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PETITIONER: MURARI MOHAN DEB

       Vs.

RESPONDENT: THE SECRETARY TO THE GOVT. OF INDIA & ORS.

DATE OF JUDGMENT10/04/1985

BENCH: DESAI, D.A. BENCH: DESAI, D.A. ERADI, V. BALAKRISHNA (J) KHALID, V. (J)

CITATION:  1985 AIR  931            1985 SCR  (3) 639  1985 SCC  (3) 120        1985 SCALE  (1)662  CITATOR INFO :  F          1987 SC1970  (20)

ACT:      Constitution   of   Indian   Art.   311(2)   Compulsory retirement and  dismissal removal  from  service-Distinction between-Whether compulsory  retirement amounts  to dismissal or removal-Circumstances  when it  amounts to  dismissal  or removal explained.      Civil Service-Compulsory retirement-No provision in the Rules finding  the age  of compulsory  retirement-Compulsory retirement  not   in  public  interest  Whether  amounts  to dismissal under Art. 311(2).

HEADNOTE:      The appellant-a  Forester was compulsorily retired from service by  an Order  dated October 12 ,  1962 passed by the Chief Forest  Officer ,   Government  of Tripura. He filed a writ petition  before the Judicial Commissioner impleading , (I) The  Secretary to the Government of India ,  Ministry of Home Affairs; (2) The Chief Commissioner ,  Tripura; (3) The Secretary to the Government of Tripura ,  Forest Department; and (4) The Chief Forest Officer ,  Government of Tripura as respondents. His  main grievance was (i) that the penalty of compulsory retirement was imposed upon him without affording him an  adequate opportunity  of being  heard; and (ii) that the enquiry  held  against  him  was  in  violation  of  the principles of  natural justice.  On the  other hand  ,   the respondent contended  (i) that  the punishment of compulsory retirement does  not tantamount to dismissal or removal from service as  contemplated by Art. 311 (1) and therefore ,  no formal enquiry  was necessary to be held before imposing the penalty; and  (ii) that adequate opportunity was afforded to the appellant  during the  enquiry to controvert the charges and defend  himself. The Judicial Commissioner held that the appellant was  appointed by  the Chief  Commissioner ,   and therefore ,   the Chief Forecast Officer ,  a subordinate of the Chief  Commissioner was  not  competent  to  impose  the penalty of  compulsory retirement and thus the order was bad on merits.  But ,  he dismissed the petition holding that it was not properly constituted.      Allowing the appeal by the appellant ,

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^      HELD: (t)  The Judicial  Commissioner should  not  have taken upon 640 himself to  raise the objection that in the absence of Union of India being made a party ,  the petition was not properly constituted when  the  respondents  did  not  raise  such  a contention. Respondent No. i is shown to be the Secretary to the Government  of India  ,   Ministry of  Home Affairs.  If there was  technical err  or in  the  draftsmanship  of  the petition by  a lawyer  ,   a Forester  a class  IV low grade servant should not have been made to surfer. An oral request to correct  the description  of the  first respondent  would have satisfied  the procedural  requirement. The Court could have conveniently  read the  cause title  as  Government  of India which  means Union  of India  through  the  Secretary. Ministry of  Home Affairs instead of the description set out in the  writ  petition  and  this  very  petition  would  be competent by  any  standard.  Moreover  ,    the  appointing authority of  the appellant ,  the Chief Commissioner of the Government of Tripura as well the Chief Forecast Officer who passed  the   impugned  order   were  impleaded   and   they represented the administration of Tripura Government as well as the  concerned  officers.  Therefore  ,    not  only  the petition as drawn up was competent but no bone of contention could be taken about its incompetence. [644G-H; 645A-D]      (2) The  Judicial Commissioner  rightly held  that  the impugned order  of compulsory  retirement was  imposed by an authority not  competent to impose the same and therefore it is ab initio illegal and invalid. [645F]      (3) (i) Where relevant service rules provide for an age of superannuation and permit compulsory retirement in public interest on  reaching a  certain age  lower than  the age of superannuation  ,     and  order  of  compulsory  retirement according to  relevant service  rules cannot  be  styled  as imposing a  penalty and  obviously Art.  311 (2) will not be attract . An order of compulsory retirement differ both from an Order Of dismissal and an order of removal from service , in that  it is  not a  form of  punishment prescribed by the rules ,   and  involved no  penal consequences in as much as the person  who retires is entitled to pension proportionate to the  period of  service standing  to his  credit.  But  , where  there  is  no  rule  fixing  the  are  of  compulsory retirement or  if there  is one  and the  servant is retired before that  age prescribed  therein ,   then  that  can  he regarded only  as dismissal  or removal within Art. 311 (2). [645G-H;6645A-B]      Sham Lal v. The State of Uttar Pradesh ,  [1955] S.C.R. 26 and  State of  Bombay v.  Saubhagchand M. Doshi ,  [1958] S.C.R. 571 ,  referred to.      3. (ii)  In the instant case ,  it is admitted that the relevant service  rules prescribed an age of superannuation. It was  not pointed  out that  the relevant rules fixed some other age  beyond which  and  before  reaching  the  age  of superannuation ,   a  Government servant  can be  compulsory retired in public interest. Nor is it claimed that the order of compulsory  retirement in  this case  was made  under the relevant service rules in public interest. At any rate ,  it is crystal  clear that  the appellant  was aged only 42 when the order  of compulsory  retirement was  made. It  was  not sought to  be supported  on the  ground that  the  appellant having put  in service  for a  certain number of years ,  he could have  been compulsorily retired. On the contrary ,  it is admitted  that the  order of compulsory retirement was by way of penalty imposed upon him

