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R. Govindarajulu Vs. the Superintendent of Police and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1982)1MLJ117
AppellantR. Govindarajulu
RespondentThe Superintendent of Police and anr.
Cases Referred and Madan Gopcd v. State of Punjab
Excerpt:
- - he claimed that when the officer has maintained a good record immediately preceding the impugned order, and even according to the respondent when no charge of corruption was involved as against the petitioner, the impugned order had been passed without the required materials and further it was punitive in character. an elaborate consideration of the entire case-law is found in this decision in the light of the counsel for the respondent therein urging that the constitutional position in regard to the order of the impugned nature is not well-settled, in view of the conflicting decisions of the supreme court particularly relating to the observations made in state of uttar pradesh and others v. it was held therein that in respect of termination of service of a probationer, the.....ordert. sathiadev, j.1. w.p. no. 545 of 1979 is filed by the petitioner challenging the order of compulsory retirement passed under fundamental rule 56(d) on 13th october, 1977. as the time of passing of the order, he was functioning as deputy superintendent of police in tamil nadu police service.2. petitioner entered service as a sub-inspector of police on 1st september, 1948, and he attained the age of 50 years on 14th july, 1977. a charge memo, dated 25th february, 1976 was framed under rule 17 (b) of tamil nadu civil services (classification, control and appeal) rules to which he submitted a memorial on 28th february, 1976 to the inspector-general of police stating that he would prefer proceedings being referred to disciplinary proceedings tribunal instead of being tried by.....
Judgment:
ORDER

T. Sathiadev, J.

1. W.P. No. 545 of 1979 is filed by the petitioner challenging the order of compulsory retirement passed under Fundamental Rule 56(d) on 13th October, 1977. As the time of passing of the order, he was functioning as Deputy Superintendent of Police in Tamil Nadu Police Service.

2. Petitioner entered service as a Sub-Inspector of Police on 1st September, 1948, and he attained the age of 50 years on 14th July, 1977. A charge memo, dated 25th February, 1976 was framed under Rule 17 (b) of Tamil Nadu Civil Services (Classification, Control and Appeal) Rules to which he submitted a memorial on 28th February, 1976 to the Inspector-General of Police stating that he would prefer proceedings being referred to Disciplinary Proceedings Tribunal instead of being tried by departmental officers. On 27th May, 1976, he was informed that his request cannot be conceded, as none of the charges against him specifically involves corruption. Therefore the enquiry was directed to be held by the Superintendent of Police, Dharmapuri. Later on it was transferred to the file of the Superintendent of Police, Salem, by an administrative order. On 24th October, 1976, he issued a charge memo, to the petitioner listing out the charges in respect of which he proposed to hold an enquiry.

3. In the meanwhile in G.O. Ms. No. 2749, Home Department, dated 13th October, 1977, the respondent passed the impugned order of compulsory retirement of the petitioner by invoking Fundamental Rule 56 (d) and he was immediately relieved of the post of Deputy Superintendent of Police (Excise), Tljanjavur West. Being aggrieved with the said order, he filed a review petition, and it was dismissed on 20th July, 1978.

4. While so, within 2 months of the order, dated 13th October, 1977, a memo. was issued on 30th December, 1977, by Superintendent of Police, Salem, stating that he intends to proceed with the enquiry on 9th January, 1978 in respect of the charges which were framed earlier to the order of compulsory retirement. On 5th January, 1978, petitioner sent a petition stating that he having been already retired and ceased to be a public servant, the proceedings cannot be continued, but this was not acceptable to the enquiry officer and he replied on 9th January, 1978, stating that as per the Circular of the Government, dated 8th September, 1976, he has to continue the oral enquiry, and that the Deputy Inspector-General of Police, Madras, by communication, dated 27th December, 1977, had also directed the enquiry to be continued. On 17th May, 1978, the petitioner again represented that he can no longer be subjected to the Rules governing Government servants, and therefore the Superintendent of Police, Salem had no jurisdiction to conduct any further enquiry, against a retired, Government servant. Since he persisted in the enquiry to be proceeded with, petitioner agreed to participate in the enquiry, without prejudice to his rights and contentions. The Superintendent of Police, Salem has relied upon Article 351-A of Civil Service Regulations for continuing disciplinary proceedings as against the petitioner, in spite of compulsory retirement, ordered under Fundamental Rule 56(d).

