Supreme Court of India
RAM EKBAL SHARMAversusSTAIB OF BIHAR & ANR.
- Citation
- 1990 INSC 156
- Decided
- 24 April 1990
- Disposal
- Appeal(s) allowed
- Bench
- B C RAY
Holding
An order of compulsory retirement, even if framed in innocuous terms, may be examined for its true purpose; if it is found to be punitive and not bona‑fide public interest, it violates Article 311(2) and is illegal.
Summary
R.E. Sharma, a senior Bihar government officer with a 30‑year exemplary record, was compulsorily retired under Rule 74(b)(ii) of the Bihar Service Code on the ground of public interest after turning 50. Sharma contended that the retirement was a punitive measure based on alleged financial irregularities, that he was denied a hearing, and that the order violated Article 311(2) of the Constitution and principles of natural justice. The High Court dismissed his writ petition. The Supreme Court held that, despite the innocuous wording of the order, the court may "lift the veil" to examine the true purpose and found that the order was made as punishment, not bona‑fide public interest, thereby contravening Article 311(2) and natural justice. Consequently, the order was set aside, Sharma was reinstated with full back wages, and costs were awarded.
Issues considered
- The true character of an order of compulsory retirement couched in innocuous language – whether it can be a punitive dismissal subject to Article 311(2).
- Whether the power under Rule 74(b)(ii) of the Bihar Service Code may be exercised for extraneous or punitive purposes.
- Whether the appellant was entitled to a hearing before being compulsorily retired.
- Whether the order of compulsory retirement is liable to be quashed on grounds of arbitrariness and violation of natural justice.
Legislation cited
- Bihar Public Service Commission (Limitation of Functions) Regulations. 1956
- Bihar Service Code, 1979s. Rule 74(b)(ii)
- Constitution of Indias. Article 14, s. Article 311(2)
- Fundamental Ruless. Rule 56
Subjects
compulsory retirementpunitive dismissalArticle 311natural justicepublic interestadministrative lawveil liftingservice code
Judgment
RAM EKBAL SHARMA A
v.
) STAIB OF BIHAR & ANR.
Al'RiL 24, 1990
[B.C. RAY AND K. JAYACHANDRA REDDY, JJ.] B
Bihar Service <;ode, 1979: Section 74(b)(ii)-Order of com-
pulsory retirement-Couched in innocuous language-Validity of-
Court-Whether could lift the veil, in appropriate cases to ascertain
basis of order.
r· Constitution of India, 1950: Articles 14 and 311(2)-0rder of
c
compulsory retirement-Couched in innocuous language, but made by
way ofpunishment-Whether violative of.
The appellant, an officer of Bihar State, filed a writ petition
before the High Court, challenging the order of compulsory retirement D
passed by the respondent State, under Rule 74(b)(ii) of Bihar Service
Code, 1979, contending that throughout his service of 30 years he had
an exemplary service career and his integrity remained unquestionable
and that neither any adverse remarks were communicated to him nor
any·departmenta1 proceedings were initiated against him, nor any.expla-
nation called for frolll him. The High Court dismissed the wrlf petition E
by a laconic order.
In the appeal, by special leave, the appellant contended that
though the order was conched in innocuous terms and made in comp-
- liance with the provisions of Rule 74(b )(ii) of Bihar Service Code on
appellant's reaching the age of more than 50 years, and prima facie not
appearing to cast any stigma, it was not made in public interest, but
F
made by way of punishment for oblique purposes, in consideration of
extranel!US matter and purporting to removal from service on certain
serious allegations of misconduct, casting a stigma, and hence the order
was illegal, bad and in violation of audi alterem partem rule and Article
311(2) of the Constitution and was liable to be quashed. G
On behalf of the respondent-State it was contended that the order
had been made in public interest under Rule 74(b)(ii) and there was
nothing to show from the order itself that it had been made by way of
punishment, casting a stigma; the language of the .order was innocuous,
and the appellant could not delve into the secretariat files, lo ftiid out H
the basis of the order.
