# Civil Appeal No. 235 of 1958. Ig6o Dalip Singh v. The State of Punjab Dalip Singh '" Tiu State ~f l'unjab

- **Citation:** [1961] 1 S.C.R. 88
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Bench:** P. B. Gajendbagadkar, K. N. Wanchoo, M. Hidayatullah, K. c. DAS GUPTA, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/civil-appeal-no-235-of-1958-ig6o-dalip-singh-v-the-state-of-punjab-dalip-singh-2179
- **Pages:** 9

## Headnote

(
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I
I
1 S.C.R. SUPREME COURT REPORTS
89
service Sardar Dalip Singh, Inspector General of Police, Pepsu
(on leave) for administrative reasons with effect from the 18th
August, 1950."
No charges were framed against him and it was on his insistence that certain charges were communicated to him. Rule 278
of the Patiala State Regulations, 193r, which was then in force,
provided as follows:-
" 278. For all classes of pensions of person who desires
to obtain the pension is required to submit his application before
any pension is granted to him.
The State reserves to itself the right to retire any of its
employees on pension on political or on other reasons."
The question for determination in the appeal was whether the
compulsory retirement of the appellant amounted to removal or
dismissal from service within the meaning of Art. 3r r(2) of the
Constitution. The trial Court held in favour of the appellant
and the High Court ag~inst him,
,
Held, that the two tests laid down by this Court for determining whether an order of compulsory retirement amounted to
removal or dismissal from service were (r) whether it was by
way of punishment, a charge or imputation against the officer,
being made the basis of the exercise of the power, and (2) whether the officer was deprived of any benefit already earned as
in a case of dismissal or removal.
Shyamlal v. State of U. P., [1955] l S.C.R. 26 and State of
Bombay v. Subhagchand Doshi, [1958] S.C.R. 571, referred to.
So judged, the order passed against the appellant could not
amount to dismissal or removal from service \Vi thin the meaning
of Art. 3rr(2) of the Constitution.
The order was not one purported to have been made on
any charge of misconduct or inefficieny and the fact that any
such considerations might have weigh:ed with the Government
in passing the order under Rule 278 did not amount to any
imputation or charge against the officer, and there could be no
question of losing any benefit earned since the Rule itself provided for retirement on pension and the officer had in fact been
allowed full pension.
It would not be correct to say that since the Rule did not fix
any age for compulsory retirement, an order of compulsory
retirement passed under it must necessarily be regarded as dismissal or removal within the meaning of Art. 3rr(2) of the
Constitution.
State of Bombay v. Subhagchand Doshi, [1958] S.C.R. 571, explained.
C1v1L
APPELtATE JURISDICTION:
Civil Appeal
No. 235 of 1958.
Ig6o
Dalip Singh
v.
The State of
Punjab
Dalip Singh
'"
Tiu State ~f
l'unjab
90
SUPRElllE COURT REPORTS
[ 1961]
Appeal from tho judgment and decree dated October 18, 1956, of the former PEPSU High Court in
Reguhtr First Appeal Ko. 11 of 1954, arising out of
the judgment aud decree dated Kovember 21, 1953,
of the Additioual District ,Judge, Patiala.
Gopal Singh and K. R. Krishnaswamy, for the
appellant.
N. S. Bindra and D. Gupta, for the respondent.
1960. July 28.
The Judgment of the Court was
delivered by
Das Gupta J.
DAS GUPTA J.-The appellant Dalip Singh l'lltered
the service of the Patiala State in 1916 and rose to the
rank of Inspector General of .Police of the State in
June 1946.
After the formation of the State of Pepsu
he was absorbed in the Police Service of the newly
formed State and was appointed and confirmed as
Inspector General of Police thereof. While holding
that post he proceeded on leave from October 18, 1949,
till August 17, 1950. Ou August 18, 1950, an order
was made by the Hajpramukh of the State in these
words:-
" His Highness the ltajpramukh is pleased to
retire from service Sardar Dalip Singh, Inspector
General of Police, Pcpsu (on lea.ve) for administrative
reasons with effect from the 18th August, 1950."
A copy oft.his order was forwarded to the appellant.
