JAI SHANKER versus STATE OF RAJASTHAN

Citation: [1966] 1 S.C.R. 825 · Decided: 16-09-1965 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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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, Regllla-
tlon 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 respon-
dent 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. 
Regula-
tion 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 reinstate-
ment 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 
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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 pro-
cee<ted on leave for two months ending on June 13, 1950. 
He 
E 
applied for extension of leave on medical ground
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