Decided on July 18,1983



- (1.) THIS appeal at the instance of the plaintiff arises out of a suit for declaration that the plaintiff is an employee of the defendant no. 1 and he is entitled to rejoin the services as Divisional Manager on and from 9th of June, 1977 en the same terms and conditions as are applicable to the plaintiff prior to September 27, 1976. The plaintiff further prayed for declaration that the impugned order of transfer dated 18th of September, 1976 is illegal, void and/or ineffective and other consequential reliefs. In so far as the transfer order is concerned, it may be stated that Mr. Roychowdhury appearing for the appellant did not press this prayer at the hearing.
(2.) THE case made out by the plaintiff is that the defendant no. 1 is a company within the meaning of General Insurance Business Nationalisation Act, 1972. The defendant no. 1 is managed by the board of Directors constituted by and under the provision of the said Act. Prior to January 1973 the plaintiff was a wholetime Officer of the Concord of india Insurance Company Ltd. and on and from 2nd of January, 1973 the plaintiff became the officer of the defendant no. 1 and is alleged to continue to be so when the suit was filed, on the terms and conditions of service, inter alia, of General Insurance (Nationalisation of Pay Scales and other Conditions of Service of Officers and Development staff) Scheme 1976. The plaintiff who was employed as a Divisional Manager at 38, Chowringhee Road,. Park Street, was transferred by an order dated 18th of September, 1976 as Assistant general Manager to the Regional Office of the defendant on and from 27th of September, 1976. It is alleged that the order of transfer was mala fide inasmuch as by the said order of transfer the plaintiff would be loosing about Rs. 700/-per month. Be that as it may, the plaintiff appellant submitted his resignation to the Regional Manager of the defendant no. 1 which was to take effect from 11th of January, 1977. It appears that subsequent to the filing of resignation letter the plaintiff applied for encashment of his earned leave or to be granted earned' leave for 128 days from list of February, 1977. It appears that correspondence followed between the plaintiff appellant and the defendant No. 1. The defendant no. 1 stated to him that it was not possible for them to grant him encashment of the earned leave but allowed the plaintiff to enjoy the earned leave and his resignation, according to the plaintiff himself, would have been effective from the date he exhausted his leave. Thereupon by a letter dated 28th of January, 1977 in reply to appellant's letter dated 19th of January, 1977 the defendant no. 1 allowed the plaintiff to go on leave for 128 days. On 9th of May, 1977 the plaintiff wrote a letter to the defendant that he would rejoin his office on 9th of June, 1977 after he enjoyed the leave of 128 days which was to his credit on 31st of January, 1977. Immediately thereafter the company wrote back to say that he cannot be allowed to rejoin on 9th of June, 1977 as he was trying to take advantage of the generous gesture extended by the company to the plaintiff to have the benefit of the leave that stood to his credit as on 31st of January, 1977. It was communicated to him by the letter dated 23rd of May, 1977 that his resignation was accepted.
(3.) THE defendant filed a written statement stating inter alia that the plaintiff cannot rejoin the service on 9th of june, 1977 as his resignation has already been accepted from 9th of June, 1977. It was further stated that the plaintiff tendered his resignation with effect from 9th of June, 1977 and the defendant duly accepted the said resignation. It is denied that the resignation was not duly accepted by the defendant no. 1. On these pleadings the parties came to trial and the suit having been dismissed the present appeal has been preferred by the plaintiff appellant.;

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