KRISHNA KUMAR SRIVASTAVA Vs. ARYA VIDYA SABHA KASHI

JUDGEMENT

(1.) THIS second appeal by the plaintiff arises out of a suit for a declaration that the plaintiff is still continuing in ser vice of the defendant No. 4 as the Head Clerk in his substantive post and that the order of dismissal dated January 27, 1961, passed against the plaintiff by the defendant No. 3 is null and void and ineffective. The trial court decreed the suit but on appeal the lower appellate court reversed the decree of the trial court and dismissed the suit. Hence this second appeal by the plaintiff.

(2.) THE brief facts are these: The defendant-respondent No. 1, Arya Vidya Sabha, Kashi runs three educational institutions at Varanasi. One of these institutions is known as D.A.-V. Degree College. The plaintiff was appointed a clerk in the said Degree Col lege on December 5, 1945. Subsequently, he became the Head Clerk in the said institution on May 12, 1958 and it has not been disputed that he was a permanent incumbent in that post. The said institu tion is affiliated with the Benaras Hindu University and that fact is also admitted. The plaintiff was suspended on September 13, 1960, and was subsequently dismissed on January 27, 1961, by the defen dant No. 3 who happened to be the then Secretary and Manager of the institution. The dismissal was with retrospective effect, i.e., from September 13, 1960. In the suit the plaintiff challenged the order of dismissal on various grounds, The defendants contested the suit on various grounds but it is not necessary to notice all of them in the instant appeal. The trial court, after framing the necessary issues, as stated above, decreed the suit. The main ground on which the plaintiff succeeded was that there was violation of Ordinance 11, clause (v) of the Ordinances printed at page 385 of Part VI of the Calendar of the Benaras Hindu University (1962-63). In brief, the effect of the provisions contained in the said Ordinance is that the approval of the Executive Council of the University should be ob tained while terminating the service of a member of the staff of an affiliated College. The trial court held that no such approval was obtained in the case of the plaintiff and, therefore, his dismissal from the post of which he held was in contravention of the aforesaid pro vision contained in Ordinance 11, clause (v). On appeal, the lower appellate court held that there was no written contract between the parties as required by the said Ordinance No. 11 and, therefore, no right could be founded on the basis of the provision contained in clause (v) of the said Ordinance. To put the view point of the lower appellate court in the words which have been used in its judgment:

(3.) Shri Sidheshwari Prasad, en the basis of the Full Bench decision, submitted that the absence of a written contract in the instant case will not change legal position and the employer could not set up an absence of such contract with a view to abridge the rights given to the employee under the Statute in question. He relied upon the ob servations contained in para 17 of the judgment of the Full Bench: