Judgment :- 1. The petitioner was Additional Secretary to Government of Kerala in the Election Department. As per Ext. P5 order dated 9-8-1985, the Government compulsorily retired him from Government Service. He was then aged 53 years. The retirement age of the employees under the Kerala Government Service is 55 years. But for Ext. P5, the petitioner could have continued in service till 28-2-1987. The Government passed an order under R.60A of Part.1 of the Kerala Service Rules. The petitioner challenged Ext. P.5 in O. P. No. 9192/85, but that Original Petition was disposed of directing the Government to take a decision on the application for review which, the petitioner offered to file before the Government. Though the petitioner filed such an application for review, the government dismissed it by Ext. P10 order dated 23-7-1986. So, this Original Petition is mainly for quashing Exts. P5 and P10. Incidental reliefs are also prayed for. 2. There was a strike by a section of the Government employees in Kerala State from 7-8-1985 onwards. The Kerala Secretariat Employees' Association, of which the petitioner is a member, also joined the strike. The Government took some measures to deal with the strike. One of them was to declare some of the services as "Essential Services". Secretariat service was not, however, declared as an "Essential Service". Another measure adopted was to impose a restriction that leave of any kind should not be granted to Government employees including Gazetted Officers during the period of the strike, except on the ground of unavoidable reasons. The unauthorised absence of the employees for participation in the strike was to be treated as 'dies-non', under R.14-A Part.1 of the Kerala Service Rules. Ext. P1 is the order issued by the Government containing instructions to the various Heads of Departments as to the measures to be adopted in dealing with the strike. During the strike period, the petitioner absented himself from office. The Chief Secretary of the Government of Kerala addressed a demi-official letter to the petitioner on 8-8-1985 pointing out that being a senior officer of the rank of Head of the Department, the petitioner should have, in public interest and with a sense of responsibility, attended the office at a time when a section of Government employees have gone on strike. The petitioner was hence asked to report for duty nest day and at the same time, he was told that if he fails to do so, "the Government will be constrained to take appropriate disciplinary action" against him. It appears that the petitioner was the founder President of the Secretariat Employees' Association and he continued to be its member during the relevant time. The demi-official letter sent by the Chief Secretary did not evoke any positive response in the petitioner who, in his reply expressed inability to abide by the instructions as "he was bound to act in accordance with the instructions of the Association of which, he was a founder member." The reply of the petitioner was unsatisfactory to the Government and thereupon the Government passed Ext. P5 order on 9-8-1985 itself. The first paragraph of Ext. P5 refers to the background and in other paragraphs, the reasons and actions are mentioned. Those latter paragraphs are extracted below: "2. The unauthorised absence of a senior officer like Sri. Joseph and his refusal to report for duty amounts to grave dereliction of duty and a lack of sense of responsibility and has adversely affected public interest. 3. Sri: C.I. Joseph Additional Secretary to Government has attained the age of 53 years. R.60A of Part.1 of Kerala Service Rules confers power on the Government to compulsorily retire in public interest any officer after be has attained the age of 48 years. The Govt., are satisfied that it is necessary in the public interest that Sri. C.J. Joseph shall be compulsorily retired from service 3. In the exercise of the powers conferred by R.60A of Part.1 of the Kerala Service Rules, the Government hereby order that Sri. C . J . Joseph, Additional Secretary to Government, Secretariat, Trivandrum is compulsorily retired from Government service with effect from after of August, 9,1985." 3. Ext. P5 is assailed on the grounds, principally on the ground that it is not really an action under R.60A though it purports to be so that the stigma attached to the petitioner in the order, at any rate, vitiates it, that the constitutional guarantee under Art.311 is circumvented by the Government through a camouflage that the action is only under R.60A and that the extreme step taken against the petitioner is highly discriminatory as he was singled out in this step. Instances have been pointed out in which Government dealt with other Gazetted Officers who too were absent during the strike period and to whom the lightest penalty of censure alone was imposed. Another onslaught made on Ext. P5 is on the ground that it is a mala fide exercise of the power under R.60A for political reasons. According to the petitioner, he does not belong to the Association supported by political parties which are partners in the Ruling Front. 4. Government, in the counter affidavit denied the allegation of mala fides, of discrimination, of imposing of punishment under the cover of compulsory retirement etc. The Government seeks to justify the singular action taken against the petitioner on the ground that the other Gazetted Officers, who were dealt with leniently, were only holding the posts upto Deputy Secretary whereas the petitioner was the Additional Secretary which, for all intents and purposes is the most responsible post in the hierarchy of the Government Officers. Distinction is sought to be drawn as between the petitioner's case and the case of another Additional Secretary, who absented himself from duty during a similar strike period in 1983. "The petitioner who was aged 53 years and holding such a very responsible position, in violation of the Rules and in flagrant disregard to the personal instruction given to him to report for duty, had refused to abide by the Rules and specific instruction personally given to him". Hence, the Government justifies the action invoking R.60A. 5. At the time of arguments, focus was made only on the ground that though the purport of Ext.P5 is an action under R.60A, the action in effect was punitive and the intention was also to punish him for "grave dereliction of duty and a lack of sense of responsibility" of the petitioner, and at any rate Ext.P5 is vitiated as a serious stigma is cast against the petitioner therein. A catena of decisions was cited before me, but fortunately, both sides relied almost on the same decisions in support of their contentions. The decision in Rajinder Kaur v. State of Punjab ((1986) 4 SCC 141), of course, was not relied on by the learned Advocate General, though he tried to distinguish it on facts. A catena of decisions was cited before me, but fortunately, both sides relied almost on the same decisions in support of their contentions. The decision in Rajinder Kaur v. State of Punjab ((1986) 4 SCC 141), of course, was not relied on by the learned Advocate General, though he tried to distinguish it on facts. In that case a Lady Constable was discharged from service under R.12.21 of the Punjab Police Rules which empowers the authorities to do away with the service of the constable at any time within three years of her enrolment, if she is found unlikely to prove an efficient police officer. The Supreme Court found that the order, though couched in innocuous terms, was merely a camouflage for an order of dismissal on the ground of misconduct. In that view, the Supreme Court quashed the order as it was made in contravention of the provisions of Art.311(2) of the Constitution of India. The decision does not really help the petitioner as it proceeded on the finding that the order of discharge was a camouflage for dismissal. 