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Union of India (Uoi) Vs. Jyotirmoyee Sharma - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata High Court
Decided On
Case NumberAppeal No. 70 of 1962
Judge
Reported inAIR1967Cal461,(1969)ILLJ290Cal
ActsConstitution of India - Articles 299, 310, 311 and 311(2); ;Government of India Act, 1935 - Section 175(3); ;Contract Act, 1872 - Section 230(3); ;Civil Services (Classification, Control and Appeal) Rules, 1930 - Rule 55B; ;Code of Civil Procedure (CPC) , 1908 - Sections 80, 100 and 101 - Order 6, Rule 2 - Order 7, Rule 7
AppellantUnion of India (Uoi)
RespondentJyotirmoyee Sharma
Appellant AdvocateG.P. Kar and ;A.K. Banerjee, Advs.
Respondent AdvocateS. Roy and ;B.N. Sen, Advs.
DispositionAppeal dismissed
Cases ReferredBhagwati v. Chandra Maul.
Excerpt:
- masud, j.1. this is an appeal against the judgment and decree dated 2nd august, 1961 whereby the plaintiff-respondent was granted a declaration that the order terminating her service was bad in law and was also awarded a decree for rs. 30,000/- with a condition that if payment was made by the union of india and the latter would not prefer an appeal, the plaintiff would be willing to accept rs. 20,000 in full satisfaction of her claim. the facts of the case may be briefly stated as follows:2. the plaintiff, srimati jyotirmoyee sharma by a letter in writing dated 7th june 1949, was appointed to a permanent post of anthropologist in the department of anthropology on an initial salary of rs. 440 p. m. prior to such appointment she was already working as a temporary anthropologist in the said.....
Judgment:

Masud, J.

1. This is an appeal against the judgment and decree dated 2nd August, 1961 whereby the plaintiff-respondent was granted a declaration that the order terminating her service was bad in law and was also awarded a decree for Rs. 30,000/- with a condition that if payment was made by the Union of India and the latter would not prefer an appeal, the plaintiff would be willing to accept Rs. 20,000 in full satisfaction of her claim. The facts of the case may be briefly stated as follows:

2. The plaintiff, Srimati Jyotirmoyee Sharma by a letter in writing dated 7th June 1949, was appointed to a permanent post of Anthropologist in the Department of Anthropology on an initial salary of Rs. 440 p. m. Prior to such appointment she was already working as a temporary Anthropologist in the said department. She was selected for the new post in pursuance of an advertisement issued by the Federal Public Service Commission for recruitment of one Anthropologist in the Anthropological Survey of India (Central Survey, Class I). The advertisement contained inter alia, the following statements:

6. The post is permanent and pensionable.

7. Persons appointed will be on probation for a period of two years. The appointment can be terminated during the probationary period without reasons being given.

.....

12. Pay :--Rs. 350-350-380-380-30-590-E. B.-30-770-40-850.

Higher initial pay upto a maximum of Rs. 440 may be granted, as a special case, to a specially qualified and experienced candidate.' The plaintiff is a highly qualified candidate with the University degree of B. A., M. A. and also Ph. D. in Sociology at the University of Chicago, U. S. A. with previous experience in the Anthropology Department. The Federal Public Service Commission, after interview, selected her for the post and the terms of appointment were set out in a letter dated 7th June, 1949 addressed to her by the Director of Anthropology, Indian Museum, Calcutta. On the same day, the plaintiff relinquished the charge of her previous office of temporary Anthropologist in the Department of Anthropology and joined her new post. By a letter dated 11th June, 1952, the plaintiff's service was terminated by the Director of Anthropology, Shri B. S. Guha. Prior to the said order terminating her service, the plaintiff was given opportunity to meet certain allegations against her and a long correspondence passed between the plaintiff and the Government of India authorities in which she denied the charges and demanded an enquiry. The Union Public Service Commission after consideration of the said allegations against her and her replies thereon came to the conclusion that she should not be confirmed in the said post and her service should be terminated. The plaintiff thereafter instituted this suit for a declaration that the said order of termination is void and illegal and also for a declaration that the plaintiff would remain entitled to hold the office of Anthropologist after the said termination. Alternatively, she also claimed a decree for Rs. 5,34,804/-particulars of which are set out in paragraph 15 of the plaint. The learned Judge in the court below, after examining the oral and documentary evidence adduced in the case, granted her a declaration that the said order dated June 11, 1952 is illegal and void. The leaned Judge also granted her a conditional decree for Rs. 30,000 as stated above and also interest at 4% per annum.

