B.J. Divan, J.
1. The petitioner, who was recruited as a Mechanical Overseer temporarily and who was subsequently promoted as an officiating Deputy Engineer, has challenged certain orders passed by the Government of Gujarat against him in certain departmental proceedings initiated against the petitioner and the order of dismissal passed as a result of those departmental proceedings. The order, Annexure, 'G' to the petition is dated August 2, 1966. By that order the petitioner was dismissed from service form the date of the Resolution i.e. from August 2, 1966; and it was declared that an amount of Rs. 636.41 should be recovered from the petitioner, inasmuch as he was found to be negligent in the discharge of his duties as a result of which the Government suffered a loss of 5081.28 P.
2. On August 27, 1955, the petitioner was appointed as Mechanical Overseer on the establishment of Mahi Mechanical Division, Thasra. This appointment was made as a temporary measure until further orders and was terminable without notice to the petitioner. This appointment was on work charged establishment. Thereafter on August 16, 1958, the petitioner was promoted as officiating Deputy Engineer purely as a stop-gap local arrangement and was posted to Kadhna Mechanical Sub-Division. Kadana Colony Site. The petitioner continued to work as an Officiating Deputy Engineer and on August 26, 1963, he proceeded on leave. During the time that he was on leave he received a letter bearing no date but appearing to have been issued in September, 1963. This letter was from the Deputy Secretary to the Government of Gujarat, Public Works Department, which called upon him to show cause within 30 days from the date of the receipt of the letter why the proposed action of recovering 25% of the value of the contents of a box viz. Rs. 5081.28, should not be taken against the petitioner and it was alleged in this letter of September, 1963. That the petitioner was negligent in the discharge of his duties hand that this negligence had resulted in the loss of Rs. 5081.28 P. Sometime in December 1963, by his letter bearing no date, the petitioner tendered his resignation and he stated that this resignation should take effect from September 1, 1963, i.e., the date of his proceedings on leave and in this letter of resignation he stated that he was required to give one month's notice if he intended to resign and he was, therefore, ready to pay one month's pay in lieu of one month's notice by Chalan in the nearest Government Treasury. At that time the petitioner was staying at Karamsad near Anand in Kaira District. In this in this letter of resignation, Annexure 'D' to the petition, the petitioner also stated :-
'I shall be highly obliged if my resignation is considered sympathetically and accepted as requested above.'
In reply to this letter of resignation a memorandum was issued by the Deputy Secretary to the Government of Gujarat, Public Works Department; it was issued by order and in the name of the Governor of Gujarat. The memorandum was dated January 24, 1964 : and the petitioner was informed that his resignation was not accepted 'at present' and it was directed that the petitioner should not be relieved from Government service. On September 7, 1964, a Departmental Enquiry was ordered against the petitioner and one B. P. Prasad regarding the alleged negligence of the petitioner and the said B. P. Prasad in connection with the loss aggregating to R. 5081.28 P. alleged to have been caused to the Government by the petitioner and Prasad. The enquiry Officer submitted his report on December 7, 1964 and thereafter a show-cause notice was issued to the petitioner asking him to show cause why the proposed punishment of dismissal from Government service should not be passed. The Government came to the conclusion that the charges against the petitioner were established and after careful consideration of the report and the reply of the petitioner to the show-cause notice, the Government decided to dismiss the petitioner from Government service from the date of the resolution and to recover from him an amount equal to Rs. 636.41 P. On these facts the petitioner has challenged the order dismissing him from service and directing that an amount of Rs. 636.41 P. should be recovered from the petitioner.
