P.K. Banerjee, J.
1. This Rule is directed against the order of compulsory retirement of the petitioner from the service of the Indian Airlines Corporation with effect from 31st March, 1982 in terms of the Service Rule and Regulation. The impugned order is quoted herein at page 96 of the petition which is as follows:
Deputy Managing Director
Dr. B.N. Mitra,
Assistant Chief Medical Officer,
Date: 30th March, 1982.
This is to inform you that it has been decided to retire you from the service of Indian Airlines with effect from the afternoon of 31st March, 1982 in terms of Service Rule 12 of Service Regulations as applicable to you. Accordingly, you will stand relieved with effect from the close of working hours on 31st March, 1982.
A crossed cheque No. OC 555649 for Rs. 12,903 in lieu of three months' notice period is enclosed herewith.
Your accounts will be settled by Finance Department, Eastern Region, Calcutta after checking your commitments.
End: Cheque No. OC 555649
dated 30th march, 1982
for Rs. 12,903/-
Sd. Capt. N.M. Pereira,
Deputy Manaing Director.
2. It appears that the petitioner joined the service of Indian Airlines Corporation as a medical officer on the 18th September, 1967. On the 9th June, 1969 it appears a post of a senior medical officer was vacant and one Dr. R.K. Baijal was appointed and the petitioner was not even asked to appear before the interview though according to the petitioner he was highly qualified. Be that as it may, it appears that there are some allegations against the petitioner and a preliminary inquiry was held in respect of the allegation but no charge sheet was framed on the basis of the preliminary inquiry. But by the order dated 30th March, 1982, the petitioner was retired compulsorilv, with effect, from 31st March, 1982 by giving three months' salary by an account payee cheque. the petitioner demanded justice and, thereafter, moved this Court and obtained the present Rule.
3. Mr. A.K. Dutta, appearing on behalf of petitioner, contended firstly that under Rule 12 of the Indian Airlines Corporation it is provided as follows:
An employee shall retire from the service of the Corporation on attaining the age of 58 years provided that the competent authority may retire an employee after he attains the age of 55 years on giving 3 months' notice without assigning any reason. 'An employee, (a) on attaining the age of 55 years; or (b) on the completion of 25 years of continuous service may by giving three months' notice voluntarily retire from service:Provided that the voluntary retirement under Clause (b) shall be subject to approval of the competent authority.
4. It is argued that as the petitioner was not given three months' notice the order of the retirement ex facie is bad and it is argued also that the payment of three months' salary in lieu of the notice is in violation of the Rule and, therefore, bad.
5. Mr. Additional Solicitor General, appearing for the respondent, contended inter alia that there was no violation of the Rule and if the petitioner was given three months' notice he would have earned the benefit for the next three months before retirement. If in such case three months' salary is given to the petitioner the petitioner does not lose any benefit for the three months and, therefore, this can be done. Mr. Additional Solicitor General relied upon the case reported in : 3SCR893 (Mohan Singh Malhi v. Stale of Punjab). Their Lordships of the Supreme Court were considering Rule 5. 32(c) of the Punjab Civil Service Rules, Volume II which runs as follows:
(c)(i) A Government servant who is retired by the Appointing Authority on or after he attains the age of 55 years by giving him not less than 2 months' notice.
In the said case also the Government Servant was not given three months' notice but was paid three months' salary and allowance. The Supreme Court held in paragraph 7 that:
Assuming that the rule by implication requires three months' notice to be given to a Government servant of the description referred to therein before retiring him from service, we were unable to understand how that requirement can be said to be violated if instead of three months' notice, payment of three months' salary and allowances is made to him. The object of the notice as well known, is to give sufficient time to the Government servant whom it is intended to retire from service to find employment elsewhere and to prevent him being suddenly left in lurch without any means of livelihood. If that be the object of the notice no prejudice can be said to be caused to the Government servant if in lieu of three months' notice he is given three months' salary and allowances. In fact, he is put in more advantageous position by being paid three months' salary and allowances instead of notice for that period as he is thereby relieved of the obligation to spend his time in the office attending to his duty and gets all the time to himself which he can utilize in finding an alternative job or settling his affairs.
6. In the present case three months' notice was admittedly not given but three months' salary and allowance were given. Under the Rule as it stood it is quite clear that the petitioner is entitled to three months' notice but in view of the Supreme Court judgment, as in this case, three months' salary and allowances are paid there is no violation of the Rule 12 of the Indian Airlines Corporation as argued by Mr. Dutta.
