Kan Singh, J.
1. This is a plaintiff's second appeal arising out of a suit impugning the order for termination of the plaintiff's services on account of infringement of the statutory rule governing the conditions of service requiring the railway to make payment of the salary for the notice period where notice for termination of service was not desired to be given by the appointing authority.
Western RailwayDivisional office,Jaipur,No ES/890/8 Dated 5th July, 1961Office OrderSub: Recruitment of class III Service...Shri Moti Lal Sharma is appointed substitute Lab. Asst. in scale Rs. 60-150 (P) on Rs. 60/- plus allowances as admissible on the terms and conditions laid down in this office letter No. ES/890/6 dated 13-3-61. Sd/- PresidentRly. Schools & DPO, Jaipur
It will be noticed from the above that the terms and conditions that were to govern the plaintiff's appointment were those laid down in the office letter dated 13th March, 1961. That office letter has been brought on record as Ex. A 12. I may read the relevant portions of this letter:
Western RailwayRegistered Post Ack. Due---------------------------No. ES/890/6 Divisional Office, Jaipur.13th March, 1961Shri Motilal Sharma S/oKhairati Lal SharmaCarpenter IOW BK ISub; Employment to Railway Service Class HI staff Tfc. Deptt.----You are hereby appointed as Sub Lab, Asstt. in the scale of Rs. 60-150 (P) on Rs. 60/-per month plus compensatory allowance, house allowance and dearness allowance as admissible under the rules in this office.
2. The appointment offered to you is temporary and your services are liable to be terminated on 14 days notice or pay in lieu thereof. You will be considered for appointment in a permanent post on completion of a prescribed period of probation.
3. You will have to conform all rules & regulations applicable to Government Railway employees
The 4th, 5th, 6th and 7th clauses are about the plaintiff being required to make a declaration regarding his allegiance to India and to the Constitution of India and other matters which are not relevant for the purpose. Then, there is Clause 9 which I may read:
You are being taken on trial on probation & appointment is not guaranteed.
2. It may be mentioned here that first the plaintiff was appointed vide letter Ex. A. 12. Then, there was cessation of that appointment and the plaintiff was appointed fresh vide order Ex. 5 but the terms & conditions were the same as mentioned in the earlier order of the appointment Ex. A. 12. The plaintiffs services were terminated vide order Ex. 6, dated 25th June, 1964. I may read this order as well:
Western RailwayNo. ES/890/7 Vol. II Divisional Office,JaipurDated 25-6-64Shri Motilal,Substitute Lab. Assistant,Rly: M.P.H.S. School BK I(Through the Principal, Rly. M.P.H.S. School BK I)Sub: Recruitment To Class III Substitute Teachers-----Your services are not required with effect from 25/6/64 afternoon. Necessary charge if any held by you may please be handed over to the person as directed by the Head Master/Principal to whom a copy of the letter is being endorsed. Sd/-President Rly. Schooland DPO Jaipur
After serving the notice under Section 80 C.P. C the plaintiff brought the suit in the court of the Civil Judge, Jaipur District, Jaipur. The plaintiff averred that the order of termination was in the nature of a penalty and was in violation of Article 311 of the Constitution as no show-cause notice was served on him. The plaintiff claimed that he was a probationer and as a period of one year had been fixed by the relevant statutory rules as the period of probation he should be taken to have been confirmed on the post on completion of this period and thereafter his services could be dispensed with only in accordance with the disciplinary rules and not otherwise. The plaintiff took the position that though he was posted in the vacancy caused temporarily on account of one Shri P.D. Deshmukh having gone on leave, a clear vacancy thereafter occurred when the services of Shri Deshmukh were terminated and the subsequent appointment vide order Ex. 5 was thus against a clear vacancy. Then, in the alternative the plaintiff claimed that even assuming that plaintiff was still a temporary employee his services could be dispensed with only in accordance with Rule 149 of the Indian Railway Establishment Code. The Union contested this position
3. The learned Civil Judge framed a number of issues but eventually he dismissed the suit holding that the plaintiff was only a temporary employee and the order of termination of his services could not attract provisions of Article 311 of the Constitution. The learned Civil Judge also held that the notice of termination of the plaintiff's services was not otherwise invalid. In the result he dismissed the suit.
