STATE OF U.P. AND ANR.versusABHAI KISHORE MASTA

A                         STATE OF U.P. AND ANR.
                                    v.
                          ABHAI KISHORE MASTA

                              DECEMBER I, 1994

B                  [B.P. JEEVAN REDDY AND S.C. SEN, JJ.]

        SERVICE LAW-Disciplinary Proceedings-Order of punishment
    made prior to the date of decision in Union of India v. Ramzan Khan, AIR
    (1991) SC 47 I-Non-Supply ofenquiry report does not vitiate enquiry.

C       FUNDAMENTAL RULE 56-J-Compul:fory Retirement-Order made
    during the pendency of disciplinary proceedings-Whether necessarily
    penal-Held, No.

         While the respondent was working as an Executive Engineer he
    was suspended pending enquiry into certain charges. While the enquiry
D   was pending, the respondent was retired compulsorily under
    Fundamental Rule 56-J. While the writ petition filed against the order
    of compulsory retirement was pending, final orders were passed in
    disciplinary proceedings on 18.7.1990, imposing the punishment of
    reduction in rank, to be given effect to in case the order of compulsory
    retirement was set aside.
E
        The High Court following an earlier decision of the same High
    Court in JN. Bajpai v. State of UP. and Ors., (1990) 8 LCD 149 quashed
    the order. of compulsory retirement on the ground that tlie order
    having been passed during the pendency of disciplinary proceec:Ungs
    must be deemed to be penal hi nature. The Qrder of punishment of
F   reduction in rank was quashed on the ground of non-supply of enquiry
    report, interalia following the decision of the Supreme Court in Union
    ofIndia v. Ramzan Khan, AIR (1991) SC 471.

        Allowing the appeal, this Court

         HELD : 1.1. The order of the High Court quashing the order of
G   punishment on the ground of non-supply of enquiry report was liable to
    be set aside on the ground that where the order of punishment was
    made earlier to the. date of the decision in Union of India v. Ramzan
    Khan, AIR (1991) SC 471, and non-supply of enquiry report did not
    vitiate the enquiry, as held· in Managing Director ECIL Hyd v. D.
    Karunakar, JT (1995] 6 SC 1. (226 G, 227 A]
H
                                    224
                      STATE OF U.P. v. A. K. MASTA                   225

    1.2. So far as the order of compulsory retirement under A
fundamental Rule 56-J was concerned, the principle enunciated by the
Allahabad High Court in J.N. Bajpai v. State of U.P and Ori, (1990) 8
LCD 149, and followed in the judgment under appeal was
unsustainable in law. Neither as a matter of law oor as an invariable
rule any and every order of compulsory retirement made under
Fundamental Rule 56-J (or other provision corresponding thereto) B
during the pendency of disciplinary proceedings can be held to be
necessarily penal. It may be or it may not be, depending upon the
verification of the relevant record or the material on which the order
was based. [227 CJ

     1.3. In many cases, it may happen that the authority competent to C
retire compulsorily under Rule 56-J and authority competent to impose
the punishment in the disciplinary enquiry are different. It may also be
that the charges communicated or the pendency of the disciplinary
enquiry is only one of the several circumstances taken into
consideration. In such cases it cannot be said that merely because the
order of compulsory retirement is made after the charges are D
communicated or during the pendency of disciplinary enquiry, it is
penal in nature. Merely because the order of compulsory retirement is
couched in innocuous language without making imputations against the
government servant, the court need not conclude that it is not penalin
nature. In appropriate cases the Court can lift the veil to find out
whether, in truth, the order is penal in nature. [227 G, H, 228 A]       E
   J.N. Bajpai v. State of U.P. and Ors., [1990) 8 LCD 149 (All):
Overruled.

    State of U.P. v. Madan Mohan Nagar, [1969) 2 SCR 333
(Constitution Bench); Ram Ekhal Sharma v. State of Bihar and Anr.,
[1990] 2 SCR 679; Baikuntha Nath Das and Anr. v. Chief District Medical     F
Officer and Anr., [1992) 1 SCR 836; Union ofIndia v. J.N. Sinha, [1971) 1
SCR 791, relied on.

    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8497/94.

    From the Judgment and Order dated 9-4-93 of the High Court of G
Allahabad in W.P. No. 1518/90.

    Gaurab Banerjee and R. B. Mishra for the Appellant.

    M.P. Jha, Anil K. Chopra and D. K. Garg for the Respondent.

    The Judgment of the Court was delivered by                              H
A
    226                  SUPREME COURT REPORTS             [1994] SUPP. 6 S.C.R

         B.P. JEEVAN REDDY, J. Leave granted. Heard counsel for both the
                                                                                  rl
    parties.

         The appeal is directed against the judgment of a Division Bench of the
    Allahabad High Court (Lucknow Bench) allowing the writ petition filed by
    the respondent.
B
         While the respondent was working as an Executive Engineer at Etawah
    he was suspend"d pending enquiry on 13.10.1983 into certain charges. He
    challenged the said order by way of writ petition in the Allahabad High
    Court which was dismissed. Though the enquiry commenced, it was not
    concluded by the year 1988 when the respondent filed another Writ Petition
c   (No. 4116 of 1988) _challenging the continuation of the order of suspension
    pending enquiry. The High Court suspended the order of suspension
    pending enquiry on August 8, 1988.

