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PETITIONER: RAM EKBAL SHARMA

       Vs.

RESPONDENT: STATE OF BIHAR & ANR.

DATE OF JUDGMENT24/04/1990

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1990 AIR 1368            1990 SCR  (2) 679  1990 SCC  (3) 504        1990 SCALE  (1)12

ACT:     Bihar  Service Code, 1979: Section  74(b)(ii)--Order  of compulsory retirement--Couched in innocuous language--Valid- ity Court--Whether could lift the veil, in appropriate cases to ascertain basis of order.     Constitution   of   India,   1950:   Articles   14   and 311(2)--Order of compulsory retirement--Couched in innocuous language, but made by way of punishment----Whether violative of.

HEADNOTE:     The  appellant, an officer of Bihar State, filed a  writ petition  before  the High Court, challenging the  order  of compulsory retirement passed by the respondent State,  under Rule 74(b)(ii) of Bihar Service Code, 1979, contending  that throughout  his  service  of 30 years he  had  an  exemplary service career and his integrity remained unquestionable and that  neither any adverse remarks were communicated  to  him nor any departmental proceedings were initiated against him, nor  any  explanation called for from him.  The  High  Court dismissed the writ petition by a laconic order.     In the appeal, by special leave, the appellant contended that  though  the order was couched in innocuous  terms  and made in compliance with the provisions of Rule 74(b)(ii)  of Bihar  Service Code on appellant’s reaching the age of  more than  50  years, and prima facie not appearing to  cast  any stigma, it was not made in public interest, but made by  way of  punishment  for oblique purposes,  in  consideration  of extraneous matter and purporting to removal from service  on certain serious allegations of misconduct, casting a stigma, and  hence  the order was illegal, bad and in  violation  of audi alterem partem rule and Article 311(2) of the Constitu- tion and was liable to be quashed.     On behalf of the respondent-State it was contended  that the  order  had  been made in  public  interest  under  Rule 74(b)(ii)  and  there  was nothing to show  from  the  order itself that it had been made by way of punishment, casting a stigma,  the  language of the order was innocuous,  and  the appellant  could  not delve into the secretariat  files,  to find out the basis of the order. 680 Allowing the appeal, this Court,

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   HELD: 1.1 Even though the order of compulsory retirement is couched in innocuous language without making  imputations against  the government servant, who is directed to be  com- pulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether  the order  is based on any misconduct of the government  servant concerned or the order has been made bona fide and not  with any  oblique or extraneous purposes. Mere form of the  order in  such cases cannot deter the Court from delving into  the basis of the order if the order in question is challenged by the concerned government servant. [693F-G]     Shamsher  Singh & Anr. v. State of Punjab, [1975] 1  SCR 894  and Anoop Jaiswal v. Government of India and Am’.,  AIR 1984 SC 636, relied on.     Shyam Lalv. The State of U. P. & Anr., [1955] 1 SCR  26; Baldev  Raj Chadha v. Union of India and Ors., [1980] 4  SCC 321 and Union of India v. Col. J.N. Sinha and Anr., [1971] 1 SCR 791, referred to.     I.N.  Saxsena v. The State of Madhya Pradesh,  [1967]  2 SCR 496, distinguished.     1.2  The object of Rule 74(b)(ii) of the  Bihar  Service Code is to get rid of the government servant who has  become dead  wood. This order is made only to do away with  service of only those employees who have lost their utility,  become useless and whose further continuance in service is  consid- ered not to be in public interest. [655D]     1.3  In the instant case, the appellant had  an  unblem- ished career, and undoubtedly by dint of merit and  flawless service  career,  had  been promoted to the  post  of  Joint Director and ultimately to the post of General Manager.  The counter-affidavit  filed on behalf of  the  respondent-State has  categorically  stated that while passing the  order  of compulsory retirement the officers concerned were guided  by the  report dated September 19, 1987 which stated  that  the appellant  was responsible for grave and  serious  financial irregularities  resulting  in financial loss  to  the  State Government,  without giving any opportunity of  hearing  and without  intimating  allegations  to  the  appellant  before forming the opinion. The memorandum in question has  clearly stated  that the order of compulsory retirement was made  as the  appellant’s misconduct tarnished the image of the  Gov- ernment in the public. This categorical 681 statement clearly proves that the basis of making the  order is the report dated September 19, 1987. Therefore, the order of compulsory retirement cannot be defended on the mere plea that  it has been made in accordance with the provisions  of Rule  74(b)(ii) which prima facie does not make any  imputa- tion or does not cast any stigma on the career of the appel- lant. [657E, 689F-H, 690A, 693H, 694A]     In view of the clear and specific averments made by  the respondent-State  that  the order has been made  under  Rule 74(b)(ii) as the appellant was found to have committed grave financial  irregularities leading to financial loss  to  the State, the order cannot but be said to have been made by way of punishment. Such an order is in contravention of  Article 311 of the Constitution and arbitrary as it violates princi- ples of natural justice. It has not been made bona fide, but for collateral purposes and for extraneous consideration  by way  of punishment and is, therefore,  illegal,  unwarranted and liable to be quashed. [694A-B, C]     Accordingly  the order of compulsory retirement  is  set aside  and  the respondents are directed  to  reinstate  the appellant with full back wages. [694D]

