# JAi SHANKER v. STATE OF RAJASI'HAN

- **Citation:** [1966] 1 S.C.R. 825
- **Court:** Supreme Court of India
- **Decided:** 1965-09-16
- **Bench:** M. Hidayatullah, J. C. Shah, S. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jai-shanker-v-state-of-rajasi-han-3635
- **Pages:** 6

## Headnote

825
Constitution of India, Art. 311-Jodhpur Service Regulations, Reglllatlon 13-Provlslon for automatic termination of service for over staying
l~ve by more than one month--Such termination whether attracts Art.
311.
Tbc appellant was Head Warder in Rajasthan and in the permanent
&ervice of the State.
On April 14, 1950 he proceeded on leave for two
months.
He later asked for extensions of the leave on medical grounds.
He was due to join on August 13, 1950; his request for leave beyond that
date was refused. Thereafter he made further applications for leave, the
last of them supported by a medical certificate. To his last and some of
the earlier applications he received no reply but on November 8, 1950, 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 decided against him and the first appellate court in his
favour. The High Court however restored the order of the trial court
whereupon the appellant came t.o this Court by special leave.
It was contended on behalf of the appellant that in not giving him any
notice before terminating his services the State Government had acted in
contravention of Art. 311 of the Constitution.
On behalf of the respondent State reliance was placed on Regulation 13 of the Jodhpur Service
Regulations which Jaid do\VD that nn individual who absented himself
w:ithout permission for one month or long after the end of his leave would
be considered as having sacrificed hi.co appointment and could only he
reinstated with the sanction of the competent authority. On the basis
of this Regulation it was contended that the appellant's appointment had
terminated automatically and no question of his removal from service
attracting the provisions of Art. 311 arose.
HELD : The constitutional protection given to Government employees
by Art. 311 cannot be taken away in this manner by a side wind.
Regulation 13 no doubt speaks of reinstatement but it really comes to this that a
person will not be reinstated if he is ordered 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.
[828 G; 829 C-D]
The Regulation involves a punishment for over~staying one's leave
and the burden is thrown on the incumbent to secure re-instatement by
chowing cause.
It may be convenient to describe him as seeking reinstatement but this is not tantamount to savin~ that becau<;e the nerson \Vill only
be reinstated by an appropriRte authority that the removal i~ antomatid
and outside the protection of Art. 311.
A remov::i.t is removal and if it is
punishment for overstaying one's leave an opportunity must be gh·en to
826
SUPREME COURT REPORTS
[1966] l S.C.R.
the person against whom such an order is proposed, no matter how tho
A
Regulation de:;cribes it.
·ro give no opportuniry is to go again.~t Art. 311.
(829 E-G]
The appellant was entilled to a declaration that his removal from
lm'Vice was illegal.
C1v1L APPELLATE JURISDICTION : Civil Appeal No. 576 of
1964.
B
Appeal by special leave fr;im the judgment and order dated
December 11, 1962 of the Rajasthan High Court in S.B. Civil
Regulation Second Appeal No. 37 of 1961.
U. M. Trivedi, Chandra Dl:ar lssar and Ganpat Rai, for the
appellant.
c
G. C. Kasliwa/, Advocate-General, Rajasrhan, M. M. T1wari,
K. K. Jain and R. N. Sachthey, for the respondent.
The Judgment of the Court w~s delivered by
llidayatullah, J.
The appclbnt Jai Shanker, who appeals to
this Court by special leave agai%t the judgment of the High Court
D
of Rajasthan dated December 11, 1962, was a Head W;,rder,
Central Jail, Jodhpur in 1950.
He had started his service as a
W:.rrle

