Sukhendu Bikash Pakrasi vs The State of West Bengal and Others

Mukul Gopal Mukherji, J.—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 & 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 & Measures, Government of West Bengal, by an order bearing no. 2462 dated 12/10/61 passed by the Controller of Weights & Measures and his service was ultimately placed under the disposal of the Assistant Controller of Weights & 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 & 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 u/s 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.

The suit was contested only by the Controller of Weights & 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:

Is the suit barred by limitation?

Was the order of transfer made for administrative purpose or actuated by some specific and ulterior motive?

Was the service of plaintiff terminated in accordance with the provisions of Law and by the competent and Proper authority ?

Was the plaintiff lawfully dismissed or did he quit the service of his own accord?

is the plaintiff entitled to the decree as prayed for?

To what other relied or relief, may the plaintiff be entitled law and equity?

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 u/s 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.

D. W. 1 Jitendra Nath Sen, was the Administrative Officer in the Weights and Measures Directorate, West" Bengal. He deposed, inter alia, to the effect that from the service book of the plaintiff, appears that the plaintiff''s service was verified up to 31.5.65. There was no note in the service bock about verification of the plaintiff''s service after 31-5-6 5. The. leave account was also not enclosed with the service book. as far as he knew, no adverse police report 0r medical report in respect of the plaintiff was received in their office He admitted candidly that it was not possible without consulting the records as to whether the plaintiff appointed was appointed against the temporary vacancy. He admitted further that there was no adverse record against the plaintiff in the service book. Besides the service book, there was a separate service file of the plaintiff maintained in the office. He admitted that in 196, The Controller of Weights and Measures was the appointing authority; but from 1962-63, the Assistant Controller, Weights and Measures became the appointing authority as per the Government order; but they did not receive any government order to show as such. He further admitted that for the present, the Controller, Weights & Measures was the appointing authority and it was only the appointing authority alone, who is competent to suspend. dismiss and terminate the service, of the Lower Division Clerks. He denied that the plaintiff was victim of office clique. It is thus evident that no termination order was issued by any authority against the plaintiff. Whereas the termination of service is a genus, removal or dismissal of service is a species. It thus was evident that the defendant could not give out clearly and candidly that from any specific data the termination of the service of the plaintiff did take place. The learned Trial Judge on a consideration of the entire evidence on record came to a finding that the plaintiff appellant was a per Manet employee and further that Rule 37(3) of the West Bengal Service Rules did not have any manner of application to the facts of the present case since that Rule was applicable "only in case of a temporary employee. It is also an admitted position that no disciplinary proceeding was started against the plaintiff.

The learned Trial Judge further came to a finding that the plaintiff was in continued service from 13/10/1961. He was thus in continuous service of over five years and as it did appear from the Finance Department''s circular No. 6099F dated 26/5/79 (Ext. 12) that all temporary posts continuing for more that three years were deemed to be permanent ones, hence, on the basis of the said Memorandum dated 5/9/63 of the Finance Department, the plaintiff was a permanent employee of the Government under the Directorate of Weights and Measures. After his leave terminated on 18/3/66, he reported himself for duty at Midnanpore office on 19/3/66 when he was not allowed t0 join and he was told verbally that he was dismissed from service. It was. evident that this service was terminated near about that date. Sub Rule (3) of Rule 34 was not applicable in this case, because he was not granted extraordinary leave as provided under Sub Rule (b) of Rule 175. Sub Rule 2 of Rule 34 was also not applicable because admittedly he was not on extraordinary leave form more than five years. The learned Trial Court came'' to a clear finding that the Assistant Controller of Weights & Measures could not treat the plaintiff''s service as having ceased in terms of Sub Rule(3) of Rule 34 of the West Bengal Service Rule Part-1 nor the plaintiff did quit his service on his own accord under the said Rule. It was settled and that the termination of the service in terms of the said Rule amounted to removal from service. Hence, the provisions of Article 311 of the Constitution was clearly attracted to the case. Such removal from service without giving the employee an opportunity to show cause was illegal. Hence, the order of termination of the plaintiffs service or treating his service as terminated was clearly illegal and without jurisdiction.

