocate for the plaintiff has also relied on
unreported judgment rendered in Second Appeal No.1 of 1997 in
the case of Hardevsinh Jilubha Jadeja vs. GSRTC and has stated
that the facts of the said case as the present are similar wherein
also in paras:10 and 11 it has been observed as under:-
"10. Having heard the learned advocates for the parties and having
perused the judgment and decree passed by the courts below, and
keeping in mind the ratio laid down by Hon'ble the Supreme Court
in the case of Rajasthan State Road Transport Corporation (supra), it
appears that the jurisdiction of the civil court is saved for the cases
wherein complaint is about violation of the principles of natural
justice or the constitutional provisions or violation of the statutory
rules. It is required to be noted that the departmental proceedings
initiated against the appellant and the ultimate dismissal order both
were under the regulation framed by the Corporation. Such
regulations have been held to be statutory in nature. Apart from
this, even the trial court has framed the main issue as to whether
the departmental proceedings as also the ultimate order of dismissal
were unconstitutional or not. From the discussion made by the
learned trial Judge in the matter, it appears that the appellant put
forward his case on the ground that there was gross violation of the
principles of natural justice not only during the course of
departmental inquiry but also at the time of passing the ultimate
order of dismissal. It is another thing whether such contention was
accepted by the learned trial Judge or not but it cannot be said that
the dispute of the appellant was in any way governed by the
provisions of the Industrial Disputes Act, 1947. In fact, there was no
violation complained of the provisions of the Industrial Disputes Act,
therefore, in my view, learned appellate Judge ought not to have
held that the civil court had no jurisdiction to entertain and decide
the suit filed by the appellant. Thus, the learned appellate Judge
can be said to have failed to exercise the jurisdiction vested in him
by dismissing the appeal on such ground.
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11. From the pleadings of the parties as also on the basis of the
evidence discussed by the learned trial Judge, I am of the view that
since the dispute raised by the appellant in his suit was about the
violation of the principles of natural justice, based on common law
and about the violation of the constitutional rights, the civil court
had jurisdiction to decide the suit of the appellant."
5.5 Therefore, learned advocate Mr.Gogia for the plaintiff argued
that the dispute raised by the plaintiff in the suit is about the
violation of principles of natural justice, based on common Law and
about the violation of constitutional rights and, therefore, it is only
the Civil Court that had jurisdiction to decide the suit of the
appellant.
5.6 The other contention that has been taken by learned advocate
for the plaintiff is that even otherwise plaintiff does not fall in the
definition of workman as the plaintiff was doing supervisory work.
Reliance is also placed on the decision rendered in the case of
Lenin Kumar Ray, Management M/s. Express Publications (Madurai)
Ltd vs. M/s. Express Publications (Madurai) Ltd. reported in 2024
INSC 802 [2024 LawSuit (SC) 928] wherein it has been held that to
get the benefit of Industrial Disputes Act, 1947, the employee must
fall within the meaning of definition of 'Workman' as provided
under Section 2(S) of the Act, 1947. Therefore, it has been argued
that even otherwise as the plaintiff was Deputy Engineer, he was
employed in supervisory capacity and, therefore, he will not be
included in definition of Section 2(S) of the Act, 1947.
5.7 There was one more aspect that was argued by learned
advocate for the plaintiff that even the salary of the employee was
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extending Rs.1600/- but the said aspect has not come on record
before the trial Court, however, the fact remains that it is urged
that even otherwise as the plaintiff was employed in supervisory
work he cannot be said to be 'workman'. To substantiate this
argument, learned advocate for the plaintiff has also drawn
attention of this Court to the evidence of the plaintiff more
particularly Exh.62, which is the oral evidence of the plaintiff and
has argued that from the said deposition, it can be established that
plaintiff's employment is in a supervisory capacity and the said fact
has not been countered by the defendant by examining any witness
and, therefore, as the plaintiff has not mentioned any violation of
any statutory law, the Civil Court will have jurisdiction to hear and
decide the dispute.
5.8 On the second issue that whether the Municipal Commissioner
had authority to accept the resignation, learned advocate for
plaintiff has relied upon Section 53 of the Bombay Provincial
Municipal Corporation Act.
5.9 Learned advocate for the plaintiff has also drawn the
attention to the appointment letter produced at Exh.49 wherein it is
clearly mentioned that plaintiff is appointed by the General Board
of RMC dated 17.05.1978 [Municipal Service Commissioner] and has
argued that even if the said letter is seen it suggests that in case
the plaintiff intends to resign, one month notice and / or one
month notice-pay has to be submitted to the Municipal
Commissioner by the plaintiff and as the service of the plaintiff
comes under 'essential service' as per provisions of 'BPMC Act', he
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will be liable to pay an amount as per his salary.
