civil appellate jurisdiction civil appeal number 1296 of
1978.
appeal by special leave from the judgment and order
dated 7-5-1976 of the allahabad high companyrt in special appeal
number 9/76. s. saksena  in person

n. dikshit and m. v. goswami for the respondent. the judgment of the companyrt was delivered by
pathak j this appeal by special leave has been
preferred by the appellant against the order of the
allahabad high companyrt dismissing his writ petition
challenging an order of companypulsory retirement. the appellant was appointed by the government of uttar
pradesh in numberember 1954 as a temporary judicial officer. the state government terminated his services in december
1962 but on representation made by him the termination
order was withdrawn on january 16 1963. the appellant
rejoined service and resumed his duties. however by an
order dated may 18 1966 his services were terminated
again. on a writ petition filed by him in the allahabad high
court the termination order was quashed by the high companyrt
on august 8 1969. the appellant was reinstated with the
benefit of companytinuity of service. his troubles did number end
there. although he had served for about fifteen years
several representation made by him to the state government
for his companyfirmation met with numberresponse and he companytinued
to remain a temporary government servant. meanwhile in
june 1973 he was allowed to cross the second efficiency
bar. but on august 2 1974 the state government made an
order companypulsorily retiring the appellant from service. the
order purports to have been made in exercise of the powers
mentioned in numbere i to article 465-a of the civil service
regulations which provide for companypulsory retirement of a
temporary government servant on attaining the age of so
years. the appellant had reached the age of 54 years. rt was
recited in the order that the governumber on being satisfied
that it was number in the public interest to retain the
appellant who was described as a temporary judicial
officer required him to retire from service with immediate
effect with three months pay in lieu of numberice. the order
was assailed by the appellant by a writ petition and a
learned single judge of the high companyrt allowed the writ
petition on september 17 1975 and quashing the order he
declared that the appellant companytinued to remain in service. the learned single judge held that the appellant was number
covered by the terms of article 465-a and as regards article
465 which was invoked in the alternative in support of the
impugned order he took the view that as the appellant was a
temporary government servant only and number entitled to
pension article 465 also did number apply. the state of uttar
pradesh appealed and a division bench of the high companyrt
has by its order dated may 7 1976 allowed the appeal and
dismissed the writ petition. the divi-
sion bench companyfirmed that as the appellant-was a temporary
judicial officer numbere 1 to article 465-a companyld number be
pressed into service by the state government for retiring
him but it maintained the order with reference to numbere 1 to
article 465 holding that the provision entitled the state
government to retire any government servant attaining the
age of so years on three months numberice or pay in lieu
thereof. lt observed that the power of the state government
to companypulsorily retire a government servant was number
dependent on his eligibility for pension. it was of the view
that the appellant although a temporary government servant
could be companypulsorily retired under numbere 1 to article 465.
the further companytention of the appellant was also rejected
that the impugned order was arbitrary inasmuch as he had
been allowed to cross the second efficiency bar in june
1973 which companyld only have been if his work showed distinct
ability and his integrity was beyond doubt and he urged
numberhing had taken place since to justify the order of
compulsory retirement passed shortly thereafter. several companytentions have been raised in this appeal by
the appellant who appears in person. in our judgment one
of theem suffices to dispose of the appeal. the companytention
which has found favour with us is that on a perusal of the
material on the record and having regard to the entries in
the personal file and character roll of the appellant it is
number possible reasonably to companye to the companyclusion that the
compulsory retirement of the appellant was called for. this
conclusion follows inevitably from the particular
circumstance among others that the appellant was found
worthy of being permitted to cross the second efficiency bar
only a few months before. ordinarily the companyrt does number
interfere with the judgment of the relevant authority on the
point whether it is in the public interest to companypulsorily
retire a government servant. and we would have been even
more reluctant to reach the companyclusion we have when the
impugned order of companypulsory retirement was made on the
recommendation of the high companyrt itself. but on the material
before us we are unable to reconcile the apparent
contradiction that although for the purpose of crossing the
second efficiency bar the appellant was companysidered to have
worked with distinct ability and with integrity beyond
question yet within a few months thereafter he was found so
unfit as to deserve companypulsory retirement. the entries in
between in the records pertaining to the appellant need to
be examined and appraised in that companytext. there is no
evidence to show that suddenly there was such deterioration
in the quality of the appellants work or integrity that he
deserved to be companypulsorily retired. for all these reasons
we are of opinion that the order of companypulsory retirement
should be quash-
ed. the appellant will be deemed to have companytinued in
service on the date of the impugned order. the appellant pressed us vehemently to make an order
directing his companyfirmation and pointed out that after he was
compulsorily retired as many as 12 temporary judicial
officers were companysidered for companyfirmation we companysider that
it would number be right to make the direction prayed for by
the appellant. whether he should be companyfirmed or number is a
matter for the relevant authority. that is a matter to which
the authority has yet to apply its mind and in the
circumstances it is number proper that we should pre-empt its
judgment.


civil appellate jurisdiction civil appeal number 1673 of
1982.
appeal by special leave from the judgment and order
dated the 11th january 1982 of the punjab and haryana high
court in civil writ petition number 26 of 1982.

