March 3o v. The State of Uttar
Case at a glance
Provisions considered
Key paragraphs
- Para 3333. consequently these new rules applied to him. The mate rial 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' to give reasons and without service…
- Para 3434. SUPREME COURT REPORTS [1955] (1) ............................................... . is also granted to an officer ( 2) A retiring pension retire after com pleting twenty-five years' service or more. required by Government to Note 1.-Government retains an absolute retire any officer after he has completed twenty-five…
Judgment
The material facts may be shortly stated as follows : The appellant passed his Civil Engineering degree examination from the Thomason College, Roorkee, in order of merit and carried 1922. He stood away the Gold Medal and other prizes awarded best student of that year. He was appointed by Secretary of State 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, pro motion, leave, pension, etc., will be found 3-86 S. C. India/59 recorded 1954 Shyam LO.l v. TM State of Uttar Pradtsh and The -UnioR of India Das]. 28 SUPREME COURT REPORTS letter the Governor of the United ·Provinces a letter issued from India Office, London, on the 13th February, 1924. A copy of that is annexed to the petition filed under article 226. He was posted in the United Provinces. In 1944 the appellant was pro moted to the rank of officiating Superintending Engi neer.
After the attainment of independence by India a fresh agreement was entered into by and between the appellant, .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 Superintending Engineer. The appellant, ·however, was not confirmed but continued to officiate as Superintending Engineer until hereinafter stated. On Public Works Department of the U. P. Government Irrigation addressed a letter Branch, U. P. requesting him to ask letter enclosed him to submit as early as possible whatever explana tion he might desire to give. The enclosed letter called upon the appellant to show three weeks why he should not ·be compulsorily 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 for his he had spent large amounts of public money own personal convenience and (3) that he had taken recourse ·to devious and unscrupulous methods.
No less than these charges were based were then set out. The covering letter concluded with the •following ·remarks.: ·the 4th January, 1950, ·six instances on Which the Chief Engineer, the appellant and to communicate retired under ·cause within therewith retire any they consider not "Under the rules Government reserVe ·officer whose to be the fight to compulsorily retention serviae interest. This js not, therefore, a formal enquiry under the. Classifi cation, Control and Appeal Rules· but before . taking the action ·indicated above Government were pleased to afford to Shri· Shyam Lil, I.S.E., ·an opportunity in the public • ' , __ - • • 1954 'Shyam Lal v. The State of Ultra Pradesh and The Uni1n of India Das]. S.C.R. SUPREME COURT REPORTS 29 to show cause why he should not be compulsorily retired. " the period mentioned by the President, after considering A copy of the letter of the 4th January 1950, gether with a copy of the enclosure was sent to the appellant with the request that his explanation might be forwarded within Government.
The appellant submitted his explana the Chief Engineer's com tions which, together with the Union Public ments thereon, were placed before Service Commission. The Commission came to the con clusion that five out of the six charges had been groved and submitted their report accordingly. On the 17th April, 1953, the case and the recommendations of the Commission, decided that the appellant should retire forthwith from service under Note 1 to article 465-A of the Civil Service Re gulations. 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 President on the 17th April, 1953, be quashed on that the order was illegal and void ground, inter alia, in that it was made without affording him any oppor the action proposed to be tunity to show cause against taken in regard the High the 1st October, Court dismissed the application on 1953.
The present appeal is directed against that order of dismissal. to him. As already stated, The order of the President which is impugned 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 Grarit of Pension. Article 465-A that Chapter under section V the heading of which is "Retiring Pen sion. " There are two notes appended to the article of which the first one is important for our preserit pur pose. The relevant ·part of article 465-A and Note 1 thereto are set out below :- appears m ) "465-A. For officers mentioned in article 349-A, rule for the grant of retiring pension is as follows : -- • 1954 Shyam Lal v. The State of Uttar Pradesh and The Union of India. Dasj. 30 SUPREME COURT REPORTS [1955] (1) ................................................... . ....................................................... (2) A retiring pension is also granted to an officer to retire after com who is required by Government pleting twenty-five years' qualifying service or more.