3. The first contention of Mr. G.P. Kar, learned counsel for the appellant, the Union of India, is that the plaintiff is not entitled to get any relief in the suit inasmuch as there was no valid and binding contract between the plaintiff and the Union of India. The plaintiffs contract of service cannot be enforced as it contravened the provisions of Section 175(3) of the Government of India Act, 1935 and/or Article 299 of the Constitution of India. There are decisions of this Court and other High Courts in support of the arguments advanced by Mr. Kar, but we prefer to follow the recent Division Bench judgment of this Court in State of West Bengal v. Sarat Chandra Chakravorty (unreported), Appeal No. 146 of 1950, delivered by A.C. Sen and T.P. Mukherjee, JJ. on 16th September, 1965 (Cal). This Bench after examining large number of decisions for and against such contention, came to the conclusion that the contract of service with the government officers cannot be struck down for non-compliance with the said provisions. Even assuming Mr. Kar's contention to be correct, the plaintiff's appointment is substantially in compliance with the provisions of Section 175(3) of the Government of India Act. The letter dated June 2, 1949 addressed by the Undersecretary, Ministry of Education, Government of India to the Director, Department of Anthropology, specifically states that the Governor-General has, on the recommendations of the Federal Public Service Commission, selected Dr. Sarma for appointment to the permanent post of Anthropologist. This letter read with the letter of the Director of Anthropology dated June 7, 1949 addressed to the plaintiff offering the said post to the plaintiff and also the plaintiff's reply on the same date accepting the offer could be reasonably construed to be in accordance with the letter and spirit of Section 175(3) of the said Act. It may be added here that the letter dated January 9, 1952 also mentions the fact that President of India had decided to terminate her service.

4. Further, it may also be stated here that assuming the said letter dated June 2, 1949, and the said two letters dated June 7, 1949 do not comprise a formal contract within the meaning of Section 175(3) of Government of India Act, 1935 the defendant's letters dated 2-6-49. 7-6-49, 21-5-51, 7.6.51, 9.6.51, 29.6.51, 1.10.51, 2.1.52, 9.1.52, 11.1.52 and the payment of salaries and allowance to the plaintiff for about two and half years are sufficient acts of the defendant which would make us hold that the plaintiff's contract of employment was duly ratified under Section 230(3) of Contract Act and, as such, following the principles in Chatturbhuj Vithaldas v. Moreswar Parashram, : [1954]1SCR817 the plaintiffs contract or employment must be held to be enforceable.

5. The next point urged by Mr. Kar is that the order terminating her service dated 11th June, 1952 has been lawfully made inasmuch as the plaintiff was only a probationer and until her confirmation takes place, she would not acquire the status of a permanent government servant to enable her to get the benefits under Article 311(2) of the Constitution. According to him, a probationer cannot be said to have been absorbed in the permanent service until the authorities are satisfied as to the fitness or suitability of the incumbent and confirmation order is made. In the instant case, Mr. Kar has submitted that the plaintiff's probationary status was continuing at the time when her service was terminated and, as such, it was legitimate for the government to terminate her service without complying with the formalities under Article 311(2) of the Constitution. There is great force in Mr. Kar's argument, and in our opinion, the principles enunciated by him do apply to the facts and circumstances of this case. On 7th June, 1949 the plaintiff was appointed to a permanent post of Anthropologist on an initial salary of Rs. 440/- per month. The terms of appointment as set out in the said letters dated June 2, 1949 and June 7, 1949 substantially refer to the same conditions of service as published in the advertisement by the Federal Public Service Commission (Ex. B). The letter dated June 7, 1949 reads as follows :--

Department of Anthropology,

Indian Museum

27, Chowriaghee Road, Calcutta-13,

Dated 7th June, 1949.

Madam,

I am directed to offer you a permanent post of Anthropologist in the Department of Anthropology in the scale of Rs. 350-350-380-380-30-590 E. B. 20-770-40-850 20-770-40-850 on an initial salary of Rs. 440/- per month which will be personal to you from the date of your permanent appointment. Yon will be on probation for two years.

I am to request that the undersigned may kindly be informed urgently if you are willing to accept the offer on the above terms and condition. Dr. Jyotirmoyee Sharma, Yours faithfullyM. A., Ph. D., Sd. M. N. ChandaAnthropologist Tempo- For Director.rary, Departmentof Anthropology, IndianMuseum, Calcutta.