6. R.60A(1) is in the following lines: "Notwithstanding anything contained in R.60, or in any other provision of these rules, or in any other law, or in any contract or other document the Government may, in the public interest, order that an officer may be compulsorily retired at any time after he has attained the age of 48 years." The learned Advocate General emphasised that the Government has the right under the above said Rule to order any officer to be compulsorily retired after attaining the age of 48 years and if such an action is taken, it does not amount to removal or dismissal from service so as to attract the safeguards provided in Art.311. He also contended that it is immaterial whether the action was taken pursuant to the refusal of the petitioner to comply with the request made by the Chief Secretary. Even if no such request was made, it is open to the Government to decide whether the petitioner can be retired compulsorily since such a step was warranted in public interest. It has been held in Shyam Lal v. State of Uttar Pradesh (AIR. Even if no such request was made, it is open to the Government to decide whether the petitioner can be retired compulsorily since such a step was warranted in public interest. It has been held in Shyam Lal v. State of Uttar Pradesh (AIR. 1954 SC 369) that termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service does not tantamount to infliction of a punishment and does not attract Art.311. 7. In Parshotam Lal Dhingra v. Union of India (AIR 1958 SC 36) (it is regarded as the Magna Carta of the Indian Civil Service as the Supreme Court described the decision in a later judgment), tests have been laid down to ascertain whether an order purported to be under a contract or Rule will really amount to punishment, removal or dismissal. While pointing oat that the termination of service is founded on the right flowing from contract or the Service Rules, prima facie, the termination is not a punishment, the Supreme Court sounded in clear terms that sometimes, such an exercise may amount to punishment. "But even if the Government has, by contractor under the Rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on mis-conduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Art.311 must be complied with". In Jagdish Mitter v. Union of India (AIR 1964 SC 449) a Constitution Bench of the Supreme Court considered an order of discharge of a temporary servant. That order was in the following lines: "Shri. Jagdish Milter, 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." In the scrutiny made by the Supreme Court, it was held that though the order purports to be one of discharge and as such can be referred to the power of the authority to terminate the temporary appointment with one month's notice, the order expressly casts a stigma on him and in that sense, must be held to be an order of dismissal and not a mere order of discharge. The test applied by the Supreme Court in the said decision was the following: "h seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which it the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant of attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in suck cases must be: does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, In sun-stance, to amount to dismissal." 8. Later another Constitution Bench of the Supreme Court in State of Utter Pradesh v. Madan Mohan Nagar (AIR 1967 SC 1260) held that the aforesaid test can be applied to the case of compulsory retirement as well. In that case, the impugned order of compulsory retirement mentioned that the Governor has been pleased to order in the public interest the compulsory retirement of Shri. Madan Mohan Nagar "as he has outlived his utility". Even though the particular provision of the Rule empowered the Government to retire any Government servant after completion of 25 years of qualifying service, if that servant has outlived his usefulness, the Supreme Court was not inclined to sustain the order, since the expression "as he has outlived his utility" was found to be an aspersion on the person concerned. It was held that "the order clearly attaches a stigma to him and any person who reads the order would immediately consider that there is something wrong with him or his capacity to work". 9. In State of Uttar Pradesh v. Ram Chandra (AIR 1976 SC 2547), the Supreme Court declined to quash the order despite some materials that Government had reasons to take punitive action against the person concerned. 9. In State of Uttar Pradesh v. Ram Chandra (AIR 1976 SC 2547), the Supreme Court declined to quash the order despite some materials that Government had reasons to take punitive action against the person concerned. That is mainly because the order impugned in the decision did not contain any aspersion or stigma 10. The learned Advocate General cited a decision of a Full Bench of this Court reported in Sreedharan v. State of Kerala (1976 KLT 594) in support of his contention that the Court cannot weigh the various aspects for and against an employee to determine whether it is in public interest or not to retire the Government Servant, since "the decision must certainly be that of the Government and only that of the Government". The said contention was found favour with the Full Bench. But it must be noted that the Full Bench did not make any departure from the well settled propositions laid down by the Supreme Court in the decisions cited supra The order challenged in the case which the Full Bench considered did not contain any words of stigma or aspersion and hence, this case is not on a par with the facts in the aforesaid case. 11. When the above tests are applied in this case, what follows therefrom? There is a finding in Ext. P5 that the unauthorised absence of the petitioner and his refusal to report for duty "amounts to grave dereliction of duty and a lack of sense of responsibility". Anyone who reads Ext. P5 in a reasonable way would naturally conclude that the Government punished the petitioner for grave dereliction of duty and for showing lack of sense of responsibility. Ext. P5 is not a simple order of discharge as it casts aspersions against the petitioner and attaching a severe stigma to him. His compulsory retirement order, therefore, amounts to dismissal from service. As the petitioner has been denied the protection guaranteed under Art.311 of the Constitution, Ext. P5 cannot be sustained in law. In the result, I allow this Original Petition and quash Ext. P5. It is not necessary to say that the consequence is that Ext. P10 also loses its legal force.