Patna High Court
Sobhana Das Gupta vs The State Of Bihar And Anr. on 1 March, 1973
Equivalent citations: AIR1973PAT431, AIR 1973 PATNA 431, 1973 LAB. I. C. 1530, 1974 PATLJR 382, 1973 BLJR 815, ILR (1973) 52 PAT 585
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Sarwar Ali, J.
1. In this application the petitioner prays that the order passed by respondent No. 2, the Director of Public Instruction, Bihar a copy of which is Annexure 2 to the writ application, be called up and quashed. By this order the petitioner is treated as having ceased to be in Government employ under Rule 76 of the Bihar Service Code. 1952.
2. The relevant facts which are either admitted or have been established during the course of hearing of this writ application may be, briefly, stated. The petitioner was appointed in the year 1949 to Bihar Subordinate Education Service. By an order dated 7-9-1961 she was promoted to Bihar Education Service. Class II and posted as Lady Principal, Women's Training School at Bela-ganj in the district of Gaya. The petitioner was deputed to attend a training course at the Institute of English at Patna. She, accordingly, reported to the said Institute on 3-8-1963. By an order dated 7-12-1963 the petitioner, along with others, was relieved from the Institute and directed to report to the respective Institutions in due course. It may be stated that the petitioner, before her deputation to the Institute aforesaid, was at Sasaram having been transferred from Belaganj to Sasaram by order dated 21-6-1963. The petitioner applied for earned leave from 9-12-1963 to 31-12-1963 on the ground that her mother was seriously ill. It appears that she applied for leave on several subsequent dates also. On 29-6-1964 the petitioner was intimated by the Deputy Director of Education (Administration) that her applications for leave can be sanctioned only after she had joined her duty as Lady Principal, Women's Training School at Sasaram, and she had furnished medical certificate in support of her mother's illness. By order dated 11-9-1964 the petitioner was transferred and posted as Lady Principal. Women's Training School at Gopalganj. It appears that the petitioner did not join her duty. By Annexure D to the counter-affidavit the petitioner was informed that her application for leave had been rejected. She was further directed to resume her duty at Gopalganj failing which she would be liable for disciplinary action. The petitioner having failed to join her post at Gopalganj departmental proceeding was drawn up against the petitioner which was held and concluded. On 17-1-1967 the inquiring officer submitted his report. On 3-6-1967 the Government passed an order reducing the petitioner in rank and reverting her to Subordinate Education Service. The order of the Government is Annexure E -to the counter-affidavit. In the memo portion of the same order the petitioner was posted as Assistant Mistress. Women's Training School, Gobind-pur. It appears that the petitioner had made further applications for leave. In an application dated 28-9-1968 she prayed for leave and further prayed for being posted at Patna. These prayers were rejected. An order dated 23-11-1968 was passed again, directing the petitioner to join the post at Gobindpur. She was further informed that if she did not join the post within a week departmental action will be taken against her. The petitioner did not it is admitted, join the post of Assistant Mistress at Gobindpur. That by that time the petitioner had been absent from duty for over five years. The respondents were of the view that Rule 76 of the Service Code was applicable to her and that she had ceased to be in Government employ. Consequently a communication was addressed to the petitioner which is as follows:
"Upayukt Bishoy Par Apke Tithi 6-5-69 Ke Patra Ke Prasang Me Mujhe Kahana Hai Ki December, 1963 Se Hi Anu-pasthit Rahane Ke Karan Bihar Sewa Sanhinta Ke Niam 76 Ke Anusar Apki Sewa Samapt Samajhi Jati Hai."
This is Annexure 2 to the writ application and as stated above is under challenge.
3. In this application the order of the Government reducing the petitioner in rank (Annexure E to the counter-affidavit) is not under challenge. It is only the decision of the State Government as communicated under Annexure 2 which is subject-matter of challenge in this writ application. The learned counsel for the petitioner contended that the decision of the Government amounts to termination of the service of the petitioner. The petitioner's service cannot be terminated except after complying with the provisions of Article 311 of the Constitution of India. This, admittedly, not having been done, the order of the Government is illegal and cannot be given effect to. He further contended that Rule 76 of the Bihar Service Code is invalid.
4. Rule 76 of the Bihar Service Code is as follows:
"Unless the State Government, in view of the special circumstances of the case, shall otherwise determine a Government servant, after five years' continuous absence from duty, elsewhere than a foreign service in India, whether with or without leave ceases to be in Government employ."
5. The first question for consideration, therefore, is : Does it amount to removal of a Government servant from service within the meaning of Article 311 of the Constitution, where a Government servant is continuously absent from duty for five years, and as a consequence thereof is treated no longer to be under Government employment.
6. I may first refer to the decision of the Supreme Court in the case of Jai Shanker v. State of Rajasthan (AIR 1966 SC 492). Regulation 13 of Jodhpur Service Regulation fell to be considered in that case. The aforesaid regulation was:
"An individual who absents himself 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."
Considering this regulation Hidayatullah, J. observed:
"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 overstaying 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 Article 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 Article 311 and this is what has happened here".
It may be mentioned that this case arose out of a suit where a declaration was sought that the termination of the service of the plaintiff was illegal.
