Shri Nand Kishore Vaid vs Punjab State and another

Dua, J.—Nand Kishore Vaid has filed this petition under Article 226 of the Constitution claiming to be a permanent Government servant with 20 years of service to his credit. He joined the Patiala State service as officiating Octroi Muharrir in May, 1941 and was confirmed in August, 1942. After getting some training in the Indian Income Tax Department at Ambala, he was appointed as Second Assistant in the Income Tax Department in the erstwhile Patiala State. On the formation of Pepsu State, he was integrated in the junior scale service of the new State and served as an Assistant from 6th October, 1955 and was duly confirmed as such with effect from 1st September, 1956. On the merger of Pepsu with the State of Punjab, he was integrated as an Assistant in the Punjab Civil Secretariat at Chandigarh. According to the averments in the writ petition, the petitioner discharged his duties honestly, diligently and to the general satisfaction of his superiors, earning his increments regularly right up to 1st January, 1961. Stress has been laid in the petition that the petitioner used to be very independent in carrying out his work and that this attitude sometimes earned for him the displeasure of his superior officers. It has also been pleaded that till the end of March, 1958, no adverse report had ever been given to the petitioner except on one occasion in 1951 and that this was also due to some misunderstanding. In 1957-58 according to the petition, the authorities wanted to appoint one Shri Karam Chand as an Officer on Special Duty, but his service record being inferior to that of Shri Sewak Singh, the petitioner naturally brought out this fact in his notings. Since the superior officers did not feel pleased with the petitioner action, he was informally warned about its consequences. In 1957-58, 1959-60, there was, therefore a deliberate effort on the part of the authorities to find fault with the petitioner''s work and as a matter of fact he was entrusted with much heavier work with the object of creating difficulties in the efficient and peaceful discharge at his duties. The petition then proceeds to state that in August, 1960, a show cause notice was served on the petitioner to explain why he should not be compulsorily retired from service under rule 5.32 of the Punjab Civil Services Rules Volume II, the main charge against him being his so called inefficiency and malingering habits. The petitioner in his letter to the Additional Chief Secretary requested for an opportunity to explain things personally. In December, 1960, he received a memorandum dated 15th December, 1960 in which he was directed to attend the office of the Assistant Secretary to the Punjab Government on 19th December 1960. On the appointed date, the petitioner attended the office of the Assistant Secretary, who directed him to his Superintendent, who in turn asked the petitioner to want outside the Committee room. On going there, the petitioner was called by the Chief Secretary, who asked him as to why his superior officers were annoyed with him. According to the petition, this was the only question put to the petitioner who asked for an opportunity to submit true facts-adding at the same time that he had always served the Government conscientiously, according to law and the rules and that it was not possible to please everybody. The interview according to the petitioner, thus abruptly ended.

On 20th December 1980, the petitioner asked for an opportunity to place all the relevant facts before the Chief Secretary, respondent No. 2, who, however, without giving any further chance, communicated to the petitioner the decision of the Government to retire him compulsorily. The retirement order though dated 6th January 1961, was communicated to the petitioner on 16th January 1961.

On 6th February 1961, the petitioner appealed to the Chief Minister against the order passed by the Chief Secretary but this representation was also forwarded to the Chief Secretary and the petitioner was directed that further correspondence should be addressed to him. The petitioner, in these circumstances waited upon the Chief Secretary and explained his case personally. The Chief Secretary promised to reexamine the case and on 20th February 1961 the petitioner also addressed a further communication explaining the facts. According to the petition no action seems to have been taken by the Chief Secretary nor has there been any reply to the petitioner''s representation.

The petitioner also sent a memorial to the Governor, but the same appears to have been forwarded to the Chief Secretary and on 9th June 1961, the petitioner was informed that the Governor had rejected his memorial.