The said offer was duly accepted by the plaintiff on the same day. The plaintiff was working in the Department of Anthropology as an Assistant Anthropologist on a temporary basis prior to her new appointment. She relinquished the charge of her old office and joined the new post. Admittedly, the plaintiff was getting the salary of Rs. 440/- p. m. with effect from 7th June, 1949. According to the terms of her appointment, she is entitled to draw that salary from the date of her permanent appointment. This payment of Rs. 440 per month from 7th June, 1949 shows that her permanent appointment commenced from 7th June, 1949, but such appointment is conditioned by the term that she will be on probation for two years. 'Probation' according to Shorter Oxford English Dictionary, means 'the action or process of testing or putting to the proof; trial, experiment; investigation, examination, the testing or trial of person's conduct, character, or moral qualifications.' It appears from, the ordinary meaning of the term mat the appointing authority can dispense with the services of a probationer if within the probationary period she is not found suitable to the post. Ordinarily, the probationary status lapses with the expiry of the probationary period. The difficulty arises to find out the time when the probationary period ends. A fixed period of probation does not necessarily, mean that the period lapses automatically with the expiry of the fixed period. There may be cases where a probationer was found satisfactory during the whole of the probationary period save and except the last few days. In such a case, the appointing authority's right to terminate the probationer's service must be extended to a reasonable period beyond the last date of probation. The legal effect of a probationer's status may not be always the same if the terms of appointment or any specific statutory rule provide otherwise. In the instant case, the term of appointment clearly provides that she is appointed to a permanent post, but her probationary period was only for two years. The fixed probationary period expired on 6th June, 1951. It is difficult to hold that the right of the appointing authority comes to an end immediately on the expiry of the probationary period in all cases. It is also difficult to hold that in all cases there is an automatic extension of the status of a probationer until confirmation. The question can only be decided on the basis of e terms and conditions of service in individual cases which again may follow from the contract itself or statutory rule, if any. Thus, the legal status of a person appointed on probation has got to be determined according to the facts and circumstances of each case, In the present case, the letter dated June 7, 1949 and the subsequent conduct of the parties lead to one conclusion that the plaintiff although appointed to a permanent post on 7th June, 1949, her service could be terminated within a reasonable period after the probation. There is no dispute that the plaintiff has no right to remain in the post held by her, if, without assigning any reason, her service was terminated, otherwise than by way of punishment, on or before 6th June, 1951. But the difficulty arises as to the status of the probationer after the expiry of the stipulated probationary period. Mr. Kar's contention that, until confirmation, the probationary period continues in all cases even after an unreasonable length of time is difficult to accept. Such extension of the probationary status would put the probationer in a state of insecurity or in constant jeopardy for an indefinite period, unless the terms of appointment or any statutory rule so provide. As stated earlier, there might be cases where the misconduct of the probationer mighttake place on the last clay or during the last few days, in which case the appointing authority should be given a reasonable period after the expiry of the stipulated period of probation to make their final decision as to the confirmation of the probationer. In the instant case, the evidence is that the plaintiff was given an extract from the Confidential Report on her work by a letter dated 21st May, 1951. The plaintiff denied the allegations against her as set out in the said Confidential Report in her reply dated 27th May, 1951. The allegations related to a period during probation. It appears from another letter dated 7th June, 1951 addressed to her by the Director that the plaintiff just before the expiry of the said two years, after making an application for casual leave for four days, left the station without getting permission from the authorities. The plaintiff in her reply dated 8th June, 1951 explained that under an emergency she had to leave the station after making a formal application, In reply, the Director in his Memo, dated 9th June, 1951 very rightly stated that she could have left the station after taking the permission from the Director personally or by telephone. In her reply dated 24th June, 1951, the plaintiff explained the circumstances under which she had to leave on emergency. It is to be noted that this allegation related to a period which happened to DP the last few days of her stipulated probationary period. On the 29th June, 1951 the Director was complaining that no reply was received by him as to his letter dated 9th June, 1951 where she was asked to supply informations regarding the date of her departure from Calcutta, the destination where she went to and the nature of the alleged emergency. On the 3rd July, 1951 a reminder was given to the plaintiff for furnishing the office with the particulars required in the said letter dated 9th June, 1951. On 17th July, 1951 the Director of Anthropology in a confidential letter asked her to show cause within a fortnight of the receipt of that letter, why her service should not be terminated on the following grounds:

(i) Failure to discharge her duties as a member of the staff, as for example, reluctance to give lectures as instructed and to participate to seminars; indifference towards research and publications.

