Second Appeal No.287 of 1987,Second Appeal No.34 of 1988

2nd August, 2002

Petitioner Counsel: Shri. S.K. SHELKE
Respondent Counsel: Shri. R.M. BORDE

Cases Cited:
M/s Hindustan Tin Works Vs. Employees of M/s Hindustan, AIR 1979 SC 75 [Para 5,8]
Executive Committee of Uttar Pradesh State Ware Housing Corporation Vs. Chandra Kiran Tyagi, AIR 1970 SC 1244 [Para 5]
Executive committee of Vaishya Degree College Shamli Vs. Laxmi Narayan, AIR 1976 SC 888 [Para 5,8]
Devi Kevalram Vs Premier High School, 1994(2) Mh.L.J.1809 [Para 5]
Kayastha Pathshala Vs. Rajendra Prasad, AIR 1990 SC 415 [Para 5]
P.Kasi Lingam Vs. PSG College of Technology, AIR 1981 SC 789 [Para 6]
Rajkumar Vs. Union of India, AIR 1969 SC 180 [Para 6]
Union of India Vs. Gopal Chandra, AIR 1978 SC 694 [Para 6]
K.R. Raghuveer Vs. General Manager Vijaya Bank, 1987 Lab.I.C.98 [Para 6]
Surajitsingh Vs. Marathwada Shikshan Prasarak Mandal, 1985 Mh.L.J.630 [Para 7]
Janata Janardan Shikshan Sanstha Vs. Vasant P. Satpute, 1986 Mh.L.J.260 [Para 7]
S.M. Syed Vs. Baroda Municipal Corporation, AIR 1984 SC 1829 [Para 8]
Omprakash Goel Vs. H.P. Tourism Development Corporation Limited, AIR 1991 SC 1490 [Para 8,9]

JUDGMENT

JUDGMENT :- Both the second appeals challenge judgment and order passed by the learned II Additional District Judge, Beed in Regular Civil Appeal No. 168 of 1984 of his file and hence both the appeals are being disposed of by this common judgment.

It will be convenient to refer to the parties by their original status as plaintiff or defendant/s, as before the trial Court.

2. The litigation began with Regular Civil Suit No.65 of 1978 filed by teacher in the court of II Joint Civil Judge J.D. Ambajogai, District Beed. The Yogeshwari Education Society, Ambajogai, District Beed, its Secretary and the Principal, Swami Ramanand Teerth Mahavidhyalay, Ambajogai were defendants.

Plaintiff was appointed as a Teacher by defendant No.1 on 15.6.1966 and was duly confirmed with effect from 15.6.1988 (Sic). He worked as a Lecturer in English in Yogheshwari College run by the society. He was head of the department at the said college from 1971 to 1976. In August 1976, society issued an order transferring plaintiff to S.R.T. College, Ambajogai. Because of this transfer, he was to loose his status as head of the department. For about one year, plaintiff kept on putting his grievance before the defendant society and ultimately submitted a representation, in writing, in he month of July 1977.

As the representation was not considered by the society, plaintiff decided to seek redress by submitting a letter dated 2.10.1997 in the form of intentions to resign from the post. The letter was accordingly submitted to the society on 7.9.1997. Instead of considering the grievances of plaintiff, society communicated to plaintiff by letter dated 19.9.1977 that his post dated letter was treated as notice of resignation and the same was accepted by the college committee in its meeting held on 17.9.1977. As soon as plaintiff received this letter from the Principal of the college, he submitted another letter dated 21.9.1977 withdrawing the post-dated letter tendered on 7.9.1977. This letter was not replied by the society. However, on 1.1.1978, plaintiff was obstructed from performing his duties and signing the muster roll.

The college committee had put before the Governing Council of the society, the decision taken by it on 17.9.1977 and after considering the letter of plaintiff, Governing Council approved the decision of the College Committee, accepting the resignation of plaintiff, in its meeting held on 30.12.1977. The decision of the society was informed to plaintiff.

