N.V. Dabholkar, J.
1. Both the second appeals challengejudgment and order passed by the learned IIAdditional District Judge, Beed in Regular CivilAppeal No.168 of 1984 of his file and hence boththe appeals are being disposed of by this commonjudgment.
It will be convenient to refer to theparties by their original status as plaintiff ordefendant/s, as before the trial Court.
2. The litigation began with RegularCivil Suit No.65 of 1978 filed by teacher in thecourt of II Joint Civil Judge J.D. Ambajogai,District Beed. The Yogeshwari Education Society,Ambajogai, District Beed, its Secretary and thePrincipal, Swami Ramanand Teerth Mahavidhyalay,Ambajogai were defendants.
Plaintiff was appointed as a Teacherby defendant No.1 on 15.6.1966 and was dulyconfirmed with effect from 15.6.1988. He workedas a Lecturer in English in Yogeshwari Collegerun by the society. He was head of the departmentat the said college from 1971 to 1976. In August1976, society issued an order transferringplaintiff to S.R.T. College, Ambajogai. Becauseof this transfer, he was to loose his status ashead of the department. For about one year,plaintiff kept on putting his grievance before thedefendant society and ultimately submitted arepresentation, in writing, in the month of July1977.
As the representation was notconsidered by the society, plaintiff decided toseek redress by submitting a letter dated2.10.1997 in the form of intentions to resign fromthe post. The letter was accordingly submitted tothe society on 7.9.1997. Instead of consideringthe grievances of plaintiff, society communicatedto plaintiff by letter dated 19.9.1977 that hispost dated letter was treated as notice ofresignation and the same was accepted by thecollege committee in its meeting held on17.9.1977. As soon as plaintiff received thisletter from the Principal of the college, hesubmitted another letter dated 21.9.1977withdrawing the post-dated letter tendered on7.9.1977. This letter was not replied by thesociety. However, on 1.1.1978, plaintiff wasobstructed from performing his duties and signingthe muster roll.
The college committee had put beforethe Governing Council of the society, the decisiontaken by it on 17.9.1977 and after considering theletter of plaintiff, Governing Council approvedthe decision of the College Committee, acceptingthe resignation of plaintiff, in its meeting heldon 30.12.1977. The decision of the society wasinformed to plaintiff.
It was on the backdrop of above statedfacts, the suit was filed by plaintiff praying asfollows :
(A) That the plaintiff be declared to becontinued in service of the defendantsociety, as if no resignation istendered by him and as if the same isnot validly accepted by thedefendants.
(B) That the plaintiff be awarded pastemoluments for the month of January1978 and future salary and emolumentstill the date of decree of the suit.The plaintiff is willing and ready todeposit the court fees on futuresalary and emoluments.
(C) Regarding : [Costs of the suit].
(D) Any other relief which the plaintiffis entitled may kindly be awarded.
The trial Court was pleased to holdthat the letter submitted by plaintiff was not anotice of resignation and the act of defendantstreating the said letter as notice of resignationwas 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 preferredby the society and the learned II AdditionalDistrict Judge, Beed was pleased to allow the samepartly. The learned District Judge held that thepost dated letter submitted on 7.9.1977 wassubmitted with an intention to give an opportunityto defendants to consider his grievance forre-transfer. He also observed that the action ofthe college committee in treating the letter asresignation in its meeting dated 17.9.1977 andthat of the Governing Council in its meeting dated30.12.1977 was illegal and void. Consequently, itwas declared that plaintiff did not submit letterExhibit 17 as a notice of resignation and saidletter was withdrawn by him. The District Courtfurther declared that plaintiff is continued inservice of defendant society for the periodJanuary 1978 to March 1980. Plaintiff was alsoheld to be entitled to recover an amount ofRs.39,708.16 Ps. from the society towards amountof salary of January 1978 to March 1980 on paymentof requisite court fee on the same. In passingsuch decree, the District Court has modified thedecree passed by trial Court, wherein, emolumentsfor the period January 1978 till the date ofdecree i.e. March 1984 were awarded. The wordingof the declaration is also modified by theDistrict Judge to certain extent, although theresultant effect has not changed, exceptterminating the service of plaintiff by March1980. The District Judge appears to have beenpursuaded to modify the decree, in view ofadmission of plaintiff that he had joined thelegal profession in April 1980.
