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Union of India (Uoi) Vs. Kedareshwar - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 7 of 1958
Judge
Reported inAIR1959HP32
ActsConstitution of India - Articles 310 and 311; ;Government of India Act, 1935 - Section 94; ;Himachal Pradesh (Administration) Order, 1948; ;Limitation Act, 1963 - Schedule - Articles 14 and 120; ;Specific Relief Act, 1877 - Section 42
AppellantUnion of India (Uoi)
RespondentKedareshwar
Appellant Advocate T.P. Vaidya, Govt. Adv.
Respondent Advocate Kirti Ram, Adv.
DispositionAppeal dismissed
Cases ReferredIndia v. I. M. Lall
Excerpt:
- .....for the respondent is copy of a letter dated 1-5-1948, issued by the under secretary, ministry of states, government of india, to the deputy chief commissioner, himachal pradesh. it refers to an assurance given to the rulers of the former punjab hill states, now merged in himachal pradesh, to the effect that public servants in those states would either be continued on conditions similar to those enjoyed by them before 1-2-1948, or be paid reasonable compensation. the district judge has rightly pointed out--vide air 1924 pc 216--that the right to enforce such an assurance remained only with the high contracting parties. i, therefore, accept the finding of the district judge on this issue.5. (b) the next question that was argued before me was whether the provisions of the government of.....
Judgment:

T. Ramabhadran, J.C.

1. This appeal had come up before this Court on an earlier occasion, when, for reasons stated in this Court's order dated 29-11-1958, four issues were remitted to the learned District Judge of Mandi for investigation and report under Order 41, Rule 25, read with Order 42 Rule 1, Civil P. C. The findings of the District Judge have since been received. No written objections thereto were filed by either side, although when further arguments were heard in the appeal, learned counsel for the parties, in addition to supporting the findings that went in their favour, attempted to demonstrate that the findings which went against them could not be sustained. After that judgment was reserved, I now proceed to deliver judgment.

2. For reasons to be stated shortly, I have come to the conclusion that this second appeal must fail.

3. I shall refer to the various points that were argued before me, seriatim.

4. (A) The first point to be considered is: What was the status of the permanent public servant of the erstwhile Mandi State after the merger of the said State in the Union of India on 15-4-1948. This was one of the issues remitted to the District Judge under Order 41, Rule 25. The District Judge has found that the rights and obligations of the permanent public servants of the erstwhile Mandi State came to an end at the date of merger and the Union Government could impose new conditions of service upon them and could even terminate their services. In coming to this conclusion, the District Judge has referred to two decisions, one that of the Privy Council, reported in Vejesinghji Joravarsinghji v. Secretary of State, AIR 1924 PC 216, and another that of the Supreme Court, reported in Rajvi Amar Singh v. State of Rajasthan, AIR 1958 SC 228.

The learned counsel for the respondent submitted that the Privy Council decision pertained to the pre-constitution period and, consequently, would not hold the field now. The decision of the Supreme Court, reported in AIR 1958 SC 228, however, lays down clearly that, on the merger of the former Bikaner State in the new State of Rajasthan, the old contracts between Bikaner Darbar and its servants terminated and those who continued in service did so on the basis of fresh contracts, the conditions of which had yet to be determined.

On the same analogy, on the merger of Mandi State in Himachal Pradesh (later a Part C State of the Union of India), the old contracts of service between the Mandi Darbar and its servants came to an end. Ex. P. 37, to which my attention was invited by the learned counsel for the respondent is copy of a letter dated 1-5-1948, issued by the Under Secretary, Ministry of States, Government of India, to the Deputy Chief Commissioner, Himachal Pradesh. It refers to an assurance given to the Rulers of the former Punjab Hill States, now merged in Himachal Pradesh, to the effect that public servants in those States would either be continued on conditions similar to those enjoyed by them before 1-2-1948, or be paid reasonable compensation. The District Judge has rightly pointed out--vide AIR 1924 PC 216--that the right to enforce such an assurance remained only with the high contracting parties. I, therefore, accept the finding of the District Judge on this issue.

5. (B) The next question that was argued before me was whether the provisions of the Government of India Act, 1935, were applied to Himachal Pradesh and if so, when and how long they remained in force in that territory. This is the subject-matter of Issue No. 4, which was remitted to the District Judge under Order 41, Rule 25. He has found that prior to 1-8-1949, no provision of the Government of India Act, 1935, was in force in Himachal Pradesh. On that date, only certain provisions of that Act--i.e. those which were applicable to the Chief Commissioner's Province of Delhi--were made applicable to Himachal Pradesh. This state of affairs continued till 26-1-1950, when the Constitution came into force.