It was on the backdrop of above stated facts, the suit was filed by plaintiff praying as follows:

(A) That the plaintiff be declared to be continued in service of the defendant society, as if no resignation is tendered by him and as if the same is not validly accepted by the defendants.

(B) That the plaintiff be awarded past emoluments for the month of January 1978 and future salary and emoluments till the date of decree of the suit. The plaintiff is willing and ready to deposit, the court fees on future salary and emoluments.

(C) Regarding : (Costs of the suit)

(D) Any other relief which the plaintiff is entitled may kindly be awarded.

The trial Court was pleased to hold that the letter submitted by plaintiff was not a notice of resignation and act of defendants treating the said letter as notice of resignation was null and void. The trial Court, therefore, decreed the suit as claimed by plaintiff.

Being aggrieved by the said decree, Regular Civil Appeal No.168 of 1994 was preferred by the society and the learned II Additional District Judge, Beed was pleased to allow the same partly. The learned District Judge held that the post dated letter submitted on 7.9.1977 was submitted with an intention to give an opportunity to defendants to consider his grievance for re-transfer. He also observed that the action of the college committee in treating the letter as resignation in its meeting dated 17.9.1977 and that of the Governing Council in its meeting dated 30.12.1977 was illegal and void. Consequently it was declared that plaintiff did not submit letter Exhibit 17 as a notice of resignation and said letter was withdrawn by him. The District Court further declared that plaintiff is continued in service of defendant society for the period January 1978 to March 1980. Plaintiff was also held to be entitled to recover an amount of Rs.39,708.16 Ps. from the society towards amount of salary of January 1978 to March 1980 on payment of requisite court fee on the same. In passing such decree, the District Court has modified the decree passed by trial Court, wherein, emoluments for the period January 1978 till the date of decree i.e. March 1984 were awarded. The wording of the declaration is also modified by the District Judge to certain extent, although the resultant effect has not changed, except terminating the service of plaintiff by March 1980. The District Judge appears to have been persuaded to modify the decree, in view of admission of plaintiff that he had joined the legal profession in April 1980.

3. Second Appeal No.287 of 1987 is preferred by plaintiff being aggrieved by the curtailment of arrears of salary and as can be gathered from the submissions of Advocate Shri Shelke on behalf of plaintiff as also Civil Application No.214 of 2001 filed in this second appeal, seeking relief of provisional pension, plaintiff is expecting this court to modify the decree and grant a declaration that plaintiff is deemed to be continued in service till he retired on attaining the age of superannuation. As stated by Advocate Shri Shelke for plaintiff, plaintiff has reached the age of superannuation sometime in 1998. This appeal was admitted on 1.3.1988, with following order - "Admit. To be heard along with S.A. No.34 of 1988."

So far as Second Appeal No.34 of 1988 the same is filed by the society and the same was also admitted by order dated 1.3.1988, which reads as follows :

"Admit. Ground No.IV involves substantial question of law."

Thus, it is believed that the Second Appeal filed by the society is admitted only on one substantial question of law, which is ground No.IV in the appeal memo, and the same reads as follows :

"IV. Whether a teacher serving in affiliated private college can, on removal, claim reinstatement together with arrears of salary by way of a suit for declaration and ancillary reliefs?"

4. While arguing for both the appeals together, Shri Shelke, Advocate for plaintiff opened the arguments. According to him, the resignation or letter indicating intentions to resign could be withdrawn by the teacher at any time before the resignation could become effective and therefore, the action of terminating the service of plaintiff was illegal and void. Consequently, the plaintiff is entitled to all the benefits till final decision of the litigation. According to Shri Shelke, concurrent findings of lower courts need not be disturbed in this second appeal. He urged that the District Judge could not have modified the relief merely on the admission of plaintiff that he had joined the legal profession, without giving plaintiff an opportunity to elect, whether he would like to resume the services or continue in the legal profession.

