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Kapoorchand Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 253 of 1959
Judge
Reported inAIR1962Raj258
ActsRajasthan Service Rules, 1951 - Rule 244(2); Constitution of India - Article 311(2)
AppellantKapoorchand
RespondentState of Rajasthan
Appellant Advocate J.P. Jain, Adv.
Respondent Advocate R.C. Chatterjee, Dy. Govt. Adv.
DispositionPetition allowed
Cases ReferredP.L. Dhingra v. Union of India
Excerpt:
- - 4 and 5) dated the 12th july, 1955. the first charge was that while the petitioner was working in the jagir department, he had failed to account for certain articles in the stores which were under his charge, and, therefore, he was guilty of misappropriating them. the second charge was that while the petitioner was serving in the jagir department, he had failed to bring to the notice of the authorities concerned certain decrees in favour of thikana khohra with the result that the execution of those decrees had become barred by time and that the state, which bad resumed that jagir, had been put to loss. 11 dated the 3rd march, 1959. anintimation was then sent to the petitioner that the government had considered his appeal and it was satisfied that there were sufficient and valid.....modi, j. 1. this writ application is directed against an order of the collector, alwar, dated 29-7-1958, by which the petitioner kapoorchand was compulsorily retired under rule 244(2) of the rajasthan service rules, 1951 (hereinafter called the rules) which order was confirmed on appeal by the commissioner ajmer and finally by the state government2. the material facts may shortly be stated as follows. the petitioner was an employee of the covenanting state of alwar as it then was and on the integration of that state into rajasthan, he worked as a cashier (clerk) in tehsil alwar in 1951. it was found that there was some shortage of cash under his charge and further some other accusations were also raised against him which related to his service earlier in the jagir department where he.....
Judgment:

Modi, J.

1. This writ application is directed against an order of the Collector, Alwar, dated 29-7-1958, by which the petitioner Kapoorchand was compulsorily retired under Rule 244(2) of the Rajasthan Service Rules, 1951 (hereinafter called the Rules) which order was confirmed on appeal by the Commissioner Ajmer and finally by the State Government

2. The material facts may shortly be stated as follows. The petitioner was an employee of the Covenanting State of Alwar as it then was and on the integration of that State into Rajasthan, he worked as a cashier (clerk) in Tehsil Alwar in 1951. It was found that there was some shortage of cash under his charge and further some other accusations were also raised against him which related to his service earlier in the Jagir Department where he continued to work up till the 14th July, 1950. The petitioner was served with a charge-sheet. He denied the allegations made against him. The Collector, Alwar, found that the petitioner was guilty of negligence only and directed his re-instatement by an order dated the 29th November, 1952 (Ex. 3), though he was allowed to draw only half of his pay during his period of suspension. The case of the petitioner is that he had preferred an appeal against that order and that the same is still pending before the Commissioner.

Curiously enough, it is not mentioned in the application as to when this appeal was filed nor has a copy of the memorandum of appeal been placed on this record. In July, 1955, while the petitioner worked as Reader to the Naib Tehsildar, Lachhmangarh, he was again served with two charge-sheets (Exs. 4 and 5) dated the 12th July, 1955. The first charge was that while the petitioner was working in the Jagir Department, he had failed to account for certain articles in the stores which were under his charge, and, therefore, he was guilty of misappropriating them. The second charge was that while the petitioner was serving in the Jagir Department, he had failed to bring to the notice of the authorities concerned certain decrees in favour of Thikana Khohra with the result that the execution of those decrees had become barred by time and that the State, which bad resumed that Jagir, had been put to loss.

The petitioner denied these charges. It appears that by his note dated the 10th July, 1958 (Ex 8), the Additional Collector, Alwar, was of the opinion that the petitioner was guilty of having lost certain articles under his charge. He proposed that he should pay Rs. 114-1-0 as the price of the articles not accounted for by him (vide charge 1) and further that he had also allowed the decrees in favour of Thikana Khotra while it was under the Court of Wards to become barred by time (vide charge 2). In this note, reference was made to yet another complaint against the petitioner about his misbehaviour with the Medical Officer Thenagazi, but no definite finding was given about this. Under these circumstances, the Additional Collector proposed that as the petitioner had completed 25 years' service, he be compulsorily retired.

The Collector approved the proposal vide his order dated the 29th July, 1958, which is assailed before us. This order reads as follows:

'Office Order.

