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PETITIONER: SENIOR SUPERINTENDENT,R.M.S COCHIN & ANR.

       Vs.

RESPONDENT: K.   V. GOPINATH, SORTER

DATE OF JUDGMENT18/02/1972

BENCH: MITTER, G.K. BENCH: MITTER, G.K. VAIDYIALINGAM, C.A.

CITATION:  1972 AIR 1487            1972 SCR  (3) 530  1973 SCC  (3) 867  CITATOR INFO :  F          1975 SC 536  (1)  O          1975 SC1116  (1,2)  R          1982 SC 149  (228)  O          1986 SC 737  (16)  O          1986 SC 999  (11,13,15,17)

ACT: Civil  Servant--Central Services (Temporary  Service)  Rules 1965, or 5(1) (b) proviso--Scope of.

HEADNOTE: The  services  of  the respondent,  a  temporary  government servant, were terminated on a particular day, but his.salary and  allowances  due till then were not paid on  that  date. The  High  Court  held  that  the  termination  was  not  in accordance  with  the  provisions of r.  5  of  the  Central Service (Temporary Service) Rules, 1965. Dismissing the appeal to this Court, HELD  : (1) Rule 5 (1) (a) gives the Government as  well  as the  employee  a  right to put an end to the  service  by  a notice in writing.  Under r. 1 (b) the period prescribed for such  notice  is  one month.  The proviso  to  the  sub-rule however  gives  the Government an option not to  retain  the employee  in  service till the expiry of the period  of  the notice; but to be effective, the termination of service  has to  be  simultaneous  with the payment to  the  employee  of whatever is due to him.  The operative words of the proviso are  ’the  services of any such government  servant  may  be terminated  forthwith by payment’, showing that the  payment is a condition of the termination of service forthwith. [532 D-F] Since the words used are, plain and unambiguous they must be construed in their ordinary sense without any considerations of policy. [532 F-G] (3)There  will  always  be  some  time  during  which  the authority  deliberates  over, the matter and  makes  up  his mind,  and within that- time, directions can be  given  that the  pay and allowances of the government servant should  be calculated so that they could be offered to the employee  at the  time  when the order of termination is served  on  him. There  is  no  difficulty in  the  calculation  because  the payment  is  to be made at the same rates at  which  he  was

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drawing  them  immediately  before the  termination  of  his services.’  The  fore, there is no merit in  the  contention that  it  would be impossible for the  authorities  to  give effect   to   th  proviso,  if  payment  was  to   be   made simultaneously with the service on the employee of the order of termination. [532 H; 533 A-D] (4)The words of the rule construed in the State of U.P. v. Dinanath Rai, C.A. No. 1734/68 dt. 11-10-1968, though  ’some what similar to the words of r. 5 only entitled the employee to pay for the period of the notice but did not lay down any condition as to when the payment was to be made. [534 F-G]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1706  of 1971.  Appeal  by special leave from the judgment and order  dated January  5,  1971  of the Kerala High Court  in  Civil  Writ Appeal No. 534 of 1969. 531 R.   H. Dhebar, for the appellants. A.   S.  R.  Chart,  A. K. Gupta, S. C. Agarwal  and  V.  J. Francis, for the respondent. The Judgment of the Court was delivered by Mtter,  J.  The only question involved in  this  appeal  is, whether  the order dated September 25, 1968 terminating  the services of the respondent, a temporary Government  servant, was  in  accordance  with the provisions of Rule  5  of  the Central Service (Temporary Service) Rules 1965,  hereinafter referred to as the ’Rules’. The   services  of  the  respondent  appear  to  have   been terminated  on  the basis of the directive  contained  in  a circular  dated  12th September 1968 that action  should  be taken against every employee who absented himself from  duty on  19th September, 1968.  No contention was raised  at  any stage that no action could be taken under Rule, 5. This said rule reads :-               "5.Termination of temporary service,-                (1)(a)   The  services  of  a   temporary               Government servantwho  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.               xx                   xx                     xx               xx." It  is: admitted that payment of the salary  and  allowances was  not  made to the respondent on  25th  September,  1968. According  to,  the respondent the  disbursing  officer  was intimated  about the order of termination only on  the  28th September  when he was supplied with the,  necessary  funds. As  against this it was alleged in the counter affidavit  to

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the writ petition filed by the respondent in the High  Court that  one month’s pay and allowances had been sent by  money order to the respondent.  The question is, 532 whether the order of termination of service can be sustained because  of absence of payment on the 25th  September.   The order  was  quashed by a learned single Judge  of  the  High Court and this was upheld by a Division Bench in appeal. Apart  from the authorities which were cited at the Bar,  it appears  to  us  that  the  rule  is  capable  of  the  only interpretation  that the order of termination can be  upheld if  the requisite amount in terms of the rule was paid  into the  hands of the employee of made available to him  at  the same time as he was served with the order.  Rule, 5 (1 ) (a) gives the Government as well as the employee a right to  put an end to the service by a notice in writing.  Under rule  1 (b) the period prescribed for such notice is one month.  The proviso  to  sub-r.  (b) however  gives  the  Government  an additional  right  in  that  it  gives  an  option  to   the Government  not to retain the services of the employee  till the expiry of the period of the notice : if it so chooses to terminate the service at any time it can do so 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 rate  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."  At the risk of repetition, we may note that the operative words of  the  proviso are "the services of  any  such  Government servant may be terminated forthwith by payment".  To put the matter  in  a nutshell, to be effective the  termination  of service  has  to  be simultaneous with the  payment  to  the employee  of whatever is due to him.  We need not  pause  to consider  the  question as to what would be  the  effect  if there was a bonafide mistake as to the amount which is to be paid.   The rule does not lend itself to the  interpretation that the termination of service becomes effective as soon as the  order is served on the Government servant  irrespective of  the question as to when the payment due to him is to  be made.  If that was the intention of the framers of the rule, the  proviso  would have been differently  worded.   As  has often  been said that if "the precise words used  are  plain and  unambiguous,  we are bound to construe them  in  their ordinary sense...... and not to limit plain words in an  Act of Parliament by considerations of policy, if it be  policy, as to which minds may differ and as to which decisions.  may vary".-see  Craies on Statute Law, Sixth Edition,  pages  86 and 92. It  is not for us to enter into a discussion as to  why  the proviso  was  framed as we find it.  It was argued  that  it would,   in  the  ordinary  course  of  things,  be   almost impossible for the authorities to give effect to the proviso if  payment  has  to  be  made at  the  time  the  order  of termination  is  served on the employee.  It  was  submitted that before any payment can be made by Government, 533 sanction  has to be taken and some time must  elapse  before the necessary procedure is complied with and money  obtained either  from the treasury or a cheque made out to cover  the amount due to the employee.  It was also argued that if  the construction  given by the High Court to the rule is  to  be maintained,  the appointing authority could never  ask,  the employee  to  go  at once even when it  found  that  it  was necessary in the interest of Government to require him to do so.   It  is  difficult to contemplate a case  in  which  an

