Full Judgment Text
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PETITIONER:
RAM EKBAL SHARMA
Vs.
RESPONDENT:
STATE OF BIHAR & ANR.
DATE OF JUDGMENT24/04/1990
BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1990 AIR 1368 1990 SCR (2) 679
1990 SCC (3) 504 1990 SCALE (1)12
ACT:
Bihar Service Code, 1979: Section 74(b)(ii)--Order of
compulsory retirement--Couched in innocuous language--Valid-
ity Court--Whether could lift the veil, in appropriate cases
to ascertain basis of order.
Constitution of India, 1950: Articles 14 and
311(2)--Order of compulsory retirement--Couched in innocuous
language, but made by way of punishment----Whether violative
of.
HEADNOTE:
The appellant, an officer of Bihar State, filed a writ
petition before the High Court, challenging the order of
compulsory retirement passed by the respondent State, under
Rule 74(b)(ii) of Bihar Service Code, 1979, contending that
throughout his service of 30 years he had an exemplary
service career and his integrity remained unquestionable and
that neither any adverse remarks were communicated to him
nor any departmental proceedings were initiated against him,
nor any explanation called for from him. The High Court
dismissed the writ petition by a laconic order.
In the appeal, by special leave, the appellant contended
that though the order was couched in innocuous terms and
made in compliance with the provisions of Rule 74(b)(ii) of
Bihar Service Code on appellant’s reaching the age of more
than 50 years, and prima facie not appearing to cast any
stigma, it was not made in public interest, but made by way
of punishment for oblique purposes, in consideration of
extraneous matter and purporting to removal from service on
certain serious allegations of misconduct, casting a stigma,
and hence the order was illegal, bad and in violation of
audi alterem partem rule and Article 311(2) of the Constitu-
tion and was liable to be quashed.
On behalf of the respondent-State it was contended that
the order had been made in public interest under Rule
74(b)(ii) and there was nothing to show from the order
itself that it had been made by way of punishment, casting a
stigma, the language of the order was innocuous, and the
appellant could not delve into the secretariat files, to
find out the basis of the order.
680
Allowing the appeal, this Court,
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HELD: 1.1 Even though the order of compulsory retirement
is couched in innocuous language without making imputations
against the government servant, who is directed to be com-
pulsorily retired from service, the Court, if challenged, in
appropriate cases can lift the veil to find out whether the
order is based on any misconduct of the government servant
concerned or the order has been made bona fide and not with
any oblique or extraneous purposes. Mere form of the order
in such cases cannot deter the Court from delving into the
basis of the order if the order in question is challenged by
the concerned government servant. [693F-G]
Shamsher Singh & Anr. v. State of Punjab, [1975] 1 SCR
894 and Anoop Jaiswal v. Government of India and Am’., AIR
1984 SC 636, relied on.
Shyam Lalv. The State of U. P. & Anr., [1955] 1 SCR 26;
Baldev Raj Chadha v. Union of India and Ors., [1980] 4 SCC
321 and Union of India v. Col. J.N. Sinha and Anr., [1971] 1
SCR 791, referred to.
I.N. Saxsena v. The State of Madhya Pradesh, [1967] 2
SCR 496, distinguished.
1.2 The object of Rule 74(b)(ii) of the Bihar Service
Code is to get rid of the government servant who has become
dead wood. This order is made only to do away with service
of only those employees who have lost their utility, become
useless and whose further continuance in service is consid-
ered not to be in public interest. [655D]
1.3 In the instant case, the appellant had an unblem-
ished career, and undoubtedly by dint of merit and flawless
service career, had been promoted to the post of Joint
Director and ultimately to the post of General Manager. The
counter-affidavit filed on behalf of the respondent-State
has categorically stated that while passing the order of
compulsory retirement the officers concerned were guided by
the report dated September 19, 1987 which stated that the
appellant was responsible for grave and serious financial
irregularities resulting in financial loss to the State
Government, without giving any opportunity of hearing and
without intimating allegations to the appellant before
forming the opinion. The memorandum in question has clearly
stated that the order of compulsory retirement was made as
the appellant’s misconduct tarnished the image of the Gov-
ernment in the public. This categorical
681
statement clearly proves that the basis of making the order
is the report dated September 19, 1987. Therefore, the order
of compulsory retirement cannot be defended on the mere plea
that it has been made in accordance with the provisions of
Rule 74(b)(ii) which prima facie does not make any imputa-
tion or does not cast any stigma on the career of the appel-
lant. [657E, 689F-H, 690A, 693H, 694A]
In view of the clear and specific averments made by the
respondent-State that the order has been made under Rule
74(b)(ii) as the appellant was found to have committed grave
financial irregularities leading to financial loss to the
State, the order cannot but be said to have been made by way
of punishment. Such an order is in contravention of Article
311 of the Constitution and arbitrary as it violates princi-
ples of natural justice. It has not been made bona fide, but
for collateral purposes and for extraneous consideration by
way of punishment and is, therefore, illegal, unwarranted
and liable to be quashed. [694A-B, C]
Accordingly the order of compulsory retirement is set
aside and the respondents are directed to reinstate the
appellant with full back wages. [694D]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1995 of
1990.
