Termination without providing an opportunity for the petitioner to show cause against the proposed removal from service was a violation of Article 311 and the rules.

1. - This is a petition challenging the termination of the petitioner's service by the order dated 2.1.75 of the Director, Primary and Secondary Education, respondent 2.

2. The petitioner joined as an Assistant Teacher on 24.11.72 While the petitioner was posted at Government Girls Secondary School, Deoli he sought permission to appear at the public examination of M.Sc. (Maths) Final in the year 1975. The Headmistress of the School where he was working relieved the petitioner by her order of 2.12.74 while making clear in it that in the absences of permission received from the Director, the risk will be of the petitioner. The petitioner thereafter took the examination and when he came back to join duty on 1.5.75, he was not taken back. On inquiry he found that respondent 2 had passed an order dated 21.3.75 in which it was stated that as the petitioner had absented himself for more than 90 days without leave his services stand terminated under rule 96(b) of the Rajasthan Service Rules (hereinafter to be called 'the Rules'). The petitioner having represented and having not got any relief has come to this Court against the impugned order.

3. The justification given in the reply is that the petitioner had himself on 2.12.74 on his own request sought to be relieved from his duty for the purpose of taking the examination even when the matter was pending before the higher authorities. It is pointed that as the petitioner had not completed 3 years on continued service he was not entitled to any extraordinary leave under the provisions of the Rules nor did he apply for such leave because he knew that none was available.

4. It is not necessary to go into the merits of this contention because the only point that is urged is that termination of service in the circumstances could not be done without first holding an inquiry under the rules. In the impugned order reference is made to rule 96, but that rule only relates to the grant of extraordinary leave. In the reply both rules 96 and 86 have been invoked. It is apparent that the action has been purported to be taken under rule 36 of the Rules which is as under:-

"R.86. A Government servant who remains absent after the end of his leave is entitled to no leave salary for the period of such absence and that period will be treated as though it were leave on half pay unless his leave is extended by Government. Wilful absence from duty after the expiry of leave may be treated as misbehaviour for the purpose of this rule."
A reading of the rule shows that wilful absence from duty after the expiry of leave may be treated as misbehaviour for the purpose of this rule. Apparently the Government is acting under rule 86 because the reply says that the petitioner got himself relieved without having taken any leave because he knew that no leave was available to him. The short point however is whether Government when acting under rule 86 could have terminated the services of the petitioner without first holding an enquiry under the rules. The matter is now concluded by the decision of the Supreme Court in Jai Shanker v. State AIR 1966 SC 492 . That case also went from this Court. The Government servant is that case had been removed by virtue of regulation 13 which provided that an individual who absents himself without permission and who remains absent without permission for one month or longer after the end of leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority. The Government employee is that case was to join duty on 13.8.50 but returned to join duty on September 1, 1950 but he was told that his services had been discharged with effect from 13.8.50. The Supreme Court held that the Government servant was entitled to an opportunity to show cause against the proposed removal from service for over staying his leave and as no opportunity was given to him his removal from service was illegal.

5. In 1976(2) SLR 430 State of