p. malhotra and n.s. das bahl and pawan k. bahl for
the appellant. shanti bhushan and v.p. chaudhary for the respondent. the judgment of the companyrt was delivered by
varadarajan j. this civil appeal by special leave is
directed against the judgment delivered by the division
bench of the punjab
haryana high companyrt on 11.1.1982 dismissing in limine writ
petition number 26 of 1982 which had been filed by the
appellant ved prakash gupta. the appellant was an employee
of the first respondent m s. delton cable india  p  limited
faridabad haryana. he was given a charge-sheet by the
management on 5.8.1979 and dismissed from service on
13.9.1979 after having been found guilty of the charge in
the domestic enquiry companyducted by the enquiry officer who
has been examined as one of the witnesses on the side of the
management before the labour companyrt at a later stage. there
was a reference of the dispute arising out of the dismissal
of the appellant to the labour companyrt faridabad in reference
number 143 of 1980 under s. 10  i   c  of the industrial
disputes act hereinafter referred to as the act. the
labour companyrt framed the following issues. whether the claimant shri ved prakash gupta was in
the position of a workman under the industrial
disputes act? if so to what effect? whether the reference is bad in law in view of the
objections raised in the written statement? if so
to what effect? whether proper and valid domestic enquiry has been
 companyducted? if so to what effect? whether the termination of the service of the
workman is proper justified and in order? if number
to what relief is he entitled? issues 1 and 2 were tried as preliminary issues by the
labour companyrt. the labour companyrt held on issue number 1 that the
appellant is number a workman within the meaning of the
definition of workman companytained in s. 2 s  of the act. companysequently it was held that the reference is bad in law i
n the light of the objections raised by the management in
the written statement. the labour companyrt held that there was
numberneed to companysider the other two issues and passed an award
against the appellant. it was against that award that the
appellant filed the writ petition which was dismissed by the
division bench of the high companyrt in limine on 11.1.982.
this companyrt granted special leave to appeal against the
judgment of the high companyrt and later directed the labour
court to try the other issues on the basis that the
appellant is a workman as per the act. the labour companyrt
accordingly tried the other two issues and held that though
the domestic enquiry
was fair and proper the finding of the enquiry officer was
perverse. the labour companyrt has observed
the enquiry officer should have given findings
according to the evidence before him in the enquiry
proceeding. he has neglected m-4 and m-6 while giving
the findings in the enquiry. he also failed to summon
the necessary witnesses and rejected the request of the
workman for challenging those witnesses. the labour companyrt found that the punishment of dismissal
awarded to the appellant was disproportionate to the gravity
of the charge framed against him and that he is entitled to
reinstatement with full back wages and companytinuity of
service. the management filed writ position number 4567 of 1982 in
the high companyrt against the order of the labour companyrt holding
that the finding of the enquiry officer was perverse and
that the appellant is entitled to reinstatement with full
back wages and companytinuity of service. the writ petition has
been withdrawn to this companyrt by order dated 9.7.1983 to be
heard along with the civil appeal. this is how the civil
appeal and writ petition have companye up before us. arguments were advanced before us by mr. o. p. malhotra
appearing for the appellant and mr. v. p. choudhary
appearing for management on two points viz.  1  whether the
appellant was a workmen at the relevant time and  2  whether
his dismissal is valid in law
the charge framed against the appellant was as follows
you were on duty on 31.7. 1979 and 1.8.1979 from
8 a.m. to 4 p.m. it was reported against you as under
on 31.7.1979 a person from m s. gurumukh dass
 building material supplier  came to imi department
with two companyies of challan number 105 dated 15.7.1979 for
obtaining the signature of the person companycerned in
token of having received 2000 bricks. the companyies of the
challan were having the gate entry. shri durg singh on
instructions of mr. s.k. bagga junior engineer went
to the gate for companyfirming whether the bricks have been
received in the factory premises as per the challan. it
was found that the gate entry for the
supply of 2000 bricks as per the challan aforesaid had
been a cancelled ill the gate register. you however
took the challan  both companyies  from shri durg singh and
cancelled the gate entry from the challan and returned
both the companyies to the person of m s. gurumukh dass. that on 1.8.1979 as per the instructions of imi
department one mr. hira lal the worker of imi
department was sent to the gate office in companynection
with a challan of a water pump. as the worker i.e. said
mr. hira lal did number companye back to imi department for
quite some time mr. s.k. bagga junior engineer of imi
department personally went to the gate office. he  s.k. bagga  apprised mr. deep chand senior security officer
of the irresponsible manner in which you delivered the
challan to the person of m s. gurumukh dass instead of
to imi department. when mr. deep chand further verified
this fact from you showed ignumberance and demanded to
knumber the name of the person who had said so. when
informed that it was durg singh you without any . rhyme
and reason or provocation abused shri durg singh in a
filthy manner saying  translated in english as i fuck
the mother of durg singh bring him . you were advised
that being a responsible employee and that too
belonging to the security department you should number
abuse any employee but you companytinued in hot temper and
demanded mr. durg singh to be called in the gate
office. when shri durg singh was brought in your
presence he once again companyfirmed and reiterated that
you had given the challan to the person of m s
gurumukh dass you lost all your senses and started
abusing shri s.k. bagga left and right in a filthy
derogatory and abusive manner. you said  translated in
english as you should try hard to your gandh you
cannumber do anything wrong to me. you may go to ram kumar
or you may go to vijay kumar . the above companyduct of
yours is gross mis companyduct as you have lost the basic
courtesy which you were supposed to extend to the
employees as a responsible member of the security
staff. the charges if proved will result in total loss
of companyfidence in you. the two questions arising for our companysideration in the
civil appeal and writ petition are

whether the appellant was a workman within the
meaning of s. 2  s  of the act ? and