In coming to these findings the District Judge has given the historical background of the Union Territory of Himachal Pradesh. This territory has been made up of several princely States, which were sovereign and autonomous internally and were subject only to the paramountcy of the British Crown. With the advent of independence on 15-8-1947, paramountcy lapsed. The Government of India Act, 1935, was not made applicable to these States on the day of independence 15-8-1947. The Rulers of these States, however, entered into Standstill Agreement with the Dominion of India with respect to certain matters. On 15-4-1948, when the new unit of Himachal Pradesh came into force, the Rulers of the various constituent States, including Mandi, ceded to the Dominion Government of India full and exclusive authority, jurisdiction and powers for and in relation to the governance of their States.

In anticipation of the integration of the various States into a single unit known as Himachal Pradesh, the Dominion Legislature had enacted the Extra-Provincial Jurisdiction Act, 1947, on 24-12-1947. This Act enabled the Dominion Government to exercise extra-provincial jurisdiction, i.e. to exercise jurisdiction in any area outside the former British Indian Provinces either by treaty, agreement, grant, usage, sufferance or other lawful means. It was, under Sections 3 and 4 of the Extra-Provincial Jurisdiction Act, 1947, that the Central Government issued the Himachal Pradesh (Administration) Order on 15-4-1948, providing, inter alia, for the appointment of a Chief Commissioner as the Head of the Administration of Himachal Pradesh and for the appointment of Judges, Magistrates etc. to run the administration.

This arrangement continued till 15-1-1949, when, by means of Government of India (Amendment) Act, 1949, authenticated by the President of the Constituent Assembly, a new section numbered as 290-A was added to the Government of India Act, 1935, whereby the Governor-General was empowered to make orders with respect to Himachal Pradesh, so as to make the provisions of the Government of India Act applicable to Chief Commissioner's Province of Delhi, also applicable to Himachal Pradesh. Accordingly, on 30-7-1949, the Governor-General issued the States Merger (Chief Commissioner's Provinces) Order 1949 whereby the Chief Commissioner's Province of Himachal Pradesh was set up. Para 4 of that Order provided that all the laws in force in Himachal Pradesh before the appointed dale 1-8-1949 including orders made under the Extra-Provincial Jurisdiction Act would continue in force until repealed, modified or amended by the Dominion Legislature or any other competent authority. It, therefore, comes to this that till 26-1-1950, when the Constitution came into force, only those provisions of the Government of India Act, as were applicable to Delhi Province, were in force in Himachal Pradesh. The District Judge's finding on this issue is correct and must be maintained.

6. (C) That brings us to the question as to whether the public servants of the erstwhile Mandi State, were governed by any rules or regulations, after the merger of the said State in the Union of India on 15-4-1948. This is the subject-matter of Issue No. 2, which was remitted to the District Judge. He has reported that on 18-11-1948 (which is the crucial date in the present case) the public servants of the former Mandi State were governed in the matter of pay, pension, leave etc. by the Mandi Civil Service Regulations and by the Government of Mandi State Act.

In coming to this conclusion, the District Judge has pointed out that under para 5 of the Himachal Pradesh (Administration) Order, 1948, all laws in force in Himachal Pradesh or any part thereof immediately before the commencement of this Order (15-4-1948) would continue in force until repealed or amended by a competent legislature, or authority. The record does not show that the Dominion Government, between 15-4-1948 and 18-11-1948, had repealed, modified or superseded the Mandi Civil Service Regulations and the Government of Mandi State Act. The scope of some of these regulations has been the subject-matter of controversy in this Court. This will be referred to subsequently. Suffice it to say that the District Judge's finding on Issue No. 2, as remitted by this Court, is correct.

7. (D) We now come to the vexed question as to whether any permanent public servant of the erstwhile Mandi State could he compulsorily retired or his service terminated after 15-4-1948, more particularly on 18-11-1948. If so, under what circumstances and subject to what terms could such a course be adopted. Who was competent to issue such an order and what was the procedure to be followed in such a case? This is the subject-matter of Issue No. 3 remitted to the District Judge. The District Judge has reported that a permanent public servant of the former Mandi State could be compulsorily retired or his services terminated on 18-11-1948, vide Article 186 of the Mandi Civil Service Regulations, provided he had completed 25 years qualifying service.

