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B.M. Tripathi Vs. the State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtAllahabad High Court
Decided On
Case NumberWrit Petition No. 376 of 1970
Judge
Reported inAIR1971All346
ActsConstitution of India - Article 311
AppellantB.M. Tripathi
RespondentThe State of U.P. and ors.
Appellant AdvocateR. Nath, Adv.
Respondent AdvocateS.C. Mathur, Chief Standing Counsel
DispositionPetition allowed
Excerpt:
.....subsidiary rule applies fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him under this rule, or where such a government servant who is granted a lesser amount of extraordinary leavethan the maximum amount admissible, remains absent from duty for any period which, together with the extraordinary leave granted, exceeds the limit upto which he could have been granted such leave under sub-rule (a), he shall, unless the governor in view of the exceptional circumstances of the case otherwise determines, be deemed to have resigned his appointment and shall, accordingly, cease to be in government employ'.6. a similar rule contained in jodhpur service regulations came for interpretation before the supreme court in jai shankar v. 10. on behalf of the..........subsidiary rule applies fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him under this rule, or where such a government servant who is granted a lesser amount of extraordinary leavethan the maximum amount admissible, remains absent from duty for any period which, together with the extraordinary leave granted, exceeds the limit upto which he could have been granted such leave under sub-rule (a), he shall, unless the governor in view of the exceptional circumstances of the case otherwise determines, be deemed to have resigned his appointment and shall, accordingly, cease to be in government employ'.6. a similar rule contained in jodhpur service regulations came for interpretation before the supreme court in jai shankar v. state of rajasthan, (air.....
Judgment:

Jagmohan Lal, J.

1. The petitioner B. M. Tripathi was a temporaryemployee of the State Government, Uttar Pradesh, who was appointed on 21-12-1961 as a salesman at the Government U. P. Handicrafts show-room, Lucknow. After some time he was transferred in the same capacity to Gorakhpur showcase displayed at the railway station by the U. P. Government Handicrafts. While he was working there, his services were terminated with effect from 11-11-1964, (vide annexure 1 to the writ petition). On a representation made by the petitioner these orders were withdrawn by the Government, vide annexure 2 dated 21-12-1965, in which the petitioner was directed to join his duty as a salesman at Handicrafts show-room, Tajmahal, Agra. This order was received by the petitioner on 5-1-1966. The petitioner then sought some clarification from the Director of Industries, U. P., Kanpur, regarding the terms on which he was being reinstated after the withdrawal of the previous order relating to the termination of his service with effect from 11-11-1964. This clarification was furnished to him by the Director of Industries (Vide Annexure 3 dated 24-2-1966) which was received bv him on 9-3-1966. After that the petitioner proceeded to Agra and he reported himself for duty in the forenoon of 17-3-1966. But immediately after that he applied for ten days leave with effect from the afternoon of 17-3-1966. The petitioner did not then resume his duty and he was sending applications from time to time for extension of his leave upto 19-9-1966.

2. The petitioner's contention is that on 20-9-1966 on a verbal order issued by the then Special Manager, U. P. Government Handicrafts Show-room Luck-now, he was transferred to Lucknow and he reported himself for duty on the same day at this show-room where he continued to work till 28-9-1967 on which date he was served with an order dated 23-9-67 (Annexure 8) purporting to have been passed by the Additional Director of Industries, Uttar Pradesh. This order recited the facts relating to the termination of the petitioner's services with effect from 11-11-1964 and the subsequent withdrawal of this order by means of another order passed by the Government (vide Annexure 2). It was stated therein that since this order had been served on the petitioner on 5-1-1966 he should have joined his duty at Agra on 13-1-1966 at the latest after availing of the joining time permissible under the rules and that the time spent by him in seeking clarification from the Director of Industries was uncalled for and unnecessary. Hence only the period from 11-11-1964 to 12-1-1966 shall be considered as the period spent by the petitioner on duty in terms of the orders passed by the Government and the subsequent period from 13-1-1966 to 16-3-1966 had to be covered by a proper application to be presented by the petitioner, he would be granted earned leave on full average pay for this period. Since the petitioner had again proceeded on leave with effect from the after-noon of 17-3-1966 and he made applications from time to time for extending his leave upto 19-9-1966, it was found on a reference to his leave account that leave on full average pay, leave on private affairs on half average pay and extraordinary leave without pay could be granted to him only for the period from 18-3-1966 to 12-9-1966 and thereafter no leave whatsoever could be granted to him.Lastly, it was stated that since the petitioner had wilfully absented himself from duty without even making any application for leave after 19-9-1966, he shall be deemed to have resigned his appointment in view of the provisions contained in subsidiary Rule 157-A (3) and he shall accordingly cease to be in Government employment after 12-9-1966.

3. On receipt of this order the petitioner filed an appeal against it to the Director of Industries and then to the Government. Not getting any redress from those authorities he filed this writ petition challenging the said order. One of the grounds on which this order has been challenged is that it amounts to his dismissal or removal from service and since it was passed without complying with the provisions of Article 311, it is void and illegal. The petitioner prayed for quashing of this order by issuing a writ of certiorari and further prayed for a mandamus commanding the opposite-parties who are the State of Uttar Pradesh. the Director of Industries Uttar Pradesh and the Special Manager. U. P. Handicrafts, Lucknow to treat the petitioner in service without any break in service with all the benefits which have accrued to him.

