AHMAD KHAN Vs. CITY BOARD SHAHJAHANPUR

JUDGEMENT

(1.) THIS is a plaintiff's second appeal in a suit for declaration that a notice dated 12th January, 1968, issued by the first respondent Board, terminating the appellant's services is invalid and that the appellant continues to be in service of the respondent-Board. The point raised by the appellant was that although employed as thela puller, he belonged to the cadre of 'peons' and that there was? in foe t no scheme of retrenchment on the basis of which the respondent Board alleges to have terminated his services, and at any rate, even if there was any such scheme of retrenchment the appellant should have been the last one to be asked to go out as he was among the senior-most peons. The trial court framed as many as five issues. It found that the appellant was a thela puller and the termination of his service by the respondent board was valid. It also found that the notice served under section 326 of the U. P, Municipalities Act was valid. It was also held that the suit bad been filed without first exhausting the normal official channels of redress and, therefore, it was premature and not maintainable. In the result, the trial court dismissed the suit. The lower appellate court confirmed the trial court's decree dismissing the suit. Mr. Iqbal Ahmad, learned counsel for the plaintiff-appellant, urged before me that the findings of the two courts beloar that the appellant was a 'thela' puller and was not on the cadre of peons is perverse, and, further, that the finding that the suit was premature was untenable in law. I will take up the second point first. The lower appellate court has in holding that the suit was premature relied on a decision of this court in Shafqat Hussain v. Municipal Board. 1967 ALJ 17. In my opinion the reliance placed by the lower appellate court on that decision and reference to either Regulation No. 22 or Section 74 of the U. P. Municipalities Act, was misplaced. The termination of the appellant's service was governed by the U. P. Municipal Boards Servants (Inquiry, Punishment and Termination of Service) Rules. Rule 10 of those Rules provided that "the terms of office of a permanent servant shall not determine until.. (d) he has been given by the Competent Authority not less than three months' notice or a sum equal to three months pay in lieu of notice provided that a notice under clause (d) shall ordinarily b; issued only where it is proposed to terminate the service of an employee under some scheme of retrenchment sanctioned by the Board and, in all cases, where the services of the junior most person or persons are not terminated, the reasons for it will be recorded in writing by the Competent Authority and a representation against such termination would be to Govern ment within three months of its communication to the servant concerned." Section 74 of the U. P. Municipalties Act applies only to superior staff and deals only with their appointment and dismissal etc. It has no application to the appellant's case who belonged to the menial staff. The case of Shafqat Hussain (supra) has no application as the only question there was whether cause of action for a suit arose from the date of dismissal of a Municipal servant or, in case, he made a representation to the Government from the date of his representation to the Government and the case is clearly distinguishable. It is true that Hon. Oak, J. as he then was, observed, that after the coming into force of Regulations framed by the State Government with effect from 31st January, 1 59, it was impossible for the plaintiff in that case to file a civil suit without first exhausting the normal official channels of redress. That may be so, but the fact that the plaintiff could not in obedience to the law laid down by the regulations, properly approach the civil court for redress, did not, in my opinion take away the jurisdiction of a civil court to entertain the suit. The bar was on the plaintiff and the bar being there Hon. Oak, J. held that the cause of action accrued to the plaintiff in that case, firstly, on the passing of the dismissal order and again on the dismissal of his representation against that order. That case does not lay down that if the suit was filed by the plaintiff in breach of the Regulation, the suit would have been thrown out on the ground that it was pre-nature. Iam, therefore of the opinion that the decision of the two courts below that the suit was premature on the ground that the plaintiff-appellant had not exhausted the remedy of making a representation to the State Government which was available to him, is incorrect. In support of the first point urged by him, Mr. Iqbal Ahmad drew my attention to the service book of the plaintiff-appellant which was maintained by the respondent-Board. The service book has throughout described the plaintiff-appellant as a 'thela driver.' Mr. Iqbal drew my attention to a slip pasted on the service-book which reads as under "originally appointed on 1st February, 1942 as menial servant (Thela Driver). Service-book started when treated as peon vide Board's resolution No. 3S dated 3rd June, 1945 in the scale 11.1.14-1/2 with effect from 1st April, 1945 and resolution No. 75 dated 12th June, 1947 in the scale of 16-1/2-19 with effect from 1st May, 1947. "THIS note does not however, show that the plaintiff-appellant was not appointed as a 'peon'. Although the plaintiff-appellant was appointed as a 'thela driver' his services were treated at par with those of peons and he was given equal pay and equal treatment which was given to the peons by the respondent-Board. THIS inference is supported by the fact that although according to the note referred to above, the plaintiff-appellant was treated as a peon and yet the service book describes him as a permanent 'thela driver' and not as a peon. I do not find any error in the finding of the two courts below that the plaintiff-appellant was a 'thela driver' and was not borne on the cadra of Poen. In the result, the appeal fails and is dismissed with costs.