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PETITIONER: DALIP SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB.

DATE OF JUDGMENT: 28/07/1960

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1960 AIR 1305  CITATOR INFO :  RF         1964 SC 600  (48,49,50,71,105,146,148)  D          1967 SC1260  (13)  RF         1970 SC 143  (96)  R          1971 SC2151  (13,19)  R          1976 SC1841  (8)  D          1989 SC1843  (16,17)

ACT: State Service--Officer, compulsory retirement of--If amounts to  dismissal or removal from  service--Test--Patiala  State Regulations,  1931,  Rule 278--Constitution of  India,  Art. 311(2).

HEADNOTE: The  appellant was compulsorily retired from service by  the Rajpramukh of Pepsu by an order dated August 18, 1950, which was as follows: His Highness the Rajpramukh is pleased to retire from 89 service  Sardar Dalip Singh, Inspector General  of   Police, Pepsu (on leave) for administrative reasons with effect from the 18th August, 1950." No charges Were framed against him and it was on his insist- ence  that certain charges were communicated to  him.   Rule 278 of the Patiala State Regulations, 1931 which was then in force, provided as follows :- " 278.  For all classes of pensions of person who desires to obtain  the  pension is required to submit  his  application before any pension is granted to him. The State reserves to itself the right to retire any of  its employees on pension on political or on other reasons." The question for determination in the appeal was whether the compulsory  retirement of the appellant amounted to  removal or dismissal from service within the meaning of Art.  311(2) of the Constitution.  The trial Court held in favour of  the appellant and the High Court against him, Held, that the two tests laid down by this Court for  deter- mining whether an order of compulsory retirement amounted to removal or dismissal from service were (1) whether it was by

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way  of  punishment,  a charge  or  imputation  against  the officer, being made the basis of the exercise of the  power, and  (2)  whether the officer was deprived  of  any  benefit already earned as in a case of dismissal or removal. Shyamlal v. State of U. P., [1955] 1 S.C.R. 26 and State  of Bombay v. Subhagchand Doshi, [1958] S.C.R. 571, referred to. So judged, the order passed against the appellant could  not amount  to  dismissal  or removal from  service  within  the meaning of Art. 311(2) of the Constitution. The  order  was not one purported to have been made  on  any charge  of misconduct or inefficient and the fact  that  any such  considerations might have weighed with the  Government in  passing the order under Rule 278 did not amount  to  any imputation or charge against the officer, and there could be no  question  of losing any benefit earned  since  the  Rule itself  provided for retirement on pension and  the  officer had in fact been allowed full pension. It  would not be correct to say that since the Rule did  not fix   any  age  for  compulsory  retirement,  an  order   of compulsory  retirement passed under it must  necessarily  be regarded as dismissal or removal within the meaning of  Art. 311(2) of the Constitution. State of Bombay v. Subhagchand Doshi, [1958] S.C.R. 571, ex- plained.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 235 of 1958. 12 90 Appeal  from the judgment and decree dated October  18,1956, of  the former PEPSU High Court in Regular First Appeal  No. 11  of  1954, arising out of the judgment and  decree  dated November  21,  1953,  of  the  Additional  District   Judge, Patiala. Gopal Singh and K. B. Krishnaswamy, for the appellant. N. S. Bindra and D. Gupta, for the respondent. 1960.  July 28.  The Judgment of the Court was delivered by DAS  GUPTA J.-The appellant Dalip Singh entered the  service of  the  Patiala  State  in 1916 and rose  to  the  rank  of Inspector  General  of  Police of the State  in  June  1946. After the formation of the State of Pepsu he was absorbed in the  Police  Service  of  the newly  formed  State  and  was appointed  and  confirmed  as Inspector  General  of  Police thereof.  While holding that post he proceeded on leave from October 18, 1949, till August 17, 1950.  On August 18, 1950, an  order was made by the Rajpramukh of the State  in  these words:- "  His  Highness the Rajpramukh is pleased  to  retire  from service  Sardar  Dalip Singh, Inspector General  of  Police, Pepsu (on leave) for administrative reasons with effect from the 18th August, 1950." A  copy  of  this  order was  forwarded  to  the  appellant. Thereupon  on  August 19, 1950, the appellant wrote  to  the Chief Secretary of the State stating that by his  retirement he would be put to heavy loss, i.e., about Rs. 50,000  which he would have earned as his pay and allowances etc.,  during this period and that his pension was also being affected and that  this  decision of the Government  tantamounts  to  his removal  from  service.  He requested  that  the  Government should  let  him  know the grounds which  had  impelled  the Government   to  take  this  decision  about  his   removal. Ultimately  on March 30, 1951, the Government mentioned  the charges against him on the basis of which the Government had