679
680 SUPREME COURT REPORTS I1990] 2 S.C.R.
Allowing the appeal, this Court,
A
HELD: 1.1 Even though the order of compulsory retirement is
couched in innocuous language without making imputations against the
- -----
~
government servant, who is directed to be compulsorily retired from
service, the Court, if challenged, in appropriate cases can lift the veil to
B find out whether the order is based on any misconduct of the govern-
ment servant concerned or the order has been made bona fide and not
with any oblique or extraneous purposes. Mere form of the order iu
such cases cannot deter the Court from delving into the basis of the
order if the order in question is challenged by the concerned govern-
ment servant. [693F-G]
c Shamsher Singh & Anr. v. State of Punjab, [1975] 1 SCR 894 and
Anoop Jaiswal v. Government of India and Anr., AIR 1984 SC 636,
-
relied on. -,---
Shyam Lal v. The State of U.P. & Anr., [1955] 1SCR26; Baldev <
D Raj Chadha v. Union of India and Ors., [1980] 4 SCC 321 and Union of
India v. Col. J.N. SinhaandAnr., [1971] 1SCR791, referred to.
l.N. Saxsena v. The State of Madhya Pradesh, [1967] 2 SCR 496,
distinguished.
E 1.2 The object of Rule 74(b)(ii) of the Bihar Service Code is to get
i'id of the government servant who has become dead wood. This order is
made only to do away with service of only those employees who have lost
their utility, become useless and whose further continuance in service is
considered not to be in public interest. [655D]
F 1.3 In the instant case, the appellant had an unblemished career,
and undoubtedly by dint of merit and flawless service career, had been
promoted to the post of Joint Director and ultimately to the post of
General Manager. The counter-affidavit filed on behalf of the
respondent-State has categorically stated that while passing the order of
compulsory retirement the officers concerned were guided by the report
G dated September 19, 1987 which stated that the appellant was responsi-
ble for grave aud serious financial irregularities resulting in financial
loss to the State Government, without giving any opportunity of hearing
and witboutintimating allegations to the appellant before forming the
opinion. The memorandum iu question has clearly stated that the order
of compulsory retirement was made as the appellant's misconduct
H tarnished the image of the Government in the public. This categorical
R.E. SHARMA v. STATE OF BIHAR [RAY, J.) 681
statement clearly proves that the basis of making the order is the report
) A
..
--------
dated September 19, 1987. Therefore, the order of compulsory retire-
ment cannot he defended on the mere plea that it has been made in
accordance with the provisions of Rule 74(b )(ii) which prima facie does
not make any imputation or does not cast any stigma on the career of
the appellant. [657E, 689F-H, 690A, 693H, 694A]
B
In view of the clear and specific averments made by the
respondent-State that the order has been made under Rule 74(b)(ii) as
the appellant was found to have committed grave financial irregulari-
ties leading to financial loss to the State, the order cannot but be said to
have been made by way of punishment. Such an order is in contraven-
tion of Article 31 l of the Constitution and arbitrary as it violates princi-
ples of natural justice. It has not been made bona fide, but for collateral c
purposes and for extraneous consideration by way of punishment and is,
therefore, illegal, unwarranted and liable to be quashed. [li94A-B, CJ
Accordingly the order of compulsory retirement is set aside and the res-
pondents are directed to reinstate the appellant with full back wages. [694D] D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1995
of 1990.
From the Judgment and Order dated 23.11.1988 of the Patna
-> HighCourtinC.W.J.C.No.8457of1988. E
A.K. Sen, Shankar Ghosh and M.P. Jha for the Appellant.
G .S. Misra for the Respondents.
The Judgment of the Court was delivered by F
RAY, J. This appeal on special leave is directed against the
judgment and order dated November 23, 1988 passed in C.W.J.C. No.
8457 of 1988 by the High Court, Patna dismissing the writ petition
moved by the appellant assailing the order of his compulsory retire-
ment from service by notification dated October 26, 1988 issued by the G
Government of Bihar compulsorily retiring him from service with
effect from the date of issue of the notification.
The salient facts giving rise to this appeal are that the appellant
was initially appointed on December 9, 1957 to the post of Industrial
Expansion Officer and he was confirmed to the said post on May 15, H
682 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
1958. The appellant was promoted to the post of Planning-cum- C
A Evaluation Officer, a Gazetted post, on December 19, 1973 because of
his excellent service career. The appellant was further promoted to the - -~
next higher post of Industrial Economist by notification dated
September 24, 1983 with effect from December 19, 1978 inthe scale of
Rs. 1350-2000.
