Dalip Singh Vs. The State of Punjab
 INSC 114 (28 July 1960)
GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.
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)
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).
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 insistence
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 determining 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.,  1 S.C.R.
26 and State of Bombay v. Subhagchand Doshi,  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, 
S.C.R. 571, explained.
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
N. S. Bindra and D. Gupta, for the
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 tant amounts 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
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
removed 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.
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
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
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
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 Revised 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
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)  1 S.C.R. 26.
(2)  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)  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.
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