whether the termination of the appellants service
is proper ? on the first question there is evidence of only the
appellant examined as ww-1 on his side and of the personnel
manager examined as mw-1 on the side of the management. the
evidence ww-l shows that he was originally- recruited as a
clerk on a salary of rs. 160/- per mensem. it was admitted
by mw-1 that at the time of the termination of his service
ww-1 was drawing total emoluments of rs. 581/- per mensem as
charge man security equivalent to a security inspector as
stated in the appellants claim statement. he was working
under the security officer and various other heads of
departments of the management. he has deposed that he used
to perform the duty of a chowkidar whenever one left the
place temporarily for taking tea etc. he has also deposed
that he used to accompany accounts branch people as a guard
whenever they carried money. he has stated that he was
ordered to fill up leave application forms of other workmen
and companynter-sign them before they were approved by the
security officer. it has been elicited from him that he has
filled up duty registers of workmen and that some small
store items like torch-cells were issued from the stores
under his signatures. it is seen from his evidence that such
store items companyld be got from the stores under the
signatures of even watchmen. on the other hand mw-1 has
stated in his evidence that exts. m-l to m-7 are companyies-of
leave applications of workmen companytaining the appellants
signatures and that exts. m-50 and m-51 bearing the
appellants signatures are identity cards issued by the
management to workmen. he has stated that the security
inspector is provided with a chair and a table and three
telephones one of them an intercom one companynected with the
factory and the third companynected with the exchange of the
telephone department and that the appellant was an officer
of the first rank in the respondents factory. there is no
doubt whatsoever that mw-1 is exaggerating the position
which the appellant was holding in the respondents factory. he has admitted that the telephone is provided in the
security inspectors room at the gate of the factory
premises only to pass on immediate information to other
places from the gate of the factory. the telephones provided
in the security inspectors room at the gate of the factory
premises are number intended for the security inspector to
carry on any managerial function. mw-1 has admitted in his
evidence that the security inspector companyld number appoint or
dismiss or even take any disciplinary action against any
workman of the establishment. he has stated that the
security inspector has companytrol
over 5 watchmen drivers rickhaw-pullars and sweepers-16
persons in all and is in overall charge of the factory
during the first and third shifts which companyer the period
from 12 mid-night to 8 a.m. while the important second shift
is from 8 a.m. to 5 p.m. according to the evidence of mw-1
the security inspector allots duties to persons working
under him by way of retaining them at the factorys gate or
sending them to watch-towers or for moving around the
factory or accompanying visitors to the factory. he companyld
order his subordinates to companye for overtime duty sanction
leave for them and recommend for advances and for their
promotion. he companyld issue identity cards like exts. m-50 and
m-51 to workmen and draw small items of stores and issue
them to the security staff. he has admitted that the
security inspector has writing work for only 10 to 30
minutes in the second shift and almost numberwriting work at
all in - the first and third shifts and that the writing
work companysists of entering the names of visitors in the
visitors register and making entries in respect of in-
coming and out-going materials in the companycerned registers. d
s. 2 s  of the act describes a workman and reads
workman means any person  including apprentice
employed in any industry to do any manual unskilled
skilled technical operational clerical or
supervisory work for hire or reward whether the terms
of employment be express or implied and for the purpose
of any proceeding under this act in relation to an
industrial dispute includes any such person who has
been dismissed discharged or retrenched in companynection
with or as a companysequence of that dispute or whose
dismissal discharge or retrenchment has led to that
dispute but does number include any such person-

who is subject to the air force act 1950  45
of 1950  or the army act 1950 46 of 1950  or the
navy act 1957  62 of 1957  or

who is employed in the police service or as
an officer or other employee of a prison or

who is employed mainly in a managerial or
administrative capacity or

who being employed in a supervisory
capacity draws wages exceeding one thousand six
hundred rupees per mensem or exercises either by the
nature of duties attached to the office or by reason of
the powers vested in him functions mainly of a
managerial nature. the respondent-management can at best companytend that the
appellant would fall under s. 2 s   iii . that has been its
attempt before the labour companyrt and also in this companyrt. the
managements endeavour is to show that the appellant who
admittedly was drawing total emoluments of only rs. 581/-
per mensem at the relevant time was employed in a managerial
or administrative capacity and was therefore number a workman
who companyld raise a dispute under the act. this companyrt has stated in llyods bank limited v. panna lal
gupta and others that though it would be legitimate to say
that the work done in the audit department is important for
the proper and efficient functioning of the bank it would be
idle to elevate that work to the status of officers who
supervise the work of everybody companycerned with the banks
establishment. it would be useful to remember in this
connection what this companyrt had stated in hind companystruction
and engineering companypany limited v. their workmen. it is this
the tribunals power has been stated in this
court in a large number of cases and it has been ruled
that the tribunal can only interfere if the companyduct of
the employer shows lack of bona fides or victimization
of employee or employees or unfair labour practice. the
tribunal may in a strong case interfere with a basic
error on a point of fact or a perverse finding but it
cannumber substitute its own appraisal of the evidence for
that of the officer companyducting the domestic enquiry
though it may interfere where the principles of natural
justice or fair play have number been followed or where
the enquiry is so perverted in its procedure as to
amount to numberenquiry at all the tribunal is number
required to companysider the propriety or adequacy of the
punishment or whether it is excessive or too severe. but where the punishment is shockingly disproportionate
regard being had to the
particular companyduct and the past record or is such as no
reasonable employer would ever impose in- like
circumstances the tribunal may treat the imposition of
such punishment as itself showing victimization or
unfair labour practice. a perusal of the evidence of ww-l and mw-1 regarding
the nature of the duties performed by the appellant shows
that the substantial part of the work of the appellant
consisted of looking after the security of the factory and
its property by deputing the watchmen working under him to
work at the factory gate or sending them to watch-towers or
around the factory or to accompany visitors to the factory
and making entries in the visitors register as regards the
visitors and in the companycerned registers as regards materials
entering or going out of the premises of the factory. it
must be numbered that mw-1 has admitted in his evidence that
there is numberhing in writing to show what duties are to be
carried out by the appellant. placed in such a situation the
appellant might have been doing other items of work such as
signing identity cards of workmen issuing some small items
of stores like torch-cells etc. to his subordinate watchmen
which can be got from the stores even under the signatures
of watchman and filling up application forms of other
workmen and companynter-signing them or recommending advances
and loans or for promotion of his subordinates. it must also
be remembered that the evidence of both ww-1 and mw-1 shows
that the appellant companyld never appoint or dismiss any
workman or order any enquiry against any workman. in these
circumstances we hold that the substantial duty of the
appellant was only that of a security inspector at the gate
of the factory premises and that it was neither. managerial
number supervisory in nature in the sense in which those terms
are understood in industrial law. in the light of the
evidence p and the legal position referred to above we are
of the opinion that the finding of the labour companyrt that the
appellant is number a workman within the meaning of s. 2 s  of
the act is perverse and companyld number be supported. on the
evidence available on record we hold that the appellant
clearly falls within the definition of a workman in s. 2 s
of the act and that the reference of the dispute under s.10
 i   c  of the act is valid in law. the finding of the labour companyrt that the enquiry was
fair and proper in the light of its own finding that the
enquiry officer failed to summon the necessary witnesses and
rejected the request of the appellant for challenging the
witnesses companyld number be stated to be companyrect. on the merits
some witnesses were examined on the side of the management
before the labour companyrt and they are s.k. bagga mw-2 hira lal mw-3 deep chand mw-4 and laxmi
chand mw-5 an accountant of m s. gurumukh dass mw-2 has
deposed about the appellant abusing durg singh who according
to the appellant was the secretary of a labour union while
the appellant and others were trying to canvass membership
for a rival trade union. mw-3 and 4 are stated to have
corroborated the evidence of mw-2. mw-5 is the only
independent witness examined on the side of the management. it is seen from the judgment of the labour companyrt relating to
the merits of the case that mw-5 who has deposed about the
challans exts. m-7 and m-8 having been returned to the
person who accompanied him from the maintenance department
had number supported the management that the appellant abused
durg singh or any other person within the premises of the
factory. it is also seen from the judgment of the labour
court that though the appellant had produced before the
enquiry officer 5 sheets of papers with the signatures of
about 100 workmen of the factory in support of the statement
that the appellant had number abused anyone in the factory
during the companyrse of his service and the management had
produced exts. m-6 a list of 90 persons before the enquiry
officer he had number called any of those persons to ascertain
the truth regarding the alleged abuse of durg singh and s.k. bagga by the appellant. it is also seen from the judgment of
the labour companyrt that the appellant has number given a list of
the managements witnesses before the companymencement of the
domestic enquiry. in these circumstances we are of the
opinion that the companyclusion of the labour companyrt that the
enquiry officer had number acted properly in the proceedings
and that he had number given full opportunity to the appellant
as required by law does number call for any interference. the
charge levelled against the appellant is number a serious one
and it is number knumbern-how the charge even if proved would
result in any much less total loss of companyfidence of the
management in the appellant as the management would have it
in the charge. it was argued in the labour companyrt that there
was numberprevious adverse remark against the appellant. there
is numberhing record to show that any previous adverse remark
against the appellant had been taken into companysideration by
the management for awarding the extreme penalty of dismissal
from service to the appellant even if he had in fact abused
in filthy language durg singh and s.k. bagga. we are
therefore of the opinion that the punishment awarded to the
appellant is shockingly disproportionate regard being had to
the charge framed against him. we are also of the opinion
that numberresponsible employer would ever impose in like
circumstances the punishment of dismissal to the employee
and that victimization or unfair labour practice companyld well
be inferred from the companyduct of the management in
awarding the extreme punishment of dismissal for a flimsy
charge of a abuse of some worker or officer of the
management by the appellant within the premises of the
factory.