From the Judgment and Order dated 23.11.1988 of the
Patna High Court in C.W.J.C. No. 8457 of 1988.
A.K. Sen. Shankar Ghosh and M.P. Jha for the Appellant.
G.S. Misra for the Respondents.
The Judgment of the Court was delivered by
J. This appeal on special leave is directed against
the judgment and order dated November 23, 1988 passed in
C.W.J.C. No. 8457 of 1988 by the High Court, Patna dismiss-
ing the writ petition moved by the appellant assailing the
order of his compulsory retirement from service by notifica-
tion dated October 26, 1988 issued by the Government of
Bihar compulsorily retiring him from service with effect
from the date of issue of the notification.
The salient facts giving rise to this appeal are that
the appellant was initially appointed on December 9, 1957 to
the post of Industrial Expansion Officer and he was con-
firmed to the said post on May 15,
682
1958. The appellant was promoted to the post of Planning-cum
Evaluation officer, a Gazetted post, on December 19, 1973
because of his excellent service career. The appellant was
further promoted to the next higher post of Industrial
Economist by notification dated September 24, 1983 with
effect from December 19, 1978 in the scale of Rs.1350-2000.
Because of excellent character role and merit of the
appellant, he was promoted to the next higher post of Joint
Director in his original scale of pay of Rs.1350-2000 with
20 per cent personal pay for holding such higher post which
he held from September 24, 1983 to March 31, 1984. From
April 1, 1984 the appellant was provided with the higher
post of General Manager under the respondent-State in its
Industries Department.
The respondent-State issued a notification on September
16, 1988 promoting a large number of juniors to the higher
scale of Rs.1575-2300 without considering the case of the
appellant.
Being aggrieved the appellant filed one representation
against his supersession which was made without considering
the case of the appellant. The representation was filed on
October 7, 1988. In the said representation the appellant
brought to the notice of the respondent State that the serv-
ice record of the appellant throughout remained excellent,
integrity beyond doubt and the appellant was never communi-
cated with any punishment in his service career.
While the appellant was awaiting for a decision, the
respondent State issued the impugned notification dated
October 26, 1988 compulsorily retiring the appellant from
the post of General Manager, District Industries Centre,
Deoghar under the provisions of Rule 74(b)(ii) of the Bihar
Service Code.
The appellant claimed that the aforesaid order of com-
pulsory retirement has been issued by the respondent-State
on the basis of a memorandum dated October 6, 1988 though in
the garb of Rule 74(b)(ii) of the Bihar Service Code, but in
fact this has been made as a measure of punishment.
Being aggrieved and dissatisfied by the order of compul-
sory retirement passed against him by the respondents, the
appellant preferred a writ petition being C.W.J.C. No. 8457
of 1988 before the High Court, Patna questioning the im-
pugned order on the grounds inter alia
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683
that the appellant throughout his 30 years had an exemplary
service career and his integrity remained unquestionable,
that the appellant was never communicated with any adverse
remarks nor any departmental proceeding was ever initiated
against the appellant, nor any explanation was ever called
for. The High Court without at all considering and appreci-
ating the contentions dismissed the writ application by a
laconic order.
Feeling aggrieved by the said order the instant appeal
on special leave has been filed.