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decided  to  retire him on  administrative  grounds.   After service of notice under 91 s.80 of the Code of Civil Procedure the appellant brought  a suit  in the Court of the District Judge,  Patiala,  against the State of Pepsu asking for a declaration that the  orders of  August  16,  1950, and August 18, 1950,  whereby  "  the plaintiff  has  been  removed from the  post  of  Inspector- General  of  Police, Pepsu, are  unconstitutional,  illegal, void,  ultra  vires and inoperative and that  the  plaintiff still  continues  to be in the service of the  defendant  as Inspector  General of Police and is entitled to the  arrears of his pay and allowances from August 18, 1950, and is  also entitled to continue to draw his pay and allowances till his retirement  at the age of superannuation ; and a decree  for the  recovery of Rs. 26,699-130 and full costs of this  suit and future interest." The main plea on which the suit was based was that the order of  August  18, 1950, amounted to his removal  from  service within  the meaning of Art. 311(2) of the  Constitution  and the provisions of that article not having been complied with the  termination of his service was void and inoperative  in law.  The respondent State contended that the plaintiff  had been  retired  from service and had not  been  removed  from service  and  so  Art.  311  of  the  Constitution  had   no application.   On this question the trial Court came to  the conclusion   that  the  order  compulsorily   retiring   the plaintiff amounted to his removal within the meaning of Art. 311  of  the  Constitution and as the  requirement  of  that Article  had  not  been  complied  with  it  held  that  the termination  of service effected by that order was  void  in law.   The Court accordingly decreed the suit in  favour  of the  plaintiff declaring that the orders of  the  Government dated August 18, 1950, whereby the plaintiff had been  remo- ved from the post of Inspector General of Police, Pepsu, are unconstitutional,   illegal,  void  and  ultra   vires   and inoperative and that the plaintiff still continued to be  in the service of the defendant as Inspector General of  Police and he his entitled to the arrears of his pay and allowances from  August  18, 1950 and is also entitled to  continue  to draw his pay and allowance 92 till  his  retirement  at the age of  superannuation  and  a decree for the recovery of Rs. 26,699-13-0. On appeal by the State the Pepsu High Court disagreeing with the Trial Court held that the order of compulsory retirement did not amount to removal from service within the meaning of Art.  311  of the Constitution and accordingly  allowed  the appeal and dismissed the plaintiffs suit. The main contention of the plaintiff before us was that  the order  of retirement did amount to his removal from  service within  the  meaning of Art. 311 of the  Constitution.   The learned  counsel also wanted to argue that Rule 278  of  the Patiala   State  Regulations  under  which  the   Government apparently  made the order of compulsory retirement  was  no longer  operative.   It  appears  that  the  Patiala   State Regulations  which  continued to govern the members  of  the services of that State after they became integrated into the Pepsu State Services were revised from time to time.  It was suggested  by the learned counsel that the revised rules  do not contain any rules similar to Rule 278.  Rule 278 of  the Patiala State Regulations was in the following words:- " 278.  For all classes of pensions the pet-son who  desires to obtain the pension is required to submit his  application before any pension is granted to him.

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The State reserves to itself the right to retire any of  its employees on pension on political or on other reasons." The  learned counsel though wanting to persuade us that  the Rule about the State reserving to itself the right to retire any  of  its employees on pension on political or  on  other reasons was not present in the new rules was unable to  show us  however that before August 18, 1950, there had been  any revision  of  Rule 278.  It appears that revised  rules  for Travelling  Allowance were published in 1946 as Vol.  II  of the  new  ruler,; and Rules relating to pay  and  allowances were  published as Vol.  I in 1947.  Thereafter in  1952  we find that the first volume of the Pepsu Service  Regulations as  regards pay and leave rules was published.  In the  same year the third volume of the Pepsu State 93 Regulations  containing  rules  relating  to  pensions   was published.   In  the  preface to this volume  we  find  this statement :- "  The  Revised  Edition of the  Patiala  State  Regulations relating  to pay, allowances, leave, pension and  travelling allowance was published in the year 1931.  Subsequently  the travelling  allowance  rules  were  revised  and  issued  as Patiala  Service  Regulations, Vol. II, in  the  year  1946. Similarly the pay, allowances and leave rules were taken out from  the  Revised  Edition (1931) and  printed  as  Patiala Services Regulations, Volume 1, in the year 1947.  The other rules relating to pensions continued to remain in the Revis- ed  Edition  (1931)  and  kept upto date  by  the  issue  of correction  slips.  On the formation of the Patiala  &  East Punjab  States  Union  on 20-8-48,  these  rules  were  made applicable  to  the  entire  territories  of  the  Union  by Ordinance  No.  1  of 2005.  The number of  copies  of  this publication available for official use had run out of  stock and  great  difficulty has been  experienced  in  Government offices  for  want of it for reference.  It  was.  therefore found  necessary to revise and reprint this  publication  to make it available to all offices." This  makes  it clear that upto the publication in  1952  of Volume  III  of the Pepsu Service  Regulations  the  pension rules  appearing  in the 1931 edition of the  Patiala  State Regulations continued to be applicable to Pepsu.  On  August 18,  1950, therefore it is reasonable to hold that Rule  278 in  its  entirety remained in force and  was  applicable  to Pepsu.   It  is  interesting to mention that  in  this  1952 edition  also  this reservation by the Government of  the  " right to retire any of its employees on pension on political or  on other reasons " has been maintained (Vide Chapter  V, Rule  10).  The contention of the learned counsel that  Rule 278  was  not  applicable to the case of  the  appellant  on August 18, 1950, is therefore totally without foundation. This  brings  us to the main contention in the  case.  viz., that  the compulsory retirement of the appellant under  Rule 278  of  the Patiala State Regulations was  a  removal  from service within the meaning of Art. 311 of the  Constitution. The question whether the 94 termination   of   service  by  compulsory   retirement   in accordance with Service Rules amount to removal from service was considered by ’his Court in Shyamlal v. The State of  U. P. and the Union of India (1) and again recently in State of Bombay V. Subhagchand D08hi (2).  The Court decided in Shyam Lal’s  Case  (1)  that  two tests  had  to  be  applied  for ascertaining whether a termination of service by  compulsory retirement amounted to removal or dismissal so as to attract the  provisions of Art. 311 of the Constitution.  The  first