In March, 1961, according to the petition the Assistant Secretary to the Government sent a memorandum to the petitioner asking for certain information in respect of an alleged leave taken by him in March, 1960. The petitioner has explained that as a matter of fact he had applied for 30 days'' leave on the ground that his ancestral house had fallen down, but no leave was granted and the petitioner was not allowed to proceed on leave. It has also been stated that the allegation that the petitioner had been taking leave too frequency was also false and that the record would show that the petitioner rarely went on leave and that considerable leave earned by him had remained un-availed. It is on these allegations that the present petition has been filed challenging the legality of the order compulsorily retiring the petitioner.

In the written statement, a preliminary objection has been raised that Article 311 is not attracted in the case of compulsory retirement which is not a penalty within the meaning of this Article. It has also been urged that the petitioner has a remedy of a civil suit open to him which is more appropriate because the case involves disputed questions of fact. On the merits, it has been denied that the petitioner''s conduct has been satisfactory throughout, and, it has been expressly stated that on different occasions the petitioner had to be warned and censured for not pulling his weight and shirking work and for general inefficiency. The petitioner is also stated to have earned a number of adverse reports since 1958. It has further been pleaded that a reasonable opportunity to show cause against the proposed action under rule 5.32 of the Punjab Civil Services Rules, Volume II was duly given to the petitioner with a view to ascertain his suitability for continuing in service and not for imposing any penalty within the purview of Article 311 of the Constitution The representation made by the petitioner in September, 1960, was according to the reply, duly considered and placed before the Standing Committee appointed by the State Government to screen all cases of compulsory retirement. A copy of the notification dated 1st April 1958, appointing the Standing Committee for compulsory retirement has been attached with the written statement as Annexure K-1. The petitioner, according to the reply was given full and reasonable opportunity to place his version before the Committee. It has been denied that the petitioner asked the Standing Committee to give him a further hearing when he appeared on 19th December 1960. It has also been pleaded that the Chief Secretary duly considered the petitioner''s representation and after personally hearing the petitioner and examining the case rejected it because there was no force in the points raised. The memorial submitted to the Governor was also, according to the written statement, duly considered and rejected by the Governor. The Governor, it is admitted obtained comments from the Chief Secretary on the memorial submitted by the petitioner before finally forming his opinion. With regard to the question of 30 days'' earned leave, it has been pleaded that the papers were misplaced and it was in order to ascertain the true position that a reference was made to the petitioner. After verifying the position, the papers were duly filed. It has also been pointed out that the petitioner had definitely and expressly opted for the pension rules etc., as contained in the Punjab Civil Services Rules, Volume II, as amended upto 24th March 1958 and as a matter of fact a copy of the letter opting for the Punjab Government pension rules signed by the petitioner has been attached with the written statement as Annexure-II. The rule regarding compulsory retirement after 10 years of qualifying service has thus been pleaded to be applicable to the petitioner''s case.

The learned counsel for the petitioner has in the course of arguments urged four points in support of the petition. To begin with, the counsel has concentrated on the argument that the petitioner is not governed by rule 5.32 of the Punjab Civil Services Rules, Volume II and that he had only agreed to be governed by the new pension rules contained in Appendix II at page 245 of this Volume. These new pension rules, according to the counsel, do not contain any provision similar to rule 5.32 which occurs at page 757 of this Volume. I am wholly unable to accede to this contention. The option, a copy of which has been attached with the written statement read along with Annexure-M (attached by the petitioner with his rejoinder to the written statement) leaves no doubt that the Punjab Government pension rules referred to in the option are the whole body of rules connected with the subject of pension as contained in Volume II of the Punjab Civil Services Rules. That this is so also finds support from the fact that Appendix II has to be read in conjunction with rule 1.2(b) and so read these new pension rules would apply to Government servants who entered Government service before (sic) June 1951.