3. Mr. Daru, appearing on behalf of the petitioner, has contended that in the instant case, the petitioner has never been conformed in Government service and that all along he was a temporary Government servant and that under the terms of his letter of appointment, his appointment was a temporary measure until further orders and was terminable without notice to the petitioner. Mr. Daru has further contended that so far as Government service is concerned, the terms and conditions of a Government employee are directed more by law than by contract and in the light of the provisions of Art. 309 and Art. 311 of the Constitution, it is more a question of statues than a contract. In this connection, Mr. Daru relies upon certain observations of the Supreme Court in Joshan Lal v. Union of India : (1968)ILLJ576SC . At page 1894 of the report, Ramaswami J. delivering the judgment of the Court has observed in para 6 :-
'It was said that the order of the Railway Board, dated January 25, 1958, Annexure 'B' laid down that promotion to Grade 'C' from Grade 'D' was to be based on seniority-cum-suitability and this condition of service was contractual and could not be altered thereafter to the prejudice of the petitioner. In our opinion, there is no warrant for this argument. It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to this post or office the Government servant acquires a status and his right and obligations are no longer determined by consent of both parties, but by statue or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of statues than of contract. The hall-mark status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statue or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Government under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. The matter is clearly stated by Salmond and Williams on Contracts as follows :- 'So we may find both contractual and status-obligation produced by the same transaction, The one transaction may result in produced by the same transaction, The one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligation defined by the law itself, and so pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law instant has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation low accidents. The extent to which the law is content to leave matters within the domain of contract to be determined by the exercises of the autonomous authority of the parties themselves, or thinks for to bring the matter within the sphere of status by authoritatively determining for itself contracts of the relationship, is a matter depending on considerations of public policy, In such contracts as those of service the tendency in modern times is to withdraw the matter more and more from the domain of contract into that of status''.
(Salmond and Williams on Contracts, 2nd edition, p. 12.)
4. In the light of the above passage from the decision in Roshan Lal's case (supra), it is clear that so far as a Government employee is concerned, his legal position is more one of status than of contract and that being so, it open to the Government to govern his terms of service by statue or statutory rules which may be unilaterally altered by the Government without the consent of employee, The rules in this behalf can be framed by the Government under Art. 309 of the Constitution and that which would otherwise be governed by the ordinary law of contract between employer and employee, can be altered even prejudicially to the employee by the appropriate rule made in that behalf. As regards the Bombay Civil Service Rules as they stand present, there is no provisions in any of the rules regarding a resignation tendered by a Government servant and the matter has to be considered purely from the point of view of contractual relationship between the master and the servant as if the parties were private parties. If would be open to the Government to provide by any rule made in that behalf that a relationship tendered by a Government employee does not take effect until resignation has been accepted by the Government or the appropriate Officer of the Government.
5. Mr. Shelat, on behalf of the respondents, has relied upon Government Circular bearing No. 1042/52, dated August 10, 1953. A copy of this Circular is annexed as Ex. I in the affidavit-in-reply of C. B. Pandya. Under-secretary to the Government of Gujarat, Public Works Department, being affidavit, dated December 24, 1969. This Circular points out that the question had been raised as to when the resignation tendered by a Government servant becomes effective and by way of classification, the Circular was issued purporting to lay down that the resignation becomes effective from the date its acceptance is communicated to the person concerned by the appropriate authority and not from the date of the resignation. The Circular then proceeds to issue instructions in regard to acceptance of resignation tendered by a Government servant. It is not possible for us to accept this Circular as a statutory rule made by the Government under Art. 309 of the Constitution. It is in the form of certain recommendations and instructions issued by the Government to its subordinate and not a rule framed under the rule-making power vested in the Government under Art. 309 of the Constitution. Therefore, this Circular cannot help the petitioner in any manner.