## Text

A
B
-
c
D
F
G
H
JAi SHANKER
v.
STATE OF RAJASI'HAN
September 16, 1965
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,
[M. HIDAYATULLAH, J. C. SHAH AND S. M. SIKRI, JJ.]
825
Constitution of India, Art. 311-Jodhpur Service Regulations, Reglllatlon 13-Provlslon for automatic termination of service for over staying
l~ve by more than one month--Such termination whether attracts Art.
311.
Tbc appellant was Head Warder in Rajasthan and in the permanent
&ervice of the State.
On April 14, 1950 he proceeded on leave for two
months.
He later asked for extensions of the leave on medical grounds.
He was due to join on August 13, 1950; his request for leave beyond that
date was refused. Thereafter he made further applications for leave, the
last of them supported by a medical certificate. To his last and some of
the earlier applications he received no reply but on November 8, 1950, 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 decided against him and the first appellate court in his
favour. The High Court however restored the order of the trial court
whereupon the appellant came t.o this Court by special leave.
It was contended on behalf of the appellant that in not giving him any
notice before terminating his services the State Government had acted in
contravention of Art. 311 of the Constitution.
On behalf of the respondent State reliance was placed on Regulation 13 of the Jodhpur Service
Regulations which Jaid do\VD that nn individual who absented himself
w:ithout permission for one month or long after the end of his leave would
be considered as having sacrificed hi.co appointment and could only he
reinstated with the sanction of the competent authority. On the basis
of this Regulation it was contended that the appellant's appointment had
terminated automatically and no question of his removal from service
attracting the provisions of Art. 311 arose.
HELD : The constitutional protection given to Government employees
by Art. 311 cannot be taken away in this manner by a side wind.
Regulation 13 no doubt speaks of reinstatement but it really comes to this that a
person will not be reinstated if he is ordered 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.
[828 G; 829 C-D]
The Regulation involves a punishment for over~staying one's leave
and the burden is thrown on the incumbent to secure re-instatement by
chowing cause.
It may be convenient to describe him as seeking reinstatement but this is not tantamount to savin~ that becau<;e the nerson \Vill only
be reinstated by an appropriRte authority that the removal i~ antomatid
and outside the protection of Art. 311.
A remov::i.t is removal and if it is
punishment for overstaying one's leave an opportunity must be gh·en to
826
SUPREME COURT REPORTS
[1966] l S.C.R.
the person against whom such an order is proposed, no matter how tho
A
Regulation de:;cribes it.
·ro give no opportuniry is to go again.~t Art. 311.
(829 E-G]
The appellant was entilled to a declaration that his removal from
lm'Vice was illegal.
C1v1L APPELLATE JURISDICTION : Civil Appeal No. 576 of
1964.
B
Appeal by special leave fr;im the judgment and order dated
December 11, 1962 of the Rajasthan High Court in S.B. Civil
Regulation Second Appeal No. 37 of 1961.
U. M. Trivedi, Chandra Dl:ar lssar and Ganpat Rai, for the
appellant.
c
G. C. Kasliwa/, Advocate-General, Rajasrhan, M. M. T1wari,
K. K. Jain and R. N. Sachthey, for the respondent.
The Judgment of the Court w~s delivered by
llidayatullah, J.
The appclbnt Jai Shanker, who appeals to
this Court by special leave agai%t the judgment of the High Court
D
of Rajasthan dated December 11, 1962, was a Head W;,rder,
Central Jail, Jodhpur in 1950.
He had started his service as a
W:.rrler in April 1940, was promoted as Head Warder in 1944 and
was a permanent servant of the State.
On April 14, 1950 he procee<ted on leave for two months ending on June 13, 1950.
He
E
applied for extension of leave on medical grounds for 20 day>, as
he had fallen ill, and again for I 0 days.
Later he asked for an
extension by a month.
He was due to join on August 13, 19.'\0.
On August 14, 1950 he was told that no more leave woult.l be
gra11:e<l and that his transfer to Jaipur, made while he was ill at
Hyclerabad, would not be cancelled.
Jai Shanker returned to Jodhpur from Hyderabad on SertcmF
ber I, 1950 and applied for further leave.
He made several applicati•ms.
His last application was sent by Registered po,t, ,;upported by a medical certificate, on November 3, 1950 asking for
leave till November 11, 1950. To his last and some of the earlier
applications for leave he receivffi no reply and on November 8,
G
19j0, he received a communication dated 2.14-11-50 of the De:mty
Jnsoector General, Prisons under fndorsement from the Suverintende~t. Central Jail, Jodhpur that he was discharged from service
from August 13, 1950.
He preferred an appeal against that
order to the Inspector General of Prisons, Rajasthan but it was
dismissed on September 24, 1951.
Jai Shanker submitted an
H
appeal to the Home Secretary, Rajasthan Government.
He was
infonned by a letter dated December 17, 1953 from the Home
•
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B
D
E
F
JAI SHANKAR v. STA1'E (Hidayatullah, J.)
827
Secretary that the papers had been sent to the Inspector General,
Prisons for necessary action.
Jai Shanker alleges that he was
cail~d by Personal Assistant to the Inspector General and was offered reinstatement if he undertook not to claim back salary but he
deciined the offer.
After serving a notice under s. 80 of the Code
of Civil Procedure, Jai Shanker filed the suit from which this
appeal arises.
He asked for a declaration that the termination of
his service was illegal inasmuch as he was entitled to a notice
enabling him to show cause against the termination of his service
as required by Art. 311 of the Constitution.
He also asked for
his back salary amounting to 2369.
The Subordinate Judge, Jodhpur decided that Jai Shanker's
allegations about his illness were true but he rejected the contention
that the discharge from service was illegal. As a consequence the
claim for back salary was disallowed and the suit was ordered to
be dismissed.
On appeal to the District Court Jai Shanker
succeeded in getting a reversal of the decree of the trial Judge. The
District Judge, Jodhpur held that Jai Shanker was entitled to a
declaration that his removal from service was illegal and that he
