Shyam Lal Vs. The State of Uttar
Pradesh  INSC 33 (30 March 1954)
DAS, SUDHI RANJAN MUKHERJEA, B.K.
BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA
CITATION: 1954 AIR 369 1955 SCR 26
CITATOR INFO :
RF 1957 SC 886 (5) E 1957 SC 892 (7,8,9,11) F
1958 SC 36 (28,40) R 1958 SC 232 (18) F 1958 SC 905 (6) F 1960 SC1305 (7) R
1961 SC 177 (10,11) RF 1964 SC 600 (36,42,45,48,52,71,74,78,102,1 R 1964 SC1585
(8) R 1964 SC1854 (12,13,15) R 1965 SC 280 (5) D 1967 SC1260 (6,11,13) D 1967
SC1264 (8,9) R 1971 SC2151 (13,18) RF 1973 SC2641 (21) F 1975 SC1064 (9) RF
1975 SC1487 (19,21) R 1975 SC2045 (11) RF 1976 SC 37 (16) R 1976 SC1841 (8) RF
1976 SC2547 (8,9) RF 1977 SC 854 (12) R 1980 SC 563 (13,14,31) RF 1982 SC1107
(30) F 1985 SC 551 (29) F 1985 SC 931 (11) RF 1989 SC 72 (11) D 1990 SC1368
(21) RF 1991 SC 101 (144) RF 1992 SC 786 (6) RF 1992 SC1020 (10,25)
Constitution of India -Article 811
-Compulsory retirement Whether amounts to dismissal or removal within the
meaning of the Article-Civil Service Regulations-Article 465-A and Note 1
appended thereto-Interpretation of-Bule 4 of the new Rules published in
1919-Government of India Act, Section 96-B.
Held, that Article 465-A and Note I thereto
of the Civil Service Regulations relating to the retiring pensions of officers
was applicable to the appellant who was employed in 1923 as a member of the
Indian Service of Engineers because Rule 4 of the new Rules published by the
Government of India on 15th November, 1919, providing for compulsory retirement
of any officer after the completion of 26 years' service was validated and
confirmed by section 96-B of the Government of India Act-, 1919, which came
into force on 23rd December, 1919, and the language of Note 1 to Article 466-A
published in 1920 clearly indicates that the Government's right to compulsorily
retire an officer was not derived from Note 1 as Note 1 assumed its existence
aliunde and the Government's right was derived from new Rule 4 published on
15th November, 1919.
Held also, that a compulsory retirement under
the Civil Services (Classification, Control and Appeal) Rules, does not amount
to dismissal or removal within the meaning of Article 311 of the Constitution
and therefore does not fall within the provisions of the said Article.
The word "removal" used
synonymously with the term "dismissal" generally implies that the
Officer is regarded as in some manner blameworthy or deficient. The action of
removal is founded on some ground personal to the officer and there is a
levelling of some imputation or charge against him.
But there is no such element of charge or
imputation in the case of compulsory retirement. In other words a compulsory
retirement does not involve any stigma or implication of misbehaviour or
Dismissal or removal is a punishment and
involves loss of benefit already earned. The Officer, dismissed or removed,
does not got pension which he has earned. On compulsory retirement the Officer
will be entitled to the pension that he has actually earned and there is no
diminution of the accrued benefit.
Rangachari v. Secretary of State (L.R. 64
I.A. 40; A.I.R.
1937 P.C. 27); Vankata Rao v. Secretary of
State L.R. 64 I.A. 55; A.I.R, 1937 P.O. 37); I.M, Lal's case (L.R. 76 I.A.
225 A.I.R. 1948 27 P.C. 121); Satischandra
Anand v. The Union of India (1953 S.C.R. 665 at p. 659) referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 248 of 1953.
Appeal under Article 132(1) of the
Constitution of India from the Judgment and Order dated the 1st October, 1953,
of the High Court of Judicature at Allahabad in Civil Miscellaneous Writ No.
379 of 1953.