The second point raised on behalf of the petitioner is based on note (1) shown below rule 5.32 of the Punjab Civil Services Rules Volume II. The contention advanced is that according to this note, the power to retire compulsorily has been retained by the Government and that the use of the word "retained" presupposes the prior existence of such power. If no such power has been shown to exist either under the express provision of a statute or under a binding contract, then the application of this note is not attracted. That the word "retained" presupposes the prior existence of the power retained appears to me to be a sound contention, but the further argument that it is incumbent on the State positively to prove that such a power was conferred either by a statute or by virtue of a binding contract, I find myself unable, as at present advised, to uphold. No principle or authority has been cited in support of this submission, nor has the counsel drawn our attention to any provision of law which confers on the petitioner the right to continue in service, if the State does not require his services any more. There is of course no binding agreement conferring any such right on the petitioner at least none was pointed out to us. Without a binding precedent or other convincing argument, I cannot persuade myself to quash the impugned order as contrary to law and unauthorised on the basis of this submission.

It has next been submitted that Rule 9.1 of the Pepsu Regulations contained in Chapter IX, as it existed before the notification of 1960, by which the power to retire compulsorily after 10 years of service was included in the rules, governs the present case and in the background of this Rule compulsory retirement before 25 years of service must be considered to amount to wrongful removal, hit by Article 311 of the Constitution. This contention ignores the notification of 30th September, 1957 by means of which it had become permissible to compulsorily retire a person after 10 years of service. When once it is held that the petitioner had opted for being governed by the Punjab Civil Services Rules, Volume II, as amended upto 24th March, 1958, there can scarcely be any question of Pepsu Rule 9.1 operating to the exclusion of the Punjab Rules. As a matter of fact, the amended Punjab Rules would also seem to meet the petitioner''s second point already disposed of. This rule does clearly contemplate the existence of power in the Government to retire the petitioner compulsorily after ten years of service. Shri Awasthy in the course of arguments on the third point referred us to Parshotam Lal Dhingra Vs. Union of India (UOI), Khem Chand Vs. The Union of India (UOI )and Others, and Pt. Sunder Lal Vasudeva Vs. State of Punjab, , a decision by G.D. Khosla J. (As he then was). From the Supreme Court''s decisions support has been sought for the view that the compulsory retirement in question amounts to removal from service and is thus contrary to Article 311 of the Constitution, and from the Single Bench decision of this Court, support is sought for the submission that new rules cannot operate retrospectively to the petitioner''s prejudice without obtaining his consent.

I do not think these decisions in any manner advance the petitioner''s case. All the three decisions are distinguishable on facts and indeed the observations of G.D. Khosla J. (as he then was) merely conveyed extreme doubts entertained by him on the retrospective application of new rules, in the absence of the consent of the employee concerned. This doubt appears to me to have been entertained by the learned Judge merely on first impression and not on a sufficient probe into the problem posed or on any proper discussion of the point. No decision on the subject was noticed nor were the various aspects of the problem adverted to. The learned Judge''s attention was apparently not even drawn to the oft-quoted ruling of the Privy Council in Ranga Chari v. Secretary of State ILR 1937 Mad. 517, or to Article 309 of the Constituting the scope and effect) of which would prima facie appear to me to have some bearing on the question. In the case in hand, however, the option exercised by the petitioner clearly seems to mo to bring his case within the purview of the Punjab Rules as amended upto 24th March, 1958. The present case appears to me to be covered by the ratio of the decision in the The State of Bombay Vs. Saubhagchand M. Doshi, , a case to which our attention has been very fairly and properly drawn by Shri Awasthy.

On behalf of the respondents, we have been referred to Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), and Dalip Singh Vs. The State of Punjab, also to The State of Bombay Vs. Saubhagchand M. Doshi, in support of the contention that compulsory retirement does not amount to removal as contemplated by Article 311 of the Constitution. In Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), case S.K. Das J. (as he then was), while speaking for the Court after exhaustively considering the implication of the word ''removal'' and the consequences of compulsory retirement in an illuminating discussion stated the conclusion in these words:-

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 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.

