Ghanshyam Singh vs State of Uttar Pradesh

P. N. Goel, J.

This is a plaintiff''s appeal against the judgment and decree dated 411968, passed by the Additional Civil Judge, Ballia in civil appeal no. 124 of 1966.

Facts requisite for the disposal of this appeal are :

Appellant was appointed as a stockmen in the livestock department as a temporary hand in the year 1959. He fell ill in September 1962. Consequently he gave applications for leave. His services were terminated with effect from 18121962. On 29101965 the appellant filed suit that his services were terminated in violation of the provisions contained in Article 311 of the Constitution for he was not given any opportunity of showing cause against the action taken. The suit was contested by the State on the ground that his services were rightly terminated and that the provisions of Article 311 of the Constitution were not applicable.

Both the courts below found that provisions of Article 311 were not applicable. Consequently the appellant''s suit was dismissed.

The learned counsel for the appellant referred to paper no. 16ka which is an application dated 1911963 for leave by the appellant. This application was returned to the appellant with the remark that he was granted extraordinary leave upto 90 days from 18.91962 as permissible under subsidiary rule 157A (4), that he did not resume his duties and that on the expiry of the said leave his services stood terminated with effect from 17121962.

On the basis of the above document, the appellant''s counsel relied on the case of Jai Shanker v. State of Rajasthan A. 1. R, 1966 S. C. 492. In this case the services of a permanent Government servant were terminated on the basis of certain Regulation of the Jodhpur Services for overstaying his leave. It was held that his services could not be terminated on the basis of the said Regulation because that Regulation violated Article 311 of the Constitution.

Services of a permanent Government servant can be terminated only in one way i. e. by removal or dismissal. Article 311 (2) of the Constitution provides that no Government servant shall be dismissed or removed except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Services of a permanent Government servant cannot, therefore, be terminated by a simple notice or order.

Services of a temporary Government servant can be terminated in two ways : (1) by removal or dismissal, or (2) by simple innocuous order of termination per conditions of service.

In the case in hand, the services of the appellant were not terminated by removal or dismissal. Record shows that on 18121962, the Deputy Director of Animal Husbandry wrote to the District Lives took Officer, Ballia to intimate if the appellant had joined his duties on 13121962 as his leave expired on 12121962. He further instructed that in case he had not joined, he should not be allowed to join his services on or after 18121962 as his services would stand terminated, being a temporary Government servant. In compliance with these instructions, the District Livestock Officer, by order dated 20121962, terminated the services of the appellant with effect from 18121962. A copy of this order was sent to the appellant by Registered Post.

At this stage, reference may be made to subsidiary rule 157A (4) (b) and the conditions of service of the appellant in his letter of appointment dated 2481959. Subsidiary rule 157A (4) (b) provides that the Government servant who does not resume his duties on the expiry of the extraordinary leave shall cease. The letter of appointment of the appellant mentions, "His services are liable for termination on expiry of the terms of temporary post or on one month''s notice in lieu thereof."

The appellant''s learned counsel pointed out that rule,5 of Central Temporary Services Rules provided that the services of a temporary Government servant can be terminated by giving one month''s notice or one month''s pay in lieu of notice.

In view of the above, the appellant''s counsel raised two contentions:

(1) The services of the appellant were terminated by the Deputy Director keeping in view the provisions of Rule 157A (4) (b) and, therefore, the principle under the case of Jai Shanker v. State of Rajasthan (supra) cited above was applicable. This contention is not correct because Jai Shanker appellant was a permanent Government servant and his services could be terminated by one way only i e. removal or dismissal. Therefore it was held that the regulation which provided termination of services for overstaying leave was violative of Article 311. Appellant Ghanshyam Singh was not a permanent Government servant. He was temporary. Therefore, his services could be terminated in a manner other than the one covered by Article 311. In his case rule 157A (4) (b) cannot be held violative of Article 311, despite the fact that if a temporary Government servant is dismissed or removed from service, compliance of the provisions of Article 311 will have to be made.

(2) The services of the appellant were not terminated in the way in which services of a temporary Government servant can be terminated i.e. by one month''s notice or by giving one month''s pay in lieu of notice. In the present case, it is undisputed that the services of the appellant were terminated, that neither one month''s notice was given ; nor one month''s pay in lieu of notice was given. In these circumstances the only remedy of the appellant is to claim one month''s pay. As the alleged form of termination of service was not adopted, the appellant can only claim the advantage which be would have got if the alleged form had been adopted. On this ground, he cannot assert that he continued to remain in service.

In the present case, the appellant did not pray for awarding him one month''s pay. Therefore, this relief was not given to him by the courts below.

The result of the above discussion is that there is no merit in this appeal.

Appeal is dismissed. In the unusual circumstances of the case, parties shall bear their own costs incurred in the court.