# THE STATE OF BOMBAY v. SAUBHAGCHAND M. DOSHI

- **Citation:** [1958] 1 S.C.R. 571
- **Court:** Supreme Court of India
- **Decided:** 1958
- **Case number:** Civil Appeal No. 182 of 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-bombay-v-saubhagchand-m-doshi-1399
- **Pages:** 10

## Headnote

S.C.R.
SUPREME COURT REPORTS
THE STATE OF BOMBAY
v.
SAUBHAGCHAND M. DOSHI
(S. R. DAS C. J., VENKATARAMA AYYAR,
571
B. P. SINHA, J. L. KAPUR and A. K. SARKAR JJ).
Government servant-Compulsory retirement--;-Whether amounts
Jo dismissal or removal-Whether applicable to Art. 311(2) of the
Constitution-Bombay Civil Services Rules, as amended by the
Saurashtra Government, R. 165-A-Whether ultra vires-Constitution of India, Art. 311(2).
Rule 165-A of the Bombay Civil Services Rules, applicable to
the State of Saurashtra, as amended,
provided : Government
retains an absolute right to retire any Government servant after
he has completed 25 years qualifying service or 50 ye<trs of age,
whatever ·the service without giving any reason, 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 a Government servant
such as on account Of inefficiency or dishonesty ............. "
On October 30, 1952, the Government of ... Saurashtra passed
an order compulsorily terminating the services of the respondent,
acting under the above rule. The respondent filed a writ application in the High Court challeμging t\le validity of the order on
the ground that it was made without any notice to him of any
.charge of misconduct or inefficiency and without any enquiry and
was, in consequence, in contravention of Art. 311 (2) of the Cons ti·
tution of India. Though the respondent had completed the age
of 50 on the date of the order, his contention was that in view of
the fact that R. 165-A provided that the right to retire will not be
exercised except on grounds of inefficiency or dishonesty, an order
retiring an officer before the age of superannuation was in substance one of dismissat or removal and must satisfy the
requirements of Art. 311(2), and that R. 165-A, in so far as it authorised
the Government to terminate the services without any reason and
without any enquiry, was repugnant to Art. 311(2) and therefore
ultra vires.
Held, that R. 165-A is not violative of Art. 311(2) and is intra
vires, and that. the impugned order, dated October 30, 1952, is
valid.
An order under R. 165-A is not one of dismissal or ·removal·
and Art. 311(2) is not applicable to such an order.
Shyam Lal v. The State of Uttar Pradesh, (1955)
I.S.C.~. 26,
explained and followed.
1957
September 25.
19~7
Tht Statt of
Bombay
v.
SaMbhagchand
M. Do1hi
'Y~nkatarama
A.lyar J.
572
SUPREME COURT REPORTS
[1958)

## Text

S.C.R.
SUPREME COURT REPORTS
THE STATE OF BOMBAY
v.
SAUBHAGCHAND M. DOSHI
(S. R. DAS C. J., VENKATARAMA AYYAR,
571
B. P. SINHA, J. L. KAPUR and A. K. SARKAR JJ).
Government servant-Compulsory retirement--;-Whether amounts
Jo dismissal or removal-Whether applicable to Art. 311(2) of the
Constitution-Bombay Civil Services Rules, as amended by the
Saurashtra Government, R. 165-A-Whether ultra vires-Constitution of India, Art. 311(2).