N.C. Chatterjee (P.K. Chatterjee, with him)
for the appellant.
C. K. Daphtary, Solicitor-General forIndia,
K. L. Misra, Advocate-General of Uttar Pradesh (C. P. Lal, with them) for
respondent No. 1.
C. K. Daphtary, Solicitor-General for India
(Porus A. Mehta, with him) for respondent No. 2.
1954. March 30. The Judgment of the Court was
delivered by DAS J.-This appeal arises out of an application made by the
appellant to the High Court of Allahabad under, article 226 of the Constitution
praying for an appropriate writ quashing the order made by the President of
India on the 17th April, 1953, ordering the compulsory retirement of the
appellant who had completed 25 years' qualifying service. The High Court by its
judgment dated the 1st October, 1953, dismissed the application but, as the
case involved a substantial question of the interpretation of the Constitution,
the High Court granted leave to the appellant to appeal to this Court.
The material facts may be shortly stated as
follows: The appellant passed his Civil Engineering degree examinaion from the
Thomason College. Roorkee, in 1922. He stood first in order of merit and
carried away the Gold Medal and other prizes awarded to the best student of
that year. He was appointed by the Secretary of State for India in Council to
the Indian Service of Engineers as an Assistant Executive Engineer with effect
from the 20th October, 1923. The conditions governing the appellant's terms of
appointment, promotion, leave, pension, etc., will be found recorded in 28 a
letter issued from India Office, London, on the 13th February, 1924. A copy of
that letter is annexed to the Petition filed under article 226. He was posted
in ,the United Provinces. In 1944 the appellant was promoted to the rank of
officiating Superintending Engineer. After the attainment of independence by
India a fresh agreement was entered into by and between the appellant the
Governor of the United Provinces and the Governor General of India on the 16th
September, 1948 confirming the appellant's terms of appointment contained in
the letter of the 13th February, 1924. At or about this time the appellant
along with several other officers was recommended by the Chief Engineer for
confirmation as Superintending Engineer. 'The appellant, however, was not
confirmed but continued to officiate as Superintending Engineer until the time
hereinafter stated. On the 4th January, 1950, the Public Works Department of
the U.P. Government addressed a letter to the Chief Engineer, Irrigation Branch
U.P. requesting him to communicate the letter enclosed therewith to the
appellant and to ask him to submit as early as possible whatever explanation he
might desire to give. The enclosed letter called upon the appellant to show
cause within three weeks why he should not-be compulsorily retired under the
provisions of article 465-A, Civil Service Regulations as it appeared (1) that
he had been making systematic and gross overpayments apparently for no other
reason than to benefit the contractors concerned and (2) that he had spent
large' amounts of public money for his own personal convenience and (3) that he
had taken recourse to devious and unscrupulous methods. No less than, six
instances on which these charges were based. were them set out. The covering
letter concluded with the following remarks:
"Under the rules Government reserve the
right to compulsorily retire any officer whose retention in service they
consider not to be in the public interest. This is not, therefore, a formal
enquiry under the Classification. Control and Appeal Rules but before taking
the action indicated above Government were pleased to and an opportunity to
Shri Shyam Lal, I.S.E., 29 to show cause why he should not be compulsorily
retired." A copy of the letter of the 4th January, 1950, together with a
copy of the enclosure was sent to the appellant with the request that his
explanation might be forwarded,. within the period mentioned by the Government.
The appellant submitted his explanations which, together with the Chief
Engineer's comments thereon, were placed before the Union Public Service
Commission. The Commission came to the conclusion that five out of the six charges
had been proved and submitted their report accordingly. On the 17th April,
1953, the President, after considering the case and the recommendations of the
Commission, decided that the appellant should retire forthwith from service
under Note I to article 465-A of the Civil Service Regulations. Before this
order could be served on him the appellant on the 24th April, 1953, filed
-before the Allahabad High Court a petition under article 226 of the
Constitution praying that the order made by the President on the 17th April,
1953, be quashed on the ground, inter alia, that the order was illegal and void
in that it was made without affording him any opportunity to show cause against
the action proposed to be taken in regard to him. As already stated, the High
Court dismissed the application on, the 1st October, 1953.
