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Article 311(2) in The Constitution Of India 1949
Article 311 in The Constitution Of India 1949
The State Of Bombay vs Saubhagchand M. Doshi on 25 September, 1957

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Supreme Court of India
Dalip Singh vs The State Of Punjab on 28 July, 1960
Equivalent citations: 1960 AIR 1305
Author: K D Gupta
Bench: Gajendragadkar, P.B., Wanchoo, K.N., Hidayatullah, M., Gupta, K.C. Das, Shah, J.C.
           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
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 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.

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 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 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.