R.A Singh v. State

Ramaswami and Sinha, JJ.:— In this case, the petitioner Ram Adhar Singh has obtained a rule calling upon the opposite party, the State of Bihar and the Inspector-General of Police, to show cause why a writ in the nature of certiorari should not issue for quashing the order, dated the 27th of October, 1952, requiring the petitioner to retire compulsorily under the provisions of rule 75(d) of the Bihar and Orissa Service Code.

The petitioner was employed as a Sub-Inspector of Police, and was last stationed at Arrah, in the district of Shahabad. The petitioner was appointed to the police service on the 2nd January, 1926. He completed twenty-five years of service on the 2nd January, 1951. It appears that on the 24th of October, 1950, there was an amendment of rule 75(d) of the Bihar and Orissa Service Code providing that the State Government may require any Government servant, who has completed twenty-five years of service from the date of his first appointment to retire from Government service, if it considers that his efficiency and conduct are not such as to justify his retention in the service. Acting on the provisions of this amended rule, the Inspector-General of Police issued a notice to the petitioner on the 24th of September, 1951, asking him to show cause why he should not be compulsorily retired. The notice is as follows:—

“You were appointed on 2nd January 1926 and therefore completed 25 years of total service on 2nd January 1951.

You have completed 21 years of duty as defined in Service Code rule 18, vide calculation attached.

You have earned 98 rewards and nil major and 8 minor punishments vide the statement enclosed herewith.

Extracts from your c.c roll containing adverse entries are also enclosed.

Judging from your records I consider that you are unfit for further retention in public service and therefore, I propose to retire you from service in accordance with the power conferred on me by rule 75(d) of the Service Code.

I direct you to show cause why you should not be made to retire forthwith.

Any representation that you wish to make must be submitted by 12th October 1951. This will be considered by the Committee that has been set up before I pass final orders.”

There was, annexed to this notice, a statement of rewards and punishments and also an extract from the adverse entries in the character roll of the petitioner. In reply to the notice, the petitioner duly made representation. On the 27th of October, 1952, the Inspector-General of Police sent the following letter to the petitioner:—

“In accordance with powers vested in me under rule 75(d) of Bihar and Orissa Service Code (as amended) and agreeing with the recommendation of the Board, I hereby order that the following-officers should be retired compulsorily with effect from 1st November 1952:—

(1) Sulaiman Khan of Shahabad.

(2) Azim Khan of Shahabad.

(3) Ram Adhar Singh of Shahabad.”

It is submitted on behalf of the petitioner that the order of the Inspector-General of Police dated the 27th October, 1952, is illegal and without jurisdiction as there was no compliance with the provisions of Article 311 of the Constitution of India. The petitioner, consequently, prays that a writ in the nature of certiorari should be granted by this Court for quashing the order passed by the Inspector-General of Police on the 27th of October, 1952.

Cause has been shown by the learned Government Advocate on behalf of the State of Bihar and on behalf of the Inspector-General of Police.

