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Rajasthan High Court
Wanchoo C.J. & Modi, J.
The Union of India - Appellant
Versus
Askaran - Respondents
D.B. Civil Regular First Appeal No. 25 of 1955
Decided On : April 19, 1957
HELD : Termination of service by notice under para 148 (3) of the Code is not different from compulsory retirement under Art. 465-A of the Civil Service Regulations. Such termination under para MB (3) implies no stigma. It also entails no loss of the benefits already earned by the servant whose service is being terminated. The only difference between he procedure provided in para 148 (3) of the Code and that in Art. 465-A of the Civil Service Regulations is that the latter can only be taken advantage of after 25 years of service, while the former can be used at any time. Therefore, termination of service under para 148 (3) cannot amount to removal or dismissal within the meaning of Art. 311 of the Constitution, for removal or dismissal is a punishment involving loss of benefit already earned. Therefore, a rule like para 148 of the Code is not repugnant to Art. 311 of the Constitution. (Para 16)
The fundamental provision, of the Constitution with respect to every civil servant, except those for whom special provision is made elsewhere, is that his service at the pleasure of the President or the Governor, and is therefore, terminable at his pleasure. The spirit therefore, of the Constitution is not that every public servant holds office during good behaviour and his service cannot be terminated unless it is shown that he is not of good behaviour. This fundamental provision has been restricted by two other provisions. The first of these is Art. 311 which lays down two conditions before a person holding a civil port can be dismissed or removed. The first restriction is that this dismissal or removal cannot be made by an authority subordinate to that by which he was appointed. The second restriction is that if a person has to be dismissed or reduced in rank, this shall not happen unless and until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. But these conditions only apply where a person is removed or dismissed in the sense that action is being taken against him for some misconduct or the like. Where, however, there is no removal or dismissal in this sense, and services are terminated without any stigma and without loss of benefits earned upto the date of the termination of service, there is no protection under Art. 311. The other provision is in Art. 309. This provides that recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State shall be regulated by acts of the appropriate legislature There is also a proviso which gives power to the President or the Governor to frame rules tor this purpose until provision in that behalf is made be or under an Act of the appropriate legislature. Art. 309 of the Constitution has, therefore, to be read as a restriction on the power of the President or the Governor laying down that the pleasure of the President or the Governor provided in An. 310 shall be exercised according to law or rules framed under Art. 309 and not otherwise. So long therefore as the President or the Gov-ernor frames rules for terminating services and lays down the manner in which their pleasuse would be exercised under Art. 310 it cannot be said that the spirit of the Cons-titution is violated by framing a rule like para 148 (3). Generally speaking the protection to a public servant is only this that his services would not be terminated unless it is done under some rule or law framed under Art. 309, and that the rule to be applied to him should be in existence before he joins the service. (Part 17)
2. The case of the plaintiff was briefly this. He joined service in the Jodhpur Bikaner Railway as clerk on the 1st of August, 1919. Later, on the separation of the Jodhpur Bikaner Railway into two railways, the plaintiff remained in the service of the Bikaner Railway which was eventually taken over by the Union of India on the 1st of April, 1950. In February, 1950, the plaintiff was working as an Accountant in the Bikaner Railway in the Mechanical and Engineering Department. He was entitled to remain in service till he completed the ape of 55 years on the 14th of December 1952 ; but as Shri Kapoor, who was then the General Manager of the Bikaner Railway, was annoyed with him, he was removed from service by an order of the Chief Auditor, dated 8th of February, 1950. passed under para 1708 of the Railway Establishment Code (hereinafter called the Code) This order was passed without taking proceedings as requited by that rule, and without complying with Arc. 311 of the Constitution. Consequently the plaintiff filed this suit for the pay etc. which he would have got from the 8th of February, 1950. to the date of his retirement, namely the 11th of December, 1952, and claimed a decree for Rs. 13,183/15/-.
3. The suit was resisted by the Union of India, and three main pleas were raised on their behalf. These were (1) that notice under sec. 80 of the Code of Civil Procedure was not properly served, and was not in strict compliance with that section, and therefore the suit was not maintainable; (2* that the order passed on the 8th of February, 1950, was under rule 148 of the Code, and not under para 1708; and (3) that no proceedings were, under the circumstance?, necessary under Chapter XVII of the Code, and that the termination of the plaintiffs services did not attract the provisions of Art. 311 of the Constitution.
4. The District Judge held that the notice under section 80 of the Code of Civil Procedure was sufficient and in substantial compliance with the law, that the removal was not under para 143, but under rule 1708, and therefore proceedings under Chapter XVII should have been taken, and Art. 311 was applicable. Consequently he decreed the suit for Rs. 10,427/12/-.
5. In the present appeal four points have been raised by the defendant appellant. They are—
(1) that the notice under sec. 80 was not in strict compliance with the provisions of that section, and therefore the suit was not maintainable ;
(2) that the plaintiff was not removed from service under Chapter XVII of the Code, but his services were in fact terminated under para 148 of the same Code ;
(3) that in the circumstances Art, 311 was not applicable, and no proceedings under Chapter XVII of the Code were necessary ; and
(4) that no suit could be maintained for arrears of salary against the defendant, and in any case the amount awarded was not correct,
6. We have heard learned counsel on points (2) and (3) as they are the main points in the case. If the Union of India succeeds on these points, the suit must Jail whatever be the decision on the remaining two points. We shall, therefore, proceed to deal with these two points.
7. The order in dispute is Ex. 37 and is in these terms—
In the interest of Railway, service of Mr. Askaran Bissa, Loco Accountant, is terminated with immediate effect under Discipline and Appeal Rules, para 1708 of the Establishment Code; Vol. I, and its proviso. Under para 148 (3) RI. Mr. Askaran Bissa in entitled to a months notice but in terms of para 148 (4) Mr. Askaran Bissa should be given a months pay in lieu of this notice, The office should immediately prepare
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