The present appeal is directed against that
order of dismissal.
The order of the President which is imppgned
by the appellant shows that action was purported to be taken in regard to the
appellant under Note 1 to article 465-A of the Civil Service Regulations.
Chapter XVIII of the Civil Service Regulations deals with Conditions of Grant
of Pension. Article 465-A appears in that Chapter under section V the heading
of which is " Retiring Pension." There are two notes appended to the
article of which the first one is important for our present purpose. The
relevant part of -article 465-A and Note 1 thereto are set out below:"
465-A. For officers mentioned in article 349-A, the rule for the grant of retiring
pension is as follows:
(2) A retiring pension is also granted to an
officer who is required by Government to retire after completing twentyfive
years' qualifying service or more.
Note I.-Government retains an absolute right
to retire any officer after he has completed twenty-five years' qualifying
service without giving any reasons, and no claim to special compensation on
this account will be entertained. This right will not be exercised except when
it is in the public interest to dispense with the further services of an
officer." Officers of the Indian Service of Engineers are included amongst
'the officers mentioned in article 349-A of the Civil Service Regulations.
The contentions urged before us are that the
President's Order of the 17th April, 1953, is invalid and inoperative for the
following reasons :
(1)that article 465-A of the Civil Service
Regulations is not applicable to or binding on the appellant;
(ii)that compulsory retirement is nothing but
removal from service and the provisions of article 311 of the Constitution
apply to the case of compulsory retirement;
(iii)that Note I to article 465-A of the
Civil Service Regulations, in so far as it confers on the Government an
absolute right to retire an officer, who has completed twenty-five years'
qualifying service without giving any 'reason, is repugnant to article 311 of
It will be necessary to deal with the above
Re. (i).-It will be remembered that the
appellant was employed by the Secretary of State in Council in October, 1923,
that is to say, after the Government of India Act, 1919, came into operation.
Sub-section (4) of section 96B of that Act provided, for removal of doubts, that
all rules in operation at the time of the passing of that Act, whether made by
the Secretary of State in Council or by any other authority, relating to 31 the
Civil Service of the Crown in India, were duly made in accordance with the
powers in that behalf and it confirmed the same. But it is urged that as there
is nothing to show that article 465-A of the Civil Service Regulations was in
operation at the time of the passing of the Government of India Act, 1919, and
that as all that has been shown is only that the article in question was
amended and brought. up to its present form in 1922 it cannot be said to have
been validated by subsection (4) of section 96B. Reference is then made to
sub-section (2) of that section which empowered the Secretary of State in
Council to make rules for regulating the classification of the Civil Services
in India, the methods of their recruitment, their conditions, of service, pay
and allowances, and discipline and conduct and, by such rules, to delegate the
power of making rules to the Governor-General in Council or to local
Governments or to authorise the Indian Legislature or local Legislatures to
make laws regulating the public services. It is pointed out that sub-section
(2) did not empower the Secretary of State in Council to delegate the power to
make rules concerning pensions to any authority in India. Our attention is next
drawn to sub-section (3) of section 96B which specially safeguarded the
interests of the civil servants employed by the Secretary of State in Council
by providing that their right to pensions and the scale and conditions ,of
pensions should be regulated in accordance with the rules in force at the time
of the passing of that Act and that, although such rules might be varied or
added to by the Secretary of State in Council, such variations or additions
should not adversely affect the pension of any member of the service appointed
before the date thereof It is urged that not only has article 465-A not been
shown to have been in force at the time of the passing of the Government of
India Act, 1919, it has also not been shown to have been made by the Secretary
of State in Council. In the premises, it is contended that article 465-A which
is set out in section V of Chapter XVIII of the Civil Service Regulations and
deals with retiring pensions and has presumably been made by the
Governor-General in Council cannot be 32 supported as a valid rule under
sub-sections (2), (3) or (4) of section 96B and can have no application to the
appellant who was appointed by the Secretary of State in Council and
consequently the order of the President made in accordance with Note I to that
article is illegal and void.