Arguments of Shri Borde were somewhat on different line, but strictly confined to the substantial question of law on which the Second Appeal is admitted. Advocate Shri Borde has submitted that the employment of plaintiff was a matter of contract of personal service and declaration as sought cannot be granted in favour of plaintiff, in view of Section 14(1)(b) of Specific Relief Act, as also settled legal position. At the most, plaintiff could have prayed for damages towards illegal termination, which are not prayed in the plaint. Shri Borde, therefore, urged for total dismissal of the suit. Shri Borde also faintly attempted to submit that after communication dated 19.9.1977, regarding acceptance of his resignation, plaintiff could not have withdrawn the resignation, thereby suggesting that action of the society terminating the services of plaintiff was justified. In the alternative, he urged that the amount of Rs.40,000/- deposited in this Court and withdrawn by plaintiff is sufficient compensation and therefore, the decree as passed by the District Judge may not be upset. Both the lawyers have relied upon plethora of case law.

5. The relief claimed by plaintiff in his plaint is verbatim reproduced herein above. However, taking into consideration the submissions of Advocate Shri Shelke, as also prayer in the Civil Application No.214 of 2001, it can be said that plaintiff is claiming a declaration that he has withdrawn his resignation, that, therefore, the action of the society not allowing him to resume the services on 1.1.1978 under the pretext of acceptance of resignation is illegal and viod, that he is continued in service and therefore, he is entitled to the salary for the period ending his service by attaining the age of superannuation and consequently he is also entitled to pensionary benefits. Challenge posed by the society to this claim is that the plaintiff cannot claim any other relief, except the damages for termination of service if the same is illegal and viod, this being contract of personal service.

Shri Shelke, Advocate for plaintiff has relied upon AIR 1979 SC 75 (M/s Hindustan Tin Works Vs. Employees of M/s Hindustan) and more particularly contents in para No.9, which can be usefully reproduced as follows :

"It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that termination of service is bad and the workman continues to be in the service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted when termination of service is found to be invalid.

"Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full backwages, except to the extent he was gainfully employed during the enforced idleness.

"If the employer terminates the service illegally and the termination is motivated as in this case viz, to resist the workman's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the formal rule, it should be followed with full backwages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion."

"If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages when it was held that the termination of service was neither proper nor justified, it would not only show that the workmen were always willing to serve, but if they rendered service they would legitimately be entitled to wages for the same."

As rightly argued by Advocate Shri Borde, the case pertains to the field of industrial jurisprudence and not regarding the contract of personal service, and therefore, it is not possible to borrow the observations or ratio as mutatis mutandis applicable to the case at hands. Even otherwise, the backwages payable are held to be those except the extent employee was gainfully employed elsewhere during the enforced idleness. This aspect has importance regarding the challenge of plaintiff to the action of District Judge, curtailing the arrears of salary to the date on which plaintiff joined legal profession.

As can be seen from fourth paragraph of the quotation above, the employees are held to be entitled to full backwages, once it was held that the termination of service was not justified, on the presumption that they were always ready and willing to render the services. In the present case, while considering the aspect of payments to which plaintiff is entitled, this angle of the problem would assume due importance.

Shri Shelke, Advocate has relied upon the observations of the Supreme Court in the case reported at AIR 1970 SC 1244 (Executive Committee of Uttar Pradesh, State Ware Housing Corporation Vs. Chandra Kiran Tyagi) in order to persuade this court that plaintiff's is the case which falls within the exceptions and the remedy of declaration and reinstatement is available. Following are the observations of the Supreme Court in paragraphs No.20 and 23, upon which reliance was placed by the learned counsel.

"20. The law relating to master and servant is clear. A contract for personal service will not be enforced by an order for specific performance nor will it be open for a servant to refuse to accept the repudiation of a contract of service by his master and say that contract has never been terminated. The remedy of the employee is a claim for damages for wrongful dismissal or for breach of contract.

"23. But there are certain well recognised exceptions to this rule and they are; to grant such declaration in appropriate cases regarding (1) a public servant who has been dismissed from service in contravention of Article 311(2), (2) Reinstatement of dismissed worker under industrial laws by a Labour or Industrial Tribunal, (3) A statutory body, when it has acted in breach of mandatory obligation, imposed by statute."

