Heard Sri Mayank Srivastava, learned counsel for appellant, Sri C.S. Agnihotri, learned counsel for respondents and perused the record.
Facts in brief of the present case are that Dr. Piyush Kumar Srivastava, plaintiff filed a Regular Suit No. 69 of 1999 (Dr. Piyush Kumar Srivastava Vs. Dr. Kanlyush S. Valter, Director for India the Leprosy Mission and others) and pleadings as taken in the plaint are that as per the scheme of Government of India in the field of treatment of Leprosy in the State of U.P., a society in the name of Leprosy Mission Trust India works in the Zone consists of District Banda, Chitrakut, Hamirpur and Mahoba known as Chitrakut Dham Zone having its head office at Banda.
In the said zone, plaintiff was appointed as Medical Zonal Officer by an agreement dated 17.07.1998. As per the terms of the agreement, the period of the plaintiff's appointment was three years but the same can be terminated or suspended prior to said period and the salary payable to him is Rs. 8000/- per month.
It is further pleaded in the plaint that on 16.08.1999, the appellant suffered from medical ailment of Hepatitis and Dihoria, as such, for the treatment of the said medical ailment, he went for medical checkup at SGPGI, Lucknow and the doctors at SGPGI advised him to take complete rest. In this regard, he has given a written information to O.P. No. 3/Dr. S.N. Kesabiyanka. But on 09.04.1999 he has been asked by Dr. S.N. Kesabiyanka and Dr. J.K. Denial, Assistant Director, Finance Leprosy Mission Trust India to meet them at Hotel Gomti in a meeting where he was forced to tender his resignation, thereafter the Assistant Director (Administration) of the scheme wrote a letter dated 10.04.1999 leveling certain financial irregularities on the appellant. In this regard a letter was also written on 14.04.1999 by Dr. S.N. Kesabiyanka.
Accordingly, it is pleaded by the appellant-plaintiff that due to the said act on the part of the defendants, the image of the appellant has been badly effected and defame, as a result of which adverse effect cause to the appellant. Further it is also known that due to letter dated 14.04.1999, the stigma has been casted on his social life, for the said act of defendant on the part of defendants he may be compensated.
On behalf of the defendants-respondents in their written statement, it is pleaded that the appellant has been appointed in the Sansthan, is run and operated under the scheme of Government of India known as Rashtriya Kushth Nivaran Yojna and as per the terms of the appointment of the appellant his engagement is of three years, admitted by the plaintiff. It is further submitted that on 29.03.1999, the appellant had informed in respect to his ailment to the authorities of the Sansthan, thereafter when the details/report in respect to his working and performance under Leprosy scheme of the Sansthan has been called, he failed to give any satisfactory reply rather the work done by the plaintiff was not upto the mark, so he taken an excuse of his illness, and on 09.04.1999 tendered his resignation on 09.04.1999 from the post of Medical Zonal Officer, accepted on 10.04.1999 by the competent authority, thereafter the plaintiff has voluntarily returned all the equipments and other items which were given to him in the capacity of Medical Zonal Officer. .
It is further pleaded in the written statement that it is totally incorrect on the part of the plaintiff to state in the plaint that under pressure he has tendered resignation and due to any act on the part of the Sansthan there is a stigma or adverse affect of his image.
In the replication filed plaintiff has pleaded that he has written a letter dated 12.04.1999 by which he has taken back his resignation but no heed has been paid which as per the terms of agreement compensation be awarded to him.
The trial court on the basis of the material on record and evidence documentary/oral in order to decide the controversy in question has farmed issues No. 1 to the effect that:
"क्या वादी प्रतिवादीगण से ५००००/- रु० प्राप्त करने का अधिकारी है, जैसा की वाडपत्र में अभिकथन किया गया ?"
While deciding the said issue, the trial court has given a finding that prior to joining on the in the Leprosy Mission Trust India, Dr. Piyush Kumar Srivastava/plaintiff has got a private practice and when he was given appointment, he was enable to continue the said private practice and due to the act of the defendant, the image of the plaintiff in the field in question had suffered great loss. As a result of which, he was got mental as well as physical injury and his private practice suffered loss.
Further, the trial court has also given a finding that completing all the necessary injuries as per the terms of the agreement he has been given appointment on the post of Medical Zonal Officer for a period of three years at the rate of Rs. 8000/- per month and a finding was also given by the trial court that after suffering from illness of Hepatitis and Dioheria, the plaintiff for the treatment of the same has come to Lucknow where he was forced to give resignation on 09.04.1999 and due to the act on the part of Mission thereby writing a letter dated 10.04.1999, image of the plaintiff has suffered, so he is liable to compensate.