Thereupon on August 19, 1950, the appellant wrote to
the Chief Secretary of the State stating that by his
retirement he would be put to heavy loss, i.i>., about
Rs. 50,000 which he would ha\·e earner! as his pay
and allowances etc., d

## Text

88
SUPREM,E COURT REPORTS
[1961]
this view, because in our judgment, the contention of
The State of
the a.ssessee that for setting a.side an adverse order
Ulla• P•adesh inconsistent with the provi8ions of the amending Act
6- Othm
of 1956, a. proceeding for review under s. II isthe only
v.
remedy which is open to an aggrieved party, is with-
;·~· Sye~
out force.
A court of appeal, in an appeal properly
Saad•~ ·;~·Khan before it, must give effect to the law a.sit stands if
Shah ].
1960
July a8. ·
the law ha.a at some stage anterior to the hearing of
the appeal been a.mended retrospectivelJ;. with the
object of conferring upon the authority or tribunal of
first instance from the order whereof the appeal is
filed jurisdiction which it originally la.eked : and a.
provision for review like the one contained in s. 11 of
the a.mending Act does not affect the power of the
appellate court to deal with the appeal iu the light of
the a.mended law.
In the view expreBSed by us, this appeal must be
allowed.
As the appellant succeeds relying on a.
statute which was enacted after the date of the judgment of the High Court, we direct that there shall be
no order as to costs.
Appeal allowed.
DALIP SlNGH
"·
THE STATE OF PUNJAB.
(P. B. GAJENDBAGADKAR, K. N. WANCHOO,
M. HIDAYATULLAH, K. c. DAS GUPTA
and J. C. SHAH, JJ.)
(
\ .
I
I
1 S.C.R. SUPREME COURT REPORTS
89
service Sardar Dalip Singh, Inspector General of Police, Pepsu
(on leave) for administrative reasons with effect from the 18th
August, 1950."
No charges were framed against him and it was on his insistence that certain charges were communicated to him. Rule 278
of the Patiala State Regulations, 193r, which was then in force,
provided as follows:-
" 278. For all classes of pensions of person who desires
to obtain the pension is required to submit his application before
any pension is granted to him.
The State reserves to itself the right to retire any of its
employees on pension on political or on other reasons."
The question for determination in the appeal was whether the
compulsory retirement of the appellant amounted to removal or
dismissal from service within the meaning of Art. 3r r(2) of the
Constitution. The trial Court held in favour of the appellant
and the High Court ag~inst him,
,
Held, that the two tests laid down by this Court for determining whether an order of compulsory retirement amounted to
removal or dismissal from service were (r) whether it was by
way of punishment, a charge or imputation against the officer,
being made the basis of the exercise of the power, and (2) whether the officer was deprived of any benefit already earned as
in a case of dismissal or removal.
Shyamlal v. State of U. P., [1955] l S.C.R. 26 and State of
Bombay v. Subhagchand Doshi, [1958] S.C.R. 571, referred to.
So judged, the order passed against the appellant could not
amount to dismissal or removal from service \Vi thin the meaning
of Art. 3rr(2) of the Constitution.
The order was not one purported to have been made on
any charge of misconduct or inefficieny and the fact that any
such considerations might have weigh:ed with the Government
in passing the order under Rule 278 did not amount to any
imputation or charge against the officer, and there could be no
question of losing any benefit earned since the Rule itself provided for retirement on pension and the officer had in fact been
allowed full pension.
It would not be correct to say that since the Rule did not fix
any age for compulsory retirement, an order of compulsory
retirement passed under it must necessarily be regarded as dismissal or removal within the meaning of Art. 3rr(2) of the
Constitution.
State of Bombay v. Subhagchand Doshi, [1958] S.C.R. 571, explained.
C1v1L
APPELtATE JURISDICTION:
Civil Appeal
No. 235 of 1958.
Ig6o
Dalip Singh
v.
The State of
Punjab
Dalip Singh
'"
Tiu State ~f
l'unjab
90
SUPRElllE COURT REPORTS
[ 1961]
Appeal from tho judgment and decree dated October 18, 1956, of the former PEPSU High Court in
Reguhtr First Appeal Ko. 11 of 1954, arising out of
the judgment aud decree dated Kovember 21, 1953,
of the Additioual District ,Judge, Patiala.
