1. This is an appeal preferred by the Government of Andhra Pradesh, represented by the Secretary to Government, Home Department, Hyderabad, against the decision of the II Additional Chief Judge, City Civil Court, Hyderabad, in O. S. No. I of 1958 on his file.
2. This appeal raises the question whether the order of compulsory retirement passed against Mo-hammed Mominuddin, Ex-District Magistrate and Judge (hereinafter referred to as the respondent) by the Government of Hyderabad is illegal, ultra vires, and null and void. The trial Judge declared that the said order is illegal, that the respondent must be deemed to be in service till 31-5-1960, the date of his superannuation, and, as a consequence thereof, granted a decree for arrears of salary and other reliefs.
3. Being aggrieved by this decision, the Gov-ernment of Andhra Pradesh, have preferred this appeal.
4. For a proper appreciation of the questions in controversy it is necessary to state the material facts : The respondent was appointed as a Munsif-Magistrate in the Hyderabad Judicial Service, in 1929 on an initial salary of Rs. 325/- per month in the grade of Rs. 400/-. Later he was prompted as a First Class Munsif, and in course of time he was made the Additional District Judge and Magistrate on 28-6-1949 in the grade of Rs. 900-50-75-1500. The High Court of Hyderabad posted him to Warangal as Additional District Judge and Magistrate, and he took charge on 2-7-1949. A few days afterwards. Mr. Khaja Moinud-din, a legal practitioner of Warangal, submitted a petition to the Bar Association of Warangal, and also to the High Court, complaining that when he sent an application through the Court cleric, Nara-hari, to the respondent, who was then in his chambers, for permission to take the signatures on Vakalat of certain accused persons who were being remanded to jaii, the respondent abused him in indecent and filthy language. Suryanarayana Rao, J., of the Hyderabad High Court commenced the enquiry into the said complaint.
At the request of the respondent, another learned Judge, Shirpat Rao: J., was asked by the learned Chief Justice to join in holding the enquiry. The evidence adduced on both sides was recorded. The Administrative Bench of the High Court came to the conclusion (vide Ex. B. 2 dated 29-9-1949) that the respondent was not capable of discharging his judicial duties maintaining good relations with litigants and the pleaders, that he took greater pleasure in asserting his authority than in discharging his responsibilties which was not the way to administer justice, and that in the interest of the judiciary it was necessary to retire him on pension to which he was entitled, as there were no complaints against him regarding his honesty. The learned Chief Justice agreed with their opinion, and made a proposal accordingly to the Government.
5. The then Military Governor of Hyderabad, by his proceedings Ex. A.20 dated 26-11-1949, suggested that the respondent might be severely warned and his annual increments stopped indefinitely till ho obtained better confidential reports from his superior officers. Thereupon, the learned Chief Justice addressed the Government for a reconsideration of the matter. By then, the rule of the Military Governor carne to an end, and civil administration was set up. The Civil Cabinet by its decision, Ex. A.44 dated 4-2-1950 ordered compulsory retirement.
6. This was communicated by the letter Ex. A.2 dated 9-2-1950, and the same was received by the respondent on 16-2-1950. The respondent then submitted a petition to the Chief Minister Ex. A.63 dated 19-2-1950 praying for reinstatement. The respondent also submitted a petition. Ex. A.20 dated 17-4-1950 to the Rajpramukh with the same prayer. The appeal by the respondent addressed to the Chief Minister as well as to the Secretary to the Government of India, Ministry of States appears to have been referred to the Public Service Commission. The public Service Commission by its letter Ex. A.31 dated 22-9-1950 informed the Chief Secretary that compulsory retirement before the age of superannuation amounted to removal from service, that it was, therefore, necessary to follow the procedure laid down in the Constitution and give an opportunity to the respondent to show cause against the action proposed, and that specific charges should also be drawn up.
By a subsequent letter Ex. A.32 dated 10-10-1950, the Public Service Commission, on further consideration of the case, summarily rejected the appeal under the Hyderabad Civil Service Classification, Control and Appeal) Rules and closed the case finally on the ground that the appeal petition was couched in very disrespectful language. It, however, made an observation that compulsory retirement before the age of superannuation amounted to removal from service, and the- procedure under the Constitution should be followed. There upon, another, appeal petition, Ex. A.69 dated 21-10-1950 was preferred to the Chief Secretary, requesting that the view of the Public Service Commission regarding the compulsory retirement may be accepted by the Government, or his revised ap-peal memo may be sent to the Commission for reconsideration of their order in Ex. A.32. The res-pondent sent another petition, Ex. A-68 dated 20-12-50 to the Chief Secretary, praying that necessary action may be taken. The Government of Hyderabad, by Ex. A.33 dated 9-1-1951, informed the Registrar of the High Court that the appeal of the respondent had since been rejected by the Public Service Commission, and the Government has decided to finally close the case. There was a further appeal by the respondent, Ex. A.45 dated 17-2-1951, to the Chief Minister, again praying for reinstatement.