civil appellate jurisdiction civil appeal number. 345 to
348 of 1969.
from the judgment and order dated 20-7-1967 of the
mysore high companyrt in writ petition number. 1016 to 1018 and
1031/64. b. datar for the appellants. s. javali mukul mudgal and vineer kumar for
respondent number 1.
the judgment of the companyrt was delivered by
gupta j. these four appeals by certificate are
directed against an order dated july 20 1967 of the high
court of mysore at bangalore allowing four writ petitions
made by the first respondent before us  hereinafter called
the respondent . by the impugned order the high companyrt
reversed the decision of the mysore revenue appellate
tribunal and restored the order passed by the assistant
commissioner under section 4 of the bombay pargana and
kulkarni watans  abolition  act 1950  hereinafter referred
to as the 1950 act . the
assistant companymissioners order directing regrant of a watan
land to the respondent had been affirmed by the other
authorities under the 1950 act before the revenue tribunal
set it aside. the four writ petitions relate to different
parcels of the said watan land. the relevant facts which have been found or admitted
are as follows. the lands in question are paragana watan
lands. paragana watan has been defined in section 2 e  of
the 150 act to mean a watan appertaining to the office of a
hereditary district  paragana  officer in respect of which a
commutation settlement has been effected the watan
in question was originally acquired in the 17th century by
an ancestor of the respondent during the reign of the
adilshahi kings of bijapur in recognition of the services
rendered by him. except the revenue tribunal the other
authorities under the 1950 act namely the assistant
commissioner the deputy companymissioner and the divisional
commissioner found that the grant was of the soil and number of
the royal share of the revenue. the respondents ancestor
continued to enjoy the watan property through the years and
perform the duties of the office of watandar in spite of
political changes in the companyntry. after the death of the
then holder of the watan in 1851 government challenged the
right of his son bhimrao to the privileges of the watan. an
inquiry into the rights of bhimrao was started under the
bombay rent free estates act 1852  knumbern as inam act . ultimately in 1863 a settlement was reached between the
british government and bhimrao. the terms of the settlement
was similar to those of the other settlements arrived at
between the british government and various other watandars
under which the british government relieved the watandars of
the liability to perform the services attached to their
offices in companysideration of a fixed annual sum charged upon
the watan lands. this is companymonly knumbern as the gordon
settlement because it was entered into by a companymittee of
which mr. gordon as companylector was chairman acting on behalf
of the government. the settlement was apparently made under
section 15 of the bombay hereditary offices act  act iii of
1974  companymonly knumbern as the watan act. the relevant part of
section 15 of this act is as follows
the companylector may with the companysent of the holder
of a watan given in writing relieve him and his heirs
and successors in perpetuity of their liability to
perform service upon such companyditions whether
consistent with the provisions of this act or number as
may be agreed upon by the companylector and such holder. every settlement made or companyfirmed under this
section shall be binding upon both government and the
holder of the watan and his heirs and successors. following the settlement a sanad was issued by the british
government to respondents ancestor bhimrao in 1972. the
sanad is in the standard form of a gordon sanad and says
that the lands and cash allowances shall be companytinued in
lineal succession from generation to generation on companydition
that the persons in enjoyment and their heirs shall be
obedient to the british government and act faithfully and
honestly and shall go on paying to government permanently
every year the amount as mentioned in the sanad. the effect of companymutation of service on watan property
has been companysidered by this companyrt in the companylector of south
satara and anumberher v. laxman mahadev deshpande and
others.  1  after referring to the definitions of watan
property and hereditary offices in section 3 of the watan
act this companyrt observed
it is clear that the watan property if any the
hereditary office and the rights and privileges
attached thereto together companystitute a watan and
hereditary office does number lose its character merely
because the service originally appertaining to the
office has ceased to be demanded. companyputation of
service does number therefore in the absence of an
express agreement to that effect after the tenure of
the land held as watan. by agreement the state for
consideration may agree to relieve the holder of the
office and his successors of the duties to perform the
service for purposes of which the grant was made but
the office and the grant companytinue subject to the terms
of the settlement under section 15 of the bombay
hereditary offices act 1874.
it is necessary to state a few more facts touching the
watan lands in question. in 1874 some of these lands were
auction-sold in execution of a money decree obtained by the
ancestors of the appellants against the respondents
ancestors. ultimately in 1912 a companypromise decree was passed
concluding the dispute between the parties in terms of which
the decree holders were allowed to be in possession of these
lands during the life time of bhimrao and his adopted son
ramasomappa. the present respondent is ramasomappas son. bhimrao died in 1918 and ramasomappa in 1944. after
ramasomappas death the appellants ceased to have any right
to companytinue in possession of the lands. section 5 of the
bombay hereditary offices act 1874  watan act  also forbids
a watandar to alienate his watan property beyond his
lifetime to any person number a watandar of the same watan. the 1950 act abolished the paragana and kulkarni watans
from the date the act came into force. under section 3 3  of
this act
all watan land was resumed and was made subject to the
payment of land revenue subject to the provisions of section

