M. Narasimhachar vs State of Mysore

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Appeal (civil) 438 of 1958

Decision Date: 12 October 1959

Coram: S.J. Imam, J.L. Kapur, K.N. Wanchoo, B.P. Sinha CJ, K.C. Dasgupta

In this matter, the Supreme Court of India heard an appeal filed by special leave against an order of the Mysore High Court that arose out of a service dispute. The appeal, designated as civil appeal number 438 of 1958, was filed by M. Narasimhachar against the State of Mysore. The judgment was delivered on 12 October 1959. The bench that heard the case comprised Chief Justice B. P. Sinha, Justice S. J. Imam, Justice J. L. Kapur, Justice K. N. Wanchoo and Justice K. C. Dasgupta, with the opinion being written by Justice K. N. Wanchoo. The appellant had been an employee of the Mysore State government. In 1951 he held the position of manager of the Government Reserve Food-grains Depot located at Pandavapura. On 15 May 1951 he was transferred from Pandavapura and he handed over the charge of the depot to a subordinate identified as Sri Srinivasachar. Subsequent to the hand-over, Sri Srinivasachar prepared a report indicating that the stock he received was short of twenty-seven pallas of ragi. In response to this allegation an enquiry was instituted by the sub-division officer. The appellant was not satisfied with the manner in which that enquiry was conducted and he complained against the sub-division officer. He also brought to the attention of higher authorities the fact that certain rooms containing stock of gunny bags had been sealed, and that the seals were not removed until 24 March 1952. Because the sealed bags could not be accessed, a large number of those gunny bags deteriorated and were subsequently infested by white ants. These preliminary investigations continued up to August 1952, at which time the appellant was appointed Special Revenue Inspector under the Assistant Director of Food Supplies. He proceeded to assume the duties of the new post in September 1952, but an order dated 12 September 1952 prohibited him from taking charge. The appellant then appealed to higher authorities, but he was suspended from service on 29 December 1952. On 4 April 1953 the authorities framed a series of charges against him. The first charge alleged that he had taken two months to hand over the reserve depot to his successor in order to conceal irregularities in the depot’s management. The second charge alleged that he failed to provide a detailed hand-over by counting the gunny bags. The third charge alleged that he did not obtain specific orders from the amildar to store the new gunny bags in the mill, and that his intention was to facilitate a clandestine sale of those bags. The fourth charge alleged that he did not maintain a regular account of the bags and failed to have the account checked by superior officers, thereby evading accountability for the loss of approximately eleven thousand bags. The fifth charge alleged that he deliberately mixed husk with ragi, cheating the government to the extent of twenty-seven pallas of ragi. The sixth charge alleged that he manipulated the accounts, and the seventh charge alleged that he failed to have the stock inspected each month by the amildar.

The appellant answered the charges and submitted several representations to various officers regarding the same matters. Subsequently, on 23 November 1953, the Director of Food Supplies issued a notice directing the appellant to appear in connection with an enquiry into the shortage at the reserve depot. Following that notice, the Personal Assistant to the Director conducted an enquiry and later prepared a report on its findings. Thereafter, on 30 December 1951, the Government served a notice stating that six of the seven charges framed against the appellant—excluding the charge concerning twenty-seven pallas of ragi—had been proved by the enquiry, and that he must within one week show cause why he should not be compulsorily retired, why the period of suspension should not be treated as leave to which he might be entitled, and why his leave allowances, insurance amount and fifty per cent of his pension should not be adjusted against the amount due for the shortage of gunny bags valued at Rs 5,215. The appellant responded with a lengthy explanation to that notice. While these proceedings were pending, the appellant attained the age of fifty-five years, after which the Government issued an order on 18 March 1955. That order declared that Sri M. Narasimhachar would be retired from service as of the date he attained superannuation, and that, under Article 302(b) of the Mysore Services Regulations, he would receive a reduced pension equal to two-thirds of the amount he would ordinarily have been entitled to, in view of the irregularities attributed to him. The order further stipulated that the period of suspension would be treated as leave to which he was entitled; that the cost of ten-thousand four-hundred thirty gunny bags found short would be recovered from him at the rate of eight annas per bag; that his leave allowances, insurance amount and any death-cum-gratuity amount would be adjusted against the amount due to the Government; and that the balance remaining after such adjustments would be recovered in monthly instalments by deducting fifty per cent of his pension as provided in the first clause. Subsequently, on 5 September 1955, the appellant filed a petition under Article 226 of the Constitution in the High Court. He primarily contended that the Government’s order retiring him was not in conformity with Articles 294 to 197 of the Mysore Services Regulations and the Revised Pension Rules contained therein. He also argued that the reduction of his pension to two-thirds of the normal amount was invalid because it had not been mentioned in the notice dated 30 December 1954, and that such a reduction violated Article 311(2) of the Constitution. Finally, he challenged the order in its entirety.