6. In Raj Kumar v. Union of India : (1970)ILLJ13SC , the petitioner before the Supreme court was a Member of the Indian Administrative Service and he asked the Government to relive him from service. The Government accepted the resignation to the petitioner, he withdrew his resignation and it was held by the Supreme Court that the petitioner has no locus paenitentiae to so withdraw his offer of registration after it was accepted it was further held that the principle that an order terminating employment is not effective until it is initiated to the employee could not apply to the facts in that case. The Supreme Court also held that no rule had been framed Under Art. 309 of the Constitution about when the resignation becomes effective. Before the Supreme Court a memorandum issued by the Government of India, Ministry of Home Affairs, on May 8, 1968, was sought to be relied upon and the Supreme Court pointed that that Circular had no statutory force. In that particular case. The petitioner concerned belonged to the Indian Administrative Service and was in August, 1964 posted as Collector and District Magistrate. On August 21, 1964, he addressed a letter to the Chief Minister, Rajasthan, setting out several grievances and finally stated - 'In conclusion I would only request that the Government may do me the kindness of accepting my resignation from the service which I am submitting separately a I am convinced that it would be impossible to continue in such am atmosphere without being humiliated from time to time.' He also addressed a letter, dated August 30, 1964, to the Chief Secretary to the Government of Rajasthan submitting his resignation from the Indian Administrative Service for early acceptance and requested that it might be forwarded to the Government of India with the remarks of the State Government. The State Government recommended that the resignation be accepted. On October 31, 1964, the Government of India accepted the resignation of the appellant and requested the Chief secretary to the Government of Rajasthan 'to intimate the date on which the appellant was relieved of his duties so that a formal notification could be issued in that behalf.' After some time the appellant changed his mined and by letter, dated November 27, 1964, he requested the Chief Secretary to the Government of Rajasthan to recommend 'acceptance of the withdrawal' of his resignation from the Indian Administrative Service. He also addressed a separate letter to the Secretary to Government of India, Ministry of Home Affairs, intimating that he was withdrawing hi resignation from the Indian Administrative Service. On March 29, 1965, an order accepting the resignation of the appellant from the Indian Administrative Service was issued and the appellant was directed to hand over charge to the Additional Collector, Kota. The appellant then moved a petition in the High Court of Punjab at Delhi for the issue of a writ of certiorari calling for the record of the case and quashing the order passed by the Government of India accepting the resignation of the appellant, and also quashing the order dated March 29, 1965, issued by the State of Rajasthan. The High Court rejected the petition holding the resignation become effective on the date on which it was accepted by the Government of India, and a subsequent withdrawal of the resignation was ineffective, even if acceptance of the resignation was not intimated to the appellant. The Supreme Court took the same view as the High Court and dismissed the appeal against the order of the High Court.
7. We may point out that in Raj Kumar's case (supra), the Supreme Court based its decision on the facts of the case, viz., that there was a clear resignation by the Officer concerned and that resignation was accepted on October 31, 1964, through it might not have been communicated to the officer and through the formal order accepting the resignation was passed on March 29, 1965. What is more important to note, however, is that a Circular similar to the Circular, Ex. 1, to the affidavit-in-reply before us was held to have no statutory effect and it was also held that no rule had been framed under Art. 309 of the Constitution as to when the resignation tendered by a Government servant is to be effective.
8. The learned Additional Government pleader relied upon the wording of the letter of resignation, annexure 'D' to the petition and he emphasized the following words in that letter of resignation :-
'I shall be highly obliged if my resignation is considered sympathetically and accepted as requested above.'
In the first Para of that letter, the petitioner wrote :-
'In view of may present domestic circumstances, I have to tender may resignation from the post of an officiating Deputy Engineer, S. K. Mech. & Stores Sub-division, Mankadi Colony with a request to consider my resignation with effect from 1st September, 1963, the date of my proceeding on leave.'
When we read annexure 'D' as a whole, it is clear that the petitioner was tendering his resignation and was also willing to pay one month's pay in lieu of one month's notice but acceptance a requested above in the third para of the letter is referable only to acceptance of the resignation with effect from September 1, 1963. There being no statutory rule as to when a resignation tendered by a Government servant in the employment of the State Government is to take effect, the matter will have to be considered as if the relationship between the petitioner and the State Government was that of a private employer and employee.
9. The learned Additional Government Pleader relied upon the decision in Ganesh v. G. I. P. Railway. 2 Bom. L.R. 770. In that case, the plaintiff, a station master in the defendant company's service proceeded on February 14, on three months' leave without pay. On May 5, the plaintiff wrote to the defendants expressing his unwillingness to serve any longer and asking them to accept his resignation within 24 hours. No answer was sent to this and the plaintiff did not return to duty on May 14, that is, on the expiration of his leave. Subsequently on or about May 19, the plaintiff was served with a notice dated May 13, that he was dismissed from service. The plaintiff contended that inasmuch as he permanently absented himself, all relationship between the parties ceased and there was no service in existence from which he could be dismissed. It was held by a Division Bench consisting of Sir Lawrence Jenkins C.J. and Ranade J., that the plaintiff's letter of May 5, was an intimation of his intention not to perform the service to which he was bound; and that, therefore, there was on the 13th May, a anticipatory breach which in the events entitled the defendants to determine the contract by dismissing the plaintiff. Sir Lawrence Jenkins C.J. observed :-
'A contract of service is continuing in its nature, and its continuance and the obligation under it can only be terminated in certain defined modes. Mere resignation is not enough unless it be assented to, or unless it comply with those terms which the law implies, or the prior agreement of the parties may permit.'
