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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: SHYAM LAL SHARMA

DATE OF JUDGMENT12/08/1971

BENCH: RAY, A.N. BENCH: RAY, A.N. SIKRI, S.M. (CJ) PALEKAR, D.G.

CITATION:  1971 AIR 2151            1972 SCR  (1) 184  1972 SCC  (2) 514

ACT: Civil  service-Compulsory Retirement-Order when can be  said to be by way of Punishment

HEADNOTE: The  Order  compulsorily  retiring the  respondent,  a  head constable, made reference to a letter,, dated March 16, 1962 of  the  Police Head Quarters approving a  proposal  by  the Superintendent  of Police, dated February 14, 1962, for  the compulsory  retirement of the respondent.  The proposal  had mentioned  that the respondent was "considered to be  a  bad lot  incorrigible  and no longer  useful".   The  respondent filed  a suit for a declaration that the Order  was  illegal since  the procedure under Art. 311 of the Constitution  and r.  55  of the Civil Service Regulations was  not  followed. The trial court dismissed the suit.  In appeal the Civil and Sessions  Judge  came to the conclusion  that  the  proposal dated February 14, 1962, formed the necessary adjunct to the order  leading to compulsory retirement and passed a  decree in  favour of the respondent.  The High Court confirmed  the decree. Allowing the appeal, HELD:     In  ascertaining  whether an order  of  compulsory retirement is one of punishment it has to be seen whether in the  order  there  is any element of  charge  or  stigma  or imputation or any implication of misbehaviour or  incapacity against  the officer concerned.  Where the  authorities  can make an order of compulsory retirement for any reason and no reason  is  mentioned in the order it cannot  be  predicated that  the  order of compulsory retirement  has  an  inherent stigma  in  it.   Unless it is established  from  the  order itself  that a charge or imputation against the  officer  is made  the condition of the exercise of the power or that  by the order the officer is losing benefits already earned, the order  cannot be said to be one for dismissal or removal  or in the nature of penalty or punishment. [189 B; 192 D, E] In the present case the order of compulsory retirement  does not  suffer from any such vice nor can it be, on  the  facts found,  said to have been passed on account of malice.   The High  Court  fell into the error of holding that  the  order contained stigma by going behind the order of retirement and

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also  by misreading the proposal dated February 14, 1962  in the  manner not warranted by the letter itself containing  a mere proposal for compulsory retirement.  Only the  proposal was  sent  for  approval.  The order  cannot  be  stated  to sustain  the  plea  of punishment  by  extracting  opinions- expressed by the authorities in regard to the officer in the past. [192 F; 190 C-D]  I.  N. Saksena v. State of Madhya Pradesh, [1967] 2  S.C.R. 496, followed. 185 Shyam  Lal  v. State of U.P..[1966] 1 S.C.R.  26,  State  of Bombay  v. Saubhagchand M. Doshi, [1958] S.C.R.  571,  Dalip Singh  v. State of Punjab, [1961] 1 S.C.R. 88 and  State  of Uttar  Pradesh  v. Madan Mohan Nagar, [1967] 2  S.C.R.  333, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1203 of 1969 Appeal  by special leave from the judgment and  order  dated September  20,  1968 of the Allahabad High Court  in  Second Appeal No 1791 of 1967 L.   M.Singhvi and O. P. Rana, for the appellant. R.   N.  Sharma,  N.  N.  Sharma  and  C.  P.  Lal  for  the respondent The Judgment of the Court was delivered by RAY, J.-This appeal is by special leave against the judgment dated  20 September 1968 of the High Court of Judicature  at Allahabad  dismissing the appeal preferred by the  State  of Uttar  Pradesh  against the decree passed by  the  Court  of Civil  and  Sessions  Judge  in  favour  of  the  plaintiff- respondent  declaring  that  the order  of  removal  of  the plaintiff-respondent from service is void and is illegal and the  plaintiff-respondent  should be deemed to be  still  in service. The  only  question  for consideration  in  this  appeal  is whether the order of compulsory retirement of the plaintiff- respondent was one of punishment. The  High  Court came to the conclusion that  the  order  of compulsory  retirement dated 28 March, 1962 and  the  letter dated 16 March, 1962 referred to in the order of  compulsory retirement  and  the  memorandum  dated  14  February,  1962 referred  to in the, letter dated 16 March. 1962  when  read together established that the order of compulsory retirement was to punish the plaintiff-res-pondent. The order dated 28 March, 1962 was as follows:-               "As per orders contained in the P.H.Q.  letter               No.  IV-780-60  dated 16-3-62  the  compulsory               retirement  of  H.C./22  C.P.  Shyam  Lal  is.               sanctioned.    He  is   retired   compulsorily               w.e.f.. 1-4-62 ........... 186 The letter dated 16 March, 1962 was as follows:- "U.P. POLICE HEAD QUARTERS, ALLAHABAD-1 No. IV-780-60, dated 16 March, 1962.               To,                       The Supdt. of Police,                             Mathura.               Subject   :  Compulsory  retirement  of   Head               Constable Sri Shyam Lal Sharma of the  Mathura               District Police.               Reference: Your No. P-99 dated Feb. 14,  1962.               Your proposal for the compulsory retirement of               Head   Constable  Sri  Shyam  Lal  Sharma   is

