Case: Krishan Murari Lal Sehgal Vs. State Of Punjab

2. The facts may now be briefly stated :3. The appellant who was the plaintiff in the Court below was appointed as a clerk in the Patiala State some time in July, 1948. On the formation of the new State of Punjab on November 1, 1956, with the merger of the erstwhile Pepsu and Punjab States the appellant was integrated in the service of the new State of Punjab as permanent Assistant in the grade of Rs. 150-10-300 and was actually getting Rs. 10 per month on October 21, 1959, the date of his dismissal in the office of the Financial Commissioner, Punjab.4. The appellant instituted a suit in March, 1962 challenging his order of dismissal dated October 21, 1959, as void and unconstitutional praying for a declaration that he continued to be in service of the Punjab State. In June, 1962 he instituted a second suit as pauper claiming a decree for about Rs. 8, 689 as arrears of his salary and allowances and also a further decree for Rs. 278/12/- per mensem from 5-6-1962 to 4-7-1962 and Rs. 290 per mensem from 5-7-1962 upto the date of the decree. Both the suits were decreed by the trial Court.5. According to the plaint the appellant, due to serious illness of his mother, proceeded from Simla where he was working to Patiala on casual leave on 8th July, 1958, with the sanction of the competent authority. He obtained extension of leave on account of illness of his mother, wife and daughter. Meanwhile the appellant himself became seriously ill and prayed for leave from 1-11-1958 to 28-2-1959 on the basis of a medical certificate granted by Dr. Inder Singh Sodhi, Retired Civil Surgeon, Pepsu, Patiala. The authorities declined to sanction the leave. The appellant also continued to be seriously ill and was unable to attend his duties. When he recovered he reported for duty at Simla on March 2, 1959 and he was permitted to resume his duty on furnishing a certificate of fitness granted by the aforesaid Retired Civil Surgeon.6. On January 27, 1959, the appellant was served with a charge sheet by the Financial Commissioner (Development) Punjab asking him to show cause why he should not be dismissed from Government service for his wilful absence from duty after the expiry of the earned leave sanctioned to him upto October 31, 1958, which was described as "misbehaviour". The charge sheet, inter alia, stated... You deliberately defiled the orders and again applied for extension of leave upto the 31st December, 1958 feigning yourself to be ill, and also threatened that in case leave was not allowed, you might be granted interview with the Revenue Minister ......"x x x x(2) That on the one hand you have been applying for grant of extension of leave on account of your own illness and on the other, you have requested that you may be allowed to appear in B.A. Examination to be held in April, 1959. This, therefore, clearly shows that you are not actually ill but are malingering, and have knowingly defied Government orders.(3) That your wilful absence from duty after the expiry of earned leave sanctioned to you upto the 31st October, 1958, is aappellant submitted his explanation on March 11, 1959. There was an enquiry by the Deputy Secretary (Development) in May, 1959. He was served with a second show cause notice on August 14, 1959, enclosing the report of the Enquiry Officer. The appellant submitted his representation to the said notice on October 6, 1959. On October 21, 1959, the financial Commissioner (Revenue) passed the order of dismissal. As already stated, two suits were filed by the appellant in 1962. The Subordinate Judge, First Class, Patiala, decreed both the suits on January 15, 1963. The State Government appealed to the High Court and the same was allowed on August 9, 1966 and both the suits were dismissed. That is how these appeals came before us on certificates.

Reasoning:
10. As noted earlier, factually, the appellant was confirmed and necessarily appointed by the Rajpramukh. Under the Pepsu Rules the Rajpramukh alone was the appointing authority. The appellant, therefore, cannot be removed from service by any authority subordinate to the Governor in Punjab. The coordinate authority in Punjab is the State Government. The Governor of Punjab alone, therefore, was competent to pass the order of dismissal of the appellant. The financial Commissioner (Revenue), is an authority subordinate to the Governor. He was, therefore, not competent to pass the order of dismissal. The order of dismissal is violative of Art. 311(1) of the Constitution and is, therefore, invalid and is liable to be struck down.We are unable to appreciate the above line of reasoning of the High Court. Section 116(1) is very clear. To concretise the appellants case in terms of S. 116(1). It is sufficient to state that the appellant who, immediately before the appointed day, was holding the post of an Assistant in the former State of Pepsu, shall continue to hold the same post in the new State of Punjab and shall be deemed as from that day to have been duly appointed to such post by the Government of Punjab. We are not concerned in the instant case about the appointment being deemed to be made by "other appropriate authority" in the State of Punjab since the appellant had been appointed by the Rajpramukh of Pepsu which is equivalent to the State Government of Pepsu and the coordinate authority in the new state of Punjab is the Governor of Punjab. The argument that in the new State of Punjab the Financial Commissioner (Revenue) is the appropriate authority for appointing Assistant is absolutely irrelevant in the context of S. 116(1) which enables them status quo ante to continue except where the post cases to exist under the provisions of the Act. It is also important to bear in mind the provisions of S.115(7) of the Act where under the proviso thereto "the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-s. (1) or sub-s. (2) shall not be varied to his disadvantage except with the previous approval of the Central Government."13. One of the conditions of service of the appellant was that having been appointed by the State Government of Pepsu he could be only dismissed by the State Government of Pepsu if he had continued there. Under S. 116 when he is integrated in the new State of Punjab he carries with him that condition of service with regard to his termination of employment and it cannot be varied to his disadvantage under S.115(7) of the Act except with the previous approval of the Central Government, (Takhatray Shivdatray Manked v. State of Gujarat, (1970) I S.C.R. 244 and Bholanath J. Thaker v. The State of Saurashtra.) A.I.R. 1954 S.C. 680. No such approval of the Central Government in the instant case is produced before us. It is, therefore, clear that an authority sub-ordinate to the Governor of Punjab was not competent to pass the order of dismissal of theunder Rule 4 thereof the Financial Commissioner is the appointing authority for Assistant, the category to which the appellant belongs. He adds that even though these Rules may be disadvantageous to the appellant he cannot complain on account of the approval of these Rules by the Central Government under S.115(7) of thesuch approval of the Central Government in the instant case is produced before us. It is, therefore, clear that an authority sub-ordinate to the Governor of Punjab was not competent to pass the order of dismissal of theare, however, unable to see how this memorandum of May 11, 1957, can be called in aid as "previous approval" under S.115(7) of the Act when the Punjab Financial Commissioners Office (State Service Class III) Rules, 1957 were already promulgated on February 8,1957. Approval under S. 115(7) is previous approval and not subsequent notification. The above decisions, therefore, do not come to the aid of the respondent.