Back
1970 Supreme(Pat) 22
HIGH COURT OF PATNA
U.N. Sinha & Kanhaiyaji, JJ.
PARMESHWAR SINGH @ PARMESHWAR PD. - Petitioner
VERSUS
STATE Of BIHAR & Ors. - Respondents
C.W.J.C. No. 1285 of 1968
Decided On : 6th February, 1970
Advocate Appeared:
Devendra Prasad Sharma, Kamla Prasad Roy and Binod Kumar Roy for the Petitioner;
Yadunath Sharan Singh and Tarakant Jha (Standing Counsel No.2) for the Respondents.
A temporary employee can be terminated without notice if the terms of their appointment allow for it.
Headnote:
BIHAR TOWN PLANNING AND IMPROVEMENT TRUST ACT, 1951 - SECTION 31, RULE 28, RULE 40 - TERMINATION OF SERVICE - TEMPORARY EMPLOYEE - NO NOTICE REQUIRED.
Fact of the Case:
Petitioner, a temporary work-charged Choukidar, challenged the order terminating his service without notice and salary from June 1, 1967, to April 18, 1968. He argued that the order was illegal as the Chief Engineer, who passed the order, lacked the authority to do so and that he should have been given a month's pay in lieu of notice.
Finding of the Court:
The court found that the petitioner's appointment letter clearly stated that his service was temporary and could be terminated without notice. The court also found that the petitioner had absented himself from duty from October 1, 1967, and that the order of discharge was made effective from that time.
Issues: 1. Whether the Chief Engineer had the authority to terminate the petitioner's service. 2. Whether the petitioner was entitled to notice before his service was terminated. 3. Whether the petitioner was entitled to a month's pay in lieu of notice.
Ratio Decidendi: 1. The court held that the Chief Engineer had the authority to terminate the petitioner's service as the order was passed on the orders of the Chairman of the Trust. 2. The court held that the petitioner was not entitled to notice before his service was terminated as his appointment letter clearly stated that his service was temporary and could be terminated without notice. 3. The court held that the petitioner was not entitled to a month's pay in lieu of notice as there was no provision of law requiring the Trust to give such notice.
Final Decision: The court dismissed the petition.
The petitioner of this writ application has prayed that an order dated the 17th April, 1968 incorporated In Annexure 1, may be quashed and the petitioner be paid his salary, including allowances, for the period from the 1st June, 1967 to the 18th April, 1968.
2. The relevant facts stated in the application are as follows: It is stated that the petitioner had been appointed as a temporary work charged Choukidar by an order dated the 19th April, 1965 (copy of which has been appended as Annexure 3 to the supplementary affidavit filed by the petitioner) and since then the petitioner had been working in that post. It is alleged that all of a sudden his services were terminated on the 17th April, 1968. with retrospective effect from the 1st October, 1967. This is the impugned order incorporated in Annexure 1. According to the petitioner, the reasons given in Annexure 1 were erroneous as the petitioner had never absented himself from duty and the petitioner had never been given any notice or warning to that effect. It is alleged that the order dated the 17th April, 1968 had been served on the petitioner on the 18th April, 1968 and that order having been passed by the Chief Engineer of the Patna. Improvement Trust, respondent no. 4, is an illegal one, as that respondent had no authority to terminate the petitioner’s service, as he had been appointed by the Executive Officer of the Trust, who is respondent no.3. It is alleged that stigma attaches to the order terminating the petitioner’s service, which is not a simple order to that effect. It is further alleged that the petitioner's service could not have been terminated without notice, after with holding his emoluments from 1st June 1967 to 18th April, 1958. In the application the petitioner has given certain reasons alleging that on account of these his service Were terminated without notice and without giving him a month's pay. It is alleged that on the 22nd April, 1968 the petitioner had filed an appeal to the Chairman of the Trust, who is respondent no. 2, but no relief has yet been granted to him. By the supplementary affidavit the petitioner has filed certain further annexures including Annexure 3 and a notice given under Section 80 or the Code of Civil Procedure.
3. A. counter affidavit has been filed on behalf of respondent no. 2 and in substance the contentions raised are that he petitioner had been appointed by the Chairman of the Trust and that Annexure 3 had been issued by the Executive Officer at the instance of the Chairman. Similarly, it h alleged that the order of discharge had also been passed by the Chairman and Annexure 1 had been issued under the signature of the Chief Engineer at the instance of the Chairman of the Trust. It is alleged that the petitioner had absented himself from duty as per report appended as Annexure I to the counter affidavit that is to say, he was absent from the 1st October, 1967.
4. Learned counsel for the petitioner has argued that the petitioner had been appointed by the Executive Officer of the Trust and the Chief Engineer had no authority to dismiss him. This contention is not at all valid in view of the recitals made in Annexures 3 and 1 respectively. By Annexure 3 the Executive Officer had sent a communication to the petitioner to the effect that the Executive Officer had been directed to inform the petitioner that he had been appointed as a temporary Choukidar on work charge basis on certain salary and cost of living allowance. In Annexure 1 the Chief Engineer had informed the petitioner that the order of discharge was being communicated to the petitioner on the orders “of the Chairman of the Trust", Therefore, it is clear that the contention raised on behalf of the Chairman in his counter-affidavit is correct and that the petitioner had been appointed and discharged on orders of the Chairman of the Trust. The second point argued by learned counsel for the petitioner is that his client could not have been dismissed or discharge
