A.N. Dikshita, J. - (1.) Appellant Guru Prasad Kushwaha has preferred this second appeal against the judgment and decree dated January 24, 1975 by Sri R.K. Garg, VII Additional District and Sessions Judge, Kanpur allowing Civil Appeal No. 4 of 1974 and setting aside the judgment and decree and dated November 22, 1973 passed by Sri G.P. Srivastava, III Additional Munsif, Kanpur decreeing the Suit No. 1385 of 1972 arising between Guru Prasad Kushwaha and State of U.P.
(2.) The controversy in a narrow compass is that the plaintiff was appointed a Peon on May 13, 1970 in the office of the Special Employment Ex-change, for the physically handicapped at Regional Employment Exchange, Kanpur. It is alleged by the respondent that his services were temporary liable to be termination by one month's notice. The services of the plaintiff were terminated w.e.f February 11, 1972. Feeling aggrieved against the such termination of his services in an arbitrary, illegal, and malafide manner, the appellant filed a suit in the court of Munsif City, Kanpur which was transferred to the Court of III Additional Munsif, Kanpur ( Suit No. 1385 of 1972 Guru Prasad Kushwaha v. State of U.P. ). While working in the said office, plaintiff was served with a letter dated August 20, 1971 issued by Sri K.K. Mehrotra, Deputy Regional Employment Officer to which the appellant submitted reply on August 23, 1971. Again the appellant was issued a letter dated September 8, 1971. The appellant alongwith one Sri Shyam Lal, Sweeper-cum-Chaukidar submitted a joint application on September 14, 1971 to the Regional Employment Officer containing serious allegations against Sri K.K. Mehrotra and the head Clerk for taking private work and monthly illegal gratification from them. An enquiry for the redressal of their grievances was requested. It was also alleged by the appellant that he used to milch the cow of Sri K.K. Mehrotra but after the death of the calf on September 5, 1971, an artificial calf was provided which appellant declined to touch being the hid of the dead animal on account of certain caste restrictions. An application dated September 16, 1971 was submitted accordingly. The appellant against submitted another complaint on September 23, 1971. The appellant further submitted another complaint on October 7, 1971 that he was being harassed by Sri K.K. Mehrotra. Within a lapse of three days on October 10, 1971, another complaint was made by the appellant against Sri K.K. Mehrotra. The appellant, however, was directed to remain in office on December 29, 1971 for the whole of the day with a direction not to go for distribution of date on that day. On January 7, 1972 the appellant obtained station leave permission availing two days casual leaves i.e., for January 8, 1972 and January 9, 1972. We went to his home at Unnao where was suddenly taken ill and could not resume his duty on January 10, 1972. An application dated January 12, 1972 was sent by the plaintiff for leave. On January 12, 1972 and January 28, 1972, two letters sent by Sri K.K. Mehrotra were served on the plaintiff at Unnao. When the applicant after recovering from illness reported for duty on February 5, 1972 along with medical and fitness certificates, he was not allowed to job his duty and was informed that his services have been terminated, and that the termination order had been sent to his home address. This was received by the appellant on February 11, 1972 at Uanao. The main contention of the plaintiff was that the termination order was illegal, arbitrary and ultra vires. The respondent contested the suit on various grounds denying the allegations of the plaint. The main contention of the respondent was that the plaintiff was appointed purely on a temporary basis and his services were liable to termination by one month's notice. It was also averred that Article 311(2) of the constitution was not applicable to the appellant. On the pleadings of the parties, the trial Court framed the following issues: Whether the termination of the plaintiffs serviced vide order dated February 11, 1972 is illegal and ultra vires on the ground contained in paragraph 26 of the plaint ? Whether the plaintiff s notice under Section 80 of the Code of Civil Procedure is illegal ? To what relief, if any, is the plaintiff entitled ?
(3.) Necessary evidence on behalf of the parties was adduced. While deciding issue No. 1, the trial Court held that the impugned termination notice is illegal and ultra vires. As regards issue No. 2 regarding the legality of the notice under Section 80, C.P.C., the trial Court found that the notice is wholly legal. The plaintiffs suit for declaration that the termination order dated February 11,1972 being illegal and ultra vires was decreed and it was declared that the plaintiff is continuing in service with full benefit on the date of the suit.;