The above line of reasoning found favour with
the High Court but nevertheless the High Court repelled the conclusions sought
to be established by it on the ground that rule 7 of the Civil Services
(Classification, Control and Appeal) Rules read with rule 26 of those Rules
impressed the stamp of validity upon article 465-A of the Civil Service
Regulations and made it applicable to the All India Services. Learned counsel
for the appellant challenges the correctness of the decision of the High Court
in so far. as it is founded on a construction of rules 7 and 26 of the Civil
Services (Classification, Control and Appeal) Rules which were first made in
December, 1920, and were again published in 1930 with subsequent amendments.
While agreeing with learned counsel that there is some force in his contention
that the construction put upon rule 7 may not be quite cogent or convincing we
do not consider it necessary to express any final opinion on that matter, for,
in our judgment, the major, premise assumed by the High Court that Note 1 to
article 465-A has no application to the appellant cannot be supported or sustained.
it appears that by Resolution No. 1085-E.A.
passed on the 15th November, 1919, and published in the gazette of India on the
same date the Government: of India, Finanance Department with the approval of
the Secretary of State for India, announced certain new rules relating to
retiring pensions of the officers (other than military officers or members of
the Indian Civil Service) and the 'services specified therein.. The services so
specified included the Public Works Department. The new rules were,, by rule 1,
made to apply only to officers joining the above services after the 29th
August, 1919, And to those existing officers who elected in writing to come
under their provisions,. The appellant was, employed in October, 1923, and 33
consequently these new rules applied to him. The material I part of rule 4 of
these new rules was as follows :"Government will have an absolute right to
retire any officer after he has completed twenty-five years' service, without
necessity to give reasons and without any claim for compensation in addition to
pension, and in that event.............." These rules which came into
force on their publication in the Official Gazette of the 15th November, 1919,
were, therefore, in operation on the 23rd December, 1919, when the Government
of India Act, 1919, was passed and were accordingly validated and confirmed by
sub-section (4) of section 96B of that Act to which reference has already been
made. The rules thus confirmed by section 96B(4) became applicable to the
appellant on his employment by the Secretary of State in October, 1923.
In Resolution No. 714-C.S.R. dated the 10th
May, 1920, it was announced that with a view to the exact scope of the new
pension rules published in Resolution No. 1085-E.A. dated the 15th November,
1919, being made clear the Government of India intended to publish those rules
in the form of amendments to the Civil Service Regulations. Accordingly
Resolution No. 1003-C.S.R. dated the 18th June, 1920, along with certain
amendments to the Civil Service Regulations were published in the Gazette of
India of the 19th June, 1920, for general information. The amendments so
published provided for the insertion in the Civil Service Regulations of a new
article 349-A stating that the rules in certain articles including article
465-A would apply to officers in the services specified therein. The services
so specified included the Public Works Department. The amendments also provided
for the insertion in the Civil Service Regulations, amongst others, of a new
rule as article 465-A with two notes appended thereto. Omitting clause (1) and
note (2) which are not relevant for our present purpose that article read as
"465-A. -For officers mentioned in
article 349-A the rule for the grant of retiring pension is as follows:5 34 (1)
(2) A retiring pension is also granted to an
officer who is required by Government to retire after completing twenty five
years' service or more.
Note I.-Government retains an absolute right
to retire any officer after he has completed twenty-five years' service without
giving any reasons and no claim to special compensation on this account will be
It will be noticed that clause (2) and Note I
quoted above are word for word the same as clause (2) and Note 1 of article
465-A as we find it now except that the last sentence in Note 1 in the present
rule was not in article 465-A Note I when it was published in 1920. It seems
that this addition was subsequently made by amendment in 1922 as referred to in
the High Court judgment under appeal.