By means of the judgment and order dated 29.04.2011, the trial court of the Civil Judge (Sr. Div.), Banda decreed the suit filed by the plaintiff against the Leprosy Mission Trust India through its Director Dr. Sunil Anand, New Delhi, operative portion of the same reads as follows:-
"दावा वादी विरुद्ध प्रतिवादिगण सव्यय आज्ञप्ति किया जाता है | प्रतिवादी संख्या - ५ को आदेशित किया जाता वह प्रथम अनुतोष के बचत ५०,०००/- रु० सोलह प्रतिशत वार्षिक व्याज की दर से दावा दायर करने की तिथि से डा० पियूष कुमार श्रीवास्तव को प्रदान करे तथा डा० पियूष द्वारा एग्रीमेंट के दौरान प्राइवेट प्रैक्टिस बंद राखी तथा उनके ऊपर गंभीर व झूठे आरोप लेप्रोसी मिशन द्वारा लगाये गया इसके लिए बतौर हर्जाना प्रतिवादिगण डा० पियूष कुमार श्रीवास्तव को तीन लाख रूपये प्रदान करे एवं तीन वर्ष की अवधि का वेतन (डा० पियूष को प्राप्त हुआ वेतन को छोरकर) एग्रीमेंट के अनुसार सोलह प्रतिशत वार्षिक व्याज की दर से दो माह के अंदर प्रदान करें | यदि प्रतिवादीगण द्वारा उपरोक्त धनराशि को समयावधि के अंदर भुगतान नहीं किया जाता तो वादी को यह अधिकार होगा की वह न्यायालय के माध्यम से प्राप्त कर लेवे |"
Aggrieved by the judgment and decree passed trial court, , Leprosy Mission Trust India through its Director, Sunil Anand, New Delhi filed an appeal (Appeal No. 40 of 2011, the Leprosy Mission Trust India Vs. Dr. Piyush Kumar Srivastava).
Appellate court in order to adjudicate and decide the controversy in question before it had framed the following point of determination as per the provisions as provided under Order 41 Rule 31:-
"१. क्या वादपत्र में उल्लिखित अभिकथन के आधार पर वादी प्रतिवादी से 50 ,000 /- रूपये प्राप्त करने का अधिकारी है ?
२. क्या वादी 50 ,000 /- रूपये के अतिरिक्त अन्य छति के साथ कोई अन्य अनुतोष भी पजे का अधिकारी है ?"
Further, appellate court on the basis of material on record, oral and documentary evidence has given a finding that a case has set up by the plaintiff that he was forced to submit his resignation is not correct rather true and correct position is that he has submitted his resignation due to ill health and the same was accepted on 10.04.1999, so the plea as taken by the plaintiff that by letter dated 12.04.1999 he has withdrawn his resignation has got no significant/importance, once his resignation has been accepted.
The appellate court has further held that the acceptance of the resignation of the plaintiff/appellant is evidence from the document which has numbered as paper No. 41 Ga which is the basis of raising a dispute in respect to defamation by the appellant. The appellate court has further held that from the perusal of the document (letter numbered as document No. 41 Ga) there is no case has been made out in respect to defamation as pleaded by the appellant and on the basis of the said document the appellate court has held that the case of defamation as pleaded by the appellant is not borne out from the document on record, accordingly, the appeal has been allowed and the judgment and decree passed by the trial court has been set aside.
In view of the said factual background, the present appeal has been filed by the plaintiff-appellant on the following main substantial question of law:-
"1. - Whether relief can be granted on teh pleadings udner the relief claimed for granting any other relief clause of the plaint?
3. - Whether the trial court while granting to the relief is well within jurisdiction of the trial court?
4. - Whether once in evidence the D.W. 1 Ashish Layal has admitted in evidence that prestige of the plaintiff/appellant was down on the allegations of the defendant/respondent by making false allegation but the lower appellate court committing illegality in not considering the same?"
Learned counsel for appellant had pressed the abovesaid question of law on the ground that the plaintiff/appellant belongs to well reputed family and his father was established physician and his wife and plaintiff himself are well reputed physician of the Banda city and in whole District but when the respondent posted the notice in regard to the offense of criminal breach of trust and for committing financial irregularities on the notice board of his residence cum hospital then the reputation graph of the plaintiff/appellant was come down in the city.
It was also argued by learned counsel for appellant that he has been forced to tender resignation from the post of Medical Zonal Officer which he has been subsequently withdrawn, so keeping in view the said fact, the trial court has rightly decreed the suit.
Learned State counsel submits that the appellate court has rightly allowed the appeal and the trial court has wrongly and illegally decreed the suit so the the appeal is liable to be dismissed.
I have heard learned counsel for parties and gone through the record.
