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PETITIONER: JAI SHANKER

       Vs.

RESPONDENT: SATATE OF RAJASTHAN

DATE OF JUDGMENT: 16/09/1965

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SHAH, J.C. SIKRI, S.M.

CITATION:  1966 AIR  492            1966 SCR  (1) 825  CITATOR INFO :  RF         1971 SC1409  (23)  F          1976 SC  37  (21)

ACT: Constitution of India, Art. 311-Jodhpur Service  Regulations Regulation   13--Provision  for  automatic  termination   of service for over staying leave by more than one  month--Such termination whether--attracts Art.  311.

HEADNOTE: The  appellant  was Head.  Warder in Rajasthan  and  in  the permanent  service  of  the State.  On  April  14,  1950  he proceeded  on  leave  for two months.  He  later  asked  for extensions  of the leave on medical grounds.  He was due  to join  on August 13, 1950; his request for leave beyond  that date  was refused.  Thereafter he made further  applications for  leave,  the  last  of  them  supported  by  a  medical. certificate.    To  his  last  and  some  of   the   earlier applications  be received no reply but on November 8,  1950, he  received  a  communication  from  the  Deputy  Inspector General of Prisons that he was discharged from service  from August  13,  1950.  Departmental remedies having  failed  he filed  a  suit challenging his removal  from  service.   The trial  court  decided against him and  the  first  appellate court  in his favour.  The High Court however  restored  the order  of  the trial court whereupon the appellate  came  to this Court by special leave. It  was  contended on behalf of the appellant  that  in  not giving  him any notice before terminating his  services  the State  Government had acted in contravention of Art. 311  of the  Constitution.   On  behalf  of  the  respondent   State reliance was placed on Regulation 13 of the Jodhpur  Service Regulations which laid down that an Individual who  absented himself  without permission for one month or long after  the end  of his leave would be considered as  having  sacrificed his  appointment  and  could only  be  reinstated  with  the sanction  of the competent authority.  On the basis of  this Regulation it was contended that the appellant’s appointment bid terminated automatically and no question of his  removal

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from service attracting the provisions of Art. 311 arose. HELD  :  The constitutional protection given  to  Government employees by Art. 311 cannot be taken away in this manner by a side wind.  Regulation 13 no doubt speaks of reinstatement but  it  really  comes to this that a  person  will  not  be reinstated if he is ordered to be discharged or removed from service.    The  question  of  reinstatement  can  only   be considered  if  it is first considered  whether  the  person should be removed or discharged from service.  Whichever way one  looks  at  the  matter, the  order  of  the  Government involves a termination of the service when the incumbent  is willing to serve. [828 G; 829 C-D] The Regulation involves a punishment for over-staying  one’s leave  and the burden is thrown on. the incumbent to  secure reinstatement  by  showing cause.  It may be  convenient  to describe  him  as  seeking reinstatement  but  this  is  not tantamount  to saving that because the person will  only  be reinstated  by an appropriate authority that the removal  is automatic and outside the protection of Art. 311.  A removal is  removal  and if it is punishment for  overstaying  one’s leave an opportunity must be given to 826 the person against whom such an order is proposed, no matter how the Regulation describes it.  To give no opportunity  is to go against Arc. 311. [829 E-G] The appellant was entitled to a declaration that his removal from service was illegal.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 576 of 1964. Appeal  by special leave from the judgment and  order  dated December 11, 1962 of the Rajasthan High Court in S.B.  Civil Regulation Second Appeal No. 37 of 1961. U.   M. Trivedi, Chandra Dhar Issar and Ganpat Rai, for  the appellant. G.   C. Kasliwal, Advocate-General, Rajasthan, M. M. Tiwari, K.   K. Jain and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Hidayatullh  J.  The appellant Jai Shanker, who  appeals  to this Court by special leave against the judgment of the High Court  of  Rajasthan  dated December 11, 1962,  was  a  Head Warder,  Central Jail, Jodhpur in 1950.  He had started  his service  as  a Warder in April 1940, was  promoted  as  Head Warder in 1944 and was a permanent servant of the State.  On Appeal 14, 1950 he proceeded on leave for two months  ending on  June  13, 1950.  He applied for extension  of  leave  on medical grounds for 20 days, as he had fallen ill, and again for 10 days.  Later he asked for a an extension by a  month. He  was due to join on August 13, 1950.  On August 14,  1950 he was told that no more leave would be granted and that his transfer  to  Jaipur, made while he was  ill  at  Hyderabad, would not be cancelled. Jai Shanker returned to Jodhpur from Hyderabad on  September 1,  1950  and applied for further leave.   He  made  several applications.   His last application was sent by  Registered post,  supported  by a medical certificate, on  November  3, 1950  asking for leave till November 11, 1950.  To his  last and  some of the earlier applications for leave he  received no   reply   and  on  November  8,  1950,  he   received   a communication  dated  2/4-11-50  of  the  Deputy   Inspector General, Prisons under endorsement from the  Superintendent, Central  Jail, Jodhpur that he was discharged  from  service from August 13, 1950.  He preferred ail Appeal against  that

