Employees State Insurance ... vs Bal Gangadhar Shetty (Since ...
2004 Latest Caselaw 175 Bom

JUDGMENT

C.K. Thakker, C.J.

1. This appeal is filed by Employees State Insurance Corporation (original defendant No. 2) ("Corporation" for short) against respondent (original plaintiff), being aggrieved and dissatisfied with the judgment and decree of the learned single Judge of this Court dated 5th June, 1989 in First Appeal No. 650 of 1979. By the judgment impugned, the learned single Judge allowed the appeal filed by the respondent- plaintiff, set aside the judgment and decree passed by Bombay City Civil Court dated 20th October, 1978 in S.C.Suit No. 4595 of 1961 and decreed the suit.

2. The case of the appellant-Corporation is that respondent No. 1-original plaintiff, was appointed as Upper Division Clerk (UDC) on 10th October, 1955. His initial appointment was on "temporary basis". He was on a probation for a period of one year and his services were liable to be terminated without assigning any reason during the said period of one year. Thereafter his services were liable to be terminated without assigning any reason by giving one month's notice in writing or by paying salary of one month in lieu of notice. According to the Corporation, after a period of one year, the probation of the plaintiff was extended for six months as he had failed to pass typing test. The Corporation, because of unsatisfactory work of the plaintiff, issued notices to him on 14th November, 1957 and 7th December, 1957. Ultimately, by an order dated 23rd January, 1958, services of the plaintiff were terminated. Being aggrieved by the order of termination, the plaintiff filed the above suit against the Union of India as also against the appellant-Corporation.

2. In the suit, the plaintiff contended that the action of termination dated 23rd January, 1958 was illegal and amounted to mala fide exercise of power. In substance, it was an order of dismissal from service visiting evil consequences and as the said action was taken without issuing notice, calling for explanation and affording opportunity of hearing, it was violative of principles of natural justice. The plaintiff was, therefore, entitled to a declaration that the action was illegal, unlawful and invalid and also for consequential benefits of payment of salary and other reliefs.

3. The appellant herein contested the suit by filing a written statement denying the averments made and allegations levelled in the plaint. It was contended that the plaintiff was appointed on probation for one year and thereafter he was ordered to be continued on temporary basis until he would be confirmed on a permanent post as and when such eventuality would arise. The period of probation was extended for two years ending on 24th October, 1957. Since, however, the work and conduct of the plaintiff was not found satisfactory and there was failure on his part to pass requisite typing test during the probationary period which was an essential condition of contract of service, his services were liable to be terminated without assigning any reason and in accordance with terms and conditions of letter of appointment, an order was made on 23rd January, 1958 and the action was taken. The said action, therefore, cannot be termed illegal, invalid or otherwise unlawful. The action was neither penal nor punitive and the plaintiff had no right to make grievance. It was stated that a Memorandum was issued on 24th November, 1957. Some incident dated 3Oth November, 1956 was referred to but after preliminary inquiry, it culminated into a warning to the plaintiff which was communicated by a letter dated 18th March, 1957 and nothing remained thereafter. It was also stated that merely because other employees got exemption from passing typing test, it would not entitle the plaintiff to get such exemption or concession and If an action was taken by the Corporation of terminating his services, the plaintiff cannot make complaint against such legal action of the Corporation. It was, therefore, prayed that the suit be dismissed.

4. On the basis of the pleadings of the parties, necessary issues were framed by the trial Court. Evidence was led by the parties and at the conclusion, the trial Court held that it was not proved by the plaintiff that the order of termination of his services dated 23rd January, 1958 was illegal, void or inoperative. According to the Court, the plaintiff was unable to prove that he was substantively appointed to a permanent post as averred in the plaint and hence his termination could not be termed illegal. The trial court also held that it was proved by the Corporation that the appointment of the plaintiff was temporary and could validly be terminated during temporary status of the plaintiff. In view of the said findings, the trial court held that the plaintiff was not entitled to declaration or to other relief and accordingly the suit was dismissed.

5. Being aggrieved by the order passed by the trial court, the plaintiff preferred an appeal. The learned single Judge held that on both the grounds the appeal was required to be allowed. Firstly, on the showing by the Corporation, the plaintiff had ceased to be on probation on the date the impugned order was passed, and hence his services could not have been terminated. Secondly, the action of terminating services of the plaintiff was not an action in simpliciter but punitive and hence the action was illegal and unlawful. The appeal filed by the plaintiff was, therefore, allowed. The order passed by the trial court dismissing the suit of the plaintiff was set aside and the suit of the plaintiff was decreed with costs all throughout. Other directions were also issued by the learned single Judge.