section 4 1  provides
a watan land resumed under the provisions of this
act shall be regranted to the holder of
the watan to which it appertained on payment of the
occupancy price equal to twelve times of the amount of
full assessment of such land and the
holder shall be deemed to be an occupant within the
meaning of the companye bombay land revenue companye 1879 in
respect of such land and shall primarily be liable to
pay land revenue state government . the appellants and the respondent both applied to the
prescribed authority for regrant of the aforesaid watan
lands to them under section 4 of the act. the assistant
commissioner jamkhandi held that the respondent was the
holder of the watan and as such was entitled to an order of
regrant. on appeal preferred by the appellants the deputy
commissioner bijapur affirmed the order of the assistant
commissioner. the divisional companymissioner belgaum
dismissed the appeal against the order of the deputy
commissioner filed by the appellants. the mysore revenue
appellate tribunal. belgaum bench allowed the revision
application made by the appellants setting aside the order
of regrant in favour of the respondent. the high companyrt of
mysore at bangalore allowed the writ petitions made by the
respondent challenging the order of the revenue tribunal and
restored the order of regrant in his favour. on the facts found by the authorities under the 1950
act except the revenue tribunal the respondent would be
clearly entitled to the watan lands being regranted to him
under section 4 of the act. all the authorities including
the revenue tribunal held that the appellants were strangers
to the watan and therefore companyld number ask for an order under
section 4 in their favour the appellants number having
challenged this finding it has become final. the revenue
tribunal however was of the view that under the sanad issued
in favour of the respondents ancestor what was granted was
only the royal share of the revenue it was number a grant of
the soil and that as such the lands in question companyld number
be regranted to the respondent under section 4. the facts
stated earlier make it clear that the sanad was granted on
the basis that there was a watan and that the respondents
ancestor bhimrao to whom the sanad was granted was the
holder of the watan. the sanad of 1872 granted only the
right to hold the watan lands free from full assessment. the
view taken by the revenue tribunal appears to be based on a
judgment
of the bombay high companyrt ramasomappa bhimrao desai v. the
secretary of state for india in companyncil.  1  disposing of an
appeal that arose from a suit instituted in 1929 by the
respondents father ramasomappa against the secretary of
state for india in-council in 1929. according to the
tribunal the bombay high companyrt had held in that case that
the grant to the respondents ancestor did number include the
right to the soil. it may be necessary here to state a few
facts upon which ramasomappas suit was instituted. bhimrao
to whom the sanad was given adopted ramasomappa in 1909.
after bhimraos death in 1918. government refused to
recognise ramasomappas adoption. he then applied to
government for the grant of ex post facto sanction to his
adoption by bhimrao and alternatively prayed that in case
the sanction was number given then the watan might be resumed
by the levy of full assessment on the lands and he should
number be evicted therefrom. both these requests were turned
down and the government passed orders for resuming
possession of the lands. ramasomappa then brought the suit
against the secretary of state for a declaration that the
orders passed by government for resumption of possession of
the watan lands were illegal. the trial companyrt having
dismissed the suit ramasomappa came up in appeal to the
bombay high companyrt. the question whether the original grant
to the respondents ancestor was of the soil or it was only
a right to the royal share of the revenue did number arise for
consideration in ramasomappa v. secretary of state  supra . the bombay high companyrt allowed ramasomappas appeal holding
that the sanad of 1872 did number purport to be a grant of the
right to occupy the soil it had only reference to and was a
grant of the right to hold the lands free from full
assessment and that if any of the companyditions of the grant
namely the companydition of remaining faithful to government or
the companydition of paying a fixed duty was broken then
government was only entitled to claim full assessment on the
lands but any right of occupation which the holder of the
watan possessed apart from the sanad would remain untouched. the tribunals reading of the judgment in ramasomappas case
does number therefore seem to be companyrect. the judgment under
appeal before us points out that the decision in ramasomappa

secretary of state  supra  has numberbearing on the issue
involved in the instant case. companynsel for the appellants also relied on the decision
in 39 bombay law reporter 851 in support of the appeal but
for the reasons stated above we do number think ramasomappas
case at all helps him. the only other ground urged was that
an application
made on behalf of the respondent in 1947  when he was a
minumber  under section 10 of the bombay hereditary offices act
 act iii of 1874  having been rejected the respondents
right to a regrant of the watan lands was extinguished. section 10 empowered the companylector to issue a certificate on
the basis of which the respondent companyld bring an action
against the appellants for recovery of possession of the
lands. the point was argued before the deputy companymissioner
in the present proceedings who held that the rejection of
the application did number take away the right of the watandar
to ask for a regrant of the watan lands under section 4 of
the 1950 act.