Such an order could be passed by an authority not subordinate to that by which the public servant had been appointed. In case of such retirement or termination of services, such public servant was to be granted invalid pension, vide Art, 182 of the Mandi Civil Service Regulations. The public servant concerned was not entitled to any show cause notice, or inquiry, but the authority ordering retirement could adont any just and reasonable procedure. These findings have been vigorously assailed by both sides. The learned counsel for the appellant submitted that the District Judge has erred in thinking that an order of compulsory retirement could not be passed by an authority, subordinate to that, by which the public servant was originally appointed. On behalf of the respondent, on the other hand, it was contended vigorously that a show cause notice was necessary and the District Judge has erred in holding otherwise. Since the points involved go to the root of the case, they deserve careful and detailed examination.

8. Mr. Kirti Ram for the respondent urged that his client could not have been compulsorily retired without giving him a reasonable opportunity of showing cause against tiie action proposed to be taken against him. Reliance was placed upon the provisions of S. 240, Government of India Act, 1935. This argument takes it for granted that the provisions of S. 240 of the above Act were in force in Himachal Pradesh on 18-11-1948, when the order, Ex. P. 8, was issued by Mr. Moon, Deputy Chief Commissioner, Himachal Pradesh.

Under head (B) above, I have discussed the question as to whether any of the provisions of the Government of India Act, 1935, were in force in Himachal Pradesh. I have given my reasons for agreeing with the finding of the District Judge that from 1-8-1949 till 26-1-1950, when the Constitution came into force only those provisions of the Government of India Act, as were applicable to Delhi Province, were applicable to Himachal Pradesh. Section 240 is not one of these provisions. Consequently, the respondent could not claim, as of right that a show cause notice should have been given to him before he was compulsorily retired on 18-11-1948. I, therefore, concur with the finding of the District Judge on this point.

9. That brings us to the question as to under what circumstances a permanent public servant of the erstwhile Mandi State could be compulsorily retired after 15-4-1948, more particularly on 18-11-1948. Under head (B) supra, I have referred to the States Merger (Chief Commissioners' Provinces) Order, 1949, whereby the Chief Commissioner's Province of Himachal Pradesh was set up. This was in the exercise of the powers conferred by S. 290-A, Government of India Act, which was added by the Constituent Assembly on 15-1-1949. Para 4 of that Order provided that all laws in force in the Himachal Pradesh before the appointed date would continue in force till repealed or modified by the Dominion Legislature, or other competent authority.

That means that the Mandi Civil Service Regulations (not having been repealed) held the field at the relevant time. Under Article 186 of those Regulations, an officer, who had completed 25 years qualifying service could be retired, and his compensation would be regulated by Article 182 of the same Regulations. In the present case, it was not disputed that Pt. Kedareshwar, respondent, had completed 25 years qualifying service by 18-4-1948. Therefore having regard to what has been indicated earlier, it was open to the competent authority to retire him under Article 186, whereupon the officer concerned would be entitled to invaild pension, as laid down in Article 182. There is no ambiguity about this position. I, therefore, accept the finding of the District Judge that Pandit Kedareshwar could have been compulsorily retired on 18-11-1948 under Article 186, Mandi Civil Service Regulations.

10. We have now to consider the question as to whether Mr. E. P. Moon, Deputy Chief Commissioner, Himachal Pradesh, was competent to retire Shri Kedareshwar under Article 186. This question goes to the root of the case. In upholding the decree passed bv the trial Court, the District Judge has held that Mr. Moon was hot competent to pass such an order, as he was not the Chief Commissioner, Himachal Pradesh. He has pointed out that under the proviso to para 5 of the Himachal Pradesh (Administration) Order, 1948, the Chief Commissioner and the Chief Commissioner alone could exercise the powers, which were formerly exercisable under the old laws by the Government or the Darbar of the constituent States. This is the crux of the case.

As pointed out by me in my order dated 29-11-1958, remitting certain issues to the District Judge for investigation and report under Order 41, Rule 25, Mr. Moon's order, Ex. P. 8, dated 18-11-1948 is a very short one, consisting of only two sentences. The order runs as follows:

'Reference your application dated the 12th/ 13th November, 1948. You have been allowed to proceed from Simla on leave. You are further informed that your services will not be required. The Deputy Commissioner Mandi has been asked to report leave etc. due to you.'

It does not disclose the authority or rule in pursuance of which Mr. Moon as Deputy Chief Commissioner took upon his shoulders the responsibility of terminating the services of Pt. Kedareshwar. The plaintiff had been appointed by His Highness the Raja of Mandi. Consequently, it has been left to the learned Government Advocate to attenrot to justify it.