(ii) Improper conduct and behaviour in general, as for example, wilful discourtesy towards colleague and subordinate staff.

(iii) Aid and abatement to peon, Jogendra Nath Mishra of the department against office discipline, e. g., providing him with stationary and typing facilities for his petition against the Director.

(iv) Absence from duty without leave on June 4, 1951, and leaving the station without permission.

(v) Applying for an appointment elsewhere without obtaining the permission of the head of the department.'

It is significant that all the allegations set out in the said notice dated 17th July, 1951 are referable to the said stipulated period. The plaintiff in her reply dated 31st July. 1951, denied the allegations and requested the Ministry of Education, New Delhi to make an enquiry on the same. The plaintiff again in her letters dated 31st August, 1951 and 30th September, 1951 repeated her request to make an enquiry into the allegations against her. On the 1st of October, 1951 the Director set out in details the facts and circumstances on the basis of which the notice dated 17th July, 1951 was served on her. The plaintiff in her letters dated 5th October, 1951 and 2nd November, 1951 to the Hon'ble Minister for Education, New Delhi, reiterated her request to dispose of her case which she described as appeals to the appellate authority and prayed for a judicial enquiry into all the allegations against her. At last, by the said letter dated 11-th January, 1952, the plaintiff was informed by the Director, Department of Anthropology, that the Government of India decided to terminate her service with immediate effect on the advice of the Union Public Service Commission. A copy of the letter addressed by the Secretary. Union Public Service Commission, to the Government of India, Ministry of Education, New Delhi, dated 2nd January, 1952 was also sent to her along with the order of termination for her information. This sequence of events show that the steps taken by the authorities are not afterthought. On the contrary, Government was complaining continuously against her from 21st May, 1949 till 1st January, 1952 when her service was terminated. There is no allegation that the Government has acted mala fide, in terminating her service. In any event, we shall not be justified in evaluating the merits of the allegations against her. The material point with which we are concerned is whether the Government of India has lawfully terminated her service in January, 1952. The answer to that question must depend upon the determination of the status of me plaintiff in January, 1952 when her service was terminated. Mr. Kar has urged that her status as a probationer continued till the date of the termination of her service and that the Government of India gave reasonable opportunity to meet the allegations against her as provided under Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules, The said rule provides:

'Where it is proposed to terminate the employment of a probationer whether during or at the end of me period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment.'

The Government has given her the said opportunity by their letter dated 17th July, 1951 where five specific grounds were made against her. The said rule provides that the probationer shall be apprised of the grounds 'where it is proposed to terminate the employment of a probationer during or at the end of the period of probation.' The allegations were made in the instant case in respect of events which took place during the probationary period oftwo years and the show cause notice was given in July, 1951. Under the terms of appointment, she was to remain on probation until 6th June, 1951. The show cause notice served on her on the 27th July, 1951 read with the letters dated 21.5.51, 7.6.51, 9.6.51 indicate that the authorities were contemplating termination of her service at the end of her probationary period of two years. Further Rule 55-B contemplates that the appointing authority shall serve a show cause notice if the probationer's service is to be terminated 'during or at the end of the period of probation.' 'At the end of the period of probation' in Rule 55-B must mean that steps must be taken after the expiry of the stipulated period of probation. In the instant case, the probationary period has been fixed for two years and, the appointing authorities must be given opportunities to enquire into the suitability of the candidate within a reasonable period after the last date of probation. Rule 55-B contemplates the case of a probationer and the plaintiff knew as early as 27th July, 1951 that the Government was taking recourse to Rule 55-B in her case (vide: the plaintiff's letter dated 27-7-51). The Director's letter dated 1st October, 1951 specifically mentions that Rule 55-B was being applied to her case. The allegations reported against her commenced on 2lst May 1951, that is, during the probationary period and the Government consistently followed up the enquiry against her till the order of termination dated 11th January, 1952. The period taken for making a final decision as to her fitness or suitability does not seem to be unreasonable. In the premises, we hold that the plaintiff's status at the date of termination of her service was that of a probationer inasmuch as during the period between 6th June, 1951 and 11th January, 1952 the appointing authorities were making enquiries as to whether the plaintiff's conduct would Justify her confirmation or not.

