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2018 DIGILAW 2559 (ALL)

M. L. Sharma v. S. S. Samiti

2018-12-18

RAJ BEER SINGH

body2018
JUDGMENT : Raj Beer Singh, J. 1. The present second appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as 'C.P.C.') has been preferred by the plaintiff against the judgement and decree dated 06.09.1980 passed by the learned First Additional District Judge, Ghaziabad in Civil Appeal No. 209 of 1979 (Makkhan Lal Sharma Vs. Sarvodaya Shiksha Samiti and others), whereby the judgement and decree of the dismissal of the suit bearing No. 835 of 1975 passed by the learned Trial Court, has been upheld. 2. The appellant-plaintiff has filed the original suit bearing No. 835 of 1975 against the respondents-defendants for permanent injunction alleging that in the educational session of the year 1974-75, he was appointed as a Trained Graduate Teacher in the Sarvodaya Vidyalay Inter college, Pilukhwa, run by the respondent No. 1 Sarvodaya Sikcha Samiti, on the probation of one year and he started working in the college from 08.07.1974, however, the approval of his appointment by the District Inspector of School, Meerut (In short referred as DIOS) was granted on 30.08.1974. The respondents-defendants have accepted his appointment from the date of approval i.e. 30.08.1974 and he was not paid the salary of the period prior to 30.08.1974. The probation of one year came to be expired on 07.07.1975 and as he has completed the period of probation and his services were not terminated till 07.07.1975, therefore he became a permanent teacher with effect from 08.07.1975. It was further averred that even during his probation period his service could only be terminated under Rule 25 of U.P. Intermediate Education Act with the previous approval of the DIOS, Meerut by giving a one month notice or by giving one month salary. On the night of 29.08.1975 he was informed by the telegram that his services have been terminated while he was neither given a notice of one month nor the salary of one month was paid to him. As per the plaintiff, his services were not terminated during the period of probation, thus with effect from 08.07.1975 he became a permanent employee. It was averred that the alleged telegram is irregular, unauthorised and illegal and therefore it is ineffective. The service of the appellant/plaintiff was not terminated in accordance with law nor there is any information regarding approval of the DIOS, Meerut. It was averred that the alleged telegram is irregular, unauthorised and illegal and therefore it is ineffective. The service of the appellant/plaintiff was not terminated in accordance with law nor there is any information regarding approval of the DIOS, Meerut. On the basis of these averments the appellant-plaintiff has sought a decree of injunction to the effect that the respondents-defendants be restrained from interfering in the job of the plaintiff as a teacher on the basis of the alleged telegram dated 29.08.1975. 3. The respondents-defendants contested the suit and filed their written statement wherein inter-alia it was averred that the plaintiff was appointed as teacher on 30.08.1974 and not from 08.07.1974 and the period of his probation has to be ended on 30.08.1975 and not on 29.08.1975. The appellant-plaintiff has joined the institution as a Trained graduate teacher on 30.08.1974 on the probation of one year. The managing body of the school has passed a resolution that the services of the appellant-plaintiff may be terminated and the same was sent for the approval of the DIOS. The approval for termination was granted on 28.08.1975. After obtaining due approval from the DIOS, Meerut, the services of the plaintiff were terminated on the last day of his probation i.e. on 29.08.1974. In lieu of one month notice, the appellant-plaintiff was paid one month salary. The services of the plaintiff were terminated in accordance with rules during the period of his probation and he was paid salary of one month. 4. On the basis of pleadings of the parties, learned trial court has framed six issues. The issue number one was to the effect that whether the services of the plaintiff have been terminated illegally and the order of termination is illegal and the issue number two was to the effect that whether the plaintiff is still continued in the service and he is entitled for the benefits claimed by him. 5. In oral evidence, the plaintiff has got examined himself as PW 1 and two more witnesses namely Sukhbinder Singh and Omvir Sharma were examined as PW 2 and PW 3. The defendants have examined Jagdish Prasad Sharma, Principal of the alleged college as DW 1. 6. After hearing, the suit of the plaintiff was dismissed by the learned First Additional Munsif Ghaziabad by judgement and decree dated 04.07.1979. 7. The defendants have examined Jagdish Prasad Sharma, Principal of the alleged college as DW 1. 6. After hearing, the suit of the plaintiff was dismissed by the learned First Additional Munsif Ghaziabad by judgement and decree dated 04.07.1979. 7. The judgement and decree dated 04.07.79 passed in the original suit was challenged in first appeal bearing No 209 of 1979. The first appeal also came to be dismissed by judgment and decree dated 06.09.1980 passed by the learned First Additional District Judge, Ghaziabad in Civil Appeal No. 209 of 1979. 8. Aggrieved by the judgement and decree dated 06.09.80, the plaintiff has preferred the present second appeal. 9. Heard learned counsel for the appellant as well as the ld counsel for the respondents and perused the record. 