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appointing authority has to make up his mind on the spur  of the moment that a particular employee should be asked to  go immediately.  Normally a Government employee is not asked to go  unless  some  complaint is made  against  him  for  some irregularities  detected  in  his  work.   This  is   always followed by some enquiry into his conduct, however brief, as it  is  only as a result of an enquiry  that  the  authority makes up its mind that it would not be in public interest to retain  the service of the employee any longer.  Within  the time  which  is  taken  for  such  deliberation  i.e.,   the preliminary  enquiry, direction can certainly be given  that the  pay and allowances of the government servant  concerned should  be  calculated so that it could be  offered  to  the employee at the time when the order of termination is served on  him.   There  can be no difficulty  in  the  calculation because  the  payment is to be made "at the  same  rates  at which he was drawing them immediately before the termination of his services." It  was suggested on behalf of the respondent that the  con- struction  of the rule should be such as would mitigate  the rigour  of an order of termination inasmuch as where  notice of  a full month is given the Government servant knows  that he will have to find some other employment without delay and he can make his arrangements accordingly; but if he is to be asked  to  leave at once and to depend on the mercy  of  the Government as to when it will pay him for the period of  the notice,  it would be very hard on the employee.  We do,  not think  it  necessary to express any view as to  whether  the rule was so framed on account of any such reason and we must give effect to the plain meaning of the words of the rule. Our  attention was drawn to a decision of this  Court  which had been cited on behalf of the appellant in the High Court- The state of uttar Pradesh v. Dinanath Rai(1) There the rule was  differently  worded.   The rule in  that  case  ran  as follows               "In  exercise of the powers conferred  by  the               proviso to Article 309 of the Constitution  of               India, the Governor of U.P. is pleased to make               the following general rule               (1)   Civil Appeal No. 1734 of 1968 dated 11th               October, 1968.               534               regulating  the  termination  of  services  of               temporary Government servants               (1)Notwithstanding anything to the contrary in               any existing rules and orders on the  subject,               the  services  of  a  Government  servant   in               temporary   service   shall   be   liable   to               termination  at any time by notice in  writing               given either by the Government servant to  the               appointing  authority,  or by  the  appointing               authority to the Government servant.               (2)The  period  of such notice  shall  be  one               month given either by the appointing authority               to   the   Government  servant,  or   by   the               Government    servant   to   the    appointing               authority, provided that in the case of notice               of  the  appointing authority the  latter  may               substitute  for  the  whole or  part  of  this               period of notice pay in lieu thereof; provided               further   that  it  shall  be  open   to   the               appointing  authority to relieve a  Government               servant  without any notice or  accept  notice               for  a shorter period, without  requiring  the               Government servant to pay any penalty in  lieu

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             of notice."               In that case this Court had observed               "The rule does not say that the pay should  be               given  in  cash or by cheque at the  time  the               notice   is  issued.   Knowing  the  way   the               Governments are run, it would be difficult  to               ascribe  this  intention  to  the  rule-making               authority.    There  is  no  doubt  that   the               Government  servant would be entitled  to  the               pay in lieu of notice but this would be in the               ordinary course." No  doubt the language of that rule is somewhat  similar  to the  words of rule 5 but there is an  essential  difference. The rule only means that the pay for 30 days or less may  be substituted  for service for the period of the  notice.   In other  words, the rule entities the employee to pay for  the period of the notice only without laying down any  condition as to when the payment is to be. given. In  this  case,  as  we  have  already  noted,  "termination forthwith"  is to be "by payment to the Government  servant" of  the  sum  mentioned.   Payment is  a  condition  of  the termination  of service forthwith.  The, facts of this  case show  that the circular which formed the basis of the  order of  termination  was  issued  on  the  12th  September;  the employee, it would appear, had absented himself from duty on the  19th September.  The appointing authority had at  least six  days  within  ’which  time,  the  amount  due  to   the respondent could have been calculated. 535 In  our  view,  the decisions in  Seshavataram  A  State  of Hyderabad(1)  and  Venkataswami v. Director  of  Commerce  & Industries(2) do not help the appellant. The appeal is therefore dismissed and in terms of the  order granting special leave, the appellant must pay the costs  of the respondent. V.P.S.                        Appeal dismissed. (1)  [1959]-2 L.L.J. 227. (2)  [1959]-2 L.L.J. 702. 536