Ranade J., at page 795 of the report, has observed :-
'It was circumstance quite immaterial on the merits that plaintiff was on leave when he gave the resignation with 24 hours notice. The usual period under Rule 264 is one month. The rule of service apply to the servant equally when he is on service or when he has obtained leave. If the plaintiff while still at his post had given 24 hours' notice and left his post, it would surely have been a misconduct. Similar conduct while on leave, must be equally a breach of the rule, more especially when a plaintiff acted in concert with others'.
In this particular case, the matter was considered from the point of view of rule of service and it was taken for granted that the contract of service was still in existence at the time when the order of dismissal was passed against a servant of the railway company.
10. In Sudarsana Rao v. J. A. Christian Pillai, A.I.R. 1924 Mad. 396, an Honorary Magistrate reigned his office on September 21, 1922 and the resignation was accepted on October 17, 1922. In the meanwhile on September 21, 1922 because of the fact that he was an Honorary Magistrate, he was appointed the President of the Local Board and the question arose whether his appointment as President was properly made. On these facts Ramesam J., sitting singly, held :-
'To resign is not a matter of right. This is not inconsistent with the passage from Rogers on Elections, volume II, pages 27, 28, 29 where it was said that there must be substantial renunciation. In the case cited at page 79 (Lanarkshire 2 Doyl. 367), It is clear that the resignation was accepted through informally before the election. In the other case cited at pages 28-29 (Abarbrothok) the facts are not fully stated, and there is nothing to show that the resignation was not accepted before the election. It may be that the need for acceptance does not apply to honorary appointments and it is a question of fact in each case whether the resignation amounted to a renunciation without acceptance, and may depend to a certain extent on the contents of the letter of resignation, which is not filed in this case.'
These two decisions in Ganesh's case and Sudarsana Rao's case were referred to by Miabhoy J. (as he then was) in Savabhai v. D. M. Vin, 5 G.L.R. 153. In that case, Miabhoy J. delivered the judgment of the Division Bench consisting of himself and M. U. Shah J. In that particular case, the petitioner before the High Court in the petition under Article 226 and 227 of the Constitution was the manger of a concern manufacturing pickles, Apparently, during the pendency of an industrial dispute, the petitioner was discharged from service. He submitted his resignation and intimated that the resignation would be effective from October 18, 1960. The employer was not willing to accept the resignation and the petitioner was asked to report for duty as usual. Thereafter, the matter went to the Labour Court at Ahmedabad under the provision of S. 33-C of the Industrial Disputes Act, 1947. On these facts, Miabhoy J. observed in Para 4 of the judgment at page 156 of the report :-
'The word 'resignation' or the expression 'termination of service' does not appear to have been defined in the settlement. Our attention is not drawn to any part of the settlement which can throw any light on the interpretation of the aforesaid two expressions. Whether resignation can or cannot be effective without its acceptance by the employer is not merely a question of law but depends upon the circumstances of each case. Primarily it depends upon the terms of the contract of service. If an agreement between the employer and the employee is that, before resignation can be effective, acceptance thereof by the employer is necessary then, it cannot be said that resignation is effective without such acceptance. When a person holding a statutory office resigns, sometimes the statute itself provides for acceptance of resignation. Where there is such a specific provision, resignation is not effective until it is accepted. But the question often arises as to what the statutes or parties intended to do in cases where they have not specifically provided for on the subject. In all such cases the question to be determined is as to what the intention of the legislature or parties was. When the terms of the contract do not throw any light on the subject, sometimes the nature of contract of service may do so. When a person holds a public office, the law may presume that he cannot abandon or withdraw from that office at his sweet will and that his obligation as a public servant will not end by his resignation unless it is accepted. The law may so presume on the ground that, otherwise the public interest will suffer if the public servant is allowed to leave his office before arrangement is made for discharging the functions attached to his office.'
It may be pointed out that in Ganesh's case (supra) it was not a question of public servant discharging public duty; nor was it the case in Sudarsana Rao's case (supra); nor in Savabhai's (supra).