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order to the Inspector General of Prisons, Rajasthan but  it was dismissed on September 24, 1951.  Jai Shanker  submitted an appeal to the Home Secretary, Rajasthan Government.   He, was  informed by a letter dated December 17, 1953  from  the Home                             827 Secretary  that  the papers had been sent to  the  Inspector General, Prisons for necessary action.  Jai Shanker  alleges that  he was called by Personal Assistant to  the  Inspector General and was offered reinstatement if he undertook not to claim back salary but he declined the offer.  After  serving a  notice  under s. 80 of the Code of Civil  Procedure,  Jai Shanker  filed the suit from which this appeal  arises.   He asked for a declaration that the termination of his  service was illegal inasmuch as he was entitled to a notice enabling him to show cause against the termination of his service  as required by Art. 311 of the Constitution.  He also asked for back salary amounting to 2369. The  Subordinate Judge, Jodhpur decided that  Jai  Shanker’s allegations about his illness were, true but he rejected the contention that the discharge from service was illegal.   As a  consequence the claim for back salary was disallowed  and the  suit  was ordered to be dismissed.  On  appeal  to  the District  Court Jai Shanker succeeded in getting a  reversal of  the  decree  of the trial Judge.   The  District  Judge, Jodhpur held that Jai Shanker was entitled to a  declaration that  his  removal  from service was  illegal  and  that  he continued  to remain in employment and was also entitled  lo all  arrears  of salary admissible to him under  the  rules. The  State  Government  appealed against  the  judgment  and decree  of the District Judge and by the order under  appeal the  decree  of  the District Judge was set  aside  and  the decree  of the Subordinate Judge was restored.  Jai  Shanker was  ordered  to  pay costs in the High Court  and  the  two courts below. The short question in this appeal is whether Jai Shanker was entitled  to  an  opportunity  to  show  cause  against  the proposed punishment as required by cl. (2) of Art. 31 1.  It is admitted that no charge was framed against him.  Nor  was he given any opportunity of showing cause.  The case for the State  Government is that Government did not  terminate  Jai Shanker’s  service, and that it was Jai Shanker who gave  up the  employment by remaining absent.  It is  submitted  that such  a case is not covered by Art. 311.In support  of  this contention  certain  Regulations  of  the  Jodhpur   Service Regulations are relied upon and we shall now refer to  them. regulation  7  lays down that leave cannot be claimed  as  a right and that Government has discretion to refuse or revoke leave  of any description.  Regulation 11 lays down that  an individual who has been granted leave on medical grounds for a Period of one month or more may not return to duty without producing  a  certificate of fitness signed  by  an  officer authorized  by  a  general or special order  to  grant  such certificate.  Regulation 12 lays down 828 that an individual who absents himself without permission or remains  absent  at the end of his leave is entitled  to  no salary  for the period of such absence and that period  will be  debited  against his leave account unless the  leave  is sanctioned or extended under the ordinary rules by competent authority.  Regulation 13 is important because it forms  the basis  of the contention that Art. 3 1 1 does not  apply  to this case.  That Regulation may be reproduced here :               "13.    An  individual  who  absents   himself               without  permission  or  who  remains   absent