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JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1995  of 1990.     From  the  Judgment and Order dated  23.11.1988  of  the Patna High Court in C.W.J.C. No. 8457 of 1988. A.K. Sen. Shankar Ghosh and M.P. Jha for the Appellant. G.S. Misra for the Respondents. The Judgment of the Court was delivered by         J. This appeal on special leave is directed  against the  judgment  and order dated November 23, 1988  passed  in C.W.J.C. No. 8457 of 1988 by the High Court, Patna  dismiss- ing  the writ petition moved by the appellant assailing  the order of his compulsory retirement from service by notifica- tion  dated  October 26, 1988 issued by  the  Government  of Bihar  compulsorily  retiring him from service  with  effect from the date of issue of the notification.     The  salient facts giving rise to this appeal  are  that the appellant was initially appointed on December 9, 1957 to the  post  of Industrial Expansion Officer and he  was  con- firmed to the said post on May 15, 682 1958. The appellant was promoted to the post of Planning-cum Evaluation  officer, a Gazetted post, on December  19,  1973 because  of his excellent service career. The appellant  was further  promoted  to  the next higher  post  of  Industrial Economist  by  notification dated September  24,  1983  with effect from December 19, 1978 in the scale of Rs.1350-2000.     Because  of  excellent character role and merit  of  the appellant, he was promoted to the next higher post of  Joint Director  in his original scale of pay of Rs.1350-2000  with 20 per cent personal pay for holding such higher post  which he  held  from September 24, 1983 to March  31,  1984.  From April  1,  1984 the appellant was provided with  the  higher post  of General Manager under the respondent-State  in  its Industries Department.     The respondent-State issued a notification on  September 16,  1988 promoting a large number of juniors to the  higher scale  of Rs.1575-2300 without considering the case  of  the appellant.     Being  aggrieved the appellant filed one  representation against his supersession which was made without  considering the  case of the appellant. The representation was filed  on October  7, 1988. In the said representation  the  appellant brought to the notice of the respondent State that the serv- ice  record of the appellant throughout remained  excellent, integrity beyond doubt and the appellant was never  communi- cated with any punishment in his service career.     While  the  appellant was awaiting for a  decision,  the respondent  State  issued the  impugned  notification  dated October  26, 1988 compulsorily retiring the  appellant  from the  post  of General Manager, District  Industries  Centre, Deoghar under the provisions of Rule 74(b)(ii) of the  Bihar Service Code.     The  appellant claimed that the aforesaid order of  com- pulsory  retirement has been issued by the  respondent-State on the basis of a memorandum dated October 6, 1988 though in the garb of Rule 74(b)(ii) of the Bihar Service Code, but in fact this has been made as a measure of punishment.     Being aggrieved and dissatisfied by the order of compul- sory  retirement passed against him by the respondents,  the appellant preferred a writ petition being C.W.J.C. No.  8457 of  1988  before the High Court, Patna questioning  the  im- pugned order on the grounds inter alia

