J. N. Bajpai v. State of U. P. — 1990 DIGILAW 179 (ALL)

JUDGMENT S. Saghir Ahmad, J. - By this petition filed under Article 226 of the Constitution, the petitioner has challenged the order dated 28121989 contained in Annexure1 by which he had been retired from service compulsorily under Fundamental Rule 56 (c) contained in Financial Hand Book, Parts II to IV. At the time of his compulsory retirement, the petitioner was posted as Executive Engineer, Road Survey Division P.W.D., Gorakhpur. 2. This petition was filed on 2911990 A Division Bench of this court comprising Hon'ble S.C. Mathur, J. and Hon'ble S.N. Sahay, J. directed this petition to come up for orders on 821990. The State Counsel was required to produce the proceedings of the Screening Committee and the service record of the petitioner. 3. Since the original character roll of the petitioner and the proceedings of the Screening Committee have been produced before us we proceed to dispose of this petition finally with the consent of the learned counsel for the parties. 4. The proceedings of the Screening Committee indicate that the following precis in regard to the petitioner's work and conduct was placed before it: 5. The Screening Committtee in its meeting dated 26121989 and 27121989 considered the matter and decided to compulsorily retire the petitioner as also certain other officers with whom we are not concerned in thi& petition. The Screening Committee observed as under : 6. The proceedings of the Screening Committee indicate that the entire service record of the petitioner was looked into by the Committee. 7. One of the contentions raised by the learned counsel for the petitioner on which we intend to decide this petition finally, is that the order of compulsory retirement was punitive in character and was passed in violation of the provisions of Article 311 of the Constitution inasmuch as the petitioner was compulsorily retired from service during the pendency of the departmental enquiry. 8. In order to appreciate the contention raised by the learned counsel for the petitioner, it would be necessary to examine a few facts. 9. The petitioner, while he was working as Superintendent of Works, Temporary Construction Unit, P.W.D., Bahraich, was placed under suspension by an order dated 15487 in contemplation of departmental enquiry. 8. In order to appreciate the contention raised by the learned counsel for the petitioner, it would be necessary to examine a few facts. 9. The petitioner, while he was working as Superintendent of Works, Temporary Construction Unit, P.W.D., Bahraich, was placed under suspension by an order dated 15487 in contemplation of departmental enquiry. This order was challenged by the petitioner in Writ Petition No. 2763 of 1987 in which an interim order dated 29487 was passed and the operation of the order was stayed with the observation that it would be open to the opposite parties to consider the question of petitioner's suspension, if need be, after the receipt of the vigilance report. After the above order was passed, the petitioner was put back to duty on the post of Superintendent of Works, Temporary Construction Unit, P.W.D. Bahraich. But by an order dated 30487 (served upon the petitioner on 1587) he was attached to the office of the Chief Engineer, Central Zone, P.W.D. Lucknow. Since the petitioner thought that this order was contrary to the interim order dated 29487 passed by this court, the petitioner filed a contempt petition registered as Civil Misc. (Contempt) Case No. 1284 (C) of 1987 against Sri G. C. Gupta, the then EngineerinChief, P. W. D. and the couft by its order dated 7587 directed notices to be issued to Sri G. C. Gupta requiring him to show cause why he should not be punished for having committed contempt of court. Sri G. C. Gupta was required to appear personally before the court on 15787. By his order dated 10787 Sri G. C. Gupta however, withdrew the order dated 30487 and posted the petitioner on the post of Superintendent of Works, Temporary Departmental Construction Unit, Bahraich. 10. The petitioner was again transferred from the post of Superintendent of Works, Bahraich to the post of Personal Assistant to the Regional Office at Pauri by order dated 20788 passed by the present opposite party, namely, Sri Dharam Vir, Engineerinchief, P.W.D., U.P., Lucknow. This prompted the petitioner to file another application under Contempt of Courts Act against Sri Dharam Vir. This was registered as Civil Misc. (Contempt) Case No. 1921 (C) of 1988. 11. Sri Dharam Vir filed a counter affidavit in the above Case and pleaded that the order dated 20788 had been passed by the State Government. This prompted the petitioner to file another application under Contempt of Courts Act against Sri Dharam Vir. This was registered as Civil Misc. (Contempt) Case No. 1921 (C) of 1988. 