M. NARASIMHACHAR versus THE STATE OF MYSORE

the appellant that the respondent's director told the appellant's manager that the respondent had adopted the name 'Gluvita' to indicate that in the manu-facture of its biscuits glucose was used. Those state-ments on behalf of th.e appellant are not denied by the respondent. So, trade connection between glu-cose and biscuits would appear to be established. We are therefore of opinion that the commodities concerned in the present case are so connected as to make confusion or deception likely in view of the similarity of the two trade marks. 'Ve think that_ the decision of Desai, J., was right.

In the result, we set aside the order of the learned appellate Judges of the High Court and restore that of Desai, J. The appeal is accordingly allowed. The appellant will get the costs before the appellate Judges in the High Court and in this Court.

Appeal allowed.

M. NAR.ASIMHACHAR

THE S'rATE OF MYSORE

(B. P. SINHA, C.J., JAFER IMAM, J. L. KAPUR, K. N. W ANCHOO and K. C. DAS GUPTA, ,TJ.)

State Seri•ice-Servant found guilty of various irregularities on enquiry-Retirement on superannuation-Reduction of pension-Recavery of loss-Legality-Requirement of notice-Mysore Service Regulations, arts. 294, 297, 2I6, 302, Rule 2(ii), Appendix A-Constitution of India, Art. 3n(2).

The appellant was the Manager of Mysore Government Reserve Foodgrains Depot and was later on appointed Special Revenue Inspector under the Assistant Director of Food Supplies. He was, however, not allowed to join his new post and an order of suspension was passed against him. Seven charges in respect of various irregularities committed by him were framed against him relating to the period when he held the former post. An enquiry was held and six of them were found proved. final notice was served on him to show cause why he should not be compulsorily retired and he did so. In the meantime he reached the age of superannuation and the Government passed the follow-ing order against him,-

Corn Products Re;fining Co. v. Shangrila .Food Products Ltd. Sarkar].

I959 October zz.

" That Shri M. N arasimhachar be retired from service from the date on which he attained superannuation and granted under Art. 302(b) of the Mysore Services Regulations, reduced pension of two-thirds the amount to which he would ordinarily be entitled in view of the irregularities committed by him.

M. N arasimhachar

v. The State of Mysore

(2) That the period of suspension be treated as leave to which he is entitled.

(3) That the cost of 10,430 gunny bags found short be recovered from him at the rate of eight annas per bag.

(4) That the leave allowances due to him, his insurance amount and death-cum-gratuity amount, if any, be adjusted towards the amount due to him.

(5) That the balance after adjusting the leave allowances, insurance amount and death-cunt-gratuity amount, if any, be recovered in monthly instalments by deducting fifty per cent. of the pension as ordered in (i) above. "

Against the said order the appellant moved the High Conrt under Art. 226 of the Constitution. His contention was that the said order was contrary to arts. 294 to 297 of the Mysore Services Regulations and its Revised Pension Rules and contravened Art. 3rr(2) of the Constitution in that no notice thereunder had been served on him. On behalf of the State it was claimed that the said order was in conformity with the Regulations and that Art. 3rr(2) had no application. The High Court found in favour of the State and dismissed the petition.Held, that the decision of the High Court must be affirmed. It was not correct. to coritend that art. 297 of the Mysore Services Regulations left the option with the public servant whether or not to retire at the age of 55. That article is comple-mentary to and must be read with art. 294(a) of the Regulation which fixes the age of retirement for such servant at 55 and empowers the Government to retain him beyond that age. What art. 297 of the Regulations, therefore, really does, is to allow the Government servant, in case the Government wants to retain him in service even after the age of 55, to opt for retirement. It does not affect the power of the Government to retire person, whom it considers inefficient for further service, at that age.

Rule 2(ii) of the Revised Pension Rules in Appendix of the Regulations which empowers the Government in special cases to retire public servant after he has completed 25 years' of service or attained 50 years and has to be read as supplementary to arts. 294 to 297 of the Regulations. does not mean that once an officer has passed that age or completed the said period of service, he must always be given 3 months' notice before he can be retired even at 55 years or thereafter.