B
Becanse of excellent character role and merit of the appellant, he
was promoted to the n~xt higher post of Joint Director in his original
scale of pay of Rs.1350-2000 with 20 per cent personal pay for holding
such higher post which he held from September 24, 1983 to March 31,
1984. From April 1, 1984 the appellant was provided with the higher
post of General Manager under the respondent-State in its Industries
C Department.
The respondent-State issued a notification on September 16,
1988 promoting a large number of juniors to the higher scale of
Rs.1575-2300 without considering the case of the appellant.
D
Being aggrieved the appellant filed one representation against
his supersession which was made without considering the case of the
appellant. The representation was filed on October 7, 1988. In the said
representation the appellant brought to the notice of the respondent-
State that the service record of the appellant throughout remained
E excellent, integrity beyond doubt and the appellant was never .com-
municated with any punishment in his service career.
While the appellant was awaiting for a decision, the respondent-
State issued the impugned notification dated October 26, 1988 com-
pulsorily retiring the appellant from the post of General Manager,
F District Industries Centre, Deoghar under the provisions of Rule
-
74(b )(ii) of the Bihar Service Code.
i-·
The appellant claimed that the aforesaid order of compulsory
retirement has been issued by the respondent-State on the basis of a
memorandum dated October 6, 1988 though in the garb of Rule
G 74(b )(ii) of the Bihar Service Code, but in fact this has been made as a
measure of punishment.
Being aggrieved and dissatisfied by the order of compulsory -~
retirement passed against hiJ!l by the respondents. the appellant pre-
ferred a writ petition being C.W.J.C. No. 8457 of 1988 before the High
H 'Court, Patna questioning the impugned order on the grounds inter alia
R.E. SHARMA v. STATE OF BIHAR [RAY, J.] 683
) that the appellant throughout his 30 years had an exemplary servii;e
A
-----
._ career and his integrity remained unquestionable, that the appellant
was never communicated with any adverse remarks nor any depart-
mental proceeding was ever initiated against the appellant, nor any
explanation was ever called for. The High Court without at all consi-
dering and appreciating the contentions dismissed the writ application
by a laconic order. B
Feeling aggrieved by the said order the instant appeal on special
leave has been filed.
-
The only crucial ques.tion that falls for consideration in this Court
is whether the impugned order of compulsory retirement from service
has been made by the Appointing Authority in public interest in c
accordance with Rule 74(b )(ii) cif Bihar Service Code, 1979 or for any
oblique motive as an extraneous consideration or by way of punish-
ment casting stigma on the service career of the appellant even though
the impugned order was couched in innocuous language.
D
The relevant Rule 74(b) reads as follows:
"Rule 74(b)(i): Notwithstanding anything contained in the preceding suo-
rule a Government Servant may, after giving at least
three months' previous notice, in writing, to the
appointing authority concerned, retire from service E
on the date on which such a Government servant
completes thirty years of qualifying service or attains
fifty years of age or any date thereafter to be specified
in the notice .
..... Provided that no Government servant under suspen- F
sion shall retire from service except with the specific
approval of the State Government.
Provided further that in case of officers and servants
of the Patna High Court (including those of Circuit
Bench at Ranchi), under the rule marking authority of G
the Chief Justice, no such officers and servants under
suspension shall retire from service except with the
specific approval of the Chief Justice.
Rule 74(b)(ii): The appointing authority concerned may, after giving
a Government servant at least three months' previous H
684 SUPREME COURT REPORTS [1990] 2 S.C.R.
notice in writing, or an amount equal to three months'
A
pay and allowances in lieu of such notice, require him
in public interest to retire from service on the date on
which such a Government servant completes thirty
-J
years of qualifying service or attains fifty years of age
or on any date thereafter to be specified in th<
B notice."