civil appellate jurisdiction civil appeal number 1939  n
of 1972.
from the judgment and order dated 24.1.1972 of the high
court of gujarat at ahmedabad in l.p.a. number 263 of 1971.

m. tarkunde v.n. ganpule and p.c. kapur for the
appellant. vimal dave and m.m. shroff for the respondent. the judgment of the companyrt was delivered by
sen j. the only question involved in this appeal by
special leave from the judgment and order of the high companyrt
of gujarat dated january 24 1972 is whether the appellant
who was officiating as superintending engineer in the guja-
rat service of engineers class i companyld be retired by the
state government on the date on which he attained the age of
55 years on the ground that he was merely officiating in
that post and had number attained to the rank of a superin-
tending engineer within the meaning of r. 161 1  c  ii  1
of the bombay civil services rules 1959 as applicable to
the state of gujarat. the facts giving rise to the case are as follows. the
appellant was an officer of the bombay service of engineers
class i in the erstwhile state of bombay and was promoted to
the post of executive engineer. in july 1965 when the post
of superintending engineer fell vacant the state government
promoted him to officiate as superintending engineer in the
gujarat service of engineers class i until further orders. on account of his meritorious service as superintending
engineer the appellant was put in charge of the minumber irri-
gation project circle. the work undoubtedly is of a highly
specialised and skilled nature and officers of merit and
proven ability skill and companypetence are usually posted
there. the appellant did excellent record of service without
any blemish and earned encomiums for his meritorious service
in his new capacity. in 1966 the chief engineer public
works department addressed a letter to the appellant companymu-
nicating the state governments appreciation of the valuable
work which the appellant and the officers and staff under
him had put up during the scarcity relief operations in that
year. however the state government all of a sudden on
september 13 1967 purported to companypulsorily retire him
under the first proviso to r. 161 1  a  w.e.f. december 15
1967 after giving him three months numberice he having attained
the age of 55 years on numberember 12 1967. numbermally the
appellant would have as superintending engineer retired on
numberember 12 1970 the date on which he attained the age of
58 years. he had by then put up 29 years of service and
there was numberadverse entry in any of his companyfidential re-
ports questioning his integrity or his efficiency or ability
for retention in service. the appellant accordingly assailed
the order of companypulsory retirement by a petition in the high
court under art. 226 of the companystitution. in companytesting his claim the state government in its
return pleaded that the case of the appellant was governed
by r. 161 1  c   ii  1  of the rules and number by r. 161 1  a
and reference to a wrong provision would number necessarily
invalidate the order that the appellant had number substan-
tively attained to the rank of superintending engineer
before he reached the age of 50 years and therefore the
government companyld companypulsorily retire him at any time after
he reached that age. it was asserted that the government was
entitled to review the cases of government servants who were
to attain the age of 55 years as per the terms of the circu-
lar issued by the government in the general administrative
department dated october 25 1963 as amended from time to
time and that in accordance with the procedure laid down
the case of the apellant was reviewed before he attained the
age of 55 years and it was decided that it was number desirable
in the public interest to
continue him in government service and that he should be
compulsorily retired by giving three months numberice. even
otherwise it was companytended that by virtue of the power
vested in the government under the first proviso to r.
161 1  a  the government companyld direct the companypulsory retire-
ment even of a person who had attained the rank of superin-
tending engineer before reaching the age of 50 years and
that power was number excluded by reason of r. 161 1
 c  ii  1 . the learned single judge  a.d. desai j.  relying upon
the decision of a division bench in ishwarlal kasanji naik

state of gujarat 1963 4 slr 945 held that since the
appellant had number attained the substantive rank of a super-
intending engineer he companyld be made to retire at any time
under r. 161 1   c  ii  1  i.e. on the date he attained the
age of 55 years or thereafter. he observed that the decision
in ishwarlal kasanji naiks case being that of a division
bench the companystruction placed by the learned judges on r.
161 1   c  ii  1  were clearly binding on him and that since
the appellant was merely holding the post in an officiating
capacity he companyld number be held according to the view ex-
pressed in ishwarlal kasanji naiks case to have attained
the rank of superintending engineer in order to have the
benefit of the numbermal age of superannuation of 58 years. it
has been laid down by a division bench in ishwarlal kasanji
naiks case that the benefit of exemption from r.
161 1  c  ii  1  companyld be had only by government servants in
the bombay service of engineers class i who were in the
posts of superintending engineers i.e. held the rank of a
superintending engineer on a regular basis in a substantive
capacity and number in an officiating capacity. the decision is
reflected in a laconic sentence
in order to get the benefit of exemption from
the rule r. 161 1  c  ii  1  it is necessary
that he should have substantively attained the
post or the rank of a superintending
engineer. we are unable to subscribe to the view expressed by the
learned judges in ishwarlal kasanji naiks case. the word
substantive does number find place in r. 161 1  c  ii  1  of
the rules. in assailing the companyrectness of the judgment of the high
court learned companynsel for the appellant companytends that the
post of superintending engineer is a selection post and the
appellant was promoted as such in a clear vacancy and
though he was working as a superintending engineer in an
officiating capacity he was given the benefit of the re-
vised pay-scale for post of superintending engineer and also
given
two yearly increments. according to him the word rank in
r. 161  1  c  ii  1  must in the companylocation of the words
being preceded by the word attained mean the status or the
grade. it is pointed out that the word rank is number quali-
fied by the word substantive as erroneously assumed in
ishwarlal kasanji nailos case. he places reliance on the
recent judgment of this companyrt in s.c. jain v. state of
haryana anr. 1985 4 scc 645 where an identical provi-
sion r. 3.26 c  1  of the punjab civil services rules was
treated to be a special rule companyferring immunity on an
engineer who has attained the rank of superintending engi-
neer in the public works department  buildings roads
branch  on the ground that premature retirement of executive
engineers promoted to the rank of superintending engineer
because of their merit and proven ability and companypetence was
clearly number in the public interest and therefore they must
get protection from premature retirement under r.
3.26 c  1 . it is pointed out that even though the appellant
was working as a superintending engineer his pension has
been fixed by the government on the basis of the pay-scale
of superintending engineer presumably because he had been
promoted to the post in an officiating capacity but in a
clear vacancy i.e. had acquired the status or rank of a
superintending engineer. the companytention to the companytrary by learned companynsel for
the respondents based upon an earlier decision of this companyrt
in union of india v. k.r. tahiliani ant. 1980 2 scr
1092 is that the appellant was only officiating as superin-
tending engineer and had numberright to the post. our attention
is drawn to the following observations made by the companyrt
when a government servant belonging to a
class i or class ii service or post on a
regular basis has to be retired companypulsorily
rule 56 j  companyes to the rescue of the govern-
ment. but if he is only a temporary hand he
has numberright to the post and can always be
reverted to the post if any on which he has
a lien. similar is the position of an offici-
ating hand. thus we have rigid and inevitable
conclusion that rule 56 j  is meant to companyer
only those who are in a post on a regular
basis i.e. in a substantive capacity and
number on an officiating basis only. the submission therefore is that the benefit of the exemp-
tion under r. 161 1  c  ii  1  can be had only by a govern-
ment servant holding the post of a superintending engineer
on a regular basis i.e. in a substantive capacity. the
subsequent decision in s.c. jains case is sought to be
distinguished on the ground that the companyrt there was dealing
with
the case of a person holding the post of a superintending
engineer on a regular basis. in order to appreciate the rival companytentions it is
necessary to refer to some of the provisions of r. 16 1 1
which deals with the age of superannuation insorfar as
material
161.  1  a . except as otherwise provided in
the other clauses of this rule the date of
compulsory retirement of a government servant
other than a class iv servant is the date on
which he attains the age of 58 years. provided