Note 1.-Government retains an absolute 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 exercised ex be entertained. This right will not cept when it is in the public interest to dispense with the further services of an officer. " Officers of the Indian Service of Engineers are includ in article 349-A of the officers mentioned ed amongst the Civil Service Regulations. The contentions urged before us are that the Presi is invalid and the 17th April, 1953, dent's Order of inoperative for the following reasons: (i) that article 465-A of the Civil Service Regula tions is not applicable to or binding on the appellant ; (ii) that compulsory is nothing but removal from service and the provisions of article 311 of the Constitution apply to the case of compulsory retirement ; retirement (iii) that Note 1 to article 465-A of the Civil Ser vice Regulations, in so far as it confers on the Govern ment an absolute retire an officer who has completed twenty-five years' qualifying service without giving any to article 311 of the is repugnant Constitution. reason, 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 that is to say, after the Government of October, 1923, India Act, 1919, came into operation. Sub-section ( 4) of section 96B of removal of in operation at the time of the doubts, that all passing of that Act, whether made by the Secretary of in Council or by any other authority, relating to State that Act provided, for '· • -- - •. ) ( 1954 Shyam Lal v. The State of Utlar Pradesh and The Union of India. Das]. .. • - - J S.C.R. SUPREME COURT REPORTS 31 to delegate the powers to authorise is then made its present form their recruitment, in Council to make the Civil Service of the Crown in India, were duly made in accordance with that behalf and it confirmed the same. But it is urged that as there is noth the Civil Service that article 465-A of ing to show Regulations was in nperation at the time of the passing of the Government of India Act, 1919, and that as all in question that has been shown is only that the article was amended and brought up to to have been validated by sub 1922 it cannot be said section ( 4) of section 96B. Reference sub-section (2) of that section which empowered Secretary of State rules for regula ting the classification of the Civil Services in India, methods of their conditions of ser vice, pay and allowances, and discipline and conduct the power of making and, by such rules, to local rules to the Governor-General m Council or Indian Legislature Governments or or local Legislatures to make laws regulating the pub lic services.
It 1s pointed out that sub-section (2) did not empower the Secretary of State in Council to dele gate the power to make rules concerning pensions any authority in India. Our attention 1s next drawn to sub-section (3) of section 96B which specially safe the civil servants employed guarded the interests of by the Secretary of State m Council by providing that their right to pensions and the scale and conditions of pensions should be regulated m 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 the pension of or additions should not adversely affect the date any member of the service appointed before thereof. It is urged that not only has article 465-A not in force at the time of the been shown to have been passing of the Government of India Act, 1919, it has also not been shown to have been made by the Secretary is contended of State in Council. that article 465-A which ts set out in section V of Chapter XVIII of the Civil Service Regulations and deals with retiring pensions and has presumably been in Council cannot be made by the Governor-General In the premises, 19541 Shyam Lal, v,, The ~state. of· Uttar Pradesh and, Tiu Unia1i. of India.
Das]. 32' SUPREME. COURT REPORTS [1955] ) rule under sub"sections (2), (3) or supporte& as a valid (4) of section 96B and can· have no application to the appellant who was appointed by the Secretary of State the order of the President in Council and• consequently made m accordance with Note that article is illegal and void. l to impressed favour with the correctness of the appellant challenges The above line of reasoning found the High Court repelled High Court but nevertheless 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. stamp of validity upon article Rules 465-A of the Civil Service Regulations and made it applicable to the All India Services. Learned counsel decision of the High Court in so- far as it is founded on a construction of rules 7 and 26 of the Civil Services (ClassifiGation, Control and Appeal) Rules which were first made in December, 1920, and were again pub lished in 1930 with subsequent amendments.