5.10 Learned advocate for the plaintiff has also relied on
provisions of Rule 33A of the Bombay Civil Services Rule and has
urged this Court to consider the fact that the Government servant
may at any time resign from the service of the State by giving a
notice of one month in writing to the appointing authority and that
even as per the Chapter IV of Bombay Provincial Municipal
Corporation Act, 1949 which defines that employment of the
plaintiff falls in Class-II i.e. "essential service" and as per
provisions of Section 61(1) of the BPMC Act, two months' notice is
prescribed if the employee intends to resign. Therefore, it has been
urged by learned advocate for the plaintiff that even as per
provisions of BMPC Act, the resignation of the employee from the
service of the defendant has to be given by giving a notice of one
month in writing to the Appointing Authority and in the present
case the Municipal Commissioner of the defendant to whom the
resignation letter is given is not appointing authority and, therefore,
there is no question of considering the resignation of the plaintiff as
legal.
5.11 Learned advocate for the plaintiff argued that it is the case of
the plaintiff that Municipal Commissioner of the defendant
Corporation, was not appointing authority and, therefore, he could
not have accepted the resignation. Moreover, it has been argued
that Municipal Commissioner of the defendant has accepted the
resignation, but the said letter of resignation by which resignation
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is accepted which is produced at Exh.51 also does not relieve the
plaintiff from the duty and letter dated 05.07.1986 only suggests
that resignation has been accepted and, therefore, the said
resignation did not become effective till the plaintiff is relieved
from his duties.
5.12 Learned advocate for the plaintiff has also urged that on the
plain reading of Section 53 of 'the BPMC Act' it can easily establish
that powers of appointing Municipal Officer whether temporary or
permanently shall vest in the Corporation and, therefore, has relied
upon Section 53 (2) which says that power of appointing Municipal
Officer whether temporary or permanent vests in Municipal Chief
Auditor or Municipal Secretary subject to the approval of the
Standing Committee of the defendant and, therefore, the appointing
authority is subject to the approval of Standing Committee of the
defendant and until and unless the Standing Committee approves
the resignation, the plaintiff cannot be considered to have resigned
from his service.
5.13 Learned advocate for the plaintiff has also relied upon
judgment reported in 2005 (8) SCC 314 in the case of Srikantha
S.M. vs. Bharat Earth Movers Ltd. wherein in para:10 the Court has
held as under:
"The learned counsel for the parties drew our attention to some of
the decisions of this Court on the point. In Punjab National Bank v.
P.K. Mittal, [1989] Supp 2 SCC 175, an employee resigned from
service of the Bank by a communication dated January 21, 1986. It
was to be effective from June 30, 1986. The Deputy General
Manager who was the competent authority under the Service
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Regulations, accepted the resignation as per the letter of resignation
i.e. with effect from June 30, 1986. The employee, however,
received a letter from the Bank on February 07, 1986 informing him
that his resignation letter had been accepted by the competent
authority with immediate effect and consequently he was being
relieved from the service of the Bank with effect from that day, i.e.
from February 07, 1986. The employee, therefore, filed a petition
challenging the validity of the purported acceptance of his
resignation with effect from February 07, 1986 and for a direction
to the Bank to treat him in service upto June 30, 1986 by granting
all consequential benefits. The matter, however, did not end there.
On April 15, 1986, the employee addressed a letter to the Bank
purporting to withdraw his resignation letter dated January 21,
1986. The question which came up for consideration was as to
whether the subsequent development could be taken into account
and whether the employee continued in service in view of the
withdrawal of resignation dated April 15, 1986. Accepting the
contention of the employee that he continued in service, the Court
held that his resignation could take effect from June 30, 1986 or on
expiry of three months period provided in the Service Regulations
and before that period he could withdraw the resignation. Since he
had withdrawn the resignation before June 30, 1986, he continued
to remain in service with the Bank.
It was urged on behalf of the Bank that Regulation 20(2) provided
for notice to protect the interest only of the employer (Bank) and to
enable it to make other arrangements in the place of the resigning
employee. The proviso to clause (2) enabled the Bank to reduce the
notice-period to less than three months and as such it was not
obligatory for the Bank to wait till the notice period would expire.