3. Second Appeal No.287 of 1987 ispreferred by plaintiff being aggrieved by thecurtailment of arrears of salary and as can begathered from the submissions of Advocate ShriShelke on behalf of plaintiff as also CivilApplication No.214 of 2001 filed in this secondappeal, seeking relief of provisional pension,plaintiff is expecting this court to modify thedecree and grant a declaration that plaintiff isdeemed to be continued in service till he retiredon attaining the age of superannuation. As statedby Advocate Shri Shelke for plaintiff, plaintiffhas reached the age of superannuation sometime in1998. This appeal was admitted on 1.3.1988, withfollowing order - ' Admit. To be heard along withS.A.No.34 of 1988.'
So far as Second Appeal No.34 of 1988the same is filed by the society and the same wasalso admitted by order dated 1.3.1988, which readsas follows :
' Admit. Ground No. IV involvessubstantial question of law.'
Thus, it is believed that the SecondAppeal filed by the society is admitted only onone substantial question of law, which is groundNo. IV in the appeal memo, and the same reads asfollows :
' IV. Whether a teacher serving inaffiliated private college can, onremoval, claim reinstatement togetherwith arrears of salary by way of asuit for declaration and ancillaryreliefs?'
4. While arguing for both the appealstogether, Shri Shelke, Advocate for plaintiffopened the arguments. According to him, theresignation or letter indicating intentions toresign could be withdrawn by the teacher at anytime before the resignation could become effectiveand therefore, the action of terminating theservice of plaintiff was illegal and void.Consequently, the plaintiff is entitled to all thebenefits till final decision of the litigation.According to Shri Shelke, concurrent findings oflower courts need not be disturbed in this secondappeal. He urged that the District Judge couldnot have modified the relief merely on theadmission of plaintiff that he had joined thelegal profession, without giving plaintiff anopportunity to elect, whether he would like toresume the services or continue in the legalprofession.
Arguments of Shri Borde were somewhaton different line, but strictly confined to thesubstantial question of law on which the SecondAppeal is admitted. Advocate Shri Borde hassubmitted that the employment of plaintiff was amatter of contract of personal service anddeclaration as sought cannot be granted in favourof plaintiff, in view of Section 14(1)(b) ofSpecific Relief Act, as also settled legalposition. At the most, plaintiff could haveprayed 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 thatafter communication dated 19.9.1977, regardingacceptance of his resignation, plaintiff could nothave withdrawn the resignation, thereby suggestingthat action of the society terminating theservices of plaintiff was justified. In thealternative, he urged that the amount ofRs.40,000/- deposited in this Court and withdrawnby plaintiff is sufficient compensation andtherefore, the decree as passed by the DistrictJudge may not be upset.
Both the lawyers have relied uponplethora of case law.
5. The relief claimed by plaintiff in hisplaint is verbatim reproduced herein above.However, taking into consideration the submissionsof Advocate Shri Shelke, as also prayer in theCivil Application No.214 of 2001, it can be saidthat plaintiff is claiming a declaration that hehas withdrawn his resignation, that, therefore,the action of the society not allowing him toresume the services on 1.1.1978 under the pretextof acceptance of resignation is illegal and void,that he is continued in service and therefore, heis entitled to the salary for the period endinghis service by attaining the age of superannuationand consequently he is also entitled to pensionarybenefits. Challenge posed by the society to thisclaim is that the plaintiff cannot claim any otherrelief, except the damages for termination ofservice if the same is illegal and void, thisbeing contract of personal service.Shri Shelke, Advocate for plaintiffhas relied upon : (1978)IILLJ474SC M/s Hindustan TinWorks v. Employees of M/s Hindustan and moreparticularly contents in para No.9, which can beusefully reproduced as follows :
'It is no more open to debatethat in the field of industrialjurisprudence a declaration can begiven that termination of service isbad and the workman continues to be inthe service. The spectre of commonlaw doctrine that contract of personalservice cannot be specificallyenforced or the doctrine of mitigationof damages does not haunt in thisbranch of law. The relief ofreinstatement with continuity ofservice can be granted whentermination of service is found to beinvalid.