Article 302 of the Regulations specifically provides for reduction of pension and leaves such reduction entirely in the discretion of the Government. Rednction of pension does not amount to reduction in rank, for the officer is not expected to

S.C.R. SUPREME COURT REPORTS

continue in service thereafter, nor is it one of the punishments contemplated by Art. 3n(2) and, consequently, no notice there-under was called for.

M. Narasimhaehal'

v. The Stale of Mysot1

The proviso to art. 216 of the Regulations, which enables the Government to recover any losses it may have incurred due to the negligence or fraud of Government servant, from his pension and compassionate allowances, comes into force only when the departmental proceedings take place after the "Officer has given up service and can have no application to case, like the present where such pro.:eedings took place while the officer was still in service.

Held further, that the appellant was governed by the Mysore Services Regulations and not the Fundamental Rules of the Government of India which did not apply to him.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 438 of 1958.

Appeal by special leave from the judgµient .and order dated March 31, 1956, of the Mysore High Court in Writ Petition No. 140 of 1955.

The appellant in person.

B. R. L. Iyengar and T. M. Sen, for respondent.

1959. October 12. The Judgment of the Court

was deliv:ered by

W ANCHOO J.-This is an appeal by special leave

wanehoo J.

against an order of the Mysore High Court in service matter. The appellant was in the service of the Mysore State. In 1951 he was the manager of the Government Reserve Food-grains Depot at Pandava-pura. He was transferred from Pandavapura on May 15, 1951, and handed over charge of the Depot tq one Shri Srinivasachar. report was then made by Shri Srinivasachar that there was shortage of 27 pallas of ragi in the stock handed over to him. Thereupon an enquiry was held by the Sub-Division Officer. The appellant was dissatisfied with the enquiry as accord-ing to him it had not been properly conducted. He therefore complained against the Sub-Division Officer and also brought it to the notice of the higher autho-rities that certain rooms containing stock of gunny bags had been sealed and the seals were not allowed to be broken till March 24, 1952, with the result that large number of gunny bags which were stocked there

•959 had deteriorated and had been eaten by white-ants. M . N arasin1 arasin1 [[-. ]][[h ]]ac ar [[It ]]. [[appears ]][[that ]][[these ]][[preliminary ]][[enquiries ][went ][on ]][[went ][on ]][[on ]]v. till August, 1952, when the appellant was appointed The State of Special Revenue Inspector under the Assistant Director Mysore of Food Supplies. He went to take over charge of the new post in September, 1952, but was not allowed to Wanchoo J. do so by an order of September 12, 1952. He then approached the higher authorities but was suspended on December 29, 1952. On April 4, 1953, the following

N arasin1 arasin1 [[-. ]][[h ]]ac ar [[It ]]. [[appears ]][[that ]][[these ]][[preliminary ]][[enquiries ][went ][on ]][[went ][on ]][[on ]]

charges were framed against him-

(1) that he had taken 11 months to hand over charge of the Reserve Depot to his successor with view to concealing the irregularities in the manage-ment of the Depot ;

(2) that he had failed to hand over detailed charge by counting the gunny bags;

(3) that he had failed to obtain specific orders of the Amildar to stock the new gunny bags in the mill and his object was to effect surreptitious sale of the gunny bags ;

(4) that he had not maintained regular account

in regard to the bags and that he had failed to get them checked by superior officers to escape his accountability for the loss of about 11,000 bags;

(5) that he had deliberately mixed husk with ragi and thereby cheated government to the extent of 27 pallas of ragi ;

(6) that he had manipulated the account; and

(7) that he had failed to get the stock checked every month by the Amildar and other superior officers.