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641 for misconduct  after an  enquiry. Obviously  therefore Art. 311(2) will  be attracted  and an enquiry in accordance with the rules of natural justice would be a pre-requisite before imposing any penalty. [647C-F]      3. (iii)  It is  clear from  the facts that the enquiry was held  in violation  of principles of natural justice and is vitiated.  If the  enquiry was  illegal ,  any punishment imposed as  a result  of the  enquiry must  fail. Therefore, the order  of compulsory retirement is bad for more than one reason and  liable to  be set aside and is hereby set aside. Once the  order of compulsory retirement is set aside ,  the appellant continues in service. But ,  it is not possible to direct his  reinstatement in service ,  since he has reached the age  of  superannuation  as  on  December  6  ,    1978. Therefore. he  would be  entitled to  backwages and  pension which is  comes to  Rs. 1,00,000 from the date of compulsory retirement on  October 16  ,   1962 upto  and  inclusive  of December 31 ,  1984. The respondent shall pay pension at the rate of Rs. 400 from January 1 ,  1984 . Now that the amount is payable  in one lump sum ,  presumably the Government may resort to sec. 192 of the Income Tax Act. But let it be made distinctly clear  that the  appellant  is  entitled  to  the benefit of  Sec. 89 and Rule 21A of the Income Tax Rules and he is  entitled to  relief ,   under  Sec. 89.  Therefore  , while computing  the total  amount the  Court has  kept  the spread over  in view  and in  no  year  any  income  tax  is deductible from  the meagre salary of this low paid class IV employee. If  therefore ,   any  deduction is  made  towards income-tax while  making the payment ,  it is incombent upon the Tripura  Administration to  take all  necessary steps to obtain the  relief for  the appellant  under Sec.  89 of the Income Tax  Act read  with Rule 21A of the Income Tax Rules. [647B-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1605 of 1971. I      From the  Judgment and  Order dated  28 11.1970  of the Judicial Commissioner’s  Court of  Tripura in  Writ Petition No. 22/ 1964.      D.N. Mukherjee for the Appellant.      M.M. Abdul Khader and R.N. Poddar for the Respondents.          The Judgment of the Court was delivered by      DESAI ,   J.  Murari Mohan  Deb ,   a  Forester in  the employment of  Tripura Government  was compulsorily  retired from service  by the  order dated  October 12 ,  1962 of the 4th respondent  Chief  Forest  Officer.  Since  then  he  is knocking at  the doors  of the  courts in search of illusory justice and  chased  mirage  till  he  reached  the  age  of superannuation. Alas  ! the ways of justice like the ways of Providence are  inscrutable. And  who is to blame ,  if not, the system 642      The appellant  questioned the  correctness and validity of the order of compulsory retirement n Writ Petition No. 22 of 1964  which came  to be  disposed of after a lapse of six years on  November 28  ,   1970. In  his writ  petition  the appellant had  impleaded (1) The Secretary to the Government of India  ,   Ministry of  Home Affairs  ,   (2)  The  Chief Commissioner ,    Tripura  ,    (3)  The  Secretary  to  the Government of Tripura ,  Forest Department and (4) The Chief Forest Officer  ,   Government of  Tripura ,  last one being

