Jai Shanker Vs. Satate of Rajasthan
 INSC 182 (16 September 1965)
16/09/1965 HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1966 AIR 492 1966 SCR (1) 825
RF 1971 SC1409 (23) F 1976 SC 37 (21)
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.
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 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
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 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 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
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 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.