Advocate Shri Borde has met with the argument that case of plaintiff is within third exception as laid down by the Supreme Court in the matter of Executive Committee of Uttar Pradesh Ware Housing Corporation (Supra), by relying upon the observations of the Supreme Court, in the matter of Executive Committee of Vaishya Degree College Shamli Vs. Laxmi Narayan (AIR 1976 SC 888), wherein it was observed by the Supreme Court that the Executive Committee of Degree College, which is registered under the Registration of Co-operative Societies Act, and is affiliated to Agra University (subsequently to Meerat University) is not a statutory body, merely because it is affiliated to the University or is regulated by the provisions of the University Act, or the statutes made thereunder. It was held;

"The Executive Committee of a college registered under the Registration of Co-operative Societies Act and affiliated to a University, is not a statutory body and without approval of the Vice Chancellor as required by Section 25-C (ii) of the Agra University Act, the services of the plaintiff as Principal of the college are terminated on ground of his habitually and perpetually remaining absent from his duties without permission, such a case does not fall within any of the aforesaid exceptions to the rule of non enforceability of contract of service and hence, prima facie the plaintiff is not entitled to any declaration or injunction."

It was held, not to be a proper exercise of discretion to grant decree for declaration and injunction in favour of plaintiff Principal. It is needless to say that the appeal of the institution was allowed. The order passed by the High Court was set aside and the plaintiff's suit was dismissed, by observing that; the claim of the plaintiff would stand vindicated and he would stand compensated for any hardship that may have been caused to him by termination of his service by allowing him to withdraw the amount of Rs.12,000/- deposited by appellant on two occasions.

Observations of the Supreme Court that the college is not a statutory body merely because it is affiliated to the University and governed by the provisions of the University Act or Statutes framed thereunder, squarely meet and nullify the argument of Advocate Shri Shelke that the case of plaintiff is governed by third exception as laid down in the case of Executive Committee of Uttar Pradesh Ware Housing Corporation (Supra), based on the assumptions that defendant No.1 is statutory body.

The position becomes further clear when we refer to second case relied upon by Advocate Shri Borde i.e. 1994(2) Mh.L.J.1809 (Devi Kevalram Vs. Premier High School). No doubt, this is judgment of learned Single Judge of this Court. However, the same is delivered after taking into consideration the views of the Supreme Court in the cases of Vaishya Degree College (supra) and Kayastha Pathshala Vs. Rajendra Prasad (AIR 1990 SC 415) also relied upon by Advocate Shri Borde. It was held;

"In view of the above discussion, it has to be held that the termination of plaintiff's service on the ground of abandonment of service by the management is illegal but in view of the legal position, I am constrained to hold that she is not entitled to reinstatement."

While recording a finding as above, learned Judge has relied upon the observations of the Supreme Court in the matter of Kayastha Pathshala (supra) to following effect;

"In the educational institutions, the court cannot focus only on the individual forgetting all else. The court must have regard to the varying circumstances in the academic atmosphere and radically changed position of the individual sought to be reinstated. The court must have regard to the interests of students as well as institution."

In that case, the Supreme Court had taken into consideration that plaintiff was not teaching for 25 years prior to conclusion of litigation. In the matter at hands also, plaintiff was not teaching for nearly eight years before the decision of the trial Court on 31.3.1984. By the time, District Court delivered its judgment on 4.9.1987, he had completed a lay off of eleven years from his teaching profession and had entered legal profession in April 1980 for seven years.

The argument of learned counsel Shri Borde for the society that the trial Court as well as the District Court could not have granted declaration regarding continuity of service, is therefore, fully justified and required to be accepted.

6. Advocate Shri Borde has relied upon couple of judicial pronouncements and propounded that it was not open for the plaintiff to withdraw his resignation, once acceptance of the same was communicated to him by letter dated 19.9.1977, as per decision of the local management committee in its meeting dated 17.9.1977.

In AIR 1981 SC 789 (P. Kasi Lingam Vs. PSG College of Technology), it was observed by the Supreme Court;

"The principle that the services of the Government servant normally stands terminated from the date on which letter of resignation is accepted by the appropriate authority, unless there is any law or statutory rule governing the condition of service to the contrary can apply to the case of any other employee."

