Decided on July 12,1978

Birendra Mohan Patnaik Respondents


R.N. Misra, J. - (1.) THIS appeal by the State of Orissa is directed against the judgment and decree of the learned fourth Additional Subordinate Judge of Cuttack decreeing the Plaintiff's suit.
(2.) SOMETIME in 1964, the State Government decided to set up a Commission under the Commission of Inquiry Act of 1951 to inquire and make a report over the students' agitation in the State and Mr. Justice Barman of this Court was nominated to head the Commission. The Plaintiff at that time was working as Standing Counsel of the Vigilance Department of the State. On 10th of November, 1964, under Ext. 1, the Inspector -General of Police in response to a radio message of 9th November wrote to the Additional Secretary to Government in the Home Department recommending the appointment of the Plaintiff as State's lawyer for the Commission. On 20th of February, 1965, under Ext. 2, the Home Secretary informed the Inspector General that Government have decided to appoint the Plaintiff to represent the State Government before the Commission of inquiry and formal orders of Government would be issued soon. He therefore, requested the Inspector General to go ahead in processing the matter. A copy of Ext. 2 was communicated to the Plaintiff. In Ext. 1, the Inspector General had indicated: Shri B.M. Patnaik be given the fees and rate of I. A. admissible to him as Standing Counsel, Vigilance. Since he has to spend large number of days in scrutinising records, consultations and discussions, examination of officers prior to commencement of enquiry by the Commission, he should be given the same daily fees for days on which he spends for more than 4 hours at headquarters or outside. By letter dated 28th of April, 1965 (Ext. 6) the Home Secretary' communicated to the Inspector General the terms of appointment of counsel and forwarded a copy thereof to the Plaintiff. No provision was made in Ext. 6 for payment of any remuneration to the Plaintiff for his work at headquarters or outside as contemplated in Ext. 1. Plaintiff, according to him, started the processing work from 23rd of February, 1965 by perusing records and documents, holding conferences and discussions drafting of affidavits and in the said connection visiting places. There were preliminary sittings of the Commission and he represented the State at such sittings. The Barman Commission started its regular sittings after May, 1965 and by end of the year, the hearing was over. Plaintiff has been already paid his fees for appearances before the Commission. He laid claim for payment of fees at the rate of Rs. 150/ - per day in terms of what had been indicated in Ext. 1. On 17th November, 1965, the Legal Remembrancer of the State Government communicated the Government decision to pay a lump sum of Rs. 3,000/ - to the Plaintiff is respect of his claim under that bead. Plaintiff received this payment without prejudice and kept on agitating for the balance amount until he was communicated on 3 -11 -1967 (vide Ext. 27) that he had been paid all his dues in connection with the Commission of Inquiry into the Students' Agitation and there did not appear to be any further admissible claim for payment. Thereupon, the Plaintiff instituted the suit on 16th April, 1968, after serving a notice under Section 80 of the Code of Civil Procedure asking for a decree for the balance amount after adjusting receipt of Rs. 3,000/ - The State Government in its written statement took the stand that it had never agreed to pay the fee in question to the Plaintiff. Plaintiff was the Standing Counsel for the Vigilance Department on payment of a retainer fee and dally fee for appearance to vigilance cases. The proposal given by the Inspector General in Ext. 1 was under consideration when Ext. 2 was issued in February, 1965 and within a couple of months after Ext. 2, the Government order fixing the terms of engagement of the Plaintiff were communicated vide Ext. 6. The State Government had not agreed to pay the Plaintiff the extra fee as demanded by him; yet Government sanctioned a lump sum amount of Rs. 3,000/ to the Plaintiff for the preparation work when he represented. In the absence of a contract for the payment, the Plaintiff is not entitled to the same by filing a suit. It was further pleaded that the Plaintiff was getting a retainer's fee as Vigilance Counsel and there was, therefore, no justification for the claim laid.
(3.) THE evidence in this case is more or less one -sided. Plaintiff examined 3 witnesses, being the then Legal Remembrancer (p. w. 1), the then Inspector General of Police (p. w. 2) and himself (p. w. 3) and exhibited series of documents on his side. On the defence side, the Superintendent of the Law Department was examined as D.W. 1. No documents were exhibited.;

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