'Ordinarily, therefore, a workmanwhose service has been illegallyterminated would be entitled to fullbackwages, except to the extent he wasgainfully employed during the enforcedidleness.
'If the employer terminates theservice illegally and the terminationis motivated as in this case viz. toresist the workmens demand forrevision of wages, the termination maywell amount to unfair labour practice.In such circumstances reinstatementbeing the formal rule, it should befollowed with full backwages.Articles 41 and 43 of the Constitutionwould assist us in reaching a justconclusion.
'If the services were notterminated the workmen ordinarilywould have continued to work and wouldhave earned their wages when it washeld that the termination of servicewas neither proper nor justified, itwould not only show that the workmenwere always willing to serve, but ifthey rendered service they wouldlegitimately be entitled to wages forthe same.'
As rightly argued by Advocate ShriBorde, the case pertains to the field ofindustrial jurisprudence and not regarding thecontract of personal service, and therefore, it isnot possible to borrow the observations or ratioas mutatis mutandis applicable to the case athands. Even otherwise, the backwages payable areheld to be those except the extent employee wasgainfully employed elsewhere during the enforcedidleness. This aspect has importance regardingthe challenge of plaintiff to the action ofDistrict Judge, curtailing the arrears of salaryto the date on which plaintiff joined legalprofession.
As can be seen from fourth paragraphof the quotation above, the employees are held tobe entitled to full backwages, once it was heldthat the termination of service was not justified,on the presumption that they were always ready andwilling to render the services. In the presentcase, while considering the aspect of payments towhich plaintiff is entitled, this angle of theproblem would assume due importance.
Shri Shelke, Advocate has relied uponthe observations of the Supreme Court in the casereported at : (1970)ILLJ32SC Executive Committeeof Uttar Pradesh State Ware Housing CorporationVs. Chandra Kiran Tyagi in order to persuadethis court that plaintiffs is the case whichfalls within the exceptions and the remedy ofdeclaration and reinstatement is available.Following are the observations of the SupremeCourt in paragraphs Nos.20 and 23, upon whichreliance was placed by the learned counsel.
'20.The law relating to master andservant is clear. A contract forpersonal service will not be enforcedby an order for specific performancenor will it be open for a servant torefuse to accept the repudiation of acontract of service by his master andsay that contract has never beenterminated. The remedy of theemployee is a claim for damages forwrongful dismissal or for breach ofcontract.
'23.But there are certain wellrecognised exceptions to this rule andthey are; to grant such declaration inappropriate cases regarding (1) apublic servant who has been dismissedfrom service in contravention ofArticle 311(2), (2)Reinstatement ofdismissed worker under industrial lawsby a Labour or Industrial Tribunals,(3)A statutory body, when it has actedin breach of mandatory obligation,imposed by statute.'
Advocate Shri Borde has met with theargument that case of plaintiff is within thirdexception as laid down by the Supreme Court in thematter of Executive Committee of Uttar PradeshWare Housing Corporation (Supra), by relying uponthe observations of the Supreme Court, in thematter of Executive Committee of Vaishya DecreeCollege Shamli Vs . Laxmi Narayan : (1976)IILLJ163SC , wherein it was observed by the Supreme Courtthat the Executive Committee of Degree College,which is registered under the Registration ofCooperative Societies Act, and is affiliated toAgra University (subsequently to MeeratUniversity) is not a statutory body, merelybecause it is affiliated to the University or isregulated by the provisions of the University Act,or the statutes made thereunder. It was held;
' The Executive Committee of a collegeregistered under the Registration ofCooperative Societies Act andaffiliated to a University, is not astatutory body and without approval ofthe Vice Chancellor as required bySection 25-C(ii) of the AgraUniversity Act, the services of theplaintiff as Principal of the collegeare terminated on ground of hishabitually and perpetually remainingabsent from his duties withoutpermission, such a case does not fallwithin any of the aforesaid exceptionsto the rule of non enforceability ofcontract of service and hence, primafacie the plaintiff is not entitled toany declaration or injunction.'