On a plain reading of the said Rule it appears that the appointing
authority has been conferred power to retire a government servant
from service in public interest after giving three months' prior notice in
c
writing or an amount equal to three months' pay and allowances in lieu
of such notice on the date on which such government servant comp-
letes thirty years of qualifying service or attains fifty years of age or on
any date thereafter to be specified in the notice. The impugned notifi-
-
cation was made on October 26, 1988 by the Government of Bihar
intimating the appellant that as he had completed the age of more than
50 years, and in the opinion of the Government of Bihar, in public
D interest he is compulsorily retired from service with effect from the
date of issue of this notification. He will be paid salary of three months
with allowances in lieu of three months' notice under Rule 74{b )(ii)
of Bihar Service Code.
It has been contended on behalf of the appellant that though the
E impugned order is couched in innocuous terms and it is made in comp-
liance with the provisions of Rule 74{b ){ii) of Bihar Service Code on •
appellant's reaching the age of more than 50 years and it does not
prima facie appear to cast any stigma on the service career of the
appellant yet it has been made by way of punishment casting stigma on
the appellant's service career and as such the impugned order is illegal,
F bad and the same has been made in violation of audi alterem partem
rule as well as Article 311(2) of the Constitution. It has been further
submitted in this connection that the power to retire the appellant +--
compulsorily from service has not been made in public interest under
Rule 74(b )(ii) of Bihar Service Code but on the basis of the fact finding
report given by the Deputy Development Commissioner, Dumka by
G his letter dated September 19, 1987 regarding grave financial
irregularities committed by the appellant in consideration of which a
memorandum was prepared by the Additional Commissioner-cum-
Special Secretary, Shri T." Nand Kumar on October 6, 1988 recom-
mending to the respondent-State to compulsorily retire the appellant
from service under Rule 74(b )(ii) of Bihar Code. It has nlso been
H contended that the basis of the order was made with oblique purposes
R.E. SHARMA v. STATE OF BIHAR !RAY, J.] 685
in consideration of extraneous matter and the impugned order pur- A
ports to removal from service on certain serious allegations of miscon-
duct and consequently it casts a stigma on the service career of the
appellant. Such order of compulsory retirement from service though
appears to be innocuous, has been made by way of punishment and as
such it is liable to be set aside and quashed.
B
It has, on the other hand, been urged on behalf of the res-
pondent-State that the impugned order has been made under Rule
74(b)(ii) of Bihar Service Code in public interest and there is nothing
to show from the order itself that it has been made by way of punish-
ment and it casts a stigma on the service career of the appellant. The
- language of the order is innocuous. The appellant cannot delve into
the secretariat files to find out the basis of the order. Some decisions
c
have been cited at the bar in support of this submission.
Rule 74(b )(ii) of the Bihar Service Code confers power on the
Appointing Authority to compulsorily retire a government servant on
his attaining 50 years of age or after completing 30 years of qualifying D
service in public interest. The object of this rule is to get rid of the
government servant who has become dead wood. This order is made
only to do away with service of only those employees who have lost
their' utility, become useless and whose further continuance in service
is considered not to be in public interest. In the instant case the appel-
lant has an unblemished career and undoubtedly by dint of his merit E
· and flawless service career he had been promoted to the post of Joint
Director in 1983 and subsequently on 1st April, 1984 he was promoted
- to the higher post of General Manager uncer the respondent State in
its Industries Department. The appellant has specifically pleaded in
paragraph K of this appeal that he came to know that the impugned
order of compulsory retirement has been issued by the respondent- F
State on the basis of a memorandum dated October 6, 1988. It has
been further pleaded that the appellant came to know from the
memorandum that the impugned order of compulsory retirement
dated October 26, 1988 has been issued by the respondent-State
though in the garb of Rule 74(b )(ii) of the Bihar Service Code, but in
fact the same has been issued as a measure of punishment. This fact G
will be evident from the memorandum dated 6th October, 1988
wherein the State has alleged that six items of charges have been
proved against the petitioner (appellant). The State Government has
also accepted that there is no question of going into the formality of
departmental proceeding but has decided to retire the petitioner com-
pulsorily under Rules 74(b )(ii) of the Bihar Service Code. Paragraphs H
686 SUPREME COURT REPORTS [1990] 2 S.C.R.
A 2 to 4 of the Memorandum dated 6th October, 1988 make it clear that
the impugned order dated October 26, 1988 of compulsory retirement,
has been issued as a measure' of punishment. It is further submitted that
the order passed on October 26, 1988 was without giving any notice or
any show cause to the petitioner.
