N. Gundu Rao vs The State

Taki Bilgrami, J.—This application for issue of an appropriate writ under Art. 226 of the Constitution is directed against an order of the Inspector General of Police, dismissing the applicant who was a third grade clerk in his office on the ground of his absence without leave for a period exceeding seven days. This order is challenged on the ground that the applicant was not given an opportunity to defend his case, no notice under Art. 311(2) of the Constitution was given and no inquiry was made.

Relying on -- ''Hiro Lila Ram Chablani v. State of Hyderabad'', (S) AIR 1955 Hyd 48 (A) and - AIR 1948 121 (Privy Council) ) and a recent Nagpur High Court ruling -- AIR 1955 175 (Nagpur) it is argued on behalf of the petitioner that under cl. (2) of Art. 311, two notices and a proper inquiry and granting a reasonable opportunity for defence are essential. In our opinion inquiry and notices are not necessary when either the terms of the contract of service, of some rules and regulations governing such service, expressly enable the dismissing authority to terminate the applicant''s service on happening of any particular event, or commission by him of any act specified, without taking note of further facts. The provisions of Cl. (2) of Art. 311 can only apply in case of removal on account of misconduct. We are supported in this view by a recent decision of the Calcutta High Court -- ''N. W. R. Johnson v. General Manager. B. N. Rly.'', AIR 1955 NUC (Cal) 1793 (D), in which it was held that since under R-1707-R (F), a railway servant can be dismissed if he is criminally convicted without the proof of any further circumstance, provisions for notice under Art. 311 do not apply. Section 168, Hyderabad Civil Service Rules of 18th Amardad 1328-F. is so framed, that on absence without leave for more than seven days, his right to revert to service terminates, unless the authority empowerd to sanction leave, grants leave with retrospective effect, and considers it fit to condone the absence. Absence without leave for more than the prescribed limit is admitted. Being absent in anticipation of sanction, which is offered as an excuse, does not protect the offending servant. Whether reasons sufficient for condoning the delay existed or not, is not a matter which we can go into in a writ application. The applicant therefore cannot succeed on this ground.

The other point that arises in this case is whether a notice in accordance with R. 17 of the Hyderabad Civil Services (Classification, Control and Appeal) Rules was necessary. It provides that a notice should be given and inquiry made in cases of dismissal. It is true that it cannot be gathered from the wording of this rule, that the mandate is confined to the cases of removal for misconduct. We think that sub-rule (1) of R. 2 of the above Rules saves the case like the present horn the application of R. 17, it runs as follows:

They snail apply to all States and subordinate services and to the holders (other than those employed only occasionally or subject to discharge at less than one month''s notice) of all posts, whether temporary or permanent, in any such service or post appointed thereto before, on or after the date specified in rule 1, except to the extent otherwise expressly provided--

(i) by or under any law for the time being in force, or.............

If any matter coveted by these rules is otherwise expressly provided for under any law for the time being in force, these rules will not apply. If he words, "expressly provided" were intended to mean that the other law should expressly bar the application, the sub-rule would have referred to future laws and not those already in force, for the framers of the existing law could not have anticipated passing of such rules. This interpretation would lead to absurdity. Section 168 was in existence when the rules came in force, it provides expressly that services will be terminated under certain specific circumstances automatically, unless the irregularity is condoned the occasion for notice under R. 17 therefore does not arise.

No other point is made or arises for decision. The application is therefore dismissed. Since the applicant has lost his employment and appears to have applied in good faith, no order is made as to costs.

Palnitkar C.J.:

I agree.