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Balbir Singh Vs. the State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 3817 of 1968
Judge
Reported inAIR1970P& H459
ActsPunjab Industries Department (State Service Class III Rules); Punjab Civil Services Rules - Rule 3.26; Constitution of India - Article 311
AppellantBalbir Singh
RespondentThe State of Punjab and ors.
Appellant Advocate Puran Chand, Adv.
Respondent Advocate B.S. Dhillon, Adv. General, Punjab and; Naginder Singh, Adv.
DispositionPetition allowed
Cases ReferredJagdish Mitter v. Union of India
Excerpt:
.....was made that it be recommended to the head office that he be allowed to continue upto 58 years which according to the new rule was the age of superannuation. it was asserted by the petitioner in his application that he was perfectly fit to discharge his duties and that his services had always been appreciated by his superiors. he must not be retained in service after the age of compulsory retirement, except in exceptional circumstances with the sanction of competent authority on public grounds, which must be recorded in writing......appointed as manager in wool spinning and weaving centre at patiala on may 31, 1954 by the state government of the erstwhile government of patiala and east punjab states union. he was transferred to chandigarh as marketing assistant in the same grade of pay. he earned promotions afterwards and was transferred sometimes to patiala and sometimes to chandigarh on various posts till 1966 when he was posted to higher job with more emoluments as sales organiser in the office of marketing officer in punjab government emporium, chandigarh. in may, 1967, the petitioner is said to have proceeded on earned leave. on return from leave, he was recommended by the marketing officer for promotion as sales manager hi the scale of rs. 200-400. it was stated in the recommendation that the.....
Judgment:

H.R. Sodhi, J.

1. This writ petition raises a question as to the validity of theorder passed by the Director of Industries, Punjab, on September 7, 1968, whereby the petitioner was compulsorily retired from service after having been served with three months' notice.

2. Facts are not In dispute. The petitioner Balbir Singh was originally appointed as Manager in Wool Spinning and Weaving Centre at Patiala on May 31, 1954 by the State Government of the erstwhile Government of Patiala and East Punjab States Union. He was transferred to Chandigarh as Marketing Assistant in the same grade of pay. He earned promotions afterwards and was transferred sometimes to Patiala and sometimes to Chandigarh on various posts till 1966 when he was posted to higher job with more emoluments as Sales Organiser in the office of Marketing Officer in Punjab Government Emporium, Chandigarh. In May, 1967, the petitioner is said to have proceeded on earned leave. On return from leave, he was recommended by the Marketing Officer for promotion as Sales Manager hi the scale of Rs. 200-400. It was stated in the recommendation that the petitioner was an experienced hand, hard-working and intelligent official and his application deserved favourable consideration by the Department. It appears that the petitioner was making representations to the Director of Industries, Punjab, respondent 2, asking for promotion and a reply received by the immediate superior officer of the petitioner namely the Marketing Officer was that the request of the petitioner was under consideration and that he would be informed when the matter was decided. Since the petitioner attained the age of 55 years on August 16, 1968, he submitted an application addressed to the Marketing Officer in which a request was made that it be recommended to the Head Office that he be allowed to continue upto 58 years which according to the new rule was the age of superannuation. It was asserted by the petitioner in his application that he was perfectly fit to discharge his duties and that his services had always been appreciated by his superiors. The Marketing Officer submitted this application in original to the Director, respondent 2, recommending the same and it was also stated by the said officer that the confidential reports of the official had already been sent to the Director. It was then that an intimation was received as per letter Annexure 'H', attached to the writ petition, that the services of the petitioner were being terminated and that the letter was to be treated as three months' notice. In this very communication, it was stated by the Director that the action was being taken on the basis of overall assessment of annual confidential reports earned by the petitioner. In other words, on consideration of theannual confidential reports, the petitioner was not considered to be a suitable person to be allowed to continue up to the age of 58 years. It is the validity of this order that is being challenged in the present writ petition. There is no dispute before me that the petitioner was appointed by the State Government in the erstwhile State of Patiala and East Punjab States Union, and after the merger of Pepsu with the erstwhile Punjab in the year 1956 under the States Reorganization Act 1956, he was by virtue of Section 116 of the said Act deemed to have been appointed to his post in the State of Punjab by the State Government. Mr. Puran Chand, learned counsel for the petitioner, has raised the following two contentions:--