         While the said enquiry was pending, the respondent was retired
    compulsorily under Fundamental Rule 56-J by an -order of the Government
D   dated 28th December, 1989. The respondent then filed Writ Petition 1518
    of 1990 questioning the same. While this writ petition was pending before
    the High Court, final orders were passed in the aforementioned disciplinary
    proct;edings on 18th July, 1990, imposing the punishment of reduction in
    rank, to be given effect to the case, the order of compulsory retirement is
E   set aside. Thereupon the respondent amended his Writ Petition (1518 of
    1990) to question the order of punishment as w.ell. The main ground urged
    in support of the attack against the order of punishment was the failure of
    the disciplinary authority to furnish a copy of the enquiry report to him
    before imposing the punishment.

F        The High Court allowed the writ petition and quashed the ord~r of
    compulsory retirement made under Fundamental Rule 56-J on the ground
    that the order having been passed during the pendency of disciplinary
    proceedings must be deemed to be penal in nature. This was so held
    following an earlier decision of the said Court in J.N. Bajpai v. State of
    U.P. and Ors., (1990] (8) LCD 149. So far as the order of punishment is
G   concerned it was quashed on the ground of non-supply of enquiry report,
    purporting to follow the decision of this Court in Union of India v. Ramzan
    Khan, AIR (1991) SC 471. The High Court observed that it shall be open to
    the disciplinary authority to furnish a copy of the enquiry report to the
    respondent and proceed with the enquiry from that stage onwards. The
H   decision of the Tribunal on both the grounds is questioned in this Appeal.
          STATE OF U.P. v. A. K. MASTA [B.P. JEEVAN REDDY, J.]           227

     We shall first take up the quashing of the order of punishment made in A
the disciplinary enquiry. The decision in Mohd Ramzan Khan has been
explained by a Constitution Bench of this Court in Managing Director,
ECIL, Hyderabad v. B. Karunakar, JT (1995] (6) Judgment Today SC l. It
has been held that where the order of punishment is made earlier to the date
of the decision in Ramzan Khan non-supply of enquiry report does not
vitiate the enquiry. Following the said decision, the order of the High Court B
quashing the punishment on the said ground is set aside.

     So far as the order of compulsory retirement under Fundamental Rule
56-J is concerned, we are of the opinion that the principle enunciated by the
High Court in JN. Bajpai and followed in the Judgment under appeal is
unsustainable in law. It cannot be said as a matter of law nor can it be stated C
as an invariable rule, that any and every order of compulsory retirement
made under Fundamental Rule 56-J (or other provision corresponding
thereto) during the pendency of disciplinary proceedings is necessarily
penal. It may be or it may not be. It is a matter to be decided on a
verification of the relevant record or the material on which the order is
based.                                                                          D
      In the State of Uttar Pradesh v. Madan Mohan Nagar, (1969] (2) SCR
333 it has been held by a Constitution Bench that the test to be applied in
such matters is "does the order of compulsory retirement cast an aspersion
or attach a stigma to the officer when it purports to retire him
compulsorily?" It was observed that if the charge or imputation against the E
officer is made the condition of the exercise of the power it must be held to
be by way of punishment- otherwise not. In other words if it is found that
the authority has adopted an easier course of retiring the employee under
Rule 56-J instead of proceeding with and concluding the enquiry or where
it is found that the main reason for compulsorily retiring the employee is
the pendency of the disciplinary proceeding or the levelling of the charges, F
as the case may be, it would be a case for holding it to be penal. But there
may also be a case where the order of compulsory retirement is not really or
mainly based upon the charges or the pendency or disciplinary enquiry. As
a matter of fact, in many cases, it may happen that the authority competent
to retire compulsorily under Rule 56-J and authority competent to impose G
the punishment in the disciplinary enquiry are different. It may also be that
the charges communicated or the pendency of the disciplinary enquiry is
only one of the several circumstances taken into consideration. In such
cases it cannot be said that merely because the order of compulsory
retirement is made after the charges are communicated or during the
pendency of disciplinary enquiry, it is penal in nature.                      H
    228                   SUPREME COURT REPORTS               (1994) SUPP. 6 S.C.R

A        It is true that merely because the order of compulsory retirement is
    couched in innocuous language without making imputations against the
    government servant, the Court need not conclude that it is not penal in
    nature. In appropriate cases the Court can lift the veil to find out whether, in
    truth, the order is penal in nature vide Ram Ekbal Sharma v. State of Bihar
    and Anr., [1990](2) SCR 679.
B
        We may mention that even in the case of tennination of a temporary
    employee this Court has adopted the very same tests as are indicated
    hereinabove.

        We may also mention that the grounds on which an order of
C   compulsory retirement can be interfered with has been set out by this Court
    in Baikuntha Nath Das and Anr. v. Chief District Medical Officer,
    Baripada and Anr., [1992] (l) SCR 836 affinning the principles enunciated
    in Union ofIndia v. J.N. Sinha, [1971] (1) SCR 791.

         We are, therefore, of the opinion that the High Court was in error in
D   holding that merely because the order of compulsory reti.rement was passed
    during the pendency of a disciplinary enquiry, it must be necessarily
    deemed to be penal in nature, is unsustainable in law. The Judgment of the
    High Court is accordingly set aside and the 01atter is remitted to the High
    Court to detennine, in the light of the observations made herein, whether
    the order of compulsory retirement is, in truth, penal in nature? There shall
E   be no'order as to costs.

    A.G.                                                          Appeal allowed.