- (1.) R. K. Mahajan, J. This is a Second Appeal against the judgment and decree dated 25-8-1983 passed by VIIIth Addition al Distiict Judge, Allahabad, Shri S. C. Shukla in Civil Appeal No. 490 of 1982 in Original Suit No. 66 of 1980 allowing the appeal by setting aside the judgment and decree passed by the trial court and dismiss ing the plaintiff/appellants' suit for declara tion.
(2.) THE brief facts on which this appeal has arisen are as follows. The plaintiff-appellants have filed a suit in the lower court that they were employed as Gangmen in Ashes Section by Permanent Way Inspector, Northern Rail way as Class IVth temporary employees at Allahabad and they were discharged from service w. e. f 13-11. 1978 without any notice. It is further alleged that suit was filed earlier also but for want of notice under Section 80 C. P. C. the same was dismissed and after serving the due notice under Section 80 C. P. C. against the defendants-respondents the suit has been again filed. It has been challenged in the suit that their discharge from the employment was arbitrary, illegal as the juniors have been retained whereas they have been shunted out. It was also al leged that they have acquired the status of temporary Gangmen as they put in more than four months service and as such could not be discharged without serving any notice of one month. The claim of the plain tiffs-appellants was denied by the Railway. The trial court found the contention of the appellants valid regarding their temporary status. The trial court also relied upon Rail way Board's Circular No. II-77/cl-146, dated 8-6-81 to the effect that artificial break in continuous service shall be ig nored. The trial court had rejected the paid vouchers produced by the Railway ad ministration as admissible as they were not exhibited. They were thirty seven in number. The appellate court dismissed the suit and allowed the appeal of defendants-respon dents on the ground that they have not com pleted four months' period. The appellate court was also of the view that even if in these circumstances suit is decreed it would mean to upset the entire state of things and those who are litigants in this case will get the salary without work and will a bad ex ample before the worker class. The appel late court also repelled the plea that the claim is not triable by the Civil Court. On these findings the appellate court dismissed the suit holding that they are not having the status of temporary employees. Feeling aggrieved the present Second Appeal has been filed. At the time of admission the following substantial ques tions of law have been framed: "1. Whether the lower appellate court erred in relying upon certain vouchers filed by the respondents which had been rejected as improved by the trial court? 2. Whether the lower appellate court has erred in not taking into consideration material evidence filed by the plaintiff in the shape of Ser vice Cards of plaintiffs 1 and3? 3. Whether the lower appellate court has wrongly held that the Civil Court had no jurisdic tion in this matter?"
(3.) SHRI Radhey Shyam, learned counsel for the appellants has submitted that the trial court has completely ignored the evidence of the appellants and should not have ignored the finding of the appellate court without valid reasons. It has further argued that the evidence of cards of employ ment showing working days have been ig nored without any rhyme or reason. He fur ther submitted that finding should not have been disturbed. He further submitted that the appellate court wrongly relied upon the evidence of vounchers which were produced by the respondents. I am in agreement with the learned counsel for the plaintiff-appel lants. Reference would be made to record of service of casual labour Ram Chandra. It shows that he is working since 28-10-1976 and the total number of working days is 383 days in different spells. It is correct that the employment is not continuous. It is with breaks. It generally happens that the employment is given against the work avail able and these poor labourers do a very typical type of work. Similarly, SHRI Mangroo's record shows that he is working from 1969 and total working days upto 1976 is 1518. It is also correct that he has not worked continuously for four months but the intention of the Railway circular is that this artificial breaks is to be ignored. Similarly there are so many rulings of the Apex Court and which requires no reitera tion laying the principle that artificial breaks are to be discarded and are ignored in computing the period of service. Lower court has also given finding regarding third labourer Shri Moti Lal worked from 1976 to 13-1- 1978 by relying his statement. The lower court in its judg ment referred the evidence of the labourers and ignored the evidence of railway authorities.;