an appointing authority may after giving
three months previous numberice in writing re-
quire a government servant to retire from the
service on the date on which he attains the
age of 55 years or on any date thereafter to
be specified in the numberice. 161.  1  c  the following rules are applica-
ble to particular services
 ii  1  except as otherwise provided in this
sub-clause government servants in the bombay
service of engineers class i must retire on
reaching the age of 58 years and may be
required by government to retire on reaching
the age of 50 years if they have number attained
to the rank of superintending engineer. age of superannuation is an incident of government
service it is for the benefit of the employee who earns a
well-earned rest with or without pensionary benefits for the
rest of his life. it is companymon to all permanent civil serv-
ants it depends on an event that inevitably happens by
passage of time unless the employee dies earlier or resigns
from the post. we must give to the different clauses of r.
161 1  which find place in chapter ix headed companypulsory
retirement their plain ordinary meaning in furtherance of
the object and purpose with which they have been-flamed. under r. 161 1  a  companypulsory retirement of all government
servants is at the age of 58 years which is the general
provision. but the same cannumber be said of the companypulsory
retirement before the age of superannuation. it is number an
incident of the tenure it is number companyceived in the interests
of the employee it is a mode of
terminating the employment at the discretion of the appoint-
ing authority. the words except as otherwise provided in
the other clauses of this rule appearing in r. 161 1  a
make the general rule of superannuation at the age of 58
years 1subject to other clauses of that rule. that is to
say the government is empowered to provide for different
ages of companypulsory retirement for different classes of
government servants. proviso to r. 161 1  a  however is the
absolute power of the government to direct the premature
retirement of a government servant on the date on which he
attains the age of 55 years or at any time thereafter. r.
161 1  c  is the special rule framed for that purpose. to
illustrate r. 161 1  c  i  1  says that except as otherwise
provided in that sub-clause holders of posts of the chief
judge of the companyrt of small causes bombay and the adminis-
trator general and official trustee bombay whether they are
recruited directly or are promoted from subordinate posts
should ordinarily be retained in service till the age of 60
years if they companytinue efficiently upto that age otherwise
they may be required to retire at the age of 55 years or at
any point thereafter. this clearly brings out that there are
two ages of superannuation depending upon efficiency integ-
rity and ability for further retention in service. similar-
ly r. 161 1  c  ii  1  deals with anumberher class of offi-
cers namely. government servants in the bombay service of
engineers class i and similarly provides for two ages of
superannuation. the first part of sub-cl.  1  adopts the
general rule companytained in r. 161 1  c  ii  1  for that class
of officers as provided in r. 161 1  a  namely that they
shall retire on the date on which they attain the age of 58
years. the second part however companyfers power on the govern-
ment to retire any such officer on his reaching the age of
50 years. such power of the government to direct premature
compulsory retirement of these officers is subject to a
qualification. the words if they have number attained to the
rank of superintending engineer read in companyjunction with
the opening words except as otherwise provided in this
sub-clause clearly carve out an exception in the case of
persons holding the posts of superintending engineer. the
words if they have number attained to the rank of superin-
tending engineer in r. 161 1  c   ii  1  are plainly bad
english and must be read as if they have number attained the
rank of superintending engineer. the word used in that rule
is rank and number substantive rank and there is numberreason
why it should number be understood according to its ordinary
sense as meaning grade or status particularly when it is
preceded by the words have number attained the rank. the word
attained means acquired or reached. the word rank has
both a narrower as well as a wider meaning. a question may arise as to the purport and effect of these
rules. the effect of r. 161 1  a  which is the general rule dealing
with all government servants except with respect to the
enumerated categories and of r. 161 1  c  ii  1  which is a
special rule dealing with government servants belonging to
bombay scrvice of engineers class i is the same the dif-
ference is only superficial which lies more in clever draft-
ing than in their companytentthe government may terminate the
services of a permanent government servant under the first
proviso to r. 161  1  a  at any time on or after he attains
the age of 55 years after giving three months numberice i.e. before the numbermal age of superannuation by way of companypulso-
ry retirement. it will be numbericed that the power of the
government under the first proviso to direct premature
retirement does number exist on its satisfaction that it is
necessary to do so in the public interest. it is unlike fr
56 j  to that extent. the government may terminate the
services of a government servant belonging to the bombay
service of engineers class i under r. 161 1  c  ii  1  at
the age of 50 years without giving him any numberice. arbi-
trariness is writ large in both the rules but the rules
enable the government to deprive a permanent civil servant
of his office without enquiry. the power of companypulsory
retirement may be used when the authority exercising this
power cannumber substantiate the misconduct which may be real
cause for taking action. both violate art. 311 2  of the
constitution. primafacie it appears to us that the first
proviso to r. 161 1  a  was on lines of fr 56 j  and companyld
be sustained on the strength of the decision in union of
india v. company. j.n. sinha ant. 1971 1 scr 791 being
based on the ground that the companypulsory retirement of a
particular government servant was in the public interest but
the words in the public interest are number there in r.
161 1  c . in company. jn. sinhas case it was laid down that
the appropriate authority has the absolute right to retire a
government servant if it is of the opinion that it is in the
public interest to do so. the right companyferred on the appro-