It is contended by learned counsel for the
appellant that article 465-A and Note I thereto came into force only in June,
1920, that is to say, after the Government of India Act, 1919, had been passed
and therefore cannot be said to have been confirmed by section 96B (4) and
being a pension rule made after the date of that Act but not being a rule made
by the Secretary of State in Council it cannot under section 96B (3) apply to the
appellant who was employed by the Secretary of State. We are unable to accept
this argument as sound. As already stated, the new rules were announced by
Resolution No. 1085-E. A. passed and published on the 15th November, 1919, and
were in force on the 23rd December, 1919, when the Government of India Act,
1919, was passed and consequently acquired statutory force by virtue of section
96B (4) of that Act. The subsequent Resolution No. 714-C.S.R. dated the 10th
May, 1920, and Resolution No.
1003-C.S.R. referred to above did not and
could not affect the validity or force of the new rules announced on the 15th
November, 1919. The purpose of publishing the new rules in the form of
amendments to the Civil Service Regulations, as Resolution No. 714-C.S.R. itself
stated expressly, was only to clarify the exact scope of those new rules and
not, 35 As suggested by learned counsel for the appellant, to bring them into
force for the first time. The new rules came into operation ex proprio vigore
on their publication in the Official Gazette on the 15th November, 1919, and
their subsequent publication for general information in the form if amendment
to the Civil Service Regulations only served to make their exact scope clear.
The real purpose of the incorporation of these rules in the' Civil Service
Regulations was not to make any now rule at the date of such incorporation but
to distribute and post up the rules announced in November, 1919, at appropriate
places in the Civil Service Regulations for ready reference. A comparison of
the language used, in Note 1 to article 465-A with that employed in new rule 4
announced by Resolution No. 1085-E.A.
dated the 15th November, 1919, will also make
it clear beyond doubt that the purpose of Note I is not to confer on the
Government any new right to compulsorily retire an officer on completion by him
of twenty-five years", service but that it is intended to serve as a
reminder that the Government already has such right which it, means to
"retain". One "retains" only what one already possesses and
the word "retain" is wholly inappropriate for the purpose of
conferring a fresh right. The last sentence of Note I is only an administrative
direction, as to when the existing right of the Government is to; be exercised.
Indeed, article I in. Chapter I of the: Civil Service Regulations clearly
provides that the regulations therein are intended only to regulate salaries,
leave, pension and other allowances and that they do not deal otherwise than
indirectly with matters relating to recruitment, promotion, official duties,
discipline or the like. In short, the language of' Note I to article 465-A
makes it abundantly clear that the Government's right to compulsorily retire an
officer is not derived from Note 1. Note I only assumes its existence aliunde
and indicates when that existing right is to be, exercised and what
consequences are to follow if that right is exercised. That right is obviously
derived from new rule 4 which was announced by Resolution No. 1085-E.A. on the
15th November, 1919. Being in operation at the date of the passing of the
Government of 36 India Act, 1919, that rule, by virtue of sub-section (4) of
section 96B of that Act, became binding on the appellant although he was
employed by the Secretary of State for India. We, therefore, agree with the
High Court, though on different grounds, that the first question raised by the
appellant must be answered against him. It is unfortunate that the Gazette of
India notifications of the several earlier resolutions referred to above were not
made available to the High Court.
Re. (ii) and (iii).-It will be convenient to
deal with these two questions together. Learned counsel for the appellant urges
that even assuming that rule 4 announced by Resolution No. 1085-E.A. and on
which Note I to article 465-A of the Civil Service Regulations was based had,
on the passing of the Government of India Act, 1919, become binding on the
appellants it nevertheless became void on the coming into operation of the
Constitution of India by reason of its being repugnant to the provisions of
article 31 1 of the Constitution. The argument is that a compulsory retirement
of an officer was nothing but his removal from service within the meaning of
article 311 and as rule 4 as well as Note I to article 465-A of the Civil
Service Regulations sanctioned compulsory retirement without assigning any
reason which, in substance, meant without giving him any opportunity to show
cause against such action being taken in regard to him, it became repugnant to
article 311 of the Constitution and, therefore, became void. The argument,
although plausible and attractive, was nevertheless rejected by the High Court
and we think it rightly did so. A brief study of the history and development of
the rule now embodied in article 311 and a consideration of the language of
that article and the relevant rules will amply confirm the correctness of this
In England the rule was well established from
very early times that public offices were held at the pleasure of the Crown.