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683 that the appellant throughout his 30 years had an  exemplary service  career and his integrity  remained  unquestionable, that  the appellant was never communicated with any  adverse remarks  nor any departmental proceeding was ever  initiated against  the appellant, nor any explanation was ever  called for. The High Court without at all considering and  appreci- ating  the contentions dismissed the writ application  by  a laconic order.     Feeling  aggrieved by the said order the instant  appeal on special leave has been filed.     The  only crucial question that fails for  consideration in  this Court is whether the impugned order  of  compulsory retirement  from  service has been made  by  the  Appointing Authority  in  public  interest  in  accordance  with   Rule 74(b)(ii)  of  Bihar Service Code, 1979 or for  any  oblique motive  as an extraneous consideration or by way of  punish- ment  casting stigma on the service career of the  appellant even  though  the impugned order was  couched  in  innocuous language. The relevant Rule 74(b) reads as follows: "Rule  74(b)(i): Notwithstanding anything contained  in  the preceding subrule a Government Servant may, after giving  at least  three  months’ previous notice, in  writing,  to  the appointing  authority concerned, retire from service on  the date  on  which such a Government servant  completes  thirty years of qualifying service or attains fifty years of age or any date thereafter to be specified in the notice. Provided  that no Government servant under suspension  shall retire from service except with the specific approval of the State Government. Provided  further that in case of officers and  servants  of the  Patna High Court (including those of Circuit  Bench  at Ranchi),  under  the  rule marking authority  of  the  Chief Justice,  no  such officers and  servants  under  suspension shall retire from service except with the specific  approval of the Chief Justice. Rule  74(b)(ii):  The appointing  authority  concerned  may, after  giving  a Government servant at least  three  months’ previous 684 notice  in writing, or an amount equal to three months’  pay and allowances in lieu of such notice, require him in public interest to retire from service on the date on which such  a Government  servant  completes thirty  years  of  qualifying service or attains fifty years of age or on any date  there- after to be specified in the notice."     On a plain reading of the said Rule it appears that  the appointing  authority has been conferred power to  retire  a government  servant  from service in public  interest  after giving  three months’ prior notice in writing or  an  amount equal  to three months’ pay and allowances in lieu  of  such notice  on  the date on which such government  servant  com- pletes  thirty years of qualifying service or attains  fifty years  of age or on any date thereafter to be  specified  in the  notice. The impugned notification was made  on  October 26, 1988 by the Government of Bihar intimating the appellant that as he had completed the age of more than 50 years,  and in the opinion of the Government of Bihar, in public  inter- est he is compulsorily retired from service with effect from the  date  of issue of this notification. He  will  be  paid salary  of  three months with allowances in  lieu  of  three months’ notice under Rule 74(b)(ii) of Bihar Service Code.     It  has been contended on behalf of the  appellant  that though the impugned order is couched in innocuous terms  and

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it  is  made  in  compliance with  the  provisions  of  Rule 74(b)(ii) of Bihar Service Code on appellant’s reaching  the age of more than 50 years and it does not prima facie appear to  cast any stigma on the service career of  the  appellant yet it has been made by way of punishment casting stigma  on the  appellant’s  service career and as  such  the  impugned order  is illegal, bad and the same has been made in  viola- tion  of audi alterem partem rule as well as Article  311(2) of  the Constitution. It has been further submitted in  this connection that the power to retire the appellant  compulso- rily from service has not been made in public interest under Rule 74(b)(ii) of Bihar Service Code but on the basis of the fact finding report given by the Deputy Development  Commis- sioner,  Dumka by his letter dated September 19,   1987  re- garding  grave  financial irregularities  committed  by  the appellant  in consideration of which a memorandum  was  pre- pared by the Additional Commissioner-cum-Special  Secretary, Shri  T. Nand Kumar on October 6, 1988 recommending  to  the respondent-State  to compulsorily retire the appellant  from service under Rule 74(b)(ii) of Bihar Code. It has also been contended that the basis of the order was made with  oblique purposes 685 in consideration of extraneous matter and the impugned order purports to removal from service on certain serious  allega- tions  of misconduct and consequently it casts a  stigma  on the service career of the appellant. Such order of compulso- ry  retirement from service though appears to be  innocuous, has been made by way of punishment and as such it is  liable to be set aside and quashed.     It  has, on the other hand, been urged on behalf of  the respondent-State that the impugned order has been made under Rule 74(b)(ii) of Bihar Service Code in public interest  and there  is nothing to show from the order itself that it  has been made by way of punishment and it casts a stigma on  the service  career of the appellant. The language of the  order is innocuous. The appellant cannot delve into the secretari- at files to find out the basis of the order. Some  decisions have been cited at the bar in support of this submission.     Rule  74(b)(ii) of the Bihar Service Code confers  power on the Appointing Authority to compulsorily retire a govern- ment  servant  on  his attaining 50 years of  age  or  after completing  30 years of qualifying service in public  inter- est. The object of this rule is to get rid of the government servant who has become dead wood. This order is made only to do  away with service of only those employees who have  lost their utility, become useless and whose further  continuance in  service is considered not to be in public  interest.  In the instant case the appellant has an unblemished career and undoubtedly by dint of his merit and flawless service career he  had been promoted to the post of Joint Director in  1983 and  subsequently on 1st April, 1984 he was promoted to  the higher post of General Manager under the respondent State in its  Industries Department. The appellant  has  specifically pleaded  in paragraph K of this appeal that he came to  know that  the impugned order of compulsory retirement  has  been issued by the respondent State on the basis of a  memorandum dated October 6, 1988. It has been further pleaded that  the appellant came to know from the memorandum that the impugned order  of compulsory retirement dated October 26,  1988  has been  issued by the respondent-State though in the  garb  of Rule  74(b)(ii) of the Bihar Service Code, but in  fact  the same  has been issued as a measure of punishment. This  fact will be evident from the memorandum dated 6th October,  1988 wherein the State has alleged that six items of charges have