B
It has been stated in para 4 to 7 of the counter-affidavit as under:
(4) That it is not at all necessary to draw departmental
proceeding against the petitioner (appellant) before effect-
ing his compulsory retirement from government service.
c
Since his retirement under Rule 74(b )(ii) of the Bihar
Service Code does not amount to dismissal or removal from
government service within the meaning of clause (2) of
-
Article 311 of the Constitution, it is, therefore, not neces-
sary to obtain the advice of the Bihar Public Service Com-
mission (Limitation of Functions) Regulation, 1956.
D (5) That it is relevant to state that while the petitioner
(appellant) was General Manager, District Industries
Centre, Dumka and Deoghar during the year 1985 onwards
till his compulsory retirement, an enquiry into the serious
charges of corruption, omission and commission of finan-
cial and administrative lapses and foul play against him had
E been conducted respectively by Deputy Development
Commissioner, Dumka, Deputy Commissioner, Dumka
and Additional Director of Industries, Bihar, Patna.
The above charges were proved such as: -
F (i) The charge of registration of bogus unit had clearly
been established;
(ii) Allegations of recommendations and sanction of capi-
tal subsidy on D.G. sets to bogus units have been proved;
G (iii) Where there were no D.G. sets and the unit was
bogus, subsidy had been sanctioned against the departmen-
tal instructions;
(iv) Seed money had been sanctioned to non-existent units
and payments made in violation of Government orders;
H
R.E. SHARMA v. STATE OF BIHAR (RAY, l.l. 687
(v) Registration had been done for restricted items;
A
)
(vi) Subsidy on D.G. sets had been sanctioned and pay-
ments made to units located outside his jurisdiction; and
(vii) Appointment of persons had been made on ad hoc
basis beyond his delegated powers in gross vioiation of B
Government rules.
(6) That in the above mentioned cases registration; recom-
mendation.s and payments had been made by the petitioner
I·
(appellant) after making personal inspections of the units
- which facts are sufficient to prove that he had committed
the said irregularities knowingly for his persBnal gains and
thereby the State Government had suffered'a heavy loss.
This misconduct on his part had tarnished the image of the
c
Government in the public. It is, therefore, his so-called
exemplary service record which has no co-relation with his
compulsory retirement as stated in the aforesaid para- D
graph.
(7) That conte.ntion of the petitioner (appellant) as stated
in para (viii) of the special leave petition that tl!e
memorandum which have formed the basis of causing the
compulsory retirement of the petitioner (appehant), is E
absolutely wrong and without any substance. It is relevant
to state that the memorandum being confidential papers of
the respondent-State Government cannot be termed as the
Order of compulsory retirement and which order does not
contain any word from which a stigma may be inferred."
F
It has been further averred in para 8 of the said affidavit that on a
perusal of the order of compulsory retirement of the petitioner (appel-
lant), it is sufficiently clear that no stigma has been attached to the
petitioner nor there is any word in the said Order from which a stigma
may be inferred. The Supreme Court has held in the case of I.N.
Saxsena v. The State of Madhya Pradesh, [967] 2 SCR 496 that where G
an order requiring a Government servant to retire compulsorily con-
tains express words from which a stigma can be inferred that order will
amount to removal within the meaning of Article 311. But where there
are no express words in the order itself which would throw any stigma
on the Government order, we cannot delve into Secretariat files to
discover whether some kind of stigma can be inferred on such H
research.
688 SUPREME COURT REPORTS [ 1990] 2 S.C.R.
In para 9 it has been stated that it is, therefore, as per the deci-
A sion of the Supreme Court in the said case, the Court cannot look into I..
the background resulting in the passing of the order of compulsory
retirement in order to discover whether some kind of stigma can be
inferred anc\ accordingly in the instant case the memorandum is totally
-- ,..
irrelevant for the consideration by the Court and in view of the same
B the appeal of the appellant can be dismissed.