11. Mr. Daru, on behalf of the petitioner, has rightly pointed out that there observations of Miabhoy J. are observations made in passing because the point did not arise directly before the Division Bench of our High Court for decision; nor these observations amount to obiter dicta; because no arguments seem to have been based on this aspect of the case. It was by way of illustration that Miabhoy J. pointed out that the law may presume along the lines is dictated by him when a person holds a public office but there is nothing to show that the Division Bench was laying down the law on the subject of public servant and the Government or the employer of such public servant when the question of resignation by a public servant arises. Under these circumstances, in our opinion, the observations of Miabhoy J. in Para 4 of the judgment in Savabhai's case (supra) cannot help the respondents.
12. On behalf of the respondents, the learned Additional Government Pleader also relied upon Pratan Singh v. State of Punjab : (1966)ILLJ458SC . In that case, the petitioner was a Civil Surgeon in the employment of the State Government and he was granted leave preparatory to retirement and subsequently in June, 1961, orders were passed by the State Government revoking leave that had been originally granted to him and recalling him to duty. Simultaneously by orders passed on the same day, the petitioner was placed under suspension pending the result of an enquiry into certain charges of misconduct and a departmental enquiry was ordered against him. The legality of these orders was challenged by the petitioner in a petition under Article 226 of the Constitution filed by him in the High court against the State of Punjab. It was held by the Supreme Court that the impugned orders were not beyond the power of the State Government and that the service rules, Which were statutory rules, vested the power in the Government to pass the impugned orders, in this connection reliance was placed on certain observations of Raghubar Dayal J. In Para 70 at page 100 of the report. On behalf of the Government of Punjab reliance was placed on Rule 3. 26(d), the Rules governing the employment of the petitioner. At page 97 of the report that rule has been reproduced and that rule was in these terms :-
'A Government servant under suspension on a charge of misconduct shall not be required or permitted to retire on his reaching the date of compulsory retirement but should be retained in service until the enquiry into the charge is concluded and a final order is passed thereon.'
While considering the provisions of rule 3. 26(d), Raghubar Dayal J. observed in Para 70 at page 100 of the report :-
'It has also been contended that R. 3. 26(d) infringes the fundamental rights of the appellant as a citizen of India under Arts. 19 and 23 of the Constitution. We do not agree. Rule 3. 26(d) simply provides that the service which the appellant took up voluntarily and on conditions as may be laid down by the relevant rules would continue in certain circumstances even through the Government servant has attained the age of superannuation. Further any restriction the rule imposes on any alleged fundamental right under cls. (f) and (g) of Art. 19 is a reasonable restriction in the interests of the general public. The service to be rendered by the Government servant subsequent to such an age, in view of R. 2.26(d), is in no sense a service which can be equated with the expression 'beggar' or forced labour' Art. 23. The appellant is not forced to do any work. He remains under suspension and does not work. Even if it be assumed that the retention in service of the Government servant, in view of the provisions of R. 3. 26(d) can come within the expression 'forced labour' this rule would be valid in view of Art. 23(2) which provides that nothing in that Article shall prevent the State from imposing compulsory service for public purposes. We are of opinion that such retention would be for a public purpose, as it is in the larger interests of the efficiency of the service that a Government servant should remain within the control of the Government so long as the departmental enquiry against him on a charge of misconduct is not concluded and final orders are not passed.'
13. In view of this passage from Pratap Singh's case (supra), if is clear that so long as the relationship of employer and employee between a particular Government servant and the Government continues, it is open to the Government to suspend the employee concerned and to continue him in service on such suspension until the departmental enquiry against the alleged misconduct by him is completed. It is equally clear that if before the departmental enquiry is ordered, the relationship of employer and employee has been validly terminated, any subsequent order of enquiry would be invalid because the relationship of employer and employee was no longer in existence at the time when the enquiry was order and the Government servant would no longer be in Government service at the time when this enquiry is ordered.