In view of the undisputed facts of the present case which in brief are that plaintiff-appellant has been appointed on the post of Medical Zonal Officer by way of agreement as staed abvoe and he has fallen ill and proceeded on medical leave on 29.03.1999. The core question which is to be considered in the light of the said fact whether the plaintiff-appellant has been forced to give resignation on 09.04.1999 by the officers of the Sansthan. From the perusal of the document on record, the position which emerged out that the plaintiff appellant by way of any cogent evidence has forced to prove that he has been forced by the authorities of the Sansthan to give his resignation. Further, the said resignation has been accepted by the competent authority of the Sansthan on 10.04.1999 and the said fact is well within the knowledge of the appellant which is evident from the documentary evidence on record, namely, paper No. 41 Ga/1 and 41 Ga, so keeping in view the said facts as well as the word 'Resignation' in relation to an office connotes the act of giving up or relinquishment of the office. To relinquish office means to cease to hold office or to lose hold of the office. Therefore, it means that the employees wants to sever his relation from the employer without any riders and then only it would amount to resignation.
Corpus Juris Secundum Vol. 77 page 311 defines the words 'resign' and 'resignation' as under:
"RESIGN" To give up; to surrender by a formal act; to yield; to relinquish; to give up one's office or position; to withdrawn from. The word" resign" in its ordinary and usual sense, imports a voluntary act, and has been held not to include the act of one whose continuance in a position has been terminated by death or by induction into the armed forces under th Selective Service Act.
"RESIGNATION. It has been said that "resignation" is a term of legal art, having legal connotation which describe certain legal results. It is characteristically the voluntary surrender of a position by the one resigning, , made freely and not duress, and the word is defined generally as meaning the act of resigning or giving up, as a claim, possession, or position."
In Words and Phrases( permanent Edn.) Vol. 37 at page 473, the word 'Resign' denoting voluntarily act, relinquish to give up , surrender by formal out, yield, relinquish , give up ones' office or position , or withdraw from it. Further at age 436 the word resignation has been define as :
" To constitute a ' resignation', it must be unconditional and with an intent to operate as such. There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. It is to give back, to give up in a formal manner, an office."
Black's Law Dictionary Sixth Edition Page 1310 defines the resignation as formal renouncement or relinquishment of an office. It must be made with intention of relinquishing the office accompanied by act of relinquishment . It is said that resignatio est juris proprii spontanea refutatio i.e. resignation is spontaneous relinquishment of one's own right thus the term of resignation implies voluntarily surrender of the position by a person resigning and acting freely not under duress and it becomes effective when the authority competent to make appointment accept it.
Hon'ble Supreme Court while considering the meaning of the word"resigning office" in the case of Union of India etc. Vs Gopal Chandra Misra and others, AIR 1978 SC 694 held as under:-
" In the general juristic: sense, also the meaning of " resigning office" is not different. There also , as a rule, both, the intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see, e.g. American Jurisprudence, 2nd Edition Volume 15A , page 80) although the act of relinquishment may take different forms or assume a unilateral or bilateral character , depending on the nature of the office and the conditions governing it. Thus, resigning office necessarily involves relinquishment of the office , which implies cessation or termination of, or cutting as under from the office . Indeed the completion of the resignation and the vacation of the office , are the causal and effectual aspects of one and the same event."
Further in para 42 of the aforesaid judgment the Hon'ble Apex Court approving the principle of withdrawal before the relationship of the employer and the employee held as under:-
" The general principle that emerges from the foregoing conspectus is that in the absence of anything to the contrary in the provisions governing the terms and conditions of the office post, an intimation in writing sent to the ; competent authority by the incumbent, of his intention or proposal to resign his office/post from a future specific date, can be withdrawn by him at any time before it becomes effective, i.e. before it effects termination of the tenure of the office/post or the employment."
In the case of P. Kasilingam V. P.S.G. College of Technology, AIR 1981 SC 789, Hon'ble Supreme Court has held that :-
" It may be conceded that it is open to a servant to make his resignation operative from a future date and to withdraw such resignation before its acceptance. The question as to when a Government servant's resignation becomes effect came up for consideration by this Court in Raj Kumar Vs. Union of India , (1968) 3 SCR 857; ( AIR 1969 SC, 180) . It was held that the services of a Government servant normally stand terminated form the date on which the letter of resignation is accepted by the appropriate authority, unless there is any law or statutory rule governing the conditions of services to the contrary. There is no reason why the same principle should not apply to the case."
In Moti Ram Vs. Param Dev (1993) 2 SCC 725, this Court observed as hereunder:-
" As pointed out by this Court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it, Union of India Vs. Gopal Chandra Misra (1978) 2SCC 301, If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g. acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it."
