JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 226 of the Constitution of India, the petitioner, a former Deputy Engineer of the respondent company, has prayed for the following reliefs:- "17A. Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to quash and set aside the office order dated 07.07.2010 (Annexure-A) passed by respondent No. 2 herein compulsorily retiring the petitioner from service. B. Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to reinstate the petitioner in service as if the office order dated 07.07.2010 (Annexure-A) compulsorily retiring the petitioner from service does not exist. C. Your Lordships may be pleased to declare the initiation of proceedings against the petitioner for compulsorily retiring him from service as inconsistent and incompatible of Service Regulation 72 of the erstwhile Gujarat Electricity Board. D. Your Lordships may be pleased to declare the office order dated 07.07.2010 passed by the respondent No. 2 herein compulsorily retiring him from service as punitive, stigmatic and violative of principles of natural justice. E. Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the operation and implementation of the office order dated 07.07.2010 (Annexure-A) compulsorily retiring the petitioner from service and be pleased to direct the respondents to reinstate the petitioner in service. F. Any other and further order as being fit and proper in the interest of justice." 2. The petitioner joined the erstwhile Gujarat Electricity Board on 29th August 1980 as a Trainee Junior Engineer. 3. On 19th May 1994, the petitioner was served with a departmental charge-sheet substantially with the following charges: "(a) Leaving the head quarter (place of work) without prior permission. (b) Failure to exercise efficient control and supervision on the subordinate staff resulting in the general inefficiency of the branch or unit. (c) Indiscipline and undisciplined behaviour. (d) Negligence resulting in or likely to result in loss to the Board or inconvenience to the public. (e) Habitual negligence or neglect of work or breach of regulations or instructions." 4. The departmental inquiry culminated in an order dated 10th July 1995, whereby one increment was ordered to be withheld with cumulative effect. 5. (c) Indiscipline and undisciplined behaviour. (d) Negligence resulting in or likely to result in loss to the Board or inconvenience to the public. (e) Habitual negligence or neglect of work or breach of regulations or instructions." 4. The departmental inquiry culminated in an order dated 10th July 1995, whereby one increment was ordered to be withheld with cumulative effect. 5. Thereafter, on 4th May 2010, a show cause notice was issued calling upon the petitioner to explain as to why he should not be compulsorily retired (premature) under the service Regulations 1972 for commission of the various acts of misconduct. 6. The petitioner answered the show cause notice vide a detailed reply dated 14th May 2010. 7. The authority concerned, without giving any opportunity of personal hearing, passed an order dated 7th July 2010 compulsorily retiring the petitioners from service. 8. The petitioner, thereafter, preferred a memorandum addressed to the Chairman of the company for review of the order dated 7th July 2010 compulsorily retiring from service. 9. The review application came to be rejected vide order dated 16th July 2010 by the In-charge Additional General Manager (H.R.) of the company at Rajkot. 10. Thus, the petitioner stood retired prematurely from service in terms of the service Regulations 1972 of the erstwhile Gujarat Electricity Board. 11. Hence, this petition. 12. Ms. Bhatt, the learned counsel appearing for the petitioner vehemently submitted that a bare perusal of the impugned order would indicate that the same is stigmatic. If the order of premature retirement is stigmatic, then the same shall be bad in law. She submitted that the impugned order of compulsory retirement could be termed as punitive in nature. 13. Ms. Bhatt submitted that the impugned order deserves to be quashed and the company may be directed to pay the back wages to the petitioner towards salary of four years. 14. Ms. Bhatt submitted that her client would have retired in 2014, but for the impugned order. 15. On the other hand, this writ application has been opposed by Mr. Deepak Dave, the learned counsel appearing for the respondent -company. He submitted that no error, not to speak of any error of law could be said to have been committed by the authority concerned in passing the impugned order of compulsory retirement. 16. Mr. Dave submitted that the impugned order is not stigmatic in any manner. Deepak Dave, the learned counsel appearing for the respondent -company. He submitted that no error, not to speak of any error of law could be said to have been committed by the authority concerned in passing the impugned order of compulsory retirement. 16. Mr. Dave submitted that the impugned order is not stigmatic in any manner. He submitted that the impugned order is simplicitor one of premature retirement, as the department noticed that the petitioner was a dead wood employee. 17. Mr. Dave has relied upon the following averments made in the affidavit-in-reply filed on behalf of the respondents duly affirmed by the Deputy General Manager of the company: "3.1 It is submitted that the case of the petitioner is that the petitioner has been made compulsorily retired by casting stigma vide order dated 07.07.2010. It is submitted that though several instances have been referred in the order dated 07.07.2010, in fact, the order does not cast any stigma and mere reference to certain instances/misconduct in the order may not be construed as stigmatic order. In fact, the petitioner has been made retired on the ground that his performance was very poor. It is submitted that in the last eight years his C.R. rating is either average or below average. Even there are several adverse remarks also in the service record of the petitioner. A copy of statement showing C.R. details of the petitioner right from 1980 till 2008 is annexed hereto and marked as Annexure-R1 with this reply. 