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the one  who had  passed the  impugned order  of  compulsory retirement. The  grievance in  the writ  petition  was  that penalty  of  compulsory  retirement  was  imposed  upon  the appellant  without   affording  the  appellant  an  adequate opportunity to  defend himself  and to  explain the  charges leveled against  him. In  short  it  was  alleged  that  the enquiry was  held in  violation of the principles of natural justice.      The respondents  resisted the  writ petition inter alia contending that  as the  punishment of compulsory retirement does not  tantamount to dismissal or removal from service as contemplated by  Art. 311(1)  and therefore  ,    no  formal enquiry  was  necessary  to  be  held  before  imposing  the penalty. It  was contended  that  adequate  opportunity  was afforded to  the appellant  to controvert  the  charges  and defend himself.      Surprisingly ,   when  the  matter  was  taken  up  for hearing ,  the learned judicial Commissioner suo moto raised the objection  that i  n the absence of Union of India being made a party ,  the petition was not properly constituted.      After an  elaborate discussion  ,  the learned Judicial Commissioner recorded a finding that Government of India was a necessary  party  and  in  its  absence  the  petition  is incompetent and  must be rejected. After having reached this firm  conclusion   ,    the  learned  Judicial  Commissioner proceeded to  investigate the  contention of  the  appellant that the  enquiry against  him was  held in violation of the principles of  natural justice  ,  and that the Chief Forest Officer being  not the appointing authority could not impose the penalty  of compulsory  retirement on  the appellant. In respect of  the second  contention ,   the  learned judicial Commissioner  held   that  as  it  has  been  unquestionably established that  the appellant  was appointed  by the Chief Commissioner ,  the Chief Forest Officer ,  a subordinate of the Chief  Commissioner was  not  competent  to  impose  the penalty of  compulsory retirement and therefore on merit the order was bad. 643 However ,   consistent  with his view that the writ petition in the  absence of  Union of  India  was  competent  ,    he rejected the  writ petition.  Hence this  appeal by  special leave.      This appeal  reached hearing  on July  26 ,   1984  and after hearing  Mr. D.N. Mukherjee ,  learned counsel for the appellant and  Mr. Abdul  Khader  ,    learned  counsel  for Tripura Administration  ,   we told  them that the appeal is being allowed  and the  impugned order  is being  set aside. However ,   at  this stage  ,   Mr. Abdul  Khader ,  learned counsel for  the State  of Tripura  pointed out  that as the appellant even  on  his  showing  has  reached  the  age  of superannuation ,   even if the impugned order is illegal and invalid ,   the relief of reinstatement cannot be granted to him. As  the facts  were not  clear ,  a direction was given that  the  matter  be  listed  on  August  7  ,    1984  for clarification  about  the  date  of  superannuation  of  the appellant. At  the resumed  hearing it  was  conceded  that, had the appellant not been compulsorily retired from service ,   he would  have retired  on superannuation on December 6, 1978.  In   this  fact  situation  the  relief  of  physical reinstatement could  not be granted. On that day a direction was given  that the  second respondent  should  compute  and calculate the  backwages payable  to the  appellant  on  the footing that  the order  of compulsory retirement is illegal and invalid  and the  appellant continued  to be  in service till December 9 ,  1978. The matter thereafter was listed on