The only crucial question that fails for consideration
in this Court is whether the impugned order of compulsory
retirement from service has been made by the Appointing
Authority in public interest in accordance with Rule
74(b)(ii) of Bihar Service Code, 1979 or for any oblique
motive as an extraneous consideration or by way of punish-
ment casting stigma on the service career of the appellant
even though the impugned order was couched in innocuous
language.
The relevant Rule 74(b) reads as follows:
"Rule 74(b)(i): Notwithstanding anything contained in the
preceding subrule a Government Servant may, after giving at
least three months’ previous notice, in writing, to the
appointing authority concerned, retire from service on the
date on which such a Government servant completes thirty
years of qualifying service or attains fifty years of age or
any date thereafter to be specified in the notice.
Provided that no Government servant under suspension shall
retire from service except with the specific approval of the
State Government.
Provided further that in case of officers and servants of
the Patna High Court (including those of Circuit Bench at
Ranchi), under the rule marking authority of the Chief
Justice, no such officers and servants under suspension
shall retire from service except with the specific approval
of the Chief Justice.
Rule 74(b)(ii): The appointing authority concerned may,
after giving a Government servant at least three months’
previous
684
notice in writing, or an amount equal to three months’ pay
and allowances in lieu of such notice, require him in public
interest to retire from service on the date on which such a
Government servant completes thirty years of qualifying
service or attains fifty years of age or on any date there-
after to be specified in the notice."
On a plain reading of the said Rule it appears that the
appointing authority has been conferred power to retire a
government servant from service in public interest after
giving three months’ prior notice in writing or an amount
equal to three months’ pay and allowances in lieu of such
notice on the date on which such government servant com-
pletes thirty years of qualifying service or attains fifty
years of age or on any date thereafter to be specified in
the notice. The impugned notification was made on October
26, 1988 by the Government of Bihar intimating the appellant
that as he had completed the age of more than 50 years, and
in the opinion of the Government of Bihar, in public inter-
est he is compulsorily retired from service with effect from
the date of issue of this notification. He will be paid
salary of three months with allowances in lieu of three
months’ notice under Rule 74(b)(ii) of Bihar Service Code.
It has been contended on behalf of the appellant that
though the impugned order is couched in innocuous terms and
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it is made in compliance with the provisions of Rule
74(b)(ii) of Bihar Service Code on appellant’s reaching the
age of more than 50 years and it does not prima facie appear
to cast any stigma on the service career of the appellant
yet it has been made by way of punishment casting stigma on
the appellant’s service career and as such the impugned
order is illegal, bad and the same has been made in viola-
tion of audi alterem partem rule as well as Article 311(2)
of the Constitution. It has been further submitted in this
connection that the power to retire the appellant compulso-
rily from service has not been made in public interest under
Rule 74(b)(ii) of Bihar Service Code but on the basis of the
fact finding report given by the Deputy Development Commis-
sioner, Dumka by his letter dated September 19, 1987 re-
garding grave financial irregularities committed by the
appellant in consideration of which a memorandum was pre-
pared by the Additional Commissioner-cum-Special Secretary,
Shri T. Nand Kumar on October 6, 1988 recommending to the
respondent-State to compulsorily retire the appellant from
service under Rule 74(b)(ii) of Bihar Code. It has also been
contended that the basis of the order was made with oblique
purposes
685
in consideration of extraneous matter and the impugned order
purports to removal from service on certain serious allega-
tions of misconduct and consequently it casts a stigma on
the service career of the appellant. Such order of compulso-
ry retirement from service though appears to be innocuous,
has been made by way of punishment and as such it is liable
to be set aside and quashed.
It has, on the other hand, been urged on behalf of the
respondent-State that the impugned order has been made under
Rule 74(b)(ii) of Bihar Service Code in public interest and
there is nothing to show from the order itself that it has
been made by way of punishment and it casts a stigma on the
service career of the appellant. The language of the order
is innocuous. The appellant cannot delve into the secretari-
at files to find out the basis of the order. Some decisions
have been cited at the bar in support of this submission.