In The State of Bombay Vs. Saubhagchand M. Doshi, case Venkatarama Aiyar J. also speaking for a Bench of five Judges explained the true ratio decidendi of the decision as follows:-

Under the rules, an order of dismissal is a punishment laid down on a Government servant, when it is found that he has been guilty of misconduct or inefficiency or the like, and it is penal in character, because it involves loss of pension which under the rules would have accrued in respect of the service already put in. An order of removal also stands on the same footing as an order of dismissal, and involves the same consequences, the only difference between them being that while a servant who is dismissed is not eligible for re-appointment, one who is removed is. An order of retirement differs both from an order of dismissal and an order of removal, in that it is not a form of punishment prescribed by the rules, and involves no penal consequences, inasmuch as the person retired is entitled to pension proportionate to the period of service standing to his credit.

A little lower down, we find the following exposition:-

The fact to be noted is that while misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held and there is no duty to hold an enquiry is only for the satisfaction of the authorities who have to take action in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry thereon must be formal, and must satisfy the rules of natural justice and the requirements of Art. 311(2). It should be added that questions of the above character could arise only when the rules fix both an age of superannuation and an age for compulsory retirement and the services of a civil servant are terminated between these two points of time. But where there is no rule fixing the age of compulsory retirement, or if there is one and the servant is retired, before the age prescribed therein, then that can be regarded only as dismissal or removal within Art. 311(2).

In the third decision by the Supreme Court in Dalip Singh Vs. The State of Punjab, case again, a bench of five Judges speaking through K.C. Dass Gupta J. approved of and followed the earlier two decisions just mentioned which were scrutinised and explained. The legal position was stated thus:-

This brings us to the main contention in the case viz., that the compulsory retirement of the appellant under Rule 278 of the Patiala State Regulations was a removal from service within the meaning of Art. 311 of the Constitution. The question whether the termination of service by compulsory retirement in accordance with service Rules amount to removal from service was considered by this Court in Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), and again recently in The State of Bombay Vs. Saubhagchand M. Doshi, . The court decided in Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), that two tests had to be applied for ascertaining whether a termination of service by compulsory retirement amounted to removal or dismissal so as to attract the provisions of Art. 311 of the Constitution. The first is whether the action is by way of punishment and to find that out the Court said that it was necessary that a charge or imputation against the officer is made the condition of the exercise of the power; the second is whether by compulsory retirement the officer is losing the benefit he has already earned as he does by dismissal or removal. In that case in fact a charge-sheet was drawn up against the officer and an enquiry held but ultimately the order of compulsory retirement was not based on the result of the enquiry. The Court pointed out that the enquiry was merely to help the Government to make up its mind as to whether it was in the public interest to dispense with his services so that the imputation made in the charge sheet was not being made the condition of the exercise of the power.

Nothing cogent or convincing has been urged at the bar to persuade me to hold that the present case is not covered by the ratio of the three Supreme Court decisions just noticed.

At this stage, it would be relevant also to notice briefly the provisions of the Constitution relating to the services under the State. Article 309 provides for legislation regulating the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of a State. A proviso to this Article empowers the Governor or such person, as he may direct to make rules regulating the recruitment and conditions of service until legislative enactment is made, and such rules are to have binding effect, subject of course to any legislative enactment just mentioned. Article 310 makes the tenure of office of persons serving a State subject to the pleasure of the Governor, but as the opening words of this Article clearly show it is subject to the express provisions of the Constitution, and Article 311 is one instance of the exceptions provided by the Constitution. In Article 311 the words ''''dismissed", "removed" and "reduced in rank" appear to have been used in a special technical sense and the distinction between the words "dismissal" and "removal" as used in this Article, have been the subject matter of discussion by the Supreme Court in more cases than one. Some of them have already been noticed by me earlier in this judgment. "Removal", to fall within the purview of Article 311, should be by way of punishment or penalty, and, looked at from this point of view compulsory retirement of the petitioner would not per se amount to removal, and, I have not been persuaded by the petitioner to hold on the existing material of this record that the petitioner''s compulsory retirement is by way of punishment or penalty.

In the light of the foregoing discussion this petition fails and is hereby dismissed. In the circumstances of the case, however, I would not burden the petitioner with costs.

Tek Chand, J.

I agree.