7. The respondent filed the present suit, in forma pauperis. On 13-3-1952, which was subsequently registered as O. S. No. 1 of 1958 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad. The case of the respondent, shortly stated, was as follows:- The procedure adopted by the Administrative Bench of the High Court was neither legal nor proper, that he was not granted copies, and that he was not given a reasonable opportunity to show cause against the proposed action as required by Article 311(2) of the Constitution. His services were terminated not upon the ground alleged in the complaint of the legal practitioner of Warangal, but on a different charge, viz., that the record of his service was bad, and that he was not given an opportunity as contemplated by Article 311.
It was also averred that the Civil Cabinet ought to have accepted the view of the Public Service Commission, and it erred in reversing the decision of the Military Goyernor. The procedure adopted by the Public Service Commission was also improper and illegal. The procedure adopted by the High Court, the Public Service Commission and the Government was not in conformity with the relevant provisions of the Constitution of India, and that the Government's decision about the respondent's compulsory retirement ten years before superannuation was illegal, wrongful and ultra vires, and had caused him loss in salary, periodical increments and the amount of pension. He appended a statement of account to the plaint by giving particulars of the loss in emoluments suffered by him. Hence he prayed for a declaration to that effect and for a decree for arrears oi pay together with increments from the date of his compulsory retirement to the date of superannuation; viz., 31-5-1960. He calculated the loss of emoluments for ten years with interest at 6 per cent, in all amounting to Rs. 1,79,845-4-0.
He also prayed for a decree for pension on ten years' basis, capitalising it for ten years after superannuation with interest at 6 per cent amounting to Rs. 81,738/-. He further claimed damages for wrongful dismissal amounting to Rs. 50,000/-, and costs of the suit.
8. The State resisted the suit on a number oi grounds. The respondent was appointed as Munsif Magistrate and was promoted in service only on condition of his good behaviour. The Administrative Bench of the High Court, after a detailed enquiry, found that the complaint of the legal practitioner was proved beyond doubt. The said enquiry was legally and properly conducted, and it is not open to the Court to go into the merits or otherwise of the said enquiry and the disciplinary action taken by the High Court. Ample and reasonable opportunities were given to the respondent to show cause against the action proposed to be taken. But, as would be evident even from his conduct during the enquiry, he was incorrigible and beyond reformation, and hence the Administrative Bench, taking into consideration his previous record and behaviour, was forced to take action against him as he proved himself unfit to hold any judicial post. The Administrative Bench considered the further representation of the respondent, but found no grounds to vary its decision.
Article 320 (3) (c) of the Constitution has no bearing as the enquiry was concluded, and the High Court recommended compulsory retirement even before the Constitution came into force. Prior to the Constitution, under the Public Service Commission Regulation No. 4 of 1356 Fasli, and Political Department Notification No. 1 of 1356 F. it was not necessary to consult the Public Service Commission before taking disciplinary action against judicial officers, nor was it the practice. Nonetheless, the Public Service Commission was consulted and it rejected the appeal. The respondent has no cause of action. On more than one occasion the higher authorities, in view of his bad record, held that he was unfit to hold a judicial post, and on many an occasion the Administrative Bench of the High Court reprimanded and warned him.
In these circumstances the question of alleged loss of salary, or periodical increments, or pension does not arise, and the respondent cannot claim the same. The respondent's tenure of service being always at the pleasure of the Government, his retirement, even assuming it to be wrong or illegal, cannot entitle him in law to claim salary or damages against the Government. The cause of action did not arise on 31st July, 1951, as alleged in the plaint, but arose on the date when the order of his retirement was actually served on him. The correctness of the schedule (statement of account) annexed to the plaint was not admitted, and it was alleged that he was not entitled to the sums mentioned therein. The State, therefore, prayed that the suit may be dismissed.
9. On these averments, the trial Judge framed a number of issues. He found that the Hyderabad High Court Act, III of 1337 F., was in force till the Andhra Pradrsh High Court was formed on 1-11-1956, that the Chief Justice by Ex. A.n dated 25-7-1949 ordered that Suryanarayana Rao and Shripat Rao, JJ., should hold the enquiry under Section 12 of the Act, and that the enquiry was conducted thereafter accprdingly, and that there was substantial compliance with the provisions of Sections 12 and 13 of that Act. He also found that it must not be obligatory on the. High Court to move the Government to take steps under the Public Servants' Enquiries Act, III of 1314 F., as it was not applicable to the case. The trial Judge took the view that the Hyderabad Civil Service (Classification, Control and Appeal) Rules came into force only in 1952, and that there were no such rules in 1949 when the enquiry started.
But, following the decision of a Beech of the Hyderabad High Court in Hire Lilaram Chablani v. State of Hyderabad, (S) AIR 1955 Hyd 48 he was of the opinion that the proceedings against a delinquent officer are analogous to criminal proceedings in summons cases, and that as the charges were not framed against the respondent and a copy oi the complaint against him was not furnished, he had no reasonable opportunity to show cause against the order passed, or to defend himself in the enquiry, and that consequently the enquiry by the High Court was vitiated. The City Civil Judge held that the omission to consult the Hyderabad Public Service Commission before passing the order of compulsory retirement did not affect its validity. He further found that the respondent was entitled to the protection conferred by Article 311 (2) of the Constitution as pointed out by the Public Service Commission, and inasmuch as the procedure indicated in the Article was not complied with the order of compulsory retirement could not stand.