10. At the time of admission of the appeal, the ground No. 1, 2 and 4 as mentioned in the memo of the appeal, were treated as substantial questions of law for hearing this second appeal. The same reads as under: (1) Because the Courts below committed an error in holding that the employment of the Plaintiff Appellant began from the day approval was granted by the District Inspector of Schools (hereinafter to be referred to as the DIOS) and not from the date (8-7-1974) when he had begun working after the appointment letter dated 7-7-1974 had been issued. (2) Because the substantial question of law arising from the aforesaid controversy is whether the employment commences from the day approval is granted by the DIOS or the day from which actual work begins. (4) Because the lower appellate court erred in law holding that the appointment of the plaintiff appellant began on 30.08.1974 and that the period of this probation came to an end on 29.08.1975. 11. All the three substantial questions of law are inter connected with each other and the same can conveniently be dealt with together. 12. The main contention of the learned counsel for the appellant is that the appellant-plaintiff has joined his services as teacher on 08.07.1974 and the period of his probation came to be ended on 07.07.1975 but the learned Courts below committed error by holding that he has joined his services on 30.08.1974. It was argued that the version of the appellant-plaintiff was supported by oral evidence. It was argued that the version of the appellant-plaintiff was supported by oral evidence. It was further submitted that the approval of his appointment was granted by the DIOS on 28.08.1974 but it does not mean that the joining of service by the plaintiff has to be presumed from the date of the approval. 13. On the other hand, learned counsel for the respondents has argued that concurrent findings have been recorded by the Courts below on the points raised by the learned counsel for the appellant and thus, the same cannot be disturbed in the second appeal. Further, there is no satisfactory evidence to show that the plaintiff has started working from 08.07.1974. There is no documentary evidence in support of this allegation of the plaintiff. It was submitted that the learned courts below have considered the entire matter in the correct perspective and rendered just findings. 14. At the outset it may be stated that there is concurrent findings of the courts below on the point that the appellant/ plaintiff has joined his services as a teacher on 30.08.1974 on probation of one year. There is no documentary evidence on record even to remotely indicate that the appellant joined his service on 08.07.74. In this regard it may be noticed that in his joining report, the plaintiff himself has mentioned that he has joined his service as teacher on 30.08.1974. The evidence of the PW 2 and PW 3 that the plaintiff has joined his services on 08.07.1974 is not convincing and the same has rightly been disbelieved by the courts below. Had the plaintiff might have joined his service on 08.07.1974, some documentary proof might have easily available but no document at all has been filed to indicate that he joined his service on 08.07.1974. Neither the appointment letter was filed nor any such joining report was filed so as to indicate that the appellant/ plaintiff joined his employment as teacher on 08.07.1974. On the other hand there is evidence of DW 1, who is principal of the alleged college, that in the month of July 1974 the college has not opened. One important fact is that the appellant-plaintiff has not filed the appointment letter, which was crucial document in this regard. On the other hand there is evidence of DW 1, who is principal of the alleged college, that in the month of July 1974 the college has not opened. One important fact is that the appellant-plaintiff has not filed the appointment letter, which was crucial document in this regard. Learned courts below have considered the entire evidence in accordance with law and have rendered the finding that the appellant-plaintiff has joined his services on 30.08.1974. There is no satisfactory evidence to support the allegation of the appellant-plaintiff that he joined his services on 08.07.1974. On these points the findings recorded by the learned courts below are based on evidence and the same do not suffer from any perversity or illegality. It is well settled that the concurrent findings rendered on a question of fact by the courts below can not be disturbed in the second appeal by re-appreciating the evidence. In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311 it was held by the Hon'ble Apex Court that the findings reached by the first appellate court cannot be interfered with in a second appeal. There are catena of decisions, wherein it has been held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible. In Thiagarajan v. Sri Venugopalaswamy B. Koil [ (2004) 5 SCC 762 ], it was held that the High Court in its jurisdiction under Section 100 C.P.C. was not justified in interfering with the findings of fact. In Commissioner, Hindu Religious Charitable Endowments v. P. Shanmugama [ (2005) 9 SCC 232 ] it was again reiterated by the Hon'ble Apex Court that the High Court has no jurisdiction in second appeal to interfere with the finding of facts. Similar view has been expressed in the case of State of Kerala v. Mohd. Kunhi [ (2005) 10 SCC 139 ]. In Madhavan Nair v. Bhaskar Pillai [(2005) 10 SCC 553] it was observed by the Hon'ble Supreme court that the High Court was not justified in interfering with the concurrent