Rule 165-A of the Bombay Civil Services Rules, applicable to
the State of Saurashtra, as amended,
provided : Government
retains an absolute right to retire any Government servant after
he has completed 25 years qualifying service or 50 ye<trs of age,
whatever ·the service without giving any reason, 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 a Government servant
such as on account Of inefficiency or dishonesty ............. "
On October 30, 1952, the Government of ... Saurashtra passed
an order compulsorily terminating the services of the respondent,
acting under the above rule. The respondent filed a writ application in the High Court challeμging t\le validity of the order on
the ground that it was made without any notice to him of any
.charge of misconduct or inefficiency and without any enquiry and
was, in consequence, in contravention of Art. 311 (2) of the Cons ti·
tution of India. Though the respondent had completed the age
of 50 on the date of the order, his contention was that in view of
the fact that R. 165-A provided that the right to retire will not be
exercised except on grounds of inefficiency or dishonesty, an order
retiring an officer before the age of superannuation was in substance one of dismissat or removal and must satisfy the
requirements of Art. 311(2), and that R. 165-A, in so far as it authorised
the Government to terminate the services without any reason and
without any enquiry, was repugnant to Art. 311(2) and therefore
ultra vires.
Held, that R. 165-A is not violative of Art. 311(2) and is intra
vires, and that. the impugned order, dated October 30, 1952, is
valid.
An order under R. 165-A is not one of dismissal or ·removal·
and Art. 311(2) is not applicable to such an order.
Shyam Lal v. The State of Uttar Pradesh, (1955)
I.S.C.~. 26,
explained and followed.
1957
September 25.
19~7
Tht Statt of
Bombay
v.
SaMbhagchand
M. Do1hi
'Y~nkatarama
A.lyar J.
572
SUPREME COURT REPORTS
[1958)
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
182 of 1955.
Appeal from the judgment and order dated
February 26, 1954, of tile former Saurashtra High Court
in Civil Miscellaneous Application No. 52 of 1953.
R. Ganapathy Iyer, K. L. Hathi and R. H. Dhebar,
for the appellant.
N. C. Chatterjee, J. B. Dadachanji and Rameshwar
Nath, for the respondent.
1957. September 25. The Judgment of the Court
was delivered by
VENKATARAMA AIYAR J.-This
is an appeal
against the judgment and order of the High Court of
Saurashtra in a writ petition filed by the respondent,
setting aside an order passed by the State of Saurashtra
on October 30, 1952 retiring him from service.
The respondent was appointed in 1948 Memandari,
that is, Superintendent of State Guest Houses, in
what was the State of Junagadh when it was administered by the Government of India, and was, later on,
confirmed in that appointment. In 1949, Junagadh
became integrated into the State of Saurashtra, and,
thereafter, the services of the respondent were
continued by that State, and he was appointed from
time to time to various posts. On June 15, 1950, he
was appointed Sales Tax Officer, Madhya Saurashtra,
Rajkot, and was confirmed in that post on April 16,
1952. On October 30, 1952, the Government of
Saurashtra, purporting to act under Government
Resolution No. 60 of 1948 as it then stood, passed an
order compulsorily terminating his services. The respondent thereupon
filed a writ application in the
High Court of Saurashtra, challenging the validity of
this order on the ground that it was made without
any notice to him of any charge of misconduct or
inefficiency and without
any enquiry, and was, in
consequence, in contravention of Art. 311 (2).
The
learned Judges upheld this contention, and set aside
the order
in question
on the
ground
that it
was, in effect, one of dismissal, and that, as there has
been no enquiry, it was illegal and void. This appeal
S.C.R. · SUPREME COURT
REPORTS
573
has been preferred against their judgment and order
on a certificate under Art. 133(1)(c).
It will be convenient at this stage to refer to the
relevent rules bearing on the question. Rule 161 of
the Bombay Civil Services Rules, which Rules had been
adopted by the State of Saurashtra with some modifications, runs as follows:
"Except as otherwise provided in the
other
clauses of this rule, the date of compulsory retirement
of a Government servant, other than an inferior servant, is the date on which he attains the age of 55
years. He may be retained in service after the date
of compulsory
retirement
only with the previous
sanction of Government, on public grounds which
must be recorded in writing."
It may
be stated that the respondent was not an
inferior servant, and this rule was therefore applicable
to him.