3.2 It is submitted that it has been observed consistently that the petitioner has limited knowledge of line work, T/C and other office routine work. The petitioner has limited output of work and the petitioner was not having good relation with his co-workers. Even such types of adverse remarks were also communicated to the petitioner. It is submitted that the petitioner was lacking initiative and was requiring specific instructions. He was making errors of judgment and was having limited resourcefulness. The petitioner was requiring frequent reminders to get the work done. The petitioner was making frequent misjudgments and making errors in reports. It is submitted that the petitioner was not taking any interest in the work and was not having efficiency to work with public relation. It is submitted that these are the main aspects, which are taken into consideration by the respondent-company while making the petitioner retired. The petitioner was making frequent misjudgments and making errors in reports. It is submitted that the petitioner was not taking any interest in the work and was not having efficiency to work with public relation. It is submitted that these are the main aspects, which are taken into consideration by the respondent-company while making the petitioner retired. I crave liberty to refer to and rely upon the C.R.s of the petitioner as and when need to that effect so arises. 3.3 It is submitted that mentioning of certain instances in the order would not make the order stigmatic. In fact, the petitioner's above referred poor performance has been weighed with the respondent-company while making the petitioner compulsorily retired. Even otherwise also, looking to the public interest as also the interest of the respondent-company, it was not advisable to retain the petitioner and therefore, the decision was taken in the interest of the respondent-company as also in the interest of the public and therefore, the petitioner may not be granted any equitable relief by this Hon'ble Court under Article 226 of the Constitution of India. 3.4 The contention of the petitioner that he could not have been retired after crossing age of 50 years of age has also no legs to stand in view of the circular of the then Board, which is now applicable to the respondent-company, which provides that review can be made even after completion of 50 years. A copy of said circular dated 13.01.2004 is annexed hereto and marked as Annexure-R2 with this reply. 3.5 It is submitted that even looking to the earlier charge-sheets issued to the petitioner and inquiry initiated against the petitioner, it is clear that the petitioner is not efficient in work. Looking to the past service record of the petitioner, it is prayed to this Hon'ble Court not to exercise equitable jurisdiction and to grant any relief in favour of the petitioner. The respondent-company is dealing with public at large and if the petitioner, being a Deputy Engineer, has to deal with electricity lines and public important works, if would be reinstated in service, would result into damage not only to the respondent-company's interest, but also to the public interest. It is submitted that resolution has been passed by the Board of Directors and accordingly, the order impugned has been passed. It is submitted that resolution has been passed by the Board of Directors and accordingly, the order impugned has been passed. It is submitted that in the interest of the respondent-company as also in the interest of public at large, decision has been taken by the respondent-company to compulsorily retire the petitioner. It is submitted that there is violation of Regulation 72 as alleged by the petitioner. In fact, absolutely in accordance with Regulation 72 and circulars/resolutions of the then Board, which is now applicable to the respondent-company the decision has been taken to compulsorily retire the petitioner. It is submitted that the petitioner has been given three months wages and the said wages have been accepted by the petitioner. The petitioner has also accepted his retirement dues. After having accepted the retirement dues, the petitioner cannot now challenge his compulsory retirement order. It is denied that the order dated 07.07.2010 is violative of principle of natural justice. It is also denied that on the ground of misconduct, the petitioner has been made retired. In fact, mere reference of the misconduct would not make the order stigmatic, but the overall service record of the petitioner was reviewed and as can be seen from Annexure-R1, service record of the petitioner is very poor and there are so many adverse remarks against the petitioner in the service record. It is denied that the petitioner's case does not fall within Regulation 72. It is denied that the order of compulsorily retiring the petitioner is arbitrary, whimsical or capricious or that it is violative of Articles 14, 16 and 21 of the Constitution of India. In fact, the impugned order is absolutely just, proper and correct. Power has been exercised by the respondent-company in the interest of company as also in the interest of public at large looking to the overall service record of the petitioner and therefore, this petition may kindly be rejected with cost." 18. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the authority concerned committed any error in passing the order of compulsory retirement. 19. Let me first look into the impugned order and the grounds on which it came to be passed. 20. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the authority concerned committed any error in passing the order of compulsory retirement. 19. Let me first look into the impugned order and the grounds on which it came to be passed. 20. The free English translation of the order dated 7th July 2010 at Annexure "A" to this petition (page - 12) reads as under: "1. You have been given instructions repeatedly by the Executive Engineer Divisional Office-2, Surendranagar to work like a responsible officer in a routine manner, yet you have not improved your method of working. Your are habituated to defy the instructions given by abovementioned authority. 2. The Executive Engineer, Divisional Office-2 has directed you to furnish a report about day-to-day changing of meters and/or details of installation checking to the Circle Officer, Surendranagar. In this regard on 30.08.2007, you have submitted a false report to the concerned authority. In that connection, the Executive Engineer, Divisional Office-2 issued reference letter No. 2 to you asking you to be more cautious and to clarify about the false report submitted by you. However, till date, you have not sent your reply. Thus, improvement of any kind in your method of working and efficiency is not seen. Further, by reference letter No. 4, you have been asked to explain the wrong reporting of 11 KV Thoriyali Feeder, Than Feeder, T.T. and S.F. 3. You have submitted MIS report of June-2008 to the Circle Office without proper verification and acted in a careless manner. Also, you had argued unnecessarily with Shri B.M. Patel, Executive Engineer, Tech-2, Surendranagar. The details of previous MIS report were not matching with the current MIS report. Thus, the Executive Engineer, Surendranagar, vide reference letter No. 7, asked for your explanation for your failure in the performance of your duties, which you have not replied till date. Thus, you have totally failed in the performance of your duties. 