Rule 74(b)(ii) of the Bihar Service Code confers power
on the Appointing Authority to compulsorily retire a govern-
ment servant on his attaining 50 years of age or after
completing 30 years of qualifying service in public inter-
est. The object of this rule is to get rid of the government
servant who has become dead wood. This order is made only to
do away with service of only those employees who have lost
their utility, become useless and whose further continuance
in service is considered not to be in public interest. In
the instant case the appellant has an unblemished career and
undoubtedly by dint of his merit and flawless service career
he had been promoted to the post of Joint Director in 1983
and subsequently on 1st April, 1984 he was promoted to the
higher post of General Manager under the respondent State in
its Industries Department. The appellant has specifically
pleaded in paragraph K of this appeal that he came to know
that the impugned order of compulsory retirement has been
issued by the respondent State on the basis of a memorandum
dated October 6, 1988. It has been further pleaded that the
appellant came to know from the memorandum that the impugned
order of compulsory retirement dated October 26, 1988 has
been issued by the respondent-State though in the garb of
Rule 74(b)(ii) of the Bihar Service Code, but in fact the
same has been issued as a measure of punishment. This fact
will be evident from the memorandum dated 6th October, 1988
wherein the State has alleged that six items of charges have
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been proved against the petitioner (appellant). The State
Government has also accepted that there is no question of
going into the formality of departmental proceeding but has
decided to retire the petitioner compulsorily under Rules
74(b)(ii) of the Bihar Service Code. Paragraphs
686
2 to 4 of the Memorandum dated 6th October, 1988 make it
clear that the impugned order dated October 26, 1988 of
compulsory retirement, has been issued as a measure’ of
punishment. It is further submitted that the order passed on
October 26, 1988 was without giving any notice or any show
cause to the petitioner.
It has been stated in para 4 to 7 of the counter-affidavit
as under:
(4) That it is not at all necessary to draw departmental
proceeding against the petitioner (appellant) before effect-
ing his compulsory retirement from government service. Since
his retirement under Rule 74(b)(ii) of the Bihar Service
Code does not amount to dismissal or removal from government
service within the meaning of clause (2) of Article 311 of
the-Constitution, it is, therefore, not necessary to obtain
the advice of the Bihar Public Service Commission (Limita-
tion of Functions) Regulation, 1956.
(5) That it is relevant to state that while the petitioner
(appellant) was General Manager, District Industries Centre,
Dumka and Deoghar during the year 1985 onwards till his
compulsory retirement, an enquiry into the serious charges
of corruption, omission and commission of financial and
administrative lapses and foul play against him had been
conducted respectively by Deputy Development Commissioner,
Dumka, Deputy Commissioner, Dumka and Additional Director of
Industries, Bihar, Patna.
The above charges were proved such as:
(i) The charge of registration of bogus unit had clearly
been established;
(ii) Allegations of recommendations and sanction of capital
subsidy on D.G. sets to bogus units have been proved;
(iii) Where there were no D.G. sets and the unit was bogus,
subsidy had been sanctioned against the departmental in-
structions;
(iv) Seed money had been sanctioned to non-existent units
and payments made in violation of Government orders;
687
(v) Registration had been done for restricted items;
(vi) Subsidy on D.G. sets had been sanctioned and payments
made to units located outside his jurisdiction; and
(vii) Appointment of persons had been made on ad hoc basis
beyond his delegated powers in gross violation of Government
rules.
(6) That in the above mentioned cases registration; recom-
mendations and payments had been made by the petitioner
(appellant) after making personal inspections of the units
which facts are sufficient to prove that he had commited the
said irregularities knowingly for his personal gains and
thereby the State Government had suffered a heavy loss. This
misconduct on his part had tarnished the image of the Gov-
ernment in the public. It is, therefore, his so-called
exemplary service record which has no co-relation with his
compulsory retirement as stated in the aforesaid paragraph.
(7) That contention of the petitioner (appellant) as stated
in para (viii) of the special leave petition that the memo-
randum which have formed the basis of causing the compulsory
retirement of the petitioner (appellant), is absolutely
wrong and without any substance. It is relevant to state
that the memorandum being confidential papers of the re-
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spondent-State Government cannot be termed as the Order of
compulsory retirement and which order does not contain any
word from which a stigma may be inferred."
It has been further averred in para 8 of the said affi-
davit that on a perusal of the order of compulsory retire-
ment of the petitioner (appellant), it is sufficiently clear
that no stigma has been attached to the petitioner nor there
is any word in the said Order from which a stigma may be
inferred. The Supreme Court has held in the case of I.N.
