STAE OF GUJARAT Vs. NATVARSINGH REVABHAI ZALA

JUDGEMENT

(1.) This Second Appeal arises out of a suit filed by the plaintiff for a declaration that the order of the Executive Engineer terminating his service as a Clerk was null and void and that he continued in the service of the Government. The facts giving rise to this litigation may be briefly stated as follows. The plaintiff was appointed as a temporary clerk on the Work Charged Establishment on 24th November 1948. The plaintiff was thereafter by an order of the Executive Engineer bearing No. A/3968 of 1950 and dated 18th March 1949 promoted as a Clerk on officiating permanent establishment and was retained in the same subdivision in which he was working. On 12th May 1952 the plaintiff was called upon to give explanation in connection with certain charges made against him and he submitted his explanation on 10th June 1952. This explanation was according to the plaintiff accepted by the authorities and the chapter was closed. The plaintiff was thereafter transferred from Unchha beat to Limbla beat on 26th July 1952. On 29th October 1952 the Deputy Engineer sent a confidential letter to the plaintiff calling upon him to explain certain allegations against him. These allegations were (1) that he gave water to 200 acres of land without any application from the cultivators and caused waste and loss to the Government and (2) that he did not send discharge and gauge measures to the Executive Engineer by accurately measuring them but tent them only on estimate. The plaintiff was called upon to explain these allegations within a period of seven days. The Deputy Engineer thereafter sent a report to the Executive Engineer on 20th November 1952 repeating these two allegations made against the plaintiff and stating that the explanation orally given by the plaintiff in connection with these allegations was not true. The Deputy Engineer also reported to the Executive Engineer that the plaintiff was very lazy and indifferent to his duties. On this report of the Deputy Engineer the Executive Engineer passed an order on 8th December 1952. It was stated in the order that the plaintiff was negligent in his work that ho had shown gross negligence in the discharge. of his duties and that he was responsible for unauthorized water supply to Khariff crops and that such indifference and dishonest way of working could not be tolerated and that previously also his work had been found unreliable and indifferent and that he had often absented himself from duty without permission and that he was therefore considered unsuitable for continuing any further and that his services were therefore ordered to be terminated immediately. It was also stated in the order that one months notice was not necessary in the case of the plaintiff. The order was contained in a letter addressed by the Executive Engineer to the Sub-Divisional Officer Ahmedabad and on the strength of the order the plaintiff was relieved from service by the Deputy Engineer and the plaintiff handed over charge to the Deputy Engineer on 31st December 1952. The plaintiff thereafter carried on correspondence with the Superintending engineer but with no result and the plaintiff therefore ultimately gave the statutory notice under section 80 of the Code of Civil Procedure and filed the present suit on 26th April 1954 The plaintiff contended that he was dismissed from service without complying with the requirements of the Bombay Civil Services Conduct Discipline and Appeal Rules as well as Article 311(2) of the Constitution of India and that the dismissal was therefore invalid and inoperative and he continued in the service of the Government. The Government did not dispute that the procedure laid down by the Bombay Civil Services Conduct Discipline and Appeal Rules and Article 311(2) was not followed in the case of the plaintiff; but the contention of the Government was that the termination of the service of the plaintiff did not amount to dismissal or removal from service so as to require the following of that procedure. The Government relied on a declaration made by the plaintiff on 24th July 1950 after he was promoted as a Clerk on officiating permanent establishment and contended that this declaration constituted the contract of service between the plaintiff and the Government and that the Government had terminated the service of the plaintiff in exercise of the right conferred by the contract of service and that the termination of the service of the plaintiff did not therefore amount to dismissal or removal from service within the meaning of the Bombay Civil Services Discipline Conduct and Appeal Rules and Article 311(2). This declaration relied upon by the Government as constituting the contract of service between the plaintiff and the Government was in the following terms :- -

(2.) If dismissed otherwise than for serious misconduct before the completion of the work I will be entitled to a months notice or a months employment in lieu of the notice but otherwise with or without notice employment terminates when the work ends. If I desire to resign my appointment I will be required to give a months notice of my intention to do so or forfeit a months employment in lieu of such notice.

(3.) The suit was tried by the Second Joint Civil Judge Senior Division Ahmedabad. The learned trial Judge came to the conclusion that the termination of the service of the plaintiff amounted to dismissal and that the order terminating the service of the plaintiff was therefore illegal and inoperative. The learned trial Judge accordingly gave a declaration to the plaintiff that the order terminating the service of the plaintiff was void and inoperative and that the plaintiff continued to be in the service of the Government until the completion of the work mentioned in the declaration or until the service was terminated in accordance with the terms contained in the declaration. The Government thereupon filed an appeal in the Court of the District Judge Ahmedabad. The appeal was heard by the Extra Assistant Judge Ahmedabad. The learned Assistant Judge took the same view as the learned trial Judge and held that the termination of the service of the plaintiff amounted to his dismissal from service and that since the procedure prescribed by the Bombay Civil Services Conduct Discipline and Appeal Rules was not followed the dismissal of the plaintiff was illegal and void. The learned Assistant Judge also founded himself on Article 311(2) and held that the dismissal of the plaintiff from service also offended against that Article and was therefore illegal and inoperative. The learned Assistant Judge accordingly dismissed the appeal and confirmed the decree passed by the learned trial Judge. The Government thereupon preferred the present Second Appeal in this Court.