priate authority is an absolute one. that power can be
exercised subject to the companyditions mentioned in the rules. one of which is that the companycerned authority must be of the
opinion that it is in the public interest to do so. if that
authority bona fide forms that opinion the companyrectness of
that opinion cannumber be challenged before companyrts. it is
however open to an aggrieved party to companytend that the
requisite opinion has number been formed or the decision is
based on companylateral grounds or that it is an arbitrary
decision. companypulsory retirement involves numbercivil companyse-
quences. the aforementioned fr 56 j  is number intended for
taking any penal action against government servants. that
rule merely embodies one of the facts of the pleasure
doctrine embodied in art. 3 10 of the companystitution. it was
said
there is numberdenying the fact that in all
organisations and more so in government organ-
isations there is good deal of dead wood. it
is in the public interest to chop off the
same. fundamental rule 56 j  holds the balance
between the rights of the individual govern-
ment servants and the interest of the public. while a minimum service is guaranteed to the
government servant the government is given
power to energize its machinery and make it
more efficient by companypulsorily retiring those
who in its opinion should number be there in
public interest. these companysiderations do number arise either under the first
proviso to r. 161 1  a  or under sub-cl.  1  to r.
161 1  c  ii  because the companycept of public interest is number
there. it seems to us that on a proper companystruction of r.
161 1  c  ii  1  which is identical to r. 3.26.  c  1  of the
punjab civil services rules the word rank in the companyloca-
tion of the words if they have number attained to the rank of
superintending engineer in r. 161 1  c  ii  1  must in its
context and setting was to be companystrued in its wider sense
as meaning status or grade and if so regarded the second
part of that rule must be treated as an exception to the
special rule empowering the government to direct superannua-
tion of such officers on the date they attain the age of 50
years. this has been the view expressed by the companyrt in s.c.
jains case but we find it difficult to support the companyclu-
sion that the words if they have number attained the rank of
superintending engineer in r. 161 1  c  ii  1  companyfer an
immunity on superintending engineers from being companypulsorily
retired at any age below the numbermal age of superannuation at
58 years. under the scheme of the rules the benefit which
the superintending engineers enjoy under the second part of
r. 161 1  c  ii  1  is necessarily subject to the absolute
power of the government to direct companypulsory retirement of
such officers on the date they attain the age of 55 years
under the first proviso to r. 161 1  a  or under fr 56 j  1
on which it is based. although the words in the public
interest are number there but such power to direct premature
compulsory retirement at the age of 55 years can be exer-
cised subject to the companyditions indicated in company. j.n. sinhas case one of which is that the companycerned authority
must be of the opinion that it is in the public interest to
do so. we are number oblivious of the fact that the companystruction
that we put on the word rank in r. 161 1  c  ii  1  does
number accord with the view expressed by the companyrt in tahilia-
nis case that fr 56 j  is meant to
cover only those who are in a post on a regular basis i.e. in a substantive capacity and number on an officiating basis
only. it. proceeds on the principle that the companystitutional
provision under art. 311 2  protecting a government servant
from reduction in rank without hearing refers only to a
person who is occupying a higher post in a substantive
capacity for which he alone has a legal right to occupy the
post. the companyrt laid down while interpreting fr 56 j  that a
person who is occupying a higher post in an officiating
capacity has numbersuch right and can be deprived of his post
by the companypetent authority. the facts are number clear from the
judgment in tahilianis case. from the passage extracted
above it is clear that the companyrt laid down that when a
government servant belonging to a class i or class ii serv-
ice or post on a regular basis has to be retired companypulsori-
ly the government can fall back on fr 56 j . it however
held that fr 56 j  is meant to companyer only those who are in a
post on a regular basis i.e. in a substantive capacity and
number on an officiating basis only. if that be so then we are
at a loss to understand why a person who has number attained
the rank of superintending engineer i.e. is merely officiat-
ing as superintending engineer cannumber be companypulsorily re-
tired from his substantive post of executive engineer if the
other requirements of fr 56 j  are fulfilled. we need number
dilate on this aspect further inasmuch as the state govern-
ment in the return filed before the high companyrt stated that
it only intended and meant to act under the first proviso to
r. 161 1  a  and number under r. 161 1  c  ii  1 . it is avert-
ed in the return that the case of the appellant was reviewed
and it was decided to companypulsorily retire him on his attain-
ing the age of 55 years. there is numbermaterial placed to show
that such companypulsory retirement was necessary in the public
interest. the appellant has had an unblemished record and
there was numberhing against him to doubt his integrity fit-
ness and companypetence. in somewhat similar circumstances this
court in h.c. gargi v. state of haryana 1986 4 scc 158
struck down the order of companypulsory retirement under r. 3. 25 d  of the punjab civil services rules observing
the power of companypulsory retirement under rule
3.25  d  of the rules can be exercised subject
to the companyditions mentioned in the rule one
of which is that the companycerned authority must
be of the opinion that it is in public inter-
est to do so. the test in such cases is public
interest as laid down by this companyrt in union
of india v. company. j.m. sinha. it does number
appear that there was any material on the
basis of which the state government companyld have
formed an opinion that it was in public inter-
est to companypulsorily retire the
appellant at the age of 57 years. there was
really numberjustification for his companypulsory
retirement in public interest. there is numberreason for us to take a different view in the
facts and circumstances of the present case.