K.B.Asthana, J. - (1.) In this appeal the vexed question arises whether the order terminating the services of the plaintiff-respondent, a temporary Government servant, attracted the operation of Article 311 of the Constitution. The concurrent finding recorded by the Courts below is that the services of the plaintiff-respondent were not terminated in due course but the order was apparently drawn up in terms of the rules applicable to the temporary Government servants by giving one month's notice or one month's pay in lieu of the notice, though in face the termination amounted to punishment. The Union of India has appealed against the judgment and decree of the lower appellate Court which had affirmed the decree of the trial Court.
(2.) Shaktinandan Seth, the plaintiff, was appointed to the post of Civilian Equipment Assistant against Airman vacancy with effect from 24th of March 1961 in the Indian Air Force Establishment Agra. The appointment was provisional and temporary in nature. Admittedly Rule 5 of Civil and Defence Services (Temporary Service) Rules, 1949 applied to the plaintiff. While in service the plaintiff was prosecuted at the instance of one Lyall on charges under Section 354/394 of the Indian Penal Code along with two other persons. On 18-5-1964 an order was. passed by the group captain placing the plaintiff under suspension. After undergoing a regular trial the plaintiff was honourably acquitted by a First Class Magistrate by his judgment dated 28-12-1964. Thereafter the plaintiff applied for the withdrawal of the suspension order, re-instatement and full salary with allowances. The Authorities did not withdraw the suspension order nor reinstated the plaintiff to his post but passed an order dated 4-1-1965 under the signature of the Wing Commander purporting to be under Rule 5 of the Civil and Defence Services (Temporary Service) Rules, 1949, terminating the plaintiff's services with effect from the date of service of the order on payment to him of a sum equivalent to the amount of his pay and allowances for one month. This order was communicated to the plaintiff on 21-1-1965 under the signature of the Wing Commander. Departmental appeals by the plaintiff against the said order were unsuccessful. After serving a notice under Section 80 of the Civil Procedure Code, the plaintiff then instituted the suit giving rise to this appeal impleading Union of India as the defendant alleging that the order dated 4-1-1965 terminating his services was illegal, invalid, unconstitutional and- in-operative in law as the order in substance was an order of dismissal as a sequel to the criminal charges levelled against him and the plaintiff having not been afforded an opportunity to defend himself, the termination order in substance amounted to a punishment having been passed in violation of Article 311 of the Constitution. It was also urged that the authorities discriminated arbitrarily against the plaintiff inasmuch as the other employee who was also prosecuted along with the plaintiff and acquitted, was re-instated to his post in the Air Force. Further it was alleged that the order was really. an order of removal and dismissal though camouflaged in the garb of exercise of Rule 5 of Civil and Defence Services (Temporary Service) Rules, 1949 and the said order carried with it a stigma on the plaintiff. The relief sought was for a declaration that the order dated 4-1-1965 removing or dismissing the plaintiff from service was wrongful, ultra vires, illegal, invalid and in-operative in law and the plaintiff be treated as continuing in service entitled to all benefits thereof. The suit was contested by the Union of India on the pleas, inter alia, that the order terminating the services of the plaintiff who was a temporary Government servant was passed in due course as the plaintiff's services were no longer required and the termination being in accordance with the rules and conditions of his service, the order was not by way of punishment and did not carry any stigma with it.
(3.) The learned Munsif decreed the plaintiff's suit on the findings that the suspension order not having been withdrawn there being no relationship of employer and employee, the powers under Rule 5 terminating the services could not be exercised and that in fact the plaintiff was removed from service on account of his being prosecuted on criminal charges and no opportunity having been afforded to him to defend himself there was violation of the provisions of Article 311 (2) of the Constitution. The appeal by the Union of India from the judgment and decree of the learned Munsif was dismissed by the Additional Civil Judge.;