M.G. Mukerjee, J. - (1.) The present appeal is directed against a judgment and decree dated 22nd April 1983 passed by the learned Judge. 12th Bench. city Civil Court, Calcutta, in Title Suit No. 936 of 1981. dismissing the suit on contest against the defendant respondent no. 2 and dismissing the suit ex -parte against the defendants respondents no. 1 and 3. No order as to costs was passed by the learned Trial Judge. The suit is one for a declaration that the termination of the plaintiff appellant's service as a Lower Division Clerk in the Directorate of Weights and Measures Government of West Bengal, was wrongful, illegal and invalid and not binding and/or operative up on, him and for a further declaration that he may be deemed to be continuing in service and be entitled to get all just remuneration and allowances for the post he held and for a permanent injunction and accounts. The plaintiff -appellant's case, inter alia, was that he joined the post of a Lower Division Clerk under the Directorate of Weights and Measures, Government of West Bengal, by an order bearing no. 2462 dated 12/10/61 passed by the Controller of Weights and Measures and his service was ultimately placed under the disposal of the Assistant Controller of Weights and Measures, Howrah, where he joined duties on 13/10/19 64. On 27/2/64 he was transferred from Howrah to. the Directorate Head -Quarters at 45, Ganesh Chandra Avenue, Calcutta and thereafter by an order bearing No. 3534(3) dated 7/6/65, he was transferred to Midnarpore to serve under the Assistant Controller of Weights 6c Measures. Midnapore. He treated the transfer order as an act of punishment and submitted a number of representations before the Controller of Weights and Measures and also before the Secretary Commerce and Industries Department, Government of West Bengal, paying for cancellation of the order of transfer. He ultimately joined his duty at Midnapore in June 1965. but since he was keeping indifferent health, he took leave frequently for which he submitted leave applications. On the expiry of his leave, he went to join his post at Midnapore on 19/3/66, but he was not allowed to join his duty and was verbally informed about his dismissal. The plaintiff appellant never tendered resignation and served the Department faithfully and diligently. His contention, inter alia, was that the authorities tried to get rid of him. so as to show favour to another Lower Division Clerk, Nripendra Nath Bhattacharyya, who was junior to him by several years. The plaintiff was never given any charge sheet and there was no (departmental proceeding against him and he went on making representations before the higher authorities, and ultimately the Hon'ble Minister -in -Charge, Commerce and Industries Department, Government of West Bengal apprised him on 9/8/78 by way of answering to a representation made by him on 5/11/77, that the plaintiff could not be reinstated in service. This communication was sent through the Assistant Secretary Commerce and Industries Department, Government of West Bengal. The letter was addressed to his Calcutta address and he thereafter served a notice under Sec. 80 C.P.C. on 6/2/79 on the Secretary to the Government of West Bengal. Commerce and Industries Department which was acknowledged on 7/2/79 and thereafter he filed the present suit on 19/5/81 within three years from the date of Communication of the order of the Government that his service in fact stood terminated and he could not be reinstated.
(2.) The suit was contested only by the Controller of Weights and Measures, the defendant no. 2 that was contended by the said defendant no. 2 that the suit was barred by limitation. The plaintiff was transferred for administrative reasons arising out of some allegations brought to the notice of the Government. The transfer was never intended to give promotion to one Nripendra Nath Bhattacharyya as alleged by the plaintiff. The plaintiff joined at Midnapore on 2/7/65. There after, he absented himself from duties from 3/7/65 to 28/9/65, On 22/9/65, the plaintiff submitted a joining report, but on 30/9/65, he left the office by giving an application for leave for two weeks. By his letter dated 14/10/65, the plaintiff applied for further leave for one month and he renewed his prayer for extension of leave by another letter dated 12/11/65. By a letter dated 14/12/65, the plaintiff asked for extension of leave for another 15 days and ultimately, by his letter dated 30/12/65 addressed to the Assistant Controller of Weights and Measures, Midnapore, he prayed for extension of the leave up to 15/1/66. No communication was received from the plaintiff thereafter. By his later no. 69 1 dated 3/1/66 the Assistant Controller directed the plaintiff to join the duty by 10/1/66. Thereafter, by a letter no. 52 dated 31/1/66, the Assistant Controller asked the plaintiff to explain the cause of his continued absence; but he remained silent. Thereafter, the Assistant Controller treated his service to have ceased in terms of Sub -Rule (3) of Rule 34 of the West Bengal Service Rules Part I, deeming that the plaintiff did quit his service of his own accord and there was automatic termination of his service by operation of the said Rule and by his own conduct. It was not admitted that on 19/3/66, he went to join the duty and was prevented from joining duty. On the other hand, it was disputed that he made any representation to the appointing authority and it was only on 5/1/78., that he made are presentation to the Hon'ble Minister, Commerce and Industries Department, Government of West Bengal, which was turned down. The stance taken. by the defendant respondent no. 2 was to the effect that the service of the plaintiff stood terminated in 1966 and the plaintiff slept over it. till 1978 and the suit was totally barred by limitation. The following issues were raised in the trial: 1. Is the suit barred by limitation? 2. Was the order of transfer made for administrative purpose or actuated by some specific and ulterior motive? 3. Was the service of plaintiff terminated in accordance with the provisions of Law and by the competent and Proper authority ? 4. Was the plaintiff lawfully dismissed or did he quit the service of his own accord? 5. is the plaintiff entitled to the decree as prayed for? 6. To what other relied or relief, may the plaintiff be entitled law and equity?
(3.) The plaintiff examined himself as P.W. 1. In course of his testimony, he gave out that on 19/3/66 he reported himself for duty at Midnapore, but the Assistant Controller for Weights and Measure who was in charge of Midnapre Office did not allow him to join service or even to enter into the office. Thereafter, he submitted representation to the authorities and also to the concerned minister. He filed the copies of these representations before the Court and also the receipts granted by the authority and the minister. But he was not given any reply either by the authority concerned or by the Minister. Thereafter, he personally met the Minister as also the departmental head but to no effect. Subsequently, in 1978, he got a reply from the Government intimating that he would not be reinstated. Thereafter, he served a notice under Sec. 80 CPC and filed the present suit. He further deposed that there was no departmental proceeding for termination of his service. He was not a served with any show cause notice for his overstay. The Assistant Controller of Weights and Measures, Midnapore was not his appointing authority. He denied that he was continuously absent from 1966 and that he made no attempt to join his service. After expiry of his leave, he tried to join his service but he was not allowed to join. He prayed for declaration that his service was not terminated and he was not dismissed and he would deemed to be continuing in service. He denied the suggestion that he voluntarily abandoned and did quit his service. He denied and disputed the fact that under the Rules of the Government his service had automatically, terminated. He admitted that he served to the Secretary to the Government of West Bengal, Commerce and Industries department, an Advocate's letter, Ext. C.;