Gopal Singh and K. R. Krishnaswamy, for the
appellant.
N. S. Bindra and D. Gupta, for the respondent.
1960. July 28.
The Judgment of the Court was
delivered by
Das Gupta J.
DAS GUPTA J.-The appellant Dalip Singh l'lltered
the service of the Patiala State in 1916 and rose to the
rank of Inspector General of .Police of the State in
June 1946.
After the formation of the State of Pepsu
he was absorbed in the Police Service of the newly
formed State and was appointed and confirmed as
Inspector General of Police thereof. While holding
that post he proceeded on leave from October 18, 1949,
till August 17, 1950. Ou August 18, 1950, an order
was made by the Hajpramukh of the State in these
words:-
" His Highness the ltajpramukh is pleased to
retire from service Sardar Dalip Singh, Inspector
General of Police, Pcpsu (on lea.ve) for administrative
reasons with effect from the 18th August, 1950."
A copy oft.his order was forwarded to the appellant.
Thereupon on August 19, 1950, the appellant wrote to
the Chief Secretary of the State stating that by his
retirement he would be put to heavy loss, i.i>., about
Rs. 50,000 which he would ha\·e earner! as his pay
and allowances etc., during this period and that his
pension was also being affected and that this decision
of the Government tanLamounts to his removal from
service.
He requested that the Government should
let him know the grounds which bad impelled the
Go,·ernment to take this decision about his removal.
Ultimately on March 30, 1951, the Government
mentioned the charges against him on the basis of
which the Government had decided to retire him on
administrative grounds.
After service of notice under
1 S.C.R. SUPREME COUliT REPORTS
91
s. 80 of the Code of Civil Procedure the appellant
brought a suit in the Court of the District Judge,
Patiala, against the State of Pepsu asking for a declaration that the orders of August 16, 1950, and August
18, 1950, whereby "the plaintiff has been removed
from the post of Inspector-General of Police, Pepsu,
are unconstitutional, illegal, void, ultra vires and
inoperative and that the plaintiff still continues to be
in the service of the defendant as Inspector General
of Police and is entitled to the arrears of his pay and
allowances from August 18, 1950, and is also entitled
to continue to draw his pay and allowances till his
retirement at the age of superannuation ; and a decree
for the recovery of Hs. 26,699-13.0 and full· costs of
this suit and future interest."
The main plea on which the suit was based was
that the order of August 18, 1950, amounted to his
removal from service within the meaning of Art. 311(2)
of the Constitution and the provisions of that article
not having been complied with the termination of his
service was void and inoperative in law.
The respondent State contended that the plaintiff had been
retired from service and had not been removed
from service and so Art. 311 of the Constitution
had no application.
On this question the trial Court
came to the conclusion that the order compulsorily
retiring the plaintiff amounted to his removal within
the meaning of Art. 311 of the· Constitution and as
the requirement of that Article had not been complied with it held that the termination of service
effected by that order was void in law.
The Court
accordingly decreed the suit in favour of the plaintiff
declaring that the orders of the Government dated
August 18, 1950, whereby the plaintiff had been remo.
vcd from the post of Inspector General of Police,
Pepsu, are unconsitutional, illegal, void and ultra vires
and inoperative and that the plaintiff still continued
to be in the service of the defendant as Inspector General of Police and he his entitled to the arrears of his
pay and allowances from August 18, 1950 and is also
entitled to continue to draw his pay and allowance
Ig6o
Dalip Singh
v.
The State of
Punjab
Das Gupta ].
Dalip Singh
v.
The Stale of
Punjab
Das Gupta ].
92
SUPRE:\IE COURT REPORTS
[1961]
till his retirement at the age of superannuation and a
decree for the recovery of Rs. 26,699-13 0.
On appeal by the State the Pepsu High Court
disagreeing with the Trial Court held that the order
of compulsory retirement did not amount to removal
from service within the meaning of Art. 3ll of the
Constitution and accordingly allowed the appeal and
dismissed the plaintiff's suit.