A supplementary affidavit has been filed on behalf of the appel-
!ant sworn by Suhird Kumar, son of the appellant. In para 3 of the said '"""
affidavit it has been submitted that the memorandum is prepared on
the basis of two enquiry reports done by the different officers without
"'t
c
there being any notice or getting any other version and this sort of
memorandum cannot be said to be a fair memorandum in the eyes of
law and so any action taken by the State Government on the basis of
the said Memorandum is bad and violative of Artcle 14 and 16 of the
--
Constitution of India. -r·
D It is thus, clear and evident from the counter-affidavit filed on
behalf of the State Government referred to hereinbefore that the basis
of the impugned order of compulsory retirement from service of the
appellant is not in public interest as stated in the order of compulsory
retirement dated October 26, 1988. The impugned order, in fact, has
been passed on the basis of the memorandum dated October 6, 1988
E which is also based on the Report given by the Deputy Development ~ ~
Commissioner, Dumka by his letter dated September 19, 1987 without
asking any explanation from the appellant and without giving him any
opportunity to defend his case before the Deputy Development Com-
missioner. It is, therefore, wrong to say that the basis of the order is
not the said memorandum as well as the report of the Deputy
F Development Commissioner which clearly evinces that the impugned ......
order of compulsory retirement is a mere camouflage being couched in
innocuous terms and in fact the same has been made by way of .f.-,-
punishment.
In support of the impugned order it has ben vehemently urged on
G behalf of the respondent-State that the order of compulsory retirement
dated October 26, 1988 does not. show prima facie that it has been
made by way of punishment. The order as it is, speaks of compulsory
retirement of the appellant from service in accordance with the provi-
~-b-
sions of Rule 74(b )(ii) of the Bihar Service Code. It has been
contended further· that this order being couched in innocuous terms
H cannot be questioned and the appellant cannot delve into the secre-
R.E. SHARMA v. STATE OF BIHAR [RAY, J.] 689
tariat filed to fnd out the basis of the order and to challenge the same
A
) on that basis. Reference has been made in this connection to the case
of J.N. Saksena v. The State of Madhya Pradesh, (supra). In that case,
,.~-
the State of Madhya Pradesh issued a memorandum on February 28,
1963 raising the age of retirement of its employees from 55 to 58 years.
Clause 5 of the memorandum, however, said that the appointing
Authority may require a Government servant to retire after he B
attained the age of 55 years on three months' notice without giving any
rcasolis. The clause further said that this power was normally to be
used to weed out unsuitable employees. The appellant who was a
District and Sessions Judge in the service of the State Government
would normally have retired at the age of 5S years in August, 1963. In
-
September, 1963, however, Government communicated to. him an
order that he was to retire on December 31, 1963 under Rule 56 of the c
Fundamental Rules applicable to the State of Madhya Pradesh. This
order was challenged by the appellant by writ petition before the High
Court of Madhya Pradesh. It was rejected. Thereafter, the appellant
came with a certificate, to this court. It has been held by this Court in
that case that: D
"Where there are no express words in the order of com-
pulsory retirement itself which would throw a stigma on the
Government servant, the Court would not delve into Sec-
retariat files to discover whether some kind of stigma could
be inferred on such research. Since in the present case E
there are no words of stigma in the order compulsorily
retiring the appellant, there was no removal requiring
action under Art. 311 of the Constitution."
This decision does not, in any way, apply to this case for the
simple reason that in the affidavit-in-counter filed by the respondent- F
State it has been categorically stated that while passing the impugned
order of compulsory retirement the officers concerned were guided by
the report dated September 19, 1987 submitted by the Deputy
Development Commissioner, Dumka who stated in his report that the
appellant was responsible for the grave and serious financial irregu-
larities resulting in financial loss to the State Government, without G
giving any opportunity of hearing and without intimating the allega-
tions to the appellant before forming his opinion. The said report was
taken into consideration and memorandum in question was issued on
October 26, 1988 by the Additional Secretary, Industries Department,
Government of Bihar wherein it has been clearly stated that the
impugned order of compulsory retirement was made as the said mis- H
690 SUPREME COURT REPORTS [1990] 2 S.C.R.
A conduct on the part of the appellant tarnished the image of the
Government in the public. This categorical statement made in the
,...,
affidavit-in-counter clearly proves that the basis of making the order of
compulsory retirement of the appellant from the service is the ---
aforesaid report of the Deputy Development Commissioner,, Dumka
referred to hereinbefore. In such circumstances, it is futile to argue
B
that the order of compulsory retirement being couched in an innocu-
ous language without causing any stigma is unassailable.
