RSA No.1978 of 1986 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... RSA No.1978 of 1986 Date of Decision: September 02, 2011 Punjab State Electricity Board ... Appellant VERSUS Vijay Paul Goel ... Respondent CORAM : HON'BLE MR.JUSTICE MOHINDER PAL Present: Mr.P.S.Thiara, Advocate for the appellant. Mr.Arun Jain, Senior Advocate with Mr.Arnav Kumar, Advocate for the respondent. -.- MOHINDER PAL, J. The defendant-appellant is in second regular appeal aggrieved against the judgments and decrees passed by both the Courts below, whereby the suit filed by the plaintiff-respondent for recovery of ` 20,750/- was decreed with proportionate costs. However, the first appellate Court also allowed future interest at the rate of 6% per annum on the decretal amount till its realization. The case of the plaintiff-respondent was that he was appointed by Punjab State Electricity Board (hereinafter referred to as 'the Board') as its standing counsel vide order No.360/Legal/PSEB dated 03.12.1975 read with office order No.431/IB3 (1) dated RSA No.1978 of 1986 2 02.11.1976 for a period of five years. This appointment was accepted by the plaintiff. Thereafter, he remained as a standing counsel of the Board upto 30.01.1978 during this period he conducted various cases. Services of the plaintiff were terminated w.e.f. 31.01.1978 vide office order No.11/PSEB/Legal/30.01.1978 passed by the Board. This order is under challenge in the Civil suit. Recovery of damages amounting to ` 13,400/- on account of unpaid salary and ` 8600/- on account of loss were also claimed by the plaintiff-respondent. The trial Court, after framing issues arising out of the pleadings of the parties and recording their evidence decreed the suit as stated above. The learned Lower Appellate Court dismissed the appeal and upheld the judgment and decree of trial Court with modification of future interest. The following substantial questions of law were formulated in this appeal: “1. What were the terms of appointment of the plaintiff as standing counsel? OPP 2. Whether the order dated 30.01.1978 terminating the services of the plaintiff is illegal, void, without jurisdiction, ultravires, and against law and facts, arbitrary, malafide as alleged? OPP 3. Whether the plaintiff is entitled to salary for the period 01.02.1978 to 03.12.1980. If so, to what amount? 4. Whether the plaintiff is entitled to damages. If so, what amount? OPP 5. Whether the plaintiff has no cause of action? OPD 6. Whether the suit is not maintainable as alleged in legal objection No.2 of the written statement? OPD RSA No.1978 of 1986 3 7. Relief.” To answer these questions, it is necessary to refer to documents Ex.P1 to Ex.P5. Vide Ex.P1-office order- the appointment of the plaintiff, including two other Advocates as standing counsel was made. It is reproduced as under: PUNJAB STATE ELECTRICITY BOARD LEGAL SECTION Office order No.360/LEGAL/PSEB Dated 3.12.75 The Punjab State Electricity Board is pleased to appoint the following Advocates as their standing counsel for the Districts of Patiala, Bhatinda and Faridkot as mentioned against them on the terms and conditions as hereinunder:- 1. Shri Jiwan Kishan Puri, Advocate Patiala District 2. Shri Vijay Paul Goel, Advocate Bhatinda District 3. Shri H.S.Ramana, Advocate Faridkot District 2. The standing counsel named above will be paid a retainership fee of ` 400/- (Rupees four hundred only) per mensem at the end of each calender month. In addition, they will be entitled to a fee of ` 110/- for conducting each court case at district level, which will be payable at the conclusion of the case. Misc. expenses, if any, will be paid on actual basis. 3. The standing counsel will also be required to tender legal advice in writing in cases referred to them by the various field offices located in the district and in cases being conducted by them. No separate fee will be payable for advice work. 4. The standing counsel shall not accept any brief against the Punjab State Electricity Board or any of its officers in their official capacity. 