6. We may now discuss some of the cases cited by Mr. Kar in support of his contentions. The first case to which our attention was drawn is Sukhbans Singh v. State of Punjab, : (1963)ILLJ671SC . Mr. Justice Mudholkar has laid down that a probationer cannot, after the expiry of probationary period, automatically acquire the status of a permanent member of service, unless of course the rules under which he is appointed expressly provide for such a result. The Government servant there was directly recruited as Tahsildar in the year 1936. With effect from 31st May, 1945 he was promoted to the post of an Extraordinary Assistant Commissioner on probation in the year 1945. Such promotion was made by selection through the Punjab Public Service Commission. During his service in the new post his works were however alleged to be unsatisfactory by the superior officers and he had to face an enquiry on 7 charges. As a result of this enquiry, the government stopped his increment for one year. He was then transferred to Jullunder as Revenue Assistant in September. 1950. According to him, while working at Jullunder, he received a warning from the Government at the instance of a wrong report sent by the Deputy Commissioner, Mr. Kashyap which was based on malice. This warning was received by him on September 18, 1953. Prior to the receipt of this warning he was however reverted to his post of Tehsildar on May, 1952. Upon his reversion, the appellant asked the authorities to supply him the grounds of reversion. The Government refused to furnish him the grounds on the ground that the appellant could be reverted according to Rule 14.10 of the Civil Services Rules (Punjab) Vol. I, Part I. In this ease, under Rule 22 of the Punjab Civil Service Rules, the candidate on first appointment to the service shall remain on probation for a period of 18 months. One of the three provisos to Rule 22 enables the Governor to extend the period of probation of any candidate. Rule 23 provides:--

'Any officer appointed to the service may during the period of his probation be removed from the service under the order of the Governor of Punjab; or appointed from the Registrar A. I. or A II may be reverted to former appointment if in the opinion of the Governor of Punjab his work or conduct is unsatisfactory.'

Rule 24 runs thus :--

'On the completion of the period of probation prescribed by, or determined by, the Governor of Punjab under the provisions of Rule 23, a member of the service shall be qualified for substantive permanent appointment.'

On construction of these rules, Mudholkar, J. at page 1715 made the following observations:

'The rule in question says no more than that at the end of the probationary period the probationer, unless reverted or absorbed in a substantive post will be eligible for being made permanent. In other words, it means that he will continue to be probationer unless he is reverted or absorbed in a permanent post. But the very fact that a person is a probationer implies that he has to prove his worth, his suitability for the higher post in which he is officiating. If his work is not found to be satisfactory, he will be liable to be reverted to his original post even without assigning any reason. It would, therefore, not be correct to say that a probationer has no right to the higher post in which he is officiating or a right to be confirmed. A probationer being merely made eligible for being absorbed in a permanent post is in no better position'.