While agreemg 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 con sider it necessary to express any final opinion on matter, for, in our the major premise assum: judgment, ed by the High Court that Note 1 to article 465-A has no application to the appellant cannot be supported or sustained. It appears the 15th November, 1919, and published that by Resolution No. 1085-E.A. passed in the Gazette 0£ India on the same date the Government of India, Finance Department, with the approval of the Secretary of State India, announced certain new rules relating to retiring pensions . of the officers (other than · military officers or members of the ·Indian Civil Service). and therein. The ·ser the ·Public W arks Depart~ vices so specified ment; ... The new rules were, by rule 1, made. to. apply. only. to officers service~ after . the 29th. August, . · 1919, and ·to those existing officers . who to come • under . their provisions. elected. ih writlng Tlie appellant was emp'!oyed i~ October, 19Z3, and the services specified the above included joining - • S.C.R. SUPREME COURT REPORTS_
consequently these new rules applied to him. The mate rial 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' to give reasons and without service, without necessity any claim for compensation in addition to pension, and in that event ..... ; ........ " 1954 Shyam Lal v .. The State of Uttar Pradesh arul The Union of India. Das]. These rules which came into force on their publica the Official Gazette of the 15th November, therefore, in operation on the 23rd Decem 1919, were, ber, 1919, when the Government of India Act, 1919, was passed and were accordingly validated and con firmed 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. the 18th In Resolution No. 714-C.S.R. dated it was announced that with a view to the 10th May, 1920, the exact s.cope 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 pub lish those rules in the form of amendments to the Civil Regulations. Accordingly Resolution No. Service 1003-C.S.R. dated June, 1920, along with certain amendments to the Civil Service Regulations the Gazette of India of the 19th were published June, 1920, for general information. The amendments the Civil so published provided for the Service Regulations of a new article 349-A stating including article 465-A the rules in the services specified therein. would apply to officers The services so specified included the Public Works Department. The amendments also provided the Civil Service Regulations, amongst insertion two notes others, of a new rule as article 465-A with appended thereto. Omitting clause (1) and note (2) which are not relevant for our present purpose article read as follows : in certain articles insertion in "465-A.-For officers mentioned in ·article 349-A the rule for the grant of retiring pension is as follows :_:_ • • ' 1954 Shyam Lal v. The State of Uttar Pradesh and Tm Union of India. Das] •.
SUPREME COURT REPORTS [1955] (1) ............................................... . is also granted to an officer ( 2) A retiring pension retire after com pleting twenty-five years' service or more. required by Government to Note 1.-Government retains an absolute retire any officer after he has completed twenty-five years' reasons and no service without giving any claim to spei:ial compensation on this account will be entertained. " It will be noticed that clause (2) and Note 1 quoted the same as c!ause (2) and above are word for word Note 1 of article 465-A as we find i'< now except the last sentence the present rule was in Note 1 m not in article 465-A Note 1 when it was published in 1920. this addition was subsequently made by amendment in 1922 as referred to in the High Court judgment under appeal. It seems It is contended by learned counsel for the appellant that article 465-A and Note 1 thereto came into force only in June, 1920, that is to say, after the Government of India Act, 1919, had been passed and therefore can not 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 the new rules were announcea by Reso already stated, lution No. 1085-E. A. passed and published on the 15th November, 1919, and were in force on the 23rd Decem ber, 1919, when the Government of India Act, 1919, was passed and consequently acquired by virtue of section 96B ( 4) of that Act. The subse quent 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 for.ce of the new rules announced on the 15th November, 1919. The purpose of publishing in the form of the new amendments to the Civil Service Regulations, as Reso lution No. 714-C.S.R. itself stated expressly, was only the exact scope of those new rules and not, to clarify statutory - , -( 1954 Shyam Lal v. The State of Uttar Pradesh and The Union of India. Das]. S.C.R. SUPREME COURT REPORTS 35 that employed as suggested by learned counsel for the appellant, to for the first time.
