N.D.Ojha, J. - (1.) This is a plaintiffs appeal against the decree dated 22nd Dec. 1972 passed by the 1st temporary Civil and Sessions Judge, Gorakhpur whereby the appellant's suit for declaration that the order dated 7th July, 1961 passed by the Development Commissioner, Uttar Pradesh Lucknow terminating his services as Block Development Officer was void and illegal and for recovery of arrears of pay and travelling allowances (was dismissed).
(2.) The facts in a nutshell giving rise to the aforesaid suit are that the appellant was appointed as a temporary Block Development Officer on 15th Nov. 1956. It appears that some funds were placed at the disposal of the appellant in his capacity as Block Development Officer for meeting the expenditure connected with training of the members of the Block Development Committee in the month of March 1961. It further appears that every trainee of the Block Development Committee was to be paid a sum of Rs. 16/- and a complaint was made to the District Planning Officer that full payment had not been made to some of the trainees. The District Planning Officer made some preliminary enquiries and submitted a report to the District Magistrate stating that prima facie there appeared to be some substance in the complaint. On receipt of the report, the District Magistrate wrote a 10 letter dated 22nd May 1961 to the Development Commissioner, U.P. Lucknow, a copy where of was filed as Exhibit 13 in the suit, stating that from report of the District Planning Officer it appeared that the appellant had committed financial irregularities and the exact amount of misappropriated money by the appellant could be found only after all the trainees were examined which will take some time. A request was made that till enquiry was completed, the appellant may be suspended. The Development Commissioner, on receipt of that letter, passed an order dated 7th July 1961, a copy whereof was filed in the suit as Ex. 11. Relevant portion of the said order reads as under:- "OFFICE OF THE DEVELOPMENT COMMISSIONER, UTTAR PRADESH No. 4423/E-K1) Dated Lucknow July 7, 1961 ORDER The services of Sri Shyam Sunder temporary Block Development Officer, Bharat, district Gorakhpur are no longer required, by this department this services are, therefore, terminated with effect from the service of the order. Sri Shyam Sundar will get one month's pay in lieu of notice. Satish Chander Development Commissioner Uttar Pradesh." The appellant, on receipt of the order dated 7th July 1961, made a representation not to any higher authority but to the Development Commissioner himself on 8th Aug. 1961. A copy of this representation was filed in the suit as Ex. 21. The representation, however, does not appear to have found favour with the Development Commissioner. The appellant was also prosecuted for the financial irregularities mentioned above and was convicted by the Assistant Sessions Judge. On an appeal filed by him, he was, however, acquitted by giving benefit of doubt by the Sessions Judge on 18th Dec. 1969. On being acquitted notwithstanding the order dated 7th July 1961 whereby his services had been terminated, the appellant made a request for being permitted to report on duty. The request, however, was obviously not granted on the face of the order dated 7th July 1961. The appellant then served a notice dated 16th Nov. 1970 on the respondent under S. 80 of the C.P.C. The suit giving rise to this appeal was, however, filed on 10th Mar. 1973.
(3.) The suit was contested by the respondent and was dismissed by the trial Court as already pointed out above. A perusal of the judgment appealed against indicates that two points were pressed on behalf of the appellant in the trial Court : (1) even though the order dated 7th July 1961 purported to be an innocuous order of termination of service simpliciter, it really amounted to an order of punishment and since this order was passed without giving the appellant an opportunity of showing cause as contemplated by Article 311(2) of the Constitution, it was void and (2) since one month's salary in lieu of notice had not been paid to the appellant, the order dated 7th July 1961 was bad in law. The case of the appellant on these two points was contested on behalf of the respondent. The plea that the suit was barred by time was raised in addition by the respondent. On the first plea raised on behalf of the appellant, the trial Court took the view that the order dated 7th July 1961 was a simple order of termination of service and it had not been passed by way of punishment. Consequently, Article 311(2) of the Constitution was not attracted. On the second plea raised on behalf of the appellant, the trial Court found in his favour and held that since one month's pay in lieu of notice had not been paid to the appellant, the order of termination dated 7th July 1961 was illegal. The suit was, however, dismissed on the finding, accepting the plea raised on behalf of the respondent, that it was barred by time.;