5. Therefore, being aggrieved with the order of compulsory retirement and also of the continuance of the disciplinary proceedings, the petitioner had come forward to file W.P. No. 545 of 1979 challenging the order of compulcory retirement, and W.P. No. 4636 of 1978 to issue a writ of prohibition preventing the conduct of the enquiry by the two respondents therein.

6. In the counter-affidavit filed only in W. P. No. 545 of 1979, it is stated that the Directorate of Vigilance and Anti-Corruption had reported that there is a prima facie case against the petitioner on the five allegations mentioned in paragraph 3 of the counter-affidavit. As the petitioner had been com-pulsorily retired under Fundamental Rule 56 (d) and as 'his conduct and character came to adverse notice only when he was serving as Deputy Superintendent of Police, Directorate of Vigilance and Antif-Corruption, Salem, detachment' the compulsory retirement ordered is justifiable and there is no bar in the continuance of the disciplinary proceedings for the charges which had been pending disposal, when the petitioner was compulsorily retired. It is again reiterated that 'as already stated, the conduct and character of the writ petitioner came to adverse notice warranting his exit from the department' and that though the report of the Directorate of Vigilance and Anti-Corruption do not specify corruption, still serious charges warranting his elimination from service existed being instances of misbehaviour touching his integrity. As the petitioner had been retired compulsorily in public interest under Fundamental Rule 56 (d), no stigma is caused to the petitioner, as he is entitled to 'all the benefits of a retired Government servant'.

7. Mr. V.P. Raman, learned Counsel for the petitioner contends that, if an order of compulsory retirement under Fundamental Rule 56(d) results in any stigma being attached, or after the order is passed proceedings are taken to deprive the benefits assured and to expose the retired public servant to ignominy, aspersions etc., then the order of compulsory retirement deserves to be set aside. His contention is rested on the continuance of the disciplinary proceedings in spite of the order of compulsory retirement under Fundamental Rule 56(d), and when such proceedings are continued by the State, in the minds of the public a firm impression has already been drawn that because of tlie charges which are being further pursued or proceeded with, the order of compulsory retirement had been passed. He claimed that when the Officer has maintained a good record immediately preceding the impugned order, and even according to the respondent when no charge of corruption was involved as against the petitioner, the impugned order had been passed without the required materials and further it was punitive in character.

8. He refers to the counter-affidavit wherein it is stated that:

the allegations contained in the report of the Directorate of Vigilance and Anti-Corruption, though do not specify corruption, are serious enough to warrant his elimination from service as instances of misbehaviour touching his integrity have been reported in the above report.

Again in the counter-affidavit, it is stated that:

his conduct and character came to adverse noticel only when he was serving as Deputy Superintendent of Police, Directorate of Vigilance and Anti-Corruption, Salem, detachment.

When the charges were framed against the petitioner on 25th February, 1976, he asked for the enquiry to be conducted by the Disciplinary Proceedings Tribunal rather than by a departmental personnel, but it was rejected by letter, dated 29th May, 1976, stating that as no charges of corruption are involved, there is no need to accede to his request. Hence when no such serious charge of corruption is involved, and if the allegations which are mentioned in paragraph 3 of the counter-affidavit have alone been taken into account for passing the impugned order, he would then contend that the factors taken into account were no different from the charges which were framed as against petitioner in the disciplinary proceedings and hence the order was passed on iinestablished allegations. A comparison of (he allegations which are relied upon in the counter-affidavit and the charges framed on 24th October, 1976 discloses that they are identical. Hence, he pleads that if the same allegations are further proceeded with in disciplinary proceedings, after compulsory retirement, even though the impugned order on the face of it, may not contain reasons, the subsequent conduct of the respondents has resulted in a stigma being attached to the petitioner.