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been  proved against the petitioner (appellant).  The  State Government  has also accepted that there is no  question  of going into the formality of departmental proceeding but  has decided  to retire the petitioner compulsorily  under  Rules 74(b)(ii) of the Bihar Service Code. Paragraphs 686 2  to  4 of the Memorandum dated 6th October, 1988  make  it clear  that  the impugned order dated October  26,  1988  of compulsory  retirement,  has been issued as  a  measure’  of punishment. It is further submitted that the order passed on October  26, 1988 was without giving any notice or any  show cause to the petitioner. It  has been stated in para 4 to 7 of the  counter-affidavit as under: (4)  That  it is not at all necessary to  draw  departmental proceeding against the petitioner (appellant) before effect- ing his compulsory retirement from government service. Since his  retirement  under Rule 74(b)(ii) of the  Bihar  Service Code does not amount to dismissal or removal from government service  within the meaning of clause (2) of Article 311  of the-Constitution, it is, therefore, not necessary to  obtain the  advice of the Bihar Public Service Commission  (Limita- tion of Functions) Regulation, 1956. (5)  That it is relevant to state that while the  petitioner (appellant) was General Manager, District Industries Centre, Dumka  and  Deoghar during the year 1985  onwards  till  his compulsory  retirement, an enquiry into the serious  charges of  corruption,  omission and commission  of  financial  and administrative  lapses  and foul play against him  had  been conducted  respectively by Deputy Development  Commissioner, Dumka, Deputy Commissioner, Dumka and Additional Director of Industries, Bihar, Patna. The above charges were proved such as: (i)  The  charge of registration of bogus unit  had  clearly been established; (ii) Allegations of recommendations and sanction of  capital subsidy on D.G. sets to bogus units have been proved; (iii) Where there were no D.G. sets and the unit was  bogus, subsidy  had  been sanctioned against the  departmental  in- structions; (iv)  Seed money had been sanctioned to  non-existent  units and payments made in violation of Government orders; 687 (v) Registration had been done for restricted items; (vi)  Subsidy on D.G. sets had been sanctioned and  payments made to units located outside his jurisdiction; and (vii)  Appointment of persons had been made on ad hoc  basis beyond his delegated powers in gross violation of Government rules. (6)  That in the above mentioned cases registration;  recom- mendations  and  payments had been made  by  the  petitioner (appellant)  after making personal inspections of the  units which facts are sufficient to prove that he had commited the said  irregularities  knowingly for his personal  gains  and thereby the State Government had suffered a heavy loss. This misconduct  on his part had tarnished the image of the  Gov- ernment  in  the  public. It is,  therefore,  his  so-called exemplary  service record which has no co-relation with  his compulsory retirement as stated in the aforesaid paragraph. (7) That contention of the petitioner (appellant) as  stated in para (viii) of the special leave petition that the  memo- randum which have formed the basis of causing the compulsory retirement  of  the petitioner  (appellant),  is  absolutely wrong  and  without any substance. It is relevant  to  state that  the  memorandum being confidential papers of  the  re-

