The State Of Assam And Ors. vs Akshaya Kumar Deb on 2 May, 1975 Equivalent citations: AIR1976SC37, 1975LABLC581, (1975)IILLJ110SC, (1975)4SCC339, 1975(7)UJ499(SC), AIR 1976 SUPREME COURT 37, 1975 LAB. I. C. 1753, 1976 2 SCJ 246, 1975 UJ (SC) 499, 1975 2 SERVLR 430, 1975 2 SCWR 377, 1975 4 SCC 339, 1975 SERVLJ 592, 1975 2 LABLJ 110 Author: R.S. Sarkaria Bench: A.C. Gupta, R.S. Sarkaria JUDGMENT R.S. Sarkaria, J 1. This appeal is directed against the judgment of the High Court of Assam and Nagaland declaring that the termination of the services of the respondent, being violative of Article 311(2) of the Constitution was illegal. 2. The respondent, A.K. Deb, joined service as a Lower Division Assistant in the office of the Superintendent of Veterinary Department, Assam, on 1-4-1937. He was confirmed in that post on 28-8-1937. He was promoted as Upper Division Assistant and confirmed as such on 26 8-1943. He got further promotion as Head Assistant and was confirmed in that post with effect from 20-6-1946. Thereafter on 26-4-1947, he was appointed as Personal Assistant against a newly created temporary post in higher scale. He continued to work in that post till 18-8-1949 when he was reverted to the post of Head Assistant. On 8-11-1951, the Director of Veterinary Department drew up proceedings against the Respondent on certain charges. As a result, the Respondent was reverted to the post of Upper Division Assistant on 15-12-1952. The Respondent on 21-1-1953 filed an appeal against the order of his reversion to the State Government. The appeal was dismissed on 19-2-1954, and by order dated 28-8-1956, the Respondent was allowed to join as Head Assistant subject to the production of a medical certificate of fitness. It was further stated in the order that the Respondent would be entitled to such leave as admissible under the rules from the date he proceeded on leave until joining the post of Head Assistant. On 1-9-1956, the Respondent reported for duty and produced a medical certificate of fitness from the Civil Surgeon, Kamrup. Despite this, he was not assigned any duty. He continued to attend his office till 13-9-1956 when he was informed that the operation of the order dt. 28-8-1956 of the Government had been suspended. Subsequently, by a letter dated 30-10-1956, the Government informed him that the earlier order, had been revised and he should join the post of Upper Division Assistant to which he had been reverted. Against this order of reversion, the Respondent unsuccessfully appealed to the State Government. The appeal simply drifted till on 20-2-1961, he was informed that the appeal did not he. The State Of Assam And Ors. vs Akshaya Kumar Deb on 2 May, 1975  1 3. In the meantime on 12-9-1956, the Director called for the explanation of the Respondent for the latter's absence without leave since 5-91956. The Director drew up disciplinary proceedings against the Respondent for his disobedience of the Government's order requiring him to join his post and for remaining absent from duty without information. Another show cause notice was issued on 26-11-1957 as to why he be not dismissed from service. The Respondent submitted a written statement and prayed for a personal hearing. He also filed an appeal to the Governor on 20-5-1961. By a letter No. AGV7/52/280 dated 15-2-1963, the Respondent was informed that he had ceased to be a Government servant, under F R. 18 of the Assam Fundamental and Subsidiary Rules with effect from 5 9-1961 on account of his continuous absence from duty for more than five years. 4. To challenge the order, dated 30-10-1956, of his reversion to the post of Upper Division Assistant, and the order, dated 15-2-1963, by which it was held that he had ceased to be in Government service, the Respondent filed a writ petition under Article 226 of the Constitution in the High Court. Late, he did not press his challenge to the order, dated 30-10-1956, and confined it only to the order, dated February 15, 1963. 5. After observing that the termination of service under F. R. 18 means that the employees' blameworthy, and operates as punishment amounting to 'dismissal' from service, the High Court concluded: that F. R. 18 which permits termination of the service of a permanent Government employees without observance of the requirement of Article 311(2) of the Constitution on a ground other than ordinary or compulsory superannuation, must be held to be invalid because such a rule contravenes the Constitutional safeguard provided by that Article. Towards the end of its judgment the High Court said : We however, make it clear that we do not declare the petitioner to have continued in the post of Head Assistant as we have not interfered with the order reverting the petitioner to the post of an Upper Division Assistant. We hold that F. R. 18 is void being hit by Article 311(2) of the Constitution and the termination of the service of the petitioner under this Rule is invalid. In the result, the High Court allowed the writ petition and directed the Government not to give effect to the impugned order, dated 15-2-1963. 