The main contention of the plaintiff before us was
that the order of retirement did amount to his removal from service within t.he meaning of Art. 311 of the
Constitution. The learned counsel also wanted to
argue that Rule 278 oft.he Patiala State Regulations
under which the Government apparently ma.de the
order of compulsory retirement was no longer operative. Jt appears that the Patiala State Regulations
which continued to govern the members of the services
of that State after they became integrated into the
Pepsu State Services were revised from time to time.
It was suggested by the learned counsel that the
revised rules do not contain any rules similar to
Ruic 278.
Rule 278 of the Patiala State Regulations
was in the following words:-
" 278. For all classes of pensions the person who
desires to obtain the pension is required to submit his
application before any pension is granted to him.
The State reserves to itself the right to retire any
of its employees on pension on political or on OLher
reasons.''
The learned counsel though wanting to persuade us
that the Ruic about the State reserving lo itself the
right to retire any of its employees on pension on political or on other reasonA was not present in the new
rules was unable to show us however that before
AuguHt 18, 1950, there. had been any r~vision of Rule
278.
It appears that revised rules for Travelling
Allowanee were published in 1946 as Vol. II of the new
rules; and Rules relating to pa.y and a.llowances were
published as Vol. l in 1947.
Thereafter in 1952 we
find that the first volume of the Pepsu Service ltegula- ·
tions as rrgards pay and leave rules wa.s published.
In the same yea.r t.he third volume of the Pepsu State
•
,
1 S.C.R. SUPREME COURT REPORTS
93
Regulations containing rules relating to pensions was
published. In the preface to this volume we find this
statement :-
"The Revised Edition of the Patiala State Regulations relating to pay, allowances, leave, pension and
travelling allowance was published in the year 1931.
Subsequently the travelling allowance rules were
revised and issued as Patiala Service Regulations,
Vol. II, in the year 1946. Similarly the pay, allowances and leave rules were taken out from the Revised
Edition (1931) and printed as Patiala Services Regulations, Voll,lme 1, in the year 1947.
The other rules
relating to pensions continued to remain in the Revised Edition (1931) and kept upto date by the issue of
correction slips. On the formation of the Patiala &
East Punjab States Union on 20-8-48, these rules were
made applicable to the entire territories of the Union
by Ordinance No. I of 2005. The number of copies of
this publication available for official use had run out
of stock and great difficulty has been experienced in
Government "offices for want of it for reference. It
was therefore found necessary to revise and reprint ·
this publication to make it available to all offices."
This makes it clear that ilpto the publication in
1952 of Volume III of the Pepsu Service Regulations
the pension rules. appearing in the 1931 edition of the
Patiala State Regulations continued to be applicable
to Pepsu. On August 18, 1950, therefore it is reasonable to hold that Rule 278 in its entirety remained in
force and was applicable to Pepsu. It is interesting to
mention that in this 1952 edition also this reservation
by the Government of the "right to retire any of its
employees on pension on political or on other reasons"
has been maintained (Vide Chapter V, Rule 10). The
contention of the learned counsel that Rule 278 was
not applicable to the case of the appellant on· August
18, 1950, is therefore totally without foundation.
This brings us to the main contention in the case.
viz., that the compulsory retirement of the appellant
under Rule 278 of the Patiala State Regulations was
a removal from service within the meaning of Art. 311
of the Constitution.
The question whether the
Dalip Singh
v.
The_ State of
Punjab
Das Gupta ].
Dal1p SingA
v.
Tlic .<..,·talc of
Pioijab
Das Gupta }.
94
Sl!PRE:IIE COURT REPOHTS
[ 1961 J
termination of service by compulsory retirement in
accordance with Service gu]es amount to removal from
service was considered by this Court in Shyamlal v. The
State of U. P. and the Union of India(') arid again
recently in State of Bombay v. Subhagchand Doshi (').
The Court decided in Shyom lal's Case(') that two tests
had to be applied for ascertaining whether a tcrmina.
tion of servico by compulsory retirement amounted to
removal or dismissal so as to attract the provisions of
Art. 311 of the Constitution.
The first is whcth<>r the
action is by way of punishment and to find that out
the Court said that it was necessary that a charge or
imputation against the ofiicer is made tho condition of
the exercise of the power ; the second is whether by
compulsory retirement the officer is losing the benefit
he has already earned as he does by dismissal or
removal.
