The State of Bombay Vs. Saubhagchand
M. Doshi  INSC 77 (25 September 1957)
T.L. VENKATARAMA DAS, SUDHI RANJAN (CJ)
SINHA, BHUVNESHWAR P.
CITATION: 1957 AIR 892 1958 SCR 571
Government servant-Compulsory retirement-Whether
amounts to dismissal or removal-Whether 'applicable to Art. 311(2) of the
Constitution-Bombay Civil Services Rules, as amended by the Saurashtra
Government, R. i65-A-Whether ultra viresConstitution of India, Art. 311(2).
Rule 165-A of the Bombay Civil Services
Rules, applicable to the State of Saurashtra, as amended, provided: "
Government retains an absolute right to retire any Government servant after he
has completed 25 years qualifying service or 50 years of age, whatever the
service without giving any reason 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 a Government
servant such as on account of inefficiency or dishonesty...........
On October 30, 1952, the Government of
Saurashtra passed an order compulsorily terminating the services of the respondent,
acting under the above rule. The respondent filed a writ application in the
High Court challenging the validity of the order on the ground that it was made
without any notice to him of any charge of misconduct or inefficiency and
without any enquiry and was, in consequence, in contravention of Art. 311(2) of
the Constitution of India. Though the respondent had completed the age Of 50 on
the date of the order, his contention was that in view of the fact that R.
165-A provided that the right to retire wilt not be exercised except on grounds
of inefficiency or dishonesty, an order retiring an officer before the age of
superannuation was in substance one of dismissal or removal and must satisfy
the requirements of Art. 3Ii(2), and that R. 165-A, in so far as it authorised
the Government to terminate the services without any reason and without any
enquiry, was repugnant to Art. 311(2) and therefore ,ultra vires.
Held, that R. 165-A is not violative of Art.
311(2) and is intra vires, and that the impugned order, dated October 30, 1952,
An order under R. 165-A is not one of
dismissal or removal and Art. 311(2) is not applicable to such an order.
Shyam Lal v. The State of Uttar Pradesh,
(1955) i S.C.R. 26, explained and followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 182 of 1955.
Appeal from the judgment and order dated
February 26, 1954, of the former Saurashtra High Court in Civil Miscellaneous
Application No. 52 of 1953.
R. Ganapathy Iyer, K. L. Hathi and B. H.
Dhebar, for the appellant.
N. C. Chatterjee, J. B. Dadachanji and
Rameshwar Nath, for the respondent.
1957. September 25. The Judgment of the Court
was delivered by VENKATARAMA AIYAR J.-This is an appeal against the judgment
and order of the High Court of Saurashtra in a writ petition filed by the
respondent, setting aside an order passed by the State of Saurashtra on October
30, 1952 retiring him from service.
The respondent was appointed in 1948
Memandari, that is, Superintendent of State Guest Houses, in what was the State
of Junagadh when it was administered by the Government of India, and was, later
on, confirmed in that appointment. In 1949, Junagadh became integrated into the
State of Saurashtra, and, thereafter, the services of the respondent were
continued by that State, and he was appointed from time to time to various
posts. On June 15, 1950, he was appointed Sales Tax Officer, Madhya Saurashtra,
Rajkot, and was confirmed in that post on April 16, 1952. On October 30, 1952,
the Government of Saurashtra, purporting to act under Government Resolution No.
60 of 1948 as it then stood, passed an order compulsorily terminating his
services.The respondent thereupon filed a writ application in the High court of
Saurashtra, challenging the validity of this order on the ground that it was
made without any notice to him of any charge of misconduct or inefficiency and
without any enquiry, and was, in consequence in contravention of Art.
311(2). The learned Judges upheld this
contention, and set aside the order in question on the ground that it was, in
effect, one of dismissal, and that, as there had been no enquiry, it was
illegal and void. This appeal 573 has been preferred against their judgment and
order on a certificate under Art. 133(1)(c).
It will be convenient at this stage to refer
to the relevant rules bearing on the question. Rule 161 of the Bombay Civil
Services Rules, which Rules had been adopted by the State of Saurashtra with
some modifications, runs as follows:
Except as otherwise provided in the other
clauses of this rule, the date of compulsory retirement of a Government
servant,, other than an inferior servant, is the date on which he attains the
age of 55 years. He may be retained in service after the date of compulsory
retirement only with the previous sanction of Government, on public grounds
which must be recorded in writing." It may be stated that the respondent
Was not an inferior servant, and this rule was therefore applicable to him.
