CHIMANLAL Vs. STATE OF M P

JUDGEMENT

(1.) THIS is a second appeal by a dismissed employee which has seen the light of the day today in the year 1991.

(2.) I need not deal with the facts of this case in details. Indisputably, the appellant was a work charged employee, a mason, getting a consolidated pay, which is evident from the service book (Ext. P. 2 ). From this document it is clear that the appellant was employed in the year 1959 and his services were terminated in the year 1972. During this period he earned his leave also which was sanctioned from time to time. Because of the act and omissions amounting to misconduct the appellant was dismissed on January 29, 1972, but vide Ext. P. 8 dated March 17, 1972 the Assistant Engineer, PWD (B and R), Headquarters Sub-Division No. 2, Gwalior, informed the appellant/plaintiff to apologise in writing but that was not done, on February 10, 1972 the plaintiff tendered an apology, which was not accepted by the Executive Engineer, as in that the plaintiff did not apologise as desired by the Executive Engineer. Hence, the plaintiff was informed vide Ext. P. 8 that if he tenders apology in writing then only his name again can be taken in muster roll. After this the plaintiff served a notice under Section 80, Civil Procedure Code, and then instituted a suit. Both Courts below dismissed the suit holding that the plaintiff was not holding a civil post as envisaged under Article 310 of the Constitution of India and, as such , Article 311 did not apply. It is against this dismissal of the suit for declaration that the dismissal of the services of the plaintiff was in violation of the principles of natural justice and the provisions of Article 311, that this second appeal has been preferred by the plaintiff/appellant.

(3.) SHRI A. K. Upadhyaya, learned counsel for the appellant, and Shri. P. N. Kelkar, learned Deputy Advocate-General, for the State, were heard.