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State of Rajasthan and ors. Vs. Mangal Singh - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 38 of1980
Judge
Reported in1980WLN305
AppellantState of Rajasthan and ors.
RespondentMangal Singh
DispositionAppeal dismissed
Cases ReferredJai Shankar v. State of Rajasthan
Excerpt:
constitution of india article 311(2) - termination--services terminated with one month notice for over staying on leave--held it is removal & not termination and he is entitled to reasonable opportunity--one month notice is different from show cause notice--termination order is illegal.;his services were terminated on account of his over-staying the leave and not joining the duty at his place of posting. thus it was not a termination pure and simple but a stigma is attached to the respondent by the very language of the order. thus, it appears to us that though the order has been termed as one of termination, it is, in fact, an order of removal. the notice of one month relied upon by the learned addl. government advocate is not a show cause notice but it is only to the effect that the..........his services were terminated when the same were no more required. lastly, he has urged that one month's notice had been given to the respondent as is apparent from the impugned order itself.4. it cannot be denied that the respondent was a government servant. it further appears that the order of termination of his services is not innocuous in as much as it is apparent from the very language of the notice that his services were terminated on account of his over-staying the leave and not joining the duty at his place of posting. thus, it was not a termination pure and simple but a stigma is attached to the respondent by the very language of the order. thus, it appears to us that though the order has been termed as one of termination, it is, in fact, an order of removal. if that is so, as.....
Judgment:

C.M. Lodha, C.J.

1. This is a special appeal under Section 18 of the Rajasthan High Court Ordinance against the order of the learned Single Judge dated December 6, 1979, where by the learned Judge allowed the writ petition filed by the respondent Mangal Singh and quashed the order of the Assistant Engineer (Civil) Ground Water Department, Jodhpur, August 12, 1974 (Annexure 'H ) by which the respondent's services as mason were terminated with effect from September 11, 1974.

2. The respondent was appointed as a mason in the Ground Water Department by the Executive Engineer (Famine), Rajasthan Ground Water Department, Jodhpur by his order dated August 14, 1979 (Annexure 1). wherein it was provided that he was being appointed for one month or till the famine operations are over. However, his services were continued the impugned order of termination was passed. It appears that the respondent had availed of leave even though there was no leave to his credit. The respondent's case is that he had submitted medical certificate and had done all in his power to join the duty but could not do so on account of unavoidable circumstances, and was compelled to remain on leave Be that as it may, the fact remains that it was observed in the impugned order that since the respondent had remained absent from duty from June 17, 1974 and had not joined of his place of posting, his services were being terminated. The order of termination was challenged on two grounds, viz., (i) that the Assistant Engineer, who passed the order of termination, was not competent to do so as he was not the appointing authority of the petitioner; and (ii) that the procedure prescribed under Rule 23 A (i) of the Rajasthan Service Rules had not been followed. The learned Judge accepted both the contentions and, as already stated above, allowed the writ petition.

3. Mr. M.D. Purohit, learned Additional Government Advocate, has urged that the respondent was not a member of service as defined in the Rajasthan Ground Water Subordinate Service Rules, 1973, and as such the procedure prescribed under the Rules need not have been followed in his case. It has also been argued by him that the respondent was appointed only for one month or till the famine operations would' be over, and his services were terminated when the same were no more required. Lastly, he has urged that one month's notice had been given to the respondent as is apparent from the impugned order itself.

4. It cannot be denied that the respondent was a Government servant. It further appears that the order of termination of his services is not Innocuous in as much as it is apparent from the very language of the notice that his services were terminated on account of his over-staying the leave and not joining the duty at his place of posting. Thus, it was not a termination pure and simple but a stigma is attached to the respondent by the very language of the order. Thus, it appears to us that though the order has been termed as one of termination, it is, in fact, an order of removal. If that is so, as we think it is, there is no escape from the conclusion that a show cause notice or an opportunity of being heard against the action proposed should have been given to him, under Article 311 of the Constitution even though he was temporary employee. The notice of one month relied upon by the learned Addl. Government Advocate is not a show cause notice, but it is only to the effect that the order of termination will come into operation after expiry of one month from the date of the order. In our opinion, the respondent was entitled to an opportunity to show cause against the proposed removal from service on his over staying his leave or not joining duty and as no such opportunity was given to him the impugned order of termination of hit service was illegal. If an authority is needed on the point, reference may be made o Jai Shankar v. State of Rajasthan : (1966)IILLJ140SC .

5. The result is that we do not see any force in this appeal and hereby dismiss it, but there will be no order as to costs.


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