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October 17  ,  1984 when Mr. Abdul Khader ,  learned counsel for the  second respondent  produced  before  us  the  rough computation made  by the competent authority pursuant to our direction showing  that approximately  Rs. 93,000  would  be payable to  the appellant  as and by way of backwages and he would be  entitled to  gratuity and  pension thereafter. The plight of  the appellant  lent urgency  to the  matter in as much as the appellant was without succour for a long period, a direction  was  given  that  the  second  respondent  i.e. Tripura Administration  should pay  Rs. 93,000  by a  demand draft drawn in favor of the appellant within four weeks from the date  of the  order.A further  direction was  given that year to year calculation of computation of backwages must be submitted to the Court.      Kamal Baran Dev son of the appellant filed an affidavit dated November 7, 1984 in which- he pointed out that had the appellant continued  in service  ,   if the illegal order of compulsory retirement  had not  been made,   he  would  have earned two promotions ,  namely, 644 as Forest  Ranger and  Senior Forest  Ranger ,  all posts in Class  III  and  IV  grade.  According  to  the  appellant’s computation ,    his  pension  be  fixed  at  Rs.  550  p.m. According to  him ,   he  would be  entitled to  recover Rs. 3,25,000 from  the  respondents  for  the  period  upto  and inclusive of July ,  1984.      Shri R.M.  Dutta ,    Deputy  Conservator  of  Forests, Government of  Tripura filed a counter-affidavit in which it is pointed out that looking to the age and qualifications of the  appellant  ,    he  would  not  have  earned  a  single promotion. It was pointed out that the post of Forest Ranger and that  of  Senior  Forest  Ranger  are  governed  by  the recruitment rules  which came  into force  in 1965 which did not  envisage   automatic  promotion   purely  according  to seniority. It  was also  pointed out  that seniority is only one  of   the  criteria   that  the  Departmental  Promotion Committee has  to take into consideration while recommending the promotion of a Forester to the post of Forest Ranger. It was further  pointed out  that the revised pay scale for the post of  a Forester  was Rs. 260-495 effective from March ], 1974 and  that the  appellant would  have  retired  in  that scale. To  this affidavit was annexed calculations monthwise and it  was pointed  out that at best the appellant would be entitled to  Rs. 93  , 444.08  p. inclusive  of pension from 6.12.78 to  September 30  ,  1984 ,  encasement of leave and gratuity.      Mr. D.N. Mukherjee ,  learned counsel for the appellant urged that  we should  not accept the computation as made by the competent  authority as  set out  in the annexure to the affidavit of  Shri R.M  Dutta. To a query of the court as to how the  appeal ant  was worked out his arrears of backwages at Rs.  3,25,000, there  was hardly  any  convincing  answer though some  rough and ready calculation was attempted to be offered to  us which  we find  very difficult  to implicitly rely upon.      Mr. Abdul  Khader fairly stated that it is difficult to support l  the judgment of the learned Judicial Commissioner that in  the absence  of Union of India being impleaded as a party ,   the  petition as  constituted was  incompetent. We have not  been able  to appreciate  why the learned Judicial Commissioner should  have taken  upon himself  to raise this untenable contention  even though  the respondents  did  not raise such a contention. respondent No. 1 is shown to be the Secretary 10 the Government of 645

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India ,   Ministry  of Home  Affairs. If there was technical error in  the draftsmanship  of the  petition by a lawyer, a Forester a  class IV  low grade servant should not have been made to  suffer. An  oral request to correct the description of the first respondent would have satisfied  the procedural requirement. By  raising and  accepting such  a  contention, after a  laps of  six years  ,   the  law  is  brought  into ridicule. The  court could  have conveniently read the cause title as  Government of  India which  means Union  of  India through the Secretary ,  Ministry of Home Affairs instead of the description  set out  in the writ petition and this very petition would  be competent by any standard. The contention is all the more objectionable for the additional reason that the appointing  authority of  the appellant  ,    the  Chief Commissioner of  the Government of Tripura as well the Chief Forest Officer  who passed the impugned order were impleaded and  they   represented  the   administration   of   Tripura Government as  well as  the concerned  officers.  Therefore, not only  the petition as drawn up was competent but no bone of contention  could be  taken about  its incompetence.  Mr. Abdul Khader  ,   learned  counsel  for  the  Government  of Tripura rightly did not press this point.      The learned Judicial Commissioner rightly held that the impugned order  of compulsory  retirement was  imposed by an authority not  competent to impose the same and therefore it is ab  initio illegal  and invalid.  Further ,   it  appears crystal clear  from the  record that  in this  case when the appellant was  only 42 years of age ,  compulsory retirement was imposed  as a penalty for misconduct. We are not unaware of the  legal position  that where  relevant  service  rules provide for  an age of superannuation and permits compulsory retirement in  public interest  on reaching  a  certain  age lower than  the  age  of  superannuation  ,    an  order  of compulsory retirement  according to  relevant service  rules cannot be  styled as  imposing a  penalty and obviously Art. 311(2) will  not be attracted. As held by this Court in Sham Lal v. The State of Uttar Pradesh (1) an order of compulsory retirement differs  both from  an order  of dismissal and an order of removal from service ,  in that it is not a form of punishment prescribed  by the  rules. and  involves no penal consequences ,   inasmuch  as  the  person  who  retires  is entitled to  pension proportionate  to the period of service standing to his credit. ’(See The State of Bombay      1. (1955) 1 SCR26. 646 v. Saubhagchand  M. Doshi(1). It thus appears that where the relevant service  rules fixed  both an age of superannuation and an  age of  compulsory retirement  and the services of a Government servant  governed by  the  rules  are  terminated between these  two point  of time ,  the order of compulsory retirement could  not be said to cast a stigma and would not attract Art.  311. But where there is no rule fixing the age of compulsory  retirement or if there is one and the servant is retired  before the  age prescribed  therein ,  then that can be  regarded only  as dismissal  or removal  within Art. 311(2). (See  Saubhagchand M.  Doshi’s case at 519). In this case  it   is  admitted  that  the  relevant  service  rules prescribed an  age of superannuation. It was not pointed out that the  relevant rules  fixed some  other age beyond which and  before   reaching  the  age  of  superannuation  ,    a Government servant  can  be  compulsory  retired  in  public interest. Nor  is it  claimed that  the order  of compulsory retirement in  this case was made under the relevant service rules in  public interest.  It would  have been atrocious to contend to  that effect  in respect  of a  Forester ,  a low