Then, there was R. 165-A, which was in these
terms·
"A competent authority may remove any Government servant subject to these rules from Government
service or may require him to retire from-it on the
ground of misconduct, insolvency or inefficiency:
Provided that, before any such order is issued, the
procedure referred to in Note 1 to rule 33 of the Bombay Civil Services, Conduct, Discipline and Appeal
Rules shall be followed."
Note 1 referred to above is as follows:
"For the procedure to be followed
before an
order of dismissal, removal or reduction in rank can
be passed, see Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, which has
been reproduced in Appendix I to these Rules. The
instructions issued by the Government for the guidance
of officers in taking proceedings under that .Rule are
contained in Appendix II to these Rules".
.
Rule 55, referred to above, in so far as it is material,
is as follows:
"Without prejudice to the provisions of the Public
Servants Inquiries Act, 1850, no order of dismissal,
removal or reduction shall be passed on a member
19S7
The State of
Bombay
v.
Saubhagchand
M. Doshi
Venkatarama
Afyar J.
1957
The State of
Bomba)'
v.
Saubhagchand
M. Doshi
Venkataran1a
Aiyar J.
574
SUPREME COURT REPORTS
. [1958)
of a Service (other than an order based on facts which
led to his conviction in a criminal court) unless he
has been informed in writing of the grounds on which
it is proposed to take action, and has been afforded
an adequate opportunity of defending himself. The
grounds on which it is proposed to take action shall
be reduced to the form of a definite charge or charges,
which shall be communicated to the person charged
together with a statement of the allegations on which
each charge is based and of any other circumstances
which it is proposed to take into consideration in
passing orders on the case. He
shall be required,
within a reasonable time, to put in a written statement of his defence and to state whether he desires
to be heard in person. If he so desires or if the
authority concerned so directs, an oral enquiry shall
be held.
At that inquiry oral evidence shall be
heard as to such ·of the allegations as are not admitted,
and the person charged shall be entitled to crossexamine the witnesses, to give evidence in person
and to have such witnesses called as he may wish,
provided. that the officer conducting the inquiry may,
for special and sufficient reason to be recorded in
writing refuse to call a witness. The proceedings
shall contain a sufficient record of the evidence and
a statement of the findings and the grounds thereof."
The sum and substance of these rules is that when
it is sought to remove or retire a Government servant on account of misconduct, insolvency or inefficiency before the age of superannuation which was
55 years, there must be an enquiry as provided in
R. 55. The complaint of the respondent is that he
was only 50 on October 30, 1952, and that as there
was no enquiry as required by R. 55, the order of
retirement is illegal.
Rule No. 165-A, however was amended by the
Saurashtra Government on September 28, 1950, and
again on January 15, 1952, and on the relevant date,
the rule, as amended and omitting what is not. material,
stood as follows:
"Government is pleased to direct that the proviso
and the Note to Bombay Civil Services Rule 165-A
S.C.R.
SUPREME COURT REPORTS
575
shall not apply to the servants of this Government.
Government is further pleased to issue the following
orders which shall be made
applicable to
such
servants:
Government retains an absolute right to retire
any Government servant after he has completed 25
years qualifying service or 50 years of age, whatever
the service without giving any reason, 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 a Government servant such as on account
of inefficiency or dishonesty. Thus the rule is intended
for use:
·
(i) Against a Government servant whose efficiency
is impaired but against whom it is not desirable to
make formal charges of inefficiency or against one who
has ceased to be fully efficient (i.e., when a Goveri:iment servant's value is clearly incommensurate with
the pay which he draws) but not to such a degree as
to warrant his retirement on a· compassionate allowance; and
(ii) in case where corruption is clearly established
even though no specific instance is likely to be proved
under the Bombay Civil Services Conduct, Discipline
and Appeal Rules".
Under this rule, the Government had the power to
terminate the services of an officer without assigning
any reason, if he had completed 25 years of service or
· attained the age of 50. It was under this rule that
the order was statedly made on October 30, 1952, and
as the respondent had completed the age qf 50 on that
date, the order would be within the scope of the authority conferred on the State by that rule, and must be
upheld, unless the rule itself is held to be ultra vires.