The appellant submitted reply to the charges and

made several representations to various officers in that behalf. Eventually he received notice on November 23, 1953, from the Director of Food Supplies directing him to appear in connection with the enquiry relating to the shortage in the Reserve Depot. Subsequently, an enquiry was held by the Personal Assistant to the Director who made report thereafter. Finally, notice was issued to the appellant by the Government on December 30, 1954, that six of the seven charges framed against him (except the charge relating to 27

pallas of ragi) had been proved on enquiry and he was asked to show cause within one week from the date. of M the receipt of the notice why he should not be com-pulsorily retired from service, why the period· of suspension should not be treated as such lea.ve to which he might be entitled and why the leave aUow-ances due to him, his insurance amount and 50 per cent. of his pension should not be adjusted towards the amount due from him on account of the shortage of gunny bags valued at Rs. 5,215. The appellant submitted long explanation in reply to this notice. In the meantime the appellant had attained the age of 55 years. Therefore, the Government passed an order on March 18, 1955, in the following terms-

z959 N -. /ta&I•'"

-. · '":.•m

The s1aJ1 of Myso11 Wanehoo f.

" (I) That Shri M. Narasimhachar be retired from

service from the date on which he attained super-annuation and granted under Art. 302 (b) of the Mysore Services Regulations (hereinafter referred to as Regulations), reduced pension of two-thirds the amount to which he would ordinarily be entitled in view of the irregularities committed by him.

(2) That the period of suspension be treated as leave to which he is entitled.

(3) That the cost of 10,430 gunny bags found short be recovered from him at the rate of eight annas per bag.

(4) That the leave allowances due to him, his insurance amount and death cum-gratuity amount, if any, be adjusted towards the amount due to him. (5) That the balance after adjusting the leave a.llowances, insurance amount and death-cum. gratuity amount, if any, be recovered in monthly instalments by deducting fifty per cent. of the pension as ordered in (1) above."

Thereafter the appellant filed petition under Art. 226 of the Constitution in the High Court on September 5, 1955. His main contention was that the order of the Government retiring him was not in accordance with arts. 294 to 297 of the RegulatiOns and the Revised Pension Rules of the same Regula-tions. He also contended that the order of the

'959 Government reducing his pension to two-thirds of M N -. that to which he would be ordinarily entitled was · "':'.'m ac ar invalid as it was not mentioned in the notice given to The State of him on December 30, 1954, and that this reduction of Mysore pension was violative of Art. 311 (2) of the Constitu-tion. Finally he contended that the order of Govern-Wamhoo f. ment treating his period of suspension as period of such leave as might be due to him and recovery of Rs. 5,215 from the amounts due to him from the Government and his pension was illegal and arbitrary. The petition was opposed by the State of Mysore and its contention was that the order passed was strictly in accordance with the Regulations and that in no case Art. 311 (2) of the Constitution had any applica-tion and as such the reliefs sought by the appellant could not be granted on writ petition. The High Court held that Art. 311 (2) had no application and that the order passed by the Government was in accordance with the Regulations and that it was not possible to give any relief to the appellant. Con-sequently, the petition was dismissed. The appellant then applied for certificate to enable him to appeal to this Court, which was refused. He followed it by asking for special leave from this Court which was granted; and that is how the matter has come up before us.

There is no doubt that proceedings in this case began in April, 1953, with the intention of taking disciplinary action against the appellant and he was served with charge-sheet which was followed by an enquiry. But the period taken by the enquiry which followed was so long that the appellant attained the age of 55 years sometime in December 1954. Consequently, the Govern-ment seems to have decided when it gave notice to the appellant on December 30, 1954, to retire him . instead of taking any other action against him. That is how arts. 294 to 297 of the Regulations which deal with retirement became relevant in thiR case. The conten-tion of the appellant before the High Court was that under the articles he was entitled to continue in service even after attaining the age of 55 years and the Government had no right to order his retirement on

attaining that age and that the option whether x95~ public servant will retire at the age of 55 years or not M Narasi lulchar rested with him. The relevant article in this connec-· v. m tion is art. 294, which is in these terms-The State of of

The State of of Mysore

" 294 (a)-A Government servant in superior or

inferior service, who has attained the age of 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 needless charge on the State, this rule should be worked with discretion. And in cases in which the rule is enforced, statement of the reasons for enforcing it shall be placed on record.

wanchooJ.