7. Next argument advanced by Mr. Dutta is that the petitioner was compulsorily retired under Rule 12 by way of punishment. From the order as quoted it is clear that there is no stigma attached in the order served on the petitioner but the affidavit filed by respondent No. 3 Capt. N.M. Pereira is stated as follows:
With particular reference to the allegations contained in para 22 of the petition, it is stated that certain allegations were received during June, 1981 against the petitioner in respect of his duties as Asstt. Chief Medical Officer of the Eastern Region. Enquiries were made and the report of such enquiry to the records were considered by me as the competent authority. It was satisfied that there is substance in these allegations. Considering all these facts and the records of the case, I thought it is in the interest of the Corporation to retire the petitioner as he had already attained the age of 55 years and he was at that time 56 years and a few months. In so doing, I had also considered that the fact any domestic enquiry will be injurious to the interest of the petitioner and who had completed about 24 years service in the Corporation. Accordingly, I passed the said order of retirement and the letter of retirement was issued on 30th March, 1982 under Rule 12 of the service Rules and a cheque for Rs. 12,903/- as his full pay for 3 months' notice period was enclosed with the letter.
8. From the said paragraph it is argued by Mr. Dutta that the order was passed by way of punishment. The order of compulsory retirement is passed after a particular age, that is, age of 55, as in the present case, if the Government is satisfied that no useful purpose will be served by keeping the person in office. In the case reported in Union of India v. M.E. Reddy 1980-I L.L.J. 7] in paragraph 22 where the Supreme Court considered the earlier decision of the Supremo Court beginning from J.N. Sinha's case and summed up the plea to the extent that if the order itself does not show any stigma attached on the basis on which the petitioner is retired compulsorily it cannot be by way of punishment. It is, however, argued by Mr. Dutta that the affidavit itself shows that this is by way of punishment. In reading the affidavit it appears to me that in passing the order the authorities concerned considered the background of the officer and made inquiries to satisfy themselves and thereafter came to the conclusion that in the interests of the Corporation as well as in the interest of the petitioner that the petitioner should be retired compulsorily under Rule 12. In my opinion, this cannot be stated to be by way of punishment. The petitioner has been given all the advantages of benefit of his service and which is not forfeited and does not result in civil consequences. It appears that this case was again relied upon and reiterated by the Supreme Court in Commodore Commdanding Southern Naval Area v. V.N. Rajan 1981-II L.L.J. 1]. It is stated that the decision in the said case terminating the service of a Government servant taken at the highest level on the ground of unsuitability is not by way of punishment. In the Supreme Court decision reported in Tara Singh v. State of Rajasthun in : 3SCR1002 the Supreme Court speaking so held inter alia which is as follows:
The right to be in public employment is a right to hold it according to rules. The right to hold is defeasible according to rules. The rules speak of compulsory retirement. There is guidance in the rules as to when such compulsory retirement is made. When persons complete 25 years of service and the efficiency of such persons is impaired and yet it is desirable not to bring any charge of inethiciency or incompetency, the Government passes order of such compulsory retirement. The Government servant in such a case does not lose the benefits which a Government servant has already earned. These orders of compulsory retirement are made in public interest. This is the safety valve of making such orders so that no arbitrariness or bad faith creeps in.
9. In that view of the matter, in my opinion the order is not by way of punishment.
10. Mr. Dutta argued that by the order of compulsory retirement the petitioner's right to a few emoluments etc. is being taken away. If the respondent has the power to retire a person under the Rule and if by the order of compulsory retirement the petitioner does not at all forfeit his earned benefits and that he will not be allowed to work more than three years in future will not be treated by way of punishment.
11. Mr, Dutta lastly argued faintly that natural justice has been violated. It appears to me that a preliminary inquiry was made in which the authorities wanted to know whether there should be any basis for having a charge against the petitioner. At the preliminary inquiry stage the petitioner was given opportunity to explain but thereafter the authorities concerned did not decide to hold a departmental enquiry. It was only when the departmental inquiry was held the question of natural justice comes. Therefore, there is no merit in the contention of Mr. Dutta either on this point.
12. A point having been taken by the learned Additional Solicitor General that some records which were lying with Mr. Dutta's clients and the records of the Corporation have not been returned to them, this is admitted that some records of the Corporation are lying with Mr. Dutta's client. These records must be returned to the Indian Airlines Corporation within a month from this date.
13. With this observation I discharge this Rule but there will be no order as to costs.