The new rules bring them into force came into operation ex proprio vigore on their publication the official Gazette on the 15th November, 1919, and their subsequent publication for general information the form of amendment to the Civil Service Regula tions only served to make their exact scope clear. The real purpose of the incorporation of these rules in the to make any new Civil Service Regulations was not rule at the date of such incorporation but to distribute and post up the rules announced m 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 in new rule 4 announced by Resolution No. 1085-E.A. dated the 15th November, 1919, will also make it clear beyond the purpose of Note 1 is not to confer on doubt that the Government any new right to compulsorily retire twenty-five years' an officer on completion by him of 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 inappropriate possesses and the word "retain" is wholly right. The last for the purpose of conferring a fresh sentence of Note 1 is only an administrative direction as to when the existing right of the Government is to be exercised. Civil Service Regulations clearly provides to regulate sala regulations leave, pension and other allowances and that they ries, do not deal otherwise than indirectly with matters ting to recruitment, promotion, official duties, discip line or the like. language of Note 1 to article 465-A makes it abundantly clear that the Govern ment's right to compulsorily 1s not derived frorr. Note 1. Note 1 only asssumes its existence aliunde and indicates when that existing right is to be exercised and what consequences are to follow if that right is exer:ised. 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 opera tion at the date of the passing of the Government of Indeed, article 1 m Chapter I of therein are intended only retire an officer In short, the + \ f 1954 Shyam Lal V; T ht State of· Uttar Pradesh and· The Union of lhdiQ. Das]; 36 SUPREME COURT REPORTS [1955]. lhdia Act, 191.9, that rule, by virtue of _ sub-section ( 4) of section 96B of that Act,. became binding on appellant althoµgh he was employed by the Secretary of State for India. We, therefore, agree with the High first' ques Court, tion raised by the appellant must be answered against It is unfortunate the Gazette of India noti him. fications of the several earlier above were not made available to the High. Court. though. on different grounds, resolutions that the referred Re. (ii) and (iii) .-It will be convenient to deal with these two questions together. Learned counsel appellant urges that even assuming that rule 4 announ ced by.
Resolution No. 1085-E.A. and on which Note 1 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 appellant, it never into operation of theless became void on the coming the Constitution of India by reason of its being repug nant to the provisions of article 311 of the Constitution. The argument 1s 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 the . Civil Service Regulations 1 to article 465-A of retirement without a:ss1gmng· sanctioned compulsory any reason which, in substance, meant without g1vmg him any opportunity to show cause against such action being taken in regard to him, article 311 of the Constitution and, therefore, became void. The argument, although plausible and attractive,. rejected by the High Court and we· was nevertheless rightly did so.
A brief study of the history and development of the rule now embodied in artick 311 and a consideration of the language of that article· rules will amply confirm the. correct and the relevant ness of this conclusion. it became repugnant In England the rule was well established from very· the pleasure early times that public offices were held at theory was of the Crown. The English constitutional th.at the King could do no wrong and accordingly services of a civil servant could be 'without assigning any reason and no action ~ould be maintain for wrongful ed in the King's Courts for damages terminated • --- - + i • --- - + S.C.R. SUPREME COURT REPORTS 37 dismissal. This principle appears to have been applied to the servants of the East India Company and certainly to the civil servants after the British Crown the administration · there" took over the territories and of from the East India Company.
This state of affairs the Govern continued until 1919 when section 96B of ment of India Act, 1919, while maintaining introduced a tenure was during His Majesty's pleasure, minor restriction on this power of dismissal. The relev ant portion of sub-section (1) of that section was in terms following :- 1954 Shyam L~l v. The State of Uttar Pradesh and The Union of India. Das]. thereunder, every person in "96B. (1) Subject to the provisions of this Act and the civil of rules made service of the Crown in India holds office during His Majesty's pleasure, and may be employed in any man ner required by a proper authority within the scope of in that service may be dismiss his duty, but no person ed by any authority subordinate that by which he was appointed, and the Secretary of State in Council may (except so far as he may provide by rules • to contrary) reinstate any person in that service who has been dismissed. ,, The rest of the sub-section need not be quoted.
As this section validated already stated, sub-section ( 4) of sub-section and confirmed the then existing rules and (2) gave power to the Secretary of State for India m for regulating the classification Council to make the methods of India, of the civil services m their conditions of service, pay _and allow recruitment, In exercise of this ances, and discipline and conduct. in Council fram power the Secretary of State for India in December, 1920, which with subse ed certain rules quent modifications were published on the 27th May, 1930, as "The Civil Services (Classification, Control and Appeal) Rules. " Rule 49 provides : · for good and following penalties may, sufficient reason and as hereinafter · provided, be im posed upon members of the services1 comprised in. any of the classes (1) to (5) specified in rule 14, namely:- , . ~i}1 Censure . "49. The . . . . . . . ' 1954 Shyam Lal v. The State of Utt"' Pradesh and The Union of India.
