( 1 ) THIS first appeal by the plaintiff is against the dismissal of his suit by the additional Civil Judge First Class, Raipur.

( 2 ) THE plaintiff was employed as a Kamdar in the Agriculture Department. He was suspended on 14-11-1946 with effect from 1-11-1946. On 13-3-1948, an order was passed dismissing him from service with effect from 16-12-1948 (sic), A sum of Rs. 853/-/9 was paid by him on 29-10-1946 for shortage in recoveries made by him. After his dismissal, a challan was put up against him on 15-2-1948 that he had misappropriated Government cash. This criminal case was withdrawn on 1510-1954 by the State and consequently an order of acquittal was passed. The appellant filed the present suit on 1-12-1955.

( 3 ) THE plaintiff's case is that he was dismissed from service without any departmental enquiry, contrary to the provisions in Section 240 (3) of the government of India Act. Consequently, the dismissal was wrongful and ineffective. He further stated that the dismissal was on account of an alleged charge of misappropriation of money which was not proved in the criminal case. He was, therefore, entitled to reinstatement in service. He claimed a declaration that he was in Government service, as the order of dismissal was wrongful. He also claimed a refund of the amount of Rs. 853-0-9 paid by him to Government and an amount of Rs. 3892/14/9 as arrears of pay.

( 4 ) THE State Government pleaded that the plaintiff was only a temporary servant, that he had committed an irregularity in distributing taccavi in cash instead of in kind as required by rules, that he had misappropriated Government money, that his dismissal was proper and that he was entitled to no relief. As regards the criminal prosecution, it was admitted that it was withdrawn, but the reason assigned for this was that material documents had been lost from the record. It was also stated that the plaintiff had admitted his guilt in a memo addressed to shri Sarvate, E. A. D. and had paid the amount of Rs. 853/- willingly. It was finally stated that the claim was barred by lime.

( 5 ) THE plaintiff in his reply admitted that he distributed taccavi in cash instead of in kind, but he explained that he did so at the instance of his superior Shri Dewan. He admitted having written something on 21-10-1946 in the presence of Shri sarvate, E. A. D. , but pleaded that this was under undue influence.

( 6 ) THE trial Court found that the dismissal of the plaintiff was without any departmental enquiry and was therefore contrary to Section 240 (3) of the government of India Act. It also held that the status of the plaintiff as a temporary servant was not material. The irregularity in distribution of taccavi was held not proved. However, the claim was dismissed, as it was barred by lime.

( 7 ) THE learned judge of the trial Court was in error when he held in paragraph 14 of the judgment that there is no evidence on record to show that taccavi was distributed in cash. This fact was not in issue after the rejoinder of the plaintiff admitting that he had done so. On the contrary, his explanation that he did so at the instance of his superior Shri Dewan has not been made out. He had thus committed an irregularity in distributing taccavi.

( 8 ) THE so-called admission of guilt made on 26-10-1946 is not on record and it is therefore difficult to say what was admitted. It related probably to the amount of embezzlement. Shri A. P. Sen for the appellant conceded before us that the claim for refund of the amount paid on this account is barred by time and did not press this part of the relief. We need not, therefore, say anything about the defalcation.

( 9 ) SHRI H. L. Khaskalam for the State contended that as the plaintiff was a temporary servant, Government could terminate his services at any time without any departmental enquiry. It is true that the services of temporary Government servants can be terminated after reasonable notice without any departmental enquiry.