11. Sri Dharam Vir filed a counter affidavit in the above Case and pleaded that the order dated 20788 had been passed by the State Government. Consequently, the petitioner filed another contempt petition against Sri Ram Krishna, Secretary, P. W. D., Government of U. P. as Criminal Misc. Case No. 2437 (C) of 1988 and by order dated 301188 this court required Sri Ram Krishna to appear personally. 12. In the meantime, the petitioner filed an application for amendment in Writ Petition No. 2763 of 1987 so as to challenge the order dated 20788 in respect of which he also filed an application for interim relief. This application came up for orders on 28489 before Hon'ble Mr. Justice R. Singh, who passed an interim order that the petitioner need not join at the place to which he had been transferred and that if he did not join at the new place of posting, disciplinary action in that regard will not be taken against him. 13. Inspite of the above order, the petitioner was not put back to duty at Bahraich and even salary was not paid to him. He, therefore, filed an application for clarification of the order dated 28489 on which Hon'ble Mr. Justice R. Singh passed an order on 19889 directing the opposite parties to take work from the petitioner on the post of Superintendent of Works at Bihraich. In compliance of this order the petitioner was posted at Bahraich by order dated 291189. Since the interim order of this court had been complied with by the opposite parties, the contempt petitions were consigned to records and notices were discharged. A few days thereafter the petitioner was transferred to Gorakhpur where he joined on 261289. 14. It is stated in the petition that on account of the aforesaid proceedings, specially the contempt petitions, the opposite parties were annoyed with the petitioner and the screening committee of which the Secretary, P.W.D. and EngineerinChief (opposite party No. 3) were members, decided to compulsorily retire the petitioner in pursuance of which the impugned order dated 281289 (annexure1) was passed. 15. 15. Apart from the pleas regarding adverse entries, their communication and representation as also crossing of the efficiency bar, the petitioner pleaded in para 34 of the petition as under : 34. That with regard to certain alleged acts of omission and commission on the part of the petitioner when he was posted in the year 197273 when he was posted as Executive Engineer in district Mirzapur, at the behest of the opposite party No. 1 the Governor has made a reference for holding a departmental inquiry by the Administrative Tribunal. The Administrative Tribunal issued a chargesheet to the petitioner and consequently a supplementary charge sheet amending the first charge sheet wag also issued subsequently on 7th January, 1985. The matter is still pending consideration before the Administrative Tribunal and the evidence on behalf of the Department is being recorded. 16. The opposite parties have not disputed this fact. The original record which was produced before us also indicates that the departmental enquiry is pending against the petitioner before the Administrative Tribunal. In this departmental enquiry which is being held by the Administrative Tribunal, a charge sheet as also the supplementary charge sheet have been issued to the petitioner and the evidence on behalf of the department is in the process of being recorded. It was during the pendency of this departmental proceedings that the impugned order of compulsory retirement has been passed and the question, as pointed out earlier, which is to be examined by us is whether this order is vitiated on account of the pendency of the departmental proceedings. 17. The impugned order is innocuously worded It does not cast any stigma on the petitioner nor does it deprive him of the terminal benefits. But it is well settled that the form of an order cannot be treated always to exhibit the true nature of the order. Sometimes form of an order serves merely as a cloak for an order which is otherwise punitive in character, being founded or based on misconduct. In a case where it is pleaded that thd order, in substance, is an order of punishment, it would be the duty of the court to examine the circumstances which led to the passing of the order. This circumstance will have to be investigated to ascertain the true nature of the order. In a case where it is pleaded that thd order, in substance, is an order of punishment, it would be the duty of the court to examine the circumstances which led to the passing of the order. This circumstance will have to be investigated to ascertain the true nature of the order. These principles are applicable, and have always been invoked by the courts, to a case of termination of service. It may be pointed out that a goverment servant holds the post at the pleasure of the President or the Governor, as the case may be. The government has an unfettered right and absolute power to terminate the services of a temporary government servant at any time without assigning any reason. Similarly, in the matter of compulsory retirement where a government servant has completed the prescribed tenure of qualified service or has attained the prescribed age, he can be retired from service compulsorily under F.R.56. The government has the absolute right to retire a government servant compulsorily in public interest after he has attained the prescribed age. Therefore, there appears to be an identity in the exercise of power by the government in terminatingt he services of a temporary employee or ordering compulsory retirement of another employee. It is for this reason that the principles available for finding out the true nature of the order of termination would also be available for determining the true nature of the order of compulsory retirement. 