Das]. 38 SUPREME COURT REPORTS [1955] (ii) Withholding of increments or promotion, cluding 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 in accordance at the end of the period of probation, with the terms of the appointment and the rules govern ing the probationary service ; or (b) of a temporary Government servant appointed (Temporary Service) the Central Civil Services otherwise than under contract, 5 of Rules, 1949 ; or in accordance with ( c) of a person engaged under a contract, in accord ance with the terms his contract does not amount 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 Public Servants Inquiries Act, 1850, no order of dis missal, removal or reduction shall be passed on a mem ber of a service (other than an order based on facts to his conviction in a criminal Court or which had led by a Court martial) unless he has been informed in writing of the grounds on which it is proposed to 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 to an officer Regulations, no pension may be granted insolvency or for misconduct, dismissed or removed • --- - + • ; • --- - • S.C.R. SUPREME COURT REPORTS 39 to officers so dismissed or removed inefficiency, but they c compassionate allowances may be granted when are deserving of special consideration, provided such allowance shall not exceed two-thirds of the pen if he had sion which would have been admissible to him retired on medical certificate.
1954 Shyam Lal v. [ The State of Uttar Pradesh and The Union ef India. Das]. It will be noticed that the rules just referred to con template 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 compas sionate allowance is granted in either case such allow ance is much less than the pension that had been earned. The only difference between dismissal and removal is the officer that while dismissal ordinarily disqualifies from future employment, It may also be mentioned here that although the power of dis missal at pleasure was "subject to the provisions of this Act and of the rules made thereunder" the Judicial Committee held in Rangachari v. Secretary ofi State(1) in Venkatarao v. Secretary of State (2 that those open ing words of section 96B(l) did not qualify the unfet tered discretion of the Crown to dismiss a servant at pleasure and that violation of the rules was not by a law suit but by an appeal of an official or political kind. the remedy of the servant for removal does not. ) Then came the Government of India Act, 1935.
Sec relevant tion 240 is important for our purpose. The portions of that section were as follows : "240. (I) Except as expressly provided by Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the India, holds office during His Majesty's Crown pleasure. (2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority sub ordinate 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.I.R. 1937 P.C. 37. 1954 S~yam Lal v. The State of Ultar "Pradesh and The Union of India. Das]. 40 :SUPREME '.COUR!f •REPORTS ['1955] ro11por.tunity of showing . cause .against posed to be taken in regard to him. " the action .pro reiterated (2) sub.,section theory, (1) sub-section The rest of the section ·is not material for the present In short, .discussion.
English constitutional duced the restriction introduced by section 96B ( 1) of the 1919 Act and sub-section (3) gave statutory protec tion to the rights conferred by rule 55 of the Civil Ser (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 ineffec tive 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 1. M. Lat's case(') that remov implies al was within section 240(3), which conclusion is comprised within dismissal. The posi that removal therefore, is that both under the rules and accord tion, the Judicial last mentioned decision of Committee there is no distinction between a .dismissal and a removal except that the former disqualifies future .employment while the latter does not. the President, the constitutional theory of the Finally, we have our new Constitution.
Article 310(1) tenure of reiterates office being during the pleamre of Governor or Rajpramukh as the case may be. Article 311 ( 1) reproduces the provisions of sectiqn 240(2) of the Government of India Act, 1955. Clause (2) of arti cle 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 action proposed to be taken in regard to him. " is used in the rules The word "removal" which also used in this clause and it may· safely be taken, for ·Constitution re reasons moval and dismissal stand on the same footing except In this sense removal is but as to future employment. in our recent decision a species of dismissal. that under the stated above, Indeed, (1) L.R. 75 I.A. 225; A.LR. 1948'P:C. 121 .. . I • - • • 1954 Shyam Lal v. The State of Uttar Pradesh and The Union of India.
