Chimanlal Vs. State of M.P. and anr. - Court Judgment

Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - in para 10 of the judgment in jeewanlal pathak, para 107 of the pwd manual was considered and it was held that in view of the law laid down by the apex court in desh bandhu ghosh and brojo nath (supra) that the power under para 107 cannot be exercised while dealing with a case of an employee engaged on work-charged basis, and it was observed that the state government should re-enact the provision like para 107 to remove untold miseries and harassment to petty employees who are engaged on 'work-charged' basis.s.k. dubey, j.1. this is a second appeal by a dismissed employee which has seen the light of the day today in the year 1991.2. i need not deal with the facts of this case in details. indisputably, the appellant was a work charged employee, a mason, getting a consolidated pay, which is evident from the service book (ext. p.2). from this document it is clear that the appellant was employed in the year 1959 and his services were terminated in the year 1972. during this period he earned his leave also which was sanctioned from time to time. because of the act and omissions amounting to misconduct the appellant was dismissed on january 29, 1972, but vide ext. p.8 dated march 17, 1972 the assistant engineer, pwd (b and r), headquarters sub-division no. 2, gwalior, informed the appellant/plaintiff to apologise in writing but that was not done, on february 10, 1972 the plaintiff tendered an apology, which was not accepted by the executive engineer, as in that the plaintiff did not apologise as desired by the executive engineer. hence, the plaintiff was informed vide ext. p. 8 that if he tenders apology in writing then only his name again can be taken in muster roll. after this the plaintiff served a notice under section 80, civil procedure code, and then instituted a suit. both courts below dismissed the suit holding that the plaintiff was not holding a civil post as envisaged under article 310 of the constitution of india and, as such , article 311 did not apply. it is against this dismissal of the suit for declaration that the dismissal of the services of the plaintiff was in violation of the principles of natural justice and the provisions of article 311, that this second appeal has been preferred by the plaintiff/appellant.3. shri a.k. upadhyaya, learned counsel for the appellant, and shri. p.n. kelkar, learned deputy advocate-general, for the state, were heard.4. the question of law involved in this case is whether the appellant was holding any civil post; if not, what was his status, and being a temporary employee, could his services be terminated in violation of the principles of natural justice without holding any enquiry.5. admittedly, the plaintiffs service conditions were governed by the instructions con-tamed in madhya pradesh public works department manual, volume no. 1. paragraph 104 deals with the powers of the state government which lays down that work-charged establishment on pay exceeding rs. 250/- can be sanctioned by the state government subject to the restrictions imposed upon its power in respect of the creation of temporary appointments in the pwd which is relevant for the purpose of this case. a bare look to this provision shows that appointments made in work-charged establishment are deemed to be temporary appointments. para 107 speaks of appointment orders and reads as under:-'107 - before a person is appointed to the work-charged establishment the amount of his pay should be fixed and communicated to him. he should be told that this engagement will be terminated summarily, if there is any serious misconduct on his part, or otherwise, at one month's notice or on the completion of the work for which he is engaged, whichever is earlier. if joining expenses are to be allowed to him under paragraph 111, he should be informed accordingly.'if such an employee commits any serious misconduct, power is given to terminate the engagement summarily at one month's notice or on the completion of the work for which he is engaged, whichever is earlier. the state/respondent has not come with a case that the power under para 107 was exercised by terminating the services of the appellant summarily at one month's notice or on the completion of the work for which the appellant was engaged. much water has flown, and now even the services of a temporary employee, to be terminated or dismissed for a misconduct, cannot be done away without holding an enquiry. this court in case of jeewanlal pathak 1987 mplj 376, placing reliance on desh bandhu ghosh, air 1985 sc 722, and brojo nath, 1986-ii-llj-171, held that it is now settled that the protection of article 311 can be invoked not only by permanent public servants, but also by public servants who are employed as temporary servants or probationer. in para 10 of the judgment in jeewanlal pathak, para 107 of the pwd manual was considered and it was held that in view of the law laid down by the apex court in desh bandhu ghosh and brojo nath (supra) that the power under para 107 cannot be exercised while dealing with a case of an employee engaged on work-charged basis, and it was observed that the state government should re-enact the