PARMANAND Vs. DISTRICT BOARD

JUDGEMENT

(1.) The case of the appellant, who was plaintiff, was that he joined the service of the District Board of Patna as a medical officer on the 14th of April, 1931, and was posted at Harnaut when he was transferred on the 20th of April, 1951 to Poonpoon. He handed over charge of the Harnaut dispensary to his successor Dr. Gopinath, and when he was on transit leave for joining at Poonpoon he had an attack of insomnia and palpitation of heart for which he applied for privilege leave of 15 days on the 25th of April, 1951. That was, however, refused. Thereafter the plaintiff applied for privilege leave for 21/2 months which was granted not as privilege but leave without pay, to take effect from the 22nd of April, 1951, for the reason that the plaintiff was trying to avoid the transfer to Poonpoon. He wanted to extend that leave for another four months by his application dated the 30th of June, 1951. That was allowed as without pay. Two months' extension was again applied for and was allowed on the same condition. When the plaintiff again applied for further leave for four months on the 4th of January, 1952, that was refused on the ground that the plaintiff was indulging in his private professional practice. But the plaintiff continued making applications for further extension from time to time, in spite of that refusal, till the Chairman, by his orders dated the 16th/22nd of October, 1954, directed him to join the District Board office by the 30th of October, 1954, failing which the plain-tiff's services would be treated as terminated (Ext. 4). After receipt of this letter, the plaintiff approached the Chairman in company of one member of the Parliament and a member of the Legislative Council to reconsider his case and, it was asserted the Chairman gave him assurance that his leave would be extended and the question of full or half average pay for the period under leave would also be considered in his favour. Relying upon this assurance the plaintiff did not join as he was directed on the 30th of October, 1954. But when he did not receive any communication from the Chairman in accordance with his assurance, the plaintiff wrote again to him on the 31st of October, 1954, praying for further extension of leave as he had asked for in his previous application of the 9th of July, 1954. To this ha received no reply. After several unsuccessful approaches to the Chairman thereafter, the plaintiff again met him in company of Shri Sheel Bhadra Yajee, M. P., in April, 1955; but the Chairman told him that his services had already been terminated, and there was no question of any reconsideration. Thereafter the suit was filed on the 23rd of December, 1957, for a declaration that the termination of the plaintiff's services was illegal, void and inoperative, and for a direction to the District Board, the defendant, to reinstate the plaintiff in his service with effect from the 30th of October, 1954. At a later stage the second relief wag omitted to avoid payment of further court-fee, and the suit was confined to the first declaration.

(2.) The District Board as a defendant contested the suit disputing the story of assurance as alleged to have been given by the Chairman for reinstatement and payment of salary during the period of leave asked for and applied by the plaintiff. In the written statement it was specifically asserted that the termination of the plaintiff's services was not at all of a penal nature, and that the plaintiff had been communicated as early as the 10th of July, 1952, the refusal of leave and was definitely asked to join his duty or submit resignation.

(3.) The trial court framed three issues on the pleadings :