4. The plaintiff then went up in appeal to the court of the District Judge, Jaipur District, Jaipur. The learned District Judge affirmed the finding of the first court. He held that the plaintiff was only a temporary employee appointed as a substitute for another and therefore the order of termination of the plaintiff's services could not be considered illegal. He repelled the contention that even without any order of confirmation the plaintiff could be deemed to have been confirmed automatically because the period of probation had expired. In the result the learned District Judge found that the order of termination of the plaintiff's service is unassailable and accordingly he dismissed the appeal. It is in these circumstances that the plaintiff has come in further appeal to this Court.
5. The learned Counsel for the appellant has advanced a two-fold contention In the first place he contended that the plaintiff should be taken to have been confirmed on the post which he was holding on probation. Learned Counsel maintained that according to Rule 4 of the Indian Railway Establishment Manual the appointing authority was required to decide the question of plaintiff's confirmation, and if it did not do so for well nigh three years then the plaintiff should be taken to have been confirmed as according to learned Counsel the rule forbids the extension of the period of probation. The second contention of the learned Counsel is that as the notice pay was not tendered or paid simultaneously with the service of the order of termination of the plaintiff's services, the order of termination has been vitiated. The learned Counsel maintained that Sub-rule (4) of Rule 149 of the Indian Railway Establishment Code was pre-emptive. The learned Counsel placed reliance on The State of Punjab v. Dharma Singh AIR 1963 S.C. 1210, Shanker Lal Mehra v. Chief Engineer N F Railway and Ors. AIR Assam & Nagaland 16 and on a recent judgment of the Supreme Court (not so far reported) in Civil appeal No. 1706 (N) of 1971 - Senior Superintendent, K.M.S. Cochin and Anr., Appellants v. K.V. Gopinath, Sorter, respondent decided on 18th February, 1972,
6. The learned Counsel for the respondent contested both the points raised by the learned Counsel for the appellant.
7. Before proceeding further I may read the relevant rules which have been the subject-matter of the debate before me. Rule 4 of the Indian Railway Establishment Manual, Chapter I, Section B reads:
All appointments will be made on probation for one year. For students or apprentices appointed to a working post after the conclusion of their training the probationary period commences from the date of such appointment.
Rule 149 of the Indian Railway Establishment Code reads like this:
Termination Of Service And Periods Of Notice -(1) Temporary railway servants.-When a person without a lien on a permanent post under Government is appointed to hold a temporary post or to officiate in a permanent post, he is entitled to no notice of the termination of his service if such termination is due to the expiry of the sanction to the post which he holds or the expiry of the officiating vacancy, or is due to mental or physical incapacity or to his removal or dismissed as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution of India If the termination of his service is due to some other cause, he shall be entitled to one month a notice provided he was engaged on contract for a definite period and the contract does not provide for any other period of notice, and to a notice of 14 days if he was not engaged on a contract The periods of notice specified above shall apply on either side and steps should be taken to bring this condition to the notice of the railway servants concerned.
Note. - No notice of termination will be necessary in a case where a railway servant is deemed to have resigned his appointment and ceased to be in railway employ in the circumstances detailed in 'Note 2' below Exception (ii) to Rule 732(1).
(2) Apprentices.-Except as otherwise provided in his service agreement, the service of an apprentice shall be liable to termination on one week's notice.
(3) Other railway servants.-The service of other railway servants shall be liable to termination on notice on either side for the period shown below. Such notice is not, however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity:
(a) Probationary officers and gazetted railway servants onprobation other than those in the Medical Department.... 3 months' notice(b) Gazetted railway servants on probation in the MedicalDepartment... 1 month's notice(c) Permanent gazetted railway servants ... 6 months' notice(d) Permanent non-gazetted railway servants... 1 month's notice(4) In lieu of the notice prescribed in this rule it shall be permissible on the part of the Railway Administration to terminate the service of a railway servant by paying him the pay for the period of notice.
Note. -The appointing authorities are empowered to reduce or waive, at their discretion the stipulated period of notice to be given by an employee, but the reason justifying their action should be. recorded.
This power cannot be re-delegated.
