- (1.) This is an appeal under Clause 15 of the Letters Patent from a judgment passed by S.K. Datta J. in S.A. No.291 of 1971 on February 2, 1973. The facts giving rise to this appeal are briefly as follows: The respondent instituted a suit against the appellants alleging that he had been working under the appellant Corporation for several years temporarily in place of bearers absent on leave. He was appointed in the permanent post of Vendor-cum-Cleaner-cum-Plate-washer by the appellant Corporation from 1.2.68. The respondent automatically became permanent in his post from 1.8.68 on completion of 6 months' continuous service. The second appellant by a verbal order dispensed with the service of the respondent on 12.11.63 without assigning any reason or holding any enquiry. On this allegation the respondent instituted the suit for declaration that the verbal order of termination of the respondent's service was illegal, void, inoperative and ultra vires, that the respondent was and continued to be in the permanent service of the appellant Corporation and he was entitled to salary and damage. He also prayed for an injunction restraining the appellant Corporation from issuing any written order of dismissal without following the legal procedure.
(2.) The suit was contested by the appellants by filing a joint written statement. The defence taken was that the respondent was merely a casual labourer and he was paid on hourly basis. It was alleged that being a casual labourer the respondent could not claim any right of enquiry or observance of legal procedure in the matter of termination of his employment since the respondent held the job at the pleasure of the appellants. It was alleged that casual labourers are not appointed in writing and their services are liable to be dispensed with by verbal order. It was further alleged that in order to absorb the respondent in a permanent vacancy the appellants offered him the post of lamp-lighter but the plaintiff refused to accept the same and by his refusal the plaintiff forfeited the right to be absorbed in the permanent and he remained as casual labour. On this ground it was alleged that the plaintiff was not entitled to any relief in the suit filed by him.
(3.) The trial court found that the respondent was a temporary workman under the appellant Corporation. It also found that there were breaks in service of the respondent and he did not render continuous service for a period of 6 months during the period from 1.2.68 to 11.11.68 and therefore the respondent was not entitled to get 7 days' notice as provided for in the standing orders. The trial court further found that the respondent was offered the post of lamp-lighter by the appellants before his dismissal from service but the respondent refused to accept such offer. The trial court held that the verbal order of dismissal of the respondent was illegal and valid and it also held that the suit filed by the respondent was not maintainable. On these findings the trial court dismissed the suit. On appeal by the respondent the Lower Appellate Court affirmed the finding of the trial court that the respondent was a temporary workman in the employment of the appellant Corporation during the period from 1.2.68 to 12.11.68. But the Lower Appellate Court disagreed with the finding of the trial court on the question as to whether there was intermittent breaks in service of the respondent and held that the respondent worked as a temporary Vendor-cum-Cleaner-cum-Plate-washer for more than 6 months at a stretch during the relevant period. The Lower Appellate Court took the view that the appellant Corporation could not dispense with the service of the respondent who was a temporary workman having worked continuously for more than 6 months without giving him one week's notice or without holding an enquiry before dispensing with his service, in view of the Standing Order No.13(b) of the Standing Orders of the appellant Corporation which provides that the services of a temporary workman who has worked continuously for 6 months can be dispensed with after giving him a week's notice. The Lower Appellate Court was of the view that the termination of service of the respondent was in breach of the Standing Orders and as such it was in breach of a Statutory obligation which prevented the termination of service of the respondent except in the manner prescribed by the Standing Orders. Upon this view the Lower Appellate Court allowed the appeal and decreed the suit and passed the declaration in favour of the respondent that the order of dismissal was illegal and void and that he continued to remain in the employment of the appellant Corporation.;