Prem Chand Gupta Vs Management of Municipal Corporation of Delhi

Mahinder Narain, J.

(1) Prem Chand Gupta, appellant before us, was employed with M.C.D. and was appointed on temporary basis as Section Officer. He was offered a temporary post of Section Officer (Civil) by letter dated 5.5.1964. The terms and conditions of the employment mentioned in the reverse of the said order. He was to render one year''s satisfactory service before he could be fixed on a permanent post if the same was available.

(2) The post against which the appellant was appointed was sanctioned for a limited duration which was to expire on 31.8.1964. On 1.8.1964, the appellant was informed that his services were no longer be required with effect from 1.9.1964.

(3) The appellant was again appointed and posted with effect from 1.10.1964 against a vacant post caused by the termination of services of another employee. Thereafter decision was taken by the Corporation to abolish the post of Section Officers in Building and Factories Department and the appellant was served with a notice dated 27.2.1965 that his services were no longer required after 31.3.1965.

(4) As it was found that there were some vacant posts in the Superintending Engineer''s office under Water Supply and Sewage Disposal Undertaking of the Corporation, the appellant, along with other, was posted there with effect from 1.4.1965. The Water Supply & Sewage Disposal Undertaking placed the services of certain officials back with the General Wing of M.C.D. by an office order dated 25.6.1965.

(5) The appellant received a notice dated 28.1.1966 under Rule 5 of the C.C.S. (Temporary Service) Rules, 1949, that his services will be terminated with effect from the date of expiry of one calendar month from the date of the service of this notice on him. The appellant, however, continued to work in the post for some time.

(6) By means of letter dated 26/29.4.1996 issued under Rule 5 of the C.C.S. (Temporary Service) Rules, 1949, it was informed to the appellant that the services of the appellant would be terminated with effect from the date of service of that order and the he will be paid the sum equivalent to the amount of his pay plus allowances of one month which was period of the notice due to him. The said impugned notice of termination under Rule 5 of C.C.S. (Temporary Service) Rules, 1949, read as under:

ANNEXUREP/12 --- *** --- Municipal corporation DELHI(BUILDING DEPARTMENT)

O.O.NO.319/BLDG/ESTT/66Dated:26.4.1966

29.4.1966

"Under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, the service of Sh. P.C. Gupta, Section Officer (Building) Shahdara Zone is hereby terminated with effect from the date of service of this order on him. He will be paid a sum equivalent to the amount of his pay plus allowances for one month, which is 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.

SD/-

Deputy Commissioner(G)

MUNICIPAL Corporation, Delhi

SHRIP.C. Gupta,

Section Officer (Buildings)

SHAHDARA Zone.

COPY to: Z.A.C. (Shahdara)

2.A.O.(Engineering) for providing substitute immediately.

3.Z.E.(B) Shahdara

4.A.C.A. (Shahdara)

5.Director of Enquiries

6.E.E.(B)

Deputy Commissioner (C) "

The aforesaid Rule 5, under which the services of the appellant were terminated read as under:

"5.Termination of Temporary service. - (1)(a) The services of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant;

(B)The period of such notice shall be one month;

Provided that the services of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month."

The C.C.S. (Temporary Service) Rules, 1949, were adopted by the M.C.D. in terms of the provisions of Section 98 read with Section 480 of the Delhi Municipal Corporation Act, 1957. It is the case of Mr. Gupta before us that whereas the C.C.S. (Temporary Service) Rules, 1949, were replaced by the C.C.S. (Temporary Service) Rules, 1965, the said rules were not adopted by the M.C.D. in terms of Section 98 read with Section 480 of the Delhi Municipal Corporation Act, 1957, the result of which is that Rule 5 of C.C.S. (Temporary Service) Rules, 1949, continued to operate vis-a-vis the employees of the M.C.D. who were temporarily appointed in service of the M.C.D. Rule 5 of the C.C.S. (Temporary Service) Rules, 1965, has come up for consideration before the Supreme Court in 1972 Services Law Reporter 390, in which a Division Bench of the Supreme Court came to the conclusion that if a notice under Rule 5 is to be a valid notice, it is essential that salary postulated by Rule 5 be paid to the employee at the time of service of notice. That, the money had to be paid in the hands of the employee who was served with the notice under Rule 5 of the said rules, if that notice was to be a valid and effective notice. It is to be noted that Rule 5 of the C.C.S. (Temporary Service) Rules, 1965 is identical in terms with Rule 5 of the C.C.S. (Temporary Service) Rules, 1949. Therefore, what was said by the Supreme Court with respect of 1965 Rules applies with full force to any person who was sought to be dealt with under Rule 5 of the 1949 Rules. It is not necessary for our purpose, and we note here, that Rule 5 of the 1965 Rules was modified after the aforesaid judgment of the Supreme Court. The instant case is, however, fully governed by the aforesaid judgment of the Supreme Court with the result that along with the notice served under Rule 5 of the 1949 Rules, the salary and other allowances which were payable had to be tendered to the appellant along with the notice, and these amounts had to be placed in his hand, at the time of service of the notice. Mr. Gupta has contended before us that inasmuch as the amount which was to be paid towards salary and allowances had not been tendered by the M.C.D. along with the notice, the termination of the appellant''s services was not in accordance with law. He has drawn our attention to the grounds of appeal which have been filed in this case. Under Ground No.18, he has clearly taken this plea. The said Ground No.18 reads as under: "18. Because the impugned order of termination stood vitiated in law. The Appellant was not paid a sum equivalent to the amount of pay plus allowances for one month, i.e., the period notice Along with the impugned notice dated 26th/29th April, 1966." He also says that when the proceedings were pending before the Labour Court the appellant deposed that he has not received the salary and allowances, and that there was no cross-examination on this aspect of appellant''s evidence. Be that as it may, we thought it fit to ask the M.C.D. to confirm to us whether the amount had in fact been paid to the appellant or not. When the matter was taken up today, we have been informed that the M.C.D. was not able to trace out from the records whether payment had been made or not. This is despite the fact that service book of the appellant ought to be with the M.C.D. which should contain information about the payments which have been made by the M.C.D. to the appellant at his service. In this view of the matter, we see no reason to disbelieve the assertion which has been made by Mr. Gupta that in fact the salary and allowances were not paid. This view of the matter also derives support from the terms of emphasised portion of Annexure P-12 - the notice of termination dated 26/29.4.1966 itself recites that he "will be paid", and not that the said amount was tendered along with the notice. It is only when the amount was tendered along with the notice that it could have been asserted by the M.C.D. that the services of the appellant have been validly terminated. The requirement of Section 5 of the 1949 Rules that payment had to be tendered along with the notice, not having been complied with, the said notice is not valid in law, and the purported termination of service is not effective. With the result that the appellant continued to be an employee of the M.C.D. In this view of the matter, the notice termination of services of the appellant not having been effectively given according to law, the appellant would be entitled to receive all salary and allowances from the M.C.D. as a consequence of his having continued to be in the employment of M.C.D. This appeal of the appellant is, accordingly, allowed. In view of our conclusions, we are not dealing with any other contentions raised in the grounds of appeal. The order be complied with forthwith, and the amounts which are found to be due to be appellant be paid to the appellant within three months from today. The appellant shall also have his costs.