6. Hence this appeal by the State on a certificate granted under Article 133(1)(c) of the Constitution. 7. The only question that falls for determination is whether the services of the Respondent could be terminated under Rule 18 of the Assam Fundamental and subsidiary Rules, without complying with the procedure prescribed in Article 311(2) of the Constitution ? The State Of Assam And Ors. vs Akshaya Kumar Deb on 2 May, 1975  2 8. It is common ground that no charge was framed against the Respondent, no inquiry was instituted nor was he given an opportunity to show cause against the impugned action. 9. Mr. Naunit Lal, learned Counsel appearing for the appellant con tends that the termination in question does not amount to "dismissal" or "removal" but is a "cessation" of service which results automatically without any action on the part of the Government from the unilateral conduct of the employees in remaining absent from duty for a period of five years or more. In such a situation, it is maintained Article 311(2) of Constitution is not attracted. Another reason advanced in support of this contention is that cessation of service under F. R 18 does not entail forfeiture of the benefits already earned, nor does it debar the servant from re-employment under the Government. In the alternative, it is half-heartedly submitted that show-cause notices were issued to the Respondent on 12-9-1956 and 26-12-1957 to enable him to ex plain his prolonged absence, and the issue of those notice should be deemed to be a substantial compliance with the basic rule of natural justice which under lines Article 311(2). 10. As against the above, it is urged by Shri D.N. Mukherjee the learned Counsel for the Respondent that the High Court lias rightly struck down F. R. 18 as unConstitutional because the so called "cessation" of service under that Rule is nothing but ''dismissal" or "removal" from service within the purview of Article 311(2). It is contended that the termination in question does resist the employee with serious penal consequences. It is pointed out that according to the appellant State, itself, the five years' period of absence from duty which attracted F. R. 18, under which the impugned action has been taken, ended only on 5-9-1961, and no notice whatever after the completion of the alleged period was issued to the Respondent. In these circumstances, says the Counsel any notices issued to the Respondent many years before 5-9-1961, could not by any stretch of imagination be said to be an observance of the fundamental principle of natural justice enshrined in Article 311(2). In support of his contentions, the learned Counsel has referred to Jai Shankar v. State of Rajasthan and N. Krishna Nadiwala v. Inspector of Post Offices (1968) 2 Mysore Law Journal 426. The impugned order, dated February 15, 1963, is in these terms. Whereas Shri A.K. Deb, Office Assistant, Office of the Director of Animal Husbandry and Veternary, Assam, Gauhati, has been sent continuously for more than 5 (five) years from duty without leave; Now, therefore pursuant to F. R. 18 of F. R. and S. R. it is hereby ordered and declared that said A. K. Deb, has ceased to be in Government employ with effect from 5th September 1961. The material part of F. R. 18, runs thus: Unless the Provincial Government, in view of the Special circumstances of the case shall otherwise determine, after five years' continuous absence from duty, elsewhere than on foreign service, in India, whether with or without leave, a Government servant ceases to be in Government employ. The State Of Assam And Ors. vs Akshaya Kumar Deb on 2 May, 1975  3 11. From a reading of F.R. 18 is it discernible regards continuous absence of an employee, whether with or without leave, for a period of five years or more, as conduct which must normally entail; "cessation or termination of his service. Although not in so many words, but by necessary intendment, the Rule regards such conduct of the employee, as a fault or blameworthy behavior which renders him unfit to be continued in service. In this context, the "cessation" of service pursuant of his Rule Would, in substance and effect, stand on the same footing as 'his removal' from service within the contemplation of Act, 311(2) of the Constitution, particularly when it is against the will of the employee who is willing to serve, or who had never lost the aimus to rejoin duty on the expiry of his leave. Another reason for equating 'cessation' of service under this rule with 'removal' within the meaning of Article 311(2), that it proceeds on a ground personal to the employee involved