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is  whether the action is by way of punishment and  to  find that out the Court said that it was necessary that a  charge or  imputation against the officer is made the condition  of the  exercise  of  the  power;  the  second  is  whether  by compulsory  retirement the officer is losing the benefit  he has already. earned as he does by dismissal or removal.   In that  case in fact a charge-sheet was drawn up  against  the officer  and  an enquiry held but ultimately  the  order  of compulsory  retirement  was not based on the result  of  the enquiry.  The Court pointed out that the enquiry was  merely to help the Government to make up its mind as to whether  it was in the public interest to dispense with his services  so that  the imputation made in the charge-sheet was not  being made the condition of the exercise of the power. These tests were applied in Doshi’s Case (2) and it was held that  the  provisions of compulsory  retirement  under  Rule 165.A of the Saurashtra Civil Service Rules under which  the order of retirement was made there was not violative of Art. 311(2).   It  was pointed out that "  while  misconduct  and inefficiency  are factors that enter into the account  where the  order is one of dismissal or removal or of  retirement, there  is  this  difference  that  while  in  the  case   of retirement  they  merely  furnish  the  background  and  the enquiry, if held-and there is no duty to hold an  enquiry-is only  for  the satisfaction of the authorities who  have  to take action, in the case of dismissal or removal, they  form the  very basis on which the order is made and  the  enquiry thereon must be formal, and must satisfy (1) [1955] 1 S.C.R. 26. (2) [1958] S.C.R. 571. 95 the  rules of natural justice and the requirements  of  Art. 311(2) ". In  the case before us the order of the Rajpramukh does  not purport  to  be  passed  on  any  charge  of  misconduct  or inefficiency.    All  it  states  is  that  the   compulsory retirement  is  for " administrative reasons." It  was  only after the appellant’s own insistence to be supplied with the grounds which led to the decision that certain charges  were communicated to him.  There is therefore no basis for saying that  the  order of retirement contained any  imputation  or charge against the officer.  The fact that considerations of misconduct  or inefficiency weighed with the  Government  in coming to its conclusion whether any action should be  taken under  Rule 278 does not amount to any imputation or  charge against the officer. Applying the other test, viz., whether the officer has  lost the benefit he has earned, we find that the officer has been allowed  full pension.  There is no question of  his  having lost a benefit earned.  It may be pointed out that Rule  278 itself provides for retirement on pension.  If the provision had  been for retirement without pension in accordance  with the rules there might have been some reason to hold that the retirement  was  by  way  of  punishment.   As  however  the retirement  can  only be on pension in accordance  with  the rules-in  the present case full pension has been granted  to the officer-the order of retirement is clearly not by way of punishment. In Doshi’s Case (1) there is at p. 579 an observation  which might at first sight seem to suggest that in the opinion  of this Court compulsory retirement not amounting to  dismissal or removal could only take place under a rule fixing an  age for  compulsory retirement.  We do not think that  was  what the  Court intended to say in Doshi’s Case(2).   In  Doshi’s Case(3)  there  was  in  fact  a  rule  fixing  an  age  for

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compulsory  retirement,  at the age of 55, and  in  addition another rule for compulsory retirement after an officer  had completed  the age of 50 or 25 years of service.  It was  in that context that the Court made the above (1)  [1958] S.C.R. 571. 96 observation.   It had not in that case to deal with  a  rule which  did  provide for compulsory retirement,  at  any  age whatsoever irrespective of the length of service put in.  It will not be proper to read the observations in D08hi’s  Case referred  to  above as laying down the law  that  retirement under  the  rule  we are  considering  must  necessarily  be regarded as dismissal or removal within the meaning of  Art. 311. We are therefore of opinion that the High Court was right in holding that the order of compulsory retirement made against the appellant was not removal from service so as to  attract the provisions of Art. 311 of the Constitution and that  the suit was rightly dismissed. The appeal is accordingly dismissed with costs.                                       Appeal dismissed.