In case Mr. Moon had cited the authority under which he had passed that order (instead of obtaining the orders of the Chief Commissioner), then much argument would have been saved and this Court would not have felt it necessary to remit issues under Order 41, Rule 25. The learned Government Advocate urged, vehemently, that under Part II of the Government of Mandi State Act, the rule that a Government servant could not be dismissed by an authority subordinate to that by which he was appointed would not apply to the case of a Government servant, who was compulsorily retired under Article 186, Mandi Civil Service Regulations. He submitted that the District Judge has erred in placing compulsory retirement of a Government servant at par with his dismissal for the purpose of this rule. Mr. T. P. Vaidya relied upon the following authorities:

(i) Shyamlal v. State of Uttar Pradesh, AIR 1954 SC 369, wherein their Lordships indicated that:

'There can be no doubt that removal (using the term synonymously with dismissal) generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer. Such grounds, therefore, involve the levelling of some imputation or charge against the officer which may conceivably be controverted or explained by the officer. There is no such element of charge or imputation in the case of compulsory retirement. Further Rule 49 of the Civil Services (Classification, Control and Appeal). Rules clearly indicates that dismissal or removal is a punishment. This is imposed on an officer as a penalty. 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 retirement he will be entitled to the pension etc. that he has actually earned. There is no diminution of the accrued benefit.

A compulsory retirement therefore docs not amount to dismissal or removal and, therefore, does not attract the provisions of Article 311 of the Constitution or of Rule 55 and Note 1 to Article 465A of the Civil Service Regulations is not repugnant to Article 311.'

(ii) The State of Bombay v. Saubhagchand M. Doshi, (S) AIR 1957 SC 892. There, following the earlier decision reported in AIR 1954 SC 369, their Lordships observed that:

'The ratio decidendi of AIR 1954 SC 369 is this: Under the rules an order of dismissal is a punishment laid 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 reappointment 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.

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 caa 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. Thus, the real criterion for deciding whether an order terminating the services of a servant is one of dismissal or removal is to ascertain whether it involves any loss of benefits previously earned. Applying this test, an order under Rule 465A compulsorily retiring servant before superannuation cannot be held to be one of dismissal or removal, as it does not entail forfeiture of the proportionate pension due for past services.'

(iii) K. R. Joshi v. State of Bombay, AIR 1958 Bom 90. There, following AIR 1954 SC 369, a Division Bench of the Bombay High Court held that: 'There is no element of charge or imputation in the case of compulsory retirement. Where an order of compulsory retirement passed against the petitioner was founded on the fact that he had completed 25 years of service and that it was no longer in the public interest to retain him further in service as his conduct while in service was not up to the standard, the order of compulsory retirement is not converted into order of removal or dismissal from service, attracting the provisions of Article 811(2) of the Constitution.'

11. Learned counsel for the respondent submitted that while an order of compulsory retirement cannot be placed in the same category as an order of dismissal or removal, nevertheless, such an order could be passed only by an authority not sub-ordinate to that which appointed the Government servant in question. This is axiomatic. If a Government servant could be retired compulsorily by an authority other than the appointing authority and subordinate to it, how far can this delegation be carried. Obviously, there should be some limit to such delegation and delegation, under the circumstances, must be strictly proved; otherwise there would be endless confusion.

12. Learned counsel for the appellant cited Dulal Ranjan v. R. K. Bose, AIR 1958 Cal 356, where a learned Judge of that High Court observed that:

'The constitutional requirement in Article 311 that the dismissing authority should not be subordinate to the appointing authority operates when the former appointing authority exists and some other authority subordinate to it wants to exercise the power of dismissal over a civil servant. The constitutional expression 'an authority subordinate' indicates an existing subordination. It proceeds on the sensible view that the order of a superior authority appointing a civil servant cannot be allowed to be nullified by one subordinate to him by dismissing that civil servant. That will be detrimental to the moral and security of public service. But this sensible constitutional rule need not be converted into a senseless fetish by seeking to apply it to a situation where the authority dismissing the civil servant at the time of dismissing suffers no subordination because the post of the former appointing authority had ceased to exist.'

13. Learned counsel for the respondent rightly pointed out that the facts of the above case are completely different from those of the present case and, therefore, it would have no application. There, it would appear that the post of the former appointing authority had ceased to exist and, therefore, the dismissing authority suffered no subordination. In the present case, however, on 18-11-1948, Mr. E. P. Moon was functioning as Deputy Chief Commissioner, Himachal Pradesh. In addition there was a Chief Commissioner to whom the Deputy Chief Commissioner was, obviously, subordinate. The plaintiff had been appointed by His Highness the Raja of Mandi. The suit, out of which this second appeal has arisen, was instituted on 16-11-1954. During all the time that has since elapsed, it has not been possible for the appellant to produce any evidence to show that Mr. Moon, as Deputy Chief Commissioner, was empowered to discharge the functions of the Chief Commissioner in the matter of compulsory retirement of public servants.