an imputation which may conceivably be explained by him in the circumstances of a particular case. Cases are not unknown where the absence of a Government servant, even for prolonged period has been due to circumstances beyond his control. The case of the Japanese soldier who remained out off and standed in the jungles of a remote Pacific island for three decades after the termination of World War II, is recent instance of this kind. 12. Now in the case in hand, the impugned order was made against the consent of the Respondent who has throughout been willing to continue in service. His case is that after the expiry of his leave he reported for duty and produced a medical certificate of his fitness, but he was arbitrarily & maliciously not allowed to work after September 13, 1956. Indeed, his contention is that in these circumstances. F.R. 18 would not be attracted. Apart from the Constitutional requirement of Act. 311 natural justice and fairplay required that he should have been given a chance to substantiate his contention. The fact remains that given an opportunity, he would have controverted seriously the circumstances of his absence from duty on the basis of which the impugned action has been taken. 13. It is difficult to accept the contention that the 'removal' under F.R. 18 does not visit the employee with any evil consequences. True, that 'removal' unlike 'dismissal', may not under the Service Rules disqualify the person 'removed' from re-employment under the Government. Further, from the standpoint of the Service Rules there may be a difference between 'removal' and 'dismissal' as to the extent of consequences that respectively flow there-from But for the purpose of Article 311(2) both stand on an equal footing, as major penalties. Both entail penal consequences. Nor is it correct to say that the removal under F.R. 18 is analogous to compulsory or premature retirement. Our attention has not been drawn to any service rule or provision to support the contention that the impugned order will not result in forfeiture, of the benefits already earned by the employee. On the other hand, according to most service Rules, 'removal' or 'dismissal does cause forfeiture of the right to pay allowances and pension already acquired for past services. 14. Distinction between 'removal' and 'compulsory retirement, was pointed out by this Court in Shyamlal v. The State of U.P. and Anr. thus : ...There can be no doubt that removal...generally implies that the officer is regarded as in some manner blameworthy or deficient, that misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some The State Of Assam And Ors. vs Akshaya Kumar Deb on 2 May, 1975  4 ground personal to the officer. Such grounds, therefore, involve the levelling or some imputation or charge against the officer which may conceivably be controverted or explained by the officer. There is no such element of charge or imputation in the case of compulsory retirement ...compulsory retirement has no stigma or implication of misbehavior or incapacity. X X X X ...dismissal or removal is a punishment. This is imposed on an officer as a penalty. It involves loss of benefit already earned, X X X X ...an officer who is compulsory retired does not lose any part of the benefit that he has earned. 15. Even if it is assumed that termination under F.R. 13 does not cause forfeiture of benefits already earned such as pension etc.. then also that will not, by itself take, it out of the category of 'removal' as envisaged by Article 311(2). The respondent was permanent Government servant. He had a right to his substantive rank. According to the test laid down by this Court in Purshottam Lal Dhingra's case (1958) SCR 828, the mere termination of service, without more, of such an employee would, constitute his 'removal' or 'dismissal' from service, attracting Article 311(2). From the Constitutional standpoint, therefore, the impugned termination of service will not cease to be 'removal' from service merely because it is described or declared in the phraseology of F.R. 18 as a 'cessation of service. The Constitutional protection guaranteed by Article 311(2) cannot be taken away "in this manner by a side wind." 16. The above view is fortified by the ratio of this Court's decision in Jai Shanker v. State of Rajasthan (supra).The appellant therein was Head Warder in the permanent service of Rajasthan State.O . April 14, 1959, he proceeded on two month's leave. He later asked for extensions of the leave on medical grounds. He was due to join on August 13, 1959: his request beyond that date was refused. Thereafter he made further applications for leave, the last of them sup ported by a medical certificate. To his last and some of the earlier applications he received no reply, but on November 8, 1959, he received a communication from the Deputy Inspector