Now, the stand taken by the respondent in the
Court below was that an order retiring an officer before
the ·age of superannuation was in substance one of
dismissal or removal and must, in order to be valid,
satisfy the requirements of Art. 311 (2) and that
R. 165-A, in so far as it authorised the Government to
terminate the service without any reason and without
1957
The State of
Bombay
v.
Saubhagchand
M. Doshi
Venkatarama
Aiyar J.
1957
TM State
of
Bombay
v.
Saubhagc/uznd
M. Doshi
Yenkatarama
.Aiynr J.
576
SUPREME COURT REPORTS
[1958]
any enquiry was repugnant to Art. 311(2), and was
therefore ultra vires. This contention found favour
with the learned Judges in the Court below.
Since the above decision was given, the question
whether an order of compulsory retirement was one of
dismissal or removal within Art. 311(2) came up for
consideration in this Court in Shyam Lal v. The State
of Uttar Pradesh('), and it was held that such an order
did not amount to one of dismissal or removal within
the meaning of that Article, and was not protected by
it. If this decision applies to the present case-and
it is the contention of the appellant that it does-then
there can be no question but that the order dated
October 30, 1952, is valid, and that this appeal must
succeed. Mr. N. C. Chatterjee for the respondent
contends that that decision does not govern the present
appeal, and his argument in support of this contention
may .thus be stated: The rule as to compulsory retirement embodied in Note I to art. 465-A, which was
considered in Shyam Lal's case('), was in
these
terms :
"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".
Rule 165-A differs from the above rule in a material
particular, in that after incorporating the above rule,
it proceeds_ on to state that the right will not be exercised except on grounds of inefficiency or dishonesty.
An order of retirement under Note I to art. 465-A
carries with it no stigma and no imputation against
the character or the ability of the officer, whose
services are terminated. But where the termination
is under R. 165-A, it must reflect on the efficiency or
the capacity of the officer, and where
a person's
services are terminated before the age of superannuation on grounds of inefficiency or dishonesty, that could
be regarded only as dismissal or removal.
(t) [1955) I S.C.R. •6.
S.C.R.
SUPREME COURT REPORTS
577
Support for this argument was sought in the following observations in Shyam LaJ's Case(1) at p. 41 :
"There can be on doubt that removal-I am 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 efement of charge or imputation in the case of
compulsory retirement .... .It is true that this power of
compulsory retirement may be used when the authority exercising this power cannot . substantiate the
misconduct which may be the real cause for taking
the action but what is important to note is that the
directions in the last sentence in Note I to article
465-A make it abundantly clear that an imputation or
charge is not in· terms made a condition for the
exercise of the power. Jn other words, a compulsory
retirement has no stigma or implication of misbeha-
. viour or incapacity."
It was argued that the principle to be deduced from
these observa.tions was tbat where
the retirement
involved a stigma or imputation of mi.sconduct or
incapacity, then it must be treated as dismissal, and
that, on that principle, an order of retirement
under
R. 165-A must be held to be one of dismissal or
removal.
This argument proceeds on a misconception as to
what was decided in Shyam Lal's case(1). There the
point for determination was simply whether an order
of retirement was one of dismissal or removal falling
within the purview of Art. 311(2), and it was held that
it was not. The ratz'o decidendi of that decision is this:
Under the rules, an order of dismissal is a punishment
laid on a Government servant, when it is found that he
(1) (1955] I S.C.R. 26.
19S7
The State of
Bombay
v.
Sa11bhagchand
M. Doshi
Venkatarama
Alyar J.
1957
The State of
Bon1bay ·
v.
Saubhagchand
M. Doshi
Ve11kataran10
Aiyar J.
578
SUPREME COURT REPORTS
[1958]
has been· guilty of misconduct or inefficiency or the like,
and it is penal in character, because it involves Joss
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 re-appointment, 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.
