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2002 DIGILAW 1134 (PAT)

Sheo Narayan Das v. State Of Bihar

2002-10-24

S.N.PATHAK

body2002
Judgment S.N.Pathak, J. 1. This appeal is directed against the judgment dated 29.11.88 passed by 1st Addl. District Judge, Bhagalpur, in Title appeal no. 12/88 reversing the judgment of the trial court dated 7.12.87 rendered in Title suit no. 22/85. Plaintiff of the suit is appellant here. 2. The plaintiff-appellant had brought the aforesaid suit claiming interalia, that the defendant-respondents had no right to remove him from service and, therefore, he was entitled to receive his salary and emolument since December, 1982 upto date. Admittedly, the plaintiff-appellant was appointed on daily wages to the post of Prayogshala Sewak (Laboratory peon) with effect from 20.8.80 to 31.1.81. Subsequently, appellant was put on muster roll from 1.2.81 upto 31.7.81. Thereafter he was absorbed as regular employee from 1.8.81 by virtue of letter no. 576 dated 28.7.81 (exhibit A). The plaintiff-appellant proceeded on leave from 11.2.82 upto 31.12.82. During this period, he was prosecuted for theft of certain articles from laboratory and his leave was treated to be absent without permission. The theft case ended in final report and he was discharged from the aforsaid case. Plaintiff-appellants services, however, were terminated. He moved various authorities of the concerned department, but his request was turned down and thereafter the suit was filed. 3. The trial court had decreed the suit of the plaintiff holding that the termination of the service of the plaintiff was illegal and appellate court, however, dismissed the suit of the plaintiff holding that his services were purely temporary and provisional and it was subject to termination without notice. Moreover, his appointment letter (exhibit A) indicated that Executive Engineer who had appointed him had sent the letter of appointment to the Chief Engineer for approval. The termination order (exhibit A/1) stated that since approval from the Chief Engineer was not granted and the appellant had absented himself without any leave, his services were dispensed with. 4. The appellants lawyer submitted that under Article 311 of the Constitution of India, no body holding the civil post can be removed without due departmental enquiry and without having been served with a specific charge. In this connection, appellate court held that the service of the appellant was purely temporary and provisional as per contents of the appointment letter itself and, therefore, there is no application of the provisions of Article 311 of the Constitution of India. In this connection, appellate court held that the service of the appellant was purely temporary and provisional as per contents of the appointment letter itself and, therefore, there is no application of the provisions of Article 311 of the Constitution of India. I am of the opinion that if any body appointed on a government post his appointment is a contract between government and the employee. So, the terms of the contract would govern service conditions. If any body is appointed to a substantive post on permanent basis, of course, he is liable to be dismissed only after being served with charge which should be proved after due departmental enquiry. Even if a person holds temporary post for a definite period as per terms of the appointment, he shall also be deemed to be holding a civil post and, therefore, liable to be terminated only after due departmental enquiry. But in the instant case, neither the service of the appellant was for a defined period nor he was holding substative post on permanent basis. His appoitment letter itself indicated that his services were purely temporary, rather provisional, and it could be terminated any time without notice. In this view of the matter, the appellant could not be deemed to be holding civil post to claim protection under Article 311 of the Constitution of India, So, I do not think he was protected under Article 311 of the Constitution of India so much so that his services could not be terminated without any notice and without any departmental enquiry. 5. The next contention of the appellants lawyer was that the appellants termination letter passed stigma on his character and so also he was protected under Article 311 of the Constitution. In this connection, I find that the termination letter indicated that since his appointment was not approved by the Chief Engineer and since he was absent without leave, he was dismissed. Absence without leave is not a stigma on the career of a service holder and since his appointment itself was not approved there was no question of his service being dispensed with in view of the absence without permission. In any view of the matter, appellant did not deserve any protection under Article 311 of the Constitution of India. 6. Absence without leave is not a stigma on the career of a service holder and since his appointment itself was not approved there was no question of his service being dispensed with in view of the absence without permission. In any view of the matter, appellant did not deserve any protection under Article 311 of the Constitution of India. 6. In the result, I am of the opinion that the judgment of the appellate court does not suffer from any illegality or irregularity. This appeal is, accordingly, dismissed.