Satish Chandra Mittal, J. - (1.) RULE 20(9) of the rules framed under Section 29 (q) of the Punjab Agricultural University Act, 1961, provides that if an employee overstays his leave for more than a week, his office shall be liable to be declared vacant. The question is: Whether termination of the service of an employee under Rule 20 (9) without giving him reasonable opportunity, is valid?
(2.) BRIEF facts of this case are that Roop Singh, a permanent employee of the Punjab Agricultural University, took earned leave from 20th June, 1973, to 14th July, 1973, with permission to suffix the following 15th. His application for extension of leave for 15 days with effect from 16th July was rejected and he was telegraphically directed to join duty. Instead of complying with the direction Roop Singh, submitted another application for extension of leave. In the writ petition, Roop Singh averred that he along with six other employees of the University were falsely involved in a criminal case relating to an incident of strike in the University. For arranging legal aid, he approached the Dean of the College of Veterinary Medicine for extension of leave upto 10th August, 1973, with permission to suffix the following two holidays; but his leave was not sanctioned. On the contrary, by applying Rule 20 (9) the office held by him, without giving him show -cause notice was declared vacant on 3rd August, 1973. When Roop Singh reported on duty on 13th August, 1973, he was not allowed to join. The writ petition filed by Roop Singh was allowed by the learned Single Judge on the ground that the termination of his service violated the rules of natural justice. The University then preferred the letters patent appeal wherein the above -said question has arisen. Rule 20, consisting of 16 clauses, specifically deals with leave of various kinds. Clause (1) prescribes the authorities competent to grant leave; Clause (2) lays down how much earned leave is admissible to an employee and Clause (3) refers to furlough admissible to an employee. Clause (11) categorically says that no leave can be claimed as of right. It is in these settings that Clause (9) reads: If the employee overstays his leave he shall forfeit all his salary during the time of his remaining so absent; and if he overstays his leave for more than one week his office shall be liable to be declared vacant.
(3.) LEARNED Counsel for Roop Singh urged that the bare reading of Clause (9) of Rule 20, indicated infliction of punishment on an employee who overstays his leave. Reference was then made to Rule 19(1) laying down the following grounds on which the service of an employee shall be liable to termination: (a) Gross negligence in the discharge of duty; (b) Misconduct; (c) Insubordination or any breach of discipline; (d) Physical or mental unfitness for the discharge of duty; (e) Any act prejudicial to the University or its property; and (f) Conviction in a Court of Law for offence involving moral turpitude. If an employee overstayed his leave, argued the learned Counsel for Roop Singh, he could be said to have misconducted himself. Strong reliance was place on Jai Shanker v. State of Rajasthan : AIR 1966 S.C. 492, wherein it was held that the removal of a Government servant from service for overstaying his leave is illegal even though the Regulation provides that "an individual who absents himself without permission or who remains absent without permission for one one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only 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." The contention before their Lordships on behalf of the Government that the Government did not order removal of the employee because he himself gave up the employment, was overruled with the following observation: We do not think that the constitutional protection can be taken away in this manner by a side wind. While, on the one hand, there is no compulsion on the part of the Government to retain a person in service if he is unfit and deserves dismissal 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 deserving removal may be overstaying 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 made, it is necessary that Government should give the person as opportunity of 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 blamable. was unable to return to duty for even 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 overstaying 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 overstaying 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 in this case. Doubtless, Roop Singh, an employee of the University, as contended by the learned Counsel for the University, was not entitled to protection under Article 311 of the Constitution, but the facts remains that the ratio of the authority, as regards the interpretation of a similar rule or regulation, by their Lordships of the Supreme Court has a strong bearing on the present case. Thus, it is no gainsaying that Rule 20 (9) contains an element of punishment of removal from service for overstaying one's leave. In this situation, learned Counsel for Roop Singh invited our attention to Rule 12 laying down: 12. Penalties: (i) The following penalties may, for good and sufficient reason be imposed upon any employee of the University: (a) Censure; (b) Withholding of increments or promotion, including stoppage at an efficiency bar, if any; (c) Reduction to a lower post or to a lower stage in the same post; (d) Recovery from pay of the whole or part of any pecuniary loss caused to the University by negligence or breach of orders; (e) Suspension; (f) Removal from the service of the University which does not disqualify from future employment; (g) Dismissal from the service of the University which ordinarily disqualifies from future employment; Provided that * * * * (ii) * * * * * * * * * * * * * * * * * * * * (iii) No penalty of dismissal, removal or reduction shall be imposed unless the employee has been given a reasonable opportunity of showing causes against the action proposed to be taken in regard to him. (iv) to (vi) * * * * * * * * Accordingly, it was urged that Roop Singh having been removed from service was entitled to a reasonable opportunity of showing cause against the impugned action. Besides, the rules of natural justice were pressed into service by relying on Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. : AIR 1978 S.C. 351 The said rules have been made to apply to administrative proceedings as well by their Lordships of the Supreme Court with the following observations: We consider it a valid point to insist on observance of natural justice in the area of administrative decision -making so as to avoid devaluation of this principle by 'administrators' already, alarmingly insensitive to the rationale of audi alteram partem.;