G. C. Mathur, J. - (1.) (for self and for K. C. Agrawal, J.) :-Respondent Purshottam Swaroop Johari is Sub-Inspector of Police. A departmental inquiry under Section 7 of the Police Act was started in December, 1968, against him on charges of misconduct. The inquiry officer found the charges established and recommended Johari's dismissal from service. The Deputy Inspector General of Police found that an adequate opportunity had not been given to Johari to defend himself and remanded the matter back to the inquiry officer. While this inquiry was pending, another charge-sheet levelling 17 charges of misconduct was served on Johari. The inquiry dragged on for some time and, when it was at the defence stage, an order dated August 29, 1974, was passed, retiring Johari compulsorily from service under Note (1) to Article 465 of the Civil Service Regulations. Against the order of compulsory retirement, Johari filed a writ petition in this Court which has been allowed by a learned Single Judge. The learned Single Judge has held that, in view of the fact that a full-fledged departmental inquiry was proceeding against the respondent at the time when the order of compulsory retirement was passed, the order must be held to have been passed by way of punishment and to amount to one of removal from service. He further held that, since the provisions of Article 311 (2) of the Constitution were not complied with, the order was illegal. He accordingly quashed the order of compulsory retirement and declared that Johari was entitled to continue in service. Against the judgment of the learned Single Judge, the State Government has filed this appeal.
(2.) THE contention of the learned Chief Standing Counsel is that it is not permissible for the courts to go behind an order of compulsory retirement and to see whether it was, in fact, passed by way of punishment or not. According to him, courts can interfere with an order of compulsory retirement only in two circumstances, namely, (i) where the order, on the face of it, casts a stigma on the Government servant concerned ; and (ii) where the order deprives the Government servant of an accrued benefit. In support of his contention, he has relied upon certain decisions of the Supreme Court. The case of Shyamlal v. State of U. P., AIR 1954 SC 369 has been particulary relied upon and it is necessary to examine it in some detail. Shyamlal was a member of the Indian Service of Engineers. By a letter dated January 4,1950, certain charges against him were communicated to him and he was asked to submit whatever explanation he might desire to give. The letter made it clear that the inquiry was being made to afford Shyamlal an opportunity of showing cause why he should not be compulsorily retired and not for taking disciplinary proceedings. Ultimately, the matter went up to the Union Public Service Commission which found the charges proved. Thereafter the president passed an order compulsorily retiring Shyamlal from service under Note (1) to Article 465-A of the Civil Service Regulations. Shyamlal challenged the order in a writ petition filed in this court. The High Court dismissed the writ petition and an appeal was taken to the Supreme Court. The argument raised on behalf of Shyamlal before the Supreme Court was that an order of complusory retirement was nothing but an order of removal from service and that Article 311 applied to the case of every order of compulsory retirement. It was not urged before the Supreme Court that the order of compulsory retirement amounted to one of removal on account of the inquiry which had been conducted against him and the findings which had been recorded therein. In these circumstances, the Supreme Court held that an order of compulsory retirement does not amount to one of dismissal or removal. The Supreme Court did not say that, in no circumstance, will an order of compulsory retirement amount to one of removal or dismissal. This case merely establishes that compulsory retirement does not, in every case, amount to dismissal or removal. It does not support the contention of the State. In State of Bombay v. Saubhag-Chand M. Doshi, AIR 1957 SC 892 also the argument was that an order retiring an officer before the age of superannuation was, in substance, one of dismissal or removal. The Supreme Court observed that the real criterion for deciding whether an order terminating the services of a servant is one of dismissal or removal is to ascertain whether it involves any loss of benefits previously earned and that, on this test, an order of compulsory retirement cannot be held to be one of dismissal or removal. One of the arguments raised was that the power to compulsorily retire the Government servant under the relevant rule was not to be exercised, except in the cases of misconduct or inefficiency and, therefore, compulsory retirement amounted to removal or dismissal. Repelling this argument, the Supreme Court said : "Indeed, in Shyamlal's case (A) the Government did give to the officer concerned notice of charges of misconduct and inefficiency 'and called for his explanation, though a formal enquiry was not held. In providing that no action would be taken except in case of misconduct or inefficiency, Rule 165-A only made explicit what was implicit in Note 1 to Article 465-A. The fact to be noted is that while misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the back-ground and the enquiry, if held and there is no duty to hold an enquiry is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry thereon must be formal, and must satisfy the rules of natural justice and the requirements of Art. 311 (2)." These observations do indicate that it is permissible to retire a Government servant compulsorily from service on the basis of misconduct and the order would not necessarily amount to one of removal or dismissal but this case does not lay down that where the Government starts disciplinary proceedings for punishing the Government servant for the misconduct and thereafter an order of compulsory retirement is passed, it will not amount to an order of removal or dismissal.
(3.) IN Dalip Singh v. State of Punjab, AIR 1960 SC 1305, the appellant, who was an INspector Genenal of Police, was compulsorily retired from service for administrative reasons. He challenged the order by way of a civil suit, contending that the order amounted to one of removal from service within the meaning of Article 311(2) of the Constitution. Referring to the cases of Shyamlal and Saubhagchand M. Doshi, the Supreme Court observed that two tests had to be applied for ascertaining whether a termination of service by compulsory retirement amounted to removal or dismissal so as to attract the provisions of Article 311 of the Constitution, namely, (i) whether the action is by way of punishment and to find that out it is necessary that a charge or imputation against the officer is made the condition of the exercise of the power; and (ii) whether the compulsory retirement the officer is losing the benefit he has already earned as he docs by dismissal or removal. Referring to Shyamlal's case, the Supreme Court observed : "IN that case, in fact, a charge-sheet was drawn up against the officer and an enquiry held but ultimately the order of compulsory retirement was not based on the result of the enquiry. The Court pointed out that the enquiry was merely to help the Government to make up its mind as to whether it was in the public interest to dispense with his services so that the imputation made in the charge-sheet was not being made the condition of the exercise of the power." It will be noticed that, in this case, Shyamlal's case was explained on the ground that the inquiry was not for the purpose of inflicting any punishment on the Officer but only for the purpose of enabling the Government to make up its mind whether Shyamlal should be retained in service or not. The Supreme Court accepted that, if the action was by way of punishment, the order of compulsory retirement would amount to one of removal or dismissal. This case also does not support the contention of the State. The next case that is relied upon is that of Moti Ram Deka v. General Manager, North East Frontier Railway, AIR 1964 SC 600. In this case, the validity of Rules 148 (3) and 149 (3) of the Railway Establishment Code, Volume I, which provided for the termination of the services of permanent employees at any time during service on three months' notice, was challenged on the ground that such termination was in violation of the provisions of Article 311 (2) of the Constitution. The Supreme Court upheld this contention, observing that termination of service at any time during service must necessarily amount to removal or dismissal. Dealing with the decision in Saubhagchand M. Doshi's case, which was cited before it, the Supreme Court observed: "It is of interest to note that in dealing with a question as to whether compulsory retirement amounted to removal or not, the tests, which were applied were in regard to the loss of benefits already accrued and the stigma attached to the civil servant." This case was not a case of compulsory retirement. The observations quoted above do not indicate that Doshi's case confined a challenge to an order of compulsory retirement to the two grounds of loss of accrued benefits and of casting stigma on the Government servant. In Dalip Singh's case, the two tests for finding out whether an order of compulsory retirement amounted to one of removal or dismissal were stated to be whether the action was by way of punishment and whether the officer was deprived of accrued benefits.;