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             without  permission  for one month  or  longer               after   the  end  of  his  leave   should   be               considered to have sacrificed his  appointment               and  may only be reinstated with the  sanction               of the competent authority.               NOTE  :-The submission of an  application  for               extension  of leave already granted  does  not               entitle   an  individual  to  absent   himself               without permission."               It is contended that this Regulation  operated               automatically and no question of removal  from               service  could arise because Jai Shanker  must               be   considered   to   have   sacrificed   his               appointment.   Under the Regulation  he  could               only  be reinstated with the sanction of  tile               competent  authority. we have, the  therefore,               to   determine  whether  this  Regulation   is               sufficient to enable the Government to  remove               a  person from service without giving  him  an               opportunity  of  showing  cause  against  that               punishment, if any. It  is  admitted  on behalf of  the  State  Government  that discharge from service of an incumbent by way of  punishment amounts to removal from service.  It is, however,  contended that  under the Regulation all that Government does, is  not to  allow the person to be reinstated.  Government does  not order his removal because the incumbent himself gives up the employment.   We  do  not  think  that  the   constitutional protection can be taken away in this manner by a side  wind. While,  on the one hand, there is no compulsion on the  part of  the  Government to retain a person in service if  he  is unfit  and  deserves dismissal or removal, on the  other,  a person is entitled to continue in service if be wants  until his  service  is  terminated in accordance  with  law.   One circumstance  deserving  removal may be  over-staying  one’s leave.   This is a fault which may entitle Government  in  a suitable  case  to consider a man as unfit  to  continue  in service.  But even if a regulation is made, it is  necessary that Government should give the person an opportunity                             829 of  showing cause why he should not be removed.  During  the hearing of this case we questioned the Advocate General what would happen if a person owing to reasons wholly beyond  his control  or  for  which  he was in  no  way  responsible  or blameable,  was unable to return to duty for over  a  month, and  if  later  on he wished to join as  soon  as  the  said reasons disappeared?  Would in such a case Government remove him  without  any hearing, relying on the regulation  ?  The learned Advocate General said that the question would not be one  of  removal but of reinstatement and  Government  might reinstate  him.   We  cannot accept  this  as  a  sufficient answer.   The Regulation, no doubt, speaks of  reinstatement but  it  really  comes to this that a person  would  not  be reinstated if he is ordered to be discharged or removed from service.    The  question  of  reinstatement  can  only   be considered  if  it is first considered  whether  the  person should be removed or discharged from service.  Whichever way one  looks  at  the  matter, the  order  of  the  Government involves a termination of the service when the incumbent  is willing to serve.  The Regulation involves a punishment  for overstaying,  one’s  leave and the burden is thrown  on  the incumbent  to secure reinstatement by showing cause.  It  is true  that  the  Government  may  visit  the  punishment  of discharge  or  removal  from service on  a  person  who  has absented  himself by over-staying his leave, but we  do  not

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think  that Government can order a person to  be  discharged from service without at least telling him that they  propose to  remove  him  and giving him an  opportunity  of  showing causes  why he should not be removed.  If this is  done  the incumbent  will be entitled to move against  the  punishment for,  if  his plea succeeds, he will not be removed  and  no question of reinstatement will arise.  It may be  convenient to  describe  him as seeking reinstatement but this  is  not tantamount  to saying that because the person will  only  be reinstated by an appropriate authority, that the removal  is automatic and outside the protection of Art. 31 1. A removal is  removal and if it is punishment for  over-staying  one’s Leave  an  opportunity must be given to the  person  against whom such an order is proposed, no matter how the Regulation describes it.  To give no opportunity is to go against  Art. 31 1 and this is what has happened here. In our judgment, Jai Shanker was entitled to an  opportunity to  show cause against the proposed removal from service  on his overstaying his leave and as no such opportunity was  to him his removal from service was illegal.  He is entitled to this declaration.   The   order  of  the  High  Court   must therefore be set aside and that    of  the  District  Judge, Jodhpur restored.  The question of what back salary  is  due to Jai Shanker must now be determined by the 830 trial  Judge  in accordance with the rules  applicable,  for which  purpose  there shall be a remit of this case  to  the civil Judge, Jodhpur.     The State Government shall pay the costs of Jai  Shanker in  this  Court, the High Court and the  two  courts  below, incurred so far. The appellant has been permitted to  appeal in forma pauperis. The State will pay the Court Fee  payable on  the memorandum. The Advocate for the appellant  will  be entitled to recover his costs. Appeal allowed. 831