9. Government Pleader in his turn would contend that the only thing to be looked into is, whether the impugned order, on the face of it, discloses any stigma or not, and if the order by itself cannot result in any aspersions or reflections being cast on the Government servant, the continuance of the disciplinary proceedings on the basis of the same allegations cannot be injected into the impugned order, and that such a proceeding is not illegal. If for any reason, it is to be construed that the continuance of disciplinary proceeding is illegal, it may be quashed, but it would not mean that the order of compulsory retirement deserves to be set aside.

10. Mr. V.P. Raman, learned Counsel for the petitioner stresses on the reflections that had already been occasioned by the continuance of (he disciplinary proceedings in that, immediately after 2 months of the order of compulsory retirement, he was served with the notice regarding continuance of the disciplinary proceedings, which certainly reflected on the conduct of the petitioner, and that in the disciplinary proceedings, if he is to be visited with punishment of dismissal, it would take away the benefits to which the petitioner is entitled to under order of compulsory retirement.

11. An order of compulsory retirement under Fundamental Rule 56(d) can be sustained only if the benefits to which the petitioner is entitled to, are assured, but if it is to be taken away by instituting or continuing other proceedings, it cannot be a 'bona fide? order of compulsory retirement.

12. Counsel for the State relies upon the decision in Nepal Singh v. State of Uttar Pradesh : (1980)IILLJ161SC , which deals with a temporary Government servant being terminated on his general character and conduct taken into account, after dropping disciplinary proceedings.

13. He then refers to the decision in State of Utiar Pradesh v. Ram Chandra Trivedi : (1977)ILLJ200SC , which also dealt with the. termination of services of a temporary Government servant. An elaborate consideration of the entire case-law is found in this decision in the light of the counsel for the respondent therein urging that the constitutional position in regard to the order of the impugned nature is not well-settled, in view of the conflicting decisions of the Supreme Court particularly relating to the observations made in State of Uttar Pradesh and others v. Sughar Singh : (1974)ILLJ260SC and State of Punjab v. P.S. Cheena : AIR1975SC1096 . It was held therein that it is necessary to find out whether the Government servant has a right to the post and whether he had been visited with evil consequences such as forfeiture of pay etc., and if the order terminating a temporary servant or a probationer is a termination simpliciter without anything more; then Article 311 is not attracted. Even though misconduct, negligence, inefficiency or other disqualification may be the motive for the order of termination, unless these things from the very foundation of the order, and when there are no express words in the impugned order itself which throw a stigma on the Government servant, the Court would not delve into secretariat files to discover whether some kind of stigma could be inferred on such research. If the order ex facie is termination, of service simpliciter, then the Court cannot be invited to go into the motive behind the order by claiming protection under Article 311(2) of the Constitution.

14. This decision can be of no assistance, to the respondents because, in the instant case, petitioner had a right to hold the post; and secondly, apart from passing the impugned order, disciplinary proceedings are being continued which would visit with evil consequences, and from what has been stated in the counter-affidavit, it is founded on misconduct for which already proceedings have been initiated and not dropped while ordering compulsory retirement. Reference was made to the principle enunciated in the decision in State of Punjab and another v. Shri Sukh Raj Bahadur : (1970)ILLJ373SC , wherein one of the 5 principles enunciated is that, if the public servant is visited with evil consequences or the order casts an aspersion against his character or integrity it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. The holding of an enquiry has been construed as not always conclusive, but what is decisive is whether the order is really one by way of punishment. Reference was made in this context to the decision in Shamsbar Singh and another v. State of Punjab : (1974)IILLJ465SC , wherein it was held that 'where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with, Article 311 will not be attracted, unless it can be shown that the order though unexceptionable in form, is made following the report based on misconduct. In conclusion it was held in State of Uttar Pradesh v. Ram Chandra Trivedi : (1977)ILLJ200SC , that there have been no conflicting views existing and that the decision in Sughar Singh's case : (1974)ILLJ260SC , shows that it was only following the law previously laid down by Court on Articles 311(2) and 16 of the Constitution of India. It was a case in which no doubt explanations were called for and certain correspondence exchanged between the concerned authorities for imposing suitable punishment but ultimately instead of pursuing with further proceedings, the impugned order was passed without any express words throwing a stigma on the Government servant, and hence it was construed that it was not passed by way of punishment.

