MOTILAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a plaintiff's second appeal arising out of a suit impugning the order for termination of the plaintiff's services on account of infringement of the statutory rule governing the conditions of service requiring the railway to make payment of the salary for the notice period where notice for termination of service was not desired to be given by the appointing authority.

(2.) THE relevant facts bearing! on the question may briefly be noticed : THE plaintiff was appointed vide order Ex. 5 dated 15th July, 1961 and I may read that order - "western RAILWAY No. ES/890/6 Divisional Office, Jaipur Dated 5 July, 1961 OFFICE ORDER Subject : Recruitment of Class III Service. Shri Motilal Sharma is appointed substitute Lab. Asstt. in scale Rs. 60. l50 (P) on Rs. 60/- plus allowance as admissible on the terms and conditions laid down in the office letter No, ES/890/6, dated 13-3-61. Sd/- President Rly. Schools & D P. O. Jaipur. " it will be noticed from the above that the terms and conditions that were to govern the plaintiff's appointment were those laid down in the office letter dated 13-3-1961. THE office letter has been brought on record as Ex. A, 12. I may read the relevant portions of the letter - "western RAILWAY Registered Post Ack. Due Divisional Office, Jaipur No. SS/890/6 13th March, 1961. Shri Motilal Sharma S/o Khairatilal Sharma Carpenter 10w BK I Subject: Employment to Rly. Service Glass III Staff Tfc. Deptt. You are hereby appointed as Sub. Lab. Asstt. in the scale of Rs. 60. 150 (P) on Rs. 60/- per month plus compensatory Allowance house allowance and dearness allowance as admissible under the rules in the office. THE appointment offered to you is temporary and your services are liable to be terminated on 14 days notice or pay in lieu thereof. You will be considered for appointment in a permanent post on completion of a prescribed period of probation. You will have to conform all rules and regulations applicable to Government Railway employees. " THE 4th, 5th, 6th and 7th clauses are about the plaintiff being required to make a declaration regarding his allegiance to India and to the Constitution of India and other matters which are not relevant for the purpose. THEn, there is cl. 9 which I may read - "you are being taken on trial on probation and appointment is not guaranteed. " It may be mentioned here that first the plaintiff was appointed vide letter Ex. A. 12. THEn, there was cessation of that appointment and the plaintiff was appointed afresh vide order Ex. 5 but the terms and conditions were the same as mentioned in the earlier order of appointment Ex. A. 12. THE plaintiff's services were terminated vide order Ex. 6, dated 25th June, 1964. I may read this order as well - "western RAILWAY Divisional Office, Jaipur No. ES/890/7 Vol. II Dated 25. 6 64 Shri Motilal, Substitute Lab. Assistant, Rly. M. P. H. S. School, Bk. I Through the Principal, Rly. M. P. H. S. School, Bk. I Subject: Recruitment to Class III Substitute Teachers. Your services are not required with effect from 25-6-64 afternoon. Necessary charge if any held by you may please be handed over to the person as directed by the Head Master/principal to whom a copy of the letter is being endorsed. Sd/- President, Rly. School & D. P. O. Jaipur. " After serving the! notice under sec. 80, C. P. C. the plaintiff brought the suit in the court of the Civil Judge, Jaipur. THE plaintiff averred that the order of termination was in the nature of a penalty and was in violation of Art. 311 of the Constitution as no show cause notice was served on him. THE plaintiff claimed that he was a probationer and as a period of one year had been fixed by the relevant statutory rules as the period of probation he should be taken to have been confirmed on the post on completion of this period and thereafter his services could be dispensed with only in accordance with the disciplinary rules and not otherwise. THE plaintiff took the position that though he was posted in the vacancy caused temporarily on account of one Shri P. D. Deshmukh having gone on leave, a clear vacancy thereafter occurred when the services of Shri Deshmukh were terminated and the subsequent appointment vide order Ex. 5 was thus against a clear vacancy. THEn, in the alternative the plaintiff claimed that even assuming that the plaintiff was still a temporary employee his services could be dispensed with only in accordance with R. 149 of the Indian Railway Establishment Code. THE Union contested this position.

(3.) IT will be noticed that under the Uttar Pradesh Rules there were two provisos. The first one was that in the case of the notice by the appointing authority the latter may substitute for the whole or part of this period of notice the pay in lieu thereof and the second proviso was that it would be open to the appointing authority to relieve a government servant without any notice or accept notice for a shorter period without requiring the government servant to pay any penalty in lieu of notice. The second proviso is obviously for the benefit of the government which may waive the giving of notice by the government servant in case he wants to leave the service. The first proviso enables the government to give the whole or part of the pay of the notice period in place of the giving of notice of the requisite period before the actual termination of the services of the servant. The learned counsel for the Union has tried to distinguish K. V. Gopinath's case on the footing that the proviso to R. 5 of the Central Service (Temporary Service) Rules, 1965 speaks of a forthwith termination by payment of a sum equivalent to the amount of his pay plus allowances for the period of the notice. In other words, according to the learned counsel payment of the emoluments for the notice period along with the order of termination in that case was necessary and without it the termination would be rendered invalid. The present case, according to the learned counsel is similar to the State of U. P. vs. Dinanath Rai (3)