B.D.Gupta, J. - (1.) This is a plaintiff's second appeal arising out of a suit for declaration that the order dismissing the plaintiff was illegal and invalid and that the plaintiff still continued to be in the service of the defendant, as also for recovery of arrears of his salary up to the date of suit. The defence was a denial of the plaintiff's assertion that the order of dismissal was illegal and invalid. The trial Court upheld the defence contention and dismissed the plaintiff's suit. On appeal by the plaintiff, the appellate Court agreed with the view taken by the trial Court and confirmed the decree of the trial Court. The plaintiff has' now filed this second appeal on the ground that the view taken by the Courts below is incorrect.
(2.) In order to appreciate the controversy, the flowing facts may be set forward. At the relevant time the appellant was admittedly an employee holding the post of supervisor, stores, A grade. Sometime in November 1949, the plaintiff fell ill and was on medical leave on 9, 10 and 11 November 1949. On 12 November, which was a Saturday, the plaintiff attended to his duties, but did not attend to his duties on Monday, 14 November 1949. On 15 November 1949 also the plaintiff did not attend his duties; but an application was received seeking leave without salary from 14 November 1949 up to 30 November 1949. This application was accompanied by a medical certificate, dated 14 November 1949 from a registered medical practitioner. On 26 November 1949, the plaintiff was informed that the medical certificate had not been believed and that the plaintiff had been treated as having been absent without permission, and that the plaintiff's services had, therefore, been terminated for long absence. This action was taken under Para 263(j) of the Regulations for the Army Ordinance Services (India), Part I, which ran as follows: Employees absent for more than six consecutive working days or frequently absent for short periods, without leave will be discharged.
(3.) It is In respect of the aforesaid order of discharge that the plaintiff filed the present suit on the assertion that the said order constituted his dismissal without the plaintiff having been given any opportunity to show cause. In the plaint, the plaintiff founded his claim on the basis of Article 311(2) of the Constitution of India as also, in the alternative, on the ground that the order was in violation of Clause (6) of Army Instructions India-212 of 1949, which is exhibited as Ex. 20 on the record of this case. The plea under Article 311(2) of the Constitution of India was given up for the obvious reason that the Constitution had not come into force in November 1949 and the plaintiff founded his claim under Section 240 of the Government of India Act, 1935. There was no controversy that the plaintiff's services had been terminated without the plaintiff having been given any opportunity to show cause. The sole question for determination, therefore, was whether the appellant was entitled to the protection of Section 240 of the Government of India Act, 1935 and whether, in the alternative, the plaintiff's contention that his services had been terminated in violation of Clause (6) of Army Instructions India-212 of 1949, had any force.;