The first question to be examined is whether Article 311 of the Constitution of India applies to this case. The submission of Mr. Bhabanand Mukharji is that the order of compulsory retirement, under the provisions of rule 75(d) of the Bihar and Orissa Service Code, is tantamount to an order of dismissal or removal within the meaning of Article 311 of the Constitution. On the basis of this submission, learned Counsel contended that Article 311(2) requires that no person should be dismissed or removed or reduced in rank until, he has been given a reasonable opportunity of showing cause against any action proposed to be taken in regard to him. In other words, the argument is that the opposite party ought to have served on the petitioner two notices, one notice asking him to show cause why he should not be compulsorily retired under rule 75(d), on the ground that his efficiency and conduct are not such as to justify his retention in service, and a second notice requiring the petitioner to show cause why the proposed action, namely, order of compulsory retirement, should not be taken. The question whether two notices were requisite in this case really depends upon a proper interpretation of Article 311 of the Constitution. We do not propose to go into this question for we think that the petition must fail on the ground that Article 311 of the Constitution has no application to this case. The argument of Mr. Bhabahand Mukharji, on behalf of the petitioner, is that a case of compulsory retirement under rule 75(d) of the Bihar and Orissa Service Code is tantamount to an order of dismissal or removal within the meaning of Article 311(2) of the Constitution. We are unable to accept this argument. In our opinion, the terms ‘dismissal’, ‘removal’ and ‘reduction in rank’ are all technical expressions employed in Article 311, and it is not right to interpret them in the popular or grammatical sense. The question is not to be approached from the grammatical point of view. The question of construction of Article 311 must, on the other hand, be decided upon a historical approach. In the interpretation of Article 311, you must have regard to the historical facts, you must have regard to the surrounding circumstances, you must have regard to the state of the law at the time the Constitution was enacted. Under section 241 of the Government of India Act, 1935, which corresponds to Article 309 of the Constitution of India, rules and regulations have been framed regulating the recruitment and conditions of service of persons appointed to public services in the Government of India and in the Government of the various States. Rule 49 of the Civil Services (Classification, Control and Appeal) Rules sets out various penalties to which the members of the service can be subjected. These penalties are, (i) censure, (ii) withholding of increments or promotion, including stoppage at an efficiency bar, (iii) reduction to a lower post or time-scale, or to a lower stage in a time-scale, (iv) recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders, (v) suspension, (vi) removal from the civil service of the Crown, which does not disqualify from future employment, and (vii) dismissal from the civil service of the Crown which ordinarily disqualifies from future employment. This rule applies to the officers belonging to superior class of service. It should be noticed that a case of compulsory retirement is not dealt with in rule 49 but is separately dealt with in Article 465-A of the Civil Service Regulations. Note 1 to Article 465-A is to the following effect:—

“465A. For officers mentioned in Article 349-A. the rule for the grant of retiring pension is as follows:—

(1) An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years or in the case of officers of Imperial Services of the Forest, Geological Survey, Public Works, Railway and Telegraph Departments and any others covered by Article 635 who entered the service before the 6th day of December, 1932, not less than twenty years.

(2) A retiring pension is also granted to an officer who is required by Government to retire after completing twenty-five years' qualifying service or more.

Note 1.—Government retains an absolute right to retire any officer after he has completed twenty-five years' qualifying service without giving any reasons, and no claim to special compensation on this account will be: entertained. This right will not be exercised except when it is in the public interest to dispense with the further services of an officer.”

As regards police officers of the subordinate services, to which category the petitioner belongs, the relevant provision is rule 824 of the Bihar and Orissa Police Manual which describes in detail the punishments which may be inflicted on a police-officer below the rank of Deputy Superintendent. These punishments include a case of dismissal or removal, but rule 824 does not refer to a case of compulsory retirement. It is important to take note of the fact that a case of compulsory retirement is not referred to either in Rule 49 of the Civil Services (Classification, Control and Appeal) Rules or in rule 824 of the Bihar and Orissa Police Manual. In case of police services of subordinate class the rule of compulsory retirement is contained in rule 75(d) of the Bihar and Orissa Service Code, which, after the amendment of the 24th of October, 1950, is to the following effect:—

“(d) The State Government may require any Government servant who has completed twenty-one years of duty and twenty-five years of total service calculated from the date of his first appointment to retire from Government service, if it considers that his efficiency and conduct are not such as to justify his retention in service. Where any Government servant is so required to retire, no claim to any special compensation shall be entertained.

Note 1.—Compulsory retirement effected in pursuance of this rule amounts to removal from service within the meaning of clause (2) of Article 311 of the Constitution of India and Government servant so compulsorily retired shall be given a reasonable opportunity to show cause against the action proposed to be taken against him. It shall, however, not be necessary in such cases to follow the procedure laid down for the institution of departmental proceedings against a Government servant before removing him from Government service.

Note 2.—The grant under rule, 296 of leave extending beyond the date on which a Government servant must compulsorily retire, or beyond the date up to which a Government servant has Been permitted to remain in service, shall be treated as a sanction to an extension of service up to the date on which the leave expires.”