15. He then refers to the decision in Shamsher Singh and another v. State of Punjab : (1974)IILLJ465SC , which was relied upon in the earlier cited decision. It was held therein that in respect of termination of service of a probationer, the authority may be of the view that the conduct of the petitioner may result in dismissal or removal on enquiry, but may not hold it, but simply discharge the petitioner 'with a view to giving him a chance to make good in other walks of life, without a stigma'. It was further held therein that holding an enquiry is not always conclusive, but what is decisive is whether the order is really by way of punishment, and if the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment, then the petitioner's termination would attract Article 311. Where departmental enquiry was contemplated and if any enquiry is not in fact proceeded with, Article 311 will not be attracted unless it can be shown that the order though un-exceptionable in form, was made following a report based on misconduct.

16. He then referred to the decision in Champaklal Chimmantal Sahu v. The Union of India : (1964)ILLJ752SC , wherein also it was held that even if a departmental enquiry against a Government servant was contemplated, but not pursued with, and no punitive action was taken against him on the basis of the memorandum issued, but later on a decision being taken not to hold a departmental enquiry but to terminate the services of the temporary servant, by an order simpliciter, then he cannot seek protection under Article 311. Such a preliminary enquiry may also be held 'ex parte'. It is only when a decision is taken to hold a regular departmental enquiry far the purpose of inflicting one of the three major punishments that the Government servant gets the protection of Article 311.

17. Yet another decision referred to is the one reported in Oil and Natural Gas Commission and others v. Dr. Md. S. Iskender Ali : (1980)IILLJ155SC , which also dealt with a case of a probationer, whose services were terminated simpliciter without casting stigma, and it was held therein that when the power exercised (lowed from the contract of service, termination cannot be termed as punishment.

18. In State of Maharashtra v. V.R. Saboji : (1979)IILLJ393SC , it was held that in most of the cases what has to be done is to look to the order on the face of it and find out whether it casts any stigma, and that there is no presumption that the order is arbitrary or mala fide, unless a very strong case is made out and proved by the petitioner, who challenges such an order, in which event, files can be looked into in appropriate cases.

19. Shyam Lal v. The State of U.P. and Anr. : (1954)IILLJ139SC , is referred to for the limited purpose of impressing upon this Court that compulsory retirement is not punishment, and that the officer, so retired, will be entitled to the pension that he has actually earned and there is no diminution of the accrued benefits.

20. Mr. V.P. Raman, learned Counsel for the petitioner in his turn, would refer to the decision in Brij Behari Lal v. High Court of M.P. : (1982)ILLJ1SC , wherein it has been held that in passing an order of compulsory retirement under the Rules, it is desirable to make an overall assessment of the Government servant's record, and in this case no such adverse remaks had been made during such period.

21. It is not the duration, but what is impressed in these decisions is that, while passing an order of compulsory retirement simpliciter, what should prevail in the minds of the authorities should be to look into the immediate performance of the officer and to what extent he would be in a fit position to discharge his duties during the rest of the period and not to take into account some remarks passed in the distant past which could have no relevance because of the subsequent performance of the petitioner over the years of his service.

22. The conspectus of these authorities leads to the conclusion that in an order passed under F.R. 56(d) what has to be looked into is, whether the order on the face af it discloses misconduct etc., and if it does not contain any stigma, normally the Court sustains such an order. It does not ordinarily and usually delve into the files, to find out whether there is any motive for the passing of the order on mere general statements made by petitioner unless a strong case or specific materials is placed by him. It is not as if the affected person cannot, in a fit matter, challenge the order on the ground that it had been passed on 'no materials' or was passed for collateral purposes or requisite opinion was not formed, or was arbitrary, or passed with 'mala fide' intentions.

23. If the State to cast aspersions or stigma on a compulsorily retired servant, initiates or continues disciplinary proceedings and thereby discloses alleged acts of corruption, misconduct or lack of integrity as against him, then can it be held that the order was not punitive and passed in bona fide exercise of powers?