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             approved.   He should be retired  compulsorily               forthwith   and  granted  four  months   leave               preparatory to compulsory retirement, if he so               applied for.                             Sd/- M.L. Capoor,                Deputy Supdt. of Police, HDQRS. for Inspector               General of Police.               The  letter P. 99 dated 14 February, 1962  was               as follows:-               "To                The Dy.  Inspector Genl. of Police;                       Agra Range, U.P. Camp., Agra.               Subject:   Compulsory   retirement   of   Head               Constable Shyam Lal Sharma No. 22 C.P. of  the               Mathura District.               Reference: P.H.Q.  endorsement  No.   IV-56959               dated 17-1-61.               2.    The  above named Head Constable has  put               in  26  years  of service  and  has  lost  his               utility  to the Department.  He is  considered               to  be  a bad lot incorrigible and  no  longer               useful.  I recommend his compulsory retirement               on proportionate pension w.e.f. 1-4-1962.               187               3.    The Proposal for the compulsory  retire-               ment of this Head Constable on Police Form No.               61  in duplicate together with his  Ch.   Roll               and the following documents is herewith sent.  P.H.Q. (IV)    1.   A note containing the  For n.a.            charge preferred against  May be sanc-        the Head Constable.  tioned four         2. Memo of leave (in  months leave        duplicate).  preparatory to  3.  History of service (in  compulsory re-      duplicate).  tirement.               4.    It is therefore requested that necessary               remarks may kindly be recorded on the proposal               and  his  case  be  forwarded  to  P.B.Q.  for               issuing  orders for his compulsory  retirement               w.e.f. 1-4-1962". The  High  Court  held  that  reading  the  three  documents together  "there cannot be any escape from holding that  the order  of compulsory retirement was to punish the  plaintiff and  nothing else".  The High Court read the proposal  dated 14   February,  1962  in  this  language  "recommended   for compulsory  retirement on proportionate pension w.e.f.  1-4- 1962 due to the bad record of service as he is considered to be a bad lot incorrigible and no longer useful". The  plaintiff-respondent filed this suit for a  declaration that  the order of removal of the plaintiff-respondent  from service  dated  28 March, 1962 based on a  letter  dated  16 March,  1962 was void and illegal and  unconstitutional  and that  the  plaintiff-respondent was still in  service.   The defence  of the State was that the plaintiff-respondent  was not  retired  on the ground of misconduct,  inefficiency  or incapacity  and, therefore, the procedure under Article  311 and  rule  55  of  the Civil  Service  Regulations  was  not required to be followed. The court of the Munsif trying the suit dealt with issue No. 3,  namely, whether the "retirement of plaintiff  respondent was due to malice and by way of punishment" 188 and  answered the issue in the negative.  The court  of  the Munsif  also  held  that  the  order  was  not  illegal  and