It was held, not to be a properexercise of discretion to grant decree fordeclaration and injunction in favour of plaintiffPrincipal. It is needless to say that the appealof the institution was allowed. The order passedby the High Court was set aside and theplaintiffs suit was dismissed, by observing that;the claim of the plaintiff would stand vindicatedand he would stand compensated for any hardshipthat may have been caused to him by termination ofhis service by allowing him to withdraw the amountof Rs.12,000/- deposited by appellant on twooccasions.
Observations of the Supreme Court thatthe college is not a statutory body merely becauseit is affiliated to the University and governed bythe provisions of the University Act or Statutesframed thereunder, squarely meet and nullify theargument of Advocate Shri Shelke that the case ofplaintiff is governed by third exception as laiddown in the case of Executive Committee of UttarPradesh Ware Housing Corporation (supra), based onthe assumptions that defendant NO.1 is statutorybody.
The position becomes further clearwhen we refer to second case relied upon byAdvocate Shri Borde i.e. 1994 (2) Mh.L.J.1809Devi Kevalram v. Premier High School. Nodoubt, this is a judgment of learned Single Judgeof this Court. However, the same is deliveredafter taking into consideration the views of theSupreme Court in the cases of Vaishya DegreeCollege (supra) and Kayastha Pathshala Vs.Rajendra Prasad : AIR1990SC415 also relied uponby Advocate Shri Borde. It was held;
' In view of the above discussion, ithas to be held that the termination ofplaintiffs service on the ground ofabandonment of service by themanagement is illegal but in view ofthe legal position, I am constrainedto hold that she is not entitled toreinstatement.'
While recording a finding as above,learned Judge has relied upon the observations ofthe Supreme Court in the matter of KayasthaPathshala (supra) to following effect;
' In the educational institutions, thecourt cannot focus only on theindividual forgetting all else. Thecourt must have regard to the varyingcircumstances in the academicatmosphere and radically changedposition of the individual sought tobe reinstated. The court must haveregard to the interests of students aswell as institution. '
In that case, the Supreme Court hadtaken into consideration that plaintiff was notteaching for 25 years prior to conclusion oflitigation. In the matter at hands also,plaintiff was not teaching for nearly eight yearsbefore the decision of the trial Court on31.3.1984. By the time, District Court deliveredits judgment on 4.9.1987, he had completed a layoff of eleven years from his teaching professionand had entered legal profession in April 1980 forseven years.
The argument of learned counsel ShriBorde for the society that the trial Court as wellas the District Court could not have granteddeclaration regarding continuity of service, istherefore, fully justified and required to beaccepted.
6. Advocate Shri Borde has relied uponcouple of judicial pronouncements and propoundedthat it was not open for the plaintiff to withdrawhis resignation, once acceptance of the same wascommunicated to him by letter dated 19.9.1977, asper decision of the local management committee inits meeting dated 17.9.1977.
In : (1981)ILLJ358SC P. Kasi Lingam Vs.PSG College of Technology, it was observed by theSupreme Court;
' The principle that the services ofthe Government servant normally standsterminated from the date on whichletter of resignation is accepted bythe appropriate authority, unlessthere is any law or statutory rulegoverning the condition of service tothe contrary can apply to the case ofany other employee.'
In making observations as above, theSupreme Court had relied upon the observations inthe earlier decision of Rajkumar Vs . Union ofIndia : (1970)ILLJ13SC , which is also relied uponby Advocate Shri Borde.
In that case, the question as to whenthe Government servants resignation becomeseffective came up for consideration by the apexCourt and it was held that the services of aGovernment servant normally stand terminated fromthe date on which the letter of resignation isaccepted by the appropriate authority, unlessthere is any law or statutory rule governing theconditions of service, to the contrary.