The Supreme Court, on the basis of the said principles, came to the conclusion that the Governor may be justified in reverting Sukhbans Singh to his original post after the expiry of the probationary period of 18 months, although in this case he succeeded on the ground that such reversion was made by way of punishment and, as such, he should not have been denied with the provisions of Article 311(2) of the Constitution. This appeal involves a case of a permanent Government servant being promoted to a higher post as a probationer and a case where detailed statutory rules relating to the status of a probationer were in force in Punjab. The rules there specifically provide that the probationary period would last for 18 months and after the probationary period, the promoted person will be qualified for permanent absorption in the promoted post. Accordingly, the Supreme Court held that there is no question of automatic change of probationer's status on the expiry of the probationary period. The instant case before us is not a case of promotion. It is a case of initial appointment to a permanent post subject to a probation for two years. But there is no reason why the principle applying in the case of alleged reduction of rank would not also with same force apply to cases of alleged wrongful termination of service. Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules also provides a procedure whereby a probationer's service can be terminated if his work is found to be unsatisfactory during the probationary period. The next case relied on is Ramaswamy v. I. G. of Police, : (1970)ILLJ649SC . There some of the Sub-Inspectors who were in the eligibility list for the post of Circle Inspectors in the month of October, 1954, were transferred to the State of Mysore as constituted by the States Reorganisation Act and were promoted on an ad hoc basis to the post of Circle Inspectors because the permanent incumbents were either gone on leave or were on deputation. On their return, the ad hoc Circle Inspectors were reverted to their substantive posts of Sub-Inspectors. This reversion was challenged on the ground that it amounted to reduction in rank. It was held there that the fact that the Sub-Inspectors worked for more than two years as Circle Inspectors did not automatically confirm them to the posts of Circle Inspectors. Following : (1963)ILLJ671SC (supra), the Supreme Court confirmed the view that a probationer cannot after the expiry of the probationary period automatically acquire the status of a permanent member of the service unless of course the rules under which he is appointed expressly provide for such a result. There the contention on behalf of the petitioner was that Rule 486 of the Hyderabad District Police Manual lays down that promotion cannot be claimed as a matter of right, though officers and men of all rank are entitled to accept promotion if they have good records, and if they are smart and efficient and have a thorough knowledge of their duties. The Supreme Court in applying the said rule, came to the conclusion that because the Sub-Inspector's name is put in the eligibility list, he cannot claim promotion as a matter of right. But another aspect of the said decision is more relevant in the instant case before us. The said Rule 486 further provides that all officers who are promoted will be on probation for a period of two years. It also provides that promoted officers will be confirmed at the end of their probationary period if they have given satisfaction. It is true that Supreme Court in construing the said rule has held that it is only when the probationary period is over and the promoted officer has given satisfaction during the whole of the period, then he will be confirmed. This case also is a ease of reversion of the permanent officer holding a substantive post and promoted to a higher post on probation. This decision is an authority for the proposition that R. 486 does not contemplate automatic confirmation after the probationary period of two years. The Supreme Court has arrived at the said conclusion because the rules there specifically provide that the confirmation would take place if the probationer has given satisfaction. In the instant case also, the plaintiff was appointed to a permanent post subject to a condition that she would remain on probation for two years. Following the principles laid down by the Supreme Court, it must be held that she continued to remain on probation after the expiry of the said 2 years, unless the government would have chosen to confirm her appointment beyond a reasonable period.

7. But even though we are accepting Mr. Kar's contention that the plaintiffs probationary status has not come to an end, the facts of the instant case do not justify the termination of her service without complying with the provisions of Article 311(2) of the Constitution. The report of the Union Public Service Commission dated 2nd January. 1952 shows that her service was terminated on account of several acts of misconduct proved against her and, as such it must be held that termination of her service was made by way of punishment. Mr. S. Roy, learned counsel for the respondent, has relied on Parshotam Lal v. Union of India, : (1958)ILLJ544SC . State of Bihar v. Gopi Kishore Prasad, : (1960)ILLJ577SC and State of Orissa v. Ramnarayan Das, : (1961)ILLJ552SC . Shah, J. following the earlier two Supreme Court decisions, had made the following observations at page 180 in his judgment in : (1961)ILLJ552SC (Supra):

'The enquiry against the respondent was for ascertaining whether he was fit to be confirmed. An order discharging a public servant, even if a probationer, in enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may appropriately be regarded as one by way of punishment, but an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed, is not of that nature. In Gopi Kishore Prasad's case, : (1960)ILLJ577SC , the public servant was discharged from service consequent upon an enquiry into the alleged misconduct, the enquiry officer having found that the public servant was unsuitable for the post. The order was not one merely discharging a probationer following upon an enquiry to ascertain whether he should be continued in service, but it was an order as observed by the court 'clearly by way of punishment'. There is in our judgment no real inconsistency between the observations made in Parshotam Lal Dhingra's case : (1958)ILLJ544SC and Gopi Kishore Prasad's case. : (1960)ILLJ577SC .'

In our opinion, the contention of Mr. Roy to the effect that the termination of plaintiffs service was by way of punishment must be accepted. The order of termination dated 11th January. 1952 by itself does not show that the confirmation was refused by way of punishment. But the circumstances under which the plaintiff's service was terminated and the copy of the report of the Union Public Service Commission which was an enclosure in the said letter dated 11th January, 1952 have altered the position. The allegations against her are serious. They relate to her inefficiency, improper conduct, and her disregard to office discipline and government rules. The Union Public Service Commission rejected her explanation in her absence. It is well settled that the service of a permanent servant or a probationer cannot be terminated by way of punishment without following the provisions of Article 311(2) of the Constitution. A probationer has the right to be personally present before the Enquiry Officer and cross-examine Government witnesses in a case where the allegations against such probationer involve a stigma on her competence affecting future career. Admittedly, the elaborate procedure contemplated in Article 311(2) had not been followed in this case and, as such, the termination of the plaintiff's service on 11th January, 1952 was wrongful.