It was asserted that the Government’s decision to treat the appellant’s period of suspension as a period of leave that might have been due to him, and to recover the sum of Rs. 5, 215 from amounts that were otherwise payable to him, including his pension, was illegal and arbitrary. The State of Mysore opposed the petition and argued that the order was fully compliant with the applicable regulations and that Article 311(2) of the Constitution did not apply in any circumstance. Accordingly, the State maintained that the reliefs claimed by the appellant could not be granted in a writ petition. The High Court accepted the State’s position, holding that Article 311(2) was inapplicable and that the Government’s order conformed to the regulations. On that basis the Court concluded that it could not grant any relief to the appellant and dismissed the petition. After the dismissal the appellant applied for a certificate that would permit him to appeal to this Court; the application for that certificate was refused. He subsequently sought special leave to appeal before the Supreme Court, and that special leave was granted, bringing the matter before this Court.

There is no dispute that the proceedings in this case commenced in April 1953 with the purpose of initiating disciplinary action against the appellant. He was served with a charge-sheet and an enquiry was instituted thereafter. The enquiry, however, extended over a considerable period, and as a result the appellant reached the age of fifty-five in December 1954. When the Government issued a notice to the appellant on 30 December 1954, it chose to retire him rather than to pursue any other disciplinary measure. Because of that decision, the provisions of Articles 294 to 297 of the regulations, which deal with retirement, became directly relevant. Before the High Court the appellant contended that, under those articles, he was entitled to continue in service even after attaining the age of fifty-five, and that the Government had no authority to order his retirement solely on the basis of his age. He further argued that the choice of whether a public servant should retire at fifty-five rested with the servant himself. The article that was relied upon to support this contention is Article 294, which reads in full as follows: “294(a) – A Government servant in superior or inferior service, who has attained the age fifty-five years, may be required to retire unless the Government considers him efficient, and permits him to remain in the service. But as the premature retirement of an efficient Government servant imposes a needless charge on the State, this rule should be worked with discretion. And in cases in which the rule is enforced, a statement of the reasons for enforcing it shall be placed on record. Note 1 – It is trusted that the heads of departments will always be disposed to extend to this rule a very liberal interpretation, so that the State may, in no case, be deprived of the valuable experience of really efficient Government servants by the untimely exercise of the powers of compulsory retirement.”

Note 2 of the regulations states that the provisions apply to every Government servant regardless of his nationality. It further provides that the heads of departments have the authority to retire all non-gazetted Government servants who reach the age of fifty-five years. The same provision allows the heads, in very exceptional circumstances, to extend the service of a non-gazetted employee for a period not exceeding six months if the employee is considered efficient and such an extension is absolutely necessary for the public interest. The regulation expressly prohibits any extension beyond six months unless a specific order is issued by the Government. From these provisions it is evident that the retirement age prescribed in the regulations is fifty-five years and that the continuation of service after that age is solely at the discretion of the Government, which may retain an employee only if it deems him efficient. Although Note 1 attached to the article urges heads of departments to adopt a liberal approach, the mandatory retirement age remains fifty-five, and any further service is dependent on the Government’s option. Article 295(c) reinforces this rule for non-gazetted servants. Moreover, Article 296 obliges each head of department, on or before the first of September each year, to forward to the Government a list of non-gazetted servants who will attain the age of fifty-five during the following year as well as a list of those who have been granted extensions. This reporting requirement underscores the principle already established in Article 294(a) that fifty-five is the fixed age of retirement.

Article 297, which the appellant chiefly relied upon, provides that a Government servant in superior service who has attained the age of fifty-five may, at his own option, retire from service and claim a superannuation pension. The appellant argued that this language places the choice of retirement entirely with the servant, allowing him either to retire at that age or to continue in service. The Court, however, rejected this interpretation. It held that Article 297 must be read in conjunction with Article 294(a), which grants the Government the power to retain servants beyond the age of fifty-five when it judges them to be efficient. Accordingly, Article 297 simply gives a servant the right to elect retirement if the Government wishes to keep him in service after he has turned fifty-five; it does not confer upon the servant an unrestricted right to remain in service irrespective of the Government’s decision. Thus, the Government remains fully empowered to retire a servant at the age of fifty-five if it deems the servant inefficient, even if the servant does not exercise the option to retire. In light of this reasoning, the order issued by the Government on 18 March 1955, which retired the appellant from the date on which he completed fifty-five years of age, was found to be consistent with the combined effect of Articles 294 and 297 of the regulations.