This Court, however, did not agree with the interpretation. Dealing
with the object underlying such provision as giving opportunity to
both, the employer as well as the employee, the Court stated;
"We are of the opinion that clause (2) of the regulation and its
proviso are intended not only for the protection for the bank
but also for the benefit of the employee. It is common
knowledge that a person proposing to resign often wavers in his
decision and even in a case where has taken a firm decision to
resign, he may not he ready to go out immediately. In most
cases he would need a period of adjustment and hence like to
defer the actual date of relief form duties for a few months for
various personal reasons. Equally an employer may like to have
time to make some alternative arrangement before relieving the
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resigning employee. Clause (2) is carefully worded keeping both
these requirements in mind. It gives the employee a period of
adjustment and rethinking. It also enables the bank to have
some time to arrange its affairs, with the liberty, in an
appropriate case, to accept the resignation of an employee even
without the requisite notice if he so desires it. The proviso in
our opinion should not be interpreted as enabling a bank to
thrust a resignation on an employee with effect from a date
different from the one on which he can make his resignation
effective under the terms of the regulation. We, therefore, agree
with the High Court that in the present case the resignation of
the employee could have become effective only on or about
April 21, 1986 or on June 30, 1986 and that the bank could
not have ``accepted'' that resignation on any earlier date. The
letter dated February 7, 1986 was, therefore, without
jurisdiction."
(emphasis supplied) In Balram Gupta, referred to above, the employee
withdrew his notice of voluntary retirement on account of persistent
and personal requests from the staff members. But the prayer for
withdrawal was not allowed by the employer on the ground that it
had already been accepted by the Government. Moreover, Rule 48-A
(4) of the Central Civil Service (Pension) Rules, 1972 precluded the
Government servant from withdrawing his notice except with specific
approval of the appointing authority.
Relying on the said decision, it is argued that even otherwise
when the appointment letter suggests about giving one month's
notice and provisions of 'BPMC Act' more particularly Section 61 of
the said Act states about two months' notice to be given, the
Municipal Commissioner of the defendant could not have accepted
the resignation of the plaintiff till the said period was over and has
stated that Municipal Commissioner of the defendant could not have
accepted the resignation of the plaintiff with effect from different
date from one which he can make resignation effective under the
terms of appointment letter and under the provisions of Section 61
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of the Bombay Provincial Municipal Corporation Act.
5.14 Learned advocate for the plaintiff has argued that it is settled
law that the plaintiff could have withdrawn his resignation before
the date of acceptance and from the facts of the present case it can
be clearly established that after submitting the letter of retirement,
the plaintiff has resumed duty from 07.07.1986 till 18.07.1986 and,
therefore, till 18.07.1986 there was relationship of employee and
employer and it did not come to an end on 05.07.1986 (the date on
which resignation accepted by Municipal Commissioner of
defendant). Thereafter he has relied upon the judgment rendered in
the case of Balram Gupta vs. Union of India reported in 1987
Suppl. (1) 328, more particularly para:12 which reads as under:
"12. In this case the guidelines are that ordinarily permission
should not be granted unless the officer concerned is in a
position to show that there has been a material change in the
circumstances in consideration of which the notice was
originally given. In the facts of the instant case such indication
has been given. The appellant has stated that no the persistent
and personal requests of the staff members he had dropped the
idea of seeking voluntary retirement. We do not see how this
could not be a good and valid reason. It is true that he was
resigning and in the notice for resignation he had not given
any reason except to state that he sought voluntary retirement.
We see nothing wrong in this. In the modern age we should
not put embargo upon people's choice or freedom. If, however.
the administration had made arrangements acting on his
resignation or letter of retirement to make other employee
available for his job, that would be another matter but the
offer t retire and withdrawal of appellant's 0 the same
happened in so quick succession that it cannot be said that any
administrative set up or arrangement was affected. The
administration has now taken a long time by its own attitude
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to communicate the matter. For this purpose the respondent is
to blame and not the appellant."
Relying on the said decision, learned advocate has stated that
when the offer to retire and withdrawal of the said letter happens
in so quick succession it cannot be said that any administration set-
up or arrangement is affected and, therefore, in the present case,
even assuming that Municipal Commissioner had any authority, the
withdrawal could be permitted.
5.15 Learned advocate has also relied upon para:24 of the
decision rendered in the case of Syeda Rahimunnisa vs Malan Bi
(dead) by Lrs. reported in (2016) 10 SCC 315 and has stated that in
the facts of the present case there is no substantial question of law
and, therefore the Second Appeal is required to be dismissed.
