U P GOVERNMENT Vs. J R BHATTA

JUDGEMENT

(1.) This is an appeal by the defendant, the U. P. Government through the Collector of Allahabad, against the judgment and decree of the learned Civil Judge of Allahabad, dated 23-12-1950, granting to the plaintiff respondent, J. R. Bhatt, a declaration that he "had a right of appeal from the order dated 27-3-1944 and his appeal could not be properly withheld under the rules then in force", and awarding half of his cost from the defendant-appellant. The order dated 27-3-1944 was to the following effect:

(2.) It is common ground that the plaintiff was appointed by the High Court on 14-3-1913 as a Stenographer in the Civil Court at Gorakhpur with effect from 1-4-1913 and his services were subsequently transferred to the High Court from 6-3-1926. He had put in 29 years of service and was, drawing Rs. 350/- per mensem, the maximum salary of a Judgment-Writer, in February 1942 when he went on a month's leave on medical certificate. Before the expiry of that leave he applied for leave for a period of 24 months and 9 days from. 24-3-1942 to 31-1-1944 pending retirement, out of which four months were on full and the rest on half average pay. The plaintiff's case is that this leave was due to him, and that he had to apply for it as he was ill & in a state of deep mental depression occasioned by family circumstances. As the granting of this leave was delayed, the plaintiff saw the then Deputy Registrar, Sri S.K. Banerji. The latter told the plaintiff that the matter could be expedited if he (the plaintiff) gave an undertaking that he would not return to duty after the expiry of his leave. The plaintiff, who belongs to a place called Bihar Sharif in the State of Bihar, was in dire necessity of leave and had packed up his luggage as he was anxious in his the then state of mental depression to reach his home town. He therefore succumbed to the suggestion of Sri S. K. Banerji and gave the undertaking, and after that his application for leave was granted. Before the plaintiff could wind up his affairs at Allahabad and proceed to Bihar Sharif, where he intended to settle down, the August 1942 disturbances broke out, and it became impossible for the plaintiff to go to. Bihar Sharif and settle down there without putting his own life and the lives of the members of his family into jeopardy. He therefore aoplied to the Registrar High Court in August, 1942 for the cancellation of the rest of his sanctioned leave and for permission to resume his duties. This application of the plaintiff was rejected by the Registrar on the ground that two men, Messrs. Gupta and Asthana, who had been called; as stenographers from outside, would have to be thrown out if the plaintiff were allowed to return. The plaintiff appealed to the Hon'ble the Chief Justice, but he was informed after about 10 months by a communication dated 13-8-1943 that his appeal had been dismissed.

(3.) After his application for cancellation of the unavailed portion of his leave had thus proved unsuccessful, the plaintiff applied on 21-9-1943 that owing to the abnormal economic conditions then prevailing he propped to return to duty after the expiry of his leave and his' application for retirement on the expiry of his leave be treated as cancelled. The plaintiff's case is that this application of his was allowed by the then Registrar, Sri W. Broome, by an order dated 17-3-1944, and he was allowed to return to duty with effect from 1-4-1944 after the expiry of his leave on 31-3-1944. Against this order an appeal was filed by five Judgment Writers, and after the matter had been considered in an English Meeting on 24-3-1944 as was done on the previous occasion on the plaintiff's appeal against the Registrar's order of cancellation of his leave, the appeal of the Judgment Writers was allowed and the plaintiff was not allowed to return to duty. Of this decision the plaintiff was informed by means of the above cited letter of Sri Broome "Registrar dated 27-3-1944. Subsequently the plaintiff addressed a petition of appeal to the Governor and thereafter to the Crown Representative in India but they were both Withheld by the High Court on the ground that there was no right of appeal against the order of the Hon'ble the Chief Justice which was final. After giving the necessary notice under Section 80, C. P. C., the present suit was filed by the plaintiff on 2-1-1947.