Union Of India And Ors. vs N.N. Srivastava
1986 Latest Caselaw 131 Del

JUDGMENT

D.K. Kapur, C.J.

(1) This is a Regular Second Appeal directed against the judgment of the Additional District Judge decreeing the Suit of the plaintiff-respondent. The said respondent had been employed as a Demonstrator in the Delhi College of Engineering. His services were terminated by an order dated 30th January, 1969, passed under Rule 5 of the Central Civil Services (Temporary Services) Rules, 1965. This order was by way of a notice informing the plaintiff that his services would be terminated with effect from the expiry of one month from the date on which the notice is served or tendered. Accordingly, the services of the plaintiff stood terminated on 28th February, 1969. The plaintiff had claimed that the services were terminated illegally, arbitrarily and mala fide, and also, attracted the provisions of Article 311 of the Constitution. The written statement filed by the defendants took up the stand that the post to which the plaintiff was appointed was under the lien of Shri A. K. Srivastava, who was appointed to the post of Associate Lecturer. It was alleged that once the post of Associate Lecturer was created, the Demonstrator's post got abolished, and thus, the service* of the plaintiff got terminated. One other point taken was whether the plaintiff did or did not become quasi permanent under the Central Civil Services (Temporary Services) Rules, 1965.

(2) In any case, the Suit was dismissed by the trial Court, but in appeal the Additional District Judge held that it had not been established that the post of Demonstrator had been abolished by the simultaneous creation of the post of Associate Lecturer. It was also found that Shri A. K. Srivastava became an Associate Lecturer on 28th February, 1968, whereas the plaintiff continued till 28th February, 1969. In other words, the plaintiff out-lasted the abolition of the post by about one year. From the various facts and circumstances, the Court inferred that the abolition of the postwar not the ground on which the services of the plaintiff had been terminated. It was eventually held on an analysis of the facts as follows :- "IT can thus safely be concluded from above that the termination order Ex. Public Witness 1/2 was passed arbitrarily by way of punishment, with ulterior motives."

Learned counsel for the appellant contends that when the order is an order simpliciter without mentioning anything else, then the form of the order is conclusive However, the learned Court has dealt with this point on an application of the judgment of the Supreme Court in Samsher Singh v. State of Punjab and another, . and other judgments of the Supreme Court, wherein it has been held that it is not the form of the order which is conclusive, but the facts and circumstances giving rise to the order. Normally, no doubt what is stated in the order would be conclusive, when the facts and circumstances are brought to the Court's notice, then those facts and circumstances would show whether the order has been passed by way of punishment or by way of termination simpliciter.

(3) Learned counsel contends that the conclusion that the order is passed arbitrarily by way of punishment is not based on evidence, and therefore, it can be attacked On the other hand, an analysis of the grounds of appeal shows that five substantial grounds of appeal are mentioned therein and none of them is connected with any mis-reading of the evidence or absence of material in the findings

(4) I may mention here that under the amended provisions of Section 100 of the Code of Civil Procedure, a Second Appeal lies only on a substantial question of law. and a substantial question of law had to be formulated. It is provided in Sub section (5) that the appeal has to be heard only on the question so formulated As a matter of fact. the admission order shows that the substantial questions of law are those formulated in paragraph No, 16 of the grounds and, paragraph No. 16 of the grounds does not raise any questions of law relating to mis-reading of evidence or mis-reading of the record. Therefore, the scope of this appeal is of a very restricted type.

(5) The impression to be gathered from the judgment is that the conclusion of the Court was based on the various circumstances giving rise to the supposition that the plaintiff's post had been abolished. It appears that the termination order in this case was passed on the assumption that because the previous Demonstrator had become an Associate Lecturer, hence the post stood abolished. This argument could not be substantiated at the time of arguments before the learned Additional District Judge. The Court noted as follows :- "SURPRISINGLY enough the respondents have not led any evidence what-so-ever to prove the abolition of the post of the demonstrator. The post in question must have been abolished under the orders of the authorities. A notification in regard there to must have been issued. Thus the said documents were the best possible evidence to prove the factum of the abolition. Neither the said notification nor the said order was produced before this Court. Hence this Court has been deprived of the best possible evidence which this Court could lay its hands on Consequently an adverse inference is liable to be drawn against the respondents in favor of the appellant under Section 114(g) of the Evidence Act."

The Court, therefore, had decided this point about the abolition of the post on the basis that the evidence had been kept away from the Court. In other words, the plaintiff's contention that he had been wrongly deprived of the post on wrong assumption was substantiated. This led to the conclusion that the termination order was arbitrary, illegal and passed with an ulterior motive, It may be that the ulterior motive is not strikingly brought out, but it follows that the Court which was dealing with the case was faced with only one question, namely, the plaintiff's services had been terminated because of the abolition of the post and not for any other reason and found that this was not the reason. The Court was thus right in reaching a conclusion that his services were terminated for an ulterior motive.

(6) In my view, this is a finding of fact, which is not open to attack in the second appeal. Consequently, the appeal is dismissed.