As regards the question of limitation which was covered by Issue No. I, the learned Trial Judge Was of the view that the plaintiff primarily challenged his order of dismissal as passed by the Assistant Controller of Weights and Measures, Midnapore sometime before 19/3/66 as illegal, void and not biding upon Him''. Mis right to sue would therefore accrue on and from 19/3/66, when he came to know about his order of dismissal, which he challenged in the suit. Since the suit was not instituted within three years from the date of his knowledge about his order of dismissal, the suit was clearly barred by limitation. As regards the plaintiff coming to know of the illegal order of dismissal, he indeed submitted (sic) representations to the authorities and finally before the Minister-in-Charge who decided that his representation could not be entertained. According to the plaintiff, the right to sue in this case accrued on and from 9/8/78 and not earlier: but the learned Trial Judge was unable to accept the submission on the ground, inter alia, that the submission of a fresh representation before the Minister-in-Charge over a stale matter alter a lapse of so many years and subsequent rejection of the said representation, would not give the plaintiff a fresh starting point of limitation in respect of the suit over his order of dismissal before 1965.

Mr. Nani Coormar Chakravarty, the learned Advocate appearing on behalf of the plaintiff-appellant, contended before us that an order of termination became effective only on service upon the employee of the order of termination. He relied in this context, decision reported in AIR SC 395 (Bachhittar Singh v. State of Punjab) at paragraph 10 head note B. He further cited the decision of State of Punjab Vs. Khemi Ram, , for the proposition that where service of the notice of the order of termination becomes difficult, issuance of the order by the employer was deemed sufficient. The ordinary meaning of the word "communicate" is to impart, confer or transmit in formation. It is a communication of the order which is essential and not its actual receipt by the officer concerned and such communication is necessary because till the order is issued and actually sent out to the person concerned, the authority making such order would be in a position to change its mind and modify it, if it though fit But once such an order is sent out, it goes out of the control of such authority, and therefore, there would be no chance whatsoever of its changing its mind or modifying it. The word, "communicate" cannot be interpreted to mean that the order would become effective only of its receipt by the concerned servant unless the provision in question expressly so provides. Actually knowledge by him of an order where it is One of dismissal, may, perhaps, become "necessary because of certain consequences. He also cited before us the decision of the Calcutta High Court reported in AIR 1970 Cal 292 at page 317 (Dodtim Kumar v. Nandarani). That was a case where the question of terminus a arose in respect of a suit for declaration that a Trust Deed was void along with an incident prayer for cancellation of instrument where there was'' application of Article 120 of the Limitation Act of 1908 it was decided in this case that if a party who wants the suit to be struck down as time barred cannot satisfy a firm date for terminus quo, he cannot ask the court to find the issue on limitation in his favour. Applying this principle, Mr. Chakravarty argued that the State defendants ought to have given out the specific date of dismissal of the plaintiff-appellant. According to Mr. Chakraborty if the plaintiff appellant was never given to understand that there was any lawful order of termination of his service and it was after a long lapse of time when his representation was rejected by the Hon''ble Minister in 1978 as per Ext. 7. dated 9/8/78 when he came to know of the final termination, he was well within the time to file the suit in the manner he did within the period of limitation of three years from the date of his knowledge. The learned Trial Judge proceeded on the assumption that Article 113 of the Limitation Act did govern the field. Mr. Chakraborty further contended that Article 58 of the Limitation Act was not called into play. The distinction between Article 58 and Article 113 was to the effect that whereas in the former it was related to a suit for declaration of a category otherwise than expressed in Article 56 or Article 57 and the period of limitation is three years from the date the right to sue first accrues. Article 113 was a residuary clause where a period of three years starts running from the day the right to sue accrues. In so far as the present case is concerned, Article 58 not being applicable and Article 113 being called into play, the right to sue accrued only from the date he came to know positively from the Hon''ble Minister that there was fact a termination of his service and there was no chance of his being reinstated in service. Mr. Chakraborty further cited before us the decision reported in the case of Raghubir Jha Vs. State of Bihar and Others, -Labour & Industrial Cases 179 1) where a suit filed by a government servant filed within three years from the date of communication of the order of rejection of revision by the State Government against the order of discharge from service was found as not barred by limitation. He also cited the decision in the case of Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and Another, where it was laid down that where the. rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, making of the order must mean either actual or constructive communication of the said order to the party concerned. He also cited before us the decision in the case of Dilbagh Rai Jarry Vs. Union of India (UOI) and Others, where it was laid down that "it is not right for a welfare State like ours to be Janus faced, and while formulating the humanist project of legal aid to the poor, contest the claims of poor employees ''Under it pleading limitation and the like". Mr. Chakravorty also cited before us the decision reported in P.P. Abubacker Vs. The Union of India (UOI), (P. F. Abubackar v. Union of India) where it was laid down that "the State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for, the State''s interest is to meet honest claims, vindicate a substantial defence and never to score a technical, point or over reach a weaker party to avoid a just ability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits, the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show downs where a reasonable adjustment is feasible and over offering to extinguish a pending proceeding on just "terms, giving the legal mentors of government some initiative and authority in this behalf". The learned Court in that case was not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957 and that appeal did strike the learned court as an instance of disregard of that policy. Mr. Chakraborty further pointed out that had the plaintiff being made aware of the lawful termination he could have very well preferred an appeal before the appellate authority under Rule 17 of the West Bengal Service Rules which prescribed a period of limitation of three months from the date on which the employee received a copy of the order. The order not having been served upon him at all and there not having been an existence whatsoever of the order of termination in the service file or in the personal file of the plaintiff; the order never existed and was otherwise "nonest".