The English constitutional theory was that the King could do no wrong and
accordingly the services of a civil servant could be terminated without
assigning any reason and no action could be maintained in the King's Courts for
damages for wrongful 37 dismissal. This principle appears to have been applied
even to the servants of the East India Company and certainly to the civil
servants after the British Crown took over the territories and the
administration thereof from the East India Company. This state of affairs
continued until 1919 when section 96B of the Government of India Act, 1910,
while maintaining that the tenure was during His Majesty's pleasure, introduced
a minor restriction on this power of dismissal. The relevant portion of
sub-section (1) of that section was in the terms following :" 96B. (1)
Subject to the provisions of this Act and of rules made there under, every
person in the civil service of the Crown in India holds -office during His
Majesty's pleasure, and may be employed in any manner required by a proper
authority within the scope of his duty, but no person in that service may be
dismissed by any, authority subordinate to -that by which he was appointed, and
the Secretary of State in Council may (except so far as he may provide by rules
to the contrary) reinstate any person in that service who has, been dismissed.
The rest of the sub-section need not be
quoted. As already stated, sub-section (4) of this section validated and
confirmed the then existing rules and sub-section (2) gave power to the
Secretary of State for India in Council to make rules for regulating the
classification of the civil services in India, the methods of their
recruitment, their conditions of service, pay and allowances,, and discipline
and conduct. In exercise of this power the Secretary of State for India in
Council framed certain rules in December, 1920, which with subsequent
modifications were published on the 27th May, 1930, as "The Civil Services
(Classification, Control arid Appeal) Rules." Rule 49 provides:
" 49. The following penalties may, for
good and sufficient reason and as hereinafter provided, be imposed upon members
of the services, comprised in any of the classes (1) to (5) specified in rule
14, namely:(i) Censure.
38 (ii)Withholding of increments or promotion,
including stoppage at an efficiency bar.
(iii)Reduction to a lower post or time-scale,
or to a lower stage in a time-scale.
(iv) Recovery from pay of the whole or part
of any pecuniary loss caused to Government by negligence or breach of orders.
(vi) Removal from the civil service of the
Crown, which does not disqualify from future employment.
(vii) Dismissal from the civil service of the
Crown, which ordinarily disqualifies from future employment.
Explanation.-The termination of employment(a)
of a person appointed on probation during or at the end of the period of
probation, in accordance with the terms of the appointment and the rules
governing the probationary service; or (b) of a temporary Government servant
appointed otherwise than under contract, in accordance with rule 5 of the
Central Civil Services (Temporary Service) Rules, 1949; or (c) of a person
engaged under a contract, in accordance with the terms his contract does not
amount to removal or dismissal within the meaning of this rule or of rule 55].
The, relevant portion of rule 55 runs thus
" 55. Without prejudice to the provisions of the Public Servants Inquiries
Act, 1850, no order of dismissal, removal or reduction shall be passed on a
member of a service (other than an order based on facts which had led to his
conviction in a criminal Court or by a Court martial) unless he has been
informed in writing of the grounds on which it is proposed to take action, and
has been afforded an adequate opportunity of defending himself
The rest of this rule which lays down the
details of procedure to be followed need not be quoted for our present purpose.
Under article 353 of the Civil Service Regulations, no pension may be granted to
an officer dismissed or removed for misconduct, insolvency or 39 inefficiency,
but to officers so dismissed or removed compassionate allowances may be granted
when they are deserving of special consideration, provided that such allowance
shall not exceed two-thirds of the pension which would have been admissible to
him if he had retired on medical certificate.