An enquiry ,was held against Shri Kapoor Chand Jain L. D. C. Tehsil Thenagazi ExAhalmadjagir, Alwar, in connection with the loss of Jagir stores and non-execution of decrees of the Court of Wards. He was charge-sheeted and his explanation obtained.

The charges framed against him and explanation furnished by him in defence were gone through carefully and it is hereby ordered that Shri Kapoor Chand is responsible for both the faults. A sum of Rs. 114-1-0 only being the cost of the stores lost by Shri Kapoorchand is therefore, recoverable from him. His continuance in service is also not considered in the public interest.

Sd/- Collector, Alwar'.

It may be mentioned at this place that the Collector Alwar had by his letter No. 930/E and A/K (57) 57 dated the 5th September, 1958 (Ex. 14) written to the Commissioner Ajmer that as a result of certain enquiries made in a series of complaints against the petitioner, his continuance in service was not in public interest and that as he had put in 26 years of service, it would be in his own interest if he was retired under Rule 244(2) of the Rules, and, therefore, he solicited necessary orders in that behalf.

The Commissioner, by his letter No. 1324/Estt-1-1654 dated 27th November, 1958 (Ex. 15) apparently turned down this proposal saying that as there were a number of complaints against the petitioner, these should be properly inquired into and appropriate disciplinary action be taken against him. However, the order passed by the Collector dated the 29th July, 1958, seems subsequently to have been taken as a final order against the petitioner by everyone concerned including the Commissioner and the former filed an appeal against it before the Commissioner. The Commissioner dismissed this appeal by his order dated the 5th January, 1959 (Ex. 10). The operative part of this order reads as follows:

'I find no reason to interfere with the orders of the Collector, Alwar, and hereby confirm that Shri Kaooor Chand be retired compulsorily under Article 244(2) of the Rajasthan Service Rules'.

Against this order, the petitioner went in appeal to the State Government which was also dismissed vide Ex. 11 dated the 3rd March, 1959. Anintimation was then sent to the petitioner that the Government had considered his appeal and it was satisfied that there were sufficient and valid grounds for his retirement under Rule 244(2) of the Rules and consequently the order of the Commissioner, Ajmer, dated the 5th January, 1959, was affirmed. Hence the petitioner has filed the present writ application impugning the validity of the order of his compulsory retirement.

3. The application has been opposed on behalf of the State.

4. The petitioner has attacked the order of his compulsory retirement on two main grounds. The first is that the Collector had no authority or jurisdiction to order his compulsory retirement under Rule 244(2) of the Rules. The second is that the order is a penal one, and, therefore, the petitioner was entitled to have a proper inquiry made into the allegations levelled against him and was also entitled to an adequate opportunity of defence in that connection which all had been denied to him, and, therefore, the order was violative of Article 311 of the Constitution and should be set aside.

5. We shall consider both these grounds in order.

6. As to the question whether the Collector had the jurisdiction to compulsorily retire the petitioner, we regret to have to say that the learned Deputy Government Advocate has not been able to satisfy us that he had such power. Rule 244(2) of the Rules reads as follows:

'Government retains an absolute right to retire any Government servant after he has completed 25 years qualifying service without giving any reasons and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in public interest to dispense with further service of a Government servant'.

This is how the rule also stood in 1958 with which year we are concerned. According to this rule, the competent authority to retire was the Government. It was contended on behalf of the State that the word 'Government' should be interpreted to mean the authority who has the power to remove or dismiss the Government servant concern-fed from service under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950, and it was, therefore, submitted that the Collector being the competent authority to dismiss the petitioner, was also competent to retire him compulsorily provided of course the other conditions in the rule were fulfilled.

Our attention was invited in this connection to a circular letter No. F. 24(55) Apptts (A)/57 dated the 27th August, 1957 (Ex. 33) issued by the Appointments (A) Department of the State, by which the attention of all the appointing authorities was drawn to the effect that the rule should be utilised judiciously by them in weeding out persons against whom there were no specific cases for disciplinary action but whose continuation in service was clearly not in public interest. All appointing authorities were, therefore, required to draw up on the 1st of July every year, beginning with the 1st July, 1957, a list of persons who were due to complete 25 years qualifying service on the 31st December of the same year and to examine such cases carefully. It was observed that while the procedure provided in the rule should be followed to compulsorily retire persons whose continuation was not in the public interest, the rule should be used with care and caution as the procedure contemplated under the rule would have the effect of curtailing the working life of officials who were fairly advanced in life.