Mr. Amar nath Banerjee, the learned Senior Advocate appearing on behalf of the State of West Bengal and contesting respondent, accepted the position that there was no order of dismissal or intimation thereof to the plaintiff-appellant. He contended that n was on his own pleading that the plaintiff averred that on 19/3/86. he came to know about the order of termination of service and the learned Trial Judge also proceeded on the assumption that it will be governed by Article 113 of the Limitation Act but in neither way it did affect the State because the computation started from the date, the'' right to sue accrued. In Ext. 7, the order of the Minister which was communicated by the Assistant Controller, what was given out was not an order of termination itself but an order communicating the decision of the Hon''ble Minister that reinstatement could not be accorded. That took us to the position that the existence of the original order of termination had already beet there and that being so, communication of Ext. 7 itself could not confer any specific lease of life as regards the right to the plaintiff to sue in so far as a fresh period of limitation of three years is concerned.

We have given the matter our anxious consideratsinee we do not find that there is an existence of any order of determination whatsoever and the plaintiff appellant was only decided to have been dismissed from service by virtue of termination and that too on the application of the provisions of a Rule which did not apply to the facts of his case, he being a permanent employee, as was rightly found by the Trial Court on merits of the case, we do not think that the plaintiff''s case was hit by the law of limitation. In that view of the matter, we do hold that the plaintiff is entitled to a decree as prayed for. We would, therefore, hold that the plaintiff is deemed to be continuing in service and that no order of termination did take place whatsoever against the plaintiff. The plaintiff appellant will be entitled to his salaries and wages in accordance with law, which should now be computed by the court below on the basis of the declaration made in terms of prayer(b) of the plaint. He would also be entitled to pray for accounts in terms of prayer(d) of the plaint. The State Government and the Controller of Weights and Measures are directed to pay his lawful dues and allow him to continue in service treating that no lawful termination did ever take place in his case and that he is continuing in service as a Lower Division Clerk in the office of the Assistant Controller of Weights and Measures at Midnapore. The plaintiff appellant will be entitled to pray for accounts before the court below if his lawful dues are not paid within three months from today. The suit stands decreed accordingly along with costs of both the courts. The appeal stands allowed The judgment and decree impugned, stand set aside accordingly.

The costs would be borne by the defendant No. 2. The Controller of Weights and Measures, West Bengal.

Dilip Kumar Basu, J.

I agree.