JUDGMENT - S. T. DESAI J.

This appeal raises questions of far reaching con sequences and the controversy relates to the true measure of the guarantee of equal opportunity in matters relating to employment or appointment to any office under the State, enjoined by Art. 16 of the Constitution. Is the constitutional guarantee confined to what is generally described as permanent employment or does it also embrace temporary employment terminable at short notice or at will? Simultaneously arises the question: Does this concept of equality in matters of employment ensures (sic) for the benefit of the citizen not merely in case of his initial engagement but also in case of matters relating to the termination of that engage ment? The appeal is brought against a decree of dismissal passed by the learned Judge, City Civil Court in a suit filed by the plaintiff-appellant for a declaration that the order of his suspension and removal from service was void and illegal and that he continued in the services of the Bombay Tele phone Workshop owned by the Defendant-Respondent, the Union of India. The plaintiff also claim ed arrears of salary till date of suit, and thereafter till judgment.

(2) The plaintiff was engaged in March 1944 as a Mistry in the Bombay Telephone Workshop by its then Manager. He was granted some promotions and in 1949 his total emolument inclusive of allowances was Rs. 136 per month. There was a strike and he was arrested on 9-7-1949 and detain ed under the provisions of the Bombay Public Security Measures Act. By an Order dated 21-7-1949 the plaintiff was suspended from duty with effect from the date of his arrest and detention. There after he was served with an order dated 29-3-1950 terminating his services with effect from 9-7-1949. that is from the date of his arrest. He was released from detention on 25-10-1950. Soon after his release he applied to the Manager of the Workshop for his reinstatement which was refused. He applied to the Authority under the Payment of Wages Act for arrears of his dues which application was rejected. In an appeal against that order preferred by him to the Small Cause Court he was award ed his dues on the ground that there could be no retrospective suspension or dismissal. He there after brought this suit and the contention set out in his plaint was that he was a civil servant in the employment of the Government of India and he

could not be removed or dismissed from service until he had been given a reasonable opportunity of showing cause against the action proposed to be taken. He also contended that the orders of suspension and removal or dismissal were illegal and void. At a later stage he was permitted to amend his plaint and by the amendment it was pleaded inter alia that "the order of removal was in violation of Arts. 14 and 16 of the Constitution inasmuch as the plaintiff was arbitrarily picked up and sacked". The defendant raised various contentions in Written Statement and the principal defence was that the plaintiff was a temporary employee and was, therefore, not entitled to any of the reliefs sought by him. After the amendment of the Plaint the Defendant filed a supplemental Written Statement and in answer to the plea found ed on Arts. 14 and 16 of the Constitution it was only stated, "The defendant denies that the order of removal is in violation of Arts. 14 and 16 of the Constitution". There was no express denial of the allegation of fact that the plaintiff had been arbitrarily picked out and sacked. Of this more here after.

(3) A number of issues were raised by the learned Judge. In the statutory notice under S. 80 of the Civil Procedure Code given by the Plaintiff to the Defendant he had not expressly asked for arrears of salary and that part of his claim in suit accordingly to the learned Judge necessarily failed. The learned Judge after referring to certain decisions held that Art. 311 of the Constitution did not apply to the case of a temporary servant and therefore the Plaint

Click Here to Read the rest of this document