1. The present second appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein – original defendant – State of Gujarat to quash and set aside the impugned judgement and decree dated 31/01/1990 passed by learned Assistant Judge, Porbandar in Regular Civil Appeal No.8 of 1989, by which, learned Appellate Court has allowed the said appeal preferred by the respondent herein – original plaintiff by quashing and setting that portion of the judgement and decree passed by learned Civil Judge (S.D.), Porbandar in Regular Civil Suit No.353 of 1986, by which, learned Trial Court while decreeing the suit and granting declaration that the plaintiff is continued in service of the State Government and has directed that inactive period of service be treated as leave without pay and for that period the plaintiff is not entitled to any service benefits.
2. That the respondent herein – original plaintiff was serving as Medical Officer, Class-II. She had proceeded on leave on January-February,1983. However, thereafter she did not resume her duty. Thereafter, she had sent proposal of resignation to the Director of Health and Medicine Department, Gujarat State through the Civil Surgeon, Porbandar permitting her to retire from the service w.e.f. 31/07/1984 and requested the Department to communicate the decision of accepting her resignation.
It appears that before any decision was taken by the Department accepting her resignation, on 11/07/1986 the plaintiff submitted application for withdrawal of the resignation and prayed to allow her to join the duty. However, the said prayer was not accepted by the defendant and, therefore, respondent herein – original plaintiff instituted Regular Civil Suit No.353 of 1986 in the Court of learned Civil Judge (S.D.), Porbandar for declaration that proposal for resignation of the plaintiff dated 02/07/1984 is not in accordance with Bombay Civil Services Rules and consequently to declare the same as ineffective. It was the case on behalf of the plaintiff that she is continued in service of the State Government and permanent injunction was sought directing the defendant or its agents not to restrain the plaintiff to resume her duty. It was also prayed to give all consequential benefits as she is continued in service and has not tendered resignation at all. By impugned judgement and decree dated 31/01/1990, learned Trial Court partly decreed the suit declaring that proposal for resignation of the plaintiff dated 02/07/1984 is not in accordance with Bombay Civil Services Rules and it was declared as ineffective. Learned Trial Court also granted declaration that the plaintiff is continued in service of the State Government. Learned Trial Court also granted injunction as prayed for and directed the defendant to pass necessary orders for allotment of the duty to the plaintiff. However, considering the fact that since January-February,1983, the plaintiff had not worked at all, learned Trial Court passed an order that inactive period of service be treated as leave without pay and for that period, the plaintiff is not entitled for any service benefits. At this stage, it is required to be noted that so far as the appellant is concerned, they accepted the judgement and decree passed by learned Trial Court.
3. Being aggrieved by and dissatisfied with that portion of the judgement and decree passed by learned Trial Court, by which, learned Trial Court denied the service benefits for inactive period i.e. by which, inactive period of service be treated as leave without pay and for that period, the plaintiff is not entitled to any service benefits, the respondent herein – original plaintiff preferred Regular Civil Appeal No.8 of 1989 before learned District Court, Porbandar and learned Appellate Court i.e. learned Assistant Judge, Porbandar by impugned judgement and order dated 31/01/1990 has allowed the said appeal and has quashed and set aside the judgement and decree passed by learned Trial Court in so far as continue service benefits for interregnum period i.e. by which learned Trial Court directed that inactive period of service be treated as leave without pay and for that period, the plaintiff is not entitled to any service benefits, meaning thereby, the Appellate Court even allowed the entire suit by holding that the plaintiff is entitled to all the service benefits and other consequential benefits even for the period for which the plaintiff has not worked.
Being aggrieved by and dissatisfied with the judgement and order passed by learned Appellate Court in allowing the appeal and quashing and setting aside that portion of the judgement and decree passed by learned Trial Court, by which, learned Trial Court has directed that inactive period of service be treated as leave without pay and for that, the plaintiff is not entitled to any service benefits, the appellant herein – original defendant- State of Gujarat has preferred the present second appeal u/s.100 of the Code of Civil Procedure.
4. While admitting the present second appeal, the following substantial question of law has been raised for determination in the present second appeal :
“Can a person be granted all service benefits despite the fact that such person remained absent for nearly two years after submitting resignation from service and subsequently withdrawing before its official acceptance?”