6. In rejoinder, learned advocate for the defendant has stated
that aspect regarding plaintiff being in 'essential service' was not
raised before any of the Court. The fact that as per the provisions
of BPMC notice period is mentioned but it does not restrict the
right of the defendant to accept the withdrawal before the statutory
period as mentioned in BPMC and that withdrawal can be accepted
on the next date also.
7. Having heard learned advocates for the parties and having
gone through the impugned judgment and decree so also the
substantial questions of law framed by the co-ordinate Bench of this
Court vide order dated 15.07.2024, this Court deems it first to deal
with the substantial question no.1 of law that has been framed by
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the coordinate Bench of this Court vide order dated 15.07.2024 is
as under:
"1. Whether the Ld. Civil Court erred in holding that it
had jurisdiction to entertain the suit a matter which was as
such a dispute between employee and employer i.e. under
the realm of Labour Laws?"
7.1. On perusal of the record and proceedings and the dispute
involved in the suit, the plaintiff has come forward with the case
that the plaintiff is not claiming his rights under the provisions of
Industrial Disputes Act, 1947 or the sister Laws and that the
dispute, in the present case as per the plaintiff pertains to non-
observance of principles of natural justice and the plaintiff is also
claiming that he intends to enforce his constitutional rights and,
therefore, has stated that it is only the Civil Court which will have
jurisdiction to hear and decide the dispute.
7.2 Looking to the entire plaint, the same does not mention any
other right that the plaintiff has claimed under the Industrial
Disputes Act, 1947 and the only claim that the plaintiff has made is
challenging the action of the defendant for violation of principles of
natural justice and exercise of powers by Commissioner, Rajkot
Municipal Corporation without jurisdiction and in an arbitrary
manner and, therefore, only the Civil Court will have jurisdiction to
decide under Section 9 of the CPC.
7.3 In the judgment that has been relied upon by the defendant
in the case of Mikhi Ram vs. Himachal Pradesh State Electricity
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Board [2021 (0) AIJEL SC 67896], it was the case that the plaintiff
of the said dispute had completed 240 days of uninterrupted service
and where the termination of the employee was maintainable and
the Apex Court had observed that as the termination was founded
on the provisions of the ID Act, and that the plaintiff in the said
matter had claimed his right in the suit on the provisions of the ID
Act and, therefore, the Apex Court came to the conclusion that the
Civil Court lacks of jurisdiction to entertain the suit. The said
judgment relied on by the defendant will not be of any assistance
to the defendant in the present case as the said judgment is
rendered on different facts where the issue was with regard to
provisions of Industrial Disputes Act whereas in the present case the
plaintiff has challenged the defendant's action on the grounds of
violation of principles of natural justice and exercise of powers by
Commissioner, Rajkot Municipal Corporation without jurisdiction
and in an arbitrary manner.
7.4 The defendant had also referred to the judgment
rendered in the case of Shree Ram Manohar vs. Utkranti Mandal
and others (supra) wherein the dispute was under the provisions of
Maharashtra Employees of Private School and with respect to
resignation of Assistant Teachers, but the fact remains that in the
said proceedings, the resignation was accepted by the Managing
Committee and the factual aspect of the said matter and the present
matter are different as in the said case the School Committee had
placed before the management the said resignation upon which the
Managing Committee had passed a resolution accepting the
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resignation of the said Assistant Teacher and in the present case,
there is nothing on record to show that the Commissioner, Rajkot
Municipal Corporation has forwarded the resignation letter of the
plaintiff to the Standing Committee and the Standing Committee has
approved the same. Learned advocate for the defendant has also
relied upon the judgment of RSRTC VS. Dindayal (supra) [AIR 2001
SC 2662] wherein also it has been held that the Civil Court
jurisdiction is no bar if the suit is based on violation of common or
constitutional provision on other grounds that the Civil Court
jurisdiction may not be held to be barred and looking at the relief
that has been claimed and nature of right sought to be enforced
clearly demonstrates that the jurisdiction of the Civil Court is not
excluded.
7.5 As against that, learned advocate for the plaintiff has
relied upon judgment reported in 2009 GLH 348 in the case of
Rajasthan State Road Transport Corporation and Ors. vs. Bal
Mukund Bhirwaa wherein it has been held that if the dispute is not
an industrial dispute nor does it relate to enforcement of any other
right under the ID Act, the remedy lies only in the Civil Court.