In making observations as above, the Supreme Court had relied upon the observations in the earlier decision of Rajkumar Vs. Union of India (AIR 1969 SC 180), which is also relied upon by Advocate Shri Borde.

In that case, the question as to when the Government servant's resignation becomes effective came up for consideration by the apex Court and it was held that the services of a Government servant normally stand terminated from 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 service, to the contrary.

In the case of Rajkumar (supra)- there was circular issued on 6.5.1958 under the signature of Deputy Secretary to the Government of India, Ministry of Home Affairs, setting out the procedure to be followed in dealing with the resignation from service and clause (d) of the circular, reads as follows;

"The resignation becomes effective when it is accepted and the officer is relieved of his duties. Where a resignation has not become effective and the officer wishes to withdraw it, it is open to the authority, which accepted the resignation either to permit the petitioner to withdraw the resignation or to refuse request for such withdrawal."

Since, there was no rule framed under Article 309 of the Constitution indicating that for an order accepting the resignation to be effective, it must be communicated to the person submitting his resignation, it was held that the resignation was to become effective as soon as it was accepted by appointing authority.

In the matter at hands, Advocate Shri Borde has not been able to point out any Rules, Statutes or Circular giving finality to the resignation on its acceptance being communicated to plaintiff, even though the resignation was to come into effect on a later date. The observations of the Supreme Court in the matter of Union of India Vs. Gopal Chandra (AIR 1978 SC 694) as referred by Advocate Shri Shelke from the case of K.R. Raghuveer Vs. General Manager Vijaya Bank and another (1987 Lab.I.C. 98) are therefore, applicable to the case at hands;

"An employee who has tendered resignation to be effective from a future date has the right to withdraw the resignation before the date on which it is intended to take effect and therefore, even if in the meanwhile, the resignation has been accepted by the Management, it would be of no effect for, even such acceptance could be effective only from the date with effect from which the resignation is to become effective and with the withdrawal of the resignation before that date there would be no resignation to be accepted from the date."

Therefore, an attempt on the part of Advocate Shri Borde to demonstrate that the letter dated 21.9.1997 by plaintiff withdrawing the resignation to be ineffective, must be treated as an futile attempt. Since the resignation of plaintiff was to come into effect certainly not earlier than 2.10.1977, (infact on 2.1.1978), he could withdraw the same and therefore, on 30.12.1997 the Governing Council had no resignation before it to be accepted.

In this context, it also must be taken into account acceptance of resignation was communicated to plaintiff by local Management Committee. Said committee thought it fit to get the decision approved by the Governing Council, itself indicates that the local Management Committee was not the appropriate authority to accept the resignation and communicate the acceptance to the plaintiff. Thus in any case, withdrawal of the resignation was before acceptance of the same by appropriate authority.

Advocate Shri Shelke has drawn my attention to Section 43(3)(b) of the Dr. Babasaheb Ambedkar Marathwada University Act, 1974. Said subsection indicates that the local Management Committee is obliged to keep true and proper accounts of the income and expenditure of the college and perform such other duties and functions as may be assigned to it by the management. Advocate Shri Borde has not demonstrated that function of accepting resignation, which is normally the function of appointing authority, was delegated to the local Management Committee.

It must therefore, be said that the acceptance communicated by the local Management Committee was not an acceptance by the appropriate authority and liberty of the plaintiff to withdraw his resignation was not taken away by the letter dated 19.9.1977.

As a result of legal position as discussed hereinabove, in the matter at present, it must be said that services of plaintiff were illegally terminated with effect from 1.1.1978. However, he is not entitled to a declaration regarding continuation of service, nor is he entitled to be deemed to be continued in service. At the most he is entitled to damages from defendants.