In Union of India Vs. Wing Commender T Porthasarathy (2001) 1 SCC 158, the Apex Court has held that when a public servant has tendered resignation his service normally stands terminated from the date on which the letter of his request is accepted by the appropriate authority and the absence of any law or statutory rule governing the condition of his service contrary to the delay not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority.
In the case of Dr. Prabha Atri Vs. State of U.P. and other, (2003) 1 SCC 701, Hon'ble Supreme Court has observed that letter when constitutes resignation , such a letter , held must be unconditional and intending to operate as such. Where an employee, required to submit his explanation for a certain lapse on his part, while submitting his explanation added that if the explanation was found to be not acceptable he would have no option left but to tender his resignation with immediate effect, held, such a letter did not amount to resignation. At best it could amount to a threatened offer to resign. The words "with immediate effect" in the said letter , held , could not be given undue importance dehors the context tenor of the language used, the purport of the letter and the portion of the letter indicating the circumstances in which the letter was written. Moreover, stopping the domestic enquiry by the management consequent to acceptance of the alleged resignation, held , had not significance in ascertaining the true or real intention of the said letter (See. (2005) 5 SCC 455, North Zone Cultural Center and another v. Vedpathi Dinesh Kumar) Thus , keeping in view the abovesaid settled position of law on the point in issue and as per the documents on record, once the resignation submitted by the plaintiff-appellant on 09.04.1999 has been accepted by the competent authority on 10.04.1999, the question of withdrawal is of no consequence.
Further, from the material on record, it is also transpires that from the letter written by the Sansthan (numbered as paper No. 41 Ga) is the basis of claiming damages by the plaintiff on the ground that his image has been damaged. The finding given by the appellate court that from the perusal of the said document i.e. letter written by the authorities of the Sansthan there is no stigma or bad fame has been caused to the name of the appellant in his social life as doctor in district Banda, so the same cannot be a basis for claiming any damages as the said letter was neither published nor come to the knowledge of anybody in the field where he is doing private practice due to which the plaintiff appellant has suffered any loss in his private life. Thus, keeping in view the said facts, the finding given by the appellate court that the plaintiff/appellant is not entitled for any compensation and is also not entitled for any salary for the period of three years.
Thus, keeping in view the abovesaid facts, I am of the considered opinion that the finding given by the appellate court while allowing the appeal and setting aside the judgment and decree passed by the trial court is perfectly valid needs no interference as it is well settled proposition of law as laid down by Hon'ble Supreme Court and by this Court that while adjudicating the dispute in the second appeal the finding of fact, which is recorded by the Court below can only be set aside if the same is contrary to the facts and perverse in nature. However, in the present case, the learned counsel for the appellant fails to point out that under what circumstances the findings which are recorded in this regard by the court below are contrary to the records and perverse in nature. Further, findings recorded by the Courts below cannot be set aside on flimsy arguments advanced on behalf of the appellants and without there being any question of law. In the instant case, arguments of the counsel for the appellants are factual in nature and by no stretch of imagination can constitute substantial questions of law. Re-appraisal of evidence is not permissible. Interference of the facts from recital or content of the document or after shifting oral evidence does not leave any scope of re-appraisal in exercise of jurisdiction under section 100 C.P.C.
It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, in second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the courts of fact may be, the learned counsel for the appellant did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact. (See Mustafa Vs. Vakil @ Iqbal and another 2008 (105) RD 392).
The Apex Court depreciated the liberal construction and generous application of provisions of section 100 C.P.C. Hon'ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that can not be sufficient for interference under section 100 C.P.C. For ready reference, extract of paragraph No.7, of the vase of Veerayee Ammal V. Seeni Ammal reported in 2002 (1) SCC 134=2001(45) ALR 691 (SC) is quoted below:
"7......We have noticed with distress that despite amendment, the provisions of section 100 of the Code have been liberally construed and generously applied by some judges of the High Courts with the result that objective intended to be achieved by the amendment of section 100 appears to have been frustrated. Even before the amendment of section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal."
In the case of Santosh Hazari V. Purshottam Tiwari reported in 2001 (92) RD 336 (SC) had held that a point of law which admits of no two opinions may be preposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. If will, therefore, depend on the facts and circumstances of the each case whether a question of law is substantial one and involved in the case or not. The same view has been expressed again by the Apex Court in the case of Govinda Raju Vs. Marriamman 2005 (98) RD 731.
For the foregoing reasons, no substantial question of law involved in this appeal. The judgment and decree under challenged in the present case are perfectly valid and need no interference.
In the result, the second appeal lacks merit and is dismissed.
Order Date :- 24.7.2014 Ravi/-