It will be noticed that the rules just
referred to contemplate and provide for both dismissal and removal from
service. As regards pension both dismissal and removal stand on the same
footing, namely, that both of them entail loss of pension and even when a
compassionate allowance is granted in either case such' allowance is much less
than the pension that had been earned. The only difference between dismissal
and removal is that while dismissal ordinarily disqualifies the officer from
future employment, removal does not. It may also be mentioned here that
although the power of dismissal at pleasure was " subject to the
provisions of this Act and of the rules made there under " the Judicial
Committee held in Rangachari v. Secretary of State(1) and in Venkatarao v.
Secretary of State(2) that those opening words of section 96B(1) did not
qualify the unfettered discretion of the Crown to dismiss a servant at pleasure
and that the remedy of the servant for the violation of the rules was not by a
law suit but by 'an appeal of an official or political kind.
Then came the Government of India Act, 1935.
Section 240 is important for our purpose. The relevant portions of that section
were as follows:
" 240. (1) Except as expressly provided
by this Act, every person who is a member of a civil service of the Crown in
India, or holds any civil post under the Crown in India, holds office during
His Majesty's pleasure.
(2) No such person as aforesaid shall be
dismissed from the service of His Majesty by any authority subordinate to that
by which he was appointed.
(3) No such person as aforesaid shall be
dismissed or reduced in rank until he has been given a reasonable (1) L.R. 64
I.A. 40; A.I.R. 1937 P.C. 27.
(2) L.R. 64 I.A. 55; A.1,R. 1937 P.C. 37, 40
opportunity of showing cause against the action proposed to be taken in regard
to him." The rest of the section is not material for the present
discussion. In short, sub-section (1) reiterated the English constitutional
theory, sub-section (2) reproduced the restriction introduced by section 96B
(1) of the 1919 Act and sub-section (3) gave statutory protection to the rights
conferred by rule 55 of the Civil Service,% (Classification, Control and
Appeal) Rules but which, prior to this Act of 1935, had been held by the Privy
Council in the two last cited cases to be ineffective against the Crown's
plenary power of dismissal. It will, however, be noticed that in sub-section
(3) the word " removed " was not used, although that word occurred in
rule 55 and the other rules quoted above. It was, however, held in I. M. Lal's
case(1) that removal was within section 240(3), which conclusion implies that
removal is comprised within dismissals The position, therefore, is that both
under the rules and according to the last mentioned decision of the Judicial
Committee there is no distinction between a dismissal and a removal except that
the former disqualifies from future employment while the latter does not.
Finally, we have our new Constitution.
Article 3 10(1) reiterates the constitutional theory of the tenure of office
being during the pleasure of the President, the Governor or Rajpramukh as the
case may be. Article 311(1) reproduces the provisions of section 240(2) of the
Government of India Act, 1935. Clause (2) of article 311, leaving out the
proviso, runs thus:
"(2). No such person aforesaid shall be
dismissed, removed or reduced in rank until he has been given a reasonable opportunity
of showing cause against the action proposed to be taken in regard to
him." The word " removal " which is used in the rules is also
used in this clause and it may safely be taken, for reasons stated above, that
under the Constitution removal and dismissal stand on the same footing except
as to future employment. In this sense removal is but a species of dismissal.
Indeed, in our recent decision (1) L.R75 I,A. 225; A.I.R. 1948 P.C. 121.
41 in Satischandra Anand v. The Union of
India(1) it has been' said that these terms have been used in the same sense in
article 31 1.
Removal, like -dismissal, no doubt brings
about. a termination of service but every termination of service does not
amount to dismissal or removal.' A reference to the Explanation to rule 49
quoted above will show that several kinds of termination of service do not
amount to removal or dismissal. Our recent decision in Satishchandra Anand v. The
Union of India (supra) fully supports the conclusion that article 311 does not
apply to all cases of. termination of service. That was a case of a contract
for temporary service being terminated by notice under one of the clauses of
the contract itself and fell within clause (c) of the Explanation to rule 49
and article 311 was held by this Court not to have any application to the case.