In the State of Punjab v. Dharam Singh (14 their Lordships had to consider the provisions of the Punjab Educational Service (Provincialised Cadre) Class 111 Rules 1961. Proviso to Rule 6(3) was found to forbid extension of the period of probation of an employee beyond three years. The employee was allowed to continue on the post after expiry of three years and no express order of confirmation was passed. On consideration of the rule their Lordships reached the conclusion that the employee must be deemed to have been confirmed on that post and his subsequent removal from service without following the procedure under Punjab Civil Services (Punishment and Appeal) Rules, 1952 or confirming to constitutional requirements of Article 311 of the Constitution was invalid. Their Lordships reviewed a number of earlier cases. The principles extracted by them and further elaborated upon were like this:
This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order in his post as a probationer only, in the absence of any intention to the contrary in the original rules. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post, and from the mere fact that he is allowed to continue in the post after the expiry of the specified period of probation it is not possible to hold that he should be deemed to have been confirmed. This view was taken in Sukhbans Singh v. State of Punjab : (1963)ILLJ671SC , G.S. Ramaswamy v. Inspector-General of Police, Mysore State, Bangalore : (1970)ILLJ649SC , Accountant-General, Madhya Pradesh, Gwalior v. Beni Prasad Bhatnagar Civil Appeal No. 548 of 1962 D/22-1-1964 (SCDA Lyall v. Chief Conservator of Forests. U P. Civil Appeal No. 259 of 1952 D/24 2-1955 (SC) and State of U.P. v. Akbar Alt : (1967)ILLJ70SC . The season for this conclusion is that where on the completion of the specified period of probation the employee is allowed to continue in the post without an order of confirmation the only possible view to take in the absence of anything to the contrary in the original order of appointment or promotion or the service rules, is that the initial period of probation has been extended by necessary implication. In all these cases, the conditions of service of the employee permitted extension of the probationary period for an indefinite time and there was no service rule forbidding its extension beyond a certain maximum period.
Their Lordships further referred to another unreported Supreme Court case- Narain Singh Ahluwalia v. State of Punjab Civil Appeal No. 492 of 1963, decided on 29th January, 1964. Their Lordships observed that the service rules in that case provided for a maximum period of probation of two years beyond which the probationary period could not be extended. In the light of the principles laid down their Lordships proceeded to consider the proviso to Rule 6 in the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961 & reached the conclusion that the rule forbade extension of the period of probation beyond what has been prescribed
8. The answer to the question whether the rules do or do not contemplate any extension of the period of probation would by and large depend or the tenor of the rules themselves. If on consideration of the rules the Court comes to the conclusion that there is a prohibition against the extension of the prescribed period of probation either by express language of the rules or by necessary intendment then the appointing authority shall not have the power of extending the period of probation nor can the period of probation be taken to have been extended In such a situation the continuance of the civil servant on the post after expiry of the period of probation and without there being any order of confirmation will itself amount to his confirmation on the post. But where from the tenor of the rules it cannot be inferred that extension of the period of probation was prohibited beyond the prescribed limit then the mere fact that the civil servant was allowed to continue in service on the post after the expiry of the period of probation and without there being any order of confirmation will, for all practical purposes, amount to an extention of the period of probation & the civil servant could not be said in that even to have acquired any lien on the post.
10. In the present case all that Rule 4 of the Indian Railway Establishment Manual extracted above lays down is that all appointments will be made on probation for one year. It cannot be inferred from the language of this rule, and no other rule has been brought to my notice, that there is a prohibition against the extension of the period of probation. This is not so in express term, nor can it be predicated that this is so by necessary intendment. What the rules provide is that all appointments will be on a probation of one year. In other words one year's probation has got to be there for each appointment and straightaway permanent appointments are not contemplated. At the end of this period it will be open to the competent authority to consider the question whether an employee should be confirmed or he should still be on probation for any further period. The language of this rule is different from the rule that came up for consideration in the Supreme Court case cited above. Therefore, I am unable to accept the contention of the learned Counsel for the appellant that merely because the appellant continued on the post after the period of one year he became substantive or permanent on the post.
