JUDGMENT

Shivaraj V. Patil, J.-Delay condoned.

2. Leave granted

3. The facts that are not in dispute are that the appellant was appointed as Assistant District Manager in M.P. State Commodities Trading Corporation Limited, Indore (the respondent herein) by order No. 4383 dated 10.9.1980. As per the terms of the appointment, the services of the appellant could be terminated on one month s notice or on payment of one month s salary in lieu of notice by either side. The respondent is a Government company within the meaning of Section 617 of the Companies Act, 1956. The respondent by order dated 11.5.1981 terminated the services of the appellant with effect from 11.6.1981. The notice for termination was served on the appellant on 8.6.1981 and he was relieved on 10.6.1981. The appellant was not paid one month s salary also.

4. Faced with the situation, the appellant filed a suit for declaration that the order terminating his services was illegal and that he be treated as continuing in the service of the respondent contending that the order of termination of services was in contravention of the terms of employment.

5. The respondent resisted this suit on the ground that the relationship between the parties was contractual of master and servant and as such the appellant could not claim specific performance of the contract; the respondent was under no statutory obligations to keep the appellant in service.

6. The trial Court decreed the suit of the appellant holding that neither the appellant was given one month s notice nor one month s salary as per condition No. 5 of Exbt. P1 - the appointment order dated 10.9.1980. According to the trial Court, the order of termination of services was one passed without complying with the condition precedent. It was void. Hence the suit was decreed.

7. The respondent, aggrieved with the judgment and decree of the trial court, filed appeal in the court of District Judge, Bhopal. The learned District Judge allowed the appeal, set aside the judgment and decree passed by the trial Court and declared that the appellant was only entitled to one month s salary in lieu of notice from the respondent-employer. According to the learned District Judge, the only question that arose for determination in the appeal was whether the appellant was entitled to a declaration that termination of his services was void ab initio and he could be treated still to be in service. He referred to the decision of this Court in Kusum Gupta v. Haryana State Small Scale Industries Corporation1 in which it is held that the Corporation was bound to pay one month s salary to the employee while terminating her services but did not pay the same and as such the order of termination of the services was void. The learned District Judge however took the view that no statutory restriction existed in the case of the appellant and there was only contractual liability arising out of master and servant relationship. Hence he was not entitled for re-instatement in service. He preferred to rely upon a full bench decision of the High Court in Central Co-operative Bank Limited v. Shibulal & Others2 to state that a discharged employee was only entitled to one month s salary in lieu of notice; but on the ground of non-payment of one month s salary, the order of termination of service would not be illegal.

8. The appellant filed second appeal in the High Court of Madhya Pradesh at Jabalpur. In the said appeal, the appellant urged that the order of termination of his services was against the principles of natural justice as well as against the Rules relating to his services. According to him, the Rules that govern the service conditions of the State Government Servants were adopted by the respondent-corporation; since the Rules were not produced by the respondent, he produced them before the first appellant court with an application under Order 41 Rule 27 of the CPC. But the said application was not at all considered by the first appellate court. The learn