In the case of Rajkumar (supra),there was a circular issued on 6.5.1958 under thesignature of Deputy Secretary to the Government ofIndia, Ministry of Home Affairs, setting out theprocedure to be followed in dealing with theresignation from service and clause (d) of thecircular, reads as follows;
' The resignation becomes effectivewhen it is accepted and the officer isrelieved of his duties. Where aresignation has not become effectiveand the officer wishes to withdraw it,it is open to the authority, whichaccepted the resignation either topermit the petitioner to withdraw theresignation or to refuse request forsuch withdrawal.'
Since, there was no rule framed underArticle 309 of the Constitution indicating thatfor an order accepting the resignation to beeffective, it must be communicated to the personsubmitting his resignation, it was held that theresignation was to become effective as soon as itwas accepted by the appointing authority.In the matter at hands, Advocate ShriBorde has not been able to point out any Rules,Statutes or Circular giving finality to theresignation on its acceptance being communicatedto plaintiff, even though the resignation was tocome into effect on a later date. Theobservations of the Supreme Court in the matter ofUnion of India Vs . Gopal Chandra : (1978)ILLJ492SC as referred by Advocate Shri Shelke from thecase of K.R. Raghuveer v. General Manager VijayaBank and another 1987 L.I.C.98 are therefore,applicable to the case at hands;
' An employee who has tenderedresignation to be effective from afuture date has the right to withdrawthe resignation before the date onwhich it is intended to take effectand therefore, even if in themeanwhile, the resignation has beenaccepted by the Management, it wouldbe of no effect for, even suchacceptance could be effective onlyfrom the date with effect from whichthe resignation is to become effectiveand with the withdrawal of theresignation before that date therewould be no resignation to be acceptedfrom that date.'
Therefore, an attempt on the part ofAdvocate Shri Borde to demonstrate that the letterdated 21.9.1997 by plaintiff withdrawing theresignation to be ineffective, must be treated asan futile attempt. Since the resignation ofplaintiff was to come into effect certainly notearlier than 2.10.1977, (infact on 2.1.1978), hecould withdraw the same and therefore, on30.12.1997 the Governing Council had noresignation before it to be accepted.
In this context, it also must be takeninto account that acceptance of resignation wascommunicated to plaintiff by local ManagementCommittee. Said committee though it fit to getthe decision approved by the Governing Council,itself indicates that the local ManagementCommittee was not the appropriate authority toaccept the resignation and communicate theacceptance to the plaintiff. Thus in any case,withdrawal of the resignation was beforeacceptance of the same by appropriate authority.Advocate Shri Shelke has drawn myattention to Section 43(3)(b) of the Dr. BabasahebAmbedkar Marathwada University Act 1974. Saidsubsection indicates that the local ManagementCommittee is obliged to keep true and properaccounts of the income and expenditure of thecollege and perform such other duties andfunctions as may be assigned to it by themanagement. Advocate Shri Borde has notdemonstrated that function of acceptingresignation, which is normally the function ofappointing authority, was delegated to the localManagement Committee.
It must therefore, be said that theacceptance communicated by the local ManagementCommittee was not an acceptance by the appropriateauthority and liberty of the plaintiff to withdrawhis resignation was not taken away by the letterdated 19.9.1977.
As a result of legal position asdiscussed hereinabove, in the matter at present,it must be said that services of plaintiff wereillegally terminated with effect from 1.1.1978.However, he is not entitled to a declarationregarding continuation of service, nor is heentitled to be deemed to be continued in service.At the most he is entitled to damages fromdefendants.
7. Advocate Shri Shelke by relying uponthe observations of this Court in the matters ofSurajitsingh v. Marathwada Shikshan PrasarakMandal 1985 Mh.L.J.630 and Janata JanardanShikshan Sanstha v. Vasant P.Satpute 1986 Mh.L.J.260 has propounded that the Civil Courthas jurisdiction to entertain the claim. In thefirst matter, objection to the jurisdiction ofCivil Court was based upon Section 42(B) ofDr. Babasaheb Ambedkar Marathwada University Act.In the second, it was based upon Section 9 of theMaharashtra Employees of Private School(Conditions of Service Regulation) Act. Thecontention raised by Advocate Shri Borde is notpertaining to the jurisdiction of Civil Court, butit is regarding what specific relief Civil Courtcan grant in the matters of contracts of personalservices and therefore, the cases relied upon byAdvocate Shri Shelke do not make any impact on thedecision of the matter.
