Purshotam Sarup Johari v. State of U. P — 1975 DIGILAW 341 (ALL)

ORDER K.N. Singh, J. - This is a petition under Article 226 of the Constitution for quashing the order of the State Government dated 29-8-1974 retiring the petitioner compulsorily from Government service in exercise of its powers under Note (1) to Article 465 of the Civil Service Regulations by giving him three months salary in lieu of period of notice. 2. The petitioner joined the U.P. Police Department as Sub-Inspector of Police. He was posted in the Government Railway Police at various stations from time to time. While he was posted at Bareilly Junction, he was served with a charge-sheet on 16-12-1968 containing two charges. An enquiry officer was appointed and departmental proceedings under Section 7 of the Police Act were taken against him. After the conclusion of the trial the enquiry officer submitted his report to the Deputy Inspector-General of Police (Railways) with a recommendation to dismiss the petitioner from service as the charges were fully proved against him. The Deputy Inspector-General of Police, however, upheld the petitioners grievance that he was denied the opportunity of cross-examination of witnesses and for that reason the proceedings were again remanded to the enquiry officer for trial and for giving opportunity to the petitioner to cross-examine witnesses. While the proceedings were pending at the defence stage the petitioner was placed under suspension on 11-2-1970. Later on the petitioner was served with another charge-sheet dated 7-7-1971 which contained 17 charges (Annexure 2 to the petition). On a representation made by the petitioner the suspension order was withdrawn and the petitioner was reinstated with effect from 9-11-1971 but the departmental trial in respect of the charges contained in the aforesaid two charge sheets continued to be held against him. During the pendency of the departmental trial the petitioner completed 55 years of age on 16-7-1974. On 29-8-1974 the impugned order was passed by the State Government retiring the petitioner compulsorily from service in exercise of its powers under Note (1) to Article 465 of Civil Service Regulations. The petitioner has challenged the validity of that order in the present petition. 3. Learned counsel for the petitioner urged that though the impugned order of compulsory retirement is innocuous on its face, but in substance it is an order of punishment which has been issued without affording any opportunity of defence to the petitioner as contemplated by Article 311 (2) of the Constitution. 3. Learned counsel for the petitioner urged that though the impugned order of compulsory retirement is innocuous on its face, but in substance it is an order of punishment which has been issued without affording any opportunity of defence to the petitioner as contemplated by Article 311 (2) of the Constitution. The attending circumstances and the petitioners trial on a number of serious charges have been referred to by the learned counsel to show that the order was passed at a time when the petitioner was facing trial on serious charges. A counter-affidavit has been filed to the petition by Mahabir Singh, Office Superintendent of the office of the Senior Superintendent of Police, Bareilly. No counter-affidavit has been filed on behalf of the State Government or of any officer of the Home Department. In the counter-affidavit Mahabir Singh has admitted that the departmental trial in respect of two charge-sheets were pending against the petitioner at the time when the impugned order was passed, but the departmental proceedings are now going to be dropped as the petitioner has been retired compulsorily from service. It is further asserted that the petitioner's work and conduct during his entire period of service was highly unsatisfactory as a result of which the State Government was of opinion that it was not in public interest to retain the petitioner in Government service. In paragraph 8 of the counter-affidavit it has been asserted that the fact of pendency of departmental proceedings was not taken into consideration by the State Government while deciding the compulsory retirement of the petitioner. On the basis of these averments it is contended by the learned Standing Counsel that the order is an order of compulsory retirement simpliciter and it is not an order of punishment. 4. It is true that the impugned order does not contain any express words to cast any stigma on the petitioner nor it purports to punish the petitioner. It is further true that the State Government has an absolute power to compulsorily retire a Government servant under Note 1 to Article 465 of the Civil Service Regulations after his attaining the age of 50 years. In the instant case the petitioner had no doubt attained the age of 55 years. It is further true that the State Government has an absolute power to compulsorily retire a Government servant under Note 1 to Article 465 of the Civil Service Regulations after his attaining the age of 50 years. In the instant case the petitioner had no doubt attained the age of 55 years. Therefore the Government had a right to retire the petitioner compulsorily in exercise of its power under Article 465 of the Civil Service Regulations but the question which arises for consideration is as to whether the impugned order is an order of compulsory retirement simpliciter under Article 465 of the Civil Service Regulations or that the order is an order of punishment. It is well settled that the form of an order is not conclusive of its true nature and many a time the form of order is merely a cloak or camouflage for an order founded on misconduct (See: S. R. Tewari v. District Board, Agra, AIR 1964 SC 1680 ). I am therefore of the opinion that merely because the order does not contain any stigma or express any word which may show that the order was passed by way of punishment is not sufficient to uphold the validity of the order. In a case where the order is innocuous on its face and it does not contain any imputation of misconduct and if challenge is made that in substance the order is an order of punishment, in that event it is necessary that the circumstances which led to the passing of the order are necessary to be investigated to ascertain the true nature of the order. It is further well settled that the entirety of circumstances preceding or attendant to the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order (See: State of Bihar v. Shiva Bhikshuk Mishra, AIR 1971 SC 1011 : (1971 Lab IC 724). 