Judgment

SARKARIA, J. - This appeal is directed against a judgment of the High Court of Allahabad declaring that the orders dated 15-8-1949 and 18-5-51, of the respondent s removal from service were illegal.

2. The respondent was employed as Assistant Jailor at the Central Prison, Benaras. Auditing of the accounts revealed certain shortages. The respondent was chargesheeted in respect of the same, and dismissed from the post on 4-7-1942. He made representations to the authorities against his dismissal. Ultimately, the Government reinstated him on l5-6-1948 but by the same order suspended him with retrospective effect from the date of his dismissal. On the basis of the enquiry held earlier into the charges against him, he was removed from service on August 15, 1949. The respondent then filed suit No. 144/396 of 1952 in the Court of Munsif. Lucknow, claiming a declaration that the suspension order, dated June 15, 1948, and the removal order dated, 15-8-1949, and the Government Order, dated 18-5-1951, upholding the removal in appeal, were illegal, ultra vires and contrary to the rules. The plaintiff further stated that he would file a separate suit for the recovery of the arrears of pay, to which he was entitled in respect of the period from 4-7-42 to 10-8-1949.

3. The suit was resisted by the State on various grounds. The trial court dismissed his suit. The First Appellate Court dismissed his appeal.

4. The plaintiff preferred a second appeal in the High Court. Before the learned Judge of the High Court, who heard the appeal, it was contended, inter alia that copies of the Enquiry Officer s report and findings were not supplied to the plaintiff and therefore, he was not afforded a reasonable opportunity of showing cause in terms of Article 311 (2) of the Constitution. In substance, the learned Judge seems to have accepted this contention when he concluded that in the absence of furnishing a copy of the report, it could not be said that the plaintiff had been afforded a reasonable opportunity to show cause. He ,however rested this conclusion also on the ground that no cause could properly be shown without a copy of the proceedings being handed over as provided in Rule 5-A of the Punishment & Appeal Rules for Subordinate Services notified by the State Government under Notification No.2627/II-266 dated August 3.1932 ,(hereinafter referred to as the Appeal Rules)In the result, he allowed the appeal and declared the impugned orders, dated 15-8-1949 and 18-5-1951 to be void He did not think it necessary to record any finding with respect to the suspension order ,dated June 15,1948 as the same had merged in the removal orders. Hence this appeal by special leave the State.

5. The plaintiff respondent has not appeared before us despite notice. Mr. R.P. Aggarwala has assisted us as amicus curiae.

6. Shri Dikshit the learned Counsel for the appellant contends that the High Court was wrong in holding that the impugned order of removal violated the provisions of Rule 5-A of the Appeal Rules. It is pointed out that the application of Rule 5-A to the employees of Jail Department was expressly excluded by Rule 6 of the Appeal Rules. It is further submitted that since the removal in question was a pre-constitutional removal, no protection of Article 311 (2) of the Constitution could be claimed by the respondent. Even Section 240 (3) of the Government of India Act, 1935, according to the Counsel, would not afford any protection because the word removal did not find mention in that section. Removal , says the Counsel, is something different from dismissal and the authors of the Government of India Act were aware of this difference when they did not include it in the protective provisions of Section 240. Since the impugned order, dated 15-8-1949, was only an order of removal as distinguished from dismissal, Section 240 (3) was not attracted and no opportunity to show cause against the intended removal was required to be given to the servant.