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dismissed the suit. The Civil and Sessions Judge in hearing the appeal held that though  the  order dated 28 March, 1962 was ’to  the  effect that the plaintiff-respondent was to be retired compulsorily with  effect from 1-4-1962 it did not expressly mention  any stigma  against  the  plaintiff-respondent.   The  order  of compulsory  retirement according to the Civil  and  Sessions Judge  was  based on the letter of the  Police  Headquarters dated  16 March, 1962 which was an approval of the  proposal made  by  the Superintendent of Police by  letter  dated  14 February,  1962  and the proposal of the  Superintendent  of Police  clearly gave out that the sole basis for  compulsory retirement  of  the  plaintiff  respondent  was  ’his  being incorrigible   and  having  outlived  his  utility  to   the Department’. The Court of Civil and Sessions Judge on that ground came to the  conclusion that the order of compulsory retirement  was based  on  the  proposal of  the  Superintendent  of  Police accepted ’in toto’ by the Police Head Quarters and therefore the proposal formed ’necessary adjunct to the order  leading to  compulsory retirement.  The court of Civil and  Sessions Judge passed a decree in favour of the plaintiff-respondent. An  appeal  was  preferred to the High Court  by  the  State against  the  judgment of the Court of  Civil  and  Sessions Judge.   The  High  Court  agreed  with  the  reasoning  and conclusion  of  the court of Civil and  Sessions  Judge  and dismissed the appeal. The   implication  and  effect  of  orders   of   compulsory retirement came up for consideration before this Court  from time  to  time and reference may be made to  five  of  these decisions.   These  are Shyam lal v. State of  U.P.  &  Anr. [1955]  1  S.C.R.  26, State of Bombay  v.  Saubhagehand  M. Doshi,  [1958]  S.C.R. 571, Dalip Singh v. The  State  of  B Punjab,  [1961] 1 S.C.R. 88, The State of Uttar  Pradesh  v. Madan  Mohan Nagar, [1967] 2 S.C.R. 333, and I. Ar.  Saksena v. State of Madha Pradesh, [1967] 2 S.C.R. 496. 189 The  following  propositions  can be  extracted  from  these decisions.   First,  in ascertaining whether  the  order  of compulsory  retirement  is, one of punishment it has  to  be ascertained  whether in the order of  compulsory  retirement there  was any element of charge or stigma or imputation  or any  implication of misbehaviour or incapacity  against  the officer,  concerned.   Secondly, the  order  for  compulsory retirement  will be indicative of punishment or  Penalty  if the  order  will involve loss of  benefits  already  earned. Thirdly, an order for compulsory   retirement     on     the completion of 25 years of   service   or   an   order   of compulsory retirement made in  the  public  interest   to dispense with further service will not  amount  to   an order for dismissal or removal asthere  is no  element  of punishment.     Fourthly, an orderof compulsory  retirement will not be held to be an order in the nature of  punishment or  penalty on the ground that there is possibility of  loss of  future prospects, namely that the officer will  not  get his  pay till he attains the age of superannuation, or  will not get an enhanced pension for not being allowed to  remain a few years in service and being compulsorily retired. Judged  by  the principles enunciated by this  Court  it  is apparent  that  the order of compulsory  retirement  in  the present  case does not on the face of it contain any  stigma or  imputation  or  penalty  . It is not  the  case  of  the plantiff-respondent  that  the order of  compulsory  retire- ment  involved any loss of benefits already earned  or  that there was any penalty in the nature of loss of emoluments or

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pension.   It  was  contended on  behalf  of  the  plaintiff respondent that the reasoning adopted by the court of  Civil and Sessions Judge and upheld by the High Court was  correct that  the letters dated 16 March 1962 and 14 February,  1962 established  in  the present case that there was  stigma  in these  letters  and the order of compulsory  retirement  was based  on these letters and therefore the order was  one  of punishment.   The  letter dated 16 March, 1962  stated  that "proposal  for  compulsory  retirement......  is  approved". This letter cannot be said to have any stigma or imputation. It   was  submitted  that  inasmuch  as  the  proposal   for retirement  was approved, therefore, there was  approval  of the letter dated 190 14 February, 1962 and that letter was the basis of the order of compulsory retirement. The  letter dated 14 February, 1962 was in four  paragraphs. The concluding paragraph contained a proposal for compulsory retirement  of  the  plaintiff-respondent.   The  concluding paragraph  did not contain any stigma or imputation  against the plaintiff-respondent.  In the preceding paragraph 2  the author  of the letter wrote that "He is considered to  be  a bad lot incorrigible and no longer useful".  It was said  on behalf of the plantiff-respondernt that there was stigma  in the words "incorrigible and no longer useful" and the  order of compulsory retirement was based on that stigma.  Only the proposal  for compulsory retirement was sent  for  approval. The  order  of compulsory retirement cannot  be stated  to sustain  the  plea  of  punishment  by  extracting  opinions expressed by the authorities in regard to the officer in the past. This  Court in Saksena’s case (supra) said "where  an  order requiring  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 Art. 31  1. But where there are no express words in the order  we cannot delve into Secretariat files to discover whether some kind  of  stigma  can  be inferred  on  such  research".  In Saksena’s case (supra) the order was as follows               "In  pursuance  of  the  orders  contained  in               General  Administration Department  memorandum               No. 433-258-1 (iii)/63 dated the 28th February               1963,  the  State Government have  decided  to               retire  you with effect from the afternoon  of               the 31st December, 1963". The relevant rule in Saksena’s case (supra) conferred  power on the Government to retire an officer after he attains  the age  of 55 years on three months’ notice  without  assigning any  reason.  The rule stated that the power would  normally be  exercised  to weed out unsuitable employees  after  they have attained the age of 55 years. It  was  contended on behalf of Saksena that  the  order  of retirement cast a stigma.  This Court in Saksena’s 191 case  referred  to two earlier decisions of  this  Court  to illustrate as to whether the order of retirement itself cast a stigma.  One Was Jagdish Mitter v. Union of India,  A.I.R. 1964 S.C. 449 where the order was in these terms               "Shri Jagdish Mitter, a temporary 2nd Division               Clerk   of  this  office  having  been   found               undesirable  to  be  retained  in   Government               service is hereby served with a month’s notice               of  discharge  with effect  from  November  1,               1949". The  other was the decision in State of Uttar Pradesh v.  M.