provision like para 107 to remove untold miseries and harassment to petty employees who are engaged on 'work-charged' basis. recently, this court in second appeal no. 13/1987 madhu sudan gupta v. state of m.p. and ors. decided on january 21,1991 (1991 mplj 712), placing reliance on the law laid down by the apex court in brojo nath and desh bandhu ghose (supra) and the view taken in jeewanlal pathak's case (supra), has held that if the services of work-charged and contingency paid employees are dispensed with by applying the right of the master of 'hire and fire', such a termination, if for a misconduct, would be null and void, as it is without observing the principles of natural justice and without holding any enquiry. certainly, in that case the provisions of madhya pradesh public works department work-charged and contigency-paid employees recruitment and conditions of services rules, 1976, were considered, but that would not make any difference, as a master has no unfettered right to dispense with the services of an employee without observing the principles of natural justice and without acting in accordance with the provisions of article 311 of the constitution of india.6. in sa.no. 292/1970 state of m.p. v. pitam singh, decided by this court as long back as on february 25, 1972, which was a case of a gangman, then promoted as time keeper, who was getting his monthly salary, placing reliance on a decision of the apex court in kanak chandra dutta, air 1967 sc 844, it was held that a 'civil post' prima facie means an appointment or office on the civil side of the administration as distinguished from a post under the defence forces. a post is an office to which certain duties and functions are assigned in connection with the affairs of the state. as made clear by the apex court in kanak chandra dutta in para 10, every employment under the state is not a post and a casual labourer is not the holder of a post, which is not the case here. admittedly, the plaintiff/appellant was a regular temporary employee and that is why his service book was prepared, though he was not made permanent. the allahabad high court in case of r. christopher v. executive engineer, irrigation workshop, bareilly 1966-i-llj-799 has held that even a person employed on daily wages would also be deemed to be holding a civil post within the meaning of article 311(1) of the constitution. therefore, as the plaintiff fulfils the conditions of a 'civil post' that his duties fall under any sphere of activities connected with the state, the post is created by the state and could be abolished by it, the conditions of service are regulated and controlled by the state, and he is paid a monthly salary out of the state funds, it cannot be doubted that the appellant was not holding a civil post. therefore, the dismissal of appellant's services, admittedly, for a misconduct was illegal. even if the power of dismissal is given by para 107 of the pwd manual, vol. 1, that is violative of the law laid down by the apex court in desh bandhu ghosh and brojo nath (supra).7. as the dismissal order is null and void, the natural consequence is that the plaintiff/employee is entitled to back wages, all ancillary benefits and reliefs, but, as contended by shri kelkar, learned deputy advocate general, this rule has to be departed from in the peculiar facts and circumstances of this case, as nobody knows whether, after his dismissal from service, the plaintiff was gainfully employed or not, nor any issue was framed to that effect. besides, a long period has elapsed and the appellant has not adopted the quicker remedy of filing a writ petition before the high court, and the litigation dragged on for about 19 years. therefore, placing reliance on two decisions of this court in s.a.no. 146/1987, badriprasad v. state of m.p. decided on october 24, 1990 and s.a. no. 13/1987, madhu sudan gupta v. state of m.p. and ors., decided on january 2, 1991 (1991 mplj 712) it would be just and fair not to award back wages at this stage but to direct the executing court to hold an enquiry whether, after his dismissal from service, the plaintiff was gainfully employed or not. at this stage, shri upadhyaya submitted that instead of making the direction to hold an enquiry, part of the back wages be now awarded so that the dispute is decided here and now. on this submission, i feel it just and proper not to award full back wages, but the state is directed to make payment of half back wages with all ancillary benefits of the service to the appellant from the date of termination of the services till reinstatement the appellant shall be treated to be continuing in employment. the amount after calculating the wages and all ancillary benefits, shall be paid to the appellant within three months from today. in case of default, the amount of half back wages and all ancillary benefits so calculated shall carry interest at the rate of 12 per cent per annum, which the appellant shall be entitled to recover by executing the decree.8. in the result, the appeal is allowed and the suit of the appellant/plaintiff is decreed in the manner stated herein above. the appellant shall be entitled to costs throughout. counsel's fee rs 500/- if already certified. a decree be drawn up accordingly.