14. On this aspect of the case, Mr. Daru has relied upon a recent decision of the Supreme Court in V. P. Gindroniya v. State of M.P. Civil Appeal No. 990 of 1967, decided by the Supreme Court on January 29, 1970 since reported in [1970 - II L.L.J. 143]. The judgment of the Bench consisting of six learned Judges of the Supreme Court was delivered by Hegde J. The appellant before the Supreme Court was a Probationary Nayab Tahsildar and he had been appointed temporarily. While he was working at Bilaighar in 1961, the Commissioner of Raipur Division directed an enquiry against him on as many as 13 charges. By his order, dated August 3, 1961, the Commissioner placed him under suspension pending the enquiry. Sometime later, the State Government took the view that the enquiry ordered by the Commissioner might not be legal and hence revoked the orders of the Commissioner, namely, the order directing departmental enquiry against the appellant as well as the order placing him under suspension. On the same day, the State Government also ordered a departmental enquiry against the petitioner and at the same time placed him under suspension pending that enquiry. In this connection, a show-cause notice was issued to the appellant on August 1, 1964. But even before that show-cause notice was issued on June 6, 1964, the appellant gave a notice to the Government terminating his services by a letter of resignation. After the issue of the show-cause notice by the State Government, the appellant moved the High Court of Madhya Pradesh to quash the orders passed by the State Government contending that as he was no more in the service of the State Government, the Government could not take any departmental action against him. At the stage of the proceedings before the High Court, the State Government resisted the application of the appellant on two grounds, (1) that the order of the State Government, suspending the appellant during the pendency of the departmental enquiry amounted to a suspension of the contract of service and hence the appellant could not have unilaterally terminated his service, and (2) that the notice given by him on June 4, 1964, was invalid as it did not conform to the rules. These two contentions of the State Government were accepted by the High Court of Madhya Pradesh and the writ petition was dismissed and thereafter an appeal was dismissed and thereafter an appeal was filed before the Supreme Court. Hegde J. delivering the judgment of the Supreme Court, pointed out :
'This notice was received by the Government on June 9, 1964. In that notice, the appellant has unequivocally informed the Government that he has terminated his services with the Government. This part of the notice satisfies the requirements of the main part of rule 12(a). In that very notice he has also intimated that any amount payable by him to the Government under the provisions to rule 12(a) may be forfeited from the amounts due to him from the Government. It may be noted that considerable amount must have been during the period of his suspension. By his notice he intimated to the Government that the amounts due form him to the Government under the provisions to rule 12(a) may be deducted from that amount. We fail to see how this notice is not in accordance with the requirements or rule 12. In our opinion the High Court was wrong in holding that the notice in question did not comply with the requirements of the said rule.
In the present case, the 'Rules' do not provide for suspension during the pendency of an enquiry. Therefore the impugned order of suspension cannot be considered as an order suspending the contract of service. From that conclusion it follows; that when the appellant issued the notice terminating his services on June 6, 1964, the contract of service was in force and it was open to him to put an end to the same.
From the above findings, it follows that ever since June 9, 1964, the appellant was not in the service the Government. Therefore, it was not open to the Government to take any disciplinary proceedings against him.'
15. The question that we have to consider in the light of the above decision of the Supreme Court is as to whether at the time when the letter of resignation, Annexure 'D' to the petition, was sent by the petitioner, the contract of service was still in force And the answer must be clearly in the affirmative. By the letter of resignation tendered by him sometime in December, 1963, the petitioner requested his superior officers that his resignation should take effect from September 1, 1963 and on January 24, 1964, the petitioner was informed by the Memo, Annexure 'E' to the petition, that his letter of resignation was not accepted and, therefore, he could not be relieved from Government service. It is true that at the time when the petitioner wrote the letter of resignation in December, 1963, some proceedings by way of departmental proceedings were under contemplation against the petitioner but it cannot, therefore, be said that the contract of service of the petitioner was not in existence.