4. You had been instructed by the Expenditure Division to put purchase orders on E-urja system, so that necessary payment can be made to the parties. In this regard, by your letter dated 21.01.2008, you had assured that within a period of two months, you will complete the work of E-urja and computer works. 4. You had been instructed by the Expenditure Division to put purchase orders on E-urja system, so that necessary payment can be made to the parties. In this regard, by your letter dated 21.01.2008, you had assured that within a period of two months, you will complete the work of E-urja and computer works. However, as the said assurance given by you was not found to be satisfactory, by way of reference note No. 491 dated 23.01.2008, Deputy Engineer, Tech-2 was asked to place the purchase orders on E-urja system. Thus, in spite of giving sufficient opportunity and training to you, you have not uploaded necessary entry of purchase orders in E-urja system. By reference letter No. 3, you had been warned by the Executive Engineer, Divisional Office-2 to complete your work in E-urja system, then also, till today, you have not improved your method of working, which shows your inefficiency. 5. Moreover, repeated instructions have been given to you by Executive Engineer, Division Office-2 to complete all work through E-urja system. However, due to lack of your knowledge of working on computers, all the purchase procedures, work order, contractor bill, checking etc., all important work has suffered. The day to day work is also getting delayed. 6. Further, you have been found deficient in maintaining cordial relations with your senior officers and other co-workers in the board/company. Also, you completely lack positive attributes like honesty, diligence, faithfulness, hardworking and zeal. 7. The Executive Engineer, Divisional Office-2, entrusted you with work of tendering for hiring vehicle for T.M.S. and I.C. Squad. In violation of company's rules without carrying out audit procedure, you have submitted the tender. In t his connection, by reference letter No. 5, the Executive Engineer, Divisional Office, called for your explanation. However, you failed to reply, which can be considered to be serious and indiscipline. 8. You were entrusted with the work of carrying out the inquiry for the purpose of purchase of oil and diesel. However, due to your negligence in performing your duty, the inquiry was initiated after four months, which affected the reputation of the company among the suppliers. In this connection, the Executive Engineer, Division Office, by the reference letter No. 6, has asked for your explanation. However, you have failed in giving your reply thereto, which can be considered serious and indiscipline." 21. In this connection, the Executive Engineer, Division Office, by the reference letter No. 6, has asked for your explanation. However, you have failed in giving your reply thereto, which can be considered serious and indiscipline." 21. Let me look into the circular dated 13th January 2004 issued by the Board so far as the review of services of the officers/employees for extension beyond the age of 50/55 years. The circular reads as under: "As per SR 72 the services of Officers and employees are required to be reviewed to decide whether to continue them beyond 50 years in case of Class-I Officers and beyond 55 years in case of other officers and employees. Various circulars in this regard have also been issued by HO from time to time. It is observed that implementation of the above directives has not been made in true spirit. Therefore competent authority has examined the same and taken decision as under: 1. The competent authority to make an appointment to the post of an employee will examine the case of concerned employee before 6 months time of the employee reaching the age of 50/55 years as the case may be and his continuation/retirement may be decided on attaining the age of 50/55 years. 2. The purpose of the above examination is to check the performance criteria of an employee and it can be checked by the following measures. (i) Lacking in integrity & disciplinary action taken during the entire service period (ii) Physical fitness (iii) Mental fitness (iv) His attitude towards the work (v) His physical presence in the establishment (vi) Whether he is suffering from any serious disease like Kidney, Cancer, Neuro Disease, Heart attack, or any kind of disablement received after entering into the Board's service. If any of the employee is found lacking in any of the above measures, it would be appropriate to consider him for pre-mature retirement irrespective of an assessment of his ability or efficiency in work. His Confidential Report of last 10 years are to be considered for taking the decision and the rating of the CR should be good and not merely satisfactory. 3. In a case in which an employee's integrity is not in doubt but his physical or mental condition is such which adversely is affecting his efficiency or ability it would be appropriate to consider him for pre mature retirement. 3. In a case in which an employee's integrity is not in doubt but his physical or mental condition is such which adversely is affecting his efficiency or ability it would be appropriate to consider him for pre mature retirement. If any employee of the Board is under suspension or a charge sheet is issued for misconduct shall not be considered as an offence for compulsory retirement of his services but if his charges are concluded and final punishment order is passed thereupon the competent authority is empowered to decide whether such employee would be given compulsory retirement or otherwise. In normal cases the employee of the Board will not be required to produce any medical/fitness certificate from the Medical Authorities. But in exceptional cases wherein an employee is likely to be suffering from disability/disease, in such cases competent authority can use its discretion and ask an employee to produce the medical opinion of the competent authority. In such cases the Management will address a letter to the concerned Medical Authorities and ask for medical opinion in such cases and the employee has to present himself before the Medical Authority with the Management's letter and bring the opinion in this regard. If an employee suffering from any serious disease like Kidney, Cancer, Neuro or Heart disease etc., his attendance record of last 5 years may be examined along with medical reimbursement availed by him. It is also to be verified that if his efficiency has been reduced due to serious disease and Board's work has suffered adversely." 