He, however, held on additional issue No, 1 that the Civil Cabinet was competent to revoke the earlier decision of the Military Governor in Ex. A.20, as it was only provisional and not communicated to the respondent. The learned Judge concluded on issue No. 2 that the order of retirement of the respondent on the ground of bad record is invalid, and that the order of retirement prematurely is illegal, void and ultra vires.
10. On these findings he declared that the order of compulsory retirement is illegal and void. He also declared that the respondent is entitled to such pension as he is entitled under the Rules from 1-6-1950 to be determined by the Government. A decree was eventually passed against the State for Rs. 88,347/_- and interest at 6 per cent, i.e., Rs. 37,197-92 nP. as amended by its order on I. A. No. 1234 of 1962 dated 16-8-1962. i.e., in all Rs. 1,25,544-92 nP., towards loss of emoluments.
11. The contentions raised before us on behalf of the State are: (1) The enquiry against the delinquent officer commenced before the Constitution came into force, and only the final order was passed thereafter, and hence Article 311 does not apply to the case: (2) The service rules in Hydera-bad State provided for compulsory retirement of a civil servant at any age whatsoever, irrespective of the length of service, and the order in question did not amount to dismissal or removal within the meaning of Article 311, even if it governs the case, and (3) the decree granting declaration regarding pension is illegal.
12. Before considering these contentions, it is as well that the tenure and conditions of service of civil servants in the State of Hyderabad are briefly noticed.
13. Under Section 96B(r) of the Government of India Act, 1935, the persons specified therein held office during the pleasure of the Crown, and under Article 310(1) of the Constitution they held office during the pleasure of the President or of the Governor, as the case may be. The opening pords of Article 310(1) viz., 'Except as expressly provided by this Constitution,' reproduce the opening words of Section 240(1) of the 1935 Act, substituting the word 'Constitution' for the word 'Act'. The exceptions contemplated by the opening words of Article 310(1) quite clearly refer inter alia to Articles 124, 148, 218 and 324. Subject to these exceptions, the Constitution, by Article 310(1) has adopted the English Common Law rule that Public Servants hold office during the pleasure of the President or the Governor, as the case may bo, and has, by Article 311, imposed two qualifications on the exercise of such pleasure. Though the two qualifications are set out in a separate Article, they quite clearly restrict the operation of the rule embodied in Article 310(1). In other words, the provisions of Art. 311 operate as a proviso to Article 3ro(1).
14. Thus the English Common Law rule regarding the holding of office by public servants only during the pleasure of the Crown has not been adopted by the Constitution in its entirety and with all its rigorous implications. Article 311 gives a two-fold protectioa to persons who come within that Article, viz., (1) against dismissal or removal by an authority subordinate to that by which they were appointed; and (2) against the dismissal, removal, or reduction in rank without giving them a reasonable opportunity to show cause against the action proposed to be taken in regard to them. (Vide Parshottam Lal Dhingra v. Union of India, : (1958)ILLJ544SC ). Article 313 of the Constitution provides that until other provision is made in this behalf, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India service or as service or post under the Union or State shall continue in force so far as consistent with the provisions of this Constitution.
15. It would thus be seen that safeguards to civil servants have been embodied in the Constitution, and they are justiciable. It may also be noted that the Constitution is prospective in effect, but not retrospective, unless otherwise provided by the Constitution itself. Article 311 has improved the position of civil servants inasmuch as the guarantee under it extends even to a case of removal. Further, Article 313 gives constitutional sanctity to all the laws in force immediately before the commencement of the Constitu- tion and applicable to any public service so far as they are consistent with the provisions of the Constitution till appropriate laws are made by the Parliament or the State Legislature. The position has thus considerably changed with the advenl of the Constitution.
16. It may also be noticed that whenever there is a breach of a restriction imposed by the Statute, by the Government or the Crown, the matter is justiciable, and the party aggrieved is entitled to suitable relief at the hands of the Court. The Supreme Court in State of Bihar v. Abdul Majid, : (1954)IILLJ678SC , held that there was no warrant for the proposition that the relief must be limited to the declaration that the dismissal was illegal and void and cannot go beyond it, and that to the extent that the rule that Government servants hold office during the pleasure has been departed from by the statute, the Government servants are entitled to relief like any other person under the ordinary law, and that relief therefore must be regulated by the Code of Civil Procedure.
Mahajan, C. J,, held that in India from the earliest times the mode of procedure to proceed against the Crown had been laid down in the Code of Civil Procedure, and the procedure of petition of right was never adopted in this country, and that the same had been the rule in Australia and other Colonies. It was pointed out that the Government of India Act, 1915, provided for the same remedies against the Secretary of State in Council as were available against the East India Company, and that Section was replaced by Section 176(1) of the Government of India Act, 1935. The learned Chief Justice concluded thus;
'From these provisions it is clear that the Crown in India was liable to be sued in respect of acts, which in England could be enforced only By a petition of right. As regards torts of its servants in exercise of sovereign powers the company was not, and the Crown in India was not liable unless the act had been ordered or ratified by it. Be that as it may, that rule has no application to the case of arrears of salary earned by a public servant for the period that he was actually in office. The present claim is not based on tort but is based on quantum moruit or contract and the Court is entitled to give relief to him.'