6. It is that order passed by the learned single Judge in the First Appeal which is challenged in the present Letters Patent Appeal.

7. The Appeal was admitted by a Division bench on 26th October, 1990. It appears that during the pendency of the Letters Patent Appeal, original plaintiff died and his heirs and legal representatives were brought on record.

8. We have heard the learned counsel for the parties.

9. Mr. Talsania, learned counsel for the appellant, raised the following contentions;

(i) First Appeal was decided in absence of learned counsel for the Corporation which could not have been done. The Letters Patent Appeal, therefore, deserves to be allowed by remanding the matter to the learned single Judge to decide it in accordance with law, after hearing the learned counsel for the Corporation.

(ii) Under the relevant Rules, the plaintiff had not become permanent and was not entitled to the benefits as permanent employee. The learned single Judge has committed an error of law in granting the benefits on that basis.

(iii) Termination of services of the plaintiff was an order of termination simpliciter without stigma. It was, therefore, not necessary to issue notice, call for explanation or conduct an inquiry. The learned single Judge was in error in holding that the action was penal or punitive and could not have been taken without following principles of natural justice.

(iv) Since the appointment of plaintiff was on probation, he was not entitled to protection under the relevant rules and decree for reinstatement could not have been passed in his favour.

(v) Final directions issued by the learned single Judge are unlawful and the learned single Judge could not have ordered the appellant- Corporation to grant consequential benefits mentioned in the impugned judgment.

10. The learned counsel for the respondent, on the other hand, supported the order passed by the learned single Judge and directions issued by him. He submitted that counsel for the Corporation (respondent in First Appeal) did not remain present. The learned single Judge, therefore, was compelled to proceed with the matter. A party in default cannot take undue advantage of his own carelessness and get the decree set aside. Regarding permanency, it was submitted that the Rules are clear and as soon as the plaintiff completed two years, he became permanent. Once an employee becomes permanent/confirmed, his services cannot be terminated without following due process of law which was not done. The learned single Judge was therefore, right in setting aside the decree passed by the trial court and in allowing the appeal. Regarding directions, it was submitted that they were consequential directions passed in favour of the plaintiff and no grievance can be made by the Corporation. He, therefore, submitted that the appeal deserves to be dismissed with costs.

11. So far as the first contention raised by the Corporation, we find no substance therein. The learned single Judge has observed in the impugned judgment that the respondents counsel took "several adjournments" for considering their position after the decision of the Supreme Court in O.P. Bhandari v. Indian Tourism Development Corporation Limited, , but beyond taking adjournments, nothing was done by them. It was also observed that, even the day on which the matter was heard and decided, the Counsel as well as Advocate on record had "chosen not to remain present even to explain as to what were the instructions they had received from the Corporation. The learned single Judge accordingly proceeded with the matter and decided it in accordance with law. In our opinion, therefore, it was not a case of not giving an opportunity of hearing by the learned single Judge to the Corporation, but it was a case of not availing an opportunity by the learned Advocates of the Corporation and hence there is no legitimate reason to make complaint against the decision of the learned single Judge on that count. In any case, we have heard the learned counsel for the appellant-Corporation at length even on merits.

12. The second question relates to merits of the matter which would cover contentions (ii), (iii) and (iv). According to the learned counsel for the Corporation, the appointment of the petitioner was temporary and on probation. After the period of probation, he was not confirmed. There is no provision for automatic and/or deemed confirmation, nor specific, express or explicit order of confirmation was passed in favour of the plaintiff. He did not hold the post as permanent/confirmed employee, and hence his services were liable to be terminated in accordance with an order of appointment. Hence, when an action was taken, the same could not be held illegal or unlawful.

13. We are unable to uphold the said contention. As already stated, the plaintiff was appointed by an order dated 10th October, 1955. The said order is on record. Condition Nos. 1 (i), (iii) and 8 are relevant. They read as under:

"1.(i) The appointment will be on a temporary basis for the present.

..... ..... ...... .......

(iii) He/She will be on probation for one year and during the first month of probation his/her services will be liable to termination without any notice or pay in lieu thereof and without assigning any reason therefor and thereafter during probation or during temporary tenure of appointment on one month's notice in writing or pay in lieu thereof and thereafter on three months notice in writing or pay in lieu thereof on either side.