Saxsena v. The State of Madhya Pradesh, [967] 2 SCR 496 that
where an order requiting a Government servant to retire
compulsorily contains express words from which a stigma can
be inferred that order will amount to removal within the
meaning of Article 311. But where there are no express words
in the order itself which would throw any stigma on the
Government order, we cannot delve into Secretariat files to
discover whether some kind of stigma can be inferred on such
research.
688
In para 9 it has been stated that it is, therefore, as
per the decision of the Supreme Court in the said case, the
Court cannot look into the background resulting in the
passing of the order of compulsory retirement in order to
discover whether some kind of stigma can be inferred and
accordingly in the instant case the memorandum is totally
irrelevant for the consideration by the Court and in view of
the same the appeal of the appellant can be dismissed.
A supplementary affidavit has been filed on behalf of
the appellant sworn by Suhird Kumar, son of the appellant.
In para 3 of the said affidavit it has been submitted that
the memorandum is prepared on the basis of two enquiry
reports done by the different officers without there being
any notice or getting any other version and this sort of
memorandum cannot be said to be a fair memorandum in the
eyes of law and so any action taken by the State Government
on the basis of the said Memorandum is bad and violative of
Article 14 and 16 of the Constitution of India.
It is thus, clear and evident from the counter-affidavit
filed on behalf of the State Government referred to herein-
before that the basis of the impugned order of compulsory
retirement from service of the appellant is not in public
interest as stated in the order of compulsory retirement
dated October 26, 1988. The impugned order, in fact, has
been passed on the basis of the memorandum dated October 6,
1988 which is also based on the Report given by the Deputy
Development Commissioner, Dumka by his letter dated Septem-
ber 19, 1987 without asking any explanation from the appel-
lant and without giving him any opportunity to defend his
case before the Deputy Development Commissioner. It is,
therefore, wrong to say that the basis of the order is not
the said memorandum as well as the report of the Deputy
Development Commissioner which clearly evinces that the
impugned order of compulsory retirement is a mere camouflage
being couched in innocuous terms and in fact the same has
been made by way of punishment.
In support of the impugned order it has been vehemently
urged on behalf of the respondent-State that the order of
compulsory retirement dated October 26, 1988 does not show
prima facie that it has been made by way of punishment. The
Order as it is, speaks of compulsory retirement of the
appellant from service in accordance with the provisions of
Rule 74(b)(ii) of the Bihar Service Code. It has been con-
tended further’ that this order being couched in innocuous
terms cannot be questioned and the appellant cannot delve
into the secre-
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689
tariat filed to find out the basis of the order and to
challenge the same on that basis. Reference has been made in
this connection to the case of 1. N. Saksena v. The State of
Madhya Pradesh, (supra). In that case, the State of Madhya
Pradesh issued a memorandum on February 28, 1963 raising the
age of retirement of its employees from 55 to 58 years.
Clause 5 of the memorandum, however, said that the appoint-
ing Authority may require a Government servant to retire
after he attained the age of 55 years on three months’
notice without giving any reasons. The clause further said
that this power was normally to be used to weed out unsuit-
able employees. The appellant who was a District and Ses-
sions Judge in the service of the State Government would
normally have retired at the age of 55 years in August,
1963. In September, 1963, however, Government communicated
to. him an order that he was to retire on December 31, 1963
under Rule 56 of the Fundamental Rules applicable to the
State of Madhya Pradesh. This order was challenged by the
appellant by writ petition before the High Court of Madhya
Pradesh. It was rejected. Thereafter, the appellant came
with a certificate, to this court. It has been held by this
Court in that case that:
"Where there are no express words in the order of compulsory
retirement itself which would throw a stigma on the Govern-
ment servant, the Court would not delve into Secretariat
files to discover whether some kind of stigma could be
inferred on such research. Since in the present case there
are no words of stigma in the order compulsorily retiring
the appellant, there was no removal requiring action under
Art. 311 of the Constitution."
