P N SARKAR Vs. STATE OF BIHAR
LAWS(PAT)-1960-4-7
HIGH COURT OF PATNA
Decided on April 01,1960

P.N.SARKAR Appellant
VERSUS
STATE OF BIHAR Respondents


Referred Judgements :-

SALVESEN V. ADMINISTRATOR OF AUSTRIAN PROPERTY [REFERRED TO]
VINE V. NATIONAL DOCK LABOUR BOARD [REFERRED TO]
HAKIM JAN V. MUHAMMAD HUSSAIN [REFERRED TO]
KRISHNAJI V. SECRETARY OF STATE [REFERRED TO]
PARSHOTAM LAL DHINGRA VS. UNION OF INDIA [REFERRED TO]
SUBODH RANJAN VS. MAJOR N A OCALLAGHAN [REFERRED TO]



Cited Judgements :-

JYOTIRMOYEE SHARMA VS. UNION OF INDIA [LAWS(CAL)-1961-8-10] [REFERRED TO]


JUDGEMENT

V.Ramaswami, C.J. - (1.)The case of the plaintiff is that in March, 1945, he was appointed by the Court of Wards as General Manager of Gidhaur and Dhamna Wards' Estates in the district of Monghyr on a graded salary of Rs. 400/- to Rs. 500/- per month. The appointment was made by the Board of Revenue with the sanction of the Provincial Government of Bihar. The order of the Board of Revenue, which is addressed to the Commissioner of Bhagalpur Division, reads as follows :
"With reference to Mr. B. C. Mukherji's letter No. 8W, dated the 3rd January 1945, I am directed to say that with the previous approval of the Provincial Government conveyed in the Revenue Department letter No. 1074R, dated the 23rd February, 1945, a copy of which is enclosed, the Board appoints Babu Prithwis Narayan Sarkar, General Manager, Wards and Encumbered Estates, Ranchi. as General Manager for the Gidhaur and Dhamna Wards Estate, Monghyr, in the scale of Rs. 400-25/2-500 plus (sic) quarters and the use of an estate car for official purposes subject to the orders of the Goverment contained in the Revenue Department's letter No. 529 R. T. dated the 12th October, 1944, a copy of which was forwarded to you with the board's Memo. No. 20-123-4. dated the 26th October, 1944. The appointment will be on a temporary basis."
It appears that an inquiry was made by the Divisional Commissioner of Bhagalpur with regard to certain allegations of misconduct against the plaintiff. On the 20th November, 1950, the Board or Revenue dismissed the plaintiff from the service of the Court of Wards. The order of the Board of Revenue is contained in annexure 1 of the plaint and reads as follows :
"The Board has carefully considered your findings on the aforementioned proceedings. If the managers of the respective estates had simply done every thing after obtaining previous approval of their superior officers as laid down under the departmental rules, and had not put their fingers in for some ulterior gain, the whole episode would not have looked so fishy as it apparently is."

(2.)As to the case of Mr. P. N. Sarkar, even if your findings are taken in toto and the benefit of doubt given to him on charge of personal gain is not questioned, the charges proved are serious that the Board agrees with you that he should not he retained in the service of the estate. The Board, therefore, with the approval of Government directs that Mr. P. N. Sarkar may be dismissed from the service of the Court of Wards.
"The case of the plaintiff is that the order of the Board of Revenue dated the 13th November, 1950, dismissing the plaintiff from the service of the Court of Wards is ultra vires and illegal as the second notice contemplated by Article 311 of the Constitution was not given to the plaintiff. It is alleged that the plaintiff was entitled to a notice to show cause against the proposed punishment of dismissal after the decision had been taken by the Board of Revenue as to the punishment to be inflicted. It is alleged that this opportunity was never given to the plaintiff and so the dismissal of the plaintiff was illegal and ultra vires. The plaintiff has accordingly prayed for a declaration that the order of dismissal is illegal, null and void and "the plaintiff be deemed to be still holding the aforesaid post of General Manager of Gidhaur and Dhamna estate under the Court of Wards."
The defendants contested the suit on the ground that the plaintiff was not holding a civil post under the Government of Bihar, but that he was an employee of defendant No. 3, Maharaja Bahadur Pratap Singh, before the date of dismissal, and the salary of the plaintiff used to be paid out of the income of tho Gidhaur Wards Estate. It is contended on behalf of the defendants that the provisions of Article 311 of the Constitution are not applicable to the plaintiff and he was not entitled to a second notice for showing cause against the proposed punishment. It was also submitted on behalf of the defendants that the departmental inquiry was conducted with fairness and fullest opportunity was given to the plaintiff to take part in the inquiry and to vindicate his conduct. It was submitted that the charges against the plaintiff were fully established by the evidence adduced at the inquiry and the Board of Revenue rightly came to the conclusion that in the interest of administration it was not dasirable to allow the plaintiff to continue as the Manager of the Gidhaur Wards Estate.
(3.)The following issues were framed by the learned Subordinate Judge :
"1. Is the suit maintainable as framed? 2. Is there any cause of action for the suit? 3. Is the suit barred under Order 7, Rule 11 of the Civil Procedure Code? 4. Did the plaintiff hold appointment under the Board of Revenue as Court of Wards and as such is he entitled to all the privileges and rights enjoyed by a member of a Civil Service under the State of Bihar? 5. Is the order of dismissal passed against the plaintiff wrongful and void? 6. Is the judgment of Mr. K. Raman bad in law or in facts? 7. Is the plaintiff entitled to a notice under Article 311(2) of the Constitution of India? 8. to what relief, if any, is the plaintiff enti tled? "
When the suit was taken up for hearing, learned counsel for the plaintiff said that he would press only issues 4 and 7 and that he would not press the other issues. Learned counsel also said that he would not adduce any evidence in this case since it was admitted on behalf of the defendants that the second notice contemplated by Article 311 of the Constitution was not given to the plaintiff before the order of dismissal was passed.


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