Moreover, if the dispute is an industrial dispute arising out of the
right or liability under the general or common Law and not under
the Act, the jurisdiction of the Civil Court is alternative leaving it
to the election of the plaintiff to choose his remedy for the relief
which is competent to be granted in a particular remedy and only
if the dispute arises between the employer and workman/workmen
or enforcement of the industrial employment Standing Orders and
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the same is an industrial dispute, the same has to be decided under
the Industrial Disputes Act, 1947 and, therefore, it has been argued
that the present dispute as it is filed based on violation of common
or constitutional provision.
7.6 The judgment rendered in Second Appeal No.1 of 1997
in the case of Hardevsinh Jilubha Jadeja vs. GSRTC will also come
to the help of the plaintiff wherein it has been held that the
jurisdiction of the Civil Court is saved for the cases where the
complaint has to be about violation of principles of natural justice
or constitutional provisions or violation of statutory rules and if the
issue whether the resignation letter accepted by the Municipal
Commissioner having no authority to accept the resignation were
un-constitutional or not, the said dispute was on the ground of
gross violation of principles of natural justice not only at the time
of accepting the letter of resignation of the plaintiff. In the facts of
the present case, there was no violation complained of the
provisions of the ID Act and as there was non-violation of
principles of natural justice based on common law and upon the
violation of constitutional right, Civil Court had jurisdiction to
decide the suit. Moreover, even Section 2(s) of the ID Act provides
definition of 'workman', which reads as under:-
"2(s)[ "workman" means any person (including an apprentice)
employed in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or
reward, whether the terms of employment be express or
implied, and for the purposes of any proceeding under this Act
in relation to an industrial dispute, includes any such person
who has been dismissed, discharged or retrenched in
connection with, or as a consequence of, that dispute, or
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whose dismissal, discharge or retrenchment has led to that
dispute, but does not include any such person- [ Substituted by
Act 46 of 1982, Section 2, for Cl. (s) (w.e.f. 21.8.1984).]
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or
the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of
1957); or
(ii) who is employed in the police service or as an officer or
other employee of a prison, or
(iii) who is employed mainly in a managerial or administrative
capacity, or
(iv) who, being employed in a supervisory capacity, draws
wages exceeding [ten thousand rupees] per mensem or
exercises, either by the nature of the duties attached to the
office or by reason of the powers vested in him, functions
mainly of a managerial nature.]"
It is an admitted position that the plaintiff is working as
Deputy Engineer in the grade pay of Rs.410-20-450-EB-25-525-30-
675-EB-850 and is doing supervisory work on oversears working
under him with power to sanction work bill upto Rs.2,000/-. The
said fact that the plaintiff worked in the supervisory capacity has
also been established by his oral deposition vide Exh.62 and the
same has not been countered by the defendant by way of leading
any evidence or any contrary statement and, therefore, in view of
the said fact also, the plaintiff can not fall within definition of
'workman' as provided under Section 2(s) of the ID Act and,
therefore, the trial Court and the appellate Court have rightly held
that the Civil Court will have jurisdiction to hear and decide the
issue. The fact remains that the plaintiff is claiming violation of
common or constitutional provision and, therefore, the Civil Court
will have jurisdiction to hear and decide the issue.
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7.7 Therefore, looking to the facts of the present case, the
plaintiff has only claimed right under the General and / or Common
Law and not under the Industrial Disputes Act, 1947 and as the suit
is based on violation of principles of natural justice, this Court
comes to the conclusion that the Civil Court has jurisdiction to hear
and decide the issue.
7.8 Therefore, in view of observations and discussions that
have been made above, I hold issue no.1 framed by the Coordinate
Bench of this Court i.e. " 1. Whether the Ld.Civil Court erred in
holding that it had jurisdiction to entertain the suit a matter which
was as such a dispute between employee and employer i.e. under
the realm of the Labour Laws?" in negative as it is only the Civil
Court that will have jurisdiction to entertain the suit filed by the
plaintiff.
8. Insofar as issue no.2 (ii) i.e. " 2. Whether the Commissioner
of the Corporation, had no powers to accept the resignation
tendered to him by the respondent?" is concerned, it is an
admitted position that vide Exh.50/59, the plaintiff gave his
resignation to the Municipal Commissioner of the defendant on
04.07.1986. It is also an admitted position that vide Exh.63, the
respondent withdrew his resignation and the admitted position
before the trial Court is that even after tendering his resignation to
Municipal Commissioner, the plaintiff has attended the work and
has signed the muster roll. It is also an admitted position that there
is nothing on record to show that the said resignation letter which
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was given by the respondent vide Exh.50 was ever approved by the
Standing Committee of the defendant and the appointment letter
dated 17.05.1978 produced vide Exh.49 also clearly mentions that
though it has been signed by the Municipal Commissioner, the
Municipal Commissioner of the defendant is not an appointing
authority and the respondent has been appointed by the Municipal
Service Commission. Therefore, admitted position before the Court,
is that the plaintiff has been appointed by Municipal Service
Commission and not by Municipal Commissioner.