17. The tenure and conditions of service of public servants in the erstwhile Hyderabad State may now be noticed. Hyderabad was one of the princely states of India, of which the ruler was His Exalted Highness the Nizam. He was an absolute Ruler, and there were no limitations on his powers. The legislative, executive and judicial powers were all vested in him, and they were supreme. The tenure of public servants was undisputedly at the pleasure of the Nizam. There were, no doubt, some laws, like the Government Servants Misconduct Enquiries Act, III of 1314 Fasli, the Public Servants Departmental Enquiries Regulation.
There existed also some rules for departmental enquiries against the public servants charged with incompetency, corruption or misconduct, like the Public Servants Departmental Enquiries Regulation of 1358 F., and some provisions in the Land Revenue Act (No. VIII of 1317 Fasli) dealing with the departmental enquiries against Revenue Officers, and the Hyderabad Civil Service Regulations promulgated in obedience to H.E.H. the Nizam's Firman dated 25th Ramzan, 1337 Hijri. But those rules did not derogate from the doctrine that the public servant held office during the pleasure of the Nizam and they operated only as administrative directions. Non-compliance with those rules was not justiciable in a civil Court, nor did it entitle a public servant to claim arrears of salary or damages.
18. The change brought about after the Police Action in September 1948, was that tha Nizam delegated the administration of his territory to the Military Governor by his Firman .dated 28th September, 1948. Several other Firmans and Regulations were issued thereafter for the administration of the State. Though, legally speaking, the Nizam continued to be the absolute ruler at the State till the commencement of the Coostitu-tion, the administration was run by the Military Governor and the Chief Civil Administrator, and later on by the Civil Cabinet.
19. On 26th January, 1950, Hyderabad became a Part 'B' State, and a part of the Union of India under Article 1 of the Constitution. According to Article 338, the provisions of Part VI of the Constitution relating to the States specified in Part A of the First Schedule were made applicable in relation to the Spates specified in Part B of the said Schedule subject to a few modifications, one of them being that for the word 'Governor' occurring in that part, the word 'Rajpramukh' shall be substituted. The laws and the Rules passed by the Nizam continued as the 'Laws in force immediately before the commencement of the Constitution', within the meaning of Article 313. It may be noted that the Hyderabad Civil Service Regulations referred to above were replaced by the Hyderabad Civil Service (Classifi-cation, Control and Appeal) Rules of 1952.
20. We shall now examine the contentions on behalf of the Government seriatim.
21. The first contention was that the order of compulsory retirement is not governed by Article 311 of the Constitution, on the ground that though it was passed on 4-2-1950, the enquiry was commenced and concluded by the Administrative Bench of the High Court before the Constitution came into force. This question was considered by the Supreme Court in Jagannath Prasad Sharma v. State of U.P., : (1961)IILLJ166SC . In that case the Governor of Uttar Pradesh appointed a Tribunal for enquiry against the appellant, a Sub-Inspector of Police, before the commencement of the Constitution under the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947. The order of dismissal, was, however, passed affer the Constitution came into force. It was held that the officer was entitled to the projection of Article 311(2). On the facts it was held that there was no substance in the plea of the officer that discrimination was practised by continuing the enquiry under the Tribunal Rules, after the Constitution came into force.
22. A Bench of this Court in Mohammed Hyder v. State of Andhra Pradesh, : AIR1960AP479 , held that the rules of misconduct of Hyderabad Officials, which were in force in 1948 ceased to apply at the time when final action was taken against the petitioner in that case, and that the Government working within the frame work of the Constitution had necessarily to deal with the petitioner according to the Constitution under which it derived its powers, and not only Act No. III of 1314 Fasli, for enquiring into the corrupt practices of Government Officials, which ceased to operate. It was also held that the impugned order, removing the delinquent officers from service was made when the petitioner was a member of the service during the pleasure of the Raj-pramukh of the State, and that the Rajpramukh was entitled under Article 311(2)(c) to deny the opportunity under Article 311(2) when he was satisfied that in the interests of security of the State it was not expedient to give such an opportunity. It may be noted that this is a converse case where the officer contended that Article 311 did not apply by reason of the order of dismissal but the Government contended that it applied, and that under Sub-clause (c) of Clause (2) of that Article reasonable opportunity could be denied by the Rajpramukh.
23. In view of these authorities, we hold that Article 311 governs this case, as the impugned order was passed by the Civil Cabinet of the Hyderabad Government on 4-2-50 after the Constitution came into force.
24. Even so, it was argued on behalf of the Government that the order in question would aoi attract the provisions of Article 311. The contension is that the delinquent officer was not dismissed or removed from service, but was only compulsorily retired as per the rules then in fore, and that a compulsory retirement does not amount to removal from service within the meaning of that Article.