In that case in fact a charge.sheet was
drawn up against the officer and an enquiry held but
ultimately the order of compulsory rel.irement was not
based on the result of the t>nquiry. Tho Court pointed
out that the enquiry was merely to lrnlp ·the Govern.
ment to make up its mind as to whether it was in the
public interest to dispense with hi8 services so that thP
imputation made in thu chargc.8hect was not being
made the condition of the exercise of the power.
These test~ were applied in Doshi'.~ Case(') and it
was held that the provisions of compulsory retirement
under H,ule 165.:\ of the Saurashtra Civil Service
Rules under which the order of retirement was made
there was not violative of Art. 3ll(2). It was pointed
out t.hat "while misconduct and inefficienc\· are factors that enter into the account where the O'rder is one
of dismissal or removal or of retirement, there is this
difference that whilo in the cas(' of retirement they
merely furnish the background and the enquiry, if
held-and there is no duty to hold an enquiry-is only
for the satisfaction of the authorities who have to
take action, in the case of cli8missal or removal, they
form the verv basis on which tho order is made and
the enquiry thereon must be formal, and must satisfy
(1) [1955]1S.C.R26.
(2) [1958] S.C.R 571
'
I I
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1 S.C.R. SUPREME COURT REPORTS
95
the ru'!es of natural justice and the requirements of
Art. 311(2) ".
,
In the case l]efore us the order of the Rajpramukh
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 w bi ch led to the decision that
certaip charges were communicated to him·.
There is
therefore no basis for saying that the order of retirement contained any inputation 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.
Applying the other test, viz., whether the officer
has lost the benefit he has earned, we find that the
officer has been allowed full pension. There ls 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 retire- ·
ment without pension in a,ccordance with the rules
there might have been some reason to hold that the
retirement was by way of'punishmen·t.
As however
the retirement can only be on pensi()n 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.
In Doshi's Case(') there is at p. 579 an obs'ervation
·which might at first sight ·seem to suggest that in the
op.inion of tbis Court compulsory retirement not
- amounting to dismissal or removal couW' only take
place under a rule fixing an age for compulsory retirement. \Ve do not think that was what the Court intended to say in Doshi's Gase('). In Doshi's Case(')
there was in fa.ct a rule fixing an age for compulsory
retirement, at the age of 55, and in addition another
rule for compulsory i:etirement 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
(1) [x958] S.C.R. 57'·
r960
Dalip Singh
v.
The State of
Punjab
Das Gupla ].
' 96
SUPREME COURT REPORTS
[1961]
Dalip Singh
v.
The Slale of
Punjab
Das Gupta f•
August I.
observation. It·had.not in that case to deal with a·rule
w.liich did provide for compulsory retirement, at any
age w·hatsoever irrespective of the length of. service
put in. It will not be' pr'oper to read the observation~
in Doshi's" Gase referred to above as laying down the
law that retirement undar the..rule we are considering
must necessarily be regarded as dismissal cir removal
within the meaning of Art. 311.
.
}Ve are therefore oI 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 Art. 311
of the Constitution and that the suit was rightly dismissed.
'The appeal Is accqrdingly dismissed with costs.
Appeal dismissed.
PANDIT M. S. M. SHARMA
.-
v.
DR. SHREE KRISHNA -SINHA AND OTHERS.
(:!} •. P. SINHA; c. J., JAFER IMAM, P. B. GAJENDRAGADKll.R, A. K. SARKAR, K.- SUBBA RAO, -
K. N. WANCHOO, K. c. DAS GUPTA
and J. 0. SHAH, JJ.)
State Legislature-Breach of Privilege-Decision of Court, if
res-judicata betw.en parties-Constitution of India, Arts. I94(3),
Ig(I)(a).
The petitioner, the Editor of the Searchlight, an English
daily newspaper published from Patna, was called upon to show
cause before .the Committee of Privileges of the Bihar Legislative .A:ssembly why. he should not be proceeded against for the
breach of privilege of the Speaker and the Assembly for publishing 1tn)naccurate .account of the proceedings of the Legislative
Assembly. He moved this Court under Art. 32 of the Constitutioμ for quashing the said proceediqg and the question for decision in ~ubstance was whetjier the said ·privilege conferred ·by
Art. 194(3) of the Constitution was subject to the fundamental