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M.  Nagar  (supra)  where the order  of  retirement  was  as follows :-               "I  am directed to say that the  Governor  has               been  pleased to order in the public  interest               under Article 465A and Note (1) thereof of the               Civil  Service  Regulations,  the   compulsory               retirement with effect from September 1,  1960               of  Sri  Madan  Mohan  Nagar,  Director  State               Museum, Lucknow who completed 52 years of  age               on  July 1, 1960 and 28 years and 3 months  of               qualifying  service  on 31-5-1960  as  he  has               outlived his utility". In  Nagar’s  case  (supra) this Court held  that  the  words respondent had outlived his utility" occurring in the  order attached stigma to the officer In Saksena’s case (supra) the order was that the Government decided to retire the  officer with  effect from 31 December 1963 and as the order did  not contain  any  words from which stigma could be  inferred  it could  not be said that the order of  compulsory  retirement amounted  to an order of removal in Saksena’s case  (supra). This  Court in Shyam Lal’s case (supra) held that  the  mere fact  that the Government servant was  compulsorily  retired before  he  reached the age of superannuation could  not  in itself be a stigma. The  ruling  in Saksena’s case (supra) is  also  that  where there  are  no words in the order of  compulsory  retirement which throw any stigma there should not be any inquiry  into Government files to discover whether any remark amounting to stigma  could be found in the files.  The reason is that  it the  order  of  compulsory retirement  which  alone  is  for examination.  If the order 192 itself does not contain any imputation or charge against the officer  the  fact  that ,considerations  of  misconduct  or misbehaviour  weighed with the Government in coming  to  its conclusion whether any action could be taken under rule  278 does  not  amount to any imputation or  charge  against  the officer".   This  was the view expressed by  this  Court  in Dalip Singh’s case (supra).  In that case the relevant  rule was as follows               "The  State  reserves to itself the  right  to               retire  any  of its employees  on  pension  on               political or on other reasons." Where  the  authorities  can make  an  order  of  compulsory retirement for any reason and no reason is mentioned in  the order  it cannot be predicated that the order of  compulsory retirement  has  an inherent stigma in the  order.   In  the present case, the fact found is that the order of compulsory retirement could not be said to be on account of malice. Unless  it  is  established from  the  order  of  compulsory retirement  itself that a charge or imputation  against  the officer is made the condition of the exercise of that  power or that by the order the officer is losing benefits  already earned, the order of retirement cannot be said to be one for dismissal or removal in the nature of penalty or punishment. In the present case, the order of compulsory retirement does not suffer from any such vice. The High Court fell into the error of holding that the order of  compulsory  retirement  in the  present  case  contained stigma  by going behind the order of retirement and also  by misreading the letter dated 14 February, 1962 in the  manner not  warranted  by  the  letter  itself  containing  a  mere proposal for compulsory retirement. For these reasons, the appeal is allowed.  There will be  no order as to costs.  The parties will pay and bear

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their own costs. K. B.N.                        Appeal allowed. 193