Note 1-It is trusted that the Heads of Depart-

ments will always be disposed to extend to this tule 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 on pensiorr;

Note 2-

(b)-These rules apply to all Government servants without reference to their nationality.

(c)-Heads of Departments are authorised to

retire all non-gazetted Government servants under them when they attain the age of fifty-five, and to grant extension of service for period not exceed-ing six months only in very exceptional cases if the Government servant is considered to be efficient ari<l such extension is considered absolutely necessary in the interest of public service. In no case, extension be given beyond six months without orders of Government."

It is clear from this article that the age of retirement fixed in the Regulations is 55 years and it is the option of Gov,..ernment to allow public servant to continue in service thereafter if it considers him efficient. It is true that Note 1 to this article enjoins on Heads of Departments to be liberal in this matter. But it is clear that whatever may be the liberality exercised the

r959 age ofretirement is fifty-five years and continuation in N -. service beyond that age is at the option of Govern-M. ar-.;:m ac ar ment. Article 294 (c) would also make this clear so Th• state of far as non-gazetted servants are concerned. Further, Mysore article 296 requires the Heads of Departments to send to Government on or before the first of September in Wanchoof. each year list of non-gazetted servants who will attain the age of 55 years during the coming year and also of those who have been given extensions of service by them. This further enforces what is clear in article 294 (a) that the age of retirement is 55 years. Then comes article 297 on which the appellant mainly relies; it lays down that Government servant in superior service who has attained the age of 55 years, may'at his option retire from the service on superan-nuation pension. It is urged that this means that the option is with the public servant whether he retires at that age or not. We are of opinion that this is not the right interpretation of article 297. Article 297 is c9mplementary to article 294(a), which gives Government thE: power of keeping Government servants in service beyond the age of 55 years. Article 297 allows the Government servant, if the Govern-ment wants to keep him in service after 55, to opt for retirement. It does not mean that it is entirely at the option of the Government servant to continue beyond the age of 55 years and the Government can-not retire him at that age if he does not exercise the option. Therefore, it was open to Government to retire Government servant at the age of 55 years if it thought that the person was not efficient to be kept in further service. In that view of the matter, the order of Government dated March 18, 1955, by which the appellant was retired from the date on which he com-pleted 55 years of age was in accordance with articles 294 and 297 of the Regulations.The appellant then drew our attention to Appendix (relating to the Revised Pension Rules under article 215) of the Regulations. Rule 2 (ii) of these Rules provides that Government servant may retire from service any time after completing 30 years' qualifying serv:ice: Provided that he shall give in this behalf notice in writing to the appropriate authority, at least

S.C.R. SUPREME COUH.T REPORTS

three months before the date on which he wishes to I959 retire. · 1 It further provides · that Government may . in A" ".l. N aras -~ 1m ac 1 specia cases require any overnment servant to retire v. any time after he has completed 25 years' qualifying The State of service or on attaining 50 years age if such retirement is Mysore considered necessary in the public interest: Provided· that the appropriate authority shall give in this behalf Wanchoo f. notice in writing to the Government servant at least three months before the date on which he is required to retire. The appellant contends that this rule required three months' notice to be given to him before he was retired at the age of 55 years and as the required notice was not given by the Government the order relating to his retirement was not valid, being against the rule. We are of opinion that this again is complete misinterpretation of this rule. This rule must be read as supplementary to articles 294 and 297 of the Regulations relating to retirement of public servants. What it contemplates is that if public servant has completed 30 years' service though he may not have attained the age of 55 years he can ask the Government to retire him after giving three months' notice. The rule further contemplates that Govern-ment may retire an officer after he has completed 25 years service or attained 50 years of age, i.e., before he is normally due for retirement at the age of 55 years. It does not mean that when once the officer is past the age of 50 years or has completed 25 years of service he must always be given notice of three months before he can be retired at 55 years or afterwards. This is special provision relating to those cases where the Government wishes to retire an officer before the ordinary age of retirement, namely 55 years. The appellant therefore cannot claim that the order of March 18, 1955, is illegal because it did not give three months' notice. So far therefore as the retirement Rules are concerned, the Government order retiring the appellant is in no way against those rules.

