Munshiram vs State of Madhya Bharat

Dixit, J.—An application under Article 226, Constitution of India for the issue of a writ or a direction (sic)opponent State to cancel an order of the (sic) retirement from service and to con-(sic)him in service till he attains the age of (sic) or completes thirty years of service.

The facts giving rise to the present pro-(sic) can be stated quite shortly. The applicant who was born on 1-8-1903 entered the public service of the former Gwalior State in 1923. The applicant was serving as an accountant in the Collector''s office, at Guna, and under the Rules of Service operative in the Gwalior State, he was entitled to continue in serviced till the completion of the age of sixty years or till the completion of thirty years service.

On the formation of Madhya Bharat on 28-5-48, the Petitioner continued to be employed in the service of the State of Madhya Bharat and transferred and posted as assistant accountant in the Treasury at Guna. The Petitioner states that when he protested against this order of transfer, the appellate authority directed that he should be posted as a head-clerk in the Revenue Department when the post falls vacant. Later on the Petitioner was retired on 1-12-1951. This application is directed against the order of retirement.

In the return filed on behalf of the State the facts concerning the applicant''s date of birth, entry into the service of the former Gwalior State, his posting as an accountant in the Collector''s office and the Treasury and his retirement thereafter are not denied. It is, however, stated in the return that on 15-12-1948 the Government of Madhya Bharat laid down certain principles to be followed in carrying out the programme of integration of services of the various Covenanting States. In accordance with those principles, Government servants who were treated as surplus to requirements of the State and who could not be absorbed in the public services of Madhya Bharat were retrenched on payment of compensation specified in the Retrenchment Rules and that the Petitioner''s retirement from service was in compliance with these Retrenchment Rules.

The petition is opposed by the State inter alia on the ground that the provisions of Article 311 do not apply to the case of a retirement of a civil servant in accordance with the rules framed by the State and that, therefore, the Petitioner was not entitled to any relief under Article 226, Constitution of India.

In the petition the validity of the order of retirement is challenged on a number of grounds. But before us the question mainly argued was whether the applicant was entitled to an opportunity as contemplated by Article 311(2) of showing cause against the order of his retirement. It was submitted by Mr. Patankar learned Counsel appearing on behalf of the Petitioner that the applicant''s retirement amounted to his removal from service within the meaning of Article 311(2) and that, therefore, the order passed without complying with those provisions was illegal and inoperative.

I think for a correct approach to the matter it is necessary to see first what the position is under the Constitution with regard to the members of public services. This has been fully explained in the case of Mrs. Lilawati Mutatkar v. State of Madhya Bharat AIR 1952 Mad 105 (A), where it has been pointed out that persons employed in the service of the State hold their employment at the pleasure of the President or the Governor or the Rajpramukh, as the case may be and that they can be dismissed, removed or reduced in rank at the pleasure of these authorities subject to the limitation imposed by Article 311; that this article does not in any way alter or affect the principle embodied in Article 310 that a Government servant holds office during the pleasure of the Head of the State; that Article 311 only imposes certain statutory obligations before dismissal or removal or reduction in rank is effected; that the Madhya Bharat Civil Services (Punishment and Appeal) Rules 1950 only lay down merely administrative rules for the guidance of officers of the Government in the imposition of penalties and in the conduct of the departmental inquiries against Government servants; that the dismissal, removal or reduction in rank(sic) a civil servant in violation of the rules would not by itself entitle him to come to the High Court but would leave him to appeal to the administrative authorities and that it is only a breach of Article 311 that furnishes a cause of action to a civil servant adversely affected to come to the High Court or to approach a civil Court for redress.

Now, the scope of Article 311(2) is very limited. The protection given by that Article is confined to those cases where as a result of disciplinary action a person is removed, dismissed or reduced in rank. The terms "dismissal", "removal" and "reduction in rank" are all technical terms employed in the Article and it is not permissible to construe these terms in a popular sense. They have the technical meaning given to them in the appropriate Civil Services Rules dealing with penalties that may be imposed on a civil servant for misconduct, and indiscipline. In this connection I need only refer to a recent decision of the Supreme Court in Satish Chandra Anand Vs. The Union of India (UOI),

In that case while dealing with the question whether the termination of the services of a temporary Government servant in accordance with the conditions of his service amounted to "removal" from service within the meaning of Article 311(2), Bose J., delivering the judgment of the Court said that:

In our opinion, Article 311 has no application because this is neither a dismissal nor a removal from service, nor is it a reduction in rank. It is an ordinary case of a contract being terminated by notice under one of its clauses.