8. During probation he will be required to pass the prescribed typing test failing which he will be liable to be discharged from service without any notice.

13. By an order dated 12th November, 1956, the plaintiff was Informed that he had failed to qualify himself in the typing test during his probationary period of one year. His probationary period was, therefore, extended by six months from 25th October, 1956. He was also informed that his failure to pass the typing test within the extended period of probation might render him liable to discharge from service of the Corporation without further notice. On 21st November, 1957, his prayer for grant of exemption from passing typing test was turned down. On 23rd January, 1958, an order of termination was passed against the plaintiff. The said order reads thus:

"In accordance with the terms of his appointment and the rules and regulations applicable to the employees of the Corporation, the services of Shri B.G. Shetty, a temp. U.D.C. under the Bombay Region of the Corporation are hereby terminated with immediate effect. He will be paid a sum equivalent to the amount of his pay plus allowances for one month in lieu of the period of notice due to him. The payment of allowances, will, however, be subject to the conditions under which such allowances are otherwise admissible.

Extraordinary leave sanctioned to him under the O.O. No. 2570 (E. dated 14.1.58, stands cancelled, with effect from this day.

Sd/- J.N. Agrawala, Regional Director"

14. Our attention was also invited by the learned counsel for the parties to the regulations called the Employees' State Insurance Corporation (Staff) Regulations. 1951 (hereinafter referred as "the said Regulations"). Regulation 14 provides for probation and confirmation. It is material for the purpose of controversy raised by the parties and may be quoted in extenso.

"14. Probation and confirmation (i) All employees shall be on probation for a period of six months from the commencement of service provided that the period of probation may in any case be extended by the appointing authority upto a total period of two years. Notwithstanding anything contained in regulation 13, during the first month of such period, he shall be liable to be discharged without any notice or pay in lieu thereof and thereafter at one month's notice or pay in lieu thereof by the appointing authority. An employee promoted from a lower class to a higher class of scale, shall also be liable to be reverted without notice at any time within one year of such promotion.

(ii) After satisfactory completion of the period of probation, an employee shall be confirmed provided the post against which he is employed on probation is permanent and substantively vacant, otherwise satisfactory completion of probation will only imply further retention in the post as a temporary employee." (emphasis supplied)

15. Regulation 26 deals with awarding of punishment. Clause (vii) thereof is material and reads thus;

"(vii) Where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment." (emphasis supplied)

Reading of Regulation 14 leaves no room of doubt that all employees are initially appointed on probation for a period of six months from the commencement of service. Such period of probation can be extended by the appointing authority from time to time subject to a total period of two years. It also provides that after satisfactory completion of the period of probation, an employee "shall be confirmed provided the post against which he is employed on probation is permanent and substantively vacant", otherwise satisfactory completion of probation would Imply further retention on the post as a temporary employee. Clause (vii) of Regulation 26 expressly states that where it is proposed to terminate the employment of a probationer, whether during or at the end of such period of probation, for any specific fault or on account of his unsuitability for the service he shall be apprised of the grounds of such proposal and also given an opportunity to show cause against it before orders are passed and employment is terminated.

15. From the above Regulations, therefore, one thing appears to be amply clear and it is that even if the Corporation was of the view that the plaintiff had not cleared typing test and hence his services were liable to be terminated, he ought to have been informed about the said ground, ought to have been given an opportunity to show cause as to why such an action should not be taken against him and only thereafter an order could have been passed. It is not even the case of the Corporation that any such notice was issued, the plaintiff was asked to offer his explanation, was given an opportunity to show cause why his services should not be terminated on that ground and thereafter the order was passed. Obviously, therefore, the said ground was not available to the Corporation. We may also state that the said ground was not pressed in service by the Corporation before the Courts below. The services of the plaintiff, hence, could not have been terminated on that ground. We may also state at this stage that the above ground was not pressed before us at the time of hearing of the Letters Patent Appeal by the learned counsel for the appellant-Corporation.

16. Serious grievance made by the learned counsel for the Corporation before us was that as the plaintiff was not a permanent/confirmed employee and was on probation, in accordance with the Regulations, his services could have been terminated and action had been taken which was in consonance with the provisions of the Regulations. The trial court was, therefore, right in dismissing the suit of the plaintiff and the learned single Judge committed an error of law in allowing the appeal. The question, therefore, is as to whether the plaintiff after completion of period of probation continued to remain on probation or was confirmed on completion of the maximum period laid down in the Regulations.