8. While pressing for full backwages tillthe conclusion of litigation, Advocate Shri Shelkehas relied upon : AIR1984SC1829 S.M. SyedVs. Baroda Municipal Corporation. In this matter,the dispute was about denial of part backwages ofthe period 12.12.1969 to 26.10.1976, during whichthe appellant was litigating before the wrongforum i.e. Civil Court instead of Labour Court.The appellant was reinstated by the Labour Court.Although the backwages were granted, an amount ofRs.150/ per month was permitted to be deducted bythe employer towards the period, when theappellant was practicing as a lawyer.
In the matter of Omprakash Goel Vs.H.P. Tourism Development Corporation Limited : [1991]2SCR701a , full backwages were granted to theplaintiff till the date of enrolment as a lawyerand half of the subsistence allowance for theperiod between enrollment and reinstatement.The distinguishing feature between thetwo cases, relied upon by Shri Shelke and thematter at hands is that in both the cases,plaintiffs were entitled to reinstatement. In thematter at hands, plaintiff is not entitled toreinstatement and hence the question of damages tobe considered, will also depend upon the time tillwhich the plaintiff was willing to offer hisservices. This is because, even in the case ofM/s Hindustan Tin Works (Supra), the reinstatedindustrial employees were held to be entitled forfull backwages on the presumption that they wereready and willing to render services, but forillegal termination.
In this context, para No.27 of thejudgment of the Supreme Court in the matter ofExecutive Committee of Vaishya Degree College(supra) may be usefully referred. While observingthat plaintiff therein stood vindicated by paymentof Rs.12,000/- deposited by the institution, theapex Court took into consideration the followingfactors.
(i) Plaintiff served the institution for ashort period of two years (1964 to1966).
(ii) If the declaration sought for or theinjunction was granted, the resultwould be that the plaintiff would haveto be paid his full salary withinterest and provident fund for fullnine years from 1966 to 1975, eventhough he had not worked in theinstitution for a single day duringthat period.
(iii) The appellant would have to pay veryhuge amount running into lacs ofrupees or perhaps more, as a result ofwhich the appellant - institutionwould perhaps be completely wiped out,which would undoubtedly work seriousinjustice to the appellantinstitution.
These factors were taken intoconsideration inspite of the fact that plaintiffwas not at fault, and because the stark realities,hard facts and extreme hardship of the case spokefor themselves.
Considering the case of plaintiff onthe same lines, he has served for about 10 yearsi.e. from June 1966 to 1976, and as a result ofcontinuation, he claims and would be entitled tosalary for as many as 22 more years from1976-1998, plus pensionary benefits. He hadjoined the legal profession in April 1980 andtherefore, there may not be a presumption that hewas always ready and willing to render hisservices to the institution. In the present case,plaintiff also cannot be said to be 'not at anyfault'. It was he, who started the affair bysubmitting post-dated letter of his intentions toresign. Even in the suit, he has not prayedrelief for reinstatement but only claimedemoluments till the date of decree, by showingreadiness to pay court fee stamp on the same. Andhence, in view of prayer clause (b) as above, asalso prayer clause (d) claiming any other reliefas may be deemed just and proper, claim forcompensation can be considered, subject to paymentof court fee. The compensation in any case cannotbe equated to salary of remaining period ofservice till the date of superannuation pluspension, because that would amount to back-doordeclaration of continuity in service.