The services in India have long been afforded certain statutory guarantees and safeguards against arbitrary dismissal or reduction in rank. u/s 240, Government of India Act, 1935 the safeguards were limited to those two cases. Under the present Constitution, a third was added, namely removal from service. In order to understand the difference between "dismissal" and "removal" from service, it will be necessary to turn to the Rules which governed and with modifications still govern, the "services" in India because of Article 313 of the Constitution." "Part 12 of the Civil Services (Classification, Control and Appeal) Rules relating to conduct and Discipline includes Rule 49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number and include censure, suspension, reduction in rank, removal from service and dismissal from service. The Act of 1935 selected only two of these possible penalties as serious enough to merit statutory safeguards, namely reduction in rank and dismissal from service. The Constitution has added a third to the list. The distinction which is drawn between the two is explained in Rule 49. There is first removal from service "which does not disqualify from future employment" and there is next dismissal from service "which ordinarily disqualifies from future employment.

Then follows an Explanation:

The discharge

(c) of a person engaged under contract(sic) accordance with the terms of his contract, (sic)not amount to removal or dismissal within meaning of this rule.

These terms are used in the same sense(sic) Article 311. It follows that the Article ha application here.

In view of this decision of the Supreme Court, no useful purpose would be served(sic) considering cases like - Ishardass Mehta v. State of Pepsu AIR 1952 Pepsu 148 (C) Shambhu Dayal v. Patiala and East P(sic) States Union AIR 1952 Pepsu 152 (D) and Anup Singh v. State of Pepsu AIR 1953 P(sic)24(E), where it has been held that Article 311 (sic) is meant to cover all kinds of cases irrespect(sic); of the fact whether a man''s services are (sic) nated because of his misconduct or otherwise that the terms "dismissal" and "removal" used in Article 311(2) in their ordinary meaning.

Learned Counsel for the Petitioner did(sic) dispute the principles reproduced above, w(sic) regard as so basic that they cannot be over (sic)without falling into error while dealing with(sic) of civil servants complaining that they have removed, reduced in rank or dismissed in co (sic) vention of Article 311(2). Counsel for the Petitioner felt considerable difficulty in showing that (sic) applicant''s case fell within Article 311(2). He, ever, urged that the applicant''s retirement not in the normal course but by way of pe(sic) and that it amounted to his ''removal(sic) service'' under Article 311(2). It was said (sic)under the Gwalior State Civil Service (sic)which were in force when the applicant joined(sic) service, he could have continued in service till(sic)" was sixty or till he had completed thirty y of service and that in any case under Rule. the Madhya Bharat Fundamental Rules, which came into force on 1-10-1951, the Petitioners (sic)entitled to be continued in service till he reach(sic) the normal retiring age of fifty-five; and that (sic)therefore, the Government framed a rule for the retirement of the civil servants before the age(sic) superannuation and retired the Petitioner in(sic) sequences of the rule, the retirement would be-(sic)not in the normal course but by way of pen(sic).

Learned Counsel for the applicant pointed (sic)that Clause(g) of Rule 6, Madhya Bharat (sic)Services (Punishment and Appeal) Rules 1950 it stood when the applicant was retired, (sic)treated "termination of appointment before (sic)age of superannuation" as a penalty. I am (sic)to accept the contention that the Petitioner retirement from service amounts to his (sic)"r from service within the meaning of Article 311 (sic) Once it is recognised, as I think it must be,''(sic) civil servants hold office at the pleasure of(sic) President, Governor or the Rajpramukh, (sic) case may be, and the State has the power(sic) terminate their employment at pleasure at(sic) time for any reason stated or unstated, that(sic) of the State cannot in any way be abridge(sic) controlled or clogged by any rule made by(sic) Government or a department of the State regard to the age of retirement.

The rules referred to by the learned Counsel(sic) the Petitioner did no more than inform the (sic)cant of the general conditions of his service(sic) rules only told the applicant that he would(sic) to retire at a particular age. The rules did(sic)mean that the applicant was appointed definite period, and not at the pleasure of the head of the State; the rules did not give to the applicant any statutory indefeasible right to remain in service till that ago or make his appointment like that of the Judges of the Supreme Court and High Courts, the Auditor General or the members of the Public Service Commission as one during good behaviour.