(1) That the petitioner has been compulsorily retired by the Director of Industries, respondent 2, who was not the appointing authority of the petitioner and no authority subordinate to the appointing authority could compulsorily retire the petitioner on attaining the age of 55 years when the age of superannuation had been raised to 58 years; and

(2) That the impugned order of compulsory retirement casts a stigma on the petitioner amounting to an order of removal of the petitioner from service by way of punishment within the meaning of Article 311(2) of the Constitution of India and that no such order could be passed without following the prescribed procedure as envisaged in the said Article.

3. Before answering the aforesaid contentions it is necessary to reproduce here for facility of reference the necessary service rule as contained in Volume 1, Part 1, of the Punjab Civil Services Rules, Rule 3.26 runs as under:--

(a) 'Except as provided in other clauses of this rule, the date of compulsory retirement of a Government servant other than a class IV Government servant is the date on which he attains the age of 58 years. He must not be retained in service after the age of compulsory retirement, except in exceptional circumstances with the sanction of competent authority on public grounds, which must be recorded in writing. (b) x x x x x (c) x x x x x'.

The age of compulsory retirement wasoriginally 55 but this rule was amended in the year 1963 and the age limit wasraised to 58 years. The other Rule 5.32is contained in Volume II of the PunjabCivil Services Rules and the relevant extract thereof is in the following terms:--

X X X X X '(c) A retiring pension Is also granted to a Government servant other than a class IV Government servant:--

(i) who is retired by the appointing authority on or after he attains the age of 55 years, by giving him three months' notice;

(ii) who retires on or after attaining the age of 55 years by giving three months' notice of his intention to retire to the appointing authority. Note: Appointing authority retains an absolute right to retire any Government servant, except a Class IV Government servant, on or after he has attained the age of 55 years without assigning any reasons. A corresponding right is also available to such a Government servant to retire on or after he has attained the age of 55 years.'

4. A bare reading of the aforesaid two rules leaves no manner of doubt that a Government servant does not have an absolute right to continue in service upto the age of 58 and that the appointing authority can on his attaining the age of 55 years without assigning any reason retire him from service though after giving him three months' notice. It is also clear that the power to retire such a Government servant at the age of 55 instead of allowing him to continue upto 58 years vests only in the appointing authority and not in any one else subordinate thereto. As a matter of fact, it is conceded by the learned Advocate-General that the appointing authority alone could pass the order of compulsory retirement but it is submitted by him that in the instant case the State Government had delegated its authority to the Director and such direction is permissible under the law. He has in this connection invited my attention to an order of the State Government passed on November 10, 1967, copy whereof is appended with the affidavit of the Director, respondent 2. The Governor of Punjab by his order Annexure II, made in implementation of the recommendations of the Punjab Administrative Reforms Commission, redelegated the powers exercised by the Administrative Department to the Director of Industries and Industrial Training, Punjab, in order to make appointments/ promotions of all non-gazetted staff whether ministerial or technical belonging to Punjab Industries Service Class III with the approval of the Punjab Public Service Commission wherever necessary. The petitioner was undoubtedly holding a non-gazetted post in the Department of Industries but it was not one falling in the category of Class III Services. The position taken up by the Advocate-General is that it was an ex-cadre post. The Punjab Industries Department (State Service Class III Rules) were framed in the year 1956 and the number and character of posts which comprised the service are given in appendix 'A' attached to those rules. The post as held by thepetitioner at the time of his compulsory retirement is not included in any one of these posts. In this view of the matter it cannot be urged with any reasonableness by the learned Advocate-General that the Director could exercise delegated authority assuming that the same could be delegated by the State Government which in the instant case was the appointing authority. This delegation relates to Class III Services and could not apply to an ex-cadre post. I also do not agree that an appointing authority can delegate its power of removal or dismissal of a Government servant. Any delegation if permitted will render nugatory the protection afforded to a Government servant by Article 311 of the Constitution of India, which specifically enjoins that no member of a Civil Service under the Union or a State or holding a civil post under either of them shall be dismissed or removed by an authority subordinate to that by which he was appointed. Subordination obviously refers to subordination in rank and not in regard to a particular function. It is the appointing authority which has to apply its mind and decide for itself as to whether a particular Government employee should be dismissed or removed from service or not. The Governor of Punjab by his order dated 10th November, 1967, (Annexure II) delegated powers of the Administrative Department in the matter of appointments/promotions of non-gazetted staff belonging to Class III service of the Industries Department, to the Director of Industries and Industrial Training. This order could not have a retrospective effect so as to give an authority to the Director to dismiss or remove employees appointed previously by the State Government, and it is only with regard to appointments and promotions made by him that he could take any action in accordance with law in terms of the said order. The petitioner having been appointed by the State Government, it was only the said Government that could pass the order of his compulsory retirement. The expression 'appointing authority' as appearing in Article 311 of the Constitution of India, cannot be given a different meaning when the same appears in Rule 3.26 of the Punjab Civil Services Rules, Volume I, Part I, allowing an appointing authority to compulsorily retire a public servant.