17. On this point, the learned counsel for the parties referred to various decisions of the Supreme Court. The leading decision on the point is of the Constitution Bench of the Supreme Court in State of Punjab v. Dharam Singh, . There, a probationer officiating on a permanent post was appointed on probation and was allowed to continue beyond the maximum period of probation fixed under the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961. Rule 6 of the Rules provided appointment of members of the service on probation in the first instance for one year. Such member was not entitled to be confirmed unless he was appointed against a permanent vacancy. Sub-rule (3) of Rule 6 stated;

"On completion of the period of probation the authority competent to make appointment may confirm the member in his appointment or if his work or conduct during the period of probation has been in his opinion unsatisfactory he may dispense with his services or may extend his period of probation by such period as he may deem fit or revert him to his former post if he was promoted from some lower post:

Provided that the total period of probation including extensions, if any, shall not exceed three years." (emphasis supplied).

Considering the phraseology used in the proviso to Rule 6 (3) of the Rules, the Constitution Bench held that continuance of an employee beyond the period of two years would mean that such employee would be deemed to have been confirmed on the post after completion of two years. The Court noted that though the appointing authority had not passed formal order of confirmation in writing, it should be presumed to have passed such order by allowing the employee to continue on the post after completion of maximum period of probation. It was also observed that after confirmation, the authority had no power to dispense with his services on the ground that his conduct during the period of probation was unsatisfactory. Such an order would deprive him of his right and would amount to removal from service by way of punishment. Since it could not have been done without following procedure laid down in rules relating to punishment, the action was bad in law.

18. In Samsher Singh v. State of Punjab and Anr., , a larger Bench of the Supreme Court again considered the law relating to probationers. Rule 7 of the Punjab Civil Services (Judicial Branch) Rules, 1951 provided that every subordinate Judge, in the first instance, be appointed on probation for two years but his services might be extended from time to time expressly or impliedly so that the total period of probation including extension, if any, does not exceed three years. Explanation to Rule 7(1) laid down that the period of probation shall be deemed to have been extended if a subordinate Judge is not confirmed on the expiry of the period of probation.

19. Considering the above Rule and distinguishing Dharam Singh, the majority observed:

"Any confirmation by implication is negatived in the present case because before the completion of three years the High Court found prima facie that the work as well as the conduct of the appellant was unsatisfactory and a notice was given to the appellant on October 4, 1968 to show cause as to why his services should not be terminated. Furthermore, Rule 8 shows that the employment of a probationer can be proposed to be terminated whether during or at the end of the period of probation. This indicates that where the notice is given at the end of the probation the period of probation gets extended till the inquiry proceedings commenced by the notice under Rule 9 come to an end. In this background the explanation to Rule 7(1) shows that the period of probation shall be deemed to have been extended impliedly if a Subordinate Judge is not confirmed on the expiry of this period of probation. This Implied extension where a Subordinate Judge is not confirmed on the expiry of the period of probation is not found in Dharam Singh's case (supra). This explanation in the present case does not mean that the implied extension of the probationary period is only between two and three years. The explanation on the contrary means that the provision regarding the maximum period of probation for three years is directory and not mandatory unlike in Dharam Singh's case and that a probationer is not in fact confirmed till an order of confirmation is made.

In this context reference may be made to the proviso to Rule 7 (3). The proviso to the rule states that the completion of the maximum period of three years' probation would not confer on him the right to be confirmed till there is a permanent vacancy in the cadre. Rule 7 (3) states that an express order of confirmation is necessary. The proviso to Rule 7 (3) is in the negative form that the completion of the maximum period of three years would not confer a right of confirmation till there is a permanent vacancy in the cadre. The period of probation is therefore extended by Implication until the proceedings commenced against a probationer like the appellant are concluded to enable the Government to decide whether a probationer should be confirmed or his services should be terminated. No confirmation by implication can arise in the present case in the facts and circumstances as also by the meaning and operation of Rules 7(1) and 7(3) as aforesaid."