25. In order to better appreciate this contention, it is as well that the impugned order, and the circumstances under which it was passed, are referred to. The enquiry by the Administrative Bench of the High Court, which was the head of the Judicial Department and authorised to hold enquiries, was held not on charges of misconduct or inefficiency. There was a complaint by a Vakil practising in the Court of the respondent that he used the filthiest language when an application was sent to him while he was in chambers. The Administrative Bench recorded evidence on behalf of the Officer as well as on behalf of the Vakil, and held that the allegations in the complaint were proved. The Bench also called for the previous record of the Officer, which was enclosed to the order, and it disclosed that on several former occasions it was found that there were complaints about his intemperate language and discourteous conduct, that in spite of warnings there was no improvement, and that it was also futile to give him any further warnings.
Hence, Suryanarayana Rao, J., concluded that in the interests of justice it was necessary to retire the District Magistrate on pension to which he was entitled. He also recommended the grant of pension because there were no complaints about the honesty against the Officer. Shripat Rao, J., who agreed with him held that the officer was not capable of discharging judicial duties, maintaining good relations with the litigants and pleaders, and that he should be retired on pension. The then Chief Justice perused the decisions and agreed with their opinion, and accordingly made the proposal for compulsory retirement to the Government. The impugned order of the Government, Ex. A.44, runs thus:
'The note of the Home Secretary regarding the compulsory retirement of Mr. Mominuddin, District Judge, Warangal, was considered in view of his bad record it was decided that Mr. Mominuddin should be compulsorily retired on pension as originally recommended by the High Court.'
26. It was argued for the Government that the Hyderabad Civil Service Regulations promulgated by the Nizam in 1337 F., which were in force on the date of the enquiry governed the case, and as per those regulations, it was within the Nizam's discretion to retire any officer compulsorily. Those regulations were the laws immediately in force within the meaning of Article 313 of the Constitution, and the order was therefore valid. The further contention was that even under Article 311 of the Constitution, it was ruled by the Supreme Court that compulsory retirement on a pension to which the officer is eligible does not amount to a removal within the meaning of Article 311 of the Constitution. That being so, the respondent is not entitled to complain that the safeguards provided by it, viz., the opportunity to show cause against the punishment was not given to him.
27. A reference may now be made to the relevant regulations. It may be stated at the outset that the Government Servants (Misconduct Enquiries) Act, III of 1314 Fasli was passed for enquiries into the misconduct of Government servants, and the Public Servants (Departmental Enquiry) Regulation of 1358 F., framed rules for enquiry against such of the public servants as were charged with incompetence, corruption or misconduct, and that neither of them conferred on a delinquent officer the constitutional safeguard provided by Article 311.
28. The learned counsel on both sides admitted that there were no other laws or rules relating to the tenure and conditions of service in the State of Hyderabad of H.E.H. the Nizam, than those found in the Hyderabad Civil Service Regulations, nor were any other Regulations placed before us. These Regulations expressly state that they relate to salary, leave, pension and travelling allowances. Regulation No. 1 itself clearly recites that the Regulations are intended to define the conditions under which salaries, leave, pension and other allowances are earned by service in the Civil Department and in what manner they are calculated, and that they do not deal otherwise than indirectly and incidentally with matters relating to recruitment, promotion, official duties, discipline, or the like. Regulation 7 lays down that except in Chapter XIII (Travelling Allowance Rules) where certain rules ace specifically mentioned to apply to the Prime Minister and Minister of the Council, these regulations are not intended to define the conditions under which their salaries, allowances, pensions, and other rights can be regulated, and each case will be dealt with separately by the commands which His Exalted Highness may issue in that behalf.
29. These regulations therefore make it explicit that they do not deal with the tenure and the disciplinary control of Civil Servants, and that they continued to be at the pleasure of the Nizam. Even the salaries, allowances, pensions and other rights provided for by these Regulations are not justiciable, and are only in the nature of administrative instructions, and each case had to be decided by the commands of the Nizarn, i.e., at his absolute pleasure. Regulation 26 states that the head of the Judicial Department for the purpose of the Regulations is the Administrative Bench of the High Court.
30. Chapter X of these Regulations is entitled 'Pension Rules'. Regulation 239 lays down that ordinarily all officers in Civil employ are entitled to pension under the rules in this Chapter, and it is however open to the Government in the Finance Department to rule that the service of any class of officer does not qualify for pension, and that future good conduct is an implied condition of every grant of pension. Regulation 240 is to the effect that the Government in the Finance Department reserve to themselves the right of withholding or withdrawing a pension or any part of it, for a specified time or for ever, if the pensioner be convicted of serious crime or be guilty of grave misconduct. According to Regulation 242, pension may not be granted to an officer whom it is desired to remove for misconduct or inefficiency. In deserving cases, however. Government in the Finance Department may grant a compassionate allowance not exceeding the pension and admissible if the officer had retired on a Medical Certificate.