It is pertinent to mention in this connection the case of Shyam
Lal v. The State of U.P. & Anr., [1955] 1 SCR 26 wherein it has been
held by the Constitution Bench that:
c
"A compulsory retirement under the Civil Services (Clas-
sification, Control and Appeal) Rules, does not amount to
-
dismissal or removal within the meaning of Article 311 of
the Constitution and therefore, does not fall within the
provisions of the said Article."
D
"There is no such element of charge or imputation in the
case of compulsory retirement. The two requirements for
compulsory retirement are that the officer has completed
25 years' service and that it is in the public interest to
dispense with his further services. It is true that this power
E of compulsory retirement may be used when the authority
exercising this power cannot substantiate the misconduct
which may be the real cause for taking the action but what
is important to note is that the directions in the last
sentence in Note 1 to Article 465-A make it abundantly
clear that an imputation or charge is not in terms made a
F condition for the exercise of the power. In other words, a
compulsory retirement has no stigma or implication of mis-
behaviour or incapacity."
It has been further held that:
G "A compulsory retirement does not amount to dismissal or
removal and, therefore, does not attract the provisions of
Article 311 of the Constitution.
In Baldev Raj Chadha v. Union of India and Ors., [1980] 4 SCC
H 321 it was held that:
R.E. SHARMA v. STATE OF BIHAR [RAY, J.] 691
"The whole purpose of Fundamental Rule 56(j) is to weed
A
out the worthless without the punitive extremes covered by
Article 311 of the Constitution. But under the guise of
'public interest' if unlimited direction is regarded accept-
able for making an order of premature retirement, it will be
the surest menace to public interest and must fail for
unreasonableness, arbitrariness and disguised dismissal. B
The exercise of power must be bona fide and promote
public interest."
It has also been observed that:
"An officer in continuous service for 14 years crossing the
efficiency bar and reaching the maximum salary in the scale c
and with no adverse entries at least for five years immedia-
tely before tbe compulsory retirement cannot be com-
pulsorily "retired on the score that long years ago, his
performance had been poor, although his superiors had
allowed him to cross the efficiency bar without qualms." D
In the case of Union of India v. Col. J.N. Sinha and Anr., [1971]
1 SCR 791 it has been observed by this Court that:
"Fundamental Rule 56(i) does not in terms require that
any opportunity should be given to the concerned Govern- E
ment servant to show cause against his compulsory retire-
ment. It says that the appropriate authority has the
absolute right to retire a government servant if it is of the
opinion that it is in the public interest to do so. If that
~-
authority bona fide forms that opinion the correctness of
that opinion cannot be challenged before courts, though it F
is open to an aggrieved party to contend that the requisite
---l opinion has not been formed or the decision is based on
collateral grounds or that it is an arbitrary decision."
I
In Shamsher Singh & Anr. v. State of Punjab, [1975] 1 SCR 814
the appellant Shamsher Sing_h was a Subordinate Judge on probation. G
His Sef\'i\:es were_~rrninllted by the Government of Punjab in the name
of Governor of Pun jab by an order which did not give any r.easons
for thetennination: It has been held that:
"No abstract proposition can be laid down that where the
services of probationer are terminated withont saying any- H
692 SUPREME COURT REPORTS I1990) 2 S.C.R.
A thing more in the order of termination that it can never
amount to a punishment in the facts and circumstances of
the case. If a probationer is discharged on the ground of
misconduct or inefficiency or for similar reason without a
proper enquiry and without his getting a reasonable
opportunity of showing cause against his discharge it may
B
in a given case amount to removal from service within the
meaning of Article 311(2) of the Constitution."
In that case the appellant was asked to show cause why his
services should not be terminated and there were four grounds. One
c was that the appellant's behaviour towards the Bar and the litigant
public was highly objectionable, derogatory, non-cooperative and
unbecoming of a judicial officer. The second was that the appellant
would leave his office early. The third was the complaint of Om
-
Prakash, Agriculture Inspector that the appellant abused his position
by proclaiming that he would get Om Prakash involved in a case if he
D did not cooperate with Mangal Singh, a friend of the appellant and
Block Development Officer, Sultanpur. The fourth was the complaint
of Prem Sagar that the appellant did not give full opportunity to Prem
Sagar to lead evidence. Prem Sagar also complained that the decree-
holder made an application for execution of the decree against Prem
Sagar and the appellant without obtaining office report incorporated
E some additions in the original judgment and warrant of possession.
