UNION OF INDIA Vs. JUMAN

JUDGEMENT

(1.) This appeal by the Union of India is from the judg ment and decree dated 23rd December, 1975, of the fourth Additional District Judge, Dumka, Santhal Parganas, affirming the decision of the Subordinate Judge, Deoghar, in Title Suit no. 61 of 1971 with the modification that it rejected the relief for permanent injunction restraining the defendant-appel lant from removing the plaintiffs from their services in future. The title appeal in the lower appellate court abated against the heirs of deceased respondent no. 10. The plaintiff respondents were substitute Gangmen. The suit was for a declaration that the termination of their services from 28th February, 1971, was illegal and void and they should be deemed to be continuing in service. It was also prayed that a decree for arrears of salary and allowances from that date till the date of reinstatment be passed. The case of the defendant appellant was that the plaintiffs were temporary substitute Gangmen and not permanent railway employees and as they were not selected by the Selection Board their service had to be terminated.

(2.) On 20th January, 1978 while admitting this appeal only one substantial question of law was formulated by this Court :

(3.) On a perusal of the above it is quite clear that the service of a temporary railway employee can be terminated either on 14 days notice or in lieu thereof by payment to him the pay for the period of notice as provided in sub rule (2) of the said Rule. Admittedly in this case no notice for terminatin of the services of the plaintiffs was given to them. So in lieu of the notice the railway administration was bound to pay 14 days' pay to them. Learned counsel for the appellant contended that the railway administration was not bound to pay 14 days pay during the period of their service. He submitted that the payment could be made even after the service was terminated and that such payment was not a condition precedent to the order of termination. In my opinion, his contention is unsound. It cannot be disputed that notice for termination of the service must be given at the time when the employees are in service. The payment is in lieu of the notice. I am, therefore, of opinion that payment also must be made while the temporary employees are in service. That is the proper construction which, I think, should be put on the provisions of Rule 2302. I am further of opinion that this rule is mandatory and must be complied with. In the present case the findings of the two courts below is that the plaintiffs were not in service on 28th February, 1971. In other words their services had been terminated prior to that. It is clear from the findings of the courts below that the plaintiffs were in service only upto 27th February 1971. The offer of payment was made on 28th February 1971, and 25th March 1971. As already stated they were not in service on those days. The offer, therefore, must be held to be invalid and that the order of termination was illegal and void.