20. In Wasim Beg v. State of U.P. and Ors., , the Apex Court again considered the provision relating to confirmation of services of a probationer. The Court observed that whether an employee at the end of probationary period automatically gets confirmation on the post or whether an order of confirmation or any specific act on the part of an employer confirming an employee is necessary will depend upon the provisions in the relevant Service Rules relating to probation and confirmation. It was indicated that broadly there are two sets of authorities dealing with the question; (i) Cases where the Rules provide for a maximum period of probation beyond which the probation cannot be extended. In such cases, it has been held that at the end of maximum probationary period, there will be a deemed confirmation of an employee unless Rules provide to the contrary; (ii) Other cases, where there is no maximum period prescribed for probation and either there is a rule providing for extension of probation or which requires a specific act on the part of an employer (either by issuing an order of confirmation or any similar act) which would result in confirmation of an employee. In those cases, unless there is an order of confirmation or an act of similar nature, the period of probation would continue and there would not be deemed confirmation at the end of prescribed probationary period. The Court, however, noted that even where the Rules prescribe maximum period of probation if there is a further provision in the Rules for continuation of such probation beyond the maximum period, there will be no deemed confirmation and the probation period will be deemed to be extended. Referring to Samsher Singh, it was observed that though maximum period of probation was prescribed under the Rules, the Court held in that case that the probation was deemed to have been extended. Similar view was taken in Municipal Corporation v. Ashok Kumar Misra, and Satya Narayan Athya v. High Court of M.P.,

21. In Jai Kishan v. Commissioner of Police, (1995) Supp (3) SCC 364, the Court considered Rule 5 (e) (i) of the Central Civil Services (Temporary Service) Rules, 1966 where the maximum period of probation was prescribed as three years. Proviso to the said Rule, however, stated that "the Competent Authority may extend the period of probation but in no case shall be the period of probation extend three years in all". Sub-clause (iii) of Rule 5 (e) provided that after successful completion of period of probation, the employee shall be confirmed in the Delhi Police by the Competent Authority, subject to the availability of permanent post.

22. Keeping in mind the phraseology in Rule 5 (e), the Court held that confirmation in service was a condition precedent for continuation as a member of Delhi Police Service. The incumbent was given opportunity for a period of three years of probation and even thereafter, two years' more time was given to him to improve his performance but as he could not improve, his services were rightly terminated and the action could not be said to be bad in law.

23. In High Court of M.P. through Registrar and Ors. v. Satya Narayan Jhavar, (2001) 7 SCC 161 , the Supreme Court dealt with a similar question. In paragraph 11, the Court observed;

"The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."

The court considered Rule 24 of the M.P. Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955 and observed that whereas Sub-rule (1) of Rule 24 provided maximum period of probation, the question of confirmation of such probationer was dependent upon fitness and his passing of the departmental examination by the highest standard as prescribed. It necessarily stipulated that the question of confirmation would be considered at the end of period of probation and on such consideration, if the probationer was found suitable by the appointing authority and had passed the prescribed examination, an order of confirmation could be issued. According to the Court, it was well settled that an order of confirmation was a positive act of the employer who was required to pass an order in accordance with the Rules governing the question of confirmation subject to a finding that the probationer was fit for confirmation. It, therefore, could not be held that since the maximum period had been provided, at the end of such period, the probationer must be deemed to be confirmed. The Court also considered Sub-rule (3) of Rule 24 of the Rules under which power was conferred on the Governor to dispense with services which could be exercised at any time after the period of probation, if the probationer was found unsuitable or had failed to pass the prescribed departmental examination.

24. In our opinion, in the facts of the case, the contention of the learned counsel for the appellant-Corporation that the plaintiff was continued to remain on probation and hence his services could be terminated cannot be upheld. So far as legal position is concerned, it is fairly well settled. Three types of pages have come up before Courts and they have been extensively dealt with by the Supreme Court in the cases referred to hereinabove. In the instant case also, as rightly submitted on behalf of the Corporation. Rule 14 deals with the situation where a probationer satisfactorily completes the period of probation. At the same time, however, it is pertinent to note that an appropriate action is required to be taken by the Corporation before the period of probation is over- initial or extended. If no action is taken at all and the maximum period of probation is over, the provision relating to "deemed confirmation" would come into play. In all the cases on which reliance was placed on behalf of the Corporation, an action was taken during the period of initial period of probation or extended period of probation, and before the deeming provision operated which is not the case here.

25. In Jai Kishan, an employee was appointed on 9th September, 1982 and he was granted extension. Since he could not improve, his services were terminated.

26. In Wasim Beg also, the employee was allowed to continue but as he was found unsuitable, an action was taken.

27. In the case on hand, the petitioner was appointed on 10th October, 1955. The maximum period of probation as laid down under the Regulations is two years. The power, therefore, could be exercised on or before 10th October, 1957. Had an action been taken before that period, presumably, it would be open to the Corporation to contend that in the facts and circumstances, the plaintiff could not have claimed the benefit of confirmation. It was, however, not done by the Corporation. The notice was issued on November 14, 1957 and the order was passed on 23rd January, 1958 which was not permissible.