11. I may now turn out to his second contention. The learned Counsel, as I have already noticed, drew largely on R.M S. Cochin's case. In that case the services of the Government employee were terminated in accordance with Rule 5 of the Central Service (Temporary Service) Rules, 1965. The notice that was required to be given was dispensed with by the appointing authority and the question arose whether in that event the authority could have terminated the services of the temporary employee without simultaneously paying him the salary in lieu of the period of notice. Rule 5 of those Rules ran as under:
5. Termination of temporary service.-(1)(a) The services of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant;
(b) the period of such notice shall be one month;
Provided that the services of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate at which he was drawing them immediately before the termination of his services, or, as the case may be, for the period by which such notice falls short of one month. X X X X
Their Lordships examined a number of cases that were cited before them and then observed that apart from the authorities that were cited it appeared to their Lordships that the rules were capable of the only interpretation that the order of termination could be upheld if the requisite amount in terms of the rules was paid into the hands of the employee or made available to him at the same time as he was served with the.order. Their Lordships pointed out that rule -5 gave the Government as well as the employee a right to put an end to the service by a notice in writing. The period of notice prescribed was one month Then, regarding the provision to Sub-rule (b) their Lordships observed that it gave the Government an additional right by giving it an option of not retaining the service of the employee till the expiry of the period of the notice, or if it so chose, to terminate the service at any time it could do so forthwith 'by payment to him of a sum equivalent to the amount his pay plus allowances for the period of the notice, at the same rate at which he was drawing them immediately before the termination of his services.' Their Lordships added at the risk of repetition that the operative words of the proviso were ''the services of any such Government servant may be terminated forthwith by payment.' Their Lordships further explained the point like this: 'to put 4 the matter in a not shall, to be effective the termination of service has to be simultaneous with the payment to the employee of whatever is due to him:'
11. Their Lordships left the question open as to what would be the effect if there was a bonafide mistake as to the amount which was to be paid. Their Lordships repelled the contention that the termination of service becomes effective as soon as the order is served on the Government servant irrespective of the question as to when the payment due to him is to be made. Their Lordships again observed that if that was the intention of the framers of the rule, the proviso would have been differently worded.
12. By analogy the learned Counsel re-iterates the same contention here.
13. The learned Counsel for the respondent on the other hand relies on an earlier case of the Supreme Court-The State of Uttar Pradesh v. Dina Nath Rai SLR 1969 (S. C) 646 In that case their Lordships had to consider the rules framed by the Uttar Pradesh Government governing the conditions of service of temporary employees. The relevant portion of the rule was as follows:
(1) Notwithstanding anything to the contrary in any existing rules, the orders on the subject, the services of a government servant in temporary service shall be liable to termination at any time by notice in writing given either by the government servant to the appointing authority, or by the appointing authority to the government servant.
2) The period of such notice shall be one month given either by the appointing authority to the government servant, or by the government servant to the appointing authority provided that in the case of the notice of the appointing authority, the latter may substitute for the whole or part of this period of notice pay in lieu thereof; provided further that it shall be open to the appointing authority to relieve a government servant without any notice or accept notice for a shorter period without requiring the government servant to pay any penalty in lieu of notice.
Their Lordships referred to a judgment of the Allahabad High Court in A.P. Tripathi v. State of U P. and disagreeing with what was said by the learned Judge of the Allahabad High Court there, their Lordships observed as follows:
It seems to us that the meaning of the statutory rule is clear. It gives option to the Government to either give a month's notice or to substitute for the whole or part, of this period of notice pay in lieu thereof. The rule does not say that the pay should be given in cash or by cheque at the time the notice is issued. Knowing the way the governments are run, it would be difficult to ascribe this intention to the rule making authority. There is no doubt that the government servant would be entitled to the pay lieu of notice but this he would get in the ordinary course.