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spondent-State  Government cannot be termed as the Order  of compulsory  retirement and which order does not contain  any word from which a stigma may be inferred."     It has been further averred in para 8 of the said  affi- davit  that on a perusal of the order of compulsory  retire- ment of the petitioner (appellant), it is sufficiently clear that no stigma has been attached to the petitioner nor there is  any  word in the said Order from which a stigma  may  be inferred.  The  Supreme Court has held in the case  of  I.N. Saxsena v. The State of Madhya Pradesh, [967] 2 SCR 496 that where  an  order requiting a Government  servant  to  retire compulsorily contains express words from which a stigma  can be  inferred  that order will amount to removal  within  the meaning of Article 311. But where there are no express words in  the  order itself which would throw any  stigma  on  the Government order, we cannot delve into Secretariat files  to discover whether some kind of stigma can be inferred on such research. 688     In  para 9 it has been stated that it is, therefore,  as per the decision of the Supreme Court in the said case,  the Court  cannot  look  into the background  resulting  in  the passing  of the order of compulsory retirement in  order  to discover  whether  some kind of stigma can be  inferred  and accordingly  in the instant case the memorandum  is  totally irrelevant for the consideration by the Court and in view of the same the appeal of the appellant can be dismissed.     A  supplementary affidavit has been filed on  behalf  of the  appellant sworn by Suhird Kumar, son of the  appellant. In  para 3 of the said affidavit it has been submitted  that the  memorandum  is  prepared on the basis  of  two  enquiry reports  done by the different officers without there  being any  notice  or getting any other version and this  sort  of memorandum  cannot  be said to be a fair memorandum  in  the eyes of law and so any action taken by the State  Government on the basis of the said Memorandum is bad and violative  of Article 14 and 16 of the Constitution of India.     It is thus, clear and evident from the counter-affidavit filed on behalf of the State Government referred to  herein- before  that the basis of the impugned order  of  compulsory retirement  from service of the appellant is not  in  public interest  as  stated in the order of  compulsory  retirement dated  October  26, 1988. The impugned order, in  fact,  has been passed on the basis of the memorandum dated October  6, 1988  which is also based on the Report given by the  Deputy Development Commissioner, Dumka by his letter dated  Septem- ber 19, 1987 without asking any explanation from the  appel- lant  and without giving him any opportunity to  defend  his case  before  the Deputy Development  Commissioner.  It  is, therefore,  wrong to say that the basis of the order is  not the  said  memorandum as well as the report  of  the  Deputy Development  Commissioner  which clearly  evinces  that  the impugned order of compulsory retirement is a mere camouflage being  couched in innocuous terms and in fact the  same  has been made by way of punishment.     In support of the impugned order it has been  vehemently urged  on behalf of the respondent-State that the  order  of compulsory  retirement dated October 26, 1988 does not  show prima facie that it has been made by way of punishment.  The Order  as  it  is, speaks of compulsory  retirement  of  the appellant from service in accordance with the provisions  of Rule  74(b)(ii) of the Bihar Service Code. It has been  con- tended  further’ that this order being couched in  innocuous terms  cannot be questioned and the appellant  cannot  delve into the secre-

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689 tariat  filed  to  find out the basis of the  order  and  to challenge the same on that basis. Reference has been made in this connection to the case of 1. N. Saksena v. The State of Madhya  Pradesh, (supra). In that case, the State of  Madhya Pradesh issued a memorandum on February 28, 1963 raising the age  of  retirement of its employees from 55  to  58  years. Clause 5 of the memorandum, however, said that the  appoint- ing  Authority  may require a Government servant  to  retire after  he  attained  the age of 55 years  on  three  months’ notice  without giving any reasons. The clause further  said that this power was normally to be used to weed out  unsuit- able  employees. The appellant who was a District  and  Ses- sions  Judge  in the service of the State  Government  would normally  have  retired at the age of 55  years  in  August, 1963.  In September, 1963, however, Government  communicated to. him an order that he was to retire on December 31,  1963 under  Rule  56 of the Fundamental Rules applicable  to  the State  of Madhya Pradesh. This order was challenged  by  the appellant  by writ petition before the High Court of  Madhya Pradesh.  It  was rejected. Thereafter, the  appellant  came with a certificate, to this court. It has been held by  this Court in that case that: "Where there are no express words in the order of compulsory retirement itself which would throw a stigma on the  Govern- ment  servant,  the Court would not delve  into  Secretariat files  to  discover  whether some kind of  stigma  could  be inferred  on such research. Since in the present case  there are  no words of stigma in the order  compulsorily  retiring the  appellant, there was no removal requiring action  under Art. 311 of the Constitution."     This  decision does not, in any way, apply to this  case for the simple reason that in the affidavit-in-counter filed by  the  respondent State it has been  categorically  stated that   while  passing  the  impugned  order  of   compulsory retirement the officers concerned were guided by the  report dated September 19, 1987 submitted by the Deputy Development Commissioner, Dumka who stated in his report that the appel- lant  was  responsible for the grave and  serious  financial irregularities  resulting  in financial loss  to  the  State Government,  without giving any opportunity of  hearing  and without  intimating the allegations to the appellant  before forming his opinion. The said report was taken into  consid- eration and memorandum in question was issued on October 26, 1988  by  the Additional Secretary,  Industries  Department, Government of Bihar wherein it has been clearly stated  that the impugned order of compulsory retirement was made as  the said mis- 690 conduct on the part of the appellant tarnished the image  of the  Government  in the public. This  categorical  statement made  in  the affidavit-in-counter clearly proves  that  the basis  of making the order of compulsory retirement  of  the appellant  from the service is the aforesaid report  of  the Deputy Development Commissioner, Dumka referred to hereinbe- fore. In such circumstances, it is futile to argue that  the order of compulsory retirement being couched in an innocuous language without causing any stigma is unassailable.     It  is pertinent to mention in this connection the  case of  Shyam Lal v. The State of U.P. & Anr., [1955] 1  SCR  26 wherein it has been held by the Constitution Bench that: "A compulsory retirement under the Civil Services (Classifi- cation,  Control and Appeal) Rules, does not amount to  dis- missal  or removal within the meaning of Article 311 of  the Constitution and therefore, does not fall within the  provi-