On the other hand, it has been strenuously contended on behalf of the petitioner that a Collector could not be equated with the State Government. It was further submitted that this was a very special power which the Government retained in its own hands and that this power was not, capable of being exercised by any subordinate authority unless it was so authorised by special delegation by the Government. It may be noted in this connection that 'competent authority' under these Rules is defined as follows:

'Competent authority.--In relation to the exercise of any power means the Governor or any authority to which the power is delegated by or under these rules.

A list of authorities which exercise the powers of Competent Authority under the various rules is given in Appendix IX to these rules'.

We may also point out in this connection that Article 153 of the Constitution lays down that there shall be a Governor for each State. Article 154 then provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. Then Article 166 provides, inter alia, that the Governor shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion. The position, therefore, having regard to the provisions to which we have drawn attention above, appears to us to be that unless the Governor has specifically delegated his powers in the matter of the exercise of the powers under Rule 244(2) to any other subordinate authority, this power could not lawfully be exercised by any one else.

7. Now, a reference to Appendix IX of the Rules at the relevant time in 1958 shows that the Governor or the State Government had not delegated its power in this regard to any subordinate authority. We may further point out in this connection that this position was subsequently changed inasmuch as this power was delegated to the Government in the Administrative Department vide Finance Department Order No. F.7A(43) (FB)(A) Rules/57 dated the 3rd May, 1960 (Ex. 34). This would clearly show that the power of compulsory retirement under the provision in question stood properly vested in the Governor only until the 3rd May, 1960. The position has indeed been made still clearer by an order of the Governor issued under the signature of the Secretary, Finance Department dated the 13th March, 1961, which we have marked as Ex. R-25. This order reads as follows:

'Order

No. F.7A(43)FD-A(R)/57 Dated Jaipur the 13th March, 1961

In pursuance of instructions contained in para 3 of Appointments Department Circular No. F2A(35) Apptts 'A'/57 dated 27-8-57, certain Government servants have been retired by the appointing authorities under Rule 244(2) of the Rajasthan Service Rules. The above order did not envisage delegation of powers of making compulsory retirements to the appoinfing authorities other than Government as under the above rule Government alone can exercise the powers of retiring an employee. It only laid down the procedure to be followed by the appointing authorities for making compulsory retirements under Rule 244(2) of the Rajasthan Service Rules. Appointments Department in their Circular No. F2A (55) Apptts 'A'/57 dated 17-1-1959 clarified this position and restricted the scope of compulsory retirements to gazetted officers only.

With a view to regularise the retirements already made by the Appointing authorities in pursuance of the Appointments Department Circular of 27-8-1957, the Governor has been pleased to order that such retirements made may be deemed to have been made under the orders of the Government.

In supersession of the Finance Department Orders Nos. F7A(43)FB-A/R/57 dated 3-5-1960, 1-7-1960 and 9-8-1960, the Governor has been pleased to delegate the following powers:

Nature of power

Authority to which thepower is de-legated

Extent of power

Power to re. tire Governmentservants who have completed 25 years qualifying service.

Government in theAdministrative Department.

Full powers providedthat the procedure laid down in Appointments 'A' Department Circular No. P 24(55) Apptts 'A'/57 dated 18-8-58, read with Apptts. 'A' Deptt. Circular dated17-11-58 is followed in respect of Gazetted Officers.

Board of Revenue.

In respect ofTehsildars provided the procedure laid down in Apptts. 'A' Deptt. CircularNo, F24 (55) Apptts 'A'/57 dated 18-8-58 read with Apptts 'A' Deptt. Circulardated 17-11-58 is followed.

Inspector of General ofPolice.

In respect ofInspectors provided that the procedure laid down in Apptts. 'A' Deptt.Circular. No. F24 (55) Apptts(A)/57 dated 18-8-58 read with Apptts 'A' Deptt. Circular dated 17-11-58 isfollowed.

Chief Justice of theKajas-than High Court.

In respect of members ofthe Ministerial staff of the Civil and Sessions Courts. By order of the GovernorSd. Ram SinghSceretary, Finance (R)Deptt.