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grade  class   IV  servant  who  would  be  required  to  be compulsorily retired  in public  interest. But  if there was such a  rule ,   we would have positively examined the same. At any  rate ,   it  is crystal clear that the appellant was aged only  42 when  the order  of compulsory  retirement was made. It  was not  sought to be supported on the ground that the appellant  having put in service for a certain number of years ,   he  could have  been compulsorily  retired. On the contrary ,   it  is admitted  that the  order of  compulsory retirement was  by way  of  penalty  imposed  upon  him  for misconduct after  an enquiry.  Obviously therefore  ,   Art. 311(2) will  be attracted  and an enquiry in accordance with the rules of natural justice would be a pre-requisite before imposing any  penalty. It would be presently pointed out that the enquiry was sham  and held  in violation  of principles  of  natural justice.      The enquiry  officer issued  a notice  that the enquiry against the  appellant would  be held  at Rangamura  but  at short notice  subsequently ,  the venue was suddenly shifted to  Radhanagar  where  the  appellant  could  not  keep  his witnesses  present.  He  did  not  have  an  opportunity  of examining the  records used  against him.  Therefore ,   for more than  one reason  ,   the enquiry  appears to have been held in      l. [1958] SCR 571. 647 violation of  principles of natural justice and is vitiated. If the  enquiry was  illegal ,   any punishment imposed as a result of  the enquiry must t‘ail. Therefore ,  the order of compulsory retirement  is bad  for more  than one reason and liable to be set aside and is hereby set aside.      Once the  order of  compulsory retirement is set aside, the   appellant continues  to be  in service. He has reached the age  of Superannuation  as on  December 6  ,    1978  as pointed out in the affidavit and not controverted. Therefore ,   it is  not permissible  to direct  his reinstatement  in service. He  would be entitled to backwages from the date of compulsory retirement on October 16 ,  1962 till the date of his superannuation on December 6 ,  1978. C      Before we determine the amount payable as backwages, we must make  it distinctly  clear  that  while  computing  the amount we  have kept in view the meagre monthly salary which the appellant would have received for the years 1962 to 1974 when the  pay scale  of his post was revised. In any year if he had  received full  salary ,   he  was not  liable to pay income-tax at  the rates  then in  force. Even  the  revised salary with the exemption limit of income-tax going up would have not  been assessable  to income-tax.  And  this  lowest grade class  IV servant  ,   we were  informed had  no other source of income. Now that the amount is payable in one lump sum ,   presumably  the Government may resort to Sec. 192 of the Income Tax Act. But let it be made distinctly clear that the appellant is entitled to the benefit of Sec. 89 and Rule 21A of  the Income  Tax Rules  and he  is entitled to relief under Sec. 89. Therefore ,  while computing the total amount ,   we have  kept the spread over in view and in no year any income-tax is  deductible from the meagre salary of this low paid class  IV employee.  If therefore  ,   any deduction is made towards  income-tax while  making the  payment ,  it is incombent  upon  the  Tripura  administration  to  take  all necessary steps to obtain the relief for the appellant under Sec. 89  of the  Income-Tax Act  read with  Rule 21A  of the Income Tax Rules.      As  pointed  out  earlier  ,    rival  contentions  and

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calculations have  been examined  by us  and keeping them in view and  having regard  to the  circumstances of the case , we direct  that over  and above  the amount  of  Rs.  93,000 already paid to the appellant ,  he should be paid Rs. 7,000 more towards backwages and pension upto and inclusive of 648 December 31 ,  1984. The respondent shall pay pension at the rate of  Rs. 400 from January 1 ,  1984. The appellant shall also be  paid dearness allowance if admissible to pensioners getting pension  at Rs. 400 p.m. The appellant shall also be paid gratuity at the admissible rate treating him in service upto and inclusive of December 6 ,  1978. The payment herein directed shall  be made with in a period of eight weeks from today. The  respondent shall also pay costs to the appellant quantified at  Rs. 2,000.  Appeal is  allowed to  the extent herein indicated.  M.L.A.                                      Appeal allowed. 649