It is here that time factor isimportant i.e. time upto which plaintiff hadoffered his services. The suit was decreed by thetrial Court on 31.3.1994. In fact, Advocate ShriShelke has not been able to point out anythingbetween this date and date of presentation ofRegular Civil Appeal No.168 of 1984 by the societyon 11.6.1984 to indicate that plaintiff hadinsisted for allowing him to resume the service.However, he has relied upon the application dated12.6.1984 filed by the society seeking stay of theexecution of the decree, which was allowed byorder dated 22.6.1984. In the said application,the society has contended that the plaintiff isurging to continue him in service. Theapplication for stay was, therefore, grantedsubject to condition of appellant societydepositing salary amount for one year and costs.It may be possible for Advocate Shri Shelke on thebasis of averments in the application for stay, tosay that till June 1984, appellant was ready tooffer his services to the society.
The same inference can not be drawn atthe stage between the decision of District Courtand presentation of appeals before this Court.First appeal was decided by the District Court on4.9.1987. It is pertinent to note that it was theplaintiff, who was first in time in filing hisappeal. Second Appeal No.287 of 1987 was filed on16.12.1987. Prior to that plaintiff had alsofiled the caveat on 25.11.1987. However, there isno interim application filed in the Second Appealinsisting for allowing the plaintiff to resumeservices with the respondent society. The societyfiled Second Appeal No.34 of 1988 on 25.1.1988 andit was only by Civil Application No.331 of 1988filed on 3.2.1988, the society prayed for stay ofthe judgment and decree passed by the DistrictCourt. Eventually in this application, thesociety has not pleaded that the plaintiff isinsisting to allow him to resume and technicallystay of judgment and decree of the appeal court issought, so as to relieve itself of theresponsibility to pay all the salary to theplaintiff. It is in the light of thesecircumstances, absence of any application fromplaintiff seeking directions to allow him toresume, assumes importance. In any case, in thelight of above details, it cannot be said thatthere is any evidence of attempt on the part ofplaintiff to render his services to theinstitution from the date of decision of DistrictCourt. It is required to be taken a note thatafter admission of the Second Appeal No.287 of1987, by order dated 1.3.1988, there is no interimapplication filed by plaintiff, neither fordirections to resume the services, nor forexpedition of the appeal. It was only on28.12.2000 he filed Civil Application No.214 of2001 seeking payment of provisional pension. Assubmitted by Advocate Shri Shelke, plaintiffordinarily would have retired on superannuation inthe year 1998. Thus, even the application forprovisional pension is moved only after waitingfor a period of nearly three years after thatdate. These circumstances provide added reasonfor not equating the compensation to salary ofremainder period of service plus pensionarybenefits.
9. In the record of the first appealCourt, at pages 25 and 26, the Secretary of thesociety has filed computation of salary ofplaintiff from January 1978 to January 1987. Theamount is Rs.2,32,771.78 Ps. If the plaintiff isto be paid all backwages, till the date ofsuperannuation with enhanced rate, according toincrements for further eleven years, it will notbe less than further amount of Rs. Three to Fourlacs and plaintiff is claiming all this amountplus pensionary benefits, without renderingservice to the institution and without giving anyindications of his intentions to render service,since the decision of the District Court. Even inthe matter of Omprakash Goel (supra), relied uponby Shri Shelke, Advocate, full backwages till thedate of enrolment as lawyer and half thesubsistence amount between enrollment andreinstatement was granted to the plaintifftherein. Hence full backwages upto March 1980i.e. amount of Rs.40,000/- already deposited andwithdrawn, plus some portion of the wages for theperiod ending January 1987, would meet the ends ofjustice and vindicate the cause of plaintiff. Itis, therefore, directed that the institution shallpay further amount of Rs.75,000/- (Rs. Seventy FiveThousand only/-) to plaintiff, by way ofcompensation.
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/ nowawarded) will be deductible from the balanceamount that the plaintiff would receive and thematter need not be referred to Collector for thepurpose of said recovery.
10. Both the appeals are, therefore,partly allowed in above terms.Decree for declaration regardingcontinuation in the service is quashed and setaside by partly allowing the appeal of thedefendant - institution. At the same time, theappeal of the teacher is partly allowed bygranting him further compensation as above.
11. No order as to costs.