It is manifest, therefore, that the statutory rules made under section 241 of the Government, of India Act, 1935, made a clear distinction between a case of removal or dismissal of a Government servant and a case of compulsory retirement. If we construe Article 311 of the Constitution in the background of the statutory rules and regulations, it is clear enough that the expressions ‘removal’ and ‘dismissal’ in that Article cannot be interpreted so as to include a case of compulsory retirement. The expressions ‘removal’ and ‘dismissal’ in this Article must be given the same meaning which is given in the statutory rules and regulations which were existent at the time the ‘Constitution was enacted. If this view is correct, it must follow that the order of compulsory retirement passed against the petitioner does not fall within the purview of Article 311 of the Constitution of India.

The view that we have taken as regards the interpretation of Article 311 of the Constitution is supported by a decision of this Court in Ajit Kumar Mukherji v. Chief Operating Superintendent, East Indian Railway, Calcutta, in which it was held that the expressions ‘dismissal’ and ‘removal’ used in Article 311 must be construed in a technical sense and not in the popular sense and that a case of compulsory termination of service under rule 3 of the Railway Services (Safeguarding of National Security) Rules does not fall within the ambit of that Article. This view is also supported by a decision of the Supreme Court in Satish Chandra Anand v. The Union of India in which it was decided that the termination of service of a civil servant in accordance with the terms of a contract was not tantamount, to dismissal or removal or reduction in rank within the meaning of Article 311 which had no application to the case. At page 251 of the report, Bose, J., has observed as follows:—

“Taking Article 14 first, it must be shown that the petitioner has been discriminated against in the exercise or enjoyment of some legal right which is open to others who are similarly situated. The rights which he says have been infringed are those conferred by Article 311. He says he has either been dismissed or removed from service without the safeguards which that Article confers. In our opinion, Article 311 has no application because this is neither a dismissal nor a removal from service, nor is it a reduction in rank. It is an ordinary case of a contract being terminated by notice under one of its clauses.

The services in India have long been afforded certain statutory guarantees and safeguards against arbitrary dismissal, or reduction in rank. Under, section 240, Government of India Act, 1935, the safeguards were limited to those two cases. Under the present Constitution, a third was added, namely, removal from service. In order to understand the difference between ‘dismissal’ and ‘removal’ from service, it will be necessary to turn to the Rules which governed, and with modifications still govern, the ‘services’ in India because of Article 313 of the Constitution.

Part 12 of the Civil Services (Classification Control and Appeal) Rules relating to Conduct and Discipline includes Rule 49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number and include censure, suspension, reduction in rank, removal from service and dismissal from service. The Act of 1935 selected only two of these possible penalties as serious enough to merit, statutory safeguards, namely, reduction in rank and dismissal from service. The Constitution has added a third to the list. The distinction which is drawn between the two is explained in Rule 49. There is first removal from service which does not disqualify from future employment and there is next dismissal from service ‘which ordinarily disqualifies from future employment’.

Then follows an Explanation:

‘The discharge—

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

These terms are used in the same sense in Article 311. It follows that the Article has no application here and so no question of discrimination arises, for the ‘law’ whose protection the petitioner seeks has no application to him.”

In the course of his argument, Mr. Bhabanand Mukharji referred to the note appended to rule 75(d) of the Bihar and Orissa Service Code which states:

“Compulsory retirement effected in pursuance of this rule amounts to removal from service within the meaning of clause (2) of Article 311 of the Constitution of India and Government servant so compulsorily retired shall be given a reasonable opportunity to show cause against the action proposed to be taken against him. It shall, however, not be necessary in such cases to follow the procedure laid down for the institution of departmental proceedings against a Government servant before removing him from Government service.”

