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IN THE HIGH COURT OF BOMBAY
Patel D.V. , J.
Appellants: State of Bombay
Vs.
Respondent: N.T. Advani
Appeal No. 192 of 1959Decided On: 29.01.1962
Counsels:
For Appellant/Petitioner/Plaintiff: R.B. Kotwal, Govt. Pleader
For Respondents/Defendant: A.G. Kriplani, Adv.
SERVICE LAW - CONTRACT OF EMPLOYMENT - VALIDITY - TERMINATION OF SERVICE - NOTICE - PUBLIC SERVICE COMMISSION CONSULTATION - ARTICLE 320(3)(B) OF THE CONSTITUTION OF INDIA - INTERPRETATION.
Fact of the Case:
The plaintiff, an Assistant Director of Public Health, was due to retire at the age of 55 on 18th October 1953. He agreed to work as a Junior Malariologist in the same Department and was assured by his superior officers that even after superannuation he would be continued in service from 18th October 1953 to 13th March 1955. On 14th October, 1953, before the due date of his retirement, the Government issued an order re-employing him for the period from 18th October 1953 to 13th March 1955. The plaintiff accepted the order and continued to work as a Junior Malariologist. On 8th May 1954, he was informed by the Director of Public Health that his services would be terminated. He made representations to the Government for continuance of his service but ultimately on 2nd June 1954, he was relieved of his office. The plaintiff filed a suit for damages, claiming that his termination of service was wrongful and void.
Finding of the Court:
The court held that the order dated 14th October 1953, re-employing the plaintiff, amounted to a contract of service and that the termination of his service before the expiry of the contract period was invalid. The court also held that the plaintiff was not required to consult the Public Service Commission before accepting the re-employment, as the provisions of Article 320(3)(b) of the Constitution of India are not mandatory.
Issues: 1. Whether the order dated 14th October 1953, re-employing the plaintiff, amounted to a contract of service? 2. Whether the termination of the plaintiff's service before the expiry of the contract period was valid? 3. Whether the plaintiff was required to consult the Public Service Commission before accepting the re-employment?
Ratio Decidendi: 1. The court held that the order dated 14th October 1953, re-employing the plaintiff, amounted to a contract of service because it was issued by the appropriate authority in the name of the Governor of Bombay, it was communicated to the plaintiff, who accepted it and continued in office thereafter, and it was published in the Bombay Government Gazette. 2. The court held that the termination of the plaintiff's service before the expiry of the contract period was invalid because it was not done in accordance with the procedure prescribed by the Fundamental Rules, the Bombay Civil Services Conduct, Discipline and Appeal Rules, and Article 311 of the Constitution. 3. The court held that the plaintiff was not required to consult the Public Service Commission before accepting the re-employment, as the provisions of Article 320(3)(b) of the Constitution of India are not mandatory.
Final Decision: The court dismissed the appeal and confirmed the decree passed by the City Civil Court, awarding damages to the plaintiff.
1. This is an appeal by the State against the decree passed by the City Civil Court, for a sum of Rs. 8062-2-0 made against it in favour of the plaintiff.
2. The short facts in the case are as follows: The plaintiff entered the service of the State in 1933 as an Assistant Director of Public Health, and was in due course confirmed as a permanent holder of the office. He was due to retire at the age of 55 on the 18th of October 1953. He says in the plaint that in the ordinary course, he would have been promoted to the post of the Director of Public Health in about February 1953 but as he was due to retire within about seven months, he agreed to work as a Junior Malariologist in the same Department and he was assured by his superior officers that even after superannuation he would be continued in service from 18th October 1953 to 13th March 1955. On 14th October, 1953, before due date of his retirement, Government issued an order as follows:
"Shri N. T. Advani, Junior Malariologist, Malaria Organisation, Government of Bombay, Local Self-Government and Public Health Department. Resolution No. HDO 1853. Bombay Castle, 14th October 1953. Letter from the Director of Public Health for the Government of Bombay No. Section 2(M)-A, dated 7th July 1953.
Resolution:- Government is pleased to direct that Shri N. T. Advani, Assistant Director of Public Health, now working as Junior Malariologist, Malaria Organisation should be re-employed for a period from 18th October 1953, the date of his superannuation to 13th March 1955, the date on which the sanction for the post of Junior Malariologist will expire.
2. The requisite notification should be published in the Bombay Government Gazette.
By order and in the name of the Governor of Bombay.
G. B. Deshmukh, Deputy Secretary to Government".
3. The Notification in respect of the same was published in the Government Gazette and this order or direction was communicated, to the plaintiff, the Asistant Director of Public Health, Malaria, at Poona and also to the Accountant General, Bombay, as required by law. In pursuance to this order, which he accepted, he continued to work as a Junior Malariologist, when on 8th of May 1954 he was informed by the Director of Public Health that his services would be terminated. He made representations to the Government for continuance of his service but ultimately on 2nd of June 1954, he was relieved of his office and another gentleman was appointed to lake charge from him. In answer to his representation, the Government wrote to him that he was re-employed as a Junior Malariologist on a purely temporary basis and though the order of his re-employment specified that he was to be in service up to 13th March 1955, it was open to the Government to determine his appointment before the expiry of the said period. The plaintiff alleged that he was relieved from service without proper authority, that there was no order or notification by the Government terminating his service, that he could only be discharged from service by an authority competent to appoint him and that the termination of his service was in violation of the Service Rules and Article 311 of the Constitution and was ultra vires, wrongful and void. In the result, he claimed damages amounting to Rs. 8062-2-0. The plaintiff also contended that in any event, the order made by the Director of Public Health on the 8th of May 1954 and another dated 21st June 1954 did not amount to termination of his service and therefore he was entitled to the balance of his pay, for the period in dispute.
4. The State contested the suit. It admitted the order dated the 14th of October 1953 but contended that since the appointment of the plaintiff was for a period exceeding one year, if was subject to the consultation of the Public Service Commission and inasmuch as the Public Service Commission did not confirm the re-employment, his services were properly terminated by the Government by its letter dated 8th May 1954. The Sta
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