Parmeshwar Singh @ Parmeshwar Pd. vs State of Bihar and Others

U.N. Sinha and Kanhaiyaji, JJ.—The petitioner of this writ application has prayed that an order dated the 17th April 1968, incorporated in Annexure 1, may be quashed and the petitioner be paid his salary, including allowances, for the period from the 1st June 1967 to the 18th April, 1968. The relevant facts stated in the application are as follows: It is stated that the petitioner had been appointed as a temporary work charged Choukidar by an order dated the 19th April, 1965 (A copy of which has been appended as Annexure 3 to the supplementary affidavit filed by the petitioner) and since then the petitioner had been working in that post. It is alleged that all of a sudden his services were terminated on the 17th April, 1968, with retrospective effect from the 1st October, 1967. This is the impugned order incorporated in Annexure 1. According to the petitioner, the reasons given in Annexure 1 were erroneous as the petitioner had never absented himself from duty and the petitioner had never been given any notice or warning to that effect. It is alleged that the order dated the 17th April, 1958 had been served on the petitioner on the 18th April, 1968 and that order having been passed by the Chief Engineer of the Patna Improvement Trust, respondent no. 4, is an illegal one, as that respondent had no authority to terminate the petitioner''s service, as he had been appointed by the Executive Officer of the Trust, who is respondent no. 3. It is alleged that stigma attaches to the order terminating the petitioner''s service, which is not a simple order to that effect. It is further alleged that the petitioner''s service could not have been terminated without notice, after with-holding his emoluments from 1st June 1967 to 18th April, 1958. In the application the petitioner has given certain reasons alleging that on account of these his services were terminated without notice and without giving him a month''s pay. It is alleged that on the 22nd April, 1968 the petitioner had filed an appeal to the Chairman of the Trust, who is respondent no. 2, but no relief has yet been granted to him. By the supplementary affidavit the petitioner his filed certain farther annexures including Annexure 3 and a notice given u/s 80 of the Code of Civil Procedure.

A counter affidavit has been filed on behalf of respondent no. 2 and in substance, the contentions raised are that the petitioner had been appointed by the Chairman of the Trust and that Annexure 3 had been issued by the Executive Officer at the instance of the Chairman. Similarly, it is alleged that the order of discharge hid also been passed by the Chairman and Annexure 1 had been issued under the signature of the Chief Engineer at the instance of the Chairman of the Trust. It is alleged that the petitioner had absented himself from duty as per report appended as Annexure I to the counter affidavit; that is to say, he was absent from the 1st October, 1967.

Learned counsel for the petitioner has argued that the petitioner had been appointed by the Executive Officer of the Trust and the Chief Engineer had no authority to dismiss him. This contention is not at all valid in view of the recitals made in Annexures 3 and 1 respectively. By Annexure 3 the Executive Officer had sent a communication to the petitioner to the effect that the Executive Officer had been directed to inform the petitioner that he had been appointed as a temporary Choukidar on work charge basis on certain salary and cost of living allowance. In Annexure 1 the Chief Engineer had informed the petitioner that the order of discharge was being communicated to the petitioner on the orders "of the Chairman of the Trust", Therefore, it is clear that the contention raised on behalf of the Chairman in his counter-affidavit is correct and that the petitioner had been appointed and discharged on orders of the Chairman of the Trust. The second point argued by learned counsel for the petitioner is that his client could not have been dismissed or discharged without notice as he was at least a temporary servant of the Trust. But, this contention is also not valid in view of the terms mentioned in Annexure 3 itself. That letter had specifically mentioned that the petitioner''s service was going to be temporary, which could be terminated without notice, and the petitioner was asked to report himself to duty if those terms and conditions were acceptable to him. Learned counsel for the petitioner has referred to Bihar Town Planning and Improvement Trust Act, 1951 (Bihar Act No. XXXV of 1951) and to the rules framed thereunder. But no provision of law has been pointed out in support of his contention that the petitioner was such a temporary servant that his services could not have been dispensed with, without notice, in spite of the terms of his appointment. On the contrary, Rule 28 Explanation I(c) states that the discharge of a person engaged under contract in accordance with the terms of contract shall not amount to removal or dismissal within the meaning of this rule. Learned counsel for the petitioner has argued that the petitioner was holding a temporary post, within the meaning of the definition given in Rule 2(k). But that argument is also not supported by the rule. Therefore, no provision of law has been shown to us under which this Court can hold that the Trust was bound to give notice to the petitioner before dispensing with his services or to give him pay in lieu of notice. The discharge of the petitioner, effective from the 1st October, 1967, mentioned in Annexure 1, has been fully explained in the counter-affidavit as indicated above. Annexure 1 cannot be construed to mean that the petitioner was being discharged on the 17th April, 1968, with retrospective effect. The petitioner had absented himself from duty from the 1st October, 1967 and, therefore, the order of discharge was made effective from that time. According to learned counsel for the petitioner, Annexure 1 has put a stigma on the petitioner''s character and, therefore, an opportunity should have been given to him to show cause why action should not be taken against him. No valid reason could be given by the learned counsel in support of his contention and it is difficult to hold that Article 311 of the Constitution of India was attracted to the case of the petitioner. Lastly, it has been argued that an appeal had been filed by the petitioner, proved by Annexure 5 attached to the supplementary affidavit, dated the 22nd April, 1968, and no relief having been given to him, he is entitled to an order in his favour from this Court. But, neither the provisions of Section 31 of the Act nor Rule 40, referred to by the learned counsel, shows that Annexure 5 was an appeal envisaged by any provision of law. u/s 31 of the Act an appeal could have been filed as against Annexure 1 to any authority higher than the Chairman and Annexure 5 was addressed to the Chairman himself. Under Rule 40 of the Rules an appeal against an order of the Chairman lay before the Trust. Apparently, for this reason the petitioner has himself mentioned in Paragraph 5 of his supplementary affidavit that on the 22nd April, 1968 he had filed "a representation or appeal before the Chairman". In the notice u/s 80 of the CPC (Annexure 5/1), the petitioner had clearly mentioned in Paragraph 17 that after he had been discharged from service, he had made a representation to the Chairman of the Trust on the 22nd April, 1968 for withdrawal of the discharge order. In these circumstances, it is difficult to hold that there is any force in the contention that the petitioner had filed an appeal and that he was entitled to an order passed on his appeal. All the contentions raised on behalf of the petitioner having failed, this application must be dismissed. In the circumstances, however, there will be no order for costs.