8. This order makes it absolutely clear that the Government Circuler dated the 27th August, 1957 (Ex. 23) never envisaged any delegation of powers to make, compulsory retirements to the appointing authority which power only vested in the Government as, to use the words of the order itself 'under the above rule, Government alone can exercise the powers of retiring an employee'. It was further explained that that circular only laid down the procedure to be followed by the appointing authorities in the matter of making compulsory retirements under Rule 244(2). The second point to note is that the order recognised that certain retirements had already been made by the appointing authorities in pursuance of the circular of 1957 erroneously and it was in respect of these that it was ordered that such retirements be deemed to have been made under the orders of the Government,

9. A question at once arises whether this order in so far as it retropectively validates retirements made erroneously by authorities who were not competent to do so can be held to be valid in law. On having given our careful and anxious consideration to this question, we are constrained to hold that the order in question does not and cannot lawfully possess any retrospective force. In this connection, we would invite attention to a Bench decision of this Court in Maharaja Shri Umaid Mills, Ltd. v. Industrial Tribunal, Jaipur, ILR (1955) 5 Raj 214: (AIR 1954 Raj 274), the principle of which governs the case before us. The material facts of this case were these. By a notification dated the 2nd June, 1953, the Government of Rajasthan constituted an Industrial Tribunal in this State and appointed S as the sole member thereof.

The appointment was sanctioned for the financial year 1953-54, that is, up to the 31st March, 1954. S continued to work beyond the last-mentioned date although the Government did not extend his term before its expiry. On the 5th June, 1954, the Government issued a Notification by which it deleted certain words from the Notification of 2nd June, 1953, to wit, 'the appointment is at present sanctioned for the financial year 1953-54'. It was contended that as S's term had not been extended before the 31st March, 1954, his term came to an end with that date and he had no jurisdiction to continue proceedings after that date. It was in these circumstances that the effect of the notification of the 5th June, 1954, came, up for consideration, it having been urged on behalf of the State that this was an amendment of the notification of the 2nd June, 1953, and would take effect from that date.

Reliance was also placed in that connection on Section 21 of the General Clauses Act (Act No. 10 of 1897), which provides that a power to issue notifications, orders, rules, or bye-laws under the Act or Regulation includes a power exercisable in the like manner and subject to the like sanction and conditions to add to, amend, vary or rescind any notifications, orders rules or bye-laws so issued. Wanchoo, C.J. who delivered the judgment of the Court repelled this contention and in doing so he placed reliance on Strawboard . v. Gutta Mill Workers' Union, AIR 1953 SC 95 and laid down that Section 21 of the General Clauses Act (or as we should like to say now, Section 23 of the Rajasthan General Clauses Act of 1955, which for all practical purposes is an identical provision) does not permit that the power of amendment conferred on the Government thereunder may be so exercised as to have retrospective operation, and, therefore, the order of amendment could not have retrospective effect though it could certainly operate prospectively.

That being so, it was held that the amending Notification of the 5th June, 1954, was invalid in so far as it sought to validate the proceedings between the 1st April, 1954 and the 4th June, 1954. The principle of this case, in our opinion, fully covers the case before us. The resultant position, therefore, inevitably boils down to this that the Governor's notification of the 13th March, 1961 (Ex. R-25) cannot validate compulsory retirements made by authorities who were incompetent to do so prior to the 13th March, 1961. That being so, we cannot but hold that the Collector in the present case had no authority to order compulsory retirement of the petitioner in 1958 as he did, and, therefore, the order in question is void and of no effect in law,

10. Even so, the learned Deputy Government Advocate contended that we should not give any relief to the petitioner on this score because the order of compulsory retirement in this case on appeal by the petitioner had been adjudged to be correct by the State Government itself, and therefore, we should uphold the order as being competent. We are not prepared to accept this argument as correct. For it is one thing to decide a matter in the consciousness that one is primarily responsible for it and quite another to determine that the act of another officer who had the primary responsibility to deal with a case has properly dealt with it. In Suraj Narain v. N. W. F. Province, AIR 1942 FC 3 which was a case of dismissal (but that hardly matters), it was contended that even though the Deputy Inspector General of Police had dismissed the plaintiff who was a Sub-Inspector of Police, he had appealed to the Inspector General of Police against the order of dismissal, and, therefore, the rejection of that appeal was equivalent to a dismissal from office by the Inspector General of Police himself whose authority to dismiss the plaintiff was unquestionable.

The learned Judges repelled this contention and observed that in theory as well as in practice there was a well-marked difference between a decision given by an officer who acted in the consciousness that he was primarily responsible for the investigation and decision of the case and the act of one who was expected only to satisfy himself that another officer who had the primary responsibility had properly dealt with the case. It was further observed that this distinction was one of substance and was not merely formal or technical. We are in complete agreement with this principle, if we may respectfully say so.