findings of fact. Similar view has been expressed in the case of State of Kerala v. Mohd. Kunhi [ (2005) 10 SCC 139 ]. In Madhavan Nair v. Bhaskar Pillai [(2005) 10 SCC 553] it was observed by the Hon'ble Supreme court that the High Court was not justified in interfering with the concurrent findings of fact. It was stated that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same. Again, in the case of Harjeet Singh v. Amrik Singh [ (2005) 12 SCC 270 ], it was held that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court. In this case, the findings of the trial court and the lower appellate court regarding readiness and willingness to perform their part of contract was set aside by the High Court in its jurisdiction under Section 100 C.P.C. The Apex court, while setting aside the judgement of the High Court, observed that the High Court was not justified in interfering with the concurrent findings of fact arrived at by the courts below. It may be mentioned that in a first appeal filed under Section 96 CPC, the appellate court can go into questions of fact, whereas in a second appeal filed under Section 100 CPC the High Court cannot interfere with the findings of fact of the first appellate court. In view of these facts and legal position, the contention of the learned counsel for the appellant that the plaintiff has joined his services on 08.07.1974 and the period of probation expired on 07.07.1975 has no force. 15. So far as this question is concerned that whether the employment commences from the date of approval granted by the DIOS or from the date the employee actually began working, it may be pointed out that from the evidence on record, it is clear that the plaintiff has joined his service as teacher on 30.08.1974. The approval of appointment from the DIOS was granted on 29.08.1974. The material fact is that there is cogent and reliable evidence to the fact that plaintiff joined his services on 30.08.1974. The approval of appointment from the DIOS was granted on 29.08.1974. The material fact is that there is cogent and reliable evidence to the fact that plaintiff joined his services on 30.08.1974. As stated earlier, the concurrent findings have been rendered by the courts below on this point, thus in view of these facts and circumstances the question, whether the employment of the plaintiff would start from the date of approval of the DIOS or from the date of actual working, does not arise. In fact the second question framed as substantial question of question of law would arise only when it is established that the plaintiff has joined his services as teacher on 08.07.1974. As the plaintiff has miserably failed to prove this fact, thus, the question whether the employment of the plaintiff has commenced from the alleged date of joining ie 08.07.1974 or from the date of approval granted by the DIOS, does not arise. Even accepting the contention of the learned counsel for the appellant, that the employment of the plaintiff has began from the date he actually joined his service, it does not help the appellant because the plaintiff has failed to prove that he joined on 08.07.11974, rather there is cogent evidence and concurrent finding that the plaintiff has joined his service on 30.08.1974. Thus, accepting the pure contention of law that employment starts from the date of actual joining and not from the date of approval of appointment by the competent authority, the case of the appellant leads no where as there is concurrent findings that the appellant-plaintiff has actually joined his employment as teacher on 30.08.1974. It may be noticed here that the appellant has choose not to file his appointment letter, which was a material piece of evidence, however, this fact is not disputed that the appellant-plaintiff was appointed on the probation of one year. As stated earlier, the approval of the appointment of appellant-plaintiff was granted by the DIOS on 29.08.1974 and he actually joined his services on 30.08.1974 and therefore his probation period was upto 29.08.1975. It is not the case of the appellant-plaintiff that he received the telegram of dispensing with his services after expiry of 29.08.1974. In the plaint itself, the appellant-plaintiff has stated that he received the telegram on night of 29.08.1974. It is not the case of the appellant-plaintiff that he received the telegram of dispensing with his services after expiry of 29.08.1974. In the plaint itself, the appellant-plaintiff has stated that he received the telegram on night of 29.08.1974. The evidence on record also shows that the managing body of the school has passed a resolution on 13.08.1975 that services of the appellant-plaintiff may be terminated and thereafter the approval of the DIOS was obtained. After due approval of the DIOS, the services of the plaintiff were terminated by order dated 29.08.1974 and the termination order was communicated to the appellant-plaintiff on the same date by the telegram. 16. It is correct that the services of the appellant-plaintiff were terminated on the last day of his probation period but that fact itself cannot give rise to any conclusion that the termination was not in accordance with the law. As per the respondents the service of the appellant plaintiff were dispensed with under the provisions of Regulation 25 of Chapter III framed under Section 16(G) of the U.P. Intermediate Education Act aforesaid Act, which provides as under: ''25. The services of a temporary employee (other than a probationer) or of a probationer during the term of his probation, may be terminated at any time by giving him one month's notice or one month's pay in lieu thereof''. 