This decision does not, in any way, apply to this case
for the simple reason that in the affidavit-in-counter filed
by the respondent State it has been categorically stated
that while passing the impugned order of compulsory
retirement the officers concerned were guided by the report
dated September 19, 1987 submitted by the Deputy Development
Commissioner, Dumka who stated in his report that the appel-
lant was responsible for the grave and serious financial
irregularities resulting in financial loss to the State
Government, without giving any opportunity of hearing and
without intimating the allegations to the appellant before
forming his opinion. The said report was taken into consid-
eration and memorandum in question was issued on October 26,
1988 by the Additional Secretary, Industries Department,
Government of Bihar wherein it has been clearly stated that
the impugned order of compulsory retirement was made as the
said mis-
690
conduct on the part of the appellant tarnished the image of
the Government in the public. This categorical statement
made in the affidavit-in-counter clearly proves that the
basis of making the order of compulsory retirement of the
appellant from the service is the aforesaid report of the
Deputy Development Commissioner, Dumka referred to hereinbe-
fore. In such circumstances, it is futile to argue that the
order of compulsory retirement being couched in an innocuous
language without causing any stigma is unassailable.
It is pertinent to mention in this connection the case
of Shyam Lal v. The State of U.P. & Anr., [1955] 1 SCR 26
wherein it has been held by the Constitution Bench that:
"A compulsory retirement under the Civil Services (Classifi-
cation, Control and Appeal) Rules, does not amount to dis-
missal or removal within the meaning of Article 311 of the
Constitution and therefore, does not fall within the provi-
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sions of the said Article."
"There is no such element of charge or imputation in the
case of compulsory retirement. The two requirements for
compulsory retirement are that the officer has completed 25
years’ service and that it is in the public interest to
dispense with his further services. It is true that this
power of compulsory retirement may be used when the authori-
ty exercising this power cannot substantiate the misconduct
which may be the real cause for taking the action but what
is important to note is that the directions in the last
sentence in Note 1 to Article 465-A make it abundantly clear
that an imputation or charge is not in terms made a condi-
tion for the exercise of the power. In other words, a com-
pulsory retirement has no stigma or implication of misbeha-
viour or incapacity."
It has been further held that:
"A compulsory retirement does not amount to dismissal or
removal and, therefore, does not attract the provisions of
Article 311 of the Constitution.
In Baldev Raj Chadha v. Union of India and Ors., [1980]
4 SCC 32 1 it was held that:
691
"The whole purpose of Fundamental Rule 56(j) is to weed out
the worthless without the punitive extremes covered by
Article 311 of the Constitution. But under the guise of
’public interest’ if unlimited direction is regarded accept-
able for making an order of premature retirement, it will be
the surest menace to public interest and must fail for
unreasonableness, arbitrariness and disguised dismissal. The
exercise of power must be bona fide and promote public
interest."
It has also been observed that:
"An officer in continuous service for 14 years crossing the
efficiency bar and reaching the maximum salary in the scale
and with no adverse entries at least for five years immedi-
ately before the compulsory retirement cannot be compulsori-
ly retired on the score that long years ago, his performance
had been poor, although his superiors had allowed him to
cross the efficiency bar without qualms."
In the case of Union of India v. Col. J.N. Sinha and
Anr., [1971] 1 SCR 791 it has been observed by this Court
that:
"Fundamental Rule 56(i) does not in terms require that any
opportunity should be given to the concerned Government
servant to show cause against his compulsory retirement. It
says that the appropriate authority has the absolute right
to retire a government servant if it is of the opinion that
it is in the public interest to do so. If that authority
bona fide forms that opinion the correctness of that opinion
cannot be challenged before courts, though it is open to an
aggrieved party to contend that the requisite opinion has
not been formed or the decision is based on collateral
grounds or that it is an arbitrary decision."
In Shamsher Singh & Anr. v. State of Punjab, [1975] 1
SCR 814 the appellant Shamsher Singh was a Subordinate Judge
on probation. His services were terminated by the Government
of Punjab in the name of Governor of Punjab by an order
which did not give any reasons for the termination. It has
been held that:
"No abstract proposition can be laid down that where the
services of probationer are terminated without saying any-
692
thing more in the order of termination that it can never
amount to a punishment in the facts and circumstances of the
case. If a probationer is discharged on the ground of mis-
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conduct or inefficiency or for similar reason without a
proper enquiry and without his getting a reasonable opportu-
nity of showing cause against his discharge it may in a
given case amount to removal from service within the meaning
of Article 311(2) of the Constitution."