11. This brings us to the second contention raised on behalf of the petitioner that the order passed against him by the Collector was not in its essence an order under Rule 244(2) of the Rules but was virtually an order removing him from service for proved charges of misconduct, and, therefore, it was violative of Article 311(2) of the Constitution as well as of Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950, which were in force at the relevant time inasmuch as no proper inquiry had been made against him and no reasonable opportunity of defence had been afforded to him as required by law.

12. Now, there is authority of our own Court Ganga Ram v. State of Rajasthan, ILR (1961) 11 Raj 371 that a compulsory retirement under Rule 244(2) of the Rules does not amount to a penalty within the meaning of Rule 14 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, and, therefore, it is not necessary to hold an inquiry as contemplated by Rule 16 of those rules in order to compulsorily retire a Government servant under Rule 244(2) and further that an order passed under the last-mentioned rule does not attract the provisions of Article 311(2) of the Constitution.

The view taken in Gangaram's case, ILR (1961) 11 Raj 371, receives full support from the decision of their Lordships of the Supreme Court in Shyamlal v. State of U.P. AIR 1954 SC 369. It was laid down in this case that compulsory (retirement was different from removal or dismissal and that the requirements for such retirement were (1) that the officer had completed 25 years of service and (2) that it was in the public interest to dispense with his services. It was further observed that it was true that the power of compulsory retirement might be used when the authority exercising this power could not substantiate the misconduct which might be the real cause for taking the action against him but what deserved to be noted was that the imputation or charge was not in terms made a condition for the exercise of the power.

Their Lordships summed up the position by sying that 'compulsory retirement has no stigma or implication of misbehaviour or incapacity' and further that while dismissal or removal always involved loss of benefit already earned, compulsory retirement under this rule did not; for there was no diminution of the accrued benefits, and in this view of the matter held that the provisions of Article 311 of the Constitution or of Rule 55 of the Indian Civil Services (Classification, Control and Appeal) Rules would not be attracted into application.

12a. It may be noted, however, that the Rules which were in force in 1958 with which period we are concerned were the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950 which appear to us to be somewhat different from the Rules of 1958 on which the decision of this Court in Gangaram's case, ILR (1961) 11 Raj 371 (supra) was based as well as from Rule 55 of the Indian Civil Services Rules which have been referred to in Shyamlal's case, AIR 1954 SC 369, (supra) and under Rule 15(vi) of these rules, it appears that compulsory retirement before the age of superannuation amounted to a removal and was, therefore, a penalty within the meaning of that clause. Then Rule 16 provided, inter alia, that no order imposing the penalty of dismissal, removal or reduction shall be passed on a member of a service unless the procedure prescribed under that rule was complied with. According to this procedure, the member of the service concerned must have been informed in writing of the grounds on which it was proposed to take action against him and these were to be reduced in the form of a definite charge or charges and accompanied by a statement of the allegations on which each charge was based and of any other circumstances which were contemplated to be taken into consideration against him.

It was further provided under this rule that the person concerned must then be required within a reasonable time to put in a written statement of his defence and also to state whether he desires to be heard in person and if he so desires or the authority concerned so directs, then oral evidence should be recorded and the person charged shall be entitled to cross-examine the witnesses giving evidence against him and also to offer and examine his own witnesses. Thereafter, if the charges are held to be proved against the member of the service concerned and it is desired to impose the penalty of dismissal, removal or reduction in rank he must be further given an opportunity under Article 311 to show cause against the punishment which is intended to be meted out to him and then a final order should be passed after all the relevant material is taken into consideration. H the petitioner was to be governed by these Rules, as we think there was no other alternative at the time, he should have been given an opportunity of defending himself according to Rule 16, the gist of which we have set out above, even though the point is not free from a certain element of doubt or difficulty as to whether such action would even so fall within the mischief of Article 311 of the Constitution. Perhaps, it would not. And we leave this aspect of the matter at that.

13. It has been strenuously pressed, however, that the order which is impugned before us is not an order of compulsory retirement under Rule 244(2) simpliciter but carries a stigma with it inasmuch as it avowedly says that there were certain charges against the petitioner and that those charges stood proved. An order like this, it is contended, certainly carries a stigma with it and is definitely distinguishable from the case of Shyamlal before the Supreme Court, AIR 1954 SC 369 or of Gangaram before our own Court, ILR (1961) 11 Raj 371. It is further contended that by this very order of the Collector, the petitioner was called upon to pay a sum of Rs. 114/1/- as the price of certain articles which were supposed to be in his charge but for which he had not properly accounted and that even if Rule 16(a) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950, did not in terms apply to that part of the order, he was entitled to a proper and adequate inquiry in accordance with the principles of natural justice before such a payment could be exacted from him.