17. There can be no presumption that the Managing body after due approval of the DIOS was not entitled to dispense with the services of the appellant/ a probationer on the last day of his probation in accordance with law and rules. The last day of the probation period is also included in the period of probation. It could not be disputed by the learned counsel for the appellant that with prior approval of the concerned DIOS, the respondent was well within its right to terminate the services of the plaintiff during the period of probation by giving one month notice or by giving one month salary in lieu of such notice. There is also concurrent findings of the learned courts below that the salary of one month has been paid to the appellant and the same has been received by the appellant-plaintiff. Though there is no evidence that the salary of one month was paid at the time of the termination of the appellant-plaintiff, but it was not a mandatory requirement. There is also concurrent findings of the learned courts below that the salary of one month has been paid to the appellant and the same has been received by the appellant-plaintiff. Though there is no evidence that the salary of one month was paid at the time of the termination of the appellant-plaintiff, but it was not a mandatory requirement. The plaintiff has accepted in his cross-examination that after termination of his services, he has received the salary of one month by money order. 18. In Rakesh Kumar Singh Vs. Committee of Management, Raibarali, AIR 1996 SC 3070 the Supreme Court examined the provisions of Regulation 25 contained in Chapter III of the U.P. Intermediate Education Act, 1921 which provides that the services of a temporary employee or of a probationer during the terms of his probation, may be terminated at any time by giving him one month's notice or one month's pay in lieu thereof. The High Court while construing Regulation 25 held that one month's notice or one month's pay in lieu thereof is not a condition precedent to the exercise of power under that Regulation and, therefore, even if one month's notice was not given or one month's pay was not paid at the time of termination, the order terminating his services would not become invalid but will make the employee entitled to one month's salary. The Supreme Court observed:- "A bare reading of Regulation 25 indicates that it is more similar to the rule which fell for consideration in Dinanath's case. It gives an option to the management either to give one month's notice or one month's pay in lieu thereof. It does not provide for the mode or time for payment. Thus the rule only entitles the temporary employee or the probationer to pay for the period of notice. As we are of the view that Regulation 25 does not provide payment of one month's pay in lieu of notice as a condition precedent to the effective termination of service, the High Court was right in setting aside the order of the Deputy Director who had taken a contrary view. The view taken by the High Court is correct and, therefore, this appeal is dismissed." 19. The main thrust of the appellant is that he has joined the services of 08.07.1974, which has not been found tenable. The view taken by the High Court is correct and, therefore, this appeal is dismissed." 19. The main thrust of the appellant is that he has joined the services of 08.07.1974, which has not been found tenable. In view of the above stated authority of the Hon'ble Apex Court it is quite clear that the Regulation 25 does not provide payment of one month's pay in lieu of notice as a condition precedent to the effective termination of service. It is also clear that the impugned order does not cast any stigma on the appellant. The impugned order of discharge has been passed in strict compliance with the requirements of Regulation 25. It does not cast any stigma on the appellant nor is it punitive. There was thus, no requirement to comply with the principles of natural justice, much less to hold any formal proceedings of inquiry before making the order. 20. In view of the evidence on record and the discussion made herein above, it clearly emerges that the appellant-plaintiff has joined the institution as a Trained graduate teacher on 30.07.1974 on the probation of one year. The managing body of the school has passed a resolution on 13.08.1975 that the services of the appellant-plaintiff may be terminated and the same was sent for the approval of the DIOS. The approval for termination was granted on 28.08.1975. After obtaining due approval from the DIOS, Meerut, the services of the plaintiff were terminated on the last day of his probation i.e. on 29.08.1974. In lieu of one month notice, the appellant-plaintiff was paid one month salary. Learned courts below have not committed any error by holding that the employment of the appellant-plaintiff has began from 30.08.1974 and not from 08.07.1974 and that his services were terminated on 29.08.1975, which was last day of his probation, after due approval of the DIOS. The findings of the learned lower appellate court are based on evidence and there are grounds to interfere in the concurrent findings of the courts below. The above stated substantial questions of law are decided accordingly. In view of the peculiar facts of the case and the evidence on record, it is apparent that the appeal lacks any merit and thus, liable to be dismissed. Resultantly the impugned judgement and decree of the learned lower appellate court is upheld. The appeal is dismissed with no order as to costs.