Now, the policy underlying Art. 311 (2) is that when
it is proposed to take action against a servant by way
of punishment 11nd 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. 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 R. 165-A cannot be held to be one of
dismissal or removal, as it does not entail forfeiture
of the proportionate pension due for past services.
Does it make any difference in the position, as is
contended by the respondent, that R. 165-A provides,
unlike Note I to art. 465-A in Shyqm Lal's case(') that
the power is not to be exercised except in cases of
misconduct or inefficiency ? 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. Indeed,
in Shyam Lal's case('), the Government did give to the
(1) [1955]. 1 S.C.R. 26.
S.C.R.
SUPREME. COURT REPORTS
579
officer concerned, notice of charges of misconduct and
inefficiency and called for his explanation,
though a
formal enquiry was not held. In providing that no
action would be taken except in case of misconduct or
jneffi.ciency, R. 165-A only made explicit what was
implicit in Note I to art. 465-A. · 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
mearly furnish the background and the enquiry, if
held-and there is on 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
Art. 311 (2). It should be added that questions of the
above character could arise only when the rules fix
both an age of superannuation and an age for compulsory retirement and the services of a civil servant are
terminated between these two points of time. But .
where there is no rule fixing the age of compulsory
retirement, or if there is one and the servant is retired
before the age prescribed therein, then that can be
regarded
only as
dismissal
or
removal within
Art. 311 (2).
Now, the provision in R. 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
~ts servant without assigning any reason. It is really
m the 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.
'Ye a.re accordingly of opinion that R. 165-A is not
y1olative of Art. 311 (2) and is intra vires, and that the
Impu~ned order dated October 30, 1952, passed in
exercise of the power conferred thereby is valid.
A contention was also raised for the respondent that
under the rules of service in force in the State of
1957
The
State of
Bombay
v.
Saubhagchand·
M. Doshi
Venkatarama
Aiyar J.
1957
The State of
Bombay
v.
Saubhagchand
M. Do1hl
Venkataramtt
Alyar J.
1957
580
SUPREME
COURJ REPORTS
[1958]
Junagadh, the age of superannuation was 60, that
art. XVI of the Instrument of Accession provided that
the permanent members of the public services in the
several States should be continued on conditions not
less advantageous than those on which they were
holding office at the· date of accession, and that under
this Covenant, the respondent was entitled to continue
until he attained the age of 60. The decision in
Bholanath J. Thaker v. State of Saurashtra(') was
relied on in support of this position. But no such
claim was put forward in the writ petition, and it is
now too late to raise it.
In the result, the appeal is allowed, the order of the
lower Court is set aside, and the petition of the res-
. pondent is dismissed. The parties will bear their own
costs throughout.
Appeal allowed.
THE STATE OF MADRAS
v.
September 26
A. VAIDYANATHA IYER
(B. P. SINHA, GOVINDA MENON and J. L. KAPUR, JJ.)
Appeal by special /eave-Order of acquittal by the High CourtPower of Supreme Court-Presumption-Prevention of Corruption
Act. (II of 1947), s. 4-Constitution of India, Art. 136.
Respondent, an Income-tax Officer, called an assessee to his
house and took a sum of Rs. 800 from him. Immediately afterwards a search was made and the respondent, after some evasion
produced the money. The respondent's defence was that he had
taken the money as a loan and not as illegal gratification. The
Special Judge who tried the respondent found him guilty under
s. 161, Indian Penal Code, and sentenced him to six months simple
imprisonment. On appeal, the High Court acquitted the respond-
'
ent. The State obtaine.d special leave and appealed.
Held, that the words used ·in Art. 136 of the Constitution
show that in criminal matters no distinction can be made as
a
matter of construction between a judgment of conviction and one
of acquittal. The Supreme Court till not readily interfere with
the findings of fact given by the High Court but if the High Court
(t) A.I.R. (1954) S.C. 680.