22. The circular also provides for the procedure to be followed for premature retirement of officers attaining the age of 50/55 years. "In cases where the committee concerned comes to a conclusion that the officers should be retired prematurely, the committee should record fully and clearly the points taken into consideration and reason for their conclusion. It is necessary that this process should be completed in each case in about 3 months time so that in the event of retirement being finally decided upon, it is possible to serve a notice on the employee concerned at least 3 months before the date on which he attains the age of 50/55 years and his retirement thus given effect as soon as possible. In case of employee when it is finally decided not to retain him in service beyond the age of 50/55 years he should be informed in the first instance by confidential letter that Board proposes to retire him prematurely w.e.f. Particular date that he can himself tender, if so desire a notice to the Board asking for voluntary retirement. A notice for premature retirement to be issued to such employees only after the opportunity is given to him to opt for voluntary retirement. In case where it is decided to retire the employee immediately a decision is taken to do so, option as referred hereinabove need not be given." 23. Having considered the grounds on which the impugned order of compulsory retirement came to be passed, I have no doubt in my mind that the same is stigmatic and punitive. If an order of compulsory retirement is stigmatic in nature, then the same would be bad in law. 24. The Supreme Court in Swaran Singh Chand v. Punjab State Electricity Board and others, (2009) 13 SC 758 has explained the law relating to the compulsory retirement. I may quote the observations of the Supreme Court as under:- "7. The law relating to compulsory retirement is no longer res integra. An order of compulsory retirement inter-alia can be passed when the officer concerned is found to be a dead wood. [M.P. State Co-op. Dairy Fedn. Ltd. and Anr. v. Rajnesh Kumar Jamindar and Ors., 2009 (6) SCALE 16]. Although for the said purpose, the principles of natural justice are not required to be complied with and even adverse entries made in the confidential record including un-communicated entries may be taken into consideration but the same should not be passed in place of or in lieu of a disciplinary proceedings. If an order of compulsory retirement is stigmatic in nature, the same would be bad in law. 8. It is furthermore well-settled that when the State lays down the rule for taking any action against an employee which would cause civil or evil consequence, it is imperative on its part to scrupulously follow the same. Mr. Justice Frankfurter in Vitarelli v. Seaton 359 US 535, stated:- "An executive agency must be rigorously held to the standards by which it professes its action to be judged.... Mr. Justice Frankfurter in Vitarelli v. Seaton 359 US 535, stated:- "An executive agency must be rigorously held to the standards by which it professes its action to be judged.... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword." [Also H.V. Nirmala v. Karnataka State Financial Corporation, (2008) 7 SCC 639 : (2008 AIR SCW 3732] 9. The guidelines issued by the State are binding on it. Appellant had been compulsorily retired with effect from 29.09.2003. Salary for three months from the said date was paid, i.e., upto December, 2003. His actual date of retirement was 31.10.2004. The impugned order, therefore, was passed although not strictly within a period of one year preceding the date of superannuation but near about the same. 10. Thus, spirit of Clause (ii) of the guidelines issued by order dated 14.08.1981 should have also been taken into consideration. So far as Clause (iii) of the said guidelines is concerned, there is a change of post as he had been promoted to a higher post in 2001. As he had been promoted despite recording of the adverse remarks, the said fact also should have been taken into consideration. If adverse report on integrity relates to a distant past or more than ten years old, yet again it should not have been considered. 11. This Court in Baikuntha Nath Das and Another v. Chief District Medical Officer, Baripada and Another (1992) 2 SCC 299 : (1992 AIR SCW 793) laid down the law inter alia as under : "(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority." 12. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority." 12. It is a well-settled principle of law that an order of compulsory retirement would be held to be stigmatic inter-alia, in the event the employer has lost confidence [Chandu Lal v. Management of M/s. Pan American World Airways Inc. (1985) 2 SCC 727 : AIR 1985 SC 1128 ] or he has concealed his earlier record [Jagdish Parsad v. Sachiv, Zila Ganna Committee, Muzaffarnagar and Another, (1986) 2 SCC 338 at 342-343, para 9] : AIR 1986 SC 1108 . He can, however, be subjected to compulsory retirement inter-alia if he has outlived his utility [State of Uttar Pradesh v. Madan Mohan Nagar, AIR 1967 SC 1260 at 1262]. 13. In Officers' Association and Another v. Allahabad Bank and Others, (1996) 4 SCC 504 : 1996 AIR SCW 2432, it was held : "17. The above discussion of case-law makes it clear that if the order of compulsory retirement casts a stigma on the government servant in the sense that it contains a statement casting aspersion on his conduct or character, then the Court will treat that order as an order of punishment, attracting provisions of Article 311(2) of the Constitution. The reason is that as a charge or imputation is made the condition for passing the order, the Court would infer therefrom that the real intention of the Government was to punish the government servant on the basis of that charge or imputation and not to exercise the power of compulsory retirement. But mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different intention cannot be inferred. But mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different intention cannot be inferred. So also, if the statement in the order refers only to the assessment of his work and does not at the same time cast an aspersion on the conduct or character of the government servant, then it will not be proper to hold that the order of compulsory retirement is in reality an order of punishment. Whether the statement in the order is stigmatic or not will have to be judged by adopting the test of how a reasonable person would read or understand it." 14. The question came up for consideration before a Division Bench of this Court in State of Gujarat v. Umedbhai M. Patel, (2001) 3 SCC 314 : 2001 AIR SCW 862 wherein Balakrishnan, J. (as the learned Chief Justice then was), summarized the law, thus : "11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus : (i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even un-communicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure." 15. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure." 15. In a slightly different context, viz., in a case of probation, this Court in Jaswantsingh Pratapsingh Jadeja v. Rajkot Municipal Corporation and Another, (2007) 10 SCC 71 : 2007 AIR SCW 6764 opined as under : "24. In this case, however, the period of probation as provided for under the statute had expired and his misconduct had been taken note of. Such misconduct was not founded only upon absence from duty, but also upon carelessness, negligence on the part of the appellant and lack of devotion amongst others." Upon taking into consideration some precedents operating in the field, it was concluded : "28. From the discussions made hereinbefore, it is evident that termination of services of the appellant purporting to discharge him simpliciter cannot be accepted, being stigmatic in nature. The form of the order terminating the services coupled with the background facts clearly leads to the conclusion that the order impugned in the writ petition by the appellant was punitive." 16. The learned counsel appearing on behalf of the respondent would contend that the principles of natural justice are not required to be complied with in a case of compulsory retirement, particularly, when no mala-fide is alleged. Allegation against the delinquent was not only that he lacked integrity but also unfit to be retained in service. Those comments, in our opinion, are stigmatic in nature. It is also not a case where there had been a steady decline in the performance of the employee. 17. The learned counsel appearing on behalf of the respondent would contend that in this case malice has neither been alleged nor been proved. In support of his contention reliance has been placed on Purushottam Kumar Jha v. State of Jharkhand and Others, (2006) 9 SCC 458 : 2006 AIR SCW 2628 wherein Thakker, J. speaking for the Bench, stated the law, thus : "23. It is well settled that whenever allegations as to mala-fides have been levelled, sufficient particulars and cogent materials making out prima facie case must be set out in the pleadings. Vague allegation or bald assertion that the action taken was mala-fide and malicious is not enough. It is well settled that whenever allegations as to mala-fides have been levelled, sufficient particulars and cogent materials making out prima facie case must be set out in the pleadings. Vague allegation or bald assertion that the action taken was mala-fide and malicious is not enough. In the absence of material particulars, the Court is not expected to make "fishing" inquiry into the matter. It is equally well established and needs no authority that the burden of proving mala-fides is on the person making the allegations and such burden is "very heavy". Malice cannot be inferred or assumed. It has to be remembered that such a charge can easily be "made than made out" and hence it is necessary for the Courts to examine it with extreme care, caution and circumspection. It has been rightly described as "the last refuge of a losing litigant". (Vide Gulam Mustafa v. State of Maharashtra; Ajit Kumar Nag v. GM (PJ), Indian Oil Corpn. Ltd. 2005 AIR SCW 4986) 18. In a case of this nature the appellant has not alleged malice of fact. The requirements to comply with the directions contained in the said circular letter dated 14.08.1981 were necessary to be complied with in a case of this nature. Non-compliance whereof would amount to malice in law. [Manager, Government Branch Press and Another v. D.B. Belliappa, (1979) 1 SCC 477 : AIR 1979 SC 429 , Smt. S.R. Venkataraman v. Union of India and Another, (1979) 2 SCC 491 : AIR 1979 SC 49 and P. Mohanan Pillai v. State of Kerala and Others, (2007) 9 SCC 497 : 2007 AIR SCW 5157]. Thus, when an order suffers from malice in law, neither any averment as such is required to be made nor strict proof thereof is insisted upon. Such an order being illegal would be wholly unsustainable. 19. For the reasons aforementioned, the impugned order is set aside. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs." 25. The impugned order of compulsory retirement on the face of it indicates that it contains aspersions of serious misconduct. 19. For the reasons aforementioned, the impugned order is set aside. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs." 25. The impugned order of compulsory retirement on the face of it indicates that it contains aspersions of serious misconduct. It is always incumbent upon the employer to look into a steady decline in the performance of the employee, but at the same time, if a particular charge or imputation is made, then the Court would be justified in inferring that the real intention of the employer was to punish the employee on the basis of that charge or imputation and not to exercise the power of compulsory retirement. 26. Mr. Dave, the learned counsel appearing for the respondent, with a view to salvage the situation, placed strong reliance on a decision of the Supreme Court in the case of National Aviation Company of India v. S.M.K. Khan (2009) 5 SCC 732 . Relying upon the said decision, he submitted that any incidental reference to the unsatisfactory service, or any remarks in the context of explaining the reason for compulsory retirement under the Regulation 72, the compulsory retirement should not be considered as stigmatic. He submitted on this issue that any order of compulsory retirement is not open to interference unless shown to be mala-fide or arbitrary or not based on any background material at all relating to the unsatisfactory service, justifying the premature retirement. 27. Let me quote some of the observations of the Supreme Court in National Aviation (supra) as under: "13. An order of compulsory retirement in pursuance of a rule/regulation which enables the competent authority to prematurely retire an employee, on the formation of a bona fide opinion that continuation of the employee in service will not benefit the institution or be in the interest of the institution (or will not be in public interest where the employee is a Government servant), on review of the performance/service record of the employee, on the employee attaining the specified age or completing the specified period of service, is valid and not open to challenge. It is neither a punishment nor considered to be stigmatic. It is neither a punishment nor considered to be stigmatic. Where the compulsory retirement, is not by way of punishment for a misconduct, but is an action taken in pursuance of a valid condition of service enabling the employer to prepone the retirement, the action need not be preceded by any enquiry and the principles of natural justice have no application. 