Under the circumstances, this Court is required to consider the aforesaid substantial question of law only.
5. Ms.Rita Chandarana, learned Assistant Government Pleader appearing on behalf of the appellant herein – original defendant – State of Gujarat has vehemently submitted that learned Appellate Court has materially erred in allowing the appeal and quashing and setting aside that portion of the judgement and decree passed by learned Trial Court, by which, learned Trial Court denied the service benefit for interregnum period, for which, she remained absent. It is submitted that as such learned Trial Court was justified in denying service benefits for interregnum period as the plaintiff has not worked for that period at all and on the principal of “No work No pay”, learned Trial Court was justified in denying the service benefits for interregnum period and learned Appellate Court has materially erred in quashing and setting aside that portion and granting benefit to the plaintiff even for the period she had not worked at all. Therefore, it is requested to allow the present second appeal.
6. Mr.Vishal Mehta, learned advocate for Mr.A.J.Shastri, learned advocate appearing on behalf of the respondent herein - original plaintiff is not in a position to dispute that as such the plaintiff did not work after January- February,1983. He is also not disputing that the plaintiff herself submitted resignation on 02/07/1984, to be effective from 31/07/1984. It is not in dispute that after period of two years, she withdrew her proposal for resignation. Thus, for the period from January-February,1983 till judgement and decree passed by learned Trial Court, the plaintiff had not worked at all. Under the circumstances, Mr.Vishal Mehta, learned advocate appearing on behalf of the respondent herein – original plaintiff has requested to pass an appropriate order. However, he has requested to make suitable observation that judgement and decree passed by learned Trial Court be implemented by the concerned Department at the earliest as now original plaintiff has already attained the age of superannuation and she will be entitled to retiral benefits only.
7. Having heard learned advocates appearing on behalf of the respective parties and considering the judgement and decree passed by both the Courts below, it is required to be noted that as such learned Trial Court partly allowed the suit declaring that the proposal for resignation of the plaintiff dated 02/07/1984 is not in accordance with Bombay Civil Services Rules and declaring the same as ineffective and declaration that the plaintiff is continued in service of the State Government has been accepted by the State Government and the same is not challenged by State Government by way of appeal. However, it appears that learned Trial Court passed an order that inactive period of service be treated as leave without pay and for that period, the plaintiff is not entitled to any service benefits.
Against the aforesaid portion of the judgement and decree passed by learned Trial Court, original plaintiff preferred the appeal before District Court- learned Appellate Court and the learned Appellate Court has set aside even that portion of the judgement and decree passed by learned Trial Court, by which, it was directed that inactive period of service be treated as leave without pay and for that period, the plaintiff is not entitled to any service benefits. Considering the fact that the plaintiff has not worked after January- February,1983 and she tendered her resignation on 02/07/1984 to be effective from 31/07/1984 and the same came to be withdrawn by her on 11/07/1986 (before resignation dated 02/07/1984 was accepted) i.e after a period of two years from the date of submission of the resignation, learned Trial Court was justified in passing an order and directing that inactive period of service be treated as leave without pay and for that the plaintiff is not entitled to any service benefits. Learned Appellate Court has committed an error in granting all the consequential service benefits even for the period for which she had not worked. Even on principal of "No work No pay", learned Appellate Court ought not to have granted any service benefits to the plaintiff for which she had not worked. Under the circumstances, the impugned judgement and order passed by learned Appellate Court cannot be sustained and the same deserves to be quashed and the judgement and decree passed by learned Trial Court (which has been accepted by State Government) deserves to be restored.
8. In view of the above and for the reasons stated hereinabove, the present second appeal succeeds. The impugned judgement and decree dated 31/01/1990 passed by learned Assistant Judge, Porbandar in Regular Civil Appeal No.8 of 1989 is hereby quashed and set aside and judgement and decree passed by learned Civil Judge (S.D.), Porbandar in Regular Civil Suit No.353 of 1986 is hereby restored, meaning thereby, original plaintiff shall not be entitled to any service benefits for the inactive period i.e. from the period January- February,1983 till judgment and decree passed by learned Trial Court. The present second appeal is allowed to the aforesaid extent. No costs.
[M.R.SHAH,J] *dipti