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sions of the said Article." "There  is  no such element of charge or imputation  in  the case  of  compulsory retirement. The  two  requirements  for compulsory retirement are that the officer has completed  25 years’  service  and that it is in the  public  interest  to dispense  with  his further services. It is true  that  this power of compulsory retirement may be used when the authori- ty exercising this power cannot substantiate the  misconduct which  may be the real cause for taking the action but  what is  important  to note is that the directions  in  the  last sentence in Note 1 to Article 465-A make it abundantly clear that  an imputation or charge is not in terms made a  condi- tion  for the exercise of the power. In other words, a  com- pulsory retirement has no stigma or implication of  misbeha- viour or incapacity." It has been further held that: "A  compulsory  retirement does not amount to  dismissal  or removal  and, therefore, does not attract the provisions  of Article 311 of the Constitution.     In Baldev Raj Chadha v. Union of India and Ors.,  [1980] 4 SCC 32 1 it was held that: 691 "The whole purpose of Fundamental Rule 56(j) is to weed  out the  worthless  without  the punitive  extremes  covered  by Article  311  of the Constitution. But under  the  guise  of ’public interest’ if unlimited direction is regarded accept- able for making an order of premature retirement, it will be the  surest  menace  to public interest and  must  fail  for unreasonableness, arbitrariness and disguised dismissal. The exercise  of  power  must be bona fide  and  promote  public interest." It has also been observed that: "An officer in continuous service for 14 years crossing  the efficiency bar and reaching the maximum salary in the  scale and with no adverse entries at least for five years  immedi- ately before the compulsory retirement cannot be compulsori- ly retired on the score that long years ago, his performance had  been  poor, although his superiors had allowed  him  to cross the efficiency bar without qualms."     In  the  case of Union of India v. Col. J.N.  Sinha  and Anr.,  [1971] 1 SCR 791 it has been observed by  this  Court that: "Fundamental  Rule 56(i) does not in terms require that  any opportunity  should  be given to  the  concerned  Government servant to show cause against his compulsory retirement.  It says  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. If  that  authority bona fide forms that opinion the correctness of that opinion cannot be challenged before courts, though it is open to  an aggrieved  party to contend that the requisite  opinion  has not  been  formed  or the decision is  based  on  collateral grounds or that it is an arbitrary decision."     In  Shamsher Singh & Anr. v. State of Punjab,  [1975]  1 SCR 814 the appellant Shamsher Singh was a Subordinate Judge on probation. His services were terminated by the Government of  Punjab  in the name of Governor of Punjab  by  an  order which  did not give any reasons for the termination. It  has been held that: "No  abstract  proposition can be laid down that  where  the services of probationer are terminated without saying any- 692 thing  more  in the order of termination that it  can  never amount to a punishment in the facts and circumstances of the case.  If a probationer is discharged on the ground of  mis-

