IDBI BANK LIMITED Vs. ROSHAN LAL GUPTA

JUDGEMENT

(1.) This Second Appeal is filed under Section 100 of Code of Civil Procedure, 1908 (CPC) impugning the judgment of the first appellate court dated 29.3.2010. The first appellate court by the impugned judgment accepted the appeal filed by the respondent/plaintiff against the judgment of the trial court dated 21.9.2002 by which the trial court had dismissed the suit for declaration and mandatory injunction which was filed by the respondent/plaintiff.

(2.) Respondent/plaintiff had sought two reliefs in alternative in the suit. First relief was for direction to the appellants/employer to take back the respondent/plaintiff in service. The second relief in the alternative was that if the respondent/plaintiff is not to be taken in service, the respondent/plaintiff should be given benefit of IDBI Pension Regulations, 1993 because the respondent/plaintiff should be deemed to have retired from service after completing 20 years and it is not that his services should be treated to have been abandoned in terms of the order dated 12.7.1991 passed by the appellants/defendants/employer.

(3.) The facts of the case are that the respondent/plaintiff was an employee of the appellant no.1, having been employed on 19.12.1960. On 12.6.1990, the respondent/plaintiff was working as a Senior Officer-Grade A. Respondent/plaintiff was transferred, at this stage, to the head office of the appellants/defendants in Bombay. The respondent/plaintiff did not join at Bombay by giving one reason after another. Firstly, he made a representation against his transfer by his letter dated 18.6.1990, but the same was rejected. Thereafter, respondent/plaintiff informed that his wife was not well and therefore he could not join at Bombay. Thereafter, the third reason which was given was that respondent/plaintiff himself was not well and since as per the medical condition he was advised bed rest, the respondent/plaintiff should not be directed to join at Bombay. The first application informing the illness of the respondent /plaintiff was supported by the certificate of the panel doctor dated 5.12.1990. The certificate attached with this application is of Dr. Sushma Chawla dated 5.12.1990 and which was exhibited as Ex.PW1/11. Respondent/plaintiff was said to be advised further bed rest for six weeks w.e.f 5.12.1990 i.e upto about 19.1.1991. Respondent/plaintiff accordingly gave an application supported by the medical certificate of the medical officer of Hindu Rao Hospital at Delhi (Ex.PW1/12) that respondent/plaintiff need not join duty for one month ie upto 16.2.1991. These two certificates Ex.PW1/11 and Ex.PW1/12 are not disputed by the appellants, and the disputes arose thereafter. Respondent/plaintiff for the period after 16.2.1991, filed before the trial court and relied upon his alleged letter dated 17.2.1991 seeking one month medical leave, but admittedly this letter was neither supported by a medical certificate and nor was this letter said to have been sent by UPC, proved before the trial court. This letter and the corresponding UPC have not been proved and exhibited before the trial court by the respondent/plaintiff and as conceded before me on behalf of the respondent/plaintiff. Further letters dated 12.4.1991 and 22.6.1991 sent by the respondent/plaintiff to the appellants were again not proved before the trial court and were in any case not supported by the requisite medical certificates of a panel doctor of the appellants inasmuch as the certificates are only of a private Gautam Hospital. The next letter given by the respondent/plaintiff is dated 10.7.1991 and which has been exhibited as Ex.PW1/15 and which is said to be accompanied by the certificate of Gautam Hospital dated 10.7.1991. The same has been exhibited as Ex.PW1/16. However, I note that there is no proof of receipt of these letters by the appellants and the appellants in their written statement have in fact denied having received any letter from the respondent/plaintiff after the respondent's/plaintiff's letter dated 17.1.1991. The appellants/defendants on account of failure of the respondent/plaintiff to join duties, passed the order dated 12.7.1991 (Ex.PW1/21) intimating the respondent/plaintiff that his services were deemed to have been abandoned as the respondent/plaintiff had not joined his duties. Respondent/plaintiff thereafter kept on corresponding with the appellants challenging the order dated 12.7.1991. Ultimately, the subject suit came to be filed on 5.8.1997.