7. Advocate Shri Shelke by relying upon the observations of this Court in the matters of Surajitsingh Vs. Marathwada Shikshan Prasarak Mandal (1985 Mh.L.J. 630) and Janata Janardan Shikshan Sanstha Vs. Vasant P. Satpute (1986 Mh.L.J. 260) has propounded that the Civil Court has jurisdiction to entertain the claim. In the first matter, objection to the jurisdiction of Civil Court was based upon Section 42(B) of Dr. Babasaheb Ambedkar Marathwada University Act. In the second,it was based upon Section 9 of the Maharashtra Employees of Private School (Conditions of Service Regulation) Act. The contention raised by Advocate Shri Borde is not pertaining to the jurisdiction of Civil Court, but it is regarding what specific relief Civil Court can grant in the matters of contracts of personal services and therefore, the cases relied upon by Advocate Shri Shelke do not make any impact on the decision of the matter.

8. While pressing for full backwages till the conclusion of litigation, Advocate Shri Shelke has relied upon AIR 1984 SC 1829 (S.M. Syed Vs. Baroda Municipal Corporation). In this matter, the dispute was about denial of part backwages of the period 12.12.1969 to 26.10.1976, during which the appellant was litigating before the wrong forum i.e. Civil Court instead of Labour Court. The appellant was reinstated by the Labour Court. Although the backwages were granted, an amount of Rs.150/= per month was permitted to be deducted by the employer towards the period, when the appellant was practising as a lawyer.

In the matter of Omprakash Goel Vs. H.P.Tourism Development Corporation Limited (AIR 1991 SC 1490), full backwages were granted to the plaintiff till the date of enrollment as a lawyer and half of the subsistence allowance for the period between enrollment and reinstatement.

The distinguishing feature between the two cases, relied upon by Shri Shelke and the matter at hands is that in both the cases, plaintiffs were entitled to reinstatement. In the matter at hands, plaintiff is not entitled to reinstatement and hence the question of damages to be considered, will also depend upon the time till which the plaintiff was willing to offer his services. This is because, even in the case of M/s Hindustan Tin Works (Supra), the reinstated industrial employees were held to be entitled for full backwages on the presumption that they were ready and willing to render services, but for illegal termination.

In this context, para No.27 of the Judgment of the Supreme Court in the matter of Executive Committee of Vaishya Degree College (supra) may be usefully referred. While observing that plaintiff therein stood vindicated by payment of Rs.12,000/- deposited by the institution, the apex Court took into consideration the following factors.

(i) Plaintiff served the institution for a short period of two years (1964 to 1966).

(ii) If the declaration sought for or the injunction was granted, the result would be that the plaintiff would have to be paid his full salary with interest and provident fund for full nine years from 1966 to 1975, even though he had not worked in the institution for a single day during that period.

(iii) The appellant would have to pay very huge amount running into lacs of rupees or perhaps more, as a result of which the appellant - institution would perhaps be completely wiped out, which would undoubtedly work serious injustice to the appellant institution.

These factors were taken into consideration inspite of the fact that plaintiff was not at fault, and because the stark realities, hard facts and extreme hardship of the case spoke for themselves.

Considering the case of plaintiff on the same lines, he has served for about 10 years i.e. from June 1966 to 1976, and as a result of continuation, he claims and would be entitled to salary for as many as 22 more years from 1976-1998, plus pensionary benefits. He had joined the legal profession in April 1980 and therefore, there may not be a presumption that he was always ready and willing to render his services to the institution. In the present case, plaintiff also cannot be said to be "not at any fault". It was he, who started the affair by submitting post-dated letter of his intentions to resign. Even in the suit, he has not prayed relief for reinstatement but only claimed emoluments till the date of decree, by showing readiness to pay court fee stamp on the same. And hence, in view of prayer clause (b) as above, as also prayer clause (d) claiming any other relief as may be deemed just and proper, claim for compensation can be considered, subject to payment of court fee. The compensation in any case cannot be equated to salary of remaining period of service till the date of superannuation plus pension, because that would amount to back-door declaration of continuity in service.