The appellant showed cause stating that he was not provided with an
opportunity to work under the same superior officer for at least six
months so that independent opinion could be formed about his
knowledge, work and conduct. Thereafter, the appellant received a
letter from the Deputy Secretary to the Government addressed to the
F Registrar, Punjab and Haryana High Court that the services of the
appellant had been terminated. It has been held that in the facts and
circumstances of the case it is clear that the order of the termination of
the appellant, Shamsher Singh was one of punishment. The authorities
were to find out the suitability of the appellant. The order of termina-
tion is in infraction of Rule 9 which makes it incumbent upon the
G authority that the services of a probationer can be terminated on
specific fault or on account of unsatisfactory record implying unsuita-
bility. The order of termination was, therefore, set aside.
This judgment has been followeu in the case of Anoop Jaiswal
v. Government of India and Anr., AIR 1984 SC 636. It has been
H observed that:
R.E. SHARMA v. STATE OF BIHAR [RAY, l.] 693
) "It is, therefore, now well settled that where the form of
the order is merely a camouflage for an order of dismissal A
for misconduct it is always open to the Court before which
the order is challenged10 go behind the form and ascertain
the true character of the order. If the Court holds that the
order though in the form is merely a determination of emp-
loyment is in reality a cloak for an order of punishment, the B
Court would not be debarred, merely because of the form
of the order, in giving effect to the rights conferred by law
upon the employee."
It has also been observed that:
- "Even though the order of discharge may be non-com- c
mittal, it cannot stand alone. Though the noting in the file
of the Government may be irrelevant, the cause for the
order cannot be ignored. The recommendation of the
Director which is the basis or foundation for the order
should be read along with the order for the purpose of D
determining its true character. If on reading the two
together the Court reaches the conclusion that the alleged
act of misconduct was the cause of the order and that but
for that incident it would not have been passed then it is
inevitable that the order of discharge should fall to the
ground as the appellant has not been afforded a reasonable E
opportunity to defend himself as provided in Art. 311(2) of
the Constitution."
On a consideration of the above decisions the legal position that
now emerges is that even though the order of compulsory retirement is
couched in innocuous language without making any imputations F
against the government servant who is directed to be compulsorily
retired from service, the Court, if challenged, in appropriate cases can
lift the veil to find out whether the order is based on any misconduct of
the government servant concerned or the order has been made bona
fide and not with any oblique or extraneous purposes. Mere form of
the order in such cases cannot deter the Court from delving into the G
basis of the order if the order in question is challenged by the con-
cerned government servant as has been held by this Court in Anoop
Jaiswal's case. This being the position the respondent-State cannot
defend the order of compulsory retirement of the appellant in the
instant case on the mere plea that the order has been made in accor-
dance with the provisions of Rule 74(b)(ii) of the Bihar Service Code H
694 SUPREME COURT REPORTS l 1990] 2 S.C.R.
which prima facie does not make any imputation or does not cast any
A stigma on the service career of the appellant. But in view of the clear
and specific averments made by the respondent-State that the
'
-·-~-
impugned order has been made to compulsorily retire the appellant
from service under the aforesaid Rule as the appellant was found to
have committed grave financial irregularities leading to financial loss
B to .the State, the impugned order cannot but be said to have been made by
way of punishmeni. As such, such an order is in contravention of
Article 311 of the Constitution of India as well a5 it is arbitrary as it
violates principles of natural justice and the same has not been made
bona fide.
In the premises aforesaid we hold that the impugned order has
c not been made bona fide but for collateral purposes and on extraneous
consideration by way of punishment. The impugned order is, there-
fore, illegal and unwarranted and so it is liable to be quashed and set
aside. We, therefore, allow the appeal and set aside the impugned
order. We further direct the resp0ndents to reinstate the appellant in
D service forthwith with full back wages. The respondents will pay costs
to the appellant.
N.P.V. Appeal allowed.
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