aras 1m ac 1 iar

Next the appellant contends that as his pension has been reduced to two-thirds, he was entitled to notice in view of the provisions of Art. 311 (2) of the Consti-tution, before the Government decided to inflict that

punishment on him and that this was not done in the t notice at t h" dated IS content10n is also baseless. Article December 30, 1954. . It is enough 3ll to say (2) does not. deal with the question of pension at all; it deals with three situations, namely, (i) dismissal, (ii) removal, and (iii) reduction in rank. The appellant says that the reduction in pension is equivalent to reduction in rank. All that we need say is that reduc-tion in rank applies to case of public servant who is expected to serve after the reduction. It has nothing to do with reduction of pension, which is specifically provided for in art. 302 of the Regulations. That article says that if the service has not been thoroughly satisfactory the authority sanctioning the pension should make such reduction in the amount as it thinks proper. There is Note under this article, which says that the full pension admissible under the Regulations is not to be given as matter of course but rather to be treated as matter of distinction. It was under this article that the Government acted when it reduced the pension to two-thirds. Reduction in pension being matter of discretion with the Government, it cannot therefore be said that it committed any breach of the Regulations in reducing the pension of the appellant.

MN . arasim,.ac [-. ][, ]al' v. The State of Mysore Wanchoo f.

Lastly, the appellant challenged that part of the

order of the Government which provided that sum of Hs. 5,215 be deducted from the amount due to him and from his pension in monthly instalments. It is enough to say that there is provision in the Regula-tions providing for this, which is art. 216-A. Under that article the Government reserved to itself the right to order the recovery from the pension and com-· passionate allowances of Government servant of any amount on account of losses found in judicial or departmental proceedings to have been caused to Government by the negligence or fraud of such officer during his service. There is proviso to this article which says that departmental proceedings, if not insti-tuted while the officer was on duty, shall not be insti-tuted except under certain circumstances, which we need not detail here. The appellant says that the

S.C.R. SUPREME COURT REPORTS

departmental proceedings that took place against him should have been instituted in the manner provided · th' · Th · £ · h" te t" m 1s proviso. ere 1s no orce m t 1s con n ion because the proviso only comes into force when the departmental proceedings take place after the officer has given up service. It does not apply to case like the present where the departmental proceedings took place while the appellant was still in service.

--:- M.NaraS1m ac ar v. The state of Mysore Wam:hoo f.

Before we leave this case, we may point out that the appellant contended that the Fundamental Rules of the Government of India applied to him. This again is wrong for what apply to him are the Regulations and not th.e Fundamental Rules of the Government of India.

We are therefore of opinion that there is no force in this appeal. It is hereby dismissed. In the circum-stances of the -case we pass no order as to costs and Court fee.

Appeal dismissed.

THE STATE OF RAJASTHAN

I959 October I4

v.· REHMAN

(P. B: GAJENDRAGADKAR and K. SuBBA RAo, JJ.)

Criminal Trial-Search by Excise Officer-Failure to record reasons-Search, if illegal-Central Excise and Salt Act, 1944, (I of r944), s. I4-Central Excise Rules, r944, r. 20I-Code of Criminal Procedure, r898, (V of r898), s. r65.

Deputy Superintendent of Central Excise, on receiving information that the respondent had cultivated tobacco but had not paid excise duty thereon, went to search the house of the respondent with view to find out whether he had stored tobacco there. The respondent obstructed the making of the search with the result that the Deputy Superintendent fell down and was injured. The respondent was prosecuted under s. 353, Indian Penal Code, but was acquitted on the ground that the search was illegal as it was made by the Deputy Superintendent without recording the reasons as required by s. 165, Code of Criminal Procedure. The appellant contended that s. 165 of the Code was not applicable to search under the Central Excise and Salt Act. Held, that s. 165 of the Code of Criminal Procedure was applicable to such search also and the search being in contraven-tion of s. 165 was illegal. Section 18 of the Central Excise and