28. The learned counsel, no doubt, contended that an action was taken after few days of completion of the period of probation. He, therefore, submitted that the action was taken within a "reasonable time". Hence, it cannot be said to be illegal, improper or contrary to law.

29. We are unable to uphold the contention. We must construe and apply the Rules and Regulations in force. The Court cannot be oblivious or unmindful of the maximum period of probation laid down in the Regulations. All the provisions of the Regulations, therefore, must be interpreted conjointly, harmoniously and reasonably. We must, therefore, hold that it was open to the Corporation to take an action by invoking the power under Regulation 14 before the expiry of maximum period of probation of two years. If no such action has been taken, Regulation 14 would operate and thereafter it was not open to the Corporation to treat the plaintiff as probationer and to make an order on the basis that he was still a probationer. When a period is prescribed by an Act, Rule or Regulation, the concept of "reasonable time" cannot be pressed in service. To us, therefore, the learned single Judge was right in upholding the contention of the plaintiff that on 23rd January, 1956, when the order of termination was passed against the plaintiff, he was no more a probationer and hence it was not open to the Corporation to exercise power under Rule 14. The action was, therefore, illegal and unlawful.

30. In view of our conclusion on the first question, it is not necessary to consider the alternative contention of the learned counsel for the plaintiff that the action was punitive and penal in nature and as the action has been taken without complying with the principles of natural justice, it was illegal. It is also not necessary to deal with the following cases on which reliance was placed by the learned counsel for the parties.

(i) Purshottam Lal Dhinra v. Union of India, ;

(ii) O.P. Bhandari v. Indian Tourism Development Corporation, ;

(iii) Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta, ;

(iv) Chandra Prakash Shahi v. State of U.P., ; and

(v) Pavanendra N. Verma v. Sanjay Gandhi PGI of Medical Sciences, .

31. So far as the last point raised by the learned counsel for the appellant-Corporation is concerned, in our considered opinion, it is well founded and must be upheld. While allowing the appeal and setting aside the judgment and decree passed by the trial court and decreeing the suit of the plaintiff, the learned single Judge issued the following directions;

"The Respondent is directed to calculate the emolument and other benefits that are payable to the Plaintiff, after deducting therefrom a sum of Rs. 1,99,615.27 which is the amount admittedly received by the Plaintiff by virtue of his services with the Life Insurance Corporation of India during his period of unemployment pending this litigation. A statement is submitted by Mr. Nathan giving the computation of the net amount receivable by the Plaintiff from the Respondent Corporation. The Corporation is directed to verify the correctness or otherwise of the said statement and is directed to inform to the Plaintiff the net amount payable by the Corporation to the Plaintiff on the basis that the Plaintiff's services have been wrongfully terminated by the Corporation by its impugned order dated 23rd January, 1958 and upon the assumption that he continued to be in service and had become entitled to all the promotions to which he would have been entitled under the Service Rule by which the entire pay-scale available to him as per the Service Rules read with the awards of the various pay commissions. The Corporation is directed to compute and pay the said amount to the Plaintiff within two months from today. If any default is made by the Corporation in this connection, the Plaintiff has the liberty to make the appropriate application to the High Court or suitable relief in that behalf."

32. The grievance of the appellant-Corporation is that the. learned single Judge exceeded his jurisdiction in granting several reliefs which could not have been done. In such cases, an appropriate order would be to declare the action of the Corporation of terminating the services of the plaintiff as illegal, unlawful and without authority of law and to direct the Corporation to take all consequential actions as if no such order would ever have been made. The learned single Judge could not have directed grant of pay scales and other benefits which would depend on several contingencies and considerations.

33. In our opinion, therefore, that part of the order deserves to be set aside and is hereby set aside. It is held that the order passed by the Corporation on 23rd January, 1958 terminating the services of the deceased-plaintiff is declared illegal, unlawful and without authority of law. It is directed that the appellant-Corporation will consider the case of the deceased-plaintiff as if no such order dated 23rd January, 1958 had ever been passed against an employee' and to award him (now the heirs of the deceased-plaintiff) all consequential benefits.

34. For the reasons aforesaid, the appeal deserves to be partly allowed and is accordingly allowed to the extent indicated above. In the facts and circumstances, however, there shall be no order as to costs.

Parties be given copies of this order duly authenticated by the Sheristedar/Private Secretary.