16. We have pointed out above that no rules have been framed under Art. 209 of the Constitution so far as the State Government servants are concerned providing for the date from which a letter of resignation of a Government employee has to take effect. It is true so far as the Bombay Civil Services Rules are concerned, a rule similar to rule 3. 26(b) of the rules which were before the supreme Court in Pratap Singh's case (supra) is to be found in rules 161-D; but that rule the proceeds on the assumption that the contract of service between the Government and the public servant is in existence. In the instant case, in the absence of any statutory rules under Art. 309 of the Constitution. the duration of the employment of the petitioner depended upon contract. As we have pointed out in the earlier part of this judgment, the petitioner was originally appointed as and by way of a temporary measure and until further orders and it is nobody's case that subsequent to the appointment on August 27, 1955, the petitioner was at any time time confirmed or made a permanent servant. Therefore, as the matters stood, the petitioner was a temporary Government servant, whose services were liable to termination, so far as the Government was concerned, without any notice to the petitioner; and, in our opinion, therefore by doctrine of mutuality, his service were terminable by the petitioner by a reasonable notice to say the least. In the instant case, by the letter of resignation Annexure 'D' to the petition, the petitioner pointed out that he was giving one month's notice and was willing to pay one month's pay in lieu of one month's notice on hearing from the Chief Engineer, to whom the letter of resignation was sent. Since the matter between the petitioner and the Government rested purely on contract and was not in any way governed by statutory rules, it is clear that the service of the petitioner was liable to termination by one month's notice, this period of notice being reasonable in the circumstances of the case and that service was in fact terminated by the petitioner. As observed by the Supreme Court in Gindroniya's case (supra), after the letter of resignation reached the Government or the Superior Officers of the petitioner, the petitioner was not in the service of the Government and, therefore, it was not open to the Government to take any disciplinary proceedings against him. That being the case, the purported order of September 7, 1964, directing that the departmental enquiry should be held against the petitioner, the report of the Enquiry Officer in such departmental mental enquiry and the show-cause notice regarding the proposed punishment and the order dated August 2, 1966, purporting to dismiss the petitioner from Government service and directing that a sum of Rs. 636.41 P. should be recovered from the petitioner - were all invalid and of no binding force.
17. It may be pointed out that under the Bombay Civil Service Conduct, Discipline and Appeal Rules, different types of punishments have been provided in rule 33 and recovery from a Government servant of the whole or part of any pecuniary loss caused to the Government without prejudice to the provisions of any law for the time being in force and one of the punishments that can be imposed on any member of subordinate service under the rules is recovery from his pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. It is under this part of the rules that the recovery of the amount Rs. 63641 P. was ordered to be made. Since the Departmental proceedings themselves were bad because at the time when they were ordered, the petitioner was no longer in Government service, this part of the order, dated August 2, 1966, would also be bad, we may point out, however, that it would be open to the Government, if so advised, to take appropriate proceedings to seek to recover this amount on the footing that it was a loss caused to the Government by the alleged negligence of the petitioner. In the present judgment we have merely proceeded on the footing that after the letter of resignation, Annexure D, the contract of service between the petitioner and the Government was no longer in existence and, therefore, no departmental proceedings could have been ordered against him.
18. In the view that we have taken it is not necessary for us to express any opinion regarding the alleged extraneous reasons on the part of the Government in refusing the letter of resignation. In our opinion, there is no binding statutory rules or term of contract laying down that the letter of resignation was to take effect from the date on which it was to take effect from the being the case, the letter of resignation, Annexure 'D', to the petition, must be deemed to have taken effect from the date when it reached the petitioner's superior officers. That letter of resignation appears to have reached the Government at any rate prior to January 2, 1964, because the Superintending Engineer appears to have endorsed on this letter on January 2, 1964 : and thereafter the memorandum, dated January 24, 1964, Annexure 'E' to the petition, was issued by order and in the name of the Governor of Gujarat.
19. In view of the above conclusion, none of the other contentions of the petitioner have been considered by us; nor have he taken into considered the argument that under Rule 161-D of the Bombay Civil Service Rules. It is open to it Government to continue a Government servant in service, even though to superannuation or otherwise his service have come to an end. That rule - similar to rule 3.26(d) of the Rules before the supreme Court - contemplates a state of affairs where the contract of service between the public servant and the Government is alive and is continuing at the time when the order of suspension is passed. That material ingredient was missing in the instant case because the services came to an end sometime in January, 1964 at any rate; whereas the departmental enquiry was ordered on September 7, 1964.
20. Under these circumstances, we allow this Special Civil Application and set aside the Order, Annexure 'F' to the petition being the order, dated September 7, 1964, directing that the departmental enquiry should be held against the petitioner and we also hold that the order, dated August 2, 1966, Annexure 'C' to the petition, was also bad. The orders, Annexure 'F' and 'C' to the petition, are, therefore, quashed and set aside and we declare that the order of dismissal passed against the petitioner, Annexure 'G' to the petition, is null and void.
21. In the result, this Special Civil Application is allowed and the rule is made absolute. The respondents will pay the costs of this petition to the petitioner.