Senior Superintendent, R.M.S Cochin
& ANR Vs. K. V. Gopinath, Sorter  INSC 57 (18 February 1972)
CITATION: 1972 AIR 1487 1972 SCR (3) 530 1973
SCC (3) 867
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)
Civil Servant--Central Services (Temporary
Service) Rules 1965, or 5(1) (b) proviso--Scope of.
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 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 the 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]
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
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 servant who 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
(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
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 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 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 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
(1) -2 L.L.J. 227.
(2) -2 L.L.J. 702.