S.N. Deedwania, J.
1. The facts leading to this civil second appeal preferred by Navneet (sic)Navneetlal plaintiff appellant against the judgment dated September 6, 1968 in civil appeal No 76/1968 by Additional District Judge, Unaipur are these.
2. Plaintiff Navneetdas was an employes of Thikana Nathdwara from 20-9-1924 till 3-9-1963 and was drawing a salary of Rs. 92.90 per month. The Administration of Thikana Nathdwara was vested in the Nathdwara Temple Board by the Nathdwara Temple Act of 1959 (Act 13.1959) (hereinafter referred to as the Act) and the plaintiff continued to serve the Nathdwara Temple Board. Services of the plaintiff were terminated by the defendant with effect from 18-7-1963 by an order dated 3-9-1963 and he was paid a gratuity of Rs. 3040/-. The case at the plaintiff was that the defendant was not entitled to terminate his service because the employees of Nathdwara Thikana were to serve it for their life time. Under Section 21 of the Act, the Board could remove an employee only under the Rules framed by the framed by the State Government No such rules had been framed when the plaintiff was removed from service. The Temple Board resolved on 29-1-1962 that the age of superannuation of its emplopees would be 60 years. The age of superannuation was further raised to 62 years by another resolution dated 17-4-1965 The date of birth of the plaintiff was 20-5-1905 and, therefore, he could not be retired before 18-5-1967. The plaintiff, therefore, claimed the arrears of salary and the D.A. amounting to Rs. 5137 50 by way of damages. In the written statement the defendant did not dispute that the plaintiff was in service of the Nathdwara Temple Board and was removed from service with effect from 18-7-1963 by an order dated 3-9-1963 It was admitted that no rules had been framed under Section 21 of the Act. The two resolutions regarding the age of superannuation were also admitted. However, the case of the defendant was that as the work of the plaintiff was not satisfactory and as he had returned from Banaras without permission and taking charge to where he had been transferred, his services were terminated. It was further averred that as the plaintiff had accepted the sum of Rs. 3040 he has estopped from filing the suit.
3. The trial court as well as the appellate court were of the opinion that services of the plaintiff were illegally terminated as the defendant could not establish any misconduct on the part of the plaintiff. It could not be established that the plaintiff did not faithfully perform his services. Both the Courts were, therefore, of the opinion that even under the ordinary rule of master and servant the termination of the services of the plaintiff was unjustified and therefore, his claim for Rs. 5137.50 was proper. The appellate court also found that the plaintiff could not be removed from setvlce with retrospective effect and, therefore, granted him a decree for the arrears of the salary from 18 7-1963 to 3-9-1963. The trial court raised additional issue No. 2(B) to the following effect:
2(B) Whether the plaintiff was precluded from bringing this suit because he accepted Rs. 3040/- after termination of his services?
The finding of the trial court on this issue was that since the plaintiff had accepted the gratuity from the defendant he has waived his right to challenge his termination of service or the retirement. The appellate court also agreed with this finding arrived at by the trial court.
4. I have heard the learned Counsel for the parties and perused the record of the case carefully. The learned appellate court while holding the plea of waiver relied upon the observations made in the following authorities:-- (1) Associated Hotels of India Ltd' v. S.B. Sardar Ranjitsingh : 2SCR548 :
A waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights.
(2) Nikunja Behari Bhattacharjee v. The State of Tripura and Another AIR 1956 Tripura, page 33:
But where the public servant condoned all defects in the notice terminating his service and accepted, without raising any objection, the arrears of his pay plus three months' pay in lieu of discharge notice, it would show that he waived all objections regarding notice and enquiry.
I have considered the observations made in the aforesaid authorities. The observations made in the case of Nikunja Behari are not applicable to the facts of this case. The plea of waiver was upheld in the different circumstances & more so because the petitioner was a temporary Government servant. It also appears that those observations were casually made because the writ petition was dismissed as same was found to be wanting in bona fides It was further held in that case that the service of the petitioner were dispensed with as he did not possess the necessary qualification for the post which be held. As regards the principle laid down in the Supreme Court authority is was not disputed by the learned Counsel for the appellants but his argument was that the plaintiff never intentionally (sic)delinquished his right. Mere acceptance of the gratuity amount by the plaintiff would not lead to an inevitable inference that he gave up his right to challenge his illegal termination of services. On the other hand learned Counsel far the respondent argued that after accepting the amount of gratuity it should be presumed that the plaintiff had waived his right to challenge the so called illegal termination of the service. I have considered the rival contentions carefully In the first Instance it may be staled that the plea of waiver was not pleaded in so many words by the defendant in his (sic)written statement. It was merely observed that since the plaintiff has accepted the gratuity amount he could not file the suit. It was not even alleged that the plaintiff by accepting the amount of gratuity had given his consent to his illegal termination of set vices and had expressed that he would not challenge his termination of services. In my opinion plaintiff committed no wrong if he accepted the amount of gratuity offered to him as he had no other option. It was hardly necessary for him to accept the amount under protest. Thus the finding of waiver arrived by the lower court was based on no evidence and even in the absence of any pleading to that effect, the finding of fact arrived at by the lower courts is, therefore, vitiated because such a finding discloses the substantial defect or error in procedure. As already observed that whenever a plea of waiver is raised by a party, pleading must specify that there was an agreement between him and the person waiving a particular right not to press that right in future. I am fortified in my view by the observations made in R C. Thakkar v. The Bombay Housing Board : AIR1973Guj34 :
Privy Council has explained in (sic)Dawsons Bunk Ltd. v Nippon Menkwa Kabushini Kaish, AIR 1935 PC 79 the meaning of the term 'waiver' as distinguished from estoppel. Their lordships have held that waiver is contractual, and may constitute a cause of action. In their lordship 'a waiver is an agreement to release or not to assert a right. Therefore' whenever a waiver is pleaded, it should be shown by the party pleading the same that there was an agreement between them that the person waiving a particular right should not press that right in future in consideration of some compromise from some other person The view taken by the privy Council in the above referred case is endorsed by the Supreme Court in Mademsetty Satyanarayana v. G. Yelloji Rao. : 2SCR221 .
As a result of the aforesaid discussion I am of the view that the lower courts were not justified in throwing out the suit of the plaintiff on a plea of waiver as it was not pleaded in the written statement and further there was no evidence to establish it, in favour of the plaintiff.
5. The finding of the trial court with which the appellate court had not disagreed was that his services were illegally terminated. The learned Counsel for the respondents could not advance any argument to assail this finding before me. It is also well settled that the servant is entitled to damages from his master in case of his illegal termination of services. As a result of the aforesaid discussion it is estblished that the services of the plaintiff were illegally terminated. He was entitled to the damages atleast equivalent to the salary which he have earned till his superannuation. The defendants could not establish that the plaintiff had waived his right to claim damages by (sic)accpeting the gratuity.
6. I, therefore, accept the appeal and set aside the judgment and decree of the lower Courl in so far it has disallowed the claim of the plaintiff appellant for Rs.4999.75 as damages and further grant a decree in favour of the plaintiff for the said sum of Rs. 4999. 75 with proportionate costs throughout.