MADHU SUDAN GUPTA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS second appeal is by the plaintiff/appellant whose suit for declaration of his termination from service as illegal and void and for grant of ancillary reliefs was dismissed by the lower appellate Court, reversing the judgment and decree of the trial Court.

(2.) THE appeal was admitted on 22-4-1987 for final hearing on the following substantial questions of law :

(3.) MATERIAL facts leading to this appeal are thus : Initially, the appellant was appointed on 16-10-1961 as Time Keeper in M. P. Public Works Department and was posted at Shivpuri. On 2-6-1962 his services were terminated, being temporary. On 11-9-1962 the appellant was reappointed and worked continuously. On 4-9-1976 the appellant was implicated for an offence of accepting bribe of Rs. 50/- and was tried Under Section 161, Indian Penal Code, and Section 5 (1) (a) and (b) read with Section 2 of the Prevention of Corruption Act, 1947; as a consequence of his arrest, the appellant's services were terminated by the Executive Engineer vide Ext. P-2 dated 29-9-1976; the appellant was convicted and sentenced to one year's rigorous imprisonment by Additional Sessions Judge, Shivpuri. Against the order of conviction the appellant preferred Criminal Appeal No. 129/1977, which was allowed on 8-5-1980 by a learned Single Judge of this Court, and the appellant was acquitted of the charges. The State of M. P. did not prefer any appeal against this Judgment of acquittal, certified copy of which is Ext. P-1. After the Judgment of acquittal, the appellant approached the department on 26-5-1980 and submitted an application (Ext. P-3l with a photostat Copy of Judgment (Ext. P-1) for reinstating him in service and to pay back wages from 29-9-1976. On 1-11-1980 vide Ext. P-4 the Executive Engineer gave a fresh temporary appointment as Time Keeper, though the appellant joined he objected to this appointment vide Ext. P-5, Ext. P-6 and Ext. P-7 and demanded continuity in service and all arrears of pay with increments. On 1-1-1981 because of the illness of his mother, the appellant went on leave where he also fell ill and sent applications with medical certificates for extending the leave. No refusal was communicated, but on 24-2-1981 vide Ext. D-5 the appellant's services were terminated for remaining absent from duty unauthorisedly by giving one month's notice. Having come to know, the appellant approached the Department and submitted applications and also medical certificates. The appellant was allowed to join his duties, but after some time he was again served with one month's notice (Ext. D-7) dated 12th May 1982 for the reason that the appellant is in habit of remaining absent. It was also stated in Ext. D-7 that the appellant's service record showed that he remained absent from duty on the pretext of illness from 7-1-1981, which showed that the appellant was not interested in serving the Department, and because of the services of the appellant the Department was not benefited. After the expiry of one month, vide order dated 22-7-1982 (Ext. D-8) the appellant's services were terminated as no longer required. The appellant challenged this order of termination by serving a notice Under Section 80, Civil Procedure Code (Ext. P-9 ). and instituted a suit on 13-4-1983 for declaration that his termination is null and void and for ancillary reliefs. In paras 5, 6, and 7 and 8 of the plaint the plaintiff challenged the action of the Department for giving the appellant a fresh appointment after the acquittal from the High Court, and not treating him continuously in service from the date of termination. i. e. , 29-9-1976. and not paying him the arrears of salary with increments for that period.