The argument of Mr. Bhabanand Mukharji is, that this note is a part of the amendment made by the Governor of Bihar and must be read as a part of rule 15(d). The contention of the learned Counsel is that it is the intention of the rule making authorities that compulsory retirement will be treated as removal from service for the purposes of Article 311(2) of the Constitution of India and that a Government servant so compulsorily retired should be given a reasonable opportunity to show cause against the action proposed to be taken against him. We regret, we are unable to accept the argument put forward by the learned Counsel. The note,—whether it is treated as part of rule 75(d) or is not to be so treated—is merely the view of the Executive Government as to the interpretation of rule 75(d). The question whether a case of compulsory retirement in rule 75(d) is tantamount to removal from service under Article 311 of the Constitution of India is a judicial question to be decided in a proper Court, and the view of the Executive Government as to the legal effect of rule 75(d) cannot be conclusive on the point. For the reasons we have already expressed in the earlier part of the judgment, we are of the opinion that a case of compulsory retirement contemplated in rule 75(d) is not a case of removal or dismissal from service within the meaning of Article 311 of the Constitution of India; and that the petitioner cannot be heard to complain that the safeguards provided in Article 311 have been violated in his case. As we have already said, the interpretation of rule 75(d) is for the Courts of law to decide and the interpretation placed upon it by the Executive Authorities is not binding upon the Court. Reference may be made in this connection to the following passage at page 393 of Crawford's Statutory Construction:—

“As a general rule executive and administrative officers will be called upon to interpret certain statutes long before the courts may have an occasion to construe them. Inasmuch as the interpretation of statutes is a judicial function, naturally the construction placed upon a statute by an executive or administrative official will not be binding upon the court. Yet where a certain contemporaneous construction has been placed upon an ambiguous statute by the executive or administrative officers, who are charged with executing the statute, and especially if such construction has ben observed and acted upon for a long period of time, and generally or uniformly acquiesced in it will not be disregarded by the courts, except for the most satisfactory, cogent or impelling reasons. In other words, the administrative construction generally should be clearly wrong before it is overturned. Such a construction, commonly referred toms practical construction, although not controlling, is nevertheless entitled to considerable weight.”

Two other points were taken by learned Counsel for the petitioner. In the first place, it was complained that the notice given to the petitioner by the Inspector-General of Police was vague and did not give sufficient particulars as regards the alleged inefficiency. The second point was that Article 320 of the Constitution of India was violated in the case of the petitioner and the order of compulsory retirement was, therefore, ultra vires and without jurisdiction. It is necessary to remark that neither of theses two points were put forth by the petitioner in his application. On the point of vagueness, it was pointed out by the learned Government Advocate that the petitioner did not complain at the time of showing cause before the Inspector-General of Police that the notice given to him was vague; on the contrary, the petitioner duly made his representation to the Inspector-General or Police against the action proposed against him. On the merits also, the argument has no substance, for we think (for the reasons already stated) that a case of compulsory retirement from service is not a case of disciplinary action falling within the purview of Article 311 and even if there was vagueness in the notice the petitioner cannot complain that any right under Article 311 has been violated. As regards the reference to Article 320 also, the argument on behalf of the petitioner is without substance. It was argued on behalf of the petitioner that this Article required that State Public Service Commission should have been consulted before the services of the petitioner were terminated. We are not aware in this case whether the State Public Service Commission was consulted or, not Indeed the Government Advocate took the objection that this point was not taken in the application under Article 226 and he had no opportunity to find out whether the State Public Service Commission had been consulted in this case or not. But even if it is assumed that the State Public Service Commission was not consulted in this case, we are of the opinion that the order of compulsory retirement is not unconstitutional. Article 320(3)(c) indicates that the Union Public Service Commission or the State Public Service Commission, as the case may be, snail be consulted on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters. It is manifest that Article 320(3)(c) refers to a case of only disciplinary action. In view of the considerations we have set out while dealing with the applicability of Article 311, we are of the opinion that the case of the petitioner is not a case of disciplinary action to which the provisions of Article 320 are attracted. The argument of Mr. Bhabanand Mukharji on this point cannot be accepted as correct.

In view of these considerations, we think that no case has been made out by the petitioner for issue of a writ under Article 226 of the Constitution of India. We, accordingly, dismiss the application.

K.D

Application dismissed.