8.1 The defendant's advocate has tried to canvass his argument
that as the appointment letter and resignation letter has been given
to the Municipal Commissioner, the plaintiff cannot now take
somersault and say that the Municipal Commissioner did not have
any right to accept his resignation. To substantiate argument of the
defendant, he has reliled on judgment rendered in SLP No.21401 of
2022 in the case of Shree Ram Manohar vs. Utkranti Mandal and
others, wherein the Hon'ble Supreme Court has held that if the
employee is permitted to attend the duty even after acceptance of
resignation, non-communication of acceptance does not make the
resignation inoperative and that it is not open to the public servant
to withdraw his resignation after acceptance by the appropriate
authority. The said judgment, on factual aspect, is totally different
to the facts of the present case. Here, the very submission of the
plaintiff is that the Municipal Commissioner, who has accepted the
resignation is not an 'appropriate authority' as he is not the
appointing authority. The appointing authority is the Corporation
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and unless and until there is approval of the Standing Committee of
Rajkot Municipal Corporation, the said resignation could not have
been accepted and the judgment that has been relied upon by the
defendant in the case of Shree Ram (supra), the facts of the said
case are different as in the said case when the resignation letter
was given by the appellant of that case, to the School Committee,
the School Committee placed the same before the management and
the Management Committee passed a Resolution accepting the
resignation. In the present case, the bare reading of the acceptance
of the resignation does not mention that the same was placed
before the Standing Committee of the defendant of the Rajkot
Municipal Corporation and on acceptance of the Standing
Committee of the defendant the resignation of the plaintiff has been
accepted and, therefore, the said judgment is not applicable to the
facts f the present case.
8.2. The next contention that has been raised by the defendant is
that as per provisions of Section 67 of the BMPC Act, the powers of
the corporation vest in the Commissioner and, therefore, in exercise
of powers under Section 67, the Municipal Commissioner has power
to accept the resignation. In my opinion, the said section is also
not of much help to the defendant as Section 53 itself is very clear
that the appointment has to be made by the Corporation with the
approval of the Standing Committee of the defendant and in the
present case, the plaintiff has been appointed by Municipal Service
Commission and the Municipal Commissioner is not being the
appointing authority and, therefore, could not have accepted the
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resignation of the plaintiff.
8.3 The pay-scale of the plaintiff is more than Rs.400/-. At this
stage, it is required to read the provisions of Section 53 of the
Bombay Provincial Corporation Act, which reads thus:
"53. Power of appointment in whom to vest. - (1) The power of
appointing, municipal officers, whether temporary or permanent,
whose minimum monthly salary exclusive of allowances [exceeds
such amount as may be fixed in this behalf by the State
Government, by a general or special order, from time to time in the
case of each Corporation] shall vest in the Corporation:
Provided that temporary appointments for loan works carrying [a
minimum monthly salary, exclusive of allowances of the amount as
so fixed by the State Government] may be made for a period of not
more than six months by the Commissioner with the previous
sanction of the Standing Committee on condition that every such
appointment shall forthwith be reported by the Commissioner to the
Corporation and no such appointment shall be renewed on the
expiry of the said period of six months without the previous
sanction of the Corporation.
(2)Save as otherwise provided in sub-section (1), the power of
appointing Municipal Officers and servants, whether temporary or
permanent, under the immediate control of the Municipal Chief
Auditor or the Municipal Secretary shall vest in the Municipal Chief
Auditor or the Municipal Secretary, as the case may be, subject, in
either, case, to the approval of the Standing Committee unless the
said Committee in any particular case or class of cases dispenses
with his requirement.
(3)Save as otherwise provided in this Act, the power of appointing
Municipal officers and servants whether permanent or temporary
vests in the Commissioner:Provided that, such power in respect of
permanent appointments shall be subject to the statement for the
time being in force prepared and sanctioned under section
51:Provided further that, no temporary appointment shall be made
by the Commissioner for any period exceeding six months and no
such appointment carrying [a monthly salary exceeding such amount
as may be fixed in this behalf,, by a general or special order, from
time to time by the State Government in the case of each
Corporation] shall be renewed by the Commissioner on the expiry of
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the said period of six months without the previous sanction of the
Standing Committee."