If the argument of the learned Counsel for the Petitioner is accepted, it would in effect mean that every person entering the service of the State who is told before he enters that his retiring age will be so and so, could claim that he Alias a statutory or contractual right to remain in service till that age, and this would in effect override the provisions embodied in Article 310 that civil servant of the State holds office at the pleasure of the head of the State. I can, therefore, see no illegality in a rule framed by the Government, directing the retrenchment of civil servants before the age of superannuation, whether it be to carry out a policy of retrenchment or to evolve a system of service out of a multiplicity of cadres that had grown in the Covenanting States of the Union or to secure an all-round and general eidciency in the service. Any order of retirement before the age of super-mutation(sic) pursuant to such a policy of the Government would be a retirement in the normal course and not by way of penalty so as to amount to "removal" within the meaning of Article 311(2). So far as authorities are of assistance, I find considerable support for the view I have taken in the decisions of - Kewal Mal Singhi Vs. Heta Ram and Others, ; - '' Varadaraja Iyer v. State of Travancore and Cochin AIR 1953 TC 140 (G); - Ramesh Chandra Chatterjee Vs. Director General of Observatories and Another,

The contention that Clause (g) of Rule 6, Madhya Bharat Civil Services (Punishment and Appeal) Rules 1950 as it stood on the date of the Petitioner''s retirement regarded "the termination of appointment before the age of superannuation" as a penalty and that, therefore, the applicant''s retirement amounted to a removal covered by 311(2) may be disposed of by saying that said rule itself treated retirement before the of superannuation as something different from the penalty of "removal from service" and at Article 311(2) does not afford any protection against the penalty of retirement before the age of (sic) superannuation. The difference between the (sic) forms of penalties lies in the right of the (sic) servant to get a pension. Whereas a person (sic) before the age of superannuation is entitled to a proportionate pension, a person (sic) moved from service has no right to a pension. Under Rule 7 of the Pension Manual a person (sic)moved from service may be paid compassionate (sic) allowance but that is solely at the discretion of (sic) Government.

Counsel for the Petitioner next contended (sic) the order of the applicant''s retirement (sic)not mention the category in which the applicant was included for purposes of retrench (sic) and as Sub-clauses 1 and 3 to 7 of Clause (sic) of para 1 of the principles of retrenchment (sic)on 15-12-1943 were not applicable to his (sic)must be taken that the applicant was (sic) under Sub-clause 2 of Clause (a) of para 1(sic) one whose record of service was consistently (sic) and as such retired before the age of super(sic) and that, therefore, his retirement was (sic)removal from service. I do not see how even (sic) is assumed that the applicant was compulsorily retired because his record of service was consistently bad, the conclusion follows that his retirement amounted to "removal from service" within the meaning of Article 311(2). To me it seems that the argument of the learned Counsel entirely ignores the distinction drawn by Rule 6(g), Madhya Bharat Civil Services (Punishment, and Appeal) Rules 1950 as it existed when the Petitioner was retired, between the penalty of "termination of appointment before the age of superannuation" and the penalty of "removal from service".

The distinction between the two forms of penalties was not based on the reasons for the order of compulsory retirement. If under the Madhya Bharat Civil Services Rules, termination, of employment before the age of superannuation, is not the same thing as removal from service, then it surely does not become "removal" merely because the order of compulsory retirement was passed for one reason or the other. Since the decision of the Supreme Court in - Satish Chandra Anand Vs. The Union of India (UOI), '',it is plain that the Petitioner can invoke the aid of Article 311(2) only if he shows, that the order of his retirement was on the terms of Rule 6, Madhya Bharat Civil Services (Punishment and Appeal) Rules 1950, a "removal from service". This he has not been able to do. As I have said earlier, if compulsory retirement is not removal from service, then the applicant cannot get any relief under Article 311(2) even if under the Madhya Bharat Civil Service Rules compulsory retirement is regarded as a penalty.

During the course of his arguments, the learned Advocate-General referred to Article 16 of the Covenant creating the United States of Gwalior, Indore and Malwa (Madhya Bharat) and said that under that article the Madhya Bharat State was given the right to decide whether the Petitioner should be continued in service or whether he should be discharged from service on payment of reasonable compensation and that merely because the applicant continued in service after 28-5-1948 for sometime till the Government took, a decision about the Petitioner''s continuance in service, it could not be maintained that the Petitioner had been absorbed in the integrated services of Madhya Bharat and that, therefore, he could not be retrenched.

Before us learned Counsel for, the Petitioner did not rely on Article 16 of the Covenant and addressed no arguments on the protection given by that article. I do not, therefore, find it necessary to deal with the nature of guarantee given by Article 16 to the permanent members of the public services of the Covenanting States except to say that the construction put on Article 16 by the learned Advocate-General is supported by the decision of the Rajasthan High Court in - ''AIR 1952 Raj 17 (F)'' and is in accord with what I myself would have said if it had been necessary for me to express any opinion on that article.

In my judgment the Petitioner''s retirement, before the age of superannuation is not removal from service within the meaning of Article 311(2) of the Constitution.

This application must, therefore, be refused, leaving the parties to bear their own costs.

Chaturvedi, J.

I agree.