The question then is whether a termination of service brought about by
compulsory retirement is tantamount to a dismissal or removal from service so
as to attract the provisions of article 311 of the Constitution. The answer to
the question will depend on whether the nature and incidents of the action
resulting in dismissal or removal are to be found in the action of compulsory
There can be no doubt that removal--I am
using the term synonymously with dismissal-generally implies that the officer
is regarded as in some manner blameworthy or deficient, that is to say, that he
has been guilty of some misconduct or is lacking in ability or capacity or the
will to discharge his duties as he should do. The action of removal taken
against him in such circumstances is thus founded and justified on some ground
personal to the officer. Such grounds, therefore, involve the levelling of some
imputation or charge against the officer which may conceivably be controverted
or explained by the officer.
There is no such element of charge or
imputation in the case of compulsory retirement. The two requirements for
compulsory retirement are that the officer has completed twenty five years'
service and that it is in the public interest to dispense with his further
services It is true that (1)  S.C.R. 655 at p. 659.
42 this power of compulsory retirement may be
used when the authority exercising this power cannot substantiate the
misconduct which may be the real cause for taking the action but what is
important to note is that the directions in the last sentence in Note 1 to
article 465-A make it abundantly clear that an imputation or charge is not in
terms made a condition for the exercise of the power. In other words, a
compulsory retirement has no stigma or implication of misbebaviour or
incapacity. in the present case there was no doubt some imputation against the
appellant which he was called upon to explain but it was made perfectly clear
by the letter of the 4th January, 1950, that the Government was not holding any
formal enquiry under rule 55 of the Civil Services (Classification, Control and
Appeal) Rules and that before taking action for his compulsory retirement the
Government desired to give him an opportunity to show cause why that action
should not be taken. In other words, the enquiry was to help the Government to
make up its mind as to whether it was in the public interest to dispense with
his services. It follows, therefore, that one of the principal tests for
determining whether a termination of service amounts to dismissal or removal is
absent in the case of compulsory retirement.
Finally, rule 49 of the Civil Services
(Classification, Control and Appeal) Rules clearly indicates that dismissal or
removal is a punishment. This is imposed on an officer as a Penalty. It
involves loss of benefit already earned.
the officer dismissed or removed does not get
pension which he has earned. He may be granted a compassionate allowance but
that, under article 353 of the Civil Service Regulations, is always less than
the pension actually earned and is even less than the pension which he would
have got had he retired medical certificate. But an officer who is compulsorily
retired does not lose any part of the benefit that he has earned. On compulsory
retirement he will be entitled to the pension etc. that he has actually earned.
There is no diminution of the accrued benefit
It is said that compulsory retirement, like dismissal or removal, deprives the
officer of the chance of serving 43 and getting his pay till he attains the age
of superannuation and thereafter to get an enhanced pension and that is
certainly a punishment. It is true that in that wide sense the officer may
consider himself punished but there is a clear distinction between the loss of
benefit already earned and the loss of prospect of earning something more.
In the first case it is a present and certain
loss and is certainly a punishment but the loss of future prospect is too
uncertain, for the officer may die or be otherwise incapacitated from serving a
day longer and cannot, therefore,, be regarded in the eye of the law as a
punishment. The more important thing is to see whether b y compulsory
retirement the officer loses the benefit he has earned as he does by dismissal
or removal. The answer is clearly in the negative. The second element for
determining whether a termination of service amounts to dismissal or removal
is, therefore, also absent in the case of termination of service brought about
by compulsory retirement.
The foregoing discussion necessarily leads
us. to the conclusion that a compulsory retirement does not amount to dismissal
or removal and, therefore, does not attract the provisions of article 311 of
the Constitution or of rule 55 and that, therefore, the order of the President
cannot be challenged on the ground that the appellant had not been afforded
full opportunity of 'showing cause against the action sought to be taken in
regard to him' Both the questions under consideration must also be answered
against the appellant.
The result, therefore., is that this appeal
fails and must stand dismissed. In the circumstances of this case we make no
order as to costs.