8.4 It has been mentioned in Section 53 of 'BPMC Act' that the
appointing authority is the Corporation and not the Municipal
Commissioner and moreover on the plain reading of Section 53(ii)
wherein it has been stated that the power of appointing municipal
officers and servants is in the immediate control of the Chief
Auditor and the Municipal Secretary subject to the approval of the
Standing Committee. Therefore, the appointing authority is not the
Municipal Commissioner though the letter dated 17.05.1978 bears
his signature, but the same is only communication whereby the
Municipal Commissioner has conveyed that the plaintiff has been
appointed by Municipal Service Commission and in no way that can
be considered as appointment made by the Municipal Commissioner
of Rajkot Municipal Corporation and the said appointment letter
also states that the same is as per the provisions of BPMC Act.
Therefore, it cannot be said that the Municipal Commissioner is
appointment authority. The argument made by defendant that the
appointment letter is signed by the Municipal Commissioner and,
therefore, Municipal Commissioner is the appointing authority
cannot be believed as the said appointment letter states that the
respondent has been appointed through Municipal Service
Commission.
8.5 The arguments made by the defendant that the plaintiff
himself herein voluntarily given resignation to the Municipal
Commissioner and now the plaintiff cannot say that the resignation
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that has been given by the plaintiff could not have been accepted
by the Municipal Commissioner, the fact remains that the Municipal
Commissioner was not appointing authority and even if the
resignation letter is given voluntarily to the Municipal Commissioner
addressing letter t the Municipal Commissioner the same should
have been approved and accepted by the Municipal Commissioner
only after the same is forwarded to the Standing Committee and the
Standing Committee of the Rajkot Municipal Corporation should
have accepted the resignation letter forwarded by the plaintiff and
only then the resignation could have been considered valid subject
to the right of the plaintiff to withdraw the said resignation within
the valid period mentioned in the appointment letter so also as per
the 'BMPC Act' and Bombay Civil Service Rules as well.
8.6 The next contention that was raised by the learned advocate
for the plaintiff was that as per provisions of Section 61 of the
BPMC Act, the services of the plaintiff comes under the definition
of 'essential service' and, therefore, members of the 'essential
service' can only give resignation after seeking permission and after
issuing two months' notice in writing to the Commissioner. The
said fact was not argued either before the trial Court or before the
appellate Court, but the fact remains that even in the appointment
letter whereby the plaintiff has been appointed which is produced
vide Exh.49, the same also states that one month's notice has to be
issued if the plaintiff wants to tender his resignation and one
month's salary will have to be deposited by the plaintiff to the
Municipal Corporation and if the services of the plaintiff are of
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'essential service' as prescribed under the 'BPMC Act', then the
salary that will be required to be deducted, will be deducted as per
the 'BPMC Act' and in the present case also admittedly, neither one
month notice of plaintiff's resignation as per the appointment and /
or two months' of resignation as prescribed in BMPC Act, has been
done. The defendant's argument that though the said section
mentions of giving one month notice for resignation, the same does
not restrict the right of the defendant to accept the resignation
before the said period, cannot be accepted because the resignation
can only become effective from the date of expiry of notice period
and since before that date the plaintiff withhold the resignation, he
continued in the service of the defendant.
8.7 Hence, it will be helpful to take into consideration the
observations of decision of the judgment relied upon by the
defendant reported in 1987 Suppl. (1) SCC 228 in the case of
Balram Gupta vs. Union of India wherein it has been held in
para:12 that;
"12. In this case the guidelines are that ordinarily permission
should not be granted unless the officer concerned is in a
position to show that there has been a material change in the
circumstances in consideration of which the notice was
originally given. In the facts of the instant case such indication
has been given. The appellant has stated that no the persistent
and personal requests of the staff members he had dropped the
idea of seeking voluntary retirement. We do not see how this
could not be a good and valid reason. It is true that he was
resigning and in the notice for resignation he had not given
any reason except to state that he sought voluntary retirement.
We see nothing wrong in this. In the modern age we should
not put embargo upon people's choice or freedom. If, however.
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the administration had made arrangements acting on his
resignation or letter of retirement to make other employee
available for his job, that would be another matter but the
offer t retire and withdrawal of appellant's 0 the same
happened in so quick succession that it cannot be said that any
administrative set up or arrangement was affected. The
administration has now taken a long time by its own attitude
to communicate the matter. For this purpose the respondent is
to blame and not the appellant."
