1. The appellant Jai Shankar who, appeals to this court by special leave against the judgment of the High Court of Rajasthan, dated 11 Dec. 1962, was a head warder, Central Jail, Jodhpur in 1950. He had started his service as a Warder in April 1940, was promoted as Head Warder in 1944 and was a permanent servant of the State. On 14 April 1950 he proceeded on leave for two months ending on 13 June 1950. He applied for extension of leave on medical grounds for twenty days, as he had fallen ill, and again for ten days. Later he asked for and extension by a month. He was due to join on 13 August 1950. On 14 August, 1950 he was told that no more leave would be granted and that his transfer to Jaipur, made while he was ill at Hyderabad, would not be cancelled.
2. Jai Shanker returned to Jodhpur from Hyderabad on September 1, 1950 and applied for further leave. He made several applications. His last application was sent by Registered post, supported by a medical certificate, on November 3, 1950 asking for leave till November 11, 1950. To his last and some of the earlier applications for leave he received no reply and on 8 Nov., 1950, he received a communication dated 2/4 November 1950 of the Deputy Inspector General, Prisons under endorsement Central Jail Jodhpur, the Superintendent, Central Jail Jodhpur that he was discharged from service from 13 August 1950. He preferred an appeal against that order to the Inspector General of Prisons Rajasthan but it was dismissed on 24 Sept., 1951. Jai Shankar submitted an appeal to the Home Secretary, Rajasthan Govt. He was informed by a letter dated 17 Dec., 1953, from the Home Secretary that the papers had been sent to the Inspector General, Prisons for necessary action. Jai Shanker alleges that he was called by Personal Assistant to the Inspector General and was offered reinstatement if he undertook not to claim back salary but he declined the offer. After serving a notice under s. 80 of the Code of Civil Procedure, Jai Shanker filed the suit from which this appeal arises. He asked for a declaration that the termination of his service was illegal inasmuch as he was entitled to a notice enabling him to show cause against the termination of his service as required by Art. 311 of the Constitution. He also asked for his back salary amounting to 2369.
3. The Subordinate Judge, Jodhpur decided that Jai Shankar's allegation about his illnesses were true but he rejected the contention that the discharge from service was illegal. As a consequence the claim for back salary was disallowed and the suit was ordered to be dismissed. On appeal to the District Court, Jai Shankar succeeded in getting a reverse; of the decree of the trail Judge. The District Judge, Jodhpur, held that Jai Shankar was entitled to a declaration that his removal from service was illegal and was that he continued to remain in employment and was also entitled to all arrears of salary admissible to him under the rules. The State Govt. appealed against the judgment and decree of the District Judge and by the order under appeal the decree of the District Judge was set aside and the decree of the Subordinate Judge was restored. Jai Shankar was ordered to pay costs in the High Court and the two Courts below.
4. The short question in this appeal is whether Jai Shanker was entitled to an opportunity to show cause against the proposed punishment as required by Clause (2) of Art, 311. It is admitted that no charge was framed against him. Nor was he given any opportunity of showing cause. The case for the State Government is that Government did not terminate Jai Shanker's service, and that it was Jai Shanker who gave up the employment by remaining absent. It is submitted that such a case is not covered by Art. 311. In support of this contention certain Regulations of the Jodhpur Service Regulations are relied upon and we shall now refer to them. Regulation 7 lays down that leave cannot be claimed as a right and that Government has discretion to refuse or revoke leave of any description. Regulation 11 lays down that an individual who has been granted leave on medical grounds for a period of one month or more may not return to duty without producing a certificate of fitness signed by an officer authorised by a general or special order to grant such certificate. Regulation 12 lays downthat an individual who absents himself without permission or remains absent at the end of his leave is entitled to no salary for the period of such absence and that period will be debited against his leave account unless the leave is sanctioned or extended under the ordinary rules by competent authority. Regulation 13 is important because it forms the basis of the contention that Art. 311 does not apply to this case. That Regulation may be reproduced here :
'13. An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority.
Note :- The submission of an application for extension of leave already granted does not entitle an individual a absent himself without permission.'
5. It is contended that this regulation operated automatically and no question or removal from service could arise, because Jai Shankar must be considered to have sacrificed his appointment. Under the regulation his he could only be reinstated with the sanction of the competent authority. We have therefore, to determine whether this regulation is sufficient to enable the Govt. to remove a person from service without giving him an opportunity of showing cause against that punishment, if any.
6. It is admitted on behalf of the State Government that discharge from service of an incumbent by way of punishment amounts to removal from service. It is, however, contended that under the Regulation all that Government does, is not to allow the person to be reinstated. Government does not order his removal because the incumbent himself gives up the employment. We do not think that the constitutional protection can be taken away in this manner by a side wind. While, on the one hand, there is no compulsion on the part of the Government to retain a person in service if he is unfit and deserves dismissal or removal, on the other, a person is entitled to continue in service if he wants until his service is terminated in accordance with law. One circumstance deserving removal may be over-staying one's leave. This is a fault which may entitle Government in a suitable case to consider a man as unfit to continue in service. But even if a regulation is made, it is necessary that Government should give the person an opportunityof showing cause why he should not be removed. During the hearing of this case we questioned the Advocate General what would happen if a person owing to reasons wholly beyond his control or for which he was in no way responsible or blameable, was unable to return to duty for over a month, and if later on he wished to join as soon as the said reasons disappeared? Would in such a case Government remove him without any hearing, relying on the regulation The learned Advocate General said that the question would not be one of removal but of reinstatement and Government might reinstate him. We cannot accept this as a sufficient answer. The Regulation, no doubt, speaks of reinstatement but it really comes to this that a person would not be reinstated if he is ordered to be discharged or removed from service. The question of reinstatement can only be considered if it is first considered whether the person should be removed or discharged from service. Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The Regulation involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by over-staying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Art. 311. A removal is removal and if it is punishment for over-staying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Art. 311 and this is what has happened here.
7. In our judgment, Jai Shankar was entitled to an opportunity to show cause against the proposed his leave and as no such opportunity was given to him removal from service was illegal. He is entitled to this declaration. The order of the High Court must therefore, be sent aside and that of the District Judge, Jodhpur restored. The question of what back salary is due to Jai Shankar must now be determined by the trial Judge in accordance with the rules applicable, for which purpose there shall be a remit of this case to the Civil Judge, Jodhpur.
8. The State Government shall pay the costs of Jai Shankar in this Court, High Court and the two Courts below, incurred so far. The appellant has been permitted to appeal in forma pauperis. The State will pay the Court fee payable on the memorandum. The Advocate for the appellant will be entitled to recover his costs.
9. Appeal allowed.