14. The unsatisfactory service of the employee which may include any persistent misconduct or inefficiency furnishes the background for taking a decision that the employee has become a dead wood and that he should be retired compulsorily. Such 'compulsory retirement' is different and distinct from imposition of a punishment of compulsory retirement (or dismissal/removal) on a specific charge of misconduct, where the misconduct is the basis for the punishment. The difference is on account of two factors : Firstly, the employee on account of completing a particular age or number of years of service falls within the zone where his performance calls for assessment as to whether he is of continued utility to the employer or has become a deadwood or liability for the employer. Secondly, the record of service, which may include poor performance, unsatisfactory service or incidentally any recent conduct (which if separately considered may constitute a misconduct subject to punishment) when considered as a whole, leads the Reviewing Authority to the conclusion that the employee in question is not fit to be continued in service and not of utility to the employer. Therefore, any incidental reference to unsatisfactory service, or any remarks in the context of explaining the reason for compulsory retirement under the relevant rule, in the letter of compulsory retirement will not be considered as stigmatic, even though read out of context, they may be capable of being construed as allegations of misconduct. 15. Any order of compulsory retirement in terms of the rule/regulation providing for such compulsory retirement is not open to interference unless shown to be mala-fide or arbitrary or not based on any background material at all relating unsatisfactory service justifying the premature retirement. 16. 15. Any order of compulsory retirement in terms of the rule/regulation providing for such compulsory retirement is not open to interference unless shown to be mala-fide or arbitrary or not based on any background material at all relating unsatisfactory service justifying the premature retirement. 16. When an order of compulsory retirement purports to be one under the rule/regulation providing for such premature retirement, the proper approach of the court would be to consider whether the order is sustainable with reference to the requirements of the relevant rule, rather than examining whether the order could also be construed as a punishment for misconduct - vide Baikuntha Nath Das v. Chief District Medical Officer, 1992 (2) SCC 299 ; Allahabad Bank Officers' Association v. Allahabad Bank, 1996 (4) SCC 504 ; I.K. Mishra v. Union of India, 1997 (6) SCC 228 ; State of Uttar Pradesh v. Lalsa Ram, 2001 (3) SCC 389 and M.L. Binjolkar v. State of Madhya Pradesh, 2005 (6) SCC 224 . 17. When the compulsory retirement of respondent is examined in the context of the aforesaid tests and principles, the inescapable conclusion is that it is valid and not open to challenge. 18. The respondent contended that once on review of performance, an employee is allowed to continue beyond 55 years, such employee is entitled to continue in service until he attains the age of 58 years and the employer cannot compulsorily retire him before 58 years, except by way of punishment for a proved misconduct. 19. In support of the said contention, he relied upon the decisions of this Court in State of Uttar Pradesh v. Chandra Mohan Nigam, AIR 1977 SC 2411 where this court held that once a Review Committee considered the case of a Government servant, and the government, on the report of the committee, decides not to take any prejudicial action against the Government servant, there is no warrant for a second Review Committee under the provisions relating to premature retirement, to re-assess his case on the same material, unless the exceptional circumstances emerge in the meantime or the next stage for review arrives. 20. In particular, the respondent relied on the following observations in that case : "29. 20. In particular, the respondent relied on the following observations in that case : "29. Once a review has taken place and no decision to retire on that review has been ordered by the Central Government, the officer gets a lease in the case of 50 years upto the next barrier at 55 and if he is again cleared at that point, he is free and untrammelled upto 58 which is his usual span of the service career. This is the normal rule subject always to exceptional circumstances such as disclosure of fresh objectionable grounds with regard to integrity or some other reasonably weighty reason." The said decision will not assist the respondent. The principle laid down therein is that after a review of the service of an employee for purposes of extension of service beyond 55 years, if it is decided that he is fit and suitable for continuation, there is no question of a re-appraisal of the same material, for taking a different decision in the absence of exceptional circumstances. That principle will apply, where on review, the competent authority is satisfied that the service of the employee is satisfactory and there is no ground to compulsorily retire the employee. But in this case, the employee's service was not found to be satisfactory on review of performance at the end of 55 years, nor was the employee cleared for retention in service till 58 years. 21. In this case, on review, the competent authority decided that the employee was not fit and suitable for retention and that he should be compulsorily retired from service with effect from 10.8.1998. But because of the extreme hardship pleaded by the employee and assurance of improvement in performance, the respondent's service was continued as a special case, for only a period of one year beyond 55 years making it clear that retention of service beyond one year, that is, 10.5.1999, will be subject to the outcome of review that will be carried out after monitoring his attendance and performance during that period. 22. Thus the continuation of respondent beyond 55 years was not because his service was satisfactory, but out of leniency, for a specific period somewhat on the lines of probation. During the extension period of one year, his performance was watched and it was found to be unsatisfactory. 