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conduct  or  inefficiency or for similar  reason  without  a proper enquiry and without his getting a reasonable opportu- nity  of  showing cause against his discharge it  may  in  a given case amount to removal from service within the meaning of Article 311(2) of the Constitution."     In  that case the appellant was asked to show cause  why his  services should not be terminated and there  were  four grounds. One was that the appellant’s behaviour towards  the Bar  and the litigant public was highly  objectionable,  de- rogatory,  non-cooperative  and  unbecoming  of  a  judicial officer.  The second was that the appellant would leave  his office  early.  The third was the complaint of  Om  Prakash, Agriculture Inspector that the appellant abused his position by  proclaiming that he would get Om Prakash involved  in  a case if he did not cooperate with Mangal Singh, a friend  of the appellant and Block Development  officer, Sultanpur. The fourth  was the complaint of Prem Sagar that  the  appellant did  not  give full opportunity to Prem Sagar to  lead  evi- dence. Prem Sagar also complained that the decreeholder made an  application  for execution of the  decree  against  Prem Sagar  and  the appellant without  obtaining  office  report incorporated  some  additions in the original  judgment  and warrant  of possession. The appellant showed  cause  stating that  he was not provided with an opportunity to work  under the  same superior officer for at least six months  so  that independent  opinion could k., formed about  his  knowledge, work  and  conduct.  Thereafter, the  appellant  received  a letter from the Deputy Secretary to the Government addressed to  the  Registrar, Punjab and Haryana High Court  that  the services  of the appellant had been terminated. It has  been held  that in the facts and circumstances of the case it  is clear  that the order of the termination of  the  appellant, Shamsher  Singh was one of punishment. The authorities  were to  find out the suitability of the appellant. The order  of termination is in infraction of Rule 9 which makes it incum- bent  upon the authority that the services of a  probationer can be terminated on specific fault or on account of  unsat- isfactory record implying unsuitability. The order of termi- nation was, therefore, set aside.     This  judgment  has been followed in the case  of  Anoop Jaiswal v. Government of India and Anr., AIR 1984 SC 636. It has been observed that: 693 "It  is, therefore, now well settled that where the form  of the  order is merely a camouflage for an order of  dismissal for  misconduct it is always open to the Court before  which the order is challenged to go behind the form and  ascertain the true character of the order. If the Court holds that the order  though in the form is merely a determination  of  em- ployment  is in reality a cloak for an order of  punishment, the Court would not be debarred, merely because of the  form of  the order, in giving effect to the fights  conferred  by law upon the employee." It has also been observed that: "Even though the order of discharge may be non-committal, it cannot  stand  alone. Though the noting in the file  of  the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is  the basis or foundation for the order should be read along  with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclu- sion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have  been passed  then  it is inevitable that the order  of  discharge should  fall  to the ground as the appellant  has  not  been

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afforded  a  reasonable  opportunity to  defend  himself  as provided in Art. 3 11(2) of the Constitution."     On  a  consideration of the above  decisions  the  legal position  that now emerges is that even though the order  of compulsory  retirement  is  couched  in  innocuous  language without making any imputations against the government  serv- ant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift  the veil  to find out whether the order is based on any  miscon- duct  of the government servant concerned or the  order  has been  made bona fide and not with any oblique or  extraneous purposes. Mere form of the order in such cases cannot  deter the  Court from delving into the basis of the order  if  the order in question is challenged by the concerned  government servant  as has been held by this Court in  Anoop  Jaiswal’s case.  This being the position the  respondent-State  cannot defend  the order of compulsory retirement of the  appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of Rule 74(b)(ii)  of the Bihar Service Code 694 which  prima facie does not make any imputation or does  not cast any stigma on the service career of the appellant.  But in  view  of the clear and specific averments  made  by  the respondent-State  that the impugned order has been  made  to compulsorily  retire  the appellant from service  under  the aforesaid Rule as the appellant was found to have  committed grave financial irregularities leading to financial loss  to the  State,  the impugned order cannot but be said  to  have been made by way of punishment. As such, such an order is in contravention of Article 311 of the Constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bona fide.     In  the  premises aforesaid we hold  that  the  impugned order  has not been made bona fide but for  collateral  pur- poses and on extraneous consideration by way of  punishment. The  impugned order is, therefore, illegal and unwanted  and so it is liable to be quashed and set aside. We,  therefore, allow  the appeal and set aside the impugned order. We  fur- ther  direct the respondents to reinstate the  appellant  in service forthwith with full back wages. The respondents will pay costs to the appellant. N.P.V.                                                Appeal allowed. 695