24. As held in R.S. Sial v. State of U.P. : (1974)ILLJ513SC , it is not the form of the order which would be conclusive as to its true nature, but the entirety of circumstances preceding or 'attendant' on the impugned order must be examined by the Court, and the overriding test will always be to find out whether the misconduct is the real motivation or is the very foundation of the order. The decision in Shamsher Singh's case : (1974)IILLJ465SC , already referred to is to the effect, that, in respect of departmental enquiry having been contemplated but not proceeded with, Article 311 will not be attracted, unless it be shown that the order though unexceptional in form was made following a report based on misconduct.

25. In the instant matter, while passing the order under F.R. 56 (d) respondents were conscious of the pendency of the disciplinary proceedings. In the counter-affidavit it is stated that the report of the directorate of Vigilance and Anti-corruption discloses a 'prima facie case and that his conduct came to adverse notice, and hence it warranted his elimination from service as instances of misbehaviour touching his integrity have been reported in the said report.

26. The file produced shows, that a suggestion has been made for dropping all the charges against the petitioner, on his being compulsorily retired. In spite of the impugned order being passed, respondents 1 and 2 in W.P. No. 4636 of 1978 have decided to proceed with the departmental enquiry. Even though repeatedly Courts have held that the order on the face of it must be looked into, if the circumstances disclose that the order is treated as a transitional punishment and the intention of the respondent was to proceed against the Government servant with the same charges as in the departmental proceedings, which have been initiated earlier, the foundation for passing of the order is thus made out. In the instant case, the impugned order is not a final curtain drawn on the petitioner, but a transitional step taken against him, with a deliberate intention to continue the departmental proceedings, which were pursued with by issue of notice of hearing within 2 months of the impugned order. The benefits to which he would be entitled to under the impugned order are attempted to be taken away, if ultimately he is to be dismissed from service in the departmental enquiry.

27. Furthermore, the continuance of disciplinary proceedings in spite of passing of the impugned order, would result in the public forming an opinion that, to adopt the words, used in the counter-affidavit, petitioner's 'conduct and character come to adverse notice warranting his exit from the department because instances of misbehaviour touching his integrity have been reported'. Therefore reliance placed by the Government Pleader that only the impugned order must be looked at and not all the other follow-up actions taken by the Government, cannot be accepted. In The State of Bihar v. Shiva Bhikshukmishra : (1970)IILLJ440SC , it was held that the entirety of proceeding and 'attendant' circumstances can be looked into if the order is camouflaged or appears innocuous in form. Formation of bona fide opinion is a condition precedent. So is the view taken in Shamshar Singh's case : (1974)IILLJ465SC , holding that the substance of the order be considered in deserving cases. As stated earlier, unless the impugned order is the final curtain drawn resulting in the Government servant honourably being relieved from service, the resort to F.R. 56(d) cannot be allowed to act as a transititional or intermediary step before other punishments are imposed. Under these circumstances, it has to be held that the order lacks 'bona fide' and passed in colourable exercise of powers as reflected by the follow up conduct of the respondents. The continuance of the proceedings, after the impugned order, has already vitiated the impugned order, and hence on this ground itself, it deserves to be set aside.