22. Thus the continuation of respondent beyond 55 years was not because his service was satisfactory, but out of leniency, for a specific period somewhat on the lines of probation. During the extension period of one year, his performance was watched and it was found to be unsatisfactory. Therefore after giving due opportunity to him to explain the unsatisfactory service, a decision was taken by the competent authority not to continue him in service and consequently he was compulsorily retired from service with effect from 26.8.1999. Thus the compulsory retirement with effect from 26.8.1999 was merely a postponement of the compulsory retirement which was to take place on 10.5.1998 and not on account of a second-appraisal of the service performance upto 55 years. 23. The learned counsel for the respondent next submitted that recourse to 'compulsory retirement should be only in 'public interest'; and that in this case, as neither the regulations nor the order of compulsory retirement referred to public interest, the compulsory retirement was vitiated. This contention has no merit. "Public interest" is used in the context of compulsory retirement of Government servants while considering service under the State. The concept of public interest would get replaced by 'institutional interest' or 'utility to the employer' where the employer is a statutory authority or a Government company and not the Government. When the performance of an employee is inefficient or his service is unsatisfactory, it is prejudicial or detrimental to the interest of the institution and is of no utility to the employer. Therefore compulsory retirement can be resorted to (on a review of the service on completion of specified years of service or reaching a specified age) in terms of relevant rules or regulations, where retention is not in the interests of the institution or of utility to the employer. It is however not necessary to use the words 'not in the interests of the institution' or 'service not of utility to the employer' in the order of compulsory retirement as the regulation provides that no reason need be assigned." 28. It is however not necessary to use the words 'not in the interests of the institution' or 'service not of utility to the employer' in the order of compulsory retirement as the regulation provides that no reason need be assigned." 28. I may also refer to and rely upon some of the following observations made by a Division Bench of this Court in the case of V.C. Shroff v. Gujarat Electricity Board reported in 1978 (2) GLR 776 while interpreting the Regulation 72 of the Gujarat Electricity Board Service Regulations: "12....We have also ruled above that note (iv) in the context of notes (ii) and (iii) and in the context of the initial provision made for the service upto 58 years of life lays down as a measure of policy that ordinarily an employee is entitled to continue till he reaches the age of superannuation on completion of 58th year of his life. The Board has laid wrong emphasis and has viewed the cases of these two petitioners from the angle of positive merits. The Board appears to have examined their cases from the angel to see whether they were good enough to get the benefit of extended service so to say. Mr. Patel, argued that the paramount idea behind premature retirement is to chop off dead wood. When this is the guiding principle behind premature retirement the approach to the problem assumes a different dimension and angle. While examining the case of a person what is required to be seen is whether he is bad enough to be chopped off from service. Positive merits are not to be insisted upon at this stage. There are three clear stage in such situations. An employee may be positively good, an employee may be positively bad and an employee may be neither good nor bad. The underlying principle of regulation No. 72, is that those who are eminently efficient obviously are not liable to be removed and cannot be removed. Those who are positively bad must be chopped off. The middle class, namely, the class of, those who are not figuratively speaking dead wood are to be allowed to live the normal tenure. This appears to be the intention of the Board while framing regulation No. 72. Those who are positively bad must be chopped off. The middle class, namely, the class of, those who are not figuratively speaking dead wood are to be allowed to live the normal tenure. This appears to be the intention of the Board while framing regulation No. 72. We have no doubt that the Board had examined the cases of these two petitioners from the standard of positive merits, but they have not addressed themselves to the question of a third middle category referred to just ow above. It is an admitted position before us that they were not so prematurely retired because they were lacking in integrity or because there was erosion in their physical or mental condition. Only thing that could be available to the Board was the presence of a positively bad record that would make the petitioners unsuitable and consequently liable to be cut off from the service after 55 years of age. This is not the case here. We would emphasis again that as per the regulation premature retirement is a harsh treatment and in the present state of regulation could be resorted to only as a matter of exception. Unless exceptional circumstances of the type envisaged above are there the hard treatment of premature retirement cannot be resorted to." 29. In my view, what weighed as noted by the authority in passing the impugned order cannot be said to be incidental. The various acts of misconduct, as alleged, weighed heavily with the authority and which led him to believe that the petitioner was a liability to the company being a dead wood employee. The allegations contained in the impugned order of compulsory retirement are quite serious, for which, the respondents could have issued a departmental charge-sheet and proceeded against the petitioner. However, he opted for a short-cut and passed the order of premature retirement. 30. To a certain extent, Mr. Dave may be right in submitting that there is no malice or mala-fide. Malice may not be anything, but the same is apparent in law. If there is malice in law, neither any averment as such is required to be made nor strict proof thereof is insisted upon. Such an order being illegal would be wholly unsustainable. 31. Therefore, I am left with no other option, but to quash the order of compulsory retirement. 32. If there is malice in law, neither any averment as such is required to be made nor strict proof thereof is insisted upon. Such an order being illegal would be wholly unsustainable. 31. Therefore, I am left with no other option, but to quash the order of compulsory retirement. 