14. We have given our earnest consideration to these contentions and have arrived at the conclusion that they are not without force. As it appears to us, one of the tests whether an order under Rule 244(2) does not amount to a punishment in the nature of removal is whether it carries a stigma with it or not. If it does, then it would amount to removal within the meaning of Article 311(2). We may make it clear that when we say so, we do not mean that a stigma may not be the motive of the order; but whether that is so or not, the stigma should not be pressed into service as a basis for such action. We have already set out the order of the Collector in extenso. That order clearly holds the petitioner responsible for the two allegations made against him, and it directs the recovery of a certain sum from the petitioner and it also goes on to say that his continuation in service is not considered proper in public interest. Now, looking at the substance of this order, we find it extremely difficult to hold that this order was passed except by way of punishment for charges which were held to be proved. And if that was so, as we think it was, on a balance of all the considerations, then a proper inquiry against the petitioner must have been made and adequate opportunity afforded to him to defend himself.

It is not the case of the respondent State that such an inquiry was at all made. In support of the view which we have felt persuaded to accept, we would refer to the decision of their Lordships of the Supreme Court in Union of India v. Jeewan Ram, AIR 1958 SC 905. In this case, the plaintiff was a permanent booking clerk in the service of a railway company. He was charge-sheeted for certain misconduct and was directed to show cause why he should not be dismissed from service. He submitted an explanation denying the allegations. Thereafter, an order was passed against him that he would be given one month's pay in lieu of notice of removal from service. In the order, it was stated that the plaintiff was deprived of half of his pay during the period of his suspension, and the order was headed as 'Notice of imposition of penalty of removal from service under item 8 of Rule 1702'. The plaintiff was also deprived of his dearness allowance and house rent allowance during the period of suspension. It was held by their Lordships that as the order of removal passed against the plaintiff was certainly of a penal nature, that is, by way of punishment and as it clearly contravened the provisions of Section 240(3) of the Government of India Act, 1935, (of which Article 311(2) is a counterpart in the Constitution), it was illegal and ineffective.

Their Lordships further made it clear that the mere fact that the order talked of one month's pay in lieu of notice, did not mean that it was an order under Rule 148(3) and (4) of the Railway Establishment Code. It was observed in this case that if the termination of service was founded purely on the right flowing from contract or the service rules, then, prima facie, the termination was not a punishment and carried with it no evil consequences whatsoever and therefore Article 311 was not attracted; but even where the Government had such a right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government might, nevertheless, choose to punish the servant and it the termination of service was sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it was a punishment and the requirements of Article 311 must be complied with.

Reliance was placed in coming to this conclusion on an earlier decision of their Lordships in P.L. Dhingra v. Union of India, AIR 1958 SC 36. It was pointed out in this case that a termination of the service of a Government servant on grounds of misconduct, negligence or inefficiency would be a punishment and therefore a dismissal or removal within Article 311. This may be so where he may be visited with evil consequences of loss of pay and allowances, and other service benefits. This case also appears to us to recognise that the result would be the same where an order put an indelible stigma on the officer concerned, which is bound to affect his future career. The test for determining whether the order of compulsory retirement would fall within Article 311(2) according to this decision would be whether such an order has been passed against the servant concerned avowedly as a matter of punishment and/or it would visit him with any penal consequences.

It has also been held in this case that the use of a particular expression by which the services are terminated cannot be held to be conclusive and that the order may amount to a removal within the meaning of Article 311(2) if in spite of the user of an innocuous expression, it visits the person aggrieved with penal or evil consequence which would put a stigma on him even after his service is terminated.

15. Judging the present case by the test propounded above, we feel disposed, on the whole, to come to a definite conclusion that the order of compulsory retirement which is impugned before us, although it was stated to be made under Rule 244(2) of the Rules, really amounted, in its essence, to a penal order made for charges concluded to have been proved but for which admittedly there was no inquiry or decision in accordance with the procedure prescribed by law.

16. The result is that, for the reasons mentioned above, we hold that the order of the Collector Alwar dated the 29th of July 1958, cannot besustained in law and must be quashed and alongwith it must also fall the orders made in appealsby the Commissioner and the State Government.We should like to make it clear that this orderwill not stand in the way of the Governmentmaking a fresh inquiry into the conduct of thepetitioner in accordance with law. Under the circumstances, we would make no order as to costs.


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