The appellant referred to Appendix A of the regulations, which contained the Revised Pension Rules made under Article 215. Rule 2(ii) of those rules stated that a government servant could retire after completing thirty years of qualifying service, provided that the servant gave a written notice to the appropriate authority at least three months before the intended date of retirement. The same rule also allowed the government, in special cases, to require a servant to retire after twenty-five years of qualifying service or upon attaining the age of fifty years, if such retirement was deemed necessary in the public interest. In those cases the appropriate authority was required to give the servant a written notice at least three months before the date on which retirement was to take effect.

The appellant argued that the three-month notice provision applied to his retirement at the age of fifty-five, and that because the government had not given him such notice, the retirement order dated 18 March 1955 was invalid and contravened the rule. The Court held that this argument misread the rule. The rule was to be read as complementary to Articles 294 and 297 of the regulations governing retirement of public servants. It was intended to cover two separate situations: first, that a servant who had completed thirty years of service could request retirement, after giving three months’ notice, even if he had not yet reached the age of fifty-five; and second, that the government could compel retirement of a servant who had completed twenty-five years of service or who had reached the age of fifty, provided the government gave three months’ notice. The rule did not impose an automatic three-month notice requirement on every retirement that occurred after the servant had passed fifty years of age or after twenty-five years of service. Its purpose was to provide a mechanism for early retirement before the ordinary retirement age of fifty-five, not to create a universal notice requirement for all retirements occurring at or after that age. Consequently, the appellant could not succeed on the ground that the retirement order was illegal for lacking the three-month notice, and the order was not contrary to the retirement rules.

The appellant further contended that, because his pension had been reduced to two-thirds, he was entitled to notice under Article 311(2) of the Constitution before the government could impose that “punishment,” and that such notice was absent from the communication dated 30 December 1954. The Court found this contention to be without merit. Article 311(2) did not address pension matters; it dealt with three specific situations—dismissal, removal, and reduction in rank. Thus, the provision of Article 311(2) could not be invoked to require notice before a reduction in pension.

The Court observed that Article 311(2) of the Constitution mentions only three situations: dismissal, removal, and reduction in rank. The appellant attempted to equate the reduction in his pension with a reduction in rank. The Court explained that a reduction in rank applies to a public servant who continues to serve after the reduction and has no connection with a reduction in pension, which is governed separately by Article 302 of the regulations. That provision allows the authority responsible for granting the pension to reduce the amount whenever the service record is not fully satisfactory, and the authority may determine the appropriate reduction. A note to Article 302 further states that the full pension authorized by the regulations is not automatically granted but is treated as a matter of distinction. The Court concluded that the Government acted under this article when it reduced the appellant’s pension to two-thirds, and because the reduction of pension is a discretionary power of the Government, no breach of the regulations occurred.

Finally, the appellant challenged the part of the Government order that required a deduction of Rs 5,215 from the amount due to him and the recovery of that sum from his monthly pension. The Court pointed out that Article 216A of the regulations expressly authorizes the Government to recover from a servant’s pension and compassionate allowances any amount found to have been lost by the Government as a result of the officer’s negligence or fraud during his service, whether the loss is identified in judicial or departmental proceedings. The article contains a proviso stating that departmental proceedings not instituted while the officer was on duty shall not be instituted except under specific circumstances, which the Court did not need to elaborate. The appellant argued that the departmental proceedings against him should have been conducted in accordance with that proviso. The Court rejected this argument, noting that the proviso only becomes applicable when departmental proceedings are initiated after the officer has left service. Since the proceedings in the present case were instituted while the appellant was still in service, the proviso did not apply.

The Court also addressed the appellant’s claim that the Fundamental Rules of the Government of India were applicable to him. The Court clarified that the regulations, not the Fundamental Rules, governed the appellant’s service, and therefore his contention was misplaced. On the basis of these observations, the Court concluded that the appeal had no merit and dismissed it. No order regarding costs or court-fee was made in the circumstances of the case.