5. In the instant case it is admitted that two different charge-sheets had been issued to the petitioner. It is further conceded that the departmental trial was pending against the petitioner in respect of charges contained in both the charge-sheets. The charges contained in the second charge-sheet were of grave and serious nature. If they were found to be proved the petitioners dismissal from service would have been justified. It is further conceded that the departmental trial was pending against the petitioner in respect of charges contained in both the charge-sheets. The charges contained in the second charge-sheet were of grave and serious nature. If they were found to be proved the petitioners dismissal from service would have been justified. It is further conceded that after the completion of enquiry held in respect of the charges issued against the petitioner in 1968, the petitioner was found guilty of those charges and a recommendation was made to the punishing authority to dismiss the petitioner from service. The Deputy Inspector General of Police, however, remanded the proceedings to the enquiry officer on a technical ground to afford the petitioner to have an opportunity of cross-examination of some witnesses. It is further conceded that the departmental trial in respect of the second charge-sheet was going on at the time when the impugned order of compulsory retirement was passed against the petitioner. On these facts it is clear that a full-fledged departmental enquiry as envisaged by Section 7 of the Police Act and Article 311 of the Constitution was pending against the petitioner and an enquiry officer was appointed, charge-sheet was issued, explanation was called for and considered which was not found satisfactory. These circumstances in my opinion clearly show that the impugned order was passed by way of punishment. 6. In the State of Punjab v. Sukh Raj Bahadur, AIR 1968 SC 1089 : (1968 Lab IC 1286) Supreme Court laid down principles for determining the question as to under what circumstances Article 311 (2) is attracted in a case of termination of service. The principles laid down in that case were again reiterated by the Supreme Court in AIR 1971 SC 1011 - (1971 Lab IC 724). One of the tests laid down by the Supreme Court was in the following words: "If there be a full-scale departmental enquiry envisaged by Article 311 i.e., an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered any order of termination of service made thereafter will attract the operation of the said article." 7. One of the tests laid down by the Supreme Court was in the following words: "If there be a full-scale departmental enquiry envisaged by Article 311 i.e., an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered any order of termination of service made thereafter will attract the operation of the said article." 7. As already noted, in the instant case, two charge-sheets were issued to the petitioner, his explanation was obtained and considered which was not found satisfactory, consequently an enquiry officer was appointed and trial was held wherein witnesses were being examined and it was during the pendency of that trial that the order of compulsory retirement was issued. In these circumstances the principle laid down by the Supreme Court is fully attracted. The tests which are applicable for determining the true nature of an order of a termination order would equally be applicable to determine the true nature of an order of compulsory retirement. The Government has absolute power to terminate the services of a temporary Government servant without assigning any reasons. Similarly the State Government has got absolute power to retire a Government servant on his attaining the age of 50 years in exercise of its powers under Note 1 to Article 465 of the Civil Service Regulations without assigning any reasons. The nature of power in both the cases is the same. Therefore, the principles laid down for determining the true nature of an order of termination will equally apply to determine the true nature of an order of compulsory retirement. Applying the said principles as laid down by the Supreme Court in AIR 1971 SC 1011 : (1971 Lab IC 724). I am of the opinion that there can be no manner of doubt that the impugned order of compulsory retirement is in substance and order of punishment. It is conceded that the petitioner was not afforded opportunity of defence as contemplated by Article 311 (2) of the Constitution. In the circumstances the impugned order is rendered void. 8. The petitioner has asserted in paragraphs 20, 21 and 22 of the petition that the State Government issued the impugned order of compulsory retirement by way of punishment. The departmental trial was being delayed and the petitioner was not paid his dues. He served a notice on the State Government for the payment of his dues amounting to Rupees 6000.00. The petitioner has asserted in paragraphs 20, 21 and 22 of the petition that the State Government issued the impugned order of compulsory retirement by way of punishment. The departmental trial was being delayed and the petitioner was not paid his dues. He served a notice on the State Government for the payment of his dues amounting to Rupees 6000.00. Thereupon the Government passed the impugned order retiring the petitioner from service. As already noted no counter-affidavit has been filed on behalf of the State Government controverting the petitioners allegations. A counter-affidavit has however, been filed by Mahabir Singh, Office Superintendent of the office of the Senior Superintendent of Police. Bareilly. In paragraph 13 of his affidavit, he has asserted that the pendency of the departmental trial under Section 7 of the Police Act against the petitioner was not taken into consideration by the Government while issuing the impugned order of compulsory retirement. The allegations of mala fide are further denied in paragraphs 14 and 15 of his affidavit. These paragraphs have been sworn by him on the basis of legal advice. There is thus no assertion of fact in reply to the allegations made by the petitioner in the aforesaid paragraphs. Further the authority concerned who passed the impugned order did not file any counter-affidavit even though it had ample opportunity to do so. In the absence of any denial of the petitioners allegations, it is clear that the impugned order was passed by way of punishment. On the material on record, the petitioner is entitled to relief. 9. In view of the above discussion the petition is allowed with costs and the impugned order of the State Government dated 29-8-1974 retiring the petitioner compulsorily from service is quashed. The petitioner is entitled to continue in service.