I am unable to accept the argument, advanced by the learned counsel for the appellant, that since judicial and official acts are presumed to have been regularly performed, there must have been a delegation of such power by the Chief Commissioner in favour of the Deputy Chief Commissioner. Had there been such a delegation, jn fact, there should have been no difficulty either in Mr. Moon mentioning the same in his order, Ex. P-8, or in the appellant supplying a copy of the order conveying the delegation.

14. I, therefore, concur with the view of the District Judge that since Mr. E. P. Moon was not functioning as Chief Commissioner on 18-11-1948, he was not competent to pass the order, Ex. P-8, on that date and, therefore, that order being without jurisdiction was void, illegal and inoperative.

15. (E) Before parting with this appeal, I may refer to the point of limitation. As already mentioned, the order in question, Ex. P-8, was issued by Mr. Moon on 18-11-1948. The suit, giving rise to this second appeal, was instituted on 16-11-1954, i.e. within six years. In the Courts below it was suggested that the case would be governed by Article 14 of the Limitation Act, which provided for 1 year's limitation from the date of the order complained of. The Courts below have held that Article 14 has no application and the case would be governed by Article 120, which provides for six years limitation.

After hearing learned counsel for the appellant, I am satisfied that the view of the Courts below on the point of limitation is correct. As was held in Jagdish Prasad v. U. P. Government, AIR 1956 All 114, Article 14 would not apply to a case like this where the order of the Deputy Chief Commissioner is challenged as being ultra vires and without jurisdiction. That Article would apply only to those cases where the validity of the order is not questioned, but the same is sought to be set aside on some other ground. I agree that Article 120 would apply in the present case and the suit was rightly held to be within time.

16. (F) Lastly, it was urged here as in the Courts below that the suit in its present form was incompetent, as it sought a mere declaration, i.e. without claiming arrears of salary and, consequently, the suit would be hit by the proviso to S. 42, Specific Relief Act. The learned District Judge has held that it was not incumbent upon Mr. Kedareshwar to sue for arrears of salary in addition to a declaration, as, in his opinion, the two reliefs were not based upon the same cause of action. He has also referred to the ruling, reported in State oi Bihar v. Abdul Majid, AIR 1954 SC 245 and remarked;

'Their Lordships of the Supreme Court have, no doubt, held in the authority referred to by the learned Government Advocate that a civil servant can recover his arrears of salary by a suit from the Government. But it has not been laid down by their Lordships that a civil servant must sue for the arrears of salary and cannot maintain a declaratory suit to the effect that the order of his compulsory retirement was illegal and without jurisdiction. Their Lordships did not discuss the point whether a mere declaratory suit for getting an order of removal or compulsory retirement, set aside, was maintainable or not. So the ruling (AIR 1954 SC 245) is not an authority for holding the present declaratory suit to be barred under the proviso to S. 42, Specific Relief Act.'

17. Mr. Kirti Ram for the. respondent invited my attention to Qamarali Wahid Ali v. State of Madhya Pradesh, AIR 1959 Madh-Pra 46, where a learned Judge of that High Court, in dealing with a similar question, observed as follows:

'As regards the further relief, whether the plaintiff should be granted a decree for arrears of salary, the learned counsel for the appellant stated that the law has now been settled by their Lordships of the Supreme Court in the cases of AIR 1954 SC 245 and Om Parkash v. State of U. P., (S) AIR 1955 SC 600 and accordingly a Government servant can sue for arrears of salary. Their Lordships of the Privy Council in the case of High Commissioner for India v. I. M. Lall, 75 Ind App 225: (AIR 1948 PC 121) had laid down that a Government servant cannot sue for arrears of salary, but he can only claim a declaration.'

'Their Lordships of the Supreme Court, however, held that in view of the special provision in the Civil Procedure Code, such a suit can be tenable in India. Their Lordships did not lay down that a declaratory suit would not be untenable. Therefore, the position is that, it is the choice of the Government servant concerned either to sue for a declaration or' to claim the actual arrears, that might be due up to the date of the suit. As regards the future arrears, it is enough if he claims another declaration directing the other side to settle the question of arrears of his salary in accordance with the ultimate decision of the law Court.'

It, therefore, follows that the suit, out of which this appeal has arisen, is not hit by the proviso to Section 42, Specific Relief Act.

18. In view of all that has been said above, it follows that the plaintiff-respondent was rightly granted the declaration sought by him.

19. This second appeal is, accordingly, dismissed with costs.


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