Full Judgment Text
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PETITIONER:
SHYAM LAL
Vs.
RESPONDENT:
1. THE STATE OF UTTAR PRADESH2. THE UNION OF INDIA
DATE OF JUDGMENT:
30/03/1954
BENCH:
DAS, SUDHI RANJAN
BENCH:
DAS, SUDHI RANJAN
MUKHERJEA, B.K.
BHAGWATI, NATWARLAL H.
JAGANNADHADAS, B.
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)
ACT:
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.
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HEADNOTE:
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 "dis-
missal" 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 incapacity.
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.
JUDGMENT:
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 for- India, 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,
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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
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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:
30
(1).........................................................
(2) A retiring pension is also granted to an officer who is
required by Government to retire after completing twenty-
five 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 the Constitution.
It will be necessary to deal with the above points seriatim.
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
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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 regula-
ting 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 pub-
lished 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
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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 follows:
"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 entertained.
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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
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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 conclusion.
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 thereunder, 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
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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.
(v) Suspension.
(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 con-
template and provide for both dismissal and removal from
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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 thereunder "
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,
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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."
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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.R- 75 I,A. 225; A.I.R. 1948 P.C. 121.
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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 retirement.
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) [1953] S.C.R. 655 at p. 659.
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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
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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
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and getting his pay till he attains the age of superan-
nuation 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.
Appeal dismissed.
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