In that case the appellant was asked to show cause why
his services should not be terminated and there were four
grounds. One was that the appellant’s behaviour towards the
Bar and the litigant public was highly objectionable, de-
rogatory, non-cooperative and unbecoming of a judicial
officer. The second was that the appellant would leave his
office early. The third was the complaint of Om Prakash,
Agriculture Inspector that the appellant abused his position
by proclaiming that he would get Om Prakash involved in a
case if he did not cooperate with Mangal Singh, a friend of
the appellant and Block Development officer, Sultanpur. The
fourth was the complaint of Prem Sagar that the appellant
did not give full opportunity to Prem Sagar to lead evi-
dence. Prem Sagar also complained that the decreeholder made
an application for execution of the decree against Prem
Sagar and the appellant without obtaining office report
incorporated some additions in the original judgment and
warrant of possession. The appellant showed cause stating
that he was not provided with an opportunity to work under
the same superior officer for at least six months so that
independent opinion could k., formed about his knowledge,
work and conduct. Thereafter, the appellant received a
letter from the Deputy Secretary to the Government addressed
to the Registrar, Punjab and Haryana High Court that the
services of the appellant had been terminated. It has been
held that in the facts and circumstances of the case it is
clear that the order of the termination of the appellant,
Shamsher Singh was one of punishment. The authorities were
to find out the suitability of the appellant. The order of
termination is in infraction of Rule 9 which makes it incum-
bent upon the authority that the services of a probationer
can be terminated on specific fault or on account of unsat-
isfactory record implying unsuitability. The order of termi-
nation was, therefore, set aside.
This judgment has been followed in the case of Anoop
Jaiswal v. Government of India and Anr., AIR 1984 SC 636. It
has been observed that:
693
"It is, therefore, now well settled that where the form of
the order is merely a camouflage for an order of dismissal
for misconduct it is always open to the Court before which
the order is challenged to go behind the form and ascertain
the true character of the order. If the Court holds that the
order though in the form is merely a determination of em-
ployment is in reality a cloak for an order of punishment,
the Court would not be debarred, merely because of the form
of the order, in giving effect to the fights conferred by
law upon the employee."
It has also been observed that:
"Even though the order of discharge may be non-committal, it
cannot stand alone. Though the noting in the file of the
Government may be irrelevant, the cause for the order cannot
be ignored. The recommendation of the Director which is the
basis or foundation for the order should be read along with
the order for the purpose of determining its true character.
If on reading the two together the Court reaches the conclu-
sion that the alleged act of misconduct was the cause of the
order and that but for that incident it would not have been
passed then it is inevitable that the order of discharge
should fall to the ground as the appellant has not been
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afforded a reasonable opportunity to defend himself as
provided in Art. 3 11(2) of the Constitution."
On a consideration of the above decisions the legal
position that now emerges is that even though the order of
compulsory retirement is couched in innocuous language
without making any imputations against the government serv-
ant who is directed to be compulsorily retired from service,
the Court, if challenged, in appropriate cases can lift the
veil to find out whether the order is based on any miscon-
duct of the government servant concerned or the order has
been made bona fide and not with any oblique or extraneous
purposes. Mere form of the order in such cases cannot deter
the Court from delving into the basis of the order if the
order in question is challenged by the concerned government
servant as has been held by this Court in Anoop Jaiswal’s
case. This being the position the respondent-State cannot
defend the order of compulsory retirement of the appellant
in the instant case on the mere plea that the order has been
made in accordance with the provisions of Rule 74(b)(ii) of
the Bihar Service Code
694
which prima facie does not make any imputation or does not
cast any stigma on the service career of the appellant. But
in view of the clear and specific averments made by the
respondent-State that the impugned order has been made to
compulsorily retire the appellant from service under the
aforesaid Rule as the appellant was found to have committed
grave financial irregularities leading to financial loss to
the State, the impugned order cannot but be said to have
been made by way of punishment. As such, such an order is in
contravention of Article 311 of the Constitution of India as
well as it is arbitrary as it violates principles of natural
justice and the same has not been made bona fide.
In the premises aforesaid we hold that the impugned
order has not been made bona fide but for collateral pur-
poses and on extraneous consideration by way of punishment.
The impugned order is, therefore, illegal and unwanted and
so it is liable to be quashed and set aside. We, therefore,
allow the appeal and set aside the impugned order. We fur-
ther direct the respondents to reinstate the appellant in
service forthwith with full back wages. The respondents will
pay costs to the appellant.
N.P.V. Appeal
allowed.
695