1. Permanent government servant discharged for overstaying leave without show-cause notice — Challenge to termination under Article 311 of the Constitution. (Para 1 , 2 )
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1965 Supreme(SC) 214
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH AND S.M. SIKRI, JJ.
Jai Shanker, Appellant
Versus
State of Rajasthan, Respondent.
Civil Appeal No. 575 of 1964.
Advocates appeared
M/s. U. M. Trivedi and Chandra Dhar Issar, Senior Advocates, (Mr. Ganpat Rai, Advocate, with them), for Appellant; Mr. G. C. Kasliwal, Advocate-General, for the State of Rajasthan and Mr. M. M. Tiwari, Senior Advocate, (M/s. K. K. Jain and R. N. Sachthey, Advocates, with them) for Respondent.
Advocates:
CHANDRA BHAN ISSAR, G.C.KASLIVAL, GANPAT RAI, K.K.JAIN, M.M.TIVARI, R.N.SACH, U.M.TRIVEDI
CHANDRA BHAN ISSAR, G.C.KASLIVAL, GANPAT RAI, K.K.JAIN, M.M.TIVARI, R.N.SACH, U.M.TRIVEDI
Service regulations cannot override the constitutional mandate of Article 311(2). Any removal from service, including those resulting from overstaying leave (even if deemed a "sacrifice of appointment" by regulations), requires providing the employee an opportunity to show cause.
Headnote:(A) Constitution of India - Article 311(2) - Removal from service - Opportunity to show cause - Constitutional protection cannot be bypassed by service regulations - A person is entitled to continue in service until terminated in accordance with law. (Para 6)
(B) Service Regulations - Overstaying leave - Deemed sacrifice of appointment - Whether such a regulation removes the requirement of a hearing under Article 311(2) - Removal for overstaying leave is still a removal and requires an opportunity to show cause, regardless of how the regulation describes the process. (Para 6)
Facts of the case:
A permanent government servant was discharged from service for overstaying leave after several requests for extensions on medical grounds were ignored. No charge was framed, and no opportunity to show cause was provided. The government relied on a service regulation stating that absence for one month or more after leave is considered a sacrifice of appointment, arguing that the removal was automatic and not a termination by the government.
Findings of Court:
The removal from service was illegal as the incumbent was not given an opportunity to show cause as required by Article 311(2) of the Constitution.
Issues: Whether a service regulation that deems an employee to have sacrificed their appointment upon overstaying leave for a month or more exempts the government from providing an opportunity to show cause under Article 311(2) of the Constitution.
Ratio Decidendi: Constitutional protection under Article 311(2) cannot be bypassed by service regulations. Even if overstaying leave is a ground for removal, the government must provide the employee an opportunity to show cause why they should not be removed. The requirement of "reinstatement" under regulations implies a prior termination, and any such removal, if intended as a punishment, must adhere to constitutional mandates. (Para 6)
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether automatic termination under service regulations for unauthorized absence constitutes removal from service requiring a show-cause notice under Article 311(2) of the Constitution. (Para 4 , 5 )
3. Constitutional protections cannot be bypassed by service regulations; overstaying leave is a fault justifying removal, but requires a mandatory opportunity to show cause. (Para 6 )
4. Any order terminating service as a punishment for overstaying leave constitutes removal from service, necessitating a show-cause opportunity under Article 311(2) of the Constitution. (Para 6 )
5. Appeal allowed — Removal from service declared illegal — Case remitted for determination of back salary. (Para 7 , 8 )
6. Does a service regulation providing that an employee sacrifices their appointment by overstaying leave exempt the government from providing a show-cause notice?
No. Constitutional protection under Article 311 cannot be bypassed by service regulations. Even if a regulation describes the outcome as a sacrifice of appointment, terminating service for a fault is a removal requiring a hearing. (Para 6 )
7. Does the requirement of reinstatement under service rules change the legal nature of a termination from removal to a non-punitive act?
No. The court held that the question of reinstatement only arises after considering whether the person should be removed or discharged. A removal remains a removal regardless of how the regulations describe the process of returning to service. (Para 6 )
8. Is overstaying leave a valid ground for removal from government service?
Yes, overstaying leave is a fault that may entitle the government to consider an employee unfit to continue in service and justify removal, provided the mandatory procedure of giving an opportunity to show cause is followed. (Para 6 )
Judgement
HIDAYATULLAH, 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 April 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 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.
2. Jai Shankar 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 an appeal against that order to the Inspector General of Prisons, Rajasthan, but it was dismissed on September 24, 1951. Jai Shankar submitted an appeal to the Home Secretary, Rajasthan Government. He was informed by a letter, dated December 17, 1953 from the Home Secretary that the papers had been sent to the Inspector General, Prisons for necessary action. Jai Shanker alleges that he was called by the 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 his back salary amounting to Rs. 2,369.
3. 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 to 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.
4. 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. 311. 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 th