8.8 Moreover, in the judgment reported in 2005 (8) SCC
314 in the case of Srikantha S.M. vs. Bharat Earth Movers Ltd.
wherein also in the facts of the said case it was argued that it was
not the obligation to employer to wait till the notice period is
expired and it was held, in that case, that the Bank could not have
accepted the resignation on any earlier date and it cannot be
interpreted as enabling the employer to thrust a resignation of an
employee with effect from the date from the one on which he
makes his resignation effective under the terms of the regulation.
Therefore, even assuming for the moment that the Municipal
Commissioner had the authority to accept the resignation, the
plaintiff would have to give one month's notice for resignation and
the same could not have been accepted by the Municipal
Commissioner before the said period. The fact also remains that the
plaintiff has already withdrawn his resignation before the period of
one month and though this Court has come to the conclusion that
the Municipal Commissioner did not have any jurisdiction to accept
the resignation of the plaintiff even otherwise said resignation could
not have been accepted before the statutory period of one month.
In the present case, the plaintiff has given justification as to why
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the said resignation letter was given in haste, the plaintiff has also
given the background as to on what grounds the said resignation
has been withdrawn by the plaintiff, the plaintiff has also clearly
mentioned that on 08.07.1986, at 11:00 a.m., he had personally
met the Commissioner and thereafter the Deputy Commissioner had
assured the plaintiff that necessary action is taken for withdrawal of
the resignation and the plaintiff was entrusted work by the Deputy
Commissioner and the plaintiff has done his duty on assurance and
promise made by the defendant that his resignation will be
considered as 'withdrawn'. The said facts have been reiterated by
oral evidence filed by the plaintiff at Exh.62 and the defendant has
not countered the said facts by leading any oral evidence in the
proceedings. Therefore, the fact that the plaintiff has taken
necessary action on the withdrawal of resignation and thereafter
assigning different work to the plaintiff and which is not countered
by way of oral evidence by the defendant before the trial Court
and, therefore, adverse inference is required to be drawn against
the defendant on the factual aspect mentioned by the plaintiff in
the suit. It is also not the case of the defendant that after the
resignation and before the withdrawal of the said resignation,
defendant had found another employee and therefore also the said
letter of the resignation could have been withdrawn by the
defendant.
8.9 The fact also remains that as per provisions of Rule
33(A) of Bombay Civil Services Rules, it has been clearly stated that
notice of one month in writing is to be given to the appointing
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authority if the employee intend to resign. Therefore, in the present
case, the appointing authority will not be the Municipal
Commissioner but will be Municipal Service Commission with the
approval of the Standing Committee of the defendant and,
therefore, the trial Court and the appellant Court have rightly held
that the Municipal Commissioner did not not have any jurisdiction.
This Court comes to the conclusion that the Municipal
Commissioner of the defendant has no power to accept the
resignation tendered by the plaintiff (respondent herein). Having
come to that conclusion, even otherwise the said acceptance of the
resignation of the plaintiff by Municipal Commissioner of the
defendant was outside the authority of the Municipal Commissioner
of the defendant Corporation, as the Municipal Commissioner of the
defendant Corporation has accepted the resignation before the
expiry of the period mentioned under Rule 33A of the Bombay Civil
Services Rules of BPMC Act. More particularly Rule 33A 1(a) of the
said Rules reads thus:
"33-A. (1) (a) A Government servant may at any time resign
from the services of the State by giving a notice of one month
in writing to the appointing authority:
Provided that in the case of a temporary servant who has put
in service of less than one year, the period of such notice shall
be one week."
8.10 In the facts of the present case and the observation, I
hold the issue no.2 framed by the Coordinate Bench of this Court
i.e. "2. Whether the Commissioner of the Corporation had no
powers to accept the resignation tendered to him by the
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respondent? in affirmative declaring that the Commissioner of the
Corporation had no power to accept the resignation tendered by the
plaintiff.
9. In view of above observations, this Court hold that Civil
Court will have jurisdiction to hear and decide the suit and the
Commissioner of the Corporation, the defendant had no power to
accept the resignation tendered by the plaintiff.
10. For the above discussion and the reasons recorded, the
judgment and decree of the trial Court is hereby upheld only with
the modification that because of the superannuation of the
employee, the plaintiff cannot be reinstated. Rest of the portion of
the judgment and decree of the trial Court are confirmed. The
present Second Appeal is hereby dismissed accordingly.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