31. Section IV of that Chapter is entitled 'Conditions of Grant of Pension.' Regulation , 373 therein states that pension will be divided into four classes, viz., (i) Compensation pension, (2) Invalid pension, (3) Superannuation pension, and (4) Retiring pension. According to Regulation 296, a superannuation pension is granted to an officer entitled or compelled by rule to retire at a particular age. Regulation 297 provides that an officer in superior or in inferior service who has attained the age of 55 may he required to retire on superannuation pension. Regulation 298 reads thus :
'(a) A Gazetted Officer who has attained the age of 55 should ordinarily be required to retire and should not be retained in service except where unquestionable public grounds for retention exist and the Medical Board certifies that he is physically fit to discharge the duties of the post for which his services are retained....................'
A retiring pension, according to Regulation 302, is granted to an officer who can retire or can be made to retire after completing service for a specified period. Regulation 303 gives the option to Government servants in superior and inferior service to retire after completing 25 years qualifying service.
32. Regulation 305 is as follows :
''An officer cannot be given a retiring pension against his will unless the Government in the Finance Department so approves. In ordering retirement on completion of 25 years of service, Government will not be bound to give reasons for retirement.'
Regulation 306-A provides thus :
'If a Government servant, before completing 25 years service or the age of 55 years, resigns or voluntarily applies for retirement, and if the retirement is permitted by competent authority, he will be entitled to the gratuity or pension on the same scale as if he had qualified for an invalid or compensation pension. Pension granted under tbis rule, will be known as 'Proportionate Pension'. This special concession will apply to those who put in their applications, on or after 1st October 1949, and before 1st January, 1950'.
33. The right to retire a person against his will even before completing 25 years of service on a retiring pension was given to the Government, subject to the condition that the reasons for retirement were given, and the Finance Department agreed to it. It may be mentioned that in the instant case the Officer who put in about 21 years of service was given pension according to rules, and it is not suggested that the Finance Department had not given its approval to it. The reasons for compulsorily retiring him were given by the Administrative Bench. That a compulsory retire-ment was provided for by these Regulations would also appear from Regulation 335, which provides that in the case of an officer in superior service who retires before he is 55 years of age, it must be stated in the column for 'any other remarks' on the third page of the application for pension, whether the retirement is compulsory or optional; and when compulsory, the order sanctioning retirement must be quoted and cause of inefficiency specified.
34. In view of the foregoing discussion, wahold that Regulation 305 permitted an officer beingcompulsorily retired on pension even before thecompletion of 25 years of service, and that therequirements thereof were satisfied in the instantcase.
35. The decisions of the Supreme Court on the question whether compulsory retirement amounts to a dismissal or removal from service within the meaning of Article 311 may now be considered.
36. The leading case in Shyamlal v. State of U.P., : (1954)IILLJ139SC , S. R. Das, J., (as be then was) speaking on behalf of the Supreme Court, held that under the Constitution removal and dismissal stand on the same footing except as to future employment and that removal is but a species of dismissal. Removal, like dismissal, no doubt brings about a termination of service, but every termination of service does not amount to dismissal or removal. It was therefore held that Article 311 does not apply to all cases ol termination of service. It was further laid down that their can be no doubt that removal, using the term synonymously with dismissal, generally implied that the officer was regarded as in some manner blameworthy or deficient, that is to say, that he had been guilty of some misconduct or was lacking in ability or capacity or the will to discharge his duties as he should do, and the removal is founded and justified on some ground personal to the officer.
Such grounds, it was pointed out, involved the levelling of some imputation or charge against the officer which might conceivably be controverted or explained by the officer, and that there was no such element of charge or imputation in the case of compulsory retirement. Rule 49 of the Civil Services (Classification, Control and Appeal) Rules clearly indicates that dismissal or removal . is a punishment. It involves loss of benefit already earned, but an officer who is compulsorily retired does not lose any part of the benefit that he has earned. On compulsory retirenvnt he will be entitled to the pension etc., that he has actually earned, and there is no diminution of the accrued benefit.
37. According to this decision, the two tests to be applied for ascertaining whether, a termination of service by compulsorily retiring a person from service amounts to dismissal or removal within the meaning of Article 311 are: (1) Whether the action is by way of punishment and (2) whether by compulsory retirement the officer is losing the benefit he has already earned. His Lordship S. R. Das, J., in conclusion, remarked 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 of the Civil Service (Classification, Control and Appeal) Rules, and that such an order cannot be challenged on the ground that the officer had not been afforded full opportunity of showing cause against the action sought to be taken in regard to him.
38. In State of Bombay v. Saubhagcband M. Doshi, (SJ : 1SCR571 ), Venkatarama Aiyar, J., who spoke for the Court, held that the policy underlying Article 311(2) is that when it is proposed to take action against a servant by way of punishment, and that will entail forfeiture of benefits already earned by him, he should be heard and given an opportunity to show cause against the order. But that consideration can have no application where the order is not one of punishment and results in no loss of benefits already accrued, and in such a case, there is no reason why the terms of employment and the rules of service should not be given effect to.
It was held that the real criterion for deciding whether an order terminating the services of a sen-ant is one of dismissal or removal is to ascertain whether it involves any loss of benefits previously earned. Applying that test, an order under Rule 165-A of the Bombay Civil Service Rules compulsorily retiring a servant before superannuation was not held to be one of dismissal or removal, and it did not entail forfeiture of the proportionate pension due for past services.