28. When a catena of decisions have held that an order of compulsory retirement would be vitiated, if it is to result in casting on the Government servant aspersions or reflections on his character or integrity or constitute a stigma, would these factors be relevant only to test how the form of the order exists or should they be considered also with reference to how he is affected by actions taken by State following the Order? The contention of the Government Pleader is that, if the words used in the impugned order do not bring about any of these reflections on the Government servant, whatever other acts done or actions taken by the State cannot in any manner vitiate the Order. If such is the restricted approach to be made, then, if for instance the State is to come forward immediately or later on with a press note or a statement being made by persons in charge of the affairs of the Government, that the order of compulsory retirement passed was issued because of his lack of integrity and that such a corrupt officer had been relieved of the post; can it then be held by a Court that the petitioner had not been stigmatised by the action under Fundamental Rule 56(d)? What is pertinent and to be assured for the ejected Government servant is that, in the eyes of the public, he should not figure out, as a person, who has been relieved of the office because of misconduct or due to lack of integrity etc. The power under Fundamental Rule 56(d) has to be strictly adhered to, so that, on being relieved from service, the concerned person is given, 'a chance to make good in other walks of life without a stigma at the time of termination', as held in Shamshar Singh's case : (1974)IILLJ465SC . If this prospect, which is ensured, is in any manner transgressed by deliberate acts by the State following order of compulsory retirement, it would result in the order being vitiated, as having been passed in colourable exercise of such powers. In the instant case, as stated earlier, within two months of the order, the pending disciplinary proceedings were continued, and the petitioner was compelled to participate in it. By holding of such proceedings, the public have been made known that there are serious acts of misconduct committed by the petitioner, for which he was being proceeded with. The follow-up or attendant steps taken have certainly resulted in a stigma being cast on the petitioner, which cannot be effaced by withdrawal of the disciplinary proceedings after three and half years, and reported to Court at the conclusion of the arguments.

29. There is yet another point, which also by itself destroys the validity of the order of it be made out that the impugned order was passed without forming the requisite opinion or on collateral grounds or arbitrarily arrived at or based on no materials or due to mala fides, it will be open to the petitioner to challenge the validity of the order. Therefore when it is contended that the charges framed alone were taken into account for passing the impugned order, it becomes all the more necessary to find out whether the order passed is vitiated by any of the aforesaid factors. It is contended that the same charges were taken into account for passing the impugned order. In paragraph 5 of the counter-affidavit it is stated that:

With regard to contention of writ petitioner in paragraph 9 of his affidavit, it is submitted that his conduct and character came to adverse notice only when he was serving as Deputy Superintendent of Police, Directorate of Vigilance and Anti-Corruption, Salem, detachment. The contention of the petitioner that there was no adverse remarks against him in the past and hence should be deemed as honest is untenable.

Records produced show that a suggestion was made that the charges be dropped, and the petitioner be compulsorily retired. Petitioner claims that his record of service is clean and no blemish whatsoever has been brought to his notice. In Munney Khan v. The State of M.P. : [1971]1SCR943 and Madan Gopcd v. State of Punjab : (1964)ILLJ68SC , it has been held that if a preliminary enquiry is held to find out whether disciplinary action requires to be taken or not and thereafter if an order of discharge is passed simpliciter, Article 311 of the Constitution would not be attracted.

30. In Shamashar Singh's case : (1974)IILLJ465SC , it was held that holding an enquiry is not conclusive, and though the order is unexceptionable in form, the substance of it can be looked into to find out whether the action was taken following a report based on misconduct. In Oil and Natural Gas Commission case : (1980)IILLJ155SC , it was held that even if misconduct and negligence, inefficiency formed the motive or inducing factor, still an order of termination simpikker can be sustained. In S.B. Mishrds case : (1970)IILLJ440SC , it was held that in each case the entire range of facts has to be carefully considered to find out whether the authority intended to punish him. If a strong case is made out the files have to be looked into was the view taken in V. R. Sabaji's case : (1979)IILLJ393SC . Therefore, if the materials taken into account only relate to charges framed in respect of which regular disciplinary proceedings have been already initiated even though they be dropped and if the delinquent is compulsorily retiree, then he is entitled to claim that he has the constitutional right of protection under Article 311 to defend against the charges assailed against him, and establish to what extent they are without substance. Realising this in G.O. Ms. No. 369, Personal and Administrative Reforms (Personnel-R) Department, dated 25th March, 1980, it has since been directed that :

(i) the disciplinary proceedings that are being pursued against all the officers compulsorily retired under Fundamental Rule 56(d) so far, shall be dropped and that no action need be pursued in such cases;

(i) while recommending the cases of officers against whom disciplinary action is pending; the appropriate authority should decide either to compulsorily retire a Government Officer under Fundamental Rule 56 (d) or to pursue disciplinary proceedings against the officer; and

(ii) in cases where action has been initiated for imposing a major penalty and the proceedings are in final stages, the disciplinary proceedings shall be finalised instead of compulsorily retiring the officers under Fundamental Rule 56(d).