7. In the case of Deokinandan Frasad v. State of Bihar. AIR 1971 SC 1409 the true effect of the decision in Jai Shanker's case was considered. A reference was also made to Rule 76 of the Bihar Service Code. In this context it was observed:
"A contention has been taken by the petitioner that the order dated August 5, 1966 is an order removing him from service and it has been passed in violation of Article 311 of the Constitution, According to the respondents there is no violation of Article 311. On the other hand, there is an automatic termination of the petitioner's employment under Rule 76 of the Service Code. It may not be necessary to investigate this aspect SEurther because on facts we have found that Rule 76 of the Service Code has no application. Even if it is a question of automatic termination of service for being continuously absent for over a period of five years, Article 311 applies to such cases as is laid down by this Court In (1966) 1 SCR 825 = (AIR 1966 SC 492). In that decision this Court had to consider Regulation No. 13 of the Jodhpur Service Regulations which is as follows:
'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.' It was contended on behalf of the State of Rajasthan that the above regulation operated automatically and there was no question of removal from service because the officer ceased to be in the service after the period mentioned in the regulation. This Court rejected, the said contention and held that an opportunity must be given to a person against whom such an order was proposed to be passed, no matter how the regulation described it. It was further held to give no opportunity is to go against Article 311 and this is what has happened here."
8. The consideration on these two cases makes it clear that in the circumstance as in the present case, treating the petitioner to have ceased to be in Government employ amounts to her removal, and further that the said removal without giving her an opportunity is to go against Article 311 of the Constitution. In the circumstances of the present case, violation of Article 311 of the Constitution is writ large. There can, therefore be no doubt that the order under Annexure 2 is illegal, and the petitioner cannot be deemed to have ceased to be in Government employ on the basis of the said order or on the basis of Rule 76 of the Service Code.
9. The next important question is, as to whether Rule 76, in so far as it treats a person who has been continuously absent from duty for five years to have ceased to be in Government employ, is valid. It may be pointed out that it is not necessary to consider in this case that part of the Rule which says that if a person is absent for five years even with leave he will be ceased to be in Government employ.
10. In my view, full and complete guidance is afforded by the decision of the Supreme Court in Moti Ram Deka's case. AIR 1964 SC 600 in answering the question under consideration. One of the questions considered in that case related to the validity of Rules 148 (3) and 149 (3) of the Railway Establishment Code (1951). The rules aforesaid permitted the termination of the service of a Railway employee by notice on either side, the period of notice being different in different circumstance. The question therefore, which was considered was whether the termination of services of a permanent railway servant under the aforesaid rules amounted to his removal under Article 311 (2) of the Constitution, and further whether the rules aforesaid were invalid. It was held that the rules framed under Article 309 cannot trespass on the rights guaranteed under Article 311 (Paragraph 27). After an analysis of the rules, this is what was observed by Gajendragadkar. J.:
"There is no doubt that on a fair construction, the impugned Rules authorise the Railway Administration to terminate the services of all the permanent servants to whom the Rules apply merely on giving notice for the specified period or on payment of salary in lieu thereof, and that clearly amounts to the removal of the servant in question. Therefore we are satisfied that the impugned Rules are invalid inasmuch as they are inconsistent with the provisions contained in Article 311 (2). The termination of the permanent servant's tenure which is authorised by the said Rules is no more and no less than their removal from service, and so Article 311 (2) must come into play in respect of such cases. That being so the Rule which does not require compliance with the procedure prescribed by Article 311 (2) must be struck down as invalid."
11. In my view, in order to determine whether the impugned Rule is invalid, the proper test would be to see whether the rule, either expressly or by necessary implication, excludes the applicability of Article 311 of the Constitution. If it does, the rule must be held to be invalid. On the other hand, if the impugned Service Rule does not have this effect, the rule itself may not be invalid, but the order without complying with provision of Article 311 would be invalid ,and incapable of being given effect to. Thus it is only when the rule is to be read in conjunction with or supplemental to Article 311 of the Constitution that it can be held to be valid. Testing it from this point of view, that part of Rule 76 which is under consideration in this case has to be struck down as invalid. The rule lays down that absence from duty, without leave, for a period of five years results in the employment of a Government servant coming to an end. The rule does not envisage passing of any order. The cessation of the service is automatic, and is a consequence of the applicability of the rule. Any Government order that is or may be passed is only for the purpose of deciding whether the rule applies to a particular Government servant in the facts and circumstances of a given case. Clearly, therefore, the applicability of Article 311 of the Constitution is excluded by necessary implication by the very language and wordings of the rule. Under the' rules nothing more is required, nothing more is to be done, once the conditions laid down in the rules are fulfilled. The fulfilment of those conditions cause automatic cessation of Government employment. I am, therefore, clearly of the view that Rule 76, in so far as it lays down that a Government servant ceases to be in Government employ if he is absent from duty for five years without leave, is invalid and must be struck down. It is further manifest that the Government order contained in Annexure 2 is also invalid and cannot be given effect to.
12. In the result, this writ application is allowed; Government's order contained in Annexure 2 as also Rule 76 aforesaid is held to be invalid. It is further held that the petitioner cannot be considered to have ceased to be in Government employ on the basis of the aforesaid order. It is, however, made clear that the order passed in this case will not stand in the way of the State Government in taking, any action against the petitioner, which may be permissible in law for her failure to join her duties as Assistant Mistress, Women's Training School, Gobindpur, and for being absent without leave after 3-6-1967.
13. There will be no order as to costs in this writ application.
Untwalia, C.J.
14. I agree.