Then, there was R. 165-A, which was in these
" A competent authority may remove any
Government servant subject to these rules from Government service or may require
him to retire from it on the ground of misconduct, insolvency or inefficiency:
Provided that, before any such order is
issued, the procedure referred to in Note I to rule 33 of the Bombay Civil
Services, Conduct, Discipline and Appeal Rules shall be followed." Note I
referred to above is as follows:
" For the procedure to be followed
before an order of dismissal, removal or reduction in rank can be passed, see
Rule 55 of the Civil Services (Classification, Control and Appeal Rules, 1930,
which has been reproduced in Appendix I to these Rules. The instructions issued
by the Government for the guidance of officers in taking proceedings under that
Rule are contained in Appendix II to these Rules." Rule 55, referred to
above, in so far as it is material, is as follows:
" 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, 574 of a Service (other than an order
based on facts which led to his conviction in a criminal court) 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 grounds
on which it is proposed to take action shall be reduced to the form of a
definite charge or charges, which shall be communicated to the person charged
together with a, statement of the allegations on which each charge is based and
of any other circumstances which it is proposed to take into consideration in
passing orders on the case. He shall be required, within a reasonable time, to
put in a written statement of his defence and to state whether he desires to be
heard in person.
If he so desires or if the authority
concerned so directs, an oral enquiry shall be held. At that inquiry oral evidence'
shall be heard as to such of the allegations as are not admitted, and the
person charged shall be entitled to cross-examine the witnesses, to give
evidence in person and to have such witnesses called, as he may wish, provided
that the officer conducting the inquiry may, for special and sufficient reason
to be recorded in writing refuse to call a witness. The proceedings shall
contain a sufficient record of the evidence and a statement of the findings and
the grounds thereof" The sum and substance of these rules is that when it
is sought to remove or retire a Government servant on account of misconduct,
insolvency or inefficiency before the age of superannuation which was 55 years,
there must be an enquiry as provided in R. 55. The complaint of the respondent
is that he was only 50 on October 30, 1952, and that as there was no enquiry as
required by R. 55, the order of retirement is illegal.
Rule No. 165-A, however, was amended by the
Saurashtra Government on September 28, 1950, and again on January 15, 1952, and
on the relevant date, the rule, as amended and omitting what is not material,
stood as follows:
" Government is pleased to direct that
the proviso and the Note to Bombay Civil Services Rule 165-A 575 shall not
apply to the servants of this Government. Government is further pleased to
issue the following orders which shall be made applicable to such servants:
Government retains an absolute right to
retire any Government servant after he has completed 25 years qualifying
service or 50 years of age, whatever the service without giving any reason, 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 a Government servant such as on account of
inefficiency or dishonesty. Thus the rule is intended for use:
(i)Against a Government servant whose
efficiency is impaired but, against whom it is not desirable to make formal
charges of inefficiency or against one who has ceased to be fully efficient
(i.e., when a Government servant's value is clearly incommensurate with the pay
which he draws) but not to such a degree as to warrant his retirement on a
compassionate allowance ; and (ii)in case where corruption is clearly
established even though no specific instance is likely to be proved under the
Bombay Civil Services Conduct, Discipline and Appeal Rules." Under this
rule, the Government had the power to terminate the services of an officer
without assigning any reason, if he had completed 25 years of service or
attained the age of
50. It was under this rule that the order was
statedly made on October 30, 1952, and as the respondent had completed the age
of 50 on that date, the order would be within the scope of the authority
conferred on the State by that rule, and must be upheld, unless the rule itself
is held to be ultra Vires.
Now, the stand taken by the respondent in the
Court below was that an order retiring an officer before the age of
superannuation was in substance one of dismissal or removal and must, in order
to be valid, satisfy the requirements of Art. 311(2), and that R. 165-A, in so
far as it authorised the Government to terminate the service without any reason
and without 576 any enquiry was repugnant to Art. 311(2), and was therefore
ultra vires. This contention found favour with the learned Judges in the Court
Since the above decision was given, the
question whether an order of compulsory retirement was one of dismissal or
removal within Art. 311(2) came up for consideration in this Court in Shyam Lal
v. The State of Uttar Pradesh(1), and it was held that such an order did not
amount to one of dismissal or removal within the meaning of that Article, and
was not protected by it. If this decision applies to the present case-and it is
the contention of the appellant that it does-then there can be no question but
that the order dated October 30, 1952, is valid, and that this appeal must
succeed. Mr. N. C. Chatterjee for the respondent contends that that decision
does not govern the present appeal, and his argument in support of this
contention may thus be stated: The rule as to compulsory retirement embodied in
Note I to art. 465-A, which was considered in Shyam Lal's case (1), was in
these terms :
" 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." Rule 165-A differs from the above rule
in a material particular, in that after incorporating the above rule, it proceeds
on to state that the right Will not be exercised except on grounds of
inefficiency or dishonesty. An order of retirement under Note I to art. 465-A
carries with it no stigma and no imputation against the character or the ability
of the officer, whose services are terminated. But where the termination is,
under R. 165-A, it must reflect on the efficiency or the capacity of the
officer, and where a person's services are terminated before the age of superannuation
on grounds of inefficiency or dishonesty, that could be regarded only as
dismissal or removal.