8. The next point to be decided is to find out tile relief which the plaintiff is entitled to get as a result of the wrongful termination of her service. Relying upon the State of Bihar v. Abdul Majid, : (1954)IILLJ678SC , Mr. Kar has contended that the plaintiff is not entitled to get any damages for wrongful dismissal against the government. He has conceded that the plaintiff is at best entitled to arrears of salary if the termination of her service is held to be unlawful. The plaint is defective inasmuch as the arrears of salary have not been prayed for at all and, therefore, according to Mr. Kar, no decree for arrears of salary should be given. In our view, Mr. Kar's objection to grant a decree for damages instead of a decree for arrears of salary is more a matter of form than of substance. In this connection, reliance may be placed on the following observations of the Supreme Court in Bhagwati v. Chandra Maul. : [1966]2SCR286 :

'There can be no doubt that if a partyasks for a relief on a clear and specific ground,and in the issues or at the trial no other ground is covered either directly or by necessary implication, it would not be open to the said partyto attempt to sustain the same claim which isentirely new... . ... . ... . . Butin considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that consideration of form cannot override the legitimate consideration of substance. ....'

We have already held that the order of termination of the plaintiff's service by the defendant is wrongful. Under prayer (c) the plaintiff has asked for damages on grounds of wrongful dismissal. One of the issues in the case is to determine the relief which the plaintiff is entitled to get. The plaintiff was lawfully appointed by the government as an Anthropologist, but her service was wrongfully terminated and naturally she would be entitled to enjoy the benefits under her terms of appointment on the basis that her service had notbeen terminated. The consequential relief which she is entitled to get is the recovery of salary which she would nave earned if her employment was not wrongfully discontinued. In the case of a subsisting employment the incumbent usually is entitled to get his wages. In the instant case, it makes no practical difference whether the incumbent is reimbursed with loss of wages or damages. The plaintiff has not asked for special damages. In annexure A to the plaint, the plaintiff has calculated damages on me basis that she is entitled to get the salary and allowances up to the 31st August, 1977, when in the ordinary course she is due to retire. It cannot therefore be stated that the defendant did not know that the plaintiff was asking for arrears of salary and allowances in the suit, It appears from the evidence that on 15th September, 1955 she obtained a Research Fellowship at the National Institute of Science in India with a stipend of Rs. 400 a month. With effect from December 1, 1956 the plaintiff was appointed Reader in Sociology at Utkal University at a salary of Rs. 540 p. m. The court below has granted a decree for Rs. 30,000 with interest at 41/2 per cent per annum by making the estimate of the wages and the allowances which the plaintiff would have been entitled to get if her service was not wrongfully terminated. The learned counsel for the Union of India did not make any submission challenging the quantum, of the damages or the said interest and, as such, we are not inclined to disturb that finding. We consider the said amount to be a reasonable estimate of the loss suffered by the plaintiff in view of the fact that she did not get any appointment or receive her salary, allowance, etc. from the Government of India from January 12, 1952 to 15th September, 1955.

9. A short point was raised by Mr. Kar that the plaintiff's suit should have been dismissed inasmuch as no consequential relief was prayed for in the plaint, as required under Section 42 of Specific Relief Act. This contention is also untenable. The plaintiff has asked not only for a declaration of her status but also for damages, which, in the instant case, as stated above, was founded on arrears of salary and allowances. It cannot therefore be urged that consequential relief was not asked for. The only other point raised by Mr. Kar relates to the notice under Section 80 of me Code of Civil Procedure. The plaint was amended by an order dated 16th March, 1955 but the amended portion of the plaint had not been set out in the notice under the said section, and as such Mr Kar contends, that the said notice under Section 80 is insufficient and invalid and, m the result, the suit is vitiated by material irregularity. In our view, there is no substance in this point. The point was neither argued in the court below nor was raised as an issue in this case. Even in the grounds of appeal, the point was not taken. Besides notice under Section 80 can be waived and there is no reason why we should not presume that notice for the amended portion of the plaint was not waived by the defendant in this case. In any event, there is no amendment on the prayer portion of theplaint and no new cause of action has been set out in the amendment.

10. No other contention having been made, the judgment of the court below, in our opinion, should be affirmed and the appeal should be dismissed with costs.

Certified for two Counsel.

Mitter, J.

11. I agree.


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