STATE OF BIHAR Vs. RAMKISHORE LAL

JUDGEMENT

(1.) This appeal under the Letters Patent and the cross-objection, are directed against a decision of the learned Single Judge of this Court setting aside the concurrent findings of the trial court find the first appellate court. They arise out of a suit by respondent No. 3. for a declaration that the notice of discharge served on, him and the consequent order of discharge from the service were illegal, void and inoperative on the ground that he was not given the second notice for showing cause against tho action proposed to be taken in regard to him as required by Section 240 (3) of the Government of India Act, 1935. There were other grounds also pleaded by the plaintiff-respondent in the suit; but, as they were purely questions of fact, they were not considered by the learned Single Judge in second appeal.

(2.) The terms of appointment of the plaintiff as a temporary engineering overseer of the Government are contained in tho letter of appointment which reads thus :

(3.) We are, however, unable to agree with the learned single Judge. The words 'send him or discharge him' have to be read with reference to the context. The contention of respondent No. 1 that he was appointed on the condition that he would always remain posted to Patna Sadai was rejected by the trial court as well as by the first appellate court; and after this concurrent finding of fact, this contention could not be considered in the second appeal. It is remarkable that in his application dated the 29th March, 1949, respondent No. 1 said that he was unable to leave Patna 'whether in service or without it'. It is true that he also said that he could not do so without taking the risk of the life of his wife; but, at the same time he said that he was not prepared to take this risk. This indicates his attitude. Then, at the personal hearing, the Additional Director offered to post him to a district station where he would get medical facilities; but respondent No. 1 did not agree to this proposal and told the Additional Director that he was not prepared to move from Patna Sadar at any cost. In the circumstances, the contention of the learned Additional Government Pleader that the attitude taken by respondent No. 1 in his application dated the 29th March, 1949 as also before the Additional Director of Agriculture amounted to his voluntary willingness to be relieved of the job, unless he was kept permanently at Patna Sadar is sound. The fact that the authorities gave him one month's notice of discharge does not justify the only inference that they did not treat his attitude as tantamount to be relieved from, the job; and, it is possible that the authorities served the notice as an abundant caution.