Case Note & Summary
This appeal arose from a service dispute between a permanent Head Warder of the Central Jail, Jodhpur, and the State of Rajasthan. The appellant had joined as Warder in April 1940 and was promoted as Head Warder in 1944, holding a permanent post. On 14 April 1950, he proceeded on leave for two months ending 13 June 1950. Due to illness, he applied for extensions of leave on medical grounds, initially for 20 days and then for 10 days, later for a month. The State refused leave beyond 13 August 1950 and informed him of a transfer to Jaipur. The appellant returned to Jodhpur from Hyderabad on 1 September 1950 and made further leave applications, the last one on 3 November 1950 supported by a medical certificate. On 8 November 1950, he received a communication from the Deputy Inspector General of Prisons stating that he was discharged from service with effect from 13 August 1950. His departmental appeals were unsuccessful. After serving a notice under Section 80 of the Code of Civil Procedure, he filed a suit seeking a declaration that the termination of his service was illegal and claiming back salary of Rs 2369. The Subordinate Judge dismissed the suit, but the District Judge reversed the decision and granted the declaration along with arrears of salary. On further appeal, the Rajasthan High Court restored the trial court's dismissal, leading to the present appeal by special leave. The core legal issue was whether Regulation 13 of the Jodhpur Service Regulations, which provided that an individual absenting himself without permission for one month or longer after the end of leave should be considered to have sacrificed his appointment and could only be reinstated with the sanction of the competent authority, attracted Article 311(2) of the Constitution. The appellant argued that no charge was framed and no opportunity to show cause was given, violating Article 311(2). The State contended that the service terminated automatically under Regulation 13 and that Article 311 did not apply because the question was only of reinstatement, not removal. The Supreme Court rejected the State's argument, holding that constitutional protection under Article 311 could not be taken away by a side wind. The Court observed that Regulation 13, though framed as automatic termination, in substance involved punishment for overstaying leave. It threw the burden on the incumbent to secure reinstatement by showing cause, but that did not make the removal automatic. Any order resulting in termination of service when the incumbent was willing to serve amounted to removal and required an opportunity to show cause. The Court reasoned that the question of reinstatement could arise only after it was decided whether the person should be removed or discharged from service. Since no opportunity to show cause was given, the removal was illegal. The Supreme Court set aside the High Court's judgment, restored the District Judge's decree, and remitted the case to the trial judge for determination of back salary due in accordance with the rules.
Headnote
A) Constitutional Law - Government Employment - Removal from Service - Constitution of India, 1950, Article 311(2); Jodhpur Service Regulations, Regulation 13 - The appellant, a permanent Head Warder, was discharged from service for overstaying leave without being given an opportunity to show cause. The State contended that Regulation 13 caused automatic termination of appointment and therefore no removal under Article 311 arose. The Supreme Court held that constitutional protection under Article 311 cannot be taken away by a side wind; the regulation in substance involves punishment for overstaying leave and requires an opportunity to show cause before removal. Termination of service of a willing incumbent amounts to removal, and denial of opportunity violates Article 311. Held that the removal was illegal and the appellant entitled to a declaration to that effect.
Issue of Consideration
Whether Regulation 13 of the Jodhpur Service Regulations providing automatic termination of service for overstaying leave beyond one month attracts Article 311(2) of the Constitution and requires giving an opportunity to show cause before removal.
Final Decision
Appeal allowed; order of High Court set aside and order of District Judge, Jodhpur restored. Appellant entitled to declaration that his removal from service was illegal. Case remitted to the trial Judge for determination of back salary due in accordance with the rules.
Law Points
- Article 311(2) protection cannot be taken away by a side wind
- Regulation 13 involves punishment for overstaying leave
- termination of service when incumbent willing to serve amounts to removal
- opportunity to show cause mandatory before removal
- service regulations cannot deem automatic termination outside constitutional protection
