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Union Of India v. Sri Jagdish - SECOND APPEAL No. 3081 of 1982 [2007] RD-AH 9107 (11 May 2007)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court No.19

Second Appeal No. 3081 of 1982

Union of India


Shri Jagdish


Hon. Dilip Gupta, J.

This Second Appeal has been filed for setting aside the judgment and decree dated 29th May, 1982 passed by the learned Vth Additional & Sessions Judge, Ghaziabad whereby the appeal filed by the plaintiff was allowed and the suit was decreed with a declaration that the plaintiff continues to be in service and is entitled to all the benefits and privileges admissible to the temporary employees.

The Original Suit had been instituted for a declaration that the action of the defendant authorities in not permitting the plaintiff to do his duty from 22nd June, 1979 amounted to illegal removal from service and, therefore, a declaration was sought that the plaintiff continues to be in service as Mason II Grade and was entitled to full wages and allowances.

The suit was contested on the ground that the plaintiff was not a permanent Mason but was merely a casual Mason and that he was not entitled to be absorbed in permanent cadre. The Trial Court dismissed the suit holding that the plaintiff was not entitled to any relief as the services had not been terminated. The Lower Appellate Court reversed this finding and held that as the plaintiff had worked for more than six months, he was entitled to be treated as a temporary employee and his services could have been terminated only after holding a proper enquiry. It, therefore, allowed the appeal and a declaration was issued that the plaintiff continues to be in service and entitled to all the benefits and privileges admissible to temporary employees.

At the time of admission of the appeal, following two substantial questions of law were framed :

"Whether in view of the decision in Suit No.248 of 1975, the plaintiff-respondent had not become entitled to be treated as Mason Grade II automatically or his promotion was subject to seniority and suitability according to rules?

Whether the finding of the lower appellate Court is vitiated on the question that the plaintiff was prevented from working by the appellant? If not, its effect. In any case what benefit, if at all, is he entitled?"

So far as first substantial question of law is concerned, the Appellate Court has examined this issue. The decree in Original Suit No.248 of 1975 had become final as the appeal preferred by the Union of India had been dismissed in default and the restoration application had also been dismissed in default. There is no infirmity in this finding.

So far as the second substantial question of law is concerned, learned counsel for the appellant did not make any submission regarding this aspect. The Lower Appellate Court recorded a categorical finding that the view taken by the learned Munsif that there was no evidence to prove that the plaintiff reported for duty but was not allowed to work, is erroneous.

The sole contention of the learned counsel for the appellant, however, is that while deciding Issue No.4, the Trial Court held that the suit was barred by limitation and this aspect was not considered by the Lower Appellate Court.

It is true from a perusal of  the certified copy of the judgment and decree of the Trial Court that while deciding Issue No.4, the Trial Court has held that the suit is barred by limitation but from the original judgment of the Trial Court on record, it is clear that there is a mistake in the certified copy because the original judgment of the Trial Court clearly shows that the finding that has been recorded is that the suit is not barred by limitation.

Such being the position, there is no merit in this Second Appeal. It is, accordingly, dismissed.

Date: 11.5.2007



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