14. It will be noticed that under the Uttar Pradesh Rules there were two provisos. The first one was that in the case of the notice by the appointing authority the latter may substitute for the whole or part of this period of notice the pay in lieu thereof and the second proviso was that it would be open to the appointing authority to relieve a government servant without any notice or accept notice for a shorter period without requiring the government servant to pay any penalty in lieu of notice- The second proviso is obviously for the benefit of the government which may waive the giving of notice by the government servant in case he wants to leave the service The first proviso enables the government to give the whole or part of the pay of the notice period in place of the giving of notice of the requisite period before the actual termination of the services of the servant. The learned Counsel for the Union has tried to distinguish K.V. Gopinath's case on the footing that the proviso to Rule 5 of the Central Services (Temporary Service) Rules, 1965 speaks of a forthwith termination by payment of a sum equivalent to the amount of his pay plus allowances for the period of notice. In other words, according to the learned Counsel payment of the emoluments for the notice period along with the order of termination in that case was necessary and without it the termination would be rendered invalid. The present case, according to the learned Counsel is similar to the State of Uttar Pradesh v. Dinanath Rai SLR 1969 (S. C) 646.
15. The controversy is thus reduced to a narrow compass namely whether the Sub-rule (4) of Rule 149 of the Indian Railway Establishment Code is akin to Rule 5 of the Central Services (Temporary Service) Rules, 1965 or is or skin to the rules framed by the Uttar Pradesh Government. To my mind Sub-rule (4) of Rule 149 of the Indian Railway Establishment Code enables the railway administration to terminate the services of a railway servant without giving the prescribed notice but for doing so a pre-emptive condition is prescribed, that is, by paying him the pay for the period of the notice.
16. There is one additional weighty consideration which induces as to take the view that was taken by their Lordships in K.V. Gopinath's case and it is that the putting of a different interpretation on Sub-rule (4) of Rule 149 would bring about a kind of discrimination between the temporary servants under the Central Government, namely those serving the railway administration and others under other ministries or departments of the Central Government. According to K.V. Gopinath's case before the services of a government servant can be said to be terminated validly without giving of notice, the simultaneous payment of his emoluments for the notice period would be necessary but this would not be so necessary in the case of servants of the Government of India under the railway administration. I am not inclined to give such an interpretation as would bring about a discrimination unless the language of the rule compels me to do so. In my mind, two alternative modes for termination of the services of a temporary government servant are indicated. One is by giving him a notice for the requisite period The second is without giving him such notice. But then the pay and other emoluments for the period of the notice have to be paid simultaneously with the service of the order of termination of services. The idea seems to be that when even under the general law the matter is expected to give a reasonable notice of termination of services of a servant so that the servant may be enabled in the mean time to seek other avenues of employment, here also a reasonable notice or payment of dues is insisted so that the servant may not suffer in the mean time. In view of the hardship involved the intention of the rule-making authority thus seems to be clear that where the services of a temporary servant are to be terminated without a prior notice the pay and allowances for the notice period have to be made simultaneously It has been observed in Maxwell on the Interpretation of Statutes, Twelfth Edition at page 234 that the words 'may' or 'shall have power' or shall be lawful' have-to say the least -a compulsory force. Therefore, Sub-rule (4) of Rule 149 of the Indian Railway Establishment Code Vol. I enables the railway administration to terminate the service of a railway servant without a prior notice but for it they have to pay him the salary for the notice period The two things, namely the making of payment and the serving of the order of termination have to be simultaneous, and without that the hardship to be inflicted on a government servant may not be mitigated, and this seems to be the intention of the rule-making authority that the hardship on the government servant who is to be thrown out of employment has to be mitigated. One knows how long it takes for a government servant to realise his dues if they remain to be paid and one can very well conceive that the rule-making authority accordingly provided for the making of payment of the dues to the government servant simultaneously with the termination of his service. I am, therefore, unable to agree with the lower courts that the order of termination of the plaintiff's services was valid. To my mind, the order Ex. 6 dated 23th June, 1984 is in valid for the reason that the dues of the plaintiff were not paid simultaneously. The railway administration, however, will not be precluded from passing a fresh order of termination of the plaintiff's service after complying with the rules.
17. The next question is what relief by way of arrears of salary or damages has to be granted to the plaintiff in view of the conclusion reached on the point. The case, to my mind, is such as to be remanded to the first court for determination of the question as to what arrears of pay or damages are to be allowed to the plaintiff in view of all the circumstances of the case.
18. The result is that I allow this appeal set aside the judgment and decree of the1earned District Judge dated 8th November, 1969 and remand the case to the court of the Civil Judge, Jaipur District, Jaipur for affording opportunity to both the parties to lend their additional evidence & then decide the remaining points afresh. The costs of the appeal shall abide the final result.