39. It was further observed that when the Government decides to retire a servant before the age of superannuation, it does so for some good reason, and that, in general would be misconduct or inefficiency, and that in providing that no action would be taken except in case of misconduct or inefficiency. Rule 165-A of the said Rules only made explicit what was implicit in Note I to Article 465A (of Civil Service Regulations of 1920). 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 back-ground 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 Article 311(2).
40. The officer in that case was a civil servant of the State of Junagadh which became integrated into the State of Saurashtra in 1949. The learned Judge made certain observations which are very appetite :
'Now the provision in Rule 165-A on which the respondent relies does not, on its true construction, impose any fetter on the power previously conferred on the State in terms absolute to terminate the services of its servant without assigning any reason. It is really in nature of departmental instructions to be followed when action is proposed to be taken under that rule, and makes it clear that the enquiry into the charges is only for the satisfaction of the authorities. We are accordingly of opinion that Rule 165-A is not violative of Article 311(2) and is iutra vires, and that the impugned order dated 30-10-1952 passed in exercise of the power conferred thereby is valid.'
It may, therefore, be noted that, even if there be a rule requiring the holding of an enquiry before a person is compulsorily retired, such a rule is merely administrative and does not impose any fetter on the absolute power of the Ruler of a State to terminate the services of the servant without assigning any reasons.
41. In : (1958)ILLJ544SC S. R. Das, C. J , on behalf of the majority of the Court, observed thus:
'The position may, therefore, be summed up as follows : Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. Union of India, : 4SCR655 . Likewise the termination of sen-ice by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a Dunishment and does not attract Article 311(2), as has also been held by this Court in : (1954)IILLJ139SC . In either of the two above mentioned cases the termination of the service did not carry with it the penal consequences of loss of pay, or allowances under Rule 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which' influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules to terminate the service the motive operating on the mind of the Government is, as Chagla, C. J., has said in Shrinivas Ganesh v. Union of India. : (1957)IILLJ189Bom wholly irrelevant.'
42. The same principle was reiterated in Balakotaiah v. Union of India, ' : 1SCR1052 and Dilip Singh v. State of Punjab, : 1953CriLJ1465 .
43. The case nearest to the facts of the present case is : 1953CriLJ1465 . The delinquent officer in that case entered the service of the Patiala State in 1916 and rose to the rank of Inspector General of Police in June 1946. After the formation of the State of PEPSU, he was appointed ind confirmed as Inspector General of Police. While holding that post he proceeded on leave from 18th October, 1949, till ryth August 1950. By an order dated 18th August, 1950, the Raj-pramukh of the State retired him from service for administrative reasons with effect from the date of that order (18th August, 1950).
Adverting to the question whether the order of retirement amounted to removal from service within the meaning of Article 311 of the. Constitution, Das Gupta, J.. held that up to the publication in 1952 of Volume III of Pepsu Service Regulations, the pension rules appearing in the 1931 edition of the Patiala State Regulations continued to be applicable to Pepsu. 'His Lordship further held that on August 18, 1950, it was reasonable to hold that Rule 278 in its entirety remained in force and was applicable to Pepsu, that in the 1952 edition also the Government reserved the right to retire any of the employees on pension on poli-tical or other reasons, and that the contention that Rule 278 was not applicable to the case of the appellant on 18th August, 1950, was totally without foundation.
44. The learned Judge followed the decisions in : (1954)IILLJ139SC . and (SJ : 1SCR571 ), and observed :
'In the case before us the order of the Raj-pramukh does not purport to be passed on any charge of misconduct or inefficiency. All it states is that the compulsory retirement is for 'administrative reasons.' It was only after the appellant's own. insistence to be supplied with the grounds which led to the decision that certain charges were communicated to him. There is therefore no basis for saying that the order of retirement contained any: imputation or charge against the officer. The fact that considerations of misconduct or inefficiency weighed with the Government in coming to its conclusion whether any action should be taken under Rule 278 does not amount to any imputation or charge against the officer.'
It was further observed :
'There is no question of his having lost a benefit earned. It may be pointed out that Rule 278 itself provides for retirement on pension. If the provision had been for retirement without pension in accordance with the rules there might have been some reason to hold that the retirement was by way of punishment. As however the retirement can only be on pension in accordance with the rules -- in the present case full pension has -been granted to the officer -- the order of retirement is clearly not by way of punishment.'
45. Following this long line of authority we hold that the respondent in the instant case cannot complain that the impugned order amounted to removal within the meaning of Article 311(2) of the Constitution. The order ultimately passed was one of compulsory retirement, and the enquiry into the complaint by the pleader of Warangal only furnished the background. There was really no duty to hold an enquiry, though the Administrative Bench held it for its satisfaction that there was truth in the complaint made. The misconduct alleged, viz., the exhibition of temper and use of filthy language; did not enter into the account as is obviotis from the fact that the respondent was retired on pension to which he was entitled by reason of his past services under the Rules. The complaint that the protection under Article 311 was, not granted to him is, without substance. We, therefore, hold that the impugned order is perfectly valid.