5. The next contention of the learned counsel is also not without substance. The impugned order to which a reference has already been made reads as under:--

'2. On the basis of overall assessment of Annual Confidential Reports, earned by you, it has been decided not to allow you to continue in Government service upto the age of 58 years. You are, therefore, served with three months' notice and on the expiry of this period youwould be deemed to have retired from service.

XXX Assistant Director, Administration. II'

It is implied in this order that the petitioner was not allowed to continue in Government service upto the age of 58 years because his work or conduct or both were not satisfactory as indicated by the annual confidential reports, thus rendering the retention of the petitioner in service undesirable. In my opinion, such an order did cast a stigma on the petitioner and amounted to his removal from service within the meaning of Article 311 of the Constitution of India necessitating a proper enquiry in accordance with law before such an order could be passed. It depends on the facts and circumstances of each case whether a certain order of discharge from service or compulsory retirement against a Government employee casts aspersions against his character or integrity so as to be said to have been passed by way of punishment. A plain reading of this order ostensibly purporting to be one of retirement shows beyond doubt that the petitioner was being retired because of his work or conduct haying been found to be unsatisfactory as it appeared to the appointing authority from an assessment of the annual confidential reports. It was open to the appointing authority to have retired the petitioner on his attaining the age of 55 years without assigning any reason whatsoever in terms of note to Rule 3.26 ibid, but once reasons have been assigned importing an element of punishment, shelter cannot be taken behind the power given under the aforesaid note forming a part of the statutory rules. It has been held by their Lordships of the Supreme Court in The State of Uttar Pradesh v. Madan Mohan Nagar, AIR 1967 SC 1260, that in case of compulsory retirement the same tests are to apply as in the case of discharge from service, and it has to be determined in each case whether the order casts aspersion or attaches a stigma to the employee whom it is purported to discharge. In this case, Madan Mohan Nagar was ordered by the Governor of Uttar Pradesh to be compulsorily retired from his post of Director State Museum on the completion of his qualifying service as he had outlived his utility. The Supreme Court took the view that the order of the Governor contained an express statement that Madan Mohan Nagar had outlived his utility and it, therefore, meant that he was incapacitated from holding the post. A stigma was held to have been cast on Madan Mohan Nagar as it would according to their Lordships, appear to any one reading the order that there was something wrong with him or his capacity to work. Similar is the casebefore us. Any one reading the order is bound to form an impression that there was definitely something wrong with either the conduct or work of the petitioner on account of which it was found necessary to compulsorily retire him from service. Reference may also be made to Jagdish Mitter v. Union of India, AIR 1964 SC 449. The use of the words 'Jagdish Mitter having been found undesirable to be retained in Government service is hereby served with one month's notice............' were held to convey theidea of punishment casting aspersions on him. It must, therefore, be held that the impugned order, couched as it is, in a very comprehensive language, suggesting the unsuitability of the petitioner to be retained in service, does cast a stigma and it being a common ground that no inquiry was held, cannot be sustained.

6. For the foregoing reasons, the writ petition must be allowed. The petitioner is declared to have been illegally removed from service by the impugned order, Annexure 'H', and the same is hereby quashed. The petitioner will be deemed to have continued in service till his services are terminated in accordance withlaw. There is no order as to costs.


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