18. In State of U.P. vs. Madan Mohan Nagar, AIR 1967 SC 1260 , the Supreme Court applied the principles applicable to a temporary government servant to the cases of compulsory retirement. In Union of India vs M.E. Reddy (1980) 2 SCC 15 : 1980 (1) LLJ 7 : 1980 LIC 221 it has been laid down that an order of compulsory retirement passed in public interest can neither be treated to be punitive nor stigmatory and, therefore, the provisions of Article 311 of the Constitution as also the principles of natural justice would not be applicable, It was observed that the government has absolute right to compulsorily retire officers of doubtful integrity and that the safety valve of public interest is the most powerful safeguard against any bias or colourable exercise of power. The Supreme Court pointed out, and this, in our opinion, is extremely relevant, that when the court was satisfied that the exercise of power was colourable exercise of jurisdiction or was arbitrary or malafide, it would strike down the order of compulsory retirement. 19. This case, therefore, clearly makes it permissive for the courts to go behind the order and not to be swayed away merely by the form of the order or its exterior out look. 20. In S.R. Venkataraman vs. Union of India, (1979) 2 SCC 491 the order of compulsory retirement was struck down as there was nothing on the record to ustify and support the order. It was held by the Supreme Court that the order of compulsory retirement amounted to the gross abuse of power to use the rule for a purpose unwarranted by it. 21. The fact that the court has the power to go behind the order of compulsory retirement to find out the true nature of the order was indicated by theSupreme Court again in the case of Baldeo Raj Chaddha vs. Union of India (1980)4 SCC 321 . The Supreme Court observed that the whole purpose of FR 56 is to weed out worthless without punitive extremes covered by Article 311 of the Constitution, but, the Supreme Court further observed, under the guise of 'public interest' if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menac to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal. 22. Applying the principles laid down in Jagdish Mittar vs. Union of India, AIR 1964 SC 449 to the case of Madan Mohan Nagar (supra), the Supreme Court held that an order of compulsory retirement would have to be held to be an order passed by way of punishment if it was stigmatic in character. 23. This court in State of U.P. vs. Purshottam Swarup Jauhari, 1976 (2) ALR 316 held that there appeared no reason why the principles laid down by the Supreme Court in respect of the orders of termination of services of temporary employees should not apply to the case of compulsory retirement. 23. This court in State of U.P. vs. Purshottam Swarup Jauhari, 1976 (2) ALR 316 held that there appeared no reason why the principles laid down by the Supreme Court in respect of the orders of termination of services of temporary employees should not apply to the case of compulsory retirement. This court further observed as under: If an order of compulsory retirement which has been passed by way of punishment amounts to one of dismissal or removal from service, if it is permissible to hold that an order of compulsory retirement has been passed by way of punishment and if it is permissible for courts to draw the inference that an order of compulsory retirement has been passed by way of punishment from the fact that it casts stigma on the government servant or from the fact that it deprives him of an accrued benefit, then surely it must be permissible for the courts to see whether the order of compulsory retirement Is founded or based on misconduct or inefficiency and has in fact been passed by way of punishment. Every circumstance which can lead to the conclusion that the order has been passed by way of punishment, can be examined by the court. The court can, therefore, see whether the order is founded or based on misconduct. This it can only do by going behind the order, 24. In State of Punjab vs. Sukhraj Bahadur, AIR 1968 SC 1089 , the Supreme Court laid down the five famous principles : 1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution, 2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the moiive behind it being immaterial. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service does not attract the operation of Article 311 of the Constitution, 5. If there be a fullscale 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. 25. It is the fifth principle which is of considerable relevance for the purposes of the present discussion. According to this principle if the regular departmental proceedings have been initiated against an employee to whom the charge sheet has also been issued and his explanation is called and considered, an order of termination from service made at that stage will be an order passed in violation of the provisions of Article 311. Such an order would be an order passed by way of punishment and would be liable to be set aside. 26. This principle can be applied to the cases of compulsory retirement also and it would always be open to the court to find out whether an order of compulsory retirement was actually an order passed by way of punishment or an order simplicitor retiring the employee concerned from the service in public interest, 27. This court in Purshottam Swarup Jauhari's case (supra) applied the fifth principle to the case of compulsory retirement and came to the conclusion that since Jauhari had been charge sheeted and the disciplinary proceedings had proceeded to a stage where Jauhari was giving his defence, the order of compulsory retirement passed against him was an order passed by way of punishment which amounted to dismissal from service. 28. This court again in G. S. Syalvs. Union of India and another, 1977 (3) ALR 153 held an order of compulsory retirement passed during the pendency of the depart mental proceedings to be bad and violative of the provisions of Article 311 of the Constitution, 29. 28. This court again in G. S. Syalvs. Union of India and another, 1977 (3) ALR 153 held an order of compulsory retirement passed during the pendency of the depart mental proceedings to be bad and violative of the provisions of Article 311 of the Constitution, 29. The Andhra Pradesh High Court in Jamshed Newroji Sarkari vs. Zonal Manager, Food Corporation of India, 1978 (1) SLR 471 held that the tests applicable for finding out the true nature of the order of termination of services of a temporary government servant would be equally applicable to the cases of compulsory retirement. It further held the the order of compulsory retirement passed during the pendency of the disciplinary proceedings would be bad, as the order could not be said to have been passed in public interest. 30. In Banwari Lal vs. State of Himachal Pradesh, 1978 (1) SLR 727, the Himanchal Pradesh High Court held an order of compulsory retirement passed during the pendency of the departmental proceedings to be an order of punishment passed in violation of the provisions of Article 311(2) of the Constitution, 31. Another case to the above effect is the case of B. B. Dutta vs. Union of India and another, 1972 SLR 731 (Delhi) in which an order of compulsory retirement passed during the pendency of the departmental proceed ings was held to have been passed by way of punishment, Similiar view was also taken in Hardip Singh v. Union of India and another 1985 (1) SLR 71 and O.P. Gupta vs. Union of India and another, 1981(3) SLR 778. 32. On the basis of the above discussion, it clearly comes out that where it is challenged that the order of compulsory retirement was punitive or that it was arbitrary or that it was passed maliciously, the court has the power to go behind the order, to look into the service record, to scrutinise and analyse the circumstances in which the order was passed and to interfere with the said order, on being satisfied that the order was passed by way of punishment or that it was passed on no material or that there existed no ground to warrant an order of compulsory retirement being passed against the employee or that it has been passed out of malice. 33. 33. In the instant case, the departmental proceedings as pointed out above, were pending before the Administrative Tribunal where after the issuance of the charge sheet and reply submitted by the petitioner, evidence of the department was being recorded. It was at this advanced stage of departmental proceedings that the order of compulsory retirement was passed regarding which we have no hesitation in laying down that it was passed to remove an inconvenient person from service without completing the departmental proceedings against him which, of course, would have still taken time to be completed. The impugned order though innocuously worded to give a deceptive colour was, in reality, an order of punishment amounting to removal from service in violation of the provisions of Article 311(2) of the Constitution. The order cannot, therefore, be sustained. 34. The writ petition is allowed and the impugned order dated 281289 contained in Annexure1 is hereby quashed. The petitioner will be entitled to all consequential benefits. 35. There will be no order as to costs.