46. Sri Subrahmaniam, the learned counsel on behalf of the respondent, raised. two contentions; (1) that the decisions of the Supreme Court would not apply to the instant case as compulsory retirement is not a power given to the Government by any rule and (2) even assuming that Regulation 305 governs the case, all the conditions of that regulation were not satisfied. -
47. The learned counsel referred to Regulations 302 and 305 of the Hyderabad Civil ServiceRegulations and argued that it was only after thecompletion of 25 years of service that a civil servant could be compulsorily retired, but as in theinstant case, the respondent had not completedthat period, he could not be retired. In supportof the contention, he relied on the HyderabadCivil Services (Classification, Control and Appeal)Rules, published in 1952. Rule 9 of those Rulesreads thus :
'The following 'penalties' may, for good andsufficient reason and as hereinafter provided, beimposed upon members of the services specifiedin Rule 5, namely: ............
(vi). compulsory, retirement 'before completion of 25 years of qualifying service' hereinafter, referred to as compulsory retirement.' (Italics (here in single quotation marks --Ed), ours).
It is argued on the strength of this rule that compulsory retirement could not be ordered even under the Regulations before 25 years of service, and, if so ordered, it would amount to a removal. This contention cannot be accepted, as these rules were framed after the commencement of the Constitution and after the impugned order was passed. The validity or otherwise of that plea has, therefore, to be decided in the light of. the Regulations already referred to. We have extracted those regulations in extenso and held that under those regulations the Nizam had absolute power to compulsorily retire a Government servant even before the completion of 25 years of service. This plea, therefore, cannot be accepted.
48. The learned counsel then contended that assuming that the Regulations empowered the Rajpramukh to compulsorily retire a civil servant since they had not specified any period of service on the completion of which that power could be exercised, the compulsory retirement would amount to a removal within the meaning of Article 311. For this he placed reliance on the observations of Venkatarama Aiyar, J. in (S) AlR 1957 SC 892. But that contentiqn, again, is without force. That question was considered by the Supreme Court in : 1953CriLJ1465 , already cited, and the contention was replied in the following words by Das Gupta, J:
'In Doshi'a case, : 1SCR571 an observation which might at first sight seem to suggest that in the opinion of this Court compulsory retirement not amounting to dismissal or removal could only take place under a rule fixing an age for compulsory retirement. We do not think that was what the Court intended to say in Doshi's case, : 1SCR571 there was in fact a rule fixing on age for compulsory retirement, at the age ol 55, and in addition another rule for compulsory retirement after an officer had completed the age of 50 or 25 years of service. It was in that context that the Court made the above observation. It had not in that case to deal with a rule which did provide for compulsory retirement, at any age whatsoever irrespective of the length of service put in. It will not be proper to read the observations in Deshi's case, (S) : 1SCR571 referred to above as laying down the law that retirement under the rule we are considering must necessarily be regarded as dismissal or removal within the meaning of Article 311.
We are therefore of opinion that the High Court was right in holding that the order of compulsory retirement made against the appellant was not removal from service so as to attract the provisions of Article 311 of the Constitution and that the suit was rightly dismissed.'
49. It is clear from this decision that even where the rules do not fix the age for compulsory retirement, an order compulsorily retiring an officer, otherwise in accordance with the rules, would not amount to a removal within the meaning of Article 311. In view of this authoritative pronouncement, we have to reject this contention as well.
50. The learned counsel for the respondent cited V. S. Menon v. Union of India, : AIR1963SC1160 , : 1953CriLJ1465 , Seshavataram v. State of Hyderabad, : (1959)IILLJ277AP and State of Madras v. Gopala Iyer, : AIR1963Mad14 . But we are of opinion that those cases are distinguishable on facts, and do not support his contention.
51. We may incidentally mention that the objection that there was no role empowering the Government to compulsorily retire the respondent was not taken before the Administrative Bench, and not even in the plaint. Even in the representations made by him to the Government, this ground was not taken. This contention, besides being without substance is also belated.
52. The other contention raised by the learned counsel was that the impugned order, Ex. A.44, must be deemed to be a punishment, because it was stated therein that he was compulsorily retired in view of his bad record. We cannot accede to this. . The order stated that he was not being retired on account of dishonesty etc., and the phrase 'bad record' in the context indicates his short temper and absence of judicial decorum, which formed the background for the order. We are inclined to hold that misconduct or inefficiency or other factors did not enter into account in passing the impugned order. It is therefore not a punishment nor did he lose any benefits already earned.
53. In view of the foregoing discussion, we hold that the impugned order does not attract the constiftitional safeguard provided by Article 311. We cannot accept the reasoning or the conclusion of the. trial Court to the contrary. In this view, it follows that the respondent is not entitled to the declaration that the order of compulsory retire-ment is illegal, void and ultra vires.
54. A point was sought to be made on behali of the Government that the trial Court erred in granting a declaration in respect of pension. But in the view we have taken it is unnecessary to consider that contention.
55. In the result, the appeal succeeds and is allowed. The suit is dismissed, but, in the circumstances of the case, we make no order as to costs here as wel as in the Court below, inasmuch as the suit is dismissed and cross-objections, are alo dismissed. The :espondent will, however, pay the Court-fee to Government in the lower Court and on the cross-objections.