Case: Senior Superintendent,R.M.S Cochin &amp; Anr Vs. K. V. Gopinath, Sorter

2. The services of the respondent appear to have been terminated on the basis of the directive contained in a circular dated 12th September 1968 that action should be taken against every employee who absented himself from duty on 19th September, 1968- No contention was raised at any stage that no action could be taken under R.5. The said rule reads; "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 rates 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.It is admitted that payment of the salary and allowance was not made to the respondent on 25th September, 1968. According to the respondent the disbursing officer was intimated about the order of termination only on the 28th September when he was supplied with the necessary funds. As against this it was alleged in the counter affidavit to the writ petition filed by the respondent in the High Court that one months pay and allowances had been sent by money order to the respondent. The question is, whether the order of payment was on the 25th September. The order was quashed by a learned single judge of the High Court and this was upheld by a Division Bench in appeal.3. Apart from the authorities which were cited at the Bar, it appears to us that the rule is capable of the only interpretation that the order of termination can be upheld if the requisite amount in terms of the rule was paid into the hands of the employee or made available to him at the same time as he was served with the order. R.5 (1) (a) gives the Government as well as the employed a right to put an end to the service by a notice in writing. Under R.1 (b) the period prescribed for such notice is one month. The proviso to sub-r (b) however gives the Government an "additional right in that it gives an option to the Government not to retain the service of the employee till the expiry of the period of the notice; if it so chooses to terminate the service at any time it can do so 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." At the risk of repetition, we may note that the operative words of the proviso are "the services of any such Government servant may be terminated forthwith by payment". To put the matter in a nutshell, to be effective the termination of service has to be simultaneous with the payment to the employee of whatever is due to him. We need not pause to consider the question as to what would be the effect if there was a bonafide mistake as to the amount which has to be paid. The rule does not lend itself to the interpretation 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. If that was the intention of the framers of the rule, the proviso would have been differently worded. As has often been said that if "the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense," "and not to limit plain words in an Act of Parliament by considerations of policy, if it be policy, as to which minds may differ and as to which decisions may vary," see Craies on Statute Law, Sixth Edition, pages 86 and 92

Court's reasoning:
6. Our attention was drawn to a decision of this Court which had been cited on behalf of the appellant in the High Court The State of Uttar Pradesh v. Dinnath Rai Civil Appeal No. 1734 of 1968. There the rule was differently worded. The rule in that case ran asexercise of the powers conferred by the proviso to Art.309 of the Constitution of India, the Governor of U. P. is pleased to make the following general rule regulating the termination of services of temporary Government servants:(1) Notwithstanding anything to the contrary in any existing rules and 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 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." In that case this Court had observed:"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 describe this intention to the rule-making authority. There is no doubt that the Government servant would be entitled to the pay in lieu of notice but this would be in the ordinarydoubt the language of that rule is somewhat similar to the words of R.5 but there is an essential difference. The rule only means that the pay for 30 days or less may be substituted for service for the period of the notice. In other words, the rule only entitled the employee to pay for the period of the notice without laying down any condition as to when the payment is to be given.7. In this case, as we have already noted, "termination forthwith" is to be "by payment to the Government servant" of the sum mentioned. Payment is a condition of the termination of service forthwith. The facts of this case show that the circular which formed the basis of the order of termination was issued on the 12th September and the employee, it would appear, had absented himself from duty on the 19th September. The appointing authority had at least six days within which time the amount due to the respondent could have been calculated