continued to remain in employment and was also entitled to all
arre;irs of salary admissible to him under the rules.
The State
Government appealed against the judgment and decree of the District Judge and by the order under appeal the decree of the District
Judge was set aside and the decree of the Subordinate Judge was
restored.
Jai Shanker was ordered to pay costs in the High Court
and the two courts below.
The short question in this appeal is whether Jai Shanker was
entitled to an opportunity to show cause against the proposed
punishment as required by cl. C2) of Art. 311.
It is admitted that
no charge was framed against him.
Nor was he given any opportunity of showing cause.
The case for the State Government is
that Government did not terminate Jai Shanker's service, anJ that
it was Jai Shanker who gave up the employment by remaining
absent.
It is submitted that such a case is not covered by Art. 311.
G In support of this contention certain Regulations of the Jodhpur
Service Regulations are relied upon and w.~ shall now refer to them.
Regulation 7 lays down that leave cannot be claimed as a right
and that Government has discretion to refuse or revoke leave~ of
any description.
Regulation 11 lays down that an individual who
H
has been granted leave on medi~3l grounds for a period of one
month or more may not return to duty without producing a certificate of fitness signed by an officer authorised by a general or
special order to grant such certificate. Regulation 12 lays down
828
SUPREME COURT REPORTS
[1966) l S.C.R.
that an individual who absents himself without pennission or A
remain> absent at the end of his leave is entitled to no salary for
the period of such absence and that period will be debited agai11St
his leave account unless the leave is sanctioned or extended under
the o;;rdinary rules by competent authority.
Regulation 13 is
impori,mt because it forms the b~sis of the contention that Art. 31 I
does not apply to this case. That Regulation may be reproduced
B
here:
"13. An individual who absents himself without pern;ission or who remains ab:;cnt withm1t permission for
one month or longer after the end of his leave should be
considered to have sacrificed his appointment and may
C
only be reinstated with the sanction of the competent
authority.
Norn :-The submission of an application for extension of leave already granted does not entitle an individual to absent himself without permission."
D
It is contended that this Regulation operated automatically
and no question of removal from service could arise because Jai
Shanker must be considered to have sacrificed his appointment.
TJ11d~r the Regulation he could only be reinstated with the sanction
of the competent authority.
\l/e have, therefore, to determine
i:
whether this Regulation is sufficient to enable the Government to
removr a person from service wi:hout giving him an opportunity
of showing cause against that punishment, if any.
It ;s admitted on behalf of th~ State Government that discharge
from service of an incumben• hy way of punishment amounts to
removal from service.
It is, however, contended that under the
Regulation all that Governm~nt does, is not to allow the pe"!.On to
be rein~tated. Government doe> not order his removal because the
incumlicnt himself gives up :he employment.
We do not think
that the constitutional protcctirm can be taken away in this m~nner
••
by a side wind.
While, on the 11ne hand, there is no compulsion G
on the part of the Government to retain a person in service if he
is unfit and deserves dismissnl or removal, on the other, a person
is entitled to continue in service if he wants until his service is
terminated in accordance with law.
One circumstance de-.erving
rcmovnl may be over-staying one's leave.
This is a fault which
may entitle Government in a suitable case to consider a man as
unfit to continue in service.
But even if a regulation is m~de, it
is necessary that Government should give the person an opportunity
H
•
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A
B
c
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JAI SHANKAll v. STATE (Hidayatul/ah, /.)
829
cf showing cause why he should not be removed.
During. the
hearing of this case we questioned the Advocate General what
would happen if a person owing to reasons wholly beyond his control or for which he was in no way responsible or blameable. was
unable to return to duty for over a month, and if later on he wished
to join as soon as the said reasons disappeared?
Would in such
a case Government remove him without any hearing, relying on
the regulation ? The learned Advocate General said that the question would not be one of removal but of reinstatement and Government might reinstate him.
We cannot accept this as a sufficient
answer.
The Regulation, no doubt, speaks of reinstatement but it
really comes to this that a person would not be reinstated if he is
ordered 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 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 over-staying his leave, but we
do not think that Government can order a person to be discharged
E from service without at least telling him that they propo~e 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
F
G
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 Art. 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
mntter how the Regulation describes it.
To give no opportunity is
to go against Art. 311 and this is what has happened here.
In our judgment, J ai Shanker was entitled to an opportunity to
show cause against the proposed removal from service on his overstaying his leave and as no such opportunity was given to him his
removal from service was illegal.
He is entitled to this declaraH
tion.
The order of the High Court must therefore be set aside and
that of the District Judge, Jodhpur restored.
The question of what
back- salary is due to Jai Shanker must now be determined by the
\
830
SUPREME COURT REPORTS
(1966) I S.C.ll.
trial Judge in accordance with the rules applicable, for which purA
pose there shall be a remit of this case to the civil Judge, Jodhpur.
The State Government shall pay the costs of Jai Shanker in
this Court, the High Court and the two courts below, incurred so
far. The appellant has been permitted to appeal in forma pauperls.
The State will pay the Court Fee payable on the memorandum.
B
The Advocate for the appellant will be entitled to recover his costs.
Appeal allowed.