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1971 DIGILAW 3 (KER)

SENIOR SUPERINTENDENT, RMS. , COCHIN v. K.

1971-01-05

M.U.ISAAC, P.GOVINDA NAIR

body1971
Judgment :- 1. The short question in this appeal is whether the termination of the services of the respondent by Ext.pl order dated 25-9-1968 with immediate effect is ineffective and in-operative in view of the provision in R.5 of the Central Civil Services (Temporary Service) Rules, 1965, (hereinafter referred to as the Rules). Ext. PI order stated thus: "In pursuance of the proviso to sub-rule (1) of R.5 of the Central Civil Service (Temporary Service) Rules, 1965 I hereby terminate forthwith the services of Shri K. V Gopinath, Ty. Sorter H-R.O., Cochin 16 (name and designation) and directs that be shall be paid a sum equivalent to the amount of pay and allowances for a period of one month (in lieu of the period of notice) calculated at the same rate at which he was drawing them immediately before the date on which this order is served on or, as the case may be, tendered to him." Rule 5 (1) of the Rules is in these terms: "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 on the 25th September, 1968 no payment of the salary and allowances was made or offered to the respondent. The respondent urged that the disbursing officer was intimated about Ext. P1 order only on the 28th September, 1968, and he was supplied with the necessary funds also only on that date. It is urged in the counter affidavit that one month's pay and allowances were sent by money order to the petitioner and that he did not receive it. The respondent urged that the disbursing officer was intimated about Ext. P1 order only on the 28th September, 1968, and he was supplied with the necessary funds also only on that date. It is urged in the counter affidavit that one month's pay and allowances were sent by money order to the petitioner and that he did not receive it. At the time of the arguments, this contention was clarified with reference to the records made available to us. Including the sum of Rs. 60.30 said to be the excess amount paid on 28-9-68 a sum of Rs. 201 it is said was tendered to him, in view of the money order for Rs. 140.70 sent on 9-10-68. The respondent urged that the money order was not sent to his correct address and that in any view of the matter the sum of Rs. 201 does not represent the salary and allowances for the month due to him. According to him, the correct sum would be Rs. 208.50. 2. On the above facts, the learned judge in the judgment under appeal came to the conclusion on interpreting R.5 of the Rules that we have read that the termination of the services of the respondent by Ext. P1 is inoperative and ineffective. The learned judge relied on the decision of this Court in Bala¬gopalan v. State of Kerala reported in 1963 KLT.1167, that in The State of Bombay v. The Hospital Mazdoor Sabha reported in AIR 1960 SC. 610 and that in National Iron and Steel Company, Ltd. and others v. State of West Bengal and another reported in 1967 (2) LLJ 23 for the conclusion reached by him. 3. On behalf of the appellants, the Senior Superintendent in the RMS., Cochin and the Director General of Posts and Telegraphs, New Delhi, it is urged that the termination of the services by Ext. P1 order is valid and operative. It is contended that a prior or simultaneous payment is unnecessary. Counsel for the appellants relied on the decision of the Supreme Court in The State of Uttar Pradesh v. Dinanith Rai reported in (1969) II S. C. W. R.92 in support of the contention that a prior or even a simultaneous payment is unnecessary. It is contended that a prior or simultaneous payment is unnecessary. Counsel for the appellants relied on the decision of the Supreme Court in The State of Uttar Pradesh v. Dinanith Rai reported in (1969) II S. C. W. R.92 in support of the contention that a prior or even a simultaneous payment is unnecessary. Their Lordships of the Supreme Court had to construe a rule promulgated by the Governor of U. P. under the proviso to Art.309 of the Constitution of India regulating the termination of service of temporary government servants. That rule runs thus: "(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 pf 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." 4. In Para.2 of the order terminating the services it was stated: "Both these officers will be paid one month's pay and allowances in lieu of notices." 5. The Supreme Court did not accept the view taken by the Allahabad High Court in A. F. Tripathy v. The State of U. P. (the relevant part of the judgment in the case has been extracted by the Supreme Court) and came to the following conclusion: "It seems to us that the meaning of the statutory rule is clear. It gives option to the Government to either give a month's notice or to substitute for the whole or part of this period of notice pay in lieu thereof. The rule does not say that the pay should be given in cash or by cheque at the time the notice is issued. It gives option to the Government to either give a month's notice or to substitute for the whole or part of this period of notice pay in lieu thereof. 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 ascribe 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 he would get in the ordinary course." 6. Counsel for the appellants has very strongly relied on the above passage and urged that R.5 of the Rules must be construed in the same manner as the rule framed by the U. P. State which came up for construction in The State of Uttar Pradesh v. Dinanath Rai (1959) II S. C. W. R.92). We are unable to agree. The wording of R.5 pf the Rules seems to us to be similar to the wording of S.25F of the Industrial Disputes Act, 1947. R.5 of the Rules stipulates that the service of any Government Servant may be terminated forthwith 'by payment to him',. S.25F of the Industrial Disputes Act states that "no workman employed in any industry who has been in continuous service for not less than one year under as employer shall be retrenched by that employer until (a) the workman has been given one month's notice in writing indicating the reasons for retrench ment and the period of notice has expired, or the workman has been paid" in lieu of such notice, wages for the period of the notice": This section had come up for construction in more than one case before the Supreme Court. Two such cases had been referred to by the learned judge in the judgment under appeal. We feel bound by these decisions of the Supreme Court. We consider that R.5 of the Rules is similarly worded as S.25F of the Act and an interpretation of R.5 in a manner different from the way S.25F has been interpreted by the Supreme Court is not possible. 7. The respondent sought to sustain the judgment under appeal on two other grounds; that the order Ext. P1 is discriminatory and that it is violative of Art.311 of the Constitution. 7. The respondent sought to sustain the judgment under appeal on two other grounds; that the order Ext. P1 is discriminatory and that it is violative of Art.311 of the Constitution. For the sake of completeness we may deal with these contentions as well. In view of the decision of the Supreme Court in Champaklal Chimanlal Shah v. The Union of India reported in AIR. 1964 SC. 1854, this contention cannot stand. 8. The appellants ‘counsel then urged that actual payment is not necessary and that tender of the pay and allowances would be sufficient and according to him, there has been such a tender of pay and allowances in the case. He elaborated this by contending that the petitioner could have asked for and collected the pay and allowances in lieu of notice on the 28th September, 1968, when he admittedly obtained from the disbursing officer the salary due to him for the month of August and also the sum of Rs. 60.30 which is said to be an excess payment. While we have no doubt that a tender of payment would be sufficient we are not able to postulate from the facts of the case that there has been any such tender. The respondent had not been told that he can collect the pay and allowances in lieu of notice from the disbursing officer. If he had been told that the pay and allowances in lieu of notice can be collected from the disbursing officer on the 28th September, 1968, the question might arise whether such tender of pay three days after the date of termination of the services would be effective to operate as termination of service of the employee. But in this case as we indicated earlier, we cannot spell any such tender because the petitioner had never been informed that the pay and allowances in lieu of notice will be available with the disbursing officer and that it is open to him to collect it from the disbursing officer. 9. We dismiss this writ appeal but direct the parties to bear their respective costs.