32. The next question I need to address is about the relief. 33. Mr. Dave, the learned counsel appearing for the respondent submitted that even if this Court is of the view that the impugned order or the action is not in accordance with law, still the Court may refuse to grant any relief in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India having regard to the fact that the petitioner was a dead wood employee. 34. In support of his submissions, Mr. Dave has placed reliance on the decision of the Supreme Court in the case of Chandra Singh v. State of Rajasthan, (2003) 6 SCC 545 , more particularly, paras 41, 42, 43, 44 as under: "41. In any event, even assuming that there is some force in the contention of the appellants, this Court will be justified in following Taherakhatoon v. Salambin Mohammad, (1999) 2 SCC 635 , wherein this Court declared that even if the appellant's contention is right in law having regard to the overall circumstances of the case, this Court would be justified in declining to grant relief under Art. 136 while declaring the law in favour of the appellants. 42. Issuance of a writ of certiorari is a discretionary remedy. (Champalal Binani v. CIT, West Bengal, AIR 1970 SC 645 ). The High Court and consequently this Court while exercising its extraordinary jurisdiction under Art. 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant. Furthermore, this Court exercised its discretionary jurisdiction under Art. 136 of the Constitution of India which need not be exercised in a case where the impugned judgment is found to be erroneous if by reason thereof substantial justice is being done. (S.D.S. Shipping Pvt. Ltd. v. Jay Container Services Co. Pvt. Ltd. and Others, 2003 (4) Supreme 44 ). Furthermore, this Court exercised its discretionary jurisdiction under Art. 136 of the Constitution of India which need not be exercised in a case where the impugned judgment is found to be erroneous if by reason thereof substantial justice is being done. (S.D.S. Shipping Pvt. Ltd. v. Jay Container Services Co. Pvt. Ltd. and Others, 2003 (4) Supreme 44 ). Such a relief can be denied, inter-alia, when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal one. This Court also in exercise of its jurisdiction under Art. 142 of the Constitution of India is entitled to pass such order which will be complete justice to the parties. 43. We have been taken through the annual confidential reports as against the appellants. Having gone through the same, we are of the opinion that it is not a fit case where this Court should exercise its discretionary jurisdiction in favour of the appellant. This Court in Brij Mohan Gupta's case (supra) has also refused to exercise its discretionary jurisdiction in favour of the appellant although the order of the High Court was found liable to be set aside being not in accordance with law. 44. This Court said that this principle applies to all kinds of appeals admitted by special leave under Art. 136, irrespective of the nature of the subject-matter. So even after the appeal is admitted and special leave is granted, the appellant must show that exceptional and special circumstances exist, and that, if there is no interference, substantial and grave injustice will result and that the case has features of sufficient gravity to warrant a review of the decision appealed against on merits. So this Court may declare the law or point out the lower Courts error, still it may not interfere if special circumstances are not shown to exist and the justice of the case on facts does not require interference or if it feels the relief could be moulded in a different fashion." 35. Mr. Dave has invited my attention to a document at Annexure "R-1" which is a statement showing the details of the Confidential Reports of the petitioner. The same is as under:- Date of Birth : 11-01-1957 Date of joining : 29-08-1980 S. No. CR period CR rating Remarks 1. 1980 53 2. 1981 57 3. 1982 51 4. 1983 56 5. Dave has invited my attention to a document at Annexure "R-1" which is a statement showing the details of the Confidential Reports of the petitioner. The same is as under:- Date of Birth : 11-01-1957 Date of joining : 29-08-1980 S. No. CR period CR rating Remarks 1. 1980 53 2. 1981 57 3. 1982 51 4. 1983 56 5. 1984 53 6. 1985 51 7. 1986 50 8. 1987 50 9. 1988 59 10. 1989 50 11. 1990 37 AR conveyed No. JCE/417 dated 7-3-1991 12. 1991 50 AR conveyed No. JCE/33 dated 27-5-1992 13. 1992 44 AR conveyed No. JCE/30 dated 16-4-1993 14. 1993 41 AR conveyed No. JCE/274 dated 9-5-1994 15. 1994 41 AR conveyed No. JCE/248 dated 16-6-1995 16. 1995 42 AR conveyed No. JCE/192 dated 11-4-1996 17. 1996 -- 18. 1997 43 AR conveyed No. JCE/173 dated 6-4-1998 19. 1998 -- 20. 1999 33 AR conveyed No. SNC/5 dated 3-4-2000 21. 2000 -- 22. 2001 62 23. 2002 50 24. 2003 50 25. 2004 50 26. 2005 50 27. 2006 43 AR conveyed No. SNC/158 dated 23-3-2007 28. 2007 52 AR conveyed No. SNC/152 dated 25-3-2008 29. 2008 47 AR conveyed No. SNC/58 dated 3-2-2008 Note:- (1) Charge sheet issued vide letter No. EST/CAO/4073 dated 19-05-1994. Order No. AGM/P/2764 dated 10-07-1995 - 1 increment stopped with cumulative effect. (2) Draft charge sheet sent to CE, Corp. Office, Rajkot vide No. BZ/HR/DA/483 dated 22-8-08." 36. Ordinarily, once an order of premature retirement is ordered to be quashed, consequently, the order would be of reinstatement in service. However, in the case in hand, there is no scope of reinstatement, because even otherwise, the petitioner retired in 2014. Therefore, the only consideration is whether the back wages should be ordered or not. 37. Having considered the materials on record, although I am convinced that the impugned order of compulsory retirement is not tenable in law, yet I am not inclined to grant any relief of back wages. 38. I deem fit to direct the respondents to treat the petitioner as if he retired on attaining the age of superannuation, and thereby give notional effect so far as the period of four years is concerned i.e. between 2010 and 2014. Whatever benefits accrued in favour of the petitioner notionally for the period between 2010 and 2014, the same may be worked out and paid to the petitioner. Whatever benefits accrued in favour of the petitioner notionally for the period between 2010 and 2014, the same may be worked out and paid to the petitioner. I take notice of the fact that at the time of compulsory retirement of the petitioner, he was paid an amount of Rs. 1,48,230/- by cheque. The said amount is paid to the petitioner in lieu of the three months' notice period. Rule is made absolute to the aforesaid extent. 39. In view of the order passed in the main matter, the connected Civil Application is also disposed of.