Das]. S.C.R . SUPREME COURT REPORTS 41 it has . in Satischandra Anand v. The Union of India( 1 ·been said that these terms have been used in the same sense in article 311. ) supports Removal, like dismissal, no doubt brings about a service termination of service but every termination of 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 servJCe do not amount to removal or dismissal. Our recent decision m Satishchandra Anand v. The Union of India (supra) 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 nated by notice under one of the clauses of the contract itself and fell within clause ( c) of the Explanation rule 49 and article 311 was held 'by this Court not have any application to the case. The question is whether a termination of service brought about by to a dismissal or compulsory retirement is tantamount removal from service so as the provisions of article 311 of the Constitution.
The answer question will depend on whether the nature and inci dents of the action resulting m dismissal or removal are to be found in the action of compulsory retirement. to attract There can be no doubt synonymously with dismissal-generally that removal-I am using the implies that the officer 1s regarded as in some manner blame worthy 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 m such circumstances is thus justified on some founded and ground personal to the officer. Such grounds, therefore, imputation or charge involve against the officer which may conceivably be contro verted or explained by the officer. There 1s no element of charge or imputation in the case of compul for compulsory sory retirement. The two requirements retirement are that the officer has completed twenty~ interest five years' service and that in the public to dispense with his further services. . the levelling of some (1) [1953] S.C.R. 655 at p.
659. It is it is • - + \ ... 1954 S/filam Lal v. The State of Uttar Pradesh and The Union of India. Das]. I • + 42 SUPREME COURT REPORTS (1955] important to note 1s In other words, a compulsory 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 directions in the last sentence in Note 1 to article 465-A make it abundantly clear that an imputatiori or charge is not in terms made a condition for the exercise of the power. retirement has no stigma or implication of misbehaviour or incapacity. In the present case there was no doubt some imputa tion against the appellant which he was called upon to explain but it was made perfectly clear by the letter of the 4th January, 1950, the Government was not holding any formal enquiry under rule 55 of the Civil Services (Classification, Control and Appeal) Rules and retirement that before taking action for his compulsory the Government desired to give him an opportunity In show cause why that action should not be taken. other words, the enquiry was to help the Government to make up its mind as to whether it was in the public interest It follows, for deter therefore, mmmg whether a termination of service amounts dismissal or removal is absent in the case of compulsory retirement. that one of the principal to dispense with his services. involves Finally, rule 49 of the Civil Services (Classification, Control and Appeal) Rules clearly indicate that dis missal or removal is a punishment.
This is imposed on an officer as a penalty. loss of benefit It 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, 1s always less than the pension actually earned and is even than the pension which he would have got had he re tired on medical certificate. But an officer who is com pulsorily retired does not lose any part of the benefit that he has earned. On compulsory retirement he will be entitled that he has actually earned. There is no diminution of the accrued benefit. It is said like dismissal or removal, deprives the officer of the chance of serving the pension etc. that compulsory retirement. 1954 Shyam Lal v. The State of Uttar Pradesh and The Union qf India. I- Das]. S.C.R. SUPREME COURT REPORTS- 43· In the first case and getting his pay till he attai~s the age of superan nuation and thereafter to get an enhanced pension and It is true that in that that is certainly . a punishment. wide sense the officer may consider himself punished there 1s a clear distinction between the loss of benefit already earned and the loss of prospect of earn ing something more. is a present and certain loss and is certainly a punishment but the the officer loss of future prospect is too uncertain, froin serving a incapacitated may die or be otherwise therefore, be regarded longer and cannot, in thr. important eye of the law as a punishment.
The more thing is to see whether by compulsory officer loses the benefit he has earned as he does by dis missal or negative. The second element for determining whether to dismissal or service amounts a the case of therefore, also absent m removal termination of service brought about by compulsory retirement. termination of 1s, removal. The answer 1s clearly retirement removal and, The foregoing discussion necessarily that a compulsory leads us to retirement does not conclusion therefore, does amount to dismissal or not attract the provisions of article 311 of the Constitu therefore, the order of the tion or of rule 55 and that, President cannot be challenged on the ground that the full opportunity of appellant had not been afforded showing cause against the action sought to be taken in the questions under considera regard tion must also be answered against the appellant. to him. Both , • ~-- - The result, therefore, 1s must stand dismissed. case we make no order as to costs. In that this appeal fails and this. the circumstances of Appeal dismissed. ~-86 S. C. India/59
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.