5. The retainership of the counsel can be terminable without any notice, but they will continue to conduct the Board's cases entrusted to them during the tenure of their retainership, till the RSA No.1978 of 1986 4 conclusion, on the fee mentioned above. 6. With the appointment of the standing counsel, the approved panel of Advocates for these districts will cease to exist and no cases shall be entrusted to any counsel other than the standing counsel. The standing counsel shall make necessary arrangements for the attendance upon the Board's cases in the Court during his temporary absence from the Headquarters. 7. The monthly retainership fee of ` 400/- P.M. shall be paid by the officers named below:- 1. Sh.Jiwan Kishan Puri, Advocate, Patiala XEN. City Division, PSEB, Patiala 2. Sh. Vijay Paul Goel, Advocate, Bhatinda XEN. 'OP' Division, PSEB, Bhatinda 3. Sh. M.S.Ramana, Advocate, Faridkot XEN .'OP' Division, PSEB, Faridkot. 8. The expenditure on account of retainership fee shall be chargeable to the Major Head “GA-7(b) Misc. Expenses Legal Services. 9. The counsel's fee for conducting the Board's cases shall be chargeable to the relevant Heads of Accounts by the respective Divisions. 10. This issues with the approval of Accounts and Finance Member, PSEB, Patiala. sd/- under Secretary (Law), for Secretary, PSEB, Patiala.” Ex.P5 reads as under:- PUNJAB STATE ELECTRICITY BOARD OFFICE ORDER NO.431/LB-3(1) Distt. Dt.02.11.1976 The PSEB is pleased to order that the tenure of retainership of following standing counsel appointed vide office Order No.360/LEGAL/PSEB dated 03.12.1975 read with Office Order NO.363-A/LEGAL/PSEB dated 15.12.1975 will be five years:- (1) Sh.Jiwan Kishan Puri, RSA No.1978 of 1986 5 Advocate, Patiala Patiala District (2) Sh.Vijay Paul Goel, Advocate, Bhatinda Bhatinda District (3) Sh.M.S.Ramana, Advocate, Faridkot Faridkot District This issues with the approval of Chairman. Sd/- (I.J.Ohri) Under Secretary (L) cum Law Officer, for Secretary, PSEB, Patiala.” Short question for adjudication in this appeal is as to whether the order Ex.P1 was in continuation of office order Ex.P5 and by virtue of office order No.360 Ex.P1 under clause 5, the retainership of the plaintiff could be terminated without notice at any time. Learned counsel for the plaintiff contended that with the fixation of the tenure of the plaintiff for five years vide order dated 02.11.1976 Ex.P5 this condition was automatically superseded and the 'Board' had thereafter no right to terminate the employment of the plaintiff during the period of tenure as per this condition. Learned counsel for the appellant-defendant, on the other hand, submitted that this condition was never specifically superseded and that the fixation of the tenure of the plaintiff could only mean that he was to continue as a retainer for the Board for that period as per earlier terms and conditions incorporated in order Ex.P1. After having given my thoughtful considerations to the submissions of the learned counsel for the parties, I find that learned Courts below have wrongly interpreted documents Ex.P1 and Ex.P5 and the present appeal is liable to be accepted. Order issued by the Board on 02.11.1976 has only effect of adding one more clause to the earlier order. Learned Courts below RSA No.1978 of 1986 6 have wrongly taken into account that it was effect of automatic superseding clause 5 of the earlier order dated 03.12.1975. As is evident from order Ex.P1 referred to above clause 5 of the order dated 03.12.1975 says that the retainership of the plaintiff-respondent could be terminated at any time, remained operative, even after order dated 02.11.1976 Ex.P5 whereby tenure of the plaintiff was fixed as five years. Board as per terms and conditions contained in the order had rightly terminated the services of the plaintiff which was communicated to the plaintiff. Board was well within its right to pass such order and order of termination cannot be in any way said to be illegal. Both the questions formulated in this case are answered in favour of defendant- appellant. In view of the above, the present appeal is accepted. Judgment and decree passed by both the Courts below are set aside. Resultantly, the suit of the plaintiff-respondent is dismissed. September 02, 2011 ( MOHINDER PAL ) jt JUDGE