It is here that time factor is important i.e. time upto which plaintiff had offered his services. The suit was decreed by the trial Court on 31.3.1994. In fact, Advocate Shri Shelke has not been able to point out anything between this date and date of presentation of Regular Civil Appeal No.168 of 1984 by the society on 11.6.1984 to indicate that plaintiff had insisted for allowing him to resume the services. However, he has relied upon the application dated 12.6.1984 filed by the society seeking stay of the execution of the decree, which was allowed by order dated 22.6.1984. In the said application, the society has contended that the plaintiff is urging to continue him in service. The application for stay was, therefore, granted subject to condition of appellant society depositing salary amount for one year and costs. It may be possible for Advocate Shri Shelke on the basis of averments in the application for stay, to say that till June 1984, appellant was ready to offer his services to the society.

The same inference can not be drawn at the stage between the decision of District Court and presentation of appeals before this Court. First appeal was decided by the District Court on 4.9.1987. It is pertinent to note that it was the plaintiff, who was first in time in filing his appeal. Second Appeal No.287 of 1987 was filed on 16.12.1987. Prior to that plaintiff had also filed the caveat on 25.11.1987. However, there is no interim application filed in the Second Appeal insisting for allowing the plaintiff to resume services with respondent society. The society filed Second Appeal No.34 of 1988 on 25.1.1988 and it was only by Civil Application No.331 of 1988 filed on 3.2.1988, the society prayed for stay of the judgment and decree passed by the District Court. Eventually in this application, the society has not pleaded that the plaintiff is insisting to allow him to resume and technically stay of judgment and decree of the appeal court is sought, so as to relieve itself of the responsibility to pay all the salary to the plaintiff. It is in the light of these circumstances, absence of any application from plaintiff seeking directions to allow him to resume, assumes importance. In any case, in the light of above details, it cannot be said that there is any evidence of attempt on the part of plaintiff to render his services to the institution from the date of decision of District Court. It is required to be taken a note that after admission of the Second Appeal No.287 of 1987, by order dated 1.3.1988, there is no interim application filed by plaintiff, neither for directions to resume the services, nor for expedition of the appeal. It was only on 28.12.2000 he filed Civil Application No.241 of 2001 seeking payment of provisional pension. As submitted by Advocate Shri Shelke, plaintiff ordinarily would have retired on superannuation in the year 1998. Thus, even the application for provisional pension is moved only after waiting for a period of nearly three years after that date. These circumstances provide added reason for not equating the compensation to salary of remainder period of service plus pensionary benefits.

9. In the record of the first appeal Court, at pages 25 and 26, the Secretary of the society has filed computation of salary of plaintiff from January 1978 to January 1987. The amount is Rs.2,32,771.78 Ps. If the plaintiff is to be paid all backwages, till the date of superannuation with enhanced rate, according to increments for further eleven years, it will not be less than further amounts of Rs.Three to Four lacs and plaintiff is claiming all this amount plus pensionary benefits, without rendering service to the institutions and without giving any indications of his intentions to render service, since the decision of the District Court. Even in the matter of Omprakash Goel (supra), relied upon by Shri Shelke, Advocate, full backwages till the date of enrollment as lawyer and half the subsistence amount between enrollment and reinstatement was granted to the plaintiff therein. Hence full backwages upto March 1980 i.e. amount of Rs.40,000/- already deposited and withdrawn, plus some portion of the wages for the period ending January 1987, would meet the ends of justice and vindicate the cause of plaintiff. It is, therefore, directed that the institution shall pay further amount of Rs.75,000/- (Rs.Seventy Five Thousand only/-) to plaintiff, by way of compensation.

Needless to say that the Court fee, payable on the amount of Rs.1,15,000/= (Rs.40,000/= already paid plus Rs.75,000/= now awarded) will be deductible from the balance amount that the plaintiff would receive and the matter need not be referred to Collector for the purpose of said recovery.

10. Both the appeals are, therefore, partly allowed in above terms.

Decree for declaration regarding continuation in the service is quashed and set aside by partly allowing the appeal of the defendant - institution. At the same time, the appeal of the teacher is partly allowed by granting him further compensation as above.

No order as to costs.

Order accordingly.