(1)  i S.C.R.26.
577 Support for this argument was sought in
the following observations in Shyam Lal's case (1), at p. 41 :
"There can be no doubt that removal-I
amusing 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...... It is true that 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 I 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 misbehaviour or
incapacity." It was argued that the principle to be deduced from these
observations was that where the retirement involved a stigma or imputation of
misconduct or incapacity, then it must be treated as dismissal, and that, on
that principle, an order of retirement under R. 165-A must be held to be one of
dismissal or removal.
This argument proceeds -on a misconception as
to what was decided in Shyam Lal's case (1). There, the point for determination
was simply whether an order of retirement was one of dismissal or removal
falling within the purview of Art. 311(2), and it was held that it was not. The
ratio decidendi of that decision is this: Under the rules, an order of dismissal
is a punishment laid on a Government servant, when it is found that he (1)
 i S.C.R. 26.
578 has been guilty of misconduct or
inefficiency or the like, and it is penal in character, because it involves
loss of pension which under the rules would have accrued in respect of the
service already put in. An order of removal also stands on the same footing as
an order of dismissal, and involves the same consequences, the only difference
between them being that while a servant who is dismissed is not eligible for
re-appointment, one who is removed is. An order of retirement differs both from
an order of dismissal and an order of removal, in that it is not a form of
punishment prescribed by the rules, and involves no penal consequences,
inasmuch as the person retired is entitled to pension proportionate to the
period of service standing to his credit.
Now, the policy underlying Art. 311(2) is
that when it is proposed to take action against a servant by way of punishment
and that will entail forfeiture of benefits already earned by him, he should be
heard and given an opportunity to show cause against the order. But that
consideration can have no application where the order is not one of punishment
and results in no loss of benefits already accrued, and in such a case, there
is no reason why the terms of employment and the rules of service should not be
given effect to.
Thus, the real criterion for deciding whether
an order terminating the services of a servant is one of dismissal or removal
is to ascertain whether it involves any loss of benefits previously earned.
Applying this test, an order under R. 165-A cannot be held to be one of
dismissal or removal, as it does not entail forfeiture of the proportionate
pension due for past services.
Does it make any difference in the position,
as is contended by the respondent, that R. 165-A provides, unlike Note I to
art. 465-A in Shyam Lal's case(1) that the power is not to be exercised except
in cases of misconduct or inefficiency ? When the Government decides to retire
a servant before the age of superannuation, it does so for some good reason,
and that, in general would be misconduct or inefficiency.
Indeed, in Shyam Lal's case (1), the
Government did give to the (1)  i S.C.R. 26.
579 officer concerned, notice of charges of
misconduct and inefficiency and called for his explanation, though a formal
enquiry was not held. In providing that no action would be taken except in case
of misconduct or inefficiency, R. 165-A only made explicit what was implicit in
Note I to art. 465A. The fact to be noted is 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 the rules of natural justice and the requirements of Art. 311(2).
It should be added that questions of the above character could arise only when
the rules fix both an age of superannuation and an age for compulsory
retirement and the services of a civil servant are terminated between these two
points of time. But where there is no rule fixing the age of compulsory
retirement, or if there is one and the servant is retired before the age
prescribed therein, then that can be regarded only as dismissal or removal
within Art. 311(2).
Now, the provision in R. 165-A on which the
respondent relies does not, on its true construction, impose any fetter on the
power previously conferred on the State in terms absolute, to terminate the
services of its servant without assigning any reason. It is really in the
nature of departmental instructions to be followed when action is proposed to
be taken under, that rule, and makes it clear that the enquiry into the charges
is only for the satisfaction of the authorities. We are accordingly of opinion
that R. 165-A is Dot violative of Art. 311(2) and is intra vires, and that the
impugned order' dated October 30, 1952, passed in exercise of the power conferred
thereby is valid.
A contention was also raised for the
respondent that under the rules of service in force in the State of 74 580
Junagadh, the age of superannuation was 60, that art. XVI of the Instrument of
Accession provided that the permanent members of the public services in the
several States should be continued on conditions not less advantageous than
those on which they were holding office at the date of accession, and that
under this Covenant, the respondent was entitled to continue until he attained
the age of 60. The decision in Bholanath J. Thaker v. State of Saurashtra(1)
was relied on in support of this position. But no such, claim was put forward
in the writ petition, and it is now too late to raise it.
In the result, the appeal is allowed, the
order of the lower Court is set aside, and the petition of the respondent is
dismissed. The parties will bear their own costs throughout.