General of Prisons that he was discharged from service from August 13, 1950. Departmental remedies having failed, he filed a suit challenging his removal from service. The Trial Court dismissed his suit The first appellate court accepted his appeal. In second appeal by the State, the High Court restored the trial Court's order. The employee came to this Court in appeal by special leave. The State relied on Regulation 13 of the Jodhpur Service Regulations which provided : 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 sactificed his appointment and may only be reinstated with the sanction of the competent authority. Note : The submission of an application for extension of leave already granted does not entitle an individual to absent himself without permission. 17. It was contended by the State that this Regulation operated automatically and no question of removal from service could arise because the servant must be considered to have sactificed his The State Of Assam And Ors. vs Akshaya Kumar Deb on 2 May, 1975  5 appointment. It was maintained that under the Regulation, the employee could only be reinstated with the sanction of the competent authority. 18. As before us in the instant case, the question that a fell there for consideration was, whether the Regulation was sufficient to enable the Government to remove a person from service without giving him an opportunity of showing cause against that punishment, if any. Answering this question in the negative, the Court, speaking through Hidyatullah J. (as he then was) illumined the position thus : The Regulation, no doubt, speaks of reinstatement if (the employee) is to be discharged or removed from service. The question of reinstatement can only be considered if it is first considered whether the person should be removed or discharged from service. 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 over-staying 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 over staying 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. 19. The above enunciation applies to the facts of the present case. Excepting the length of the period of absence, the basis features of Regulation 13 In Jai Shanker's case were very similar to those of F.R. 18 now under consideration. The words "should be considered to have sacrified his appointment" in Regulation 13. substantially correspond to the words "servant ceases to be in Government employ" in F.R. 18. Further, the impost and effect of the phrase "may only be reinstated with the sanction of the competent authority" in the Regulation, is largely the same as that of the opening clause "unless the Provincial Government in view of the special circumstances of the case shall otherwise determine" in F.R. 18. The difference between the Regulation and F.R. 18 as to the length of absence from duty prescribed as condition precedent for the attraction of the respective provision, is a distinction without a difference in principle. The consequence of absence, though for different periods, evisaged by both the provisions, is the same "sacrifice" or "ceasation" of the absentee's service. The present case will thus be governed by the ration of Jai Shankar's case (supra). The State Of Assam And Ors. vs Akshaya Kumar Deb on 2 May, 1975  6 20. Recently, in Deokinandan Prasad v. State of Bihar a Bench of Five learned Judges of this Court held that an order of termination of service passed under Rule 76, Bihar Service Code (which is identical in all respects with F. R. 18 in the present case on account of the servant's continuous absence for 5 years without giving an opportunity to the servant under Article 311(2) would be invalid. 21. In the light of the above decisions, there can be no escape from the conclusion, that the impugned order, dated February 13, 1963 was violative of Article 311(2) of the Constitution and, as such, illegal. It was imperatively necessary to give the servant an opportunity to show cause against the proposed action, particularly when he was pres stempt persistently contending that his failure to join duty or absence was involuntary and due to circumstances beyond his control. 22. In view of the above approach, it is not thought necessary to express any final opinion as to the Constitutional validity of Rule 18 of Assam Fundamental and Subsidiary Rules. Although couched in ambiguous and unhappy language, the Rule is capable of being interpreted and worked consistently with the requirement of Article 311(2) of the Constitution. This however, should not full the Government into a sense of complacency and belief that all is well with the Rule. The sooner it is suitably amended, the better will it be in the interest of all concerned. 23. For the foregoing reasons, the appeal fails and is dismissed with costs. The State Of Assam And Ors. vs Akshaya Kumar Deb on 2 May, 1975  7