31. If the order had been passed taking into account the character, nature of service rendered, and the suitability to the post to which he may be promoted in future etc., the outcome of the order would be different; but if it is based on the pending charges alone, it would be unsafe to hold that they form the materials because Government itself had not yet decided whether they are true or not. A charge framed by itself does not result in an opinion being formed about inefficiency, incapacity, inability or corrupt conduct of a Government servant. Unless it be established by a process known to law, and on which he should have an opportunity to disclose how far they are baseless or non-existent, the charges by themselves cannot be treated as sufficient materials for forming the requisite opinion under Fundamental Rule 56(d). For instance, if in respect of a particular charge of corruption, he is straightaway able to show that the complainant is a fictitious person and on the relevant day mentioned therein, he was in a different place discharging his public duties, and if on such sort of a frivolous charge framed, but not pursued with, if the authority is to drop the proceedings, but relying upon that material alone pass an order of compulsory retirement, it will be tantamount to an opinion being formed on 'no material' whatsoever. As held in V. R. Sabaji's case : (1979)IILLJ393SC , if the petitioner produces sufficient materials for delving into the files, then in exercising powers under Article 226, the petitioner will have the benefit of demonstrating to the Court about futility of the order and to what extent opinion had been formed either on collateral grounds or on 'no materials' or arbitrarily arrived at. Therefore when the same charges have been taken into account, which even according to the respondent required to be proved in the enquiry to be held against the petitioner, they being relied upon, have to be treated as materials which are non-existent as they are yet to be established. Even on this score, it has to be held that the impugned order was passed based on 'no materials' and the requisite opinion had not been lawfully formed.

32. There is yet another point on which also by itself the impugned order cannot be sustained. The order is founded on acts of misconduct alleged against the petitioner which are yet to be established. No doubt, the motivating factor cannot be relevant as held by the Supreme Court in the decisions above referred to, but if it be established that the misconducts alleged are the foundation of the order and a short circuit is adopted for achieving what perhaps could not be achieved in the disciplinary proceedings, such orders of compulsory retirement cannot be upheld. When the records show that in spite of what was suggested for the charges to be dropped and thereafter the petitioner be compulsorily retired, the disciplinary proceedings have been unabatedly pursued, and in the meanwhile, the order having been passed, it has turned out to be a punitive measure of a transitional nature, and it would be dependent on the outcome of the disciplinary proceedings in which he may be visited with grave punishments, which would deprive him of what are assured by an order under Fundamental Rule 56(d). Therefore the impugned, order, in this view, has to be treated, as punitive in nature.

33. Hence on the grounds above stated, each by itself results in the impugned order in W.P. No. 545 of 1979 being quashed.

34. The other contention of the Government Pleader is that, since the petitioner has filed W.P. No. 4636 of 1972, if the Court comes to the conclusion that the disciplinary proceedings cannot be continued, it may be stopped so that the order of compulsory retirement may be sustained. Such a course would not be available because of the aspersions or stigma that had been already suffered by the petitioner.

35. After the petitions stood adjourned for placing any other decisions by the respondents, just before the petitions were reserved for orders, it was reported by the Government Pleader that the disciplinary proceedings had since been dropped by order, dated 23rd July, 1981. No counter-affidavit is filed in W.P. No. 4636 of 1978. Eventhough the counter-affidavit in W.P. No. 545 of 1979 was sworn to on 24th July, 1981, and filed into Court only on 6th August, 1981, there is no reference to such an order having been passed. This is yet another petition, wherein this sort of omission is found. Eventhough the order is now handed over, when it has been held that the continuance of the proceedings had already resulted in aspersions and stigma on the petitioner, merely because disciplinary proceedings are dropped nearly 3% years after filing of the writ petitions, it cannot result in holding that the impugned order alone must be looked at. Now that the disciplinary proceedings are claimed to have been dropped, this fact is recorded and since the Court would not issue a futile writ, W.P. No. 4636 of 1978 is dismissed.

36. W.P. No. 545 of 1979 is allowed with costs. Advocate's fee is fixed at Rs. 300 (Rupees three hundred).


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