4. The petition was contested on behalf of the opposite-parties. It was reiterated by the opposite-parties that the seeking of clarification by the petitioner was uncalled for and unnecessary and that the period spent by him in doing so could not be treated as the period spent on duty and for that period the petitioner had to apply for leave. It was also denied that the petitioner had, under any verbal order, been transferred to Lucknow on 20-9-1966. It was contended that since the petitioner had over-stayed the period upto which leave could be granted to him, he shall be deemed to have resigned his appointment under subsidiary Rule 157-A (4) (b).

5. I heard the learned counsel for the petitioner and the learned Standing Counsel. The first point that arises for our consideration is whether the services of the petitioner could be terminated under subsidiary Rule 157-A (4) (b) in the manner they purported to have been done by means of the order contained in Annexure 8 without complying with the provisions of Article 311. The relevant portion of this rule under which this order has been passed provides:--

'Where a Government servant to whom this Subsidiary Rule applies fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him under this rule, or where such a Government servant who is granted a lesser amount of extraordinary leavethan the maximum amount admissible, remains absent from duty for any period which, together with the extraordinary leave granted, exceeds the limit upto which he could have been granted such leave under Sub-rule (a), he shall, unless the Governor in view of the exceptional circumstances of the case otherwise determines, be deemed to have resigned his appointment and shall, accordingly, cease to be in Government employ'.

6. A similar rule contained in Jodhpur Service Regulations came for interpretation before the Supreme Court in Jai Shankar v. State of Rajasthan, (AIR 1966 SC 492). Regulation 13 of those Regulations provided :--

'An individual who absents himself without permission or 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.'

7. Leaving apart the difference in the language of the two rules, they are almost similar in their substance. It was held by the Supreme Court that the removal of a Government servant from service for overstaying his leave is illegal even though it is provided by the service Regulation that any individual who absents himself without permission after the end of his leave would be considered to have sacrificed his appointment and may be reinstated only with the sanction of the competent authority. It was further observed by the Supreme Court that a discharge from service of an incumbent by way of punishment amounts to removal from service and the constitutional protection of Article 311 cannot be taken away from him by contending that under the Service Regulations the incumbent himself gives up the employment and all that the Government does is not to allow the person to be reinstated. In my opinion the principle laid down by the Supreme Court in that case would be applicable to the present case also.

8. The learned Standing Counsel pointed out that the case before the Supreme Court governed by Regulation 13 of Jodhpur Service Regulations related to a permanent servant whose service could not be dispensed with without complying with the provisions of Article 311, while the petitioner is a temporary servant whose service could be terminated under the rules governing such servants by serving on him one month's notice, and that the above rule is also a rule of that nature regulating temporary employment and providing that under certain circumstances a temporary Government servant shall bedeemed to have himself resigned his job. A resignation connotes the volition of the servant to give up his job and it comes into being by his expression of that volition. It cannot be forced on him by the act of the employer. In this case the petitioner did not want to give up his job as would be evident from the fact that soon after the service of this order he filed an appeal against it on 11-12-1967 vide Annexure 10. The position would have been different if the above rule had provided that the service of a temporary Government servant in the circumstances mentioned in this rule can be terminated forthwith without service of one month's notice on him. But to say that he shall be deemed to have resigned in these circumstances is an entirely different thing.

9. Besides that, in this case it was not a simple termination of the service of a temporary servant. The recitals contained in the order show that his employment was also terminated for a specific fault of wilfully absenting himself from duty after 19-9-1966. To say that a Government servant has wilfully absented himself from duty casts a stigma on him as it suggests that he is an irresponsible person who has no sense of duty in him. It is the settled law that if the service of even a temporary Government servant is sought to be terminated by way of punishment on account of some specific fault then provisions of Article 311 must be complied with. In this connection reference may be made to the decision of the Supreme Court in Jagdish Mitter v. Union of India (AIR 1964 SC 449). In my opinion on both these grounds this order is liable to be quashed. Whether or not the petitioner had wilfully absented himself from duty after 19-9-1966 was a disputed question of fact in this case. Unless the appointing authority had given an opportunity to the petitioner to show cause, he could not place the necessary material before that authority to enable it to come to a correct decision on this point.

10. On behalf of the petitioner the factual position as recited in this order regarding the leave due to the petitioner as well as the fact that he did not resume duty after 19-9-1966 was also disputed and a number of documents had been filed by him in support of his challenge. Since this writ petition can be decided on the above legal point alone, it is not necessary to enter into these controversial facts.

11. The writ petition is accordingly allowed and the order passed by the Additional Director of Industries, contained in Annexure 8, is quashed. The petitioner shall be deemed to have continued in service subject to the provisions of relevant rules governing him so long as his services are not dispensed with according to law. Having regard to the circumstances of the case, the parties shall bear their own costs.


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