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